author: Lavery, J.

text:
    Liba H. Furhman v. Department of Transportation
    (12159)
    Foti, Lavery and Schaller, Js.
    Argued December 2, 1993
    decision released March 22, 1994

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Jeffrey B. Sienkiewicz, for the appellee (plaintiff).
   Lavery, J.

The defendant department of transportation (DOT) appeals from the trial court’s judgment in favor of the plaintiff mayor of the town of New Milford on her appeal from the DOT’S order regarding installation of safety devices at a pedestrian railroad crossing in New Milford. The DOT argues that the trial court improperly found that (1) the DOT lacked statutory authority to mandate installation of safety devices, and (2) the record contained insufficient evidence to support the DOT’S determination that the safety devices were necessary. We reverse the judgment of the trial court.

This case had its genesis in a special enactment of the General Assembly that permitted the town to construct an at-grade pedestrian crossing over the railroad tracks running between a municipal parking lot and the town’s commercial area. Special Acts 1989, No. 89-32. The town agreed with Conrail, the owner of the rail lines, to fund construction of a single ten foot crossing. The town also requested information from the DOT regarding required safety features.

The DOT held a hearing pursuant to General Statutes § 13b-343 on October 28, 1991, concerning the necessary safety devices. Representatives of the town and the DOT testified before the adjudicator; Conrail stated by letter that it had no objection to any safety devices ordered. On March 3,1992, the DOT ordered the town to install gates, flashing warning lights, a bell, and a fence parallel to the tracks extending the entire length of the parking lot.

The plaintiff appealed this order to the Superior Court pursuant to General Statutes § 4-183. After a hearing, the trial court ruled on January 26,1993, that the DOT’s order exceeded its statutory authority and was not supported by substantial evidence. This appeal followed.

I

The DOT claims that the special act that granted the town permission to build the crossing also granted the DOT authority to determine the required safety features. In addition to authorizing the new crossing, Special Acts 1989, No. 89-32, § 2, provided that the “crossing shall be subject to the provisions of sections 13b-342 to 13b-847, inclusive, of the general statutes.” General Statutes § 13b-343 authorizes the DOT to order a railroad company to install safety devices where a railroad crosses a public highway at-grade. A literal reading of § 13b-343 would suggest that it does not apply where a town, rather than a railroad company, seeks to install a crossing at a parking lot, rather than a public highway. Thus, the special act’s requirement that § 13b-343 apply to this crossing appears to conflict with the language of § 13b-343 itself.

“Statutes should be read so as to harmonize with each other, and not to conflict with each other.” Tolly v. Dept. of Human Resources, 225 Conn. 13, 28, 621 A.2d 719 (1993). We must presume that the legislature intended the two statutes to be read together and to be construed, wherever possible, to avoid conflict between them. Berger v. Tonken, 192 Conn. 581, 589-90, 473 A.2d 782 (1984).

Special Acts 1989, No. 89-32, § 2, explicitly demonstrates that the legislature intended § 13b-343 to apply to this crossing. Moreover, the act permits the town to assume responsibility for maintaining the crossing. Generally, crossing maintenance is the responsibility of the railroad company operating the line. See General Statutes §§ 13b-343,13b-345,13b-347. Thus, it is clear that the legislature intended to permit the town to assume the railroad company’s role in this instance.

The DOT has the statutory authority to order a railroad company to install safety devices at crossings. The plaintiff argues that the DOT exceeded its authority because its order was directed at a municipality, not at a railroad. The plaintiffs argument, however, would make § 13b-343 inapplicable to this crossing, a result clearly unintended by the legislature. Further, because the town assumed the railroad company’s role envisioned by § 13b-343, the DOT’s order was properly directed toward the entity responsible for installing and maintaining safety devices. Therefore, the DOT acted within its authority when it directed the town to install safety devices.

The plaintiff also argues that § 13b-343 applies only where a railroad crosses a public highway. Here again, the plaintiff seeks to construe § 13b-343 as inapplicable to this crossing. The legislature, however, intended otherwise and made its intention explicit in Special Acts 1989, No. 89-32, § 2. We must presume that the legislature intended these two statutes to work together. The only way to harmonize these statutes is to treat this crossing like a public highway.

Moreover, our Supreme Court stated in Stavola v. Palmer, 136 Conn. 670, 683, 73 A.2d 831 (1950), that “ ‘[a] highway is a public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle. In every highway the King and his subjects may pass and repass at pleasure.’ The essential feature of a highway is that it is a way over which the public at large has the right to pass. . . . Accordingly, the term ‘highway’ is ordinarily used in contradistinction to a private way, over which only a limited number of persons have the right to pass.” (Citations omitted.) Thus, a pedestrian crossing, created by statute and by license from Conrail, between a municipal parking lot and a public highway is encompassed within the meaning of public highway set forth in Stavola and General Statutes § 13b-343.

Finally, the plaintiff argues that the DOT exceeded its authority by holding a hearing pursuant to § 13b-343 absent a request from the town for a hearing. This claim is meritless. Section 13b-343 provides that a hearing must be held when requested by a municipality. It also provides that the commissioner of transportation may hold a hearing on its own motion. Presuming that the town’s request for information regarding safety devices was not a request for a hearing, the DOT was still within its statutory authority when it acted of its own accord.

Therefore, the DOT acted within its statutory authority when it ordered the town to install safety devices.

II

The final issue on appeal is whether the trial court properly found that the DOT did not have substantial evidence to support its decision. The plaintiff appealed to the Superior Court pursuant to General Statutes § 4-183. Under the well established standard of judicial review of administrative agency rulings, a reviewing court “may not retry the case or substitute its judgment for that of the agency on the weight of the evidence or questions of fact. ... Rather, an agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . .” (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 713, 629 A.2d 333 (1993). The reviewing court may reverse or modify an administrative decision only if the “substantial rights of the [appellant] have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” General Statutes § 4-183 (j).

In this case the trial court ruled that the DOT’S order was clearly erroneous in light of the substantial evidence in the record. General Statutes § 4-183 (j) (5). “An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” (Citations omitted; internal quotation marks omitted.) Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989).

The record reveals that, at present, pedestrians cross the two train tracks along the entire length of the municipal parking lot. Further, the parking lot is open to the public and is used to access the railroad station and the town’s commercial area. Although only two trains use the tracks daily and they pass at ten miles per hour, Conrail has the right to alter train frequency and speed at any time. “Where an agency has expertise in a given area and a history of determining factual and legal questions similar to those at issue, its interpretation is granted deference by the courts.” Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 229, 497 A.2d 1005 (1985). In this case, the DOT had before it a substantial basis of fact from which to conclude that the safety devices were necessary to ensure public safety. Therefore, the DOT ruling was supported by substantial evidence and should not have been reversed.

The judgment of the trial court is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs appeal.

In this opinion the other judges concurred.

       Special Acts 1989, No. 89-32, § 2, provides: “Notwithstanding any provision of the general statutes, special act or regulation to the contrary, the town of New Milford is authorized to enter into an agreement with Conrail for the construction of a pedestrian, at-grade crossing from the municipal parking lot to the railroad station and to Railroad and Bank Streets in New Milford, and that the town of New Milford and Conrail may enter into an agreement that would allow New Milford to assume responsibility for the costs of maintaining the crossing and for any liability for damage to persons or property as a result of using such crossing. Such crossing shall be subject to the provisions of sections 13b-342 to 13b-347, inclusive, of the general statutes.”

       General Statutes § 13b-343 provides: “The commissioner of transportation, when requested in writing by the selectmen of any town, the mayor and common council of any city or the warden and burgesses of any borough to order gates, a flagman or electric signals or other signal device to be installed and maintained at any railroad crossing where a railroad crosses a public highway at grade within such town, city or borough, shall hold a hearing thereon or may, of his own motion, hold such a hearing, first giving the town, city or borough wherein the crossing is located, and the company operating the railroad, reasonable notice thereof. If the commissioner upon such hearing finds that public safety requires it, the commissioner shall order such company to install and maintain, at such crossing, gates, a flagman or such electric signals or other signal device as may be approved by the commissioner, or to do any other act deemed necessary for the protection of the public. The commissioner may rescind, alter or amend any such order, whenever the commissioner deems it necessary, upon first giving the municipality wherein the crossing is located and the railroad company an opportunity to be heard thereon. If any such company fails to comply with any order of the commissioner made pursuant to this section, it shall forfeit to the state fifty dollars for each day off such failure.”

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       The legislative history of Special Acts 1989, No. 89-32, supports this view. During the debate on this legislation, Senator Adela Eads, one of the bill’s sponsors, explained its purpose. “This is authorizing the town of New Milford to enter into an agreement with Conrail for the construction of pedestrian at-grade crossing near their municipal parking lot. This is something, I have letters from Conrail saying this is perfectly all right with them, the town of New Milford will have paid the cost of the crossing, and will assume all responsibility for damages and liability.” 32 S. Proc., Pt. 6, 1989 Sess., p. 1962.

       The plaintiff argues that this crossing is a private crossing as defined and controlled by General Statutes § 13b-292. The commissioner of transportation, however, also has authority to prescribe the nature of traffic control devices at private crossings. General Statutes § 13b-292 (d). Thus, regardless of whether it is a public highway or private crossing, the DOT acted within its authority.

       The plaintiff argues that the DOT’S order was based solely on a DOT regulation that has never been adopted pursuant to the rulemaking provisions of the Uniform Administrative Procedure Act. General Statutes § 4-168. If the DOT had based its decision on an improperly adopted regulation, that decision would be subject to reversal. The plaintiff fails to demonstrate, however, that the DOT relied on such a regulation. The plaintiff merely cites the DOT’S conclusion, which explicitly refers to the evidence and testimony in the record. Absent proof, we must presume that an agency acted properly.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    State of Connecticut v. Eric Ash
    (11438)
    Foti, Heiman and Spear, Js.

      Argued December 13, 1993
    decision released March 22, 1994

      Ramona S. Carlow, special public defender, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Herbert E. Carlson, Jr., senior assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant, Eric Ash, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). The defendant claims that the trial court improperly (1) concluded that the evidence presented by the state was sufficient to disprove beyond a reasonable doubt the defendant’s defense of justification, (2) concluded that the evidence presented by the state was sufficient to sustain the defendant’s conviction of manslaughter in the first degree, (3) instructed the jury as to the duty to retreat, and (4) deprived the defendant of his federal and state constitutional rights to due process by marshaling the evidence in its jury charge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 3, 1991, at approximately 8:30 p.m., Vincent Ellison was stabbed to death at the doorway to his apartment. The victim’s apartment is located on the first floor of a dilapidated, brick building at 500 Ann Street in Hartford. The front entrance to the building opens into a large hallway on the first floor and there are two apartments located on the left side of the hallway that are visible from the front entrance. The victim’s apartment was the first one on the left and James Osborne’s was the second. Beyond Osborne’s apartment is a short corridor leading to another apartment, not visible from the front entrance. The victim’s cousin, Oscar Steve Anglin, lived in the third apartment.

The defendant frequently visited the victim at his apartment. On April 3, 1991, the victim, the defendant and the victim’s cousin, Michael Antoine Nixon, were present in the victim’s apartment. The three men spent the afternoon drinking alcohol and taking drugs. At about 5:30 p.m., the defendant left the apartment to “hustle” some money in order to obtain more drugs. He returned shortly thereafter with two sweaters he had shoplifted from a local store. At about 6 p.m., the victim sent Nixon out with directions to sell the sweaters and to purchase more drugs with the proceeds.

When Nixon failed to return within the hour, the defendant became concerned about Nixon’s absence and expressed this concern to the victim several times. The victim became angry with the defendant for mistrusting his cousin. He threatened to harm the defendant if he did not leave the apartment. The defendant then ran out of the victim’s apartment into the hallway and knocked on the door to Osborne’s apartment. He did not wait for Osborne to answer because he thought the victim was pursuing him with a knife. He continued down the hallway and knocked on Anglin’s door. When Anglin opened the door he saw that the defendant was carrying a large butcher knife. The defendant entered Anglin’s apartment and pleaded with him to calm the enraged victim. Anglin then stepped into the hallway to speak with the victim, who was carrying a broomstick. Anglin had shut the door behind him and the defendant locked the door from the inside. After speaking with Anglin for approximately seven to eight minutes, the victim turned and went down the hallway in the direction of his apartment. The defendant let Anglin return to his apartment and the defendant then decided to leave Anglin’s apartment and to retrieve his shoes and clothes from the victim’s apartment before he left the building.

Osborne, who had overheard the voices of the defendant, the victim and Anglin coming from the direction of Anglin’s apartment, opened his apartment door to see what was going on in the hallway. Osborne saw the victim first, standing in front of Osborne’s apartment door, holding a broomstick and shouting loudly about “kick[ing the defendant’s] ass.” Osborne then saw the defendant walking down the hallway from the direction of Anglin’s apartment with a knife in his hand. The defendant came face-to-face with the victim and stated that he was tired of his threats and that he was not going to take it any longer. At that point, the victim assumed a karate stance holding the stick with both hands and said to the defendant, “Come on, bitch, come on.”

The victim then swung the stick at the defendant, hitting him in the shoulder and the defendant thrust the knife at the victim. The men fought back and forth from the doorway of Osborne’s apartment toward the front entrance of the building and back to the doorway of the victim’s apartment. At some point during the fight, the knife and stick fell to the hallway floor.

After several minutes of fistfighting, the victim lost his footing and fell backward onto the floor and across his apartment’s threshold. The victim was lying on his back with his legs extended into the hallway and his upper torso inside his apartment. The defendant ended up on top of the victim, straddling him, while the victim struggled to push or kick the defendant off of him. In the midst of the struggle, the defendant picked up the knife from the hall floor and fatally stabbed the victim. The defendant then went into Osborne’s apartment and asked for a pair of shoes. When Osborne told the defendant that he could not believe he had stabbed the victim, the defendant responded, “I did it, and I’ll do it again.” The defendant then left Osborne’s apartment with the knife and a pair of Osborne’s shoes, went next door to the victim’s apartment to retrieve his jacket, and fled the building.

When arrested, the defendant told the police, “I had to stab him; I had to stab him.” At trial, however, the defendant testified that he did not recollect actually stabbing the victim although he did recall thrashing at the victim with a knife in his hand. He claimed to have been scared and confused and to have acted in self-defense. After a jury trial, the defendant was found not guilty of murder and was convicted of the lesser included offense of manslaughter in the first degree. The trial court sentenced the defendant to a total effective sentence of twenty years. This appeal followed.

I

The defendant first claims that the evidence introduced at trial was insufficient to disprove his defense of justification beyond a reasonable doubt. We disagree.

We employ a two part test in reviewing claims relating to the sufficiency of the evidence. State v. Young, 29 Conn. App. 754, 767, 618 A.2d 65 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993); State v. Cruz, 28 Conn. App. 575, 578, 611 A.2d 457 (1992). We first construe the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Young, supra; State v. Cruz, supra. “We then determine whether, from the evidence and all the reasonable inferences which it yields, [the jury] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Young, supra; see also State v. Joyner, 225 Conn. 450, 455, 625 A.2d 791 (1993); State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993); State v. Crosswell, 223 Conn. 243, 249, 612 A.2d 1174 (1992).

At trial, the defendant claimed that he was acting in self-defense when he stabbed the victim to death. “Self-defense is raised by way of justification, and when such defense is asserted ‘the state shall have the burden of disproving such defense beyond a reasonable doubt.’ General Statutes § 53a-12 (a). . . .” (Citations omitted.) State v. Gelormino, 24 Conn. App. 556, 561, 590 A.2d 476, cert. denied, 219 Conn. 913, 593 A.2d 138 (1991); State v. Jarrett, 218 Conn. 766, 772, 591 A.2d 1225 (1991); State v. Deptula, 31 Conn. App. 140, 147, 623 A.2d 525, appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1993). The defendant maintains that the state failed to introduce sufficient evidence to disprove beyond a reasonable doubt the elements of self-defense as set forth in General Statutes § 53a-19.

A person is justified in using deadly physical force, under the self-defense statute, § 53a-19 (a), only when he reasonably believes such force to be necessary because he “reasonably believes that [another] person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” Even then, under § 53a-19 (b) and (c), a person is not justified in using deadly physical force on another person if (1) he knows that he can avoid the necessity of using such force with complete safety by retreating, (2) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, (3) he is the initial aggressor, or (4) the physical force involved was the product of a combat by agreement. Section 53a-19 “ ‘presents a question of fact about what the defendant himself reasonably believed about his exposure to jeopardy under the circumstances. State v. DeJesus, 194 Conn. 376, 389, 481 A.2d 1277 (1984); State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982).’ ” State v. Garrison, 203 Conn. 466, 470, 525 A.2d 498 (1987).

The jury was free to disbelieve the defendant’s claim of self-defense and to conclude beyond a reasonable doubt that the defendant could not reasonably have believed that he was faced with an imminent use of physical force by the victim or that the degree of physical force he used against the victim was necessary to defend himself. General Statutes § 53a-19 (a); see State v. Bellino, 31 Conn. App. 385, 392-93, 625 A.2d 1381, cert. granted, 226 Conn. 917, 628 A.2d 988 (1993). At the time of the altercation in the hallway that resulted in his death, the victim was armed only with a broomstick. The defendant, in contrast, was armed with a large butcher knife. Both men eventually lost their weapons before the victim slipped backward and fell across the threshold of his apartment. At that point, the victim was unarmed, lying on his back, with his upper torso, including his arms and hands, inside the apartment. The defendant was on top of the victim, straddling him. The victim could not reach either the knife or broomstick and tried unsuccessfully to kick the defendant off of him. The defendant, although not threatened with deadly physical force or great bodily harm, reached into the hallway, grabbed the butcher knife, and, while he straddled the unarmed victim, stabbed him three times.

The evidence also supports the conclusion that the defendant was in a position to avoid the use of deadly physical force by retreating with complete safety. General Statutes § 53a-19 (b) (1). The victim’s apartment was located immediately inside the front entrance of the building. Thus, the defendant could have gotten up and safely exited the building through the front entrance once he realized the victim was unarmed and trapped beneath him. The defendant, however, did not safely retreat from the scene at the first opportunity but instead fatally stabbed the victim before exiting the building via the front entrance. The defendant also could have sought refuge in Anglin’s apartment, where he had initially gone when the victim came after him with a knife earlier in the evening. Despite the defendant’s claims to the contrary, the jury reasonably could have concluded that a retreat in complete safety was available and that the defendant knew one existed.

The jury also reasonably could have concluded from the evidence presented that the defendant was not justified in using deadly force on the victim because he had either provoked the victim, was the initial aggressor, or because he and the victim had engaged in a combat by agreement. See General Statutes § 53a-19 (c) (1) through (3). When the defendant left the safety of Anglin’s apartment, armed with a large butcher knife, he immediately confronted the victim. He told the victim that he was “tired of his bullshit” and that he was “not going to take it any longer.” The defendant then challenged the victim “to shoot his best shot,” thus provoking the victim to swing the broomstick at the defendant and strike him on the shoulder.

We are satisfied, on the basis of the evidence and the reasonable and logical inferences to be drawn therefrom, that the cumulative effect of the evidence was more than sufficient to support the jury’s conclusion that the state had met its burden of disproving the defense of justification. The defendant’s claim to the contrary is without merit.

II

The defendant next claims that the evidence introduced at trial was insufficient for a jury reasonably to find the defendant guilty of manslaughter in the first degree. He asserts that the evidence adduced at trial demonstrates that the state did not meet its burden of proving beyond a reasonable doubt as required by § 53a-55 (a) (1) that he intended to cause serious physical injury to the victim. We disagree.

The standard of review for a sufficiency of the evidence claim is set forth in part I. “When applying the sufficiency of the evidence test, the court must ensure that [e]ach essential element of the crime charged . . . be established by proof beyond a reasonable doubt, and although it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. . . . Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot constitutionally stand, as it is violative of due process under the fourteenth amendment [to the constitution of the United States]. . . . [T]he burden rested upon the prosecution to prove the guilt of the accused, i.e., to prove each material element of the offense charged beyond a reasonable doubt. . . . State v. Maxwell, [29 Conn. App. 704, 708-709, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, U.S. , 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993)], quoting State v. Cruz, supra.” (Internal quotation marks omitted.) State v. Young, supra, 768.

In order to convict the defendant of manslaughter in the first degree, the state was required to prove beyond a reasonable doubt that (1) the defendant intended to cause serious physical injury to the victim, and (2) with that intent, the defendant caused the victim’s death. See General Statutes § 53a-55 (a) (1). The intent to cause serious physical injury required for a conviction of manslaughter in the first degree under § 53a-55 (a) (1), by definition, “require[s] a jury’s finding that the defendant caused a ‘physical injury which creates a substantial risk of death, or which causes seri-. ous disfigurement, serious impairment of health or serious loss or impairment of the function of a bodily organ.’ General Statutes § 53a-3 (4).” State v. Allen, 28 Conn. App. 81, 89, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992).

The defendant’s argument that the evidence was insufficient to establish his intent to cause a serious physical injury is flawed. “Intent, may be, and usually is, inferred from conduct. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. ...” (Citations omitted; internal quotation marks omitted.) State v. Baldwin, supra, 368. “The intent of the actor is a question for the trier of fact, and the conclusion drawn by the trier in this regard should stand unless it is an unreasonable one.” State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977); see also State v. Allen, supra; State v. Woods, 25 Conn. App. 275, 281, 594 A.2d 481 (1991). “[A] factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.” State v. Allen, supra, 89-90.

In the present case, there was sufficient evidence from which the jury reasonably could infer the requisite intent to cause serious physical injury to the victim. There was evidence that the defendant approached the victim wielding a large butcher knife, confronted the victim face-to-face and told him that he was tired of his threats and he “wasn’t going to take it any longer,” and then challenged the victim “to shoot his best shot.” There was also evidence that during their altercation, the victim slipped backward and fell and the defendant ended up on top of him, straddling him. The jury heard testimony that, once the victim was on his back, both men were unarmed and only the defendant could reach the knife. The defendant then picked up the knife and stabbed the victim, who was still unarmed, in the chest three times. The jury also had before it the testimony of the medical examiner that these three stab wounds to the upper left chest directly caused the victim’s death. Additionally, the jury heard testimony that after the defendant stabbed the victim, he told Osborne, “I did it and I’ll do it again,” entered the victim’s apartment to retrieve his jacket, and fled the building, the knife still in his hand.

Moreover, the jury had before it the defendant’s testimony and the testimony of his expert on the issue of the defendant’s intent. The defendant maintained that the stabbing was his reaction to the victim’s violent hitting and kicking and not evidence of his intent. The defendant’s expert explained that at the time of the stabbing, the defendant “was experiencing serious and severe disruption of his feelings” caused by what he perceived as a life threatening situation. The jury apparently rejected this testimony. The determination of the credibility of a defendant or an expert witness and the weight to be accorded their testimony is within the province of the jury. See, e.g., State v. Salz, 226 Conn. 20, 38, 627 A.2d 862 (1993); State v. Raguseo, 225 Conn. 114, 123, 622 A.2d 519 (1993); Sharp v. Wyatt, Inc., 31 Conn. App. 824, 843, 627 A.2d 1347 (1993). When conflicting explanations are presented, the jury is not required to accept the testimony and inferences offered on behalf of the defendant. See State v. Sauris, 227 Conn. 389, 402, 631 A.2d 238 (1993); State v. Salz, supra. Thus, the jury in the present case was free to reject the testimony of the defendant and his expert, in full or in part, and find persuasive the state’s version of events.

The evidence presented at trial was more than sufficient for the jury reasonably to have inferred that the defendant intended to cause serious physical injury to the victim, and therefore to permit a conviction of manslaughter in the first degree.

Ill

The defendant further claims that the trial court improperly instructed the jury on the duty to retreat imposed by General Statutes § 53a-19 (b). He argues that the instruction as a whole failed to direct the jury to evaluate the defendant’s subjective knowledge of the availability of retreat. We disagree.

The state contends that we should not entertain this issue because the defendant failed to take an exception to the jury instruction pursuant to Practice Book § 852 and further failed to request review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We disagree with the state. Although at trial the defendant did not take an exception to that portion of the jury instruction he now attacks, he did preserve his claim by filing a proper request to charge with respect to the issue of self-defense pursuant to Practice Book § 852.

During its charge to the jury on the issue of self-defense, the trial court properly instructed the jury by quoting the relevant statutory language: “[A] person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety ... by retreating . . . .” (Emphasis added.) General Statutes § 53a-19 (b). In its explanation to the jury of that statutory language, however, the trial court misstated the duty to retreat. After reciting the statutory language, the trial court stated: “As to retreating with complete safety, you must consider what was reasonable for the defendant to perceive was available as retreat or if none was available without the use of physical force, what degree of physical force was reasonably necessary to make one available. Now, in this connection, you can realize what you are doing is attempting to stand in the shoes of the defendant, as you would perceive a reasonable person to view the same situation, under the same conditions. ” (Emphasis added.) The defendant challenges this portion of the charge as it improperly interjected an objective standard into the duty to retreat. The trial court did, however, conclude its charge on self-defense with a proper statement of the law. It stated that, in determining whether the defendant had breached the duty to retreat, the jury must consider whether the defendant himself could in fact have perceived that he had the opportunity to avoid the necessity of using force by retreating.

Our review of the defendant’s claim requires that we consider the trial court’s charge in its entirety to determine whether it is reasonably possible that the jury could have been misled by the instruction as it was given. State v. Castonguay, 218 Conn. 486, 498, 590 A.2d 901 (1991); State v. Ortiz, 217 Conn. 648, 662, 588 A.2d 127 (1991); State v. Andrews, 29 Conn. App. 533, 540, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993). “[W]e do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation.” State v. Andrews, supra; State v. Wolff, 29 Conn. App. 524, 531, 616 A.2d 1143 (1992). “Jury instructions need not be exhaustive, perfect or technically accurate. . . . They must be correct in law, adapted to the issues presented in the case and sufficient to guide the jury in reaching a verdict.” (Citations omitted; internal quotation marks omitted.) State v. Wolff, supra.

Reading the instructions as a whole, we find that a correct statement of the law preceded and subsequently followed a misstatement of the law. We conclude, however, that in the context of the entire jury instruction, the improper instruction was harmless beyond a reasonable doubt. “While it is true that an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law ... an incorrect instruction to the jury may be cured by a later correct instruction . . . .” (Citations omitted; internal quotation marks omitted.) State v. Harrison, 32 Conn. App. 687, 696-97, 631 A.2d 324, cert. denied, 227 Conn. 932, 632 A.2d 708 (1993). In the present case, the trial court immediately cured its misstatement of the duty to retreat in its charge to the jury on self-defense. After incorrectly instructing the jury to consider the “reasonableness” of the defendant’s perception regarding the availability of retreat, the trial court properly instructed the jury that the defendant must subjectively perceive that he can retreat in safety. See General Statutes § 53a-19 (b).

Considering the trial court’s charge as a whole, we conclude that it was not reasonably possible that the jury was misled.

IV

The defendant’s final claim is that the trial court deprived him of his federal and state constitutional rights to a fair trial by an impartial jury by improperly marshaling the evidence in its jury charge in favor of the state. We are not persuaded that the court unfairly emphasized the state’s evidence.

“A trial court often has not only the right, but also the duty to comment on the evidence.” State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991). Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case. State v. Pollitt, 205 Conn. 132, 157, 531 A.2d 125 (1987). In marshaling the evidence, the court must be careful not to imply any favor or criticism of either side. State v. Hernandez, supra, 463. The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing on any point in issue and may comment on the weight of the evidence as long as it does not direct or advise the jury how to decide the matter. State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989).

The defendant argues that the trial court unfairly marshaled the evidence during its explanation of the legal principles of intent and self-defense by ignoring or passing lightly over facts favorable to the defendant. Contrary to the defendant’s assertion, the record reveals that the defendant was not prejudiced by the trial court’s charge. Unlike in Hernandez, where our Supreme Court concluded that the trial court’s charge was improper, the court here did not recapitulate “nearly all of the state’s testimonial and physical evidence” and did not frequently comment “favorably on the credibility of the state’s witnesses . . . .” State v. Hernandez, supra, 464. Although the trial court did provide a more detailed account of some of the state’s evidence than of the defendant’s counterevidence, it explained in detail the defendant’s theories of defense and outlined the exculpatory evidence in support thereof. One reason more time was spent in marshaling the state’s evidence is that there was more of it.

“In evaluating the court’s charge, we are cognizant that [t]he test of a charge is not whether it applies pertinent rules of law to every ramification of facts conceivable from the evidence. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Citations omitted; internal quotation marks omitted). Id., 465; see also State v. Rumore, 28 Conn. App. 402, 411, 613 A.2d 1328 (1992); State v. Lee, 32 Conn. App. 84, 103-105, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993).

Our review of the charge in its entirety leads us to conclude that the manner in which the trial court marshaled the evidence did not unduly prejudice the defendant or deprive him of his right to due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged by substitute information with the crime of murder in violation of General Statutes § 53a-54a (a). General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .” He was convicted, however, of the lesser included offense of manslaughter in the first degree by way of intent to cause serious physical injury in violation of General Statutes § 53a-55 (a) (1).
      General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person . . . .”

       Shortly after the incident Anglin told one or more police officers at the Hartford police station that earlier in the evening of April 3,1991, at about 5 p.m., he had interceded when the defendant and the victim were threatening each other with knives. He stated that the butcher knife that the defendant was carrying when he knocked on Anglin’s door at approximately 8 p.m. was the same knife he had seen the victim holding earlier.
      At trial, Anglin testified that he had no recollection of speaking with the Hartford police on April 3, 1991. He also testified that the defendant did not have a knife in his hand when he knocked at his door at approximately 8 p.m.

       Because circumstantial evidence may be treated in the same manner as direct evidence, the probative force of the evidence is not diminished if it consists in whole or in part of evidence circumstantial in nature. State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990); State v. Sinclair, 197 Conn. 574, 576-77, 500 A.2d 539 (1985); State v. Maxwell, 29 Conn. App. 704, 708, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, U.S. , 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993). It is not one fact, but the impact of a multitude of facts that establishes guilt in a case involving substantial circumstantial evidence. State v. Sinclair, supra.

       General Statutes § 53a-19 provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       See footnote 1.

       Practice Book § 852 provides in pertinent part: “The [appellate] court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is cornered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. . . .” (Emphasis added.)

       Specifically, the trial court stated: “So, as to retreat, you may consider the evidence that when the argument was escalating in Mr. Ellison’s apartment and that the defendant was asked to leave, whether or not he could perceive that this was an act of wisdom to leave, taking his shoes and jacket, and leaving. Or when he was in Mr. Anglin’s room and there was the opportunity of refuge — which apparently, after he was able to lock the door and before Mr. Anglin left the room to talk to Mr. Ellison, Mr. Ellison had apparently not attempted to break into the room and even when Mr. Anglin returned there was still the opportunity of remaining in the room.
      “You may also consider the fact that in the room there was a telephone, so that there was the opportunity for looking for police assistance. When he did go out into the hall, was he in fact looking for an opportunity of leaving the building. Or as I recall his testimony, when they were fighting for some three minutes, after he had fallen on the knife, was there an opportunity of him enlisting Mr. Osborne’s assistance to take custody of the knife.” (Emphasis added.)

       The defendant properly excepted to the jury charge as required by Practice Book § 854. Because the federal and state constitutions impose similar due process limitations, we have treated the defendant’s federal and state due process claims together. See State v. Hernandez, 218 Conn. 458, 461 n.3, 590 A.2d 112 (1991); Sekou v. Warden, 216 Conn. 678, 690 n.7, 583 A.2d 1277 (1990).


author: Dupont, C. J.

text:
    Herbert J. Stiefel et al. v. George L. Lindemann et al. Belle Terre Associates et al. v. George L. Lindemann et al.
    (11827)
    (11834)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued November 2, 1993
    decision released March 22, 1994

      Robert M. Davison, with whom, on the brief, was Howard B. Naylor, for the appellant (plaintiff Steven Grossman).

      Douglas R. Steinmetz, with whom, on the brief, was Stephen J. Curley, for the appellant (plaintiff Elizabeth G. Dubois).

      Steven R. Humphrey, with whom were Roger J. Pearson and, on the brief, Bram S. Lehman, for the appellees (defendants).
   Dupont, C. J.

In these appeals from the judgments that followed two actions tried to the court, the primary questions to be resolved are whether the defendants have an easement (1) over land of the plaintiff Steven Grossman, and (2) over the land of Elizabeth G. Dubois. The resolution of the first question is dependent on the interpretation of a reservation of a right-of-way in a deed from the predecessor in title of the defendants to a predecessor in title of Grossman, or on whether, if the deed is ineffective, an easement by prescription exists in favor of the defendants. In both actions, the plaintiff seeks injunctive relief and damages, claiming that the defendants are prohibited from using a driveway that crosses his land and terminates on Indian Field Road, a public highway in the town of Greenwich. Dubois, as the owner of property adjacent to the land of the plaintiff, was joined as a party to the actions. Dubois filed a complaint against the defendants, George L. and Frayda Lindemann, alleging that the Lindemanns have no right-of-way over that portion of the driveway that lies on the Dubois land. She also sought injunctive relief and damages against the Lindemanns.

In both actions, the defendants, by way of two special defenses, claim that they have a right-of-way by virtue of an express grant by deed, and, in the alternative, by virtue “of adverse possession, prescriptive easement and easement by necessity.” The trial court rendered judgment for the defendants on the first special defense, after an extensive discussion of the deeds in the parties’ chains of title, and on their second special defense. The court also rendered judgment for the defendants on Dubois’ complaint. The plaintiff and Dubois have filed separate appeals.

Three properties are involved in these appeals, all situated in the Mead’s Point section of Greenwich. The defendants own property known as the Lindemann estate, and claim they have rights-of-way over two other properties described in the appeals as lot 3, now owned by the plaintiff, and the Dubois property.

The Lindemann estate is a 9.7 acre parcel that is bounded by Long Island Sound on the east and by Indian Field Road on the west. Lot 3 is situated north of the Lindemann estate and is bounded by Long Island Sound on the east. Lot 3 is not situated directly on Indian Field Road, but has access to the road by crossing property described as lot 1. Lot 1 runs from the northwestern tip of lot 3 to Indian Field Road. The Dubois property is north of lots 1 and 3, and is bounded by Long Island Sound on the east and by Indian Field Road on the west.

The driveway in issue proceeds north from the Lindemann estate over the western boundary of lot 3. As it nears the northwest corner of lot 3, it curves until it is proceeding west over the northwestern section of lot 3 and the southern boundary of the Dubois property. After reaching the western boundary of lot 3, the driveway continues over the northern boundary of lot 1 and the southern boundary of the Dubois property until it reaches Indian Field Road.

The trial court found that the easements establishing the driveway over lot 3 and the Dubois property were appurtenant easements created in favor of the Lindemann property. As a result, the court concluded that the easements ran with the land to bind the subsequent owners of lot 3 and the Dubois property. The trial court also found that the easements over lot 3 and the Dubois property were created by separate warranty deeds. We will consider the easements over lot 3 and the Dubois property in turn.

I

In 1966, John and Carolyn Otto acquired both lot 3 and the Lindemann estate. In 1971, they conveyed lot 3 to Pamela Coyne by warranty deed (Otto-Coyne deed). The deed contained the following provision: “Grantors herein reserve a right of way for their remaining property over the existing driveway for all lawful purposes of travel and for connecting with any utilities which may be located thereon.” The executors of Coyne’s estate conveyed lot 3 to Herbert and Lucy Stiefel in 1976. The deed to the Stiefels stated that the conveyance was subject to the right-of-way reserved in the Otto-Coyne deed. In 1988, the Stiefels conveyed lot 3 to Louis Grossman, who conveyed the property to Belle Terre Associates, which conveyed the property to the plaintiff Steven Grossman. These deeds all stated that the conveyance was subject to the right-of-way reserved in the Otto-Coyne deed.

The Ottos used the existing driveway, albeit somewhat infrequently, over lot 3 until they conveyed their remaining property, the Lindemann estate, to Frayda and Carol Lindemann in 1982. The deed stated that the conveyance included “all right, title and interest reserved” in the Otto-Coyne deed. In 1987, Frayda and Carol Lindemann conveyed the property by deed to the defendants, George and Frayda Lindemann. The deed stated that the conveyance included the right-of-way over lot 3.

The trial court found that the driveway over lot 3 was used primarily as a service entrance by the Lindemann estate without interruption until 1985, when a chain link fence was installed across the driveway at roughly the boundary line of lot 3 and the Lindemann estate. The Stiefels then planted grass and shrubbery on their side of the fence.

The plaintiff claims that the trial court improperly found that the right-of-way over lot 3 was an appurtenant easement. The plaintiff contends that the right-of-way was personal to the grantors and did not run with the land because the reservation of the right-of-way in the deed lacked words of inheritance and assignment. He also claims that the defendants do not have a prescriptive easement over lot 3.

The primary issue is whether the right-of-way over lot 3 is appurtenant or in gross. The question of whether an easement is appurtenant or in gross is resolved by ascertaining the intent of the parties as expressed in the deed. Leabo v. Leninski, 182 Conn. 611, 614, 438 A.2d 1153 (1981); Dunn Bros., Inc. v. Lesnewsky, 164 Conn. 331, 335, 321 A.2d 453 (1973); Dean v. Riley, 31 Conn. App. 87, 90, 623 A.2d 521 (1993). This intent is determined by considering the language and the relevant provisions of the deed in light of the then existing situation of the property and the current surrounding circumstances. Lago v. Guerrette, 219 Conn. 262, 267, 592 A.2d 939 (1991); Leabo v. Leninski, supra; Dunn Bros., Inc. v. Lesnewsky, supra; Dean v. Riley, supra. The determination of the intent expressed in a deed presents a question of law. Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992). Thus, our review of the trial court’s conclusions as to intent is plenary, and does not require deference to the trial court’s factual findings. Id.

It is well established that where the reservation creating an easement does not mention the heirs and assigns of the grantee, a presumption exists that the grantor and grantee intended the right-of-way to be in gross. Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); Leabo v. Leninski, supra, 614; Dunn Bros., Inc. v. Lesnewsky, supra, 335. The presumption, however, is rebuttable. Kelly v. Ivler, supra; Leabo v. Leninski, supra; Dunn Bros., Inc. v. Lesnewsky, supra. The reservation will be interpreted as creating an appurtenant easement if it appears, from the surrounding circumstances and other relevant provisions in the deed, that the parties intended the easement to run with the land. Kelly v. Ivler, supra; Leabo v. Leninski, supra; Dunn Bros., Inc. v. Lesnewsky, supra. Several factors may rebut the presumption. They are (1) whether the language of the reservation indicates that the easement is intended to run with the land, (2) whether the easement is of value to the dominant estate itself, and (3) whether the owner of the servient estate recognized the right of the subsequent owners of the dominant estate to use the easement. Kelly v. Ivler, supra, 43-44; Leabo v. Leninski, supra, 614-15; Dunn Bros., Inc. v. Lesnewsky, supra, 335-36.

In this case, the easement is presumed to be in gross because the reservation in the Otto-Coyne deed does not use the language “heirs and assigns.” After considering the language of the reservation and the other relevant provisions of the deed in light of the surrounding circumstances, we conclude that the presumption has not been rebutted.

The language of the deed expressed an intent to create an easement in gross. The reservation not only lacked words of inheritance, it also lacked the terms “appurtenant” and “runs with the land,” which have been recognized as expressions of an intent to create an easement appurtenant. See Kelly v. Ivler, supra, 44; Dunn Bros., Inc. v. Lesnewsky, supra, 336. In fact, the reservation used language indicating that the easement was personal. The reservation stated that the right-of-way was reserved for the “grantors herein” (emphasis added), which indicates that the reservation was in favor of the particular grantors of the conveyance. See Kowalski v. Mather, 112 Conn. 594, 594-95, 153 A. 168 (1931). The reservation also uses the personal pronoun “their” in stating that the grantors reserved the right-of-way in favor of “their remaining property.” (Emphasis added.)

In this case, the reservation was part of paragraph thirteen of the “subject to” section of the deed. In that paragraph, the grantors also reserved a conditional right to repurchase lot 3, as long as they owned property adjoining lot 3. That reservation referred to the “Grantors herein” and the “Grantee, her heirs and assigns.” Thus, it can be inferred that the grantor and grantee used “herein” language when they intended a reservation to be personal, but used “heirs and assigns” language when they intended a reservation to run with the land. This is further demonstrated by paragraph twelve of the “subject to” section, which stated that a restriction regarding laundry and drying areas “run[s] with the land” to bind “the Grantee, her heirs and assigns.”

In regard to the factor of value, we consider whether the easement enhances and will continue to enhance the value of the claimed dominant estate, rather than merely conveniencing the grantor. Leabo v. Leninski, supra, 615; Dunn Bros., Inc. v. Lesnewsky, supra, 335. One consideration in this determination is whether the easement was the sole means of access to the estate to be benefited at the time of the reservation. See Birdsey v. Kosienski, 140 Conn. 403, 410-11, 101 A.2d 274 (1953); Knowlton v. New York, N.H. & H. R. Co., 72 Conn. 188, 192-93, 44 A. 8 (1899); see also Kelly v. Ivler, supra, 43. Although the easement in this case had some value to the Otto property, now the Lindemann property, because the right-of-way served as a service entrance, it was not the only means of access to the buildings on the property. Nor is the right-of-way necessary for access to Long Island Sound, which would enhance the value of the property; see Kelly v. Ivler, supra; as the defendants have frontage on and access to the sound. Thus, we conclude that the easement was of limited value.

A third factor in determining whether the presumption is rebutted is whether the owner of the estate to be burdened recognized that subsequent owners of the estate to be benefited would have a right to exercise the easement. Id. Here, Pamela Coyne was the owner of lot 3 from 1971 until the executors of her estate conveyed it to the Stiefels in 1976. Coyne recognized the right of the Ottos to use the right-of-way, as did her successors in title until the Ottos conveyed their property to the defendants in 1982. Because Coyne died before the Ottos conveyed their property to the defendants, there could be no evidence that she, as the owner of the estate to be burdened, recognized the right of the successors in title to the Ottos to use the right-of-way.

After reviewing the relevant factors, we conclude that the presumption that the reservation creating an easement without mention of heirs and assigns was intended to be in gross has not been rebutted. A presumption is equivalent to prima facie proof of its validity. Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985). Because the presumption was not rebutted, we hold that the defendants do not have an easement over the plaintiff Grossman’s land.

The trial court also concluded that judgment should enter for the defendants on their special defense of acquisition of an easement by prescription, but did not discuss the issue separately and made no separate findings of fact as to it. In discussing the first special defense, the acquisition of the easement by deed, however, the trial court stated some facts that are relevant to whether an easement by prescription or by necessity was created.

To acquire an easement by prescription, the use of the property must be adverse. General Statutes § 47-37; Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993). In order to prove adverse use, the party claiming to have acquired the easement must demonstrate that the use of the property has been “ ‘open, visible, continuous and uninterrupted for fifteen years and made under a claim of right.’ ” Westchester v. Greenwich, supra; Klar Crest Realty, Inc. v. Rajon Realty Corp., 190 Conn. 163, 168, 459 A.2d 1021 (1983).

A claim of right exists only if the user does not recognize the right of the owner of the servient tenement to prevent the use. Westchester v. Greenwich, supra; Klar Crest Realty, Inc. v. Rajon Realty Corp., supra. When the user has permission from the servient owner to use the property, the use is not prescriptive because the user has notice of the owner’s right to terminate the use. Klar Crest Realty, Inc. v. Rajon Realty Corp., supra. However, “ ‘[wjhere the use began as the result of an ineffective or invalid grant, that fact does not negate its adverse character but tends rather to emphasize that it was made under a claim of right.’ ” Id., 169; see also Schulz v. Syvertsen, 219 Conn. 81, 91, 591 A.2d 804 (1991).

The prescriptive period does not begin to run if the dominant and servient estates are under the same ownership. Whiting v. Gaylord, 66 Conn. 337, 344, 34 A. 85 (1895). Once the prescriptive use begins, the use must continue without interruption for fifteen years. Westchester v. Greenwich, supra; Klar Crest Realty, Inc. v. Rajon Realty Corp., supra, 168. The owner of the servient land over which the right-of-way is used may interrupt the use by committing an act that breaks its continuity. 25 Am. Jur. 2d, Easements and Licenses § 57 (1966); cf. South Norwalk Lodge v. Palco Hats, Inc., 140 Conn. 370, 374, 100 A.2d 735 (1953).

In this case, the Ottos owned both the dominant and servient estates — the Lindemann property and lot 3, respectively — until 1971 when they conveyed lot 3 to Coyne. The Otto-Coyne deed, while failing to create an appurtenant easement, established a claim of right in 1971. The trial court found, however, that a fence was constructed across the entrance of the right-of-way in 1985. After the installation of the fence, the Steifels, the owners of the servient estate at that time, planted grass and shrubbery on their side of the fence. Because the fence and plantings interfered with the use of the easement before the statutory period of fifteen years was satisfied; General Statutes § 47-37; Klar Crest Realty, Inc. v. Rajon Realty Corp., supra; the defendants could not have acquired a prescriptive easement over lot 3. The defendants’ special defense also claims an easement by necessity. Since the trial court also found that the Lindemann property has another means of access to a public road, there could be no easement by necessity. See Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 398-402, 324 A.2d 247 (1973).

II

Prior to October 10,1906, William Wood owned the Dubois property and the land that now comprises lots 1, 2, and 3, and the Lindemann estate. In 1906, Wood conveyed the Dubois property to W. Templeton Johnson (Wood-Johnson deed). The deed conveying the property contained a provision that reserved, in favor of Wood and his heirs and grantees, “the right to use said private roads or driftways for any purpose for which [Wood] can now use the same.” The deed’s property description indicated that the southern boundary line ran along the center line of a twenty-six foot “private road or driftway.” In 1916, Johnson and his wife, Clara Sturges Johnson, conveyed the Dubois property to Helen Sturges Dubois. The deed did not mention the 1906 reservation, but the deed’s property description contained the same description regarding the southern boundary line as did the 1906 deed. After the property passed by will to Elizabeth Gibson Dubois, she conveyed the property to herself and J. Delafield Dubois in 1959. The deed did not mention the 1906 reservation, but the property description indicated that the southern boundary line of the property ran along the center line of a private road.

Prior to November 9, 1951, Hans Tobeason owned the land that now comprises lots 1, 2, and 3, and the Lindemann estate (Tobeason property). In 1951, Tobeason conveyed lots 1, 2, and 3. In 1954, Tobeason conveyed the Lindemann estate to Raymond Marshall. The deed conveyed the property together with “all rights and interest in and to the private roads or driftways leading to or adjoining” the Lindemann estate. In 1966, Marshall conveyed the Lindemann estate to John and Carolyn Otto. The deed conveyed the property together with “all rights and interest in and to the private roads and driftways leading to or adjoining” the Lindemann estate. In 1982, the Ottos conveyed the Lindemann estate to Frayda and Carol Lindemann. The deed conveyed the property together with “all rights and interest in and to the private roads, driveways and driftways leading to or adjoining” the property. Frayda and Carol Lindemann, as trustees, conveyed the property to the defendants, George and Frayda Lindemann, in 1987.

The trial court found the defendants acquired a right-of-way over the Dubois property by an unbroken chain of title from Wood, and that the defendants had also acquired it by prescription. Dubois disputes these conclusions. It is a well established principle that where an easement is appurtenant to any part of a dominant estate, and the estate is subsequently divided into parcels, each parcel may use the easement as long as the easement is applicable to the new parcel, and provided the easement can be used by the parcels without additional burden to the servient estate. Phoenix National Bank v. United States Security Trust Co., 100 Conn. 622, 630, 124 A. 540 (1924). An easement is applicable to the new subdivision (1) if the easement directly abuts on the new parcel, or (2) if the owner of the new parcel can reach the easement by traveling over intervening land over which the owner has a legal right of passage. Id., 634.

In this case, the Wood-Johnson deed reserved an appurtenant easement over the Dubois property in favor of the Tobeason property, the land that now comprises lots 1, 2, and 3, and the Lindemann estate. Due to the division of the land into four lots, the Lindemann estate is not adjacent to the Dubois property. Since the Lindemann estate does not abut the Dubois property, the Dubois right-of-way can be applicable to the Lindemann estate only if the owners of the Lindemann estate have a legal right of passage over the intervening land. The defendants cannot access the Dubois right-of-way without traveling over both lot 1 and lot 3. Although the defendants have a right to travel over lot 1, they have no right to travel over lot 3, as indicated by our previous analysis. We conclude, therefore, that, as a matter of law, the defendants do not have an express right to use the Dubois right-of-way.

We also conclude that the defendants did not acquire an easement by prescription over the Dubois property. A fence and plantings prevented access across lot 3 and, therefore, across the Dubois property as well because without access to lot 3, that portion of the right-of-way on the Dubois property could not be reached. As a result, the use over the Dubois property was not uninterrupted for the prescriptive period. General Statutes § 47-37; Klar Crest Realty, Inc. v. Rajon Realty Corp., supra.

The plaintiff and Dubois sought damages as well as injunctive relief. They do not argue in their brief, however, that, in the event we reverse the trial court, damages are due, nor do they seek any particular relief, other than a reversal of the trial court’s conclusions of law that the defendants have a right-of-way over their land by deed or prescription. “Some damage necessarily follows any wrongful invasion of another’s property . . . but it is nominal as distinguished from any specific damage suffered or proved. . . . [Sjome damage results from the mere invasion of the plaintiff’s property rights, and its amount, not being determinable by proof, must be comparatively small and in that sense nominal. . . .Asa general rule, however, this court will not reverse and grant a new trial for the mere failure to award nominal damages.” (Citation omitted.) Matto v. Dan Beard, Inc., 15 Conn. App. 458, 489, 546 A.2d 854 (1988); see also Kelley v. Montesi, 14 Conn. App. 104, 107, 539 A.2d 1020 (1988). The trial court in this case did not reach the question of damages because it rendered judgment for the defendants. Since the plaintiff and Dubois are not entitled to other than nominal damages, no further action in the trial court is necessary. Matto v. Dan Beard, Inc., supra; Kelley v. Montesi, supra.

The judgments are set aside and the case is remanded with direction to render judgments of injunctive relief prohibiting the defendants from using any portion of lot 3 or the Dubois property.

In this opinion the other judges concurred.

       Belle Terre Associates, the named plaintiff, conveyed title to Grossman after the commencement of the action. The term plaintiff as used in this decision refers to Grossman, he being the only plaintiff involved in the appeals of both actions.
      The defendants in both cases are George L. and Frayda Lindemann.

       The plaintiffs in Stiefel v. Lindemann, were Herbert and Lucy Stiefel, former owners of lot 3, and Grossman, the present owner of lot 3. The Stiefels did not appeal from the judgment for the defendants and are not involved in these appeals. The plaintiffs in Belle Terre Associates v. Lindemann were the named plaintiff and Grossman, and Milton and Myra Schubin, the owners of property known as lots 1 and 2. The Schubins withdrew from the case after they conveyed an easement for foot and vehicular traffic over lot 1 to the defendants. This appeal, therefore, concerns only the claimed right-of-way over lot 3 and the Dubois property.

       The Coyne to Stiefel deed also stated that the conveyance was subject to the “[rjights of others in and to the northerly 13 feet of said premises formerly comprising a portion of the private road running easterly from Indian Field Road to Long Island Sound.”

       “An easement in gross belongs to the owner of it apart from his ownership or possession of any specific land and, in contrast to an easement appurtenant, its ownership is personal to its owners. ... If the easement is in its nature an appropriate and useful adjunct to the land conveyed, with nothing to show that the parties intended it to be a mere personal right, then it is an easement appurtenant. . . . An easement appurtenant must have a dominant estate that enjoys the benefit of the right-of-way and a servient estate that bears the burden. Such an easement can become legally attached to the dominant estate only if the same person owns both the right-of-way and the dominant estate. . . . While an easement appurtenant must be of benefit to the dominant estate, the servient estate need not be adjacent to the dominant estate.” (Citations omitted.) Dean v. Riley, 31 Conn. App. 87, 90-91, 623 A.2d 521 (1993).

       Although appellate review of a trial court’s conclusion as to intent is plenary, deference may be given to a trial court’s subsidiary findings of fact relating to the credibility of creators of easements as to their intent. Dean v. Riley, 31 Conn. App. 87, 93, 623 A.2d 521 (1993). In the present case, the credibility of the creators of the easement, the Ottos, is not involved in any factual finding.

       According to Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993), “herein” means “in this.”

       The defendants claim that a direct comparison of the reservations in the deed is unconvincing, and they cite Dunn Bros., Inc. v. Lesnewsky, 164 Conn. 331, 336, 321 A.2d 453 (1973), for this proposition. In that case, a direct comparison of the language used was not conclusive where the words of inheritance were used in one clause but not in another because other language and circumstances outweighed the lack of words of inheritance, including the fact that the disputed clause contained the expression “for and as an appurtenance to . . . .” Id.

       Although the party claiming an easement by prescription bears the burden of proof, “[a]ll that is required is a showing by a fair preponderance of the evidence that the use was adverse.” Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983); see also Schulz v. Syvertsen, 219 Conn. 81, 91, 591 A.2d 804 (1991).

       In regard to lot 3, there is evidence that the right-of-way over lot 3 was used from 1951 to 1966. Thus, it is possible that this use established a prescriptive easement. Any such easement was extinguished, however, when the Ottos purchased both the dominant and servient estates — the Lindemann property and lot 3, respectively. Blanchard v. Maxson, 84 Conn. 429, 434, 80 A. 206 (1911); see also 25 Am. Jur. 2d, Easements and Licenses § 108 (1966).


author: Freedman, J.

text:
    K and R Realty Associates v. Claudia Gagnon
    (12073)
    Foti, Landau and Freedman, Js.
    Argued December 6, 1993
    decision released March 29, 1994

      William L. Stevens, for the appellant (plaintiff).

      Paul Bialobrzeski, for the appellee (defendant).
   Freedman, J.

The plaintiff, K and R Realty Associates, appeals from the judgment of the trial court denying its claim for damages for the difference between the amount of rent due under a lease with a new tenant and the amount due under a lease breached by the defendant, Claudia Gagnon. The plaintiff claims that the trial court improperly determined that the plaintiff was not entitled to recover the difference in rent between the two leases because the plaintiff was not acting as an agent of the defendant when it relet the demised premises. We agree.

The plaintiff commenced an action against the defendant on December 26,1991, for breach of a commercial lease. On February 24,1992, the defendant was defaulted for failure to plead and the matter was claimed for a hearing in damages. At the hearing in damages, held on November 3, 1992, the plaintiff claimed damages totaling $40,205.03. The trial court rendered judgment for the plaintiff and awarded $22,123.37 in damages.

The following facts are not in dispute. The plaintiff leased one store in a nine unit commercial complex to the defendant for the period November 1,1990, to April 30, 1996. In August, 1991, the defendant defaulted on the payment of rent and failed to make any further payments. The defendant removed all of her belongings prior to April 1,1992, and turned over the keys at that time. The plaintiff made efforts to lease the store formerly occupied by the defendant, and, in April, 1992, secured a new tenant to lease the store together with two additional adjoining stores. The new lease commenced July 1, 1992, and ended July 30, 1995.

At the hearing in damages, the plaintiff claimed the following damages: loss of rental income from the date of default, August, 1991, to the date of the new lease, July 1, 1992, $13,698.41; real estate commission paid in connection with the defendant’s lease, $3773; real estate commission paid in connection with the new lease, $1620.85; miscellaneous utility bills, $271.51; attorney’s fees, $2759.60; and the difference between the rent due under the lease with the defendant and the rent due from the new tenant for the period July 1, 1992, through April, 1996, $18,081.66. The trial court awarded the plaintiff all of the amounts requested except the $18,081.66 difference in rent between the new lease and the old lease.

The trial court found that the plaintiff had accepted surrender of the premises and terminated the defendant’s tenancy and right of possession as of July 1,1992. The trial court concluded, however, that the plaintiff “acted for itself and not as the defendant’s agent, and, therefore, [was] not entitled to the difference in rents as claimed.” In reaching this conclusion, the trial court relied on a Michigan Supreme Court case, Michigan Lafayette Building Co. v. Continental Bank, 261 Mich. 256, 246 N.W. 53 (1933).

In Michigan Lafayette Building Co. v. Continental Bank, supra, the defendant tenant, who had leased store number three from the plaintiff landlord for the period of May 29,1924, to May 29,1929, defaulted on its lease in May, 1925. The landlord regained possession of the leased premises and, thereafter, leased store number three and store number two to a new tenant. In a previous action against the tenant, the landlord recovered the rent due from the date of the default to the date the new tenant took possession. The new tenant’s lease expired prior to May 29, 1929, and a subsequent tenant was found but that tenant canceled after a few months. The landlord then commenced a new action against the tenant to recover for the “unrented balance of the term.” Id., 258. The original lease between the plaintiff and the defendant provided that on the default of the tenant, the landlord could take possession and “ ‘relet the said premises for such time, expiring either before or after the end of the term of this lease, as first in this lease specified in the name of the lessor but as agent of lessee, and to receive the rent therefor holding the lessee liable for any deficiency ....’” (Emphasis added.) Id., 260.

The Michigan Supreme Court found that in reletting the space the landlord acted for itself and not as an agent of the tenant and, therefore, established surrender as a matter of law. In making this determination, the court focused in part on the character of the reletting by the landlord. The space relet was created by removing a partition and joining two stores, the store originally leased to the tenant and another store. Because the character of the space was changed so significantly, the court held that the landlord was not acting as an agent of the tenant but for himself when he relet the “new” space. The court also considered the facts that before the new tenant took possession the “plaintiff had charged [the] defendant each month with the rent and made demand through monthly statements,” but thereafter, “although the premises were vacant at times” the plaintiff failed “to make similar charges on its books and demand thereafter . . . .” Id., 261. The court found that this “constituted so radical a change in practice as to carry a strong inference of change of position regarding [the] defendant’s continued liability, and supported] the claim of completed surrender.” Id.

In the present case, the trial court, relying on Michigan Lafayette, held that the plaintiff acted for itself, and not as the defendant’s agent and, therefore, was not entitled to the difference in rents claimed. The trial court’s reliance on this 1933 Michigan case was misplaced. In Connecticut, “[w]hen the lessee breaches a lease for commercial property, the lessor has two options: (1) to terminate the tenancy; or (2) to refuse to accept the surrender. Sagamore Corporation v. Willcutt, 120 Conn. 315, 317-18, 180 A. 464 (1935); Dewart Building Partnership v. Union Trust Co., 4 Conn. App. 683, 687, 496 A.2d 241 (1985). Where the landlord elects to continue the tenancy, he may sue to recover the rent due under the terms of the lease. Under this course of action, the landlord is under no duty to mitigate damages. Dewart Building Partnership v. Union Trust Co., supra. When the landlord elects to terminate the tenancy, however, the action is one for breach of contract; Sagamore Corporation v. Willcutt, supra; and, when the tenancy is terminated, the landlord is obliged to mitigate his damages. Dewart Building Partnership v. Union Trust Co., supra. When the tenancy ends, the tenant is released from his obligations under the lease and is, therefore, no longer obliged to pay rent. Feneck v. Nowakowski, 146 Conn. 434, 436, 151 A.2d 891 (1959). . . .

“Although the termination of the tenancy releases a tenant from his obligations under the lease, such release does not leave the landlord without legal recourse to recover damages. Where a landlord, as in this case, elects to terminate the tenancy and to regain possession of the premises, although he cannot institute an action for rent due under the lease, he may sue for a breach of the lease. Where the action is one for breach of the lease, basic contract principles apply.” Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn. App. 384, 388-89, 558 A.2d 265 (1989).

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. Practice Book § 4061; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992); Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992).

The facts as found by the trial court are not challenged. The proper principles of law to be applied in this case are those set forth in Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., supra. Applying Rokalor to the facts of this case, we conclude that because the plaintiff terminated the tenancy as of July 1,1992, it properly pursued an action against the defendant for breach of lease. The plaintiff, thus, had a duty to mitigate its damages. See Dewart Building Partnership v. Union Trust Co., supra.

Having concluded that the plaintiff was required to mitigate its damages, we must next determine whether reletting the space leased to the defendant together with other adjoining space constituted a proper mitigation of damages. The plaintiff could have refused to rent to the new tenant on the basis that the new tenant would lease only the space vacated by the defendant if it included other additional adjoining space. If, however, the plaintiff thereafter was unable to lease the defendant’s space and then sought to recover for breach of the lease, the plaintiff ran the risk that it would be denied recovery because it had failed to mitigate its damages properly. To say, therefore, that the plaintiff was barred from any recovery for lost rent because the space relet by the plaintiff included the defendant’s space together with additional adjoining space would place an inordinate burden on the plaintiff and quite possibly work to the detriment of the defendant.

“ ‘A lease is nothing more than a contract. Robinson v. Weitz, 171 Conn. 545, 551, [370 A.2d 1066 (1976)]. Thus, as in any other contract action the measure of damages is that the award should place the injured party in the same position as he would have been in had the contract been fully performed. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 404-405, [365 A.2d 1086 (1976)]. As a consequence, the unpaid rent, while not recoverable as such, may be used by the court in computing the losses suffered by the plaintiff by reason of the defendant’s breach of contract of lease. The plaintiff would be entitled to recover the damages which would naturally follow from such a breach. Saga-more Corporation v. Willcutt, [supra, 320].’ See also Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 445-46, 438 A.2d 708 (1980); 49 Am. Jur. 2d, Landlord and Tenant § 183.” Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., supra, 389.

The appropriate measure of damages is one that would put this plaintiff in the same position it would have been in had the defendant not breached the lease. The trial court first must determine what portion of the total rent payable by the new tenant is allocable to the space previously leased by the defendant. Once that determination is made, the trial court then must determine if the plaintiff had in fact sustained any damages.

The portion of the judgment that denies recovery to the plaintiff for lost rent during the period July 1,1992, through April, 1996, is reversed and the matter is remanded to the trial court for a hearing to determine the amount, if any, of such damages, and with direction to render judgment awarding any such damages to the plaintiff.

In this opinion the other judges concurred.

       Section 20 of the lease between the parties provides in pertinent part: “Upon the happening of any Event of Default, Landlord, if he shall elect, may (1) collect each installment of rental hereunder as and when the same matures, or (2) Landlord, or any other person by his order, may re-enter the Demised Premises, without process of law, and without being liable to any prosecution therefor, may either elect to terminate this Lease or, if Landlord desires, not terminate the Lease, but terminate the right to possession and occupancy and re-let the Demised Premises to any person, firm or corporation as the agent of the tenant or otherwise, for whatever rent he shall obtain, applying the avails of such letting first to the payment of such expense as the Landlord may incur in the re-entering and re-letting of same, and then to the payment of the rent due hereunder and the fulfillment of the Tenant’s covenants, and paying over to the tenant the balance, if any; and in case of its deficiency, the Tenant shall remain liable therefor. . . .” (Emphasis added.)
      We note that this language, unlike the language in the lease in Michigan Lafayette, does not require the landlord to act solely as the agent of the tenant. In fact, it explicitly authorizes the landlord to act “as the agent of the tenant or otherwise . . . .” (Emphasis added.) Clearly the parties intended that the landlord be authorized to act in a capacity other than as the agent for the tenant or the words “or otherwise” would be without meaning. “The parties’ intent is ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983).” (Internal quotation marks omitted.) Harvey v. Daddona, 29 Conn. App. 369, 375, 615 A.2d 177 (1992).


author: O'Connell, J.

text:
    Economy Sales and Service Company v. Family Center Pharmacy, Inc.
    (12012)
    Dupont, C. J., O’Connell and Foti, Js.
    Submitted on briefs November 30, 1993
    decision released March 29, 1994

      Paul Bialobrzeski filed a brief for the appellant (defendant).

      Lester E. Blank and Cheryl E. Eckhardt filed a brief for the appellee (plaintiff).
   O'Connell, J.

The defendant appeals from a judgment rendered against it after a trial to the court. The defendant claims that the trial court improperly held that (1) the bulk sales act was applicable and (2) a creditor has a cause of action against a transferror under the circumstances of the case. We affirm the judgment of the trial court.

Each of the issues raised by the defendant requires a factual determination by the trial court. We afford review only to claims based on the complete factual record developed by the trial court. We cannot guess or speculate on the existence of a factual predicate to support a conclusion of law. Plati v. United Parcel Service, 33 Conn. App. 490, 494, 636 A.2d 395 (1994); State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).

We commence our analysis by considering the effect of Practice Book § 4059. “The trial court is given the option of filing a written memorandum of decision or orally reciting its decision into the record. If the decision is rendered orally, the court must order that the decision be transcribed and must sign the transcript and file it with the trial court within ten days of the filing of an appeal. Whether oral or written, the contents of the decision are identical. The rule requires that the court state its decision on the issues of the case and, if there are factual issues, the factual basis of its decision. See C. Tait, Connecticut Appellate Practice and Procedure (1989) § 4.4.” State v. Rios, 30 Conn. App. 712, 718, 622 A.2d 618 (1993) (O’Connell, J., concurring).

In the present case, the trial court neither filed a written memorandum of decision nor signed a transcript of an oral decision, as required by § 4059. Furthermore, the defendant failed to utilize any of the legal tools available to obtain the mandated decision. State v. Rios, supra, 718-19 (O’Connell, J., concurring).

In Holmes v. Holmes, 32 Conn. App. 317, 319-20, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993), we concluded that a similar delict in rule compliance constituted a failure on the part of the appellant to furnish an adequate record for review. “Without a written memorandum of decision or a properly recited and signed transcript of an oral decision on the record of the court’s findings, we cannot determine if the court’s conclusions were reasonable.” Zak v. Weisman, 18 Conn. App. 16, 20, 556 A.2d 181 (1989).

The duty of providing us with an adequate record rests on the appellant. Practice Book § 4061. Where the appellant fails in that duty, we may either decline to review the issues on appeal or order a remand compelling the trial judge to complete the trial court record. This court and the Supreme Court have both been reluctant sua sponte to order articulation if the appellant fails to move for articulation under Practice Book § 4051. See Holmes v. Holmes, supra, 332 (Lavery, J., dissenting). On a case-by-case basis, however, both courts have on occasion ordered articulation even after a case has been argued.

This court recently reiterated in Plati v. United Parcel Service, supra, 494-95, that “[ujnder normal circumstances, this court will not remand a case to correct a deficiency that the appellant should have remedied.” Remand following completion of appellate argument, however, gives rise to considerations not present if articulation is sought earlier in the appellate process. “A remand, resulting from an appropriate motion filed during the early stages of an appeal, is . . . certainly a less drastic step to correct the absence of a written memorandum or signed transcript of an oral decision.” State v. Rios, supra, 720 (O’Connell, J., concurring). It is usually untimely and impractical to order a remand after the appellant’s preliminary statement of issues has been filed, transcripts have been ordered, briefs of both parties have been filed, and oral argument has taken place in the Appellate Court. “A remand for compliance at this juncture potentially has the deleterious effect of returning the appeal to square one because new issues may arise from the heretofore undisclosed basis of the trial court’s decision.” Id.

Because the defendant has failed in its duty timely to furnish us with an adequate record for review, its claims must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant could have moved this court, under Practice Book § 4183 (1), to order the trial court to file a memorandum or, under Practice Book § 4051, filed a motion seeking an articulation. See State v. Rios, 30 Conn. App. 712, 718-19, 622 A.2d 618 (1993) (O’Connell, J., concurring).

       Practice Book § 4059 provides: “Except in small claims actions and as provided in Sec. 4060, when rendering judgments in trials to the court and in criminal cases, in ruling upon motions to dismiss under Sec. 814 and motions to suppress under Sec. 820, the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. The court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. If written, the decision shall be stated in a memorandum of decision, which shall be filed with the clerk.”

       Practice Book § 4061 provides in pertinent part: “It is the responsibility of the appellant to provide an adequate record for review.”

       For cases declining review see Ginsberg v. Fusaro, 225 Conn. 420, 430-31, 623 A.2d 1014 (1993); Berlin v. Commissioner of Revenue Services, 207 Conn. 289, 295, 540 A.2d 1051 (1988); J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987); Buchetto v. Haggquist, 17 Conn. App. 544, 548, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989); Urban v. Leggio, 1 Conn. App. 226, 228, 470 A.2d 1226 (1984).

       For case remanded for articulation see State v. Patterson, 227 Conn. 448, 455, 629 A.2d 1133 (1993); Lauer v. Zoning Commission, 220 Conn. 455, 470-71, 600 A.2d 310 (1991); Associated Catalog Merchants, Inc. v. Chagnon, 210 Conn. 734, 750-51, 557 A.2d 525 (1989); McNamee v. Woodbury Congregation of Jehovah’s Witnesses, 193 Conn. 15, 20, 475 A.2d 262 (1984); Kaplan v. Kaplan, 185 Conn. 42, 46, 440 A.2d 252 (1981); North Park Mortgage Services, Inc. v. Pinette, 27 Conn. App. 628, 632-33, 608 A.2d 714 (1992).