author: DUPONT, J.

text:
    LOUIS J. MATTEGAT ET AL. v. JOHN KLOPFENSTEIN ET AL.
    (AC 17482)
    O'Connell, C. J., and Spear and Dupont, Js.

      Argued May 27
    officially released August 25, 1998

      Michael S. McKenna, for the appellants-appellees (plaintiffs).

      Eric N. Wellman, for the appellee-appellant (defendant DUBL M. Enterprises, Inc.).
   Opinion

DUPONT, J.

The plaintiffs, Louis J. Mattegat and Melanie Mattegat, appeal from the judgment, rendered after a trial to the court, finding the defendant DUBL M. Enterprises, Inc., doing business as Housemaster of America (Housemaster), negligent in the performance of a property inspection contract and awarding damages to the plaintiffs. On appeal, the plaintiffs claim that the trial court improperly (1) held that the recovery of damages for Housemaster’s negligence was limited to those damages that were reasonably foreseeable, (2) employed the cost to repair the property, rather than the diminution in the property’s fair market value, as the measure of damages and (3) concluded that the cost to repair the property was $17,000. Housemaster cross appeals, claiming that the trial court improperly failed to restrict the plaintiffs’ recovery of damages to the amount of the inspection fee.

The following facts are relevant. The plaintiffs executed a contract with Housemaster to perform an inspection of the premises at 154 South Main Street in Newtown prior to the plaintiffs’ purchase of that property. On March 15, 1993, Richard Warren, an agent of Housemaster, performed the inspection, which included a probe for wood destroying insect infestation. The plaintiffs signed the contract, titled, “Inspection Order Agreement” (agreement), in which they opted for a “Limited-Time Inspection” with no warranty, rather than an “Extended-Time Inspection” with a six month warranty. The agreement contained a clause that is at the center of the parties’ dispute. Housemaster claims that this clause limited its liability for any postinspection claims to the amount of the inspection fee. The parties did not discuss this clause prior to the plaintiffs’ signing of the contract. The agreement was signed on the day of and at the site of the inspection.

In his inspection report, Warren stated, under the headings “Infestation Status” and “Treatment or Damage Indications,” that he found no visible evidence of past or current wood destroying insect infestation and no visible evidence or prior treatment for wood destroying insects. Under the heading “Limitations or Conducive Conditions,” his report stated that there were conditions conducive to wood destroying insect infestation in the form of rot and decay. Warren also testified at trial that he did not observe any termite “mud tubes” or any destruction due to termite infestation. Warren indicated in his report that he was unable to inspect visually the entire premises because of snow and inaccessible crawl spaces. He further noted that certain areas of the premises showed signs of rot and that such conditions were conducive to infestation.

On the basis of Warren’s inspection report, the plaintiffs purchased the property without further inspection for wood destroying insects. Immediately after closing the purchase, the plaintiffs began renovations on the property and soon discovered swarms of insects in the structure.

Mark Moore, a licensed exterminator, and Ronald Rennert, a consulting structural engineer, testified at trial as expert witnesses for the plaintiffs. Both Moore and Rennert were hired to view and examine the premises in June, 1993. They each testified that there was extensive visible evidence of wood destroying insect infestation in the building and that Warren had not exercised proper care in performing his inspection. Rennert immediately noticed a termite mud tube and testified that other mud tubes were readily observable without disruption of any of the building’s timbers. Ren-nert, after viewing the premises, advised the plaintiffs that the damage was so extensive that the building was structurally unsound and should be razed. The plaintiffs notified Housemaster of the insect problem, and Housemaster offered to refund the plaintiffs’ inspection fee, which the plaintiffs refused. The plaintifflater razed the building.

The trial court found that Housemaster was negligent because of its failure to use reasonable care in inspecting and evaluating the premises for visible damage and infestation. The court specifically concluded that Housemaster had failed to identify overt structural defects caused by infestation and visible signs of infestation. The court held that damages resulting from Housemaster’s negligence were limited to those that were reasonably foreseeable and awarded the plaintiffs $775 for permits and renovation work, $2090 for the services of the structural engineer and $17,000 for the cost to repair the premises. The damage award amounted to $19,865, reduced by $11,000, which the plaintiffs had recovered previously from the defendant real estate agent, leaving $8965 to be paid by Housemaster.

I

We first address Housemaster’s cross appeal, which contends that a clause in the parties’ contract limits the plaintiffs’ damages to $225, the amount of the inspection fee. We do not agree.

It is unclear whether Housemaster is claiming that paragraph six of the parties’ contract is a liquidated damages clause or a disclaimer of liability clause. We will address both possibilities. The clause states in part: “COMPANY LIABILITY. The Company’s liability for any Client post-inspection (Limited-Time) claims is limited to a maximum of the inspection fee paid unless an inspection warranty was purchased by the Client.” We first turn to the question of whether the clause constitutes an enforceable liquidated damages provision.

“[A] provision which allows liquidated damages for breach of contract is enforceable if certain conditions are satisfied. . . . The requisite three conditions are that: (1) the damage which was to be expected as a result of a breach of contract was uncertain in amount or difficult to prove; (2) there was an intent on the part of the parties to liquidate damages in advance; and (3) the amount stipulated was reasonable.” (Internal quotation marks omitted.) CMG Realty of Connecticut, Inc. v. Colonnade One Ltd. Partnership, 36 Conn. App. 653, 667, 653 A.2d 207 (1995). Our review of the record and briefs indicates that these three requirements have not been established.

Housemaster offered no explanation of why damages would be uncertain in amount or difficult to prove. In fact, the plaintiff was able to prove $19,865 in damages to the trial court’s satisfaction. Housemaster also failed to demonstrate an intent on behalf of the parties to liquidate damages in advance. Although the record indicates that the plaintiff Louis J. Mattegat had an opportunity to read the contract before signing it, the parties never discussed the liability clause and no effort was made by Housemaster to explain the extent of its obligation to the plaintiffs. The sole fact even remotely related to the intent of the parties is that the plaintiffs signed the preprinted agreement. That fact, standing alone, is not sufficient to establish an intent to liquidate damages in advance. Finally, the requirement that the “stipulated” amount be reasonable has not been satisfied. The inspection fee of $225 falls so far short of the damages claimed by the plaintiffs and of the trial court’s award of reasonably foreseeable damages that the unreasonableness of the “stipulated” amount is apparent. We conclude that the clause at issue is not an enforceable liquidated damages clause.

We now turn to the question of whether the clause is an enforceable disclaimer of liability for negligence. A disclaimer is a “refusal to recognize the existence of an obligation.” Ballentine’s Law Dictionary (3d Ed. 1969). “The law does not favor contract provisions which relieve a person from his own negligence. See generally 2 Restatement (Second), Contracts § 195, comment b; 17 Am. Jur. 2d, Contracts §§ 188, 189; 78 Am. Jur. 2d, Warehouses § 232; 8 Am. Jur. 2d, Bailments §§ 139-141.” Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 413, 446 A.2d 799 (1982); see also Malone v. Santora, 135 Conn. 286, 293, 64 A.2d 51 (1949). The contract in this case was a preprinted form. Courts have shown a tendency to hold contracts of this type against public policy when entered into by professional service providers in the course of dealing with the general public. See Griffin v. Nationwide Moving & Storage Co., supra, 413. Such provisions have been upheld, however, under appropriate conditions, such as the assent of both parties. There was no assent here to limit the service provider’s liability. See id., 413-14. Housemaster has failed to demonstrate that the contract contained an enforceable disclaimer provision.

II

We now turn to the plaintiffs’ three claims on appeal, all of which relate to the amount of damages awarded to the plaintiffs by the trial court.

A

The plaintiffs’ first claim is that the trial court improperly limited their recovery to those damages that were reasonably foreseeable.

This case seeks damages for the negligent performance of a contract, rather than for breach of contract. The trial court found as a fact that Housemaster was negligent in its performance of the termite inspection required by the parties’ contract. This finding of negligence was amply supported by the evidence and cannot be disturbed.

The plaintiff is “entitled to recover all damages proximately caused by the [defendant’s] negligent performance of the contract whether or not the results were reasonably to be anticipated.” Johnson v. Flammia, 169 Conn. 491, 499, 363 A.2d 1048 (1975); see also Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 689 n.3, 508 A.2d 438 (1986). The trial court’s test for assessing damages in the present case was whether they were “reasonably foreseeable.” We must determine whether the court’s test comports with that of Johnson and Neiditz. There is a paucity of cases in Connecticut that discuss the test for measuring damages for negligent performance of a contract.

In Neiditz, the defendant was a professional corporation engaged in the business of land surveying and civil engineering that negligently prepared a map that it knew would be used by the plaintiffs in seeking a zone change. The trial court awarded damages to the plaintiffs for the increased costs of developing their property, which arose because of the defendant’s negligence in preparing the map, including the cost of complying with conditions imposed by the zoning board that would not otherwise have been necessary. The Supreme Court upheld that award of damages. It stated that “a party is liable only for those damages which are the proximate result of his negligence.” Neiditz v. Morton S. Fine & Associates, Inc., supra, 199 Conn. 689. The court distinguished the test of Johnson from that required in a breach of contract case, where damages are limited to those the defendant had reason to foresee as the probable result of the breach at the time the contract was executed. Id., 689 n.3, citing 3 Restatement (Second), Contracts § 351 (1981).

The Johnson and Neiditz cases indicate that the proximate cause test for negligence applies when assessing damages for negligent performance of a contract. The requirement of proximate cause is a less severe limitation of liability than the requirement of anticipation or foreseeability in breach of contract cases. A proximate cause is “[a]n actual cause that is a substantial factor in the resulting harm . . . .” (Internal quotation marks omitted.) Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997).

Although the trial court did not use the words “proximate cause,” the test used by the court comports with the proximate cause test of Johnson and Neiditz. The fundamental inquiry in all proximate cause questions is whether the harm that occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence. Doe v. Manheimer, 212 Conn. 748, 758, 563 A.2d 699 (1989). The trial court did not confine its test to what damages Housemaster, at the time of contracting, may have anticipated or foreseen as a probable result of a breach; rather, the corut’s test reflected the proximate cause query of what damages were reasonably foreseeable because they were within scope of the risk created by Housemaster’s negligence. See id., 759. We therefore conclude that the trial court applied the proper causation standard for awarding damages.

B

The plaintiffs’ second damages claim is that the trial court improperly concluded that the measure of damages for Housemaster’s negligence was the cost to repair the properly rather than the diminution in its fair market value. When proximate cause exists for damage to real estate, “[t]he basic measure of damages for injury to real property is the resultant diminution in its value.” Ferri v. Pyramid Construction Co., 186 Corn. 682, 689, 443 A.2d 478 (1982). Such diminution in value may be determined, however, by the cost of repairing the damage as long as that cost does not exceed the former value of the property and the repairs do not enhance the value of the property over what it was prior to the damage. Id.

The plaintiffs in the present case presented evidence at trial that the diminution in the value of the property amounted to $36,179. Evidence was also introduced at trial that the estimated cost to repair the damage to the property was between $15,000 and $17,000. The estimated cost of repairs here could not possibly exceed the former value of the property when the repair cost is less than the diminution in value. There was no evidence at trial that the repairs would enhance the value of the property over what it was prior to the damage. A trial court in these circumstances has the discretion to select the repair measure of damages, limited only by the two provisos, which are not present here. Id. Accordingly, we conclude that the trial court properly applied the cost to repair the property as the measure of damages.

We further note that this measure of damages was proper as it relates to the proximate cause question discussed previously. Housemaster, as did the defendant in Neiditz, knew of the intended use of its report. Thus, the scope of the risk created by Housemaster’s negligent performance of the inspection included the circumstances that the plaintiffs would buy the house based on a favorable report, and that the existence of extensive termite damage and infestation would require substantial repairs to the property. The estimated repair costs were proximately caused by Housemaster’s negligence because they were within the scope of the risk created by that negligence and, as such, were reasonably foreseeable to Housemaster.

The razing of the building, however, was not proximately caused by Housemaster’s negligence because it was not within the scope of the risks created by that negligence. Housemaster was never notified that the building was going to be razed and, thus, never had an opportunity to remedy the problem. In other words, the razing of the building did not follow in a natural continuum from the negligence involved in failing to detect the termite damage. See Doe v. Manheimer, supra, 212 Conn. 757-58; Mourison v. Hansen, 128 Conn. 62, 66, 20 A.2d 84 (1941). Furthermore, as the trial court noted, “There appears to have been a rush to raze the building without the determination of what could be done to save the structure.” We conclude that the estimated repair costs used by the trial court to determine damages, rather than the diminution in value, is the appropriate measure of damages.

C

The plaintiffs’ final claim is that the trial court’s factual finding that the cost to repair the property amounted to $17,000 was clearly erroneous. The factual finding of a trial court is reversible only if it is clearly erroneous. Practice Book § 60-5, formerly § 4061; Barszck v. Solnit, 46 Conn. App. 112, 117, 698 A.2d 358 (1997). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Shaw-mut Bank v. Brooks Development Corp., 46 Conn. App. 399, 405, 699 A.2d 283 (1997).

There is evidence in the record to support the trial court’s finding that the cost to repair the property would have been $17,000. Through the plaintiffs’ expert witness, Mark Moore, Housemaster entered into evidence an inspection report that included an estimate of the cost to repair the insect damage. The repair estimate was prepared by Barry Zanoni, a colleague of Moore who had inspected the property with him. According to the estimate, the damage that had been uncovered as of June 10,1993, could be repaired at a cost of $15,000 to $17,000.

The trial court acted well within its discretion when it relied on the estimated cost to repair rather than the estimated diminution in value for purposes of determining damages. On the basis of all of the evidence presented, we conclude that the trial court’s finding as to the amount of the cost to repair was not clearly improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs recovered $11,000 from the named defendant, John Iüopfenstein, and withdrew the action as to him. Klopfenstein was the listing real estate agent of the property that is the subject of this case.

       Paragraph one of the agreement provides: “INSPECTION OPTIONS. Due to the varying needs and interests of a Client for information regarding a prospective home and post inspection protection, the Company offers the Client a, choice of inspection plans as noted below. Client shall select the preferred option by initialing the appropriate box. . . .
      “A. LIMITED-TIME INSPECTION. In approximately 2-3 hours, for an average house, the Company will provide' the Client with their professional opinion of the condition of the major elements of the house at the time of the inspection. Due to the complexity of the various systems and elements of a house and the hundreds of value judgments made by the Inspector in this Limited-Time Inspection, the Company does not provide any guarantees regarding the inspector’s judgments and findings.

      “The Company does, however, offer the Client a 12-month limited warranty, for a modest additional fee, on owner-occupied, one and two family houses. This inspection warranty covers specified repair or replacement costs not outlined or forecast in the inspection report, subject to the terms and conditions of the warranty. . . . The warranty may be purchased up to ten (10) days after title transfer.
      “The cost of this Limited-Time Inspection is: $225 ....
      “B. EXTENDED-TIME INSPECTION. In approximately 10-12 hours, for an average house, the Company will provide the Client, with a more detailed, in-depth, evaluation of the condition of the major elements of the house at the time of the inspection. Since the inspector will not, be limited by the time constraints associated with the Limited-Time Inspection and can enlist the help of system-element specialists when appropriate, the Company will assume, full responsibility for inspector errors or oversights—up to a maximum of $25,000 per inspection—regarding visible, accessible inspected

        elements, for a period, of six (6) months from the inspection date, subject to a $100 deductible per element/per occurrence.

      “The cost of this Extended-Time Inspection is expected to be in the $1,500 range, depending on the size and condition of the house and special services or consultants utilized. The Company will arrange for a visit to the proposed property and prepare a firm inspection fee quote. The Client shall allow sufficient pre-purchase time for the quote preparation and inspection scheduling.” (Emphasis in original.)

       Paragraph six of the agreement provides: “COMPANY LIABILITY. The Company’s liability for any Client postinspection (Limited-Time) claims is limited to a maximum of the inspection fee paid unless an inspection warranty was purchased by the Client. This liability limit also applies to Extended-Time Inspections six (6) months from the inspection date.”

       See footnote 1.

       The trial court used the word “disclaimer” in describing the clause and stated in its memorandum of decision that the inspection described in paragraph 1 (A) of the contract was to visible and accessible elements of the house, and the “Company Liability” clause was an attempt to be exonerated from any liability-

       The trial court specifically stated: “Damages resulting from a party’s negligence. . . are limited to that which should be reasonably foreseeable.”

       Although there was evidence in the record regarding diminution in the property’s value, as introduced through an appraisal prepared by Walter Kloss, a real estate appraiser, the trial court could use the cost of repairs as the appropriate measure of damages.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. FREDERICK D. KNIGHT, JR.
    (AC 14679)
    Foti, Hennessy and Kulawiz, Js.
    Submitted on briefs June 4
    officially released August 25, 1998

      Avery S. Chapman filed a brief for the appellant (defendant).

      Eugene Callahan, state’s attorney, John A. East III, assistant state’s attorney, and Robert Katz, senior assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Frederick D. Knight, Jr., appeals from the judgment of conviction, rendered after a jury trial, of one count of the sale of narcotics in violation of General Statutes § 21a-277 (a), one count of the sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b), one count of possession of narcotics in violation of General Statutes § 21a-279 (a), and one count of possession of narcotics within 1500 feet of a school by a person who is not a student in violation of § 21a-279 (d). Following the verdict on the charges, the defendant pleaded guilty to being a persistent drug offender as charged in part B of the substitute information. The defendant was sentenced to a total effective term of seven years, three years mandatory minimum. On appeal, the defendant claims that the trial court improperly denied his midtrial motion for judgment of acquittal. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 1, 1993, two members of a police surveillance team stationed in the area of South Main and Monroe streets in Norwalk observed the defendant in an alley on Monroe Street. One of the officers, Arthur Wisegerber, with the aid of high-powered binoculars, observed the defendant hand a man, later identified as Fred Robinson, a clear plastic bag that contained a small white object, approximately the size of a fingernail. Wisegerber observed Robinson give the defendant a quantity of paper currency in return. The entire transaction took approximately twenty seconds during which time Wisegerber had a clear view of the alley.

As he left the alley, Robinson was followed by members of the surveillance team and placed under arrest. Upon searching Robinson, the officers discovered a clear plastic bag that contained cocaine. Approximately thirty minutes after Robinson’s arrest, the defendant returned to his car and drove toward the intersection of West Avenue and Martin Luther King Drive. As he approached the intersection, police officers stopped him and placed him under arrest. The defendant was taken to the Norwalk police station where both he and Robinson were identified by Wisegerber as the persons he had obseived in the alley earlier that day.

At trial, the defendant testified that he did not sell drugs to Robinson, although he admitted selling drugs in the past. Likewise, Robinson testified that the defendant did not sell him the drugs found on his person, but that he purchased the narcotics from an anonymous “Spanish kid” whom he refused to identify. The jury returned a guilty verdict on all four counts.

On appeal, the defendant claims that the trial court should have exercised its discretion pursuant to General Statutes § 54-56 and dismissed the information when he moved for judgment of acquittal at the close of the state’s case. In support, the defendant argues that the trial court improperly concluded that the evidence presented by the state, specifically the testimony of Wisegerber, was legally sufficient to support a conviction. We disagree.

“This court’s review of claims relating to the sufficiency of the evidence to sustain a criminal conviction is governed by a well established standard of law. Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same. . . . We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Joyner, 225 Conn. 450, 455, 625 A.2d 791 (1993).

In this appeal, the defendant’s challenge of the evidence focuses primarily on the claim that the officer’s testimony was not believable. “Such an argument challenges witness credibility, not sufficiency of the evidence. The jury is the final arbiter of credibility . . . and it [is] free to believe the testimony given by the [witness] and disbelieve the defendant’s testimony. See, e.g., State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983); State v. Festo, 181 Conn. 254, 260-61, 435 A.2d 38 (1980).” Aksomitas v. Aksomitas, 205 Conn. 93, 101, 529 A.2d 1314 (1987). Specifically, the defendant relies on the following portions of Wisegerber’s testimony: first, that the officer admitted that there was some obstruction of his view; second, that the defendant was not in his view the entire time; and third, that he could not see the complete alleyway.

“[W]e give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawn therefrom that support the jury’s determination of guilt.” State v. Dukes, 46 Conn. App. 684, 690, 700 A.2d 119 (1997). Therefore, the dispositive issue on appeal is whether the evidence presented during the state’s case-in-chief is sufficient to sustain the conviction. Our inquiry is guided by the well established principle that “[t]he trier of fact may accept or reject the testimony of any witness. State v. Cooley, 24 Conn. App. 489 [490-91], 589 A.2d 377, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). The trier can, as well, decide what—all, none, or some—of a witness’ testimony to accept or reject. 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) § 3.2.” State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 (1996).

At trial, the officer testified that he observed a hand-to-hand exchange between the defendant and Robinson. Additional testimony showed that Robinson was in possession of cocaine immediately following this exchange. In denying the defendant’s motion, the trial court properly determined that there was sufficient evidence from which a trier of fact reasonably could conclude beyond a reasonable doubt that the defendant committed the crimes charged.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-56 provides: “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”

       We note that the defendant does not point to the specific element or elements of the crimes charged on which the state failed to present evidence.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. NISSA APONTE
    (AC 15002)
    Foti, Kulawiz and Daly, Js.

      Argued June 8
    officially released August 25, 1998

      Lori Welch-Rubin, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph J. Harry, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Nissa Aponte, appeals from the judgment of conviction, following a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (l) and two counts of risk of injury to a child in violation of General Statutes § 53-21.

The defendant claims that the trial court improperly (1) instructed the jury on accessorial culpability, (2) denied her motion for acquittal and deemed the injuries inflicted to have comported with § 53a-59 (a) (1), (3) admitted evidence of prior custodial disputes, (4) admitted incomprehensible testimony by the victim, (5) condoned prosecutorial misconduct in which the state gave the victim a doll prior to her testifying, (6) permitted evidence of criminal convictions to impeach the defendant’s only witness, (7) instructed the jury as to the victim’s testimony, (8) failed to grant a mistrial at the conclusion of voir dire and (9) failed to grant the defendant’s motion to dismiss one count of risk of injury to a child because of duplication.

The defendant and Carmen Lopez Casado were both charged with two counts of assault in the first degree and two counts of risk of injury to a child involving the defendant’s three year old daughter. The cases were consolidated for trial and, after the jury was selected, the state moved for and the trial court granted severance of the two cases. The state elected to proceed against the defendant first. The defendant moved for dismissal of the jury based on the questioning of prospective jurors concerning their opinions on the defendant’s sexual orientation. The motion was denied.

The trial court denied the defendant’s request to conduct a hearing into the competency of the child. It also denied a motion for a mistrial that was based on the prosecution’s giving the victim a doll prior to her testifying. The trial court also denied the defendant’s motion to strike the victim’s testimony as being incomprehensible.

The jury reasonably could have found the following facts. The defendant is the mother of the victim, who was born on April 7, 1990. At the time the victim was one and one-half years old, the defendant requested that her friend, Ermys Lugo, raise her. In February, 1994, Lugo turned the child over to the defendant pursuant to a court order. The child was physically sound at that time.

On March 30,1994, the defendant arrived at the home of her mother, Irma Ramos, with her daughter, whose eyes were black and swollen. The defendant explained that the child had struck the inside of the car. The defendant left the child with Ramos after being assured that the latter would not notify the police. Ramos noticed marks on the victim’s back, front and legs when giving her a bath. Ramos secreted the child with a neighbor to hide her from the defendant. The neighbor called the Bridgeport police on March 31, 1994. The child was taken by ambulance to Bridgeport Hospital, where she remained for a few days. She told Ramos that both the defendant and Lopez Casado had hurt her.

Officer David Osika of the Bridgeport police department responded to the neighbor’s call and inquired about who had injured the victim. The victim indicated that her mother, the defendant, had done it. Detective Michael Whittaker of the Bridgeport police youth bureau also responded to the neighbor’s home and asked the victim how she was injured. The victim said “la pata,” Spanish slang for lesbian. Whittaker interviewed the defendant, who implicated Lopez Casado as having harmed the victim. He took another statement from the victim that both the defendant and Lopez Casado had hit her using a belt, and that Lopez Casado inflicted abrasions to her knees and burned her finger.

The emergency room physicians discovered, in addition to the eye injury, that there were numerous marks on the victim’s arms, thighs, knees, lower legs, chest, abdomen, back, ear and behind the ear. Nada Abdel A’al, an emergency room pediatric resident, examined the victim and diagnosed a pancreatic injury, which proved not to be life threatening. She determined that the eye injury was serious and that the victim could not open her left eye.

Richard Garvey, a general surgeon, testified that laboratory test results indicated possible internal bleeding consistent with an injury to the pancreas, making death a possibility. His overall diagnosis was “battered child syndrome.” This diagnosis was confirmed by Alison Driggers, a pediatrician, who also determined that the pancreatic injury created a risk of death.

The defendant’s only witness was Carmen Lopez, Lopez Casado’s mother, who testified that on March 30, 1994, the victim was on the middle rear seat of her car as Lopez exited from her driveway. A truck caused her to apply the brakes suddenly causing the victim to fall forward between the front bucket seats.

I

The defendant claims that the trial court violated her rights to due process and a fair trial by giving the jury a supplemental instruction that allowed the jury to convict her as an accessory on two counts of assault in the first degree and two counts of risk of injury to a child. The defendant argues that the state prosecuted her only as a principal and that in preparing her defense, she relied on not being charged as an accessory.

We are unpersuaded because it is clear from the record that the defendant was on notice that she could face liability as an accessory, as specifically set forth in the state’s reply to the defendant’s request for a bill of particulars. The defendant suffered no prejudice from the trial court’s supplemental instruction.

“The fact that a defendant is not formally charged as an accessory pursuant to General Statutes § 53a-8 does not preclude a conviction as such. State v. Crump, 201 Conn. 489, 493, 518 A.2d 378 (1986). This state . . . long ago adopted the rule that there is no practical significance in being labeled an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility. State v. Harris, 198 Conn. 158, 164, 502 A.2d 880 (1985). Under the modem approach, a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. ... Id. [Tjhere is no such crime as being an accessory .... The accessory statute merely provides alternate means by which a substantive crime may be committed. State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985). [State v. Harris, supra], 163.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 340-41, 696 A.2d 944 (1997).

The defendant further claims that the evidence did not support giving the charge on accessorial culpability. “[T]o convict one as an accessory for aiding and abetting, the state must prove that the accused had both criminal intent and community of purpose with the principal perpetrator of the crime. General Statutes § 53a-8 requires (1) that the accessory have the intent to aid the principal, and (2) that, in so doing, he have the intent to commit the offense with which he is charged.” State v. Tucker, 9 Conn. App. 161, 164, 517 A.2d 640 (1986). “Intent may be inferred from the circumstances and from what was done.” 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 66c, p. 474.

The jury reasonably could have believed that the victim had been subjected to numerous injuries inflicted by both the defendant and Lopez Casado at various times. We are convinced from a review of the evidence that it was sufficient to support the trial court’s instruction on accessorial culpability.

II

The defendant claims that the trial court improperly denied her motion for judgment of acquittal, since the evidence was insufficient to warrant her conviction for assault in the first degree. She claims that the evidence failed to establish “serious physical injury” either to the pancreas or the eye. Section 53a-59 (a) provides in part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury . . . .” General Statutes § 53a-3 (4) defines serious physical injury as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”

It is axiomatic that the state has the burden of proving each element of the offense beyond a reasonable doubt. 1 B. Holden & J. Daly, supra, § 58a, p. 324. “We begin our analysis by restating the principles that guide and define the scope of our review. When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Cintron, 39 Conn. App. 110, 118, 665 A.2d 95 (1995).

“[W]e have repeatedly stated that our review of the conclusions of the trier of fact, whether it be a judge, a panel of judges or a jury, is limited. . . . This court will construe the evidence in the light most favorable to sustaining the trial court’s [judgment] and will a ffirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . The probative force of direct and circumstantial evidence is the same. . . . State v. DeJesus, 236 Conn. 189, 200, 672 A.2d 488 (1996).” (Internal quotation marks omitted.) State v. Peruccio, 47 Conn. App. 188, 194, 702 A.2d 1200 (1997), cert, denied, 243 Conn. 964, 707 A.2d 1266 (1998).

Garvey, a surgeon who examined the victim in the emergency room, testified that her pancreatic injury created a risk of death. Abdel A’al, a pediatric resident who examined the victim in the emergency room, testified that the victim’s left eye injury impaired her vision in that eye, albeit temporarily.

The statute does not require that the impairment of the organ be permanent. See State v. Rumore, 28 Conn. App. 402, 415, 613 A.2d 1328, cert, denied, 224 Conn. 906, 615 A.2d 1049 (1992). We cannot say as a matter of law that the jury could not reasonably have found on the basis of the evidence presented that the victim suffered a “serious physical injury.” The trial court correctly denied the motion for judgment of acquittal.

Ill

The defendant claims that the trial court improperly admitted evidence of a December 10, 1993 custodial dispute involving the victim at the city welfare office in which the defendant and Lopez Casado grabbed the crying child from Lugo and abducted her. The police were notified, and the victim was found at Lopez Casado’s residence and returned to Lugo, who had been designated the child’s guardian by the defendant. Officer Richard Azzarito of the Bridgeport police department testified that the victim was “huddled up in a fetal position on a mattress, a makeshift bed on the floor.” He stated that she was crying and wanted to return to Lugo, and that she was delighted to be reunited with Lugo.

On February 9, 1994, the defendant requested that the police escort her to retrieve the victim from Lugo. Officer James Baraja escorted the defendant and, at trial, testified that he had observed none of the physical marks on the victim that he later saw on March 31, 1994, when he accompanied Whittaker to the home of Ramos’ neighbor. The defendant objected to this evidence on the grounds that it was prejudicial and irrelevant. The state claimed that the evidence was indicative of motive in that the defendant was angry and wanted to punish the victim because she preferred to remain with Lugo. The trial court overruled the defendant’s objections.

While acts “of misconduct do not in and of themselves prove intent [to assault], they are relevant to establish, in connection with the question of intent, a pattern of behavior and an attitude toward the child that is indicative of the defendant’s state of mind.” State v. Tucker, 181 Conn. 406, 415, 435 A.2d 986 (1980).

The evidence was also relevant to prove the physical condition of the child on those occasions. “ ‘We may usefully begin our inquiry on this issue by restating the two-step analysis that a trial court must conduct in deciding whether to admit evidence of a party’s collateral misconduct. The court first must determine whether the evidence is relevant and material to an issue properly before the court. . . . Evidence of other misconduct, although not ordinarily admissible to prove the bad character or criminal tendencies of the accused, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity . . . . Second, after a finding that the evidence is relevant, the trial court must then decide whether its admission is warranted because its probative value outweighs its prejudicial effect.’ ” Berry v. Loiseau, 223 Conn. 786, 804, 614 A.2d 414 (1992).

“Because of the latitude we accord trial courts on questions of relevance . . . and [b]ecause of the difficulties inherent in [the process of balancing probative value and prejudicial effect], the trial court’s decision [to admit evidence of other misconduct] will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id., 804-805.

Applying these standards to the facts in this case, we conclude that the trial court did not abuse its discretion.

IV

The defendant next claims that the trial court improperly permitted the four year old victim to testify without first determining her competency and admitted incomprehensible testimony depriving the defendant of the right to meaningful cross-examination.

“Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there are often no witnesses except the victim.” (Internal quotation marks omitted.) State v. James, 211 Conn. 555, 566, 560 A.2d 426 (1989). General Statutes § 54-86h provides in relevant part: “No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault . . . shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.”

Furthermore, “[t]he absence of the preliminary hearing for a child . . . assault victim does not in our judgment significantly hamper effective cross-examination so long as the child can give testimony satisfying minimum standards for relevancy”; State v. James, supra, 211 Conn. 565; or credibility. State v. Weinberg, 215 Conn. 231, 243, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

“Certainly if a child . . . assault victim could only babble or could present no useful evidence, its testimony could hardly be deemed relevant or probative. . . . Many witnesses, not only children, have difficulty in remembering events, understanding questions, and expressing themselves clearly, disabilities that often raise problems for the cross-examiner.” State v. James, supra, 211 Conn. 564-65.

On the basis of § 54-86h, the trial court properly denied the request for a preliminary hearing on the competency of the victim. Furthermore, the trial court did not abuse its discretion in determining that the victim’s testimony met the necessary standards. “Inconsistencies in testimony and witness credibility are matters that are within the exclusive purview of the jury to resolve at trial.” State v. Smith, 46 Conn. App. 600, 608, 700 A.2d 91, cert. denied, 243 Conn. 935, 702 A.2d 642 (1997).

V

The defendant next appeals from the denial of her motion for a mistrial. She claims that the actions of the prosecution in giving the victim a doll and a ride in the witness chair in the hallway constituted prosecutorial misconduct, i.e., improperly influencing a witness.

“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . State v. Wooten, [227 Conn. 677, 693-94, 631 A.2d 271 (1993)]. On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972). . . . State v. Day, 233 Conn. 813, 836-37, 661 A.2d 539 (1995). The trial court is in a better position than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. Id., [836-37], The decision whether to grant a mistrial is within the sound discretion of the trial court. Id., 835; see Practice Book § 887 [now § 42-43].” (Internal quotation marks omitted.) State v. Correa, supra, 241 Conn. 350-51.

“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We must, therefore, determine whether the [actions] of the prosecutor, in light of all the circumstances, including the trial court’s charge, were so egregious and so damaging to the defendant that they deprived him of a fair trial.” (Citations omitted; internal quotation marks omitted.) State v. Sivri, 46 Conn. App. 578, 590-91, 700 A.2d 96, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997). “ ‘In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument; State v. Fullwood, [194 Conn. 573, 585, 484 A.2d 435 (1984)]; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, [194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert.. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985)]; see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, [196 Conn. 157, 164, 491 A.2d 1075 (1985)]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra [1181]; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, supra [654]; and the strength of the state’s case. See United States v. Modica, supra [1181]; State v. Couture, supra, 564; State v. Glenn, [194 Conn. 483, 492, 481 A.2d 741 (1984)].’ ” State v. Sherman, 38 Conn. App. 371, 377, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995).

The defendant was accorded a wide range of latitude in cross-examining the victim. In view of this latitude and after consideration of the factors set forth in State v. Sherman, supra, 38 Conn. App. 377, we hold that the prosecutor’s actions here were not so egregious or damaging as to deny the defendant a fair trial.

VI

The defendant next claims that the trial court improperly permitted the introduction of a twenty-three year old welfare fraud conviction and a 1987 unnamed felony conviction to impeach the defendant’s only witness, Carmen Lopez.

Prior convictions that are admissible for impeachment purposes may be segregated into two general categories. First are those crimes that by their very nature indicate dishonesty or tendency to make false statements. The second category encompasses convictions for crimes that although they do not reflect directly on one’s credibility, they show a general disposition toward evilness and thus support an inference of a readiness to lie. See State v. Dawkins, 42 Conn. App. 810, 819, 681 A.2d 989, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996); State v. Theriault, 38 Conn. App. 815, 822, 663 A.2d 423, cert. denied, 235 Conn. 922, 666 A.2d 1188 (1995); State v. Johnson, 4 Conn. App. 672, 673-74, 496 A.2d 522 (1985).

“ [Our Supreme Court has] sanctioned a general guideline for the determination of remoteness that parallels rule 609 (b) of the Federal Rules of Evidence. Rule 609 (b) establishes a ten year limitation from conviction or release from resulting confinement upon the use of the conviction for impeachment purposes unless the probative value of the conviction substantially outweighs its prejudicial effect.” (Internal quotation marks omitted.) State v. Webb, 37 Conn. App. 722, 732, 657 A.2d 711, cert. denied, 234 Conn. 915, 660 A.2d 357 (1995). Prior convictions may surmount the ten year bar when they reflect a larcenous intent and thus are probative of dishonesty. Id. Acts of deceit, fraud, cheating or stealing are regarded as conduct that reflects adversely on a witness’ honesty and integrity. See State v. Nardini, 187 Conn. 513, 523-24, 447 A.2d 396 (1982). Welfare fraud falls into this category. The 1987 unnamed felony conviction was less than ten years old at the time of trial, which occurred in 1995.

The court’s decision will be upset only if the court abused its discretion. 2 B. Holden & J. Daly, supra, § 125b (4), p. 1237. We find no abuse of discretion.

VII

The defendant claims that the trial court failed to instruct the jury in accordance with a request to charge concerning special considerations relating to the credibility of a child witness and that it mischaracterized the nature of her testimony.

The defendant requested a cautionary instruction be given that “a young child may be more amenable to any influence or suggestion which may be made to her by older persons and particularly by persons closely related to her. A child’s imagination often misleads her and, may to her, take on all semblances of actual facts and she will relate them as such. The sanctity of oath and the solemnity of legal proceedings may appeal to her less than to an adult.”

“‘The prevailing view . . . is that a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness and, if so, the nature of that instruction.’ ” State v. James, supra, 211 Conn. 567-68. The instruction requested by the defendant was not for the statement of any rule of law but for a cautionary comment on the evidence. We have frequently referred to the broad discretion of a trial court in commenting on the evidence. We conclude that the trial court did not abuse its discretion in refusing to so charge on the credibility of a child witness.

The defendant also claims that the trial court improperly characterized the evidence in stating that the victim “testified that both the defendant and [Lopez Casado] had used a belt to injure her, and she retold the same story to the police, the medical staff and here in court to you.”

“A trial court has broad discretion to comment on the evidence adduced in a criminal trial. . . . The principal function of a juiy charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established . . . .” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991). “The pertinent test is whether the charge read in its entirety, fairly presents the case to the juiy in such a way that injustice is not done to either party under the established mies of law.” (Internal quotation marks omitted.) Id., 465.

The trial court accurately summarized the victim’s testimony in conjunction with its applicability to acces-sorial culpability.

VIII

The defendant claims that the trial court should have granted her motion for a mistrial made at the conclusion of voir dire and after the codefendant’s case was severed because the lesbian relationship between the code-fendants was explored during voir dire by other counsel, thus denying the defendant a fair trial.

This claim is similar to one made in State v. Safford, 21 Conn. App. 467, 470, 574 A.2d 1305, cert. denied, 216 Conn. 803, 577 A.2d 717 (1990), where the separate incidents of sexual assault were charged and referred to during the voir dire, and after jury selection was completed but before the jury was sworn in, the state chose not to proceed with the charge as to the second incident. The defendant moved to dismiss, arguing that the jury’s knowledge of the other charge would be overly prejudicial to him. Id.

A motion for a mistrial is treated as a motion to dismiss the jury. The trial court possesses wide discretion in passing on such a motion. It should be granted only where it is apparent that the defendant has been deprived of the opportunity for a fair trial. The ultimate question on a motion to dismiss the jury is whether there was substantial and irreparable prejudice to the defendant’s case. Of particular importance in our inquiry is the conduct of voir dire. Voir dire plays a critical function in assuring the criminal defendant that her sixth amendment right to an impartial jury will be honored.

“Unless all [of a defendant’s] peremptory challenges have been exercised before the completion of jury selection, it is presumed that no juror was permitted to serve whom the defendant regarded as biased or unsuitable, although he [or she] might have preferred others.” (Internal quotation marks omitted.) State v. Mercer, 208 Conn. 52, 61-62, 544 A.2d 611 (1988). The twofold purpose of voir dire is “to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges. . . . Voir dire should be limited to those questions which are pertinent and proper for testing the capacity and competency of the juror . . . and which are neither designed nor likely to plant prejudicial matter in [the jurors’minds].” (Citation omitted; internal quotation marks omitted.) State v. Skipper, 228 Conn. 610, 625-26, 637 A.2d 1101 (1994).

The defendant’s sexual orientation was an intricate part of the case, since the victim had referred to her abuser using Spanish slang for lesbian, as did other witnesses. The jurors chosen indicated their impartiality. Curative instructions, to which the defendant failed to take any exception, were given and appropriately addressed the circumstances at hand. “The jury is presumed to follow the court’s directions in the absence of a clear indication to the contrary. . . . State v. Raguseo, 225 Conn. 114, 131, 622 A.2d 519 (1993).” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 242, 710 A.2d 732 (1998). Furthermore, it should be noted that the defendant exercised only one peremptory challenge. The record thus discloses no evidence that the jurors who sat on the defendant’s case were prejudiced.

On this basis, we conclude that the defendant has failed to show that actual juror bias deprived her of a fair trial.

IX

The defendant finally claims that the third count charging risk of injury to a child on or about March 30 or 31, 1994, should have been dismissed on the ground of double jeopardy because the fourth count charges risk of injuiy to a child between the dates of March 1 and March 31, 1994.

“Double jeopardy prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense. . . . Before the double jeopardy prohibition is triggered, however, it must appear . . . that the crimes arose out of the same act or transaction . . . .” (Citations omitted; internal quotation marks omitted.) State v. Snook, 210 Conn. 244, 261, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). “The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact.” Id., 264.

“Each assault . . . constituted a discrete offense, separately punishable under our law. The same rationale applies with equal force to the crime of risk of injury, that is, each claim of risk of injury . . . constituted a separate and distinct crime.” State v. Angelo, 25 Conn. App. 235, 242, 594 A.2d 24, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991).

The state’s position is that the third count is based on the eye injury, which occurred on March 30, 1994, the day before the victim’s admission to the hospital. The fourth count is based on the injury to the victim’s pancreas, which was of recent origin, and on beatings that were at least two weeks old and cigarette bums that were at least one week old.

The defendant has failed to meet her initial burden of demonstrating that her conviction on the charges of risk of injury to a child arose out of the same act.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty ol' assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.”

       The defendant cites article first, § 8, of the constitution of Connecticut.

      Paragraph four of the bill of particulars states: “State objects to this request and puts the defendant on notice that an accomplice/accessory jury instruction will be sought by the state.”

       The trial court did charge: “You may consider age, demeanor while testifying, capacity to observe facts and to recollect them, ability to understand questions put to her and ability to answer them intelligently.”


author: O’CONNELL, C. J.

text:
    KEITH BRADOC GALLANT, ADMINISTRATOR (ESTATE OF THELMA S. CAVALLARO) v. JOAN CAVALLARO ET AL.
    (AC 16867)
    O’Connell, C. J., and Landau and Schaller, Js.

      Argued January 15
    officially released August 25, 1998

      Joan Cavallaro, pro se, the appellant (named defendant).

      Charles D. Ray, with whom, on the brief, was William H. Narwold, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The named defendant, Joan Caval-laro, appeals from a judgment of partition and sale of property at 26 Crescent Bluff Avenue in Branford. Prior to her death, Cavallaro’s mother owned an undivided one-half interest in the property as a tenant in common with her three daughters, Cavallaro, Mary Malcolm and Julie Cooper, each of whom owned an undivided one-sixth interest.

The Probate Court for the district of Branford appointed the plaintiff, Keith Bradoc Gallant, administrator of the decedent’s estate. Gallant brought this action for partition and sale of the property in the Superior Court, alleging that the estate was unable to pay its debts, taxes and expenses of administration without obtaining the proceeds of the sale of the property.

Following an evidentiary hearing, the trial court rendered an oral decision in the plaintiffs favor, ordering the partition and sale. The trial court subsequently appointed a committee to conduct the sale, which took place on November 23,1996. Despite Cavallaro’s objection, the trial court approved the sale and this appeal followed.

On appeal, Cavallaro claims that the trial court (1) lacked subject matter jurisdiction to entertain this partition action and (2) improperly approved the sale in view of the circumstances surrounding it. We affirm the judgment of the trial court.

I

Cavallaro’s first claim may be divided into two issues: first, whether the trial court had jurisdiction to entertain this action and, second, even if the trial court had jurisdiction, whether the administrator had standing to sue for partition.

A

In the first part of this claim, Cavallaro raises an issue of the Superior Court’s jurisdiction. Whenever a claim of lack of jurisdiction is brought to the court’s attention, it must be resolved before the court can proceed. Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988); Vincenzo v. Warden, 26 Conn. App. 132, 135, 599 A.2d 31 (1991).

The jurisdiction of the Probate Court to entertain partition actions during the settlement of an estate is not disputed. General Statutes § 45a-326. The jurisdiction of the Superior Court to entertain partition actions is likewise not in dispute. General Statutes §§ 52-495 and 52-500. The crux of Cavallaro’s argument is that when an estate is in settlement, the Probate Court has sole jurisdiction to order a partition of property within the estate to the exclusion of the Superior Court. We are not persuaded.

We first note that “[w]hen two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes . . . [and] where there is a reasonable field of operation for each statute which does not impinge on the domain of the other, it is the court’s duty to give them concurrent effect.” (Internal quotation marks omitted.) Whalen v. Ives, 37 Conn. App. 7, 11, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995). Thus, every effort should be made to reconcile the operation of § 45a-326 with that of §§ 52-495 and 52-500.

The fallacy in Cavallaro’s otherwise well analyzed brief is that it does not give proper weight to two other statutes, General Statutes §§ 45a-98 (b) and 52-503. Section 45a-98 (b) expressly provides that “[t]he jurisdiction of courts of probate to determine title or rights ... is concurrent with the jurisdiction of the Superior Court and does not affect the power of the Superior Court as a court of general jurisdiction.” (Emphasis added.) This section is a declaration that the Probate Court and the Superior Court are to have concurrent jurisdiction over matters involving title and rights to property.

Section 52-503 provides that “[n]o partition, or sale in lieu of partition, may be made of any property, real or personal, belonging wholly to an estate in settlement in any court of probate until the estate is ready for distribution.” (Emphasis added.) Thus, § 52-503 is a limitation on the partition and sale powers granted to the Superior Court by §§ 52-495 and 52-500 and, therefore, a limitation on the Superior Court’s otherwise concurrent jurisdiction with the Probate Court.

A plain reading of § 52-503 indicates, however, that if the property does not belong wholly to an estate in settlement, then the Superior Court may proceed with partition. The property in the case before us does not belong wholly to an estate in settlement because only a one-half interest in the property belongs to the decedent’s estate, while the other one-half interest belongs to the decedent’s three daughters. Accordingly, the restriction of § 52-503 is not relevant here and, therefore, does not apply to limit the jurisdiction of the Superior Court.

We conclude that the Superior Court and the Probate Court had concurrent jurisdiction to entertain an action for partition in this case.

B

Cavallaro next argues that even if the Superior Court had concurrent jurisdiction to entertain this action, the plaintiff, as an administrator, lacked standing to sue for partition. General Statutes §§ 52-495 and 52-500 confer authority on the Superior Court to order partition and sale upon the complaint of any person interested. Cavallaro relies on the well established doctrine that “[u]pon the death of the owner of real estate, neither the executor nor the administrator holds title. Ryder v. Lyon, 85 Conn. 245, 252, 82 A. 573 (1912). Title immediately descends to the heirs or devisees of real estate, subject to the right of administration. O’Connor v. Chiascione, 130 Conn. 304, 33 A.2d 336 (1943).” Goodman v. Bank of Boston Connecticut, 27 Conn. App. 333, 341, 606 A.2d 994 (1992).

The issue of whether the administrator of an estate has standing to sue for partition and sale of real property partially belonging to the estate was addressed by this court in Claydon v. Finizie, 7 Conn. App. 522, 508 A.2d 845 (1986). The administrator in Claydon, like the plaintiff in the case before us, sought partition and sale in the Superior Court of property belonging to the decedent and her three children. The only significant distinction between Claydon and the appeal before us is that the plaintiff-administrator in Claydon did not allege that partition of the property was necessary to settle claims against the estate. As a result, the Claydon court concluded that the administrator did not satisfy the requirement of §§ 52-495 and 52-500 that the action be brought by a person with an interest in the property. Id., 526.

The converse of the Claydon rule is that if the administrator alleges that the property is needed to settle claims against the estate, then he meets the requirement of having an interest in the property. The plaintiff here made the requisite allegation; therefore, following Clay-don, we hold that the plaintiff had standing to seek partition.

II

Cavallaro’s final claim is that the trial court improperly approved the partition sale. A partition by sale, although a creature of statute, is an equitable action, and it is within the trial court’s discretion to order a partition by sale. Geib v. McKinney, 224 Conn. 219, 228, 617 A.2d 1377 (1992). Accordingly, once the court has exercised its equitable jurisdiction by ordering a partition by sale, it also has discretion to approve or reject the sale. See Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988) (court of equity in foreclosure suit has discretion to accept or reject proposed sale); Jefferson v. Karpowicz, 10 Conn. App. 198, 200, 522 A.2d 322 (1987) (trial court’s approval of partition sale proper where substantial compliance with court’s order of sale and absent compelling circumstance to hold otherwise); 47 Am. Jur. 2d, Judicial Sales, § 282 (1995). Thus, the standard for reviewing Cavallaro’s claim is whether the court abused its discretion in approving the sale. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling.” Geib v. McKinney, supra, 229.

“It is generally recognized that the grounds which would warrant a court’s refusal to approve a sale are fraud, misrepresentation, surprise or mistake.” Jefferson v. Karpowicz, supra, 10 Conn. App. 200. Cavallaro argues that the court should not have approved the sale because the committee misrepresented the liens on the property, causing potential bidders to withhold their bids or actual bidders to bid less than they would have otherwise. Her contention is based on arguments she made to the trial court at the sale approval hearing.

Whether the committee made the alleged misrepresentations and, if so, whether they affected the final bid price are issues of fact. No evidence was submitted to the trial court on which it could base a factual finding that such misrepresentations were made by the committee. The documents on which Cavallaro relies in her brief were not entered into evidence before the trial court. Furthermore, Cavallaro did not call any witnesses to testify, nor did she testify herself. She merely represented to the court that her search of the land records revealed that the amount of the liens totaled less than the amount that the committee had allegedly quoted to potential bidders. Representations of counsel, or in this case, of a pro se litigant, have no evidentiary weight. L & L Builders, Inc. v. Parmelee, 221 Conn. 203, 204, 602 A.2d 1016 (1992).

Even if there were a factual basis for finding such misrepresentations, there was no evidence of their effect on the sale price. Cavallaro offered only her subjective belief that a significant number of potential bidders were discouraged from bidding or that actual bidders were discouraged from bidding higher. That assertion was no more than mere speculation.

Accordingly, our review of the record discloses no evidence supporting Cavallaro’s claim that the committee made the alleged misrepresentations and that the sale price was thereby affected. We conclude that the trial court did not abuse its discretion in approving the sale.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants were Cavallaro’s sisters, Mary Malcolm and Julie Cooper, and Bank One, Texas, which held a mortgage on the property. Cavallaro was the only defendant who contested the partition and sale.

      General Statutes § 45a-326 (a) provides: “During the settlement of the estate of any person who died owning an undivided interest in any property not, specifically devised or bequeathed, the executor or administrator of the estate and the owner or owners of the major portion of the other interest therein may apply in writing to the court of probate having jurisdiction of the estate to order partition of the same.”

       General Statutes § 52-495 provides in relevant part: “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. ...”

       General Statutes § 52-500 (a) provides: “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.”

       See footnotes 3 and 4.

       Cavallaro told the trial court: “I believe that a. significant number of bidders who might have bid higher were discouraged from doing so or discouraged from bidding at all and, since we don’t know, I would move to have a new sale.” (Emphasis added.)


author: SPEAR, J.

text:
    ANTHONY A. PAPA, TRUSTEE v. THIMBLE CREEK CONDOMINIUM ASSOCIATION, INC., ET AL.
    (AC 17061)
    Spear, Kulawiz and Dupont, Js.

      Argued June 1
    officially released August 25, 1998

      Frederick P. Amore, for the appellant (named defendant).

      Roy H. Scharf, for the appellee (plaintiff).
   Opinion

SPEAR, J.

The named defendant, Thimble Creek Condominium Association, Inc. (association), appeals from the judgment of the trial court determining that the plaintiff is the beneficiary of an easement and that the association acted contrary to his right, title and interest by encumbering it with utility lines and equipment. The association claims that the trial court improperly (1) found that the plaintiff had proved by clear and convincing evidence that he is the owner of the easement in question, (2) found that the plaintiff was the owner of the dominant estate, (3) allowed the plaintiff to introduce evidence of an agreement for an alternate easement, (4) found that no evidence was offered at trial as to the location or ownership of light poles, telephone poles and a fire hydrant in the easement, (5) held that it would order injunctive relief on the request of the plaintiff and (6) found that the plaintiff had not abandoned his easement. We do not reach these issues because we dismiss the appeal for lack of a final judgment.

The plaintiff brought this action against the association and individual unit owners to determine the rights of the parties with respect to an easement that the plaintiff claims to possess over land owned by the association and subject to a claimed utility easement in favor of the defendant Connecticut Light and Power Company. The plaintiff alleged that the defendants interfered with his right-of-way by permitting parking and by erecting electrical utility boxes on the property, and by demolishing signs erected by the plaintiff advertising the property for sale. He sought a judgment determining the rights of the parties in or to the right-of-way and quieting title thereto, an injunction requiring the defendants to remove the obstructions from the plaintiffs right-of-way, an order enjoining the defendants from interfering with the right-of-way and damages.

On August 6, 1997, the plaintiff filed a motion to dismiss the appeal for lack of a final judgment. On September 17, 1997, this court denied the plaintiffs motion without prejudice to raising the final judgment issue at the time of consideration of the merits of the appeal.

“A possible absence of subject matter jurisdiction must be addressed and decided before reaching the merits. See Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993). ‘Absent a final judgment, we cannot reach the merits of the appeal.’ State v. O’Connell, 36 Conn. App. 135, 136, 648 A.2d 168, cert. denied, 231 Conn. 943, 653 A.2d 824 (1994).” AIU Ins. Co. v. Brown, 42 Conn. App. 363, 366, 679 A.2d 983 (1996). Accordingly, we first determine whether the trial court’s granting of partial judgment in favor of the plaintiff is a final judgment from which an appeal may be taken.

The trial court held that the plaintiff had proved by clear and convincing evidence that he is the beneficiary of the easement, and that the defendant has acted contrary to his right, title and interest by encumbering it with utility lines and equipment and that judgment may so enter. The court found that no evidence was offered as to monetary damages, so none were awarded. The court then stated that “[t]he plaintiff has requested an order that the defendants remove said utilities from the right-of-way. The court will defer action on that request to give all parties an opportunity to plan for and effect this removal in a reasonable time and manner. Should this not proceed in such a way, the plaintiff may move for a hearing to determine how this judgment should be implemented. One avenue available to the court is to refer to the stipulation of the parties in open court pursuant to which the defendant Connecticut Light and Power Company’s counsel was permitted to be absent from the trial upon his placing on the record the fact that the cost of the utilities relocation would be $25,974.36.”

In his motion to dismiss, the plaintiff argued that since the trial court deferred action on his request for injunctive relief and indicated that implementation of the decision could occur after further hearings, there is no appealable final judgment. He claims that the rights of the parties have not yet been so concluded that further proceedings cannot affect them.

The judgment of the trial court fully determined certain rights of the parties in that the plaintiff is the beneficiary of the easement and that the association has acted contrary to his right, title and interest by encumbering it with utility lines and equipment. The judgment, by its terms, disposed of all the issues in the case except the plaintiffs request for injunctive relief.

This case is controlled by Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 495 A.2d 1063 (1985). In Stroiney, the plaintiffs sought judgment declaring that the tax district had been illegally formed, and sought injunctive relief and damages. The trial court rendered summary judgment in favor of the plaintiffs and the defendants appealed. Our Supreme Court dismissed the appeal for lack of a final judgment. “The plaintiffs have not withdrawn or abandoned their claims for relief that have not yet been adjudicated. The situation, therefore, is similar to where a judgment has been rendered only upon the issue of liability without an award of damages. Such a judgment, being interlocutory in character, is not a final judgment from which an appeal lies. Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980); Palmer v. Hartford National Bank & Trust Co., 157 Conn. 597, 253 A.2d 28 (1968); New Haven Redevelopment Agency v. Research Associates, Inc., 153 Conn. 118, 120, 214 A.2d 375 (1965).” Stroiney v. Crescent Lake Tax District, supra, 84-85. In the present case, the plaintiff has not withdrawn or abandoned his request for injunctive relief.

“Such an interlocutory judgment does not fall within one of the narrowly defined exceptions to the general prohibition against appeals from judgments that are not final. ‘An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. ’ State v. Curcio, [191 Conn. 27, 31, 463 A.2d 566 (1983)]; Daginella v. Foremost Ins. Co., 197 Conn. 26, 30, 495 A.2d 709 (1985). The first alternative, termination of a separate and distinct proceeding, requires the order being appealed to be severable from the central cause of action so that the main action can ‘proceed independent of the ancillary proceeding.’ State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984). Obviously, a ruling affecting the merits of a controversy could not be separate and distinct.” Stroiney v. Crescent Lake Tax District, supra, 197 Conn. 85.

The judgment here does not terminate a separate and distinct proceeding. It is clear that the plaintiffs claim for injunctive relief could not go forward if we were to hold that the trial court improperly found that the plaintiff was the beneficiary of the easement and that the association had acted contrary to his right, title and interest by encumbering it with utility lines and equipment. As in Stroiney, the judgment in this case was “merely a step along the road to a final judgment and was not independent of the main action. . . . The first Curdo alternative is, therefore, not met.” (Citations omitted; internal quotation marks omitted.) Id.

Nor does the judgment in the present case satisfy the second Curdo alternative, which is that the rights of the parties be so concluded “that further proceedings cannot affect them.” (Internal quotation marks omitted.) Id.; In re Juvenile Appeal (85-AB), 195 Conn. 303, 312, 488 A.2d 778 (1985); New Haven Redevelopment Agency v. Research Associates, Inc., supra, 153 Conn. 120; State v. Fahey, 146 Conn. 55, 57, 147 A.2d 476 (1958); 47 Am. Jur. 2d, Judgments § 1054. Further proceedings on the plaintiffs request for an injunction are bound to affect the rights of the parties relative to the plaintiffs easement. Absent a final judgment, this court does not have jurisdiction to reach the merits of the association’s appeal.

The appeal is dismissed for lack of jurisdiction.

In this opinion the other judges concurred.

       The plaintiff filed the original complaint against the association and the individual condominium unit owners. He amended the complaint to include Connecticut Light and Power Company as a necessary party.