author: Spallone, J.

text:
    Pamela Barone Speed, Executrix (Estate of Mildred F. Barone) v. Anthony F. DeLibero et al.
    (6906)
    Spallone, O’Connell and Lavery, Js.

      Argued September 18
    decision released October 23, 1990

      Christopher D. Bernard, with whom, on the brief was Richard A. Fuchs, for the appellant (plaintiff).

      Arnold J. Bai, with whom, on the brief, was Garie J. Mulcahey, for the appellees (defendants).
   Spallone, J.

This appeal is before us on remand from our Supreme Court.

The plaintiff is the executrix of the estate of the decedent, Mildred Barone. She brought this action against the defendants, Anthony DeLibero, a physician, and Anthony DeLibero, M.D., P.C., alleging that DeLibero negligently administered general anesthesia to the plaintiff’s decedent during an outpatient medical procedure, thereby causing her death. After a jury trial, a verdict was returned in favor of the defendants. The plaintiff appealed to this court, claiming that the trial court (1) unfairly and inaccurately summarized the evidence in its charge to the jury, (2) improperly denied the defendants’ motion for mistrial, in which the plaintiff had joined, and the plaintiffs motion in arrest of judgment, both of which were based on jury misconduct, and (3) gave a supplemental charge to the jury that was erroneous and prejudicial to the plaintiff. We concluded that the trial court improperly denied the motion for a mistrial and the motion in arrest of judgment and deemed it unnecessary to consider the plaintiff’s other claims. We then remanded the case for a new trial. Speed v. DeLibero, 19 Conn. App. 95, 561 A.2d 959 (1989).

The Supreme Court certified the question of whether the jury’s action constituted misconduct. The Supreme Court concluded that there was no juror misconduct and reversed our decision, remanding the case for our consideration of the remaining issues. Speed v. DeLibero, 215 Conn. 308, 316, 575 A.2d 1021 (1990). We conclude that the trial court’s supplemental instructions to the jury were erroneous and prejudicial to the plaintiff. Because this issue is dispositive we do not reach the plaintiff’s other claims.

The following facts are relevant to this appeal. On September 10,1982, Mildred Barone, age 62, entered the Short Stay Center at St. Vincent’s Hospital in Bridgeport to undergo an elective, nonsurgical, outpatient procedure that was performed under general anesthesia. While under general anesthesia administered by DeLibero, Barone was deprived of oxygen for long enough to have suffered extensive, irreversible brain damage. She died eleven days later without regaining consciousness. The executrix of Barone’s estate subsequently brought suit to recover damages for medical malpractice alleging that the decedent’s “severe and painful injuries and death were caused by the failure of the defendants herein to exercise that degree of care and skill ordinarily and customarily used by anesthesiologists under all the circumstances then and there present in that they . . . (b) failed to adequately, and properly observe and monitor the plaintiff’s decedent by use of a cardiac monitor and/or blood pressure cuff and/or a precordial stethoscope and general eyeball observation during anesthesia.”

In its supplemental charge, the trial court instructed the jury that they must accept that DeLibero used a cardiac monitor and blood pressure cuff during the procedure. DeLibero testified to this effect and his testimony was uncontradicted. It must be noted, however, that the jury has no obligation to accept the defendant’s testimony as fact and that the court may not direct the jury to find facts and thereby invade the province of the jury.

A litigant has a constitutional right in appropriate cases to have issues of fact decided by a jury. Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961); Shea v. Paczowski, 11 Conn. App. 232, 234, 526 A.2d 558 (1987). The jury determines the credibility of the witness and the effect to be given testimony; Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981); State v. Grant, 177 Conn. 140,142, 411 A.2d 917 (1979); and it determines the weight to be given the evidence. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). It is the jury’s right, and duty, to consider evidence, draw logical deductions and make reasonable inferences. State v. Schoenbneelt, 171 Conn. 119,126, 368 A.2d 117 (1976); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d 125 (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).

Paragraph 6 (b), as an allegation of malpractice, could sustain a plaintiffs verdict if accepted by a jury. That Delibero, as a defendant, had a high degree of interest in the outcome of this case is obvious. The jury should have been allowed to consider his demeanor, credibility, and veracity, and to determine the appropriate weight, if any, to be given his testimony. The intrusion by the trial court in this area was unwarranted and usurped the factfinding function of the jury. The instruction that the jury must accept that Delibero used a cardiac monitor and blood pressure cuff during the procedure denied the jury its factfinding function. The jury should have had the option to reject this testimony. The supplemental charge by the trial court denied the litigants their “constitutional right to have issues of fact decided by the jury and not by the court.” (Citations omitted.) Adroline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954).

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The following charge was given: “I charge you that you may not find that Dr. DeLibero did not use any of the instruments listed, except for a precordial stethoscope. Put another way you must accept that Dr. DeLibero did use a cardiac monitor and a blood pressure cuff in the course of his treatment.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Robert C. Chapman v. Zoning Board of Appeals of the Town of Old Lyme et al.
    (8674)
    Daly, O’Connell and Cretella, Js.
    Argued October 1
    decision released October 11, 1990

      John S. Bennet, with whom was Robert J. Larson, for the appellant (plaintiff).

      David M. Royston, for the appellees (defendants).
   Per Curiam.

This is an appeal from the judgment of the trial court dismissing the plaintiff’s zoning appeal. The plaintiff applied for a variance to the Old Lyme zoning board of appeals, which denied the application. Upon our granting of certification, the plaintiff appealed to this court. The plaintiff sought a variance from zoning regulations governing minimum lot area, side yard area, and rear yard area in order to construct a 1380 square foot house. The record reveals that the plaintiff purchased the lot in 1962, sold it, and then repurchased it in 1969. Both purchase dates occurred after the enactment of the minimum area regulations. The property is located on the west shore of Rogers Lake in Old Lyme, an area consisting of small parcels, a number of which contain seasonally used cottages. The area is located in an RU-80 zone which requires a building lot to consist of a minimum of 80,000 square feet. The plaintiff’s parcel is only 20,900 square feet. The zoning board noted that the actual market value was $3000, a minimal sum relative to the value that the property would have if it were a developable parcel. The board unanimously rejected the application for a variance, concluding that the applicant failed to establish that a unique hardship existed or that the land would lose value as a result of the denial of the variance.

The thrust of the plaintiff’s argument on appeal is that the enforcement of the zoning regulations caused the plaintiff unusual hardship entitling him to a variance under General Statutes § 8-6 (3) and constituted a taking without just compensation under the state and federal constitutions. General Statutes § 8-6 (3) authorizes the board to grant a variance, if the variance would not substantially affect the comprehensive zoning plan and adherence to the ordinances caused unusual hardship, unnecessary to implement the general purpose of the plan. Grillo v. Zoning Board of Appeals, 4 Conn. App. 205, 208, 493 A.2d 275 (1985). A hardship must be different in kind from that generally affecting properties in the same zone. Green v. Zoning Board of Appeals, 4 Conn. App. 500, 503, 495 A.2d 290 (1985). If any one of the board’s reasons is sufficient to support the denial of the variance, its decision must be upheld. R. B. Kent & Son, Inc. v. Planning Commission, 21 Conn. App. 370, 373, 573 A.2d 760 (1990). Here, other lots in the same zoning district as the plaintiff’s also were nonconforming. Therefore, the record supports the board’s conclusion that the plaintiff did not suffer any unusual or unique hardship. Nor did the denial of the variance constitute an illegal taking. A taking occurs when there is a substantial interference with private property that destroys or nullifies its value or by which the owner’s right to its use or enjoyment is in a substantial degree abridged or destroyed. Textron, Inc. v. Wood, 167 Conn. 334, 346, 355 A.2d 307 (1974).

The plaintiff argues that he proved loss of value, but the board improperly disregarded expert testimony of this loss. Factual issues, including the credibility of witnesses, are within the province of the agency. Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980). The evidence was sufficient to support the board’s conclusion that there was no taking. The plaintiff purchased a lot at a minimal price because it was nonconforming under then current zoning regulations. The denial of the variance maintains the status quo.

The plaintiff further claims that the board exceeded its authority by considering matters that were outside its jurisdiction. This claim has no merit because we con-elude that the trial court’s decision was not clearly erroneous when it found that the board’s decision was fully supported by the record.

The judgment is affirmed.


author: Cretella, J.

text:
    Patrick Gilbertie et al. v. Zoning Board of Appeals of the Town of Wilton et al.
    (8688)
    Daly, O’Connell and Cretella, Js.
    Argued September 25
    decision released October 30, 1990

      Benjamin Gershberg, for the appellants (defendants).

      Simon Sumberg, for the appellee (plaintiff).
   Cretella, J.

The defendants appeal from a reversal by the trial court of the defendant board’s actions sustaining, in part, a cease and desist order issued by the zoning enforcement officer of the town of Wilton. They claim that the trial court improperly found that the board’s decision to uphold the cease and desist order was not supported by the evidence presented to it.

In 1968, the plaintiffs, husband and wife, constructed and occupied, as their principal residence, a house in the town of Wilton located in a one acre residential zone. At that time, the zoning regulations permitted them to conduct a plumbing repair and supply business from their residence, as they did continually until the present situation arose. During that period of time, plumbing supplies were regularly delivered to the residence via their driveway off of Salem Road and were stored in both the garage attached to the residence and a detached garage that had a separate driveway off of Grumman Hill Road. In 1972, the town’s zoning regulations were amended to prohibit the delivery and storage of the stock in trade on the property.

The regulation in existence in 1968 allowed the business to be conducted from the residence, provided that it did not create any disturbance, fire or safety hazard, or noise. There was no evidence submitted to the board that during the period of time from 1968 to 1988 the plaintiffs were ever advised, cautioned or notified that the operation was creating any safety hazard or disturbance. Their first notice of any problem appears to have been in early 1988 when the plaintiffs were contacted by the zoning enforcement officer.

Following the issuance of the cease and desist order dated February 12,1988, the plaintiffs appealed to the zoning board of appeals. After a public hearing was held, the board affirmed and denied various portions of that order. The only issue raised on this appeal is the order of the board prohibiting the delivery of supplies to the residence from the Salem Road driveway.

The board confirmed that the use of the residential property to conduct the plumbing business was permitted under the 1968 regulations. Both the board and the trial court concluded that, under the 1972 amended regulations, the plaintiffs operation became a nonconforming use. The issue before the trial court was whether the actions of the defendant board resulted in an improper restriction on continuing that nonconforming use. The trial court concluded that it did and we agree.

In order to support the board’s finding and order, the board had to find that the operation being conducted on the plaintiffs’ property in 1988 was materially changed from the type of operation conducted in 1968. The law relating to a nonconforming use protects the rights of a user to continue the same use of the property as existed prior to the adoption of the zoning regulations. Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981). The simple fact that there is an increase in the amount of business does not equate to an illegal expansion of a nonconforming use. Cummings v. Tripp, 204 Conn. 67, 91-92, 527 A.2d 1230 (1987).

The defendants contend that by definition a nonconforming use is one that was both in existence at the time that the 1972 regulations were adopted and lawful at that time. This court does not take issue with that definition.

The defendants further argue that because the plaintiff’s operation may have created a disturbance, noise or safety hazards in 1968, it was thus not being lawfully conducted at that time. Accordingly, the defendants contend that they can now impose restrictions on the nonconforming use to correct any deficiencies that may have existed in 1968 and that they claim exist at the present time. This argument is conjecture and without merit. Therefore, we reject it.

The trial court was correct in concluding that the evidence presented to the defendant board did not support the board’s actions.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this action are the Wilton zoning board of appeals and the Wilton town clerk.


author: Norcott, J.

text:
    State of Connecticut v. David Pagano
    (7445)
    Daly, Norcott and Cretella, Js.
    Argued September 13
    decision released October 30, 1990

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

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of interfering with an officer in violation of General Statutes § 53a-167a, and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). He challenges the trial court’s refusal to instruct the jury on diminished capacity.

The jury could have reasonably found the following facts. At approximately 1:42 p.m. on September 10, 1986, the defendant, David Pagano, was involved in an automobile accident in East Haven. He told the responding police officer, Thomas Fenton of the East Haven police department, that he had tried to kill himself by driving into a telephone pole. Fenton administered standard field sobriety tests and concluded that the defendant was not under the influence of alcohol or drugs. He then sent the defendant to Yale-New Haven Hospital because of the defendant’s stated intent to commit suicide.

At the hospital, the defendant was placed in the crisis intervention unit (CIU), a small locked unit primarily for psychiatric and substance abuse patients. Approximately one hour after his arrival, the defendant asked mental health worker Leroy Wright for cigarettes. When his request was denied, the defendant became belligerent and, with another patient, started rifling the nurses’ station for cigarettes. Wright then called security for assistance.

New Haven police officers Guy Gennette and Reginald Wiltshire were the first members of the security force to respond to Wright’s call. Gennette escorted the defendant to his room while Wiltshire attempted to do the same with the other patient involved. Somewhere near the door of the defendant’s room, the defendant punched Gennette and broke his nose. A struggle ensued in the defendant’s room. During the course of the fight, the defendant struck Gennette on the head with Gennette’s two-way radio. Several other security officers came to Gennette’s aid, subdued the defendant, and placed him in restraints on a hospital bed.

The defendant was charged in two counts: (1) assault of a peace officer in violation of General Statutes § 53a-167c (a) (1); and (2) assault in the second degree in violation of General Statutes § 53a-60 (a) (2). On the first count, the defendant was found guilty of the lesser included offense of interfering with an officer in violation of General Statutes § 53a-167a. The defendant was found guilty as charged of assault in the second degree under the second count.

The defendant challenges the trial court’s refusal to charge the jurors that, under the facts of this case, they could conclude that diminished capacity negated the defendant’s criminal intent. The defendant requested such a charge and excepted to the trial court’s refusal to grant his request. We disagree with the defendant.

Evidence with regard to a defendant’s mental capacity is relevant “in any case where a specific intent is an essential element of the crime involved . . . .” State v. Hines, 187 Conn. 199, 204, 445 A.2d 314 (1982). “Such evidence is admitted not for the purpose of exempting a defendant from criminal responsibility, but as bearing upon the question of whether he possessed, at the time he committed the act, the necessary specific intent, the proof of which was required to obtain a conviction.” Id. The crimes of assault of a peace officer, interfering with an officer, and assault in the second degree, as charged in this case, are “specific intent” crimes. An instruction on diminished capacity would be warranted, therefore, “if sufficient evidence was introduced to justify it.” State v. Folson, 10 Conn. App. 643, 651, 525 A.2d 126 (1987).

The state had the burden of proving the element of intent beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Ramsundar, 204 Conn. 4, 526 A.2d 1311, cert. denied, 484 U.S. 955,108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). To warrant consideration of diminished capacity, however, the defendant must have presented evidence “which might have raised a reasonable doubt as to the existence of the specified mental state.” (Emphasis added.) State v. Carter, 189 Conn. 611, 627-28, 458 A.2d 369 (1983). Even viewing the evidence, as we must, in the light most favorable to supporting the requested instruction; State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986); we find that the defendant failed to present sufficient evidence to require an instruction on diminished capacity.

At trial, the defendant attempted to bring diminished capacity into issue through the testimony of Fenton, the introduction of papers signed by Fenton pursuant to General Statutes § 17-183a (a), the testimony of Alexander Kolezar, a resident physician at Yale-New Haven Hospital’s CIU, and the introduction of the defendant’s medical records.

Fenton testified that, on the date in question, he reported to the scene of an automobile accident in East Haven. There the defendant told Fenton that he had tried to kill himself. Fenton signed a form, introduced into evidence by the defendant, that stated: “It is my belief that the above-mentioned person is mentally ill and dangerous to himself, herself, or others or gravely disabled and is in need of immediate care and treatment.” After Fenton completed the necessary paperwork, the defendant was sent to the emergency room for a psychiatric evaluation.

Kolezar, who had witnessed the altercation, had examined the defendant afterwards, and had recorded his medical history, testified that the defendant had a history of psychopathic, antisocial and impulsive behavior as well as “some organic brain problems [that] might [make him] very liable to respond extensively to small amounts of intoxicants.” Kolezar attributed the defendant’s “suicidal thoughts” to what he believed to be the defendant’s intoxicated state.

After Kolezar completed his testimony, the defendant offered into evidence the records from his admission to Yale-New Haven Hospital on the day of the incident in question. The records contained several shorthand references to the defendant’s history of seizures, sociopathic behavior, depression, and cerebral palsy.

We conclude that this evidence was insufficient to raise a reasonable doubt as to the existence of intent. Nowhere in the testimony or exhibits did the defendant present any evidence of the effects of psychopathic, sociopathic, or antisocial behavior, organic brain disorder, seizures, depression, or cerebral palsy. In fact, these terms were not even defined for the jury. While a jury is entitled to infer impairment from intoxication “because it is an effect which is common knowledge and is an inference which is clearly within the ability of the jurors, as laypersons, to draw based on their own common knowledge and experience”; State v. Heinz, 3 Conn. App. 80, 86, 485 A.3d 1321 (1984); a jury should not be allowed to make a similar leap in reasoning when dealing with diminished capacity. Unlike the effects of intoxication, the effects of complex mental disorders are not commonly known to laypersons. Compare State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986) (reliability of eyewitness identifications within knowledge of jurors); Toomey v. Danaher, 161 Conn. 204,286 A.2d 293 (1971) (speed of vehicle as evidenced by damage caused in collision with stationary object within knowledge of jurors). The trial court’s refusal to instruct the jury on diminished capacity is justified, therefore, by the defendant’s failure to provide direct evidence of the effects of his various mental disorders on his capacity to form intent.

The judgment is affirmed.

In this opinion the other judges concurred.

       To be guilty of the crime of assault of a peace officer, a person must act “with intent to prevent a reasonably identifiable peace officer . . . from performing his duty.” General Statutes § 53a-167c (a). The crime of interfering with an officer has been interpreted to require “the intention to interfere with the performance of an officer’s duties as a necessary element of the offense.” State v. Flynn, 14 Conn. App. 10,18, 539 A.2d 1005, cert. denied, 488 U.S. 891,109 S. Ct. 226,102 L. Ed. 2d 217 (1988). A person must act with “intent to cause physical injury to another person” to be guilty of assault in the second degree as charged in this case. General Statutes § 53a-60 (a).

       General Statutes § 17-183a (a) provides: “Any police officer who has reasonable cause to believe that a person is mentally ill and dangerous to himself, herself or others or gravely disabled, and in need of immediate care and treatment, may take such person into custody and take or cause such person to be taken to a general hospital for emergency examination under this section. The officer shall execute a written request for emergency examination detailing the circumstances under which the person was taken into custody, and such request shall be left with the facility. The person shall be examined within forty-eight hours and shall not be held for more than seventy-two hours unless committed under section 17-183.”

       On page five of the defendant’s medical records, notes dated September 11,1986, state, “Pt c hx chronic antisocial behavior with chronic suicidality . . . pt c hx w/drawl DTs ? SZ.” A checkmark on page six of the records indicates that the defendant had a history of inpatient psychiatric treatment. The defendant’s medical history on that same page states, “RBB c NSSTT As; + RF, + SZ, + ‘cerebral palsy.’ ” Further down on the page, the defendant is described as hostile and violent, with mild depression and suicidal thoughts. Finally, a sentence on page seven of the records notes, “[The defendant] has a H/O heavy ‘ETOH abuse, SZ disorder, sociopathic behavior’ . . . ‘cerebral palsy’ & ‘RF.’ ”


text:
    Chris Construction Company v. May Centers, Inc., et al.
    (8728)
    Spallone, Foti and Cretella, Js.
    Argued September 13
    decision released October 30, 1990

      E. Stanton Kennedy, for the appellant (defendant Apple Valley Foods Corporation).

      David C. Pite, with whom, on the brief, was Stephen P. Wright, for the appellee (plaintiff).
   Cretella, J.

This is an action by the plaintiff subcontractor to foreclose a mechanic’s lien against certain premises leased by the defendant Apple Valley Foods Corporation from the named defendant. The leased premises were improved by the plaintiff’s work. The plaintiff sued the defendant to recover for work done and materials installed pursuant to a contract with the defendant’s general contractor, American Heritage Homes, Inc. The trial court rendered judgment in favor of the plaintiff in the amount of $16,000, plus interest and costs. The defendant appeals from this judgment claiming that the trial court improperly (1) found that the defendant failed to sustain its burden of proof on its counterclaim, (2) awarded interest on the judgment, and (3) rendered judgment on a mechanic’s lien that was not timely filed. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. On June 10, 1985, the defendant entered into a lease agreement with May Centers, Inc., whereby the defendant leased 4079 square feet of store space in the Meriden Square Mall for use as a Roy Rogers restaurant. The defendant’s general contractor, American Heritage Homes, Inc., hired the plaintiff to supply labor and materials for the conversion of the leased premises into a restaurant. The agreed upon subcontract price was $42,100. During the course of the conversion, both parties agreed upon extras in the amount of $1200, which brought the revised subcontract total to $43,300. The plaintiff received two payments from American Heritage Homes, Inc., totaling $19,000.

The plaintiff commenced construction on June 9, 1985, and left the job site at the request of the defendant on September 16,1985, after its obligations were substantially performed. The defendant completed the conversion of the premises at its own expense and opened the restaurant on September 23, 1985.

On November 8,1985, the plaintiff filed a mechanic’s lien that was duly recorded in the Meriden land records. This lien was later released subject to an agreement of the parties that substituted security for the lien.

After a full hearing, the trial court awarded the defendant a credit of $8300 against the balance of the contract price as reasonable compensation for its completion of the subcontract. To calculate damages, the trial court deducted the payments made by American Heritage Homes, Inc., and the credit due the defendant for its completion of the work, from the contract price of $43,300. The court then found that there was an outstanding balance of $16,000 due the plaintiff on the subcontract agreement, plus costs and statutory interest from October 1, 1985.

The defendant first claims that the trial court improperly found that the defendant failed to sustain its burden of proof on its counterclaim for consequential damages resulting from the delayed opening of the defendant’s restaurant. A thorough review of the record discloses that although the defendant offered evidence at trial in an attempt to support these damages, its counterclaim requested only setoff damages for the services and materials the defendant supplied in order to complete the job in question. The court found that these setoff damages were proven to the extent of $8300.

The nature and extent of any damages counterclaimed in a foreclosure of mechanic’s lien action is limited by General Statutes § 49-33 (f). Once the amount claimed to be due on the subcontractor’s contract with the general contractor has been secured by a mechanic’s lien, the amount allegedly due the subcontractor may be diminished only by (1) the reasonable cost of satisfactory completion of the contract, (2) any damages for which the general contractor might be liable to the owner, and (3) any bona fide payments that were made by the owner before it received notice of the lien. See Rene Dry Wall Co. v. Strawberry Hill Associates, 182 Conn. 568, 572, 438 A.2d 774 (1980); W. Rockel, A Treatise on the Law of Mechanic’s Liens (1909) § 128, p. 343. In the present case, the trial court adjusted the amount due the subcontractor by amounts allowed under (1) and (3) above. The claimed consequential damages, if allowed at all, would necessarily have to fall under (2).

Consequential damages are “special damages [that] result from ‘the natural consequences of the act complained of . . . ” (Emphasis in original.) Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 223 n.16, 477 A.2d 988 (1984).

Even if the defendant had properly alleged consequential damages in its counterclaim, the court could have found that the defendant had not sustained its burden of proof. The evidence proffered at trial failed to establish that the plaintiff was the sole proximate cause of the delayed opening. Further, no evidence was offered to show that any contractual obligations existed that would have made the general contractor liable to the owner for consequential damages that could be charged to the subcontractor if he were proven to be the cause of a delayed opening. The general contractor, American Heritage Homes, Inc., was not named as a party to this action and the contractual agreement between it and the defendant was never entered into evidence. In short, the trial court was not made aware of any obligations between the general contractor and the defendant, or of any liabilities that could spring from those obligations that would leave the plaintiff solely liable for the delayed opening. In addition, the defendant was unable to reinforce its chief witness’ testimony with documentary evidence to support its claim for consequential damages.

It is the province of the trial court to weigh the evidence before it and to judge the credibility of the witnesses. Northeast Gunite & Grouting Corporation v. Chapman, 20 Conn. App. 201,203, 565 A.2d 256 (1989). On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. Damora v. Christ-Janer, 184 Conn. 109,113, 441 A.2d 61 (1981). This court cannot find facts or draw conclusions, but can only review the trial court’s findings to determine whether the trier could have legally, logically and reasonably reached the conclusions it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982). We conclude that the court properly found that the defendant did not sustain its burden of proof as to consequential damages.

The defendant next questions the trial court’s holding that the plaintiff’s damages were liquidated as of October 1,1985, and its consequential award of statutory interest from that date. The defendant argues that the trial court abused its discretion in awarding interest. It asserts that its failure to pay the plaintiff was not a wrongful withholding because it filed a counterclaim to contest the amount due the plaintiff.

Whether statutory interest is to be awarded is an equitable determination lying within the discretion of the trial court. General Electric Supply Co. v. Southern New England Telephone Co., 185 Conn. 583, 605, 441 A.2d 581 (1981). A trial court’s decision to award statutory interest will be reversed only upon a showing of abuse of discretion. Simonetti v. Lovermi, 15 Conn. App. 722, 727, 546 A.2d 331 (1988). “The real question in each case is whether the detention of the money is or is not wrongful under the circumstances.” Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275,287 A.2d 374 (1971).

When there is no indication in the record that there was an abuse of discretion and it is undisputed that some sum is due, it is not improper for the trial court to award interest. Perl v. Case, 3 Conn. App. 111, 116, 485 A.2d 1331 (1985).

Once an amount that is claimed to be due is susceptible to certain mathematical calculation from factors that are or should be in the possession or knowledge of the party being charged, that amount is liquidated. Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 165, 475 A.2d 310 (1984).

In the present case, the plaintiff continuously claimed, from-the time it filed its mechanic’s lien, that it was due approximately $26,000 for services and materials it supplied the defendant. The defendant counterclaimed for setoff damages of approximately $9000. The trial court found that the unpaid balance on the subcontract was $24,300, awarded the defendant $8300 in setoff damages, and found that the balance of $16,000 was liquidated as of October 1, 1985. By claiming setoff damages, the defendant acknowledged that some sum was due under the subcontract. A balance of at least $16,000 was clearly due and owing, and, it was a calculable amount from the factors that were in the possession of the defendant on October 1, 1985. The defendant’s retention of this sum was wrongful under the circumstances of this case. We, therefore, conclude that the trial court did not abuse its discretion when it found that the outstanding balance was liquidated as of October 1, 1985.

The defendant’s final claim is that the mechanic’s lien that is the basis of this action, was not timely filed. The timeliness of the mechanic’s lien was not questioned by the defendant during trial or in the pretrial proceedings.

This court is not bound to consider claims of law not raised at trial. Practice Book § 285A. Because the defendant questions the validity of the mechanic’s lien for the first time on appeal, we will not consider this claim. Northeast Electrical Contractors v. Udolf, 1 Conn. App. 169, 171, 469 A.2d 419 (1984).

The judgment is affirmed.

In this opinion the other judges concurred.

       We have classified this case as an action for the foreclosure of a mechanic's lien despite the parties’ assertions during oral arguments before this court that this is a contract action. In coming to this conclusion, we have relied upon the plaintiff’s characterization of the cause of action in its complaint and the trial court’s memorandum of decision describing the case as an action to foreclose a mechanic’s lien on leasehold premises.

       The defendants named in the plaintiffs complaint are May Centers, Inc., owner of the improved premises, and Apple Valley Foods Corporation, lessee of the improved premises. On December 4,1987, the plaintiff withdrew its complaint as to May Centers, Inc. For purposes of this appeal, Apple Valley Foods Corporation will be referred to as the defendant.

       The owner and operator of both the defendant, Apple Valley Foods Corporation, and American Heritage Homes, Inc., is Edwin F. Schiebel. Neither Schiebel nor American Heritage Homes, Inc., is a party to this action.

       General Statutes § 49-33 (f) provides: “Any such subcontractor shall be subrogated to the rights of the person through whom the subcontractor claims, except that the subcontractor shall have a mechanic’s lien or right to claim a mechanic’s lien in the event of any default by that person subject to the provisions of sections 49-34, 49-35 and 49-36, provided the total of such lien or liens shall not attach to any building or its appurtenances, or to the land on which the same stands or to any lot or to any plot of land, to a greater amount in the whole than the amount by which the contract price between the owner and the person through whom the subcontractor claims exceeds the reasonable cost, either estimated or actual, as the case may be, of satisfactory completion of the contract plus any damages resulting from such default for which that person might be held liable to the owner and all bona fide payments, as defined in section 49-36, made by the owner before receiving notice of such lien or liens.”

       As we have noted, during trial the defendant also attempted to establish consequential damages of approximately $15,000. The defendant did not plead these damages in its counterclaim and, in the opinion of the court, did not prove them; therefore, we have not taken them into account in our consideration of a wrongful withholding of payment.


author: Landau, J.

text:
    Frank J. Rice v. Kevin V. Dowling, Trustee, et al.
    (7947)
    Dupont, C. J., Norcott and Landau, Js.
    Argued September 14
    decision released November 6, 1990

      Victor J. Dowling, with whom was Victor J. Dowling, Jr., for the appellant (named defendant).

      John J. Kindi, with whom, on the brief, was Peter G. Perakos II, for the appellee (plaintiff).
   Landau, J.

The named defendant, a tenant in common with the plaintiff, appeals from the trial court’s judgment ordering that the property in question be subject to partition by sale. The defendant claims that the court improperly (1) denied the defendant’s request for the appointment of a committee pursuant to General Statutes § 52-495, (2) relied upon speculative testimony of expert witnesses, and (3) concluded that partition by sale would better promote the interests of the parties. We affirm the trial court’s judgment.

The following facts are relevant to the disposition of this appeal. The plaintiff and the defendant are tenants in common of approximately forty-four acres of undeveloped land located on the south side of South Road in Farmington (parcel A). The western portion of this parcel slopes steeply 80 to 100 feet higher than the eastern portion. These slopes offer panoramic views of the Hartford skyline. The eastern portion contains areas of wetlands. The metropolitan district commission’s waterline easement is also located primarily on the eastern portion of the land. Each party owns additional property abutting the commonly owned property. The defendant individually owns property on the northern border of the property, below South Road (parcel B), as well as 80 acres to the south of the property at issue (parcel C).

The plaintiff and his wife are in their seventies. He is no longer able to work a full day and his wife is ill, requiring the aid of portable oxygen to breathe. They have no assets other than the common property. The plaintiff and his wife, initially sole owners of the property at issue, conveyed a one-half interest to another cotenant in 1964. Approximately one acre was later carved out from the original property and was conveyed to the plaintiff and his wife (parcel D). The plaintiff and his wife have had sole ownership and occupation of this one acre parcel, from which the plaintiff operates a gardening business. In 1977, the defendant acquired an undivided one-half interest from the prior cotenant.

In 1987, the plaintiff brought an action in the trial court seeking a partition by sale of the property pursuant to General Statutes § 52-495. At trial, the defendant argued for a partition in kind and suggested that he receive a western portion of the land and that the plaintiff receive an eastern portion of the land.

I

The defendant asserts that pursuant to General Statutes § 52-495, the court should have appointed a committee to determine whether a physical partition of the property was practicable. Section 52-495 gives discretionary authority to courts of equitable jurisdiction to order, upon the complaint of any interested person, the physical partition of any real estate held by tenants in common, and to appoint a committee to partition such property. If the court, however, finds that a sale of property would better promote the interests of the owners, the court may order such a sale pursuant to § 52-500. Delfino v. Vealencis, 181 Conn. 533, 536, 436 A.2d 27 (1980).

Notwithstanding the defendant’s assertion that General Statutes § 52-495 requires the court, upon an interested person’s request, to appoint a committee to determine the practicability of partition, the law is well settled that it is the province of the court to determine the practicability of partition in kind or partition by sale. See Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 325, 544 A.2d 1207 (1988); Delfino v. Vealencis, supra. As early as 1882, it was recognized that the partition statute “permits a court of equity to order a sale when in its opinion a sale will better promote the interest of the owners.” Johnson v. Olmsted, 49 Conn. 509, 517 (1882).

It is therefore within the discretion of the court to order a partition in kind or a partition by sale in furtherance of the best interests of the parties. Pursuant to General Statutes § 52-495, a committee is appointed by the court only after a court determines that the property should be partitioned in kind. A thorough reading of Johnson and its progeny, as well as the plain meaning of General Statutes §§ 52-495 and 52-500, indicate that the court itself determines the type of partition. See, e.g., Wilcox v. Willard Shopping Center Associates, supra. Because the trial court determined that the property in question should be partitioned by sale, the trial court properly refused to grant the 'defendant’s request for a committee.

II

The defendant raises several evidentiary claims that question whether the court (1) based its decision upon an erroneous belief of the applicability of General Statutes § 8-25, (2) improperly relied upon speculative testimony of the expert witnesses and testimony based on the premise that a partition in kind required an equal division of the total acreage, and (3) improperly overruled the defendant’s objection to an opinion question relative to an equal partition in kind.

With regard to the defendant’s first evidentiary claim, the trial court, in response to a motion for articulation, clearly stated that the applicability or inapplicability of General Statutes § 8-25 to a partition in kind of the property “was of little or no significance in the court’s conclusion.” Section 8-25 governs the subdivision of land for purposes of planning and zoning. Because the court did not rely on this statute in reaching its decision, there is no basis for the defendant’s claim.

The remaining two evidentiary questions relate primarily to the trial court’s admission of, and reliance on, the testimony of expert witnesses. Expert testimony may be based either on facts personally observed or on facts testified to by other witnesses and included in a hypothetical question. Donch v. Kardos, 149 Conn. 196, 201, 177 A.2d 801 (1962); C. Tait & J. LaPlante, Connecticut Evidence (1988) § 7.16.8 (a). The admissibility of hypothetical questions is within the purview of the trial court. It is within the court’s discretion to determine “whether the question, even though it does not contain all of the facts in evidence, presents the facts in such a manner that they bear a true and fair relationship to each other and to the whole evidence in the case . . . .” Shelnitz v. Greenberg, 200 Conn. 58, 77, 509 A.2d 1023 (1986); Floyd v. Fruit Industries, Inc., 144 Conn. 659, 666, 136 A.2d 918 (1957). Once admitted, the trier of fact may accept part or all of an expert’s testimony and may accept the testimony of the experts offered by one party and reject that of the experts offered by the other. Blakeman v. Tobin, 177 Conn. 597, 599, 419 A.2d 336 (1979); National Folding Box v. New Haven, 146 Conn. 578, 586, 153 A.2d 420 (1959).

The defendant’s main objection is to a line of questions that the defendant claims were based on the assumption that no alternative to an equal division of the total acreage existed. Such questions were reasonably related to the issues in this case and therefore admissible. Once the testimony was admitted, the defendant could have refuted any objectionable testimony by adding or eliminating facts to questions during cross-examination of the witness or by offering the testimony of other experts. Pischitto v. Waldron, 147 Conn. 171, 177, 158 A.2d 168 (1960); Nielson v. D’Angelo, 1 Conn. App. 239, 247, 471 A.2d 965, cert. denied, 193 Conn. 801, 474 A.2d 1259 (1984). In fact, the defendant’s own expert witness offered an alternative to a partition in kind into two equal parcels.

We are limited in our review in this case to a determination of whether the trial court, exercising its broad discretion and in light of the circumstances of the case, could legally act as it did. Birgel v. Heintz, 163 Conn. 23,26,301 A.2d 249 (1972); State v. Devanney, 12 Conn. App. 288, 291, 530 A.2d 650 (1987). In light of the circumstances of this case, we conclude that the trial court acted reasonably and did not abuse its discretion in admitting the hypothetical questions at issue. We therefore uphold the trial court’s actions.

Ill

The defendant’s third claim is that the trial court improperly concluded that partition by sale, rather than partition in kind, would better promote the interests of the parties. The defendant is correct in that partition in kind has long been favored over partition by sale. Wilcox v. Willard Shopping Center Associates, supra, 325-26; Borzencki v. Estate of Stakum, 195 Conn. 368, 372, 489 A.2d 341 (1985). Nevertheless, as we discussed in section I, supra, a court may order a partition by sale if it would better promote the interests of the parties. Because of this preference for a partition in kind, the burden of proof is on the party requesting a partition by sale “ ‘to demonstrate that such a sale would better promote the owners’ interests.’ ” Borzencki v. Estate ofStakum, supra, citing Delfino v. Vealencis, supra, 538. In order to prevail, the proponent must demonstrate that “(1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable; and (2) the interests of the owners would better be promoted by a partition by sale.” Wilcox v. Willard Shopping Center Associates, supra, 326; Borzencki v. Estate of Stakum, supra, 373; Delfino v. Vealencis, supra, 537-38.

A court must first determine the practicability of a physical partition. The defendant’s expert and the topography suggest that the property could be divided into two parcels by drawing a north-south line. Although a physical partition is practicable in this case, the court must also consider whether a partition in kind is equitable. “In order to resolve this issue, the consequences of a partition in kind must be compared with those of a partition by sale.” Delfino v. Vealencis, supra, 539. In resolving this issue, the court must consider the interests of all of the tenants in common “ ‘and not merely the economic gain of one tenant, or a group of tenants.’ ”Borzencki v. Estate of Stakum, supra, 381; Delfino v. Vealencis, supra, 543; Lyon v. Wilcox, 98 Conn. 393, 395-96, 119 A. 361 (1923).

Here, the trial court found that a partition in kind would “severely diminish [the property] value both from a dollar aspect and a saleability aspect . . . division would make development less flexible and consequently the property would be less saleable and worth less.” The court based its decision on a number of factors including that the highest and best use of the property would be for residential development, the amount of frontage along South Road, the topography, the existence of wetlands, the panoramic views of the Hartford skyline visible from only part of the property, and the interests and needs of the parties. It is within the court’s discretion to order a partition by sale in light of the evidence before it, the attendant circumstances, general knowledge and a viewing of the property. See Filipetti v. Filipetti, 2 Conn. App. 456, 458-59, 479 A.2d 1229, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). The trial court’s finding that partition by sale rather than partition in kind would better promote the interests of the parties was not an abuse of its discretion.

The judgment is affirmed and the case is remanded with direction to modify the judgment by fixing new dates for the sale and ordering the advertisement of the sale of the property.

In this opinion the other judges concurred.

       The metropolitan district commission, which holds a waterline easement across the property, was originally named as a defendant. Although the commission filed an appearance, it took no position by way of pleadings or appearance at trial. Kevin Dowling is trustee for DAD Associates, a trust created by him for the benefit of himself, his wife and their three daughters. We will refer to Dowling as the defendant in this opinion.

       General Statutes § 52-495 provides: “Courts having jurisdiction of actions for equitable relief may, upon the complaint of any person interested, order partition of any real property held in joint tenancy, tenancy in common, coparcenary or by tenants in tail. The court may appoint a committee to partition any such property. Any decrees partitioning entailed estates shall bind the parties and all persons who thereafter claim title to the property as heirs of their bodies.”

       General Statutes § 52-500 (a) provides in pertinent part: “Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners.”


author: Foti, J.

text:
    Basma Shaham v. John Capparelli et al.
    (8499)
    Spallone, Foti and Cretella, Js.
    Argued September 13
    decision released November 6, 1990

      Neil W. Sutton, for the appellant (plaintiff).

      Raymond J. Ploujfe, Jr., for the appellees (defendants).
   Foti, J.

The plaintiff, Basma Shaham, appeals from the judgment of the trial court that awarded her $11,300 from the defendants, John Capparelli and Robert Mendola, after a jury trial. The plaintiff challenges three of the trial court’s rulings: (1) excluding certain evidence that was offered in rebuttal; (2) giving a jury instruction on adverse inference; and (3) denying the plaintiff’s motions to set aside the verdict and for additur. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On January 20,1983, while inspecting the defendants’ vacant premises, the plaintiff fell on ice that had formed in a hallway and injured her back. She went to her family physician, who referred her to an orthopedic surgeon, who in turn referred her to a neurologist for a consultation. After a second visit with the original orthopedic surgeon, she began treatment with a second orthopedic surgeon, Eric Garver, whose office was located closer to the plaintiff’s home. Garver referred her to a radiologist and to a second neurologist, who ordered tests, including an electromyogram, that were performed by yet another physician. Following this neurological consultation, Garver suggested that the plaintiff undergo surgery, so she sought a second opinion from a third orthopedic surgeon. Finally, in the following year, 1987, she was referred to a neurosurgeon by Garver. The neurosurgeon performed a complete examination of the plaintiff, but did not do any surgery. Five years after her fall, she injured her back in a subsequent fall. Garver treated her for this injury, eventually recommending a total excision of one of her discs.

The plaintiff’s medical bills for the first fall totaled $3203. Garver was the only medical witness at the trial. He testified that the plaintiff had a “significant” disc protrusion, and assessed a 10 percent permanent partial disability to her lower back resulting from the 1983 fall. He further testified that the second fall did not change this disability, but he conceded that his assessment could be affected if the history he obtained from the plaintiff was either inaccurate or incomplete.

The record shows that certain relevant facts were not included in this history. First, after her fall in 1983, the plaintiff applied for a job as a machine operator, denying any disability. She obtained this full-time position, which required repetitive heavy lifting, bending and standing. She worked forty hours per week, and even put in occasional overtime. Second, Garver was not apprised of the plaintiff’s postfall pregnancies, nor of any back pain that may have resulted from these pregnancies.

The plaintiff’s first claim is that the trial court abused its discretion by refusing to permit certain testimony to be offered in rebuttal. There are several additional facts that are relevant to this issue. At trial, the plaintiff was questioned about her 1987 federal income tax return and a 1988 W-2 form from an alleged employer, the American Steak House. She explained on three occasions during the trial that it was her children who had worked at the steak house, and that the tax documents were prepared in her name so she could gain control over her children’s income. After both parties rested, the plaintiff called the owner of the American Steak House as a rebuttal witness. The plaintiff sought to show through the owner’s testimony that she never had worked at his restaurant. The court disallowed this testimony, ruling that it was not proper rebuttal, and that it was cumulative.

The admission of rebuttal evidence is ordinarily within the sound discretion of the trial court. State v. Watkins, 14 Conn. App. 67, 76, 540 A.2d 76, cert. denied, 208 Conn. 804, 545 A.2d 1102 (1988). “When presenting rebuttal evidence, the [plaintiff] is ‘confined to testimony which is directed at refuting the evidence given by the defendant’; State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153 (1975); or is ‘in general contradiction of testimony given by the defendant.’ State v. Fine, 159 Conn. 296, 301, 268 A.2d 649 (1970).” State v. Watkins, supra.

The plaintiff claims that the proposed testimony serves to refute the defendants’ evidence and to rehabilitate a witness, the plaintiff. She claims that in order to accomplish such rehabilitation she was entitled to produce independent evidence to corroborate her explanation of the presence of her name on the W-2 form and the tax return.

Contrary to the plaintiff’s assertions, the record does not support her claim that the testimony was rebuttal testimony and that the court abused its discretion by excluding it. The testimony does not fit the definition of rebuttal testimony. It would have neither refuted evidence given by the defendants nor contradicted such evidence. It would merely have corroborated what the plaintiff had already testified to and would have been cumulative in nature. See Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 187-88, 540 A.2d 693 (1988). As cumulative evidence, it was within the trial court’s discretion to exclude it. State v. Watley, 195 Conn. 485, 490, 488 A.2d 1245 (1985); State v. Gooch, 186 Conn. 17, 24, 438 A.2d 867 (1982).

The plaintiff’s second claim is that the trial court improperly charged the jury that it could draw an adverse inference from the plaintiff’s failure to call eight of her treating physicians whose reports were in evidence. The trial court may charge a jury as to an adverse inference under Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The Secondino rule is well established and permits a jury to draw the adverse inference that the failure of a party to produce a witness implies that the witness, if called, would have exposed facts unfavorable to the party’s cause. Id.; Canton Motorcar Works Inc. v. DiMartino, 6 Conn. App. 447, 460, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986). In order to draw this inference the jury must first find (1) that the witness was available, and (2) that the witness was one the party would naturally produce. Secondino v. New Haven Gas Co., supra; Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167, 170, 477 A.2d 685 (1984). “The party claiming the benefit of the rule . . . must show he is entitled to it.” Queen v. Gagliola, 162 Conn. 164, 169, 292 A.2d 890 (1972); Nichols v. Coppola Motors, Inc., 178 Conn. 335, 340-41, 422 A.2d 260 (1979); Grabowski v. Fruehauf Trailer Corporation, supra.

In Seperack v. Solaz, 17 Conn. App. 684, 686-92, 556 A.2d 175. cert, denied, 211 Conn. 804, 559 A.2d 1138 (1989), this court affirmed a defendant’s use of a Secondino charge as a proper method of challenging a plaintiff’s medical evidence despite the introduction of that evidence in the form of medical reports pursuant to General Statutes § 52-174 (b). We decided that an adverse inference instruction was proper under the circumstances of Seperack; we must consider the circumstances in this case to determine whether the adverse inference instruction was proper.

The plaintiffs first allegation is that the defendants failed to prove the availability of the nontestifying physicians. Before giving the Secondino charge, the court properly placed the burden on the defendants and conducted a hearing. The court considered the defendants’ offer into evidence of the subpoenas of those doctors that were served during the plaintiff’s case-in-chief on May 2,1989, commanding them to appear the following day. The court was also aware that the witnesses were the plaintiff’s treating physicans, who were local doctors with offices in the community. These factors provided a reasonable basis for the court to allow the jury to consider the issue of availability.

The plaintiff’s second allegation is that there was no basis for the Secondino charge because she would not have naturally produced the physicians. The plaintiff argues that there was no reason to present the physicians’ testimony because it would have merely repeated the content of their reports, and therefore would have been cumulative.

In determining whether there is a proper basis for a Secondino charge in a case involving medical evidence introduced pursuant to General Statutes § 52-174 (b), we must carefully analyze the circumstances to ensure that the adverse inference is appropriate, but we must not permit a physician’s report introduced pursuant to this statute to gain credibility by implication or legislative fiat. See Seperack v. Solaz, supra, 689. The plaintiff has conceded that there are negative aspects to the medical reports of the nontestifying physicians, and that from them inferences can be drawn that are unfavorable to her case. None of these medical reports mentioned that the plaintiff struck her back on a step. A report by the plaintiffs family physician, who examined her the day after she fell, reported that he found no signs of hematoma, bruises or ecchymosis, which is inconsistent with the plaintiffs testimony that her back struck a step when she fell.

The only medical witness called was Garver, who testified that although the other treating physicians found a minimal bulge or a minimal protrusion on the diagnostic studies of the plaintiffs injury to her lumbar disc, he considered the bulge to be significant. When asked which reports indicated a significant bulge, rather than a miminal bulge, Garver interpreted the other doctors’ findings: “The statement on the MRI report, second paragraph, third line, there’s a mild protrusion of the disc. That to me is similar to a significant bulge. Actually, that is of greater significance than a significant bulge. It’s a different term describing a similar finding.” Garver agreed that aging and work habits might cause mild disc protrusion, absent any specific trauma, but maintained that in medical parlance a significant bulge and a mild bulge are essentially equivalent.

Because Garver’s testimony was inconsistent with the findings in the reports of the other treating physicians, the other physicians’ testimony, in defending their reports or in refuting Garver’s testimony, would have gone beyond the content of their reports, and would not have been cumulative. The court acted properly in finding a basis in the evidence to give the Secondino charge. In addition to that charge, the court read General Statutes § 52-174 (b) and (c) verbatim to the jury. The trial court also explained to the jury that it must decide whether an adverse inference should be made, and instructed it to consider General Statutes § 52-174 in making that decision.

We conclude that under the circumstances of this case the court properly instructed that it was for the jury to decide whether to draw the inference permitted by Secondino, because the defendants presented sufficient evidence to allow the jury to determine whether the physicians were available and whether, “by virtue of their relationship to the plaintiff and the issues, [they] could reasonably have been expected to have superior information concerning the case, which, if favorable, the plaintiff would naturally have produced.” Seperack v. Solaz, supra, 692.

The plaintiff’s final claim is that the verdict was inadequate as a matter of law. She alleges that she sustained a lumbar injury because of the fall resulting in a 10 percent permanent partial disability of her lumbar spine, and has suffered for six years from the date of the accident. She claimed a 46.2 year life expectancy at the time of trial, medical expenses of $3203 and possible elective surgery in the future, resulting in additional medical expenses of $10,000. She alleges that an $11,300 verdict is so clearly inadequate that it shocks the court’s sense of justice.

In reviewing the trial court’s refusal to set aside the verdict, our task is limited to determining whether the court abused its discretion. Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983); Taddei v. Schwarz, 12 Conn. App. 659, 660, 533 A.2d 892 (1987). A reviewing court must set aside the verdict if it is manifestly unjust and palpably against the evidence. Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988); Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).

The trial court should be hesitant to set aside a jury’s verdict and must do so only when the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. Trumpold v. Besch, 19 Conn. App. 22, 31, 561 A.2d 438, cert. denied, 212 Conn. 812, 565 A.2d 538 (1989), cert. denied, 494 U.S. 1029, 110 S. Ct. 1476, 108 L. Ed. 2d 613 (1990). A court should be' especially hesitant to set aside a jury’s award of damages. Zarrelli v. Bamum Festival Society, Inc., supra, 326. In this case, there was ample evidence, if accepted by the jury, to support the verdict. First, the plaintiff sustained a second injury. After her second fall, the plaintiff did not return to work, and her doctor recommended a total disc excision. Second, after her initial fall the plaintiff engaged in physically rigorous full-time employment, gave birth to two children, and conducted her life in a normal fashion. Finally, the only medical witness testified that the bulge in the plaintiffs lumbar disc was of the type that is frequently caused by aging or work habits. If the jury accepted any of this evidence, it could have properly found that the sum claimed by the plaintiff was far greater than the harm actually suffered. The trial court found nothing present or lacking in the evidence that required it to disturb the jury’s verdict. We agree. “Furthermore, a parsimonious jury award is not inadequate as a matter of law.” Sheav. Paczowski, 11 Conn. App. 232, 235, 526 A.2d 558 (1987).

The judgment is affirmed.

In this opinion the other judges concurred.

       Robert Picheco also was named as a defendant in this action. The complaint was withdrawn as to him before trial. For the purpose of this opinion, defendants refers only to Capparelli and Mendola.

       The following exchange took place:
      “The Court: Each party is entitled to call whatever witness they want as rebuttal. I don’t know what he’s going to ask. He doesn’t have to lay a foundation for rebuttal witness at all. He has to wait until the evidence comes in, hear what the evidence is in, whatever the evidence says, and then he can call whatever person he wants to rebut that testimony.
      “Mr. Plouffe: But as I understand it, Your Honor, before the rebuttal witness can testify, there has to be a foundation that indeed there was something new or a surprise that came out in the testimony before this man can be called to testify. If he’s going to testify as to something Mr. Sutton knew before someone testified, then I think that that requirement is not met.
      “The Court: The rebuttal witness, as I understand — sit down, gentlemen, sit down — is when you call a witness who has already testified and has said something, then you can call that witness back to show that the other witness was, in fact, not telling the truth or will rebut it and so on. Now, you’re bringing another witness in and you wish to have him rebut the testimony of one of the witnesses. Is that correct?
      “Mr. Sutton: That is correct, Your Honor.
      “The Court: All right. Now, what kind of a foundation do you claim, Mr. Plouffe, has to be laid for a rebuttal witness? I know of no rule that requires a foundation.
      “Mr. Sutton: Your Honor, actually, I should clarify. It’s not — he’s not to rebut any witness other than my client and the testimony that just came out. But I think that is appropriate grounds for rebuttal. It’s the question of the W-2 has just come out, and it was relatively unexpected. And since the W-2 didn’t come out in my direct case, the only way I can rebut it is at this stage of the trial.
      “The Court: This is what he’s going to testify to?
      “Mr. Sutton: As to whether or not she worked at American Steak in 1988.
      “The Court: Well, that’s not a rebuttal witness. That is not a rebuttal witness, sir. That is a substantiating, corroborative witness of what your client has already indicated. That is far from a rebuttal witness.
      “Mr. Sutton: Your Honor, may I not rebut the implications or the inference—
      “The Court: Oh, absolutely not.
      “Mr. Sutton: —from a document?
      “The Court: That is stacking. That is absolutely stacking testimony that is confirming, that’s corroborative and so on. It is not rebutting the testimony of somebody else.
      “Mr. Sutton: But, Your Honor, I believe it is rebutting evidence that the defense has put forward.
      “The Court: You’re entitled to believe that. I’m saying to you that that is not the understanding of the court and I’m not going to permit that to come in, otherwise we can just corroborate more testimony that has been given throughout this trial. That is not a rebutting witness, sir. That is not what the rule is. All you’re doing is corroborating what this witness, something that your witness has already said.
      “Mr. Sutton: And, in fact, rebutting the implication from a W-2 and from the questions of counsel.
      “The Court: It may be. That may be so. But it’s not a rebuttal witness, as I understand the term, sir.”

       The defendants argue that even if this was rebuttal evidence and the court should have allowed the testimony of the owner of the American Steak House, the ruling was harmless since the plaintiff prevailed on the issue of liability. They argue that the owner’s testimony was not offered as to the issue of damages, and, further that, had such testimony been allowed, confirming that the plaintiff had not worked at the restaurant, such evidence would have shown that she misrepresented material tax matters to the government.

       General Statutes § 52-174 (b) provides: “In all actions for the recovery of damages for personal injuries or death, pending on October 1,1977, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist and that the report and bill were made in the ordinary course of business.”
      After this trial, Public Acts 1989, No. 89-153, effective October 1,1989, amended subsection (b) by adding: “The use of any such report or bill in lieu of the testimony of such treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist shall not give rise to any adverse inference concerning the testimony or lack of testimony of such treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist.”

       The court thereafter stated:
      “The Court: Well, I think we’ll agree that the Seperack case does stand for the proposition that the giving of the Secondino charge is not opposed to the 52-174 statute, that they can both be given and were both given in this case. And the standard, I agree, the standard was whether or not the testimony to be taken from the doctors’ reports are not merely cumulative, but do aid the jury in reaching its verdict. I indicated to you in chambers, both of you gentlemen, that I am very much concerned about the dilution effect of the statute by the Secondino charge, that it may open the door that whenever doctors’ reports are submitted, that we read into them too much and we request a Secondino charge. And this will put the onus on the plaintiff, as counsel has indicated, to bring all of these doctors in. That’s the danger of this and, therefore, the onus on requesting the Secón

        dino charge must be, in this case, on the defendant in his argument to show the court that there are — there is room in the reports to show that if these doctors had come in, perhaps their testimony would have been damaging to the plaintiffs’ case.
      “I’m not impressed with argument that the lady did not go to the doctor and, therefore, we would draw the inference that ‘Why didn’t she go to the doctor?’ This is dangerous. You’re presuming too much when we say she didn’t go to the doctor. We don’t know why she didn’t go back to the doctor?
      “Having said that, however, I was impressed at the time of the testimony given by Dr. Garver, or interested and intrigued rather than impressed, by the fact that he did try to explain away an inconsistency as to what he considered a minimal bulge and what it meant in an MRI, I think, report. And I found that difficult to understand because it doesn’t seem to me that ‘minimal’ is a word of art that is subject to such straining, although it may be. But it’s a type of thing that I think could have been explained, had that doctor who wrote that report come in.
      “Having said that, I am of the opinion, and, I'll tell you, I thought about this last night. I’ve read and reread the case and am of the opinion that I am going to give the Secondino charge with the statute. But I am going to warn you, counsel, that I don’t want you to dwell on this so that the jury is confused by my charge.”

       The lack of bruising, hematoma or ecchymosis indicated by the report is inconsistent with the plaintiffs account of the accident, but there are relevant facts beyond the scope of the report about which the doctor could have testified. One such fact is whether the plaintiff has maintained that her back struck the step since her primary treatment at his office. This question was not addressed by any of the reports. Although there are inconsistencies between the reports and the plaintiffs factual allegations, there may be more beyond the scope of the reports. Because the doctors have relevant knowledge that is beyond the scope of their reports, the trial court’s decision to give an adverse inference instruction was proper. Seperack v. Solaz, 17 Conn. App. 684, 691, 556 A.2d 175 (1989).

       The court instructed: “Now, whether you are going to draw the inferences I indicated to you before is for you to decide. In considering whether or not it would be natural for the plaintiff to produce a witness the jury should consider the statute that I’ve just read to you which permits the plaintiff to introduce reports and bills of a treating physician without the necessity of producing the physician as a witness in the trial. And you should also consider evidence of the plaintiff’s attempt to present these witnesses, if any, and the difficulties involved in procuring the doctor's in-court appearance.”


text:
    State of Connecticut v. Alice F. Moore
    (8507)
    Spallone, Foti and Cretella, Js.
    Argued September 13
    decision released November 6, 1990

      Michael K. Courtney, assistant public defender, with whom, on the brief, was Rory Chapdelaine, certified legal intern, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and James Diamond, assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of the crime of interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the trial court (1) improperly instructed the jury on the element of intent, (2) improperly restricted her cross-examination of two of the state’s witnesses, and (3) did not correctly state the law on the lesser included offense. We agree that the trial court improperly instructed the jury and remand for a new trial. Because the second issue raised by the defendant is likely to arise again at the new trial, we will address it also.

At approximately 11:45 p.m. on July 13,1988, Officers Joseph LeRose and Anthony Maher of the Dan-bury police department were dispatched to the Beaver Street housing development in response to a domestic dispute. When the officers arrived at the scene, a group of bystanders pointed to the defendant’s brother, Kevin Moore, and told the officers, “There he is. Get him.” The officers asked Moore to stop, but he ignored them and attempted to walk between them. LeRose put out his hand in an attempt to stop Moore and a struggle ensued.

The officers wrestled Moore to the ground and LeRose attempted to place handcuffs on him. At this time, the defendant began to yell, “Leave him alone. He didn’t do anything wrong.” In an attempt to assist her brother, the defendant put her arm around LeRose’s neck from behind and pulled him backward, twisting his head and neck. LeRose was able to free himself from the choke hold, but, as he attempted to handcuff the suspect and resume his duties, the defendant took the handcuffs from the officer’s hands.

LeRose and Maher radioed police headquarters for assistance. A short time after their call, Sergeant William Barlow arrived on the scene. Barlow asked the defendant to release LeRose from her renewed grasp, but she refused. Barlow then forcibly removed LeRose from her grip. The defendant’s brother was carried to a police cruiser and taken away.

I

The defendant claims that the trial court’s instructions to the jury on the element of intent required for a conviction of interfering with an officer violated her constitutional rights by relieving the state of its burden of proving the requisite specific intent in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). We agree.

In its general instructions to the jury on intent, the trial court stated: “A person’s intent may be inferred from his comments and actions. A person is deemed to intend the natural consequence of his or her acts. It is often impossible and never necessary — never necessary to prove criminal intent by direct evidence. Ordinarily intent can be proved only by circumstantial evidence. Now, I’ll get into circumstantial evidence right after intent. What a person’s intent or intentions were is necessarily very much a matter of inference. No person can be expected to come in here and testify that he looked into another person’s mind and saw therein a certain purpose or intent. The only way you can determine what the defendant’s purpose or intent was, aside from her own testimony as it relates to intent, is by determining what the circumstances were surrounding that conduct. And from those circumstances infer, what her purpose or intent was. To draw such an inference, is not only your privilege but it is also your duty.”

The defendant objected to these instructions as violative of Sandstrom and requested that the jury be recharged on intent. The court obliged, but in its effort to clarify the previous instructions it told the jury that its prior instructions “that a person is deemed to intend the natural consequences of his or her acts . . . is generally a true proposition of law.”

The defendant asserts that the original instruction on intent shifted the burden of proof to her, thereby relieving the state of its burden of proving the essential element of intent beyond a reasonable doubt. The defendant also asserts that the court’s reinstruction on intent failed to clarify the improper instructions in the jurors’ minds. The state claims that when the jury instructions are taken as a whole, the charge allowed the jury to interpret the court’s instruction in a constitutional manner.

Although the defendant objected to the initial jury charge on intent, she did not object to the court’s second charge. In addition, she has failed to make a claim under the bypass rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). As a preliminary matter, therefore, we must decide whether this claim is reviewable.

This court may, in the interest of justice, notice plain error that was not brought to the attention of the trial court. Practice Book § 4185. Where, as here, the record accurately reflects that the burden of proving an essential element of the crime charged was shifted to the defendant, it is in the interest of justice that we review the claim under the plain error doctrine.

“The United States Supreme Court in Sandstrom v. Montana, supra, 517, 524, held that a jury instruction which stated that ‘[t]he law presumes that a person intends the ordinary consequences of [her] voluntary acts’ may have been interpreted by the jury ‘as constituting either a burden-shifting presumption . . . or a conclusive presumption . . . .’ ‘[Ejither interpretation would have deprived [the] defendant of [her] right to the due process of law” and was therefore unconstitutional. Sandstrom v. Montana, supra, 524.” State v. Fernandez, 198 Conn. 1, 19-20, 501 A.2d 1195 (1985). It is firmly established that the state bears the burden of proving each essential element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). A specific intent to interfere with the performance of an officer’s duties is an essential element of § 53a-167a and as such must be proved beyond a reasonable doubt. State v. Beckenbach, 1 Conn. App. 669, 679-80, 476 A.2d 591 (1984), rev’d, 198 Conn. 43, 501 A.2d 752 (1985).

An instruction such as the one given in this case is indistinguishable from the instruction given in Sandstrom in that it shifted the burden of proof to the defendant to prove that she did not have the required state of mind or intent and, consequently, denied her the presumption of innocence and due process of the law. State v. Fernandez, supra, 21. In addition, any effort to correct the instructions was negated by the trial court when it told the jury that its earlier incorrect statement was “generally a true proposition of law.”

II

The defendant also claims that the trial court improperly restricted her cross-examination of LeRose and Barlow when it denied her access to the officers’ confidential personnel and internal affairs records. Although we are remanding this case as a result of our decision on the the first issue, we will address this issue because it may recur upon retrial.

A

OFFICER LEROSE’S PERSONNEL AND INTERNAL AFFAIRS RECORDS

The facts that are relevant to the disposition of this claim are as follows. The state’s case consisted entirely of the testimony of Officers LeRose, Maher and Barlow. During the course of trial, the defendant subpoenaed LeRose’s personnel and internal affairs records and requested that they be admitted into evidence. She contended that these records contained information about charges filed against LeRose in 1986 in connection with an allegedly stolen license plate. The defendant asserted that any information in the file about this incident could be exculpatory or might impeach LeRose’s credibility. The state moved to quash the subpoena, arguing that the officer’s personnel and internal affairs files are privileged under General Statutes § 1-19 (b) (2), and are, therefore, exempt from review. The trial court ruled that it would inspect the records in camera, in accord with State v. Januszewski, 182 Conn. 142,170-75, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922,101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

After examining the records in camera, the court determined that although disciplinary proceedings did arise out of LeRose’s 1986 charges, there was nothing in the files to indicate that he had stolen a license plate, had known that the plate was stolen, or had had any reason to believe the plate was stolen. The court then found that the files disclosed no acts of misconduct that impugned LeRose’s truth and veracity.

The defendant was permitted to continue her cross-examination of LeRose for a short time before the jury returned. Out of the presence of the jury, LeRose admitted that he had been arrested in 1986 on a sixth degree larceny charge and had pleaded guilty to the motor vehicle infractions of misuse of a license plate and operation of an unregistered vehicle. He also admitted that he had been the subject of a disciplinary hearing and had been suspended from duty for a time. The defendant objected to the court’s ruling that this information would not come before the jury, excepted to the court’s ruling and now appeals this claim.

Evidence of a conviction is admissible only if the crime committed is subject to punishment of a prison term of more than one year. General Statutes § 52-145; Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 472, 208 A.2d 341 (1965). “Evidence of arrest without conviction . . . is not admissible . . . to attack the credibility of a witness.” State v. Moynahan, 164 Conn. 560, 600, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973). Neither the crime with which LeRose was charged nor the infractions to which he pleaded guilty are admissible under this standard. This does not, however, end our inquiry.

Evidence of specific acts of misconduct that relate to veracity, but not those that merely illustrate general bad behavior, may be offered to attack the credibility of a witness. State v. McIntosh, 12 Conn. App. 179, 183, 530 A.2d 191, cert. denied, 205 Conn. 808, 532 A.2d 77 (1987). Where the evidence of the witness’ specific misconduct is located in a confidential police personnel or internal affairs file, that information is protected under General Statutes § 1-19 (b) (2) and can be disclosed only after the court has examined the contents of the file in camera to determine if the defendant’s need to examine the confidential material outweighs the public policy in favor of the confidentiality of private and personal information. State v. Januszewski, supra, 171-72. Once the court has examined the contents of the files, what material should be disclosed is a matter of judicial discretion. Id., 172. Requests for information from the officer’s file must be specific and set forth how the requested information relates to the case at hand. Id., 173. The court should release only information that is clearly material and relevant. Id.

Our review of the personnel and internal affairs files reveals that although the great majority of the information contained in these files does not go to truth and veracity, some of the material contained therein does reflect upon this officer’s credibility. Upon remand both files should be thoroughly reexamined and any material that does go to LeRose’s credibility should be revealed to the defendant in accord with State v. Januszewski, supra, 173-74.

B

OFFICER BARLOW’S PERSONNEL AND INTERNAL AFFAIRS RECORDS

The defendant also requested that the court inspect Barlow’s personnel and internal affairs records. The basis of this request is that Barlow was once named as a defendant in a civil suit brought by other parties and arising out of a separate arrest. The trial court ruled that the defendant had not set forth sufficient reasons to warrant the inspection of the officer’s file because the defendant failed to show that anything in the file could relate to Barlow’s truth and veracity. The court then denied the requested review.

As noted above, a defendant’s request for information from a confidential police personnel or internal affairs file must be specific and set forth the issue in the case to which the confidential information will relate. Id., 173. Further, a criminal defendant cannot conduct a general fishing expedition through the records of a police officer. Id., 172.

We agree with the trial court that there was an insufficient nexus between the information requested and the case at hand. Had the defendant been granted access to Barlow’s records, the ensuing inspection of the files would have been no more than a general fishing expedition.

Ill

The defendant’s final claim is that the court improperly stated the law on the lesser included offense. Because this issue is not apt to recur upon retrial, we will not review it.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.