text:
    State of Connecticut v. Christopher Lussier
    (3796)
    Hull, Spallone and Bieluch, Js.
    Argued February 10 —
    decision released May 27, 1986

      Milo J. Altschuler, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, were Francis J. McQuade, assistant state’s attorney, and Diane E. Leeds, for the appellee (state).
   Hull, J.

The defendant appeals from his judgment of conviction, after a trial to a jury, of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (4). The sole issue the defendant raises in this appeal is whether the trial court erred by admitting into evidence statements he had made pertaining to the robbery. The defendant has not presented a record adequate to show that the trial court’s decision was erroneous and, accordingly, we find no error.

On the evening of December 7, 1983, Charles Haas was working at a Cumberland Farms store in Shelton. At around 10 p.m., Haas noticed a van backing into a parking space in front of the store. He watched as two males left the van and entered the store. Shortly thereafter, the defendant approached the counter, pulled out a gun and ordered Haas to turn over all the money. Haas gave the defendant between $20 and $30. The men then left the store and drove off in the van. Haas wrote down the license plate number and minutes later gave the police a statement fully describing the two men and the van. The next day the police traced the van to the defendant through its registration license plate. The police arranged to have Haas view a photographic array which included the defendant’s photograph. Haas identified the defendant as one of the robbers.

Later in the evening of December 8, the police department was called to a domestic dispute which involved the defendant. The defendant was not arrested at the scene but voluntarily went with the police to the station. He was later arrested for disorderly conduct after a written statement was obtained from the complainant in this incident. After the arrest, while being interrogated on the disorderly conduct charge, the defendant volunteered that he had not intended to rob the Cumberland Farms store and that it was a pellet gun, not a real gun, that he had used. One of the police officers cautioned the defendant not to discuss the robbery without his attorney present, but the defendant continued his statement. Later, a police officer drove the defendant back to the address where he had been picked up on the disorderly conduct charge. During the ride, the defendant again initiated a conversation concerning the robbery. He told the officer that he was going to the police station the next day to make a statement about the robbery. He repeated that it was only a pellet gun. At trial, the defendant’s statements were admitted, and he was convicted of robbery in the first degree.

The defendant’s sole claim is that the trial court erred in refusing to suppress the statements he made concerning the robbery. He argues that his arrest for disorderly conduct was illegal and that the statements he made were causally connected to the illegal arrest. His statements, therefore, had to be suppressed as the fruits of an illegal seizure. The trial court’s failure to do so, he contends, constituted harmful error. The defendant has not, however, provided a sufficient record to enable this court to determine whether his arrest for disorderly conduct was illegal. Accordingly, he has not met his burden of showing that the trial court’s decision was erroneous. See State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986).

The defendant filed a motion to suppress his statements, and the court held an extended evidentiary hearing on this motion outside the presence of the jury. During the hearing, the defendant asked one of the police officers who had investigated the disorderly conduct complaint to describe the substance of the statement the complainant had given to the police. The trial court interrupted to question the relevancy of the information and to indicate that it was an area the court did not feel was appropriate for counsel to explore. Defense counsel stated that he was trying to establish that the disorderly conduct arrest was illegal and that, as a result, the statements the defendant made were the fruits of an illegal arrest. The trial court told defense counsel that the illegality of the disorderly conduct arrest was irrelevant to the pending charge and that it would deny the defendant’s motion to suppress if made on that basis. Defense counsel excepted, but took no other steps to preserve the claim.

“Under the circumstances outlined above, if [the defendant] wished to preserve this claim of error for appellate review, he should have presented an offer of proof. ‘An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.’ Mad River Orchard, Inc. v. Krack Corporation, 89 Wash. 2d 535, 537, 573 P.2d 796 (1978).” State v. Conrod, supra, 597. Here, no such offer was made.

While the defendant acknowledges that he did not make a record adequate to show that his disorderly conduct arrest was illegal, he argues that the trial court prevented him from doing so. This claim is not supported by the record. The trial court did indicate that it did not believe defense counsel’s interpretation of the relevant precedents and that it would not grant the defendant’s motion to suppress based on a claim that the disorderly conduct arrest was invalid. The court did not, however, attempt to prevent the defendant from making an offer of proof as to the illegality of the arrest, nor could it. In fact, there is no indication in the record that the defendant even attempted to make such an offer.

Because no offer of proof was made, this court does not have any basis for determining whether the disorderly conduct arrest was illegal and, accordingly, whether the trial court erred in admitting the statements. “Without an adequate record to review the ruling of the trial court, this court must assume that the trial court acted properly.” State v. Conrod, supra, 598.

There is no error.

In this opinion the other judges concurred.

       The relevant portion of the discussion between defense counsel and the trial court follows:
      “The Court: Now what is the basis of this? I don’t want to get involved in this.
      “Defense Counsel: Well, your Honor, if, in fact, this arrest, this arrest for disorderly conduct was not a valid arrest, then anything that he had said [to the police] violated his constitutional rights because he was wrongfully in custody.
      “The Court: However, the statements that you’re trying to excise have nothing to do with this arrest.

        “Defense Counsel: Exactly. However, if anything that he said does not necessarily have to do with that particular arrest for disorderly conduct, if he was unlawfully in custody, regardless of what he said, I don’t believe that that statement can be used against my client and I don’t believe that it’s constitutional.
      “The Court: Well I’ve always understood it to be towards that particular charge.
      “Defense Counsel: I don’t have that same understanding, your Honor.
      “The Court: Well, but if that’s going to be [the basis for your motion to suppress], I’m going to tell you that I’m going to deny it not—
      “Defense Counsel: All right. I would take an exception.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Wayne Lineberry
    (3860)
    Borden, Daly and Bieluch, Js.
    Argued March 18 —
    decision released May 27, 1986

      George V. Lawler and Donald P. Guerrini filed a brief for the appellant (defendant).

      MichaelE. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Maureen Platt and James G. Clark, deputy assistant state’s attorneys, for the appellee (state).
   Daly, J.

The defendant was convicted by a jury of larceny in the first degree, a violation of General Statutes §§ 53a-119 and 53a-122, and possession of a motor vehicle with altered identification number, a violation of General Statutes § 14-149. The defendant appeals from the judgment of conviction claiming that the court abused its discretion in allowing the trial to proceed to a verdict in his absence and in denying his motion for a new trial.

The jury could reasonably have found the following facts. In February, 1984, the defendant, Wayne Lineberry, was found to be in possession of a stolen blue 1979 Ford F-350 pickup truck, the exterior appearance of which had been altered to that of a 1974 model. The vehicle’s identification number had been changed from its original number and the serial number of the vehicle’s CB radio had been ground off. A popped ignition switch was found in the bed of the truck. The defendant misrepresented the purchase price paid for the vehicle, which previously had been registered in the name of his former girlfriend.

On Wednesday, November 14,1984, the first day of trial, a recess was declared after both sides rested. At the defense counsel’s request, the matter was continued until 10 a.m. the following Tuesday, November 20, 1984. The trial court mentioned the Tuesday resumption date at least three times and specifically informed the defendant to return on that date. The defendant failed to appear on Tuesday and the defense counsel indicated to the court that the defendant’s mother had informed him that the defendant did not feel that he was to appear until Wednesday, November 21,1984. The state moved that a finding be made by the court to the effect that the defendant had waived his right to be present and that the case proceed without the defendant. The court made such a ruling and the case proceeded to final arguments and to the jury charge and verdict which resulted in the defendant’s convictions.

The defendant moved for a new trial claiming that he was deprived of his right to be present diming the last portion of the trial. From the trial court’s denial of that motion, the defendant has appealed. The sole issue on appeal is whether the trial court erred in ruling that, under Practice Book § 968, the defendant waived his right to be present at trial, thereby depriving him of his rights guaranteed by the sixth amendment to the United States constitution, by the constitution of Connecticut, article first, § 8 and by Practice Book § 967.

An accused has a constitutional right, guaranteed by the confrontation clause, to be present at all stages of his criminal trial. Practice Book § 967•, Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970); Talton v. Warden, 171 Conn. 378, 381, 370 A.2d 965 (1976); State v. Giorgio, 2 Conn. App. 204, 206, 477 A.2d 134 (1984). This includes a right of both the defendant and his counsel to be present at all stages of the trial from arraignment to verdict and discharge of the jury. Polizzi v. United States, 550 F.2d 1133, 1137 (9th Cir. 1976).

In a prosecution for a felony, a defendant’s right under the fourteenth amendment to be present at trial exists only to the extent that a “ ‘fair and just hearing would be thwarted by his absence’ ” and not when his presence “ ‘would be useless, or the benefit but a shadow.’ ” Talton v. Warden, supra, 382; Snyder v. Massachusetts, 291 U.S. 105-108, 54 S. Ct. 330, 78 L. Ed. 674 (1933). “The accused’s right to be present at trial may be lost by consent, or waiver, or by misconduct.” Talton v. Warden, supra, 384. “[W]here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.” Diaz v. United States, 223 U.S. 442, 455, 32 S. Ct. 250, 56 L. Ed. 500 (1912); Taylor v. United States, 414 U.S. 17, 19, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973).

Practice Book § 968 provides in pertinent part: “The defendant must be present at the trial and at the sentencing hearing, but if he will be represented by counsel at the trial or sentencing hearing, the judicial authority may: . . . (2) Direct that the trial or a part thereof ... be conducted in his absence if the judicial authority determines that he waived his right to be present . . . . ” A waiver may be manifested by an “intelligent and intentional action by the petitioner” relating to the right to be waived and “does not have to be express but may consist of acts or conduct from which it may be implied.” McClain v. Manson, 183 Conn. 418, 430, 439 A.2d 430 (1981); United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir. 1972).

Our Supreme Court upheld the finding that the defendant had waived his right to be present at the remainder of his trial in State v. Parham, 174 Conn. 500, 391 A.2d 148 (1978), where the defendant failed to return on the designated Tuesday or the following Wednesday when the trial resumed in his absence. A verdict was received in the defendant’s absence in United States v. Friedman, 593 F.2d 109, 121 (9th Cir. 1979) after a forty minute waiting period. In our case, “[t]he [trial] court could reasonably and logically conclude that by absenting himself after the [presentation of evidence], the defendant had voluntarily waived his right to be present for the duration of the trial.” State v. Parham, supra, 506.

Even if we assume, arguendo, that a constitutional right of the defendant was violated by the trial court, the state may demonstrate that the error was harmless beyond a reasonable doubt. Holden & Daly, Connecticut Evidence § 58 f, p. 137. The prosecution bears the burden of proving that the defendant’s absence presents no reasonable possibility of prejudice. United States v. Ford, 632 F.2d 1354, 1379 (9th Cir. 1980); cf. United States v. Cassasa, 588 F.2d 282, 285 (9th Cir. 1978). The evidence was introduced in its entirety while the defendant was present in the courtroom. There was overwhelming evidence that the defendant was guilty. Furthermore, the defendant’s absence was not brought to the attention of the jury. We find, therefore, that the harmless error doctrine would apply. State v. Bruno, 197 Conn. 326, 335, 497 A.2d 758 (1985).

There is no error.

In this opinion the other judges concurred.

       The record is devoid of any appearance by the defendant on Wednesday, November 21, 1984.


author: Bieluch, J.

text:
    James SantaMaria et al. v. Robert Manship et al. James SantaMaria et al. v. William Lennon et al.
    (3506) (3507)
    Hull, Spallone and Bieluch, Js.

      Argued February 10 —
    decision released June 3, 1986

      Richard P. Weinstein, with whom, on the brief, was Ronald T. Murphy, for the appellants (plaintiffs in both cases).

      Thomas J. Keramidas, with whom was Robert J. Papp, for the appellees (defendants in each case).
   Bieluch, J.

These two actions, consolidated in the trial court and on appeal in this court, arise out of a property dispute between the plaintiffs, James and Lucy SantaMaria, and the defendants, who, along with the plaintiffs, are long-term lessees of land and owners of beach cottages thereon at Latimer Point in Stonington. The property at issue is a twenty-five foot wide strip of land adjacent to the lot leased by the plaintiffs and which runs from a private road for a distance of 93.75 feet to Long Island Sound. The plaintiffs have long asserted that neither vehicles nor pedestrians are to be permitted to use “their one-half” or 12.5 feet of the parcel (hereinafter strip) immediately adjacent to their lot, Lot No. 8. Their steadfast refusal to permit the defendants to use this land for access to the beach, coupled with the persistence of the defendants in asserting that they should be permitted to use this land for access to the shoreline, has spurred three actions, two of which are before us here. We conclude that there is error in both actions.

The plaintiffs and defendants are sublessees of shore lots leased by the Latimer Point Management Corporation (hereinafter LPMC) from the Latimer Point Company (hereinafter LPC). On August 10, 1982, the SantaMarias entered into a stipulated judgment with LPMC which terminated a dispute between those parties; SantaMaria v. Latimer Point Management Corporation, Superior Court, Judicial District of New London, No. 64783 (August 10, 1982) (hereinafter Latimer Point case); regarding the use of motor vehicles upon the strip of land at issue here. The stipulated judgment provided, inter alia, that the twenty-five foot passway would be a fire lane under the control of LPMC and that motor vehicles would be prohibited from using the strip except for the purpose of obtaining access to the adjacent lots.

The president of LPMC raised the question of pedestrian use of the strip at the time of the stipulated judgment but that question was left unanswered by counsel and court. That issue was not resolved by the stipulated judgment, and it resulted in the filing of the present actions by which the plaintiffs seek injunctive relief from the defendants’ alleged continued trespass; SantaMaria v. Manship (hereinafter Manship); and sureties of the peace as well as money damages arising out of an alleged series of assaults by several of the Manship defendants; SantaMaria v. Lennon (hereinafter Lennon).

In Manship, the defendants, by special defense, contended that the strip was “common ground” or, in the alternative, that they had acquired a right of way by adverse possession. In addition, the defendants counterclaimed against the plaintiffs alleging that the plaintiffs had appropriated the strip for their use to the exclusion of the defendants and had made it difficult for the defendants to exercise their right of passage over the strip. The defendants sought a declaratory judgment and injunctive relief to prevent the plaintiffs from hindering their access to the strip. The plaintiffs, by special defense, claimed “the use and possession” of the strip.

In Lennon, each of the defendants, by special defense, alleged that the plaintiffs had instigated the assaults. In addition, the defendants counterclaimed seeking sureties of the peace and damages from the plaintiffs who, they claimed, continuously harassed them. The plaintiffs, in turn, by special defense claimed that the defendants were the instigators.

On August 22, 1984, the court rendered judgment in each action, ruling in the defendants’ favor on virtually all issues. In Manship, the court dismissed the plaintiffs’ complaint, concluding that they had failed to prove that they had a right to exclusive use and possession of the strip. The court found that the plaintiffs had permitted trees and vegetation to grow on their lot “so as to obstruct views of others and diminish their property values.” The court also found that the plaintiffs had prevented others from using the strip and harassed those who did. The court, therefore, declared the strip to be “common ground” subject to the regulations of the LPMC. It further found for the defendants on their counterclaim and enjoined the plaintiffs from interfering with the pedestrian use of the strip by association members. The court also ordered the plaintiffs to pay damages of $3500 to the defendants as compensation for the diminution in value of their property.

In Lennon, the court found that the defendants had committed the assaults in question, but concluded that the plaintiffs had instigated the assaults, thus providing the defendants with a complete defense to the plaintiffs’ complaint. The court also found for the defendants on their counterclaim and ordered the plaintiffs to pay damages in the amount of $500. The plaintiffs have appealed, claiming three errors in the court’s judgment in Manship and one error in the Lennon judgment.

Turning first to Manship, the plaintiffs’ first claim of error is that the court erred in declaring the strip to be “common ground” when the prior stipulated judgment in the Latimer Point case declared the strip to be a “fire lane.” We disagree with this contention concerning the effect of the stipulated judgment in Latimer Point.

The crux of this claim is that the stipulated judgment in the Latimer Point case is res judicata of the rights of the parties in Manship and Lennon to use the strip as a pedestrian right of way. A stipulated judgment may operate as res judicata to the same extent as a judgment after a contested trial. Gagne v. Norton, 189 Conn. 29, 31, 453 A.2d 1162 (1983). The terms of such a judgment, however, “may not be extended beyond the agreement entered into.” Owsiejko v. American Hardware Corporation, 137 Conn. 185, 187-88, 75 A.2d 404 (1950). A close reading of the transcript of the hearing at which the stipulation in the Latimer Point case was entered into demonstrates that the parties there agreed only with respect to the use of the strip by vehicles.

Before entry of the stipulated judgment, Charles Noyes, president of LPMC, specifically requested clarification of its terms with respect to pedestrian use of the subject strip of land. The following colloquy took place: “Mr. Noyes: Now, also pedestrians can walk on that? It’s open for pedestrians? [Counsel for the Plaintiffs]: That, I can’t say. It’s a fire lane, whatever a fire lane is under — .” A fire lane is a restricted passway reserved for the use of fire vehicles in an emergency. It does not per se prohibit or restrict pedestrian traffic, which physically does not block or impede movement of fire trucks answering a call. It is clear that the use of the strip as a walkway was not within the scope of the stipulated judgment. Hence, the judgment cannot be res judicata in the case before us.

The second claim of error raised by the plaintiffs is that the trial court lacked subject matter jurisdiction over the counterclaim for declaratory relief in Manship because all persons having an interest in the subject matter of the dispute were not notified as required by Practice Book § 390 (d). We agree.

Practice Book § 390 (d) provides that “[t]he court will not render declaratory judgments upon the complaint of any person: . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” “ ‘A failure to comply with § 309 (d) [now § 390 (d)] is a jurisdictional defect and, as such, can be raised even on appeal by the court itself.’ Manley v. Pfeiffer, 176 Conn. 540, 545, 409 A.2d 1009 (1979).” Russo v. Watertown, 184 Conn. 30, 33, 441 A.2d 56 (1981); Echo Four v. Hill, 3 Conn. App. 118, 123, 485 A.2d 926, cert. denied, 195 Conn. 801, 487 A.2d 564 (1985).

In the present case, the defendants’ counterclaim for declaratory relief alleged, in part, that the “Latimer Point Management Corporation subleases seventy-five (75) lots at Latimer Point to individuals located on said lots.” The counterclaim was certified as having been mailed “to all counsel of record.” At this time, only the individual plaintiffs and defendants were parties to the action. Subsequently, the defendants moved to have LPMC made a defendant to the action, but this motion was denied. Nowhere, however, does the record reflect any attempt by the defendants to notify the remaining sublessees of LPMC’s seventy-five lots of the pendency of the declaratory judgment action. The declaratory judgment sought by the defendants would have benefited all of LPMC’s sublessees. Consequently, they are “persons having an interest in the subject matter” of the action. The defendants’ unsuccessful effort to make LPMC a party defendant was ineffective as notice either to it or to its sublessees. Therefore, the trial court lacked subject matter jurisdiction over the defendants’ counterclaim for declaratory relief.

The trial court’s memorandum concluded that “Re: Practice Book Section 390 (d), the Court finds that all parties in interest have had reasonable notice of this action as witness some thirty members of the association in the courtroom including various officers of the Management Corporation.” There is no basis in the record for such a finding and the court’s conclusion was incorrect. It presumes that all interested parties were notified based upon the presence of some unidentified members of the group in court. Such a conclusion, based upon inductive reasoning, is an insufficient basis upon which to find compliance with the strict notice requirement of Practice Book § 390 (d). This counterclaim, therefore, fails for want of notice to all parties having an interest in its subject matter.

The plaintiffs’ third claim is that the court erred in awarding the defendants damages on their counterclaim in Manship because of a variance between the pleadings and proof, and lack of evidence to support the amount of damages. We agree.

The court’s memorandum expressly states (1) “[t]he Court does not find [that] the plaintiffs planted trees or vegetation in violation of the lease, but does find they have allowed them to grow so as to obstruct views of others and diminish their property values”; (2) “The Court finds the plaintiffs have prevented others from using the twenty-five foot strip in violation of the lease and harassed those who used such twenty-five foot strip of land”; and (3) “The Court finds the value of the defendants’ property has diminished as a result of plaintiffs’ actions.” The court then awarded the defendants money damages of $3500 plus costs.

The plaintiffs claim that this constituted a variance between the pleadings and proof because the counterclaim alleged that the plaintiffs “have planted trees and vegetation which [have] obstructed the views of the defendants and other sublessees.” There is no allegation that the plaintiffs had permitted existing trees and vegetation to grow so as to obstruct the defendants’ view. The plaintiffs further assert that they have had no prior opportunity to object to the variance created for the first time by the court’s decision.

“To set aside a judgment on the basis of a variance between the pleadings and the proof, the variance must be material in a way which is essential to the cause of action claimed.” Francis v. Hollauer, 1 Conn. App. 693, 695, 475 A.2d 326 (1984). In the present case, the variance noted is clearly material to the issue of damages raised by the counterclaim. The sublease provision which prohibits the planting of new trees and vegetation without the written permission of the sublessor also provides that “except for established trees, vegetation shall not obstruct the views of other sublessees.” The defendants, however, alleged in their counterclaim only that the plaintiffs “have planted trees and vegetation which [have] obstructed the views of the defendants and other sublessees.” Thus, since the defendants failed to prove, as the court found, that the plaintiffs had planted trees or vegetation in violation of the sublease, they could not recover on their counterclaim as it was alleged. The court’s decision was on a claim which had not been made by the defendants and which the plaintiffs were not given the opportunity to defend.

Turning to the issue of whether the plaintiffs waived any objection to the variance, “[i]t is true that an objection to a variance of proof from the pleadings is waived if not taken at the trial. . . . Here there was no proof by either party nor was there any offer of evidence as to a variance, and it appears that the first time either party would have been able to object to a variance would have been after the judgment of the court was rendered. Since there was no opportunity to object to the variance before the end of the trial, it cannot be said that the plaintiff waived his right to object to the court’s judgment which was limited to the pleadings and to the proceedings at the trial.” Bronson & Townsend Co. v. Battistoni, 167 Conn. 321, 326, 355 A.2d 299 (1974). In the present case, a review of the transcript shows that neither party attempted to elicit any testimony regarding the growth of established vegetation. Testimony on this point was merely alluded to by the plaintiffs in the form of negative answers to the defendants’ counsel’s questions regarding whether the plaintiffs had planted any new trees or vegetation in violation of the lease. The first occasion upon which the parties received any indication of the variance between the pleadings and the proof was when the decision was issued by the court. We hold, therefore, that the plaintiffs have not waived their right to object to the variance.

The plaintiffs’ final claim of error relates to the Lennon case and is that the court erred in concluding that the plaintiffs’ provocation was a complete defense to the defendants’ assaults on the plaintiffs. They also claim that the court erred in awarding damages to the defendants on their counterclaim since no evidence was presented by the defendants regarding damages.

“[T]he issue of provocation relates only to the question of damages and not to liability. Provocation is a proper defense to a punitive damage claim. ... A finding of provocation does not justify an assault, but merely limits liability to actual damages sustained.” Manning v. Michael, 188 Conn. 607, 615-16, 452 A.2d 1157 (1982). In the present case, after finding that the “defendants did commit the acts complained of in the complaint,” the court erred in further finding “for [the] defendants on the special defenses that the plaintiffs were the instigators of those acts and therefore [ordering] judgment for the defendants on the complaint.” For that reason, we must remand this action to the trial court for a determination of the plaintiffs’ actual damages.

With regard to the defendants’ counterclaim, the court found that the defendants had proven the claim, while the plaintiffs had not proven their special defenses that the altercations between the parties were instigated and caused by the defendants and that the plaintiff had exclusive use of the strip. Although the court awarded the defendants damages of $500 in Lennon, no evidence was offered to support any award of actual damages. The only evidence of damages offered by the defendants related to the diminution in value of their leaseholds caused by the plaintiffs’ obstruction of their view. No evidence of the effect of the plaintiffs’ harassment was offered at all. The defendants did testify as to the amount of the attorney’s fees which they had paid to date. That amount, $3500, would only be an appropriate element of punitive damages rather than actual damages. See Markey v. Santangelo, 195 Conn. 76, 80, 485 A.2d 1305 (1985). Nowhere in the defendants’ complaint do they request punitive damages, however.

In Manning v. Michael, supra, the court held that the complaint must “employ language sufficiently explicit to inform the court and opposing counsel that punitive damages [are] sought.” Id., 619. There, the court concluded that the plaintiff, who merely sought “damages” in his prayer for relief, had not satisfied this standard. Id. Similarly, in Markey v. Santangelo, supra, the plaintiffs prayer for relief did not seek punitive damages, although the factual allegations of the complaint charged “by way of reasonable inference that the defendants wilfully assaulted the plaintiff.” Id., 78-79. The court in that case concluded that the complaint put the defendants on notice that they were being charged with aggravated conduct. The court further concluded that because the defendants never objected to the plaintiffs subsequent request to open the case for the purpose of presenting evidence of punitive damages, they could not “play possum” and claim on appeal that punitive damages had not properly been claimed below. Id., 79-80. Had they objected below, the court noted, the plaintiff could have moved to amend his complaint. Id., 79.

In the present case, the prayer for relief in the defendants’ counterclaim did not expressly seek punitive damages. Further, the brief set of questions asked by the defendants’ counsel of one of his clients, who was on the witness stand at the time, regarding their fee arrangement and the fees paid to date was insufficient to notify the plaintiffs that punitive damages were being sought. It was not until closing arguments that the defendants made their request for punitive damages clear. At that point, it was too late for the plaintiffs to bring evidence to dispute that claim. Hence, the court could not properly have awarded punitive damages in this case.

Since there was no evidence of actual damages in Lennon, and since an award of punitive damages would have been improper, we conclude that the court erred in awarding $500 in damages to the defendants on their counterclaim.

There is error in part in the case of SantaMaria v. Manship, the judgment is set aside and the case is remanded with direction to render judgment as on file except, with respect to the defendants’ counterclaims for declaratory relief and damages, judgment should be rendered for the plaintiffs; there is error in the case of SantaMaria v. Lennon, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiffs on the complaint and on the counterclaim and to conduct a hearing in damages on the complaint with respect to the plaintiffs’ actual damages.

In this opinion the other judges concurred.

       In SantaMaria v. Manship, (3506), the defendants are Robert Manship, Muriel Manship, William Lennon, Joseph Ciampa, Jeanette Ciampa, Donald Vigneau, Rita Vigneau, Dorothy Wally and Louise Donovan. In SantaMaria v. Lennon, (3507), the defendants are William Lennon, Robert Manship and Joseph Ciampa.

       The memorandum of decision in each case is incorrectly labeled “Judgment.”

       Unlike the situation in Echo Four v. Hill, 3 Conn. App. 118, 125, 485 A.2d 926 (1985), the court’s lack of jurisdiction over the declaratory judgment claim in this case does not cause the entire counterclaim to fail. The defendants’ claim for damages arising out of the plaintiffs’ actions was related to, but independent of, the declaratory judgment claim. Therefore, the claim for damages must also be considered.

       Although preexisting vegetation which obstructs the defendants’ view would constitute a violation of the terms of the sublease, which was not alleged, the violation would be in the extent of its growth, rather than its planting by the plaintiffs or its presence on their property. Thus, the plaintiffs’ defense of the counterclaim would focus on a justification of the amount of the vegetation rather than on a justification of its presence if the defendants had alleged that the vegetation was preexisting. Further, established trees may, within the terms of the sublease, obstruct the defendants’ view. Hence, the plaintiffs would have a complete defense to any such claim by the defendants.

       Ordinarily, the variance between the pleadings and the judgment would require us to remand this counterclaim for a new trial. See Francis v. Hollauer, 1 Conn. App. 693, 697, 475 A.2d 326 (1984). Because the trial court expressly found that the plaintiffs did not plant any trees or vegetation, however, the counterclaim could not prevail at trial. For that reason, we remand this claim with direction to the court to render judgment for the plaintiffs on the counterclaim for damages for loss of view.


author: Per Curiam.

text:
    Paul J. Ramos v. William Cohn
    (4418)
    Borden, Spallone and Bieluch, Js.
    Argued May 9 —
    decision released June 3, 1986

      William Cohn, pro se, the appellant (defendant).

      Vincent P. Alley, for the appellee (plaintiff).
   Per Curiam.

In this action on a promissory note, the defendant appeals from the judgment of the trial court in favor of the plaintiff. He claims that the court erred in denying his motion to amend his pleadings shortly before trial. We have fully considered the arguments of the defendant and find that he has not established that the court abused its discretion.

There is no error.


text:
    State of Connecticut v. Robert Haynes
    (3939)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 2 —
    decision released June 3, 1986

      Conrad Ost Seifert, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from his judgment of conviction, after a jury trial, of possession of a sawed-off shotgun in violation of General Statutes § 53a-211. His sole claim on appeal is that the trial court erred in denying his motion to suppress the shotgun which he alleges was obtained in derogation of his right to be free from unreasonable searches and seizures as guaranteed by the fourth amendment to the United States constitution. Because the defendant has not shown that he had a reasonable expectation of privacy in the bag in which the shotgun was found, we conclude that the trial court did not err in denying his motion to suppress.

There was testimony from which the trial court, in ruling on the defendant’s motion to suppress, could have found the following facts. On July 14, 1984, at approximately 7 p.m., Alan Herbert entered Betty Jo’s Package Store in New London to purchase some soda. After leaving the store, Herbert was approached by the defendant who demanded that he repay some money he owed. The two men argued for a short time and the defendant then reached into a brown cloth bag that he was carrying, pulled out what appeared to a .45 caliber gun and pointed it at Herbert. When Herbert saw the gun, he ran into the package store to elude the defendant. One of the owners of the store called the police.

Soon after receiving a complaint from Herbert, the New London police began to look for the defendant. While searching an area the defendant was known to frequent, officer Glenn Davis saw the defendant, with whom he was familiar. As Davis approached in his police cruiser, the defendant ran across the street and headed down a driveway between two buildings. Davis followed the defendant and saw him throw a brown bag toward a dumpster. The bag hit the lip and fell to the ground where Davis retrieved it before losing sight of the defendant. Minutes later, another officer apprehended the defendant in a nearby wooded area. Davis then opened the brown bag to search it and found a twelve to sixteen inch sawed-off shotgun inside.

Prior to trial, the defendant moved to suppress the shotgun, claiming that by opening the bag without a warrant, Davis had conducted an unlawful search. The trial court denied the motion, finding that the defendant had not shown a reasonable expectation of privacy in the bag sufficient to entitle him to challenge the search. The court also held that even had the defendant shown the requisite expectation of privacy, he would not have prevailed since the warrantless search was justified by exigent circumstances: the possible presence of a gun inside the bag which was located in a crowded area. The defendant now claims the trial court erred in so holding.

“A person may not object to the introduction of evidence resulting from an illegal search unless he first proves that he was a victim of that search. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980). One is a victim of a search when it violates his reasonable expectation of privacy in the area searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387, reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1978). Therefore, the first question that must be answered in any suppression case is whether the individual who seeks suppression had a reasonable expectation of privacy in the area searched. Id.” State v. Daay, 5 Conn. App. 496, 498, 500 A.2d 248 (1985). An individual has a reasonable expectation of privacy if he subjectively believes that the area will remain private, and his subjective belief is one that society is willing to recognize as reasonable. Id.

Here, the trial court correctly determined that the defendant did not show that he had an actual and reasonable expectation of privacy in the area searched. First, the defendant did not show that he subjectively believed that the bag would remain hidden either by introducing direct evidence of his belief, or by introducing circumstantial evidence from which the trial court could have inferred such a belief. Nor did he introduce evidence showing that any subjective expectation of privacy that he had was reasonable. He did not, for example, claim that he owned the bag, although he could have done so without running the risk of having that testimony used to prove his guilt of the possession charge. Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

The defendant asserts that he established a reasonable expectation of privacy in the bag merely by showing that he possessed it before he was confronted by the police. This argument runs counter to this court’s decision in State v. Daay, supra. In Daay, a case that is factually almost identical to the present case, this court held that a defendant who had dropped a suitcase he was holding when approached by the police, and who later denied ownership of the suitcase, could not challenge the legality of the subsequent search of it. In coming to that conclusion, this court reasoned that “by dropping the suitcase to flee and by denying ownership of it, [the defendant] clearly disavowed any interest in it.” Id., 498. That reasoning applies with equal force in this case.

The defendant also contends that, by claiming ownership of some money found in the bag, he made the requisite showing that he had a reasonable expectation of privacy in it. This argument is without merit. Even if we assume, arguendo, that by claiming an interest in the money the defendant showed that he had a subjective expectation of privacy in the bag, the trial court’s decision to deny his motion to suppress still was correct since any subjective expectation of privacy the defendant may have had in the bag could not be considered reasonable once he threw the bag away. Id.

“The party who seeks suppression has the burden of proving that he had a reasonable expectation of privacy in the area searched. Rawlings v. Kentucky, supra, 104. Since the defendant did not meet this burden, the trial court was correct in ruling that he could not challenge the search.” State v. Daay, supra, 499-500.

There is no error.

       General Statutes § 53a-211 provides in pertinent part: “(a) A person is guilty of possession of a sawed-off shotgun or a silencer when he owns, controls or possesses any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches or when he owns, controls or possesses any silencer designed to muffle the noise of a firearm during discharge . . . .”

       The defendant makes no claim that the search also violated any rights guaranteed by article first, § 7, of the Connecticut constitution.

       The police did not search for the defendant immediately but, rather, waited until Alan Herbert selected the defendant’s photograph from a group of approximately 50 to 100 photographs which were shown to him.

       The defendant also claims that the trial court erred in finding that the search was valid because the police had probable cause to arrest him and because the search was justified by exigent circumstances. Since we have held that the defendant was not entitled to challenge the legitimacy of the search, we do not need to consider these claims.


text:
    Stanley V. Tucker v. Connecticut Light and Power Company
    (4063)
    Borden, Spallone and Bieluch, Js.
    Argued May 6 —
    decision released June 3, 1986

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

      John C. Bullock, for the appellee (defendant).
   Per Curiam.

This case was tried to a jury, which returned a verdict for the defendant on the first count, and the court directed a verdict for the defendant on the second count. The plaintiff did not move to set aside the verdicts thereby limiting our review to the standard of plain error. Practice Book § 3063; Pietrorazio v. Santopietro, 185 Conn. 510, 513-16, 441 A.2d 163 (1981); Eagar v. Barron, 2 Conn. App. 468, 472, 480 A.2d 576 (1984).

Our review of the record, transcripts and briefs submitted in this case and our analysis of only those claims of error raised by the plaintiff that are properly before us fail to indicate that the trial court committed plain error with regard to any such claims.

There is no error.


text:
    Boxed Beef Distributors, Inc. v. Rexton, Inc., et al.
    (3483)
    Hull, Spallone and Bieluch, Js.
    Submitted on briefs March 27 —
    decision released June 3, 1986

      Laurence V. Parnoff, F. J. PolesaJc, Jr., and Anne S. Finnie filed a brief for the appellant (defendant Anthony Silano).

      David M. Spinner filed a brief for the appellee (plaintiff).
   Bieluch, J.

The defendant Anthony Silano has appealed from the judgment of the trial court in favor of the plaintiff. The plaintiffs complaint alleged, inter alia, that Anthony Silano and Patricia A. Silano had guaranteed the payment for merchandise purchased by the named defendant corporation from the plaintiff to the extent of $20,000. The court found for the plaintiff and rendered judgment against the corporation in the amount of $21,097.82 and against Anthony Silano in the amount of $20,000. The court also awarded statutory interest from June 1, 1979, and costs against Anthony Silano and the corporation. We find error in the court’s award of interest and costs against Silano.

The facts are not in dispute. The plaintiff, a wholesale purveyor of meat products, supplied meats to the corporation on open account. When the corporation fell into arrears on its account, the plaintiff sought and obtained a personal guaranty of the debt from the Silanos, limited to “A MAXIMUM OF $20,000.” Subsequently, when the corporation’s debt increased beyond the limit of the guaranty, the present action was instituted in four counts seeking to recover (1) on the debt, (2) on the guaranty, (3) on the promissory note of the corporation, and (4) on two unpaid checks issued by the defendant business.

The trial court found the corporation and, under the guaranty, Anthony Silano to be severally obligated on the corporate promissory note given as payment for merchandise and on the outstanding balance of the open account for a total of $21,097.82, of which Silano was liable for only $20,000 because of the limit on his guaranty of the corporation’s debts. In addition, the court awarded the plaintiff interest, at statutory rates, from June 1, 1979, and costs.

Silano claims the trial court erred (1) in permitting the plaintiff to maintain this action after its corporate existence had ended, (2) in awarding interest and costs so as to increase his liability under the guaranty in excess of its express maximum of $20,000, and (3) in extending the guaranty to include the debts of an unnamed corporation, “Chicago Beef Company, Inc.” when the guaranty, by its express terms, related solely to the debts of “Rexton, Inc. D/B/A Chicago Beef Co. of Bridgeport.”

Silano’s first claim of error pertains to the trial court’s rejection of his claim that the plaintiff, being a dissolved foreign corporation no longer in existence at the time of trial, had no standing to maintain the action. He alleges that the plaintiff lacked standing in court because it failed to prove that it had, as a foreign corporation, authorization to transact business in Connecticut, and because, as a dissolved corporation, its successor in interest to the claims should have been substituted as a party. We disagree with both contentions.

General Statutes § 33-412 (a) prohibits a foreign corporation from maintaining any action in the courts of this state unless it has first procured a certificate of authority to transact business pursuant to General Statutes § 33-396. The appropriate vehicle by which to implement enforcement of the prohibition of § 33-412 (a) is a special defense to an action. Peters Production, Inc. v. Dawson, 182 Conn. 526, 529-30, 438 A.2d 747 (1980). In the present case, no such special defense was raised. In fact, the trial court expressly noted that no attempt had been made to raise this issue by pleading or evidence at trial. It was called to the court’s attention for the first time by the defendants’ posttrial brief. Thus, we conclude that the trial court correctly rejected this claim from its consideration as part of the issues before it. We respond similarly to Silano’s subsidiary claim that the plaintiff, having been dissolved prior to trial, had no right to continue the action without substituting another party as the plaintiff. There is no claim being made that the court lacked jurisdiction over the subject matter of the proceeding. The only question raised related to the corporate capacity of the plaintiff to maintain this suit. Such a claim is but a voidable defect, waived if not raised by the defendant in a timely manner by way of special defense. United States Trust Co. of New York v. DiGhello, 179 Conn. 246, 249, 425 A.2d 1287 (1979).

The defendant’s second claim is that the court erred by awarding interest and costs to the plaintiff over and above the $20,000 limit set by Silano on his guaranty of the corporation’s debts. We agree.

The guaranty signed by Silano encompassed, “absolutely and unconditionally,” payment of the corporation’s debts for purchases from the plaintiff and “any costs of collection thereof including but not limited to attorney fees.” Emphatically starred at the bottom of the document, below the signatures of the Silanos and of the witness, there appears in capital letters the notation “THIS GUARANTEE SHALL BE FOR A MAXIMUM OF $20,000.” Silano contends that this express limitation should be construed to apply to his total inclusive liability, rather than solely to his liability for the principal debt of the corporation, thereby making him additionally responsible, without limit, for attorney’s fees, statutory interest and other costs of collection. The plaintiff, however, asserts that the court’s award of interest and costs was based upon its statutory authority to do so, rather than upon the terms of the guaranty.

“The defendant, a guarantor on the [indebtedness], may only be held liable to the limits of the guaranty signed in his name.” Bank of Montreal v. Gallo, 3 Conn. App. 268, 271 n.4, 487 A.2d 1101, cert. denied, 195 Conn. 803, 491 A.2d 1103 (1985). Thus, “[w]hen interest is sought as a part of the underlying obligation, the guaranty limit applies so that the total amount collected cannot exceed the amount stated in the guaranty contract , . . . ” 38 Am. Jur. 2d, Guaranty § 76. “[W]hen the debt has matured against the guarantor, the debt is the guarantor’s primary obligation and interest may be recovered although the effect is to increase the judgment beyond the limit of liability stated in the guaranty contract.” (Emphasis added.) Id. The terms of the Silano guaranty in this case expressly specified that he would become obligated “upon maturity” of the debts of the corporation. There was, however, no provision for the maturity of these debts against Silano. The underlying debts in this case were based upon an open account for goods sold by the plaintiff to the defendant corporation. Unlike a note which matures on a fixed date, this account did not have a set maturity date. Indeed, the account could have been maintained indefinitely, and the guaranty would have continued, as it did, to be in force as long as the open account was in existence. We can only conclude that Silano’s debt “matured” when the amount of the defendant corporation’s liability became fixed and when it became clear that Silano would be obligated to make good his guaranty, that is, on the date of judgment. Thus, since Silano’s liability matured in the same judgment which adjudicated his disclaimer of that liability, no interest could have been awarded in excess of the $20,000 limitation thereon prior to the date of judgment in this case.

Similarly, the costs of suit incurred by the plaintiff in obtaining its judgment against the corporation and Silano cannot be added to Silano’s indebtedness if doing so would exceed the limit placed upon his guaranty. The terms of the guaranty included, as part of Silano’s obligation thereunder, the costs of collection. That same guaranty, however, specifically limited Silano’s liability to $20,000. Thus, by the express terms of the guaranty, costs of collection are subject to the limitation in the guaranty since no distinction with respect to the maximum obligation is made between the principal debt and the costs of collection. If we were to conclude that the costs of collection were not subject to the limitation, any argument made in support of that conclusion could be applied with equal force to the limitation on the principal debt.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff against the defendant Anthony Silano in the amount of $20,000 without costs or interest.

In this opinion the other judges concurred.

       On July 13,1981, Anthony Silano was declared incompetent and Patricia Silano was appointed conservatrix. Patricia Silano, wife of Anthony Silano, was also named as a defendant, but the plaintiff never actively pursued its claim on the guaranty against her. Neither Patricia Silano nor the corporation is a party to this appeal.

       This last argument was not raised by the defendant in his preliminary statement of issues as required by Practice Book § 3012 (a). We, therefore, decline to consider it.


author: Borden, J.

text:
    “C” Fish Company Limited et al. v. James F. Shugrue, Commissioner of Transportation, et al.
    (3977)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 14 —
    decision released June 3, 1986

      Herbert Watstein, for the appellants (plaintiffs).

      Jon S. Berk, with whom, on the brief, was Timothy L. Hammack, for the appellee (named defendant).

      Andrew J. O’Keefe, with whom were Peter K. O’Keefe and, on the brief, Denise Martino Phelan, for the appellee (defendant O & G Industries, Inc.).
   Borden, J.

The plaintiffs, the “C” Fish Company Limited (Fish), Attilio Ciurcovich, and Cecil R. Wescome, appeal from the trial court’s judgment following directed verdicts in favor of the defendants, the commissioner of transportation and O & G Industries (O & G), a road paving contractor under contract with the state to repave sections of Interstate 84. The principal issue in this appeal is whether the plaintiffs produced sufficient evidence to permit a finding that the commissioner had actual or constructive knowledge of a highway defect, namely, the presence of a piece of metal allegedly lying in the traveled portion of the highway, or that 0 & G caused that piece of metal to be in or to remain in the highway. We hold that the evidence was insufficient, and find no error.

On October 27,1976, at approximately 2 a.m., while traveling west on Interstate 84 in Middlebury, the plaintiffs’ tractor trailer truck hit a piece of metal in the left lane of the highway, crashed and burned. The owner and driver of the tractor, Wescome, suffered injuries in addition to the damage to the tractor. Ciurcovich, the president of Fish, who was a passenger in the truck, suffered injuries, and Fish suffered the loss of its trailer and cargo. The plaintiffs sued the commissioner pursuant to General Statutes § 13a-144. They also sued 0 & G on the grounds of nuisance, pursuant to General Statutes (Rev. to 1975) § 19-310, now § 19a-335, and negligence. Following a jury trial on the issue of liability, the trial court directed verdicts in favor of both defendants. The plaintiffs timely moved to set aside the verdicts and their motion was denied without a written memorandum of decision. This appeal followed.

With regard to the plaintiffs’ suit against the commissioner, the trial court concluded that the plaintiffs failed to produce sufficient evidence to support a finding that the commissioner had either actual or constructive knowledge of the particular defect which caused the collision. See Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981). There was no evidence of actual knowledge. Thus, the trial court’s conclusion may be viewed as a finding that the plaintiffs failed to show that the defect, namely, the piece of metal in the highway, existed “for such a length of time that it would have been [constructively] known in the exercise of reasonable care.” Baker v. Ives, 162 Conn. 295, 305, 294 A.2d 290 (1972); Wadlund v. Hartford, 139 Conn. 169, 176, 91 A.2d 10 (1952). With regard to the suit against O & G, the trial court concluded that the plaintiffs failed to produce sufficient evidence to support a finding that O & G caused the defect to be in or remain in the highway; General Statutes § 19a-335; in breach of a duty owed to the plaintiffs. The issue presented in this appeal is whether the trial court correctly concluded that the evidence was insufficient to remove those issues from the realm of speculation and conjecture. See Patrick v. Burns, 5 Conn. App. 663, 667-68, 502 A.2d 432 (1985).

It is useful to note at the outset that, while the suits against the two defendants were based on separate legal grounds, there is an overlap of significant factual issues between the two cases. The threshold factual issue with regard to O & G was whether O & G caused the piece of metal to be in or remain in the traveled portion of the highway. Similarly, proof of when the defect originally came into existence was also central to the case against the commissioner because that evidence must logically support the inference that the defect remained in the highway for a sufficient period of time; Baker v. Ives, supra; for the jury to conclude that the commissioner had constructive notice of its existence. Id. In addition, the period of time that the defect remained in the highway was relevant to the issue of whether O & G was liable for negligence and nuisance. See General Statutes § 19a-335, supra. Thus, because of this overlap of these critical features of the two cases, we discuss the issues in this appeal with regard to both defendants together. In reviewing the record to determine whether the plaintiffs introduced sufficient evidence of the origin or initial cause of the defect, we view the evidence in the light most favorable to the plaintiffs. Roy v. Michaud, 5 Conn. App. 695, 698, 501 A.2d 1231 (1985). That evidence is as follows.

Connecticut state police trooper Gary Knapik testified that, at approximately 2:15 a.m. on October 27, 1976, he responded to the scene of the collision on Interstate 84 in Middlebury. He testified that Interstate 84 extends for approximately three miles between the Middlebury-Waterbury town line on the east and the Middlebury-Southbury town line on the west. The accident occurred approximately two-tenths of a mile west of the Waterbury town line, according to Knapik’s measurement. In that area, the westbound lanes were comprised of two lanes, twelve feet wide, with a three-foot wide shoulder on each side and a grassy median divider on the left or south side between the westbound and eastbound lanes. Knapik further stated that upon interviewing Wescome he searched the area and found a piece of metal on the median, which was to the south of the point where he found tire tracks indicating where the truck left the road. Wescome told him that the truck tire hit the piece of metal in the road. The truck traveled approximately 240 feet beyond the point of impact, struck a rock ledge and came to rest on its side, according to Knapik. The site of the point of impact was west of a bridge abutment.

Knapik described the piece of metal as approximately fifteen to eighteen inches long, shaped in the form of an L and resembling a piece of guardrail. The road condition was dry and Knapik found no evidence that the truck was traveling at an excessive speed. Nor had there been any other accidents that evening, according to Knapik. He inspected the guard railing west of the bridge abutment on both sides of the highway and found no damage to any of the guardrails. He did not, however, note his observations with respect to the guardrails in his written report. Knapik also testified that Wescome appeared to be in normal condition after the accident.

Wescome testified that he was driving westbound in the left hand lane approximately fifty-five miles per hour, and as he proceeded past the bridge abutment he saw a gray piece of metal about ten feet ahead in the road. The piece of metal was shaped roughly like an L. Wescome further testified that his front left wheel hit the top edge of the metal, the tire burst and the entire wheel came off of the truck. The cab of the truck hit the rock ledge in the median and the truck tipped over and began to burn. Wescome, a professional driver, had inspected the truck before beginning the trip.

When he looked around after the accident, Wescome saw road paving equipment, which he referred to as a roller and an asphalt spreader, parked on the grassy median nearby. Wescome testified that Knapik searched the area and presented him with a piece of metal with black marks on it and one corner bent over with a small piece of rubber tire bent into the metal. He recognized the tread design as similar to his tire. He testified that the metal piece had a hole in the center and sharp edges on both sides and a rounded surface up and down its length. The piece of metal resembled a piece of “B-beam” guardrail.

There were two types of guardrailing in use in the general vicinity of the accident. On the west side of the bridge abutment was cable and post railing and on the east side was B-beam railing. Wescome testified that he inspected the guardrailing on both sides of the bridge and found no damage. He also confirmed, on cross-examination, that B-beam railing is used on the sides of certain trailers.

In 1976, O & G was awarded a contract for the repaving of that section of Interstate 84 which extends through Middlebury. During early October, 1976, the state performed preparatory work on the highway in advance of the repaving by O & G, which included the use of a mechanical sweeper and other large machinery including a skid box, which is a hopper on the front of a truck with a skid and a skreet attached to it. This machinery leveled and filled cracks and wheel ruts. This work did not require the removal of guardrails and state transportation department records showed that no work of any kind had been performed on any guardrails in the Middlebury area from October 1 through October 29,1976. The state personnel and trucks were utilized in the area of the repaving work for purposes of loading and unloading traffic warning signs. At the end of the work day, the state personnel would leave certain equipment in the area of the work site.

0 & G's contract for repaving work required, inter alia, the spreading of bituminous asphalt. It did not call for O & G to remove or to touch any of the guardrails on Interstate 84. O & G began repaving on October 12, 1976. It used an asphalt spreader with a skreet, which was comprised of one solid piece of metal ten feet wide with hydraulic extenders to add an additional three feet on each side. The extenders were suspended approximately one foot off the pavement. The function of the skreet was to apply and compact the bituminous asphalt into the road surface. The paving included both the traveled portion of the highway and the shoulders. 0 & G did not work on the bridges.

The paver with extenders was in use until October 25, 1976, when it broke down. On the afternoon of October 25, O & G completed its work with a rental paver which was not equipped with the hydraulic extender arms. On October 26, O & G did not work on this repavement project because of rain. As of the date of the accident, in the early morning hours of October 27, O & G had completed its repaving work in an area that was two and two-tenths miles from the MiddleburyWaterbury town line, or two miles west of the accident site. The area was inspected on a daily basis by state workers and opened for travel.

On the basis of this evidence, the plaintiffs posit essentially two theories as to the origin or cause of the piece of metal in the road, neither of which is sufficiently grounded in the evidence. On the one hand, the plaintiffs contend that the piece of guardrail was knocked into the road by O & G during its repaving work. Contrary to the plaintiffs’ argument, however, there is no basis upon which the jury could infer that the extender arm knocked the piece of metal into the road on October 25, because O & G was forced to complete its repaving work with the rental paver, which was not equipped with extender arms. In addition, because 0 & G’s contract did not require any work on guardrails, and there was no damage to the guardrails in the vicinity of the accident, the plaintiffs’ first theory is highly speculative at best.

Furthermore, even if we were to assume that one or the other of the pavers in use by O & G knocked the piece of guardrail into the highway, it was still necessary that the jury be able logically to infer that the piece of metal remained in the road from the afternoon of October 25, when O & G finished its work, through October 26, when there was no work due to rain. The jury would also have to infer that the piece of metal was moved from the work site to the point where it was hit by the plaintiffs’ truck tire. In addition, because there was no B-beam railing west of the bridge abutment, the jury would necessarily have to infer that the piece of metal was moved from the east side of the bridge, where there was B-beam railing, to the west side, where the accident occurred. The evidence, however, does not support these inferences without recourse to speculation and conjecture, which is impermissible. See Roy v. Michaud, supra.

The plaintiffs’ alternative theory is that the state caused the piece of metal to enter and remain in the road. A review of the evidence, however, renders this theory even more speculative than the first. The evidence clearly indicated that the state did no work on guardrailing during the month of October. Although the state did perform preparatory work involving machinery similar to that used by O & G, there was no evidence that the state touched the guardrails while performing this work. In addition, it would have been necessary for the jury to infer that the piece of metal remained in the road unnoticed by anyone for approximately three weeks from the date of the state’s preparatory work to the date of the accident. Since the evidence failed to indicate that this piece of metal was previously seen by anyone except Wescome, or that it had caused other accidents on October 26 or at any other time, the inference that the state caused this defect to enter or remain in the highway is likewise based wholly on speculation and conjecture. Id.

At most, the only evidence linking O & G to the cause of this defect was the contract to repave the entire length of Interstate 84 through Middlebury. The only evidence linking the state to the cause of the defect was that it did similar work before O & G began repaving. There was no other basis upon which the jury could rationally infer the source or origin of the defect. In addition, absent any proof of the point in time when the defect came into existence, there was insufficient evidence upon which to infer that it remained in existence for any given period of time. Without these essential evidentiary links, the jury could not reasonably infer that the commissioner had constructive notice of the defect, or that O & G was liable for negligence or nuisance. Thus, the trial court did not err in directing verdicts in favor of both defendants.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 19a-335 provides: “If any person places anything, or permits anything to remain, in a highway, or digs up the ground therein, by which the passage of travelers is obstructed or endangered or the highway encumbered, the same shall be a common nuisance, and such person shall be fined not more than fifty dollars; and the court, before which the conviction is had, shall order the defendant to remove such nuisance within thirty days, and, on his failure to do so, it shall be removed at his expense by a constable of the town, and such court máy tax such expense and issue an execution therefor.”

       A state transportation department employee, subsequently testified that the highway extends a distance of approximately six miles through Middlebury.

       We note further that there was evidence that the state were to require B-beam guardrailing, this repair work might involve the cutting of sections from the main railing under repair. As pointed out, however, there was no evidence that any such work was performed during the entire month of October. Thus, this theory is based on pure speculation.

       The plaintiffs also claim that the trial court erred by excluding from evidence a photograph of the highway, which was offered to show the structure of the bridge abutment and the guardrails. The trial court excluded this photograph on the ground that the plaintiffs had not established a proper foundation. Although our review of the record indicates that the plaintiffs had established a proper foundation for this photograph, the record also indicates that other photographs, which were introduced into evidence, depict the bridge and guardrails. Therefore, we sustain the trial court’s ruling on the alternate ground that the evidence was cumulative. See Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 509, 480 A.2d 584 (1984).


author: Hull, J.

text:
    Christopher J. McLaughlin v. Edwin F. Charette et al.
    (4082)
    Dupont, C. J., Hull and Borden, Js.
    Argued April 9 —
    decision released June 3, 1986

      Brian J. Farrell, for the appellants (defendants).

      Vincent T. McManus, Jr., with whom was Barry Pontolillo, for the appellee (plaintiff).
   Hull, J.

The plaintiff real estate broker sued the defendants, Edwin F. and Joyce R. Charette, for a real estate commission he claimed was due for the sale of their residence in Wallingford. The defendants admitted the listing agreement and that the plaintiff, through his agent, had procured a buyer ready, willing and able to purchase the property. They also admitted that they had entered into a written contract with the prospective buyers and later declined to complete the transaction. The defendants filed a special defense, however, claiming that the plaintiff, directly or through his employee, had agreed that in the event the defendants did not purchase a certain house they would not have to sell their residence. The defendants asserted that because they had not purchased the other house, they were not required to sell and, accordingly, were not liable for the plaintiffs commission.

The plaintiff filed a reply to the special defense and a claim for the trial list and, thereafter, filed a motion for summary judgment. That motion was denied without a memorandum of decision. Several months later, the plaintiff again filed a motion for summary judgment with extensive documentation beyond that which accompanied the first motion for summary judgment. A hearing was held on the plaintiffs motion and, at that time, the defendants moved to amend their answers to the complaint and their answers to the plaintiffs requests for admissions. The proposed amendments, in essence, amounted to the filing of an extensive counterclaim.

The trial court filed a memorandum of decision on the defendants’ motion in which it noted that the defendants’ attorney appeared in court with the motions an hour and a half late. The court then recited the chronology of the pleadings and stated that the motions were made about ten months after the pleadings were closed. It cited Rahmati v. Mehri, 188 Conn. 583, 588, 452 A.2d 638 (1982), for the proposition that the decision on whether to allow a belated amendment rests in the sound discretion of the trial court. The court then stated that it appeared that the amended pleadings had been filed solely for the purpose of delay. The court concluded that the counterclaim contained in the defendants’ proposed amended answer lacked merit and denied the defendants’ motions to amend.

On the same date, the court filed a memorandum of decision in which it granted the plaintiff’s second motion for summary judgment. On the basis of the defendants’ admissions in the pleadings and the affidavits and documentation furnished by the plaintiff, the court found that the plaintiff was entitled to the commission as a matter of law. In reaching its decision, the court stated that “[tjhe only material fact in dispute is whether or not the defendants had attached as a condition to the sale of [their residence] that the defendants purchase the [other] property.” It noted, however, that the defendants’ affidavit and other documents asserted that the condition was orally stated to the plaintiff’s employee and ruled that the special defense could not be proven under the parole evidence rule. Accordingly, it found that the plaintiff was entitled to judgment as a matter of law. The court ordered a further hearing on damages.

Approximately a month and a half later, at the time scheduled for the hearing in damages, the defendants filed a motion to open the summary judgment on grounds not previously raised: that the plaintiff was not entitled to recover because the listing agreement did not comply with General Statutes § 20-325b. The court denied the motion. The court thereafter held a hearing in damages and rendered judgment in the plaintiffs favor, awarding him $6566.95 plus costs. The defendants again filed a motion to open the judgment which the court denied.

The defendants appealed from the judgment rendered claiming three grounds of error: (1) the court erred in failing to open and deny the summary judgment in the light of General Statutes § 20-325b; (2) the court erred in granting summary judgment because material issues of fact existed; and (3) the court erred in denying their motions to amend their answers to the plaintiffs complaint and their answers to admissions. To avoid sinking unnecessarily into the procedural morass created by defense counsel, we will consider these issues in reverse order.

“The trial court has wide discretion in granting or denying amendments before, during, or after trial. Our courts have followed a liberal policy to permit belated amendments to the pleadings unless the amendment will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party, or confuse the issues, or unless the delayed amendment is attributable to some misconduct on the part of its proponent. Smith v. New Haven, 144 Conn. 126, 132, 127 A.2d 829 (1956); Cromwell v. Middletown Savings Bank, 122 Conn. 362, 369, 189 A. 172 (1937). See Practice Book, 1978, § 176.” Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980). “The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. ‘The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.’ Smith v. New Haven, 144 Conn. 126, 132, 127 A.2d 829 (1956).” Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341-42, 438 A.2d 95 (1980). Unless there is a sound reason, however, refusal to allow an amendment is an abuse of discretion. Tedesco v. Julius C. Pagano, Inc., supra, 341.

With these criteria in mind, we consider the court’s decision to deny the defendants’ motion to amend their answer. The defendants requested permission to amend at the court’s hearing on the plaintiff’s second motion for summary judgment. While this motion was pressed ten months after the pleadings were closed, other than annoyance to the court and inconvenience to opposing counsel caused by the timing of such a motion, there would have been no prejudice to the plaintiff by allowing the amendment. At most, the plaintiff would have had to consent to a rescheduling of the motion after the pleadings were closed, and possibly he would have had to file additional documentation. The counterclaim, although discountenanced by the court in its memorandum of decision, was logically related to the matters contained in the special defense. Thus, the counterclaim could not have misled the opposing party, constituted unfair advantage, or confused the case. The issue then comes down to whether the delay was attributable to some misconduct on the part of defense counsel. Although the trial court stated that the motion was filed for purposes of delay, there was no showing of any unreasonable delay. The record up to that time shows no dilatory tactics of defense counsel. The case was not on the assignment list, and the record is devoid of any indication as to how close the case was to being reached for trial.

While we recognize the traditional deference due the discretion of the trial court, we also note the liberal Connecticut policy concerning amendments. We cannot conclude on this record that the granting of the motion to amend would have worked an injustice on the plaintiff or would have unduly delayed the trial. Accordingly, the court was in error in denying the defendants’ motion to amend.

It logically follows that the court was in error in rendering the summary judgment for the plaintiff since, had the amendment been allowed, the pleadings would not have been closed. Practice Book § 379. In view of our disposition of these claims of error, we do not consider the defendants’ other claim of error.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance to law.

In this opinion the other judges concurred.

       General Statutes § 20-325b provides: “Each written agreement which fixes the compensation to be paid to a real estate broker for the sale of real property shall contain the following statement in not less than ten point boldface type or in a manner which otherwise stands out significantly from the text immediately preceding any provision of such agreement relating to compensation of the broker: ‘NOTICE: THE AMOUNT OR RATE OF REAL ESTATE COMMISSIONS IS NOT FIXED BY LAW. THEY ARE SET BY EACH BROKER INDIVIDUALLY AND MAY BE NEGOTIABLE BETWEEN THE SELLER AND BROKER.’ ”

       Practice Book § 379 provides “In any action, except actions for dissolution of marriage, legal separation, or annulment of marriage, and except administrative appeals which are not enumerated in Sec. 257 (d), any party may move for a summary judgment, provided that the pleadings are closed as between the parties to that motion. These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action.”


text:
    Boleslaw Kiriaka v. Melvin Alterwitz et al.
    (4040)
    Hull, Daly and Bieluch, Js.
    Submitted on briefs February 11 —
    decision released June 3, 1986

      Joseph P. Kenny filed a brief for the appellant (plaintiff).

      Kevin A. Coles filed a brief for the appellee (defendant Peter Lipscomb).
   Bieluch, J.

The plaintiff, Boleslaw Kiriaka, is appealing, pursuant to Practice Book § 3001, from the summary judgment rendered against him on the second count of his revised complaint in favor of the defendant Peter Lipscomb. The sole issue raised on appeal is the correctness of the trial court’s conclusion that Kiriaka’s suit against the defendant, his fellow employee, was preempted by the Workers’ Compensation Act under General Statutes § 31-293a.

The undisputed facts are as follows: On December 5, 1980, Kiriaka and Lipscomb were both employees of the intervening plaintiff, Puritan Furniture Company. In the course of their employment on that day, at about 10:45 p.m., Lipscomb was operating their employer’s furniture van in a northerly direction on Route 137 in Stamford, with Kiriaka as a passenger, when he stopped on the highway and parked the vehicle at the easterly curb of the road with its lights and flashers on. After Lipscomb parked the truck, he remained in the cab and reviewed work papers. In the meantime, Kiriaka alighted and proceeded to cross the highway from east to west when he was struck by a motor vehicle owned by the defendant National Spring Water Company and operated, in a northerly direction, by its agent and employee, the defendant Melvin Alterwitz.

In this action, Kiriaka seeks to recover for the injuries which he received when struck by Alterwitz. The first count of his revised complaint seeks recovery from National and Alterwitz for the negligence and carelessness of Alterwitz in the operation of National’s vehicle. Count two seeks recovery from Lipscomb because he “was also negligent and careless in that as an employee, within the course of his employment,” he parked the van where parking was banned; he failed to put his flashing lights on; he failed to park off the highway; he failed to keep his lights on; and he failed to take precautions to prevent injury to lawful users of the highway, “especially his fellow employee.” There is no allegation stating, as in the first count, that his injuries were caused by the “negligent operation” of the truck by Lipscomb expressly or within the context of an action that “is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in § 14-1” to fall within an exception to the exclusivity provision of the Workers’ Compensation Act under § 31-293a for “injury or death from injury caused by the negligence or wrong of a fellow employee.”

The defendant Lipscomb moved for summary judgment in his favor alleging that there was no genuine issue as to any material fact concerning his liability for Kiriaka’s injuries. Kiriaka conceded that there was no material issue of fact, but claimed a question of law to be decided by the trial court: “Whether a motor vehicle parked on the side of the road is in operation?” On this issue, Kiriaka objected to Lipscomb’s motion and also moved for summary judgment in his own favor. The trial court granted Lipscomb’s motion for summary judgment and denied Kiriaka’s motion after finding that the action did not fall within the exception to § 31-293a because “the defendant Lipscomb was not engaged in any activity related to driving or moving the van or related to circumstances resulting from the movement of the van.”

Section 31-293a of the Workers’ Compensation Act provides in relevant part: “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless . . . the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14.-1.” (Emphasis added.)

The trial court, in granting summary judgment in favor of Lipscomb, found that the plaintiff’s action was not based on Lipscomb’s negligence in the operation of the company van. Recognizing that “operation” is not defined in title 14 of the General Statutes, the court relied upon recent rulings interpreting the statutory exception in § 31-293a. In Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 429 A.2d 943 (1980), the court stated: “While it is true that ‘operation’ is not defined in General Statutes § 14-1, the cases clearly indicate that operation as it refers to a motor vehicle relates to the driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle. See Plunkett v. Nationwide Mutual Ins. Co., 150 Conn. 203, 209, 187 A.2d 754 (1963); Reetz v. Mansfield, 119 Conn. 563, 178 A. 53 (1935); Stroud v. Water Commissioners, 90 Conn. 412, 97 A. 336 (1916).” Davey v. Pepperidge Farms, Inc., supra, 472 n.1.

The Davey rule confining “operation” within the context of § 31-293a “to the driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle” was followed in Dias v. Adams, 189 Conn. 354, 358, 456 A.2d 309 (1983). In further support of its conclusion that this lawsuit does not fall within the exception to § 31-293a because Lipscomb was not engaged, at the time of Kiriaka’s injury, in any activity related to driving or moving his vehicle or related to a circumstance resulting from the movement of the van, the trial court cited Conti v. Rose Hill Poultry Co., 3 Conn. App. 246, 248, 486 A.2d 1145 (1985) and Kegel v. McNeely, 2 Conn. App. 174, 178, 476 A.2d 641 (1984). We find that the trial court was correct in its application of the law to the undisputed facts before it.

The plaintiff maintains in his brief “that there is no analogy in fact or fiction in the present Record to the case authority relied upon by the trial court.” In that conclusion, he is mistaken. The error of this position is compounded by the plaintiff’s reliance on cases and authorities which are irrelevant to the facts of this case.

The issue before us relates to the negligent operation of a motor vehicle by an employee causing injury to a fellow employee entitling him to workers’ compensation benefits. In order to find such negligent operation allowing supplementary tort recovery against the employee operator within the exclusion of § 31-293a, the fellow employee’s injury must have been caused by the negligent movement or circumstance resulting from the movement of the employer’s truck. Neither the allegations of Kiriaka’s revised complaint nor the undisputed facts establish that his injury was caused by Lipscomb’s movement of the van or by a circumstance following from its movement. The accident causing Kiriaka’s injury was removed from Lipscomb’s prior movement or operation of the vehicle. Lipscomb parked the truck by the side of the road. Kiriaka alighted from it. Kiriaka then proceeded, on his own, unrelated to the operation of the truck, to cross the highway where he was struck by a passing vehicle. Kiriaka’s actions which resulted in his injuries were removed in fact and law from the operation of the company van.

“Operation” of a motor vehicle connotes the control and direction of it, the activity of an “operator” or “driver” licensed for that purpose. The exception to § 31-293a relates to injury causally connected to the control and direction of the employer’s vehicle. In the undisputed facts before the trial court, the accidental injuries to Kiriaka were unconnected and unrelated to Lipscomb’s control, direction and movement of Puritan’s van. His injuries admittedly arose out of and in the course of his employment in the circumstances of the case, but they cannot be extended to reach the exception to § 31-293a. His workers' compensation benefits are the exclusive remedy available to him under that provision of the act.

The record before us on this appeal discloses that there was no genuine issue of material fact. Rather, with the exclusivity of workers’ compensation benefits under § 31-293a, an issue of law emerged and summary judgment was properly granted to the defendant Lipscomb on the second count of the revised complaint and was properly denied to the plaintiff Kiriaka. See Mingachos v. CBS, Inc., 196 Conn. 91, 114, 491 A.2d 368 (1985).

There is no error.

In this opinion the other judges concurred.