text:
    Edward A. Currie v. Louis Marano et al.
    (5627)
    Borden, O’Connell and Stoughton, Js.
    Argued January 6 —
    decision released March 1, 1988

      William C. Franklin, for the appellant (plaintiff).

      Richard Bruno, for the appellees (defendants).
   O’Connell, J.

This is the plaintiff’s appeal from a defendants’ judgment in an action, tried to the court, for a real estate commission. The plaintiff claims that the trial court erred in concluding (1) that a real estate broker who earns a commission pursuant to an agreement that complies with General Statutes § 20-325a must in addition demonstrate that the written agreement complies with General Statutes § 20-325b, (2) that the statements of the named defendant did not constitute a judicial admission that the real estate commission at issue was due, (3) that the defendants were not equitably estopped from asserting the protection of General Statutes §§ 20-325a and 20-325b as a defense to the plaintiffs claim, and (4) that the defendants were not liable under the doctrine of unjust enrichment. We find no error.

The plaintiff was a licensed real estate broker in the full-time employ of the Uniroyal Corporation as a real estate specialist. The defendants, two of whom were socially acquainted with the plaintiff, owned acreage situated partially in Middlebury and partially in South-bury. The defendants asked the plaintiff to seek a buyer for their property. After obtaining permission from Uniroyal, the plaintiff and the defendants discussed the matter in greater detail, the result of which was an exclusive listing agreement executed by all parties on November 30,1981. This agreement set an asking price of $590,000 and a 10 percent commission for the plaintiff. The agreement, however, did not conform to General Statutes § 20-325b concerning notice as to the negotiability of an agent’s commission. See footnote 2, supra. By its terms, this agreement expired on May 30,1982, and as of that date the plaintiff’s efforts had not produced a buyer, nor were they more successful during a purported oral six-month extension of the listing agreement.

Sometime after the expiration of the “oral extension” the plaintiff learned of a prospect developed by another broker. Working in conjunction with the other broker, an option was signed on May 13,1983. This option was ultimately exercised and a closing took place on March 28,1985. In this option, the defendants acknowledged the services of the plaintiff and the cobroker as the sole brokers involved in the transaction. At the closing, the defendants, acting on advice of counsel, refused to pay the plaintiff any commission whatsoever, giving rise to this action.

The action was tried to the court on a four count amended complaint. The first count was in fraud; the second count alleged a breach of the listing agreement and the option; the third count was based on an offer of compromise; and the fourth count alleged estoppel against the defendants from raising a defense of a flaw in the listing agreement. Judgment was rendered for the defendants on all counts. We find no error.

I

General Statutes § 20-325a (b) is dispositive of this appeal. This statute expressly prohibits the bringing of an action for a real estate commission unless the services were rendered pursuant to a written contract (i.e., a listing agreement). Howland v. Schweir, 7 Conn. App. 709, 713, 510 A.2d 215 (1986). The trial court specifically found that the plaintiffs efforts were unavailing during the original six-month term or in the six-month “oral extension.” This finding is fatal to the plaintiff’s case. When the plaintiff continued rendering services after the end of the agreement or the “extension” thereof, those services were performed “without the benefit of a proper listing agreement and were thus performed at his peril.” Id., 715. Therefore, once the agreement expired, the plaintiff could not recover for any services rendered beyond that date.

II

The plaintiff seeks to circumvent the real estate listing statute by arguing (1) that the defendants are equitably estopped from raising the defense of the plaintiff’s noncompliance with General Statutes §§ 20-325a and 20-325b, and (2) that the court should impose liability on the defendants because they have been unjustly enriched by the plaintiff’s services.

General Statutes § 20-325a has been strictly construed and enforced. Thornton Real Estate v. Lobdell, 184 Conn. 228, 230-31, 439 A.2d 964 (1981); Howland v. Schweir, supra. The scenario arising most commonly in cases of real estate commission claims, when there has not been compliance with the listing statute, as here, presents a fact pattern in which a real estate owner allegedly reaps the benefits of a broker’s services without paying for them. To allow recovery on either of the plaintiffs legal theories in the present case would nullify § 20-325a and emasculate the state’s real estate sales licensing system. See generally General Statutes §§ 20-311 through 20-329bb.

We find no merit in the plaintiff’s claim that the defendant should be equitably estopped from asserting the defense of noncompliance with General Statutes § 20-325a. “ ‘Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed ... as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse.’ ” Brock v. Cavanaugh, 1 Conn. App. 138, 141-42, 468 A.2d 1242 (1984), quoting Bozzi v. Bozzi, 177 Conn. 232, 241, 413 A.2d 834 (1979). It is a long standing tenet of the law of equitable estoppel that a party requesting such relief cannot contribute to the hardship claimed, through his own ignorance of the essential facts of the matter in question. “There could be no duty resting upon [the defendant] to communicate facts to the plaintiff of which he was ignorant only by his own negligence. One setting up an estoppel in pais, is himself bound to the exercise of good faith and due diligence to know the truth.” Huntley v. Holt, 58 Conn. 445, 450, 20 A. 469 (1890); 28 Am. Jur. 2d, Estoppel & Waiver § 80, and cases cited therein. This plaintiff, a licensed real estate broker since 1958, should have been aware of the strict legal prerequisites to obtaining a broker’s commission in a real estate sale as set forth in the laws governing such transactions. We cannot apply the doctrine of equitable estoppel in a case in which the party requesting the relief claims ignorance of the laws governing his profession, when such ignorance of the law is the primary cause of his need for such relief. Thus, we conclude that equitable estoppel does not apply in the present case.

The plaintiff attempts to support his unjust enrichment argument by drawing an analogy to the statute of frauds. General Statutes § 52-550a. This argument and the cases cited in support thereof, are of no aid to the plaintiff. The statute of frauds analogy has been specifically addressed and discredited by the Supreme Court in clear and unambiguous language: “[Real estate] listing contracts are governed exclusively by section 20-325a; such contracts do not fall within our statute of frauds.” (Emphasis added.) William Pitt, Inc. v. Taylor, 186 Conn. 82, 84, 438 A.2d 1206 (1982).

Further, with regard to the plaintiff’s claims for equitable relief, Justice Parskey, while on the Superior Court bench, analyzed a quantum meruit claim in a case in which a listing agreement proved faulty. Good v. Paine Furniture Co., 35 Conn. Sup. 24, 27-28, 391 A.2d 741 (1978). Justice Parskey’s search of the precedents from other jurisdictions led him to note that “statutes comparable to § 20-325a (b) which have been enacted in other jurisdictions have been strictly construed by the courts. Thus, licensed real estate brokers who have failed to produce evidence of written brokerage agreements which comply with statutes such as § 20-325a (b) have been precluded from recovering in quantum meruit. Augustine v. Trucco, 124 Cal. App. 2d 229, 237-38; Peacock Realty Company v. E. Thomas Crandall Farm, Inc., 108 R.I. 593, 596.” Good v. Paine Furniture Co., supra, 27-28. We agree with this analysis.

In view of the grounds of our disposition of this appeal, we do not reach the plaintiffs other claims of error.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 20-325a. actions to recover commissions ARISING OUT OF REAL ESTATE TRANSACTIONS, (a) No person who ÍS not licensed under the provisions of this chapter, and who was not so licensed at the time he performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state, after October 1,1971, to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.
      “(b) No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1,1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.
      “(c) The provisions of this section shall not apply to any person excepted from the provisions of this chapter by section 20-329 with respect to any acts performed by him which are included in such exception.”

       “[General Statutes] Sec. 20-325b. certain real estate agreements TO CONTAIN NOTICE REGARDING COMMISSIONS. REQUIREMENTS. Each written agreement which fixes the compensation to be paid to a real estate broker for the sale of real property shall contain the following statement in not less than ten point boldface type or in a manner which otherwise stands out significantly from the text immediately preceding any provision of such agreement relating to compensation of the broker:
      “NOTICE: THE AMOUNT OR RATE OF REAL ESTATE COMMISSION IS NOT FIXED BY LAW, THEY ARE SET BY EACH BROKER INDIVIDUALLY AND MAY BE NEGOTIABLE BETWEEN THE SELLER AND BROKER.”

       We need not pass upon the trial court’s apparent recognition of the validity of an oral extension of a written real estate agreement. General Statutes § 20-325a.

       The trial court found that there was no factual basis for the first count, alleging fraud, and that finding'has not been appealed. The third count, alleging an offer of compromise, was voluntarily abandoned by the plaintiff at trial. The trial court’s memorandum construed the fourth count as a claim for unjust enrichment stating: “Although the words are not used, the essence of this count is that by accepting the benefit of the plaintiff’s work they will be unjustly enriched if they do not compensate him.”


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Mohamed Omar v. Norton Mezvinsky
    (5338)
    Spallone, Bieluch and Stoughton, Js.
    Argued December 15, 1987 —
    decision released March 1, 1988

      Harold J. Geragosian, for the appellant (defendant).

      William C. Franklin, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the judgment rendered after a jury verdict in favor of the plaintiff awarding damages in the amount of $26,000. The defendant claims that the trial court erred (1) in refusing to set aside the verdict, and (2) in its refusal to give a missing witness instruction.

From the evidence adduced at trial, the jury would have been justified in finding the following facts: The plaintiff, Mohamed Omar, and the defendant, Norton Mezvinsky, were social friends of long standing prior to the present litigation. During those years, the defendant, who was skilled in investments, and the plaintiff, who relied on the defendant’s expertise, would enter into joint ventures wherein the plaintiff would entrust funds to the defendant who would invest those funds on behalf of the plaintiff. From time to time, the defendant would report the results of those investments to the plaintiff and repay the plaintiff his original investments plus any profits which had been made.

In November of 1982, at the request of the defendant, the plaintiff entrusted $20,000 to the defendant who was to invest it on behalf of the plaintiff. The defendant, with the plaintiff’s assent, made investments which ultimately proved to be profitable. The defendant continued to make a series of investments which included the reinvestment of a portion of the profits made on the original investment; the defendant kept the plaintiff informed as to the results of the investments as they occurred.

In the summer of 1983, the plaintiff requested an accounting of all monies due him, including both his original investment and any profits. The defendant, in response, paid the plaintiff $17,000 and indicated that an additional $26,000 would be forthcoming.

Thereafter, on several occasions, the plaintiff pressed the defendant for payment of the $26,000. Although the defendant acknowledged this sum was due, the money was not forthcoming. At one point, the defendant and the plaintiff met at the plaintiffs home where the defendant again admitted owing the $26,000 and indicated that it would be paid within a couple of weeks.

When the $26,000 was not paid at the time the defendant represented it would be, the plaintiff again pressed the defendant for payment. As a result of the plaintiffs insistence that payment be made, the parties reached an agreement, confirmed by letter, that they would meet at a hotel in New York City where the defendant would make payment. The meeting was held in November of 1983, but the defendant once again failed to pay as agreed. Shortly thereafter, for the first time, the defendant informed the plaintiff that he did not intend to pay. The plaintiff thereafter brought this action, sounding in conversion, which resulted in a plaintiffs verdict in the amount of $26,000. The defendant’s motion to set aside the verdict was denied, and judgment was rendered in the amount of $31,188.60, plus costs taxed at $294.

The defendant presents us with two theories to support his first claim that the trial court erred in refusing to set aside the verdict. First, the defendant contends that because money cannot be the subject of conversion, the jury verdict must fail; second, he claims that the plaintiff did not present evidence sufficient to support his claim of conversion. We find there is no merit to either claim.

Money can clearly be subject to conversion. See Devitt v. Manulik, 176 Conn. 657, 662-63, 410 A.2d 465 (1979) (recovery of money wrongfully taken from joint survivorship bank account); Dunham v. Cox, 81 Conn. 268, 270-71, 70 A. 1033 (1908) (recovery of a sum of money entrusted to the defendant for payment to a third person); Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 445, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986) (recovery by insurer from insured’s attorney pursuant to General Statutes [Rev. to 1979] § 38-325 [b]); see also Unigard Ins. Co. v. Tremont, 37 Conn. Sup. 596, 599-600, 430 A.2d 30 (1981); State v. Blawie, 31 Conn. Sup. 552, 556-57, 334 A.2d 484 (1974).

As for the second theory, whether the evidence was sufficient to prove conversion was for the jury to decide. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). It is also within the province of the jury to determine credibility and the effect to be given the testimony. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981). Likewise, it is the jury’s right to consider evidence, draw logical deductions and make reasonable inferences from facts proven. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976). It may accept or reject the testimony of any witness; Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 608, 419 A.2d 339 (1979); and determine the weight to be given the evidence. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). Accordingly, the trial court’s refusal to set aside the verdict on the basis of insufficiency of evidence was not clearly erroneous. There was ample evidence submitted by the plaintiff to support the jury’s verdict in this case.

The defendant's second claim is that the trial court committed error when it refused to charge the jury that it could draw an adverse inference from the plaintiff’s failure to call certain witnesses. We disagree.

At the time the defendant submitted his request to charge, he asked that the court instruct the jury in accordance with the adverse inference rule set forth in Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The rule established by Secondino, and refined by subsequent caselaw, is that “ ‘ “[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.” ’ Secondino v. New Haven Gas Co., supra, 675, quoting Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928).” Shelnitz v. Greenberg, 200 Conn. 58, 73, 509 A.2d 1023 (1986).

The defendant claims that the plaintiff’s counsel should have produced Niva Omar, the plaintiff’s wife, and Walter Bernas, claimed by the defendant to be one of the plaintiff’s “closest personal friends.” The defendant failed to offer any positive proof that Niva Omar was available to the plaintiff. “Before a negative inference can be drawn from a party’s failure to produce a particular witness, it must be shown that the party was able to procure the witness’ physical presence in court.” (Emphasis added.) Shelnitz v. Greenberg, supra, 74-75. Contrary to the defendant’s contention, the fact that this witness is the plaintiff’s spouse does not, per se, make her “available” in the context of a Secondino charge, and the proferred language in Nichols v. Coppola Motors, Inc., 178 Conn. 335, 342, 422 A.2d 260 (1979), does not stand for such a proposition. See State v. Hart, 198 Conn. 424, 428-29, 503 A.2d 588 (1986). The defendant did not sustain his burden of proof under the first prong of Secondino.

As to Bernas, there is no dispute with regard to his availability as he was in attendance throughout the trial. This time, however, the defendant runs afoul of the second prong of Secondino which requires that the witness is one who would naturally be produced. “ ‘A witness who would naturally be produced . . . is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.’ Nichols v. Coppola Motors, Inc., [supra, 343], quoting Secondino v. New Haven Gas Co., supra.” New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 685, 474 A.2d 810 (1984). Aside from the bald allegation that Bernas is the plaintiff’s “best friend,” the defendant did not provide the trial court with any information which would indicate that Bernas possessed “peculiar or superior information material” to the parties’ dispute. In the absence of any such evidence, the court was fully justified in refusing to charge the jury as requested.

The trial court’s conduct in denying the defendant’s motion to set aside the verdict as well as its refusal to give a Secondino charge was entirely appropriate under the facts and circumstances of this case.

There is no error.

In this opinion the other judges concurred.

       The parties had stipulated that, in the event of a plaintiffs verdict, the statutory interest rate of 8 percent would be applied to the damage award for the period of January 1, 1984, to the date of judgment.


author: Bieluch, J.

text:
    Irving Slifkin v. Condec Corporation
    (5544)
    Dupont, C. J., Bieluch and Norcott, Js.

      Argued October 7, 1987 —
    decision released March 1, 1988

      Alan Neigher, for the appellant (plaintiff).

      William A. Phillips, for the appellee (defendant).
   Bieluch, J.

This is an appeal by the plaintiff from a judgment rendered in favor of the defendant in a suit for wrongful discharge from employment in violation of a contract between the parties. The action was heard by an attorney state trial referee who found in favor of the defendant on all counts in his report to the court. The plaintiff’s motion to correct the referee’s report was granted as to the request for clarification, but denied insofar as it sought to strike certain findings and to add others. Upon accepting the referee’s report after overruling the plaintiffs objections, the court rendered judgment for the defendant. We find error.

The plaintiffs amended complaint was in four counts: (1) breach of contract; (2) promissory estoppel; (3) tortious discharge; and (4) breach of an implied covenant of good faith. The third count was withdrawn at trial.

The first count alleged that on August 24,1977, the defendant agreed to employ the plaintiff as general counsel, for which he would receive an annual salary and bonuses and would participate in the company’s pension, profit sharing and stock incentive plans for “a minimum, of twelve years . . . in order to qualify for 100% vesting in each of the benefit plans offered by the defendant”; that on June 4, 1979, the parties “signed a written memorandum which set forth defendant’s obligation to employ plaintiff until such time as plaintiff qualified for 100% vesting in each of the benefit plans offered by the defendant”; and that on or about October 1,1980, the corporate president, without giving a reason, informed the plaintiff that he would be terminated on December 31,1980, which date was later extended to April 17,1981. Since the plaintiff suffered no monetary loss after his discharge, his damage claim was limited to the loss of vested benefits in the defendant’s pension, profit sharing and stock incentive plans.

The second count sought the same damages on the ground of promissory estoppel and alleged that the plaintiff, age 55 in 1977, was then offered relocation in Houston, Texas, by his employer, Shell Oil Company; that he was unwilling to give up his employment benefits accrued over twenty-nine years unless he was assured of sufficient employment by the defendant to qualify for 100 percent vesting in all of its benefit plans; that these facts were known to the defendant, the president of which therefore agreed to employ the plaintiff as counsel for twelve years.

The fourth count alleged a breach of an implied covenant of good faith through the defendant’s false inducement that the plaintiff leave his former employment. In this count the plaintiff additionally sought punitive damages and attorney’s fees.

The controversy focuses on the plaintiff’s employment contract as it began as an oral agreement and was subsequently put in writing during his employment. The plaintiff, an attorney since 1948, was employed in the corporate legal department of Shell, but did not desire to relocate with that company to Houston. Wishing to remain in the New York City area, he was put in contact with the defendant. Within a period of weeks, the parties reached an agreement by which the plaintiff was employed by the defendant as its general counsel. The plaintiff thereupon terminated his employment with Shell. At the time of his departure from Shell, the plaintiff was fully vested in its pension, profit sharing and stock incentive plans. Had he continued there, these benefits would have increased directly with his salary.

The attorney trial referee found that the oral understanding at the time of employment was that the plaintiff was to start at an annual salary of $55,000, with periodic revaluation and bonuses. In addition, he was to participate in the employer’s pension, profit sharing and stock purchase plans. All of this was impliedly conditional upon satisfactory service by the plaintiff. The attorney trial referee did not find, as the plaintiff claimed, that the defendant agreed to a definite term of employment for twelve years, the minimum period required for the vesting of the plaintiff’s rights in the defendant’s benefit plans.

In 1978 and 1979, the plaintiff’s salary was successively increased, and he was also given bonus payments. On January 5,1979, a memorandum was prepared for the defendant’s president, with copy to the plaintiff, outlining the plaintiff’s retirement benefits. Becoming concerned that he had no written contract guaranteeing employment until the vesting of his retirement benefits, the plaintiff, on May 19,1979, drafted a memorandum agreement for execution by the defendant’s president, Gerald Rosenberg. It read as follows: “This will confirm our discussions, both prior and subsequent to my employment, relating to my completion of sufficient years of service during my employment as General Counsel of Condec Corporation to qualify for 100% vesting in each of the employee benefit plans currently offered, as they now exist or may be modified or amended in the future, and any such plans which may hereafter be adopted. It is agreed that I shall be employed by Condec Corporation at a competitive and adequate compensation for at least such period of years as is required to accomplish 100% vesting in the employee benefit plans referred to above, unless discharged for due cause, i.e., dishonesty, or criminal conduct injurious to Condec.”

The defendant’s president, Gerald Rosenberg, refused to sign the proposed agreement as “too detailed.” In its place, he had the plaintiff modify the agreement to state: “At the time of my employment, it was agreed, in view of my age being in excess of 55 years, that I would be afforded an opportunity to continue in the employ of Condec Corporation for a sufficient number of years to qualify for 100% vesting in each of the employer benefit plans currently offered, or as modified or amended or as adopted, in the future.” This revision was then signed by the parties on June 4, 1979, and the plaintiff continued in the defendant’s employ.

In 1980, the plaintiff was elected assistant secretary of Condec by its board of directors. That fall, however, he failed to obtain a salary review. Upon his inquiry about this, he met in October with Rosenberg, who informed him that his services were unsatisfactory because “he hadn’t grown with the job,” and that he was being terminated. In the meantime, the defendant had hired the plaintiff’s replacement. The plaintiff left the defendant’s employ on April 17, 1981. Upon his termination he received no benefits under the defendant’s pension, profit sharing or stock incentive plans. The plaintiff has since obtained other employment, but he is ineligible to participate in this employer’s benefit plans because of his age.

The attorney trial referee found that the plaintiffs proposed agreement of May 29,1979, implied an absolute agreement for employment in the terms, “[i]t is agreed that I shall be employed,” but this draft was not accepted by the defendant. The provision thereafter dictated by the corporate president and accepted on June 4,1979, by the plaintiff, “that I would be afforded an opportunity to continue in the employ of Condec Corporation,” was found by the trial referee, however, to imply “that [plaintiffs] employment would be subject to the performance of satisfactory service.”

The referee made three additional relevant findings: (1) the plaintiff offered no evidence of a standard of service, which if performed by him, would have put the defendant in breach of the agreement; (2) the duties of general counsel “are varied and vague of precise definition and are thus necessarily required to meet the reasonable demands of management”; and (3) the plaintiff was terminated by reason of his failure to provide services to the reasonable needs of management. On the basis of his findings, the attorney trial referee concluded in his report to the court that judgment should be rendered for the defendant.

The plaintiffs motion to correct the report was denied by the referee, except for the following clarifications: The original employment contract was entirely oral. The writing submitted several years later contained language at the express direction of the defendant, which, when coupled with the prior writing of the plaintiff and reviewed by the defendant, “must be read to include satisfactory performance by the plaintiff.” The original oral agreement, the rejected writing and the executed writing are ambiguous and their ordinary meaning requires that a party being paid for service must render satisfactory service within the context of his employment. The writing relied upon is at best a partial memorialization of an agreement that was initially oral and continued so for a period of years and included review annually to determine the level of service. Rosenberg told the plaintiff what he wished the writing to contain and the plaintiff in fact returned to his office and drew the document. The signed document was the understanding of both parties when read in light of Rosenberg’s review of the original submission.

The plaintiff excepted to the referee’s response to the motion to correct his report and objected to its acceptance. The trial court, however, rendered judgment on the referee’s report.

The plaintiff has appealed from that judgment. He claims that the court erred (1) in finding that the phrase “afforded an opportunity to continue in the employ of Condec Corporation” in the employment agreement “clearly implies that employment would be subject to the performance of satisfactory service,” (2) in not finding that the plaintiff’s discharge was arbitrary and without good cause, and (3) in not finding a breach of the employment contract and awarding damages to the plaintiff. We find error.

The plaintiff’s three claims of error stem from one basic underlying issue: What is the proper interpretation of the employment contract entered into by the parties and documented in writing on June 4, 1979?

In construing an employment contract, the ordinary rules of contract interpretation apply. “When construing a contract ‘[a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.’ Downs v. National Casualty Co., 146 Conn. 490, 494-95,152 A.2d 316 (1959); Reese v. First Connecticut Small Business Investment Co., 182 Conn. 326, 327, 438 A.2d 99 (1980); Burkle v. Car & Truck Leasing Co., 1 Conn. App. 54, 57, 467 A.2d 1255 (1983). In the absence of a special meaning, the words used must be taken in their ordinary and popular sense. Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 512, 280 A.2d 877 (1971).” Nesin v. New England Machinery, Inc., 5 Conn. App. 547, 550, 500 A.2d 965 (1985).

“The interpretation of a contract must be made in accordance with the terms employed in the instrument and a court cannot by that means disregard the words used by the parties or revise, add to, or create a new agreement.” Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973). The court cannot add to a contract a new term not previously considered by the parties, even though on later review of the contract by one of them it appears desirable to do so, and in all probability it could have been originally inserted. Id., 374-75. That is what the trial court did in this instance by acceptance of the attorney trial referee’s report and finding that the agreement of June 4, 1979, “clearly implies that employment would be subject to the performance of satisfactory service.”

The writing of June 4, 1979, serves two functions. First, it confirms the oral agreement made at the outset of the plaintiff’s employment by the defendant. Second, it reduces that agreement to writing. The clear and unequivocal language of the written agreement exhibits an employment contract for a definite term of “a sufficient number of years to qualify for 100% vesting in each of the employer benefit plans currently offered, or as modified or amended or as adopted, in the future.” The duration of this employment contract was actuarially computable, and such a computation was prepared for the defendant. The agreement provides for a definite period of employment. Although a condition of satisfactory performance by the plaintiff might have been reasonably included in the terms of employment by the defendant at the outset of the employment or at the time of signing of the agreement on June 4,1979, such a provision was not included and the parties did not agree to such a condition. The court erred in adding this proviso to the employment contract.

The attorney trial referee found that the original contract between the parties was entirely oral. That is undisputed. The agreement of June 4,1979, by its plain terms is a memorandum of the prior oral understanding confirmed by the signatures of the parties. The attorney trial referee affirmed that in his findings, but extended its terms by adding a new provision which he found to be implied in the agreement, namely, that the plaintiffs “employment would be subject to the performance of satisfactory service.” The attorney trial referee’s express reason for the inclusion of this condition, that “[t]he writing relied upon is at best a partial memorialization of an agreement that was initially oral and continued so for a period of years and included review annually to determine the level of service” is without factual or legal basis.

The attorney trial referee’s clarification of his conclusion for this new condition of employment is circuitous. He reasons thus: (1) “The writing submitted several years subsequent [to the oral contract] contains language at the express direction of the defendant, which, when coupled with a prior writing submitted by the plaintiff and reviewed by the defendant, must be read to include satisfactory performance by plaintiff”; and (2) “The original oral agreement, the rejected writing and the executed writing are ambiguous and their ordinary meaning requires that a party being paid for service must render satisfactory service within the context of his employment.”

In his original report to the court, the attorney trial referee found that “[although the contents of [the agreement of June 4, 1979] were essentially dictated by the defendant’s president, they were, in fact, drafted by the plaintiff, reviewed by him and subscribed by him and he accepted the contents of [this agreement] in its plain meaning.” Notwithstanding its “plain meaning,” however, the attorney trial referee extended its terms by grafting onto it the implied subjective standard of “satisfactory service.” Support for this conclusion was found by the referee in his comparison of the terms of the signed agreement with those proposed by the plaintiff on May 29, 1979. The words “afforded an opportunity to continue in the employ” contained in the final agreement were substituted for the earlier language, “it is agreed that I shall be employed.” Finding that the earlier provision implied an “absolute agreement to employ,” the referee concluded that the substitution, therefore, “clearly implies that employment would be subject to the performance of satisfactory service.”

The attorney trial referee found that the earlier draft “[was] not a memorialization of the parties’ agreement as to plaintiff’s employment.” That is evident in its terms, e.g., “[t]his will confirm our discussions, both prior and subsequent to my employment,” and “[i]t is agreed that I shall be employed by Condec Corporation at a competitive and adequate compensation.” (Emphasis added.) The first draft also contained the provision that the plaintiff could be “discharged for due cause, i.e., dishonesty, or criminal conduct injurious to Condec.” Although this express clause was apparently not accepted by the defendant’s president in his dictation of a different draft, there was no direction that the condition of “performance of satisfactory service” be substituted for it. The attorney trial referee’s implication of such a term as an addition to the plain meaning of the accepted draft was not justified by law. It was not a provision added to the contract by implication of law or fact.

The provision in the agreement of June 4,1979, that “[a]t the time of my employment, it was agreed, in view of my age being in excess of 55 years, that I would be afforded an opportunity to continue in the employ of Condec Corporation for a sufficient number of years to qualify for 100% vesting in each of the employer benefit plans” has a plain meaning in its language. It connotes an offer of employment for the period specified. It is our conclusion that this agreement confirms the original offer of an employment contract to the plaintiff by the defendant which was accepted by the plaintiff orally at the outset of their relationship and in writing on that date.

The employment contract executed by the plaintiff and the defendant on June 4, 1979, was for a definite or determinable period of time. Where a contract of employment is not for a definite or determinable duration, it is terminable at the will of either party at any time and for any reason not involving “ ‘impropriety . . . derived from some important violation of public policy.’ Sheets v. Teddy’s Frosted Foods, Inc., [179 Conn. 471, 475, 427 A.2d 385 (1980)].” Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984); Battista v. United Illuminating Co., 10 Conn. App. 486, 497, 523 A.2d 1356, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987); see Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986). Performance of satisfactory service is not a measurable standard that would prevent an employer from dismissing without reason an employee under contract for a definite or determinable term. Being subjective in nature, its only measure is the personal choice of the employer. It does not require that there be an accountable reason for termination of employment that is subject to judicial scrutiny. Its scope does not reach that of good or just cause for termination of employment.

An employment contract for a definite or determinable term, however, may be terminated by either party only for good or just cause. Good cause, as distinguished from the subjective standard of unsatisfactory service, is defined as “[substantial reason, one that affords a legal excuse . . . [Ijegally sufficient ground or reason.” Black’s Law Dictionary (5th Ed. 1979). Good cause or “ ‘[j]ust cause’ substantially limits employer discretion to terminate, by requiring the employer, in all instances, to proffer a proper reason for dismissal, by forbidding the employer to act arbitrarily or capriciously. See Pierce v. Ortho Pharmaceutical Corporation, 166 N.J. Super. 335, 341, 399 A.2d 1023 (1970).” Sheets v. Teddy’s Frosted Foods, Inc., supra, 475. In any contract of employment for a fixed period, an employee prematurely discharged without good or just cause may recover damages. Roy v. Woonsocket Institution for Savings, 525 A.2d 915, 917 (R.1. 1987); see Isenberg v. California Employment Stabilization Commission, 30 Cal. 2d 34, 39, 180 P.2d 11 (1947); Saari v. G. C. Dates & Associates, 311 Mich. 624, 628-29, 19 N.W.2d 121 (1945).

We hold that the plaintiff’s contract with the defendant Condec was for a definite or determinable period of time. As such, it could only be terminated for good cause. The attorney trial referee erred in finding that the contract was for an indefinite time period and could be terminated at the discretion of Condec for the alleged reason of unsatisfactory performance by the plaintiff.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Jack Greengarden v. Ida Kuhn
    (4802)
    Dupont, C. J., Daly and Norcott, Js.
    Argued November 17, 1987 —
    decision released March 1, 1988

      Alfred J. Onorato, for the appellant (defendant).

      Bernard Green, with whom, on the brief, was Susan C. Webb, for the appellee (plaintiff).
   Daly, J.

The plaintiff, Jack Greengarden, who did business as Jet Real Estate, commenced this action to recover a real estate brokerage commission from the defendant Ida Kuhn. After a trial to a jury, judgment was rendered for the plaintiff in the amount of $40,600 plus interest of $11,765. The defendant has appealed from the judgment, claiming that the trial court erred (1) in denying her motion for summary judgment, (2) in accepting a verdict in excess of the plaintiff’s billing, and (3) in accepting a verdict which contravenes the public policy of the state. We find no error.

The jury could reasonably have found the following facts. On or about October 4,1982, the plaintiff and the defendant entered into an open listing agreement for the sale of certain property located in Bridgeport. The property, located at the corner of Main and Vincelleth Streets, was referred to by the parties as “Merritt Canteen.” The defendant owned the property, which was subject to a lease to Lorraine Shaw Koehm, who had the first option to purchase in the event that the defendant desired to sell. The contract of the plaintiff and the defendant provided that the defendant would pay a brokerage fee “of 10% of the agreed upon sales price if during the term of this Contract:

“a. The LISTED PROPERTY is sold; by Jet Real Estate.

“b. In the event Jet Real Estate finds a buyer, ready, willing and able to buy the listed property either for the listing price or any other price acceptable to Me/Us.

“c. In the event Jet Real Estate finds a buyer ready, willing, and able to buy the listed property either for the listing price or any other price acceptable to Me/Us and if the present tenant exercises her right of 1st refusal equal to the offer presented by Jet Real Estate less the commission due Jet Real Estate.”

On November 1,1982, the plaintiff produced a buyer who was ready, willing and able to purchase the property on terms and conditions acceptable to the defendant. The terms and conditions were a total purchase price of $405,000, with $250,000 payable by a purchase money mortgage, the remainder to be paid in cash with the understanding that $100,000 would not be shown or disclosed on the closing documents. The plaintiff agreed to accept $30,500 as his brokerage commission in connection with the sale. Thereafter, the defendant refused to enter into the agreement and subsequently conveyed the property to Koehm for the stated price of $306,000 with $100,000 paid in cash on the day of the closing.

The plaintiff instituted this action to recover his brokerage commission on April 18,1983. After a motion for summary judgment filed by the defendant on May 17, 1983, was denied by the court on September 10, the case was tried to a jury. The court rendered judgment on the verdict. The defendant did not move to set aside the verdict.

In her first claim of error, the defendant attempts to appeal from the denial of her motion for summary judgment. This court has held that a denial of a motion for summary judgment is not appealable where a full trial on the merits produces a verdict against the moving party. Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 181-82 n.3, 485 A.2d 1360, cert. dismissed, 196 Conn. 802, 491 A.2d 1105 (1985). We see no reason, nor does the defendant suggest any, to depart from this sound policy which allows a decision based on more evidence preclude review of a decision made on less evidence. See Home Indemnity Co. v. Reynolds & Co., 38 Ill. App. 2d 358, 366, 187 N.E.2d 274 (1962).

“[A] motion to set aside a verdict is essential for a full review of claims of error in civil jury cases . . . .” Pietrorozio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981). Failure to file such a motion “limits our consideration of the issues raised in this appeal to ascertaining whether there has been ‘plain error.’ ” Id.; see also Geer v. First National Supermarkets, Inc., 5 Conn. App. 175, 177, 497 A.2d 999 (1985); Rozbicki v. Pelletier, 2 Conn. App. 87, 88, 476 A.2d 1069 (1984). Here, there was no motion to set aside the verdict, which impacts on the defendant’s second and third claims of error.

The defendant’s second claim of error is that the trial court erred in accepting a verdict in excess of the plaintiffs billing. Specifically, the defendant argues that the jury was confused and, as a result, rendered its verdict in excess of the $30,500 originally claimed by the plaintiff, along with interest which had not been alleged. We find the defendant’s claim unpersuasive. The plaintiff, in his amended complaint, specifically alleges damages in excess of $30,500. In the amended complaint, the plaintiff asked for damages of 10 percent of the purchase price plus 10 percent of the hidden price. The jury verdict of $40,600 comports with this allegation.

As for the interest, the defendant claims that since the plaintiff did not allege interest it should not be granted. It is well established, however, that interest need not be specifically claimed in the demand for damages in order to recover. Practice Book § 140. “ ‘The allowance of interest as an element of damages is primarily an equitable determination and a matter lying within the discretion of the trial court.’ ” State v. Stengel, 192 Conn. 484, 487, 472 A.2d 350 (1984). There is no plain error in the trial court’s determination that interest be considered for damages.

The defendant’s final claim is that the failure to disclose $100,000 of the purchase price by the plaintiff’s buyer contravened the public policy of the state. Specifically, the defendant claims that the plaintiff’s willingness to fail to disclose $100,000 of the purchase price was illegal for the purpose of avoiding tax consequences. This claim is wholly unsupported by the record. Whether the plaintiff had sustained his burden of proof was a matter for the jury to determine. “Every reasonable presumption should be given in favor of the correctness of the jury’s verdict.” B. Holden & J. Daly, Connecticut Evidence, § 35. This court has noted previously that when plain error standard of review is used “[s]uch review ‘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 (1986).” Mozzer v. Bush, 11 Conn. App. 434, 438, 527 A.2d 727 (1987). In the present case, we are unable to find anything resembling plain error.

There is no error.

In this opinion the other judges concurred.

       The plaintiff originally filed a cross appeal which was later withdrawn.

       Maltbie explains the necessity of the motion to set aside in stating: “The procedure in a jury trial has several distinct effects. First, a motion to set the verdict aside operates to delay the rendering of judgment as well as to secure judicial review of the propriety of the verdict.” W. Maltbie, Connecticut Appellate Procedure § 198.

       Paragraph 10 of the amended complaint states: “The commission due the plaintiff in accordance with the contract authorization is ten (10%) per cent of the sales price on the sale to Lorraine Shaw Koehm which stated in the warranty deed from Ida Kuhn to Lorraine Shaw Koehm to be $306,000. There is, accordingly, due from the defendant to the plaintiff a commission in the amount of $30,600, together with ten (10%) per cent of any portion of the purchase price by Lorraine Shaw Koehm which does not appear of record.”


text:
    State of Connecticut v. John A. Graham
    (5628)
    Borden, Bieluch and O’Connell, Js.

      Argued November 13, 1987 —
    decision released March 1, 1988

      Chester Fairlee, for the appellant (defendant).

      John F. Cocheo, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (1) and 53a-8, robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), larceny in the second degree in violation of General Statutes § 53a-123 (a) (2), and four counts of unlawful restraint in the first degree in violation of General Statutes §§ 53a-95 and 53a-8.

The defendant claims that the trial court erred (1) in admitting into evidence an eyewitness’ in-court identification of him, (2) in denying ids pretrial motion in limine to bar the prosecution’s use of the testimony of a witness who admitted that she had previously committed perjury, and (3) in allowing this witness to testify that she had previously given false testimony because she had been threatened, although the defendant was not connected to these threats. We find no error.

The jury could reasonably have found the following facts. On February 5, 1983, two masked men robbed the Medi Mart pharmacy on the Boston Post Road in Waterford. The two men were armed and stole cash and store merchandise, including almost one hundred wristwatches. The defendant and another man, Willie Thompson, were later arrested and charged with various crimes in connection with the robbery.

The case against the defendant consisted of the seven charges of which he was convicted and addressed whether the defendant was the second armed robber. The evidence at trial included the testimony of the state’s witness Tamara Vaill, an eyewitness to the robbery. Vaill testified as to her recollection of the incident including a description of the physical characteristics of the robbers. During the testimony of this witness, the state requested that the trial court order the defendant “to leave that defense table and to walk forward” towards the witness “to give the witness a chance to view him, a nontestimonial view.” Following the defendant’s objection, the state informed the court that the purpose of this request was to permit the witness to determine if the defendant’s height and body structure were consistent with the height and body structure of one of the robbers. Over the defendant’s objection, the court ordered the defendant to stand at his counsel’s table.

The state also called Dinah McNair, Willie Thompson’s niece, as a witness. McNair had given a signed statement to the police after the 1983 robbery indicating that she had overheard the defendant and her uncle plan this and other robberies. When called to testify at the defendant’s first trial, McNair had denied ever having heard the defendant and Thompson plan the robbery of the Medi Mart pharmacy in Waterford. At this retrial, McNair testified that she had in fact overheard a conversation between the defendant and her uncle, Willie Thompson, regarding a plan to rob the Medi Mart pharmacy in Waterford. McNair testified that the reason she had testified in 1983 inconsistently with her testimony at this trial was that she had been threatened with physical violence just before she testified in the first trial. The court allowed this evidence only for evaluation of the witness’ credibility over the objection of the defendant, but warned the jury in these words: “I want to caution you that first of all, there is absolutely no evidence whatsoever that this defendant, Mr, Graham, was in any way involved with any such threats. .... I allowed that evidence strictly so that you could evaluate that along with any other evidence that you might think appropriate in considering the — what weight you would give to this witness’ testimony.”

The defendant was convicted as charged. This appeal followed after sentencing.

I

The defendant’s first claim is that the trial court erroneously allowed an unnecessarily suggestive and unreliable in-court identification procedure when it ordered the defendant to stand at counsel table so that the witness, Tamara Vaill, could determine if his height and body structure were consistent with her previous description of the height and body structure of one of the robbers. The defendant argues that the in-court identification should not have been allowed because it was the product of a suggestive out-of-court conversation between the witness and police detectives and also because there was an insufficient foundation to show the reliability of the identification. In addition, the defendant maintains that the identification should have been excluded because its probative value was low and its prejudicial impact was high. Because we conclude that the procedure at trial was not for the purpose of identification, and because, even if it were, the identification procedure was not tainted by any impermissible out-of-court procedure and was neither unnecessarily suggestive nor unreliable, the defendant cannot prevail on this claim.

Our review of the record reveals that the trial court carefully considered the state’s request, and ordered the defendant to stand at counsel table only after the court was certain that the sole purpose of the state’s request was to enable the witness, who had earlier in her testimony described the robbers’ physical characteristics, to compare the defendant’s body structure and height with her previous description of one of the robbers. The court excused the jury as soon as the state made its request and proceeded to question the state as to the precise nature and purpose of its request. The court noted that the witness had already described the physical characteristics of the robbers and granted the state’s request over the defendant’s objection, saying “I think that this is something that the jury has to evaluate. I see no great difference between someone identifying the [defendant] by . . . facial characteristics when he is the only person sitting at counsel table. That is done all the time, and the jury, of course, takes that into consideration.”

Before the jury returned, the court once again made sure that the witness was not going to be asked to describe the robber based on her in-court observation of the defendant. The court also asked that the state lay more of a foundation “by asking [the witness] if she recalls those [physical characteristics] and whether she could identify an individual by those characteristics or identify those characteristics in an individual at this time.” The court made clear that this foundation must be laid to permit the requested procedure: “If she cannot, of course that takes care of it.” The court went on to explain its reasons for permitting the procedure upon a proper foundation by stating “[s]he is not going to — it is my understanding, she is not going to say Mr. Graham is the individual. She cannot. This is — she is simply going to either conclude — her testimony is simply whether or not his certain characteristics are consistent with the individual who conducted the robbery.” The state thereupon commenced its voir dire examination of the witness regarding her recollection of the height and body structure of the two individuals who robbed the Medi Mart pharmacy.

The court also conducted a voir dire of the witness, asking her whether she “could identify a — those physical characteristics, height and body build and — in this individual, just to the extent as to whether a person fell into that category or not.” The witness replied that she could and also, in response to further questioning by the court, that she was basing her description only upon her recollection of what had occurred at the time of the robbery. The court then concluded that “the witness has demonstrated that she is capable of making or not making this identification. Not — it really is not an identification, simply testimony as to whether or not this defendant fits into the category along with maybe a million other people.” In response to the defendant’s objection that the probative value of the evidence was low and its prejudicial impact was high, the court stated that the evidence was not prejudicial and that its probative value was “probably in the category of not better than something like blood exclusion tests, for example. ... I think it is circumstantial evidence. It would not be enough to, by itself, to warrant a conviction. It is not an identification.”

With the jury still out of the courtroom, the state amended its request and asked that the defendant only be required to stand at counsel table while the witness approached him for a full view. The court accepted this change, but suggested a trial run of the procedure. The defendant was ordered to stand at counsel table and the witness was allowed to stand approximately six feet away to make her observation. Once again, the court noted on the record that the procedure was merely for the stated purpose of ascertaining whether the defendant’s height and body structure were consistent with those of either of the two men who robbed the Medi Mart pharmacy on February 5, 1983.

After the jury returned to the courtroom, the defendant was asked to stand and the witness came down and stood approximately six feet away, looking at the defendant’s height and body size. The state asked if the defendant’s height and body size were similar to those of either of the two robbers. The witness responded that the defendant’s height and size were consistent with the height and body size of the shorter of the two men who robbed the pharmacy. At no time during this procedure did the witness identify the defendant as one of the robbers based on her in-court observation of his physical characteristics.

Even if we assume, arguendo, that this was an identification procedure, this procedure had no greater tendency to suggestiveness than an identification of an accused seated at counsel table. “Any one-on-one in-court identification of an accused conveys the message that the state has arrested and placed on trial a person it believes has committed the crime. Baker v. Hocker, 496 F.2d 615, 617 (9th Cir. 1974). That is the factor that creates the element of suggestiveness, not the extra steps taken here to allow the victim to observe the defendant thoroughly before identifying him.” State v. Smith, 200 Conn. 465, 468-69, 512 A.2d 189 (1986).

In State v. Smith, supra, our Supreme Court upheld the conviction of a defendant whose identity was confirmed at trial after he was ordered to walk to the area of the witness stand and to recite his name, address and the alphabet. The defendant in Smith conceded that he could be required to stand to be identified, but argued that the order that he approach the victim and speak was unnecessarily suggestive and conducive to misidentification. The court, noting the absence of any unnecessarily suggestive out-of-court pretrial identification procedure, upheld the discretion of the trial court to permit the in-eourt procedure.

The defendant in our case argues that an unnecessarily suggestive out-of-court identification procedure

occurred by claiming that police detectives told the witness before trial that the defendant was one of the men who had committed the robbery. The defendant argues that this suggestive comment occasioned or led to the witness’ testimony as to the height and body structure of the defendant.

We find no evidence that any comments made by the police to the witness influenced her description of the robbers. Our review of the transcript convinces us that the witness’ description was the result of her observations on the day of the robbery, and not of any comments made to her by the police.

“ ‘The [United States] Supreme Court has not extended its exclusionary rule to in-court identification procedures that are suggestive because of the trial setting.’ United States v. Domina, [784 F.2d 1361, 1369 (9th Cir. 1986)]. ‘There is no constitutional requirement that an in-court identification confrontation be conducted as a lineup or be otherwise free of suggestion. An in-court testimonial identification must be excluded if it is the product of an out-of-court confrontation arranged by the state, which was unnecessarily suggestive and conducive to irreparable misidentiflcation.’ Commonwealth v. Wheeler, 3 Mass. App. 387, 391, 331 N.E.2d 815 (1975). ‘[Without more, the mere exposure of the accused to a witness in the suggestive setting of a criminal trial does not amount to the sort of impermissible confrontation with which the due process clause is concerned.’ ” State v. Smith, supra, 469-70; State v. Cubano, 9 Conn. App. 548, 554-55, 520 A.2d 250 (1987).

“ ‘The general rule regarding in-court identification of a defendant where there has been no pretrial identification is that it is admissible within the discretion of the trial court, with the weight of the identification to be determined by the jury.’ ” State v. Elliott, 8 Conn. App. 566, 571, 513 A.2d 1285, cert, denied, 201 Conn. 813, 517 A.2d 630 (1986), quoting State v. Frazier, 7 Conn. App. 27, 37, 507 A.2d 509 (1986). “The defendant’s protection against the obvious suggestiveness in any courtroom identification confrontation is his right to cross-examination. . . . The innate weakness in any in-court testimonial identification is grounds for assailing its weight rather than its admissibility.” (Citations omitted.) State v. Smith, supra, 470.

The manner in which a trial court conducts an in-court identification procedure rests within that court’s sound discretion. Id. In Smith, our Supreme Court concluded that the trial court did not abuse its discretion or violate the defendant’s due process rights in granting the state’s request that the defendant approach the witness and speak in order to confirm her previous identification of him. In our case, the defendant was merely asked to stand silently at counsel table in order for the witness to ascertain whether his body structure and height were consistent with those of either of the two men who had committed the robbery in question. The witness at no time, either before trial or at trial, specifically identified the defendant as one of the robbers. Even if the procedure employed in this case is considered as an identification procedure, the trial court did not err in permitting the procedure to occur.

II

The defendant next claims that the trial court erred by refusing to grant his pretrial motion in limine to bar the prosecution’s use of the testimony of Dinah McNair, a witness who admitted that she had falsely testified at the defendant’s first trial that she had not overheard the defendant and her uncle, Willie Thompson, plan the robbery in question, when in fact she had previously given a written statement to the police stating otherwise.

McNair testified at trial that her original written statement to the police after the robbery was an accurate and true statement regarding the conversation she overheard between the defendant and Thompson regarding their plan to rob the Medi Mart pharmacy in Waterford. The witness also testified that the reason she had lied at the defendant’s previous trial was because she had been threatened with physical violence prior to her testimony.

The court did not err in denying the pretrial motion and in admitting this testimony. The record discloses that the defendant exercised his right and opportunity to cross-examine the witness. The fact of McNair’s previous perjury, and her reason for lying in court at the first trial, were clearly set out before the jury. The jury, in the proper exercise of its function, had the opportunity to judge the credibility of the witness and the weight of her testimony. “The jury, as the trier of fact, determines the credibility of witnesses, and it is not the province of this court to retry the facts or to determine the weight which should have been accorded witnesses’ testimony.” S tate v. Findlay, 198 Conn. 328, 334, 502 A.2d 921, cert, denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). “It is within the province of the jury to determine the credibility and the effect to be given the evidence.” State v. Nicoletti, 8 Conn. App. 351, 354, 512 A.2d 235 (1986).

Ill

The defendant also claims that the court erred in allowing McNair to testify that she had perjured herself in the defendant’s first trial because she had been threatened with physical violence prior to that testimony. The defendant objected to the admission of this testimony because, as the jury was later told by the trial court, the defendant was not connected to these threats.

Evidence of threats made against a witness in a criminal prosecution is generally admissible when such threats were made with the defendant’s knowledge, consent, or authorization. This type of evidence is admissible either on the theory that such conduct is inconsistent with the defendant’s claim of innocence or on the theory that the conduct exhibits a consciousness of guilt. State v. Leeean, 198 Conn. 517, 534, 504 A.2d 480, cert, denied, 1176 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Sorbo, 174 Conn. 253, 256, 386 A.2d 221 (1978); State v. Waterman, 7 Conn. App. 326, 351, 509 A.2d 518, cert, denied, 200 Conn. 807, 512 A.2d 231 (1986). Where, however, as in our case, there is no evidence to connect the defendant with the threats, evidence of such threats is not admissible against him. State v. Sorbo, supra; State v. Waterman, supra.

In this ease, however, the trial court did not err in allowing the witness to testify that she was threatened prior to her testimony in the defendant’s first trial because such evidence was admitted for the limited purpose of determining her credibility, and not as probative of the defendant’s guilt. The court was careful to caution the jury that there was no evidence that the defendant was in any way involved in those threats. The court also instructed the jury that the testimony of the witness was allowed “strictly so that you could evaluate that along with any other evidence that you might think appropriate in considering the — what weight you would give to this witness’ testimony.” These specific instructions were more than adequate to prevent the jury from connecting the defendant to the alleged threats made against the witness and from using against the defendant the evidence of those threats.

There is no error.

In this opinion the other judges concurred.

       Thompson was subsequently convicted of having been one of the armed robbers in this holdup.

       The defendant was previously tried and convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (1) and 53a-8, larceny in the second degree in violation of General Statutes § 53a-123 (a) (2), and unlawful restraint in the first degree in violation of General Statutes §§ 53a-95 and 53a-8. On appeal, the defendant’s convictions were reversed because of evidentiary errors which occurred at trial. See State v. Graham, 200 Conn. 9, 509 A.2d 493 (1986). This appeal addresses issues which arose from the defendant’s second trial.

       At the defendant’s firsc trial, the court declared McNair “hostile” and permitted the state to impeach her testimony with the prior inconsistent statement concerning the Medi Mart robbery. The state then was also permitted to inquire as to the other robberies mentioned by McNair in her statement to the police. Our Supreme Court found that the trial court erred in allowing the state to elicit testimony as to the defendant’s involvement in othe robberies. See State v. Graham, 200 Conn. 9, 14, 509 A.2d 493 (1986).

       The court’s complete instruction to the jury was as follows: “I just want to caution you about that. The witness has testified that she was threatened. I want to caution you that first of all, there is absolutely no evidence whatsoever that this defendant, Mr. Graham, was in any way involved with any such threats. And you should not consider in any way that he was, because there is — it is absolutely nothing along those lines. I allowed that evidence strictly so that you could evaluate that along with any other evidence that you might think appropriate in considering the — what weight you would give to this witness’ testimony.
      “In other words, there is nothing at all to indicate that Mr. Graham was in any way involved in those threats. And so you cannot — anyway, there is no way that you can attach liability on that to him. But you can consider that in giving — considering the weight that you would afford this witness’ testimony.”


text:
    Charles J. Bucko v. City of New London et al.
    (5698)
    Dupont, C. J., Spallone and Norcott, Js.
    Argued January 12 —
    decision released March 1, 1988

      Gary S. Starr, with whom was Gregory J. Garner, for the appellant (named defendant).

      Charles L. Flynn, for the appellee (plaintiff).
   Spallone, J.

The named defendant appeals from the

decision of the compensation review division affirming an award in favor of the plaintiff made by the workers’ compensation commissioner.

The defendants are the city of New London and its workers’ compensation insurer. On appeal, the defendant city claims, in essence, that the award of the commissioner and its affirmation by the compensation review division was inconsistent with the record and findings and constituted a misapplication of the appropriate law. We disagree.

The commissioner made the following findings of fact. On September 26, 1939, the plaintiff underwent a physical examination, required by city ordinance for all persons who were seeking to become supernumerary police officers in the city of New London. The physical examination revealed no evidence of heart disease or hypertension. On November 6, 1940, the plaintiff was appointed a supernumerary police officer and continued as such, on a full-time basis, until May 1,1945, when he was appointed to the position of patrolman C. On October 6,1947, he was promoted to patrolman B. Prior to the last appointment, the plaintiff, on September 10,1947, as a result of another physical examination, was found to have “mild hypertension.”

On August 24, 1976, the plaintiff suffered a heart attack and was hospitalized. Subsequently, he filed a claim under General Statutes § 7-433c. After a hearing was duly held, the issue of liability was found in the plaintiffs favor by the commissioner. The defendants appealed to the compensation review division which affirmed the commissioner’s award of benefits to the plaintiff. The named defendant now appeals the decision of the review division to this court.

We see nothing in the record which supports any claim of error in the commissioner’s findings and conclusions that the plaintiff qualified for benefits under § 7-433c.

In pertinent part, General Statutes § 7-433c provides that, in order to be eligible for benefits, the claimant must be a “regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease.” There is no question that the plaintiffs physical examination, conducted on September 26, 1939, revealed no hypertension or heart disease. There is similarly no question that, upon his appointment to “temporary C” patrolman in 1945, the plaintiff worked only for the city of New London, was assigned to a regular shift, received regular wages, was entitled to vacation and illness benefits and performed the traditional functions of a full-time police officer. This continued to be true from May of 1945, through the plaintiffs tenure as a patrolman C, after his diagnosis of mild hypertension in September of 1947 and his subsequent promotion to patrolman B one month later, until August of 1976 when the plaintiff suffered a heart attack.

The city claims that the plaintiff’s status prior to the medical examination of September 10, 1947, which revealed the mild hypertension, was not that of a “regular member of a paid municipal police department” but rather was a temporary appointment and therefore outside the eligibility requirements of § 7-433c. This argument is not tenable under the facts and circumstances of this case. Nowhere in § 7-433c is there a requirement that any appointment to the regular police force must be a “permanent” appointment. The qualifiers “permanent” or “temporary” are not mentioned in the statute; the only stated prerequisite to the collection of benefits is that the claimant must be a “regular member of a paid municipal police department.” (Emphasis added.)

The defendants pressed for their construction of the term “regular” as including some sense of permanency to both the commissioner and the compensation review division. The commissioner resolved this dispute in favor of the plaintiff and the review division affirmed that decision. “Our role is to determine whether the review division’s decision results ‘from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’ Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979); Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196, 497 A.2d 435 (1985).” Aurora v. Miami Plumbing & Heating Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986); see also Grady v. St. Mary’s Hospital, 179 Conn. 662, 669, 427 A.2d 842 (1980); Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859 (1968).

The facts and circumstances of this case fully warranted the conclusion that the plaintiff was “a regular paid member of a municipal police department” and thereby entitled to benefits under General Statutes § 7-433c. See Kevorkian v. Peter Paul, Inc., 3 Conn. App. 335, 488 A.2d 102 (1985). The commissioner’s decision not only reflected a correct application of the appropriate law, it also promoted a manifestly just result.

There is no error.

In this opinion the other judges concurred.

       This appeal is brought pursuant to General Statutes § 31-301b.

       “[General Statutes] Sec. 7-433c. benefits for policemen or firemen DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR HEART DISEASE. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.” (Emphasis added.)

       The crux of the defendants’ claim is that the designation of “temporary C” patrolman, to which the plaintiff was appointed in 1945, precludes a finding that the plaintiff had “regular” status. The “temporary C” classification, as found by the commissioner and undisputed by the parties, meant only that a returning World War II veteran had a superior right to the position held by the plaintiff. That designation had no effect on the duties performed by the plaintiff nor did it make his status in some way probationary. The defendants’ argument that the plaintiffs susceptibility of being replaced by a returning soldier did not make him a regular police officer is not persuasive.


author: Dupont, C. J.

text:
    Michael Hanlon v. Joan Stettbacher
    (5254)
    Dupont, C. J., Stoughton and Foti, Js.
    Argued November 4, 1987 —
    decision released March 8, 1988

      Michael P. Farrell, for the appellant (plaintiff).

      Stanley E. Parese, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the judgment rendered for the defendant after a jury returned a general verdict for the defendant.

The jury could reasonably have found certain facts. The plaintiff rented a lakefront cottage, which included a raised diving platform with a diving board, from the defendant for a week. The plaintiff was injured when he struck the bottom of the lake after diving from the board. The plaintiff testified that prior to the dive he had consumed between eight to ten beers as well as one or two multiliquor “punch drinks.” The plaintiff further testified that he executed the dive in the dark, without ever having checked the depth of the water.

The plaintiff alleged in his complaint that the accident was a result of the defendant’s negligence in maintaining the diving board in a hazardous condition, and failing to warn him of the shallowness of the water. The defendant denied being negligent and, by way of a special defense, alleged that the plaintiff was contributorily negligent. Neither party requested interrogatories to be presented to the jury for the purpose of explaining or limiting the general verdict. Practice Book § 312. It must be presumed, therefore, that the jury found every issue for the defendant. LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982).

The plaintiff claims that the trial court erred (1) in failing to instruct the jury that the defendant’s state of mind was irrelevant to the standard of care owed by the defendant to the plaintiff, (2) in admitting into evidence a movie of the diving board in use thirty years prior to the accident, and (3) in admitting testimony concerning prior use of the diving board.

“[A] general verdict must stand if the jury could have found for the defendant on any one of the material issues it had to decide.” Murteza v. State, 7 Conn. App. 196, 202, 508 A.2d 449, cert, denied, 200 Conn. 803, 510 A.2d 191 (1986). Where a jury has returned a general verdict for a defendant, it is impossible to know whether the case was resolved on the basis of the plaintiffs failure to prove the case against the defendant or on the basis of the defendant’s successful assertion of a special defense. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142 n.5, 491 A.2d 389 (1985); Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982).

“The defendant’s denial of negligence and [her] allegation of contributory negligence constitute two separate and distinct defenses, either one of which could support the jury’s general verdict.” LaFleur v. Farmington River Power Co., supra, 342. “If ‘the court’s instructions are shown to be proper and adequate as to any one of the defenses raised, the general verdict will stand irrespective of any error in the charge as to the others.’ ” Id., 343.

The claimed error in the charge related to the proof necessary for the plaintiff to prevail on his case against the defendant, and was irrelevant to the issue of whether the plaintiff was contributorily negligent. Since the jury is presumed, as a consequence of its general verdict, to have found for the defendant on her special defense of contributory negligence, the claimed error in the charge relating to the defendant’s negligence need not be considered. LaFleur v. Farmington River Power Co., supra, 343.

The plaintiff’s two remaining claims of error involve evidentiary rulings. Both claims of error relate only to the negligence of the defendant. Neither error relates to evidence concerning the contributory negligence of the plaintiff. The evidence admitted was not admitted because of its dual relevancy to the negligence of the defendant and the contributory negligence of the plaintiff. See Sanderson v. Steve Snyder Enterprises, Inc., supra. Since the operation of the general verdict rule raises the presumption that the jury found that the plaintiff was more than 50 percent contributorily negligent, the claimed errors relating to the allegedly erroneous admission of evidence relating to the defendant’s negligence need not be considered.

There is no error.

In this opinion the other judges concurred.


author: Per Curiam.

text:
    Parkview Paving Company, Inc. v. City of New Haven et al.
    (4798)
    Spallone, Daly and O’Connell, Js.
    Argued January 21 —
    decision released March 8, 1988

      Steven B. Kaplan, for the appellant (plaintiff).

      H. Gordon Hall, for the appellees (defendants).
   Per Curiam.

The plaintiff challenges a judgment rendered by the trial court in a breach of contract action brought by the plaintiff. The trial court found that the plaintiff, and not the defendant, breached the landscaping contract and that the plaintiff could not recover the value of materials and services allegedly provided. We find no error.

“An appellate court may not retry facts and its duty upon review of such a claim is limited to a determination of whether the trial court’s judgment was clearly erroneous in this respect or otherwise contrary to law. Practice Book § 4061; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Ram Roofing & Sheet Metal Co. v. A.B.C. Plumbing & Heating, Inc., 2 Conn. App. 54, 56, 475 A.2d 341 (1984). It is the province of the trial court to pass upon the credibility of witnesses and the weight to be accorded the evidence. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984). This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984).” Nulman’s Appeal from Probate, 13 Conn. App. 811, 812-13, 527 A.2d 731 (1988).

After review of the record and arguments presented in this appeal, it is clear that the court did not err in concluding that the plaintiff breached the contract. The factual findings of the court are fully supported by the evidence and are legally correct.

There is no error.


author: Norcott, J.

text:
    State of Connecticut v. Patrick Kennedy
    (5575)
    Daly, O’Connell and Norcott, Js.
    Argued November 19, 1987 —
    decision released March 8, 1988

      Gail A. Heller, deputy assistant public defender, for the appellant (defendant).

      Irving L. Aronson, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction of larceny in the second degree in violation of General Statutes § 53a-123. He claims that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Because the defendant fled the jurisdiction and has failed to submit himself to the jurisdiction of this court, we dismiss his appeal.

The defendant was arrested and charged in connection with the theft of jewelry from an unattended and unlocked display case at a department store on February 15, 1986. On September 12, 1986, the defendant was brought to trial before a jury of six on the charge of larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a) (2). The defendant who was at liberty under bond was in attendance throughout the presentation of evidence but fled while the jury was deliberating. According to his counsel, the defendant has not been heard from since that time. On September 16, 1986, the jury found the defendant guilty of the lesser included offense of larceny in the second degree. The trial court subsequently sentenced the defendant in absentia to a term of ten years. Thereafter, the defendant’s counsel filed a timely appeal to this court notwithstanding the defendant’s continued absence from the jurisdiction.

In State v. Leslie, 166 Conn. 393, 349 A.2d 843 (1974), our Supreme Court dismissed the appeal of a defendant who had escaped after his conviction and was still a fugitive when his appeal was heard. In so holding, that court, quoting the United States Supreme Court, noted: “ ‘No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.’ Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S. Ct. 498, 24 L. Ed. 2d 586 [1970].” State v. Leslie, supra, 395. The rationale expressed in Leslie is applicable to this case. We refuse to hold that a defendant who flees before he is convicted is entitled to greater appellate rights than one who awaits the outcome of trial.

Defense counsel asserts that this court should hear the present appeal, notwithstanding the clear applicability of the holding in Leslie to the facts of this case, because it involves the claim of a violation of a fundamental constitutional right. Defense counsel claims that in Tyler v. Bronson, 12 Conn. App. 621, 625 n.3, 533 A.2d 570 (1987), this court created an exception to the general rule expressed in Leslie. In Tyler, we noted that we might review an egregious constitutional error on habeas corpus even if the defendant had waived his appellate rights because he had fled the jurisdiction. The notation in Tyler, however, is inapplicable to this case. Even though the defendant’s claims involve a fundamental constitutional right, they are not the sort of egregious constitutional error described in Tyler Second, our indication that we might review a defendant’s claim on habeas corpus if the defendant returns to the jurisdiction in no way indicates that we will review a defendant’s claims of error, egregious or otherwise, where the defendant voluntarily continues to be absent from the jurisdiction.

The appeal is dismissed.

In this opinion the other judges concurred.

       In Tyler v. Bronson, 12 Conn. App. 621, 624-25, 533 A.2d 570 (1987), we held that a defendant who flees before being informed of his right to appeal is nonetheless deemed to have forfeited his rights to the appellate process if he does not file a timely appeal.

       An example of an egregious constitutional error would be if the court entered a directed verdict of guilty after the defendant’s failure to appear. Tyler v. Bronson, 12 Conn. App. 621, 625 n.3, 533 A.2d 570 (1987). No such clear abuse of the defendant’s right to a fair trial is alleged in this case.