text:
    Ann Petro v. Michael Petro
    (11656)
    Landau, Freedman and Schaller, Js.
    Argued April 27
    decision released June 8, 1993

      William H. Cashman, for the appellant (defendant).

      Lawrence P. Weisman, for the appellee (plaintiff).
   Landau, J.

The defendant, Michael Petro, appeals from a judgment of the trial court dissolving his marriage and entering certain financial orders. The defendant claims that the trial court improperly (1) found that his two infidelities were the cause of the breakdown of the marriage, (2) neglected to order the plaintiff to reform her financial affidavit so as to remove those items of expenses for a child who had reached majority, (3) failed to consider the statutory criteria in its orders, and (4) abused its discretion in awarding counsel fees to the plaintiff. We reverse the judgment of the court regarding attorney’s fees and affirm the judgment of the trial court on the remaining claims.

I

While much of the trial testimony was disputed, it is axiomatic that the credibility of witnesses, the finding of facts, and the drawing of inferences are all within the trier’s province. “ Tt is futile to assign error involving the weight of testimony or the credibility of witnesses.’ ” Grayson v, Grayson, 4 Conn. App. 275, 293, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987). The defendant has failed to demonstrate that the trial court’s factual findings were clearly erroneous or that its decisions as to the first three issues were otherwise erroneous in law. Practice Book § 4061; see U. S. Fidelity & Guaranty Co. v. K.J. Enterprises, Inc., 19 Conn. App. 806, 563 A.2d 1386, cert. denied, 212 Conn. 818, 565 A.2d 538 (1989), cert. denied, 493 U.S. 1088, 110 S. Ct. 1155, 107 L. Ed. 2d 1058 (1990). Moreover, our own review of the record discloses that the evidence was sufficient to support the trial court’s findings.

II

We agree with the defendant’s fourth claim, however, and reverse the trial court’s award of $2500 for counsel fees to the plaintiff. The decision to award such fees is clearly within the trial court’s discretion. In making such an order, however, the court must consider the respective financial abilities of the parties and the criteria set forth in General Statutes § 46b-82. General Statutes § 46b-62; Murphy v. Murphy, 180 Conn. 376, 380, 429 A.2d 897 (1980). “Where, because of other orders, both parties are financially able to pay their own counsel fees, they should be permitted to do so.” Koi-zim v. Koizim, 181 Conn. 494, 501, 435 A.2d 1030 (1980). We are aware that awarding counsel fees to a spouse who has sufficient liquid assets would be justified if the failure to do so would substantially undermine the other financial awards. Eslami v. Eslami, 218 Conn. 801, 820, 591 A.2d 411 (1991). In this case, however, the trial court made no finding that such an award was necessary. Nor is there anything in the record that would support such a finding.

The judgment is reversed as to the award of attorney’s fees only and the case is remanded with direction to render judgment as on file except as modified to eliminate that award.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Alfred Mauro, Jr. v. Yale-New Haven Hospital et al.
    (10821)
    Dupont, C. J., La very and Schaller, Js.

      Argued January 6
    decision released June 8, 1993

      Michele C. Lukban, for the appellant (defendant James Cianciolo).

      Kathryn Calibey with whom was James Bartolini, for the appellee (plaintiff).
   Dupont, C. J.

The defendant James Cianciolo appeals from a judgment, rendered after a jury verdict, awarding $107,580 to the plaintiff for injuries resulting from the defendant’s medical negligence. On appeal, the defendant claims that the trial court (1) failed to reduce the amount of the jury verdict by the amount received by the plaintiff from joint tort-feasors prior to trial, (2) improperly instructed the jury regarding the necessity of expert testimony on the issue of causation, and (3) misled the jury with its instruction regarding the apportionment of damages. We affirm the judgment of the trial court.

Many of the facts are not in dispute. On the evening of July 20, 1985, the plaintiff was injured when he fell from a second story porch. He was brought to Yale-New Haven Hospital for treatment and was discharged the following morning. Four days later, because of continuing pain in his spine, the plaintiff consulted Kan-diah Sritharan, an internist. X rays were taken of the plaintiff by both the hospital and Sritharan. After receiving several physical therapy treatments from Sritharan, without any improvement in his condition, the plaintiff consulted the defendant, a chiropractor, on August 7,1985. The defendant diagnosed the plaintiffs condition as spastic torticollis and cervical sprain, and over the next two weeks performed several chiropractic treatments on the plaintiff. Prior to treating the plaintiff, the defendant did not review the X rays that had already been taken, nor did he take any new ones. On August 29, 1985, the plaintiff consulted another physician, who diagnosed the plaintiff as having a fracture of the cervical spine. The plaintiff was immediately admitted to the Hospital of St. Raphael and underwent extensive treatment, including the use of a halo vest and a traction tong.

In October, 1986, the plaintiff brought a medical negligence action against Yale-New Haven Hospital, Sritharan and Cianciolo. The claims against the hospital and Sritharan were settled for $62,500 before trial and withdrawn. Subsequently, the plaintiff filed a substitute complaint naming only Cianciolo as the defendant. The case proceeded to trial and the jury returned a verdict in favor of the plaintiff for $107,580. The defendant fled a motion to set aside the verdict and a motion to reduce the verdict, both of which were denied. This appeal followed.

The defendant’s first claim concerns the proper application of General Statutes § 52-216a. The defendant contends that § 52-216a mandates that a trial court reduce a jury verdict by the amount of any pretrial settlement. Specifically, the defendant argues that under § 52-216a the amount of a settlement should be added to the verdict amount awarded by the jury, and then, to the extent that sum exceeds the verdict, the verdict would be considered to be excessive. This would be tantamount to mandating the reduction of the verdict by the amount of any prior settlement. The defendant contends that to hold otherwise would constitute more than the one full recovery to which a plaintiff is entitled and would also allow the trial court to invade the fact-finding function of the jury. The plaintiff, however, argues that § 52-216a requires that a trial court first add the jury verdict and any settlement moneys received by a plaintiff and then make a determination whether the total amount is excessive. If a court determines the total amount to be excessive, then the court is required to reduce the jury verdict by that amount.

Section 52-216a was analyzed in Peck v. Jacquemin, 196 Conn. 53, 491 A.2d 1043 (1985). The Peck court stated that “[i]n making its postverdict determination on the issue of any claimed excessiveness [under § 52-216a], the trial court was directed to consider the amount of money paid to a plaintiff as the result of either ‘[any] agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action.’ ” Id., 71. According to the statute, the determination as to whether a verdict is excessive must be made “as a matter of law.” The court went on to explain that the terms used in the statute, “ ‘as a matter of law’ are legal terms and, absent any legislative intent shown to the contrary, are to be presumed to be used in their legal sense.” Id., 70. “As a matter of law,” does not import unbridled discretion, but rather requires the application of relevant legal principles; id., 71; including “the time-honored rule that an injured party is entitled to full recovery only once for the harm suffered.” Id., 70 n.19, citing Dwy v. Connecticut Co., 89 Conn. 74, 95, 92 A. 883 (1915). The court concluded that because the statute requires that the determination of excessiveness be made “as a matter of law,” this determination is purely a question of law and does not invade the province of the jury. Peck v. Jacquemin, supra, 72. Thus, the court interpreted the statute to give the trial court the authority to make a determination of excessiveness based on legal principles and not to mandate an automatic reduction of a jury verdict by a pretrial settlement. The court construed the statute as permitting the verdict to be reduced by amounts received by a plaintiff from other joint tortfeasors only when those additional amounts plus the verdict would produce an excessive amount of damages as a matter of law.

The defendant argues that subsequent case law has changed the rule in Peck. The defendant cites Alfano v. Insurance Center of Torrington, 203 Conn. 607, 525 A.2d 1338 (1987), Ames v. Sears, Roebuck & Co., 206 Conn. 16, 536 A.2d 563 (1988), and Yuzari v. Southern Auto Sales, 688 F. Sup. 825 (D. Conn. 1988), as support for that proposition. A review of these cases does not bear out the defendant’s claim. Alfano is distinguishable from Peck. Peck involved a jury award for damages for personal injuries while Alfano involved a jury award for a fire loss to property. The payment made by another in Alfano was not by a joint tortfeasor but by an attorney, arising out of his malpractice for failing to advise the plaintiff of the need for fire insurance. The loss in Alfano was readily ascertainable and absolute, and “represented] a legally unassailable determination of fair compensation for the plaintiff’s loss . . . .” Alfano v. Insurance Center of Torrington, supra, 611. Although the amount of the jury award in Peck was certain, it was not absolute because it was within a spectrum of possible sums that could be awarded as just damages. Seymour v. Carcia, 24 Conn. App. 446, 455, 589 A.2d 7 (1991), aff’d, 221 Conn. 473, 604 A.2d 1304 (1992). Because of the nature of personal injuries and the pain and suffering ancillary to the injuries, the amount awarded by a jury is not absolute. The amount of the loss in Alfano was fixed, and, therefore, any recovery beyond the jury verdict would necessarily be excessive. Thus, there was no reason for the court in Alfano to exercise the limited role given to it by § 52-216a.

The defendant’s reliance on Ames and Yuzari is also misplaced. In Ames, the defendant claimed that Alfano had changed the application of § 52-216a as articulated in Peck. The court in Ames, however, refused to address whether Alfano had altered Peck, stating that the holding of Alfano was confined to its particular facts and that the question need not be decided for purposes of determining the issue in Ames. The defendant claims, nevertheless, that, because the Ames court did not deny the assertion that Alfano had changed the application of § 52-216a, it must have countenanced the supposed change. The court was not silent on this issue, but indicated that it would not further address the application of § 52-216a as articulated in Peck because it was unnecessary and because Alfano involved the rectitude of a trial court’s order of remittitur “in the circumstances of that case.” Ames v. Sears, Roebuck & Co., supra, 23.

In Yuzari, the federal District Court recognized that Ames did not determine whether Peck retained its vitality. The court determined instead that, in its opinion, Alfano contained a better interpretation of § 52-216a than did Peck, but made no effort to distinguish the two cases. Yuzari relies for its reasoning on the dissent in Peck, rather than on Alfano itself. Yuzari v. Southern Auto Sales, supra, 829. Yuzari does not state that the present law in Connecticut has deviated from Peck, but opines only that Peck should not be the law, finding support in Alfano. Peck is still valid law when a jury’s award involves damages for a personal injury for which the award cannot be determined precisely.

Having determined that the trial court took the proper approach in applying § 52-216a, we must consider whether the trial court correctly concluded that the jury verdict, when added to the amount of the pretrial settlement, was not excessive. On appeal, the test to be applied is whether the verdict “so shocks the conscience as to compel a reviewing court’s conclusion that it was due to partiality, prejudice or mistake.” Martin v. Samulis, 24 Conn. App. 85, 89, 585 A.2d 1225 (1991). The verdict must fall “somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” (Internal quotation marks omitted.) Seymour v. Carcia, supra, 455.

In the present case, the trial court, taking into account the pretrial settlement, found that the jury verdict did not shock the conscience and, therefore, was not excessive. In making this determination, the trial court considered several factors. They included the plaintiff’s disability, loss of earning capacity, age, lengthy period of disability, pain and suffering, his recuperation in a neck brace and collar, the surgical procedures, and the fact that, had he been treated prior to the displacement of his spine, the halo collar would not have been needed. We conclude that the trial court properly refused to reduce the jury verdict.

The defendant next claims that the trial court failed to instruct the jury that proximate causation must be established by expert testimony. The plaintiff argues that the defendant did not properly preserve the claim in accordance with Practice Book § 315. We agree with the plaintiff and, therefore, do not reach the merits of the defendant’s claim.

In order to preserve a claim related to the giving of or failure to give a jury instruction, a party is obligated either to submit a written request to charge covering the matter or to take an exception immediately after the charge is given. See Practice Book § 315. Our review of the record indicates that the defendant’s requests to charge did not cover the issue of requiring expert testimony in order to establish causation. They did include a charge on causation, and, in fact, the trial court’s charge to the jury on the issue of causation was similar to the defendant’s requested charge.

After the charge was given, the defendant took five exceptions to the charge. None, however, was to the issue of causation. By failing to except, the defendant deprived the trial court of an opportunity to correct the claimed error before the jury began its deliberations. Berry v. Loiseau, 223 Conn. 786, 814, 614 A.2d 414 (1992). The purpose of taking exceptions immediately after the charge is delivered is to ensure that the trial court has an opportunity to cure any defects or ambiguities in the charge, and “to avoid the economic waste and increased court congestion caused by unnecessary retrials.” (Internal quotation marks omitted.) Id.; see Practice Book § 315. Accordingly, because the defendant failed to preserve properly his claim on appeal, we conclude that the claim is not entitled to appellate review.

The defendant also claims that the trial court’s charge on the calculation of damages misled the jury. Specifically, the defendant claims that the trial court failed to provide the necessary guidance regarding apportionment of damages and failed to instruct on contributory negligence. The defendant argues that the jury should have been instructed to determine the liability of each of the defendants, and that it should have received instruction as to the proportionate share of damages to be paid as outlined in General Statutes § 52-572h (d).

Our standard of review concerning claims of instructional error is well settled. “[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict. . . (Citations omitted; internal quotation marks omitted.) Sullivan v. Norwalk, 28 Conn App. 449, 456, 612 A.2d 114 (1992), quoting Hall v. Burns, 213 Conn. 446, 475, 569 A.2d 10 (1990). The trial court must adapt its instructions to the issues raised in order to give the jury reasonable guidance in reaching a verdict and not mislead them. Sullivan v. Norwalk, supra.

Viewing the charge as a whole, we conclude that there is no reasonable possibility that the jury was misled. The charge adequately and clearly instructed the jury how to calculate damages in this case. A charge on the apportionment of damages, as outlined in § 52-572h (d) need not have been given because the negligence in this case arose from acts occurring prior to the enactment of the subsection on apportionment. Furthermore, at the time this case was tried, there was only one defendant and the plaintiffs substituted complaint makes no reference to and claims no damages from any other defendant. The complaint involves the negligence of Cianciolo and of no one else.

The defendant also claims that the trial court failed to instruct the jury on the issue of contributory negligence. The defendant, however, did not assert contributory negligence as a special defense, and, therefore, was not entitled to a charge as to that defense. The defendant did assert as a special defense that the plaintiff aggravated his condition by not complying with the defendant’s instructions to maintain bed rest and not to return to work. Accordingly, he requested a mitigation of damages charge because evidence existed that the plaintiff may have failed to enhance his chances for a recovery by disregarding the defendant’s advice. He was entitled to such a charge; Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 501, 548 A.2d 728 (1988); and the trial court gave it. Not having pleaded contributory negligence, he was not entitled to a charge regarding it, nor a verdict form that included contributory negligence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to trial, the case was withdrawn as against all but the defendant James Cianciolo. We will refer in this opinion to Cianciolo as the defendant.

       General Statutes § 52-216a provides: ‘ ‘An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”

       The Alfano court acknowledges in a footnote that, even if General Statutes § 52-225a had been effective prior to October 1, 1986, it would not apply to Alfano because Alfano was not a case seeking damages for personal injury or wrongful death. Alfano v. Insurance Center of Torrington, 203 Conn. 607, 610 n.3, 525 A.2d 1338 (1987).

       The interpretation of our state statutes by a federal court is not binding on us. General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 212, 603 A.2d 385 (1992).

       The present case involves a request for a remittitur in an action for damages for personal injuries. Had this case involved an additur, the reasoning of Yuzari, namely, that the jury verdict is to be taken as the precise total amount of just damages to which the plaintiff is entitled, would be difficult to support. General Statutes § 52-216a provides that if a court concludes that the verdict is inadequate as a matter of law, it may add to it. If the verdict in an action for damages for personal injury is the precise amount due a plaintiff, there would be no way the court could, with or without taking into account prior settlements, conclude that an additur would be necessary.


author: Foti, J.

text:
    St. Margaret’s-McTernan School, Inc. v. William F. Thompson
    (11230)
    Dupont, C. J., Foti and Landau, Js.
    Argued March 25
    decision released June 15, 1993

      Peter T. Fay, with whom, on the brief, was Edward W. Mayer, Jr., for the appellant (plaintiff).

      William, F. Thompson, pro se, the appellee (defendant), filed a brief.
   Foti, J.

The plaintiff appeals from the judgment, rendered after a trial to the court, in which the plaintiff was awarded $2000 in damages and $500 in attorney’s fees. The plaintiff claims that the trial court improperly (1) determined damages, (2) concluded that the plaintiff had not minimized damages, and (3) reduced the amount shown to be reasonable attorney’s fees and costs. We reverse the judgment of the trial court.

On February 1, 1989, the defendant applied for admission of his daughter to the plaintiff, a private school, for the academic year 1989-90. On April 1, 1989, along with notification of his daughter’s acceptance to the school, the defendant received an enrollment contract, which he executed on April 25, 1989, and returned to the plaintiff together with a nonrefundable $500 deposit. The contract provided for annual tuition charges and fees of $4000, payable in two installments on July 31, 1989, and January 31, 1990.

On August 28,1989, the defendant notified the plaintiff that his daughter would not be attending the school. Thereafter, the plaintiff made demand upon the defendant for $4000, the entire balance due under the contract. Following the defendant’s refusal to pay, the plaintiff instituted this action seeking damages for breach of contract as well as attorney’s fees and costs of collection.

The plaintiff first claims that the court improperly decided as a matter of law that the plaintiff is limited to actual damages rather than contractual damages. The trial court concluded that “[t]he evidence which the plaintiff presented does not persuade the court that the plaintiff suffered actual damages equal to the contract price.” The court further stated that “[i]t is reasonable to assume that the plaintiff was inconvenienced by [the defendant’s daughter’s] tardy decision and suffered a loss which could not be fully recouped. Recovery of an amount equal to the initial installment is a fair and just approximation of such loss.” We conclude that the trial court improperly limited the plaintiff to recovery of actual damages.

“It is generally held that a contract for schooling for a specified term is entire and that when a student withdraws for reasons of [her] own, without fault on the part of the school, the school is entitled to the tuition for the entire period.” Leo Foundation, Inc. v. Kiernan, 5 Conn. Cir. Ct. 11, 16, 240 A.2d 218 (1967). While the trial court recognized this rule, it nevertheless adopted a different standard that “in an age of continually rising educational costs which are ultimately passed on to the consumer ... a school seeking recovery for a breach of contract should be limited to the amount of damages actually sustained.”

Contract damages, as a general rule, are awarded to place the injured party in the same position it would have been in had the contract been fully performed. Bertozzi v. McCarthy, 164 Conn. 463, 468, 323 A.2d 553 (1973). Our Supreme Court, however, “has recognized the principle that there are circumstances that justify private agreements to supplant judicially determined remedies for breach of contract.” Vines v. Orchard Hills, Inc., 181 Conn. 501, 511, 435 A.2d 1022 (1980).

The enrollment contract executed by the defendant contained the following provisions: “I understand that my obligation to pay the charges for the full academic year is unconditional and that no portion of such charges so paid or outstanding will be refunded or can-celled notwithstanding the subsequent absence, withdrawal or dismissal from the School of the . . . student. . . .

“Also, it is agreed that enrollment as specified within this contract may be cancelled in writing by the parents or guardians without penalty (except forfeit of the $500 deposit) prior to August 1,1989, but, if enrollment is cancelled after August 1,1989, the obligation to pay the full annual charges is binding.” These provisions are in the nature of a liquidated damages clause. By the express terms of these provisions, the defendant agreed that upon his failure to notify the plaintiff before August 1,1989, that his daughter would not be attending the school, he would pay the remaining tuition due as a fixed sum of damages.

“It is settled law that a contract provision which imposes a penalty for a breach of the contract is contrary to public policy and is invalid, but a contractual provision which fixes liquidated damages for a breach of the contract is enforceable if it satisfies certain conditions. . . . The conditions which will justify an agreement for liquidated damages are: (1) The damage which was to be expected as a result of a breach of the contract was uncertain in amount or difficult to prove; (2) there was an intent on the part of the parties to liquidate damages in advance; and (3) the amount stipulated was reasonable in the sense that it was not greatly disproportionate to the amount of the damage which, as the parties looked forward, seemed to be the presumable loss which would be sustained by the contrac-tee in the event of a breach of the contract.” (Citations omitted; internal quotation marks omitted.) Norwalk Door Closer Co. v. Eagle Lock & Screw Co., 153 Conn. 681, 686, 220 A.2d 263 (1966). No provision in a contract for the payment of a fixed sum as damages will be enforced, however, in a case where the court sees that no damage has been sustained. Id., 688. The party seeking to repudiate a clause that fixes a sum as damages has the burden of showing that the agreed sum is so exorbitant as to be in the nature of a penalty. Syncsort, Inc. v. Indata Services, 14 Conn. App. 481, 485, 541 A.2d 543, cert. denied, 209 Conn. 804, 548 A.2d 443 (1988).

It is undisputed that both parties to the contract received valuable consideration under the terms of the contract. In return for the defendant’s promise to make tuition payments, the plaintiff agreed to reserve a place for the defendant’s daughter and provide her with schooling for one year. The trial court explicitly found that the plaintiff had sustained damage as a result of the defendant’s breach of the enrollment contract.

The trial court also recognized that the damage sustained by the plaintiff was uncertain in amount and difficult to prove. The fixed amount stipulated in the contract is not disproportionate to the amount of damage the parties reasonably could have presumed would be sustained by the defendant’s breach. Nor is the stipulated amount so exorbitant as to constitute a penalty. We conclude that the proper measure of damages for breach of this enrollment contract is the fixed sum of $4000 — the full unpaid tuition balance — as agreed to by the parties, not actual damages as determined by the trial court.

The plaintiff also claims that the trial court improperly awarded an attorney’s fee of only $500, whereas the contract expressly allowed for “all attorneys’ fees and reasonable costs of collection for any outstanding amounts due under this contract.” The only evidence introduced as to the time spent and the rates charged presented the court with an amount of $2065.33. The court did not find this fee to be unreasonable on its face, nor did the court, by use of its own expert judgment, find that amount to be unreasonable. The defendant presented no countervailing evidence to show that the amount was unreasonable. The court neither questioned the reasonableness of these fees when presented at trial nor discussed the amount in its opinion, but arbitrarily reduced the amount to $500 without explanation or comment. Under the circumstances, we must conclude that the award of $500 was improper.

The judgment is reversed as to the award of damages and attorney’s fees only and the case is remanded with direction to award damages to the plaintiff in the amount of $4000 and to determine reasonable attorney’s fees.

In this opinion the other judges concurred.

       The defendant conceded parental liability at the trial court.

       The total tuition was $8500. The defendant’s daughter was awarded a $4000 grant.

       The defendant filed a counterclaim seeking the return of the $500 deposit. While the court’s memorandum of decision does not specifically refer to the counterclaim, it is clear that judgment was rendered for the plaintiff on the defendant’s counterclaim. The defendant has not appealed.

       Because of our decision on this first issue, we find it unnecessary to address the second issue raised by the plaintiff.


author: Freedman, J.

text:
    City of Stamford v. Zdravko Kovac
    (11526)
    Daly, Freedman and Schaller, Js.

      Argued April 30
    decision released June 15, 1993

      Sigmund L. Miller, with whom, on the brief, was Joseph A. Maker, for the appellant (defendant).

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Daniel M. McCabe, corporation counsel, for the appellee (plaintiff).
   Freedman, J.

The dispositive issue in this appeal is whether a trial court must hold a hearing on a party’s seasonably filed exceptions and objections with respect to the acceptance of the report of an attorney trial referee. Because we conclude that Practice Book § 442 requires a hearing on such exceptions and objections, we reverse the judgment and remand the case to the trial court for the purpose of permitting the defendant to present oral argument on his exceptions and objections.

This is an action to enjoin claimed violations of the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45, as well as local regulations that implement that act. Without first hearing oral argument from the defendant on his exceptions and objections, the trial court rendered judgment pursuant to an attorney trial referee’s report and supplemental report finding that fill was unlawfully placed within twenty-five feet of wetlands on property owned by the defendant in Stamford. The court accepted the reports of the referee and ordered extensive injunctive relief, imposed a fine and entered an award of attorney’s fees and costs against the defendant. On appeal, the defendant claims that the trial court improperly (1) denied his objection to a trial before an attorney trial referee, (2) denied his exceptions and objections to the referee’s reports without permitting him the opportunity to present oral argument, (3) sustained the trial referee’s preclusion of testimony by certain expert witnesses, (4) found a violation of the inland wetlands statute, and (5) awarded (a) costs, fees and expenses that included the overhead costs of the municipal enforcement agency and (b) attorney’s fees for services performed by salaried city attorneys.

Before addressing the issue of whether the trial court’s failure to hear oral argument from the defendant requires that we reverse the judgment and remand the case to the trial court for a hearing on the defendant’s exceptions and objections to the referee’s reports, we must first address the defendant’s claim that the trial court improperly denied his objection to the reference of the case to an attorney trial referee. We address this claim first because, if it is successful, this claim would require that we reverse the judgment, declare the reference invalid and remand the case for a trial to the court.

The following facts are relevant to this claim. The plaintiff commenced this action by writ, summons and complaint returnable on May 16,1988. The defendant, represented by attorney L. Morris Glucksman, filed his answer and claimed the case for the trial list on December 4,1989. At some time thereafter, the parties were notified that the case would be assigned to an attorney trial referee unless there was an objection. Neither party objected at that time. The case was scheduled for trial before an attorney trial referee several times during 1990, but no trial was commenced because, at one point, the parties appeared to have reached a tentative settlement and because, later, the defendant’s counsel was not ready to proceed when the settlement fell through. On December 17, 1990, the trial court, Katz, J., allowed Glucksman to withdraw his appearance on behalf of the defendant, subject to the defendant’s being notified that a firm trial date would be set. On December 19,1990, attorney Sigmund L. Miller filed his appearance on behalf of the defendant in lieu of Glucksman. On the same date, the parties were notified that the matter was assigned for trial before an attorney trial referee on January 17, 1991. On January 15, 1991, the trial court, Katz, J., denied the defendant’s December 26,1990 request for a continuance. On January 17, 1991, the defendant filed a written “objection” to trial before an attorney trial referee. On the same date, after hearing from the parties, the trial court, Lewis, J., denied the defendant’s request to have the case tried before the court because “consent was given at the time of the calendar call” and because the objection was “too late on the eve of trial.”

It is well established that consent of the parties is required for a reference to an attorney trial referee. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 515, 508 A.2d 415 (1986). A party, however, is “deemed to have given [its] implicit consent to the referral by failing to raise [its] objection in a timely fashion.” Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 251, 524 A.2d 610 (1987).

The defendant contends that his objection to the reference, made on the date the hearing before the referee was to commence, was timely under our case law and was sufficient to revoke the reference. It is clear that the defendant’s objection was timely. Our cases have determined that while it is too late to attack the reference after trial to the referee and the filing of the referee’s report; id.; Rowan Construction Corporation v. Hassane, 17 Conn. App. 71, 79, 549 A.2d 1085 (1988), aff’d, 213 Conn. 337, 567 A.2d 1210 (1990); “[t]he appropriate time to object . . . [is] at the time of the referral, or at least prior to the commencement of the hearing before the referee.” Bowman v. 1477 Central Avenue Apartments, Inc., supra.

While Bowman clearly permits an objection to be filed after the time of referral and before the commencement of the hearing before the referee, it does not indicate what consequences follow from an objection made at that stage of the proceedings. Here, the defendant consented to atrial before an attorney trial referee by his failure to object at the time of the referral. Id. Once the referral was made with the express or implied consent of the parties, the reference may be revoked thereafter only “upon stipulation of the parties or order of court.” Practice Book § 432. If a party can, by its objection alone, unilaterally revoke a reference to which it has previously consented or failed to object, the purpose of the reference will not be served. See Bray v. English, 1 Conn. 498, 501-502 (1816). In the absence of a stipulation of both parties that the case should not be tried before an attorney trial referee, the defendant’s objection was properly addressed to the discretion of the court to revoke the reference for good cause shown. Dion v. Dion, 128 Conn. 416, 419, 23 A.2d 314 (1941). We conclude, under the circumstances of this case, that the trial court did not abuse its discretion in refusing to revoke the reference where the matter had been previously scheduled several times for trial before an attorney trial referee with the consent of the parties, only to be continued to a later date, and where the objection was made on the date of trial after the court had ordered no further postponements.

We now address the defendant’s claim that the trial court improperly rendered judgment accepting the referee’s initial and supplemental reports without permitting the defendant the opportunity to present oral argument on his exceptions and objections to the reports. We note that our Supreme Court expressly declined to decide this issue in Bowman v. 1477 Central Avenue Apartments, Inc., supra, 255 n.8.

The following facts are relevant to our resolution of this issue. After the referee filed his reports, the defendant timely filed exceptions and objections to the reports of the attorney trial referee pursuant to Practice Book §§ 439 and 440, respectively. At the bottom of the first page of his exceptions to the reports of the referee, the defendant specifically noted that “[o]ral argument [is] requested.” Thereafter, the matter appeared on a short calendar list. According to the defendant, because the parties informed the court that the hearing on the motions was going to be lengthy, the trial court, Mottolese, J., indicated that it would schedule the matter for an afternoon hearing some time thereafter and would notify the parties. According to the plaintiff, the court informed the parties that it would schedule oral argument only if it had questions after reviewing the transcripts and papers filed by the parties. In any event, the trial court subsequently issued its memorandum of decision overruling the defendant’s exceptions, accepting the reports of the referee and rendering judgment thereon. At no time before judgment was rendered did the trial court afford the defendant an opportunity to present oral argument regarding his exceptions and objections. In postjudgment motions, the defendant requested the opportunity for a hearing on his exceptions and objections to the referee’s report. Those motions were denied by the trial court.

Practice Book § 442 provides in pertinent part that “p]f exceptions or objections [to the report of the referee] have been seasonably filed, the case should be claimed for the short calendar for hearing thereon-, and the court may, upon its decision as to them, forthwith direct judgment to be rendered.” (Emphasis added.) This section expressly contemplates a hearing on a party’s exceptions or objections prior to the rendition of judgment. Where our rules of practice permit court action only after a hearing, it is improper for a court to render judgment without holding a hearing on the matter. See Exeter Energy Limited Partnership v. Office of Policy & Management, 27 Conn. App. 924, 609 A.2d 257 (1992) (reversing Practice Book § 251 dismissal entered without a hearing). Consequently, the trial court here should not have ruled on the defendant’s exceptions and objections to the referee’s report- and rendered judgment thereon without first permitting the defendant the opportunity to be heard on his exceptions and objections.

The right to present oral argument with respect to a party’s exceptions and objections to a referee’s report, as set forth in Practice Book § 442, is an integral part of the careful constitutional balance set forth in our rules of practice regarding the reference of cases to attorney trial referees. “[A]n attorney referee is simply a factfinder whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. Practice Book §§ 428 through 445. . . . Before judgment is rendered upon the report [of the referee], an opportunity for a hearing before the court is provided for the purpose of considering any objections or exceptions to the report. Practice Book § 442.” Seal Audio, Inc. v. Bozak, Inc., supra, 502-503. The mechanism for converting a determination made by an attorney referee into a judgment requires judicial review of the referee’s findings in order to avoid constitutional infirmity. Id., 500-510. Without sufficient judicial involvement at this stage of the proceedings, the attorney trial referee program would run afoul of article fifth, § 2, of our state constitution, which requires that judges be nominated by the governor and appointed by the General Assembly. Id., 500-509. Thus, the opportunity to present oral argument to the court regarding the propriety of the trial before the referee and the findings made by the referee may be a party’s only opportunity for a hearing before a judge prior to the rendition of judgment. Where the parties have consented to the use of an attorney referee as a fact finder, they have necessarily done so recognizing that their opportunity to appear before a judge is limited. Given this, it would be inappropriate to undermine the legitimate expectations of the parties that they will be afforded the opportunity to express their “views . . . upon the law ... in their arguments at the hearing before the court that is to enter judgment.” Seal Audio, Inc. v. Bozak, Inc., supra, 510.

We recognize that “[t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed” and that their “preservation and protection . . . from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state.” General Statutes § 22a-36. Nevertheless, because the trial court failed to permit oral argument on the defendant’s exceptions and objections to the initial and supplemental reports of the referee, we must reverse the judgment of the court and remand the case to the trial court for the purpose of considering oral argument and ruling on those exceptions and objections. Because the remaining issues on appeal must be addressed in the first instance by the trial court in its ruling on the defendant’s exceptions and objections, after an appropriate hearing thereon, we have no cause to consider them now.

The judgment is reversed and the case is remanded for a hearing on the defendant’s exceptions and objections to the report of the attorney trial referee and for further proceedings according to law.

In this opinion the other judges concurred.

       Practice Book § 442 provides: “After the expiration of two weeks from the filing of the report, if no motion to correct and no objections to the report have been filed and no extension of time for filing either has been granted, either party may, without written motion, claim the case for the short calendar for judgment on the report of the committee, provided, if the parties file a stipulation that no motion to correct or objections will be filed, the case may be so claimed at any time thereafter. If exceptions or objections have been seasonably filed, the case should be claimed for the short calendar for hearing thereon; and the court may, upon its decision as to them, forthwith direct judgment to be rendered. ” (Emphasis added.)
      This rule of practice, governing procedure in matters referred to committees, is also applicable to matters referred to attorney trial referees. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502-503, 508 A.2d 415 (1986).

       During oral argument before the trial court on the defendant’s post-judgment motions, the trial court expressed the view that the defendant was not entitled to oral argument as a matter of right on his exceptions and objections to the reports of the referee. The defendant was never given any meaningful opportunity to present his exceptions and objections orally to the trial court during the course of argument on the postjudgment motions. For this reason, we reject the plaintiffs argument that the defendant was afforded a hearing on his exceptions and objections at the time the court heard his postjudgment motions.


author: O’Connell, J.

text:
    William Raveis Real Estate, Inc. v. Axel Stawski et al.
    (10606)
    O’Connell, Landau and Heiman, Js.
    Argued April 1
    decision released June 15, 1993

      Michael P. Foley, Jr., for the appellants (defendants).

      Stephanie Z. Roberge, with whom was Stanton H. Lesser, for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals from the judgment of the state trial referee, acting as the trial court, for the plaintiff real estate broker in this action to recover a real estate commission. The defendant claims that the trial court improperly found (1) that the plaintiff produced a ready, willing and able buyer on the terms and conditions of the listing contract, and (2) that the binder between the defendant and the proposed buyer constituted an enforceable contract. We affirm the judgment of the trial court.

The following facts were found by the trial court. On February 6,1991, the plaintiff sent a proposed listing contract to the defendant. The contract provided the plaintiff with the exclusive right, from February 8, 1989, to February 16, 1989, to sell the defendant’s property for $1,300,000. The defendant, who has a law degree and broad real estate experience, made several changes to the contract before returning it to the plaintiff. These changes included (1) an extension of its expiration date to March 5,1989, (2) the elimination of the term providing that oral offers could be accepted by the defendant, and (3) the addition of a condition precedent to the payment of a commission that the buyer “actually closes title on the property.”

On February 11,1989, the plaintiff obtained an offer to purchase the property for the full asking price. The buyer signed a binder, specifying a closing date of May 1, 1989, and submitted a deposit of $13,000. The binder was forwarded to the defendant and on February 15,1989, the defendant crossed out the requested closing date and replaced it with July 1, 1989. The defendant signed the binder in the space entitled “Acceptance.” Thereafter, by letter dated February 16, 1989, the defendant advised the plaintiff that he had returned the binder after making several changes including a revision of the closing date. He requested that the plaintiff send him a note signed by the buyer not later than February 17,1989, indicating the buyer’s acceptance. During the same time period, beginning on February 15, 1989, the buyer’s attorney had several conversations with the defendant regarding the closing date and the title. On March 2,1989, the attorney orally informed the defendant that the buyer agreed to the July 1,1989 closing date. The buyer also spoke directly with the defendant on either February 28, 1989, or March 1, 1989, and agreed to the July 1, 1989 closing date.

On March 6, 1989, the day after the listing contract had terminated, the defendant sent the plaintiff a letter notifying it that he had been unable to reach an agreement with the buyer on the conditions of the sale and requested the return of his house keys. The transaction was not consummated, no commission was paid and on March 14, 1989, the plaintiff commenced this action. Following a trial to the court, the plaintiff was awarded a commission of $65,000 plus interest and costs. The defendant appealed.

The outcome of this appeal is governed by the settled principle that a broker’s right to recover a commission arises from the terms of the listing contract. Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 77, 438 A.2d 1202 (1982). In the present case, the listing contract provided that the plaintiff was entitled to a commission if either (1) a buyer who was ready, willing and able to purchase the property on the terms and conditions of the listing contract was produced, or (2) the property was sold.

The defendant’s appeal erroneously focuses almost exclusively on the trial court’s determination that the binder between the defendant and the proposed buyer was an enforceable contract and, as a result, the property was sold. In addition, however, the trial court found that the plaintiff had produced a buyer within the terms and conditions of the listing contract. The listing contract provided that a commission was payable upon either occurrence. Consequently, because we conclude that the trial court properly determined that the plaintiff produced a buyer within the terms and conditions of the listing contract, we do not consider the defendant’s claim challenging the enforceability of the binder.

The determination of whether a buyer is ready, willing and able is a question of fact; R. Zemper & Associates v. Scozzafava, 28 Conn. App. 557, 560, 611 A.2d 449 (1992); and will not be reversed unless the trial court’s findings are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The defendant does not contend that the buyer was either financially unable to purchase the property; see, e.g., William T. Beazley Co. v. Streeto, 20 Conn. App. 718, 720, 570 A.2d 233 (1990); or unwilling to purchase the property. The gravamen of the defendant’s argument is that the court improperly found that the buyer was produced within the terms and conditions of the contract.

First, he argues that the buyer never agreed to his requested July closing date. After hearing conflicting testimony on this issue, the trial court found, however, that the parties had indeed agreed on July 1,1989, as the closing date. The trial court explained that its finding was “based on the credibility of the plaintiffs witnesses and the lack of credibility on the part of [Axel] Stawski.” The trier of fact is the final judge of the credibility of witnesses. R. Zemper & Associates v. Scoz-zafava, supra, 561. This court cannot find facts but can only review the findings to determine whether they legally, logically and reasonably could have been found by the trier. Id. Our review of this finding satisfies us that it is not clearly erroneous.

The defendant next argues that two of the conditions he added to the contract were not satisfied. First, he correctly observes that because the transaction was not consummated, the plaintiff did not satisfy the defend-' ant’s condition that there must be a closing before a commission is payable. It is true that a listing contract may “make the broker’s right to a commission dependent upon specific conditions, such as the consummation of the transaction and the full performance of the sales contract.” Revere Real Estate, Inc. v. Cerato, supra, 78; William Pitt, Inc. v. Taylor, 186 Conn. 82, 84, 438 A.2d 1206 (1982).

The defendant’s argument, however, ignores the trial court’s finding that the defendant, by effectively stating in his letter of March 6, 1989, that he would not proceed with the sale of the property, wrongfully prevented the buyer from completing performance of the sales contract and, thus, prevented the plaintiff from satisfying the closing requirement of the listing agreement. “Certainly a defendant who has wrongfully prevented the other party from completing performance cannot set up the nonperformance of the other as a defense.” Burns v. Gould, 172 Conn. 210, 221, 374 A.2d 193 (1977). Consequently, the defendant cannot cite the plaintiffs nonperformance as a bar to the plaintiff’s recovery of a commission.

Second, the defendant asserts that the condition of the contract that all offers be in writing was not satisfied. He theorizes that because the agreement concerning the closing date of July 1, 1989, was oral the condition was not satisfied. This claim is also without merit. The section of the listing contract entitled “Acceptance of an Offer” was altered by the defendant to provide as follows: “1. An offer may be accepted by me. 2. An offer may be accepted in a writing which states the price and other terms.” Even assuming arguendo that the language of this section precluded the acceptance of oral offers by the defendant, it has no application to the present situation because the defendant did not accept any oral offers. The trial court found that the defendant’s changing of the closing date from the buyer’s requested date of May 1, 1989 to July 1, 1989, constituted a counteroffer. This counteroffer, which was entirely in writing, was then orally accepted by the buyer. Nothing in this provision specified that the buyer could not orally accept a written offer extended by the defendant. Therefore, neither this condition nor the condition requiring a closing precludes the plaintiff from recovering a commission.

Accordingly, our review of the record satisfies us that the trial court’s determination that the buyer was ready, willing and able to purchase the defendant’s property within the terms and conditions of the listing contract was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       There are two defendants, Axel Stawski and Lilly Stawski. Because most of the events described in this opinion directly involve only Axel Stawski, we refer to the defendants in the singular for the sake of simplicity.

       The defendant testified that he has a law degree and broad experience in the field of real estate.

       As altered, the commission clause provided “I/we will pay you a commission or fee of 5% of the agreed upon sales price at closing, even if the term of the agreement has expired, if: (a) the PROPERTY is sold during the term of this agreement; or (b) during the term of this agreement, I/we, you or any one else produces a buyer ready, willing and able to buy the property, either for the price and upon the terms described herein, or for any other price and terms acceptable to me/us and he actually closes title on the property.”

       The record indicates that at some time after February 13, 1989, the plaintiff changed the closing date to June 1, 1989. This proposed closing date was not submitted to the defendant.

       The listing contract; see footnote 3, supra; echoes the general rule that a brokerage firm may recover a commission if “it has procured a customer who is ready, willing, and able to buy on terms and conditions prescribed or agreed to by the seller” or “if it has brought the buyer and the seller to an enforceable agreement.” Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 77-78, 438 A.2d 1202 (1982).


author: Schaller, J.

text:
    State of Connecticut v. Anthony Lee Clemons
    (10451)
    Landau, Freedman and Schaller, Js.
    Argued April 27
    decision released June 15, 1993

      Theresa M. Dalton, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes §§ 53a-8 (a) and 53a-134 (a) (2). The defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal and (2) sua sponte amended the information to prevent the jury from considering the lesser included offense of robbery in the second degree. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On August 30, 1987, soon after midnight, two African-American men approached the victim on Booth Street in Stratford. One of the men was carrying a sawed-off shotgun, the other a handgun. The man with the handgun pulled back a slide on the top of the gun, characteristic of the operation of a .45 caliber automatic. The man then told the victim to empty his pockets. The victim complied, handed over his wallet and ran from the scene. The two men then climbed into the backseat of a dark four door sedan, and the car drove away on Barnum Avenue toward Bridgeport. The victim was later unable to identify the perpetrators of the crime.

Masto Dilorenzo witnessed the crime from his second story apartment and contacted the Stratford police department. In response, the police alerted Officer Joseph Loschiavo, who was on patrol duty. He drove to the Stratford-Bridgeport city line on Barnum Avenue. More than one and one-half miles from the scene of the robbery, Loschiavo observed a dark four door sedan heading toward Bridgeport. Loschiavo reported the license number of the sedan to his department and learned that the number was registered to a different car.

Loschiavo activated the lights and siren of his police car. As he did so, the driver of the sedan increased the car’s speed considerably. He then lost control of the vehicle and collided with an oncoming car. Immediately after the collision, four African-American men got out of the sedan and ran. In the course of the escape, the driver of the sedan rolled across the hood of Loschiavo’s car. Loschiavo was able to get a close look at the driver and later identified him as the defendant.

After checking the driver of the other car in the collision and determining that he did not need assistance, Loschiavo pursued the suspects through an open field and over railroad tracks. Following a path toward Father Panik Village in Bridgeport, the four suspects evaded Loschiavo.

Along the path, Loschiavo found a loaded .38 caliber revolver. The revolver was not the same as the handgun used in the robbery at issue. Moreover, at no time prior to discovering the gun did Loschiavo observe the gun or anything resembling a gun on any of the four suspects. Loschiavo returned to the scene of the accident and looked into the sedan driven by the defendant. There, he found an arrow quiver that had been altered to house a sawed-off shotgun.

Subsequently, the police undertook an investigation of the crime. Loschiavo reviewed nine photographs selected by another police officer and identified the defendant as the driver of the sedan. Detective Gene Vedock tested the .38 caliber for fingerprints and found none. He also found that the gun was operable. The police dusted the sedan and uncovered six fingerprints, none of which matched the defendant’s.

The state charged the defendant with robbery in the first degree. The information alleged that the defendant “did intentionally aid another person, while the latter stole certain property from [the victim] . . . and in the course of the commission of the crime or of immediate flight therefrom, [the defendant] or another participant was armed with a deadly weapon, to wit: a pistol, in violation of Section 53a-8 and Section 53a-134 (a) (2) of the Connecticut General Statutes.” The case proceeded to trial.

At the trial’s conclusion, the judge instructed the jury to consider only that portion of § 53a-134 (a) concerning the immediate flight from a crime. The jury returned a guilty verdict of robbery in the first degree. The trial court denied the defendant’s subsequent motion to set aside the verdict. This appeal followed.

The defendant claims that the evidence presented to the jury cannot support the conviction under § 53a-134 (a) (2) because it failed to establish beyond a reasonable doubt that either the defendant or any of the alleged participants was armed with a deadly weapon in the course of immediate flight from the scene of the robbery. We agree.

Our standard of review for challenges to the sufficiency of the evidence is well settled. In such cases, we undertake a two part analysis. “We first construe the evidence presented at trial in a light most favorable to sustaining the verdict, and then determine whether the jury could reasonably have found upon the facts established and the inferences reasonably drawn therefrom, that a cumulative effect of the evidence established guilt beyond a reasonable doubt. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993); State v. Hamilton, 30 Conn. App. 68, 618 A.2d 1372 (1993). “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985).

Under § 53a-134 (a) (2), the defendant’s culpability is predicated on his alleged participation in a robbery that involved the use of a deadly weapon. “Deadly weapon” is defined in General Statutes § 53a-3 (6) as “any weapon, whether loaded or unloaded, from which a shot may be discharged . . . .’’In cases involving firearms, the state has the burden of proving beyond a reasonable doubt that the firearm used was, in fact, a deadly weapon, capable of firing a shot. State v. Hawthorne, 175 Conn. 569, 572, 402 A.2d 759 (1978); State v. Torres, 24 Conn. App. 316, 325, 588 A.2d 232, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991).

In the present case, the issue is whether the state proved beyond a reasonable doubt that the defendant or a participant in the alleged robbery was armed with a deadly weapon, to wit, a pistol, in the course of immediate flight from Booth Street, where the robbery occurred. Initially, we note that the only deadly weapon remotely linked to the conviction of the defendant is the revolver found on the path to Father Panik Village. This is the only weapon that the police discovered and the only weapon known to be operable at the time the crime was committed. The state did not introduce into evidence the two weapons described by the victim. Nor has the state attempted to establish that these weapons qualify for purposes of a conviction under § 53a-134 (a) (2). This is why the trial court, through its instructions, focused the jury’s attention on whether the defendant or a participant was armed with a deadly weapon in the course of immediate flight from the crime.

The critical question, therefore, is whether the state presented sufficient evidence to establish that the defendant or a participant was armed with the revolver that Loschiavo found on the path to Father Panik Village.

Loschiavo did not observe the revolver in the possession of the suspects. Nor did he observe any of the suspects discard the gun as they fled down the path. Fingerprint tests on the revolver were inconclusive and it is undisputed that the revolver was not one of the two weapons described by the victim. There is thus no direct evidence that either of the suspects ever possessed the revolver found by Loschiavo.

While “the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence”; State v. Hamilton, supra, 72; inferences must still be reasonable and must in the aggregate establish the essential elements of a crime beyond a reasonable doubt. Here, to find the defendant guilty of robbery in the first degree, the jury would have to infer that because the suspects traveled on the path on which Loschiavo discovered the revolver, one of them was responsible for the disposal of the gun. Unsupported by the cumulative effect of additional circumstantial evidence, this inference is attenuated at best.

The victim and the eyewitness of the robbery identified only three persons as participants in the robbery: the two that actually approached the victim and the driver of the sedan. No mention was made of a fourth participant. The fact that a fourth person was present in the sedan does not establish that he participated in the crime. See State v. Aparo, 223 Conn. 384, 402, 614 A.2d 401 (1992) (§ 53a-8 requires proof that accessory intended to aid principal and intended to commit the offense charged); State v. Foster, 202 Conn. 520, 535, 522 A.2d 277 (1987) (same). Accordingly, even assuming that this fourth person dropped the revolver on the path, we cannot conclude that a participant in the crime was armed with a deadly weapon.

In summary, viewing the evidence in the light most favorable to sustaining the verdict, we cannot uphold the judgment of conviction for robbery in the first degree. The sole evidence linking the defendant to a deadly weapon, namely, the presence of a gun on a foot path, does not support the judgment of the trial court. Mindful of the important role of the jury in our system of criminal justice, we recognize that great deference is afforded the factual findings of the trier. State v. Osman 218 Conn. 432, 437, 589 A.2d 1227 (1991). In this case, however, the evidence is simply too attenuated to support the judgment of conviction for robbery in the first degree.

The judgment is reversed as to the conviction of robbery in the first degree only and the case is remanded with direction to render judgment of not guilty on that charge.

In this opinion the other judges concurred.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       Judgment of conviction also entered against the defendant for larceny in the first degree in violation of General Statutes §§ 53a-119 (8) and 53a-122 (a) (2) that arose out of an alleged ear theft. The defendant does not appeal from this conviction. The jury acquitted the defendant of carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b).

       The trial court explained the circumstances to the jury as follows: “Now there is evidence before you as to the ability of that gun which is in evidence [the .38 caliber revolver] to discharge a shot. But there is no evidence about the shotgun, alleged shotgun, or this automatic being able to discharge a shot . . . .”

       In light of our holding with respect to the defendant’s first claim, we need not address the defendant’s second claim.

       We note that in some instances it is appropriate to remand the case with direction to modify the judgment so as to reflect a conviction for a lesser included offense. State v. Carpenter, 214 Conn. 77, 85, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, U.S. , 112 S. Ct. 877, 116 L. Ed. 2d 181 (1992); State v. McNeil, 21 Conn. App. 519, 523, 574 A.2d 1314, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990). Under the information of this case, however, second degree robbery is not a lesser included offense of first degree robbery. State v. Dolphin, 203 Conn. 506, 516-18, 525 A.2d 509 (1987); State v. King, 6 Conn. App. 247, 252, 504 A.2d 560 (1986).


author: Heiman, J.

text:
    Citicorp Mortgage, Inc. v. Cynthia D’Avanzo Cynthia D’Avanzo v. Citicorp Mortgage, Inc.
    (11960) (11493)
    Dupont, C. J., Laveky and Heiman, Js.
    Argued April 30
    decision released June 15, 1993

      Kevin A. Coles, for the appellant (defendant in the first case, plaintiff in the second case).

      Deborah L. Dorio, with whom were Lloyd Cowinger and, on the brief, William F. Beckert, legal intern, for the appellee (plaintiff in the first case, defendant in the second case).
   Heiman, J.

Cynthia D’Avanzo appeals (11493) from the trial court’s denial of her request for a temporary and permanent injunction. She also appeals (11960) from the deficiency judgment rendered against her by the trial court in a foreclosure action brought by Citicorp Mortgage, Inc. We affirm the judgments of the trial court.

The following facts are necessary for a resolution of these appeals. On December 14,1988, Citicorp loaned D’Avanzo $110,000. In turn, she signed a note and executed a mortgage on real property located at 173 Lawn Avenue, Stamford, to secure the loan. The property was substantially damaged by fire on June 26, 1991. In August, 1991, Citicorp brought an action seeking foreclosure of the mortgage, possession of the property, money damages, reasonable attorney’s fees, interest, costs, deficiency judgment, and such other and further relief that the court may deem just and equitable. In October, 1991, the court granted Citicorp’s motion for default for failure of D’Avanzo to appear. In December, 1991, the court granted Citicorp’s motion for strict foreclosure and set a law day of January 14, 1992. Citicorp mailed notice of judgment and taxation of costs to D’Avanzo.

On January 14,1992, Citicorp filed a motion to open the judgment and reset the law day. Citicorp telephoned D’Avanzo in order to notify her of the hearing scheduled on the motion, but was unable to contact her. D’Avanzo thus had no notice of the motion or hearing prior to the proceedings. On that date, the trial court granted Citicorp’s motion and set a new law day of June 15, 1992.

On March 2,1992, D’Avanzo filed an appearance in the mortgage foreclosure action and filed an objection to the motion to open the judgment and reset the law day and a motion to reargue. In both motions, she asserted that she lacked notice of the motion to open and an opportunity to be heard until after Citicorp’s motion to open was already heard and granted.

On March 20, 1992, D’Avanzo brought an action seeking temporarily and permanently to enjoin Citicorp from seeking satisfaction of its debt by any means, including resort to fire insurance proceeds, seeking an order declaring that the trial court’s granting of the motion to open the judgment on January 14, 1992, to be null and void, and seeking such other relief as the court deemed equitable and just.

On June 4, 1992, the trial court issued a memorandum of decision. It found that Citicorp sent notice of the December 9, 1991 judgment of strict foreclosure and the January 14,1992 judgment opening the strict foreclosure. The court found, however, that D’Avanzo was not provided with prior notice of the filing of the motion to open the judgment nor was she provided with an opportunity to be heard prior to action being taken on that motion. The court also found that the motion to open the judgment and to reset the law day constituted a pleading asserting new or additional claims for relief within the meaning of Practice Book § 121 (c). The court denied D’Avanzo’s motion for temporary and permanent injunction. On June 10, 1992, the trial court granted her motion to reargue the motion to open in the foreclosure action and then, after a hearing, overruled her objection to the motion to open. D’Avanzo did not, however, appeal from the overruling of the latter motion.

On June 24, 1992, Citicorp filed a motion for deficiency judgment. The court granted the motion on November 23, 1992, and found the deficiency to be $31,681.72.

On June 22, 1992, D’Avanzo filed her appeal in the first case from the denial of her motion for temporary and permanent injunction. On December 7, 1992, she filed her appeal in the second case.

I

(11960)

In her second appeal, D’Avanzo asserts that (1) she was entitled to rely on the judgment of strict foreclosure that was granted on December 9,1991, (2) the trial court improperly issued a deficiency judgment in favor of Citicorp because, as a matter of law and equity, Citicorp was not entitled to a deficiency judgment, (3) the deficiency judgment rendered by the court violates her due process rights under the fourteenth amendment to the constitution of the United States, and (4) the trial court, by granting Citicorp’s motion for deficiency judgment, has endorsed and approved a violation of her constitutional rights and rights secured under Practice Book § 354.

According to D’Avanzo, she does not seek on this appeal to set aside the vesting of title to the premises in Citicorp, but rather she is attempting to prevent Citicorp from taking any further collection action on the note by way of a deficiency judgment.

Once title has passed in a strict foreclosure, a final judgment has occurred that cannot be opened. General Statutes § 49-15; Bank of Stamford v. Alaimo, 31 Conn. App. 1, 8, 622 A.2d 1057 (1993). Pursuant to General Statutes § 49-14, within thirty days after the time for redemption has expired, the mortgagee may file a motion seeking deficiency judgment, as Citicorp did in this case. “Any claims by the defendant that were made or could have been made in the foreclosure proceeding cannot be relitigated in the deficiency hearing. . . . Some defenses may be raised to a motion for deficiency judgment, but not those that were or could have been raised in the foreclosure hearing. Maresca v. DeMatteo, 6 Conn. App. 691, 506 A.2d 1096 (1986) (defense of usury) (timeliness of the filing of a motion for deficiency judgment in a strict foreclosure); see also Baybank Connecticut, N.A. v. Thumlert, 222 Conn. 784, 610 A.2d 658 (1992) (the defense of laches as to the issue of timeliness in filing the motion for deficiency in a foreclosure by sale proceeding under General Statutes § 49-28); Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 409 A.2d 1020 (1979) (the constitutionality of § 49-14).” Bank of Stamford v. Alaimo, supra, 9-10. The purpose of these deficiency proceedings is to determine through a hearing the value of the property that has been foreclosed as of the date title vests in the mortgagee and to award the difference between that value and the amount of the debt as established by the foreclosure judgment. Id., 7; Di Diego v. Zarro, 19 Conn. App. 291, 294, 562 A.2d 555 (1989).

Here, D’Avanzo failed to appeal from the overruling of her objection to the motion to open. This overruling occurred prior to the date on which title vested in the bank. Had she appealed from the disposition of that motion, she would have been permitted to raise her claims of lack of notice and the deprivation of her due process rights that may have arisen out of Citicorp’s failure to notify her of the motion to open and the subsequent hearing on that motion. Once title vested in Citicorp, however, she was precluded from raising these issues because a final judgment had entered that could not be opened. See General Statutes § 49-15. Her attempt to make these challenges at the deficiency hearing and on appeal can be to no avail since these claims are not proper defenses to a motion for deficiency judgment, but rather might be defenses to the foreclosure action.

II

(11493)

In her first appeal, D’Avanzo asserts that the trial court improperly (1) denied her motion for temporary and permanent injunction, (2) failed to prohibit Citicorp from seeking satisfaction of its debt by any means, including insurance proceeds, and (3) failed to determine that the trial court’s order opening the judgment in the foreclosure action was null and void.

The granting or denial of injunctive relief rests within the discretion of the trial court. Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992); Dukes v. Durante, 192 Conn. 207, 225, 471 A.2d 1368 (1984); Harvey v. Daddona, 29 Conn. App. 369, 377, 615 A.2d 177 (1992). To obtain such relief, the applicants must demonstrate that they would suffer irreparable harm and that they lack an adequate remedy at law. Walton v. New Hartford, supra; Stocker v. Waterbury, 154 Conn. 446, 449, 226 A.2d 514 (1967); Harvey v. Daddona, supra. Our review of the trial court’s denial of injunctive relief is limited to determining whether the decision was based on erroneous statements of law or on an abuse of discretion. See Walton v. New Hartford, supra; Harvey v. Daddona, supra. Demonstrating that the trial court has abused its discretion is a difficult task. “Our appellate decisions emphasize that an abuse of discretion leading to a reversal is rare.” Madigan v. Madigan, 224 Conn. 749, 758, 621 A.2d 258 (1993).

Our review of the entire record reveals that the trial court did not abuse its discretion in denying D’Avanzo’s application for a temporary or permanent injunction. In her application for injunctive relief, D’Avanzo asserted that “if [Citicorp] is allowed to satisfy [her] debt by seeking and receiving insurance proceeds, there will be no redress for the loss of rights suffered by the plaintiff as a result of the ex parte and unilateral actions of [Citicorp] taken without notice and an opportunity to be heard.” In her complaint praying for injunctive relief, D’Avanzo asserted that “[a]s a result of [Citicorp’s] unilateral actions taken ex parte and without any notice to the plaintiff, [she] was deprived of the right to rely upon the judgment of the Superior Court and of the effect of that judgment and the law days ordered.” She further asserted that “[a]s a direct result of [Citicorp’s] actions, [she] has been deprived of her constitutional rights of notice, of a hearing, of an opportunity to appear and be heard, and due process of law and equal protection of the laws as guaranteed to her under the Constitutions of the United States of America and the State of Connecticut.”

D’Avanzo has failed to demonstrate that she would suffer irreparable harm if the injunctive relief was denied. She had a full opportunity to challenge the opening of the judgment and resetting of the law day when the court granted her motion to reargue and conducted a hearing on her objection to Citicorp’s motion to open. The court found that it would be more appropriate for D’Avanzo to raise her claims during the hearing on the motion to reargue and on the objection to the motion to open. Any alleged constitutional defect was cured by the hearing on the objection to Citicorp’s motion to open. The trial court did not abuse its discretion in denying the motion for injunctive relief.

The judgments are affirmed.

In this opinion the other judges concurred.

       Citicorp mailed a copy of the motion to D’Avanzo on January 14,1992.

       Practice Book § 121 (c) provides: “Any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties.”

       Although the filing of the appeal from the judgment denying D’Avanzo’s request for a temporary and permanent injunction preceded her filing of her appeal from the deficiency judgment, for purposes of clarity, the latter appeal will be analyzed first.

       Practice Book § 354 provides: “A notice of every nonsuit for failure to enter an appearance or judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed forthwith by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shall be sent to the clerk’s office. Proof of service shall be in accordance with See. 123.”

       D’Avanzo asserts in her brief that “[h]ad the judgment not been reopened, Citicorp would have taken absolute title to the property on January 15,1992, and its right to seek a deficiency judgment would have expired through a lapse of time.”

       Moreover, any alleged constitutional defect concerning lack of notice and due process violations was cured by the trial court’s granting of her motion to reargue and hearing her objection to the motion to open the judgment and to reset the law day.

       Our resolution of D’Avanzo’s second and third claims in appeal (11493) is controlled by our holding in her appeal from the deficiency judgment. See part I, supra.


text:
    Board of Education of the Town of Wallingford v. Local 1282, District 1, Communications Workers of America, AFL-CIO
    (11160)
    Lavery, Heiman and Schaller, Js.
    Argued April 1
    decision released June 15, 1993

      Lawrence J. Campane, with whom, on the brief, was Mark J. Sommaruga, for the appellant (plaintiff).

      Anne Goldstein, for the appellee (defendant).
   Schaller, J.

The plaintiff appeals from the trial court’s judgment dismissing its application to vacate an arbitration award on the ground of improper service of process. The plaintiff claims that the trial court improperly concluded (1) that the plaintiff had not effected service of process in accordance with General Statutes § 52-57 (e), and (2) that § 52-57 (e) requires that service of process on a voluntary association must be made on one of the officers listed in subsection (e) of the statute. In its reply brief, the plaintiff further claims that the service of process requirements of § 52-57 (e) are not applicable in the context of a motion to vacate an arbitration award. We affirm the judgment of the trial court.

The facts pertinent to the resolution of this appeal are as follows. The defendant, Local 1282, District 1, Communications Workers of America, AFL-CIO, is a voluntary association. At all times relevant to the subject matter of this case, the defendant represented fifty-eight management employees of the town of Walling-ford, four of whom were employees of the plaintiff, the Wallingford board of education.

In 1990, the plaintiff discharged Nelson Kari, who held a managerial position and was a member of the defendant’s collective bargaining unit. The matter proceeded to arbitration pursuant to a collective bargaining agreement between the plaintiff and the defendant. On August 21, 1991, an arbitrator issued an award finding that the plaintiff did not have just cause to discharge Kari. The plaintiff moved to vacate the award on September 12, 1991.

At the time the plaintiff filed its application to vacate, the president and presiding officer of the defendant was John Bruce. He was a Connecticut resident, as were the defendant’s secretary and its treasurer. The plaintiff did not serve process on these individuals or any other officer of the defendant. Instead, it served process on Gerald Powers, who was employed by the plaintiff as a supervisor of buildings and grounds. Powers was neither the presiding officer nor the secretary or the treasurer of the defendant. He was merely a member of the union.

The plaintiff made additional attempts to serve the application. It left the application at the defendant’s office in North Haven and with the secretary of the state. The plaintiff also mailed the application to the international staff representative of Communications Workers of America in Washington, D.C., and to the international staff representative of Communications Workers of America at the defendant’s offices in North Haven.

On October 29, 1991, the defendant filed a motion to dismiss the application, asserting that the court lacked personal jurisdiction over the defendant because the plaintiff had failed to serve process on the defendant in accordance with § 52-57 (e). After a hearing, the trial court granted the defendant’s motion to dismiss. This appeal followed.

I

The plaintiff first claims that the trial court improperly concluded that the plaintiff had not effected service of process in compliance with General Statutes § 52-57 (e). Section 52-57 (e) provides in relevant part that “[i]n actions against a voluntary association, service of process may be made upon the presiding officer, secretary or treasurer.”

Where a particular method of serving process is pointed out by statute, that method must be followed. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163 n.8, 561 A.2d 931 (1989); Hyde v. Richard, 145 Conn. 24, 25, 138 A.2d 527 (1958); FitzSimmons v. International Assn. of Machinists, 125 Conn. 490, 493, 7 A.2d 448 (1939). Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction. Tarnopol v. Connecticut Siting Council, supra; Hyde v. Richard, supra; FitzSimmons v. International Assn. of Machinists, supra. The designation of a particular officer or officers on whom service may be made excludes all others. Tarnopol v. Connecticut Siting Council, supra; Hyde v. Richard, supra. Further, the nature of the position, rank, and responsibilities of the person served is a question of fact. Nelson v. Stop & Shop Cos., 25 Conn. App. 637, 596 A.2d 4 (1992).

Here, the trial court properly determined that the plaintiff failed to comply with § 52-57. As the trial court stated in its articulation, none of the three officers listed in the statute was served, and service on the secretary of the state would be appropriate only if none of the three officers was a resident of Connecticut. The statute specifically refers to “the” presiding officer. The defendant’s presiding officer was John Bruce, not Gerald Powers. The plaintiff in the present case was required to serve one of several designated officers of the voluntary organization. General Statutes § 52-57 (e). On the basis of the facts before it, the trial court properly found that those persons served lacked sufficient authority to qualify as appropriate agents for purposes of § 52-57 (e).

II

The plaintiff next claims that the trial court improperly concluded that service of process on a voluntary association must be made on one of the officers listed in § 52-57 (e). The plaintiff argues that the use of the term “may” in § 52-57 (e) evinces the legislature’s intent merely to suggest a procedure for service of process on a voluntary association. This argument is without merit.

As previously stated, the designation in a statute of a particular officer or officers on whom service may be made excludes all others. Tarnopol v. Connecticut Siting Council, supra; Hyde v. Richard, supra. Accordingly, we reject the plaintiff’s interpretation that § 52-57 (e) sets forth merely suggested procedures for service of process. Where a statute prescribes a method for service of process, a plaintiff must comply with the statute. FitzSimmons v. International Assn. of Machinists, supra.

Ill

The plaintiff’s final contention is that an application to vacate an award of arbitration is not a civil action. Thus, according to the plaintiff, § 52-57 (e) does not apply. We decline to review this claim because the plaintiff failed to raise it in the trial court.

Throughout the trial court proceedings, the parties agreed that § 52-57 (e) governed the service of process. The court conducted a hearing on the motion to dismiss at which the sole issue was whether the plaintiff complied with § 52-57 (e). At the hearing, the parties adduced testimony concerning who would qualify as the defendant’s “presiding officer” within the aegis of § 52-57 (e). It follows, therefore, that the plaintiff cannot now argue that this statute did not govern its conduct. Furthermore, the assertion that § 52-57 (e) is inapplicable first appears in the plaintiff’s reply brief. We, accordingly, decline to review the plaintiff’s claim that § 52-57 (e) is not dispositive in this case. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988) (only in the most exceptional circumstances will an appellate court consider a claim that was not raised in the trial court); Fiddleman v. Red-mon, 31 Conn. App. 201, 213, 623 A.2d 1064 (1993) (criticizing practice whereby a party receives an unfavorable trial court decision and then attempts to impeach it for reasons known to the party before or during the proceeding); Protter v. Brown Thompson & Co., 25 Conn. App. 360, 363-64 n.2, 593 A.2d 524 (1991) (refusing to review a claim raised for the first time in a reply brief).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-57 (e) provides in pertinent part: “In actions against a voluntary association, service of process may be made upon the presiding officer, secretary or treasurer. If all of such officers are not residents of the state and the voluntary association is doing business, acting or carrying out its operations or its functions within the state, the voluntary association shall be deemed to have appointed the secretary of the state as its attorney and to have agreed that any process in any civil action brought against it may be served upon the secretary of the state and that the process shall have the same validity as if served personally upon the presiding officer, secretary or treasurer of the voluntary association. ...”