author: O’Connell, J.

text:
    Amwax Corporation v. J. Eric Chadwick et al.
    (10026)
    Dupont, C. J., O’Connell and Freedman, Js.
    Argued January 16
    decision released August 25, 1992

      Lawrence R. Pellett, with whom, on the brief, was Thomas F. McDermott, Jr., for the appellants (defendants).

      James P. Brennan, for the appellee (plaintiff).
   O’Connell, J.

The defendants appeal from a judgment for $1484 for the plaintiff, after a court trial. The defendants claim that the trial court abused its discretion in (1) finding that there was a legally enforceable oral lease between the parties, (2) allowing testimony about lost prospective profits, (3) finding lost profits of $24,000, and (4) failing to grant the defendants’ motion for judgment at the conclusion of the plaintiff’s case. We affirm the judgment of the trial court.

This action arises from a breach of an alleged oral lease between the plaintiff and the defendants. The plaintiff was interested in moving its candle manufacturing business from New York state. Among the new locations considered was the defendants’ property in Torrington. Henry Groupe, president of the plaintiff corporation, and the defendants conferred in person and by telephone on several occasions concerning a written lease. Repair of the roof and installation of a sanitary sewer connection by the defendants were important parts of these negotiations. As a result of these negotiations, the defendants allowed the plaintiff to move into the premises in May, 1986, at an agreed annual rent of $14,000. The defendants failed to repair the roof or to install the necessary sanitary sewer connections. Because the defendants failed in their roof and sewer obligations, the plaintiff was unable to commence candlemaking operations and sustained lost profits. The plaintiff remained in possession for one year until evicted by the defendants in April, 1987. The plaintiff made no rental payments during the one year period of its occupancy.

The plaintiff brought this action claiming damages for loss of profits allegedly caused by the defendants’ breach of the terms of the oral lease. The defendant filed a counterclaim to recover unpaid rent. The trial court found that the plaintiff had lost $24,000 in profits, but found that 40 percent of the plaintiff’s loss was caused by its failure to vacate the premises sooner and, therefore, reduced the loss to $14,400. After subtracting another $12,826 for the plaintiff’s failure to pay rent for the eleven month period of occupancy, the trial court rendered a net judgment in favor of the plaintiff for $1484. The defendants appeal.

The threshold issue concerns the trial court’s implicit finding that the parties entered into an enforceable oral lease. We must determine first whether a lease existed and then whether that lease is enforceable. The defendant claims that the trial court’s finding that an oral lease existed is clearly erroneous because (1) the plaintiff faded to prove that the parties intended to be bound before the written lease was executed and (2) the oral agreement is void under our statute of frauds. General Statutes § 52-550.

A lease is a contract and questions concerning it are determined in accordance with usual contract law. Robinson v. Weitz, 171 Conn. 545, 551, 370 A.2d 1066 (1976). “Whether a contract exists is a question of fact or a mixed question of fact and law for the court to determine. See Gianetti v. Norwalk Hospital, 211 Conn. 51, 58 n.6, 557 A.2d 1249 (1989). The existence and terms of a contract are determined from the intent of the parties. See Steeltech Building Products, Inc. v. Edward Sutt Associates, Inc., 18 Conn. App. 469, 471, 559 A.2d 228 (1989). ‘The parties’ intentions manifested by their acts and words are essential to the court’s determination of whether a contract was entered into and what its terms were.’ Id., 471-72. It is within the province of the trier to draw reasonable and logical inferences from the facts proven. B. Holden & J. Daly, Connecticut Evidence § 64, p. 417.” Wickes Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 756-57, 596 A.2d 1331 (1991).

Whether the parties intended to be bound without signing a formal written contract is an inference of fact for the trial court that we will not review unless we find that its conclusion is unreasonable. Steeltech Building Products, Inc. v. Edward Sutt Associates, Inc., supra, 472. We cannot retry the facts or substitute our judgment for that of the trial court. Arbour v. McCollough, 186 Conn. 280, 285-86, 440 A.2d 980 (1982).

Groupe testified that the rental terms of the oral lease were as follows: annual rent of $14,000; a boiler, heating system, a new electrical service and gas service would be installed, and an office and proper sanitary connections for the employees’ toilets would be provided. The trial court’s articulated memorandum of decision finds that the parties orally agreed to these terms and that no written lease was executed. The memorandum was silent as to the duration of the lease, but the record shows that Groupe testified that the duration of the oral lease was three years. The court was free to disregard conflicting evidence. Lemmon v. Paterson Construction Co., 137 Conn. 158, 162, 75 A.2d 385 (1950); Milano v. Sayers, 6 Conn. App. 491, 497-98, 506 A.2d 162, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986).

This court construes the evidence in the light most favorable to sustaining the trial court’s verdict unless it is unsupported by the evidence and record as a whole. Kasper v. Anderson, 5 Conn. App. 358, 361, 498 A.2d 132, cert. denied, 197 Conn. 818, 501 A.2d 388 (1985). Our examination of the record satisfies us that the trial court’s determination that an oral contract existed was a reasonable conclusion supported by the evidence. Thus, it follows that the trial court did not abuse its discretion in refusing to grant the defendants’ motion for judgment at the close of the plaintiff’s case.

We turn now to the defendants’ claim that the three year oral lease described by Groupe cannot be enforced because it violates the statute of frauds provision concerning agreements that are not to be performed within one year from their making. We are confronted with the classic issue of the rights of the parties when a tenant takes possession under an oral lease that is invalid because of the statute of frauds. See 6 A.L.R.2d 685, Tenancy Under Void Lease §§ 1-19; 49 Am. Jur. 2d, Landlord and Tenant § 47 et seq.

“In this State the long-established rule is that when parties make an oral lease of lands reserving rent, which lease is nonactionable by reason of the statute of frauds, and the lessee thereafter enters into possession under the lease, there results a tenancy which under ordinary conditions at least will by implication of law be regarded as one from year to year.” Griswold v. Branford, 80 Conn. 453, 458, 68 A. 987 (1908). Even though the plaintiff entered under a void lease an enforceable tenancy is implied by law. Brodner v. Swirsky, 86 Conn. 32, 34, 84 A. 104 (1912); see also Handy v. Barclay, 98 Conn. 290, 119 A. 227 (1922); Boardman Realty Co. v. Carlin, 82 Conn. 413, 74 A. 682 (1909); Corbett v. Cochrane, 67 Conn. 570, 35 A. 509 (1896); Larkin v. Avery, 23 Conn. 304 (1854).

“Occupancy under the unenforceable lease created a tenancy the termination of which was determined by law. In determining the other terms of the tenancy, such as the amount of the rent and when payable, the agreement between the parties was properly resorted to.” Boardman Realty Co. v. Carlin, supra, 416. The trial court’s award of damages to the plaintiff under the tenancy implied by law was not improper under General Statutes § 52-550.

We next turn to the defendants’ claims that the court abused its discretion in admitting testimony of Groupe, the plaintiff corporation’s president, regarding lost profits and whether its finding of lost profits was supported by sufficient evidence on the record.

The trial court found that the building’s condition would not allow a candle manufacturing operation because of the leaking roof and lack of sanitary facilities. The court credited Groupe’s testimony that his lost business profits were $24,000. Because the trial court deemed that the plaintiff’s failure to remove itself when it was apparent that the premises were unsuitable caused 40 percent of its losses, the award was reduced to $14,400.

The defendant claims that Groupe’s testimony regarding lost profit caused by the defendants’ failure to repair the building was inadmissible because it was not supported by a proper foundation; see Hall v. Sera, 112 Conn. 291, 297, 152 A. 148 (1930); and, consequently, the trial court’s award of lost profits was unsupported by evidence on the record. Driscoll v. Jewell Belting Co., 96 Conn. 295, 299, 114 A. 109 (1921).

The trial court has broad discretion in the admission of opinion testimony; Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 718, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991); which necessarily includes broad discretion to ascertain if the testimony is supported by a proper foundation. See Lutkus v. Kelly, 170 Conn. 252, 256-57, 365 A.2d 816 (1976). Accordingly, its determination is accorded great deference by this court. Johnson v. Healy, 183 Conn. 514, 515-16, 440 A.2d 765 (1981). The court also has broad discretion in determining damages. Buckman v. People Express, Inc., 205 Conn. 166, 175, 530 A.2d 596 (1987). The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309-10, 460 A.2d 488 (1983). From our review of the record, we cannot conclude that the trial court’s ruling on the admission of Groupe’s testimony or its award of lost profits was clearly erroneous.

Turning finally to the defendants’ claim that the award of lost profits was not supported by the record, we note that the trial court has broad discretion in determining whether damages are appropriate. Buckman v. People Express, Inc., supra. Its decision will not be disturbed on appeal absent a clear abuse of discretion. Id. On the basis of our review of the record in the light most favorable to sustaining the judgment, we cannot conclude that the award of lost profits was an abuse of discretion.

The judgment of the trial court is affirmed and the case is remanded with direction to render judgment in the amount of $1574.

In this opinion the other judges concurred.

       We note an apparent mathematical error in calculating the net damages due to the plaintiff. The correct award should be $1574. Although not raised by the parties, the error is clearly technical and not substantive, and we will nevertheless correct it in our remand. See Greco v. Morcaldi, 145 Conn. 685, 690-91, 146 A.2d 589 (1958).

       General Statutes § 52-550 provides in part: “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (4) upon any agreement for the sale of real property or any interest in or concerning real property; or (5) upon any agreement that is not to be performed within one year from the making thereof....
      “(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Ellen Ann Ippolito v. Raymond Joseph Ippolito
    (10348)
    Daly, Landau and Heiman, Js.

      Argued June 15
    decision released August 25, 1992

      Gary I. Cohen, with whom, on the brief, was Alan S. Rubenstein, for the appellant (plaintiff).

      Richard L. Goldblatt, for the appellee (defendant).
   Daly, J.

In this appeal from the judgment in a marital dissolution action, the plaintiff, Ellen Ippolito, claims that (1) the state trial referee’s judgment was not rendered within 120 days in violation of General Statutes § 51-183b, (2) the award of time limited alimony was inconsistent with the factual findings made by the referee, and (3) the state trial referee improperly applied the statutory criteria for awarding alimony and property by focusing on the relative fault of the parties toward the breakdown of the marriage.

The following facts are relevant to this appeal. The plaintiff and the defendant were married in June, 1969. At that time, the defendant began medical school. The plaintiff assisted the defendant during his education and was the primary caretaker for their children. The parties endured financial hardships during the early years of their marriage while the defendant spent long hours studying and preparing to become a doctor. In 1978, the defendant entered into private practice as a surgeon and the parties’ financial condition greatly improved. The defendant opened his own office with the assistance of the plaintiff.

In 1978, the parties bought a house in Hamden. The defendant paid for all of the financing and expenses related to the house. At the plaintiff’s suggestion, the defendant spent approximately $70,000 to open a gym. The plaintiff handled the daily operations of the gym and the defendant took care of the finances and expenses related to the gym’s operation. The gym later went out of business.

The state trial referee found that the plaintiff engaged in two extramarital affairs during the course of the parties’ marriage. He noted that the defendant’s inattention toward the plaintiff also contributed to the breakdown of the marriage. The state trial referee concluded that “while both [parties] contributed to the breakdown, the major contributor was the plaintiff.”

The state trial referee ordered the defendant to pay $100,000 lump sum alimony and $850 per week as periodic alimony for a period of ten years which was non-modifiable as to duration. The lump sum alimony order was to assist the plaintiff in paying the mortgage and related expenses of the marital residence until it was sold within two years after judgment. The plaintiff retained sole possession of the marital residence. The state trial referee ordered that the plaintiff would receive 65 percent of the net proceeds of the sale of the marital residence with the defendant receiving the other 35 percent. The plaintiff was liable for any expenses related to the upkeep of the marital residence.

I

The plaintiff claims that the state trial referee’s decision was issued more than 120 days after the completion of the trial thereby violating General Statutes § 51-183b. We disagree.

The following additional facts are relevant to this claim. On December 14,1990, at the close of evidence, the trial referee and counsel for both parties discussed the filing of briefs in this matter. The referee noted that if either counsel sought to file a reply brief and notified opposing counsel, he would allow “both sides an opportunity to file reply briefs.” On December 18, 1990, the referee, after setting a date for the filing of briefs, stated that only one memorandum of law should be filed by the parties. On January 23,1991, the plaintiff filed her brief and the defendant filed his brief the next day. On January 29, 1991, the defendant filed a reply brief. On May 29, 1991, the state trial referee issued his memorandum of decision.

On June 18,1991, the plaintiff filed motions to vacate the judgment and for a new trial. The plaintiff argued that the completion date of the trial was January 24, 1991. The state trial referee’s decision was issued more than 120 days after that date and was void according to General Statutes § 51-183b. The plaintiffs motion was argued before the trial court, DeMayo, J. On July 31, 1991, the trial court denied the plaintiffs motion to vacate the state trial referee’s decision. The court found that January 29, 1991, the date of the defendant’s reply brief, constituted the completion date of the trial. The court reasoned that because the plaintiff never objected to the filing of the defendant’s reply brief and the state trial referee did not return the defendant’s reply brief, it was utilized by the state trial referee in his decision making. The decision was issued on May 29, which was 120 days from the completion date, and did not violate § 51-183b. The trial court further found that because the plaintiff did not move to vacate the judgment until June 17,1991, her objection to the timeliness of the judgment was “unseasonable.” Because of the plaintiff’s unseasonable objection, the trial court found that she impliedly consented to the alleged late judgment.

General Statutes § 51-183b provides that the trial court’s judgment in a civil nonjury case shall be rendered “not later than one hundred and twenty days from the completion date of the trial.” In Frank v. Streeter, 192 Conn. 601, 472 A.2d 1281 (1984), our Supreme Court held that the “completion date” of § 51-183b encompasses the filing of briefs after the conclusion of testimony. The Supreme Court reasoned that this interpretation was necessary in order to provide the trial court with “the opportunity to deliberate and to reach a thoughtful, reasoned conclusion.” Id., 605.

On the basis of our review, we conclude that the trial court properly found that the completion date of this trial was January 29, 1991, the date on which the defendant filed his reply brief. The state trial referee did give inconsistent statements as to his position on the filing of reply briefs. The fact that the state trial referee did not return the reply brief or notify the parties that he would not accept the reply brief indicates that he considered it part of the posttrial briefing process. The state trial referee noted that in dissolution matters he would accept reply briefs from both parties if the opposing counsel was notified. The plaintiff does not claim that she was not notified of the filing of the defendant’s reply brief. The plaintiff also did not file an objection to or a motion to strike the reply brief before the decision was rendered. These facts establish that the completion date was January 29, and that the decision rendered on May 29 did not violate § 51-183b. In light of this conclusion, we need not decide whether the trial court properly found that the plaintiff’s motion to vacate the judgment was an unseasonable objection that constituted a waiver of her right to challenge the judgment as violating § 51-183b.

II

The plaintiff next challenges the state trial referee’s award of time limited alimony. The plaintiff argues that the referee failed to give any explanation or rationale for his award of time limited alimony and that the facts found by the referee do not support an award of time limited alimony. We agree.

The referee noted in his decision that he examined and considered all relevant statutory provisions. During the parties’ twenty-one year marriage, the defendant made all of the financial contributions to the family while the plaintiff maintained the home and cared for the children. The referee found that the plaintiff had no special educational background or special skills. The plaintiff had not worked outside of the home during the marriage, except for a short time as a cashier and for several years as an instructor at a body building gym. The state trial referee found that the plaintiff “has been entirely dependent upon her husband for all expenses incurred, for the family and for herself personally.”

Our review “of a trial court’s exercise of its broad discretion in domestic relations cases is limited to whether that court correctly applied the law and whether it could reasonably conclude as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985).” Louney v. Louney, 13 Conn. App. 270, 273, 535 A.2d 1318 (1988). The trial court must consider all relevant statutory criteria in a marital dissolution action but it does not have to make express findings as to the applicability of each criteria. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). The trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982).

This court has dealt with challenges to an award of time limited alimony on numerous occasions. Wolfburg v. Wolfburg, 27 Conn. App. 396, 606 A.2d 48 (1992); Henin v. Henin, 26 Conn. App. 386, 601 A.2d 550 (1992); Watson v. Watson, 20 Conn. App. 551, 568 A.2d 1044 (1990); Roach v. Roach, 20 Conn. App. 500, 568 A.2d 1037 (1990). The trial court does not have to make a detailed finding justifying its award of time limited alimony. See Markarian v. Markarian, 2 Conn. App. 14, 17 n.2, 475 A.2d 337 (1984). Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award. Id., 16. There must be “sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand.” Henin v. Henin, supra, 392.

We have noted that “ ‘[underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency.’ ” Roach v. Roach, supra, 506. A time limited alimony award generally is for rehabilitative purposes but other reasons may also support this type of alimony award. Id.

Here, the state trial referee found that the plaintiff lacked any special skills or training that could assist her in obtaining employment. The referee gave no basis for his limiting the plaintiff’s alimony award in this manner such as a finding that time limited alimony would enable her to obtain training to become employable in a chosen field. The plaintiff was found to have been dependent on the defendant for all her expenses during the marriage. There is no evidence in the record as to how an award of periodic alimony will assist the plaintiff to become employed so that she can support herself without assistance from the defendant. There is no indication as to what training will enable the plaintiff to become self-sufficient. The record fails to reveal how the plaintiff could develop an earning capacity that would allow her to maintain her previous lifestyle or as to what kind of work the plaintiff could do. Therefore, there is no basis in the record to support this award of time limited alimony as having a rehabilitative purpose.

Another “valid purpose for time limited alimony is to provide interim support until a future event occurs that makes such support less necessary or unnecessary.” Wolfburg v. Wolfburg, supra, 400. In Wolfburg, our review of the record revealed that the time limited alimony award was found to provide interim support until the minor child reached the age of majority. Id., 402. This constituted a valid purpose for an award of time limited alimony. Other future events that may require interim support through an award of time limited alimony include occurrences “such as a bond maturation, trust disbursement, or mortgage maturation.” Henin v. Henin, supra, 393. The ten year duration of periodic alimony does not coincide with any future event in this case. There is no evidence indicating that the time limited award of alimony functioned to provide interim support for the plaintiff until the occurrence of a future event that would reduce or eliminate the plaintiffs need for support.

The court’s factual findings do not support its award of time limited alimony. We are unable to discern from our review of the record why the award of periodic alimony was limited to ten years. Thus, this financial order must be vacated and remanded.

“To limit the remand in this case to the issue of periodic alimony would impede the trial court’s ability to weigh the statutory criteria for financial orders to achieve an equitable result. The issues involving financial orders are entirely interwoven. ‘The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.’ Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984).” Sunbury v. Sunbury, 210 Conn. 170, 174-75, 553 A.2d 612 (1989). Because the award of periodic alimony may be dependent on other financial orders, the court on remand is not limited to determining an award of periodic alimony.

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

In this opinion the other judges concurred.

       The following colloquy took place between the court and plaintiffs counsel:
      “The Court: Well, in family matters I have placed both parties on equal footing, neither is attempting to prove any more than the other, therefore you have equal opportunities. You will be given a certain amount of time. If you wish more time, I’ll give you more time. If you wish rebuttal, the other side will have rebuttal. As far as briefs are concerned, I generally have required simultaneous on the briefs, no rebuttals. If you take exception, Mr. Cohen, that’s my practice.
      “Mr. Cohen: No, no, Your Honor, only that if new matters are opened in the brief, I’d like an opportunity to reply. For example, today was the first time—
      “The Court: I will say this, if you request, and you notify counsel that you request, time to file a reply brief, I would grant both sides an opportunity to file reply briefs.”

       “[General Statutes] Sec. 51-183b. (Formerly Sec. 51-29). judgments in civil actions, time limit. Any judge of the superior court and any state trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”


author: Freedman, J.

text:
    Lawrence Suprenant v. City of New Britain
    (10871)
    Daly, Landau and Freedman, Js.
    Argued June 4
    decision released August 25, 1992

      Kristin A. Dorney, for the appellant (plaintiff).

      Joseph M. Musco, city attorney, with whom was Seth Feigenbaum, assistant city attorney, for the appellee (defendant).
   Freedman, J.

This is an appeal by the plaintiff from a decision of the compensation review division (review division) of the workers’ compensation commission. The review division reversed the finding and award of the workers’ compensation commissioner (commissioner) which awarded disability benefits to the plaintiff under General Statutes § 7-433C. On appeal, the plaintiff argues that the review division incorrectly determined that the commissioner’s finding of evidence of the plaintiff’s preemployment hypertension precluded an award under § 7-433c for his subsequent disability due to heart disease. We affirm the decision of the review division.

The plaintiff became a regular member of the New Britain fire department on June 26,1972. Prior to his employment he underwent two preemployment physical examinations. After the first examination, it was determined that he was not qualified for the duties of a firefighter. After the second examination, he was found to be qualified for the position. These preemployment physical examinations revealed evidence that the plaintiff suffered from hypertension, but no evidence of heart disease was found. The plaintiff became disabled due to heart disease and was out of work from January 6,1985, through and including December 15, 1985. He first became aware that he suffered from heart disease on January 16, 1985.

The plaintiff commenced this action to receive benefits under General Statutes § 7-433c for his disability due to heart disease. Section 7-433c provides in pertinent part that a member of a paid fire department may receive benefits for disability or death caused by hypertension or heart disease if he or she “successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease . . . .’’After a formal hearing, the commissioner issued a finding and award granting the plaintiff such benefits. The commissioner found that the plaintiff “was aware of his hypertension condition prior to his employment by the [city of New Britain] in June of 1972.” The commissioner also found, however, that the medical testimony presented to it “unanimously differentiated between hypertension and heart disease” and that his “preemployment physical in 1972 made no mention of any heart disease found in the claimant.” The commissioner concluded that the plaintiff was entitled to all of the benefits afforded under § 7-433c because of his heart disease.

After the commissioner denied a motion by the city of New Britain to correct the commissioner’s finding and award, the city appealed the decision of the commissioner to the review division. The city claimed that the commissioner improperly concluded that the plaintiff was eligible for benefits under General Statutes § 7-433c even though the plaintiff’s preemployment physical examinations showed evidence of hypertension. The review division reversed the commissioner’s finding and award. The review division concluded that a preemployment physical examination that revealed evidence of either hypertension or heart disease prohibits an employee from receiving benefits under § 7-433c for hypertension or heart disease.

The plaintiff appealed the decision of the review division to this court. He claims that the commissioner had correctly interpreted § 7-433c and that the review division improperly reversed the decision of the commissioner. The essence of his argument is that because his preemployment physical examinations revealed evidence only of hypertension, not heart disease, he is entitled to receive benefits under the statute for his subsequently discovered heart disease. The implicit suggestion of his argument is that the preemployment evidence of his hypertension precludes him from receiving benefits under § 7-433c only for hypertension during the course of his employment.

The sole question, which is dispositive of this appeal, is whether a member of a paid fire or police department whose preemployment physical reveals evidence of hypertension, but not heart disease, may receive benefits for disability or death caused by subsequently discovered heart disease. We answer the question in the negative.

We review the review division’s construction of § 7-433c in light of well established rules of statutory construction. “ ‘A fundamental tenet of statutory construction is that “statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . .” ’ Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982). When the words of a statute are clear and unambiguous, we assume that the words themselves express the legislature’s intent and there is no need to look further for interpretive guidance. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989).” Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 309-310, 592 A.2d 953 (1991).

In Horkheimer v. Stratford, 4 Conn. Worker’s Comp. Rev. Op. 139 (1987), the compensation review division aptly stated that “[i]n order for [a] claimant to come within the group for which the protection provided in § 7-433c is intended, certain requirements must be met: (1) the claimant must be a uniformed member of a paid municipal fire department ... (2) whose preemployment physical examination revealed no evidence of hypertension or heart disease; (3) who suffers a condition or impairment of health caused by hypertension or heart disease; (4) resulting in death or temporary or permanent total or partial disability; and (5) economic loss resulting therefrom.” (Emphasis added.) Id., 141. In Horkheimer, the review division further stated that “§ 7-433c is clear and unambiguous that the physical examination on entry into service must fail ‘to reveal any evidence of hypertension or heart disease . . . .’ That means the physical examination must reveal no evidence of hypertension or heart disease in order for the claimant to be eligible for the application of § 7-433c.” Id., 143.

“We afford great deference to the construction by the review division that is in charge of the enforcement of the compensation act.” Hansen v. Gordon, 221 Conn. 29, 36, 602 A.2d 560 (1992). Not only do we afford great deference to the construction by the review division, but our own independent analysis leads us to the same conclusion.

“[W]e are mindful of the principles underlying Connecticut practice in [workers’] compensation cases: that the legislation is remedial in nature; Kennerson v. Thames Towboat Co., 89 Conn. 367, 375, 94 A. 372 (1915); and that it should be broadly construed to accomplish its humanitarian purpose.” Dubois v. General Dynamics Corporation, 222 Conn. 62, 67, 607 A.2d 431 (1992). We, however, find no lack of clarity or ambiguity in the statute. A plain reading of § 7-433c requires us to hold that in order to be eligible for any benefits for either hypertension or heart disease under § 7- 433c, the plaintiff must have “successfully passed a physical examination on entry into [employment as a member of a paid municipal fire or police department], which examination failed to reveal any evidence of [either] hypertension or heart disease . . . .”

The decision of the compensation review division of the worker’s compensation commission is affirmed.

In this opinion the other judges concurred.

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

       Blood pressure readings taken at the first physical examination revealed that the plaintiffs blood pressure at that time was 160/110. A blood pressure reading taken at the second physical examination revealed that the plaintiff’s blood pressure was 158/94 at that time.


text:
    Richard R. Regis et al. v. Connecticut Real Estate Investors Balanced Fund, Inc., et al.
    (10806)
    Daly, Heiman and Freedman, Js.
    Argued June 3
    decision released August 25, 1992

      Christopher J. Smith, for the appellant (named defendant).

      Ernest J. Cotnoir, for the appellees (plaintiffs).
   Daly, J.

The named defendant appeals from the trial court’s judgment of strict foreclosure of a mortgage used to secure the purchase of a piece of real property. The defendant claims that the trial court improperly (1) failed to find that a mutual mistake concerning a material term of the contract existed and (2) rendered judgment of strict foreclosure because the plaintiff made a fraudulent or negligent misrepresentation. We affirm the judgment of the trial court.

The trial court found the following facts. In 1979, the plaintiff Richard Regis purchased property located in the borough of Danielson. Because the property did not abut any accepted street in the borough, the plaintiff obtained a twenty foot right-of-way to gain access to the property. In 1979, the plaintiff submitted an application for a change of zone classification for the property with the Danielson planning and zoning commission. Along with the request for change of zone, the plaintiff submitted a plot plan concerning the proposed construction of a forty-eight unit apartment complex. On March 4,1980, the Danielson planning and zoning commission granted the application and changed the property classification accordingly. On April 3, 1980, the plaintiff was notified that a zoning permit for the construction of a forty-eight unit apartment complex would be issued as long as the plaintiff satisfied all of the conditions set by the zoning commission. The plaintiff, however, never sought issuance of the zoning permit. The plaintiff testified that he never intended to build the apartment complex and submitted the plot plan to secure the change of zone so as to increase the value of the property.

During the 1970s, the plaintiff had been involved in real estate transactions with Charles Lehn, a principal of the named defendant. In 1986, Lehn viewed the property and the plaintiff showed him the notice from the zoning commission concerning the permit to construct an apartment complex on the property. Because the notice was issued in 1980, the defendant requested that the plaintiff obtain updated information concerning the construction of an apartment complex. The plaintiff obtained a letter from the chairman of the Danielson planning and zoning commission dated April 30,1986. The April 30,1986 letter indicated that the zoning permit would be granted as long as certain more stringent conditions were satisfied. On May 9, 1986, the property was conveyed to the defendant for $200,000. The defendant made a payment of $30,000 and executed a promissory note secured by a mortgage for the balance of the purchase price. From May 9, 1986, until 1989, the defendant did not attempt to obtain a zoning permit to build the apartment complex. In 1989, the defendant attempted to obtain a zoning permit for the construction of the apartment complex to facilitate a sale of the property to another buyer. The defendant was denied a zoning permit because the property did not have a fifty foot right-of-way to a public road. The defendant’s application for a variance from the right-of-way requirement was denied by the Killingly zoning board of appeals.

The trial court found that the fifty foot right-of-way requirement was in effect at the time of the sale on May 9, 1986, but was not in effect in 1980 when the plaintiff first sought a zoning permit.

Paul F. Trahan, the chairman of the Danielson planning and zoning commission in 1986, testified about the April 30 letter. Trahan knew that the property lacked a fifty foot right-of-way to a public road and testified that he did not notify the plaintiff about the right-of-way requirement because he concluded that the borough of Danielson could not enforce the fifty foot access requirement in this case. He believed that the fifty foot access requirement was not enforceable because the plaintiff had used the property without the fifty foot right-of-way in the past and that the twenty foot right-of-way could not be widened to satisfy the fifty foot access requirement. Trahan testified that he felt that his April 30, 1986 letter constituted zoning approval for the construction of a forty-eight unit apartment complex on the property even though the property did not have a fifty foot right-of-way abutting a public street. The court found that the Danielson planning and zoning commission lacked the authority to waive the fifty foot right-of-way requirement and that only the zoning board of appeals could waive that requirement.

In 1989, the plaintiff brought a foreclosure action against the defendant to recover the unpaid balance of the mortgage. In June of 1990, the defendant made a mortgage payment of $35,000 after which the plaintiff withdrew the foreclosure action. In that action, the defendant did not raise any claim of mutual mistake, negligent misrepresentation or fraud in the first foreclosure action.

The plaintiff brought the present action in October, 1990. The defendant filed a counterclaim for damages and pleaded fraud and mutual mistake as special defenses. The court found that the defendant failed to prove that the plaintiff made a false statement about the property. There was no evidence showing that the plaintiff, as a part of any inducement to purchase, guaranteed the right to build an apartment complex on the property. On the basis of the representations of the chairman of the Danielson planning and zoning commission, the plaintiff believed that the defendant could obtain a zoning permit in May, 1986.

The court further found that there was no mutual mistake on the part of the plaintiff. The plaintiff intended to sell this property and complied with the defendant’s requests to update the 1980 zoning permit. The plaintiff did not stipulate, assure or guarantee that the apartment complex could be built on the property. The court found that while Lehn may have mistakenly believed that the plaintiff had guaranteed that Lehn would be allowed to build an apartment complex, such mistake would be unilateral and not mutual.

The court further noted that even if the defendant established its special defense of mutual mistake, it failed to seek timely rescission of the contract. The defendant did not attempt to obtain a zoning permit until three years after its acquisition of the property. Upon learning of the denial of the permit, the defendant did not seek rescission of the contract and offer to return the property to the plaintiff in exchange for the purchase price. The defendant did not raise the defense of mutual mistake in the plaintiff’s first foreclosure action which was withdrawn upon the defendant’s paying the outstanding mortgage arrearage. The defendant also did not raise the defense of mutual mistake in its first answer to the plaintiff’s complaint in this action which was filed on December 14, 1990. In March, 1991, the defendant raised the defense of mutual mistake for the first time. The court found that the defendant’s conduct precluded it from being entitled to rescind the contract even had the defendant established the existence of a mutual mistake between the parties.

The court also examined the contract to determine if the plaintiff had promised the defendant that it would be allowed to construct an apartment complex. The court focused on the contractual provision stating that “[sjeller represents that the premises have been approved by the Borough of Danielson for use and development for apartments in conformity with certain conditions and agreements as set forth in letters dated April 1,1980, April 3,1980, and April 30,1986, respectively from the Borough Officer to Richard R. Regis, attached hereto as Schedule C.” The court noted that “[t]he date April 30, 1986, is written in ink and also written in ink following the words ‘Schedule C’ is the phrase, ‘But only to the extent provided in these letters.’ ” The latter phrase written in ink supported the court’s finding that the construction of the apartment complex was not a condition of this conveyance of property. The court found that this phrase indicated only that the plaintiff believed that a zoning permit would be issued by the borough of Danielson according to the April 30, 1986 letter.

The court also rejected the defendant’s counterclaim that the plaintiff’s conduct constituted a violation of the Connecticut Unfair Trade Practice Act of General Statutes § 42-110b. The defendant has not challenged this finding on appeal.

The defendant challenges the trial court’s finding that it failed to prove the existence of a mutual mistake between the parties that would justify rescinding the contract.

“A mutual mistake is one that is common to both parties and effects a result that neither intended. Lopinto v. Haines, 185 Conn. 527, 532, 441 A.2d 151 (1981). Whether there has been such mistake is a question of fact.” Inlands Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991).

The defendant must establish that the trial court’s factual findings were clearly erroneous. Practice Book § 4061. A trial court’s factual finding is clearly erroneous if there is no evidence 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.’ ” Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948). Great deference is given to the trial court’s factual findings because of its ability to assess the credibility of witnesses and weigh the evidence. Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., supra.

The trial court found that the plaintiff intended only to sell this property. The defendant’s intended use of the property for an apartment complex was not a use that was guaranteed by the plaintiff in selling this property. If the issuance of the zoning permit were a material condition of the sale, the defendant could have required that the plaintiff obtain a zoning permit at the time of the conveyance instead of relying on the April 30,1986 letter. In his effort to sell this property, the plaintiff satisfied the defendant’s request to update the borough of Danielson’s position on the granting of the zoning permit by obtaining the April 30, 1986 letter. The plaintiff did everything the defendant requested in order to sell the property.

The defendant argues that the parties had a mutual understanding that the sale was contingent on the use of the property to build the apartment complex. The defendant relies on Weld v. Melly, 16 Conn. App. 555, 548 A.2d 14 (1988), to support its position that the trial court should have found that a mutual mistake existed between the parties. In Weld, the plaintiffs claimed that the defendant made representations that a septic system was located within the boundary lines of the subject property sold by the defendant to the plaintiffs. The plaintiffs later discovered that the septic system was located on property owned by a third party and not the defendant. There was conflicting evidence concerning representations made by the defendant about the location of the property’s boundaries. Id., 557. The defendant admitted that she believed when the septic system was installed that it was built on her property. The trial court found that both parties thought that the septic system was located on the property. Id., 557-58. Despite this finding, the trial court concluded that there was no mutual mistake. Id., 558. We reversed the trial court’s judgment because this conclusion was not supported by its finding that both parties believed that the septic system was located on the property.

In the present case, the trial court found that only the defendant was mistaken in believing that the issuance of a permit for the building of the apartment complex was a condition of the sale. At the time of the conveyance, the plaintiff relied on the April 30, 1986 letter which indicated that a zoning permit would be issued for the apartment complex. The court found that the plaintiff was not mistaken about the availability of a zoning permit for the apartment complex. Therefore, unlike the court’s conclusion in Weld v. Melly, supra, the trial court’s conclusion in this case is supported by its factual findings. On the basis of our review of the record, we hold that the trial court’s finding that there was no mutual mistake was not clearly erroneous.

The defendant claims that the trial court improperly rendered judgment for the plaintiff because the evidence revealed that the plaintiff had made a fraudulent or negligent misrepresentation about the property’s suitability for an apartment complex. We disagree.

“Whether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact. J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981). Thus, we will disturb the trial court’s determination that the [plaintiff made no fraudulent or negligent misrepresentations only if, in light of the evidence and the pleadings on the whole record, such a conclusion could not reasonably have been reached.” McClintock v. Rivard, 219 Conn. 417, 427, 593 A.2d 1375 (1991). We presume that the trial court properly considered all of the evidence submitted by the parties. Solomon v. Aberman, 196 Conn. 359, 376, 493 A.2d 193 (1985). “It is well established that the appellate courts will not retry facts or pass upon the credibility of witnesses and the weight to be accorded the evidence.” Chomko v. Patmon, 19 Conn. App. 483, 488-89, 563 A.2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989).

“The essential elements of an action in fraud . . . are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury.” Miller v. Appleby, supra, 54-55. A claim of fraud must be proven by “clear and satisfactory evidence.” Id., 55.

The trial court found that the defendant failed to establish that the plaintiff knew that the zoning permit would not be issued for the apartment complex at the time of the conveyance. In 1980, the plaintiff’s plan to construct an apartment complex was approved by the Danielson planning and zoning commission. At the defendant’s request and prior to the conveyance, the plaintiff obtained a letter from the Danielson planning and zoning chairman that an apartment complex zoning permit would be issued subject to certain conditions. Both the plaintiff and the defendant reasonably relied on this letter. The defendant failed to offer clear and satisfactory evidence proving that the plaintiff, despite assurances from the planning and zoning commission that the apartment complex could be built, knew that this was a false representation. The plaintiff noted in the contract that the granting of the zoning permit for the apartment complex was controlled by the planning and zoning commission and that the issuance of a zoning permit was not a condition of the property conveyance. On the basis of our review, we find that the trial court’s finding that the plaintiff did not know that the zoning permit would not be granted at the time of conveyance was supported by the evidence. Thus, we cannot disturb this finding.

The defendant further argues that the plaintiff knew that the property lacked the fifty foot access to a public road that was required for the construction of an apartment complex under the zoning requirements in effect at the time of the conveyance. The defendant claims that the plaintiff knew as early as 1980, when he first sought the zoning change for the property, about the lack of access to a public road. The defendant posits that because the plaintiff knew that a fifty foot access was required for the issuance of a zoning permit for the building of an apartment complex, the plaintiff negligently represented that an apartment complex could be constructed on the property.

“This court has long recognized liability for negligent misrepresentation. We have held that even an innocent misrepresentation of fact ‘may be actionable if the declarant has the means of knowing, ought to know or has a duty of knowing the truth.’ ” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217, 520 A.2d 217 (1987), quoting Richard v. A. Walkman & Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967).

The defendant claims that the lack of access to a public road was brought to the plaintiffs attention in 1980 when the plaintiff first sought site plan approval for the apartment complex. The plaintiff claimed to be aware of an access problem only as to a private road that had been used as a public right-of-way by the neighboring landowners. According to the plaintiff, the only other concern about the roadway had to do with its maintenance upgrade and not its width. The planning and zoning commission did grant the plaintiffs permit for construction of the apartment complex despite the alleged access problems. There was no requirement that the plaintiff had to widen the access to the public road. On this basis, the plaintiff believed that no existing access problem would prevent development of an apartment complex.

The defendant did not offer any evidence showing that the plaintiff stated that there was sufficient access to a public road. The plaintiff stated only that an apartment complex could be constructed subject to the conditions established by the planning and zoning commission. The defendant failed to establish that the plaintiff should have known that the April 30,1986 letter indicating that an apartment complex would be constructed on the property was false or inaccurate. The trial court’s finding that the defendant failed to prove that the plaintiff made a negligent misrepresentation is not clearly erroneous.

The judgment is affirmed and the case is remanded with direction to set new law days.

In this opinion the other judges concurred.

       A subsequent lienholder was named as a defendant in the action. We will refer in this opinion to the named defendant as the defendant.

       The plaintiffs are Richard and Naomi Regis. Because Richard Regis was the only person that dealt with the defendant, we refer to him as the plaintiff throughout the opinion.

       Since September 1, 1987, the town of Killingly has administered the borough of Danielson’s zoning regulations. The borough of Danielson, located in the town of Killingly, still maintains separate zoning regulations.


author: Norcott, J.

text:
    State of Connecticut v. Eldred J. Hall
    (10105)
    Norcott, Landau and Heiman, Js.
    Argued June 9
    decision released August 25, 1992

      Lowell L. Peterson and Louis Van Dyck, special public defenders, with whom, on the brief, was Sally S. King, special public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Rosita M. Creamer, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). He was sentenced to a term of twenty years imprisonment, suspended after fourteen years, with five years of probation. On appeal, the defendant claims that he was denied his fundamental right to a fair trial for the following reasons: (1) the trial court improperly instructed the jury as to manslaughter in the first degree under General Statutes § 53a-55 (a) (3) because that crime is not a lesser included offense of the crime with which he was charged; (2) there was insufficient evidence of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) to warrant a jury instruction; and (3) the prosecutor improperly commented during her closing argument on the veracity of a state’s witness and on facts not in evidence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At about 10 p.m. on August 20, 1989, David Walker, his brother and his uncle were sitting in front of the Mile High Restaurant on Albany Avenue in Hartford when a car driven by the victim, James Brown, skidded along the road, nearly striking a bicyclist, Clive Wilson. The victim then drove into a nearby gasoline station after which he and Wilson exchanged words.

When Wilson departed, the victim drove back onto Albany Avenue heading west. While passing a field across the street from where Walker was sitting, the victim’s car was struck by an unidentified projectile. The victim stopped his car, got out and approached a group of youths that included Wilson, an individual known as “Tallest” and the defendant. Wilson struck the victim’s upper body with a tree branch. Tallest then threw a bottle at the victim. While the victim was backing up, trying to escape, the defendant ran up and struck him in the head with a brick. The victim stumbled and collapsed on the street. He died from his injuries two days later.

At trial, the defendant testified that he was not at the scene of the incident and denied having been involved in the events leading up to the victim’s death. He stated that he did not learn of the incident until the next day when various acquaintances mentioned it to him.

At the completion of the state’s case-iri-chief, the defendant moved for a judgment of acquittal, which the trial court denied. After all of the evidence had been presented, both the state and the defendant submitted requests to charge. The state requested a charge on the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), which requires proof that the defendant intended to cause serious physical injury, and General Statutes § 53a-55 (a) (3), which requires proof that the defendant had acted recklessly in engaging in conduct that created a grave risk of death to another. The defendant requested a charge on the lesser included offenses of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1), and criminally negligent homicide in violation of General Statutes § 53a-58. The defendant also renewed his motion for judgment of acquittal and also requested that the jury be charged on the lesser included offenses of General Statutes § 53a-55 (a) (1) and (3). The court instructed the jury as to all of the lesser included offenses as the parties requested. The defendant did not except to the instructions as given.

After the jury returned its verdict, the defendant filed motions pursuant to Practice Book §§ 899, 902 and 905 for judgment of acquittal, a new trial, and in arrest of judgment, respectively, contending for the first time that under the facts of this case a violation of General Statutes § 53a-55 (a) (3) is not a lesser included offense of the charge of murder in violation of General Statutes § 53a-54a, and that the evidence was insufficient to support the conviction. The court denied the motions, and this appeal followed.

I

The defendant’s first two claims center on the propriety of the trial court’s charge on manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant first claims that under the facts here this crime is not a lesser included offense as defined by State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980). Second, he argues that even if it is a lesser included offense under Whistnant, the court’s instruction was improper because there was insufficient evidence as to the element of recklessness. Because these claims are interrelated, we consider them together.

A

In arguing that the instruction on the lesser included offense of manslaughter in the first degree under General Statutes § 53a-55 (a) (3) was violative of State v. Whistnant, supra, the defendant first contends that because the evidence shows only that he intentionally struck the victim, the conviction for reckless manslaughter cannot stand. Since he was acquitted of the murder charge, he now claims that he is entitled to a judgment of acquittal on the reckless manslaughter charge. Second, the defendant asserts that because he denied striking the victim or being involved in his death in any way, his state of mind was never sufficiently in dispute to warrant an instruction on reckless manslaughter. We disagree.

We first note that the defendant has not properly preserved this claim for appellate review pursuant to Practice Book § 852 and that he seeks review, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), of an instruction he himself requested. Ordinarily, action induced by an appellant cannot be a ground for error. See State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987); State v. Turner, 24 Conn. App. 264, 272, 587 A.2d 1050, cert, denied, 218 Conn. 910, 591 A.2d 812 (1991). “It seems a bit disingenuous for the defendant to claim the trial court committed error by instructing the jury on [first degree manslaughter] when he requested an instruction on that very issue.” State v. Scognamiglio, supra.

Although it is the general rule that a party cannot be heard to complain about such an instruction when he himself has requested it; State v. Shipman, 195 Conn. 160, 165, 486 A.2d 1130 (1985); unpreserved claims of constitutional magnitude, even when induced by the appellant, may be reviewed pursuant to Golding. See State v. Maselli, 182 Conn. 66, 70, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 866, 66 L. Ed. 2d 807 (1981); State v. Murdick, 23 Conn. App. 692, 702, 583 A.2d 1318, cert. denied, 217 Conn. 809, 586 A.2d 1233 (1991). In this case, however, because “a lesser included offense instruction is purely a matter of common law, and therefore does not implicate constitutional rights; see State v. Herring, 210 Conn. 78, 105, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); State v. Thomas, 205 Conn. 279, 282, 533 A.2d 553 (1987); State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986); State v. Whistnant, [supra, 581]; the defendant has failed to satisfy the second condition of Golding. Accordingly, his claim for reversal predicated on the alleged impropriety of the court’s lesser included offense instructions necessarily fails.” State v. Ortiz, 217 Conn. 648, 659, 588 A.2d 127 (1991). Not every claim warrants review simply because it is affixed with a constitutional label. See, e.g., State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).

B

The defendant further argues that even if manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) is a lesser included offense under Whistnant, the court’s instruction was improper because there was insufficient evidence as to the element of recklessness. Again, we disagree.

Because the defendant has properly preserved this claim for appellate review, we scrutinize it under the well established analytical framework that both we and our Supreme Court have established for review of such claims. First, we review the evidence in the light most favorable to sustaining the jury’s verdict. Second, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991). Reasonable and logical inferences may be drawn, but the jury may not resort to speculation and conjecture. State v. King, 216 Conn. 585, 601-602, 583 A.2d 896 (1990). Each essential element of the crime must be proved beyond a reasonable doubt. Id., 601.

Our review of the record leads us to conclude that sufficient evidence existed for the jury to find the defendant guilty of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). Walker, who witnessed the attack, testified that the defendant ran toward the victim and, with an overhand or slightly sidearm motion, struck the victim once in the head with a brick as the victim was moving backward toward the street. If a single slap in the face that led to a subdural hematoma and caused the victim to be in a coma for up to eighteen months can supply the factual predicate to support a finding of reckless conduct that creates a risk of death to another; see State v. Jupin, 26 Conn. App. 331, 341, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992); then it is extremely difficult to conclude that a jury could not find that striking someone in the head with a brick also constitutes reckless conduct. We conclude that there was sufficient evidence for the jury to convict the defendant of first degree manslaughter in violation of General Statutes § 53a-55 (a) (3).

II

The defendant next claims that improper remarks during the state’s closing argument violated his due process right to a fair trial. Specifically, he claims that he was prejudiced by the prosecutor’s expression of her opinion as to the credibility of the state’s chief witness, Walker, and by her references to facts not in evidence.

Because this claim also was not properly preserved at trial, the defendant again seeks review under State v. Golding, supra. While prosecutorial misconduct of constitutional dimension may arise during closing argument, thereby implicating the fairness of a trial; State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987); State v. Pelletier, 196 Conn. 32, 33-34, 490 A.2d 515 (1985); State v. Peruta, 24 Conn. App. 598, 608-609, 591 A.2d 140, cert. denied, 219 Conn. 912, 593 A.2d 137 (1991); an unpreserved prosecutorial misconduct claim is not reviewable if the claimed misconduct consisted of isolated and brief episodes, did not disclose a pattern of conduct repeated throughout the trial, or conduct not blatantly egregious. State v. Tweedy, 219 Conn. 489, 509, 594 A.2d 906 (1991); State v. Henry, 27 Conn. App. 520, 529, 608 A.2d 696 (1992).

The defendant points to a single remark referring to apparent inconsistencies in Walker’s testimony regarding where on the head the victim was struck. The defendant claims that the prosecutor’s reference to a police detective, who did not testify, and to his report, which was not introduced into evidence, could have affected the jury’s evaluation of Walker’s testimony. Finally, the defendant points to remarks made by the prosecutor referring to Walker’s credibility and truthfulness in testifying as to what he saw, and reporting the incident as a matter of civic duty and not to obtain a reward that had been offered for information about the incident.

The record discloses that although the defendant initially objected to the prosecutor’s remarks and moved for a mistrial or, in the alternative, a curative instruction, he took no exception when the court denied the motion for a mistrial. During colloquy, the court pointed out that during closing argument, it was the defendant who “artfully and professionally . . . stretched the parameters of final argument beyond the point of what is tolerable and what is acceptable.” The court disagreed with his claim that the prosecutor had engaged in egregious conduct, stating that it “did not view any of her remarks as coming anywhere close to constituting substantial and irreparable harm to the defendant.” The next day, the prosecutor told the court that she did not believe that her remarks were improper, but suggested that the court nevertheless give the jury a curative instruction. The defendant agreed that such an instruction would be appropriate and did not object when it was given.

Review of this claim is foreclosed by State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990), in which our Supreme Court stated that review of prosecutorial misconduct claims under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), “is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial.” In this case, the defendant does not claim, nor can he claim, that the alleged offensive remarks were anything more than isolated statements that did not evince any pattern of misconduct. Moreover, it is well settled that, on appeal, we do not review rulings that the defendant accepted or requested at trial; State v. Murdick, supra, 699; especially when, as here, the defendant has agreed with an adverse ruling at trial and did not take exception to it. See State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1989).

Even if we were to review this claim, no favorable result would inure to the defendant. Although it is true that it is improper for a prosecutor to state personal beliefs about a witness’ credibility; State v. Hammond, 221 Conn. 264, 289, 604 A.2d 773 (1992); when seen in context, the prosecutor’s remarks were neither so prejudicial nor so egregious as to constitute grounds for a new trial. Id., 289-90.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of the charge of murder in violation of General Statutes § 53a-54a and was found not guilty of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1).

       General Statutes § 53a-55 (a) provides: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       Before a jury instruction on a lesser included offense can be given, the following requirements, set forth in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), must be met: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Edwards, 214 Conn. 57, 62-63, 570 A.2d 193 (1990); State v. Jupin, 26 Conn. App. 331, 346, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992).

       Practice Book § 852 provides in pertinent part: “The [appellate] court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking exception shall state distinctly the matter objected to and the ground for the. objection. . . .”

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional error beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       After the victim’s death, an offer of a $5000 reward for information about the incident was published in a local newspaper.