text:
    Carolyn Pomarico v. Gary Construction, Inc.
    (2518)
    Dupont, C. J., Borden and Daly, Js.

      Argued April 3
    decision released August 27, 1985

      William T. Shea, with whom, on the brief, was Antoinette E. Grenier, for the appellant-appellee (defendant).

      Sid M. Miller, for the appellee-appellant (plaintiff).
   Daly, J.

The plaintiff applied for the discharge or reduction of a mechanic’s lien placed on her property by the defendant. The trial court rendered judgment ordering the mechanic’s lien discharged and the defendant appealed from this judgment. The plaintiff then cross appealed, challenging the trial court’s conclusion that the defendant had not waived its lien rights.

The trial court found the following facts: Pursuant to a written agreement between the parties, executed in October, 1982, the defendant contracted to perform certain work on the plaintiff developer’s property, Happy Homes Estates, located in Meriden. The scope of the work included all clearing, blasting, grading, landscaping, paving, construction and other work necessary to complete a roadway, sidewalks, paths, curbing, installation of water and sanitary sewer lines, storm drainage systems, erosion and sedimentation control systems and other improvements in accordance with a subdivision plan.

The defendant filed a mechanic’s lien in the amount of $208,792, dated March 11, 1983, and recorded on March 14,1983, in the Meriden land records upon the subject property. The lien was placed on thirteen residential lots in the subdivision. Some of these lots had already been built upon and sold by the plaintiff. It purports to cover site development work performed by the defendant pursuant to the contract from September or October, 1982, through January 14, 1983. The lien is in blanket form and does not identify the specific work done or materials furnished to any particular house or lot.

The trial court concluded that the lien was invalid because it failed to conform to the lienable unit requirements and because its blanket single form of certificate failed to identify the particular premises against which the lien is claimed.

The trial court further found that since the defendant had removed its equipment and ceased working in the middle of December, 1982, work thereafter demanded of the defendant by the city inland wetland agency, which was concluded on January 14,1983, did not toll the sixty day requirement of General Statutes § 49-34.

The defendant claims that the trial court erred in concluding (1) that the mechanic’s lien was invalid because it violated the “lienable unit” test, (2) that the work was completed in December, 1982, and (3) that the defendant failed to prove the validity of the lien by clear and convincing evidence. The plaintiff claims in her cross appeal that the trial court erred (1) in excluding paragraph seven from the written agreement, which paragraph provided for a waiver of the defendant’s mechanic’s lien rights, on the basis that there was no meeting of the minds between the parties; and (2) in discounting an oral waiver of mechanic’s lien stipulated to by the parties in open court in a separate proceeding.

Our cases construing the language of General Statutes § 49-33, before it was amended effective October 1, 1974, required, as a condition of lienability, that the work done be incorporated in or utilized in the building or appurtenance to be constructed, raised, removed or repaired. Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 552, 429 A.2d 796 (1980). This was the so-called “lienable unit” theory. In re Glen Haven Estates, 123 F. Sup. 659, 660-61 (D. Conn. 1954).

When General Statutes § 49-33 was amended in 1974, the mechanic’s lien was extended to encompass claims for materials furnished or services rendered “ ‘in the improvement of any lot or in the site development or subdivision of any plot of land . . . ’"Camputaro v. Stuart Hardwood Corporation, supra, 553-54.

“Although the legislative history of the amended § 49-33 is, as is often true, somewhat murky, it is consistent with an intention to expand the coverage of the mechanic’s lien.” (Footnote omitted.) Id., 554. Footnote six in Camputaro, which discusses the legislative history, provides: “Public Acts 1974, No. 74-310 expanded the scope of General Statutes § 49-33 to include the terms ‘the improvement of any lot’ and ‘the site development or subdivision of any plot of land.’ It is the first of these additions, ‘the improvement of any lot,’ that is at issue in the present case. In commenting on an amendment to the bill, which was subsequently enacted as Public Acts 1974, No. 74-310, the reporting committee chairman in the House of Representatives stated: ‘We still have an extension of the mechanic’s lien even though we don’t have an extension of the time to file it. You can file it against the property or sub-division whereas heretofore you could only file it against the house that was being worked on, the building.’ And again, in response to the question, ‘Does he contend that it’s the amendment that extends the applicability of the land or is it the Ml itself . . . ,’ the reporting committee chairman, Representative Newman responded: ‘The bill, of course, sir.’ 17 H.R. Proc., Pt. 9,1974 Sess., pp. 4138, 4140. Compare the comments of the reporting committee chairman in the Senate, Senator Rome, who stated: ‘The bill now as amended would provide that sub-dividers of land, persons who might also be doing site work on the land would have lien rights. The question is, under the existing court adjudications, whether or not that (sic) have or have not those rights. This clearly spells it out. They do . . . .’ 17 S. Proc., Pt. 3, 1974 Sess., p. 1338.” Camputaro v. Stuart Hardwood Corporation, supra, 554-55 n.6. We conclude that the statute as amended eliminated the “lienable unit” requirement from this defendant’s mechanic’s lien.

The defendant believed that his task was completed on December 7, 1982, but, at the demand of the city inland wetland agency, returned to perform work on the level spreader which was completed on January 14, 1983. The level spreader is located in the vicinity of lot No. twenty-six, and was of value to every lot in the subdivision. All lots in the subdivision will benefit from the erosion protection provided by it. We hre equating the demand of the city inland wetland agency as work performed for the benefit of the whole development. Hence, the lien falls within the site development purview of General Statutes § 49-33, as amended. We conclude that the filing of the mechanic’s lien on March 14,1983, complied with General Statutes § 49-34.

In view of our finding of error as indicated, it is unnecessary to consider the issue of burden of proof relative to the defendant’s appeal. We note, however, that under General Statutes § 49-35b (a), t-he defendant was only required to establish that there was probable cause to sustain the validity of its lien. The defendant’s burden of proof is not that required of the plaintiff, who is next entitled to prove, by clear and convincing evidence, the invalidity of the lien.

The remaining question of whether the trial court properly concluded that the defendant had not waived its mechanic’s lien rights is raised by the cross appeal. The Supreme Court “has repeatedly declared that ‘what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.’ ... As such, the findings of the trial court may be overturned only if clearly erroneous.” (Citations omitted.) Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983).

The continued demands by the plaintiff for lien waivers from the defendant during December and January support the trial court’s finding that the lien waiver clause was not part of the written agreement of October, 1982. This issue presents a question of fact for the trier. Where, as here, the evidence is in conflict, its probative force is for the trier. Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 14, 420 A.2d 1142 (1979); Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 125 (a).

The same applies to the oral waiver agreement stipulated to in open court on February 22, 1983. Its relevancy was a matter for the trial court. The relevance of evidence is up to the trier. Holden & Daly, supra. This court cannot retry the facts or pass upon the credibility of the witnesses. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975). The trial court determined that there had been no waiver of the mechanic’s lien contained in the initial agreement despite counsel’s statement before a different trial court. We will not disturb this finding.

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

In this opinion the other judges concurred.

       General Statutes § 49-34 provides, in pertinent part: “A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within sixty days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing . . . . ”

       General Statutes § 49-33 provides: “mechanic’s lien, precedence. RIGHTS OF SUBCONTRACTORS, (a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.”

       A level spreader is a term used in hydrology, and concerns the movement of water. It can be described as the top of a flat edge used to spread the water over a wide area to reduce the volume and speed so as to prevent erosion. See Brater & King, Handbook of Hydraulics (6th Ed.).

       This is not really a cross appeal but, rather, an alternate ground upon which the judgment may be affirmed. Practice Book § 3012 (a); see discussion in D’Arcy v. Shugrue, 5 Conn. App. 12, 28, 496 A.2d 967 (1985).


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. William T. Evans
    (2951)
    Dupont, C. J., Borden and Daly, Js.
    Argued June 13
    decision released August 27, 1985

      James L. Radda, with whom, on the brief, were Joette Katz, public defender, and G. Douglas Nash, assistant public defender, for the appellant (defendant).

      C. Robert Satti, state’s attorney, with whom, on the brief, was Michael A. Regan, for the appellee (state).
   Borden, J.

The defendant appeals from a judgment of conviction of burglary in the second degree in violation of General Statutes § 53a-122 rendered upon his guilty plea. He claims that his plea was not voluntarily made, in violation of his constitutional right to due process. We agree.

A home was burglarized in Old Lyme. A witness saw the defendant on the burglarized premises on the date of the burglary and reported this to the state police. Meanwhile, the Old Saybrook police obtained information that the defendant had sold weapons to two individuals. The weapons were identified as stolen from the burglarized Old Lyme residence. On the basis of this information, the state police obtained a warrant, stopped and searched the defendant’s automobile and found in his possession most of the remaining personal property items reported missing after the burglary.

The defendant was charged in both the Middlesex and New London judicial districts. In the Middlesex district, he was charged with larceny in the second degree in violation of General Statutes § 53a-123 and theft of a firearm in violation of General Statutes § 53-212, and he pleaded guilty to those charges in the Middlesex court. In the New London district, he was charged with burglary in the second degree in violation of General Statutes § 53a-102 and larceny in the first degree in violation of General Statutes § 53a-122. He pleaded guilty to the burglary charge under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), the larceny charge was nolled and the New London case was transferred to the Middlesex court for a consolidated sentencing.

This appeal arises out of the plea proceedings in the New London court. The defendant, his counsel, and the state’s attorney entered into a plea agreement and the following events took place in open court. The defendant first withdrew his plea of not guilty to the two counts in the information and the court vacated that plea. The clerk then read the first count1 of the information to the defendant and when asked how to plead the defendant said “guilty.” The court then asked for the facts underlying the charge and the state’s attorney essentially recited the facts set forth above. He also informed the court of the defendant’s prior plea of guilty in the Middlesex court and requested that the burglary charge “be consolidated in Middletown for sentencing.” Thereupon, the court engaged in the following dialogue with the defendant: “The Court: Mr. Evans, you heard what Mr. Hurley has had to say about your participation in this crime. Is it true that you went in this residence in Old Lyme and stole these articles that were described by [the state’s attorney]? The Defendant: Excuse me, Your Honor? The Court: You have heard—Have you heard what [the state’s attorney] has said about your participation in this crime? The Defendant: Yes. The Court: Is it true that you went to this home in Old Lyme and broke into it and took these articles that [the state’s attorney] has described? The Defendant: I plead guilty, Your Honor. [Defense Counsel]: Your Honor, I think I should explain to Your Honor that while he is pleading guilty, he has never admitted that he broke into the house; but he does admit the fact that the State does have sufficient evidence which upon a trial would result in a finding of guilty, undoubtedly.”

There was no futher discussion initiated by either the attorneys or the court with respect to the nature of the charges then pending against the defendant. In this appeal, the defendant claims that the court erred in failing to inform him of the essential elements of burglary in the second degree when he entered this guilty plea. He also claims that there was an insufficient factual basis to support a plea of guilty under the Alford doctrine. Because we find the first claim dispositive, we do not reach the second.

As a preliminary matter, we note that the defendant did not make a motion to withdraw his guilty plea pursuant to Practice Book §§ 719 through 722. Nor did he otherwise preserve this error below. The invalidity of the plea is raised for the first time on appeal under the “exceptional circumstances” rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Nevertheless, “because the error claimed by the defendant involves the violation of a fundamental constitutional right, we will consider it for the first time on appeal.” (Citations omitted.) State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983).

The fundamental principles governing guilty pleas "are well integrated into our rules governing the daily administration of justice in this state. Practice Book § 711 (1) requires that the trial court determine that the defendant “fully understands . . . [t]he nature of the charge to which the plea is offered . . . .” Only recently we stated, “[t]he provisions of Practice Book § 711 are mandatory. State v. Childree, supra. It is the duty of the trial judge to comply strictly with its terms.” Finley v. Manson, 1 Conn. App. 260, 263, 470 A.2d 1234 (1984). Whether a trial judge has effectively complied with this duty ultimately determines whether a defendant’s conviction comports with the “universally recognized” requirements of due process. Smith v. O’Grady, 312 U.S. 329, 334, 61 S. Ct. 572, 85 L. Ed. 2d 859 (1941). “These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. Boykin v. Alabama, [395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)]. We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” State v. Childree, supra, 120.

If one or more critical elements of a charged crime are not recited for the defendant’s benefit by the trial judge the resultant guilty plea is invalid. State v. Childree, supra, 121. Our review of the record indicates that none of the elements of the offense were disclosed to the defendant in the proceedings below.

The state argues that the trial court, and this court, may presume that defense counsel explained the nature of the offense to the defendant. We are aware that a trial court’s “substantial compliance”; State v. Suggs, 194 Conn. 223, 227, 478 A.2d 1008 (1984); with Practice Book requirements may pass constitutional muster when its actions are viewed in the context of the record as a whole. We reject, however, the state’s claim that we may presume that counsel has effectively informed his client of the elements of the offense when the record does not affirmatively disclose an adequate basis for that conclusion. “Our rules of practice prescribe a detailed procedure for acceptance of a guilty plea .... Practice Book §§ 712-713. Where the record fails to disclose substantial compliance with this procedure, to cure the omission by resorting to a presumption that counsel has performed a duty of the court would be inconsistent with the principle that the necessary elements for an effective guilty plea must appear in the record. Boykin v. Alabama, [supra, 242]; State v. Childree, supra, 120.” State v. Marino, 190 Conn. 639, 646-47 n.8, 462 A.2d 1021 (1983).

We recognize that “ ‘[e]xcept for those inquiries which are constitutionally mandated or are required by our rules; Practice Book, 1978, §§ 711-713; the court is not obliged to assume the role of the defendant’s counselor.’ ” State v. Eason, 192 Conn. 37, 45, 470 A.2d 688 (1984). Those basic “constitutionally mandated” inquiries include, however, a sufficient canvassing of the critical elements of the offense with the accused to insure that he has a full “understanding of the law in relation to [the] facts.” Finley v. Manson, supra, 263; State v. Childree, supra, 121. Since none of the essential elements of the charge of burglary in the second degree were disclosed to this defendant, we do not need to inquire further as to which of those omitted is “critical.” State v. Childree, supra, 123.

There is error, the judgment is set aside and the case is remanded with direction to permit the defendant to withdraw his guilty plea and to proceed in accordance with law.

In this opinion the other judges concurred.

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       The information recited only that, on the date and at the place in question, the defendant “did commit the crime of burglary in the second degree, in violation of Section 53a-102 of the Connecticut General Statutes.”

       The balance of the court’s inquiry concerned the defendant’s waiver of his rights of confrontation and against self-incrimination, and other inquiries mandated by Practice Book §§ 711 and 712, but did not touch on the elements of the crime of burglary in the second degree. See footnote 1, supra.


text:
    Vera Kufferman et al., Co-Executors (Estate of Merritt Kufferman) v. Fairfield University
    (3516)
    Hull, Borden and Daly, Js.
    Argued May 14
    decision released August 27, 1985

      John J. D’Arcy, for the appellants (plaintiffs).

      Stephen F. Donahue, with whom was Elaine M. Scanlon, for the appellee (defendant).
   Borden, J.

The plaintiffs’ decedent brought this action to recover for damages to premises he leased to the defendant university. The defendant counterclaimed for double its security deposit plus interest, pursuant to General Statutes § 47a-21 (d) (2). The court rendered judgment for the plaintiffs on the complaint in the amount of $854 and for the defendant on the counterclaim in the amount of $12,380. The plaintiffs appealed, raising three claims of error on the complaint, one of which is dispositive, and one claim of error on the counterclaim.

The decisive claim of error on the complaint is that the trial court erred in reversing, after the trial, a ruling which it had made on the admissibility of an item of evidence. During the trial, the court admitted into evidence, over the defendant’s objection, a letter written by the defendant stating that it was willing to concede $3600 for painting although its position was that it was not responsible for this item of repair. In an “addendum” to the court’s memorandum of decision, however, the court stated that it “now agrees with the defendant’s objection and rules that it is part of the settlement negotiation and . . . therefore may not be considered by the court.” We find error.

Although the court suggests that it did not consider this item of evidence in making its decision, the post-trial exclusion of this evidence after it had been admitted cannot be seen as harmless error which did not possibly affect the court’s conclusion. Cf. Low Stamford Corporation v. Stamford, 164 Conn. 178, 185, 319 A.2d 369 (1972). “When inadmissible evidence is received subject to objection and afterwards excluded, a party may be injured, either by the influence such evidence may have had, even unconsciously, on the mind of the judge, or by the confusion and embarrassment which the uncertainty as to what has and has not been proved, may subject counsel in the trial of their cause.” Fuller v. Metropolitan Life Ins. Co., 68 Conn. 55, 63, 35 A. 766 (1896); see also General Statutes § 52-208 (when evidence is objected to as inadmissible, court must pass on objection and admit or reject evidence, unless parties agree it may be admitted subject to objection).

It is difficult to say whether the evidence ultimately ruled inadmissible affected the trial court’s decision; Kovacs v. Szentes, 130 Conn. 229, 232, 33 A.2d 124 (1943); whether the evidentiary defect might have been cured; see Rischall v. Bauchmann, 132 Conn. 637, 646, 46 A.2d 898 (1946); or whether the plaintiffs would have introduced other evidence if they had known that this evidence was to be excluded. See Fuller v. Metropolitan Life Ins. Co., supra, 63-64. Given the potential use of the evidence as an admission that the defendant consented to pay the plaintiffs $3600 to paint the premises; see footnote 2, supra; and the unorthodox manner of its exclusion, we cannot say that the plaintiffs were not harmed. A new trial is therefore required. Rischall v. Bauchmann, supra; Fuller v. Metropolitan Life Ins. Co., supra.

We do not reach the plaintiffs’ other claims on the complaint since it is unclear that they will recur on a retrial. We address, however, the plaintiffs’ claim of error on the counterclaim that damages under General Statutes § 47a-21 (d) (2) cannot properly be awarded in this case. We do so because the counterclaim was statutory in nature and had a separate factual basis from the complaint. Therefore, if there is no error on the counterclaim, there is no reason why the factual issues already determined on the counterclaim should be relitigated on the remand with the completely distinct questions raised in the complaint.

General Statutes § 47a-21 (d) (2) imposes liability for twice the value of any security deposit on a landlord who violates the provisions of that subsection. The provisions of the subsection are that within thirty days after termination of a tenancy a landlord must deliver to the terminating tenant either the full amount of the tenant’s security deposit plus interest or “a written notification advising the tenant of the nature of any damages suffered by [the] landlord by reason of [the] tenant’s failure to comply with [the] tenant’s obligations.” If the landlord chooses to deliver the notification of damages, he must deliver, within sixty days after termination of the tenancy, a written statement itemizing the nature and amount of the damages he sustained along with any balance of the security deposit plus interest. See footnote 3, supra. The court, therefore, need only determine two factual questions to award twice the value of the security deposit under the statute: (1) Was the security deposit returned with interest, or a written notification of damages delivered, within thirty days of the tenant’s termination; and (2) if a written notification of damages was delivered, was the balance of the security deposit and a statement of damages delivered within sixty days of the termination?

The court found, from the evidence adduced under the counterclaim, that the answer to both of these questions was negative. It found that the tenancy terminated on May 30, 1982, but that the only notification given to the defendant regarding the security deposit or damages was a letter dated July 26,1982.* ** The court found, therefore, that the plaintiffs violated the provisions of General Statutes § 47a-21 (d) (2) and were liable to the defendant for twice the value of its security deposit. We cannot say that the court’s conclusion, based on the evidence, was clearly erroneous.

There is error in part, the judgment on the complaint is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       The original plaintiff, Merritt Kufferman, died prior to the court’s original entry of judgment. The court subsequently opened and amended the judgment to reflect a date prior to the original plaintiffs death. A motion to substitute Vera Kufferman and John J. D’Arcy, co-executors of Merritt Kufferman’s estate, as plaintiffs was also granted, although they are incorrectly named in their individual capacities rather than as co-executors. We refer to Vera Kufferman and D’Arcy as the plaintiffs.

       The entire addendum provided as follows: “In response to the plaintiff’s letter to the defendant itemizing the damage which he claimed was caused by the defendant’s tenants and the cost of repairing same, the defendant wrote a letter, in effect, rejecting the plaintiff’s claims (Exhibit C). In that letter the defendant states that it had been willing to concede the amount of $3600.00 for painting, although it believed this was not actually due. At the time that this letter was introduced into evidence the objection was made that it was a part of a settlement negotiation. The court rejected that objection but, upon further consideration of the contents of the letter and the context in which it was issued, now agrees with the defendant’s objection and rules that it is part of the settlement negotiation and therefore may not be considered by the court.”

       General Statutes § 47a-21 (d) (2) provides in full as follows: “Upon termination of a tenancy, any tenant may notify his landlord in writing of such tenant’s forwarding address. Within thirty days after termination of a tenancy, each landlord other than a rent receiver shall deliver to the tenant or former tenant at such forwarding address either the full amount of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section, or a written notification advising the tenant of the nature of any damages suffered by such landlord by reason of such tenant’s failure to comply with such tenant’s obligations. If such landlord delivers such notification, the balance of any security deposit and accrued interest due and a written statement itemizing the nature and amount of damages shall be delivered to such tenant at his forwarding address within sixty days after termination of the tenancy. Any such landlord who violates the provision of this subsection shall be liable for twice the value of any security deposit paid by such tenant.”

       The memorandum of decision states that the letter was dated July 27. The trial court, however, made clear that the letter to which it was referring was Exhibit E, which is dated July 26. The incorrect date of July 27 in the court’s memorandum of decision appears to be merely a clerical error. The parties did not seek rectification of the trial court’s memorandum and refer to July 26 as the correct date of the letter in their briefs. We do likewise.


author: Per Curiam.

text:
    Anthony J. Ruscito v. John Kiersky et al.
    (2731)
    Dupont, C. J., Borden and Spallone, Js.
    Submitted on briefs May 17
    decision released August 27, 1985

      Jack L. Grogins filed a brief for the appellant (plaintiff).

      A. Reynolds Gordon filed a brief for the appellees (named defendant et al.).
   Per Curiam.

The plaintiff has appealed from that portion of the judgment of the trial court rendered for certain defendants.

The plaintiff instituted this action against the named defendants claiming injunctive relief and damages with regard to the defendants’ alleged interference with the plaintiff’s use of a right of way. The defendants John Kiersky and Nancy Kiersky appeared and filed a counterclaim for injunctive relief and damages against the plaintiff.

After a full trial, the court found for the plaintiff against the defendants Eugene Sullivan and Diane Sullivan and enjoined those defendants from parking on the right of way and from disturbing or obstructing the plaintiff’s right of passage. The court also found that the plaintiff’s predecessor in title had abandoned a portion of the right of way.

In addition, the court found for the defendants John Kiersky and Nancy Kiersky on their second counterclaim and ordered, by way of injunctive relief, that the plaintiff be enjoined from parking cars in the easement area for more than a total of one hour a day and awarded these defendants $4500 in damages.

The plaintiff was also enjoined from interfering with the right of way of the defendants Eugene Sullivan and Diane Sullivan to the beach over the plaintiff’s land.

The plaintiff claims that the trial court erred in concluding: (1) that the original grant of easement did not provide access to a dominant tenement known as “Twilight”; (2) that a portion of the original easement was abandoned by the plaintiff’s predecessor in title; (3) that the plaintiff’s grant of easement did not include parking rights; (4) that the plaintiff had not acquired a prescriptive right to park motor vehicles on the servient tenement “Shoales”; and (5) that the defendants John Kiersky and Nancy Kiersky were entitled to damages of $4500.

The trial court has fashioned a meticulously organized memorandum of decision in which it outlines in detail its factual findings and its conclusions of law. Each and every allegation of error pressed by the plaintiff, when analyzed within the context of the court’s memorandum of decision, clearly indicates that the plaintiff’s averments of error are without merit.

We have afforded each claim of error its appropriate scope of review and conclude that the judgment of the trial court should not be disturbed.

There is no error.


author: Dupont, C. J.,

text:
    State of Connecticut v. Ralph Hodge
    (2191)
    Dupont, C. J., Hull and Borden, Js.
    Argued June 4
    decision released August 27, 1985

      James E. Swaine, for the appellant (defendant).

      William Domnarski, deputy assistant state’s attorney, with whom, on the brief, was JohnM. Massameno, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.,

The defendant appeals from a judgment of the trial court which acquitted him on the charge of bribe receiving in violation of General Statutes § 53a-148, but convicted him of accepting a gift or gratuity in violation of General Statutes § 29-9,1 holding the latter offense to be a lesser included offense of General Statutes § 53a-148. The defendant moved to vacate the judgment and for a judgment of acquittal. The court denied both motions.

The following facts are not in dispute. The defendant, a New Haven police officer, was employed in an off-duty capacity as an additional security guard during a rock concert performance at the New Haven Coliseum. It was the policy of the coliseum to place uniformed off-duty police officers at the exit doors of the arena.

During intermission, a security officer employed by the coliseum observed the defendant permit two young men to enter the arena through the doorway assigned to the defendant. The defendant then called the two men back, whereupon both men took money out of their wallets and passed it to the defendant. The security officer subsequently reported the incident, which led to the defendant being charged with a violation of General Statutes § 53a-148.

On appeal from the judgment of conviction, the defendant raises several claims of error. His first claim is dispositive of the case. The defendant argues that General Statutes § 29-9 is not a lesser included offense of General Statutes § 53a-148.

An offense will not be considered a lesser included offense of another offense unless “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.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414, 420 (1980). “ ‘ “The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense . . . without having first committed the lesser.” ’ ” State v. Castro, 196 Conn. 421, 428, 493 A.2d 223 (1985); see also State v. Troynack, 174 Conn. 89, 97, 384 A.2d 326 (1977); State v. Carr, 172 Conn. 458, 465-66, 374 A.2d 1107 (1977). Thus, in order for General Statutes § 29-9 to be a lesser included offense of General Statutes § 53a-148, it must not require any element which is not needed to commit the offense of bribe receiving under General Statutes § 53a-148. See generally Schuman & Lager, “Connecticut’s Lesser Included Offense Doctrine: Part 1,” 54 Conn. B.J. 313 (1980); Lager & Schuman, “Connecticut’s Lesser Included Offense Doctrine: Part II,” 55 Conn. B.J. 207 (1981); note, “Lesser Offense in Connecticut: A Critical Analysis,” 3 U. Bridgeport L. Rev. 105 (1981).

The essential elements which constitute a violation of General Statutes § 29-9 are (1) receiving, directly or indirectly, (2) by a police officer or a person having the power of arrest, (3) any reward, gift or gratuity, (4) with the purpose of influencing his behavior in office. The statute imposes the requirement that the state prove a specific intent, namely, that the receipt of a benefit by the police officer was “for the purpose of influencing” his conduct. General Statutes § 29-9; see State v. Carr, supra, 465-67.

In contrast, General Statutes § 53a-148 does not require a specific intent. Id. Specifically, the statute states that a defendant is guilty of bribe receiving “if he solicits, accepts or agrees to accept from another any benefit for, because of, or as consideration for his decision, opinion, recommendation or vote.” (Emphasis added.) Nowhere does the language of General Statutes § 53a-148 require the element of specific intent found in General Statutes § 29-9. This distinction in the statutory language is significant. See State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971). General Statutes § 29-9 requires an element of proof of specific intent which is not needed to prove the offense of bribe receiving under General Statutes § 53a-148. Accordingly, the trial court erred in determining that General Statutes § 29-9 is a lesser included offense of General Statutes § 53a-148.

Our determination is in accord with an earlier decision of the Connecticut Supreme Court which held that General Statutes § 29-9 is not a lesser included offense of bribery under General Statutes § 53a-147. State v. Carr, supra, 467. The crime outlined in General Statutes § 53a-148 is the antipodean crime of General Statutes § 53a-147. One is the flip side of the other.

There is error, the judgment is set aside and the case is remanded with direction to render judgment that the defendant is not guilty.

In this opinion the other judges concurred.

       General Statutes § 53a-148 provides, in pertinent part: “A public servant or a person selected to be a public servant is guilty of bribe receiving if he solicits, accepts or agrees to accept from another any benefit for, because of, or as consideration for his decision, opinion, recommendation or vote.”

       General Statutes § 29-9 provides, in pertinent part: “Any state police officer appointed as provided in section 29-4, any police officer of any city, town or borough and any person having the power of arrest who, directly or indirectly, receives a reward, gift or gratuity for the purpose of influencing his behavior in office, or any person who gives, offers or promises to a police officer or any person having the power of arrest any reward, gift or gratuity with the intent to influence his behavior in office, shall be fined not more than one hundred dollars or imprisoned not more than six months or both, and the police officer shall be dishonorably discharged from the division of state police or from the police department.”

       Ordinarily, the greater offense is the one which requires the more culpable mental state, and the greater penalty. See State v. Smith, 185 Conn. 63, 67, 441 A.2d 84 (1981); State v. Fernandez, 5 Conn. App. 40, 45, 496 A.2d 533 (1985). General Statutes § 53a-148 is a class D felony which carries a maximum term of imprisonment of five years, while General Statutes § 29-9 imposes a fine of not more than one hundred dollars or six months imprisonment, or both, in addition to dishonorable discharge from the police department. The latter offense, however, requires a more culpable mental state than does General Statutes § 53a-148, a crime with a greater maximum term of imprisonment.

       The state contends that both General Statutes §§ 53a-148 and 29-9 are specific intent crimes. Such a conclusion is contrary to the holding of State v. Carr, 172 Conn. 458, 374 A.2d 1107 (1977). We will not “overrule” that case as requested by the state. O’Connor v. O’Connor, 4 Conn. App. 19, 20, 492 A.2d 207, cert. granted, 196 Conn. 812, 495 A.2d 280 (1985).


author: Daly, J.

text:
    State of Connecticut v. Luis A. Perez
    (2219)
    Dupont, C. J., Spallone and Daly, Js.
    Argued June 5
    decision released September 3, 1985

      Randolph E. Richardson II, certified law student intern, with whom were Todd D. Fernow and, on the brief, Michael R. Sheldon, for the appellant (defendant).

      Donald A. Browne, state’s attorney, for the appellee (state).
   Daly, J.

The defendant was convicted by a jury of larceny in the first degree in violation of General Statutes §§ 53a-119 (8) and 53a-122 (a) (2). The defendant has appealed, claiming that the trial court erred in not granting his motion for judgment of acquittal on the grounds that the state failed to prove the market value of the stolen items or that such a value could not be satisfactorily ascertained.

The jury could readily have found the following facts: On March 20, 1980, the defendant entered a precious metals dealer’s store in Westport and offered to sell certain silver items in his possession. While negotiations were under way, the police were notified but did not arrive until after the defendant had received a check in the amount of $1089.85 for certain items and was exiting the premises. The police hailed the defendant who was heading toward an automobile containing a female passenger. The defendant threw into the car pieces of paper upon which the female sat. The defendant was arrested and a search of the defendant and the car unearthed a ladies Wittenauer watch, the check and a receipt from the precious metals dealer, miscellaneous silver items, and a wooden silver storage chest. The victim of a reported burglary was notified, and she identified all the items seized by the police and sold to the dealer as having been stolen from her home in Westport.

The check for $1089.95 represented the scrap value of the stolen merchandise which had been purchased from the defendant. The silver-plated flatware in the wooden chest was estimated to have a value of $400 by the state’s principal expert, Robert Blackman. Additional items, including the sterling silver pieces which were retrieved from the precious metals dealer were estimated to have a fair market value of $3000 by Blackman. The silver pieces retrieved from the floor of the defendant’s automobile were valued between $500 and $600, at fair market value.

“The test employed in determining whether the evidence is sufficient to sustain a verdict is whether the trier could reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983).” State v. Davis, 3 Conn. App. 359, 368, 488 A.2d 837 (1985). Proof beyond a reasonable doubt is that which is consistent with the defendant’s guilt and inconsistent with any other rational conclusion or reasonable hypothesis. State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982). The elements of the crime are to be established by such proof. State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980). The jury is entitled to draw reasonable and logical inferences from the facts proven, but may not resort to conjecture and speculation. State v. Scielzo, supra, 196-97; State v. Dumlao, 3 Conn. App. 607, 612-13, 491 A.2d 404 (1985). When reviewing the jury’s verdict, the evidence presented at the trial must be given a construction most favorable to sustaining it. State v. Scielzo, supra, 196.

Because the defendant was charged under General Statutes § 53a-122 (a) (2), the state was required to adduce sufficient evidence to justify the finding by the trier that the value of the property stolen by the defendant exceeded $2000. General Statutes § 53a-121 (a) (1) provides that “value means the market value of the property or services at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property or services within a reasonable time after the crime.” A conviction for larceny in the first degree cannot stand if the state did not offer sufficient evidence that the value of the items stolen by the defendant exceeded $2000. State v. Baker, 182 Conn. 52, 62, 437 A.2d 843 (1980).

Market value has been defined as “ ‘ “the price that would in all probability—the probability being based upon the evidence in the case—result from fair negotiations, where the seller is willing to sell and the buyer desires to buy.” ’ O’Briens v. Board of Tax Review, 169 Conn. 129, 138, 362 A.2d 914 (1975).” State v. Cochran, 191 Conn. 180, 190, 463 A.2d 618 (1983).

The state’s expert witness, Blackman, a gemologist, placed a fair market value of $3400 on the silver, silver plate and the watch. On cross-examination, he testified that this was replacement value not as new, but the cost of going out and buying the items “as is.” The defendant claims that the appraisal was based on replacement cost and not on market value.

It is clear that Blackman, in light of the wording of the question posed to him, was testifying to what the silver and silver plate were worth used, that is, what it would cost the victim of the burglary to purchase them as used silver and silver plate. Blackman testified as to fair market value on direct examination. The defendant concedes, moreover, that the jury was properly instructed by the court on value. State v. Paoletto, 181 Conn. 172, 183-84, 434 A.2d 954 (1980). In reviewing the testimony in question, we cannot conclude that Blackman’s appraisal was based on anything other than market value. The jury could reasonably have concluded that the defendant was guilty of first degree larceny beyond a reasonable doubt.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1979) § 53a-122 (a), in effect in 1980 when the crime took place, provided in pertinent part: “A person is guilty of larceny in the first degree when: ... (2) the value of the property or service exceeds two thousand dollars.”

       The transcript reveals the following exchange:
      “Q. [By Defense Counsel] Well, I guess I am having trouble understanding it. You’re saying then that market value with regard to these items here means the cost of going out and buying these items new? Or is it the cost of going out and buying these items as is at the time?
      “A. [By Blackman] I would say going out and buying these items in a store.
      “Q. As is or as they are today?
      “A. As is. Yes sir.
      “Q. All right. Meaning as these items appear right now that would be the market value would be the cost of going out and buying them?
      “A. Fair market value. Yes, Sir.”


author: F. Hennessy, J.

text:
    John Belinsky, Sr., et al. v. Lewis P. Belinsky et al.
    (3474)
    Spallone, Daly and F. Hennessy, Js.
    Argued June 14
    decision released September 3, 1985

      Lewis R. Whitehead, for the appellants (plaintiffs).

      Harold B. Yudkin, for the appellee (named defendant).

      James Conklin II, for the appellee (defendant Stephen Hornak, Jr.).
   F. Hennessy, J.

This is an appeal by the plaintiffs claiming that the trial court erred in finding that they had failed to sustain their burden of proving by a fair preponderance of credible evidence that irreparable harm had been done to them sufficient to warrant the issuance of a mandatory injunction.

The defendant, Lewis P. Belinsky, the owner of an undivided one-quarter interest in a tract of land co-owned by the plaintiffs, joined with the defendant, Stephen Hornak, Jr., in a business venture to collect, store and sell used automobile tires. The defendants stored thousands of tires on the land and many tires still remain, even though the business is no longer in existence. The plaintiffs want the defendants to remove all the tires.

On appeal, we must determine whether the trial court’s decision is clearly erroneous. “This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Footnote omitted.) Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The trial court in its memorandum of decision concluded, without any elaboration, that the plaintiffs failed to sustain their burden of proof. The plaintiffs did not move, pursuant to Practice Book § 3082, for a further articulation from the trial court as to the factual basis of its decision. Newington v. General Sanitation Service Co., 196 Conn. 81, 84, 491 A.2d 363 (1985). Instead, they appealed claiming that the trial court erred in finding as a fact that the plaintiffs failed to establish irreparable harm sufficient to warrant the issuance of a mandatory injunction. The plaintiffs, in their brief, provide a statement of facts suppported by appropriate references to the transcript or the record. Practice Book § 3060F (c). The defendants submitted briefs which contain counter statements of facts but these statements do not refer to the transcript or the record. See Practice Book § 3060G (c). This court is therefore limited to the plaintiffs’ statement of facts. Blakeman v. Tobin, 177 Conn. 597, 597 n.1, 419 A.2d 336 (1979).

The plaintiffs presented evidence that the presence of the tires reduces the value of the land and thereby thwarts their efforts to sell the property at a reasonable price, that the presence of the tires creates a continuing zoning violation, and that the tires create a fire hazard and a condition of attractive nuisance. The plaintiffs also presented evidence that there were facilities which would take the tires, including one located in New Haven. The defendants, Lewis Belinsky and Stephen Homak, Jr., allege in their pleadings that they had removed all the tires which they deposited on the plaintiffs’ property.

A mandatory injunction will not issue where the plaintiffs have an adequate remedy at law. Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982); Cahill v. Board of Education, 187 Conn. 94, 97-98, 444 A.2d 907 (1982). Testimony disclosed that the tires could be removed and that certain facilities would accept those tires. Although this may be a costly procedure for the plaintiffs, it does not deprive them of an adequate remedy at law since a suit for damages for the cost of the removal could be brought. We, therefore, do not find that the trial court erred.

There is no error.

In this opinion the other judges concurred.

       Although the plaintiffs in their complaint sought a prohibitory injunction as well as a mandatory injunction, which in contrast to a prohibitory injunction, generally, involves a change in the status quo by directing that something be done; 42 Am. Jur. 2d, Injunctions §§16 and 17; they did not pursue that claim on appeal.


author: Hull, J.

text:
    Jeannette Liskiewicz, Administratrix (Estate of Edward G. Liskiewicz) v. Kenneth E. LeBlanc et al.
    (3311)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 5
    decision released September 3, 1985

      Martin M. Rutchik and Shelley M. Weiss, for the appellant (plaintiff).

      Joseph G. Lynch, with whom, on the brief, was John W. Lemega, for the appellee (named defendant).
   Hull, J.

This is an appeal from the trial court’s denial of a motion to set aside a jury verdict for the named defendant in an action alleging the wrongful death of the plaintiff’s decedent. The plaintiff claims that the trial court erred (1) in excluding testimony and demonstrative evidence presented by an expert witness on the basis of the court’s assessment of the credibility of the witness, (2) in refusing to admit an expert opinion on the basis of deductive reasoning, and (3) in allowing excessive voir dire of the plaintiff’s expert by defense counsel, by itself engaging in excessive examination of the witnesses and, by failing to maintain judicial impartiality. We find no error.

The jury could reasonably have found the following facts: On June 9, 1979, at approximately 11 p.m., the plaintiff’s decedent was operating his automobile in a westerly direction on route 165 in Preston. The defendant, Kenneth E. LeBlanc, an acquaintance of the decedent, was operating an automobile owned by his father, Ronald E. LeBlane, directly in front of the decedent’s automobile. Both drivers were alone.

A collision occurred between the two vehicles in which the rear end of the defendant’s automobile was struck by the front end of the decedent’s automobile. The decedent thereafter lost control of his automobile which crashed through a guardrail and came to rest in a wooded area adjacent to the road. The decedent sustained fatal injuries.

At trial, the plaintiff introduced Eugene Baron, an expert in accident reconstruction, to testify about his reconstruction of the accident in question. On the basis of his sixteen years as a state police officer, his affiliation with the forensic laboratory accident reconstruction unit of the state department of public safety for seven years and numerous other credentials, the court qualified Baron as an expert. The plaintiff’s counsel then proceeded to examine him regarding the accident.

Baron testified, with the aid of a diagram of route 165 which he had prepared and which was admitted into evidence as a full exhibit, that the skid marks caused by the decedent’s loss of control were roughly 90 feet in length, terminating when the car left the road. Working backward, using commonly accepted reaction time estimations, as well as the defendant’s testimony regarding the speeds of the vehicles, Baron testified that the impact of the two cars had occurred approximately one hundred feet prior to the start of the skid while the cars were travelling at roughly equal speeds in the left hand, or passing lane of the highway.

In order to explain his testimony further, Baron relied upon a clear plastic overlay which showed the two cars at various points during Baron’s theoretical reconstruction of the accident. The diagram itself showed only the skid marks while the overlay placed the vehicles in a manner which comported with the skid marks.

As part of her case, the plaintiff attempted to show that the accident occurred when the defendant’s car swerved suddenly into the passing lane while the decedent was passing him. Baron’s overlay showed precisely that scenario just prior to the impact point. Nonetheless, the court concluded, after a lengthy voir dire, that there was no theoretical or evidential basis for the preimpact portion of the overlay and excluded that portion of the overlay from the evidence. Thereafter, the jury rendered a verdict for the defendant and, upon the court’s denial of her motion to set aside the verdict, the plaintiff filed the present appeal.

The first two claims of error raised herein deal with the court’s exclusion of Baron’s testimony and the map overlay regarding the pre-impact paths of the two vehicles. The plaintiff argues, essentially, that the court’s rulings were based on its lack of understanding of Baron’s method for arriving at his conclusions regarding the pre-impact paths of the two vehicles and that these rulings invaded the province of the jury to evaluate the credibility of the witness.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony . . . .” Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976). This discretion is “not to be disturbed . . . ‘unless [it] has been abused, or the error is clear and involves a misconception of the law.’ ” Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); see also McKiernan v. Caldor, Inc., 183 Conn. 164, 168, 438 A.2d 865 (1981).

In the present case, a close reading of the transcript shows that although there was evidence or a theoretical basis justifying Baron’s testimony regarding the location of the vehicles at the point of impact and their subsequent paths, Baron had little theoretical or evidential support for his testimony regarding their locations before that point. It appears that he could testify as to the minimum distance between the point of impact and the point at which the defendant could possibly have moved into the passing lane on the basis of the ability of the defendant’s car to make the lane-change before impact without a loss of control, or without having skidded itself. Baron conceded, however, that maximum distance between the point of impact and the defendant’s lane change could not be computed. Hence, Baron conceded that it was possible that the defendant was in the passing lane a half-mile prior to the accident. Thus, contrary to the plaintiff’s argument in her brief, the court was not concerned with the credibility of the witness, but with the factual basis for his opinion. “The facts upon which an expert’s opinion is based are an important consideration in determining the admissibility of his opinion.” Going v. Pagani, supra, 34. “The question of whether a sufficient foundation was laid is a factual question for the court.” Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 670, 482 A.2d 91 (1984). In the present case, as in Going, we hold that “the uncertainties in the essential facts on which the witness’ opinion [and his diagram were] predicated were such as to make an opinion based on them without substantial value.” Going v. Pagani, supra, 35. Thus, it was not error for the court to exclude the pre-impact portion of the overlay or Baron’s testimony relative thereto.

With regard to the plaintiff’s remaining claim of error, we note that “[w]hether a trial court elects to question a witness is within its sound discretion, as is the extent of the examination. Its exercise will not be reviewed unless it abused its discretion.” Hutchinson v. Plante, 175 Conn. 1, 3, 392 A.2d 488 (1978). A review of the transcript in this case indicates that the court’s examination of Baron, as well as the extensive voir dire by the defense counsel, was necessitated by the plaintiff’s confusing presentation of Baron as a witness. The record demonstrates the court’s admirable efforts at drawing out the basis for Baron’s testimony and in giving the plaintiff every opportunity to prove her case.

There is no error.

In this opinion the other judges concurred.

       Although the named defendant’s father, Ronald E. LeBlanc, was also named in the complaint as a defendant, the action was withdrawn as to him on February 28,1984. Hence, the named defendant is the only appellee herein.

       We note, at the outset, that the plaintiffs brief does not fully comply with Practice Book § 3060F (d) (3). No statement has been provided which sets out the evidentiary rulings at issue here. In her reply brief, the plaintiff argues that compliance with the rule is impossible in this case since a series of rulings and arguments are at issue here. We note that this argument, valid insofar as it goes, only serves further to confuse the issues of this case. The fundamental objection which the plaintiff has to the court’s rulings is to the exclusion of Baron’s testimony and to that portion of the overlay dealing with the pre-impact paths of the vehicles. Because the application of the rule to this case is so complex, we nonetheless choose to consider her claims of error on their merits.

       Baron testified that “at fifty-five miles an hour a vehicle is only capable of turning a radius of a calculated full diameter. Anything greater or shallower, in terms of the radius, will produce side slipping.”

       The transcript indicates that the following colloquy between the court and the witness took place: “The Court: Let me ask you a question: Do you know at what time when--how far back the decedent’s vehicle and the Defendant’s vehicle were both in the west--in the eastbound lane, how far back from the point of impact when they first got in the eastbound lane? Can you tell that?
      “The Witness: No, I can’t.
      “The Court: In other words, they could, if--assuming that the Defendant cut in front of the decedent, could you tell me where it could have happened? Could it have happened further east than you had it?
      “The Witness: Yes, it could have, sir.
      “The Court: Could have happened half a mile further east?
      “The Witness: Absolutely.”


text:
    Peter Ping-Wei Wu et al. v. Lloyd Moody et al.
    (3476)
    Dupont, C. J., Hull and Daly, Js.
    Argued June 12
    decision released September 3, 1985

      Ronald P. Sherlock, with whom, on the brief, was James W. Sherman, for the appellants (plaintiffs).

      Homer G. Scoville, with whom, on the brief, was Mark H. Taylor, for the appellees (defendants).
   Hull, J.

This appeal arises out of an action on a contract for the construction of a house. The plaintiffs, Peter Ping-Wei Wu and his wife, Rong-Rong Rose Wu, claim error in the trial court’s pretrial order to distribute all but $20,000 of the proceeds of a sale of the real estate at issue to the defendants without a prior hearing as to the parties’ respective interests therein. The plaintiffs also claim that the trial court erred in opening its judgment, subsequent to the filing of this appeal, in order to change the ground upon which its distribution order was based. We find no error.

On June 5, 1983, the plaintiffs and the defendant Tollgate Acres, Inc., entered into an agreement for the purchase of a new home to be built in Glastonbury. The purchase price of the home was $124,900 and the plaintiffs paid the defendants a $10,000 deposit under the terms of the contract.

Subsequently, a dispute arose between the parties regarding details of the construction and the plaintiffs filed the present action for partition of the property. Thereafter, they amended their complaint to include seven additional counts alleging, inter alia, fraud, intentional infliction of emotional distress and negligence.

The parties stipulated that the property should be sold. The proceeds, $129,900, were placed in Citizens Bank and Trust Company of Glastonbury pending the outcome of this action. Subsequently, the defendants moved for a distribution of proceeds of the sale and the court, O’Neill, J., concluded that “[tjhere appears no reason on the face of these papers to require $129,900 to be held for a $16,000 to $20,000 claim. The court hereby orders a hearing to determine if plaintiffs have any additional interest in the proceeds under the first count. In the event that plaintiffs seek any other form of prejudgment remedy in regard to these funds based on any other portion of this complaint they shall apply for the same . . . and all such matters shall be heard at the same hearing.”

Subsequently, the plaintiffs did apply for an additional prejudgment remedy with regard to counts two through eight and the court heard argument on both the later application and the initial motion for distribution made pursuant to count one. At that hearing the court denied the application for any additional prejudgment remedy but did order that $20,000 from the sale price of the house should not be distributed to the defendants. That amount was to “remain as security for any interests that the plaintiffs have in this property under the first count.”

Thereafter, on October 10, 1984, after the present appeal had been filed, the court changed the basis of its decision in an oral response to the defendants’ motion to open the judgment. The court had initially concluded that “[t]he actions of the parties and of the court in acting on the stipulation of the parties make it clear that the $129,900 held in escrow is meant to be held in the same fashion as if held under a prejudgment remedy as set out in General Statutes § 52-278a et seq. and § 52-307 in regard to attachment bonds.” This basis for the decision was changed “by correcting the basis for the decision to holding the money under section 52-502, because the thought is the same.”

By their amended appeal, the plaintiffs claim that the court erred: (1) in ordering distribution prior to the close of the pleadings and “absent a meaningful hearing on the respective interests of the interested parties”; (2) in basing its original decision on prejudgment remedy procedures; and (3) in subsequently changing the basis of its decision after the present appeal was filed.

We conclude that the court’s initial characterization of its order was correct. The order for partial distribution was not, as the plaintiffs would characterize it, a “determination of respective interests in the partition sale proceeds.” Rather, the court, in concluding that a hearing should be held on the motion for distribution, based its first memorandum of decision upon prejudgment remedy case authority and concluded by stating that “[i]n the event that plaintiffs seek any other form of prejudgment remedy in regard to these funds based on any other portion of this complaint they shall apply for the same within ten days.” (Emphasis added.)

At the subsequent hearing on the motion for partial distribution, the court ordered that $20,000 was to remain “as security for the interests that the plaintiffs have in this property under the first count.” (Emphasis added.)

Finally, at the hearing on the defendants’ motion to open the judgment the court stated: “I’ll just expand my judgment, my opinion ... to holding the money under section 52-502, because the thought is the same, that when we get to the end of this case, there should be some little pot for the plaintiff to prevail cm” (Emphasis added.)

It is clear from the court’s statements that it was not making a final determination of the plaintiffs’ interests in any portion of the $129,900 at issue. Rather, the court simply determined what the plaintiffs were likely to recover and made its order based on that determination. Thus, whether the court formally called its decision a prejudgment remedy, or an order pursuant to General Statutes § 52-502, the order amounted, nonetheless, to a prejudgment remedy. Thus, the plaintiffs’ claims, which are essentially based on their argument that the court erred in using prejudgment remedy standards, fail because the court was properly using such standards.

It is clear that the present appeal is premised on the plaintiffs’ fears that their interests have been finally determined in all but $20,000 of the sale price of the property. That is, quite simply, not what the trial court did. Thus, the plaintiffs arguments are inherently flawed.

There is no error.

In this opinion the other judges concurred.

       Tollgate Acres, Inc., a corporation wholly owned by the named defendant, Lloyd Moody, is also a defendant herein.

       We note at the outset that this case should not have been brought as a partition action. General Statutes §§ 52-495 through 52-503 clearly were written in contemplation of a partition action between joint tenants. Here, however, the plaintiffs claim that they have exclusive title to the property under equitable principles. Such a posture implicitly denies any claim of title by the defendants.

       It should be noted that as to the merits of this case the parties have little disagreement. The plaintiffs argue, essentially, that they have “a one hundred per cent interest in the sale proceeds subject to the claims or liens of the defendants.” The defendants and the court respond that the contract price, minus the deposit of $10,000, is $114,900 and that the $15,000 difference between that figure and the sale price of $129,900 is the maximum amount which the plaintiffs might recover. This dispute seems to us to be a legal zebra. One party is arguing that it is a black animal with white stripes while the other party argues that it is a white animal with black stripes. Either way, it remains zebra.

       General Statutes § 52-502 provides, in pertinent part: “(a) On any complaint for the sale of real or personal property, the court in which the case is pending may make any order necessary to protect the rights of all parties in interest and to carry the sale into effect.” (Emphasis added.)

       The plaintiffs have not claimed, as error, the denial of their application for a further prejudgment remedy on counts two through eight.

       It should be noted that the wording of General Statutes § 52-502 (a), although certainly not drafted in contemplation of the situation present in this case, is broad enough to encompass orders which effectively constitute prejudgment remedies.


text:
    Genevieve Lombardi v. Joseph Lombardi
    (2608)
    Spallone, Daly and F. Hennessy, Js.
    Argued June 14
    decision released September 3, 1985

      Michael L. Riccio, with whom was Gerald M. Gaynor, for the appellant (defendant).

      Roy W. Moss, with whom, on the brief, was J. Adrian Rebollo, for the appellee (plaintiff).
   F. Hennessy, J.

This is an appeal by the defendant husband from the orders of the court made incidental to the dissolution of the marriage between the defendant and the plaintiff wife.

The defendant claims that the court abused its discretion in ordering him to be solely responsible for the arrearages on the first mortgage, for all payments on the second and third mortgages and for payment of a judgment lien, which are encumbrances upon the marital residence. He further claims the court abused its discretion in dividing the household and personal effects of the parties.

This twelve year marriage, during which the parties had two children, broke down irretrievably due mainly to the acts of the defendant. In dividing the estate of the parties, the court concluded that the encumbrances on the marital residence resulted from loans used by the defendant to further his business interests. The second mortgage was for the defendant’s counseling center venture and payments on this mortgage were made from the income derived from this venture. The third mortgage was to the defendant’s parents. The note and deed were executed in February, 1981, and recorded in December, 1982, at the time the dissolution of marriage action was initiated. In dividing the estate, the court gave the marital home to the plaintiff and required her to be responsible for the first mortgage on that property. Property in Florida was given to the defendant and he was responsible for the mortgage on that property.

The court concluded that because the plaintiff’s sole source of income was from the defendant, as compared to the defendant’s income of three hundred fifty-three dollars a week coupled with his ability to generate further income, there was a disparity which required that the major asset of the marriage, the marital home, which had an equity of approximately twenty-eight thousand dollars, be given to the plaintiff.

The personalty award, which gave the plaintiff the contents of the marital home except for a specified list of items to be the sole property of the defendant, is an issue which this court must review in the context of the circumstances presented. The plaintiff, who was awarded custody of the minor children and who had a minimal income, minimal assets and a disparity in earning capacity compared to the defendant, received most of the household furnishings.

The defendant claims that, after considering all the awards, it is evident that the court made them using speculation, arbitrariness and incorrect findings of fact which constituted an abuse of discretion. “In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982).” Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983). After reviewing the facts set forth in the memorandum of decision and the twenty-four paragraphs of articulation, we find that these facts were supported by the evidence and the awards made were not unreasonable. There was no abuse of discretion.

There is no error.

In this opinion the other judges concurred.


author: Stoughton, J.

text:
    A. Richard Tomanelli v. Adele Tomanelli
    (3320)
    Spallone, Daly and Stoughton, Js.

      Argued June 14
    decision released September 3, 1985

      Robert M. Wechsler, for the appellant (plaintiff).

      Myra Graubard, for the appellee (defendant).
   Stoughton, J.

The plaintiff appeals from the judgment rendered by the trial court, Lewis, J., on the defendant’s motion for contempt, in which the defendant claimed that the plaintiff had failed to pay the full amount of the court ordered unallocated alimony and support. The trial court found that the plaintiff had indeed failed to pay the correct amount of unallocated alimony and support after December, 1983. That court declined, however, to find the plaintiff in contempt because of a bona fide dispute about the intention of a modification judgment reducing the plaintiff’s unallocated alimony and support payment. Instead, the trial court found the plaintiff approximately $1000 in arrears since it determined the modification of the judgment involving unallocated alimony and support in dispute was temporary rather than permanent as asserted by the plaintiff. The plaintiff filed a motion to reargue and set aside the trial court’s finding, which was denied. Thereafter, the plaintiff appealed.

We briefly address the plaintiff’s due process claim. What transpired before the trial court at the contempt hearing is not before this court. The plaintiff failed to provide a transcript of that hearing to this court. He is required to provide the court with an adequate record for appellate review and, in the absence of such a record, we cannot say the trial court erred. Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407-408, 480 A.2d 552 (1984); Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713-14, 462 A.2d 1037 (1983).

Certain facts are relevant to a review of the plaintiff’s substantive claim. The parties’ marriage was dissolved in July of 1980. The defendant was awarded custody of the three minor children. The right to use and occupy the marital residence was given to the defendant provided, among other things, that she pay the mortgage, taxes, insurance and maintenance costs. The dissolution judgment provided that the plaintiff would pay $2000 per month in unallocated alimony and support until two children were married, self-supporting, died, or were eighteen years of age. The unallocated alimony and support would then be reduced by $250 per month. In July of 1981, the dissolution judgment was modified, by agreement, to provide a $150 increase in alimony and child support since the defendant’s mortgage payments had increased. In June of 1983, the plaintiff moved to have the dissolution judgment modified by reducing the amount of the unallocated alimony and support since his income had decreased. The motion was granted and payments were reduced by $200 per month by the trial court, Dean, J. The transcript discloses the trial court was well aware, when it issued the order, that the plaintiffs unallocated alimony and support would automatically be reduced $250 per month after December of 1983 because two of the children would then be eighteen years of age.

The transcript of the modification hearing reveals that the court believed the plaintiffs income as a clinical psychologist was subject to monthly fluctuations which could lead to modification on a monthly basis. In light of that and the automatic reduction, the court attempted to get the parties to agree to a reduction until the automatic reduction in payments occurred. At that time, the court suggested the situation could be reevaluated. The parties then went off the record to discuss a settlement of the issue. Unable to reach an agreement, court resumed and the trial court ordered the payments reduced by $200 per month and then remarked “where you go from there I don’t know.” It is appropriate to look at the trial court’s remarks in construing the order. Christiano v. Christiano, 131 Conn. 589, 592-93, 41 A.2d 779 (1945).

The transcript discloses that the trial court was thinking about a temporary reduction prior to the recess and the court’s final remark indicates that view had not changed. Whether conversations off the record changed that focus, we cannot consider because appeals are decided solely on the record. Hasbrouck v. Hasbrouck, 195 Conn. 558, 560, 489 A.2d 1022 (1985). The trial court’s construction of the order previously rendered by Judge Dean is supported by the record and is a reasonable one. We therefore find that the trial court did not err in rendering the judgment on appeal here.

There is no error.

In this opinion the other judges concurred.

       The court properly declined to adjudge the plaintiff in contempt since the failure to comply was not wilful. Connolly v. Connolly, 191 Conn. 468, 482-83, 464 A.2d 837 (1983); see Marcil v. Marcil, 4 Conn. App. 403, 494 A.2d 620 (1985).


author: Spallone, J.

text:
    Yankee Sailing Company, Inc., et al. v. Yankee Harbor Marina, Inc., et al. Arthur Collins et al. v. Yankee Sailing Company, Inc., et al.
    (2543) (2544)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 5
    decision released September 3, 1985

      Daniel W. Moger, Jr., for the appellants (plaintiffs in the first case, defendants in the second case).

      James R. Fogarty, for the appellees (named defendant et al. in the first case, named plaintiff et al. in the second case).
   Spallone, J.

In an attempt to impose some measure of clarity upon the complicated factual situation presented in these combined appeals, the first action, entitled Yankee Sailing Co. v. Yankee Harbor Marina, Inc., will be referred to hereinafter as the “equitable action,” and the second action, entitled Arthur Collins v. Yankee Sailing Company, will be referred to as the “summary process action.” Unless otherwise denoted, Yankee Sailing Company, Inc., Aleo Holdings, Ltd., doing business as Offshore Yachts, and A.A. Constantine will be referred to as the tenants. Yankee Harbor Marina, Inc., Arthur Collins, Arthur Emil, and John Freitag will be referred to as the landlords.

These cases arise out of the use of a building owned by Collins and Emil. This building was occupied by the tenants from the summer of 1982 until they were evicted in the fall of 1983. During this period, the tenants did not pay rent for the use and occupancy of the building but, instead, compensated the landlords for the use of the building by making improvements to the property under an alleged oral agreement.

The procedural history of these actions is complex. By notice to quit, dated January 5,1983, the landlords demanded that the tenants vacate the premises on or before January 16, 1983. In response to this notice to quit, the tenants instituted the equitable action in which they sought, inter alia, temporarily and permanently to enjoin the landlords from evicting them. In the equitable action, the landlords Collins and Emil counterclaimed, seeking, inter alia, damages for trespass. The tenants moved to dismiss the summary process action because of alleged deficiencies in the notice to quit. The trial court granted the tenants’ motion to dismiss the summary process action because the reasons contained in the landlords’ notice to quit were mutually contradictory. It denied the tenants a temporary injunction in the equitable action.

The landlords then instituted a new summary process action which was consolidated for trial with the equitable action. The trial court rendered judgment for the landlords on both the complaint and the counterclaim in the equitable action, and awarded them damages on the counterclaim for use and occupancy. In the summary process action, the court awarded the landlords immediate possession. The tenants have appealed from the judgments in both actions.

On appeal, the tenants claim that the trial court erred: (1) in rendering judgment for the landlords in the summary process action on the basis of an allegedly defective notice to quit; and (2) in awarding the landlords damages for use and occupancy in the equitable action on the counterclaim which did not allege use and occupancy.

At oral argument, the landlords conceded that the trial court erred in the equitable action in finding for them on their counterclaim on the basis of use and occupancy.

In the summary process action, we find that the appeal is moot. The tenants failed to post bond as ordered by the court; see General Statutes §§ 47a-35 and 47a-35a; and, as a result, the automatic stay pending appeal was terminated and they were evicted. Although a writ of restoration may issue upon a reversal of a summary process judgment; Du Bouchet v. Wharton, 12 Conn. 533, 539 (1838); such a writ can only issue if the lease has not expired by its terms. Id. In this case, the trial court found not only that there was no lease, but also that the tenants’ possession was wrongful.

“[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); quoted in Bridgeport Jai Alai, Inc. v. Gaming Policy Board, 3 Conn. App. 254, 256, 487 A.2d 208 (1985). Since the question presented to us in the appeal from the judgment in the summary process action is purely academic, we refuse to entertain it. See Bridgeport Jai Alai, Inc. v. Gaming Policy Board, supra, 257.

In the summary process action (2544), the appeal is dismissed; in the equitable action (2543), there is error, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiffs, Yankee Sailing Company, Inc., et ah, on the counterclaim.

In this opinion the other judges concurred.

       A.A. Constantine is the president of Yankee Sailing Company, Inc., and Aleo Holdings, Ltd.

       Collins and Emil are the officers and shareholders of Yankee Harbor Marina, Inc. Freitag is the manager of Yankee Harbor Marina, Inc.

       The reasons set forth in the notice to quit were: “1. You have no agreement of any kind to maintain possession or occupancy of the premises. 2. You have failed to keep your agreement to vacate the premises on or before January 1983.”

       In the notice to quit in the second summary process action, the landlords demanded that the premises be vacated on or before March 1,1983, for the following reason: “You have no right or privilege to occupy said premises.”

       General Statutes § 47a-35 provides: “Execution shall be stayed for five days from the date judgment has been rendered, provided any Sunday or legal holiday intervening shall be excluded in computing such five days, except that in an action for nonpayment of rent, if within five days of the date judgment is rendered the defendant deposits with the clerk of the court the full arrearage then the defendant may apply for a stay of execution in accordance with section 47a-37. Notwithstanding the provisions of said section no such stay may exceed three months in the aggregate. The clerk shall distribute such arrearage to the landlord in accordance with an order of the court. An appeal shall not be taken except within such period. If an appeal is taken within such period, execution shall be stayed until the final determination of the cause, unless it appears to the judge who tried the case that the appeal was taken solely for the purpose of delay or unless the defendant fails to give bond, as provided in section 47a-35a. If execution has not been stayed, as provided in this section, execution may then issue, except as otherwise provided in sections 47a-36 to 47a-41, inclusive.”
      General Statutes § 47a-35a provides: “(a) When any appeal is taken by the defendant occupying a dwelling unit as defined in section 47a-l in an action of summary process, he shall, within the period allowed for taking such appeal, give a bond with surety to the adverse party to guarantee payment for all rents that may accrue during the pendency of such appeal, or, where no lease had existed, for the reasonable value for such use and occupancy that may so accrue; provided the court shall upon motion by the defendant and after hearing thereon order the defendant to deposit with the court payments for the reasonable fair rental value of the use and occupancy of the premises during the pendency of such appeal accruing from the date of such order. Such order shall permit the payment of such amount in monthly instalments, as it becomes due, and compliance with such order shall be a substitute for any bond required by this section.
      “(b) In any other appeal the court on its own motion or on motion of the parties, may fix a sufficient bond with surety to the adverse party in such amount as it may determine.”