author: Borden, J. O’Connell, J.,

text:
    State of Connecticut v. Ronald A. Leroux
    (6242)
    Bokden, Daly and O’Connell, Js.
    Argued October 12, 1988
    decision released April 25, 1989

      MitchellS. Brody, deputy assistant state’s attorney, with whom, on the brief, was Corrine L. Klatt, deputy assistant state’s attorney, for the appellant (state).

      Christopher W. Bromson, with whom were Wesley W. Horton and Donald G. Leis, Jr., for the appellee (defendant).
   Borden, J.

The decisive issue in this appeal involves the scope of the constitutional duty of the state to preserve evidentiary material that, had it been subjected to certain tests, might have exonerated the defendant. The state appeals from the dismissal of the information charging the defendant with manslaughter in the second degree with a motor vehicle, in violation of General Statutes § 53a-56b. The state claims that the trial court erred in dismissing the information. We find error.

Certain facts are not in dispute. On September 24, 1985, a tractor trailer occupied by the defendant and Jeffrey White ran off the westbound lanes of Interstate 84 in Waterbury. The truck rolled onto its right side, skidded along the pavement and came to an abrupt halt. Both the defendant and White were thrown through the windshield, which was driven out of its frame and onto the ground. White subsequently died from his injuries.

The initial police investigation of the scene of the accident failed to determine whether White or the defendant had been driving. State Police Trooper Lee Osborne returned to the scene approximately one month after the accident and recovered the shattered windshield of the truck. In early November, the windshield was sent to the state police forensic laboratory to determine whether there was hair or blood on it.

In early February, 1986, before the forensic laboratory had completed its examination of the windshield, the defendant’s attorneys informed the state police by letter that they had retained an accident reconstruction expert and wished to discuss the available evidence. Later that month, the forensic laboratory returned the windshield to Osborne along with a report that indicated that no blood or hair was found. Osborne concluded that the windshield had no evidentiary value, and destroyed it at the end of March, 1986.

On April 8, 1986, the defendant was charged with manslaughter in the second degree with a motor vehicle, in violation of General Statutes § 53a-56b. Thereafter, the defendant moved to require the state to disclose and produce, inter alia, “all exculpatory information and materials,” and to compel the preservation of, inter alia, “any and all tangible objects which may at any time have been sent to the State Police Forensic laboratory for analysis . . . . ”

On the basis of the destruction of the windshield, the defendant moved to dismiss the information. The trial court found that there were no eyewitnesses to the accident to establish who was the driver, and that the driver’s identity would have to be established by reconstruction of the accident through physical evidence. The court also found, based on the testimony of the defendant’s accident reconstruction expert, that the windshield was essential to determine the trajectories of the bodies as they were thrown from the truck. It further found that there was no comparable evidence to establish the trajectories, and that it should have been obvious to the police that the windshield was of great importance and should have been preserved. The court concluded that the destruction of the windshield deprived the defendant of evidence critical to his defense, and dismissed the information with prejudice. This appeal, filed with permission of the court, followed.

The state’s principal claim is that the trial court erred in ruling that the destruction of the windshield violated the defendant’s right to present a defense, as guaranteed by the due process clause of the federal constitution. U.S. Const., amend. XIV. We agree.

We recently explored the contours of the state’s duty, under the federal constitution, to preserve potentially exculpatory evidence. See State v. Scott, 16 Conn. App. 172, 178-81, 547 A.2d 77 (1988). In Scott, we examined the then most recent pronouncement of the United States Supreme Court; California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984); and concluded that Trombetta delineated two inquiries for discerning whether the state’s destruction of evidence had violated a defendant’s right to present a defense. The first inquiry was whether the police were acting in good faith, and the second inquiry was whether the evidence was material — whether its exculpatory value was apparent before its destruction and whether comparable evidence was reasonably available. State v. Scott, supra, 178. It was not clear from Trombetta, however, precisely what the relationship was between the bad faith standard and the materiality standard.

That relationship has now been clarified by the Supreme Court in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). The court in Youngblood articulated several principles. First, although in cases involving prosecutorial suppression of exculpatory evidence; e.g., Brady v. Maryland, 373 U.S. 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); the good or bad faith of the state is irrelevant, “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Arizona v. Youngblood, supra, 337.

Second, what we in Scott characterized as a two-part test in Trombetta is in fact a singular test, namely, whether the police acted in bad faith “turn[s] on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Id., 336-37 n.1. Thus, Youngblood collapsed the bad faith and materiality inquiries into one. In doing so, moreover, it reemphasized Trombetta’s focus on whether the exculpatory value of the evidence was apparent before its destruction. Id.

Third, the reasons for a difference in treatment between suppressed and lost or destroyed evidence are (1) to avoid the treacherous task of determining the import of unknown, often disputed materials, (2) the unwillingness to impose on the police an absolute duty to preserve all material that might be of conceivable evidentiary value in a particular prosecution, and (3) a belief that requiring a showing of bad faith “both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” Id., 337. The Youngblood court “therefore [held] that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id.

Application of these principles to this case leads us to conclude that the destruction of the windshield did not violate the defendant’s federal due process rights. The trial court found that “the windshield was . . . highly material and might well have been exculpatory,” and that “[i]t certainly should have been obvious to the police that the windshield was of great importance and . . . should have been preserved.” More important, the trial court did not find that the evidence of the windshield was exculpatory; the absence of such a finding makes it impossible even to conjecture that Osborne knew at the time he destroyed it that the windshield had any exculpatory value. Youngblood equates bad faith in this context with the intentional destruction of evidence known to be exculpatory. Thus, despite the dissent’s argument to the contrary, there was no evidence from which the trial court could have found, as a matter of federal law, that the destruction was done in bad faith. The most that can be said of Osborne’s conduct is that it was negligent.

Indeed, even the testimony of Edmund R. Sullivan, the defendant’s accident reconstruction expert, discloses that any exculpatory value of the windshield could not have been apparent to the police before it was destroyed. On the basis of the evidentiary material that was available to him, Sullivan was able to form an opinion regarding the identity of the driver of the vehicle. The gist of his testimony regarding the windshield was that it would have been the most important piece of physical evidence, that it could have been subjected to forensic tests to disclose the patterns of glass breakage and other damage, that the results of those tests, when taken together with the locations of the defendant’s and White’s bodies, would have aided a trajectory analysis, and that “if the [windshield] had been preserved . . . [his] opinion probably would be better and it would have been easier to arrive at.” It is apparent from this testimony that neither the police nor Sullivan could have apprehended the exculpatory value of the windshield, if any, from the information available when the windshield was destroyed. The windshield was simply “evidentiary material of which no more can be said than it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. This does not suffice for a finding of bad faith.

In support of the trial court’s decision, the defendant argues that, even if the destruction of the windshield did not constitute a deprivation of his due process rights under the fourteenth amendment, it did constitute such a deprivation under article first, § 8, of the Connecticut constitution. We disagree.

Our Supreme Court has repeatedly held that, as a general rule, “the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations.” State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982); Caldor’s Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 343 (1977). On the sole occasion thus far that the court has ascribed to our due process clause an independent meaning that imposed a duty on law enforcement officials broader than that imposed by the federal constitution, it did so based specifically on “both the historical record and our due process tradition” regarding the right to and importance of counsel in a criminal case. State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988) (police have duty to inform suspect in custody of efforts by counsel to render legal assistance).

The defendant argues that our Supreme Court has made a similar departure from federal case law on the issue of the duty of the police to preserve potentially exculpatory evidence. He points to a series of recent cases on the issue of lost or destroyed evidence that were decided by our Supreme Court, using a balancing test that differs from the test enunciated in the then controlling federal case, California v. Trombetta, supra. See State v. Gonzalez, 206 Conn. 213, 224-25, 537 A.2d 460 (1988); State v. McIver, 201 Conn. 559, 565, 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229, 506 A.2d 125 (1986). The standard used by our Supreme Court in those cases was derived from pre Trombetta federal case law, and the defendant urges us to employ it under our own due process clause.

We need not decide in this case whether, under the due process clause of article first, § 8, the proper test is the same as that articulated under the federal constitution, or whether it is the balancing test stated in Gonzalez, McIver and Boucino. We conclude that, even under the test urged on us by the defendant, his claim fails.

“ ‘ “In considering whether testimony concerning lost or destroyed evidence should be admitted [or the underlying prosecution dismissed], the trial court has to look to numerous factors including [1] the reason for the unavailability of the evidence, [2] the materiality of the evidence, [3] the likelihood of mistaken interpretation of it by witnesses or the jury, and [4] the prejudice to the defendant caused by the unavailability of the evidence.” State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982).’ State v. Boucino, [supra, 229].” State v. Gonzalez, supra; see also State v. McIver, supra.

With regard to the first factor, namely, the reason for the unavailability of the evidence, our cases have focused on the motives behind the destruction of the evidence. See, e.g., State v. Gonzalez, supra (although destruction of evidence was negligent, no evidence of deliberate and intentional destruction); State v. McIver, supra (no bad faith or malice); State v. Boucino, supra (no intentional destruction); State v. Hamele, supra, 382 (no bad faith or malice); see also State v. Williamson, 14 Conn. App. 108, 117, 552 A.2d 815 (bad faith demonstrated by reckless disregard for defendant’s rights), cert. granted, 209 Conn. 801, 548 A.2d 442 (1988); Snyder v. Reshenk, 131 Conn. 252, 257, 38 A.2d 803 (1944) (good faith defined as honesty of purpose, lack of intent to defraud, and honest intent to refrain from taking unconscientious advantage of another). Although the record demonstrates negligence by Osborne, as the trial court found in effect, there was no evidence to suggest that he destroyed the windshield in order to help the state’s case or to hinder the defendant’s defense, out of other animus or improper motive, or in reckless disregard of the defendant’s rights.

In this connection, we emphasize that when the windshield was destroyed, the case was still in the investigatory stage. The reasoning of Justice Stevens, concurring in Arizona v. Youngblood, supra, 59, is particularly apt. At the time the police destroyed the windshield, and “thus negligently lost potentially valuable evidence, they had at least as great an interest in preserving the evidence as did the person later accused of the crime. Indeed, at that time it was more likely that the evidence would have been useful to the police — who were still conducting an investigation— and to the prosecutor — who would later bear the burden of establishing guilt beyond a reasonable doubt— than to the defendant. In cases such as this, even without a prophylactic sanction such as dismissal of the indictment, the State has a strong incentive to preserve the evidence.” At the least, therefore, courts should be very cautious in dismissing a case where no more than police negligence led to the loss or destruction of evidence during the investigatory phase, because as a matter of policy there is slight need for such a severe sanction.

The second factor, namely, the materiality of the evidence, bears strongly in favor of the defendant. Based on the testimony of Sullivan, which the trial court credited, the windshield would have yielded significant and relevant evidence regarding the identity of the driver.

With regard to the third factor, the trial court’s pretrial dismissal of the information has deprived us of a full record on which to assess the likelihood of mistaken interpretation by the jury. That assessment can best be made in the context of all the evidence in the case and the court’s instructions. In this connection, however, we note that the likelihood of such a mistake can be minimized at the trial by permitting testimony on the issue; see State v. Gonzalez, supra, 225; and by an appropriate instruction from the court permitting the jury to draw an adverse inference against the state. See id., 225 n.7; State v. Hamele, supra, 382 n.5.

With regard to the fourth factor, namely, the prejudice to the defendant, we recognize that, on the basis of Sullivan’s testimony, the court found that the windshield was essential to determine the bodies’ trajectories and that there was no comparable evidence to establish those trajectories. We conclude, however, that these findings are clearly erroneous.

First, Sullivan’s affidavit is squarely at odds with these findings. In the affidavit, which was in evidence at the hearing on the motion to dismiss, he stated that he had reviewed all the available police reports and measurements, and the medical and autopsy reports of the defendant and White. He further stated: “Based on my experience and my reconstruction investigation, I can state with reasonable certainty that Jeffrey White was the driver of the tractor trailer and that Ronald Leroux was a passenger.” This opinion was based on his finding that White’s injuries were consistent with his being the driver, and on his finding that “[t]he location at which Jeffrey White’s body was found is consistent with the trajectory his body would have had after being ejected through the driver’s windshield and being catapulted over the guard rail.” Sullivan’s opinion was based further on the defendant’s medical records, “which clearly indicate that the injuries sustained to his left leg were caused by his being in the passenger seat and then being propelled through the passenger’s window and becoming entangled in the wreck of the motor vehicle and then propelled down the highway.” Thus, Sullivan was able, without the windshield, to arrive at an opinion regarding the trajectories of the bodies based on all the other available physical evidence.

Second, Sullivan’s testimony fails to support the court’s critical factual findings. Although, as he testified, the tests on the windshield would have aided his trajectory analysis and made his task much easier, that is an insufficient basis in this case for findings that the windshield was essential to that analysis and that there was no comparable evidence. The most that can be said is that, if the results of the tests had matched Sullivan’s expectation, they would have bolstered the opinion he formed on the basis of the remainder of the physical evidence.

Indeed, it is possible that the negligent destruction of the windshield by Osborne, the state’s reconstruction expert, will yield a greater benefit to the defendant than the preservation and testing of the windshield would have. The defendant will be able to impeach Osborne on his destruction of the windshield, thus damaging the credibility of his opinion testimony on the, rest of the reconstruction evidence, whereas it is pure speculation whether further testing of the windshield would have yielded exculpatory evidence.

Weighing in the balance the four factors articulated by Gonzalez, McIver and Boucino, we conclude that the defendant was not deprived of his constitutional right to present a defense by the destruction of the windshield. Although the evidence potentially yielded by the tests on the windshield would have been material, the reason for that destruction, the availability of adequate trial mechanisms to minimize the likelihood of mistaken interpretation of the destroyed evidence, and the absence of a significant showing of prejudice to the defendant, did not justify the dismissal of the information.

There is error, the judgment is set aside and the case is remanded with direction to deny the motion to dismiss and for further proceedings according to law.

In this opinion Daly, J., concurred.

O’Connell, J.,

dissenting. I do not agree with the conclusion of the majority which is based upon a line of cases arising out of negligent loss or destruction of evidence by the police. Negligent destruction is not the issue in this case. Here, the defendant argues that critical evidence was intentionally destroyed by the police acting in bad faith and that this police action prejudiced his defense. I agree that the evidence presented showed either bad faith, as argued, or such reckless disregard of the defendant’s rights as to be the equivalent of bad faith. State v. Williamson, 14 Conn. App. 108, 117, 540 A.2d 386, cert. granted, 209 Conn. 801, 548 A.2d 442 (1988).

It is firmly established in Connecticut law that the difference between intentional misconduct and reckless misconduct is microscopic and that one may be treated as the equivalent of the other. Kowal v. Hof-her, 181 Conn. 355, 361-62, 436 A.2d 1 (1980); Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A.2d 698 (1928). This principle was recently recognized by this court in Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 509-10, 548 A.2d 728 (1988).

On appeal, this court can disturb the trial court’s decision only if, after scrutiny of the entire record, it is determined to be clearly erroneous. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). In the present case, there was ample evidence to support the trial court’s dismissal. There was evidence before it that long before the windshield’s destruction, defense counsel wrote to the trooper, his commanding officer and the commissioner of state police explaining that an accident reconstruction expert had been retained by the defense and requesting that this expert be afforded an opportunity to examine all evidence that had been seized from the accident scene. The trooper acknowledged receipt of the letter and admitted participating in numerous conferences with defense counsel at the Waterbury state’s attorney’s office. In addition, the defendant’s reconstruction expert conferred with the trooper as early as October, 1985, five months prior to the destruction.

The trooper in question was not in charge of the evidence room at his troop headquarters, nor were standard state police procedures for registration, storage and eventual destruction of evidence followed. The trial court had evidence before it from a state police sergeant that an “H.Q. Special Order” required that all seized evidence be kept until time of trial and that no evidence could be destroyed until a “destruct” notice had been issued by the court. See California v. Trom-betta, 467 U.S. 479, 488, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), on the significance of following established police procedures.

The trial court could logically conclude that the trooper’s testimony, that he threw the windshield into a dumpster to protect others from being hurt on the broken glass, was entitled to scant, if any, credence. Access to the troop’s evidence room was restricted to the property sergeant and the troop commander, thereby limiting to two the number of people who might be endangered by the windshield. Moreover, there was evidence before the trial court that there are procedures in everyday use by which potentially dangerous evidence of this type can be safely preserved for trial without constituting a hazard to anyone. Furthermore, there was no evidence that this trooper had been specially assigned to canvass the barracks for potentially dangerous evidence that might constitute a hazard.

The majority opinion relies heavily on Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). Youngblood was a sexual assault case in which the claimed misconduct was the failure of the police to refrigerate the victim’s clothing, thereby depriving the defendant of the opportunity to perform certain tests for semen that would have been available otherwise. The United States Supreme Court concluded that “[tjhe failure of the police to refrigerate the clothing and to perform the tests on the semen samples [could] at worst be described as negligent.” Id., 58. Furthermore, the court explicitly agreed with the Arizona Court of Appeals, “that there was no suggestion of bad faith on the part of the police.” Id. Here, by contrast, bad faith is the gravamen of the defendant’s argument and “the line between ‘good faith’ and ‘bad faith’ is anything but bright . . . . ” Id., 66 (Blackman, J., dissenting). Where the line blurs, as it frequently will in this type of case, the defendant is entitled to the benefit of any uncertainty.

I cannot agree that the bad faith or reckless destruction of the windshield in this case is comparable to the negligent acts which occurred in the cases relied upon by the majority. The loss of a cat whisker from a baseball cap, cigarette butts and a glove; State v. Boucino, 199 Conn. 207, 228-29, 506 A.2d 125 (1986); the loss of one of two human hairs in the state toxicological laboratory; State v. Harden, 175 Conn. 315, 325-26, 398 A.2d 1169 (1978); the destruction of hairs after nolle of the case in the Circuit Court, where the police erroneously believed that the case was over and did not know that a bench warrant had kept the case alive in the Superior Court; State v. Hamele, 188 Conn. 372, 380-83, 449 A.2d 1020 (1982); the return of a coat to a victim who dry cleaned it, thus destroying an opportunity to examine menstrual bloodstains thereon, where the issue was consensual sexual activity; State v. McIver, 201 Conn. 559, 564-66, 518 A.2d 1368 (1986); the disappearance of the victim’s bloodstained clothing which was never seen again after its return from toxicological laboratory. State v. Gonzalez, 206 Conn. 213, 224-25, 537 A.2d 460 (1988). These cases invoke carelessness or, at most, negligence, and are not precedent for intentional misconduct or recklessness of the magnitude involved in the present case.

Lack of comparable evidence is essential to the defendant’s argument. The trial court found that there was no comparable evidence to an examination of the windshield. There was conflicting evidence on this issue. I would adhere to the fundamental rule that determination of the credibility of evidence is within the sole province of the trier of the fact. Nor’easter Group, Inc. v. Colossale Concrete, Inc., supra; Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). The conclusion of the trial court on lack of comparable evidence should be accepted.

The trial court expressly found, in both its oral decision from the bench and its later written articulation, that the windshield was highly material and bore significant importance to the case. It stated, “[t]here were not [sic] eyewitnesses to establish who was the driver and who was the passenger. If this were to be established it would have to be done by recreation of the accident through physical evidence. There was uncontroverted evidence by an expert for the defendant, which I find to be factually correct, that the windshield was essential in determining the trajectory of the bodies as they were catapulted from the cab. There was absolutely no indication of comparable evidence being available to establish such trajectories. Clearly the destruction deprived the defendant of evidence critical to the defense. It certainly should have been obvious to the police that the windshield was of great importance and it should have been preserved.” (Emphasis added.)

The trooper in question possessed qualifications beyond that of an ordinary police officer. He testified concerning specified training in accident reconstruction and was offered by the state as an accident reconstruction expert.

Furthermore, in determining that the defendant had demonstrated prejudice in his ability to present a defense, the court stated in its oral decision: “I think that, in a hearing of this sort, it is incumbent on the state to rebut that showing of prejudice. And, whether the burden on the state is a fair preponderance of the evidence, clear and convincing evidence or beyond a reasonable doubt, it doesn’t make any difference because I don’t think the state has met any one of those three standards, as far as rebutting is concerned.”

Youngblood and the majority in this case both rely on the fact that the destruction took place while the matter was still in the investigatory stage. While it is true that a warrant had not yet been issued, the investigation had already focused on the defendant as the only possible suspect. He was represented by counsel, a letter concerning evidence had been written to the police, conferences had taken place at the state’s attorney’s office and a defense reconstruction expert had been retained and had conferred with the investigating trooper. In addition, the accident at issue took place on September 24,1985. The windshield was destroyed in late March, 1986, and the warrant was issued on April 8, 1986. Because the defendant’s identity was known from the beginning of the case, it impresses me as an odd coincidence that the windshield was destroyed so shortly before the warrant was issued. The close proximity of the date of destruction to the date of the warrant leads me to the conclusion that the investigatory stage was over prior to the destruction.

It is not disputed that the trooper personally and unilaterally decided that the windshield had no eviden-tiary value and should be destroyed. I cannot concur in a decision which leads to a delegation to the police of a determination of what seized property has eviden-tiary value. This decision belongs, in the first instance, to the attorneys and eventually to the court. The present case is a prime example of the danger of the delegation of this authority to the police. Here, an experienced trial court judge disagreed with the decision of'the destroying officer, but alas, it was then too late to recover the destroyed evidence.

I cannot agree with the majority that the windshield was destroyed through simple negligence. It was either intentionally destroyed in order to deprive the defendant of its use or its destruction was the result of recklessness. Either reason is the equivalent of intentional misconduct and produces the same result; the deprivation of its use, to the material prejudice of the defendant.

I would affirm the trial court’s dismissal of the case. Therefore, I respectfully dissent from the majority opinion.

        Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), was released after the present case was argued in this court. The defendant brings to our attention the fact that our Supreme Court has continued to employ a standard derived from federal cases that predate even Youngblood’s predecessor, California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), to decide cases involving the loss or destruction of evidence by the state. See, e.g., State v. McIver, 201 Conn. 559, 518 A.2d 1368 (1986). We are required to follow Youngblood, however, in analyzing the defendant’s claim under federal law. When “ ‘a state court confronts a question of federal constitutional law “it may not impose greater restrictions as a matter of federal constitutional law when [the United States Supreme] Court specifically refrains from imposing them.” (Emphasis in original.) Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). State v. Perez, 10 Conn. App. 279, 287 n.6, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987).” State v. Coleman, 14 Conn. App. 657, 679-80, 544 A.2d 209, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).

       The dissent’s emphasis on the fact that the defendant in Youngblood did not accuse the police of destroying evidence in bad faith fails to distinguish Youngblood from the present case. It is of no moment that the defendant in Youngblood urged the court to dismiss the charges against him on grounds other than bad faith, because the specific holding of Youngblood predicates the dismissal of charges due to the destruction of evidence on a showing of bad faith on the part of the police and specifically defines the meaning of bad faith in this context. We therefore disagree with the dissent’s insistence that Youngblood is inapposite in the present case. That “bad faith is the gravamen of the defendant’s argument”; infra, 237, O’Connell, J., dissenting; makes Youngblood, if anything, more pertinent.

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “No person shall . . . be deprived of life, liberty or property without due process of law

       We disagree with the dissent’s contention that Hamele, Boucino, Gonzalez and Mclver do not control the present case because those cases were couched in the factual context of negligent or accidental destruction of evidence, as opposed to intentional destruction. The first factor considered in Hamele and its progeny is “the reason for the unavailability of the evidence.” State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982).
      In Hamele itself, the physical evidence “was destroyed by the . . . police because of the mistaken belief that the charges against the defendant were no longer pending.” Id., 372. Thus, the destruction of that evidence was intentional, albeit under a mistaken belief regarding its relevance. Similarly, in McIver the police, knowing that the victim’s coat contained blood stains, returned it to her, thus permitting the subsequent elimination of the stains by cleaning. State v. McIver, 201 Conn. 559, 564, 518 A.2d 1368 (1986). This was the functional equivalent, at least, of an intentional but negligent destruction of the evidence by the police. Those cases, therefore, do apply to this case, where the destruction of the windshield was intentional — in the sense that Osborne intended to destroy it — but where that act was negligent in the sense that, under all the circumstances, it was unreasonable for him to do so.

       For purposes of this discussion, “materiality” has a broader meaning than the term as used in Arizona v. Youngblood, 488 U.S. 51, 62 n.1, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) (“materiality” refers to evidence whose exculpatory value is apparent without necessity of further testing). In our cases, the inquiry into the materiality of a piece of lost evidence has focused on whether that evidence was relevant and important to the defense. See, e.g., State v. McIver, 201 Conn. 559, 565, 518 A.2d 1368 (1986).

       The Supreme Court’s certification was limited to grounds that do not implicate the concept of equating recklessness with bad faith.


source: Caselaw Access Project

author: Stoughton, J.

license: Public Domain

text:
    Vickie Billings v. Commission on Human Rights and Opportunities et al.
    (6845)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued March 7
    decision released April 25, 1989

      Donald R. Beebe, for the appellant (plaintiff).

      Charles Krick, for the appellee (defendant commission on human rights and opportunities).

      George N. Nichols, for the appellee (defendant Stone and Webster Engineering Corporation).
   Stoughton, J.

This is an appeal by the plaintiff from the judgment of the trial court dismissing her appeal from the decision of the commission on human rights and opportunities which had dismissed her complaint of alleged sex discrimination.

The plaintiff filed a complaint with the commission on June 18,1984, alleging that, in discharging her, her former employer, Stone and Webster Engineering Corporation, had discriminated against her on the basis of her sex, in violation of General Statutes § 46a-60 (a) (1). The commission assigned an investigator who investigated the complaint. The investigator made a report of his findings and recommended that the complaint be dismissed for lack of evidence. On June 13, 1985, the recommendation was accepted. The plaintiff applied for reconsideration and her request was granted because some of the findings of fact made by the investigator were in error and because some of her claims regarding her work record had not been investigated. The commission assigned a new investigator who conducted a new investigation, made findings of fact and recommended dismissal of the complaint for lack of sufficient evidence.

The following findings were among those made by the second investigator. In one eight week period, the plaintiff failed to complete one full work week. On March 2, 1984, the plaintiff and eleven other electricians were laid off. The plaintiff was the only female in that group, which was considered expendable because of low productivity based primarily on attendance. The reduction in force was part of a series of lay-offs. Both the employer and the union identified expendable employees, and employees who were laid off appeared on both lists. The plaintiffs name appeared on both lists. Her attendance pattern was identified as particularly destructive because of the extreme number of late arrivals and early quits, which disrupted management’s ability to assign work. The plaintiff was considered a marginal worker. Three of the male employees laid off had fewer absences than the plaintiff. The other seven members of the plaintiff’s work crew each had better attendance records than that of the plaintiff, and they were not laid off. The investigator concluded that there was no evidence to support the plaintiffs allegation that she was unfairly singled out for lay-off because of her gender, and that the employer’s criteria for reduction in force was general productivity as measured in large part by attendance. The plaintiff’s prior disciplinary and attendance record was comparable to that of males who were also laid off for low productivity.

The commission accepted the recommendation of the second investigator and, on December 26, 1986, the plaintiff was informed by the commission that her complaint was dismissed for lack of sufficient evidence. This appeal followed.

Much of the plaintiff’s argument is centered upon the shortcomings of the first investigation. These were corrected when her request for reconsideration was granted and a new investigation by a different investigator was undertaken. While the second investigator used parts of the first investigation, the second investigation was independent, thorough and complete. The plaintiff appealed to the trial court from the decision by the commission dismissing her appeal after reconsideration.

The plaintiff claims that the trial court erred in not concluding that the manner in which the commission acted on reconsideration of her complaint was arbitrary, capricious and in abuse of its discretion, that the complaint was not investigated competently, and that the trial court erred in refusing to allow her to present evidence, as permitted by General Statutes § 4-183 (f).

In an appeal from the decision of the commission, the Superior Court may not try the case de novo, adjudicate facts or substitute its own discretion for that of the tribunal. Board of Education v. Commission on Human Rights & Opportunities, 176 Conn. 533, 538-39, 409 A.2d 1013 (1979). We agree with the trial court that the investigation was thorough and complete and that the conclusions reached by the investigator were supported by the evidence. The ultimate duty of the trial court was to decide whether, in light of the evidence, the agency had acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 479, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). We review the decision of the trial court only to determine whether it was rendered in accordance with the Uniform Administrative Procedure Act. Id.

General Statutes § 4-183 (f) provides that an appeal shall be confined to the record but also provides that in cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in court.

The plaintiff offered to testify that the first investigator had told her that he was going to find that there was reasonable cause for her complaint to continue, and that she had been told later that her supervisors had told him not to find in her favor. The court ruled that no such claim had been raised in the pleadings and denied the plaintiffs motion to introduce evidence, noting at the same time that there had been another investigation. The trial court found that the second investigation was thorough and complete.

The opportunity to present evidence in addition to that contained in the record is reserved for extraordinary cases. Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 585, 546 A.2d 870 (1988). On the record before us, we cannot find that the trial court abused its discretion in denying the plaintiff s motion to introduce additional evidence.

There is no error.

In this opinion the other judges concurred.


author: Norcott, J.

text:
    Skyler Limited Partnership v. S.P. Douthett and Company, Inc., et al.
    (7007)
    Spallone, O’Connell and Nokcott, Js.
    Argued February 14
    decision released April 25, 1989

      Robert L. Genuario, for the appellant (defendant Alan Fishman).

      Frederic S. Ury, with whom, on the brief, was Jessica L. Brans, for the appellee (plaintiff).
   Norcott, J.

This is an appeal from a decision in an action for breach of a commercial lease. The plaintiff, Skyler Limited Partnership, brought the action against the defendant corporation, S.P. Douthett and Company, and its directors, Scott P. Douthett and Alan Fishman, after the defendant company defaulted on rent payments. In its complaint, the plaintiff alleged that the defendant corporation had fraudulently transferred corporate funds to Fishman to avoid the corporate debt to the plaintiff. On June 30,1986, the trial court, Spear, J., defaulted Fishman pursuant to Practice Book § 231 after he failed to appear at a deposition on June 10, 1986. Neither Fishman nor his counsel attended the June 30, 1986 hearing.

The case against Fishman’s codefendants was then tried before an attorney trial referee on July 15 and 17, 1986, and a hearing in damages immediately followed the conclusion of the trial on July 17. Again, neither Fishman nor his counsel was present during those proceedings. In his report, the attorney trial referee found the defendants, S.P. Douthett and Company, Scott P. Douthett and Alan Fishman liable to the plaintiff for $246,224 in liquidated damages arising out of the breach of the commercial lease agreement.

On July 8,1987, more than one year after the interlocutory default had been entered against him, but before judgment was rendered, Fishman filed a motion to set aside the default. The trial court, Spear, J., denied the motion after a full hearing on August 10, 1987. On August 5, 1987, Fishman also filed a pro se motion to correct the attorney trial referee’s report, which the trial court, Jacobson, J., denied on August 13. Thereafter, the trial court, Jacobson, J., accepted the attorney referee’s report and rendered judgment in accordance with it on April 13, 1988. The defendant Fishman now appeals from that judgment.

On appeal, Fishman claims that the trial court erred (1) in entering a default against him, (2) in denying his motion to set aside the default, and (3) in rendering judgment against him in the amount of $246,224. We find no error.

Fishman’s claim that the trial court erred in entering a default against him for his failure to appear at a duly scheduled and noticed deposition requires little discussion. The essence of this contention is that confusion over Fishman’s legal representation was the cause of his absence from the deposition, and therefore he should not have been sanctioned with a default pursuant to Practice Book § 231.

Our review of the record reveals that, at the time of the default, the motions to withdraw filed by Fishman’s counsel of record had not been granted and Fishman had not filed a pro se appearance. On May 29, 1986, before the court entered the default, Fishman obtained his file from his counsel and went to the office of the plaintiff’s counsel, ostensibly for the purpose of discussing the matter of the deposition. This event, however, was of no consequence as to Fishman’s legal representation because the trial court had not allowed his counsel to withdraw. In any event, the deposition remained scheduled, and Fishman did not appear for it.

After reviewing the record, we find that it was not an abuse of discretion for the trial court to conclude that Fishman bore the consequences of any confusion regarding his counsel and that he should be sanctioned by default for his failure to appear for a deposition that was noticed to his counsel four times. The knowledge of an attorney is imputed to the client unless “circumstances render it certain or probable that the attorney will disregard the duty to communicate the material facts to his clients.” Allen v. Nissley, 184 Conn. 539, 543, 440 A.2d 231 (1981). In this case, it is clear that both Fishman and his counsel knew of the scheduled deposition. The trial court did not err in entering a default against him for his failure to appear for it.

Fishman next claims that the trial court erred in denying his motion to set aside the default. Pursuant to Practice Book § 376 “[a] motion to set aside a default where no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose.” The determination of whether to set aside the default is within the discretion of the trial court. See White’s Appeal, 75 Conn. 314, 318, 53 A. 582 (1902). The issue presented here is whether a defaulted defendant needs to receive a separate, formal notice of a hearing in damages when that defendant has received both notice of the entering of the default and notice of his codefendant’s scheduled trial.

The facts relevant to this claim are as follows. After the defendant Fishman was defaulted, the clerk of the court mailed notice of the default to his counsel of record. Fishman did not take any action as to the entering of default for over a year. In the interim, the clerk also sent notice of the codefendants’ trial to Fishman. The trial court heard the case and held a hearing in damages immediately following the trial. It is clear from the record that both Fishman and his counsel were fully aware of the trial, which took place on July 15 and 17, 1986. Fishman did not appear at the trial and was not present at the hearing in damages. Interestingly, the court did not render judgment on the default until almost two years after it had ordered the default and after the trial and the hearing in damages had been held, and eight months after it had denied Fishman’s motion to open the default.

The essence of Fishman’s claim is that, because he did not receive a separate notice of the hearing in damages and thus an opportunity to be heard on the question of damages, the trial court erred in denying his motion to open the default. We disagree.

“ ‘ “It is fundamental in properjudicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” Osterlund v. State, 129 Conn. 591, 596, 30 A.2d 393 [1943].’ Winick v. Winick, 153 Conn. 294, 298-99, 216 A.2d 185 (1965).” Bonner v. American Financial Marketing Corporation, 181 Conn. 57, 58, 434 A.2d 323 (1980). In Connecticut, our General Statutes and rules of practice set forth a procedural scheme that protects a defendant, who has suffered an interlocutory default, from an unnoticed judgment on the default and hearing in damages. Only when the defendant is defaulted for failure to appear for trial may judgment be rendered without notice to the defendant. Practice Book § 364 (a). Otherwise, in certain cases such as contract actions in which the damages are liquidated, as in this case, the court may render judgment at the time it renders the default, provided the plaintiff has also filed, among other documents, a motion for judgment. See Practice Book § 364 (b).

Practice Book § 369 requires that the clerk give notice of the entry of a default to either the defendant or his attorney. It does not, however, mandate that notice of a hearing in damages be specifically given to a defaulted defendant who has filed an appearance. A defendant has ten days from the date of the entry of the default within which to file notice to the plaintiff of his intention to file defenses. See Practice Book §§ 368 and 369. Although defaulted, a defendant may still contest liability at a hearing in damages, provided that he has given the plaintiff notice of his intentions. General Statutes § 52-221 (a); Practice Book § 367; Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 445 n.7, 551 A.2d 1220 (1988). Even if a defaulted defendant fails to give notice of his defenses, he may still appear at the hearing in damages and offer evidence, without notice, to reduce the amount of damages claimed. Practice Book § 374. Thus, while the procedural scheme in Connecticut gives a defaulted defendant every opportunity to protect his rights with respect to the hearing in damages, there was no affirmative duty on the part of the court or the plaintiff, under the circumstances of this case, to notify Fishman of anything more than the trial at which the codefendants challenged liability.

Fishman’s reliance on Bonner v. American Financial Marketing Corporation, supra, is misplaced. In Bonner, our Supreme Court held that the trial court erroneously failed to open the sole defendant’s default when the court, without a motion for judgment before it, rendered judgment on the default three days after it had ordered the default. The Supreme Court held that the defendant had not received appropriate notice of a hearing in damages at which it could have raised defenses, assuming proper notice to the plaintiff. It is clear that Bonner does not support Fishman’s contention that, under the circumstances of this case, in which the judgment was not rendered at the time of the default, either the court or the plaintiff was required to notify Fishman, who had notice of the default itself, of anything more than the date of the trial. Once he received the notice of the trial, Fishman’s immediate concern, as opposed to that of his codefendants, was the hearing in damages. Prudence dictated that he attend the trial if for nothing more than to determine the status of the hearing in damages that would occur at some point following the conclusion of the trial. Fishman, however, did not attend the trial. The burden of protecting his remaining rights with respect to the hearing in damages was that of Fishman alone. “A litigant cannot wholly ignore established procedures for the protection of [his] rights, as this defendant has done, and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986).

Indeed, in this case Fishman never attempted to protect any of his rights in a timely fashion. He first failed to appear at the deposition; second, he imprudently delayed the filing of his motion to set aside the default; third, he failed to file any defenses with respect to liability or damages; and lastly, he failed to appear at the trial and hearing in damages. This case is not one in which a defendant failed to receive adequate notice and an opportunity to be heard on the question of damages; Fishman merely suffered the consequences of his own inaction. We conclude that the trial court did not abuse its discretion in denying Fishman’s motion to set aside the default.

Fishman also claims that the judgment of the trial court is not in conformity with the pleadings. Practice Book § 375 provides that, upon a default, a plaintiff can have no greater relief than that demanded in his complaint. “ ‘It is still the law that the right of the plaintiff to recover is limited by the allegations of the complaint.’ Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 [1969]; and any judgment should conform to the pleadings, the issues and the prayers for relief.” Kawasaki Kisen Kaisha, Ltd. v. Indomar, Ltd., 173 Conn. 269, 272, 377 A.2d 316 (1977). The risk a defaulted defendant takes in not contesting damages must be limited to a judgment against him in an amount equal to or less than that demanded in the complaint.

Fishman claims that the plaintiff never pleaded any theory upon which he could be held liable for corporate debts, so that even if a fraudulent conveyance had been proved, damages would be limited to the alleged amount of that conveyance, $209,000, and could not properly be assessed at the corporate debt amount of $246,224. It is clear from our review of the record that the fifth count of the plaintiffs complaint, regarding Fishman’s wrongful disregard for the corporate entity, provided a sufficient basis for the trial court to have pierced the corporate veil and found him liable for the corporate debt to the plaintiff. The trial court so found. We review a case “on the theory upon which it was tried and upon which the trial court decided it.” Fues-senich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985); see also Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 299 n.19, 545 A.2d 530 (1988). We conclude that the trial court did not allow the plaintiff greater relief than that demanded in the complaint.

We find Fishman’s remaining claims of error, that there was insufficient evidence at the trial to support (1) a finding of fraudulent conveyance, (2) a finding that Fishman was liable for corporate debts, or (3) a finding that the plaintiff was entitled to liquidated damages to be unreviewable. A default admits the material facts that constitute a cause of action; Travelers Indemnity Co. v. Rubin, supra, 445; and “entry of default, when appropriately made, conclusively determines the liability of a defendant.” Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987). Fishman raised no defenses to his liability pursuant to the relevant statutes and rules of practice. His claims as to the insufficiency of the evidence refer to the evidence presented at the trial to determine the liability of his codefend-ants. Fishman may not raise claims of error in a trial at which he was not a party to support reversal of the determination of his liability which was based on the entering of a default. Accordingly, we need not reach those claims.

There is no error.

In this opinion the other judges concurred.

       The cross complaint brought by the individual defendant Douthett against the defendant Fishman is not at issue in this appeal.

       Practice Book § 231 provides in pertinent part: “order for compliance; FAILURE TO ANSWER OR COMPLY WITH ORDER
      “If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure of the existence and contents of an insurance policy or the limits thereof, or has failed to submit to a physical or mental examination, or has failed to comply with a discovery order made pursuant to Sec. 230A, or has failed to comply with the provisions of Sec. 232, or has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Secs. 222, 226, and 229, the court may, on motion, make such order as the ends of justice require.
      “Such orders may include the following: (a) The entry of a nonsuit or default against the party failing to comply . . . . ”

       The court separated the codefendants’ trial on liability from the hearing in damages, although they took place on the same day. Because Fish-man’s liability had been determined by the entering of a default, the apparent reason for this action was to allow the court to allocate the damages properly among all three defendants.

       Practice Book § 369 provides: “notice by clerk
      “The clerk shall give notice of entry of a default, in the case of a defendant who has filed an appearance, either in person to the defendant or his attorney, or by mail, and in the case of a nonappearing defendant, by mailing such notice to the defendant at his last known address. The clerk shall enter on the docket the date when he gives or mails the notice, and said period of ten days shall run from said date.”


author: Dupont, C. J.

text:
    Philip Costanzo v. Town of Hamden et al.
    (6029)
    Dupont, C. J., Borden and Daly, Js.
    Argued November 15, 1988
    decision released April 25, 1989

      Gregory A. Sharp, with whom, on the brief, was Celia L. Barotz, for the appellant-appellee (named defendant).

      Thomas E. Crosby, for the appellee-appellant (plaintiff).
   Dupont, C. J.

The plaintiff brought this action against the defendant town of Hamden, alleging that the defendant, through its building official, acted illegally and arbitrarily in ordering the partial demolition of the plaintiffs five-family house. After a jury verdict was returned for the plaintiff, the defendant filed a motion to set aside the verdict, which was denied. The defendant has appealed, claiming that the trial court erred (1) in denying the defendant’s motion to set aside the verdict on the basis that the defendant should have been permitted to amend its special defenses to assert the plaintiff’s failure to exhaust administrative remedies, (2) in denying the defendant’s motion to set aside the verdict because the evidence failed to establish that the actions of the defendant were the proximate cause of the plaintiff’s damages, (3) in its instructions to the jury on damages, and (4) in failing to instruct the jury on the question of whether the condition of the plaintiffs building constituted a nuisance. The plaintiff has cross appealed, claiming that the trial court erred in denying his motions for an additur.

The jury could have found reasonably that the area in which the property is located is zoned for three-family structures, but that the plaintiff’s five-family structure existed within its zone as a valid nonconforming use. The jury could have found, further, that on July 11,1981, a fire occurred which resulted in extensive damage of 25 to 40 percent of the structure.

Other facts which could have been found reasonably follow. On July 13, 1981, the building official of the town of Hamden, Clifford Lindgren, arranged for a crane company to remove certain portions of the structure. Sometime after noon on that date, a crane arrived at the plaintiffs property and Lindgren directed the crane operator to demolish the third floor gables and dormer of the house, over the objections of the plaintiff, who was at the scene. The crane also demolished two chimneys. As a result of the demolition work, 55 to 65 percent of the structure was destroyed.

On July 23,1981, the plaintiff received an order from the town building official, requiring the plaintiff to engage a licensed demolition contractor to demolish the structure totally within thirty days. The plaintiff contacted the town building official to determine his rights under the order and was informed that the plaintiff was required either to demolish the structure or to submit plans to rebuild the. structure within thirty days. The building official informed the plaintiff that, according to town zoning regulations, the plaintiff would only be permitted to rebuild the structure to a three-family dwelling, unless he obtained a variance to rebuild to a five-family dwelling. Under Hamden zoning regulations existing at the time, if a nonconforming use was damaged by fire or other casualty in excess of 50 percent of its fair market value, the use would be lost. In response to the order to demolish, the plaintiff submitted plans to rebuild the structure as a three-family house.

The plaintiffs allegations in his complaint are that the partial demolition of his property by the town was illegal and in violation of the due process clauses of the Connecticut and United States constitutions. The plaintiff based these claims on allegations that the condition of the structure did not require immediate demolition, that the defendant did not give proper notice to the plaintiff, that the defendant did not give the plaintiff an opportunity to take alternate measures to secure the third floor of the structure, and that the defendant violated General Statutes § 29-302 et seq. and provisions of the Connecticut Basic Building Code, §§ 123.1 and 124.1 et seq. The plaintiff also alleged that as a result of the defendant’s action in demolishing portions of the third floor, the structure could not be rebuilt as a five-family dwelling and, accordingly, the plaintiff lost the value and income from two apartments. The plaintiff further alleged that, as a result of the demolition work, he was required to expend additional sums of money to repair the house and the sidewalks and driveways of the property. The plaintiff sought monetary damages as his sole relief.

I

The defendant claims that the trial court erred in denying its motion to amend its special defenses. During the course of trial, the defendant moved to amend its special defenses to include a defense that the plaintiff failed to exhaust his administrative remedies. The motion to amend was denied.

“The trial court may allow, in its discretion, an amendment to pleadings. Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979); Wesson v. F.M. Heritage Co., 174 Conn. 236, 239, 386 A.2d 217 (1978); see Practice Book § 176.” Jonap v. Silver, 1 Conn. App. 550, 555, 474 A.2d 800 (1984). Such a ruling can usually be reversed only upon a clear showing of an abuse of discretion. Id. The denial of the motion to amend in the present case requires a careful analysis because of the substance of the proposed amendment.

The proposed amendment called into question the subject matter jurisdiction of the court. It is a settled principle of administrative law that, if an adequate administrative remedy exists, “a litigant must exhaust it before the Superior Court will obtain jurisdiction over an independent action on the matter.” Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 687, 553 A.2d 1104 (1989); Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 230 (1987). A question relating to jurisdiction may be raised at any time. LaCroix v. Board of Education, 199 Conn. 70, 80 n.8, 505 A.2d 1233 (1986). Once raised, it must be acted upon by the court, regardless of the form of the motion or the contents of the pleadings. Id.; Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985).

The exhaustion of administrative remedies doctrine implicates subject matter jurisdiction, and we must decide, therefore, whether that doctrine as stated in the defendant’s proposed amendment required dismissal of the plaintiff’s action, before we can determine the other claims of error raised by the parties. See Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556, 529 A.2d 666 (1987).

The defendant claims that the plaintiff had an administrative remedy because he could have sought a zoning variance from the Hamden zoning board of appeals to rebuild the five unit dwelling, and that the plaintiff’s failure to seek a variance amounted to a failure to exhaust administrative remedies, and thus bars him from bringing an independent action for damages. We disagree.

Whether prior recourse to an administrative remedy is required before an independent action can be entertained depends upon the injury alleged and the administrative remedy available. Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 588-89, 424 A.2d 285 (1979). In the present case, the injury alleged is the arbitrary and illegal demolition of portions of the plaintiffs property. The damages claimed as a result of the demolition were the loss of a nonconforming use, the cost of repair to the house and to the sidewalks and driveways located on the plaintiffs property.

The defendant argues that, through the variance procedure, the plaintiff might have avoided a portion of his alleged damages, that is, the loss of the nonconforming use. The fact, however, that the plaintiff may have been able to mitigate his alleged damages through the pursuit of a variance does not transform the variance procedure into an administrative remedy for the illegal demolition by a town of a structure and the damages incident to the demolition. A variance procedure by which, arguably, the plaintiff might have been able to mitigate a portion of his damages, namely the loss of two rental units, does not constitute a jurisdictional bar to his entire claim for damages which included other losses. The defendant’s proposed amendment implicated the principle of mitigation of damages rather than subject matter jurisdiction.

“The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions.” Concerned Citizens of Sterling v. Sterling, supra, 557. Requiring the plaintiff to attempt to obtain a variance before bringing this action in Superior Court would not further the purposes of the doctrine of exhaustion of administrative remedies. The findings and conclusions of the zoning board of appeals in denying or granting an application for a variance would be of no benefit to the trial court in resolving the issues presented by the plaintiff’s action for damages. Whether an application for a variance should have been granted or denied is a wholly different question from whether a town, through its building official, acted illegally and arbitrarily in ordering the demolition of the plaintiff’s property, and whether that action was the proximate cause of plaintiff’s damages.

Moreover, “[wjhere an administrative remedy does not exist ... or is inadequate ... a party will be allowed to resort to the courts in the first instance.” (Citations omitted.) Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., supra, 592. We conclude that the plaintiff had no definitive administrative remedy for the injuries alleged in his complaint and thus he was not barred by the doctrine of exhaustion of administrative remedies from bringing the present action for damages. We cannot conclude that a variance, if sought, was likely to have been granted, particularly in view of the time constraints imposed upon the plaintiff. Nor can we conclude that the plaintiff could have obtained an administrative remedy, even for that portion of the plaintiff’s damages to which it would have applied.

The plaintiff sought only damages, not a restoration of the nonconforming use. He did not combine his action for damages with any other claim of relief. An administrative remedy cannot encompass a monetary award. Cummings v. Tripp, supra, 80. The plaintiff sought no relief that the administrative remedy could have given him. The trial court, therefore, did not err in denying the defendant’s motion to amend.

The defendant’s second claim of error is that the trial court erred in denying its motion to set aside the verdict because the evidence failed to establish that actions of the defendant were the proximate cause of the plaintiff’s loss of the nonconforming use. Specifically, the defendant contends that (1) the plaintiff failed to establish that, prior to the demolition work, the structure was a legal nonconforming use, and (2) the plaintiff failed to prove that, as a proximate result of the demolition work, the plaintiff was deprived of the ability to rebuild the structure to five units.

The case appears to have been tried on the theory that, prior to the demolition, the five unit structure was a legal nonconforming use. The defendant’s counsel, during his opening statement, referred to the structure as not being in conformity with zoning laws, but having been “grandfathered” earlier in time, before the present zoning laws were passed.

During trial, the plaintiff testified that the five unit structure was a legal nonconforming use. In addition, the Hamden building official testified that it was his assumption that the structure was a legal nonconforming five unit dwelling. The defendant offered no evidence to rebut this testimony.

We conclude that there was sufficient evidence from which the jury could find that, prior to the demolition work, the plaintiff’s property existed as a legal nonconforming use.

The defendant also claims the evidence failed to establish that the defendant’s actions were the proximate cause of the plaintiff’s loss of the nonconforming use.

“ ‘ “An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm .... Proximate cause is ordinarily a question of fact.” ’ Tetro v. Stafford, 189 Conn. 601, 605, 485 A.2d 5 (1983), quoting Coburn v. Lenox Homes, Inc., 186 Conn. 370, 382-84, 441 A.2d 620 (1982). ‘ “Conclusions of proximate cause are to be drawn by the jury and not by the court.” Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983). “ ‘It becomes a conclusion of law only when the mind of a fair and reasonable man could reach only one conclusion, if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.’ Marly v. New England Transportation Co., 133 Conn. 586, 591, 53 A.2d 296 [1947] . . . .” Busko v. DeFilippo, [162 Conn. 462, 466, 294 A.2d 510 (1972)].’ Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983).” Lomangino v. LaChance Farms, Inc., 17 Conn. App. 436, 440, 553 A.2d 197 (1989).

At trial, evidence was presented that, prior to the third floor demolition, the damage sustained by the structure from the fire amounted to 50 percent of the value of the property, and that 25 to 40 percent of the structure was missing. There was testimony indicating that, subsequent to the demolition work, 55 to 65 percent of the structure was missing. The plaintiff testified that after the demolition, he contacted the building official to inquire about rebuilding the structure to its previous five units, and was informed that, due to a zoning regulation, the plaintiff would be unable to rebuild the structure to five units because the structure had been damaged in excess of 50 percent of its fair market value.

We conclude that there was sufficient evidence from which the jury could find that the actions of the Ham-den building official, in ordering the partial demolition, caused the value of the damage to the structure to exceed 50 percent of its fair market value, thereby resulting in the plaintiff’s loss of the five unit nonconforming use.

The defendant’s third and fourth claims of error relate to the trial court’s charges to the jury on the issues of damages and liability. The defendant claims that the trial court erred in its instruction to the jury on damages and in its failure to instruct the jury on the question of whether the condition of the plaintiff’s building after the fire constituted a nuisance.

Neither of the defendant’s claims relating to the court’s jury charge was raised by the defendant in its motion to set aside the verdict. In fact, the portion of the jury charge relating to the standard for assessing liability, to which the defendant now assigns error, was the defendant’s requested charge on the issue.

“In order to preserve full appellate review of a jury charge assigned as error, an appellant must not only move to set aside the verdict; Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988); but must also set forth, either in the motion itself, in supporting briefs, or in oral argument at a hearing on the motion, each claim of error with sufficient specificity to enable the trial court to consider the claimed errors.” Cuartas v. Greenwich, 14 Conn. App. 370, 374, 540 A.2d 1071 (1988). Because the claimed errors relating to the trial court’s charge to the jury were not raised by the defendant’s motion to set aside the verdict, our review is limited to a determination of whether the trial court committed plain error. Van Dyck Printing Co. v. Johnson Graphics, Ltd., 15 Conn. App. 119, 121, 543 A.2d 1349 (1988); Cuartas v. Greenwich, supra, 375. “ ‘Review for plain error is “ ‘reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).” Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986).’ Small v. South Norwalk Savings Bank, supra, 759.” Cuartas v. Greenwich, supra.

The defendant has offered no persuasive authority-in support of its claims that the charges to the jury on the issues of liability and damages were contrary to law. The defendant has failed to show that the trial court committed plain error in charging the jury with respect to the issues of liability and damages.

II

In his cross appeal, the plaintiff claims that the trial court erred in denying his motions for additur. The plaintiff filed a motion for additur following announcement of the verdict, claiming interest from July 13, 1981, the date of the partial demolition. The motion was denied. The plaintiff filed a motion for additur following acceptance of the verdict, which was also denied. The trial court’s reason for denying the motions for additur was that interest must be based on a factual finding that the money was wrongfully withheld.

It has been recognized that interest, as an element of damages, is a matter within the province of the jury. Canton Motor Car Works, Inc. v. DiMartino, 6 Conn. App. 447, 464, 505 A.2d 1255, cert, denied, 200 Conn. 802, 509 A.2d 516 (1986). “This principle derives from the recognition that ‘the question of [interest as] damages . . . is . . . inextricably mixed’ with the merits of the underlying claims. Rosenblatt v. Berman, [143 Conn. 31, 39, 119 A.2d 118 (1955)]. In each case, the jury must determine whether the detention of the money is wrongful under the circumstances, and whether justice requires the allowance of interest as damages for the loss of use of money.” Id.

In the present case, there were no interrogatories and there were no instructions to the jury on the issue of interest. The jury, therefore, did not award interest. Having failed to raise the issue of interest prior to the submission to the jury of the case, the plaintiff was not entitled to the additur, and it would have been error for the court to have granted the motions.

There is no error on the appeal or the cross appeal.

In this opinion the other judges concurred.

       The plaintiff also brought suit against Blakeslee, Arpaia and Chapman, Inc., a crane company, which suit was settled and subsequently withdrawn during trial. As used in this opinion, “defendant” refers only to the named defendant.

         In support of Ms claim of error, the plaintiff argues that he is entitled to interest as a matter of law. The plaintiff cites cases relating to interest in the context of compensation for the state’s exercise of its powers of eminent domain. The plaintiff concedes that the present case was tried on the theory of an arbitrary and illegal abuse of the defendant’s powers, and not on the theory of eminent domain. As such, authority relating to eminent domain is inapposite to the plaintiff’s claim of error.


text:
    Heise Industries, Inc. v. Lerman Container Corporation et al.
    (6896)
    Dupont, C. J., Stoughton and Jacobson, Js.
    Argued February 7
    decision released May 2, 1989

      R. Bartley Halloran, with whom, on the brief, was Salvatore Bonanno, for the appellant (named defendant).

      Dean B. Kilbourne, with whom, on the brief, was Karla A. Dailey, for the appellee (plaintiff).
   Stoughton, J.

The named defendant appeals from the judgment rendered in favor of the plaintiff after a trial to the court. The sole issue is whether the trial court erred in awarding damages to the plaintiff, an unsecured creditor of an insolvent corporation the assets of which had been seized by a secured creditor. We find error.

The trial court found the following facts. The plaintiff, Heise Industries, Inc. (Heise Industries), is engaged in the business of manufacturing molds for making plastic bottles; Brooks B. Heise, Jr. (Heise), is its vice president. The named defendant, Lerman Container Corporation (Lerman Container), is a distributor of plastic bottles. Robert Lerman (Lerman) is a shareholder and principal in Lerman Container. Heise and Lerman agreed to form a corporation to be called Custom Bottles, Inc. (Custom Bottles), for the purpose of manufacturing plastic bottles. Heise Industries was to provide the mold equipment for Custom Bottles, while Lerman Container was to be its sole customer. Heise and Lerman each contributed $50,000 as a capital contribution to Custom Bottles and, in exchange, each received 50 percent of its stock. George Hurden served as president of Custom Bottles. The trial court found that Hurden was essentially a plant manager who had minimal knowledge of the corporate intrigue which came to surround him.

In November, 1984, Custom Bottles received an initial loan of $245,000 from Colonial Bank. The loan was guaranteed by Heise Industries and Lerman Container as well as by Heise and Lerman individually. In November, 1984, the two shareholders each lent Custom Bottles $40,000. The trial court found that there was no evidence to support a claim by Heise that he took a security interest for this loan. Custom Bottles later borrowed an additional $50,800 from Colonial Bank. Heise Industries supplied mold equipment to Custom Bottles but never received payment for this equipment.

Custom Bottles experienced financial difficulties from its beginning. When it became apparent that Heise and Lerman were deeply divided as to the resolution of the corporation’s problems, Heise removed certain molds and mold equipment from the corporation’s plant.

Custom Bottles defaulted on the loan from Colonial Bank in the total amount of $306,000, including expenses and attorney’s fees. Lerman Container paid the accelerated amount due and demanded that Custom Bottles transfer its assets to Lerman Container. Custom Bottles did so without notifying either Heise as a shareholder or its directors.

Lerman Container then sold the assets of Custom Bottles to a newly formed corporation, the defendant, Custom Bottles of Connecticut, Inc. (CBC). CBC was organized for the purpose of receiving the assets of Custom Bottles. These assets included the remaining but as yet unpaid for mold equipment.

On June 11,1986, Heise Industries obtained a judgment against Custom Bottles in the amount of $113,286.20. The judgment was returned unsatisfied and Custom Bottles was later dissolved by court order. Heise Industries then brought suit against Lerman Container and CBC. This suit alleged, inter alia, the fraudulent transfer of assets between Custom Bottles and the defendants, Lerman Container and CBC. The plaintiff based its claim of fraudulent transfer on General Statutes § 52-552.

“A conveyance is fraudulent if it is made with actual intent to avoid any debt or duty or if made without any substantial consideration by a person who is or will be thereby rendered insolvent.” Molitor v. Molitor, 184 Conn. 530, 536, 440 A.2d 215 (1981). The determination as to whether a conveyance has been made with fraudulent intent is a question of fact. Zapolsky v. Sacks, 191 Conn. 194, 200, 464 A.2d 30 (1983). The plaintiff must prove fraud by a standard of “clear, precise and unequivocal” evidence. Bound Brook Assn. v. Norwalk, 198 Conn. 660, 666, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986); Patrocinio v. Yalanis, 4 Conn. App. 33, 35-36, 492 A.2d 215 (1985). Fraud must often be inferred from the facts surrounding the conveyance. Zapolsky v. Sacks, supra; see Wilcox v. Johnson, 127 Conn. 539, 542, 18 A.2d 372 (1941). These inferences, or “badges of fraud”; see Zapolsky v. Sacks, supra; may arise from various circumstances, such as the relationship between the debtor and the transferee or the failing circumstances of the debtor at the time of the transfer. See Maturo v. Gerard, 196 Conn. 584, 590, 494 A.2d 1199 (1985); Zapolsky v. Sacks, supra; Wilcox v. Johnson, supra; Patrocinio v. Yalanis, supra, 37; see also Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 449-50, 551 A.2d 1220 (1988) (Covello, J., dissenting). Such inferences may also arise from the fact that the debtor retained possession of the property after the transfer; see Zapolsky v. Sacks, supra, 201; Katz v. Richman, 114 Conn. 165, 169, 158 A.2d 219 (1932); Meade v. Smith, 16 Conn. 346, 359 (1844).

The trial court found that Lerman, “formerly a 50 percent shareholder of Custom Bottles and currently a shareholder of CBC,” had actual knowledge that Custom Bottles had never paid for the mold equipment. It concluded that the transfer of Custom Bottles’ assets was, at least in part, designed to avoid the debt owed to Heise Industries, and that Heise Industries was entitled to recover the value of the equipment from the defendants. The court based this conclusion solely on the fact that Lerman was formerly a 50 percent shareholder of Custom Bottles as well as a shareholder in CBC, who had actual knowledge that the Custom Bottles had never paid Heise Industries for the mold equipment. The trial court rendered judgment against the defendants in the amount of $113,286.20, plus interest as set forth in the original judgment against Custom Bottles, together with costs. We do not agree that there was sufficient evidence from which the trial court could reasonably and legally conclude that the transfer was fraudulent.

In the first place, there is no evidence that Lerman was a shareholder of CBC. In fact, the record reveals that although Lerman was a director of CBC, he owned no stock in the company. Secondly, although Lerman was a 50 percent shareholder of Custom Bottles and knew that Heise Industries had not been paid for the mold equipment, there is no evidence that the transfer of Custom Bottles’ assets was fraudulent.

In this case, the record reveals that Colonial Bank, by virtue of its loan agreement, had a secured interest in all present and future assets of Custom Bottles. Since Heise Industries signed this agreement as guarantor, it cannot and does not deny the validity of the terms of that agreement. See General Statues § 42a-9-201. Heise Industries has never alleged, either on appeal or in its original complaint, that it was a secured creditor. As a secured party, Colonial Bank had the right to take possession of Custom Bottles’ assets if Custom Bottles defaulted on its loan payments. See General Statutes § 42a-9-503; see also Connecticut Bank & Trust Co. v. Incendy, 207 Conn. 15, 21, 540 A.2d 32 (1988); J. White & R. Summers, Uniform Commercial Code (2d Ed.) § 26-4. The bank could then have sold the assets without notice to Heise Industries. See General Statutes § 42a-9-504 (8); 9 R. Anderson, Uniform Commercial Code (3d Ed.) § 9-504:44. If Colonial Bank had exercised this right, it cannot be denied that Custom Bottles would have been bound under the agreement to allow its assets to be repossessed; see 9 R. Anderson, supra, § 9-504:24; and there would have been no fraudulent inference to be drawn.

We do not find that this analysis changes simply because it was Lerman Container, rather than Colonial Bank, which actually took possession of Custom Bottles’ assets. As guarantor, Lerman Container, “stepped into the shoes” of Colonial Bank by paying off Custom Bottles’ loans and became entitled thereby to all its rights under the loan agreement. See General Statutes §§ 42a-9-504 (5) and 42a-9-302 (2); see also Ollag Construction Equipment Corporation v. Goldman, 578 F.2d 904, 908 (2d Cir. 1978); In re Yale System, Inc., 362 F.2d 111, 114 (2d Cir. 1966); Belcher v. Hartford Bank, 15 Conn. 381, 384 (1843); Restatement, Security § 141.

Nor is there even a hint of fraud surrounding the manner in which Lerman Container became subrogated to the rights of Colonial Bank. Lerman Container paid full consideration for these rights by paying off the entire amount of the loans. This was an action forced upon Lerman Container by Colonial Bank and Lerman Container simply made the best of a bad situation. It should not be penalized for fulfilling its responsibilities as a guarantor and exercising its subrogation rights.

On the basis of the evidence presented, the trial court could not legally and reasonably have concluded that the conveyence was fraudulent. See Bound Brook Assn. v. Norwalk, supra; Cutsumpas v. Connecticut Light & Power Co., 16 Conn. App. 108, 113-14, 546 A.2d 962 (1988).

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       The court found that Heise removed molds and mold equipment late on a Sunday night without prior notice to Lerman or Hurden. The record further reveals that the equipment was removed on July 10,1985, and consisted of a “chiller,” a rosade machine, a workbench and a grinder. Heise represented to the Colonial Bank that this equipment was at all times owned by Heise Industries and that the items were delivered to Custom Bottles long after the financing agreement with Colonial Bank was concluded.

       The record reveals that on September 9,1985, Heise’s attorney wrote a letter to the attorneys for Colonial Bank advising them that Heise was interested in taking over the obligation of Custom Bottles. On or about September 17,1985, Custom Bottles was in default on its payments to Colonial Bank, whereupon, Colonial Bank accelerated the loans and made demand on Custom Bottles for the outstanding debt balance. On or about October 8, 1985, Colonial Bank made a demand upon each of the four guarantors of the obligations of Custom Bottles for the payments of all the amounts due. On or about October 11, 1985, Lerman Container paid the full amount demanded by Colonial. The total amount paid was $300,991.93 of which $298,491.93 represented the amount of the loans.

       General Statutes § 52-552 provides: “fraudulent conveyances, judgments, contracts, WHEN VOID. All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.

       General Statutes § 42a-9-201 provides: “general validity of security agreement. Except as otherwise provided by this title a security agreement is effective according to its terms between the parties, against purchasers of the collateral and against creditors. Nothing in this article validates any charge or practice illegal under any statute or regulation thereunder governing usury, small loans, retail instalment sales, or the like, or extends the application of any such statute or regulation to any transaction not otherwise subject thereto.”

       General Statutes § 42a-9-503 provides:“sECURED party’s right to take possession after default. Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides the secured party may require the debtor to assemble the collateral and make it available to the secured party at the place to be designated by the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor’s premises under section 42a-9-504.”

       General Statutes § 42a-9-504 (3) provides: “Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods no other notification need be sent. In other cases notification shall be sent to any other secured party from whom the secured party has received, before sending his notification to the debtor or before the debtor’s renunciation of his rights, written notice of a claim of an interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.”

       General Statutes § 42a-9-504 (5) provides: “A person who is liable to a secured party under a guaranty, endorsement, repurchase agreement or the like and who receives a transfer of collateral from the secured party or is subrogated to his rights has thereafter the rights and duties of the secured party. Such a transfer of collateral is not a sale or disposition of the collateral under this article.”

       General Statutes § 42a-9-302 (2) provides: “If a secured party assigns a perfected security interest, no filing under this article is required in order to continue the perfected status of the security interest against creditors of and transferees from the original debtor.”