author: Daly, J.

text:
    State of Connecticut v. James Nelson
    (2788)
    Hull, Spallone and Daly, Js.
    Argued May 8—decision
    released July 16, 1985

      Erskine D. McIntosh, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, John Durham, assistant state’s attorney, and Deborah Jeon, legal intern, for the appellee (state).
   Daly, J.

The trial court found the defendant guilty of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), burglary in the third degree in violation of General Statutes § 53a-103 (a) and larceny in the fourth degree in violation of General Statutes § 53a-125. From the judgment of conviction, the defendant has appealed, challenging the victim’s in-court identification of him.

The trial court found the following factual situation: The victim, a well educated graduate student, was asleep in her bedroom in a prone position when she was awakened about 6:30 a.m. by someone lying on top of her. Her assailant put his hand over her mouth, and threatened her in order to compel her to engage in sexual intercourse. It was light at the time, and her curtains were open. After her assailant left the premises, the victim went for assistance. When she later returned to her apartment, she determined that certain items of personalty were missing. The defendant’s fingerprints were subsequently found in the apartment, although he was unknown to the victim and had never been given permission to enter the premises.

The victim made a written statement the following day and described her assailant as a black male, between twenty-five and thirty-five years old, with medium-brown skin, short hair, a stocky build and heavy shoulders, about five feet ten inches tall, with fat fingers and a fat thick neck. She described him as attired in a dark blue flannel shirt and light blue casual trousers.

Her written statement indicated that she could never be positive about the identification because she was nearsighted and did not have her glasses on. At the time of trial, some twenty-one months later, the victim positively identified the defendant, who was the only black male in the courtroom, as her assailant.

The defendant claims that the in-court identification was impermissibly suggestive and therefore contends that the denial of his motion to suppress the in-court identification of the defendant by the victim constitutes a deprivation of due process of law in violation of article first, §§ 8 and 9 of the constitution of Connecticut and of the fourteenth amendment to the constitution of the United States.

“The ‘use of out-of-court police identification procedures may give rise to a claimed violation of due process of law if the conduct of the procedure in a given instance was “unnecessarily suggestive and conducive to irreparable mistaken identification,” a claim whose adjudication, however, “depends on the totality of the circumstances surrounding it.” ’ ” State v. Gordon, 185 Conn. 402, 412, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71L. Ed. 2d 848 (1982); State v. Vass, 191 Conn. 604, 608-609, 469 A.2d 767 (1983).

It is undisputed that there had been no pretrial out-of-court procedures herein. Therefore, there would have been no basis to suppress the victim’s in-court testimony because there would have been nothing to taint it. Commonwealth v. Cohen, 269 Pa. Super. 309, 312, 409 A.2d 903 (1979).

The defendant argues that the in-court identification was impermissibly suggestive since the defendant was the only black male present in the courtroom. We know of no authority which would prohibit, as unduly suggestive, an exclusively in-court identification. Mangrum v. State, 155 Ga. App. 334, 335, 270 S.E.2d 874 (1980). While it did not render the in-court identification inadmissible, this factor is one to be considered by the trial court in weighing the testimony of the in-court identification. “The defendant had ample opportunity to extensively cross-examine the victim, a sufficient remedy to any suggestion inherent in the in-court identification process.” State v. Drew, 360 So. 2d 500, 516 (La. 1978).

There are several methods by which defense counsel can reduce the suggestiveness of the identification. Among others, counsel could have requested a less suggestive setting. Moore v. Illinois, 434 U.S. 220,230 n.5, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977). There is nothing in the record to suggest that counsel moved for an in-court lineup or to seat the defendant in the courtroom audience. Commonwealth v. Napolitano, 378 Mass. 599, 604, 393 N.E.2d 338 (1979).

Although the defendant now challenges the state’s failure to engage in investigative procedures prior to trial, there was never a defense request for pretrial identification. “The state has no constitutional duty to conduct a line-up, voice test, semen analysis or any other laboratory test. . . . ‘Absent constitutional barriers, so long as the witness has identified the defendant with reasonable probability, whether the identification is the result of a photo display, a line-up, a show-up, or otherwise, the evidence is admissible.’ ” State v. Vass, supra, 611-12.

The defendant, in attempting to suppress the identification evidence, has the initial burden of showing that the identification resulted from an unconstitutional procedure. State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984); State v. Voss, supra, 608. The defendant has not met this threshold burden.

Even if we assume arguendo, however, that the identification was unnecessarily suggestive, that does not end the inquiry into whether the identification is admissible at the trial. Because reliability is the linchpin in determining the admissibility of identification evidence, we must consider whether, under the totality of circumstances, the identification was reliable. “ ‘The factors to be considered in determining the reliability of an identification “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” ’ ” State v. Theriault, 182 Conn. 366, 373-74, 438 A.2d 432 (1980); Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

We will consider the aforesaid factors seriatim. As for the opportunity of the victim to view her assailant, the assault occurred in her bedroom during early daylight and lasted for about twenty minutes. Although the victim was nearsighted, she got a good hard look at her assailant and has excellent short range vision without her glasses. She denied telling the detective that she could never identify her assailant, but claims to have told him that she could never be 100 percent certain. Her degree of attention was high. As to the accuracy of her prior description, except for the clothing, weight and hands, and a minor age discrepancy, her description was very accurate. Her degree of certainty in the identification was high. The delay of twenty-one months between the episode and the court confrontation did not faze her identification of the defendant.

Reliability is the linchpin in determining the admissibility of identification evidence. The trial court could reasonably have found, under our test for reliability, that there was not a very substantial likelihood of irreparable misidentification. State v. Fullwood, supra, 254.

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).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Shirley J. Gincavage v. Raymond Gincavage
    (2967)
    Hull, Spallone and Daly, Js.
    Argued June 5—decision
    released July 23, 1985

      William F. Gallagher, with whom, on the brief, was Charles R. Douthat, for the appellant (defendant).

      James R. Greenfield, for the appellee (plaintiff).
   Per Curiam.

In this appeal from the judgment dissolving the marriage of the parties, the defendant challenges the trial court’s division of assets. The trial court has broad discretion in domestic relations cases, and our review of the exercise of such discretion is limited to whether the trial court correctly applied the law and could reasonably have concluded as it did. Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984). A review of the record makes it clear that the division of assets was neither arbitrary nor an abuse of discretion. Anderson v. Anderson, 191 Conn. 46, 57, 463 A.2d 578 (1983); Solla v. Solla, 3 Conn. App. 415, 416, 489 A.2d 395 (1985).

There is no error.

       Of the remaining issues briefed, two were rendered moot and a third was withdrawn from our consideration.


author: Borden, J.

text:
    State of Connecticut v. Frank Bellamy
    (2982)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued May 7—decision
    released July 23, 1985

      Steven M. Sellers, deputy assistant state’s attorney, with whom, on the brief, was James L. Radda, deputy assistant state’s attorney, for the appellant (state).

      Clarance J. Jones, for the appellee (defendant).
   Borden, J.

The defendant was arrested pursuant to a warrant and charged in an information with the crime of harassment in violation of General Statutes § 53a-183. Upon the defendant’s timely motion, the trial court dismissed the information on three separate bases: (1) there was no probable cause for the issuance of the warrant; (2) since the state’s “offer of proof” showed that no violation of General Statutes § 53a-183 could have been committed, the information should be dismissed pursuant to General Statutes § 54-56; and (3) the defendant’s alleged written communications, which formed the basis of the offense charged, were protected free speech. The state appealed, claiming that the court erred in each of these conclusions and that the information, therefore, should be reinstated. We agree.

I

Before we address the state’s claims, it is necessary to resolve an issue involving our subject matter jurisdiction over this appeal. The defendant claims that this appeal by the state is not properly before us because the trial court denied the state permission to appeal, which is required by General Statutes § 54-96. We hold that, under the circumstances of this case, we do have subject matter jurisdiction over the appeal.

On March 22, 1983, the trial court granted the defendant’s motion to dismiss and denied the state’s prompt, oral motion for permission to appeal. On May 17,1983, in response to a motion for review filed by the state, the Appellate Session of the Superior Court ordered the trial court to articulate the basis of its denial of permission to appeal, in particular to specify the facts found, the principles of law applied to the facts and the reasons for its conclusions. On May 31,1983, the trial court further articulated its decision by specifying the reasons for its granting of the motion to dismiss but not specifying its reasons for the denial of permission to the state to appeal. On June 28, 1983, the Appellate Session granted the state’s motion for review and set aside the denial of permission to appeal. Through administrative oversight, however, notice of this decision was not sent to the proper assistant state’s attorney handling the case. Upon learning of this, on January 18, 1984, this court reissued the notice of the action of the Appellate Session. The state thereafter promptly filed its appeal in this court.

It is true that, pursuant to General Statutes § 54-96, the permission of the trial court is a prerequisite to the right of the state in a criminal case to appeal, and that ordinarily the discretionary decision of the trial court will not be disturbed. State v. Avcollie, 174 Conn. 100, 109-110, 384 A.2d 315 (1977). It is also true, however, that the statute does not preclude an appeal where the state promptly expressed its intention at the time of the judgment and the court’s denial was so arbitrary as to be an extreme abuse of discretion. Id., 110.

Here, the state promptly requested permission to appeal when the trial court rendered its judgment. In responding to the mandate of the Appellate Session, the court offered no reasons for its denial of permission to appeal. The questions presented to the trial court, and thus to this court, are by no means clear and simple, and are of some consequence. Implicit in the decision of the Appellate Session was the determination that the denial of permission to appeal was, under these circumstances, so arbitrary as to be an extreme abuse of discretion, a determination with which we agree. We conclude, therefore, that the appeal is properly before us.

II

We agree with the state that the trial court erred in holding that the affidavit supporting the arrest warrant did not establish probable cause that the defendant committed the crime of harassment in violation of General Statutes § 53a-183. The applicable part of that statute provides as follows: “(a) A person is guilty of harassment when ... (2) with intent to harass, annoy or alarm another person, he communicates with a person by . . . any . . . form of written communication, in a manner likely to cause annoyance or alarm

The affidavit, signed by Detective Robert J. Cappullo, of the New Haven police department, provided essentially as follows: On August 5, 1982, Cappullo responded to a call from the East Shore Waste Water Treatment Plant, where he spoke with the complainant, Moshe Kopman, and his supervisor, Kenneth Maltese. Kopman and Maltese told him that on August 4, 1982, they discovered that seventy-four swastikas had been drawn on a pump sheet, which is a sheet of paper left out on a desk at the plant for the purpose of recording pump readings every two hours. Cappullo made a copy of the pump sheet, but could not reliably process it for fingerprints because everyone at the plant had access to it.

The affidavit further recited that Kopman is an Orthodox Jew who displays himself as such by wearing a small cap on his head and by indicating his beliefs. Until recently, Kopman, who has worked at the plant for two years, worked on a different shift. He is the only Orthodox Jew employed at the plant; the only other Jew is not Orthodox and works on a different shift.

Cappullo attempted unsuccessfully to determine who had drawn the swastikas. No one had seen anyone draw them and no one admitted to having drawn them.

On August 8, 1982, Cappullo again responded to a complaint by Kopman by going to the plant. Kopman and Maltese had another pump sheet, dated August 6, 1982, which had nineteen swastikas drawn on it. They were drawn on the shift on which Kopman works. Cappullo made a copy of this pump sheet.

On August 12,1982, Cappullo obtained information from Maltese that an employee on Kopman’s shift knew who had access to the August 6, 1982 pump sheet between the time it was blank and the time it had the swastikas drawn on it. This employee was Nicholas S. Weted, who came to the police department and gave the following statement: On August 6, 1982, on the midnight shift, Weted put out a blank pump sheet. The defendant, also an employee of the plant, entered the room, picked up the sheet and sat down with it at the desk across from Weted. No one else was in the room. Weted left the room for less than one minute and remained right outside it. The wall of the room is all glass. Weted did not see anyone enter the room. Only the defendant was in the room. Weted reentered the room. The defendant was still at the desk with the sheet in front of him. A co-worker entered the room, and he and the defendant left the room. Weted looked at the sheet and saw the swastikas drawn on it. Weted identified Cappullo’s copy of the August 6, 1982 sheet as a copy of the same sheet.

Maltese told Cappullo that the defendant had been an employee for two years and had been acting erratically lately. Cappullo researched the swastika symbol and stated that it was originated in the 1920s by the German Nazi Party, a major premise of which was antiSemitism.

The standard by which probable cause is gauged is less than the standard of whether a prima facie case is made out. “Instead, all that is required is that the affidavit, read in a common-sense manner, give objective evidence of a fair probability that proscribed activity has occurred.” State v. Heinz, 193 Conn. 612, 617, 480 A.2d 452 (1984). In applying that standard we must give “substantial deference . . . to the decision of the judicial authority that issued the warrant.” Id., 618.

It is not necessary to go through the specifics of the affidavit, item by item. Suffice it to say that, applying the standard articulated in State v. Heinz, supra, we conclude that the affidavit was sufficient to establish probable cause that the defendant, with the intent to harass, annoy or alarm Kopman, communicated with Kopman by means of the pump sheets with the swastikas on them, and that this was done in a manner likely to cause Kopman annoyance or alarm. General Statutes § 53a-183 (a) (2).

Ill

As an alternate ground of its decision the trial court relied on General Statutes § 54-56. That statute provides that the court “may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”

The court reasoned that, because the state’s “offer of proof” indicated that no violation of General Statutes § 53a-183 (a) (2) could have occurred, invocation of General Statutes § 54-56 was appropriate. The state argues that the statute, which permits such a motion to dismiss “at any time,” unconstitutionally collides with Practice Book §§ 815 (5) and 816, which prohibit a defendant who has been arrested pursuant to a warrant from making such a motion. Thus, the state claims, the statute is in violation of the principle of separation of powers and must yield to the Practice Book rule. See, e.g., State v. King, 187 Conn. 292, 296-98, 445 A.2d 901 (1982).

We agree that the trial court erred by applying General Statutes § 54-56 in this case, but for reasons different from those advanced by the state. We conclude that General Statutes § 54-56 simply does not apply to this case. Therefore, we need not decide the constitutional claim of the state.

We note, first, that contrary to the court’s assertion, the state did not make any “offer of proof,” formally or informally, that the contents of the affidavit would constitute its entire evidence at a trial. Cf. State v. Morrill, 193 Conn. 602, 605, 478 A.2d 994 (1984). Thus, the court was not presented with all the evidence which could be marshalled by the state.

Although General Statutes § 54-56 has been in existence since 1921; see Public Acts 1921, c. 267, § 3; State v. Carroll, 13 Conn. Sup. 112 (1944); and has rarely surfaced in reported decisions, its purpose precludes its application to a situation in which a defendant, who has been arrested pursuant to a warrant, challenges before trial the sufficiency of the affidavit supporting the warrant. “What appears to be clear statutory language should not be read ... to ‘defeat a legislative intent which becomes evident when the statute is read in the light of its history and purpose.’ ” Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398, cert. granted, 196 Conn. 805, 494 A.2d 903 (1985).

The purpose of General Statutes § 54-56 is “ ‘to prevent unchecked power by a prosecuting attorney.’ State v. Carroll, 13 Conn. Sup. 112 [1944].” State v. Reinosa, 29 Conn. Sup. 117, 118, 274 A.2d 452 (1970). This purpose does not apply where a judge has found probable cause and authorized the issuance of an arrest warrant. In such a case, the judicial authority’s considered judgment has been interposed between the power of the prosecuting attorney and the rights of the defendant. The prosecutorial power is not unchecked; it has already been subject to the prior check of the judicial authority’s “independent determination that probable cause exists as to each element of every crime charged.” State v. Heinz, supra, 617. At least in the absence of a concession by the state that the evidence in the arrest warrant affidavit will constitute its entire proof at trial; cf. State v. Morrill, supra; General Statutes § 54-56 is an inappropriate basis on which to dismiss an information preceded by an arrest warrant.

This conclusion is buttressed by a careful reading of State v. Morrill, supra. In that case, the defendant moved to dismiss the information on the basis of insufficiency of the warrant affidavit, and on the separate basis of General Statutes § 54-56. Id., 603 and n.2. The trial court found the affidavit sufficient but dismissed the information on the basis of the statute because, it reasoned, the evidence recited in the affidavit, which the state conceded would be its entire case, would have been insufficient to sustain a guilty verdict as a matter of law. Neither the trial court nor the Supreme Court, on the subsequent appeal, considered Practice Book § 816. See footnote 3, supra.

The Supreme Court found error because it read the evidence recited in the affidavit, and the permissible inferences therefrom, as supporting a potential guilty verdict. Id., 611-12. We read State v. Morrill, supra, therefore, as standing for the proposition that, in the absence of an invocation of Practice Book § 816, reliance on General Statutes § 54-56 to dismiss an information which is preceded by an arrest warrant is appropriate if it is conclusively established that the court has before it all the evidence which the state will be able to produce at trial.

IV

This leaves for analysis the trial court’s third ground of its decision, namely, that the writings allegedly made by the defendant were constitutionally protected speech. We agree with the state that the trial court erred by dismissing the information on this basis.

Much of our discussion in part III of this opinion applies here. The court erroneously assumed that the information in Cappullo’s affidavit would be the state’s entire case at a trial. There was no basis in the record to support such an assumption. Thus, the trial court made this complex and sensitive constitutional determination in the absence of a full factual matrix.

The state offers two plausible bases on which the alleged writings of the defendant may not be protected as free speech. Both require more of a factual development than the court permitted the state here.

The first is that the defendant’s communications may ultimately be determined to be “fighting words,” which are not constitutionally protected. See State v. Beckenbach, 1 Conn. App. 669, 678, 476 A.2d 591, cert. granted, 193 Conn. 806, 477 A.2d 806 (1984). Whether particular language constitutes fighting words, in constitutional parlance, depends not only on the language but on the full factual situation of its utterance. Id.

The second is that, because of the statutory requirements that the defendant act with the intent to harass, annoy or alarm and in a manner likely to cause annoyance or alarm, the communications at issue may have intolerably intruded on Kopman’s privacy interests. “ ‘[W]e are often “captives” outside the sanctuary of the home and subject to objectionable speech.’ . . . The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U.S. 15, 21, 91 S. Ct. 1780, 29 L. Ed. 2d 284, reh. denied, 404 U.S. 876, 92 S. Ct. 26, 30 L. Ed. 2d 124 (1971); see also Gormley v. Connecticut Department of Adult Probation, 632 F.2d 938 (2d Cir. 1980), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980) (holding General Statutes § 53a-83 (a) (3), the harassment by telephone portion of the statute, constitutional). This determination also requires more facts than this record discloses.

We do not hold that the defendant’s alleged writings were unprotected speech. Nor do we dismiss the constitutional claim that his speech was protected. See Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916, 99 S. Ct. 291, 58 L. Ed. 2d 264 (1978). We hold only that, although constitutional challenges invoking first amendment freedoms may sometimes be decided on the basis of facts other than those surrounding the person raising such a challenge; see State v. Pickering, 180 Conn. 54, 57-58 n.3, 428 A.2d 322 (1980); the development of the necessary factual matrix on which such a decision must be made was prematurely curtailed in this case. The meager factual record before the trial court precluded it from making a proper decision on that constitutional basis. See United States v. Petrillo, 332 U.S. 1, 9-12, 67 S. Ct. 1530, 91 L. Ed. 1877 (1947).

We do not reach the defendant’s claims that the statute is unconstitutionally overbroad and vague, because of the defendant’s failure to file a preliminary statement of issues presenting these claims as alternate grounds upon which the judgment might be affirmed. Practice Book § 3012 (a); see State v. Torrence, 196 Conn. 430, 434 and n.6,493 A.2d 865 (1985). The rules of court apply to the defendant as well as to the state; see State v. Martin, 2 Conn. App. 605, 612A, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457 (1984), cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985); and we decline to decide issues raised, to the detriment of the state, the appellant here, in contravention of those rules. Id., 612B. The defendant is free, of course, to raise these claims in the course of the further proceedings following our remand.

There is error, the judgment is set aside and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       We do not consider that the amendment to Practice Book § 3096, effective July 1,1978, lodging control over appeals in this court “from the time the appeal is filed, or earlier, if appropriate, ” changes this rule. (Emphasis supplied.) The state’s right to appeal is wholly statutory; State v. Audet, 170 Conn. 337, 341, 365 A.2d 1082 (1976); and the rules “obtain when there is a valid appeal because the rules regulate, but do not create, appeals.” Id., 343.

       The signature on the affidavit is difficult to make out but as best as it can be discerned is Robert J. Cappullo. The name does not appear elsewhere in the record and so we refer to the affiant as Cappullo.

       The trial court took issue with Cappullo’s statement in the affidavit that the swastika symbol originated with the Nazi party. This inaccuracy aside, however, it cannot be doubted that the symbol today ordinarily invokes Nazism and virulent anti-Semitism.

       Practice Book § 815 (5) mirrors General Statutes § 54-56, by providing for a pretrial motion to dismiss grounded on “[d]efenses or objections based on the insufficiency of evidence or cause to justify the bringing or continuing of such information ... or the placing of the defendant on trial >)

      Practice Book § 816, however, limits § 815 by providing that “[n]o defendant who has been . . . arrested pursuant to a warrant . . . may make a motion under [paragraph] (5) . . . of Sec. 815.”

       A third basis offered by the state, namely, that what the defendant is charged with under the statute amounts to both speech and nonspeech combined in the same course of conduct; see, e.g., United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672, reh. denied, 393 U.S. 900, 89 S. Ct. 63, 21L. Ed. 2d 188 (1968) (draft card burning); has less plausability, at least at this stage of the proceedings. It is difficult to view the drawing of symbols on paper, prosecuted pursuant to the section of the statute prohibiting communicating with another person with the requisite intent and in the requisite manner, as anything other than speech. Whether that speech is protected is, of course, a separate question.


author: O’Neill, J.

text:
    William J. Curran, Sr. v. Stella McCall
    (2631)
    Dupont, C.P.J., Hull and O’Neill, Js.
    Argued April 19—decision
    released July 23, 1985

      Martin M. Rutchik, for the appellant (plaintiff).

      Michael E. Driscoll, for the appellee (defendant).
   O’Neill, J.

The plaintiff appeals from the trial court’s refusal to set aside a jury verdict for the defendant in a negligence action for damages due to personal injuries which occurred in the unlighted cellar of the defendant’s home. The case involves the question of the duty, if any, of a homeowner to furnish adequate lighting in such premises to a business visitor. The trial court refused the plaintiff’s request to charge the jury on such a duty to provide adequate lighting and specifically charged the jury not to consider the question of adequate lighting in the cellar.

On February 15,1979, at approximately 10 a.m., the plaintiff, a repairman, made an emergency business call to the defendant’s old farm house on McCall Road in Lebanon, to repair her furnace. In order to repair the furnace, the plaintiff had to walk through the flood damaged basement of the defendant’s house. The basement had no artificial light. There was an electric socket in the basement, but no electricity. While he was in the basement and using his flashlight to maneuver around debris on the floor, a wire suspended from overhead became lodged in the plaintiff’s eye causing injury.

The plaintiff claims that the court erred (1) in failing to forewarn the plaintiff’s counsel, prior to his closing argument, that the issue of adequate lighting was to be removed from the consideration of the jury, (2) in refusing to charge the jury, as requested, regarding adequate lighting, and (3) in removing from the consideration of the jury, as a matter of law, the issue of adequate lighting. We will consider the second and third claims of error as one.

The plaintiffs first claim of error is that the trial court should have forewarned the plaintiff that it intended to instruct the jury to disregard the plaintiffs allegations of negligence involving adequate lighting. The plaintiff concedes that he did not request a conference with the trial court regarding the court’s charge to the jury. Rather, he argues that the court should have held such a conference sua sponte. To buttress that argument, the plaintiff refers to Practice Book § 853 which provides for an opportunity to discuss the trial court’s charge to the jury, in criminal cases, prior to closing arguments. The plaintiff further notes that rule 51 of the Federal Rules of Civil Procedure requires the court to inform counsel of its proposed action on their request to charge prior to closing arguments.

The plaintiff concedes that there is no rule in Connecticut requiring a conference in civil cases. Further, the plaintiff concedes that he did not request such a conference. Under these circumstances, it cannot be said that the court erred.

The plaintiff’s remaining claims of error deal with the trial court’s charge that, as to the allegation that the defendant “was negligent in that she failed to maintain adequate lighting in said basement area, you are to ignore that. There is no obligation—there was no obligation on the part of [the defendant] to provide adequate light for [the plaintiff].” We conclude that, in taking this allegation away from the jury, the court erred.

In Gibson v. Hoppman, 108 Conn. 401, 143 A. 635 (1928), the court held that “[w]hatever the situation as to tenants, to one upon the premises as was the plaintiff, the landlord owes the same duty as would any other landowner to one whom he has invited to come there, that is, the duty of exercising reasonable care to have the common passageways reasonably safe. Whether the defendants were guilty of a breach of that duty in failing to light the stairway upon which the plaintiff fell, presented an issue of fact for the jury. ” (Emphasis added.) Id.

The defendant argues that because the plaintiff had been on the site prior to the accident in his role of repairer and was aware of the dangerous condition, she was under no further obligation to warn him of the danger. Warren v. Stancliff, 157 Conn. 216, 220, 251 A.2d 74 (1968). This argument, however, misses the point of the plaintiffs claim. The plaintiff’s argument does not focus on the defendant’s duty to warn the plaintiff of a dangerous condition, but upon her duty to exercise reasonable care in providing safe passage through her home to a business invitee. Consequently, the rule of Gibson is to be employed rather than that of Warren. In fact, the court in Gibson found that the issue should have been left to the jury despite the fact that the plaintiff was a “frequent” visitor to the premises since her parents lived there; Gibson v. Hoppman, supra, 404; and despite the fact that the lack of lighting was an ongoing problem of which the plaintiff was aware. Id.

The court erred in removing the issue of the defendant’s duty to provide adequate lighting from the jury and in refusing to give a charge in regard to the lighting.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The plaintiff’s request to charge states, in pertinent part: “It is for you [the jury] to determine whether the failure to provide adequate lighting might reasonably be considered to be an act of negligence, which was a substantia] factor in bringing about the injury to Mr. Curran. It is for you to determine whether in fact she acted as a reasonably prudent person in not having adequate lighting, if you find that such lighting was not available.”


text:
    Thomas Speer, Sr., Administrator (Estate of Thomas Speer, Jr.) v. State of Connecticut
    (3193)
    Dupont, C.P.J., Hull and Daly, Js.
    Argued June 12—decision
    released July 23, 1985

      William J. McCullough, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard J. Lynch, assistant attorney general, for the appellant (defendant).

      Theodore I. Koskoff, with whom, on the brief, was Elizabeth Koskoff, for the appellee (plaintiff).
   Per Curiam.

The plaintiff, administrator of the estate of Thomas Speer, Jr., was granted permission by the state commissioner of claims to bring suit against the state for the injuries and death of his decedent arising out of the alleged carelessness and negligence of employees of the state. General Statutes § 4-160. Some of the facts are not in dispute. The state maintained and operated a detoxification unit located at the Greater Bridgeport Community Mental Health Center. The plaintiffs decedent was undergoing care and treatment there when he fell or jumped to his death from an eighth floor window on December 21, 1976.

The plaintiff’s complaint alleges, inter alia, that the negligence of the state consisted of the failure to have appropriate security facilities for the safety and welfare of the decedent, to provide a safe location, including protective window screening for the decedent, to observe and monitor the decedent, to take adequate precautions and measures for the safety of the decedent, and to take a proper history of the decedent.

The trial court found that the twenty-six year old decedent’s death resulted from a suicide when he jumped through a window located on the eighth floor while at the center as an inpatient in an alcohol detoxification program. Other facts found by the court were that on December 20,1976, the decedent was brought to the emergency room of St. Vincent’s Hospital, where a history was taken which indicated that he had an alcohol problem and that he had been experiencing hallucinations during that day. He was admitted on the same day to the mental health center and housed on the eighth floor.

The trial court concluded, on the basis of the facts presented, that the employees of the state knew or should have known that the decedent was in danger of committing suicide, and that they failed to use reasonable care to prevent the suicide. In determining whether or not the employees knew or should have known of the suicidal tendencies, the court relied on the testimony of a psychiatrist, an expert witness of the plaintiff, and on the intake history obtained from the patient which the court determined was inadequate for such a determination. The failure to use reasonable care was based upon the fact that the center did not provide protective screening on the windows, and that the center had notice of the need for such a safety measure for alcoholic patients who were suicidal. The trial court found that the negligence of the defendant was the proximate cause of death and awarded damages in the amount of $202,750.

On appeal, the defendant claims that the trial court erred (1) in finding that the intake history was madequate, (2) in finding that its agents should have known the plaintiffs decedent was suicidal, (3) in finding that its agents violated the appropriate standard of care in housing the plaintiffs decedent on the eighth floor and (4) in finding that the plaintiffs decedent would have lived a normal productive life despite its finding that he was suicidal and alcoholic at the time of his death.

The defendant concedes in its brief that the trial court was correct in its statement of law that the single most important factor in determining whether a health care facility is negligent in failing to prevent a suicide is whether its agents knew or should have known or foreseen that the patient was suicidal. Basically, it claims that the facts found in determining that such negligence existed should not have been found. The trial court determined, on the basis of the testimony of the sole expert witness for the plaintiff, a psychiatrist, that the intake history was inadequate to ferret out patients with suicidal tendencies. The facts found were supported by evidence which the trial court opted, in its discretion, to believe and will not be disturbed. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). The second claim of error flows from the first claim of error. The court again chose to rely on the same expert witness for its finding that the defendant’s agents should have known of the patient’s proclivity for suicide.

The third and fourth claims of error also relate to factual findings of the trial court. There was evidence to support these findings and an appellate court is powerless to interfere with them. The presence of conflicting evidence during a trial cannot be the source of an appellate license to eschew some evidence and embrace other evidence. Which evidence is more credible is the trial court’s “call.”

There is no error.


author: Spallone, J.

text:
    Twin Towers Associates v. Gilbert Switzer & Associates Gilbert Switzer & Associates v. Twin Towers Associates
    (3503)
    Hull, Spallone and Daly, Js.
    Argued May 15—decision
    released July 23, 1985

      James M. O’Connor, for the appellant (plaintiff in the first case, defendant in the second case).

      WilliamH. Clendenen, Jr., for the appellee (defendant in the first case, plaintiff in the second case).
   Spallone, J.

This is one appeal taken from the judgments of the trial court pertaining to two cases consolidated and tried together.

In the trial court, the plaintiff in the first case, Twin Towers Associates (Twin Towers), moved to vacate an arbitration award rendered in favor of the defendant, Gilbert Switzer & Associates (Switzer). In its demand for arbitration, Switzer sought $104,918.15, plus interest, claiming that Twin Towers failed and refused to pay for services Switzer performed on property owned by Twin Towers. Twin Towers was the defendant in the second case where Switzer, as plaintiff, moved to confirm the same award.

The trial court tried both actions as a consolidated matter and rendered two judgments in which it denied Twin Tower’s motion to vacate and granted Switzer’s motion to confirm the arbitrator’s award.

Twin Towers has appealed from the judgments, claiming that the trial court erred in not finding that the arbitrators were guilty of misconduct for refusing to hear evidence pertinent and material to the controversy and in failing to vacate the award. We find Twin Tower’s claims of error to be without merit.

The issue before us is very narrow, i.e., whether the arbitrator’s rulings on evidence were in violation of the provisions of General Statutes § 52-418 (a) (3) which provides in pertinent part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award . . . if the arbitrators have been guilty of misconduct . . . in refusing to hear evidence pertinent and material to the controversy . . . .”

Arbitration is a creature of contract and its autonomy requires a minimum of judicial intrusion. Bic Pen Corporation v. Local No. 134, 133 Conn. 579, 583, 440 A.2d 774 (1981). When the parties agree to a procedure and have delineated the authority of the arbitrator, they must adhere to and be bound by those limits. Id., 584; Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 211-12, 470 A.2d 1219 (1984). Every reasonable presumption and intendment is made in favor of sustaining the award and of the arbitrator’s acts and proceedings. Bruno v. Department of Consumer Protection, 190 Conn. 14, 19, 458 A.2d 685 (1983). The burden, therefore, rests on the party challenging the award to produce evidence to support its claim of misconduct. Bic Pen Corporation v. Local No. 134, supra, 585. Absent a showing of perverse misconstruction or positive misconduct or a provision in the agreement authorizing it, the arbitrator’s determination is not subject to judicial inquiry. Schwarzschild v. Martin, 191 Conn. 316, 327, 464 A.2d 774 (1983).

The contract between the parties provided for arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Rule 31 contained therein provides that: “The arbitrator shall be the judge of the admissibility of the evidence offered and conformity to legal rules of evidence shall not be necessary.” The principle reflected in this rule finds approval in the decisions of our appellate courts. “Arbitrators, being customarily chosen . . . because of special knowledge or skill in connection with the matter to be decided, are not bound to follow strict rules of law, unless it be made a condition of the submission, but are expected to determine the questions presented to them in the light of their own special skill and knowledge.” Liggett v. Torrington Building Co., 114 Conn. 425, 432, 158 A. 917 (1932). Thus, if the submission is unrestricted, arbitrators are not required to decide according to the law; Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106, 438 A.2d 1171 (1981); United Electrical Radio & Machine Workers v. Union Mfg. Co., 145 Conn. 285, 288, 141 A.2d 479 (1958); and the award cannot be reviewed for errors of law or fact. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 23, 453 A.2d 1158 (1983); Courchaine v. Shelby Mutual Ins. Co., 2 Conn. App. 438, 479 A.2d 1218 (1984); American Motorists Ins. Co. v. Brookman, 1 Conn. App. 219, 223, 470 A.2d 253 (1984).

The trial court properly concluded that the board of arbitrators, rather than this court, is the proper judge of the admissibility of evidence at issue here. Its memorandum of decision manifests and reflects a knowledgeable and insightful appreciation of the principles of law involved in the field of arbitration and its decision to reject the claim of misconduct and to confirm the award was proper under the circumstances in this case.

There is no error.

In this opinion the other judges concurred.

       The record discloses that, in the arbitration proceeding, Twin Towers did not file an answer to the demand for arbitration, raised no affirmative defenses, did not file a counterclaim, and did not state, in writing, any objection to the proceeding or any aspect thereof, although all of these options were permitted by the rules. Instead, Twin Towers filed a separate arbitration demand against Switzer. The arbitrator ruled that the excluded evidence was relevant to the arbitration demand filed by Twin Towers and was not admissible in the arbitration subject to this appeal.


text:
    Philip Bernstein et al. v. Bernard Busker
    (2778)
    Borden, Spallone and Daly, Js.

      Argued May 16—decision
    released July 23, 1985

      Raymond W. Beckwith, for the appellants (plaintiffs).

      Raphael Korjf, for the appellee (defendant).
   Daly, J.

The plaintiffs commenced this action to recover monies still due on a mortgage note after a foreclosure sale. The defendant filed a counterclaim seeking the reconveyance from the plaintiffs of a parcel of land which he claimed was erroneously included in the mortgage deed. From the judgment rendered in favor of the defendant on the counterclaim, the plaintiffs have appealed.

The factual situation does not appear to be in dispute. The defendant was the owner of three parcels of land located in the town of Wales, Massachusetts. One parcel consisted of 185 acres, the second parcel consisted of 53 acres and the third parcel consisted of 41 acres. On or about May 30,1975, the plaintiffs loaned the sum of $50,000 to the defendant in return for which the defendant executed a mortgage note and deed describing the three parcels. The defendant claims that the 41 acre parcel was included in the mortgage deed by mistake. When the defendant defaulted in the payments on the note, the plaintiffs instituted a foreclosure action in Massachusetts and purchased the entire property (consisting of all three parcels) at the foreclosure sale. The defendant protested the sale of the 41 acre parcel, but neglected to take any preventive action, despite being advised of the various remedies available.

When the plaintiffs sought to recover a deficiency judgment against the defendant, he filed this counterclaim seeking equitable relief. The trial court found for the defendant, and ordered the plaintiffs to reconvey the land to the defendant upon the condition that the defendant hold the plaintiffs harmless from any possible monetary damages due to a third party claiming title.

The plaintiffs claim that the trial court erred (1) in ruling that the defendant, an experienced real estate broker, could equitably assert title to a Massachusetts parcel of land when he admitted that he had not read the mortgage deed whereby the lien was created thereon, (2) in finding that the 41 acre parcel was not included in the mortgage deed, (3) in determining that the defendant could ignore the Massachusetts foreclosure law and was not obligated to take any steps to protect his rights thereunder, and in farther determining that he was entitled to equitable relief in Connecticut even though the defendant’s claims under Massachusetts law were barred by the statute of limitations, and (4) in taking jurisdiction over this case because all parties were Connecticut residents, despite the fact that the realty is located in Massachusetts.

We will consider the third issue since that is dispositive of this appeal.

It is settled law that “a judgment in a former action between the same parties and upon the same cause of action is conclusive upon the parties to a subsequent action as to every question which was or might have been presented or determined in the former action.” Lechner v. Holmberg, 165 Conn. 152, 155-56, 328 A.2d 701 (1973), quoting State ex rel. Campo v. Osborn, 126 Conn. 214, 218, 10 A.2d 687 (1940). It is clear that the requirements of res judicata have been satisfied, since the parties herein and the 41 acre parcel were involved in the Massachusetts foreclosure proceedings, from which the defendant sought no relief, in Massachusetts.

There is error in part, the judgment on the counterclaim is set aside and the case is remanded with direction to render judgment for the plaintiffs on the counterclaim.

In this opinion the other judges concurred.

       The counterclaim is the only matter on appeal.

       The plaintiff Jean Bernstein has since deceased but nothing has been done to substitute a legal representative party for her. Since title to the property was jointly held in survivorship, ostensibly title now reposes in the plaintiff Philip Bernstein, her husband.

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

       The plaintiffs entered into an agreement to sell the three parcels. The 185 acre and 53 acre parcels have been sold. The sale of the 41 acre parcel has been forestalled due to this litigation.


author: Dupont, C.P. J.

text:
    In re Investigation of the Grand Juror into Cove Manor Convalescent Center, Inc.
    (2490)
    Dupont, C.P.J., Hull and Spallone, Js.

      Argued February 6
    decision released July 30, 1985

      Louis B. Todisco, with whom, on the brief, was Stephen E. Ronai, for the appellant (plaintiff Arnold J. Ryder).

      Richard J. Lynch, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant department of health services).
   Dupont, C.P. J.

The plaintiff, a licensed nursing home administrator, was arrested, pleaded nolo contendere to five counts of larceny and was sentenced after a grand juror completed a private inquiry into medicaid provider fraud at the nursing home of which he was the administrator. The report of the grand juror, the transcript, and all of the evidence relating thereto were sealed by court order. Thereafter, the department of health services instituted administrative proceedings against the plaintiff, charging him with unacceptable conduct as a nursing home administrator in violation of General Statutes § 19a-517 (b) (1). Under that section, a person licensed to practice as a nursing home administrator may be disciplined, including the revocation of his license, if found to have “engaged in fraud or material deception in the course of professional services or activities . . . .”

The plaintiff sought to prevent the report of the grand juror, the transcript and other evidence from being released to the department. The department, also referred to hereinafter as the defendant, cross applied to the trial court to allow such release and to release the witnesses and the plaintiff from any order of secrecy. The plaintiff appeals from the denial of his application and the granting of the defendant department’s application. We find error.

The plaintiff claims that the trial court erred (1) in not requiring the department to show a particular need and compelling circumstances before ordering the various releases, (2) in allowing the fruits of a grand jury investigation to be released to an administrative agency for use by it in a civil administrative proceeding and (3) in releasing witnesses from an order of secrecy so that they might testify before a state administrative agency.

All of these claimed errors may be reduced to one issue. The question for resolution is what standard should be used to determine when sealed investigative grand juror materials may be made available to a civil governmental agency for use in a subsequent administrative proceeding against the target of a grand jury investigation after the grand jury has concluded its investigation, and after criminal charges against the target have been concluded by a judgment of guilty, following a plea of nolo contendere. No Connecticut case resolves this issue. The question raises the subsidiary question of whether federal case precedent should be followed and, if so, whether such cases require a preliminary showing by the agency of a particular and compelling need for the material or whether a balancing test weighing the traditional reasons for grand juror secrecy against the particular facts of the case will suffice. The trial court in this case did not require such a preliminary showing but, by using the reasons for the safeguarding of the confidentiality of federal grand juries as articulated in United States v. Sells Engineering, Inc., 463 U.S. 418, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983), concluded that these reasons were of little force within the context of this case and that such force as the reasons might have were “outweighed by the public interest in the efficient functioning of the administrative process.” In so concluding, the trial court looked to federal decisions for direction, but chose not to follow their path.

The plaintiff argues that the trial court erred in granting the department access to the grand jury materials, absent a showing of particularized need, for the purpose of preparing for and pursuing an administrative hearing on whether his license as a nursing home administrator should be revoked. He relies on federal case law for that proposition. United States v. Baggot, 463 U.S. 476, 479-80, 103 S. Ct. 3164, 77 L. Ed. 2d 785 (1983); United States v. Sells Engineering, Inc., supra, 442-46; Illinois v. Abbott & Associates, Inc., 460 U.S. 557, 103 S. Ct. 1356, 75 L. Ed. 2d 281 (1983). These cases all involve Rule 6 of the Federal Rules of Criminal Procedure.

The investigatory grand jury in Connecticut is governed by General Statutes § 54-47. General Statutes § 54-47 (g) provides that “the court shall direct whether, and to what extent, the report [of the grand juror] shall be made available to the public or interested parties.” Pursuant to the same statute, the trial court has the same power with reference to the transcript of the testimony. The trial court, pursuant to that authority, released the requested materials and the witnesses from their oath of secrecy. The predecessor of General Statutes § 54-47 (g) was enacted in 1941. Public Acts 1941, No. 158.

A rule on the federal grand jury was not contained in the Federal Rules of Criminal Procedure until the third draft of the rules, dated March 4,1942, was circulated. United States v. Sells Engineering, Inc., supra, 452-53, (Burger, C.J., dissenting); Orfield, The Federal Grand Jury, 22 F.R.D. 343, 346 (1959). The argument, thus, that General Statutes § 54-47 be interpreted in light of the decisional authority pertaining to federal grand jury disclosure is persuasive, not because the Connecticut statute was patterned on the federal rule but because both originate from the common law requirement that grand jury testimony be secret. The indicting grand jury governed by federal rule and the investigatory grand jury governed by § 54-47 are similar in function.

Prior to the enactment of General Statutes § 54-47, Connecticut’s courts had sought direction from federal case law on issues involving grand jury proceedings. State v. Hayes, 127 Conn. 543, 577-80, 18 A.2d 895 (1941); State v. Kemp, 126 Conn. 60, 67, 9 A.2d 63 (1939). Our Supreme Court, in the context of a grand jury proceeding pursuant to General Statutes § 54-45 (a), relying on federal case law, stated that “the traditional secrecy of grand jury proceedings is well entrenched in the common law—‘older than our Nation itself,’ Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S. Ct. 1237, 3 L. Ed. 2d 1323 (1959) . . . .” State v. Canady, 187 Conn. 281, 287, 445 A.2d 895 (1982).

“Rule 6 (e) of the Federal Rules of Criminal Procedure codifies the traditional rule of grand jury secrecy.” United States v. Sells Engineering, Inc., supra, 425; Illinois v. Abbott & Associates, Inc., supra, 566 n.11. That portion of the rule authorizing a court to disclose grand jury materials provides no substantive standard governing the issuance of such orders. United States v. Sells Engineering, Inc., supra, 442-43. The United States Supreme Court has “consistently construed the Rule, however, to require a strong showing of particularized need for grand jury materials before any disclosure will be permitted.” Id., 443. The standard was set forth in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979). The court commented: “Parties seeking grand jury transcripts under Rule 6 (e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only the material so needed.” Id., 222. The United States Supreme Court also provided the typical instances where the particularized need is met, as where “a litigant seeks to use ‘the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like.’ Such use is necessary to avoid misleading the trier of fact. Moreover, disclosure can be limited strictly to those portions of a particular witness’ testimony that bear upon some aspect of his direct testimony at trial.” Id., 222 n.12.

An historical analysis of General Statutes § 54-47 is necessary so that the federal case law can be compared to the practice in Connecticut. Our Supreme Court has analogized the investigatory inquiry pursuant to General Statutes § 54-47 to the common law grand jury which could inquire into crimes. State v. Moynahan, 164 Conn. 560, 565, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973); State v. Menillo, 159 Conn. 264, 273, 268 A.2d 667 (1970). Indeed, the only material distinction between the two is that the common law grand jury had the authority or power to issue an indictment. State v. Moynahan, supra, 565. It is appropriate, thus, to examine the case law concerning Connecticut’s common law grand jury.

In State v. Fasset, 16 Conn. 457 (1844), the defendant moved to quash the indictment handed down by the grand jury. In support thereof, the defendant sought to elicit testimony from the grand jurors and the witnesses before the grand jury impeaching the grand jury’s verdict. Citing the policy of the law that such proceedings be in secret, the court ruled that the defendant’s evidence was inadmissible.

Connecticut has limited the lifting of the veil of grand jury secrecy of the testimony before it to prosecutions for perjury and to contradicting witnesses. State v. Coffee, 56 Conn. 399, 412, 16 A. 151 (1888). In that case, the admission of the grand juror’s testimony concerning the defendant’s declarations was upheld because they were not part of the grand jury proceedings. Id., 413. Those two cases consider the issue of grand jury secrecy in the context of the constitutional grand jury empowered to indict. State v. Menillo, supra, 274. The importance of the preservation of grand jury secrecy was reiterated in State v. Kemp, supra, 68, which considered grand jury secrecy in the context of the general investigatory grand jury known to the common law. In fact, the policy advanced there to provide for transcribing the testimony before the grand jury was to insure a record for any further prosecution for perjury. Id.

In State v. Hayes, supra, another case involving the general investigatory grand jury known to the common law, the defendants claimed that the trial court erred in denying their request to inspect the grand jury minutes. The court stated that “[ejven where a defendant is indicted by a grand jury, he has no right to inspect the testimony taken before it and the matter is at most within the discretion of the trial court, to be exercised only for strong reasons and rarely, if ever, where the purpose is merely to assist him in preparing his defense.” Id., 580. Again, the court recognized that the veil of secrecy was generally lifted only for prosecutions for perjury and for use in contradicting witnesses. Id.

Moreover, that case involved the defendants’ request for the testimony of two of the state’s witnesses because of an apparent contradiction between certain testimony elicited at the trial from that elicited before the grand jury. The trial court examined the testimony of the witnesses and released only the pertinent portions of the testimony to the defendants in the interests of preserving grand jury secrecy. Our Supreme Court upheld this disposition, concluding that it was amply justified. Id., 601-602. The policy of grand jury secrecy is thus entrenched in the common law.

In the context of General Statutes § 54-45a which relates to an indicting grand jury, the secrecy of the testimony obtained during the proceedings before it remains inviolate unless, in the discretion of the trial court, it is persuaded that statements made there are inconsistent with statements made at trial, or that the testimony is needed to impeach a witness or to attack the credibility of a witness. State v. Burns, 194 Conn. 469, 472-73, 481 A.2d 1077 (1984); State v. Maldonado, 193 Conn. 350, 478 A.2d 581 (1984); State v. Canady, supra. In the latter case, the court stated that any change in the traditional secrecy of grand jury proceedings, which is well entrenched in the common law, must be strictly construed. Id., 287. Further, the discretion of the trial court exercised to permit disclosure should be for strong reasons only. State v. Burns, supra, 473. That case relies on State v. Hayes, supra, 580, which involved the common law grand jury for that proposition. “Particularized need” and the phrase “strong reasons” connote a similar standard for the exercise of the trial court’s discretion.

All these cases form the backdrop on which General Statutes § 54-47 (g) must be interpreted, particularly since its language is virtually unchanged from that of its statutory predecessor of 1941. No radical departure from the long standing policy of preserving grand jury secrecy which is well entrenched in the common law is warranted unless the language of the statute unequivocally expresses such an intent. Gomeau v. Forrest, 176 Conn. 523, 527, 409 A.2d 1006 (1979); see Illinois v. Abbott & Associates, Inc., supra, 572-73.

The Connecticut legislature has not attempted to change the basic precept of the common law which guaranteed the concealment of grand jury proceedings, nor has it chosen to provide any guidelines for the release of a grand juror’s report or the transcript of grand jury proceedings other than to state that the court “shall direct whether, and to what extent, the report shall be made available to the public or interested parties.” Without statutory parameters, case precedent, both federal and state, must be the trial court’s shepherd in determining what tethers may bind the discretion given to the court by the statute. Both Rule 6 and General Statutes § 54-47 provide for a general rule of secrecy. The scope of each, of necessity, lies in historical considerations and in judicial interpretation. See note, “Administrative Agency Access to Grand Jury Materials,” 75 Colum. L. Rev. 162 (1975).

Federal cases have required a showing of “particularized need” before the traditional secrecy of grand jury proceedings may be disturbed and Connecticut cases have required a showing of “strong reasons.” This court is persuaded that it is appropriate to consult federal case law in the absence of a Connecticut Supreme Court precedent and in the absence of any substantive state statutory guide. We thus hold that the public or interested parties seeking access to grand jury materials must first demonstrate a particularized need.

This holding is spawned not only by federal case law but by traditional considerations which form the basis for that case law. Secrecy is a safeguard for the grand jury process itself and prevents the use of that process as an instrument to aid in future civil proceedings. Grand juries are aids to the criminal justice system. To use grand jury material for civil purposes under the guise of present expediency, and without a compelling and special need, is to threaten important rights. “A number of serious consequences flow from the administrative agencies’ increased access to grand jury materials. To the extent that access is gained to information unobtainable by the use of the agencies’ own investigative procedures, the limits on agency power which Congress sought to build into the statutes are circumvented.” Id., 178-79.

A grand jury in this state has vast powers to conduct a general inquiry into criminal activity, without specifying a particular crime or person to be investigated. General Statutes § 54-47 is a legislative response to history and to a need of the public to prevent criminal activity and to prosecute those responsible for such criminal activity. The release of what is learned by such a massive intrusion on privacy, without the usual procedural and evidentiary protections available at trial, should only be sparingly granted to an administrative agency within specific judicial borders of discretion.

In this case the defendant has already been found guilty of five counts of larceny. The elements of larceny include (1) an intent (2) to deprive another of property and (3) the wrongful taking, obtaining or withholding of such property from an owner. General Statutes § 53a-119. The elements of wrongdoing for revocation of a nursing home administrator’s license as described in General Statutes § 19a-517 (b) are not coterminous. Questions asked of the defendant and answered by him during the grand jury proceeding may have been relevant to the crime of larceny, and some may not have been relevant to the crime. Those without relevancy to the crime may, however, be relevant to the standards for revocation of the plaintiff’s license. If this information could not have been obtained through use of the department’s own investigative powers, to provide the department with access to it is, in effect, to give the department the powers of a grand jury. Without a particular or compelling need to do so, and without a legislative mandate to do so, the department is not entitled to the information.

To grant access to an agency of grand jury material is to invade the grand jury’s secrecy, but to deny access to it may require a duplication of effort. Note, “Facilitating Administrative Agency Access to Grand Jury Material,” 91 Yale L. J. 1614,1617 (1982). Until the legislature enacts an amendment, however, to General Statutes § 54-57, it remains more important to preserve secrecy than to give an administrative agency access to material without some good cause, other than a claim of duplicative effort.

Although many of the reasons for secrecy of grand jury proceedings no longer obtain after the conclusion of the proceedings and after the conviction of crimes stemming from the proceedings, some do. Two reasons are the protection of witnesses from retaliation in the event that a conviction is had without a trial and the protection of the integrity of the functioning of future grand juries. Those witnesses who learn that their testimony was not sacrosanct will be deterred from future uninhibited testimony, as will others not involved in the particular grand jury process.

The trial court, after noting that most of the factors militating against disclosure were not present, concluded that disclosure was warranted because of the public interest in the efficient functioning of the administrative process. This argument advanced in support of access was rejected by the United States Supreme Court as in and of itself not justifying a breach of grand jury secrecy. United States v. Sells Engineering, Inc., 463 U.S. 418, 431, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983).

The department in this case also asserted that access to the grand jury material is needed to insure that the plaintiff’s testimony does not change. A similar argument was proffered in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979), and the Supreme Court stated that after the witness testifies at a deposition or at trial, his prior testimony should be examined and then the court should decide whether and to what extent disclosure is warranted. Douglas Oil Co. v. Petrol Stops Northwest, supra, 228-29. The trial court here did not defer acting until the plaintiff testified at the administrative proceeding, nor did it require the department to make an initial showing of a particular need or a compelling reason for release of the material.

This court finds that the trial court abused its discretion under the circumstances by granting access to the transcript and the report to the department.

The order concerning the release of the witnesses from any order of secrecy, the department correctly concedes, depends on the outcome as to whether access to the transcript should be granted. State v. Fasset, supra, 469-70; but see State v. Coffee, supra. This court therefore concludes that the trial court also erred in releasing the witnesses from any order of secrecy.

By holding that the trial court erred in releasing the grand juror’s report and transcript since the department here failed to establish the requisite particularized need, this court does not foreclose the department from satisfying that requirement when this action is remanded to the trial court. Further, the department has not established that the discovery tools provided to it by statute will not suffice in yielding access to the same material that the department seeks through the release of the grand juror’s report and the transcript proceeding. In exercising its regulatory jurisdiction over nursing home administrators, pursuant to General Statutes § 19a-14 (c), the department has the authority to “administer oaths, issue subpoenas, compel testimony and order the production of books, records and documents. If any person refuses to appear, to testify or to produce any book, record or document when so ordered, a judge of the superior court may make such order as may be appropriate to aid in the enforcement of this section . . . .” General Statutes § 19a-14 (a) (10).

Requiring the department to exhaust the discovery tools provided to it by statute and regulation before recourse to the grand juror’s report and the transcript of the proceeding may avoid the affirmative mischief feared by the United States Supreme Court in Sells, which could result from carte blanche access to a grand juror’s report and the transcript of the proceeding on the sole claim that the public interest in the efficient functioning of the administrative process mandated release. United States v. Sells Engineering, Inc., supra, 431-35. Some of the concerns expressed by the United States Supreme Court in the release of grand jury testimony, absent a showing of particularized need, were that the integrity of the grand jury may be injured by the manipulation of the process to ferret out evidence useful in a civil proceeding, and the fundamental unfairness of allowing a governmental agency to bypass the discovery tools provided to it by statute and regulation, which contain procedural and substantive restraints on the agency’s discovery junket, by permitting access to grand jury proceedings where the governmental body is relatively unregulated in its use of discovery techniques. Id., 432-34.

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

In this opinion the other judges concurred.

       The state’s attorney for the criminal grand jury investigation is not a party to this appeal. That office, however, took the position in the trial court that no documents should be released but that the witnesses should be released from any order of secrecy. Neither party has raised any jurisdictional problem with this appeal. Unlike In Re Investigation of the Grand Juror into the Bethel Police Department, 188 Conn. 601,452 A.2d 935 (1982), the trial court’s decision regarding release was not sua sponte but upon the application and cross application of the parties. It is, therefore, concluded that an appeal lies.

       Rule 6 of the Federal Rules of Criminal Procedure, in pertinent part, provides:
      “(e) recording and disclosure of proceedings. . . .
      (2) GENERAL RULE of SECRECY. A grand juror . . . an attorney for the government, or any person to whom disclosure is made under paragraph (3) (A) (ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. . . .
      (3) EXCEPTIONS.
      (A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to—
      (i) an attorney for the government for use in the performance of such attorney’s duty; and
      (ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law.
      (B) Any person to whom matters are disclosed under subparagraph (A) (ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney’s duty to enforce federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made.
      (C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made—
      (i) when so directed by a court preliminarily to or in connection with a judicial proceeding;
      (ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury; or
      (iii) when the disclosure is made by an attorney for the government to another federal grand jury.
      If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct. . . .
      (5) closed hearing. Subject to any right to an open hearing in contempt proceedings, the court shall order a hearing on matters affecting a grand jury proceeding to be closed to the extent necessary to prevent disclosure of matters occurring before a grand jury.
      (6) sealed records. Records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury.”
      Rule 6 (e) (3) has been amended, effective August 1, 1985, in pertinent part, as follows:
      (A) (ii) “such government personnel (including personnel of a state or subdivision of a state) as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law.”
      (B) “Any person to whom matters are disclosed under subparagraph (A) (ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney’s duty to enforce federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made, and shall certify that the attorney has advised such persons of their obligation of secrecy under this rule.”
      (C) (iv) “when permitted by a court at the request of an attorney for the government, upon a showing that such matters may disclose a violation of state criminal law, to an appropriate official of a state or subdivision of a state for the purpose of enforcing such law.”

       General Statutes § 54-47, in pertinent part, provides:
      “(a) Whenever it appears to the superior court for any judicial district that the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed within the judicial district, said court may order an inquiry to be made into the matter, to be conducted before any judge, state referee, or any three judges of said court designated by it. . . .
      “(g) At the conclusion of such inquiry the judge, referee or judges conducting the inquiry shall file with the court a report and the court shall direct whether, and to what extent, the report shall be made available to the public or interested parties. Any transcript of testimony taken at the inquiry shall likewise be filed with the court and it shall have the same powers with reference to it as it has with reference to the report; provided any person accused of crime as a result of the inquiry shall have access at all reasonable times to the transcript of his own testimony given by him in such inquiry.”

       It is not certain that the witnesses were given an oath of secrecy. General Statutes § 54-47 (g) says nothing about documentary evidence or about witnesses in other proceedings. On its face, the statute only applies to the grand juror report and transcripts.

       Public Acts 1941, No. 158, provided: “Whenever it shall appear to the superior court in any county that the due administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed within the county, said court may order an inquiry to be made into the matter, to be conducted before any judge of said court or a state referee. . . . At the conclusion of such inquiry the judge or referee conducting the same shall file with the court a report and the court shall direct whether, and to what extent, such report shall be made available to the public or interested parties; and any transcript of testimony taken at such inquiry shall likewise be filed with the court and it shall have the same powers with reference to it as it has with reference to the report; provided that any person accused of crime as a result of such inquiry shall have access at all reasonable times to the transcript of his own testimony given by him in such inquiry.”
      The bill, originally introduced by Harold E. Mitchell, a special assistant state’s attorney involved in State v. Hayes, 127 Conn. 543, 18 A.2d 895 (1941), did not provide for access to the accused of a transcript of his testimony at the inquiry.


text:
    Lois DeLorenzo v. The Great Atlantic and Pacific Tea Company, Inc., et al.
    (2193)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued May 8—decision
    released July 30, 1985

      Daniel V. Presnick, for the appellant-appellee (plaintiff).

      Brian M. Gildea, for the appellees-appellants (defendants).
   Daly, J.

The plaintiff brought this negligence action to recover damages for personal injuries she sustained in a fall allegedly caused by the defective condition of a sidewalk under the control of the defendant Great Atlantic and Pacific Tea Company, Inc. (A & P), as tenant, and the defendant Mary Lee Steigler, as owner. The defendants denied the material allegations of the plaintiffs complaint, and filed a special defense in which they claimed that the plaintiffs injuries were caused by her own negligence. The defendants moved for a directed verdict at the conclusion of the plaintiff’s case. The trial court reserved judgment on the motion and submitted the case to the jury. The jury was instructed on the doctrine of comparative negligence and returned a verdict in favor of the plaintiff for $9000, which was reduced 50 percent by the plaintiff’s comparative negligence to $4500.

From the denial of her motion to set aside the verdict as being inadequate, the plaintiff has appealed. The defendants have filed a cross appeal from the trial court’s failure to direct a verdict in their favor.

The plaintiff claims that the trial court erred (1) in not setting aside the jury verdict as being inadequate, (2) in not setting aside the jury verdict as against the weight of the evidence on the issue of comparative negligence, (3) in giving a supplemental charge to the jury when the jury claimed to be unable to reach a decision, and (4) in not dismissing the jury when it indicated that it was deadlocked.

Since the sole issue which the plaintiff requested the trial court to decide at the hearing on the motion to set aside the verdict concerned the adequacy of the verdict, we confine a full review to that issue.

The question for this court to decide is “ ‘whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.’ McKirdy v. Cascio, 142 Conn. 80, 86, 111 A.2d 555 [1955].” Camp v. Booth, 160 Conn. 10, 12, 273 A.2d 714 (1970); Marin v. Silva, 156 Conn. 321, 323, 240 A.2d 909 (1968).

On appeal, we determine whether the trial court could legally act as it did in exercising its large discretion, and not whether we would make the same ruling. Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972). The decision of the trial court will not be disturbed unless there are persuasive reasons. Id., 27. “A mere doubt of the adequacy of the verdict is an insufficient basis for such action. . . . A conclusion that the jury exercised merely poor judgment is likewise insufficient.” (Citations omitted.) Id., 28.

The trial court’s memorandum of decision indicates that hospital and medical bills totalling $2438.55 were submitted to the jury along with a property damage claim of $500. A15 to 20 percent disability of the plaintiff’s left hand due to this fall was also claimed. The extent of the injuries which the plaintiff sustained was hotly contested, as was the causal relationship between the accident and the injuries claimed.

The extent to which the jury found the plaintiff’s evidence on this and other matters to be credible is, of course, unknown. Campbell v. Gould, 194 Conn. 35, 39, 478 A.2d 596 (1984). The jurors may have concluded that the claimed permanent injury was psychogenic. The jury could reasonably have concluded, on the evidence presented, that the damage award was a reasonable compensation for the injuries sustained by the plaintiff. We conclude that the trial court did not clearly abuse its discretion in refusing to set aside the verdict. Birgel v. Heintz, supra, 33-34.

The defendants moved for a directed verdict at the conclusion of the plaintiff’s case, claiming that there was no evidence of actual or constructive notice of any defect on the part of the defendants. Thereafter, however, the defendants never filed a motion to set aside the verdict. The scope of our review of the defendants’ claim on the cross appeal is, therefore, limited to a plain error standard. Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 183, 485 A.2d 1360 (1985).

The jury may well have inferred that the size of the depression in the concrete sidewalk, its proximity to an exit door of the A & P and the absence of debris surrounding it, constituted sufficient evidence of constructive notice to the defendants of its existence. Thus, an examination of the record discloses no such plain error.

There is no error.

In this opinion the other judges concurred.

       By not presenting the other claim to the trial court in that motion, the plaintiff reduced the scope of our review of those claims on appeal to the plain error standard. See Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 183, 485 A.2d 1360 (1985). We have reviewed those claims and find that they do not involve plain error.


author: Glass, J.

text:
    Marvin S. Savin v. National Personnel Consultants, Inc., et al.
    (2617)
    Dupont, C.P.J., Borden and Glass, Js.
    Argued June 10—decision
    released July 30, 1985

      Eric Onore, with whom, on the brief, was Stephen F. McEleney, for the appellant (named defendant).

      Glenn T. Terk, with whom, on the brief, was Mark C. Greer, for the appellee (plaintiff).
   Glass, J.

This is an appeal from an order granting a prejudgment remedy to the plaintiff against the defendants.

This action was brought by the plaintiff, Marvin S. Savin, against the defendants, Ann Roberts and National Personnel Consultants, Inc. (NPC), to recover damages in connection with the leasing and the reasonable value of the use and occupancy of office space. The individual defendant, Roberts, has not appealed the prejudgment remedy order. During the oral argument in this court, the corporate defendant, NPC, conceded that the trial judge’s order for a prejudgment remedy was appropriate. The sole question, therefore, in this case is whether it was error for the trial court to grant the plaintiff’s application for a prejudgment remedy in the amount of $35,000.

The facts underlying the plaintiff’s claims are as follows: At the time of the commencement of this action on April 12,1983, the plaintiff made an application for a prejudgment remedy requesting, inter alia, a garnishment of funds owed by several banks to NPC and Roberts, its president, in the amount of $35,000. In support of the application, the plaintiff attached a summons, an unsigned complaint, a proposed order, and two affidavits. The pleadings, including the unsigned complaint and attached documents, were served on the defendants and a hearing on the application was scheduled for May 9,1983. Thereafter, the hearing was continued from May 9,1983, and rescheduled for May 16, 1983.

The plaintiffs original unsigned complaint was in one count consisting of allegations that he had entered into a written lease with both defendants, and that both defendants had breached the lease causing the plaintiff to suffer money damages. On May 13, 1983, the plaintiff filed and served on the defendants a signed amended complaint in two counts. See Practice Book § 175. The amended complaint consists of not only separate but also different claims against the defendants. The first count consists of allegations that are essentially the same as the one count in the unsigned original complaint, except the lessee in the lease is alleged to be Roberts only. The second count consists of allegations that NPC occupied the subject premises and, as a result, the plaintiff is seeking money damages from the corporate defendant for the reasonable value of the use and occupancy of the premises. Thus, at the time of the hearing on the application, there were no claims against NPC under the written lease allegedly executed by the plaintiff and Roberts.

At the hearing, evidence was adduced showing that on June 2,1982, the plaintiff, as landlord, entered into a written lease with Ann Roberts “d/b/a National Personnel Consultants, Inc.,” as “tenant,” for a term of two years and nine months commencing on June 1, 1982, and terminating on February 28,1985. The plaintiffs rental agent, Ronald DiVicino, testified that the defendants vacated the premises without notice in December, 1982, and had failed to pay any rent for the period from November 1,1982, to the date of the hearing on May 16,1983. He stated that he had shown and advertised the premises and that a new tenant had agreed to take occupancy as of June 1,1983. Additional evidence was presented through DiVicino showing that the cost of renovating the premises for the new tenant, according to building standard allowances, was $12,425.16. He stated that the rent from June 1,1982, through February 28, 1983, was $26,995.89, payable in installments of $2249.66 per month, and that the rent from March 1, 1983, to February 28, 1984, was $34,108.06, payable in installments of $2842.34 per month. The parties stipulated that the balance of the rent due under the provisions of the lease was $17,525.66, making a total for renovation and rent of $29,950.82. Roberts was called as a witness and testified that she was the president and a director of NPC, that the corporate defendant occupied the premises during the period claimed by the plaintiff, and that the monthly rent due for the period from June to October, 1982, was paid by corporate checks of the defendant corporation with the exception of one payment.

The trial court granted the plaintiff’s application for a prejudgment remedy against both defendants in the amount of $35,000. From that decision NPC appeals to this court.

NPC’s concession that the prejudgment remedy order was appropriate with respect to the second count of the amended complaint leaves for consideration only its challenge on the narrow issue of the amount of the order. Particularly relevant to this issue and a dominant concern in its determination are the allegations in the amended complaint. “The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. Board of Education v. Commission on Human Rights & Opportunities, 177 Conn. 75, 77, 411 A.2d 40 (1979); Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint. Kawasaki Kisen Kaisha, Ltd. v. Indomar, Ltd., 173 Conn. 269, 272, 377 A.2d 316 (1977); Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969); Nash Engineering Co. v. Norwalk, 137 Conn. 235, 239, 75 A.2d 496 (1950). ‘A plaintiff may not allege one cause of action and recover upon another. Facts found but not averred cannot be made the basis for a recovery.’ Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); Schaller v. Roadside Inn, Inc., 154 Conn. 61, 65, 221 A.2d 263 (1966).” Francis v. Hollauer, 1 Conn. App. 693, 694-95, 475 A.2d 326 (1984).

In his amended complaint, the plaintiff has restricted his cause of action against NPC to the reasonable value of the use and occupancy of the office space during the period of time that the defendant NPC occupied the premises. Whether the two affidavits, other documentary evidence and the testimony at the hearing would have been sufficient to support a finding of the probable validity of the plaintiff’s claim against NPC, based upon the lease, is no longer an issue in this case because in the amended complaint, all claims arising from the lease and its breach are against Roberts in the first count and are abandoned and excluded from the allegations in the second count against NPC. Most of the evidence at the hearing pertaining to damages concerned the damages suffered as a result of the alleged breach of the lease. Since the liability of NPC under the amended complaint is limited to the claim of the reasonable value of its use and occupancy of the premises, the plaintiff should be allowed to present evidence of the damages suffered, if any, in support of this claim. See Essex Group, Inc. v. Ducci Electric Co., 181 Conn. 524, 436 A.2d 16 (1980); Mullai v. Mullai, 1 Conn. App. 93, 94-95, 468 A.2d 1240 (1983). We have considered the other claims asserted by the parties and have found them to be lacking in merit or irrelevant to the issues joined in this case.

There is error in part, the judgment is set aside to the extent that it granted a prejudgment garnishment in the amount of $85,000 against the defendant National Personnel Consultants, Inc., and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.


author: Noren, J.

text:
    Zuckerman Group v. William M. Raveis, Jr.
    (2542)
    Dupont, C.P.J., Borden and Noren, Js.
    Argued April 18—decision
    released July 30, 1985

      Stanton H. Lesser, with whom, on the brief, was Robert K. Lesser, for the appellant (defendant).

      John R. Bryk, for the appellee (plaintiff).
   Noren, J.

This is an appeal by a tenant under a commercial lease from a judgment rendered by the trial court for the plaintiff landlord. The court found that the parties exercised an option and entered into an extension of the written lease and that the tenant thereafter breached the terms of the contract by failing to pay rent as it became due, and it awarded damages to the plaintiff. The defendant tenant appeals, claiming that no lease ever existed because the signatory to it was not, in fact, the owner of the premises, that he is not estopped from asserting the invalidity of the lease, that if a lease existed, the option to extend was not exercised and, if exercised, was not valid, and finally, that the landlord did not use reasonable efforts to mitigate damages.

The facts, essentially, are not in dispute. In October of 1981, the defendant entered into a written lease for the rental of premises at 56 Post Road West in Westport for the period of one year commencing November 15,1981. The lessor was described as Robert Zuckerman, administrator of the estate of Herman A. Zuckerman. The lease provided for an option to extend the term to be exercised sixty days before its termination or by September 15, 1982. This option gave the landlord the absolute discretion to reject the tenant’s exercise of the option to extend if the landlord itself intended to use or to alter, improve or sell the premises.

The time for a request from the defendant for extension of the written lease having passed, Robert Zuckerman wrote to the defendant asking whether an extension was sought. The defendant wrote back that he was “in a position to renew the lease” and requested that Zuckerman contact the defendant’s attorney. Conversations occurred and correspondence ensued among Zuckerman, the defendant and the defendant’s attorney. In a letter to the defendant dated October 27, 1982, sent in care of the defendant’s attorney, Zuckerman consented to an “extension of the . . . lease” until November 14, 1983, and the defendant thereafter made payments in the amounts provided in the option until January 15,1983, when the defendant left the premises, having given written notification on December 14, 1982, of his intention to do so.

At the conclusion of the trial, the defendant filed a request to amend his answer to add a fourth special defense, namely, that the lease was voidable for misstating the name of the lessor as the estate of Herman A. Zuckerman, which on the date of the lease did not have title to the property. Although the trial court discussed the merits of the proposed special defense in its memorandum of decision, it is quite clear that the request to amend was denied. The Supreme Court has clearly enunciated the policy of this state regarding amendments. It is within the discretion of the trial court to grant or deny an amendment, and a decision to deny an amendment diming a trial will not be disturbed unless there is a clear abuse of that discretion. Lawson v. Godfried, 181 Conn. 214, 216-17, 435 A.2d 15 (1980).

No such abuse of discretion is clearly evident here where the amendment was offered after trial; Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155-57, 239 A.2d 493 (1968); and where it purported to conform the pleadings to the proof, but in reality, raised an issue neither previously pleaded nor litigated before the court. See Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 797, 462 A.2d 1043 (1983). That being so, we do not consider the defendant’s claims of error regarding the validity of the original lease and whether the defendant is estopped from questioning its validity.

The trial court was not in error in rejecting the defendant’s third special defense, namely, that the option was a nullity as lacking in mutuality. What is involved here is not a right to cancel or terminate the lease “at will”; see Stern & Co. v. International Harvester Co., 148 Conn. 527, 531, 172 A.2d 614 (1961); but, as the trial court found, a limited right in the landlord to reject an extension of the lease. The original lease here provided for an option to extend under certain conditions. See Nowesco, Inc. v. Community Petroleum Products, Inc., 38 Conn. Sup. 585, 456 A.2d 340 (1982). Under these circumstances, the conditions under which the landlord could reject an extension were for its benefit and could, as a matter of law, be waived by it. Adam v. Consolini, 135 Conn. 321, 324, 64 A.2d 44 (1949); Johnson v. Mary Oliver Candy Shops, Inc., 116 Conn. 86, 90, 163 A. 606 (1933). Such a waiver, however, does not demonstrate lack of mutuality.

The distinction made by the defendant between a renewal of a lease and the extension of a lease, and what is required to effect each; see Johnson v. Mary Oliver Candy Shops, Inc., supra, 89; is here one without a difference. While it is clear that a mere holding over after the expiration of the term of a lease does not create a new lease; id., 90; General Statutes § 47a-3d; where the lease provides for an option for an extension or for a renewal, whether the option has been exercised is a question of fact for the trial court, which is decided by looking to the intention of the parties as expressed in their words and deeds. See Johnson v. Mary Oliver Candy Shops, Inc., supra. The court’s finding that the option was exercised is not clearly erroneous and must stand.

The trial court heard testimony regarding whether the parties in fact extended the lease and whether the plaintiff mitigated its damages as required under our law, subjects of the first and second special defenses. Sufficient evidence was submitted from which the trial court could have found, as it did, those issues for the plaintiff. What we emphatically stated in American Frozen Foods, Inc. v. International Brotherhood of Teamsters, 3 Conn. App. 300, 301-302, 487 A.2d 570 (1985), we repeat here. This court cannot and therefore will not retry factual issues.

There is no error.

In this opinion the other judges concurred.

       The “RIDER TO LEASE BETWEEN ESTATE OF HERMAN A. ZUCKERMAN, LANDLORD, AND WILLIAM M. RAVEIS, TENANT” provided, in part, as follows: “38. Tenant may extend the term hereof for one year at an annual rent of $26,400 upon the giving of written notice to Landlord on or before September 15,1982, provided, however, that Landlord, in Landlord’s absolute discretion, may reject any such extension if Landlord shall intend to use the demised premises for Landlord’s own use or to alter, improve or sell the demised premises by the giving of written notice to Tenant on or before October 1,1982. If Landlord shall reject an extension of the lease by Tenant, or if Tenant shall fail to give the notice as hereinbefore provided, then Tenant shall vacate the demised premises in accordance with the terms of this lease and this Article 38 shall be null and void.”