author: STOUGHTON, J.

text:
    MIDDLETOWN ASSOCIATES v. FAMILY DOLLAR STORES, INC., ET AL.
    (AC 16758)
    Foti, Spear and Stoughton, Js.
    Argued December 3, 1997
    officially released February 17, 1998

      Timothy G. Atwood, for the appellant (plaintiff).

      Thomas W. Witherington, for the appellees (defendants).
   Opinion

STOUGHTON, J.

The plaintiff, Middletown Associates, appeals from the trial court’s judgment of dismissal. The plaintiffs action seeking payment of rent was dismissed on the ground that the plaintiff failed to present sufficient evidence to establish a prima facie case of breach of contract, estoppel and detrimental reliance. The plaintiff claims that it presented sufficient evidence to establish (1) a prima facie case of breach of an express contract, (2) acceptance of a counteroffer resulting in a contract, or (3) implied contract arising from detrimental reliance on the defendants’ representations. We affirm the judgment of the trial court.

The trial court ordered the trial bifurcated and heard evidence on the issue of whether a contract was made. After the plaintiff rested, the defendants moved for a directed verdict. The parties agree that the trial court properly treated the motion as a motion for judgment of dismissal pursuant to Practice Book § 302. Concluding that negotiations between the parties had never produced a meeting of the minds, the trial court granted the motion.

There appears to be little dispute over the facts. Beginning in 1992, the plaintiff entered into negotiations with the defendants concerning the lease of certain commercial premises in the Middletown Shopping Plaza, which it owned. The defendant, Family Dollar Stores, Inc., is a national retailer, and the defendant, Family Dollar Stores of Connecticut, Inc., is the Connecticut subsidiary.

After some negotiation, the defendants sent to counsel for the plaintiff five counterpart originals of a lease agreement dated May 21,1993, and executed by Family Dollar Stores of Connecticut, Inc. The lease agreement was sent with a letter dated May 24, 1993, from the assistant general counsel for Family Dollar Stores, Inc., Thomas E. Schoenheit. In his letter, Schoenheit wrote that this was an offer that could be accepted only by signing the originals without making any modifications. He also wrote that the landlord would have to insert in the lease a legal description of the premises and any easements, covenants and restrictions, all subject to the defendants’ approval. In the letter, Schoenheit referred to paragraph 21 (i) of the lease, which provides in part that the tenant would not operate its business so as to violate any restrictive covenant or restrictive agreement contained in any other lease of which the tenant then had knowledge. He wrote that Family Dollar Stores had no knowledge of any restrictive covenant or restrictive agreement of any lease between the landlord and any present tenant at the shopping plaza.

On June 24, 1993, counsel for the plaintiff sent back, as required, three executed counterpart originals of the lease agreement with a letter pointing out that they contained new pages 2 and 6A. The letter also referred to a list of restrictive uses and covenants between the landlord and other tenants, which apparently was not enclosed.

At some time subsequent to receipt of the signed lease agreement, the defendants obtained a building permit for certain construction agreed to under the terms of the lease. On June 25, 1993, Schoenheit wrote to counsel for the plaintiff to express surprise that the list of restrictive uses and covenants, which had been inserted in the lease, contained thirty-two items but, nevertheless, accepted them on the condition that none contained rights or matters that would interfere with the defendants’ operation of a typical Family Dollar Stores.

On June 28, 1993, a regional vice president of Family Dollar Stores wrote to counsel for the plaintiff to say that two of the restrictions in favor of other tenants would interfere with its operations and that these would have to be resolved. When it became apparent that this could not be accomplished, the plaintiff informed the defendants that rental payments would commence on November 1, 1993, and the defendants informed the plaintiff that the lease had never been accepted by them. The plaintiff subsequently brought an action alleging breach of contract, promissory estoppel and detrimental reliance.

On appeal of a dismissal pursuant to Practice Book § 302, we take the plaintiffs evidence as true and consider the trial court’s conclusions in light of the evidence in the record. Loiseau v. Board of Tax Review, 46 Conn. App. 338, 342, 699 A.2d 265 (1997); Walshon v. Walshon, 42 Conn. App. 651, 654, 681 A.2d 376 (1996). Whether the plaintiff has established a prima facie case is a question of law. Loiseau v. Board of Tax Review, supra, 343; Wordie v. Staggers, 27 Conn. App. 463, 465, 606 A.2d 734 (1992); see Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 561, 447 A.2d 406 (1982). We must determine whether the trial court properly determined that the plaintiff failed to provide sufficient evidence to establish a prima facie case. Walshon v. Walshon, supra, 656-57.

The plaintiff correctly states that the issue is not whether the trial court could have concluded, after weighing the evidence, that the plaintiffs evidence failed to meet the requisite burden of proof. The issue is whether the evidence, viewed in the light most favorable to the plaintiff and given the benefit of all reasonable inferences, is sufficient to establish a prima facie case for the plaintiff. Loiseau v. Board of Tax Review, supra, 46 Conn. App. 342-43; Ivimey v. Watertown, 30 Conn. App. 742, 751, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993), citing Logan v. O’Neill, 187 Conn. 721, 728, 448 A.2d 1306 (1982); Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 308-309, 635 A.2d 843 (1993).

Certain additional facts are necessary to our resolution of this claim. At trial, counsel for the plaintiff and defendants stipulated to the admissibility of twenty-six documents, consisting of lease agreement drafts and correspondence between the parties. These documents were admitted as full and joint exhibits.

It is the plaintiffs position that the signed lease, together with certain testimony by representatives of the plaintiff stating that when they signed the documents the plaintiff would have a lease, constituted a prima facie case of the existence of a contract. There was a good deal of additional evidence before the court, however, that, taken as true, demonstrated that although the documents had been signed, the parties had not yet reached agreement on several aspects of the lease. The letter from the defendants, which the plaintiff claims constituted an offer, clearly states “this offer may only be accepted by signing all counterpart originals of the enclosed Lease Agreement without making any modifications and returning three (3) originals to Family Dollar.” The plaintiff signed the three copies of the lease, but added two new pages, as indicated by its cover letter stating, “Please note the addition of new pages 2 and 6a and Exhibits A and I.” Furthermore, the defendants’ original offer was conditioned on their acceptance of exhibits to be inserted by the plaintiff. That clearly did not occur.

It is true, as the plaintiff asserts, that the court does not weigh conflicting evidence in considering a motion to dismiss. See Walshon v. Walshon, supra, 42 Conn. App. 654. Nevertheless, the court may not consider only such evidence as the plaintiff believes will support its case and ignore that which fails to support it. The court must consider all evidence presented by the plaintiff, taken as true and viewed in the light most favorable to sustaining its claims, not just that which supports the plaintiffs claims. See Discover Leasing, Inc. v. Murphy, supra, 33 Conn. App. 308; Bolmer v. Kocet, 6 Conn. App. 595, 603, 507 A.2d 129 (1986). We know of no authority holding that the court may so restrict its consideration of the evidence as to exclude all of the evidence except that which the plaintiff wishes to consider.

Since the trial court was not obliged to consider only the signed lease document and such testimony as the plaintiff might designate, but was required to consider all of the plaintiffs evidence presented to it, it had to consider the evidence that (1) the lease was signed subject to conditions, (2) the lease agreement, as signed and returned to the defendants by the plaintiff, had been altered and differed from the document signed by the defendants, and (3) the parties continued to negotiate after the lease agreement had been signed. It was thus manifest, as the trial court concluded, that the plaintiff presented insufficient evidence to establish the formation of a contract or the acceptance of a counteroffer.

For the foregoing reasons, the plaintiffs claim with regard to implied contract and detrimental reliance is equally without merit. The plaintiff claims that an implied contract arose from the defendants’ representations of their intent to enter into a lease and the plaintiffs justifiable reliance on those representations to their detriment. Clearly, the offer extended by the defendants was conditioned on acceptance of the lease without modification and approval of easements, covenants and restrictions. The plaintiffs purported acceptance modified the lease to include two new pages. In addition, the restrictions imposed by the leases to other tenants were never approved. Viewing the plaintiffs evidence as true and construing it in the plaintiffs favor, we conclude that there was no contract, implied or otherwise, on which the plaintiff would have been justified in relying.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Family Dollar Stores, Inc., a Delaware corporation, and Family Dollar Stores of Connecticut, Inc., a Connecticut corporation.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    EILEEN DEMARIA v. JOSEPH L. DEMARIA
    (AC 17025)
    O’Connell, C. X, and Lavery and Dupont, Js.
    Submitted on briefs December 5, 1997
    officially released February 24, 1998

      Raymond C. Lubus filed a brief for the appellant (defendant).

      David P. Ball filed a brief for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of the trial court denying his postjudgment motion to terminate alimony. He claims that the trial court employed the incorrect standard in making its decision. We reverse the trial court’s judgment.

When the marriage of the parties was terminated on June 4, 1992, the judgment of dissolution included a provision stating that “the defendant shall pay to the plaintiff the sum of $85 per week as and for alimony, which alimony shall terminate upon . . . the cohabitation by the plaintiff with an unrelated male . . . .”

On January 29, 1997, the plaintiff filed a motion for contempt on the ground that the defendant had voluntarily and intentionally stopped paying alimony. This was followed, on January 31, 1997, by the defendant’s motion to terminate the alimony payments on the ground that the plaintiff had been cohabiting with a male since April, 1996. Following an evidentiary hearing, the trial court found that the plaintiff was living with another person, but also found that there was no evidence that this fact altered her financial needs. As a result, the trial court denied the defendant’s motion to terminate alimony.

The defendant argues that he was seeking relief under the judgment of dissolution, which did not require a finding that the plaintiffs cohabitation altered her financial needs. The plaintiff responds that General Statutes § 46b-86 (b) expressly provides that to terminate alimony, the cohabitation must “cause such a change in circumstances as to alter the financial needs of the [cohabiting] party.”

The plaintiff is correct that a change in financial circumstances must be alleged and proved when alimony termination is sought on the basis of the statute. In order to find that the party receiving alimony was cohabiting as defined by the statute, the movant has the two-pronged burden of proving that (1) the party receiving alimony was living with another person and (2) the living arrangement caused a change of circumstances so as to alter that party’s financial needs. D’Ascanio v. D'Ascanio, 237 Conn. 481, 486, 678 A.2d 469 (1996).

A different rule pertains, however, when relief from alimony is sought pursuant to a clause in the judgment that does not require that the cohabitation alter the financial needs of the cohabiting party. Milhalyak v. Milhalyak, 30 Conn. App. 516, 520-21, 620 A.2d 1327 (1993). In such a situation, proof of cohabitation alone is sufficient to terminate alimony. Id., 522.

The issue before us is whether the defendant’s motion should have been considered pursuant to the statute or pursuant to the judgment. The motion alleges that the dissolution judgment provided for alimony termination in the event of cohabitation with an unrelated male and that the plaintiff has been so cohabiting. The defendant claims that he was distinctly seeking enforcement of the dissolution judgment, rather than pursuing relief under the statute and, therefore, a finding of a change in financial needs was not required. We agree.

When a trial court draws conclusions of law, our review is plenary and our function is to determine whether the trial court’s conclusions are legally and logically correct and find support in the facts that appear in the record. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992). The defendant’s motion as well as the trial court transcript support the defendant’s claim that he was seeking to enforce the terms of the dissolution judgment. The motion claims termination of alimony on the authority of the judgment and the transcript is bereft of any reference to a claim for relief under the statute. The sole reference to the statute is in the motion’s claim for relief, which requests termination of alimony based on the judgment or, “in the alternative,” termination based on the statute.

The plaintiff contends that the defendant’s alternative form of pleading in the request for relief enabled the trial court to issue its findings on the basis of either of the alternative grounds for relief. That principle is true only to the extent that the trial court could have granted the defendant’s requested relief on either of the alternative grounds. The trial court was not authorized, however, to deny the defendant relief based on one ground without ever addressing the merits of the alternative ground. A prayer for relief in alternative form is defined as “[a] prayer in a pleading . . . being in the alternative, so that if one kind of relief be denied, another may be granted. . . .” Ballentine’s Law Dictionary (3d Ed. 1969); see also Makusevich v. Gotta, 107 Conn. 207, 209, 139 A. 780 (1928) (“ ‘causes of action . . . are stated in one form of complaint, and judgment may be rendered for the relief demanded upon any right of action which the facts alleged in the complaint are sufficient in law to support’ ”).

Under the circumstances, it is clear that the defendant was seeking relief under the terms of the judgment of dissolution and the trial court incorrectly relied on the statutory requirement of a change in financial need. In view of its finding that the plaintiff was living with another person, the trial court should have terminated the defendant’s alimony under the self-executing termination clause in the judgment.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to terminate alimony and to vacate the finding of alimony arrearage.

In this opinion the other judges concurred.

       The plaintiff filed a motion to modify child support, which was granted at the same time that the court acted on the other motions of the parties, and which is not involved in this appeal.

       The defendant’s motion to terminate alimony stated: “The Defendant, Joseph DeMaria, represents as follows:
      “1. On June 4, 1992, this court (Mihalakos, J.~) entered a judgment of dissolution of the marriage.
      “2. Pursuant to the terms of said decree, the Defendant was ordered to pay to the Plaintiff as and for alimony the sum of $85.00 per week.
      “3. Pursuant to the terms of said decree, the obligation of the Defendant to pay to the Plaintiff alimony would terminate upon the occurrence of Plaintiffs death, remarriage, or cohabitation with an unrelated male.
      “4. The Plaintiff has been cohabiting with an unrelated male commencing on or about April, 1996, specifically, Mr. John Foristall, at 2 Famam Hill Road, Bethel, Connecticut.
      “WHEREFORE The [Defendant] respectfully moves for:
      “(A) termination of alimony based on the judgment in the file or;
      “(B) in the alternative, termination of alimony based on Plaintiffs cohabitation pursuant to Connecticut General Statutes § 46b-86; and
      “(C) Reimbursement of alimony payments paid to Plaintiff from April, 1996, until August 31, 1996.”

       The trial court also acted on the plaintiffs motion for contempt and determined an arrearage amount, but expressly declined to make a finding of contempt.

       General Statutes § 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

         The plaintiff contends that Milhalyak v. Milhalyak, supra, 30 Conn. App. 516, is inapplicable to the present case because it involved a judgment that incorporated an oral stipulation of the parties. Contrary to the plaintiffs argument, the fact that the cohabitation provision in the judgment at issue here did not initiate as a stipulation between the parties does not change our analysis. The controlling fact is that the judgment contained the cohabitation provision; the origin of the provision is irrelevant. The same provision also required that alimony “terminate upon the death of either party [or] the remarriage by the plaintiff . . . .’’If either of those circumstances had occurred, the judgment of the court would have been given effect and alimony would have terminated. The cohabitation provision of the judgment should not be treated any differently.

       See footnote 2, paragraphs three and four of the defendant’s motion.

       Issues of law on appeal are reviewed de novo. See State v. Atkinson, 235 Conn. 748, 759 n.17, 670 A.2d 276 (1996); State v. Geisler, 222 Conn. 672, 694, 610 A.2d 1225 (1992).

       The following charge occurred during the defendant’s cross-examination:
      “Q. Mr. DeMaria, you—you testified that you stopped malting alimony payments to your ex-wife on what date?
      “A. I believe the last time I paid her was August 31, 1996.
      “Q. And, why did you stop payment?
      “A. I stopped payment because my wife has been living with Mr. John Foristall for the past year on a regular basis somewhere between four to six nights a week, and I discussed with my wife her behavior, and I said, ‘This is unacceptable. First of all, you have two younger children in the household, and therefore, if you’re going to continue this, I’m not going to pay you per our divorce agreement.’

        “Q. Now, when you say, divorce agreement, what are you referring to, Mr. DeMaria?
      “A. Um—We were divorced in June of 1992. I called it an agreement. I believe it’s a judgment, and per the paragraph of the agreement it says that if my ex-wife dies, remarries, or cohabits, alimony will stop. And, therefore, I felt that she was—had been cohabiting for a number of months via the information I had from my children and—and other people.
      “Q. So, your stopped payment of alimony was just enforcement of the decree. Is that correct?

        “A. Yes, my interpretation of the decree was that it stopped upon her doing one of those three things.” (Emphasis added.)


author: DUPONT, J.

text:
    ELIZABETH NOVICKI v. CITY OF NEW HAVEN
    (AC 16464)
    Foti, Dupont and Daly, Js.
    Argued December 11, 1997
    officially released February 24, 1998

      Richard M. Franchi, for the appellant (plaintiff).

      William F. Clark, with whom, on the brief, was Thomas W. Ude, Jr., assistant corporation counsel, for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff appeals from the judgment rendered by the trial court granting the defendant city of New Haven’s motion to dismiss a personal injury suit brought pursuant to General Statutes § 13a-149. The plaintiff claims that the trial court improperly (1) granted the defendant’s motion to dismiss for lack of subject matter jurisdiction and (2) sustained the defendant’s objection to the plaintiffs request for leave to amend her complaint. We affirm the judgment of the trial court.

The plaintiff alleged in her complaint filed in October, 1991, that on October 19, 1990, she had suffered injuries as a result of a fall on a walkway that runs from Davis Street to the north exit of the Davis Street School in New Haven, and attached to her complaint the notice of this incident dated December 13, 1990, which she had sent to the city, as required by § 13a-149. The complaint also alleged that the city had a duty to keep and maintain the sidewalks and streets within its territorial limits in a reasonably safe condition, but did not allege that the city had such a duty with regard to the particular walkway that is the subject of the plaintiffs complaint.

The defect alleged in the plaintiffs statutory notice of claim, and in her complaint, was described as a large, indented crack at the top of a street ramp adjacent to the stairway of a walkway leading to the Davis Street School. The exact location of the crack was given. The complaint alleged various ways in which the city had breached its alleged statutory duties to the plaintiff. On April 13, 1993, the plaintiff amended her complaint to add a claim that the city was also in breach of its statutory duty because the ramp was too steep.

On August 11, 1995, the city moved for summary judgment claiming that the property on which the plaintiff allegedly fell, although owned by the city, was not a city “highway” under the highway defect statute. General Statutes § 13a-149. The city also claimed that it was not the proper defendant in the action. The city’s motion for summary judgment, filed prior to its motion to dismiss, was denied on January 29, 1996, because the court could not conclude, as a matter of law, that the location of the plaintiffs fall was not a public highway or sidewalk. The court also noted in its denial of summary judgment, the absence of any affidavit establishing what party had actual control over the location of the plaintiffs fall.

On or about March 22, 1996, the plaintiff moved to amend her complaint a second time to add a claim of nuisance. The city objected to the amendment, which objection was initially overruled. On July 2, 1996, the city moved to reargue its objection on two grounds: (1) that the claim was barred by the statute of limitations, and (2) that the original highway defect cause of action failed to put the city on notice of a nuisance claim for purposes of the city’s investigation, leaving the city unequipped to defend such a claim more than five years later. On July 11, 1996, the city’s motion to reargue was granted, limited to the second ground. On September 24, 1996, the court, Corradino, J., heard reargument and sustained the defendant’s objection.

On April 4, 1996, the city moved to dismiss the complaint for lack of subject matter jurisdiction, claiming that the plaintiff could not bring herself within the statutory exception to governmental immunity set forth in § 13a-149 because the walkway was not a road for purposes of that statute, and because the city was not the party bound to maintain or repair the walkway. The city attached affidavits stating that the walkway was on the property of the Davis Street School, and that the New Haven board of education, not the city, was the party bound to maintain that property.

On September 25, 1996, the court, Gray, J., heard oral argument on the city’s motion to dismiss for lack of subject matter jurisdiction and granted the motion. The city asserted that absent compliance with the requirements of § 13a-149, the doctrine of sovereign immunity deprived the court of subject matter jurisdiction. The city further asserted that the statutory requirements for the state’s legislative waiver of immunity, set forth in § 13a-149, had not been met because the plaintiffs complaint failed to allege, nor could it be established, that (1) the area of the plaintiffs alleged fall was on a “road or bridge,” or (2) the city was the party bound to keep the area in repair. The city also filed two supporting affidavits as evidence that it was not the party responsible for the maintenance and repair of the walkway at issue. The plaintiff relied on a previously filed affidavit stating that the city was the owner of record of the Davis Street School property. The trial court agreed that the requirements of § 13a-149 had not been met and, accordingly, granted the city’s motion to dismiss. The plaintiff had also filed a motion to reargue the city’s objection to the plaintiffs request to amend the complaint as to the September 24, 1996 ruling, but the motion was rendered moot by the dismissal of the action.

The plaintiff first claims that the trial court improperly granted the city’s motion to dismiss for lack of subject matter jurisdiction. It is well established that the state or a city is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases. Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). Thus, in a case where a government is the defendant, courts do not have subject matter jurisdiction unless such jurisdiction is statutorily conferred. The legislature, however, has carved out certain statutory exceptions to the general rule of sovereign immunity and allowed governmental entities to be sued under certain limited circumstances. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979) (sovereign immunity can be waived by appropriate legislative action); State v. Chapman, 176 Conn. 362, 364, 407 A.2d 987 (1978) (same). The highway defect statute, § 13a-149, on which the plaintiff depends for her cause of action, is one of those exceptions.

Where a court’s jurisdiction arises solely from a statutory waiver of sovereign immunity, the statutory provisions must be strictly construed. Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45 (1983); Spring v. Constantino, 168 Conn. 563, 570, 362 A.2d 871 (1975). Accordingly, where a statute or court rule sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492-93, 400 A.2d 726 (1978). “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994), citing Lussier v. Dept. of Transportation, 228 Conn. 343, 349-50, 636 A.2d 808 (1994); Tamm v. Burns, 222 Conn. 280, 289, 610 A.2d 590 (1992); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185-86, 592 A.2d 912 (1991).

In the present case, the question of whether the plaintiff has complied with the provisions of § 13a-149 goes to the court’s jurisdiction over the subject matter of the action. See Hillier v. East Hartford, 167 Conn. 100, 106, 355 A.2d 1 (1974). The statutory provisions of § 13a-149 have two components that must be met to trigger its application: (1) the plaintiff must have sustained an injury by means of a defective “road or bridge” and (2) the party whom the plaintiff is suing must be the “party bound to keep [the location where the injury was sustained] in repair.” The city’s motion to dismiss for lack of subject matter jurisdiction maintained that neither of the two requirements of § 13a-149 was met. Because it is unclear on which basis the trial court dismissed the case, we will discuss both requirements in turn.

The city’s motion to dismiss first alleged that the plaintiff’s complaint did not allege nor could it be established that the plaintiff was injured on a “road or bridge” for purposes of the highway defect statute.

The word road or highway as used in the highway defect statute has usually been construed to include sidewalks. Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949); Manchester v. Hartford, 30 Conn. 118, 121 (1861). The term sidewalk is meant to apply to those areas that the public uses for travel. See Caschetto v. Silliman & Godfrey Co., 126 Conn. 22, 24, 9 A.2d 286 (1939). Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel. Id., 24-25. Since the walkway on which the plaintiff was injured was on public property and led from a city street to a public school, it was reasonably anticipated that the public would make use of it. Accordingly, we conclude that the walkway is a road or bridge for purposes of the highway defect statute and, in that respect, the plaintiffs allegations are sufficient to state a cause of action against the governmental entity bound to keep the walkway in repair.

The next question, therefore, is that raised by the city when it alleges that it is not the party bound to keep the walkway on which the plaintiff was injured in repair, as mandated by § 13a-149. The affidavits submitted by the city along with its motion to dismiss pursuant to Practice Book § 143 established that the New Haven board of education was the party bound to repair the walkway where the plaintiff fell. Furthermore, pursuant to General Statutes § 10-220 (a), “[e]ach local or regional board of education shall . . . have the care, maintenance and operation of buildings, lands, apparatus and other property used for school purposes . . . .”

Our Supreme Court recently affirmed the dismissal of an action brought under General Statutes § 13a-144.See Amore v. Frankel, supra, 228 Conn. 364. Since “there is no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by § 13a-149”; Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970); the Amore case is instructive.

In Amore, the plaintiff sought to recover from the commissioner of transportation pursuant to § 13a-144 for injuries she sustained on a driveway on the University of Connecticut campus. Amore v. Frankel, supra, 228 Conn. 360. The commissioner moved to dismiss the complaint for lack of subject matter jurisdiction and filed with his motion affidavits disclosing that the employees of the University of Connecticut were the parties bound to keep the driveway in repair. Id., 366. “[0]nce the commissioner’s affidavits placed the care-taking of the university grounds in the hands of the landscaping crew of the University of Connecticut, it was incumbent on the plaintiff to dispute the facts contained within the affidavits.” Id., 368. If the plaintiff fails to do so, the action should be dismissed for lack of subject matter jurisdiction. Id., 368-69.

In the present case, a similar procedure to that in Amove was followed. Accompanying the city’s motion to dismiss were three affidavits demonstrating that the New Haven board of education, not the city of New Haven, was the party bound to keep the Davis Street School walkway in repair. While the plaintiff in the present case did submit an affidavit establishing that the city of New Haven was the record owner of the property on which the walkway was located, the plaintiffs affidavit did not dispute the fact that the city of New Haven was not the party responsible for the maintenance and repair of the walkway. Ownership of the property does not establish liability under § 13a-149 or § 13a-144. Rather, it is the governmental entity charged with the “duty ... to keep [the property] in repair”; Amore v. Frankel, supra, 228 Conn. 367; or the “party bound to keep [the property] in repair”; Hornyak v. Fairfield, supra, 135 Conn. 621; on which the statutes impose liability under certain circumstances. As an intermediate appellate court we are bound to follow Amove.

Accordingly, since the plaintiff failed to produce evidence that she was injured on a road that the city of New Haven was bound to repair, the trial court properly dismissed the action. Because a resolution of the plaintiffs second claim will not affect the outcome of this case, we need not address that issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Place: 23 feet, 10 inches south of the United Illuminating Pole #4477, 16 feet, 5 inches east of the east curb of Davis Street, at the top of the ramp-like walkway which leads to the north exit of the Kindergarten classroom of the Davis Street School, 35 Davis Street, New Haven, Connecticut.”

       The plaintiff alleged that the city failed to construct or maintain the ramp in accordance with § 29-252-la, subsection 815.3, of the Regulations of Connecticut State Agencies, which limits the maximum slope of a walkway.

       General Statutes §13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       An affidavit from Robert Borus, chief civil engineer for the city of New Haven, stated that the location of the plaintiffs alleged fall was not within the city’s easement for public travel, but was located on property known as the Davis Street School. An affidavit from Brian Funk, deputy director of public works, stated that the department of public works is the city department that maintains city “highways,” and that the public works department does not have any duty or authority to perform any maintenance on school grounds. Finally, an affidavit from Peter Villano, director of administration for the board of education, stated that the board of education has the exclusive duty, control and discretion over all of the maintenance on all school grounds, and that the board of education is the entity that controls, possesses and maintains the specific property known as the Davis Street School.

       The plaintiff relied on the affidavit of Albert Harkness who stated that the city of New Haven was the record owner of the property on which the plaintiff fell.

       In addition, § 150 of the New Haven charter provides in relevant part: “The Board of Education shall have the entire charge, control and management of all public schools of the City, and for the expenditure of all moneys appropriated for the support and maintenance of the same . . . and shall have the charge and control of the construction, repair and maintenance of all school buildings, grounds and equipment. . . .”

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportal ion to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . .”

       The plaintiffs claim that the dismissal of her complaint was precluded by the trial court’s prior decision on the city’s motion for summary judgment is of no avail. The court that denied summary judgment did not decide the issue of whether the city was the party bound to keep the walkway in repair. As to that issue, the court stated that “there are also no affidavits showing who had actual control over this location.” By contrast, the city’s motion to dismiss was accompanied by three affidavits establishing that fact.


text:
    STATE OF CONNECTICUT v. ERIC EDGE
    (AC 16569)
    Foti, Dupont and Daly, Js.
    Argued December 11, 1997
    officially released February 24, 1998

      Jeremiah Donovan, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Kevin Kane, state’s attorney, and Stephen Carney, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant appeals from the judgment of conviction of assault in the second degree in violation of General Statutes § 53a-60 (a) (1). He claims that he was denied an impartial jury as guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. He also claims that the cross-examination of him and a witness deprived him of a fair trial. We disagree and affirm the judgment of the trial court.

I

The defendant’s first claim arises out of the fact that a motion for a judgment of acquittal was made, argued and decided in the presence of the jury. After the state had rested its case-in-chief, the defendant moved for a judgment of acquittal and briefly argued it in the presence of the jury. The defendant’s entire argument was as follows: “In support of this judgment [of acquittal] the defendant states that there’s insufficient evidence in front of this court to—for them to make a—for them to reasonably permit a finding of guilt. In support of that, all we heard from is the victim herself as to the location of the defendant that night. Her—her testimony was—was contradictory in nature in places. The corroborating witnesses were also contradictory in their testimony regarding of what they heard and what they saw.”

After those remarks by the defendant, the court stated, “Why don’t I defer—I’ll defer ruling on that until later. Do you [the state] want to be heard now?” In response to that question, the prosecutor stated that the motion for the judgment of acquittal should be denied and, in support of his request, gave the following reasons: “The state has put forth substantial evidence on each and every element of the charge .... We put forth evidence from [the victim] saying that she was in fact struck by the defendant, Mr. Edge. We put forth evidence that there were spontaneous utterances by [the victim] at the time of the incident, when it was fresh, that the defendant, Mr. Edge, had in fact done it. We put forth evidence, Your Honor, of the seriousness of the injury. We heard for over an hour Dr. Burke’s testimony as regard to the surgery that was required to repair these very serious injuries. I think that the state has put forth substantial evidence on each and every one of the elements and the state suggests that the motion should be denied.” Immediately thereafter, the court asked counsel to approach the bench, and a discussion took place off the record.

Alter the conference at the bench, still in the presence of the jury, the court stated that the motion was denied, but that it wanted the jury to understand that the denial was a legal ruling that did not deal with the weighing of the facts, but was a determination that, as a matter of law, there was enough evidence for the jury to decide the matter. The court also stated to the jurors that not all of the evidence was in and that they were obliged to consider all of the evidence and not to make up their minds until they had heard all of the evidence and the court’s instructions, and had exchanged their views.

After the jury was dismissed, and in open court on the record, both the state and the defendant agreed that during the sidebar conference the defendant had objected to the court’s ruling on the defendant’s motion in the presence of the jury. Furthermore, in response to an inquiry by the court as to whether either party had any exceptions to its remarks to the jury made in connection with its ruling on the motion, neither party excepted. The court then gave both parties an opportunity to draft a curative instruction to be given to the jury regarding the function of the court and the function of the jury. The following day, prior to the presentation of the defendant’s evidence, the court read to the jury the instruction that had been submitted to it by the defendant, and the defendant moved for a mistrial based on the court’s denial, in the presence of the jury, of his motion for a judgment of acquittal. Later in the day, near the close of the presentation of evidence by the defendant, the trial court denied the motion for a mistrial. In support of its ruling, the court noted that it was the defendant who, without prior warning, moved for a judgment of acquittal in the presence of the jury. The court reasoned that a ruling in the presence of the jury was necessary to avoid juror confusion. The court added that while it may have been a better practice not to have ruled on the motion in the jury’s presence, the court could discover no bar against doing so and, given the court’s curative instruction, the court concluded that its ruling did not deny the defendant an impartial jury.

The defendant claims that it was likely that the jury accorded great weight to the trial court’s denial of the defendant’s motion for a judgment of acquittal and likely that the jury construed the ruling as an expression of support for the credibility of the state’s witnesses and a guilty verdict, thereby denying him an impartial jury. We are aware of no Connecticut case that resolves the issue of whether, as a matter of law, a motion for a mistrial must be granted in the circumstances of this case. No rule of practice nor any statute governing motions for judgment of acquittal specifically describes the procedure to be followed when such motions are made and ruled on. See Practice Book §§ 883, 884, 885; General Statutes § 54-89.

Federal courts and the courts of other states have recognized that the denial of a defendant’s motion for judgment of acquittal in the presence of the jury creates a danger that the jury will believe that the trial judge is expressing an opinion that the evidence supports a finding of guilt. Tanner v. United States, 401 F.2d 281, 285 (8th Cir. 1968), cert. denied, 393 U.S. 1109, 89 S. Ct. 922, 21 L. Ed. 2d 806 (1969); United States v. Coke, 339 F.2d 183, 185-86 (2d Cir. 1964). The cases indicate, however, that while ruling on such motions outside the presence of the jury is the preferred practice, it is neither a mandatory rule nor a constitutional requirement. Tanner v. United States, supra, 285. Determining whether such a ruling in the presence of the jury constitutes prejudicial error requires a careful examination of the record as a whole, including any cautionary instructions given to the jury by the court, and must be determined on a case-by-case basis. See, e.g., United States v. Diharce-Estrada, 526 F.2d 637, 641 (5th Cir. 1976). In Diharce-Estrada, after noting that the defendant “did not initiate the discussion which led to the open-court denial” of the defendant’s motion for acquittal, the court held that “when combined with the disparaging remarks made to defense counsel in the course of the trial,” the denial in open court constituted prejudicial error. Id.

Another case that considered this issue, United States v. Anderson, 471 F.2d 201, 204 (5th Cir. 1973), held that an open court denial of a motion for a judgment of acquittal initiated by the defendant did not constitute reversible error because “ [a]t most this ruling communicated to the jurors that the judge considered the evidence sufficient to warrant a jury decision of guilt or innocence.” In State v. Rogers, 420 A.2d 1363, 1364-65 (R.I. 1980), the court stated that motions for judgments of acquittal should be heard and disposed of outside the presence of the jury but held that the failure to do so, in the absence of other factors, does not automatically deprive defendants of fair trials.

Given the particular facts of the present case, the defendant’s motion for mistrial was properly denied because by moving and arguing for a motion for judgment of acquittal in the presence of the jury, the defendant created the situation of which he now complains and invited the ruling that was made in the presence of the jury. Further, the trial court’s extensive cautionary instructions to the jury made it clear that the court’s ruling on the motion did not constitute an opinion regarding the credibility of the state’s witnesses or the defendant’s guilt. Accordingly, we affirm the trial court’s denial of the defendant’s motion for mistrial.

II

The defendant next claims that the prosecutor’s cross-examination of him concerning his adulterous relationship with the victim of the assault and the prosecutor’s cross-examination of the defendant’s wife concerning a family relations intake report left the impression that the defendant had engaged in domestic violence, created undue prejudice and deprived the defendant of a fair trial. The following additional facts are necessary for a proper disposition of this claim.

On cross-examination, the defendant acknowledged that he had engaged in an adulterous relationship with the victim and that he deliberately kept knowledge of the relationship from his wife. The prosecutor also asked the defendant a series of questions concerning his current girlfriend.

During the direct examination of the defendant’s wife, she denied that the defendant had ever been violent toward her or their children. On cross-examination, the prosecutor questioned her about the number of times the police were called to her home for “domestic-related incidents.” The defendant objected to that line of questioning and the jury was excused. Outside of the presence of the jury, the prosecutor stated that he had given defense counsel a copy of a family relations intake report indicating that the defendant had been arrested four times for domestic violence, that the defendant had opened the door to this line of questioning by eliciting testimony from his wife that the defendant was not violent and that the intake report provided an adequate basis on which to undertake this line of inquiry in good faith.

The defendant moved for a mistrial on the ground that he was prejudiced by the state’s questioning of his wife about his alleged domestic violence. Defense counsel added that he did not want the court to issue a curative instruction because such an instruction would merely call attention to the testimony. The trial court agreed with the prosecutor that the defendant had opened this line of inquiry by eliciting testimony that he was not violent and concluded that prejudice did not result from the questioning. Accordingly, the trial court denied the defendant’s motion for mistrial.

Upon the return of the jury, the trial court sustained the pending objection and asked the prosecutor whether he had any further questions of the defendant’s wife. The prosecutor responded, “In light of what’s happened, Your Honor, the state would just wish Mrs. Edge a good morning and we have no further questions of her.”

The defendant now claims that the trial court improperly denied his motion for a mistrial because the state’s cross-examination of him regarding his adultery, the state’s cross-examination of his wife regarding domestic violence and the state’s comment that “in light of what’s happened” the state had no further questions for the defendant’s wife were so prejudicial as to deprive the defendant of a fair trial.

We will not consider the cross-examination of the defendant or the challenged statement by the prosecutor as a basis for the defendant’s appeal of the trial court’s denial of his motion for a mistrial because the defendant neither objected to those comments nor tied his motion for mistrial to those comments in any way. Rather, the defendant’s motion for a mistrial was based solely on the prosecutor’s cross-examination of the defendant’s wife regarding the family relations intake report. Because appellate review of evidentiary rulings is limited to the specific grounds raised at trial; State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996); we will limit our review to the cross-examination of the defendant’s wife.

“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. . . . The trial court is in a better position than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted). State v. Correa, 241 Conn. 322, 350-51, 696 A.2d 944 (1997).

We are unpersuaded that the state’s cross-examination of the defendant’s wife was so prejudicial, in the context of the trial as a whole, that the defendant was denied a fair trial. On cross-examination, she was asked how many times the police came to her home for domestic related incidents. She responded that the incidents concerned her son, not the defendant. This line of inquiry was relevant to the defendant’s alleged violent tendencies, a topic opened up by the defendant on direct examination of his wife. Further, the jury could not have reasonably been left with the impression that the domestic incidents referred to on cross-examination implicated the defendant in any negative way. Under the circumstances, we conclude that the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court’s full cautionary instruction was as follows: “In denying that motion I want the jury to understand that this is a legal ruling which deals not with the weighing of the facts, but merely a determination that as a matter of law there is enough evidence that has been presented for the matter to be decided by you, all right? It does not speak in any respect— and you should not construe this ruling in any respect to affect the quantum of evidence which you are required to find before you could return a verdict of guilty in this matter, so that is as you take this case and the evidence is not all in, that’s one of the issues here is . . . this is a motion made at the conclusion of the state’s case—I want you to consider ... all of the evidence in this case and not to make up . . . your mind at this time regarding any of the issues in the case until you’ve heard all of the evidence in the case and until you’ve heard my instructions and until you’ve gone back and exchanged views with . . . each other regarding what you’ve heard, okay? So I want to make sure that it’s clear to you that, as I said in my instructions earlier, nothing that I am doing in this case should be viewed as suggesting or intimating any views which I have with respect to the facts of this case and with respect to whether or not the defendant should be found guilty or not guilty by you. That is your sole province, okay? Do we understand that? Okay. Let the record reflect that all the jurors are nodding affirmatively, correct? Okay.”

       The trial court charged the jury as follows: “Yesterday I was presented with and ruled on the defendant’s motion for judgment of acquittal in this matter. I’m advising you that my decision was merely based upon whether the prosecution has presented sufficient evidence to present this case to the jury at the end of all the evidence and nothing more. As I instructed you at the beginning of the case, I think probably on several occasions, you and you alone are sole judges of the facts. I think I also instructed you . . . at the beginning of this case that there are certain aspects of the case which are not evidence. One of the things that I indicated was not evidence are the arguments of counsel or rulings by the court. I also indicated to you that... at any point during the course of this trial I might make comments in my rulings but that none of my comments should be taken by you as any indication or intimation of my views regarding the facts in this case. My actions during the trial in ruling on motions or objections by counsel therefore are not to be taken by you as any indications of my opinion as to how you should determine any of the issues of fact and what weight to afford to any of the witnesses who have testified in this proceeding. Finally, I think I indicated to you that one of the things that you’re not to consider are things which I instruct you to disregard and . . . although I think it’s clear that you are not to consider the arguments ... of counsel and my ruling that I made yesterday, just so it’s absolutely clear, I am instructing you to disregard those events as part of your deliberations because they do not constitute evidence in this matter. Okay. Does anybody have any questions about that? Okay. All jurors indicating negatively and does any . . . juror have any problem with . . . [his or her] ability to proceed at this point in time? All right. With that, then, we can proceed.

       The prosecutor’s comment that he would not question the defendant’s wife any further occurred after the trial court’s denial of the defendant’s motion for mistrial. The defendant neither objected to that comment nor renewed his motion for mistrial at that time.


author: LAVERY, J.

text:
    CARLOS M. RIVERA v. COMMISSIONER OF CORRECTION
    (AC 17274)
    Foti, Lavery and Hennessy, Js.

      Argued December 12, 1997
    officially released February 24, 1998

      Steven R. Strom,, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard T. Biggar and Madeline A. Melchionne, assistant attorneys general, for the appellant (respondent).

      Eric Bass, certified legal intern, with whom was Brett Dignam, for the appellee (petitioner).
   Opinion

LAVERY, J.

The respondent commissioner of correction appeals from the judgment of the habeas court granting a writ of habeas corpus to the petitioner, Carlos M. Rivera. The court ruled that the respondent did not apply the petitioner’s good time correctly to his multiple sentences and ordered the respondent to credit the petitioner with ninety days of good time credit and nineteen days of jail good time credit. The court then denied the respondent’s petition for certification to appeal. We find that the court did not abuse its discretion in denying the respondent’s timely request for certification to appeal.

The facts are not in dispute. The petitioner has been in the custody of the commissioner of correction since June 17, 1989, when he was arrested and held in lieu of bond on a charge of a violation of General Statutes § 21a-277. He earned nineteen days of presentence good time when he was sentenced (sentence no. 1) on August 15, 1989, to a term of three years. On February 9, 1990, while on supervised home release, the petitioner was arrested on other charges and reincarcerated. His home release status was revoked and he continued to serve time on his original three year sentence. On June 5, 1990, he was sentenced (sentence no. 2) to eight years on one count of a violation of General Statutes § 53a-122 and eight years on one count of a violation of General Statutes § 53a-167c. Both were to run concurrent to each other and concurrent with the sentence of three years he was already serving. At the time of his second sentence, the petitioner had earned ninety days of good time credit on sentence no. 1 including thirty days while on supervised home release in addition to the nineteen days of jail credit good time prior to sentence no. 1 for a total of 109 days good time. On September 25, 1991, the petitioner received an additional consecutive one year sentence (sentence no. 3) for a violation of General Statutes § 53a-167c (a) (1).

The petitioner brought this habeas petition because the respondent, in calculating the petitioner’s good time credit, did not give the petitioner nineteen days of presentence good time and ninety days of good time by failing to construe the multiple sentences as one continuous term for the purposes of calculating good time. The petitioner did not receive jail time good time credit or the good time credits earned on the three year sentence, on the eight year sentence or on the one year consecutive sentence.

The court agreed with the petitioner that on the basis of General Statutes § 18-7 and Howard v. Commissioner of Correction, 230 Conn. 17, 22, 644 A.2d 874 (1994), the petitioner’s good time credits under sentence no. 1 should be credited to his overall effective sentence of nine years. The court granted the habeas petition and awarded the petitioner 109 days of good time credit. The court denied the respondent’s petition for certification to appeal because the case was not one of first impression and because if the petitioner were held during the time of appeal, he would lose his 109 days of good time credit.

We must first decide if the habeas court abused its discretion in denying the respondent certification to appeal. “In Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 718 (1995), the Supreme Court set the standard for deciding abuse of discretion on the issue of certification in such a case. We recognize that [i]n enacting [General Statutes] § 52-470 (b), the legislature intended to discourage frivolous habeas appeals. Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994) . A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), is not, however, frivolous and warrants appellate review if the appellant can show: that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . Simms v. Warden, supra, 616, quoting Lozada v. Deeds, supra, 432. Thus, if an appeal is not frivolous, the habeas court’s failure to grant certification to appeal is an abuse of discretion. Simms v. Warden, supra, 616. . . . Copas v. Commissioner of Correction, supra, 150-51.” (Internal quotation marks omitted.) Graham v. Commissioner of Correction, 39 Conn. App. 473, 476, 664 A.2d 1207, cert. denied, 235 Conn. 930, 667 A.2d 800 (1995).

The respondent has not sustained his burden of persuasion that the court’s denial of his certification to appeal was a clear abuse of discretion or that an injustice has been done. Hinton v. Commissioner of Correction, 43 Conn. App. 549, 551, 684 A.2d 733 (1996), cert. denied, 239 Conn. 958, 688 A.2d 327 (1997). The habeas court and this court are bound by the clear language of General Statutes § 18-7, which provides in relevant part: “When any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section.. . .’’It is further clear that this portion of § 18-7 applies to General Statutes § 18-7a which provides for the good time credits for prisoners sentenced after July 1,1983. McCarthy v. Commissioner of Correction, 217 Conn. 568, 581, 587 A.2d 116 (1991). The Supreme Court’s decisions in McCarthy v. Commissioner of Correction, supra, 581, and Howard v. Commissioner of Correction, supra, 230 Conn. 20-21, as well as this court’s decision in Wilson v. Warden, 34 Conn. App. 503, 505, 642 A.2d 724, cert. denied, 230 Conn. 908, 644 A.2d 922 (1994), make it clear that all multiple sentences both concurrent and consecutive, whether imposed at the same time or at different times, must be aggregated for the purpose of calculating good time. We agree with the habeas court that the petitioner is not seeking additional presentence confinement credits, and that General Statutes § 18-98d and the case of Payton v. Albert, 209 Conn. 23, 29-30, 547 A.2d 1 (1988), cited by the respondent, deal with the transferability of jail time credit and do not apply to this case.

We find that none of the three criteria of Lozada v. Deeds, supra, 498 U.S. 431-32, has been met and, therefore, the court did not abuse its discretion in denying the respondent certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 18-7a (c) provides: “Any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.”

       General Statutes § 18-98d provides: “Presentence confinement credit for confinement resulting from an offense committed on or after July 1, 1981. (a) Any person who is confined to a community correctional center or a correctional institution for an offense committed on or after July 1, 1981, under a mittimus or because such person is unable to obtain bail or is denied bail shall, if subsequently imprisoned, earn a reduction of his sentence equal to the number of days which he spent in such facility from the time he was placed in presentence confinement to the time he began serving the term of imprisonment imposed; provided (1) each day of presentence confinement shall be counted only once for the purpose of reducing all sentences imposed after such presentence confinement; and (2) the provisions of this section shall only apply to a person for whom the existence of a mittimus, an inability to obtain bail or the denial of bail is the sole reason for his presentence confinement, except that if a person is serving a term of imprisonment at the same time he is in presentence confinement on another charge and the conviction for such imprisonment is reversed on appeal, such person shall be entitled, in any sentence subsequently imposed, to a reduction based on such presentence confinement in accordance with the provisions of this section. In the case of a fine each day spent in such confinement prior to sentencing shall be credited against the sentence at the rate of ten dollars.
      “(b) In addition to any reduction allowed under subsection (a), if such person obeys the rules of the facility he may receive a good conduct reduction of any portion of a fine not remitted or sentence not suspended at the rate of ten days or one hundred dollars, as the case may be, for each thirty days of presentence confinement; provided any day spent in presentence confinement by a person who has more than one information pending against him may not be counted more than once in computing a good conduct reduction under this subsection.
      “(c) The Commissioner of Correction shall be responsible for ensuring that each person to whom the provisions of this section apply receives the correct reduction in such person’s sentence; provided in no event shall credit be allowed under subsection (a) in excess of the sentence actually imposed.”


text:
    ROSAMARIA BONAMICO ET AL. v. CITY OF MIDDLETOWN ET AL.
    (AC 16562)
    O’Connell, C. J., and Foti and Hennessy, Js.
    Argued December 2, 1997
    officially released February 24, 1998

      Averum J. Sprecher, for the appellants (plaintiffs).

      Andrew J. O’Keefe, with whom was Joseph M. Busher, Jr., for the appellees (named defendant et al.).
   Opinion

O’CONNELL, C. J.

The plaintiffs appeal from the partial judgment in favor of the defendants rendered on the trial court’s order striking counts one through twelve of the fourteen count complaint. They claim that the trial court improperly failed to apply the identifiable person-imminent harm exception to the governmental immunity doctrine. We affirm the judgment of the trial court.

The minor plaintiff, Rosamaría Bonamico, was a student at Woodrow Wilson Middle School on November 25, 1992. On that day, she was walking down a corridor in the school and was struck in the eye with a “bean/ pea/pellet” that had been thrown in her direction by fellow student Asa Black. Black had just come from a home economics session during which he, along with the other students, learned how to make bean bags. Black failed to return some of the beans in his possession and instead took them with him out of the classroom and into the corridor.

The school had a policy that required all teachers to be physically present and visible in the hallway to supervise the students as they changed class periods. The plaintiffs alleged that codefendant Mary Ann Vinci, Black’s home economics teacher, failed to comply with this policy and, as a result, caused the minor plaintiff to suffer injury to her left eye.

The defendants moved to strike counts one through twelve of the fourteen count complaint for failure to state claims upon which relief could be granted. In granting the motion to strike, the trial court held that all counts pertaining to the movants were barred by the doctrine of governmental immunity. More specifically, the trial court held that the defendants’ duties were discretionary in nature and, because the complaint did not allege any facts to show how the defendants might have known that “this minor plaintiff was in imminent danger of this type of harm,” the plaintiffs “failed to allege facts sufficient to support the conclusion that the minor plaintiff was an ‘identifiable’ person subject to ‘imminent harm’ by merely passing through this hallway between classes.” (Emphasis in original.)

“Conclusions of law, absent sufficient alleged facts to support them, are subject to a motion to strike. The trial court may not seek beyond the complaint for facts not alleged, or necessarily implied, and this court will not.” Fortini v. New England Log Homes, Inc., 4 Conn. App. 132, 134-35, 492 A.2d 545, cert. dismissed, 197 Conn. 801, 495 A.2d 280 (1985). An examination of the complaint in the present case discloses that the plaintiffs have not sufficiently alleged facts necessary to bring this case within the ambit of the identifiable person-imminent harm exception to governmental immunity.

The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n. A defendant is entitled to judgment as a matter of law if the duties allegedly breached required the exercise of judgment or discretion, in some measure, by the governmental employee. See Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989).

“The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.” (Citations omitted.) Id., 505.

The identifiable person-imminent harm exception is the only exception that is relevant to this case. Our courts have construed this exception to apply not only to identifiable individuals, but also to narrowly defined classes of foreseeable victims. See Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994); Purzycki v. Fairfield, 44 Conn. App. 359, 363, 689 A.2d 504, cert. granted, 240 Conn. 926, 692 A.2d 1282 (1997). The plaintiffs argue that as a student, the minor plaintiff was a member of a class of identifiable victims that was subject to imminent harm when the school and its officials failed to supervise the corridors properly between class periods. We do not agree.

The plaintiffs in this case have failed to provide factual support for their allegations that the minor plaintiff was an identifiable person that was subject to imminent harm. The harm allegedly suffered by the minor plaintiff was caused by the voluntary, wilful or negligent acts of another student. The plaintiffs do not allege that any of the defendants knew that the other student possessed the beans or pellets or that he would throw them toward the minor plaintiff. Moreover, the complaint contains no allegation that the defendants had any foreknowledge that the other student would act or would be likely to act in the way that he did during the period between classes. Thus, the plaintiff could have been injured at any time in the future or not at all.

Directly on point is our recent decision in Purzycki v. Fairfield, supra, 44 Conn. App. 359. In Purzycki, a second grade student was dismissed for recess and was tripped by a fellow student as he ran down the hallway. The plaintiffs alleged that the child’s injuries were caused by the school’s negligence in failing to monitor the hallway. In holding that the identifiable person-imminent harm exception did not apply, we concluded that the child “could have been injured at any time in the future while traveling from lunch to recess, or not at all. ... [T]he lack of supervision claimed here, standing alone, did not create [the risk of imminent harm], A combination of the lack of supervision, [the child’s] own conduct and the conduct of another student caused the injuries. While it may have been foreseeable that [the child] might run in the hallway, any risk of harm that did exist required a confluence of events and did not rise to the level of imminence necessary to overcome the defendants’ immunity.” Id., 365-66.

This case, as did Purzycki, involves an injury that resulted from the allegedly negligent supervision in a school hallway. In both cases, the minor plaintiffs were injured by the spontaneous and unpredictable conduct of a fellow student. In Purzycki, we articulated that “[w]e agree with the trial court that ‘there was no evidence that [the minor plaintiff] in traveling the brief distance from the “all purpose” room to the playground, was in imminent harm. True, the principal knew that if children were not watched they might run in the hall, and that if they ran in the hall, they could get hurt. But to regard this as imminent harm would be to equate that term with mere foreseeability, and to thereby transfer the governance of elementary schools . . . from the principal’s office ... to the [courtroom] ....’” Id., 363-64.

Under the facts of this case, as in Purzycki, it was foreseeable, at best, that if the other student had a bean in his pocket, he might throw it in the direction of the minor plaintiff and injure her. Something more than mere foreseeability, however, must be alleged in the complaint to establish the degree of imminence that is required for the exception to be triggered and for the claim to survive a motion to strike. Standing alone, the alleged lack of supervision that may have created the foreseeability of the injury to the minor plaintiff is insufficient.

We conclude that the complaint in the present case contains conclusory allegations that the minor plaintiff was “an identifiable person likely to be subject to imminent harm” and fails to allege facts to support this contention. Accordingly, we hold that such allegations are insufficient to survive a motion to strike.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs on appeal are Rosamaría Bonamico and her parents, Maria Bonamico, individually and next friend of Rosamaría, and Frank Bonamico, individually. The defendants, for the purposes of this appeal, are the city of Middletown, the Middletown board of education, the Middletown superintendent of schools, the principal of Woodrow Wilson Middle School and Mary Ann Vinci, home economics teacher at Woodrow Wilson Middle School.

       The trial court granted the municipal defendants’ motion to strike counts one through twelve of the fourteen count complaint and judgment was rendered thereon. The two remaining counts are against two individuals, the child who threw the pellets that injured the plaintiff and that child’s parent. There is an appealable final judgment pursuant to Practice Book § 4002B because the partial judgment disposes of all the claims against the municipal parties.

       In their appellate brief, the plaintiffs raised three issues: (1) Did the trial court err in concluding that the defendants were engaged in the performance of a public duty which is discretionary in nature and therefore immune from suit under the common-law doctrine of governmental immunity? (2) Did the trial court err in concluding that at the time she was injured, the minor plaintiff was not a school child entitled to pursue a cause of action under the “Identifiable [Personj-Imminent Harm” exception to the governmental immunity doctrine set forth in Burns v. Board of Education, 228 Conn. 640, 643, 638 A.2d 1 (1994)? (3) Did the trial court err in concluding that the plaintiffs are barred from pursuing a cause of action for the injuries she suffered by General Statutes § 52-557n (a) (2)?
      The plaintiffs withdrew their first and third claims at oral argument in this court, leaving only the identifiable person-imminent harm issue for disposition on appeal.

       This fact was agreed to by all parties at oral argument in this court and, thus, need not be addressed in this opinion.

       General Statutes § 52-557n (a) provides in relevant part: “(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”

       In Pureycki, the Supreme Court granted the plaintiffs’ petition for certification to appeal from the judgment of this court limited to the following issue: “ ‘Was the trial court correct in setting aside the verdict on the ground that the plaintiffs failed to prove that the plaintiff child was subject to imminent harm, an exception to a municipal employee’s immunity from liability when performing discretionary acts?’ ” Purzycki v. Fairfield, 240 Conn. 926, 692 A.2d 1282 (1997).


author: HENNESSY, J.

text:
    FRANK J. HOLLER v. BUCKLEY BROADCASTING CORPORATION ET AL.
    (AC 16890)
    Landau, Schaller and Hennessy, Js.
    Argued December 4, 1997
    officially released February 24, 1998

      Carolyn E. Augur, with whom, on the brief, was Stephen P. Bertucio, for the appellant (plaintiff).

      Steven L. Seligman, with whom was Cynthia M. Barlow, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiff, Frank J. Holler, appeals from the judgment of the trial court in favor of the defendants, Buckley Broadcasting Corporation, Wayne Mulligan and Wayne Griscom, following the granting of the defendants’ motion to strike. On appeal, the plaintiff claims that the trial court improperly concluded that (1) the complaint failed to allege sufficient facts to support a claim of tortious interference with business relations and (2) General Statutes § 52-570d does not apply to the rerecording of an illegally taped telephone conversation. We affirm the judgment of the trial court.

The plaintiff filed a seven count complaint against the defendants Buckley Broadcasting Corporation, Laura Barre and Griscom, known on his radio program as Jerry Kristafer, which alleged the following facts. The plaintiffs employment was terminated after he revealed over the telephone to Barre, his then girlfriend, that the radio station had asked him to terminate Kristafer. That information was surreptitiously recorded by Barre, who passed it along to Kristafer. Kristafer confronted Mulligan, the station manager, and Richard D. Buckley, the president and principal owner of Buckley Broadcasting Corporation, with this information and played the taped conversation for them. On January 23, 1996, Mulligan terminated Holler’s employment on the ground that Holler had breached the radio station’s confidentiality agreement when he revealed a confidential employment decision to Barre.

The trial court concluded that the plaintiffs allegations failed to support a cause of action against Kristafer for tortious interference with a business relationship. Additionally, the trial court concluded that Kristafer’s actions did not violate § 52-570d and, therefore, the seventh count failed to state a cause of action. This appeal followed.

I

The fifth count of the complaint alleged tortious interference with a business relationship against Kristafer. The trial court determined that the plaintiff had not alleged sufficient facts to support the element of intentional interference and ordered the count stricken. The plaintiff claims that the trial court improperly found that the complaint did not contain a sufficient cause of action for tortious interference. We disagree.

Certain additional facts are necessary to our resolution of this claim. The complaint alleged in relevant part:

“22. At all relevant times, plaintiff had an employment relationship with the defendant Buckley Broadcasting Corporation.
“23. Defendant Jerry Kristafer interfered with plaintiffs employment with defendant Buckley Broadcasting Corporation in that he contacted defendant’s president and station general manager and informed them that plaintiff had breached station confidentiality and played for them the illegally taped telephone conversation.
“24. Defendant Jerry Kristafer intentionally interfered with plaintiffs employment relationship with defendant in an effort to discredit plaintiff in the eyes of station management, get him fired and save his own job.
“25. As a result of defendant Jerry Kristafer’s actions, defendant Buckley Broadcasting Corporation terminated plaintiffs employment and plaintiff suffered lost wages and money damages.”

“ ‘In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357 (1993); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988).’ Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357 (1996). ... A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact. Accordingly, our review is plenary. Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997).” Parsons v. United Technologies Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997).

“Practice Book § 131 requires a plaintiff to plead only the facts constituting his or her cause of action. A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. . . . Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). The allegations of a complaint subject to a motion to strike are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support ... a cause of action, the motion to strike must fail. Id., 108-109.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). “Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996).” Knight v. F. L. Roberts & Co., 241 Conn. 466, 470-71, 696 A.2d 1249 (1997).

“Connecticut has long recognized a cause of action for tortious interference with business relations. See Blake v. Levy, 191 Conn. 257, 464 A.2d 52 (1983); Herman v. Endriss, 187 Conn. 374, 446 A.2d 9 (1982); Skene v. Carayanis, 103 Conn. 708, 131 A. 497 (1926); Bulkley v. Storer, 2 Day (Conn.) 531 (1807). The necessary elements of a cause of action in tortious interference with business relations are the existence of a business relationship, an intentional and improper interference with that relationship and a resulting loss of benefits of the relationship. Blake v. Levy, supra, 262.” Conrad v. Erickson, 41 Conn. App. 243, 245-46, 675 A.2d 906 (1996). “ ‘A plaintiff states an actionable cause [for tortious interference with a contract] by alleging that the defendant intentionally interfered with a business or contractual relationship of the plaintiff and that the plaintiff, as a result, has suffered an actual loss. . . . Herman v. Endriss, supra [377].” DiNapoli v. Cooke, 43 Conn. App. 419, 428, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d 124 (1996).

“[N]ot every act that disturbs a contract or business expectancy is actionable. Blake v. Levy, [supra, 191 Conn. 260]. A defendant is guilty of tortious interference if he has engaged in improper conduct. Id., 261; see 4 Restatement (Second), Torts §§ 766, 766B, 767 (1979). [T]he plaintiff [is required] to plead and prove at least some improper motive or improper means. Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983); Blake v. Levy, supra, 262.” (Emphasis added; internal quotation marks omitted.) Golembeski v. Metichewan Grange No. 190, 20 Conn. App. 699, 702, 569 A.2d 1157, cert. denied, 214 Conn. 809, 573 A.2d 320 (1990).

“We have stated in an analogous situation, ‘[t]o raise an allegation of wilful conduct, the plaintiff must clearly plead that the [harm] was caused by the wilful or malicious conduct of the defendants.’ Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 139, 479 A.2d 231 (1984). Moreover, we cannot look beyond the complaint for facts not alleged. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86, 449 A.2d 986 (1982).” Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 536-37, 546 A.2d 216 (1988).

Viewing the facts well pleaded in the complaint as true and in the light most favorable to sustaining its legal sufficiency, we conclude that the plaintiff did not allege sufficient facts of improper motive or means to support a cause of action for tortious interference with business relations. Therefore, the trial court properly struck the fifth count of the complaint.

II

The plaintiffs complaint also alleged that Kristafer violated § 52-570d when he rerecorded the illegally taped telephone conversation between the plaintiff and Barre. That statute provides in relevant part that “[n]o person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is [made with the] consent of all parties to the communication . . . .” General Statutes § 52-570d.

Section 52-570d creates a statutory cause of action that was not available at common law. Therefore, the language of the statute must be strictly construed. See Munroe v. Great American Ins. Co., 234 Conn. 182, 187, 661 A.2d 581 (1995); Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 290, 627 A.2d 1288 (1993); Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454 (1958).

Strictly construed, § 52-570d prohibits the taping of a private telephone conversation, not the rerecording of an illegally taped conversation by a third party. We agree with the trial court’s conclusion that § 52-570d was not violated by Kristafer’s rerecording of the tape played to him by Barre. Therefore, the trial court properly struck the seventh count of the complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       Laura Barre was also named as a defendant in the complaint. The count against her was withdrawn and therefore is not considered in this appeal.

       The plaintiffs amended complaint contained seven counts: (1) wrongful termination; (2) negligent infliction of emotional distress; (3) intentional infliction of emotional distress as against Mulligan; (4) violation of General Statutes § 52-570d as against Laura Barre;(5) tortious interference with contract rights as against Griscom; (6) civil conspiracy as against Barre and Griscom, and (7) violation of § 52-570d as against Griscom.
      The trial court granted the defendants’ motion to strike counts one, two, three, five, six and seven. We note that plaintiffs counsel did not oppose the striking of counts three and six. By agreement of the parties, judgment entered for the defendants on those counts following the court’s ruling. The fourth count was subsequently withdrawn by the plaintiff.

       General Statutes § 52-570d provides in relevant part: “(a) No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use. . . .
      “(c) Any person aggrieved by a violation of subsection (a) of this section may bring a civil action in the Superior Court to recover damages, together with costs and a reasonable attorney’s fee.”


text:
    STATE OF CONNECTICUT v. MICHAEL WATSON
    (AC 16560)
    O’Connell, C. J., and Foti, Landau, Schaller, Spear, Hennessy and Sullivan, Js.
    Considered January 28
    officially released February 9, 1998

      Mark Rademacher, assistant public defender, in support of the motion.

       February 9, 1998, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

O’CONNELL, C. J.

The defendant has filed a motion for permission to file a supplemental brief in this pending case in light of United States v. Doyle, 130 F.3d 523 (2d Cir. 1997). We deny the defendant’s motion.

In Doyle, the defendants appealed from a judgment of conviction, arguing that the District Court committed reversible error when it instructed the jury that the reasonable doubt standard and the presumption of innocence were rules “designed to protect the innocent and not the guilty.” Id., 533. The United States Court of Appeals for the Second Circuit agreed with the defendants and held that such a jury charge “incorrectly states both the reasonable doubt standard and the presumption of innocence.” Id., 538.

In light of the decision in Doyle, the defendant in the present case now seeks to file a supplemental brief. More specifically, the defendant now seeks to challenge the trial court’s jury instructions, which contained a provision identical to the provision challenged in Doyle.

Our Supreme Court has consistently approved jury instructions that provide that the presumption of innocence and the reasonable doubt standard are rules of law “designed to protect the innocent and not the guilty.” See, e.g., State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992); State v. Thomas, 214 Conn. 118, 119, 570 A.2d 1123 (1990). Because we are bound by the decisions of our Supreme Court; State v. Vas, 44 Conn. App. 70, 78, 687 A.2d 1295, cert. denied, 240 Conn. 910, 689 A.2d 474 (1997); and not the decisions of the United States Courts of Appeals; see State v. Sebastian, 243 Conn. 115, 139, 701 A.2d 13 (1997); the issue that the defendant seeks to brief would not affect our decision in this case.

The defendant’s motion for permission to file a supplemental brief is denied.

In this opinion the other judges concurred.