text:
    State of Connecticut v. Donald D. West
    (2700)
    Borden, Spallone and Daly, Js.
    Argued February 7
    decision released April 30, 1985

      Michael R. Sheldon and Stephen R. Sarnoski, certified legal intern, for the appellant (defendant).

      William Domnarski, deputy assistant state’s attorney, with whom were Richard Schatz and, on the brief, Carl Schuman, assistant state’s attorneys, for the appellee (state).
   Daly, J.

The plaintiff has appealed from his conviction of sexual assault in the first degree, challenging the second substitute information and the instructions to the jury.

The jury could readily have found the following facts: About 7:50 a.m. on November 20, 1979, while awaiting a bus at the corner of Blue Hills Avenue and Plain-field Street in Hartford, the complainant was forced into the defendant’s car and driven to a remote section of Keney Park where she was sexually assaulted, struck in the face with the defendant’s fist and robbed. Although the complainant never actually saw a weapon displayed, she believed that her attacker possessed a knife or gun. When the police brought the defendant to Mount Sinai Hospital, where the complainant was being treated, she identified him as her assailant.

The first count of the original, substitute and second substitute informations all contained essentially the same language: “[T]he said [defendant] did compel another person to engage in sexual intercourse by the use of force or the threat of use of force against such other person which reasonably caused such person to fear physical injury to such person .... ” On May 2, 1980, the defendant objected to the substitute information on the ground that it charged the offense in the alternative, and that he had been assured that the state would make an election before the case started. On May 6,1980, the state filed a second substitute information which charged in the conjunctive. After the court heard argument from both counsel, the state, in open court, converted the information from the conjunctive to the disjunctive by substituting the word “or” for “and.” The defendant promptly objected.

The issues raised by the defendant are (1) whether the trial court erred by permitting the state to accuse the defendant of the crime of sexual assault in the first degree by disjunctively charging alternative theories of liability within a single count of the information, and (2) whether the trial court deprived the defendant of his state and federal constitutional right to a jury trial by failing to instruct the jury concerning the scope of its responsibility to render a unanimous verdict following deliberation upon several alternatively stated elements of an offense within a single count of the information.

The defendant claims that he was never properly charged with the offense of sexual assault in the first degree because the information, in charging in the alternative, was fatally defective. In support of his claim, the defendant relies on the following principle: “An information which charges the commission of two or more offenses in the alternative is fatally defective for the reason that it does not definitely apprise the accused of the specific charge against him. Though the statute makes criminal the commission of several acts stated disjunctively, the information must charge in the conjunctive since otherwise it would be uncertain which of two or more accusations was intended. . . . Such has always been the rule in this jurisdiction. ‘In an indictment or information, the offense may not be laid in the alternative. The accused has a right to know, before trial, the exact single offense for which he is to be tried. He may not be tried for one act, or another, or another, at the pleasure of the prosecutor, unless there be as many distinct counts in the information.’ Smith v. State, 19 Conn. 493, 500 [1849].” Grasso v. Frattolillo, 111 Conn. 209, 212-13, 149 A. 838 (1930); see also State v. Sumner, 178 Conn. 163,166, 422 A.2d 299 (1979); State v. Cofone, 164 Conn. 162, 167, 319 A.2d 381 (1972); State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65 (1963).

It is important to note that the defendant specifically disclaims any reliance on the argument that the disjunctively phrased information deprived him of his sixth amendment right to practical notice of the charges against him. His sole claim in this regard is that the use of the word “or,” rather than “and,” rendered the information so fatally defective that it did not charge him with any criminal offense at all. We disagree.

The aforesaid cases stress notification to the defendant. The defendant here is not claiming lack of notice and, additionally, the record reflects that the state’s attorney indicated orally that he was going to proceed in the conjunctive. Moreover, an information which charges the commission of two or more offenses in the alternative, although improperly drafted, maybe remedied by a bill of particulars which sets out the charges in the conjunctive. State v. Eason, 192 Conn. 37, 40, 470 A.2d 688 (1984). Thus, it cannot be viewed as not charging any criminal offense at all; rather, its vice is that it charges too much, depriving the defendant of his right to adequate notice of the charges against him.

The defendant also claims error in the trial court’s failure to instruct the jury to require that its verdict be unanimous when considering several alternatively stated elements of an offense within a single count of the information (a conceptual difference between “the use of force or the threat of use of force”). The defendant did not request that the trial court give the instruction he now claims was reversible error not to give. Nor did the defendant enter an objection and exception to the instructions given.

“In the ordinary case we would refuse to review error claimed in jury instructions which, as here, was not brought to the attention of the trial court. Practice Book §§ 315, 3063. We have, however, previously held that because the type of error claimed falls within the ‘exceptional circumstances’ rule of State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973), we will review it despite the lack of objection and exception below.” State v. Johnson, 185 Conn. 163, 167, 440 A.2d 858 (1981), aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983).

“The defendant’s challenge to the disjunctive jury instruction raises state and federal constitutional questions relative to the state’s burden of proof beyond a reasonable doubt and the defendant’s right to a unanimous verdict. These matters go directly to the integrity of the fact finding process, and the defendant’s failure to object at trial should not preclude him from raising them on appeal.” State v. Baldwin, 101 Wis. 2d 441, 446, 304 N.W.2d 742 (1981).

In State v. Jones, 193 Conn. 70, 75, 475 A.2d 1087 (1984), “[t]he indictment charged, in the language of the felony murder statute, that the defendant ‘did commit or attempt to commit a robbery and in the course of and in furtherance of such crime or flight therefrom he, or another participant, caused the death of a person . . . . ’ (Emphasis added.) According to the defendant, this indictment charged two separate predicate felonies —robbery and attempted robbery—in the alternative, and therefore erroneously permitted the jury to convict him in the absence of a unanimous agreement among the jurors that he had committed one or the other of the predicate crimes charged. This possibility, the defendant asserts, deprived him of his right to a unanimous jury verdict.”

The defendant in Jones relied on United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), as does the defendant in this case. Our Supreme Court, in Jones, disagreed and held that the robbery and attempted robbery charged therein (unlike the two crime groups charged in Gipson—receiving, concealing or storing, and bartering, selling or disposing) are not mutually exclusive. In State v. Secore, 194 Conn. 692, 698, 485 A.2d 1280 (1984), the court found “that the language of § 53a-70 divides the statute, not into two crimes, but into two methods of committing the same crime . . . .” The defendant here, relying on Gipson, claims the use of force and threat of force are conceptually distinguishable. We note, however, that “[t]he proper application of the Gipson rationale is not dependent upon the conceptual dissimilarity, but rather the conceptual similarity of the conduct.” State v. Baldwin, supra, 450.

“[T]he element of compulsion, the utter subjugation of the victim’s free will, is no different in character if it results from the raised fist or the first blow. . . . [W]e are convinced that the phrase ‘use or threat of force or violence’ is a sound and reasonable attempt to capture the essence of the proscribed conduct [second degree sexual assault], and we conclude that to require jury unanimity on ‘use of force’ as opposed to ‘violence’ would be inconsistent with the aim of the legislature in defining the offense and, more important, would reduce the efficacy of the statute itself.” Id., 450-52.

We conclude that the present offense does not require jury unanimity upon any of the subcomponents of the phrase “use of force or the threat of use of force.”

There is no error.

In this opinion the other judges concurred.

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

       No appeal was taken from the related convictions of robbery in the first degree and kidnapping in the second degree.

       The second substitute information, in pertinent part, provides: “State’s Attorney . . . accuses Donald D. West ... of SEXUAL ASSAULT IN THE FIRST DEGREE, and charges that . . . the said Donald D. West did compel another person to engage in sexual intercourse by the use of force or the threat of use of force against such other person which reasonably caused such person to fear physical injury to such person, in violation of Section 53a-70 of the General Statutes.”


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Hartford National Bank and Trust Company v. Florence I. Bowers et al.
    (2620)
    Hull, Borden and Spallone, Js.

      Argued February 8
    decision released April 30, 1985

      JoelN. Sable, with whom, on the brief, were Stephen S. Chintz and Patrick W. Boatman, for the appellant (plaintiff).

      Dwight O. Schweitzer, with whom was Edward Morelli, for the appellee (named defendant).
   Hull, J.

The plaintiff, Hartford National Bank and Trust Company, appeals from a judgment of the trial court denying its claim for foreclosure of its mortgage on the defendant’s property and granting relief on the defendant’s amended counterclaim for cancellation of the mortgage. The plaintiff claims three grounds for appeal: (1) That the court erred in denying the plaintiff’s claim for foreclosure on the defendant’s property because of a failure of consideration; (2) that the court erred in admitting parol evidence to find that there had been an agreement between the parties that a demand note could be paid according to a periodic payment schedule; and (3) that the relief ordered by the court was inequitable and excessive.

On November 1,1978, Florence Bowers executed a demand note for $50,000 in favor of the plaintiff. Bowers then reduced the sum due to $40,000 and, on April 23, 1980, she executed a replacement demand note for the reduced amount. This renewal note was secured by a mortgage on her property. Approximately eight days later, the plaintiff demanded full payment of the note and, in September, 1980, instituted this action for foreclosure of its mortgage.

The plaintiff alleged that the demand was made because it had discovered that its mortgage was the third on the property rather than the second as it had been led to believe. Bowers responded that no such misrepresentation had been made but that, in fact, the demand was made to bring pressure to bear on her husband in unrelated business dealings he had with the plaintiff.

The trial court found that the plaintiff had initiated the note renewal negotiations, that it had no security for its original note and that the mortgage it took in connection with the renewal was accepted without any title search on its part. The court further found that there was no misrepresentation by Bowers and that, “as part of the complete transaction, the parties also agreed that the plaintiff would not make demand for payment as permitted by the note so long as the defendant complied with the plaintiff’s repayment schedule.” That schedule was never prepared as the bank made demand almost immediately. Thus, the court held that “there was a failure of consideration on the part of the plaintiff as to the complete transaction, and that the plaintiff has not proved a legal basis for its complaint.”

With regard to the defendant’s counterclaim, the court ruled “upon the defendant’s counterclaim, the judgment of the court is that defendant’s mortgage to the plaintiff is hereby cancelled and declared to be null and void.” The plaintiff filed its appeal from the judgment of the trial court for the defendant on both the complaint and the counterclaim, raising the three issues referred to above.

We note at the outset that the plaintiff’s second claim of error, relating to the court’s admission of parol evidence, is not properly before this court. Practice Book § 3060F (c) (3) requires that where error is claimed in a ruling such as is involved here, “the brief shall include, where appropriate: the pertinent motion or pleading, if it does not appear in the printed record; the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception.” Nowhere in the plaintiff’s brief is this rule complied with. In fact, the brief does not even assert that any objection was made to the introduction of parol evidence and a review of the transcript demonstrates that no such objection was made. We, therefore, decline to review this claim.

As to the first of the plaintiff’s remaining claims of error, that the court erred in finding a “failure of consideration,” we conclude that the decision was, more accurately, that the plaintiff did not fulfill its side of the agreement. The court stated that “[t]he plaintiff failed to carry out its part of this agreement” and immediately thereafter found “a failure of consideration on the part of the plaintiff . . . .” Although the parties’ briefs treat the court’s decision as meaning that there was a lack of consideration, “[t]he trial court’s inappropriate choice of words does not amount to reversible error.” Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn. App. 84, 88, 468 A.2d 292 (1983). We construe the court’s language to mean simply that the plaintiff failed to provide its promised consideration for the note and mortgage provided by Bowers. That consideration was to provide a repayment schedule and to refrain from making full demand as long as that schedule was followed by Bowers.

Having concluded that the plaintiff failed to fulfill its part of the agreement, the trial court was within its discretion in not granting foreclosure of the mortgage for the defendant’s failure to pay the balance of the note on demand. Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980).

The plaintiff’s final claim of error is that the court’s judgment cancelling the mortgage was “inequitable and/or excessive.” This claim appears to be based on the mistaken assumption that the trial court “voidfed] the Renewal Note and mortgage on the erroneous ground of failure of consideration.” This is not an accurate assessment of what the court did. The memorandum of decision clearly states that “upon the defendants’ counterclaim, the judgment of the court is that the defendant’s mortgage to the plaintiff is hereby cancelled and declared to be null and void.” (Emphasis added).

Since the plaintiff did not live up to its end of the bargain, it was not unreasonable for the trial court to cancel the mortgage. Although in the present case the trial court’s award was unusual, it cannot be said that it was an abuse of discretion. We, therefore, conclude that the court did not err in its award on the defendant’s counterclaim.

There was no dispute, however, as to the validity of the note in the principal amount of $40,000 due by the defendant thereunder. Consequently, the court erred in failing to render judgment for the plaintiff on the note in that amount.

There is error in part; the judgment on the plaintiffs complaint is set aside and the case is remanded to the trial court with directions to render judgment for the plaintiff as to the principal amount due on the note and for further proceedings as to any interest and costs, including attorney’s fees, also due thereupon.

In this opinion the other judges concurred.

       Aside from Florence Bowers, several other parties were originally named as defendants to this action, including Florence Bowers’ husband. He, however, was discharged from this debt in bankruptcy proceedings and the remaining defendants either admitted having no defense or were merely garnishees. Hence, only Florence Bowers is defending this appeal.

       The defendant’s counterclaim was amended, with the permission of the court, subsequent to the trial so as to conform to the proof.

       Testimony was elicited at trial that the interest due on the note as of that date, February 10,1983, was $17,869.45. No finding was made to that effect, however, so the amount of interest due from the date the note was signed must be found on remand.


author: Daly, J.

text:
    Living and Learning Centre, Inc. v. Griese Custom Signs, Inc.
    (2076)
    Borden, Spallone and Daly, Js.
    Argued February 7
    decision released April 30, 1985

      Leonard M. Bieringer, for the appellant (defendant).

      Stephen E. Goldman, for the appellee (plaintiff).
   Daly, J.

The plaintiff instituted this action with a four count complaint, alleging breach of implied warranties of merchantability and fitness for a particular purpose, negligence and strict products liability arising out of the collapse of an outdoor illuminated sign. The jury returned a verdict in favor of the plaintiff on the count for strict products liability in the amount of $2000. The defendant has appealed from the judgment rendered on the verdict, claiming that the trial court erred in denying its motion for a directed verdict and its motion to set aside the verdict.

“ ‘Directed verdicts are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion.’ ” Pinto v. Spigner, 163 Conn. 191, 192-93, 302 A.2d 266 (1972).

“If the evidence in a case presents such a situation that the minds of fair and reasonable men could therefrom reach but one conclusion, there is no question for a jury. The case should be decided by the judge as essentially a question of law, and he may direct a verdict. Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 23, 213 A.2d 449 [1965]. But if the evidence is such that honest and reasonable men could fairly differ and reach different conclusions, the issues should go to the jury for determination. Engengro v. New Haven Gas Co., 152 Conn. 513, 516, 209 A.2d 174 [1965].” Terminal Taxi Co. v. Flynn, 156 Conn. 313, 317, 240 A.2d 881 (1968).

“A verdict of a jury prevails unless unsupported by the evidence ... or unless it is so palpably against the evidence as to indicate prejudice, partiality, corruption, confusion or lack of understanding of the issues by the jury. . . . The conclusion of a jury on issues of fact, if it is one at which honest men acting fairly and intelligently could arrive reasonably, must stand, even though the opinion of the trial court and this court might be that a different result should have been reached. The credibility of each witness and the weight to be accorded to his testimony is for the jury, and the evidence must be given the most favorable construction of which it is reasonably capable.” Harris v. Clinton, 142 Conn. 204, 209, 112 A.2d 885 (1955).

Moreover, the decision of the trial court in refusing to set aside the verdict is entitled to great weight, and every reasonable presumption should be given in favor of its correctness. See Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) §§ 35, 61, 64.

The jury could readily have found the following facts: On or about June 17, 1974, the parties entered into a written contract whereby the defendant was to construct and install a free standing illuminated sign to be located at the plaintiff’s place of business in Vernon. The sign was installed on July 22,1974, after the town engineers approved the plans. The sign was supported by two heavy thirty-five foot steel beams or poles which were set in concrete footings. Certain sections at the top of the sign were replaced eight months later, but this was the only maintenance work ever performed by the defendant.

Between November 24, 1976, and March 22, 1977, the plexiglass sign cover was broken, and the interior of the sign was partially exposed to the elements. It rained during the evening of March 22,1977. On March 23,1977, the sign was found to be in a damaged condition. The poles supporting the sign had bent so that the sign was hanging parallel to, and a few feet above the ground. There was no evidence that another object had come in contact with the sign, causing it to fall. The anticipated longevity of such signs is five years. Nothing of this nature had happened to approximately eighty similar signs installed by the defendant.

“In order to recover under the doctrine of strict liability in tort the plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition. Restatement (Second), Torts § 402A (1965); see Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 562, 227 A.2d 418 [1967].” Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980).

The plaintiff must prove the five elements in order to prevail on a strict tort liability claim. Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn. App. 84, 86-87, 468 A.2d 292 (1983). The defendant claims that the plaintiff has failed to satisfy its burden with respect to the fourth element, the existence of a defect at the time of sale.

In the field of products liability, the focus is on the product and not necessarily on its component parts. It is not necessary that the plaintiff in a strict tort action establish a specific defect as long as there is evidence of some unspecified dangerous condition. In the absence of other identifiable causes, evidence of malfunction is sufficient evidence of a defect under § 402A of the Second Restatement of Torts. Liberty Mutual Ins. Co. v. Sears, Roebuck & Co., 35 Conn. Sup. 687, 690-91, 407 A.2d 1254 (1979).

“The mere fact that there is sufficient evidence to infer a defect does not necessarily mean that there is sufficient evidence to infer that the defect existed at the time of sale. Normally, the questions of when and where a defect originated will be left to the jury. Kuisis v. Baldwin-Lima-Hamilton Corporation, 457 Pa. 321 [319 A.2d 914 (1974)]. Where the answers to these questions would be based only on speculation or conjecture, however, the answers cannot stand. Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 138 [153 A.2d 477 (1959)].

“The test for the sufficiency of evidence used to prove that a product was defective at the time of sale will be more difficult to meet where circumstantial, and not direct, evidence of the defect is produced. Where the jury are presented with sufficient direct evidence of a specific defect, either in design or in manufacture, the length of time between sale and injury may be of little consequence.” Liberty Mutual Ins. Co. v. Sears, Roebuck & Co., supra, 692.

“Where the evidence of a defect is wholly circumstantial and consists of the malfunction itself, however, the likelihood that the defect existed at the time of sale is more speculative. This is so because where a specific defect in design or manufacture is proved, the jury are presented with evidence of the condition of the product before it left the manufacturer’s or seller’s hands. No such evidence is put forward when the defect is circumstantially proved from the fact of the malfunction. This lack of evidence of the existence of a specific defect, though not fatal to the plaintiff’s case, does require that the evidential bridge linking the defect with the time of sale be more substantial than might otherwise be appropriate. Although the amount of time between purchase and injury is a significant factor in the inferential equation, it is not the only one. To it must be added other factors that might account for an alteration of the product after sale, including improper use, modification, tampering or improper maintenance. Annot., 54 A.L.R.3d 1079, 1092; 2 Frumer and Friedman, Products Liability § 16A [4] [e] [ii]. Taking these factors into consideration, we must look to the facts of each case to determine whether ‘reasonable and well balanced minds [could] be satisfied from the evidence adduced that the defective condition existed when the [product] was delivered.’ Greco v. Bucciconi Engineering Co., 407 F.2d 87, 90 (3d Cir. [1969]).” Liberty Mutual Ins. Co. v. Sears, Roebuck & Co., supra, 693.

The jury could have concluded, due to the anticipated longevity of the sign, the lack of any external contact and its unique contortion, that it was reasonable to infer that any defect in the product existed at the time of sale.

There is no error.

In this opinion the other judges concurred.


author: Per Curiam.

text:
    Edward A. Phipps, Jr. v. Jill S. Phipps
    (2899)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued April 9
    decision released May 7, 1985

      James R. Greenfield, for the appellant (plaintiff).

      Edward J. Dolan, with whom, on the brief, was Kent Harvey, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Anthony E. Basilicato et al. v. National Amusements, Inc., et al.
    (2674)
    (2945)
    (2946)
    (2947)
    (2948)
    (2949)
    Hull, Spallone and Daly, Js.
    Argued February 14
    decision released May 7, 1985

      Anthony E. Basilicato, pro se, the appellant (named plaintiff).

      Otto P. Witt, for the appellants (plaintiffs Anne E. Schaedler et al.).

      Catherine G. Roraback, for the appellees (defendants Arnold S. Gorlick et al.).

      Edwin L. Doernberger, filed a brief for the appellee (named defendant).
   Hull, J.

These appeals arise out of the trial court’s dismissal, for lack of subject matter jurisdiction, of the plaintiffs’ action involving a labor dispute. We find no error.

The tortuous course of this dispute has taken on epic proportions. Since 1978, three suits arising out of the events at issue here have been filed in our state courts. One of these was removed to the federal District Court for the District of Connecticut and was subsequently remanded to our state court system. Several consolidated actions have also been commenced before the national labor relations board (NLRB). All of these actions arise out of a labor dispute in which the plaintiffs sought to disassociate themselves from Local 273, International Alliance of Theatrical Stage Employees (IATSE), and to form an independent union. After the plaintiffs voted in favor of disassociation, Local 273 and National Amusements, Inc., entered into collective bargaining as a result of which National Amusements and the individual defendants, Arnold S. Gorlick, Joseph Tetreault and Thomas R. Kinsella, the officers of Local 273, signed an agreement. The plaintiffs’ organization was never recognized as a bargaining agent.

By the present action, the plaintiffs seek to enjoin IATSE, through its officers, from complying with the terms of the agreement. They also seek damages for fraud in the inducement, interference with property rights, misuse of legal process and intentional infliction of emotional distress. In essence, the plaintiffs’ complaint alleges that, in violation of the collective bargaining agreement, Tetreault has been assigning union members to additional work through IATSE’s referral system rather than having the named plaintiff do so as had been the past practice. Further, the plaintiffs allege that the collective bargaining agreement has been used by the defendants to benefit themselves and other union members at the expense of the plaintiffs’ ability to take vacation time without risking their employment.

Upon motions of the defendants, the trial court dismissed this action, concluding that the NLRB has exclusive jurisdiction over the dispute. The plaintiffs then filed the present appeals by which the pro se appellant has raised 35 claims of error. He agreed at oral argument, however, that counsel for the remaining appellants had properly summarized those issues as follows: “(1) Whether the allegations set forth in the original complaint filed by the Appellants in [this case] are within the exclusive jurisdiction of the National Labor Relations Board. . . . (2) Whether the Superior Court erred in dismissing the above case for lack of subject matter jurisdiction.”

The focus of this appeal is the effect of the National Labor Relations Act, 29 U.S.C. §§ 151 through 169 (1970 and Supp. V) (hereinafter NLRA), on the power of state courts to rule on matters stemming from labor disputes. While the NLRA preempts many of the states’ powers to regulate labor relations, it does not constitute a complete ban. Garner v. Teamsters, Chauffeurs and Helpers Local Union, 346 U.S. 485, 488, 74 S. Ct. 161, 98 L. Ed. 228 (1953). The resulting confusion over what states may regulate in this area has been described as “one of the most teasing and frequently litigated areas of industrial relations . . . .” San Diego Building Trades Council v. Garmon, 359 U.S. 236, 241, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1958).

It has been held that “[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by [NLRA, 29 U.S.C. § 157] or constitute an unfair labor practice under [NLRA, 29 U.S.C. § 158], due regard for the federal enactment requires that state jurisdiction must yield.” San Diego Building Trades Council v. Garmon, supra, 244. Nonetheless, the court has recognized that “[t]he nature of the judicial process precludes an ad hoc inquiry into the special problems of labor-management relations involved in a particular set of occurrences in order to ascertain the precise nature and degree of federal-state conflict there involved, and more particularly what exact mischief such a conflict would cause. Nor is it our business to attempt this. Such determinations inevitably depend upon judgments on the impact of these particular conflicts on the entire scheme of federal labor policy and administration. Our task is confined to dealing with classes of situations.” Id., 242. Consequently, the court has stated that “courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.” Id., 244-45. “When an activity is arguably subject to [NLRA, 29 U.S.C. §§ 158-59], the States . . . must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” (Emphasis added.) Id., 245. This rule is known as the Garmon doctrine.

In the present case, the claims of the plaintiffs are, at the very least, arguably within the scope of the NLRB’s expertise. In fact, paragraphs 12 through 21 of the complaint in the consolidated actions before the NLRB in this dispute speak directly to the validity of the agreement involved here, and to the duty of IATSE to represent the plaintiffs fairly. Consequently, it should be left to the NLRB to decide whether or not it should decide these issues and, if it decides not to do so, then our courts may consider the plaintiffs’ claims on their merits.

The plaintiffs assert that several exceptions to the Garmon doctrine apply to this case and allow immediate state court review of their claims. See Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S. Ct. 1745, 56 L. Ed. 2d 209 (1978) (claim for trespass by pickets where plaintiff unable to institute suit before NLRB); Farmer v. United Brotherhood of Carpenters & Joiners of America, 430 U.S. 290, 97 S. Ct. 1056, 51 L. Ed. 2d 338 (1977) (claim for intentional infliction of emotional distress); Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967) (breach of duty of fair representation); 29 U.S.C. § 185 (1976 and Supp. V) (breach of contract actions may be taken to courts). The short answer to this claim is that the exceptions referred to all presuppose that the collective bargaining agreement between the employer and the union is valid and that the acts complained of do not call into question the effectiveness of that agreement. See Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, supra, 185 (scope of action limited to location of picketing, not validity of picketing itself); Farmer v. Brotherhood of Carpenters & Joiners of America, supra, 302 (no provision of NLRA protected acts complained of); Vaca v. Sipes, supra, 186 (breach of duty of fair representation based on breach of contract). Here, the validity of the agreement is the root of this dispute and that issue must be determined by the NLRB before any of the claims, otherwise arguably within exceptions to the Garmon doctrine, can be reviewed by our courts.

If this were a case where the plaintiffs could not invoke the jurisdiction of the NLRB or induce their adversaries to do so our decision would necessarily be different. Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, supra, 201. Since these issues are already before the NLRB, any action in the courts of this state concerning them must await the outcome of the NLRB proceedings.

There is no error.

In this opinion the other judges concurred.

       The six plaintiffs are all employees of the named defendant and each has filed a separate appeal from the decision of the trial court. In addition to National Amusements, Inc., three individual defendants, who will be referred to later herein, are also involved in this action.

       In addition to the present action, see Superior Court, judicial district of New Haven, Nos. CV-81-0195020S and CV-82-0203217S, both of which were also dismissed for lack of subject matter jurisdiction on the same basis as the present case.
      The dismissal of these two prior cases for lack of subject matter jurisdiction was raised in the defendants’ motions to dismiss the present case as being res judicata of this case. That claim was not raised as a special defense, as it must be. Ziska v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985); Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 64 n.3, 485 A.2d 1296 (1985). We, therefore, cannot consider it.

        See Basilicato v. International Alliance of Theatrical State Employees and Moving Motion Picture Machine Operators of the United States and Canada, 479 F. Sup. 1232 (D. Conn. 1979).

       NLRB case nos. 39-CB-295, 39-CB-306, 39-CA-1181 and 39-CA-1201.

       The individual defendants filed one motion to dismiss and National Amusements filed another.

       Initially, the named plaintiff filed an appeal, pro se, which purported to be on behalf of all six of the appellants. The other appellants thereafter obtained counsel and filed separate appeals which were consolidated for argument.

       In the present case, the trial court found that unfair labor practices within the meaning of 29 U.S.C. § 158 were involved.


text:
    Augustus Simmons v. Horace Wetherall, Deputy Commissioner, Department of Transportation
    (3160)
    Hull, Spallone and Daly, Js.
    Argued March 13
    decision released May 7, 1985

      JohnL. Stawicki, with whom, on the brief, was Jean M. Stawicki, for the appellant (plaintiff).

      Gerard J. Dowling, assistant attorney general, with whom were Robert T. Morrin, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Per Curiam.

This case is the most recent chapter in a seemingly endless saga arising out of a dispute beginning in 1960 concerning the state’s taking, for airport purposes, of approximately 13.5 acres of Simmons family land adjoining Bradley Field in East Granby. The dispute eventually reached the Supreme Court. Simmons v. Wetherall, 180 Conn. 587, 430 A.2d 1296 (1980). Thereafter, Simmons filed two suits in the United States District Court for the District of Connecticut; Civil Action Nos. H-83-223, H-81-778; which dismissed them as res judicata. Those dismissals were affirmed in the Second Circuit Court of Appeals.

The present proceeding arose out of a “Claim For Declaratory Judgment” filed, pro se, by the plaintiff in the trial court on February 3, 1984. The plaintiff sought rulings on eleven different issues which had arisen through the years in connection with this matter. He also sought to void the judgment settling the case which was upheld by the Supreme Court in 1980.

On February 27,1984, the plaintiff appeared pro se before the trial court, Edelberg, J., on the motions calendar. The attorney for the state explained that the settlement judgment of 1978 had been upheld by the Supreme Court and the United States District Court and Court of Appeals. The court then refused to hear any argument from the plaintiff and, stating that “you’ve had your days in court,” denied the plaintiff’s claim. The plaintiff’s issues on appeal all essentially involve the claim that he was denied due process of law by being denied a chance to be heard on the matter.

Because of the unusual stance of this case, we do not reach the issue of res judicata, raised by the defendants, since the plaintiff was not allowed to argue this claim. Nor do we reach the question of whether judicial patience was so stretched by over twenty years of litigation that the trial court unfairly denied the plaintiff a chance to be heard again.

Even had the plaintiff’s claim been legally proper, the record is devoid of any notice to the myriad interested persons, cited in the claim for declaratory judgment, who were not parties to the original suit involved. The court lacked subject matter jurisdiction to hear the plaintiff’s claim. Echo Four v. Hill, 3 Conn. App. 118, 123, 485 A.2d 926, cert. denied, 195 Conn. 801, 487 A.2d 564 (1985).

There is no error.

       Other aspects of the dispute were considered in State v. Simmons, 153 Conn. 351, 216 A.2d 632 (1966), State v. Simmons, 155 Conn. 502, 234 A.2d 835 (1967); and Simmons v. State, 160 Conn. 492, 280 A.2d 351 (1971).

       A petition for certiorari was denied by the United States Supreme Court on October 1, 1981.

       The inappropriateness of the plaintiffs “Claim for Declaratory Judgment,” which rehashes matters occurring over many years, all of which were disposed of in a settlement leading to a 1978 judgment later upheld by the Supreme Court, requires no discussion.

       The plaintiff’s claim for a declaratory judgment was presented and treated by the court in the form of a motion. An action for a declaratory judgment must be brought by complaint. Practice Book § 391 (a).


text:
    MacArthur/Nathan Associates v. Edson Realty, Inc., et al.
    (2233)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued March 12
    decision released May 7, 1985

      John J. Graubard, for the appellant (plaintiff).

      Richard L. Newman, for the appellees (defendants).
   Per Curiam.

The plaintiff seeks money damages for breach of a written agreement between the parties, dated April 29, 1981, in which the plaintiff agreed to act as the exclusive agent to obtain financing for the defendants’ proposed development of an industrial project. Four specific financing proposals from other lenders were listed as exceptions to the exclusive nature of the plaintiff’s agency. One of these concerned ongoing negotiations for a ten year loan in the amount of $1.5 million from the Chase Manhattan Bank. The agreement provided that the defendants could terminate it by written notice to the plaintiff if they failed to present acceptable proposals within sixty days.

The plaintiff presented a letter of intent from Citytrust to the defendant on June 11,1981. On July 7, 1981, the defendants told the plaintiff by telephone that this letter of intent was unacceptable and, on July 8, 1981, a written notice of termination of the agreement was sent to the plaintiff. On July 13,1981, the defendants accepted a somewhat changed proposal from the Chase Manhattan Bank.

The plaintiff appeals from the trial court’s judgment for the defendants claiming that the court erred as follows: (1) in finding that the agreement gave the plaintiff merely an exclusive agency rather than an exclusive right to obtain financing for the defendants; (2) in finding that the agreement had terminated before the defendants accepted the revised Chase Manhattan proposal; (3) in holding that General Statutes § 20-325a (a) barred the plaintiffs, who are unlicensed under the real estate broker’s licensing laws; General Statutes § 20-311 through General Statutes § 20-329bb; from recovery where the evidence showed that any real estate involvement was merely incidental to the transaction; and (4) in excluding expert testimony of John R. MacArthur, a licensed real estate broker, as to whether this transaction was within the scope of the real estate licensing laws.

Concerning the first and second issues raised, the plaintiffs appeal is a patent attempt to get this court to retry the facts, a practice against which we have apparently inveighed in vain. American Frozen Foods, Inc. v. International Brotherhood of Teamsters, 3 Conn. App. 300, 302, 487 A.2d 570 (1985); Hobby v. Feldman, 2 Conn. App. 696, 697, 482 A.2d 1226 (1984); Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984). After a review of the record in this case, we find that the trial court’s conclusions on these two issues were legally correct and factually supported. The decision of the trial court was not clearly erroneous in light of the evidence and the pleadings in the record as a whole. Practice Book § 3060D; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In view of our conclusions as to the correctness of the court’s decisions on the first and second issues, we do not reach the third and fourth issues which arise out of the defendants’ special defense.

There is no error.


text:
    Rita Haig Driessens v. Heloise Driessens et al.
    (2904)
    Borden, Fracasse and Norcott, Js.
    Argued February 28
    decision released May 7, 1985

      Rita H. Driessens, pro se, the appellant (plaintiff).

      Ernest J. Mattei, for the appellee (named defendant).
   Per Curiam.

The plaintiff filed this appeal following a trial in which the jury found against the plaintiff on a claim of breach of contract. The original suit included claims of fraudulent misrepresentation and breach of contract against both Heloise Driessens and Warren Driessens as defendants. The trial court ruled for the defendant Warren Driessens on motions for summary judgment, and those rulings are not a subject of this appeal. The trial court, finding that the action had not been commenced within the three year statute of limitations, also ruled in favor of the defendant Heloise Driessens on the fraud count as a matter of law.

After a careful study of the briefs and the record, and after a careful analysis of those issues which we consider properly before this court, we conclude that there is no merit to the plaintiffs claims.

There is no error.


text:
    Stanley V. Tucker v. John S. Pinney et al.
    (3111)
    Borden, Spallone and Daly, Js.
    Argued March 15
    decision released May 7, 1985

      Stanley V. Tucker, pro se, the appellant (plaintiff).

      Arthur A. Palmunen, for the appellee (named defendant).
   Per Curiam.

We have carefully reviewed the plaintiffs claims in this matter and find them to be without merit. See Tucker v. American Ins. Co., 3 Conn. App. 397, 399, 488 A.2d 1278 (1985).

There is no error.


author: Borden, J.

text:
    John Gill Nielsen v. Sandra Emeis Nielsen
    (2533)
    Dupont, C.P.J., Boeden and Daly, Js.
    Argued February 15
    decision released May 7, 1985

      Deborah L. Grover, for the appellant (plaintiff).

      Mark V. Oppenheimer, for the appellee (defendant).
   Borden, J.

This case presents a complicated procedural history yielding the issue of whether the trial court erred in dismissing the plaintiff’s suit on the ground of a prior pending action. We find error.

The facts are not in dispute. The parties were married in 1978 in Massachusetts. They have no children. At some point, they moved to Connecticut. In February, 1981, they left Connecticut and moved to Florida, where they were domiciled until April, 1982. At that time, the defendant wife left the plaintiff husband without his knowledge or consent and moved to Connecticut.

On May 12,1982, the husband filed a petition for dissolution of the marriage in the Florida Circuit Court. Pursuant to Fla. Stat. §§ 48.193 and 48.194, the clerk of that court issued a summons to the wife which was forwarded to a deputy sheriff in Connecticut who personally served her in Connecticut on May 17,1982. The wife, nonetheless, did not appear in that Florida action. On April 14, 1983, the Florida court rendered a final judgment dissolving the marriage, ordering the wife to convey certain property to the husband, and awarding lump sum alimony to him. The court also found that personal service was perfected on the wife pursuant to Fla. Stat. §§ 48.193 (1) (e) and 48.194; see footnote 1, supra; and that it had personal jurisdiction over both parties.

Meanwhile, on May 11, 1982, the wife began a dissolution of marriage action in the Superior Court for the judicial district of Danbury. This was done by obtaining an order of notice directed to the husband in Florida. That order of notice was complied with, and the husband received the notice on May 14,1982. The husband retained Connecticut counsel, who appeared on his behalf in that action and who moved to dismiss it on the ground of the prior Florida action. The court denied that motion. On June 20,1983, after the Florida judgment had been rendered, the husband again moved to dismiss the Danbury action on the ground that the Florida judgment rendered the court without subject matter jurisdiction by virtue of the full faith and credit clause of the constitution of the United States. The court denied that motion. That action is pending.

This, finally, brings us to this case. On June 21,1983, the husband instituted this action against the wife in the Superior Court for the judicial district of Waterbury, to enforce the property aspects of the Florida dissolution judgment. The wife moved to dismiss the action on the ground, inter alia, of the prior action between the same parties pending in Danbury. The trial court granted the motion to dismiss on that ground. The husband appeals, claiming that the dismissal denied him his constitutional right to have a valid foreign judgment enforced, and that the court also erred by applying the doctrine of a prior pending action. We conclude that the court erred by applying the prior pending action doctrine to dismiss the husband’s case. This conclusion renders it unnecessary for us to consider his other claim on appeal.

The pendency of a prior action between the same parties, in the same jurisdiction and to the same end is grounds for dismissal. Southland Corporation v. Vernon, 1 Conn. App. 439, 451, 473 A.2d 318 (1984). This rule, which is not one of unbending rigor or universal application; id., 452; is not a rule of subject matter jurisdiction but of justice and equity, generally applicable and always where the two suits are virtually alike. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981). When, however, the purposes of the two actions and the issues to be determined by them are different, the rule does not apply. Id., 113-14.

The purpose of the wife’s Danbury action is to dissolve the marriage and obtain alimony and other property orders. The issues in that case would involve the traditional factors specified by General Statutes § 46b-82, such as the length of the marriage, the causes of its breakdown, and the respective economic and vocational situations of the parties. The purpose of this case, the husband’s Waterbury action, is to enforce the property elements of the Florida judgment. The issues involve whether that judgment, including those property elements, is entitled to full faith and credit and is thus binding on the wife. Those issues involve, in turn, whether the Florida court had valid personal jurisdiction over her pursuant to Florida’s domestic relations long arm statute. See, e.g., Whitaker v. Whitaker, 237 Ga. 895, 230 S.E.2d 486 (1976) (Florida dissolution judgment, including property orders, entitled to full faith and credit as against nonappearing spouse personally served out of state pursuant to Florida domestic relations long arm statute).

This does not end our inquiry, however. It is true that the husband has sought in the Danbury action, by his motions to dismiss, to litigate the validity of the Florida judgment, and that he could yet in that action rely on the Florida judgment as the basis for a special defense of res judicata and for a counterclaim for enforcement of the judgment. Whether the availability to a party of a counterclaim in the prior action is sufficient to trigger the application of the rule permitting the dismissal of that same party’s subsequent action is an issue which is not free from doubt. Professor Stephenson concludes that the subsequent case is not dismissable on this theory, on the basis of the fact that our counterclaim rule is permissive, not mandatory. 1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 104 (c). Judge Covello, in his 1982 supplement to Professor Stephenson’s treatise, concludes that the subsequent action may be dismissed, on the basis of the public’s interest in avoiding unnecessary litigation. 1 Stephenson, supra, § 104 (c) (1982 Cum. Sup.).

Our examination of the cases indicates that, because of the public interest in avoiding unnecessary litigation, the rule in question is not limited to cases in which the second action is brought by the same party as the first, and may apply where the plaintiff in the second action can, as a defendant in the first action, properly assert a counterclaim. Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388, 392, 185 A. 82 (1936). We are also convinced, however, that this application of the rule is limited to situations in which the two sets of issues are the same. Welles v. Rhodes, 59 Conn. 498, 22 A. 286 (1890). Here they are not.

This does not mean that either the defendant in the second action, or the court, is without a remedy. The public’s interest in avoiding unnecessary litigation and conserving scarce judicial resources is too powerful a factor to ignore. Furthermore, it makes little sense for these two actions to be litigated in parallel, the plaintiff in each seeking to rush to judgment. The remedy is not, however, the drastic one of dismissal. It is, instead, that the second case be transferred to the court location where the first case is pending, either on motion of either party or by the court on its own motion; Practice Book § 212; and that the two cases be consolidated. Rode v. Adley Express Co., 130 Conn. 274, 277, 33 A.2d 329 (1943).

There is error, the judgment is set aside and the case is remanded with direction to transfer the case to the judicial district of Danbury and to consolidate it there with case No. 280300.

In this opinion the other judges concurred.

       The pertinent portions of the Florida statutes provide as follows: “[Section] 48.193 ACTS SUBJECTING PERSONS TO JURISDICTION OF COURTS OF STATE.
      “(1) Any person, whether or not a citizen or resident of this State, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person, and if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following: . . . (e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage. ... (2) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in 48.194. The service shall have the same effect as if it had been personally served within this state.” (Emphasis added.)
      “[Section] 48.194 personal service outside state. Service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.”

       The wife’s residence had changed from Newtown to Woodbury, necessitating that an action against her be brought in Waterbury rather than Danbury.

       The wife also moved to dismiss on the ground that the court lacked subject matter jurisdiction to enforce the Florida judgment as a foreign matrimonial judgment pursuant to General Statutes § 46b-70. The court did not address that issue, and it is not before us.

       We note that Connecticut has enacted a similar domestic relations long arm statute providing for personal jurisdiction over a nonresident party, where the party has received actual notice of the dissolution action pursuant to an order of notice, the complaining party meets the residency requirements of General Statutes § 46b-44 and both parties were domiciled immediately prior to or at the time of their separation. General Statutes § 46b-46 (b).


author: Purtill, J.

text:
    State of Connecticut v. William B. Schroff III
    (3017)
    Hull, Barall and Purtill, Js.

      Argued February 22
    decision released May 7, 1985

      John J. Buckley, for the appellant (defendant).

      Guy W. Wolf III, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Purtill, J.

The defendant, William B. Schroff III, appeals from his conviction, after a trial to a jury, of escape from custody in violation of General Statutes § 53a-171 (a). On July 5,1983, the defendant was in custody, awaiting trial for a series of felony charges. He was transported by van, in the custody of a sheriff, from a state correctional center to the Superior Court in New Haven to make a court appearance. As the prisoners were being unloaded from the van, the defendant and another prisoner exited the van, ran by the sheriff and scaled the wall. The defendant was subsequently apprehended, tried and convicted of escape from custody.

The defendant claims that the trial court, Higgins, J., erred (1) in denying his motion in limine and in permitting evidence of certain of his prior convictions to come before the jury, (2) in finding that the evidence reasonably supported a finding of guilty, and (3) in allowing into evidence extra-judicial statements made by him. We find no error.

It is well established in this state that the credibility of a witness may be impeached by proof of prior conviction of crimes for which imprisonment may be more than one year. General Statutes § 52-145; State v. Townsend, 167 Conn. 539, 563, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975). The defendant moved, in limine, that his prior criminal record not be introduced to impeach his credibility alleging that such evidence would be inflammatory and would prevent a fair trial. He further moved that such presentation be limited to stating that he had been convicted of a felony but that no statement be made as to the nature or number of convictions. He specifically requested that no evidence of prior escape attempts be admitted.

After a hearing on the motion, the court excluded all convictions prior to 1973 as being too remote in time and a 1974 conviction for escape because it was the same as the charge then pending and was therefore too prejudicial. The state offered to introduce only the fact of the prior convictions without referring to the nature of the offenses. The defendant refused this alternative, requesting the use of the term “multiple convictions” instead. The court, however, concluded that describing the prior convictions in this manner might mislead the jury and ruled that those prior convictions not excluded could be introduced by title and year, without elaboration of the underlying facts. The judge thereafter ruled that all the convictions for the other crimes including sexual assaults, kidnappings and six thefts of firearms could be allowed into evidence. In its charge to the jury, the court gave extensive instructions as to the proper use by the jury of evidence of the convictions.

The trial court’s decision to deny the motion to exclude a witness’s prior criminal record when offered to attack his credibility will be upset only where the court abuses its discretion. In determining whether there has been an abuse, the ultimate issue is whether the court could reasonably conclude as it did. State v. Bitting, 162 Conn. 1, 10-11, 291 A.2d 240 (1971); E.M. Lowe’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959).

“[P]rior convictions that are admissible for impeachment purposes may be segregated into two general categories. First are those crimes that by their very nature indicate dishonesty or tendency to make false statement. State v. Nardini, [187 Conn. 513, 523-24, 447 A.2d 396 (1982)]. Beyond the obvious violations such as perjury or false statement, we have recognized that crimes involving larcenous intent imply a general disposition toward dishonesty such that they also fall within this category. State v. Carter, [189 Conn. 631, 643, 458 A.2d 379 (1983)]. Convictions of this sort . . . bear heavily on the credibility of one who has been convicted of them. The probative value of such convictions, therefore, may often outweigh any prejudice engendered by their admission.” State v. Geyer, 194 Conn. 1, 12, 480 A.2d 489 (1984).

The six convictions of theft of firearms concern crimes involving larcenous intent and clearly fall within the category of crimes concerning dishonesty. The mere fact that the crimes involve firearms does not indicate abuse of discretion. The conviction for burglary in the third degree also falls into this category. “With respect to the convictions ... for burglary, a crime often associated with larceny, there is authority for the view that those crimes imply dishonesty in a general sense . . . .” State v. Carter, supra, 643.

“The second category involves convictions for crimes that do not reflect directly on the credibility of one who has been convicted of them. State v. Nardini, supra. The theory behind the admissibility of these convictions as evidence of credibility posits that ‘conviction of a crime demonstrates a bad general character, a “general readiness to do evil” and that such a disposition alone supports an inference of a “readiness to lie in the particular case . . . .” Gertz v. Fitchburg R. Co., 137 Mass. 77, 78 (1884) (Holmes, J.).’ State v. Nardini, supra, 523-24.” State v. Geyer, supra. The same rationale underlies General Statutes § 52-145. State v. Bitting, supra, 10.

The prior convictions for assault in the second degree, kidnapping in the first and second degree, two convictions for sexual assault in the first degree and carrying a pistol without a permit all fall within the second category. Such crimes do not reflect directly on the defendant’s credibility but do reflect on his general character.

“A trial court must weigh the probative value of prior convictions on a defendant’s credibility in general against any prejudice that will arise from their introduction into evidence. State v. Carter, supra, 642-43 . . . .” State v. Geyer, supra, 13. “The trial court, because of its intimate familiarity with the case, is in the best position to weigh the relative merits and dangers of any proferred evidence.” State v. Geyer, supra; State v. Carter, supra, 642. It thus cannot be found that admissions of such convictions into evidence constitutes extraordinary prejudice which far outweighs the marginal probative value of impeaching the defendant’s credibility. State v. Carter, supra, 643. This is particularly true where no details as to the crimes were introduced and where the defendant was given the option of having the crimes merely referred to without mention as to their nature or type.

The defendant additionally claims that it was error for the court to admit evidence of convictions which were on appeal. We adopt the majority rule which states that the trial court “has discretion to allow the use for impeachment of a conviction under appeal, although he must, of course, allow defense counsel to point out the pendency of an appeal to the jury. In exercising this discretion, the judge is free, although not required, to examine any readily available papers that may bear on the substantiality of the appeal.” United States v. Soles, 482 F.2d 105, 108 (2d Cir.), cert. denied, 414 U.S. 1027, 94 S. Ct. 455, 38 L. Ed. 2d 319 (1973); State v. Carter, supra, 641-42 n.2; see 6 A.L.R.Sd 726. The admissibility of a conviction on appeal also finds authority in the Federal Rules of Evidence: “The pendency of an appeal . . . does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.” Fed. R. Evid. 609 (e). Here, however, the defendant elected not to inform the jury that the convictions were on appeal.

The defendant next claims that the evidence admitted at trial was insufficient to support the jury’s finding of criminal intent. In order for evidence to be sufficient to sustain a verdict, the trier must be able “ ‘reasonably [to conclude], upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.’ ” State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 479 (1980), quoting State v. Festo, 181 Conn. 254, 257, 436 A.2d 38 (1980). The jury could reasonably have reached the verdict it did. There was more than sufficient evidence of the defendant’s acts from which the jury could have inferred the defendant’s necessary intent.

The defendant contends that his statements, which were admitted at trial, had been made to the sheriff following his arrest and during the course of a custodial interrogation prior to which he should have been advised of his Miranda rights. “Before one suspected of the commission of a crime is entitled to the warnings constitutionally required by Miranda . . . two conditions must be satisfied: the suspect must be in the custody of law enforcement officials . . . and the suspect must be subjected to interrogation.” (Citations omitted.) State v. Stankowski, 184 Conn. 121, 136, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596,70 L. Ed. 2d 588 (1981); State v. Acquin, 187 Conn. 647, 651, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). Miranda warnings are required to combat a situation in which there are “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so.” State v. Ferrara, 176 Conn. 508, 519, 408 A.2d 265 (1979), quoting Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The statements in question, volunteered during the course of conversations initiated by the defendant, were not made during a custodial interrogation. Miranda warnings need not precede volunteered incriminatory statements. State v. Krajger, 182 Conn. 497, 500 n.2, 438 A.2d 745 (1980).

The defendant finally claims that the jury, rather than the trial court, should have determined whether he had been properly advised of his Miranda rights. Since this is a preliminary issue of fact and law, it was properly decided by the the trial court. State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983); State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982).

There is no error.

In this opinion the other judges concurred.

       The defendant was convicted of the following crimes: Carrying a pistol without a permit (August 22,1973); burglary in the third degree (August 22, 1973); kidnapping in the second degree (July 5,1977); sexual assault in the first degree (July 5, 1977). Convictions on appeal include: Kidnapping in the first degree; sexual assault in the first degree; assault in the second degree; and theft of firearms (six counts), all of which were committed on September 9, 1983.


text:
    Lightway Realty, Inc. v. Nicotra-Wieler Investment Management, Inc.
    (3301)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued April 4
    decision released May 7, 1985

      StephenB. Alderman, for the appellant (defendant).

      Lawrence W. Iannotti, with whom was Charles W. Llewellyn, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Robert Sperry v. Jeffrey E. Moler et al.
    (2712)
    Hull, Spallone and Daly, Js.
    Argued February 13
    decision released May 7, 1985

      Roy H. Scharf for the appellants-appellees (defendants).

      JohnR. McLain, for the appellee-appellant (plaintiff).
   Daly, J.

The plaintiff, Robert Sperry, initiated this action to foreclose a mechanic’s lien. The complaint is based on the breach of a construction contract and quantum meruit. The named defendant, Jeffrey E. Moler, and his wife, Elaine D. Moler, owners of the premises, pleaded negligence and breach of contract by way of a special defense and claimed damages for the delay. A judgment was rendered in favor of Sperry for $52,218.01. After the Molers’ motion to reargue was granted, a revised judgment for Sperry in the amount of $43,238.96 was rendered. No prejudgment interest or costs were awarded. The Molers have appealed and Sperry has cross appealed from the revised judgment.

The trial referee found the following facts: Sperry and the Molers entered into a written contract whereby Sperry agreed to construct a residence on the Moler’s land for $65,428. The Molers made a downpayment of $2500, and were to finance the balance by a mortgage at 13.5 percent. The house was to be completed by September 30,1981. Despite two mortgage extensions, the latter being until October 20,1981, the premises were still not completed. On October 20, the house was far from complete and not ready for occupancy. As a result, the Molers lost their mortgage commitment.

The trial referee further found that Sperry had breached the contract and could only recover on the count claiming quantum meruit. In the original award, the trial referee found that Sperry had furnished labor and materials to the Molers in the amount of $68,968.01. The Molers were credited with the down-payment of $2500, plus $14,250, the amount needed to complete the house at the time of the trial. Sperry was awarded the difference of $52,218.01.

The revised judgment credited the Molers with the downpayment of $2500, Sperry’s profit of $11,302, the amount the Molers themselves expended towards completion of the house totaling $11,177.05, and mortgage costs of $750. The award in Sperry’s favor was thus $43,238.96.

Both parties have appealed, and the issues entail the opening of the judgment, the failure to award interest and costs, the amount of the judgment, and the theory on which the damage award was based.

Sperry challenges the opening of the original judgment of July 12,1983, and the entry of the revised judgment of October 21, 1983, without any new evidence having been presented. “ ‘Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion. See Freccia v. Martin, 163 Conn. 160, 165, 302 A.2d 280 [1972]; Stocking v. Ives, 156 Conn. 70, 72, 238 A.2d 421 [1968]; 46 Am. Jur. 2d, Judgments, § 682.’ ” Hartford Federal Savings & Loan Assn. v. Stage Harbor Corporation, 181 Conn. 141, 143, 434 A.2d 341 (1980); see also 2 Stephenson, Conn. Civ. Proc. (2d Ed.) § 207, pp. 863-64. We find no such abuse of discretion.

Sperry also claims that the trial referee erred in not awarding him interest on the judgment from the date the Molers took occupancy of the premises to the time the judgment was rendered. The allowing of interest as an element of damages is primarily an equitable determination and a matter lying within the discretion of the trial court. Milgrim v. Deluca, 195 Conn. 191, 201, 487 A.2d 522 (1985); State v. Stengel, 192 Conn. 484, 487, 472 A.2d 350 (1984).

“The real question in each case is whether the detention of the money is or is not wrongful under the circumstance.” Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971). The question basically is “whether the interests of justice require the allowance of interest as damages for the loss of use of money. . . . Whether a sum in certain circumstances has been liquidated may, of course, be a useful although not necessarily controlling criterion.” Bertozzi v. McCarthy, 164 Conn. 463, 466-67, 323 A.2d 553 (1973).

Here, the trial referee found that Sperry had failed to fulfill his full contract obligations, that Sperry had ordered a substantial number of extras during the course of construction, and that many of the delays and difficulties were the result of Sperry’s conduct. Under these circumstances, the trial referee could reasonably conclude that the Molers had not wrongfully deprived Sperry of a sum of money. We find no abuse of discretion in the trial referee’s failure to award interest.

Sperry next claims that the trial referee erred in failing to award him costs, and relies on General Statutes § 52-243, which provides: “If a verdict is found on any issue joined in an action in favor of the plaintiff, costs shall be allowed to him, though on some other issue the defendant should be entitled to judgment, unless the court which tried the issue is of the opinion that the defendant had probable cause to plead the matter found against him.” It would appear that the matter of costs under this section is discretionary with the trial referee. See 20 C.J.S., Costs § 11.

The salient issue is the amount of damages to which Sperry is entitled. “As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place him in the same position he would have been in had the contract been properly performed.” Levesque v.D & M Builders, Inc., 170 Conn. 177, 180-81, 365 A.2d 1216 (1976); Fuessenich v. DiNardo, 195 Conn. 144, 153, 487 A.2d 514 (1985); Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309, 460 A.2d 488 (1983); Krol v. Goldring, 38 Conn. Sup. 610, 614, 458 A.2d 15 (1982).

“Such damages are measured as of the date of the breach. Bachman v. Fortuna, 145 Conn. 191, 194, 141 A.2d 477 [1958]; Lee v. Harris, 85 Conn. 212, 214, 82 A. 186 [1912]; 22 Am. Jur. 2d, Damages, § 52. For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either ‘(i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste.’ Restatement, 1 Contracts § 346 (1) (a), p. 573; see annot., 76 A.L.R.2d 805, 812 § 4.” Levesque v. D & M Builders, Inc., supra, 181; Barnicoat v. Edwards, 1 Conn. App. 652, 654-55, 474 A.2d 808 (1984).

“It is the rule of damages that the reasonable value for which recovery may be had in a suit based on substantial performance of a building contract is to be ascertained with reference to the contract price and by deducting from that price such sums as ought to be allowed for the omissions and variations”; Bruni v. Behnke, 144 Conn. 181, 182-83, 128 A.2d 543 (1956); or “the contract price less the cost to the defendant for completing the work, and payments already made.” Satta v. Buono, 127 Conn. 75, 78, 14 A.2d 718 (1940).

The trial referee applied a quantum meruit figure of $68,968.01, instead of the contract price of $65,428, and there is a discrepancy, or obfuscation as to the amounts expended by the Molers to complete the house.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for Sperry to recover such damages against the Molers as he may prove on a new trial limited to the issue of damages.

In this opinion the other judges concurred.


author: Spallone, J.

text:
    Aetna Casualty and Surety Company v. Bontiveron Lighty et al.
    (2574)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued February 13
    decision released May 7, 1985

      Harold C. Donegan, for the appellants (defendants).

      Dennis M. Laccavole, for the appellee (plaintiff).
   Spallone, J.

The defendants appeal from a judgment granting the plaintiffs application to vacate an arbitration award and denying the defendants’ motion to confirm that award.

The facts which gave rise to this dispute are as follows. On June 3, 1979, James Lighty was involved in an automobile accident in which his wife, the defendant Bontiveron Lighty, and daughter, the defendant Melissa Lighty, were injured. At the time of the accident, James Lighty was insured by a $50,000 liability policy issued by the plaintiff. Under the policy, which had gone into effect on December 6,1978, and which expired on June 6,1979, the defendants were “covered persons.” In July of 1980, payments to other claimants exhausted the liability coverage under that policy. Neither of the defendants received any payments before the coverage was exhausted.

The defendants thereupon submitted a claim to the plaintiff in which they sought coverage pursuant to the underinsured motorist provision of General Statutes § 38-175c, as amended by Public Acts 1979, No. 79-235. The amendment, which went into effect on October 1, 1979, after the date of the accident and after the expiration of the policy, added the following subsections: “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements .... (2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of subsection (b) of this section.”

The plaintiff opposed the claim on the grounds that the policy contained no coverage for damages caused by “underinsured” motorists and that the coverage mandated by Public Acts 1979, No. 79-235 did not become effective until well after both the accident and the expiration of the policy. The dispute was eventually submitted to arbitration.

After a hearing, the arbitrators rendered an award which determined that the defendants had established a valid claim for underinsured motorist benefits and found the plaintiff liable for payments totalling $21,097. The plaintiff thereafter applied to the Superior Court to vacate the award pursuant to General Statutes § 52-418, and the defendants filed a cross application to confirm it. The trial court granted the application to vacate on the ground that the arbitrators had exceeded their authority in making the award. The sole question before us is whether the trial court’s action was correct.

Arbitration is a creature of contract, and if the parties choose to limit the arbitrators’ powers, then the parties will be bound by those limits. Board of Education v. AFSCME, 195 Conn. 266, 269, 487 A.2d 553 (1985). Pursuant to General Statutes § 38-175c,* however, insurers who issue uninsured motorist insurance policies are prohibited from contractually limiting those issues concerning coverage which the arbitration panel may decide. Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980).

With that statutory caveat, the charter of an arbitrator is “ ‘the submission and no matter outside the submission may be included in the award. Palmer v. Green, 6 Conn. 14, 18 [1825]; Manlin v. Norwich, 40 Conn. 13, 23 [1873]; Schoolnick v. Finman, 108 Conn. 478, 481, 144 A. 41 [1928]; Sturges, Commercial Arbitrations & Awards, pp. 144, 229; Russell, Arbitrations & Award (13th Ed.) pp. 201, 210, 211.’ Pratt, Read & Co. v. United Furniture Workers, 136 Conn. 205, 208, 7 A.2d 120 [1949].” Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 613, 109 A.2d 240 (1954), cert. denied, 348 U.S. 959, 75 S. Ct. 449, 99 L. Ed. 748 (1955). It follows that an award must conform to the submission and “is void to the extent to which it is outside the submission.” Id. This is particularly so in the case of insurance coverage where risks are actuarily analyzed and premium charges reflect those risks. To layer on additional coverage outside of the contemplation of the parties at the time they entered into the contract would expose the insurer to liability for payments beyond the scope of the agreement.

The submission in this case is the arbitration clause of Lighty’s policy. The language of the submission, read together with General Statutes § 38-175e and the judicial gloss of that statute provided in Oliva v. Aetna Casualty & Surety Co., supra, “delegates all disputed issues to binding arbitration, and can therefore only be construed as unrestricted.” Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983).

Judicial review of an arbitration award is limited in scope by General Statutes § 52-418 and by the terms of the contractual agreement between the parties. Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 212, 470 A.2d 1219 (1984). Where the submission is unrestricted, any challenge to an award on the ground that the arbitrators exceeded their powers is restricted to a comparison of the award with the submission. Carroll v. Aetna, supra, 21. The submission in this case reads, in part, as follows: “If we and a covered person disagree whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or do not agree as to the amount of damages, either party may make a written demand for arbitration . . . .” (Emphasis added.)

The arbitration provision in Lighty’s policy provided for the arbitration of disputes involving uninsured, rather than underinsured, vehicles. The language of that provision is clear and unambiguous, and therefore must be given its natural and ordinary meaning. Horak v. Middlesex Mutual Assurance Co., 181 Conn. 614, 616, 436 A.2d 783 (1980). Contracts of insurance, moreover, must be read pursuant to the law existing when they were entered into; Whitfield v. Empire Mutual Ins. Co., 167 Conn. 499, 506, 356 A.2d 139 (1975); because it is presumed that the parties bargained with each other on the basis of existing law. Williamson v. Massachusetts Bonding & Ins. Co., 19 Conn. Sup. 59, 62, 109 A.2d 896 (1954). In reading Lighty’s policy in light of the law existing at the time the policy was entered into, we cannot so torture our interpretation of “uninsured motor vehicle” as to produce a result which would encompass “underinsured motor vehicle” as defined in Public Acts 1979, No. 79-235.

We find no support in either the language or legislative history of Public Acts 1979, No. 79-235 for the defendants’ argument that the act should operate retroactively and that underinsured coverage should be read into the policy. “The purpose of [the act] was to remedy the ‘anomalous situation’ . . . where an injured party could find himself in a better position if the tortfeasor had no liability insurance than if he had only the statutory minimum amount.” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 390-91, 446 A.2d 1059 (1982).

In the senate proceedings with regard to the amendment, “Senator James J. Murphy, Jr., commented: ‘Mr. President, what this bill does is require that hereafter, when one has purchased uninsured motorist coverage, that if that coverage exceeds any insurance coverage which a responsible party has in causing injuries, that once the liability insurance of the so-called responsible or negligent party has been exhausted, if there is additional coverage under one’s uninsured motorists plan, then payment under that program would be triggered and allow for the greater recovery for the insured . . . .’ 22 S. Proc., Pt. 5,1979 Sess., p. 1354.” (Emphasis added.) Id., 391. Although testimony was presented before the Joint Standing Committee on Insurance and Real Estate that insurers had already begun extending uninsured coverage to underinsured situations; id., 392-93 n.6; nothing in the history behind the act supports the assertion that it was intended to be retroactive.

General Statutes § 55-3 establishes a rule of presumed legislative intent in stating that “[n]o provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.” General Statutes § 55-3 does not set forth a rule of law, however, and enactments which “contain language which unequivocally” indicates retroactivity will be so construed. Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 174-75, 479 A.2d 1191 (1984). Similarly, where it is clear that an amendment was intended to construe and clarify, rather than alter, a preexisting law, it will be treated as retroactive. Shelton v. Commissioner, 193 Conn. 506, 514, 479 A.2d 208 (1984). In the absence of unequivocal statutory language indicating retroactive application or dispositive legislative history illuminating such intent, we presume that statutory changes are intended to modify the existing law and are to be applied prospectively. Vartuli v. Sotire, 192 Conn. 353, 364 n.12, 472 A.2d 336 (1984).

“A statute will not be given a retroactive construction by which it will impose liabilities not existing prior to its passage. ‘Laws which create new obligations . . . because of past transactions, have been universally reprobated by civil and common law writers, and it is to be presumed that no statute is intended to have such effect unless the contrary clearly appears.’ Pignaz v. Burnett, 119 Cal. 157, 160, 51 Pac. 48 [1897]; Estate of Parker, 200 Cal. 132, 142, 251 Pac. 907 [1926]; 59 C.J. 1172. The rule that laws are not to be construed as applying to cases which arise before their passage is applicable when to disregard it would impose an unexpected liability that if known might have caused those concerned to avoid it. People ex rel. Griffith, Inc. v. Loughman, 249 N.Y. 369, 379, 164 N.E. 253 [1928]; Lewellyn v. Frick, 268 U.S. 238, 252, 45 Sup. Ct. 487 [1924].” Massa v. Nastri, 125 Conn. 144, 148, 3 A.2d 839 (1939).

It is plainly evident that the defendants’ construction of Public Acts 1979, No. 79-235 would require the plaintiff to make payments for a liability that did not exist prior to its passage and would write into a preexisting contract, already executed and since expired, an ex post facto obligation in violation of the principles enunciated in Massa v. Nastri, supra. The award in this case was unassailably beyond the scope of the submission to which the parties had agreed.

There is no error.

In this opinion the other judges concurred.

       Public Acts 1979, No. 79-235 also added a reference to “underinsured motor vehicle” contained in General Statutes § 38-175c (a): “Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles or of insured and underinsured motor vehicles . . . . ”

       General Statutes § 38-175c (a) provides, in pertinent part: “Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding.”

       The arbitration clause provides as follows: “If we and a covered person disagree whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or do not agree as to the amount of damages, either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will pay the expenses it incurs, and bear the expenses of the third arbitrator equally.
      Unless both parties agree otherwise, arbitration will take place in the county and state in which the covered person lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding.”


author: Barall, J.

text:
    Hope B. Rudewicz v. Walter K. Rudewicz
    (2468)
    Hull, Barall and Purtill, Js.
    Argued February 22
    decision released May 7, 1985

      Wesley W. Horton, with whom was Louis Kiefer, for the appellant (defendant).

      Sanford J. Plepler, for the appellee (plaintiff).
   Barall, J.

In this appeal from a judgment in an action for dissolution of marriage, the defendant claims the trial court erred in its valuation of property it permitted him to retain.

The trial court found that the thirty-three year old marriage had been a stormy one which, nevertheless, produced six children, now adults. The fifty-five year old plaintiff wife had been employed practically full time for the past fifteen years. The fifty-eight year old defendant had no steady employment during the last fifteen years, but engaged in activities from which he had a substantial income. The defendant had attempted fraudulently to dispose of the family home and had manipulated bank accounts using a deceased brother’s name.

The trial court noted that it had considered all the criteria in § 46b-81 (c) of the General Statutes in ordering the family home to the wife and in ordering an escrow account to the wife as lump sum alimony, after payment of various fees from that account. Further in its memorandum, the trial court stated: “The property located in Windsor, Connecticut presently owned by the defendant, 55% and his brother Alex, 45% may remain as his property. The value of his share, approximately $60,000.” It is this statement that forms the basis of the defendant’s appeal.

The defendant claims that the only evidence on the value of the Windsor property would have suggested a maximum value of $80,000, and, therefore, the defendant’s 55 percent share could not approximate $60,000. He claims further that the only support for the trial court’s approximation was an appraisal report that was not received in evidence. He argues that since the family home property was worth about $64,000 the trial court was balancing its real estate orders between the parties and, therefore, an error of valuation would affect its decision.

Although the defendant’s assumptions as to the trial court’s balancing intentions are not as clear as he might wish, this court need not reach that issue. The transcript of the trial reveals that the defendant’s brother and co-owner of the Windsor property testified in response to a question from the defendant’s counsel that they had placed the property on the market for $120,000 to $140,000.

Although this evidence was not mentioned in the defendant’s brief, he now argues that an offer to sell real estate is neither admissible as to, nor probative of the real estate’s value.

Most cases have held that an unaccepted offer is not admissible as evidence of its value. See McDermott v. New Haven Redevelopment Agency, 184 Conn. 444, 449, 440 A.2d 168 (1981); annot., 7 A.L.R.2d 781, 785. A number of cases have admitted such testimony, under appropriate circumstances, as an admission against interest. Annot., 7 A.L.R.2d 781, 814. Since the defendant introduced the evidence to which he now objects, we need not decide whether we should adopt the majority or minority view as to the admissibility of an offer to sell. A party may not secure a reversal of an error he induced. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); Thompson v. Thompson, 183 Conn. 96, 99, 438 A.2d 839 (1981).

Having induced the court to consider the evidence of the defendant’s brother as to what the property was marketed for, and having failed to propose that it should be considered only for a limited purpose, the defendant cannot claim that the court erred in using that testimony.

There is no error.

In this opinion the other judges concurred.