text:
    Deborah J. Isaac, Administratrix (Estate of Redgnard Isaac) v. Mount Sinai Hospital et al.
    (2505)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued February 6
    decision released April 23, 1985

      Richard A. Bieder, with whom, on the brief, was Brenda C. Morrissey, for the appellant (plaintiff).

      Andrew J: O’Keefe, with whom were Maureen A. Sullivan and, on the brief, Denise M. Phelan, for the appellee (defendant Anesthesia Associates, P.C.).

      April Haskell, for the appellee (named defendant).

      Louis B. Blumenfeld, for the appellee (defendant St. Francis Hospital).

      Lois Tanzer, for the appellee (defendant Richard Weltman).
   Spallone, J.

This is an appeal from the dismissal of a wrongful death action brought pursuant to General Statutes § 52-555.

The decedent, Redgnard Isaac, died on April 20, 1979, while a patient at the defendant Mount Sinai Hospital. On March 30,1981, the plaintiff, who is the decedent’s daughter, filed a wrongful death action in which she alleged negligence in the treatment of the decedent by Mount Sinai Hospital and by the other defendants, St. Francis Hospital, physician Richard B. Weltman and Anesthesia Associates, P.C. The plaintiff also alleged in the complaint that she had been appointed administratrix of the decedent’s estate on or about May 17, 1979. In the summer of 1982, she apparently discovered that she had only been authorized under General Statutes § 45-266 to handle survivorship property and had not, in fact, been appointed as administratrix. She was ultimately appointed administratrix of the decedent’s estate on September 28, 1982.

On February 4, 1983, Anesthesia Associates, P.C., moved to dismiss the action for lack of subject matter jurisdiction. The motion to dismiss, in which the other defendants joined, rested on the ground that the plaintiff had failed to comply with the requirement of General Statutes § 52-555, which provides that an “executor or administrator” may recover thereunder. On March 25,1983, the plaintiff requested permission to amend her complaint to reflect that she had been duly appointed administratrix of the estate on September 28,1982, and moved to be substituted, in her capacity as administratrix, as party plaintiff. The trial court granted the motion to dismiss and the plaintiff appealed.

The trial court correctly considered the defendants’ motion to dismiss before reaching the plaintiffs request to amend and motion to substitute. When a question of jurisdiction is brought to the court’s attention, that issue must be resolved before the court can move on to other matters. Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297-98, 441 A.2d 183 (1982). This would appear to be particularly true where the question raised concerns subject matter, as opposed to personal, jurisdiction. See id., 298-99 (Peters, J., concurring).

“It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue. 59 Am. Jur. 2d, Parties, §§ 20, 21. ‘An estate is not a legal entity. It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent.’ Bar Association v. Connecticut Bank & Trust Co., 20 Conn. Sup. 248, 262 [131 A.2d 646 (1957)]. Not having a legal existence, it can neither sue nor be sued. Vonchina v. Estate of Turner, 154 Cal. App. 2d 134 [315 P.2d 723 (1957)]; 2 Locke & Kohn, Conn. Probate Practice § 375.” Estate of Schoeller v. Becker, 33 Conn. Sup. 79, 79-80, 360 A.2d 907 (1975).

General Statutes § 52-555 creates a cause of action that may be maintained only by an executor or administrator of an estate. Keogh v. Bridgeport, 187 Conn. 53, 58, 444 A.2d 225 (1982). “ ‘Death, at common law, is not a recoverable element of damage.’ Foran v. Carangelo, 153 Conn. 356, 359 [216 A.2d 638 (1966)], citing Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668 [136 A.2d 918 (1957)], and 22 Am. Jur. 2d, Death, § 1. It is only by reason of statute that a death action is maintainable in Connecticut. General Statutes § 52-555. This statute provides for the bringing of such an action by either an executor or an administrator; it does not confer on anyone else, including the parents of a decedent, any right to bring such an action individually.” Cofrancesco v. Smith, 29 Conn. Sup. 139, 141-42, 275 A.2d 608 (1971).

Under General Statutes § 52-555, standing to bring a wrongful death action is thus conferred only upon either an executor or an administrator. By the defendants’ motion, the plaintiffs standing to request an adjudication has been challenged. Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978). The focus is properly upon the party wishing to get his complaint before the court and not upon the issues he wishes to have adjudicated. Berlin v. Santaguida, 181 Conn. 421, 423, 435 A.2d 980 (1980).

At the time the plaintiff brought this action, she erroneously alleged that she brought it as the administratrix of the decedent’s estate. The plaintiff was not issued letters of administration, however, until September 28, 1982, more than three years after the alleged malpractice and more than one year after she initially brought suit. By the time she was appointed administratrix, the three year limitation for bringing an action under General Statutes § 52-555 had passed. That limitation is an essential element of the cause of action under the statute and, as such, it must be strictly observed. See DeMartino v. Siemon, 90 Conn. 527, 528-29, 97 A. 765 (1916). “The general rule is that a time limitation on the enforcement of a right, created by statute and not existing at common law, is a part of that right and must be met in order to provide a court with jurisdiction to hear the cause of action. Karp v. Urban Redevelopment Commission, 162 Conn. 525, 529, 294 A.2d 633 (1972).” Wilburn v. Mount Sinai Medical Center, 3 Conn. App. 284, 288, 487 A.2d 568 (1985); see Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).

The plaintiffs argument that the court should have permitted her to amend the complaint is without merit. The named plaintiff in the original complaint never existed. As a consequence, there was no legally recognized entity for which there could be a substitute.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-555 provides: “In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.”


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Agapito Lopez v. United Nurseries, Inc.
    (2782)
    Dupont, C.P.J., Callahan and Cioffi, Js.
    Argued February 21
    decision released April 23, 1985

      David C. Shaw, with whom, on the brief, were Frank Cathcart and Jeffrey M. Christian, for the appellant (plaintiff).

      Donn A. Swift, for the appellee (defendant).
   Callahan, J.

The plaintiff appeals from the trial court’s granting of the defendant’s motion for summary judgment.

The plaintiff, Agapito Lopez, was employed by the defendant, United Nurseries, Inc., as a farm worker in Virginia. In connection with the plaintiff’s employment, the defendant supplied him with housing at a nominal cost. The plaintiff was assigned to a trailer to which one Hector Serrano, another of the defendant’s employees, was also assigned. The plaintiff alleges that while asleep in the trailer he was assaulted and suffered severe injuries when he was beaten about the head and face with a club by Serrano. The plaintiffs revised complaint contains three separate counts all sounding in negligence relating to the defendant’s hiring of Serrano and its failure to provide the plaintiff with safe housing. The revised complaint states that the assault occurred on or about June 12,1980. Suit was not filed until June 17, 1982, five days after the expiration of the applicable statute of limitations. General Statutes § 52-584.

In its answer, the defendant claimed, by way of special defense, that all three negligence counts were barred by General Statutes § 52-584. The plaintiff’s reply to the defendant’s special defense alleged that as a result of the beating he was for several months disabled and physically and mentally incapable of asserting his rights against the defendant, and that he was legally incompetent and should have been adjudicated as such. There is also an allegation that he was hospitalized in Virginia until August 1, 1980, during which time his access to the courts of this state was impaired.

The defendant filed a motion for summary judgment as to all three counts of the revised complaint on the ground that they were barred by General Statutes § 52-584. The defendant’s motion for summary judgment was filed without supporting affidavits, instead relying on the pleadings and the plaintiff’s responses to the defendant’s request for admissions which were part of the court file.

The plaintiff filed a counter-affidavit in opposition, in which he averred that he was, as a result of the beating by Serrano, rendered mentally disabled and incapable of asserting his rights and that this period of incompetency lasted for several months.

The plaintiff claims that the trial court erred (1) in granting the motion without supporting affidavits, (2) in concluding that there was no genuine issue as to any material fact since there were factual questions concerning the extent of the plaintiff’s disability and the circumstances under which he had sustained his injuríes, and (3) in concluding that the allegations in the plaintiffs reply to the defendant’s special defense would not toll the provisions of General Statutes § 52-584.

The facts on which the defendant relies in its motion for summary judgment are uncontroverted and admitted in the pleadings and the plaintiff’s responses to the defendant’s request to admit. Under the circumstances, affidavits or further documentation were unnecessary. Practice Book § 380.

We find that the only material facts at issue in the defendant’s motion for summary judgment are the date of the assault, June 12, 1980, and the date the action was filed, June 17, 1982. Those facts are admitted. Material facts are defined as facts which will make a difference in the result. Barrett v. Southern Connecticut Gas Co., 172 Conn. 362, 378, 374 A.2d 1051 (1977). Facts other than the date of the assault and the date the action was filed were not material to the trial court’s decision on the motion for summary judgment, unless the applicable statute of limitations is tolled because of facts asserted in the plaintiff’s counter-affidavit.

“The rule that the court will not read exceptions into statute of limitations applies in the case of persons non compos mentis. Generally if there is no exception in favor of incompetents, the statute will run against claims in their favor the same as against claims of others not expressly mentioned in the exceptions of the statute.” 51 Am. Jur. 2d, Limitation of Actions § 186.

General Statutes § 52-584, provides no exceptions for minors; Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 92 A.2d 731 (1952); nor does it provide an exception for insane persons. Kirwan v. State, 168 Conn. 498, 501-502, 363 A.2d 56 (1975). Even if the statute were tolled in the event a person has been formally adjudicated as incompetent or should have been and no provision has been made to insure that such person’s interests are adequately protected; see Ridgeway v. Ridgeway, 180 Conn. 533, 539, 429 A.2d 801 (1980); Kirwan v. State, supra, 502-503; Hobart v. Connecticut Turnpike Co., 15 Conn. 145, 148 (1842); neither the pleadings nor the plaintiff’s counter affidavit contain facts which indicate that such is the case here. The pleadings aver a head injury. The plaintiff’s counter-affidavit states that the plaintiff was rendered mentally disabled and incapable of asserting his rights. That mere assertion is insufficient to establish the existence of a material, relevant fact.

“A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377-78, 260 A.2d 596 (1969).” Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983); see Herman v. Endriss, 187 Conn. 374, 446 A.2d 9 (1982). “Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed relevant factual issue.” (Citations omitted.) Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257, 1259 (1984). It is not enough for the opposing party merely to assert the existence of such a disputed issue. The nonexistence of an issue of fact is not rebutted by the bald statement that an issue of fact does exist. Id.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] See. 52-584. limitation of action for injury to person or property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       Other Connecticut statutes of limitations do provide exceptions. General Statutes §§ 52-575, 52-576, 52-579 and 52-594.


author: Borden, J.

text:
    State of Connecticut v. Paulino Dumlao State of Connecticut v. Aurora Dumlao
    (2884)
    (2954)
    Hull, Borden and Spallone, Js.
    Argued January 18
    decision released April 30, 1985

      Gilbert Shasha, for the appellant (defendant Paulino Dumlao).

      Richard Singer, public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant Aurora Dumlao).

      Irving L. Aronson, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, state’s attorney, for the appellee (state).
   Borden, J.

The defendants, Paulino and Aurora Dumlao, were charged with the crimes of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and injury or risk of injury to a child in violation of General Statutes § 53-21, and were tried together. The jury found each of them not guilty of the charge of assault but convicted them each of injury or risk of injury to a child. The defendants appeal separately from their convictions, claiming in large part that the court erred in admitting certain evidence and that the evidence was insufficient for conviction. We find no error.

The jury could reasonably have found the following facts: On March 7,1983, the defendants’ two year old daughter was hospitalized at Yale-New Haven Hospital after being transferred from the Naval Hospital in Groton where she was referred by a local pediatrician. The child, at the time the defendants took her to the pediatrician and she was hospitalized, was in pain, generally unresponsive to her environment, covered with abrasions and bruises, including an open lesion the size of a nickel under the left eye, severely dehydrated, and had internal abdominal injuries which were later diagnosed as a fractured spleen, pancreatitis and liver dysfunction. The child’s overall symptoms were properly diagnosed as battered child syndrome. Because her injuries were life-threatening, she was placed in intensive care. She had to be fed intravenously for two weeks. The medical history given by the defendant Paulino to the doctors was inconsistent with the child’s injuries. The injuries occurred within approximately seven days prior to the child’s arrival at the hospital.

The trial court granted the defendants’ motion in limine in part, barring any reference in the evidence to the terms “battered” or “abused child,” but permitting the use of the term “battered child syndrome.” The court denied the defendants’ motions for judgment of acquittal, made at the close of the state’s case and when the defendant Paulino had rested, on the basis that the state had made out prima facie cases which should be submitted to the jury.

I

Appeal of the Defendant Paulino Dumlao

A

We first address the claims of the defendant Paulino Dumlao, beginning with his argument that the court improperly admitted expert testimony on the issue of the battered child syndrome. The defendant argues that such testimony was inflammatory, implying misconduct by the defendants, and was an opinion on the ultimate issue of the case, effectively depriving the jury of their function to determine guilt or innocence. We disagree.

Expert testimony is permitted, in the court’s discretion, “ ‘if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.’ ” State v. Esposito, 192 Conn. 166, 175, 471 A.2d 949 (1984). Battered child syndrome has become a well established medical diagnosis. Commonwealth v. Labbe, 6 Mass. App. 73, 77, 373 N.E.2d 227 (1978); State v. Tanner, 675 P.2d 539, 542-43 (Utah 1983); see State v. Tucker, 181 Conn. 406, 411, 435 A.2d 986 (1980). Expert medical testimony that a child suffered from battered child syndrome has consistently been held admissible in other jurisdictions. See, e.g., United States v. Bowers, 660 F.2d 527 (5th Cir. 1981); Bell v. State, 435 So. 2d 772 (Ala. Crim. App. 1983); People v. Jackson, 18 Cal. App. 3d 504, 95 Cal. Rptr. 919 (1971); Commonwealth v. Labbe, supra; State v. Goblirsch, 309 Minn. 401, 246 N.W.2d 12 (1976); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Tanner, supra, 543; annot., 98 A.L.R.3d 306.

“[T]he ‘battered child syndrome’ simply indicates that a child found with [certain types of injuries] has not suffered those injuries by accidental means. This conclusion is based upon an extensive study of the subject by medical science.” People v. Jackson, supra, 507; State v. Wilkerson, supra; State v. Tanner, supra. A diagnosis of battered child syndrome is often indicated when a child’s injuries do not jibe with the history given by the parent. See State v. Tanner, supra, 542; McCoid, “The Battered Child and Other Assaults Upon the Family: Part One,” 50 Minn. L. Rev. 1, 18-19 (1965). A properly qualified expert medical witness, therefore, may appropriately explain the syndrome to the jury and express his opinion that the victim suffers from it. Cf. People v. Reid, 123 Misc. 2d 1084, 475 N.Y.S.2d 741 (1984). We agree with the Utah Supreme Court that “trial courts [must] weigh carefully the probative value against the potential for undue prejudice that may be created by the use of the term ‘battered child syndrome.’ The term should not be applied broadly or as a generalization. The expert should be able to testify in detail regarding the nature of the child’s injuries and whether the explanation given for the injuries is reasonable. Any deficiencies in the testimony, however, go to its weight rather than to its admissibility. The weight and credibility to be given an expert’s testimony are matters to be decided by the factfinder. Defense counsel may of course challenge the testimony on cross-examination, but such challenge goes to the weight to be given the testimony, not to its admissibility. See State v. Clayton, Utah, 646 P.2d 723, 726 (1982).” State v. Tanner, supra, 543-44.

The expert witness should not be permitted to testify whether “the battered child syndrome from which this victim suffered was in fact caused by any particular person or class of persons engaging in any particular activity or class of activities”; State v. Wilkerson, supra, 570; the purpose of this kind of testimony is “not accusatory” and has no bearing on the defendant’s culpability. S tate v. Tanner, supra, 542. On the other hand, evidence of battered child syndrome, coupled with other proof, such as a continuing opportunity to inflict the injuries, may permit an inference not only that the injuries were not accidental but also that they were incurred by one who regularly cares for the child. People v. Jackson, supra; State v. Tanner, supra, 542 n.2; see also United States v. Bowers, supra; People v. Henson, 33 N.Y.2d 63, 74, 304 N.E.2d 358, 349 N.Y.S.2d 665 (1973).

William Hellenbrand, a physician at Yale-New Haven Hospital, testified in detail about the child’s injuries. He stated that battered child syndrome is an accepted medical term that is diagnosed “when a child suffers an injury or injuries . . . because of physical trauma done to the child by another individual.” He testified that his examination of the child, indicating inflammation of the pancreas, a fractured spleen, damage to the liver, hematoma or collection of blood within the abdomen, and multiple bruises, fit within the classic description of battered child syndrome. He further testified that the explanation given by the parents’ medical history did not adequately explain the severity of the injuries.

Hellenbrand’s testimony was within his field of expertise and linked the child’s injuries to the diagnosis of battered child syndrome. It was not a broad discussion of battered children or child abuse, and no accusations of who might have caused the injuries were made by him or any of the other doctors who testified. The court carefully excluded the use of inflammatory terms such as “child abuse” or “abused child,” and properly permitted the presentation of battered child syndrome solely as a medical diagnosis. Such testimony, like other medical testimony, is of obvious aid to the jury in its determination of the ultimate issue of guilt or innocence of the defendant. State v. Esposito, supra. If used appropriately, as it was in this case, it is not inflammatory and does not invade the province of the jury to determine guilt or innocence.

B

The defendant’s next argument involves the sufficiency of the evidence to convict him. Included in this argument is the claim that his conviction was improperly based on circumstantial evidence. This claim is without merit. “[Triers of fact] necessarily rely upon circumstantial evidence and are entitled to draw reasonable and logical inferences from all the facts. ‘There is no distinction between direct and circumstantial evidence as far as probative force is concerned.’ State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981).” Monroe v. Crandall, 3 Conn. App. 214, 220, 486 A.2d 657 (1985). Circumstantial evidence may be used, therefore, to establish the elements of the crimes charged. State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). The jury may make reasonable, logical inferences from the evidence. Id.

We therefore turn to the challenge to the sufficiency of the evidence. When a jury verdict is challenged on the ground that the evidence is insufficient to sustain the verdict, this court reviews whether “[t]he jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” State v. Giorgio, 2 Conn. App. 204, 211, 477 A.2d 134 (1984). In ruling on such a motion, the evidence presented at the trial “ ‘must be given a construction most favorable to sustaining the jury’s verdict.’ ” State v. Failla, 1 Conn. App. 524, 527, 473 A.2d 1233 (1984).

The jury was presented with the following facts: The defendants’ child was taken to a local pediatrician, required hospitalization, and was transferred to the Naval Hospital and then to Yale-New Haven Hospital. The doctors who examined her found she was significantly dehydrated, had suffered severe internal, life-threatening injuries, and had multiple abrasions and bruises all over her body. The history was given to the doctors by Paulino. He said that his wife, the co-defendant, had told him that the child’s fifteen month old brother had hit the child with a toy car causing the injuries. He also told the doctors the child had vomited three or four times in the past couple of days. The doctors found this medical history inconsistent with the child’s injuries. The extent of the child’s dehydration was more severe than was normal for a child who had vomited three or four times. The bruises and scrapes on her body, some of which were from fingernails dug into her skin, occurred within approximately seven days prior to the child’s hospitalization, some within the previous twenty-four hours. She was diagnosed as suffering from battered child syndrome. During a visit to the hospital, the defendant asked a nurse, who had told him that he and his wife could not be left alone with the child, “[a]re you afraid I will injure the child again?” The defendant Aurora made a statement to the police reiterating that the injuries were due to the child’s younger brother hitting the child with a toy car, and stating that she never corrected her children by hitting them and that she never used a babysitter to take care of her children. The defendant Paulino was employed by the Navy, and elsewhere as a security guard and was at work a great deal of the time. He did not, however, work round-the-clock and could, from time to time, leave his job at the Naval Base during working hours.

The defendant argues that there are many possible understandings of what could have happened based on the state’s evidence. Of those potential constructions, the jury could reasonably have found from the evidence presented that the defendant permitted the child to be abused or failed to take action in connection with abuse of the child, in violation of General Statutes § 53-21. This statute prohibits permitting a child to be placed in a situation likely to endanger its life or limb or likely to injure its health; a failure to act when one is under a duty to do so, thereby permitting such a dangerous situation to exist, may be sufficient to support a conviction under this statute. See footnote 2, supra; see, e.g., State v. Adams, 89 N.M. 737, 557 P.2d 586 (1976); Cowley v. People, 83 N.Y. 464, 473-75 (1881); see also annot., 1 A.L.R.4th 38, 99-100.

The medical testimony indicated that the child’s injuries were life-threatening. She had serious internal injuries and was covered with abrasions and bruises, including nail marks; the injuries had been inflicted over a period of one week; and the child was in pain, severely dehydrated, and generally unresponsive, at times being unable to focus. The evidence supplied by this defendant showed that he worked two jobs and was absent from the home much of the time. It did not, however, indicate where the defendant was when he was not at work, and it did show that he was sometimes at home when he was supposed to be at work. For as long as twelve to sixteen hours on some days during the week the injuries were claimed to be inflicted, the defendant was available to have inflicted these injuries on the child himself or to observe the child’s condition and act prudently to do something about it. Contrary to the defendant’s contention, the extent of the child’s injuries indicates that the child would have appeared to be obviously injured even to an untrained eye. People v. Henson, 33 N.Y.2d 63, 69, 304 N.E.2d 358, 349 N.Y.S.2d 657 (1973).

The defendant had a duty to provide for the well-being of his daughter, including supplying medical care. See In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 15, 438 A.2d 801 (1981). Even if he did not know who or what produced the injuries, the jury could have found that the child was in a life-threatening situation and was in need of medical care, but that the defendant permitted her to remain in that situation. It is the province of the jury to resolve the facts and determine the credibility of testimony. See State v. Bember, supra, 398; State v. Gaynor, 182 Conn. 501, 504-505, 438 A.2d 749 (1980).

In this connection, the defendant claims that, because his question to the nurse, “Are you afraid I will injure the child again?”was susceptible of a construction consistent with innocence, in determining the sufficiency of the evidence we must give it that construction. We disagree.

The defendant’s claim is a variation on a commonly misapplied theme. That theme is that, in instructing the jury on the state’s burden of proof the court must charge that if any fact or piece of evidence is capable of two constructions, one consistent with innocence and one consistent with guilt, it must be given that construction consistent with innocence.

This theme, which is not a correct statement of our law, indicates confusion about the meaning of the principle, which is part of our law, that proof beyond a reasonable doubt “ ‘is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.’ ” State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984); State v. Hall, 165 Conn. 599, 603, 345 A.2d 17 (1973). The difference between the defendant’s claim and the principle stated in State v. Morrill, supra, and State v. Hall, supra, is the difference between the jury’s function in drawing inferences from specific facts or evidence and its function in coming to the ultimate conclusion as to guilt or innocence on the basis of all the evidence.

It is clear that, in viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); State v. Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955).

The Supreme Court has on infrequent occasion referred in dictum to the claim advanced by the defendant here. See State v. Martin, 195 Conn. 166, 173, 487 A.2d 177 (1985); State v. Moss, 189 Conn. 364, 367-68, 456 A.2d 274 (1983); State v. Maturo, 188 Conn. 591, 598-99, 452 A.2d 642 (1982). When specifically addressing the issue, however, the court has made it clear that it rejects the claim, and that the “two constructions” rule applies, not to any particular fact or piece of evidence, but only to the jury’s ultimate conclusion based on all the evidence including the inferences, adverse or favorable to the state or defendant, that it has drawn from that evidence.

In State v. Murphy, 124 Conn. 554, 562-63, 1 A.2d 274 (1938), the court rejected the defendant’s claim that the trial court erred by “its refusal to charge as requested to the effect that when any circumstance offered in evidence is susceptible to two inferences, one of which is in favor of guilt and the other of innocence, it must be disregarded and cannot be taken into consideration by the jury in reaching its conclusion. Such a rule would virtually eliminate circumstantial evidence as a means of proof. Whatever authority there may be in support of it in the federal courts in cases of conspiracy to violate federal statutes, as indicated by the dictum in Dickerson v. United States, 18 Fed. (2d) 887, 893 [8th Cir. 1927], relied upon by the accused, it has no place in the law of this State where the jury are entitled to draw all fair and reasonable inferences from the facts and circumstances which they find established by the evidence. It is not the generally accepted rule. Frick v. State, 177 Ark. 404, 409, 6 S. W. (2d) 514 [1928]; Jamison v. People, 145 Ill. 357, 380, 34 N.E. 468, 492 [1893]; Hinshaw v. State, 147 Ind. 334, 379, 47 N.E. 158, 172 [1897]; 5 Wigmore Evidence (2d Ed.) § 2497, p. 470; 2 Chamberlayne, Evidence, § 996d.”

In State v. Foord, supra, 294, the court reiterated its position: “It is, of course, true, as the defendants maintain, that any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused must prevail. State v. Guilfoyle, 109 Conn. 124, 139, 145 A. 761 [1929]. The same rule, however, does not apply to inferences.” (Emphasis added.)

In State v. Morrill, supra, 610, the court reaffirmed the holdings of State v. Murphy, supra, and State v. Foord, supra: “We also reject the defendant’s claim, which the trial court accepted, that the possibility that other alternative inferences could be drawn which might suggest guilt of a crime other than the specific crime charged in the information also required granting the motion to dismiss. ‘It is, of course, true . . . that any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused must prevail. State v. Guilfoyle, 109 Conn. 124, 139, 145 A. 761 [1929].’ State v. Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955). This court pointed out in Foord, however, that the same rule does not apply to inferences. Referring to State v. Murphy, 124 Conn. 554, 562,1 A.2d 274 (1938), the court in Foord pointed out that ‘the claim was advanced that when any circumstance offered in evidence is susceptible to two inferences, one which is in favor of guilt and the other of innocence, the circumstance must be disregarded and cannot be taken into consideration by the trier in reaching its conclusion. We there said (p. 562): “Such a rule would virtually eliminate circumstantial evidence as a means of proof . . . [and] it has no place in the law of this State where the jury are entitled to draw all fair and reasonable inferences from the facts and circumstances which they find established by the evidence.” ’ ”

The Second Circuit Court of Appeals follows the same reasoning. “We likewise do not accept the view, stated in an opinion cited by appellant, that ‘[A]n inference may not properly be relied upon in support of an essential allegation if an opposite inference may be drawn with equal consistency from the circumstances in proof.’ ” United States v. Taylor, 464 F.2d 240, 244 (2d Cir. 1972).

This position is consistent with the well established rule that, in ruling on a motion for judgment of acquittal based on the sufficiency of the evidence, both the trial court and this court must view the evidence in a light most favorable to sustaining the verdict of guilty. State v. Jacobowitz, 194 Conn. 408, 415, 480 A.2d 557 (1984); State v. Failla, 1 Conn. App. 524, 527, 473 A.2d 1233 (1984). It would be inherently anomalous to apply that standard and, at the same time, assume that only inferences consistent with innocence must be drawn.

Indeed, this case vivifies the fatal flaw in the defendant’s claim. The defendant’s question to the nurse, “Are you afraid I will injure the child again?” supplied a ready and reasonable basis for an inference by the jury adverse to him. Simply because he suggests that he meant something else, a meaning not as damaging to him, supplies no basis to deprive the jury of performing its classic function of drawing inferences of intent. State v. Giorgio, 2 Conn. App. 204, 211, 477 A.2d 134 (1984). We see nothing in history, reason, policy or the concept of proof beyond a reasonable doubt to require the jury to put on such blinders.

Viewing the evidence in the light most favorable to sustaining the verdict, therefore, and recognizing that in a case relying on substantial circumstantial evidence, it is “the cumulative impact of a multitude of facts” which establishes guilt; State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); see State v. Martin, 195 Conn. 166, 173, 487 A.2d 177 (1985); we conclude that the evidence was sufficient to support the verdict of guilty of injury or risk of injury to a child.

C

The defendant next argues that the court erred in using an analogy when instructing the jurors on the use of inferences when analyzing circumstantial evidence. “ ‘To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.’ State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984), quoting State v. Corchado, 188 Conn. 653, 660-61, 450 A.2d 427 (1983).” State v. Marshall, 3 Conn. App. 126, 129, 485 A.2d 930 (1985). Use of examples or illustrations injury instructions is proper to make a legal term “ ‘less abstract and more comprehensible.’ ” State v. Stepney, 191 Conn. 233, 247, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d. 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). The jury may be apt, however, to give undue weight to examples because they are easier to understand and they may simply compare the defendant’s actions to the example. Id. Caution must be taken, therefore, to indicate that the example is given only to illustrate a point and that the jury must follow the jury instructions as a whole. Id., 247-48.

A review of the record demonstrates that the court’s illustrations only clarified the jury’s ability to draw or abstain from drawing inferences. The court stressed to the jury that any inferences had to be reasonable and logical and reminded them that, regardless of the inferences they might draw, they must be satisfied that the defendant was guilty beyond a reasonable doubt. The instructions, read as a whole, did not prejudice the defendant and fairly presented the jury with the legal tools with which to fashion its determination of guilt or innocence.

There is no error.

II

Appeal of the Defendant Aurora Dumlao

A

The defendant Aurora Dumlao raises numerous claims on appeal, the first of which challenges the sufficiency of the evidence to convict her. We note first that the bill of particulars requested by this defendant stated that “the manner in which the defendant is alleged to have committed each of the offenses” was “[b]y inflicting a severe beating upon the victim either by use of the hands or other instruments.” Her conviction, therefore, had to be based on that portion of the statute that prohibits “any act likely to impair the health” of the child. (Emphasis added.) General Statutes § 53-21; see footnote 2, supra. The evidence presented, therefore, had to show that this defendant affirmatively acted to injure the child or impair her health.

She argues that the evidence permitted only negative inferences and therefore was insufficient. This argument is without merit. The evidence was sufficient, not only to negate her statements that the child’s fifteen month old brother caused the injuries; it was also sufficient to show that an adult, not another child, caused the injuries, that the defendants were the only adults with the opportunity to injure the child, and that she was the adult who beat the child as claimed in the state’s bill of particulars. It is the jury’s prerogative to accept or reject the state’s version of the evidence; if accepted, there must be evidence to support that version beyond a reasonable doubt. State v. Avcollie, 178 Conn. 450, 469, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), aff’d, 188 Conn. 626, 628, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983). The jury was entitled to conclude, beyond a reasonable doubt, that the defendant was the child’s regular caretaker, that the child was primarily in her care and custody when the injuries were inflicted, and that she was the adult who inflicted the injuries. The conclusion that “the injuries were probably occasioned by someone who is ostensibly caring for the child is simply a conclusion based upon logic and reason. Only someone regularly caring for the child has the continuing opportunity to inflict these types of injuries; an isolated contact with a vicious stranger would not result in this pattern of . . . injuries . . . . ” People v. Jackson, 18 Cal. App. 3d 504, 507, 95 Cal. Rptr. 919 (1971). When there is evidence that the victim suffers from battered child syndrome and “that the injuries occurred while the child was in the sole custody of the parents,” the jury is permitted “to infer not only that the child’s injuries were not accidental but that, in addition, they occurred at the culpable hands of its parents.” People v. Henson, 33 N.Y.2d 63, 74, 304 N.E.2d 358, 349 N.Y.S.2d 657 (1973). These were logical inferences which the jury could reasonably draw; State v. Stepney, supra, 255; and from which the jury could find the defendant guilty beyond a reasonable doubt. State v. Avcollie, supra.

The defendant also argues that the failure by the prosecution to identify her, by direct evidence, as the culpable party demonstrates that the evidence was insufficient to allow the conviction. We disagree. This was a case substantially based on circumstantial evidence such that no one, including the preverbal two year old victim, could testify from first hand knowledge precisely how the injuries occurred. Circumstantial evidence may be used to prove all elements of a crime beyond a reasonable doubt. State v. Stepney, supra; Monroe v. Crandall, 3 Conn. App. 214, 220, 486 A.2d 657 (1985). “In determining whether it was the defendant who had inflicted the injury that caused the child to [suffer], the jury had the right to rely both on the established facts and on the inferences reasonably to be drawn therefrom.” State v. Tucker, 181 Conn. 406, 418, 435 A.2d 986 (1980).

To require that the child’s parentage be specifically proved, as the defendant urges, or that each medical witness identify the defendants as the parents of the child they treated, is unnecessary. The fact of parentage is not necessary to establish a violation of General Statutes § 53a-59 or § 53-21. “Identity may be established by direct evidence, but direct evidence of identification is not required; circumstantial evidence may be sufficient to establish the identity of . . . persons .... The circumstances proved must, however, lead to but one fair and reasonable conclusion pointing to [the] accused to the exclusion of all others as the guilty person and exclude every other reasonable hypothesis except that of [the] accused’s guilt.” 23 C.J.S., Criminal Law § 920, pp. 647-48. “It is not necessary that the identification be made positively by a witness . . . . ” Id., 646. The identity of a person may be based on the identity of his or her name with the name of the accused, especially in “circumstances indicating the improbability of there being two persons of the same name at the same time and place, and where there is no evidence that there is any other person bearing that name.” 1 Wharton, Criminal Evidence (13th Ed.) § 103. The evidence indicates that the defendant was adequately identified to permit a conviction: She was identified by the court as being Aurora Dumlao, the person named in the information; the medical witnesses referred to the defendants as the parents of the child or by name; and a police officer testified that he interviewed the parents of the child, referring to the defendant by name. Under the circumstances of this case, an accusing finger need not have been pointed at the defendant in order to allow a conviction; although all the elements of the crime, including who committed it, must be proven beyond a reasonable doubt, they were proven here.

B

The defendant next claims that the verdicts were inconsistent and cannot stand. “ ‘Consistency in the verdict is not necessary.’ ” State v. Cassidy, 3 Conn. App. 374, 389, 489 A.2d 386 (1985), quoting Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932). “The defendant was ‘given the benefit of [her] acquittal on the counts on which [she] was acquitted, and it is neither irrational nor illogical to require [her] to accept the burden of conviction on the counts on which the jury convicted.’ ” State v. Cassidy, supra, 390, quoting United States v. Powell, 469 U.S. 57, 69, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). The defendant’s argument that the bill of particulars which she requested intertwined the two counts together in such a way that inconsistent verdicts would be anomalous is without merit. The elements of the crime of third degree assault and the crime of risk of injury differ, and an acquittal on the former charge does not prevent a conviction on the latter. State v. Martin, 189 Conn. 1, 7 n.2, 454 A.2d 256 (1983).

C

Finally, the defendant argues that certain items of evidence were improperly admitted. We do not agree that before the medical report from the Naval Hospital or the testimony of the medical witnesses could be admitted it was required that the defendant be pointed to in the courtroom as the spokesperson of the hearsay statements. See footnote 7, supra. Nor do we agree that any “double hearsay” statements, which the defendant challenges but does not specify, were improperly admitted.

The defendant’s failure to take an exception to the trial court’s final ruling on the admission of the hospital records is fatal to another of her claims on appeal, namely, that the records were improperly admitted because they were hearsay. “Evidentiary rulings ordinarily must be preserved for appellate review by an exception.” State v. Jackson, 3 Conn. App. 132, 135, 485 A.2d 934 (1985). The defendant objected to the admission of the records on the basis of hearsay when the records were first marked for identification. When the court made its ultimate ruling, allowing the records, but purging them of any references to possible child abuse other than the term, “battered child syndrome,” the defendant excepted only to the admission of that term. She did not renew her exception based on hearsay. Id. We therefore decline to consider her claim.

The defendant’s statement to the Groton police officers was properly admitted. The statement was made during a police investigation and not after arrest; the statement was made after she was warned of her Miranda rights, and included an express waiver of her rights which she signed in the police officer’s presence. Assuming without deciding that the defendant’s Miranda rights attached in this situation; cf. State v. Young, 191 Conn. 636, 651-52, 469 A.2d 1189 (1983); they may be waived by a knowing and intelligent waiver. State v. Jones, 193 Conn. 70, 84, 475 A.2d 1087 (1984). The voluntariness of the waiver is a question of fact to be determined by the trial court with reference to the totality of the circumstances surrounding the defendant’s statement. Id. This court, however, must make a scrupulous examination of the record to determine if such a finding is supported by substantial evidence. State v. Zayas, 3 Conn. App. 289, 297, 489 A.2d 380 (1985). Having made that examination, we conclude that the trial court’s finding of voluntariness was substantially supported and that the defendant’s statement was properly admitted.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) (3) provides: “A person is guilty of assault in the first degree when: . . . (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”

       General Statutes § 53-21 provides in pertinent part: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured ... or does any act likely to impair the health ... of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant Aurora presented no evidence. The defendant Paulino presented evidence to attempt to establish an alibi defense, showing he was at work during much of the time period in which the injuries were claimed to be inflicted.

       Richard M. Manjerovie, a physician at the Naval Hospital in Groton at the time the child was seen there, also testified that, after examination, he diagnosed the child’s injuries as being a result of battered child syndrome. This diagnosis was not explained to the jury at that time but Manjerovie was permitted to testify in detail about the child’s injuries.

       The defendant claims that his question was not an admission of his conduct toward the child in the past, but that he was merely inquiring into the nurse’s state of mind, in effect asking: “Do you believe I have hit the child in the past and will do so again?”

       The portion of the jury charge which the defendant challenges was as follows: “You may draw reasonable inferences from the established facts in this case or in these cases. The inference which you draw, however, must not be from a guess upon the evidence or surmise, but it must be from a fact which the evidence has established. Inferences that you may draw from these established facts must be logical and reasonable and well founded upon facts which have been proven in the trial of the case. I am going to give you a very simple illustration of a situation where an inference can be probably drawn. There is a cat enclosed in a room with only one door and in the middle of the room is a bowl of milk and only the cat is in the room. The door is locked and it is guarded by a person. One hour later the door is unlocked and the room is entered and the bowl of milk is emptied. You can infer from those facts, that the cat drank the milk or if you go to bed at night and you have a nice green lawn and you wake up in the morning and you see it covered with snow you can infer that it snowed during that evening. That is a logical inference from an established fact. . . .
      “Now, if you must relate that to the illustration which I gave you, how more conclusive can it be than the cat drank the milk and if someone said, ‘I saw the cat drink the milk,’ the only way there were no other animals in the room nor other people in the room. Of course, in the passing upon the guilt of an accused person on the basis of circumstantial evidence, you must be satisfied beyond a reasonable doubt; first, that certain facts or circumstances existed, and second; that the existence of those facts or circumstances do beyond a reasonable doubt lead you to the conclusion that the crime was committed by the accused.”

       The defendant’s related argument that the out of court statement she made to the police officers was erroneously admitted because the offering witness did not identify the author of the statement as the defendant being tried is also without merit. The offering witness testified that the statement was given and signed by Aurora Dumlao. The jury knew the defendant’s name was Aurora Dumlao. The trial court did not have to require that the witness point out the defendant and testify that the defendant and hearsay declarant were one and the same.

       This defendant, however, did not raise on appeal the propriety of the use of the term, battered child syndrome. As discussed, supra, however, we find it was not error to permit its use.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


author: Daly, J.

text:
    Rochelle Bartelstone et al. v. Blue Cross and Blue Shield of Connecticut, Inc.
    (2208)
    Hull, Spallone and Daly, Js.
    Argued February 14
    decision released April 30, 1985

      LeonM. Rosenblatt, with whom was Jane A. Boyle, for the appellants-appellees (plaintiffs).

      Lissa J. Paris, for the appellee-appellant (defendant).
   Daly, J.

The plaintiffs instituted this action against the defendant for breach of a health insurance contract and for class action certification. The defendant moved to have the matter referred to the insurance commissioner and to disqualify the plaintiffs’ counsel. The plaintiffs have appealed from the trial court’s granting of the referral and from the failure to grant class action certification, while the defendant has cross appealed from the failure to disqualify the plaintiffs’ counsel.

At the threshold, we must determine whether this court has jurisdiction over the appeal. “[T]his court has a duty to reject, on its own motion, any appeal in which it lacks jurisdiction. Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 574, 87 A.2d 137 [1952].” State v. Phillips, 166 Conn. 642, 644, 353 A.2d 706 (1974). The right of the plaintiffs to appeal is governed by General Statutes § 51-197a (a), which provides that appeals from final judgments of the Superior Court shall be taken to the Appellate Court.

“The practice and procedure of this court require that, ‘[i]f a party is aggrieved by the decision of the court or judge . . . he may appeal from the final judgment of the court or of such judge . . . .’ Practice Book § 3000.” Timothy v. Upjohn Co., 3 Conn. App. 162, 164, 485 A.2d 1349 (1985).

“Our Supreme Court ‘has developed a number of standards delineating the requirement of finality. One test is whether the order or action terminates a separate and distinct proceeding. . . . Another test lies in the effect of an order as concluding the rights of some or all of the parties . . . and, finally, if the rights of the parties are concluded so that further proceedings cannot affect them, then the judgment is final.’ (Citations omitted.) E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975); Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973).” State v. Carter, 3 Conn. App. 235, 239, 486 A.2d 1138 (1985); see Barbato v. J. & M. Corporation, 194 Conn. 245, 248, 478 A.2d 1020 (1984).

An order of reference to a state referee for a finding of facts concerning a zone change is not a final judgment from which an appeal will lie. Castle v. Planning & Zoning Commission, 155 Conn. 617, 621, 236 A.2d 460 (1967). Neither is a remand from the decision of the compensation review division reversing an order of the workers’ compensation commissioner a final judgment. Timothy v. Upjohn Co., supra.

The decision of the trial court did not terminate any separate and distinct proceedings nor conclude the rights of the plaintiffs so that further proceedings cannot affect them. It simply referred the case to the insurance commissioner, pursuant to statute, for further proceedings on the plaintiffs’ claim with a full opportunity for a review of the decision rendered available on appeal.

There is nothing to preclude the parties from raising any unresolved issues of class action and disqualification before the commissioner. The trial court’s granting of the referral and dismissal of the action is not, therefore, a final judgment from which an appeal lies. This court is without jurisdiction and the appeal must be dismissed sua sponte.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 83-167 provides: “From any order or decision of the insurance commissioner, an appeal may be taken by any person or corporation aggrieved thereby in accordance with the provisions of section 4-183. Any dispute which arises between a subscriber and a hospital plan corporation or between a member hospital and the hospital plan corporation, or between two or more hospital plan corporations, shall be referred, at the request of any party to such dispute, to the insurance commissioner, who shall have the power to hear and decide the same, subject to appeal in accordance with the provisions of section 4-183, except venue for such appeal shall be in the judicial district of Hartford-New Britain.”

       The trial court, in its memorandum of decision filed July 8,1983, stated, at page 4: “The defendant’s motion [to refer] should be granted. Dismissal of this action obviates the need to consider any other motions made by the parties.”


text:
    Lucia Nessen v. Board of Education of the Town of Torrington
    (2538)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued February 15
    decision released April 30, 1985

      Ronald Cordilico, for the appellant (plaintiff).

      Gregory B. Nokes, for the appellee (defendant).
   Daly, J.

The plaintiff appealed to the Superior Court from the defendant’s failure to renew her teaching contract. From the trial court’s dismissal of that appeal, the plaintiff has appealed to this court.

The trial court found the following factual situation: The plaintiff is a certified teacher who was employed by the defendant for the school years 1971-72 through 1973-74. She resigned her teaching position in July, 1974, after having been granted a maternity leave in March, 1974. The plaintiff thereafter returned to work for the defendant in October, 1974, under the federally funded Title I program. This program is designed to assist the culturally disadvantaged. From October, 1974, until the 1980-81 school year, the plaintiff worked part time at an hourly wage rate without a written contract. No teaching certificate was required under the terms of her employment through the Title I program. The plaintiff was employed under a teaching contract for the 1980-81 and 1981-82 school years. She was notified in January, 1982, that her contract would not be renewed, and this was confirmed after a February, 1982 hearing. After the trial court dismissed the plaintiffs appeal to it, this appeal ensued.

The issue is whether the plaintiff was a tenured teacher under General Statutes (Rev. to 1981) § 10-151 (b) so that she had standing to appeal from the defendant’s decision.

“It is well settled that appeals to the courts from the decisions of administrative boards may be taken only under statutory authority and absent such authority courts are without jurisdiction to entertain those appeals. . . . When considering and acting to terminate a teacher’s employment contract, a board of education is an administrative agency although it acts in a quasi-judicial capacity.” (Footnotes omitted.) Miller v. Board of Education, 166 Conn. 189, 191, 348 A.2d 584 (1974).

General Statutes (Rev. to 1981) § 10-151 (f) provides, in pertinent part: “Any teacher aggrieved by the decision of a board of education . . . after a hearing as provided in subsection (b) of this section may appeal therefrom . . . . ” The right of appeal is granted by this statute only to tenured teachers. Ames v. Board of Education, 167 Conn. 444, 447, 356 A.2d 100 (1975); Miller v. Board of Education, supra, 195.

“Although the word tenure does not appear in the statute, § 10-151, it has a generally accepted meaning. In Webster, Third New International Dictionary, it is defined as ‘a status granted . . . [usually] after a probationary period to one holding a position . . . [especially] as a teacher and protecting him from dismissal except for serious misconduct or incompetence determined by formal hearings or trial.’ ” Cipu v. North Haven Board of Education, 32 Conn. Sup. 264, 267, 351 A.2d 76 (1974).

“A teacher renewed for a fourth year of continuous employment is said to have tenure because his contract must be renewed.” Devlin v. Bennett, 26 Conn. Sup. 102, 107, 213 A.2d 725 (1965). A teacher’s contract is required to be in writing pursuant to General Statutes (Rev. to 1981) § 10-151, which provides in part: “The contract of employment of a teacher shall be in writing .... ”

Whether the plaintiff had achieved tenure is a question of fact. There was conflicting evidence before the court on this issue. “The weight given the evidence before it is within the sole province of the trial court.” Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985); see Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 125 (a).

Since the plaintiff was found to have been hired as a teacher under a written contract for only two years, the trial court could reasonably have concluded that the plaintiff lacked tenure and hence had no right of appeal.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 10-151 (b) provides in part: “Beginning with and subsequent to the fourth year of continuous employment of a teacher by a board of education . . . the contract of employment of a teacher shall be renewed from year to year . . . . ”


author: Dupont, C.P. J.

text:
    Mary Carrione v. State of Connecticut
    (2671)
    Dupont, C.P.J., Hull and Daly, Js.
    Argued February 15
    decision released April 30, 1985

      Francis J. Charlton, with whom, on the brief, was Edward R. Karazin, Jr., for the appellant (plaintiff).

      Ernest J. Diette, Jr., assistant state’s attorney, for the appellee (state).
   Dupont, C.P. J.

The issue of this case is whether the plaintiffs petition for a new trial made pursuant to General Statutes § 52-270 should have been granted by the trial court. Prior to her petition, the plaintiff had been convicted of larceny in the first degree, a violation of General Statutes §§ 53a-122 (a) (2) and 53a-119. The larceny conviction involved a Ponzi profit scheme in which the plaintiff persuaded her friends and relatives to invest money through her.. Some investors received very large monetary returns in very short periods of time on their investments. They, and others, induced by such seemingly high profits, invested other money or reinvested the same money with the plaintiff which was never returned to them. The plaintiff appealed her conviction to the Supreme Court and it was upheld.

The plaintiff’s petition for a new trial is based upon the claim that someone not involved in the original trial has now made a statement that he invested money with William Belward, and not the plaintiff. William Belward was a member of the Norwalk police department and testified at the plaintiff’s trial that he was also a victim of the plaintiff, having invested his own funds with her.

The plaintiff claims that this evidence was newly discovered, could not have been discovered by the exercise of due diligence for use in the original trial, was material, was exculpatory, and that the jury would probably have found in her favor if the evidence had been presented at her trial. These are the classic tests for determining whether a petition for a new trial should be granted where it is claimed that other evidence was discovered after the conclusion of a trial. Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983); Reilly v. State, 32 Conn. Sup. 349, 354-55, 355 A.2d 324 (1976). The granting or denial of a petition for a new trial is within the discretion of the trial court and will not be disturbed unless an abuse of discretion has occurred. Burr v. Lichtenheim, supra. A new trial is not required if the evidence is merely cumulative, that is, if the evidence duplicates a fact already established or is of the same nature as was previously offered for proof of a fact. Reilly v. State, supra, 355.

The paramount question to be determined in a petition for a new trial is whether an injustice occurred in the rendering of the prior judgment, and whether it is probable that a new trial would yield a different result. Id., 355-56.

In the present case, the same trial judge presided at the trial and at the hearing on the petition for a new trial. That judge is in a uniquely advantageous position to assess whether another trial would produce a different outcome, given the introduction of the new evidence. The trial court found that any testimony of the newly discovered witness would not establish the probability of a different result at a second trial, and that the statement of the putative witness was not exculpatory.

The guilt of Mary Carrione was earlier established beyond a reasonable doubt. State v. Carrione, 188 Conn. 681, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983). Larceny in the first degree, at the time of the commission of the crime, required a misappropriation of a sum in excess of $2000. Even with the testimony of the additional new witness, and even if the testimony of William Belward were stricken, the verdict of guilty of the crime charged, as established through other witnesses, would not change. See footnote 2, supra.

The plaintiff claims that one of the standards for determining whether to grant a petition for a new trial has been changed by case law and that it is no longer whether a different result would be “likely” but whether a different result would be “probable” after a second trial. She relies upon Reilly v. State, supra, for that proposition. She senses a substantive difference in the semantics. There is none. “Likely” is defined in Webster, Third New International Dictionary as “of such a nature or so circumstanced as to make something probable.” The synonyms for “probable” in the same source are “possible” and “likely.” In this case, even if “probable” were a lesser standard than “likely,” the memorandum of decision of the trial court uses the terms interchangeably and concludes that the new testimony did not establish the “probability of a different result upon a new trial.”

It is not certain that the evidence was not available to the plaintiff, whether it be deemed exculpatory or not. The trial court found that the material was neither exculpatory nor material. The burden was with the plaintiff to show that the evidence was both. State v. Gradzik, 193 Conn. 35, 40, 475 A.2d 269 (1984). The plaintiff has not provided this court with a transcript of the original trial and it is impossible, therefore, to review her claim that the statement of the new witness would have been both material and exculpatory.

The state claims that it maintained an “open file” for the plaintiff’s perusal, and that the plaintiff either did not see the statement or failed to avail herself of the opportunity to look in the file. Whether the statement is new or newly resurrected, however, fails to change the outcome of this appeal.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-270 (a) provides in pertinent part: “The Superior Court may grant a new trial of any action that may come before it, for . . . the discovery of new evidence . . . according to the usual rules in such cases.”

        State v. Carrione, 188 Conn. 681, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983). On appeal, in that case, Carrione conceded that if the jury believed the testimony of the witnesses for the state, particularly of Louis Argenio, they could reasonably conclude that she was guilty. Louis Argenio testified that he had given the defendant $32,000.

       Six persons, other than William Belward, testified during the original trial that they were victims of Carrione and had given money to her.


author: Barall, J.

text:
    Dorothy Clapper v. Lyman W. Clapper
    (2635)
    Hull, Barall and Purtill, Js.
    Argued February 22
    decision released April 30, 1985

      Dominic S. Piacenza, with whom, on the brief, was Melvin Scott, for the appellant (defendant).

      Peter W. Rotella, with whom, on the brief, was Joseph F. Segal, for the appellee (plaintiff).
   Barall, J.

The defendant has appealed from a denial of his motion to open a judgment of dissolution.

The action was commenced in the spring of 1982 and was reached for hearing in the spring of 1983. The defendant requested and received a continuance to obtain an attorney. The matter was rescheduled for hearing on July 14,1983 (the defendant received actual notice of the hearing on July 12th). On July 14, 1983, the defendant appeared in court and requested another continuance to obtain an attorney. He claimed that he had been misled into believing that he and his wife were reconciled and that she would not proceed with the divorce. The trial referee denied his request, after hearing. The trial proceeded with the defendant representing himself. Judgment of dissolution was rendered on July 19, 1983.

On July 29, 1983, the defendant, through counsel, moved to open the judgment. The basis of the motion to open was that the defendant believed that he and his wife were reconciled and that, therefore, the failure to grant him a continuance to obtain counsel was improper. The motion to open was heard and denied.

The defendant claims on appeal that the court which denied his motion to open the judgment abused its discretion in not allowing him to introduce evidence of events which occurred prior to July 12,1983, and which caused him to conclude that he and his wife had reconciled. We need not reach a decision on this evidentiary point because we find that the motion to open was an attempt to bypass an ordinary appeal.

The purpose of a motion to open is to permit the granting of a new trial when a party had a meritorious defense but did not have an opportunity to present it. It is not a substitute for an appeal of a claimed error which the parly knew or should have known at the time the appeal could have been taken. Tilo Co. v. Fishman, 164 Conn. 212, 215, 319 A.2d 409 (1972); State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966); Golfland Realty Co. v. Goldberg, 37 Conn. Sup. 645, 647, 433 A.2d 697 (1981).

The claims in the motion to open were merely a repeat of the claims before the trial court. If the defendant disagreed with that court, he should have appealed its decision.

There is no error.

In this opinion the other judges concurred.


text:
    Elsie R. Sanford v. Edwin K. Dimes et al.
    (2611)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued February 5
    decision released April 30, 1985

      Christopher C. Burdett, for the appellant (plaintiff).

      James F. Kenney, with whom, on the brief, was Bruce E. Hawley, for the appellees (defendants).
   Dupont, C.P. J.

This appeal stems from an action to quiet and settle title. The trial court found that record title was in the defendants, and that the plaintiff had acquired a prescriptive easement over a driveway located on the disputed land. The plaintiff claims that the trial court erred (1) in concluding that the plaintiff had acquired an easement by prescription rather than title by adverse possession, (2) in determining the particular property in which the plaintiff had an interest and (3) in failing to allow inquiry into what others had told her about using the driveway.

Although the plaintiffs complaint contains the requisite allegations for adverse possession as the cause of action, it contains no allegations which give rise to a cause of action for a prescriptive easement. The purpose of a complaint is to limit the issues and to apprise the defendant of the cause of action claimed. A judgment granting a prescriptive easement where none was sought and where no pleading raised any issue other than whether the plaintiff had acquired title by adverse possession cannot survive appeal. Francis v. Hollauer, 1 Conn. App. 693, 475 A.2d 326 (1984).

The cause of action of title by adverse possession and of the acquisition of an easement by prescription are two different causes of action. The former requires proof of exclusive possession, whereas the latter does not. Furthermore, the burden of proof required is different. Title by adverse possession must be established by clear and positive proof. Clark v. Drska, 1 Conn. App. 481, 489, 473 A.2d 325 (1984). An easement by adverse use need only be established by a preponderance of the evidence. Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983).

A review of the transcript reveals that the trial of this case was chiefly concerned with the competing claims of the parties to record title. There was a dearth of evidence on the claim of adverse possession, it being solely provided by the testimony of the plaintiff and a surveyor. The plaintiff testified that the driveway was located in the same place when the property was purchased as it was at the time of trial, and that she and her family used the driveway exclusively. The surveyor, a witness for the defendants, testified that on several occasions he turned his car around in the driveway.

From this evidence, the trial court concluded that the plaintiffs use had been adverse, open, continuous and uninterrupted for fifteen years, and under a claim of right. It further concluded that the plaintiff had failed to prove ouster of the defendants or their predecessors in title, and therefore held that the plaintiff had obtained an easement by prescription rather than title by adverse possession. These findings are contained in a supplemental memorandum of decision. Previously, the trial court had made oral findings of fact which included a finding that the plaintiff had exclusively used the driveway continuously for more than fifteen years. Whether the trial court reversed its prior factual finding of exclusive use is unclear. Ordinarily, the plaintiff’s failure to move pursuant to Practice Book § 3082 for an articulation on this point would foreclose appellate review of the plaintiff’s first claim of error. In re Juvenile Appeal (85-1), 3 Conn. App. 158,161,485 A.2d 1355 (1985). In this case, however, the nonconformity of the pleadings to the proof, allows review of that claim. On the basis of the pleadings in this case, the question is not whether the trial court erred in concluding that a prescriptive easement had been obtained by the plaintiff, but whether it erred it concluding that the plaintiff had not acquired title by adverse possession. See Doublewal Corporation v. Toffolon, 195 Conn. 384, 390, 488 A.2d 444 (1985).

The trial court, in its supplemental memorandum, referred to the plaintiff’s testimony on exclusive use. Although it is the rare case where testimony supporting a fact cannot be reasonably disbelieved, this case presents such an instance. Swenson v. Dittner, 183 Conn. 289, 293, 439 A.2d 334 (1981). The court accepted all the other testimony of the plaintiff relating to her claim of adverse use of the property, and the testimony concerning exclusive use was consistent with the other testimony relied on by the trial court. The trial court could not disregard this testimony. Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 489, 356 A.2d 117 (1975); cf. Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983). The mere act of turning around in the driveway is a sporadic act and could not defeat the exclusive possession claim. Roche v. Fairfield, 186 Conn. 490, 502-503, 442 A.2d 911 (1982).

If it is assumed that the trial court reversed its finding of exclusive use, that reversal is clearly erroneous since the only evidence adduced at trial supported the contrary finding. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

Ordinarily, a case such as this would be remanded to the trial court with direction to render judgment for the plaintiff. Such a result is inappropriate here. This trial was muddied by the fact that the trial court, and the defendant, believed that there existed the legal option of concluding that the plaintiff had acquired a prescriptive use. The theory on which the plaintiff pleaded and tried her case was title by adverse possession, rather than easement by prescription. After both sides rested, the trial court heard closing argument during which the defendants conceded that the plaintiff had an easement by prescription and that the complaint raised the issue of adverse possession. The defendants, however, contended that the evidence adduced at trial only established an easement by prescription. Counsel for the defendants could not, in closing argument, interject a new theory of the case into the proceedings to the plaintiffs detriment.

The burden of proof required for a prescriptive easement is a fair preponderance of the evidence. Reynolds v. Soffer, supra. It is impossible to know whether the plaintiff’s evidence would satisfy the higher burden of proof, that of clear and positive proof, if the issue had been correctly perceived to be a question of title by adverse possession. Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297, 478 A.2d 257 (1984). Whether the plaintiff’s evidence equals that standard of proof is a question for the trier of fact and not an appellate court. Clark v. Drska, supra, 484-85.

The defendants conceded in the trial court that the plaintiff had acquired an easement by prescription over a driveway located on the defendants’ land. There is, therefore, no necessity to try that issue. Nor is there any necessity to retry the finding of the trial court that the defendants have record title to the land in dispute. A new trial is necessary, limited to a determination of whether the plaintiff acquired title to the driveway by adverse possession. At the very least, she has an easement by prescription over it, and is entitled to the benefit of the defendants’ concession that such is the case.

There is error, the judgment is set aside inpart and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       “To acquire a right of way by prescription, there must be a user which is open, visible, continuous and uninterrupted for fifteen years and made trader a claim of right. General Statutes § 47-37; Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 515, 227 A.2d 83 [1967].” Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 463, 338 A.2d 470 (1973).

       “The essential elements of adverse possession are that the owner shall be ousted'from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner.” Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980).

       In light of our ruling, it is unnecessary to review the plaintiffs claim that the overwhelming weight of the evidence supported her view of the dimensions of the property involved rather than the dimensions advocated by the defendants and adopted by the trial court or the claimed error regarding the scope of the direct examination of the plaintiff.


author: Hull, J.

text:
    City Savings Bank of Bridgeport v. Andreas Dessoff et al.
    (2346)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued February 6
    decision released April 30, 1985

      Richard G. Kent, with whom, on the brief, was Sperry A. DeCew, for the appellant (named defendant).

      Abraham I. Gordon, with whom, on the brief, were RichardS. Scab and Ranald D. Japha, for the appellee (plaintiff).
   Hull, J.

The named defendant, Andreas Dessoff, appeals from a judgment of foreclosure by sale of a mortgage on his condominium and from the subsequent order of the court opening that judgment and setting new law days for strict foreclosure. Dessoff raises four issues by this appeal: (1) That the trial court erred in failing to rule on his equitable special defense that tender of all past and currently due installments prior to institution of a foreclosure action is a bar thereto; (2) that this special defense is valid as a matter of law; (3) that the trial court erred in refusing to clarify its memorandum of decision by ruling on the above-mentioned special defense and by failing to make requested findings of fact subordinate to such a ruling; and (4) that the trial court erred in opening its judgment for the purpose of setting new law days for strict foreclosure. We find that the court erred in failing to rule on Dessoff s claimed defense. Because that defense is unmeritorious, however, this was harmless error. As to the remainder of Dessoff s claims, there is no error.

On April 26,1978, Dessoff signed a note in favor of the plaintiff which was secured by a mortgage on his condominium. Under the terms of that note, Dessoff was to pay $470.19 monthly to the plaintiff by the fifteenth day of the month. Dessoff failed to make the agreed-upon payments in December, 1980, January, 1981, and February, 1981. Consequently, on February 25, 1981, the plaintiff sent Dessoff a letter which stated, in part: “This is your final opportunity to bring your account up to date and avoid costly legal fees. If the above mentioned mortgage account is not brought completely up to date on or before March 7,1981, your account will be referred to our attorney for immediate collection and possible foreclosure proceedings. Payments other than the total amount due will be returned and foreclosure will be commenced.”

Dessoff did not reply to this letter and on March 20, 1981, Attorney Joseph F. Sgueglia, Jr., representing the plaintiff, sent Dessoff a letter stating that his account had “been turned over to my office for collection.” As a result of this letter and a subsequent telephone conversation with Sgueglia, Dessoff wired two checks to the plaintiff on March 27, 1981. The total amount of these checks equalled the four installments due for December, 1980, and January through March, 1981. Upon receipt, the plaintiff forwarded these checks to Sgueglia with directions that they should be returned to Dessoff. Sgueglia did so and shortly thereafter this action was commenced.

Having admitted all of the factual allegations of the complaint in his answer, Dessoff raised three special defenses on the basis of two theories: (1) That during his telephone conversation with Sgueglia, Dessoff made an agreement with him under which the plaintiff would forbear from foreclosing if certain conditions were met; and (2) that Dessoff had “an equitable defense to the foreclosure action.” This second theory, hereinafter referred to as Dessoff’s equitable defense, was not made any more specific until he filed his post-trial brief. That brief states that Dessoff’s equitable defense was that his tender of March 27, 1981, constituted a bar to the foreclosure. The trial court ruled that Dessoff had no defense to the foreclosure because Sgueglia had no authority to enter into any agreement, nor was there any consideration to support such an agreement, had one been made. The court failed to make a finding of whether or not Dessoff had, in fact, tendered any payments to the bank. The court did not refer to Dessoff s equitable defense at all, and, upon a motion for clarification, the court declined to make any findings with regard to the agreement or tender, and declined to rule on the equitable defense. Dessoff then filed the present appeal from the court’s judgment of foreclosure by sale. That appeal was later amended when the court opened its judgment, upon a motion of the plaintiff, to amend it by setting law days for strict foreclosure. As a result of that strict foreclosure, the plaintiff is now in possession of the property.

Dessoff’s first claim of error is that the court erred in failing to rule on his equitable defense. We agree. Practice Book § 3060B requires the trial court to “include in its decision its conclusion as to each claim of law raised by the parties.” Practice Book § 285A further provides that “[i]f a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief.” Thus, although this defense was less than clear when originally pleaded, the theory upon which it is based was made clear in Dessoff s post-trial brief. Consequently, we conclude that this defense was “raised” within the meaning of Practice Book § 3060B and that the trial court erred in failing to rule upon it.

Our decision would ordinarily mandate that we remand the case in order for the trial court to decide the issue. We decline to do so for two reasons. First, Dessoff s second issue upon appeal is the validity of his equitable defense as a matter of law. Second, a[u]nder circumstances where the record presents the entire proceedings before the trial court, the question is essentially one of law, and we are in no different position than we would be in had the trial court answered it, we have considered, on its merits, the question thus left undecided. Cochran v. McLaughlin, 128 Conn. 638, 644, 24 A.2d 836 [1942].” Alderman v. Hanover Ins. Group, 155 Conn. 585, 590-91, 236 A.2d 462 (1967). Such is the case here.

On its merits, Dessoff s claim that his tender of the past and currently due installments barred the subsequent foreclosure action fails, for that tender did not occur prior to the plaintiff’s effective election to accelerate the maturity of the mortgage pursuant to its rights thereunder.

“The general rule is that where the acceleration of the maturity of a mortgage debt on default is made optional with the mortgagee, some affirmative action must be taken by him evidencing his election to take advantage of the accelerating provision, and that until such action has been taken the provision has no operation. The exercise of the option should be made in a manner clear and unequivocal, so as to leave no doubt as to the mortgagee’s intention. The option is effectively exercised by manifesting the fact in such manner as to apprise the mortgagor.” 55 Am. Jur. 2d, Mortgages § 386, p. 431. “Even a declaration may be a sufficient exercise of the option, but to be effective the declaration must be followed by an affirmative act toward enforcing the declared intention.” Id., 432. In the present case, the plaintiff declared its intent to accelerate the maturity of the mortgage by its letter of February 25, 1981. That letter clearly stated that if the account was referred to an attorney, “[p]ayments other than the total amount due will be returned and foreclosure will be commenced.” Once Dessoff received Sgueglia’s letter, the plaintiff had taken the necessary affirmative act toward enforcing its declared intent to foreclose. See Barrier v. Marine Midland Trust Co. of Southern New York, 263 Md. 596, 284 A.2d 418 (1971) (letter from the bank stating that payments were overdue and demanding payment by a certain date was inconsistent with intent to accelerate. Subsequent letter from bank’s attorney stating that balance was due, however, constituted acceleration).

Once the plaintiff’s intent to accelerate was declared, the accceleration provision became operable and Dessoff could no longer bar the foreclosure by payment of any amount less than that specified in the acceleration provision of the mortgage. 55 Am. Jur. 2d, Mortgages § 390. To rule otherwise would nullify the effect of the acceleration clause. Consequently, although the trial court failed to rule on the equitable defense, it would have been obligated to reject that defense as a matter of law had it decided that issue. Thus, the court’s error was harmless.

Dessoff’s fourth claim of error, that the court erred in opening its judgment of foreclosure by sale in order to set new law days for strict foreclosure, also fails. Such a decision is within the discretion of the trial court and will not be disturbed in the absence of an abuse of that discretion. Hartford Federal Savings & Loan Assn. v. Stage Harbor Corporation, 181 Conn. 141, 143, 434 A.2d 341 (1980). The record is replete with evidence that the court did not abuse its discretion in this case.

There is no error.

In this opinion the other judges concurred.

       Robert S. Bello, also a defendant in this action, suffered a default judgment below and is not a party to this appeal.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       Dessoff’s preliminary statement of issues also claimed, as error, the court’s decision that this first theory did not constitute a bar to the foreclosure. That claim was not briefed and is, therefore, deemed abandoned. Sturman v. Socha, 191 Conn. 1, 3 n.2, 463 A.2d 527 (1983).

       It should be noted that even in Dessoff s post-trial brief, which is almost entirely devoted to his defense that there was an agreement between himself and Sgueglia, this equitable defense is relegated to his final page of argument and is not captioned separately from his other points of law. It is only after a careful reading in search of his equitable defense that the distinction becomes clear.

       Dessoff s third claim of error is that the court later erred in failing to clarify its decision upon his motion. Such a clarification, had it been provided by the court, would have provided us with both a ruling on the equitable defense and a finding as to whether Dessoff did or did not tender the installment as he claims. The plaintiff does not appear to deny that those installments were received, however, and, even if they were, Dessoff s claim cannot succeed for his tender would have been too late to act as an effective bar to the subsequent foreclosure. See text, infra.
      It should also be noted that Dessoff testified, at trial, that he knew from the conversation with Sgueglia that at least $500 more than the amount he sent was due to cover Sgueglia’s fees. Consequently, Dessoff knew that he was tendering less than the full amount due.
      As to the court’s error in failing to clarify its decision by ruling on Dessoff s equitable defense, our decision as to Dessoff’s first two claims of error renders further discussion of this issue unnecessary.

       The mortgage contained the following acceleration provision: “IT IS AGREED that the whole of said principal sum and accrued interest thereon shall become due and payable at the option of the holder hereof without demand or notice in the event of any default in the payment of any installment of interest or principal hereinbefore provided for thirty days after the date the same becomes payable as hereinbefore provided, or in the event of any default in the performance of any of the terms or agreements of the mortgage given to secure payment of the indebtedness evidenced by this note, except as otherwise expressly provided herein, or in the mortgage securing this note, or if title to the premises securing this note shall become vested in anyone other than the maker(s) hereof.”