author: Spallone, J. Bieluch, J.,

text:
    John F. Carr, Jr. v. Nicholas Trotta
    (4017)
    Borden, Spallone and Bieluch, Js.
    Argued February 19 —
    decision released May 6, 1986

      Michael Feldman, with whom, on the brief, were Elliot B. Pollack and Melvin A. Simon, for the appellant (defendant).

      Wesley W. Horton, with whom were David B. Losee and, on the brief, Kimberly A. Knox, law student intern, for the appellee (plaintiff).
   Spallone, J.

The defendant is appealing from the judgment of the trial court confirming an arbitration award in favor of the plaintiff.

The plaintiff brought this action to confirm the award which was rendered after a hearing on the matter which the defendant did not attend. At the close of the hearing, the arbitrator declared that the hearing would be completed when he received a transcript of the proceedings. The hearing was held on November 26,1984. The arbitrator received the transcript on December 20, 1984, and he rendered his award on January 18,1985. The award was made fifty-two days from the date of the hearing but within thirty days of the receipt of the transcript. By application dated January 25,1985, the plaintiff moved to confirm the award pursuant to General Statutes § 52-417.

At the hearing on the application to confirm the award, the defendant testified and objected to the confirmation of the award. He claimed (1) that he did not receive sufficient notice of the arbitration hearing, (2) that the underlying contract providing for arbitration was cancelled by him, and (3) that the arbitrator did not render his award within thirty days of the completion of the hearing as is required by General Statutes § 52-416 (a).

The trial court expressly found that the defendant had notice of the hearing and had not cancelled the contract. In addition, the trial court concluded that no motion to vacate the award had been filed by the defendant within thirty days after his receipt of notice of the award, as required by General Statutes § 52-420 (b). On February 27,1985, the court granted the application and confirmed the award.

On appeal, the defendant claims as error the trial court’s conclusion that the arbitrator had the authority to extend the close of an arbitration hearing without the consent of the parties. The defendant claims further that the trial court erred in confirming an arbitration award rendered beyond the statutory deadline prescribed in § 52-420 (b). We find no merit to these claims.

The plaintiff, citing Vail v. American Way Homes, Inc., 181 Conn. 449, 452-53, 435 A.2d 993 (1980), Local 1078 v. Anaconda American Brass Co., 149 Conn. 687, 690-91,183 A.2d 623 (1962), and Kilby v. St. Paul Ins. Co., 29 Conn. Sup. 22, 25-26, 269 A.2d 295 (1970), claims that because the defendant failed to raise his issues on a motion to vacate the award, the trial court properly confirmed the award. We disagree.

The defendant’s challenge of the arbitrator’s award questions the legality of the award. It is in effect an attack upon the jurisdiction of the arbitrator to render an award beyond the thirty-day limit. The question of subject matter jurisdiction may be raised at any time. General Statutes § 52-416 clearly states that “[a]n award made after that time [thirty days after hearings are concluded or thirty days from receipt of additional material] shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.” (Emphasis added.) This provision can only be interpreted to mean that the arbitrator under those conditions lacks the power to enter an award because he no longer has subject matter jurisdiction. We find these circumstances to be analogous to the situation where the trial judge renders a judgment in excess of 120 days after the close of a trial absent consent or waiver of the parties. See Practice Book § 145; Gordon v. Feldman, 164 Conn. 554, 556, 325 A.2d 247 (1973); Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 536, 294 A.2d 573 (1972); Spelke v. Shaw, 117 Conn. 639, 644, 169 A. 787 (1933). In these cases, the rendering of late judgments was erroneous.

Although we conclude that the defendant has standing to question the arbitrator’s power to render an untimely award, we disagree with his assertion that, in this case, the arbitrator’s action was untimely. General Statutes § 52-416 (a) provides alternate conditions that trigger the thirty day period. As referenced above, one such alternative provides that the award shall be rendered “within thirty days from the date the hearing or hearings are completed . . . . ”

In the present action, the arbitrator declared that he was extending the completion date of the hearing until the date he received a transcript of the proceedings. There is no requirement that he seek the consent of the parties before instituting this procedure. Frank v. Streeter, 192 Conn. 601, 604, 472 A.2d 1281 (1984); C. F. Wooding Co. v. Middletown Elk’s Home Corporation, 177 Conn. 484, 486-87, 418 A.2d 904 (1979). Although we have no cases to guide us, it is apparent to us that we should test the arbitrator’s decision by whether it was reasonable, under the circumstances in this case, to extend the completion date of the hearing until the transcript was to be received. We conclude that a transcript aids the trier in the same manner as a brief does, and that it is wholly consistent with good trial practice, when the trier feels the need, to request a transcript of the proceeding before rendering the decision. Our Supreme Court has affirmed the declaration of an arbitrator that the hearing would be closed upon the receipt of briefs. C. F. Wooding Co. v. Middletown Elk’s Home Corporation, supra.

Here, there has been no showing that the request for a transcript was made for the purpose of delay, nor has there been any indication of prejudice to the defendant. The reliance of the dissent on a showing of prejudice to the defendant, arising from the late submission of the bill for legal fees, is inexplicable in this case. Although at the beginning of his brief in this court, the defendant makes an unsubstantiated, and subsequently unargued, assertion that he was “prejudiced by the extension of the hearing, the posthearing admission of evidence and the untimely award,” at oral argument in this court he specifically disclaimed any prejudice to him flowing from the claimed statutory violation which is the basis of his appeal. Moreover, even if there were such prejudice, it would only extend to the award of $1184.39 in legal fees, which we note is less than 10 percent of the entire award. The dissent would have the tail wag the dog.

The gist of the defendant’s appeal is not that the arbitrator erred by permitting the legal fees for the arbitration proceeding to be submitted late. It is, instead, that the arbitrator had no power to extend the hearing termination date to the receipt of the transcript. Yet, even if the defendant had notice of that action of the arbitrator, it would not have helped him in any way. Short of claiming an inaccuracy in the transcript, which he does not claim and which, considering his voluntary absence from the hearing, he is in no position to claim, there would have been nothing that he could have done at that point to protect his interests any further.

Thus, the reliance of the dissent on Bonner v. American Financial Marketing Corporation, 181 Conn. 57, 434 A.2d 323 (1980), is inapt. First, in Bonner, the defendant had appeared in the case, the default was entered for failure to appear at a deposition, and the court entered the default and a subsequent judgment without any such motions before it and without, therefore, any prior notice to the defendant. Second, Banner is based on a specific rule of practice requiring a motion for judgment to be filed following a default. Third, as Bonner indicates, the “effect of the entry of the default was to preclude the defendant from making any defense to liability in the action,” and even after a default the defendant would have been entitled, at a hearing in damages, to raise prior defenses. Id., 58. No such considerations are present in this case.

We hold that the arbitrator had the authority to declare that the hearing would be deemed completed upon his receipt of the transcript. See Frank v. Streeter, supra; C. F. Wooding Co. v. Middletown Elk’s Home Corporation, supra.

The decision of the trial court to confirm the award is correct, but not for the reason that the defendant failed to file a motion to vacate. As we concluded above, the defendant had standing to question the subject matter jurisdiction of the arbitrator upon the court’s consideration of the plaintiff’s motion to confirm. Where the trial court reaches a correct decision on incorrect grounds, that decision will be sustained if correct grounds exist to support it. Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 301, 429 A.2d 883 (1980); Royce v. Freedom of Information Commission, 177 Conn. 584, 588, 418 A.2d 939 (1979); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).

There is no error.

In this opinion, Borden, J., concurred.

Bieluch, J.,

dissenting. I dissent because I do not agree that the arbitrator’s unilateral agreement with the plaintiff without notice to the defendant to close the hearing upon receipt at an indefinite date of a transcript of the hearing permitted an extension of the statutory time for rendering his award. General Statutes § 52-416 (a) provides two alternate periods of limitation. Either the award must be made (1) within thirty days of the completion of the hearing, or (2) within thirty days from the date fixed by the arbitrator for the receipt of additional material to be submitted by the parties after the hearing. The award here was untimely by either standard.

The following facts are relevant: The arbitration hearing was originally scheduled for November 19, 1984. By timely notice to the parties, the hearing was postponed to November 26, 1984. Having been away on vacation, the defendant received notice of the postponement upon his return to the office on the hearing date. Because of a schedule conflict, he did not attend the hearing, but neither did he seek a continuance. A stenographic record of the testimony at the hearing was made upon demand of one of the parties, but the record is silent on his identity. The transcript of the conclusion of the hearing discloses that the following conversation took place between the arbitrator and counsel for the plaintiff:

“[Arbitrator]: Do you have any further questions?

“[Counsel]: No, sir.

“[Arbitrator]: Why don’t we consider the hearing closed upon receipt of the transcript and then a decision will be made within the time running from that period.

“[Counsel]: That’s fine with me. The contract provides in the event it is necessary to bring some legal proceedings to collect this, for an award of attorney’s fees. I don’t know whether that is acceptable under the arbitration rules or not. I couldn’t find it. But, if I may, what I will do is before the week is out, put in a statement of my time through today and ask that you consider that as well, if the rules of the contract allow.”

The defendant’s consent to the extension of the hearing was neither sought nor obtained. Nor was he informed of the continuance. Further, he was not told that the plaintiff was permitted to submit evidence of legal fees, nor advised that he had the reciprocal right to offer counter evidence.

On January 18, 1985, the arbitrator rendered his award that the plaintiff recover of the defendant $12,828.39. The arbitrator awarded $9100 for the manufacture of the unit under the purchase agreement and $2544 for the design of the defendant’s office under the design agreement. Additionally, the arbitrator awarded the plaintiff counsel fees in the amount of $1184.39. The award of attorney’s fees was based upon the additional material submitted unilaterally by the plaintiff subsequent to the evidentiary hearing without notice to the defendant or opportunity to contest this element of the award.

The arbitrator’s award was rendered fifty-three days after the completion of the evidentiary hearing, but twenty-nine days after the receipt of the transcript. The record does not disclose when the arbitrator received the itemized bill for legal services from the plaintiff. Paragraph two of the terms and conditions of the purchase agreement provides that the “[s]eller shall be reimbursed by the purchaser for all costs of collection including reasonable attorney’s fees.” Paragraph eight provides for the settlement of any controversy or claim relating to the agreement or its breach by arbitration. Neither the design agreement nor its terms appear in the record before us, but the arbitrator held in his award that its terms do not allow attorney’s fees.

General Statutes § 52-416 (a) expresses the legislative policy that arbitration proceedings are to be expedited. Its thirty-day time limitation for the rendition of an award is triggered (1) by the close of the evidentiary hearing, or (2) by the date fixed by the arbitrator for the parties to submit additional material. The defendant neither consented to the open-ended or floating delay in the award caused by the arbitrator’s desire for a transcript and the plaintiff’s submission of additional material relative to enlargement of his claim seeking attorney’s fees, nor had notice thereof. The award was rendered beyond the time limit fixed by § 52-416 (a) and was under its terms, therefore, of “no legal effect.”

Relying upon C. F. Wooding Co. v. Middletown Elk’s Home Corporation, 177 Conn. 484, 418 A.2d 904 (1979), the majority makes the following analogy: “[W]e should test the arbitrator’s decision by whether it was reasonable, under the circumstances in this case, to extend the completion date of the hearing until the transcript was to be received. We conclude that a transcript aids the trier in the same manner as a brief does, and that it is wholly consistent with good trial practice, when the trier feels the need, to request a transcript of the proceeding before rendering the decision.” Wooding is inapposite to the case before us. After the evidentiary hearing in Wooding, the arbitrator “directed [both] parties to file their briefs on or before December 23, 1977 . . . [and] further informed the parties that ‘[u]pon receipt [of the briefs] . . . [t]he hearing shall then be declared closed . . . and the Award due 30 days thereafter.’ ” Id., 484-85.

The variances in Wooding are material and distinct: (1) both parties were notified of the continuance; (2) the continuance was to a fixed date; (3) the continuance was made to allow both parties to file supporting briefs; and (4) a brief is supplementary or additional to an evidentiary hearing, whereas a transcript is repetitive of the evidence, duplicative, redundant and unnecessary, except in technical or complex cases. In any event, a continuance for a transcript would have to be made to a fixed date with notice to both parties.

The defendant, by his failure to attend the arbitration hearing on November 26, 1984, did not waive or forfeit his due process right to notice of further proceedings in the arbitration process as the majority opinion would conclude. A parallel to the present case may be found in Bonner v. American Financial Marketing Corporation, 181 Conn. 57, 434 A.2d 323 (1980). In Bonner, the trial court entered an order of default and three days later, without a motion for judgment as required by Practice Book § 364, rendered judgment upon default for the plaintiff. On appeal, the Supreme Court found error in the court’s denial of the defendant’s subsequent motion to open this judgment, stating: “The purpose of the rule requiring the filing of a motion for judgment along with a motion for default is to put the other parties on notice that if they fail to take any action to protect their interests they risk the entry of a judgment against them. ‘ “It is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” ’ . . . The effect of the entry of the default was to preclude the defendant from making any defense to liability in the action.... This alone, however, did not prevent it from raising defenses, on proper notice, at a hearing in damages. Practice Book, 1978, § 367 .... Because the defendant was deprived of appropriate notice and an opportunity to be heard on the question of damages, the court erred in denying the defendant’s motion to open the judgment.” (Citations omitted.) Id., 57-58. Such a situation is presented to us in this appeal. The defendant was deprived of appropriate notice and an opportunity to be heard on the question of awarding attorney’s fees to the plaintiff, and that in a situation involving the violation of a statute, General Statutes § 52-416 (a).

The arbitrator erred in continuing the hearing to an indefinite or open date to obtain a transcript of the evidentiary hearing already completed and to allow the plaintiff to furnish additional material substantiating a late claim for attorney’s fees, all without notice to the defendant and without his consent or concurrence, and without allowing him an opportunity to be heard on the unnoticed issue of attorney’s fees. Even in his award the arbitrator recognized its one-sidedness by denominating it “EX-PARTE AWARD.” Under the terms of § 52-416 (a), such an award “shall have no legal effect.”

For the foregoing reasons, I dissent.

       General Statutes § 52-416 (a) provides: “If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.”

       No allowance appears to have been made in this award for the deposit paid by the defendant to the plaintiff according to the purchase agreement.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Richard Knapp v. Inland Wetlands Commission of the Town of Prospect
    (4310)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 14 —
    decision released May 6, 1986

      Kevin M. Doyle, with whom, on the brief, was Winifred B. Elton, for the appellant (defendant).

      Thomas W. Calkins, with whom, on the brief, was Nicholas W. Rosa, for the appellee (plaintiff).
   Spallone, J.

The defendant is appealing from the judgment of the trial court sustaining the plaintiff’s appeal from the denial of his application for a permit to deposit fill on his approved building lot.

The facts are not in dispute. On or about June 13, 1957, a plan of subdivision was filed with the town clerk of the town of Prospect. On September 18, 1969, the plaintiff, Richard Knapp, purchased a portion of the property included in the subdivision, which property included lots 47, 53 and 55 located on Sherwood Drive. The planning and zoning commission of the town approved the application of the plaintiff to combine lots 47, 53 and 55 into a single building lot on June 17,1970. Subsequently, on October 6,1982, the plaintiff applied to the planning and zoning commission for a special zoning permit to allow him to deposit fill on the property in order to construct a residence thereon. The planning and zoning commission conditioned its approval of the permit upon approval by the defendant inland and wetlands commission. The plaintiffs application was denied by the defendant. The plaintiff appealed to the Superior Court; General Statutes § 22a-43; which sustained the appeal and rendered judgment for the plaintiff.

On appeal to this court, the defendant claims the court erred in sustaining the plaintiff’s appeal because the defendant had made findings of potential harm to wetlands and to the public health resulting from the construction of a septic system and residence on the property. The defendant also claims error in the court’s decision that General Statutes § 22a-40 (a) (2), which specifically permits the construction of a residence on a lot for which subdivision approval was obtained prior to 1974, the effective date of the municipal inland wetlands regulations, would also permit the proposed construction on the property. We disagree.

General Statutes § 22a-40 provides in pertinent part: “(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right . . . (2) A residential home . . . (ii) on a subdivision lot, provided the permit has been issued or the subdivision has been approved by a municipal planning, zoning or planning and zoning commission as of the effective date of promulgation of the municipal [inland wetlands] regulations . . . . ” (Emphasis added.) There is no question here that the plaintiffs lot, the subject of this appeal, was approved prior to the town of Prospect’s adoption of inland wetlands regulations and, consequently, that the use of the lot is exempted from any regulation by the defendant. Further, the defendant’s own regulations are identical in effect to General Statutes § 22a-40, and adopt the same exemptions.

The defendant’s attempt to clothe itself with jurisdiction by separating the construction of a septic system from the construction of a residence is unavailing. It cannot be denied that a septic system is an adjunct to a dwelling and that, in the absence of a municipal sewage system, as here, it would be impossible to maintain a residence without a septic system.

The defendant refuses to acknowledge the fact that the legislature, by express and unequivocal language, has exempted from regulation by the defendant the use of land which has received subdivision approval prior to the creation of the defendant agency. The use of the subject property for a residence would be impossible without a septic system.

We reject the defendant’s argument that the exemption does not include the right to construct a septic system. Such an interpretation would render the exemption meaningless. Where legislation allows certain uses as a matter of right, the legislation should not be construed in a manner that would defeat that right. A statute should be construed so as to have meaning, so that the statute makes common sense, and so that there are no bizarre results. Eagle Hill Corpora tion v. Commission on Hospitals & Health Care, 2 Conn. App. 68, 75, 477 A.2d 660 (1984). The statute here is unambiguous, but even if it were not, “[wjhere a statute is open to two constructions, one of which would have an absurd consequence, a legislative intent to obtain a rational result may be assumed.” Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 103, 291 A.2d 721 (1971). We hold that in order to give efficacy to the legislative intent to exempt preexisting approved subdivisions from the defendant’s regulation, the plaintiff’s right to construct a residential home includes the right to construct a septic system free from the necessity of approval by the defendant. The construction of the statute by the trial court was reasonable, correct and proper under the law.

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    State of Connecticut v. Connecticut Council 4, Clerical Employees Union, American Federation of State, County and Municipal Employees, AFL-CIO
    (3930)
    Hull, Spallone and Daly, Js.

      Argued January 15 —
    decision released May 6, 1986

      Barbara J. Collins, with whom, on the brief, were J. William Gagne, Jr. and Raymond C. Bliss, for the appellant (defendant).

      Thadd A. Gnocchi, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (state).
   Daly, J.

This is an appeal by the defendant from a judgment of the trial court which vacated the defendant’s arbitration award on the grounds that the award violated public policy and contravened the purposes of General Statutes § 14-50a (a). The defendant claimed that the court erred in so holding and in not remanding the case for a rehearing. We disagree and find no error.

The facts are not in dispute. The defendant, Connecticut Council 4, Clerical Employees Union, American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) represents court reporters who take testimony at hearings conducted by the Motor Vehicles Department (MVD). The state and the union entered into a collective bargaining agreement for a period extending from July 1, 1982, through June 30, 1985. This agreement provided for the final and binding arbitration of disputes arising between the parties.

On July 23, 1982, the commissioner of motor vehicles issued a memorandum requiring that transcripts would thenceforth be sold at a rate of $1 per page in accordance with General Statutes § 14-50a (13). Prior to the issuance of the memorandum, MVD hearing reporters, in addition to their regular compensation, received payment for the preparation of transcripts at the request of outside parties and persons other than state officials. At the time this practice was terminated in 1982 by the commissioner, the transcript rate for MVD reporters had progressed to $1.75 per page.,The person ordering such a transcript paid the fee directly to the hearing reporter at a rate equivalent to rates charged by hearing reporters employed in the courts and in the workers’ compensation offices. The reporters often prepared these transcripts at home or outside of the office, earning as much as $1000 per year in additional compensation. The commissioner’s memorandum also provided that the reinstated $1 per page fee should be paid in advance to the MVD and that reporters unable to prepare transcripts during work hours could request overtime. The memorandum effectively preeluded reporters from receiving any extra compensation, contrary to previous practice, for transcripts prepared for private parties outside of work.

The defendant filed a grievance on behalf of several reporters under the collective bargaining agreement. The arbitrator found that the reporters were still entitled to charge private parties for the preparation of transcripts of hearings but limited the amount to $1 per page. The plaintiff filed an application to vacate the arbitrator’s award claiming that the arbitrator had exceeded her powers. The trial court concluded that the award violated the policy of the state and the legislative intent as expressed in § 14-50a and ordered the award vacated. From that decision in favor of the state, the defendant appealed.

Arbitration affords a contractual remedy designed to expedite, in an informal setting, the resolution of disputes. Daginella v. Foremost Ins. Co., 197 Conn. 26, 33, 495 A.2d 709 (1985). Because of our respect for the autonomy of the arbitration process, which requires only minimal judicial intrusion, we will not disturb an arbitration award unless it clearly falls within the proscriptions of General Statutes § 52-418. Schwarzschild v. Martin, 191 Conn. 316, 323, 464 A.2d 774 (1983); Milford Employees Assn. v. Milford, 179 Conn. 678, 682, 427 A.2d 859 (1980). “We are adamant in our adherence to these principles which serve to perpetuate the autonomous nature of the arbitration process. To hold otherwise would expand the role of the trial court in arbitration proceedings which would result in an unwarranted and counterproductive diminution of the efficacy of such proceedings.” Hartford v. Local 760, 6 Conn. App. 11, 14, 502 A.2d 429 (1986).

General Statutes § 52-418 (a) provides in relevant part that “[u]pon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: . . . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

The right to review an arbitration award exists only by statute. Milford Employees Assn. v. Milford, supra, 682. Under the facts of this case, the principal issue raised was whether the arbitrator exceeded her powers under § 52-418 (a) (4). “Every reasonable presumption and intendment will be made in favor of the award, and, hence, the burden rests upon the plaintiffs to produce evidence sufficient to invalidate or avoid it.” Id., 683. Parties cannot expect an intervening arbitral award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979). “In such a case, we are not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award. ... If the contract term is illegal in light of conflicting statutes, it is not legitimated by the arbitration process; and if the agreement should not on that account be enforced, it is not rendered enforceable by an arbitrator’s decision.” Id., 195-96; International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145-47, 483 A.2d 626 (1984).

The court reporters for the MVD are seeking to be treated in the same manner as court and workers’ compensation reporters. Pursuant to General Statutes § 51-63 (c) and (e), court and workers’ compensation reporters are entitled to be paid certain fees for transcripts “in addition to other compensation.” On the other hand, General Statutes § 14-50a provides no authority for MVD reporters to be paid transcript fees in addition to their regular compensation. Furthermore, the statutory scheme requires that the commissioner of motor vehicles, and not the reporters themselves, charge these fees. It is uniformly held that enumeration of powers in a statute precludes the things not enumerated. Buonocore v. Branford, 192 Conn. 399, 403, 471 A.2d 961 (1984). Courts must presume that the legislature had a purpose for every sentence, clause or phrase in a statute. They must also presume that the General Assembly did not intend to enact useless legislation. Holden & Daly, Connecticut Evidence § 50, p. 92. The provisions in § 51-63 (c) and (e) are clear in allowing additional compensation for court and workers’ compensation reporters. Section 14-50a does not contain such language.

The defendant further claims that the arbitrator was correct in ruling that past practice condones the alternate means of compensation sought by the MVD reporters. There is no authority for the proposition that customary practice supersedes a statute prohibiting such practice.

The General Assembly is always presumed to know all the existing statutes and the effect that its action or nonaction will have on any one of them. Holden & Daly, supra, p. 92. If the legislature intended that the MVD reporters should be entitled to additional compensation for transcripts, it readily would have so provided in the statute. Since it did not, we hold that the trial court did not err in concluding that the arbitrator’s award conflicted with the law, or that it was thus rendered in excess of the arbitrator’s powers. Sending the matter back for rehearing, therefore, would have been a futile gesture.

There is no error.

In this opinion the other judges concurred.

       The memorandum issued by Benjamin A. Muzio, commissioner of motor vehicles, provided in pertinent part: “Section 14-50a, reads, in part, '... 12. Certified transcripts of hearings held by the commissioner, $1 per page with a minimum charge of $5.00 . ’

      “In view of the language of the aforementioned Statute, I feel any and all information developed at an administrative hearing conducted by this Department is property of the State of Connecticut. Therefore, any transcript of hearings held by this Department must be sold at the rate $1.00 per page, regardless of who may have requested the transcript; and the fee is to be collected by Copy Record Unit prior to the release of the transcript, which is the identical policy utilized in regards to the reports filed with this Department by our Automotive Consulting Engineer.
      “In those instances where the Hearing Reporters are unable to prepare the transcripts during the normal course of the work week, you should submit a request for overtime for this purpose.”

       General Statutes § 14-50a (a) provides in pertinent part: “The following fees shall be charged by the commissioner of motor vehicles for the item or service indicated: ... 13. Certified transcripts of hearing held by the commissioner, $1.00 per page . . . .”


text:
    State of Connecticut v. Joseph DeMartino
    (2972)
    Hull, Spallone and Bieluch, Js.
    Argued February 14 —
    decision released May 6, 1986

      Kevin G. Dubay, for the appellant (defendant).

      Thomas V. O’Keefe, Jr., assistant state’s attorney, with whom were Julia DiCocco Dewey, assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, for the appellee (state).
   Spallone, J.

The defendant, an antique dealer, is appealing from the judgment of conviction, after a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2). His conviction was based on the receipt and retention of a stolen diamond ring. During the trial the defendant did not take the witness stand to testify in his own behalf. On appeal, he claims that remarks made by the assistant state’s attorney during closing argument violated his rights as secured by the fifth and fourteenth amendments to the United States constitution, resulting in an unfair trial.

The defendant’s fifth amendment claim is dispositive of this appeal. Although this claim of error was not raised at trial, we find that the issue raised is of such gravity as to bring it within the ambit of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). See State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985). The general rule is that an objection must be made and ruled upon in the trial court to preserve a claim on appeal, and counsel must state distinctly the grounds for his objection if he wishes to preserve his right to appeal. State v. Carter, 198 Conn. 386, 395-97, 503 A.2d 576 (1986). Further, if the court rules adversely, counsel must take an exception. McDermott v. New Haven Redevelopment Agency, 184 Conn. 444, 449, 440 A.2d 168 (1981). An exception to this rule is where the record adequately supports a claim that the defendant has clearly been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra, 70. A claim of a violation of a defendant’s fifth amendment rights falls within this exception. Id., 71-72. Therefore, we will review this claim.

The assistant state’s attorney who prosecuted the defendant commented on the failure of either the defendant’s attorney or the defendant himself to “tell” or “explain” certain events several times during the course of his closing argument to the jury. The assistant state’s attorney’s remarks that are in issue were as follows: “Why wouldn’t [the defendant] tell the police the name of the person that he knew [was] involved in this investigation . . . “First thing he did with the police ... on the date of the seizure of the ring was refuse to divulge the name of the person that was involved . . . “Mr. Watstein’s [the defendant’s trial counsel] argument [,] did you ever hear him explain why the thieves picked this man’s house or why the thief picked this man’s house [referring to the defendant’s house]? Did you ever even hear him talk about it — the fact or explain the fact that this man had $750 in cash? Did you ever hear him explain why Mr. DeMartino wouldn’t tell the police the name of the person he knew was involved in this crime? Did you ever hear him explain why he lied to the policemen, got them out of the house; had the ring stuffed in his pajamas. You didn’t hear one single word about that, did you? All you heard were confusing examples by some paper shuffler. ...”

The right of the accused not to take the stand is his constitutional privilege against compulsory self-incrimination. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); State v. Anonymous (1976-4), 33 Conn. Sup. 505, 507, 356 A.2d 187 (1976). Comment by the prosecuting attorney or the court on the defendant’s failure to testify is prohibited by the fifth amendment to the federal constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965). The Connecticut legislature has recognized and affirmed this right in adopting General Statutes § 54-84 (a) which reads in part: “(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused, party to testify shall not he commented upon hy the court or prosecuting official . . . .” (Emphasis added.) An indirect remark by the prosecuting attorney which draws the jury’s attention to the fact that the accused failed to testify may also violate the accused’s right. United States ex rel. Leak v. Follette, 418 F.2d 1266, 1269 (2d Cir. 1969), cert. denied, 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 (1970); State v. Evans, supra, 71-72. The test is: “[w]as the language used [by the state’s attorney] manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” State v. Evans, supra, 72, quoting United States ex rel. Leak v. Follette, supra. Consequently, the prosecutor is prohibited from asking for explanations which only the defendant can provide because such questions are an indirect comment on the defendant’s failure to testify. State v. Anonymous (1976-4), supra, 508.

An analysis of the assistant state’s attorney’s remarks, regardless of the language in which they were couched, clearly shows that they pointed to the defendant as the only person who could supply the explanations and answers to the questions which the prosecutor posed to the jury. What the state’s attorney cannot do directly, he must not do indirectly in abridgement of an accused’s fundamental right to a fair trial. The remarks of the assistant state’s attorney were prejudicial to the defendant and transgressed his privilege against self-incrimination and right to a fair trial.

Because our holding on the defendant’s second claim of error is dispositive of this appeal, we need not discuss the defendant’s first claim except to admonish the state’s attorney who may retry the case that he or she be more circumspect and be guided by the holdings of State v. Pelletier, 196 Conn. 32, 490 A.2d 515 (1985) and State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985) insofar as they deal with the measure of restraint required of a prosecutor in his argument to the jury.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       Although several issues were raised in the defendant’s original and amended preliminary statements of issues, we discuss only those issues which were briefed by the defendant. State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980).

       Prior to the enactment of Public Acts 1977, No. 77-360, General Statutes (Rev. to 1977) § 54-84 (now § 54-84 [a]) read in part: “The neglect or refusal of an accused party to testify shall not be commented upon to the court or jury.”


author: Per Curiam.

text:
    John Joseph Jacobs v. Crown, Inc., et al.
    (3773)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 11 —
    decision released May 6, 1986

      Herbert Watstein, for the appellant (plaintiff).

      Maureen Danehy Cox, with whom, on the brief, was John C. Bullock, for the appellee (defendant Horace W. Boynton).
   Per Curiam.

The plaintiff appeals from the judgment rendered in accordance with a directed verdict for the defendant, Horace Boynton. The plaintiff claims that the trial court erred, (1) in directing a verdict for the defendant and concluding that the plaintiff had failed to present any evidence that the defendant wilfully or maliciously intended to injure the plaintiff as provided in General Statutes § 31-293a, (2) in failing to take judicial notice of the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq., regulations unless counsel provided them for the court, and (3) in ordering the release of the plaintiffs attachment upon the defendant’s real estate. We find no error.

The facts are not in dispute. The plaintiff was employed by Crown, Inc. (Crown), as a carpenter. Boynton is the president of the corporation. The plaintiff was injured at work when a nail which he was hammering flew back and struck him in the eye. He sued Crown and Boynton for damages arising from the injury.

The plaintiff alleged that the defendants “intentionally failed to provide him with a safe place to work and safe appliances and instrumentalities for his work.” Specifically, he alleged that the defendants intentionally failed to instruct him as to the hazards of hammering nails or to provide him with safety goggles or other eye protection. The trial court held that the action against Crown was barred by the Workers’ Compensation Act and that action was dismissed. See General Statutes § 31-284. The action against Boynton, however, was allowed to proceed to trial under General Statutes § 31-293a. After the close of all the evidence, the trial court directed the jury to render a verdict for Boynton stating, inter alia, that the plaintiff had failed to establish that Boynton’s actions were wilful or malicious as required by General Statutes § 31-293a.

The plaintiff’s first claim of error alleges that there was sufficient evidence from which the jury could reasonably have found that Boynton wilfully or maliciously intended to injure the plaintiff. General Statutes § 31-293a provides that where an employee “has a right to benefits or compensation under [the Workers’ Compensation Act] on account of injury . . . caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee . . . and no action may be brought against such fellow employee unless such wrong was wilful or malicious . . . . ” Whether the defendant acted wilfully or maliciously is generally an issue of fact for the jury which may be proven by circumstantial evidence. See Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 403, 365 A.2d 1086 (1976); see also State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980).

If, however, a plaintiff fails to produce evidence from which a jury could reasonably and logically find such intent, it becomes the duty of the trial court to direct the jury to render its verdict for the defendant. See Buckley v. Lovallo, 2 Conn. App. 579, 583, 481 A.2d 1286 (1984); Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984). In reviewing the plaintiff’s claim of sufficient evidence, we view the facts and all reasonable inferences which may be drawn therefrom in a light most favorable to the plaintiff. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982).

In the present case, the plaintiff sought to prove Boynton’s intent by producing evidence demonstrating Boynton’s experience with plant management and operations, including work safety and the use of safety glasses for eye protection. Boynton admitted that he had the authority to control the work operations of the carpenters. There was testimony that Boynton had not read the OSHA regulations pertaining to his plant’s operation or attended OSHA seminars. There was also testimony that Boynton was aware of the possibility that a nail struck by a hammer could bounce off the wood and strike a person in the eye. This evidence, however, does not indicate that the defendant wilfully or maliciously intended to injure the plaintiff. “ ‘ “A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional.” Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). “A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent. . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.” Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910). The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act. Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975).’ ” Mingachos v. CBS, Inc., 196 Conn. 91, 102-103, 491 A.2d 368 (1985); see Campbell v. Pommier, 5 Conn. App. 29, 35-36, 496 A.2d 975 (1985).

The evidence at trial fails to demonstrate that Boynton’s conduct was intentionally designed to injure the plaintiff. Nor can it be said that the plaintiff’s injury was the direct and natural consequence of any action by Boynton. Stretching a jury’s reasonable findings to the outermost limits, the most it could find was that the plaintiff’s injury was caused by Boynton’s recklessness. The plaintiff’s remedy for injury due to the reckless act of a co-employee is provided for exclusively under the Workers’ Compensation Act.

The trial court was correct in directing a verdict for the defendant. There was no need to submit the case to the jury as they could not reasonably have found that the defendant wilfully or maliciously intended to injure the plaintiff.

The plaintiff’s second claim alleges that the trial court erred in failing to take judicial notice of certain federal regulations. The plaintiff admitted at oral argument before this court that copies of the regulations were never provided to the trial court. “Matter claimed under our rules for judicial notice . . . must be called to the attention of the court and authoritative sources provided.” Ritcher v. Childers, 2 Conn. App. 315, 318-19, 478 A.2d 613 (1984). The trial court’s refusal to take judicial notice of the regulations was proper.

The plaintiff’s final claim alleges that the trial court erred in releasing an attachment upon Boynton’s real estate. Two years prior to trial, another trial court denied a motion to dissolve the same attachment. At that time, the case had not been heard on its full merits and the substitute complaint, alleging intentional injury by Boynton, had not yet been filed by the plaintiff. After a verdict was directed for the defendant, and judgment was rendered for the defendant, there was “a new ball game,” with a known outcome, and any basis for the pretrial attachment no longer existed. The verdict was properly directed for the defendant, leaving the plaintiff with no right to maintain a real estate attachment upon the defendant’s land.

There is no error.

       As used in this opinion, the defendant refers to Boynton.

       The plaintiff makes no argument that Boynton is not a co-employee within the meaning of General Statutes § 31-293a. See generally 2A Larson, Workmen’s Compensation Law § 72.13.

       In ruling on the defendant’s motion, the trial court indicated that its decision to direct the verdict was based upon several factors, not just the lack of wilful or malicious intent to cause injury. Because we find the issue of intent dispositive, we need not review additional reasons for the trial court’s action.

       An act may be found intentional where the result is a substantial certainty. See Mingachos v. CBS, Inc., 196 Conn. 91, 101 n.12, 491 A.2d 368 (1985). “ ‘[A] high risk or probability of harm is not equivalent to the substantial certainty without which an actor cannot be said to intend the harm in which his act results.’ Shearer v. Homestake Mining Co., [557 F. Sup. 549, 559 (D. S.D. 1983)] . . . .” Mingachos v. CBS, Inc., supra, 101.


author: Bieluch, J.

text:
    Nadji Tehrani et al. v. Century Medical Center, P.C.
    (4177)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 8 —
    decision released May 6, 1986

      Andrew P. Nemiroff, with whom, on the brief, was James R. Fogarty, for the appellants (plaintiffs).

      Judith Rosenberg, for the appellee (defendant).
   Bieluch, J.

The plaintiffs, Nadji Tehrani and Julliette S. Tehrani, have appealed from a judgment for the defendant in their summary process action. They claim that the court erred in concluding that the statutory notice to quit possession for nonpayment of rent was not adequate under the law or timely served. We find no error.

The facts were stipulated to at trial and are not in dispute. The plaintiffs leased commercial premises at 17 Park Street, Norwalk, to the defendant for professional purposes for five years commencing on September 1,1979, and ending on August 31,1984. Paragraph twenty-nine of the lease provided the defendant with an option to renew the lease for an additional term of three years at a new rental. Written notice of its intention to exercise this option of renewal was to be given to the plaintiffs by the defendant on or before March 1, 1984. Paragraph seventeen of the lease provided that “[a]ll notices and demands, legal or otherwise, incidental to this Lease or the occupation of the demised premises, shall be in writing, [and] mailed postage prepaid, certified or registered mail, return receipt requested” to the plaintiffs or defendant at the address of the leased premises.

Contrary to the provision for restricted delivery of written notice, on July 5,1983, the plaintiffs, by ordinary mail, requested that the defendant advise whether it intended to exercise the option to renew the lease. The defendant responded in similar fashion by regular mail on July 8, 1983, advising the plaintiffs that “[p]ursuant to your request and paragraph 29 of that certain lease by and between Nadji Tehrani and Julliette S. Tehrani and Century Women’s Medical Center, Inc., we hereby exercise our option to hire said premises for an additional term of 3 years, commencing on the expiration of the original term of this lease.” The plaintiffs received this letter within a few days of its mailing.

In September, 1984, the defendant, then believing the lease renewal to be in effect, awaited notice of the new rental which was to be computed by the plaintiffs pursuant to a formula specified in paragraph twenty-nine of the lease. On September 26,1984, the defendant tendered rent for the month of September in the amount of $2779 in certified funds. This amount reflected the rent which was due prior to the renewal, and was tendered because the plaintiffs did not notify the defendant of any change in the monthly rent. This tender of rent was rejected by the plaintiffs. Thereafter, on October 10,1984, the plaintiffs served the defendant with a notice to quit possession of the premises on or before October 21, 1984. There were two grounds specified in the notice for eviction: (1) the lease of August 14,1979, as amended, “terminated by lapse of time due to your failure to exercise the option to renew said lease”; and (2) “[ejven if said option to renew had been properly exercised (which it was not), said lease, as amended, terminated due to your failure to pay the rent which would have been due for the month of September, 1984.” The summary process suit that followed sought the eviction of the defendant on two counts. The first count was based on the expiration of the lease by lapse of time for failure to renew. It alleged in paragraph ten that “[o]n October 10 and 11,1984, the Plaintiffs caused a notice to be duly served on the Defendant to quit possession of the leased premises on or before October 21, 1984, as required by law, a copy of which notice is attached hereto and incorporated by reference herein as Exhibit C.” The second or “alternate” count was predicated on the defendant’s failure to pay rent for the month of September, 1984. The service of the notice to quit possession was repeated in paragraph eleven of this count. As a special defense to both counts, the defendant alleged the tender of rent and its rejection before the service upon it of the notice to quit possession. In their reply, the plaintiffs admitted that they “rejected a tender of compensation characterized by the Defendant as rent.”

After trial, the court concluded “that the plaintiffs are pursuing two contradictory actions in their attempt to evict the tenant,” and rendered judgment for the defendant on both counts. The first count alleging the termination of the lease by lapse of time rested upon the defendant’s failure to give notice of the exercise of its option to renew by “certified or registered mail, return receipt requested,” as specified in paragraph seventeen of the lease. Even the receipt of notice by regular mail, the plaintiffs claimed, was not sufficient compliance with the requirement of notice. With regard to this claim, the trial court concluded that if the lease was not renewed, the tenancy then became a month to month rental under the provisions of General Statutes § 47a-3b, and the tenant was allowed to occupy the premises for the entire month beginning on October 1,1984. In that case, the notice to quit possession served upon the defendant was defective because it did not allow possession through the month of October before the commencement of eviction proceedings. The notice to quit demanded surrender of the leased premises on or before October 21, 1984, and eviction proceedings were initiated on the following day. On the other hand, the court also concluded that if the renewal of the lease was effective, then the statutory notice to quit possession on the ground of termination of the lease by lapse of time was also defective and invalid since the lease would allow continued occupancy without interruption. Therefore, the court concluded that, in either event, the notice to quit possession of the premises was defective as to the first ground alleged, namely, that the lease had terminated by lapse of time for failure of renewal under its terms.

Turning to the eviction for alleged nonpayment of rent for the month of September, 1984, the trial court concluded that this action was legally defective and invalid for two reasons. First, the defendant’s tender of rent on September 26, 1984, prior to service on the defendant of the notice to quit possession on the tenth day of the following month, precluded eviction on the ground of nonpayment of rent. The nonpayment of rent does not, in itself, terminate the lease but gives the landlord the option to terminate the lease by some unequivocal act clearly showing the exercise of that option. A tender of rent after a breach of the covenant for its payment, but before a declaration of forfeiture by some unequivocal act by the landlord, precludes the landlord from thereafter completing a forfeiture of the lease. Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156, 176 A.2d 574 (1961). The service of the notice to quit possession on October 10, 1984, was the plaintiffs’ first unequivocal act notifying the defendant of the termination of the lease for nonpayment of the September rent. Although the defendant’s attempt to pay the rent was not made until after the expiration of the statutory ten day grace period, it did precede the plaintiffs’ exercise of their option to terminate the lease. The plaintiffs’ refusal to accept the tender of rent excused the defendant from further production of the amount then due and barred the plaintiffs’ right to claim a forfeiture of the tenancy on the basis of nonpayment of rent and to institute an eviction action on that ground. Id.

The trial court’s second reason for denying eviction for nonpayment of rent was that the action was not timely. As the court simply stated: “[WJhere the tenancy is oral month to month, then the Notice to Quit must be served in the month in which the rent is alleged to be unpaid. In this case, the rent was alleged to be unpaid in September and the Notice to Quit was served in October. Again, the notice would be invalid for this reason.” This is so for the reason that in a month to month tenancy, a new rental agreement commences on the first of each month. See General Statutes § 47a-3b.

The plaintiffs’ principal argument on appeal is that the trial court’s reliance upon defects in the notice to quit is misplaced since an amendment to the lease between the parties, executed on July 15, 1980, provided that “[t]he parties hereby expressly waive their rights to a notice to quit, pursuant to Connecticut General Statutes § 47a-25.” Thus, they claim, they were not obliged to issue a notice to quit possession for either ground of eviction. The fallacy in this argument is that the plaintiffs did issue a notice to quit possession for termination of the lease by lapse of time and by nonpayment of rent. Each of the two counts of the summary process writ alleges that it is based upon the service of a notice to quit possession of the leased premises “as required by law.”

While the record before us demonstrates that such an amendment, including a waiver of notice to quit possession, did exist, the trial court’s memorandum of decision makes no reference to the plaintiffs’ reliance at trial upon a claim of waiver of notice to quit possession and the plaintiffs have not provided us with a transcript demonstrating that the issue of waiver of such notice was raised at trial. Indeed, the plaintiffs never alleged in their complaint that the written notice to quit possession of premises required by General Statutes § 47a-23 had been waived. Rather, they relied upon the allegation that “[o]n October 10 and 11,1984, the Plaintiffs caused a notice to be duly served on the Defendant to quit possession of the leased premises on or before October 21, 1984, as required by law, a copy of which notice is attached hereto and incorporated by reference herein as Exhibit C.” Further, the parties’ stipulation of facts on which this case was tried makes no reference to the claimed waiver. It relies solely upon the alleged notice to quit possession found defective by the trial court. Under these circumstances, the court was correct in basing its decision upon the defects in the alleged notice to quit possession of the premises upon which the summary process action was founded.

General Statutes § 47a-23 sets forth the requirement that a notice to quit possession must issue to the tenant at least eight days before the termination of the rental agreement or lease, upon the expiration of which a complaint may issue under General Statutes § 47a-23a seeking eviction of the tenant and immediate possession. Eviction is a statutory action and requires that the complaint allege the necessary notice to the tenant. Practice Book § 185 provides that whenever in a statutory action the giving of a notice is required by the statute, the plaintiff “shall either recite the same in his complaint or annex a copy thereto.” See Practice Book Forms 704.10, 704.11; Stephenson, Conn. Civ. Proc. § 97 (c). The plaintiffs’ complaint is in full compliance with these statutory and procedural requirements; the underlying notice to quit possession, however, does not meet the statutory demands.

Similarly, we conclude that where the plaintiffs seek to rely on an express waiver of the statutory notice to quit possession permitted by General Statutes § 47a-25, they must allege the existence of such a waiver. This they have not done.

In order to recover pursuant to a statute, strict compliance with the terms of the statute must be alleged. Scoville v. Columbia, 86 Conn. 568, 570-71, 86 A. 85 (1913). This rule applies particularly to summary process actions precisely because of the summary nature of the proceedings and remedy involved. Sandrew v. Pequot Drug, Inc., 4 Conn. App. 627, 631, 495 A.2d 1127 (1985). Thus, in order to recover possession of the premises in this case, the plaintiffs were obligated to allege that they complied with the notice requirement of § 47a-23, or, in the alternative, that there was a valid waiver of the statutory notice pursuant to § 47a-25. Having failed to allege a waiver of the notice to quit possession, but instead proceeding upon their allegations that they served upon the defendant a valid notice to quit possession “as required by law,” the plaintiffs were obligated to prove, and they were limited to, their allegations that they complied with the statutory notice requirement, and they were barred from proceeding on a theory of waiver, which they did not allege.

“The principle that a plaintiff may rely only upon what he has alleged is basic. . . . ‘It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.’ ” (Citations omitted.) Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983). “What is in issue is determined by the pleadings and these must be in writing.” Telesco v. Telesco, 187 Conn. 715, 720, 447 A.2d 752 (1982). Once the pleadings have been filed, the evidence proffered must be relevant to the issues raised therein. Arey v. Warden, 187 Conn. 324, 332, 445 A.2d 916 (1982). The plaintiffs’ arguments before us regarding waiver were not relevant to the issues as they were framed in the pleadings and presented to the trial court. A judgment upon an issue not pleaded would not merely be erroneous, but it would be void. See Telesco v. Telesco, supra.

While the discussion above is dispositive of this case, we also note an additional ground supporting the trial court’s decision. As stipulated by the parties, the plaintiffs sought and received by ordinary mail the defendant’s declaration of intent to renew its lease. Further, the plaintiffs, when they inquired as to the defendant’s future occupancy “RE: RENEWAL & EXTENSION OF YOUR LEASE” through the medium of ordinary mail, stated they were “[l]ooking forward to hearing from you,” thereby implicitly inviting the defendant to respond through the same medium. (Emphasis in original.)

Unlike the situation which was presented to us in Seven Fifty Main Street Associates v. Spector, 5 Conn. App. 170, 497 A.2d 96 (1985), the plaintiffs here have acknowledged that they actually received the defendant’s notice of renewal. Additionally, in Seven Fifty Main Street Associates, the landlord requested no prior declaration of intent to renew and expressed no implicit permission to the defendant to notify the plaintiff of an intent to renew his lease by ordinary mail. Under the circumstances of the present case, we hold that there was a valid renewal of the defendant’s lease.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 47a-15a provides: “If rent is unpaid when due and the tenant fails to pay rent within nine days thereafter, the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive [for summary process].”

       By Public Acts 1980, No. 80-399, § 2, effective October 1, 1980, General Statutes § 47a-25 was amended to permit the express waiver in a written lease of the statutory notice to quit possession only “in the event such lease terminates by lapse of time.” That statute, as it read earlier, when the waiver was executed in the present case, did not expressly limit itself to terminations of leases by lapse of time. That version of the statute has been so construed, however. Sandrew v. Pequot Drug, Inc., 4 Conn. App. 627, 629-30, 495 A.2d 1127 (1985). Thus, in the present case, any claim that there was a waiver of the notice to quit would not affect the requirement that a notice to quit possession issue where nonpayment of rent was the ground for terminating the lease. Id.


text:
    State of Connecticut v. Angel L. DeJesus
    (3033)
    Hull, Spallone and Bieluch, Js.
    Argued February 13 —
    decision released May 6, 1986

      Michael A. Connor, Jr., assistant public defender, for the appellant (defendant).

      Enrico Vaccaro, special assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, Herbert Carlson, assistant state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant is appealing from a judgment of conviction after a trial to a jury of the charge of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). He claims as error the court’s denial of his motion to suppress testimony and other evidence allegedly acquired through unduly suggestive identification procedures and challenges the court’s deferral of his motion in limine by which the defendant sought to exclude the introduction of his prior conviction of arson in the third degree.

From the evidence adduced at trial, the jury could reasonably have found the following facts. On November 16, 1982, during the evening hours, Gary Walker and Mark Gionfriddo were visiting with John Orbel in Orbel’s apartment in Hartford. At approximately 7:30 to 8 p.m., Walker went to get something from his car which was parked on the street about fifteen to twenty feet away and directly in front of the apartment window. Although it was not quite dark, the street lights were lighted and the lighting was good in the area. While at his car, Walker was approached by three Puerto Rican males, all in their early twenties. Each was dark haired and had an average build. One was wearing a tan, knee length overcoat and hat. The second was wearing a maroon windbreaker and the third was wearing a waist length jacket. The man in the tan knee length overcoat asked Walker for a quarter. At that point all three men began harassing and pushing Walker. This confrontation lasted approximately three to five minutes, during which time Walker was no more than two to three feet away from the men, and he had an opportunity to view the face of the individual wearing the tan, knee length overcoat. After observing a “bulge” under that man’s coat, Walker began to run toward the door of the apartment. Orbel and Gionfriddo, from the vantage point of the apartment window, observed the entire confrontation between Walker and the three Puerto Rican males. At this point, they left the apartment in order to assist Walker. Once outside, Gionfriddo observed that the Puerto Rican males were one foot away from Walker. Gionfriddo was approximately two to six feet away from the men and three to four feet away from the male wearing the tan overcoat, while Orbel was ten feet away and facing him. As Walker ran up the stairs to the apartment, the man in the tan coat ran up behind him and with an overhand thrust stabbed Walker in the back. After stabbing Walker, the man stated, “That’ll teach you to mess with me,” and then fled with the other two males.

Walker was taken to St. Francis Hospital by Gionfriddo and Orbel where he was treated for a stab wound which penetrated his back and lung. While at the hospital, Gionfriddo and Orbel were contacted by Officer Christopher Hopkins of the Hartford police department and were asked by him if they could identify the individual responsible for the stabbing. After indicating that they could, they were taken to a police cruiser parked in front of the hospital. They both positively identified the defendant, who was sitting in the back seat of the cruiser still wearing the tan overcoat, as the person who stabbed Walker.

Owen Street, where the assault occurred, and St. Francis Hospital are in close proximity to each other. The defendant was apprehended in the area of the hospital after attempting to flee from a uniformed officer who was driving a marked cruiser.

At trial, Walker indicated that the defendant “very closely resembled” the man who stabbed him. Gionfriddo positively identified the defendant as the one who struck Walker. Orbel also identified the defendant as the perpetrator.

The defendant testified at the trial and admitted that he was wearing a long tan coat on the night in question, that he had dark hair and an average build and that he was one of the three Puerto Rican males involved in the confrontation with Walker. However, he denied stabbing Walker and claimed that the stabbing was done by his nephew, whom he described as being sixteen years of age, having a heavy build and wearing a double breasted tan cashmere overcoat. He also claimed that his nephew was somewhere in New York.

Following a trial to the jury, the defendant was found guilty as charged and subsequently the court denied the defendant’s motion for acquittal.

Motion to Suppress Identification

At the hearing to suppress identification testimony, Orbel testified that he observed the incident both through the window and on the street. He testified that one of the men was wearing a tan single breasted, three-quarter length coat, was approximately five feet eight inches tall and between twenty-one and twenty-three years of age, while another wore a green windbreaker and the third a waist length coat. Orbel further testified that he was twenty feet away inside the apartment when he first observed the confrontation between Walker and the three individuals. After he ran outside, he observed Walker bleeding and gasping for air and noted the defendant was three feet away from Walker. He heard the defendant say: “That’ll teach you to fool around with me.” At this point, Orbel was facing the defendant and was about ten feet away from him. Further, Orbel testified that after taking Walker to the hospital he and Gionfriddo were asked by a police officer if they could make an identification. He testified that he and Gionfriddo were escorted to a cruiser by the officer who asked: “Do you recognize any individual out there at all?” Orbel stated that he looked around and into the cruiser and identified the defendant as the individual who stabbed Walker. After being asked by the officer if he was positive, Orbel testified that he took a closer look and affirmed his identification.

Gionfriddo testified that he was in the apartment with Orbel when he observed the three individuals harassing Walker. He described them as three Puerto Rican males between the ages of twenty and twenty-five. In describing the men individually, he testified that one of the men was wearing a knee length tan coat and a hat and had a mustache and a little beard, the second was wearing a maroon jacket and the third a waist length green jacket. Gionfriddo testified that after observing the confrontation from inside the apartment, he went outside and, when he was four to six feet away from the men, saw the Puerto Rican male in the tan coat run up behind Walker and “poke” him in the back with an overhand thrusting motion. Gionfriddo also testified that during the stabbing he was four feet away from the face of the man and that he had seen his face for a total of five minutes during the incident. A half hour after the assault, he was asked by a police officer to “see if he recognized anybody.” He testified that the police did not use the word “suspect” in conducting the identification procedure. Gionfriddo testified that he walked outside of the hospital and saw the defendant seated in the back seat of the cruiser and identified him as the assailant.

Hopkins testified that during the identification procedure, the defendant, wearing a beige overcoat, was seated alone in the back seat of the cruiser. He stated that he had picked up the defendant on an unrelated matter in the vicinity of St. Francis Hospital and heard, over his police radio, that a man, whose description matched that of the defendant, was wanted in connection with a stabbing incident. He requested that the witnesses to the assault be brought to the cruiser which was then parked in front of the hospital. Hopkins testified that he asked Gionfriddo and Orbel if they could identify Walker’s assailant. They indicated affirmatively and both positively identified the defendant who was seated in the cruiser as the person who stabbed Walker.

Following the hearing on the defendant’s motion to suppress, the court ruled that the identifications in issue were reliable and therefore admissible even if suggestive and denied the defendant’s motion to suppress identification testimony.

In his claim that the court erred in denying his motion to suppress identification testimony and evidence, the defendant specifically avers that the witnesses’ identifications of him while he was seated alone in the cruiser twenty minutes after the crime and in its vicinity were unnecessarily suggestive, unreliable under the circumstances and violative of the due process clause of the United States constitution. We disagree.

A two pronged analysis is required when a determination is being made of whether identification procedures violate a defendant’s due process rights. First, it must be determined whether the identification procedure was unnecessarily or impermissibly suggestive and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. Hamele, 188 Conn. 372, 376, 449 A.2d 1020 (1982); State v. Brown, 187 Conn. 602, 615, 447 A.2d 734 (1982); State v. Theriault, 182 Conn. 366, 372, 438 A.2d 432 (1980); State v. Willin, 177 Conn. 248, 251, 413 A.2d 829 (1979); State v. Soriano, 2 Conn. App. 127, 131, 476 A.2d 633 (1984).

In this case, the defendant urges upon us the proposition that the identifications made by Gionfriddo and Orbel were impermissibly suggestive because they were conducted while the defendant was seated alone in the back of the cruiser. The defendant argues that a lineup and voice identification were required. It has been held repeatedly, however, that one man confrontations do not per se constitute a denial of due process of law. Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); Biggers v. Tennessee, 390 U.S. 404, 88 S. Ct. 979, 19 L. Ed. 2d 1267, reh. denied, 390 U.S. 1037, 88 S. Ct. 1401, 20 L. Ed. 2d 298 (1968); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); State v. Carnegie, 158 Conn. 264, 269, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S. Ct. 488, 24 L. Ed. 2d 455 (1969). It has been recognized that prompt on-the-scene confrontations tend under some circumstances to insure accurate identifications and that the benefits of promptness not only aid reliability but permit a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay. United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir. 1975); Bates v. United States, 405 F.2d 1104 (D.C. Cir. 1968); State v. Willin, supra, 252; State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976).

Even if the identification procedures in this case were deemed to be suggestive, that fact would not necessarily require that the identification evidence be suppressed. The United States Supreme Court refused to adopt a per se exclusionary rule with respect to “unnecessarily suggestive” identification procedures, holding instead that the admissibility of such evidence should be determined by “the totality of the circumstances.” Neil v. Biggers, supra, 199. In Manson v. Brathwaite, supra, 114, it was stated that “reliability is the linchpin in determining the admissibility of identification testimony . . . . ”

The factors to be considered in determining reliability are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of any prior description of the perpetrator, the level of certainty demonstrated at the confrontation and the length of time between the crime and the confrontation. Neil v. Biggers, supra, 200. In applying these standards to this case it is apparent that there were sufficient indicia of reliability to support the decision of the trial court denying the defendant’s motion to suppress the identification evidence. We agree with the ruling of the trial court.

Motion in Limine

The defendant claims further that the court erred when it failed to rule on his motion in limine prior to the voir dire. By that motion, the defendant sought to exclude the introduction of his prior conviction of arson in the third degree. The defendant claimed that the prejudicial effect of this evidence would outweigh its probative value. He contended that his motion should be granted prior to the selection of the jury in order that his prior conviction not be revealed during the voir dire proceeding. The court deferred action on the defendant’s motion until trial. The motion was resubmitted at trial and was granted.

The record is devoid of any transcript of the voir dire proceeding. We have no way of knowing what questions were asked. Without a transcript we have nothing by which we can measure whether the proceedings were prejudicial to the defendant. In this case, it was incumbent upon the defendant to supply us with an adequate record for review. Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983). “ ‘This court cannot resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings, or to documents or exhibits which are not part of the record. See Gould v. Gould, 164 Conn. 387, 389, 321 A.2d 443 [1973]; American Can Co. v. Orange Pulp Co., 149 Conn. 417, 418, 180 A.2d 628 [1962].’ Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 465, 378 A.2d 547 (1977).” Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 28, 453 A.2d 769 (1983). Absent an adequate record, we refuse to speculate as to what impact the court’s deferring its decision on the defendant’s motion in limine had on the jury selection process.

We hold that the trial court, in denying the defendant’s motion to suppress the identification testimony and evidence, acted properly and in accordance with the law. Further, we decline to rule on the defendant’s claim with regard to his motion in limine because he has not furnished us with an adequate record on this point.

There is no error.

In this opinion the other judges concurred.


text:
    Universal Builders Corporation v. United Methodist Convalescent Homes of Connecticut, Inc., et al.
    (3963)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 12 —
    decision released May 6, 1986

      Joseph Glass, for the appellant (plaintiff).

      JohnE. Lee, for the appellee (defendant J. H. Hogan, Inc.).
   Spallone, J.

This case arises out of the sale of building materials and supplies. The plaintiff seller, Universal Builders Corporation (Universal), contracted with the defendant, J. H. Hogan, Inc. (Hogan), to supply roof trusses and gables to Hogan for the construction of several buildings on property allegedly owned by the named defendant, United Methodist Convalescent Homes, Inc. (United Methodist). The plaintiffs original complaint was brought against United Methodist to foreclose a mechanic’s lien which the plaintiff had placed on the property involved. Hogan was added as a defendant while the foreclosure action was pending, and the plaintiff amended its complaint to allege, in a second count, that Hogan owed it $7024 for materials and supplies it delivered to Hogan. Subsequently, Hogan filed a bond with the plaintiff in substitution for the mechanic’s lien, and the plaintiff amended the first count of its complaint to reflect this fact.

Hogan counterclaimed alleging that the plaintiff had breached the contract in that it failed to deliver all the supplies in a reasonable time with the result that Hogan had to purchase substitute supplies elsewhere at a price $16,779 in excess of the contract price. Universal filed several special defenses to Hogan’s counterclaim, alleging unconscionability, impossibility and rescission, and also alleging that Hogan had canceled the parties’ agreement.

The trial court concluded that no pleadings or evidence were submitted with regard to the first count and found the issues on that count in favor of United Methodist. The court found the issues in favor of the seller, Universal, on the second count of Universal’s complaint in the amount of $7024, and in favor of the buyer, Hogan, on Hogan’s counterclaim in the amount of $16,779, having concluded that the plaintiff failed to prove its special defenses to the counterclaim. It, therefore, rendered a judgment in favor of Hogan for $9755 plus interest.

The plaintiff has appealed and claims essentially that (1) the legal bases employed by the trial court in awarding damages to the defendant were erroneous, (2) the defendant’s demand for the delivery of materials to be supplied by the plaintiff was unconscionable and thereby terminated the parties’ agreement, and (3) the trial court erred in concluding that no pleadings or evidence were submitted in regard to the first count of the complaint, and therefore erred in not considering the allegations contained in that count.

The plaintiff’s first claim of error challenges generally the legal bases for awarding damages to the defendant. There exists no dispute as to the fact that the parties contracted to supply and to purchase a number of roof trusses and gables. The parties’ agreement called for the “fabrication and delivery [of such materials] as required by [Hogan’s] project superintendent. ...” The testimony of Universal’s secretary-treasurer was that orders for materials pursuant to the parties’ agreement were to be phoned into Universal as they were required. Hogan placed its initial order for fifty-eight trusses in late February, 1983. The trusses were ultimately delivered in the middle of March, 1983, and were paid for by Hogan at that time. Hogan placed a second order for 102 trusses during the second week of April, 1983. Delivery of those trusses was received by Hogan during the last week of May, 1983. Universal claims that no additional orders were placed. Hogan claims, however, that its project superintendent, as well as other employees, made numerous telephone calls to Universal to stress Hogan’s need for a continuous supply of materials. Joseph Wolfer, Hogan’s project superintendent on the United Methodist project, testified that while Hogan received the delivery of 102 trusses at the end of May, 1983, this amount was only one-half of their requirements at that point. Wolfer testified that Hogan required 100 additional trusses by the middle of June, 1983, and that he telephoned Universal several times during this period in order to express his dissatisfaction regarding the slowness of deliveries. John Wolanik, Universal’s plant superintendent, testified to receiving telephone calls from Hogan personnel during this period, and that the subject of those calls concerned schedule coordination problems between Hogan and Universal.

Having experienced these scheduling and delivery difficulties, and being in need of materials, Hogan, at one point in May, 1983, sought quotes for and obtained trusses from another supplier. The additional trusses were, at this time, sought in an effort to restore a measure of continuity to the United Methodist project which had become severely backed-up. On June 28, 1983, Frank P. Gillon, Hogan’s president, sent Universal a letter which expressed Hogan’s frustration over Universal’s course of performance. The body of the letter stated in its entirety: “For the past seven weeks, we have attempted to have your firm deliver wood trusses under our order numbered 1805.6.2. Your continued excuses and delays have severely handicapped us in expediting this project. Unless a minimum of 200 trusses are delivered by July 5,1983, you may consider your order cancelled.”

Universal contends that the effect of this letter was to terminate the purchase order. Hogan contends that the letter was intended to obtain Universal’s undivided attention and to identify the specific needs and problems of Hogan. Gillon testified that he did not intend to waive any damage claims to which Hogan was ultimately entitled. Upon receipt of Hogan’s letter, Universal deemed the order canceled. Universal considered it impossible for it to manufacture 200 trusses within the time specified. Thereafter, having received no further deliveries from Universal, Hogan purchased its remaining material requirements for the United Methodist project from other suppliers.

Under the Uniform Commercial Code, “[w]hen reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance . . . . ” General Statutes § 42a-2-609 (1). As “[bjetween merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards.” General Statutes § 42a-2-609 (2). See, e.g., Kunian v. Development Corporation of America, 165 Conn. 300, 312-13, 334 A.2d 427 (1973). A party's failure to provide such assurance of adequate performance within a reasonable time is a “repudiation of the contract”; General Statutes § 42a-2-609 (4); after which the aggrieved party may resort to any remedy provided in the event of a breach. General Statutes § 42a-2-610.

Applying these provisions to the present action, we conclude that the letter Hogan sent to Universal demanding 200 trusses by a specific date expressed properly Hogan’s insecurity with respect to Universal’s performance, and that Hogan thereby availed itself of its right to seek adequate assurance of that performance pursuant to General Statutes § 42a-2-609. “The right to such assurance is premised on reasonable grounds for insecurity. Whether a buyer has reasonable grounds to be insecure is a question of fact. AMF, Inc. v. McDonald’s Corporation, 536 F.2d 1167, 1170 (7th Cir. 1976).” Cherwell-Ralli, Inc. v. Rytman Grain Co., 180 Conn. 714, 719, 433 A.2d 984 (1980). Here, the trial court noted that the parties involved were all experts, and that they knew the construction business and its attendant problems of transportation, strikes, weather conditions, inventory and scheduling. In particular, the trial court noted that Universal’s overseer of operations was an expert and was, as a result, aware of the traditional construction progression within the industry and by the trades. The court concluded that in view of the foregoing, Hogan’s letter requesting the delivery of a minimum of 200 trusses could not be classified as an unconscionable request.

Having concluded that Universal failed to deliver as requested, the trial court awarded Hogan $16,779 which represented the amount Hogan expended in excess of the contract price for materials in substitution for those which were originally to be supplied by Universal. We conclude that the measure of damages employed by the trial court was proper. Upon the repudiation of the agreement by Universal; see General Statutes § 42a-2-609 (4); Hogan was entitled to “resort to any remedy for breach as provided by . . . section 42a-2-711 [of the General Statutes] . . . . ” General Statutes § 42a-2-610. Section 42a-2-711 provides in part that upon a seller’s failure to make delivery as required or upon his repudiation of the agreement, “the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid [may] (a) ‘cover’. . . . ” A buyer “ ‘cover[s]’ by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.” General Statutes § 42a-2-712 (1). When a buyer chooses to cover he may recover from the seller the difference between his cost to cover and the contract price as well as any incidental and consequential damages. General Statutes § 42a-2-712 (2). Expenses saved in consequence of the seller’s breach are subtracted from the buyer’s recovery. Id.

The trial court concluded that Hogan proved by a fair preponderance of the evidence that the trusses it purchased in substitution for those which Universal was obligated to supply under the parties’ agreement totaled $16,779 above the contract price. There was no evidence produced from which the court could conclude that Hogan’s cover was made in bad faith or with unreasonable delay. To the contrary, the court concluded that Hogan obtained the substitute, albeit slightly different, materials promptly on the open market in order to break the bottleneck in the construction schedule, and to end Hogan’s frustration with Universal. The record below amply supports these conclusions.

In deciding the plaintiff’s first claim of error, we have thoroughly addressed the plaintiff’s second claim of error, that the defendant’s demand for the delivery of 200 trusses was unconscionable and thereby terminated the parties’ agreement. The trial court concluded, and we agree, that in view of the parties’ knowledge and understanding as experts in the construction industry, Hogan’s demand, made after it had reasonable grounds for insecurity, could not be viewed as unconscionable. Moreover, we conclude that Hogan’s actions were warranted and were in pursuit of an adequate assurance of Universal’s performance. Under such circumstances, Hogan’s actions did not constitute either a termination or rescission of the parties’ agreement.

The plaintiff’s final claim is that the trial court erred in concluding that no pleadings or evidence were submitted in regard to the first count of the complaint relating to the plaintiff’s mechanic’s lien and the bond which was substituted for that lien by the defendant. This claim was admittedly pressed by the plaintiff so as to insure payment of its claim secured originally by the lien and subsequently by the bond. The trial court awarded damages to the plaintiff on the second count for the amount of that payment, which is fully reflected in the ultimate judgment in favor of Hogan in the amount of $9755.

Because we have concluded that the trial court did not err in its award of damages to the defendant on its counterclaim, and because the plaintiff has not been harmed by the failure of the court to act on the first count of the complaint, we consider this final claim of error to be moot, and therefore decline to consider it.

There is no error.

In this opinion the other judges concurred.

       Although the trial court’s memorandum of decision states this result, the judgment file does not contain a judgment regarding the first count of the complaint.

       The plaintiff’s preliminary statement of issues sets out eight claims of error. Its brief does not, however, contain a statement of the issues as required by Practice Book § 3060P (d) (2). The issues discussed are therefore those which can reasonably be discerned from the arguments espoused by the plaintiff at oral argument and in its brief.

       This action by Hogan did not interfere with the parties’ agreement in that Hogan’s requirements for trusses on the United Methodist project exceeded the number of such materials to be supplied by Universal.


text:
    Elizabeth Salerno v. G. Bruce Munro
    (3654)
    Dupont, C. J., Borden and Daly, Js.
    Argued April 10 —
    decision released May 13, 1986

      Mark J. DeGennaro, for the appellant (plaintiff).

      David J. Peska, for the appellee (defendant).
   Per Curiam.

There is no error.