text:
    State of Connecticut v. Julio Arroyo, Jr.
    (5456)
    Dupont, C. J., Bieluch and Foti, Js.
    Argued January 14 —
    decision released March 29, 1988

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, was Paul Soulsby, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims on appeal that the court erred (1) in denying his motion to suppress his identification, (2) in allowing the state to recall a witness, (3) in enforcing a sequestration order, (4) in its instructions to the jury, and (5) in allowing the defendant’s statement into evidence. We find no error.

From the evidence presented, the jury could reasonably have found the following facts. On Thursday, September 21, 1985, in the late afternoon, Donald Penwarden was stabbed while walking on a street in New Britain. Penwarden lived in New Britain and worked for Amodio Movers. After leaving work at 4:30 p.m., he went to a bar where he consumed at least two alcoholic drinks. After leaving the bar he spotted the defendant whom he thought was a former coworker who had borrowed money from him. Penwarden asked for the return of the money, and when the defendant denied ever working at Amodio and owing Penwarden money, a brief fight ensued. Thereafter, Penwarden continued his walk when a few minutes later he heard someone yell “Hey, hey, hey.” He turned and saw three “kids” on bicycles and a fourth, whom he recognized as the one he had just fought, running at him with a knife in his hand. He knocked the defendant to the ground while trying to get the knife away from him. The defendant got up, opened the knife and began swinging it wildly. Penwarden became frightened and started running away. He was chased, stabbed by his assailant in the chest and began bleeding profusely. After the stabbing, all of the “kids,” including the assailant, ran away. A passing motorist, Patricia Gomes, saw what had happened and drove the victim to the hospital where he was operated on for a large stab wound in the right ventricle of his heart. Penwarden was released from the hospital about two weeks later.

I

The defendant’s first claim is that the trial court erred in denying his motion to suppress an out-of-court identification and by admitting a subsequent in-court identification. The defendant claims that the out-of-court identification was unnecessarily suggestive and unreliable under the totality of the circumstances, thereby tainting the in-court identification.

The following facts are relevant to the defendant’s claim. On October 8,1985, eighteen days after the incident, an anonymous phone call was received by the police indicating that the defendant was the person responsible for the assault. The defendant was not at home when the police arrived there a few hours later. That same day at approximately 12 noon, the defendant, his father and a female friend appeared at police headquarters, where he denied any involvement in the assault. He was not placed under arrest, nor was he in police custody at this time. While the defendant was being interviewed, the police called Penwarden and asked that he come to police headquarters. While being transported, Penwarden was told by the police that there was a suspect they wanted him to see. The police vehicle was parked one hundred to two hundred feet outside of headquarters. Five to ten minutes later the defendant emerged and Penwarden spontaneously stated that the defendant looked like his assailant. In order to obtain a closer view, the officers followed the defendant to a nearby parking lot where they pulled up alongside of the defendant’s vehicle. At this point, Penwarden positively identified the defendant as his assailant. The defendant claims that this identification was unnecessarily suggestive.

The due process clause of the fourteenth amendment to the United States constitution requires the exclusion of identification evidence when the procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). “In order to establish that a pretrial identification procedure has violated a defendant’s constitutional right to due process, the defendant must prove (1) that the identification procedure was unnecessarily suggestive, and (2) that the resulting identification was not reliable under the totality of the circumstances.” State v. Hunt, 10 Conn. App. 404, 407, 523 A.2d 514 (1987). Whether such an identification procedure is unnecessarily suggestive, depends on the facts and circumstances of each case. State v. Findlay, 198 Conn. 328, 337-38, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).

Addressing the defendant’s claim that the identification procedure was unnecessarily suggestive, we find that the trial court had sufficient evidence to support its conclusion to the contrary.

Even if we were to assume, arguendo, that the identification procedure in this case was impermissibly suggestive, the identification was nevertheless reliable under the totality of the circumstances. See State v. Hunt, supra, 409. Penwarden was able to observe the defendant closely on the day of the incident, first during the initial argument and then for about ten minutes during the assault. He was able to and did in fact give a description of the assailant to the police. Only eighteen days had elapsed between the day of the stabbing and that of the identification. When the defendant emerged from police headquarters, Penwarden spontaneously identified the defendant as looking like the assailant and, upon a closer look, positively identified him. Penwarden’s “reluctance to make an immediate uncategorical identification of the defendant is not evidence of an initial misidentification but rather demonstrates the conduct of a witness exercising independence of judgment under stressful circumstances.” State v. Perez, 198 Conn. 68, 74, 502 A.2d 368 (1985). Under the totality of circumstances, the out-of-court identification was reliable, and the trial court did not err in refusing to suppress it.

Since the out-of-court identification was admissible, it could not have tainted the in-court identification made four months thereafter. State v. Guertin, 190 Conn. 440, 458, 461 A.2d 963 (1983).

II

The defendant next argues that the court improperly permitted a witness to be recalled during the state’s case-in-chief in order to make an in-court identification.

Patricia Gomes, an eyewitness to the assault, described, during her testimony, the assailant of Penwarden, but was unable to identify that person in court. The defendant, at the time, was sitting in the spectator section. Two days later, the state sought to recall her as a witness-in-chief for the purpose of making an identification. Gomes testified, in limine, that she had not recognized the defendant initially because his hair was a different color and style and because he was slouched down in his chair. Later during her testimony, the defendant turned his head and she recognized his profile; she attempted to tell a sheriff as she left the courtroom but was unsuccessful. After court was adjourned, she went to the state’s attorney’s office where she told Penwarden that she now recognized the defendant as

his assailant; she then told the state’s attorney the same when he came into the office.

The trial court has broad discretion in determining whether to permit a witness to be recalled. See State v. Reed, 174 Conn. 287, 304, 386 A.2d 243 (1978); State v. Vandemark, 77 Conn. 201, 206, 58 A. 715 (1904). In determining whether the trial court abused its discretion, every reasonable presumption should be given in favor of the trial court’s ruling. State v. Mitchell, 8 Conn. App. 598, 604, 513 A.2d 1268, cert. denied, 201 Conn. 801, 516 A.2d 887 (1986).

Our review of the record, transcript and briefs fails to disclose any abuse of the court’s discretionary function in allowing the recall of the state’s witness. The court specifically found that the state had not initiated contact with Gomes, but rather that it was she who had approached the state’s attorney, claiming that she had not had a sufficient opportunity to view those in the courtroom when she first testified, and that the defendant’s seat selection, at the back of the courtroom, had obscured her view of the defendant.

The defendant further contends that the in-court identification of him by Gomes was made under impermissibly suggestive circumstances and was not reliable. We cannot agree.

The witness made no pretrial identification. The only identification made was in court. “Generally, an in-court testimonial identification need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable misidentification.” State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986). The fact that the defendant may have been the only person in the courtroom resembling the assailant does not make such a confrontation unnecessarily suggestive. “ ‘[WJithout more, the mere exposure of the accused to a witness in the suggestive setting of a criminal trial does not amount to the sort of impermissible confrontation with which the due process clause is concerned.’ Middletown v. United States, 401 A.2d 109, 132 (D.C. App. 1979).” State v. Smith, supra, 470. The defendant’s right to cross-examination is his protection against the suggestiveness in any in-court identification confrontation, and any such weakness in that identification is grounds for assailing its weight rather than its admissibility. Id.

Ill

The defendant next contends that the court abused its discretion by excluding the defendant’s brothers from the courtroom at the time Gomes gave her in-court identification of the defendant. In particular, the defendant claims the court erred in denying him a public trial by enforcing its sequestration order pursuant to General Statutes § 54-85a.

The court granted the prosecution’s request for sequestration during Gomes’s testimony by excluding anyone who was a witness or a potential witness from the courtroom. The sequestration statute is unambiguous in its requirement that upon the request of either the prosecution or the defense, any witness may be sequestered during any portion of a trial “in which he is not testifying.” General Statutes § 54-85a. Here, the court did no more than comply with the express language of the sequestration statute when it excluded the defendant’s brothers who were potential witnesses.

Nor is there any merit to the defendant’s claim that he was denied a public trial in violation of his sixth and fourteenth amendment rights under the United States constitution and article first, § 8 of the Connecticut constitution. The defendant concedes that the court only excluded witnesses and potential witnesses from the courtroom. It is undisputed that the defendant’s brothers were potential witnesses. Thus, we are unable to conclude that the defendant was denied a public trial as the court’s order was limited to witnesses. State v. Sheppard, 182 Conn. 412, 415, 438 A.2d 125 (1980).

Finally, we note that the defendant’s claim that the prosecution subpoenaed the defendant’s brothers for the sole purpose of excluding them is not supported by the record. We, therefore, decline to consider this claim.

IV

The defendant next contends that the trial court erred in its instruction to the jury by telling them to focus their attention on a witness’ identification of the defendant as Penwarden’s assailant rather than her initial failure to identify him. The defendant claims this violated his rights to due process and a trial by an impartial jury.

The court, early in its instructions, made it clear that it was the jury’s recollection of the facts and evidence which should be given weight during their deliberations. Later, in its instructions, the court commented on the in-court identification, which constitutes the basis of the defendant’s appeal on this issue. Because the defendant has raised this claim for the first time on appeal, we will limit our review to determining whether the alleged error infringed on the defendant’s right to a fair trial. State v. Mack, 197 Conn. 629, 638, 500 A.2d 1303 (1985); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The portion of the charge challenged was as follows:

“A fifth factor is whether or not the identification by the eyewitness is the product or the result of that witness’s own recollection.
“Now, with respect to Patricia Gomes, in all of her testimony, as I recall, there is no indication that her identification of Mr. Arroyo was suggested to her by anybody else. Perhaps the critical time to focus in connection with this factor of suggestibility is the second time that she came to testify here in court.
“Now, she said, as I remember, that she was appearing here in court at her own wish. It was her own desire to do so. This was based on the fact that after she had been asked a crucial question during her first appearance in court, she had come to recognize the defendant on her own by observing him here in the court.”

Shortly thereafter, the court instructed that the final factor to be considered in respect to eyewitness identification, that of the credibility of the witness as follows:

“Now, with respect to the certainty of Miss Gomes’s identification of the defendant, everyone I am sure will recall that when she was asked that question by Mr. Soulsby — ‘Can you identify the defendant? Do you see him here in the court room?’ — the first time she said, ‘No,’ she didn’t.
“She testified later, however, that after she first said that, she had an opportunity to observe him more carefully or to observe all the people in the courtroom more carefully and at that time she said she spotted him and that was the impetus for her coming back into court. When she came back into court the second time, she said that although the hair is shorter and darker, that there is a facial resemblance and that, therefore, she could make an identification.”

The trial court first enumerated the factors which the jury must consider when evaluating identification testimony, then commented on the evidence which was relevant to each of those factors. The statements the defendant challenges were proper comment on the evidence which was relevant to the issue of identity. Although the court may have inadvertently and inaccurately told the jury that Gomes was asked “Can you identify the defendant,” when in fact she was asked if she could identify the “assailant,” such error was of no significance, and could not have misled the jury, particularly in view of the court’s admonition that the jury’s recollection should control.

The defendant concedes the “trial court may, in its discretion, make reasonable comments on the evidence.” State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985). The issue is whether the charge, read as a whole, presents the case to the jury so that an injustice will result. State v. Truppi, 182 Conn. 449, 458, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981). In reviewing the charge as a whole, we cannot find that the court instructed or otherwise advised the jury how to decide the case, nor did it improperly convey to that jury its opinion concerning the facts. Taken as a whole, the court’s instruction did not paint a blatantly one-sided picture which bolstered Gomes’s credibility, emphasizing her identification of the defendant as the assailant more than her initial failure to do so.

Y

Finally, the defendant claims that his rights under the fifth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution were violated when the state was permitted to introduce his statement into evidence in the absence of proof that such statement was preceded by a complete, accurate and understandable advisement of his rights, or that he had intelligently waived such rights.

The pertinent facts to this claim are as follows. On October 8,1985, at 12:30 p.m., the defendant, his father, and a woman friend went to police headquarters. The defendant understood and was able to communicate in English. After being advised of his rights in English, the defendant was given and signed a rights waiver form. He refused to voluntarily give a photograph, but, in response to a question, stated that he had been in a fight with a man wearing an Amodio shirt on Richard Street on September 21,1985, but not on Myrtle Street. He refused to make a written statement and left the station.

During the trial, the defendant filed a motion in limine to have his initial statement and his subsequent refusal to be photographed and respond to questions excluded as prejudicial and violative of his right to remain silent. The trial court granted the motion in part finding that, although the defendant arrived at the police station voluntarily and was advised of his rights, he could have had some idea of a custodial atmosphere in his mind. The trial court allowed into evidence the defendant’s initial responses to the questions he was asked while he was in the police station, but excluded evidence of his refusal to be photographed and answer further questions.

Although this claim was not properly preserved at trial, we find that it is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The claim that the defendant raises is an issue which, “by its terms, implicates a fundamental constitutional right.” State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert, denied, 204 Conn. 805, 528 A.2d 1152 (1987). The record, however, does not adequately support the defendant’s claim that the ruling by the trial court, allowing his initial statement into evidence, was of constitutional proportions. Id.

“ ‘Before one suspected of the commission of a crime is entitled to the warnings constitutionally required by Miranda, two conditions are required: the suspect must be in the custody of law enforcement officials . . . and the suspect must be subjected to interrogation.’ (Citations omitted.) State v. Vitale, 197 Conn. 396, 411, 497 A.2d 956 (1985); see State v. Stankowski, 184 Conn. 121, 136, 439 A.2d 918, cert, denied, 454 U.S. 1042, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981).” State v. Doehrer, 200 Conn. 642, 646, 513 A.2d 58 (1986), quoted in State v. Palmer, 206 Conn. 40, 62, 536 A.2d 936 (1988). The first condition was not met here.

A person is in custody only if, in view of all of the surrounding circumstances, a reasonable person would have believed that he was not free to leave. State v. Brown, 199 Conn. 47, 53, 505 A.2d 1225 (1986). The defendant voluntarily arrived at police headquarters. He was not placed under arrest. He refused to be photographed and declined to make a written statement. He was free to leave at any time he wanted and did leave within twenty minutes. Thus, the interview of the

defendant was not a custodial interrogation. “[Statements made by a defendant are admissible in evidence whether or not the Miranda warning has been given when the statements were not made during the course of a ‘custodial interrogation.’ ” State v. Ferrara, 176 Conn. 508, 519-20, 408 A.2d 265 (1979), quoted in State v. Doehrer, supra, 648. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him in custody. State v. Shashaty, 205 Conn. 39, 48, 529 A.2d 1308 (1987). Accordingly the court did not err in permitting the statement to be placed into evidence.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-85a provides: “sequestering of witnesses in criminal prosecution. In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.”

       The court instructed as follows:
      “Now, I will be making some comments to you on the facts of the case and as to the weight of the evidence and also as to whether or not it is proper for you to find certain facts from the evidence or that it would be proper to find certain facts from the evidence but whenever I make any comments on the facts or on the evidence in this case, no matter how I may say them to you, they nevertheless are purely suggestive and it is up to you to decide whether or not I am right or wrong in my evaluation of the facts or comments on the facts.
      “It is up to you, in other words, to approve or disapprove of my judgment of the facts. My main reason for referring to any of the facts and testimony of the evidence in the case is simply to make clear to you how the applicable law applies in this particular case.
      “So if I refer to certain facts or evidence, you are not to assume that I mean to emphasize those facts or that evidence and that you should in any way limit your consideration only to them. If I do not mention any evidence or facts, you will supply it from your own recollection and if I should incorrectly state any evidence, you would in your judgment, correct any error that I might make and apply your own recollection.”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Michael H. Sherman v. Planning and Zoning Board of Appeals of the Town of Greenwich et al.
    (5590)
    (5591)
    Daly, Norcott and Foti, Js.

      Argued December 10, 1987 —
    decision released March 29, 1988

      A. William Mottolese, with whom, on the brief, was Hugh D. Fyfe, for the appellant (named defendant).

      Norman E. Davis and Philip R. McKnight filed a brief for the appellants (Northeast Greenwich Association et al.).

      James A. Fulton and Douglas S. Skalka, for the appellee (plaintiff).
   Foti, J.

The defendants appeal from the judgment of the trial court sustaining the appeal of the plaintiff from the decision of the defendant planning and zoning board of appeals of the town of Greenwich which partially revoked the plaintiff’s building permit and denied his application for a special exception. The defendants claim that the court erred (1) in finding that the building on the plaintiff’s property was not subject to certain building and zoning regulations of the town, and (2) in its application of the town’s zoning regulations to the plaintiff’s property. We find error.

The facts relevant to this appeal are as follows. The plaintiff owns a four acre residential lot located within the town of Greenwich. The property is presently improved by a two story, single-family dwelling known as the H. H. Mead House, circa 1760. The Mead House is comprised of 2680 square feet of living space. The property was previously part of a larger tract of land on which existed two buildings, separated by ninety-five feet. At the time the property was subdivided, the owners were granted a variance from the zoning regulation that requires that principal dwellings on adjacent lots be separated by at least one hundred feet, fifty feet from each property line. Mead House was the principal dwelling on the plaintiffs property.

The zoning regulations for the town limit the number of principal dwellings to one for each four-acre lot. The regulations provide, however, that there may be a guest house, which is a type of accessory building, on the lot provided that it does not have “more than 1200 square feet of floor area unless authorized by the Board of Appeals as a special exception.” Regulation § 6-95 (a) (2).

In 1983, the plaintiff applied for a building permit to erect a new 5000 square foot principal dwelling on the same lot with the Mead House; in December of 1984, the town issued a building permit contingent upon converting the existing structure, Mead House, to a guest house requiring the removal of all “housekeeping facilities.” The permit did not, however, require that the Mead House meet the 1200 square foot area requirement on the basis of the belief that the Mead House was not subject to the area limitation because it predated the regulation.

A neighbor filed an appeal with the planning and zoning board of appeals on the ground that the Mead House contained living space in excess of the 1200 square foot area limitation, thus, requiring a special exception before the permit could be issued. The plaintiff subsequently filed an application for a special exception which, if granted, would have exempted the property from the area limitation. The board held a consolidated hearing for both the appeal and the application for a special exception. The board sustained the neighbor’s appeal finding § 6-95 of the town’s zoning regulations applied to both new and existing buildings. The board ordered the plaintiff’s building permit rescinded unless the Mead House was removed or reduced in size to not more than 1200 square feet of floor area; the board also denied the plaintiff’s application for a special exception.

The plaintiff appealed both decisions of the board pursuant to General Statutes § 8-8. The appeals were consolidated before being heard by the Superior Court.

The court concluded that the board had erred in rescinding the plaintiff’s building permit. Applying the reasoning of Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 408 A.2d 243 (1979), the court found that, since the Mead House was a preexisting legal nonconformity due to a variance for the setback regulation, the board was prohibited from applying the area limitation for accessory buildings to the structure. The court also concluded that the Mead House was a preexisting legal nonconformity insulated from subsequently enacted regulations because it was built prior to the enactment of the town’s zoning regulations.

We consider the latter conclusion first. The court concluded, in its memorandum of decision, that the Mead House was the principal dwelling on the plaintiffs property. The house, therefore, was not an accessory building as defined by the town’s zoning regulations. Thus, the house could not, as the court held, be exempt from the square foot regulation for accessory buildings on the theory it was a preexisting legal nonconformity since it only held that status for a sideyard setback regulation. The use of the Mead House as an accessory building, therefore, would have required a change in the structure’s use.

Next, we consider the court’s application of Petruzzi v. Zoning Board of Appeals, supra. In Petruzzi, the plaintiff had applied for a permit to convert a church to residential use; the town initially denied the permit on the theory that the church did not meet the setback regulations. Our Supreme Court held that since the church’s violation of the setback regulation was a preexisting legal nonconformity, that nonconformity could not be used to prohibit the otherwise legal use of the building for residential purposes.

The defendants claim that the court erred in its application of the reasoning in Petruzzi to the facts in this case. They note that in Petruzzi the court reached its conclusion, in part, because the zoning regulations for the town of Oxford did not prohibit “a change from one permitted use to another permitted use, with respect to a building or lot having a condition of legal nonconformity”; id., 481; and that in this case the relevant zoning regulation; (Rev. to 1981) § 6-141 (a); expressly provides that a “change” in the use of a legal nonconformity is permitted “only if after application for a Special Permit, the Commission finds that the change” meets certain standards.

The plaintiff concedes that the trial court erroneously applied the 1978 revision of § 6-141 (a to the facts, rather than applying the amended regulation. The plaintiff also concedes that under the 1981 revision of § 6-141 (a) the Mead House is not insulated from the town’s building regulations. The plaintiff now relies entirely on the language of General Statutes § 8-2 for its claim that the Mead House is excepted from the area limitation for accessory buildings. We do not agree.

The relevant language of § 8-2 provides: “Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.” The language of the statute is clear; for example, if a restaurant legally existed in an area which was subsequently zoned residential and a town enacted new regulations prohibiting restaurants, the preexisting restaurant could not be affected by the new regulations. Similarly, if a town changed the setback regulation for residential homes, preexisting homes could not be affected by the new setback regulations. If, however, a house, which was a nonconformity because it predated the setback regulation, was changed to a restaurant it would not be insulated from the regulations for restaurants, except for the setback nonconformity. Here, the Mead House was being used as a principal dwelling and could not be changed to an accessory building without conforming to the town’s regulation for such buildings.

The interpretation of § 8-2 that the plaintiff proposes would allow the plaintiff to change the Mead House to any legal use whether it conformed to the regulations for that legal use or not. The plaintiff’s interpretation, therefore, would wholly vitiate the portions of § 8-2 that grant towns authority to regulate zoning. Statutes must be interpreted to give meaning to their plain language and to provide a unified body of law. Stop & Shop Cos., v. East Haven, 13 Conn. App. 393, 536 A.2d 991 (1988). The plain meaning of § 8-2 only affects nonconforming uses which are, in fact, in existence at the time a new regulation is adopted.

Even in Petruzzi, the court did not insulate the church from the town’s regulations for residential property. “In determining whether to issue the building permit, the building official was required to decide whether the proposed use was in conformity with the applicable regulations.” Petruzzi v. Zoning Board of Appeals, supra, 482. The court, therefore, limited its holding to the conclusion that the setback regulation could not affect the use of the church for residential purposes. Otherwise, the church was required to meet the regulations for residential use.

Thus, the Mead House could only be changed to an accessory building if it otherwise conformed to the regulations for such buildings, unless the plaintiff obtained a special exception for the change.

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.

       Although the trial court sustained both of the plaintiffs appeals, the defendants did not appeal the court’s decision sustaining the plaintiffs appeal from the denial of his application for a special exception.

       Section 6-1 (a) (27) of the town’s zoning regulations defines guest house as follows: “Guest House shall mean an accessory building used solely by the owner or occupant of the premises for the temporary accommodation of his guest or members of his family and for which no rental or other charge is made or received and provided that no kitchen facilities or other housekeeping facilities are included in the accessory building.”

       Section 6 of the town’s zoning regulations defines accessory building as follows: “Building, Accessory or Accessory Use shall mean, in a residential zone, an accessory building or use which is subordinate and customarily incidental to the principal building or use on the same lot.”

       Section 6-95 (a) (2) of the town’s zoning regulations provides: “Private garages, barns, sheds, shelters, silos and other structures customarily accessory to residential estates, farms, or resident uses provided no accessory building shall have more than 1,200 square feet of floor area unless authorized by the Board of Appeals as a special exception.”

       Greenwich’s zoning regulations § 6-141 (a) (Rev. to 1981) provides in relevant part: “In addition to a building becoming legally non-conforming pursuant to Sec. 8-13a of Connecticut General Statutes, any building, lot or use, lawfully existing on February 1, 1926 or on the effective date of any amendment thereafter to these Regulations, may be continued and its non-conforming status shall be deemed lawful, provided that with respect to use the non-conforming use must be actual and not discontinued for any period in excess of one year and maintained within the same structure as existed on February 1,1926 or on the date that said use conformed to these Regulations.
      “(1) Change: A non-conforming building, lot or use, or the building in which a non-conforming use occurs may be changed to another nonconforming use only if after application for Special Permit, the Commission finds that said change meets the standards of Section 6-15 and 6-17 and also finds said changed use is not more detrimental to the neighborhood than the existing use.”

       Greenwich’s zoning regulations, § 6-141 (a) (Rev. to 1978) provides in relevant part: “Non-conforming uses; restrictions.
      “(a) Any building or use except as limited by law, lawfully existing on February 1,1926, or on the effective date of any amendments to this Article since February 1, 1926 even though not conforming to the provisions of this Chapter are permitted and may be continued, changed or altered subject to the following conditions:
      “(1) Change to another non-conforming use. A non-conforming use of land or structure shall not be changed to any other non-conforming use which is more detrimental to the neighborhood and no structure shall be added to unless such addition and the use made thereof shall conform with the provisions of this Article, except that dwellings or accessory buildings in residential zones which have legally non-conforming yards may be added to, provided the addition does not further encroach into the required yard[s] and provided that any addition extending horizontally beyond the limits of the building will have a width not more than half of the total width of the non-conforming portion of the building being added to. Only one (1) nonconforming addition may be made under the latter provision and construction permitted by variance of yard requirements may not be counted in the width calculations described above.”

       General Statutes § 8-2 provides: “regulations. The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, and the height, size and location of advertising signs and billboards. Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Such regulations shall also encourage the development of housing opportunities for all citizens of the municipality consistent with soil types, terrain and infrastructure capacity. Zoning regulations may be made with reasonable consideration for the protection of historic factors and shall be made with reasonable consideration for the protection of existing and potential public surface and ground drinking water supplies. On and after July 1, 1985, the regulations shall provide that proper provision be made for soil erosion and sediment control pursuant to section 22a-329. Such regulations may also encourage energy-efficient patterns of development, the use of solar and other renewable forms of energy, and energy conservation. The regulations may also provide for incentives for developers who use passive solar energy techniques, as defined in subsection (b) of section 8-25, in planning a residential subdivision development. The incentives may include, but not be limited to, cluster development, higher density development and performance standards for roads, sidewalks and underground facilities in the subdivision. Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Any city, town or borough which adopts the provisions of this chapter may, by vote of its legislative body, exempt municipal property from the regulations prescribed by the zoning commission of such city, town or borough; but unless it is so voted municipal property shall be subject to such regulations.”

       In its memorandum of decision, the court concluded that the plaintiff’s appeal from the board’s decision denying his application for a special exception was moot as a consequence of its holding that the Mead House was exempt from the square foot limitation for accessory buildings. The court then rendered judgment sustaining the plaintiffs appeal from that decision of the board. These inconsistent rulings created sufficient confusion that the defendants did not appeal this decision. The plaintiff now claims that any decision rendered by this court is ineffective because the actions of the trial court granted the plaintiff a special exception. We disagree.
      The inconsistent rulings of the court, at most, granted the plaintiff a rehearing with the board on his application for a special exception. Because, however, this decision was based on the court’s erroneous interpretation of Petruzzi v. Zoning Board of Appeals, 176 Conn. 479,408 A.2d 243 (1979), we cannot conclude that the court granted the plaintiff any relief.


author: Dupont, C. J.

text:
    Robert W. Haynes v. George D. Bronson, Warden
    (6061)
    Dupont, C. J., Bieluch and Foti, Js.
    Argued January 13 —
    decision released March 29, 1988

      Benjamin Smith for the appellant (petitioner).

      Kevin T. Kane, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (respondent).
   Dupont, C. J.

The petitioner appeals from the trial court’s dismissal of his habeas corpus petition and the denial of permission to file late appeals in two cases. We find error.

In July, 1979, the petitioner was convicted of robbery in the first degree in violation of General Statutes § 53a-134, and of assault in the third degree in violation of General Statutes § 53a-61. He was sentenced for these convictions to a term of imprisonment of two and one-half to five years and to one year, respectively. No appeal was taken from these convictions.

In September, 1981, following his release from incarceration, the petitioner was convicted of possession of narcotics in violation of General Statutes § 21a-279, and of assault in the third degree. He was sentenced to a term of imprisonment of eighteen months to three years on the former charge and to one year on the latter, to be served concurrently. No appeal was taken from these convictions. The petitioner was also found in violation of the probation stemming from his 1979 conviction and his probation was extended to five years. On December 20, 1984, the petitioner was sentenced to a term of incarceration of one year for violation of his probation, due to the 1981 convictions. His service of that sentence expired on August 21, 1985.

The petitioner filed a petition for a writ of habeas corpus dated February 25, 1985, alleging ineffective assistance of counsel based on his counsel’s failure to appeal the convictions of 1979 and 1981, despite the assurances of counsel that appeals would be taken. On May 20,1986, the petitioner filed a motion requesting permission to file a late appeal from both his 1979 and 1981 convictions. On March 10,1987, the court denied the petitioner’s motion for permission to file late appeals, and granted the respondent’s motion to dismiss the habeas corpus petition. In response to the petitioner’s motion for articulation, the court stated that since the petitioner’s sentence for probation violation had expired, the petition for a writ of habeas corpus was moot, and therefore should be dismissed. The trial court subsequently granted the petitioner’s request for certification to appeal the dismissal of his petition for habeas corpus to this court.

The petitioner claims that the trial court erred (1) in dismissing as moot his habeas corpus petition, and (2) in denying his motion for permission to file late appeals when his failure to appeal timely was due to ineffective assistance of counsel.

The sole argument made by the respondent in his appeal brief is that the petitioner’s claims of error should not be reviewed because he failed to comply with Practice Book § 4065 (c). The respondent argues that the petitioner has failed to refer appropriately to the record or transcripts in the statement of facts contained in his brief.

Practice Book § 4065 (c) provides in pertinent part: “The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the record or transcript upon which the party relies.” While a failure to comply fully with this section may preclude appellate review; Taylor v. American Thread Co., 200 Conn. 108, 112, 509 A.2d 512 (1986); such review, while more difficult, may nevertheless be appropriate. McGaffin v. Roberts, 193 Conn. 393, 399 n.6, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050,105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985).

In this case, the petitioner has made reference in his statement of facts to the appropriate pleadings, contained in the record. No transcript was available to the petitioner because the motion to dismiss was decided without oral argument. The record, together with the pleadings, is sufficient to allow review.

We agree with the petitioner’s claim that the court erred by dismissing his petition on the ground of mootness. The petitioner was in custody at the time he filed his petition for habeas corpus. The expiration of his sentence prior to the decision of the court below did not render his claims moot. Barlow v. Lopes, 201 Conn. 103, 105 n.2, 513 A.2d 132 (1986); Herbert v. Manson, 199 Conn. 143, 143-44 n.l, 506 A.2d 98 (1986); see also Murray v. Lopes, 205 Conn. 27, 31, 529 A.2d 1302 (1987). “In attacking the legality of his conviction, the petitioner has stated a claim that survives his release from incarceration and parole. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968).” Herbert v. Manson, supra.

At oral argument in this court, the respondent stated that he might not have filed his motion to dismiss had Herbert v. Manson, supra, already been decided at the time. The state further argued, however, that the petition of habeas corpus did not raise the issue of whether there were collateral consequences which would save the petition from a mootness claim, and that therefore the petition was properly dismissed.

The record indicates that the petitioner, in his objections to the state’s motion to dismiss on the ground of mootness, alleged that he had suffered penalties and disabilities in the past and would in the future. These allegations were sufficient to raise the issue of collateral consequences.

The petitioner also claims that the court erred in denying him permission to file late appeals from his underlying convictions. It is not disputed that the petitioner did not appeal from the 1979 and 1981 convictions. After a determination in a habeas corpus proceeding that a petitioner has been deprived of a constitutional right of appeal, the trial court is authorized to allow a late appeal, despite any rule or statute to the contrary. State v. Stead, 186 Conn. 222, 226 n.6, 440 A.2d 299 (1982); Fredericks v. Reincke, 152 Conn. 501, 503, 208 A.2d 756 (1965).

The trial court here held no hearing to determine if the petitioner had forfeited his appellate rights but simply denied him permission to file late appeals. If a petitioner in a habeas corpus action seeks the relief of permission to file a late appeal, the question to be resolved is whether he deliberately bypassed appellate review of his conviction. Tyler v. Bronson, 12 Conn. App. 621, 623, 533 A.2d 570 (1987). The court in this case made no such determination.

There is error, the judgment dismissing the petition is vacated and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.


author: Bieluch, J.

text:
    Paine Webber Jackson & Curtis, Inc. v. Geoffrey J. Winters
    (5025)
    Dupont, C. J., Bieluch and Norcott, Js.
    Argued October 7, 1987 —
    decision released March 29, 1988

      John H. Chapman, with whom, on the brief, were Brian E. Moran and David Crystal II, for the appellant (defendant).

      AlanR. Spirer, with whom was Jan A. Marcus, for the appellee (plaintiff).
   Bieluch, J.

The plaintiff, Paine Webber Jackson & Curtis, Inc. (PWJC), a stock brokerage firm, brought this action in three counts against the defendant, a stockbroker formerly in its employ. The trial court rendered partial summary judgment for the plaintiff on the first two counts, from which the defendant has appealed. We find error.

The defendant originally was a stockbroker with Lehman Brothers Kohn Loeb (Lehman). On or about October 14,1982, the defendant left Lehman to work for the plaintiff. Upon the commencement of this employment, the plaintiff gave the defendant $260,000 secured by an “advance compensation agreement” in the form of a promissory note executed on September 30, 1982. The further sum of $40,000 was turned over to the defendant on March 31, 1983, secured in the same manner and on the same terms.

The two promissory notes were identical in form and contained these relevant provisions: The principal amounts were due five years from date without interest. If the defendant’s employment was terminated voluntarily by him, or by the plaintiff for wilful misconduct, “or if at any time, in the sole opinion of PWJC, the financial responsibility of the Employee has become impaired, such impairment to include, without limiting the generality of the foregoing . . . the entry of judgment or issuance of an order of attachment or garnishment; or the commencement of any proceeding or procedure for enforcement of a money judgment, then PWJC, at its option, may declare this Note immediately due and payable, without notice or demand.” Counsel fees and costs incurred in the enforcement of the note were to be paid by the employee.

Each note provided for the forgiveness by PWJC of 25 percent of the principal amount on the second anniversary of the note, and 25 percent annually thereafter, effectively cancelling the note after five years. Forgiveness of the whole or any remaining principal balance of the note was conditional on the following: (1) the defendant’s employment not being terminated either voluntarily or by PWJC for wilful misconduct; (2) the defendant’s payment of all applicable taxes; and (3) the fact that payment of the note had “not been declared by PWJC to be due and payable pursuant to its option to accelerate.”

On or about March 23,1984, the plaintiff terminated the defendant’s employment. Preliminary to bringing this action to collect on its notes, the plaintiff, on September 14,1984, obtained an ex parte order of attachment against the defendant’s real estate in the amount of $325,000 to secure any judgment rendered.

The plaintiff’s complaint was in three counts. In the first count, the plaintiff sought to recover the principal amount of $260,000 plus interest, attorney’s fees and costs on the note of September 30,1982. The plaintiff alleged that it exercised its option to declare the note immediately due and payable, without notice and demand, in accordance with its terms for two reasons. First, the plaintiff terminated the defendant’s employment in March, 1984, for wilful misconduct. Second, the defendant’s financial responsibility became impaired by reason of a judgment in favor of the Bankers Trust Company on July 5, 1984, secured by a real estate attachment and judgment lien. The second count made the same allegations and sought to collect on the note of March 31, 1983, for $40,000. The third count was for recovery of the combined amounts on a theory of unjust enrichment after the defendant’s termination of employment for wilful misconduct.

In his answer to the complaint, the defendant admitted the execution of the two promissory notes and the judgment against him with its supporting liens, but denied that he owed the amounts claimed in the notes. By way of special defense to the first and second counts, the defendant alleged that the notes were not yet due. The defendant also filed seven counterclaims seeking the following: (1) damages for breach of employment contract; (2) an accounting; (3) punitive damages for false and fraudulent promises and representations; (4) damages for unjust enrichment; (5) damages for conversion; (6) damages for defamatory statements; and (7) damages for causing a libelous and defamatory publication.

The plaintiff thereafter moved for partial summary judgment only on the first and second counts of its complaint. The supporting affidavit was filed by Robert J. Hume III, vice president of PWJC, and set forth the plaintiff’s sole claim for summary judgment. After reciting the execution and terms of the notes, the affidavit stated that the impairment of the defendant’s financial responsibility by the judgment for the Bankers Trust Company against him on July 5, 1984, secured by the attachment and judgment liens, “triggered PWJC’s right to declare the notes immediately due and payable,” which it elected to exercise. Although the plaintiff relied upon the alleged impairment of the defendant’s financial responsibility, the extent of such impairment, namely, the amount of the Bankers Trust Company judgment against the defendant, was not recited in the plaintiffs complaint or stated in its supporting affidavit to the court.

The defendant filed two affidavits in opposition to the motion for partial summary judgment. Both of these affidavits were very detailed and comprehensive in their statements. The first affidavit, that of the defendant’s attorney, recited the following: The “promissory notes,” although denominated as such, were considered by the parties to be advance compensation agreements structured for payment of an upfront bonus of $300,000 to the defendant for becoming an employee of PWJC; an attached excerpt of the deposition of Robert J. Hume III, vice president of PWJC, confirmed that these documents were known as advance compensation agreements; the provision for no interest and the clause for progressive forgiveness annually after two years and in the total amount after five years show that the parties did not contemplate reimbursement, except in the event of the defendant’s termination of employment voluntarily or for wilful misconduct, or for his fiscal irresponsibility, within that period; and any reimbursement due decreased progressively after two years of employment until the debt was completely erased after five years.

The affidavit of defendant’s counsel stated further: The plaintiff was motivated “after its hasty ill-considered firing of [the defendant] ... to attempt to recoup its losses through an acceleration of the [advance compensation agreements]”; PWJC also sought professional complaints against the defendant from some of his customers; the plaintiff was unaware of the Bankers Trust judgment at the time it terminated the defendant’s employment for alleged wilful misconduct; in preparing to enforce the advance compensation agreements for the alleged wilful misconduct, a property search by PWJC’s Connecticut counsel disclosed the recent judgment rendered in the trial court; this judgment originated in the New York County Civil Court in the amount of $8707.88, and was rendered on June 27, 1983, on the defendant’s default in appearance; suit to recover this judgment was brought in the Superior Court for the judicial district of Fairfield at Bridgeport; default judgment against the defendant was rendered in that action in April 1984, one month after the defendant had been terminated by the plaintiff for alleged wilful misconduct; these default judgments first came to the defendant’s attention when he was served with the order of attachment and writ, summons and complaint in this action; the underlying judgment in New York was mistakenly rendered for a debt previously paid by a Lehman check, which the defendant was trying to locate; and finally, the good faith of the plaintiff in choosing to accelerate the advance compensation agreements is a factual determination.

The second affidavit, that of the defendant, recited the circumstances surrounding the execution and delivery of the advance compensation agreements and the relationship between the parties in support of his claim that questions of fact exist as to the validity and good faith of the alleged acceleration of the advance compensation agreements. The detailed statements need not be recited. Their previous inclusion in counsel’s affidavit is sufficient here.

The motion for partial summary judgment was granted by the court. In its memorandum of decision, the court, after acknowledging the claim of the defendant in its documentary proof that “[t]he judgment that triggered the acceleration was so small as to raise a question of good faith on the part of the plaintiff,” distilled the affidavits of the defendant and his counsel to this statement: “In reducing the arguments of the defendant to a nutshell, it is found that the real claim is that the plaintiff did not act in good faith in accelerating the notes. Such lack of good faith is claimed to be an issue of fact.” The trial court recognized that this “concept” of good faith has been codified in General Statutes § 42a-l-208. Quoting Practice Book § 164, the court concluded, however, that “whether the plaintiff acted in good faith is a question of fact, but not a ‘genuine issue’ because it has not been pleaded.”

The court took judicial notice of the file in Docket No. CV-84-0216361, Superior Court for the judicial district of Fairfield, Bankers Trust Co. v. Winters, and found that the facts stated in the supporting affidavit as to the attachment and judgment lien were not controverted. It therefore concluded that these facts warranted the exercise by the plaintiff of its right to declare the notes due and payable even though the notes were not negotiable.

The trial court also held that the defendant is indebted to the plaintiff in the principal amount of the notes “notwithstanding that there exists a genuine issue of fact in paragraph 5 of each count, i.e., as to the matters of wilful misconduct.”

After finding the issues for the plaintiff on the first and second counts as to liability only, the court ordered a further hearing on the plaintiff’s claims for interest and counsel fees and to determine the amount of the judgment. After hearing the parties on these claims, the court rendered judgment for the plaintiff in the amount of $319,539, consisting of the principal amounts of the notes and counsel fees of $19,539, plus taxable costs. Interest was not payable under the notes. The plaintiff, however, claimed interest under General Statutes § 52-192a, even though no trial of the issues took place. The court computed interest, pursuant to § 52-192a, from the filing of the complaint to judgment on March 12,1986, to be $52,260.12, and awarded that amount to the plaintiff for a total judgment on its complaint of $371,799.12. The defendant has appealed from this interlocutory judgment on the first and second counts of the plaintiffs complaint.

The defendant’s first claim is that the court erred in granting summary judgment where it explicitly found that there was a triable issue of fact as to the plaintiff’s good faith in accelerating the advance compensation agreements on the basis that bad faith had to be specially alleged. Our ruling on this claim is dis-positive of the defendant’s appeal.

The trial court’s reasoning was simply stated: Whether the plaintiff acted in good faith in accelerating payment of its notes is a question of fact. The court cited statutory authority for this conclusion in its statement: “This concept has been codified in Connecticut. See Sec. 42a-l-208, Conn. General Statutes.” To this extent the trial court was correct, but it erred when it concluded: “However, the court cannot consider this as a genuine issue of fact because the defendant has not pleaded the lack of good faith.”

Summary judgment is a strictly measured remedy and is to be used with great caution and clear acknowledgment only when warranted by law. Since litigants ordinarily have a right to have a trial upon issues of fact, the moving party for summary judgment is held to a strict standard. The party seeking summary judgment must show the nonexistence of any genuinely disputed fact. Rawling v. New Haven, 206 Conn. 100, 104, 537 A.2d 439 (1988); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). “[T]he moving party for summary judgment is held to a strict standard: he “must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 [1971].” Town Bank & Trust Co. v. Benson, 176 Conn. 304, 307, 407 A.2d 971 (1978). Practice Book § 384 requires that a summary judgment shall be rendered forthwith if the “proof submitted show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Under this test, “questions about motive, intent and good faith should not be resolved by summary judgment. . . . ” MultiService Contractors, Inc. v. Vernon, 193 Conn. 446, 451-52, 477 A.2d 653 (1984); Town Bank & Trust Co. v. Benson, supra, 309; United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

The procedure for summary judgment is governed by Practice Book §§ 378-386. “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.... The adverse party . . . shall file opposing affidavits and other available documentary evidence. ...” (Emphasis added.) Practice Book § 380.

Pleadings per se do not constitute documentary proof under § 380. Allegations of pleadings not admitted by a party are not proof of their contents. They merely set forth the cause of action and the issues of fact and law raised in the pleadings. The framework of the case is built by the pleadings. Unadmitted allegations of pleadings do not constitute documentary proof of the existence of a genuine issue as to any material fact on a motion for summary judgment. The quantum of evidentiary proof admissible at trial relevant to these allegations, or any later amendment of them, is not documentary proof under § 380 probative of, or relevant to, the grant or denial of summary judgment. The court’s consideration of a motion for summary judgment is limited to the evaluation as a matter of law of the documentary proof submitted under § 380. Additionally, in passing upon a motion for summary judgment, the trial court must view the documentary proof in the light most favorable to the nonmovant. Rawling v. New Haven, supra; Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984); Town Bank & Trust Co. v. Benson, supra, 309; United Oil Co. v. Urban Redevelopment Commission, supra, 380.

The trial court erred, therefore, when, after finding that the plaintiff’s good faith in accelerating payment of the notes was a question of fact, it resolved the question itself and overlooked the special defense of the defendant. When the notes are due is a clear question of fact, and yet, under the court’s own hypothesis, it failed to find that the defendant in its special defense to the first and second counts alleged: “The notes referred to are not yet due according to their terms.” The court by rendering summary judgment on the first and second counts resolved this issue of fact. It erred in doing so.

The trial court expressly found in this case that the “concept [of good faith] has been codified in Connecticut,” citing General Statutes § 42a-l-208. That provision of the Uniform Commercial Code specifies that an option to accelerate payment contained in a note gives the holder “power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.” (Emphasis added.) Since the defendant did not specifically plead the plaintiff’s lack of good faith under the provisions of Practice Book § 164, the trial court concluded that this question of fact was not a “genuine issue” before it in its consideration of the plaintiff’s motion for partial summary judgment. In so ruling, the court also erred by misconstruing the requirements of § 42a-l-208.

In McKay v. Farms & Stockmens Bank of Clayton, 92 N.M. 181, 585 P.2d 325, cert. denied, 92 N.M. 79, 582 P.2d 1292 (1978), the Court of Appeals of New Mexico considered the precise question now before this court under the Uniform Commercial Code. In that case, the plaintiffs brought suit to recover damages for tortious and wrongful acceleration of several promissory notes held by the defendant bank and secured by chattel. On default in payment, the bank extended the maturity date. Before that time, however, the bank deemed itself insecure and under its option accelerated the maturity of the notes. It thereafter declared the notes in default and took possession of the security, some of which it sold. In the debtors’ suit against the bank for wrongful acceleration of the promissory note, the trial court granted the bank’s motion for summary judgment. On appeal, the court of appeals found error and set aside the summary judgment.

The court’s reversal was based on the provisions of the New Mexico Uniform Commercial Code, N.M. Stat. Ann. §§ 55-1-208 and 55-1-201 (19), governing the acceleration of promissory notes. Section 55-1-208 is identical to General Statutes § 42a-l-208 cited by the trial court as requiring good faith in the acceleration of the plaintiff’s notes. Section 55-1-201 (19) is identical to our General Statutes § 42a-l-201 (19) which defines “good faith” to mean “honesty in fact in the conduct or transaction concerned.” (Emphasis added.)

The Court of Appeals of New Mexico held as follows: “The burden of proof set out in § [55-1-208], supra, . . . applied to a directed verdict and not to a motion on summary judgment. The burden of proof applied to the quantum of evidence and sufficiency of proof as to the lack of good faith after all the evidence was before the court. That burden of proof does not apply to a motion for summary judgment where the sole question before the court is whether a genuine issue of material fact exists. On the contrary, the burden of proof is on the movant to show the absence of a genuine issue of fact. . . . Although § [55-1-208], supra, requires a showing of a lack of good faith by the party against whom the power to accelerate has been exercised, this does not mean that the non-movant has this same burden of proof on a motion for summary judgment.” (Emphasis in original.) McKay v. Farms & Stockmens Bank of Clayton, supra, 182.

Viewing the affidavits and documentary proof before the trial court in a light most favorable to the defendant, we conclude that there is a genuine issue of material fact which should be resolved after trial. The facts contained in the parties’ affidavits, together with inferences which could be reasonably and logically drawn from them, could support the defendant’s claim that the plaintiff lacked good faith in accelerating payment of the notes. The plaintiff did not sustain its burden of showing the absence of a genuine issue of fact and its motion for partial summary judgment should have been denied.

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.

       General Statutes § 42a-l-208 of the Uniform Commercial Code provides: “A term providing that one party or his successor in interest may accelerate payment or performance or require collateral or additional collateral ‘at will’ or ‘when he deems himself insecure’ or in words of similar import shall be construed to mean that he shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.”

       Practice Book § 164 provides in relevant part: “No facts may be proved under either a general or special denial except such as show that the plaintiff’s statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged.”

       “[General Statutes] Sec. 52-192a. offer of judgment by plaintiff. ACCEPTANCE BY defendant, computation OF INTEREST, (a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment,’ the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment.’ Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.” (Emphasis added.)


author: O’Connell, J.

text:
    William S. Rogers v. Anthony W. Delfino et al.
    (5134)
    Dupont, C. J., Borden and O’Connell, Js.
    Submitted on briefs December 1, 1987 —
    decision released March 29, 1988

      William J. Tracy, Jr., filed a brief for the appellants (defendants).

      William F. Gallagher, Herbert Watstein and Evelyn A. Barnum filed a brief for the appellee (plaintiff).
   O’Connell, J.

The defendants appeal from the judgment rendered following a plaintiff’s verdict in a personal injury action. The jury awarded the plaintiff $196,622.41 in damages. The plaintiff accepted an order of remittitur of $58,500 and judgment was rendered for $138,162.41. The defendants claim the trial court erred (1) in failing to charge the jury as requested concerning the plaintiff's interest in the case, (2) in its charge regarding future damages, and (3) in failing to set aside the verdict. We find no error.

The jury reasonably could have found the following facts. On February 2, 1976, the plaintiff was injured when he slipped and fell on an icy sidewalk at a shopping center owned by the defendants. The plaintiff was in the process of unloading an eight hundred pound floor washing machine from his employer’s truck when he fell. Hé was pinned against the wall of a building by the machine for approximately two minutes, until discovered by a coworker. The plaintiff was hospitalized for six days and, in September, 1976, underwent surgery for removal of a herniated intervertebral disc. Two weeks after the procedure, the plaintiff was subjected to further surgery to remove scar tissue. The surgeon who removed the plaintiff’s disc testified that the plaintiff sustained a 20 percent permanent partial disability.

I

The defendants first claimed error in the trial court’s failure to charge the jury as requested. The requested charge átídressed two matters: the plaintiff’s alleged concession of facts at issue and the plaintiff’s interest in the outcome of the case. The instruction on the first portion of the defendants’ claimed error included a statement that “where the plaintiff unequivocally concedes a fact or issue, such concession is binding upon him and you must take that fact or issue to be proven.”

The evidence relied upon to support the first portion of this request consisted of the plaintiffs answers to interrogatories in another action, inconsistent with his testimony in the present case. In those interrogatories, the plaintiff stated, inter alia, that he had recovered from this injury prior to being injured again in a subsequent accident. The defendants claimed that the requested instruction was warranted on the grounds that such statements constituted judicial admissions that were “unequivocably conceded by the plaintiff,” and as such were conclusive. The defendants’ argument is not supported by the law. Our Supreme Court has held that although an answer to an interrogatory has the same effect as a judicial admission in relieving the opposing party of the necessity of proving the facts admitted, “ ‘it is not conclusive upon him and will not prevail over evidence offered at the trial.’ ” Piantedosi v. Floridia, 186 Conn. 275, 278, 440 A.2d 977 (1982), quoting Bochicchio v. Petrocelli, 126 Conn. 336, 339-40, 11 A.2d 356 (1940). See also General Statutes § 52-200, which expressly declares that interrogatory disclosures are not conclusive.

Furthermore, with regard to concessions of fact made by party witnesses in testimony at trial, our Supreme Court has also ruled that “ ‘[ujnless it amounts to such a stipulation or waiver as to have the force of a judicial admission, the testimony of a party to a fact is ordinarily no more conclusive upon him than the evidence given by any other witness; and it is the duty of the court or jury to determine the fact not alone from the testimony given by the party but from all the evidence in the case.’ ” Dreier v. Upjohn Co., 196 Conn. 242,248-49 n.2, 492 A.2d 164 (1985), quoting Kanopka v. Kanopka, 113 Conn. 30, 39, 154 A. 144 (1931). The defendants’ requested charge was an erroneous statement of the law and was properly excluded from the jury instruction by the trial court.

It is not error for a trial court to charge the jury in language other than that submitted by the parties. “Although the court did not charge in the exact language, ‘[ejrror cannot be predicated on a failure to adopt the particular language of a request to charge where the matter is adequately and fairly covered in the charge.’ Nally v. Charbonneau, 169 Conn. 50, 55, 362 A.2d 494 (1975). A charge must be read as a whole; the test is not whether it is exhaustive, letter perfect or technically accurate; Hoadley v. University of Hartford, 176 Conn. 669, 674, 410 A.2d 472 (1979); but whether the charge as a whole fairly presented the case so that no injustice was done. Kosko v. Kohler, 176 Conn. 383, 390-91, 407 A.2d 1009 (1978).” Morales v. St. Francis Hospital & Medical Center, 9 Conn. App. 379, 385-86, 519 A.2d 86 (1986).

Reviewed under this standard, the second portion of the defendants’ requested charge regarding the plaintiff’s interest in the case is also without merit. We recognize that a plaintiff has a special interest in the outcome of a case; see Buonanno v. Cameron, 131 Conn. 513, 515, 41 A.2d 107 (1945); however, a review of the record indicates that the trial court instructed the jury that potential bias, prejudice, interest, or lack of interest in the case, were factors to be considered by the jury in their assessment of the testimony of any witness. The charge as given “adequately and fairly” covered the matter addressed in the first portion of the defendants’ requested charge; id.; and was a correct statement of the law. See State v. Mack, 197 Conn. 629, 636-38, 500 A.2d 1303 (1985); State v. Mastropetre, 175 Conn. 512, 524-25, 400 A.2d 276 (1978).

II

In their second claim of error, the defendants contend that the trial court erred in instructing the jury on damages arising from anticipated medical expenses and loss of earning capacity. The defendants argue that there was no evidence from which the jury could infer that the plaintiff would incur either future medical expenses or damages derived from a loss of earning capacity. We disagree.

“In awarding future medical expenses, a jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities. Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884 (1971). Such evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. See Healey v. White, 173 Conn. 438, 442, 378 A.2d 540 (1977); Nash v. Hunt, 166 Conn. 418, 428, 352 A.2d 773 (1974); Hanauer v. Coscia, 157 Conn. 49, 53, 244 A.2d 611 (1968).” Reilly v. DiBianco, 6 Conn. App. 556, 575, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 192, 193 (1986). The transcript discloses that the plaintiff’s medical expert stated, inter alia, that he was “quite concerned about this patient’s recovery and certainly considerable further treatment will be necessary. ” (Emphasis added.) In light of this testimony, we hold that the trial court did not err in charging the jury with respect to future medical expenses.

The evidence also fully supported the trial court’s charge on loss of earning capacity. “While the burden

of proving loss of earning capacity is always upon the plaintiff, the courts have never required ‘proof equivalent to a mathematical demonstration.’ Lavieri v. Ulysses, 149 Conn. 396, 408, 180 A.2d 632 (1962); Turner v. Scanlon, 146 Conn. 149, 159, 148 A.2d 334 (1959). The courts require only ‘that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.’ Ball v. Pardy Construction Co., 108 Conn. 549, 551, 143 A. 855 (1928); Turner v. Scanlon, supra .’’Hoadleyv. University of Hartford, supra, 675. A review of the record shows that the plaintiff laid a proper foundation for the calculation of such damages by introducing evidence of his weekly salary at the time of injury, the fact that he suffered a 20 percent permanent partial disability, the physical restrictions resulting from this injury, and his life expectancy. The court correctly instructed the jury on loss of future earnings.

Reviewing the charge in its entirety, we conclude that it was correct in law, adapted to the issues and sufficient for the guidance of the jury. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 570, 316 A.2d 394 (1972).

Ill

The defendants’ final claim of error is that the trial court erred in failing to set aside the verdict as excessive and not supported by the evidence. Once again, we disagree.

“ ‘ “The trial court’s refusal to set aside [a] jury verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.” Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981); Waldron v. Racdo, 166 Conn. 608, 618, 353 A.2d 770 (1974). This is so because “[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than [an appellate court] can, on the printed record, what factors, if any, could have improperly influenced the jury.” Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972). Our function on appeal is, accordingly, limited to determining whether the trial court abused its discretion in denying the plaintiffs motion to set aside the verdict. Such a decision “can be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. [Maltbie,] Conn. App. Proc., p. 151.” Mulcahy v. Larson, 130 Conn. 112, 114, 32 A. 2d 161 (1943).’ ” Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 434-35, 513 A.2d 1235 (1986), quoting Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert, denied, 200 Conn. 801, 509 A.2d 516 (1986); see also Creem v. Cicero, 12 Conn. App. 607,609-10, 533 A.2d 234 (1987).

In reviewing the trial court’s decision concerning the verdict, every presumption must be given to sustaining the verdict as rendered. Bielaska v. Waterford, 196 Conn. 151, 155, 491 A.2d 1071 (1985); Royer v. Hertz Corporation, 9 Conn. App. 136, 140, 516 A.2d 1372 (1986). The plaintiff presented evidence of permanent partial disability, pain and suffering, medical expenses and future damages. In light of the evidence presented, we conclude that the trial court did not abuse its discretion in denying the defendants’ motion to set aside the verdict.

The defendants’ attempt to challenge the verdict by comparing it to verdicts in other personal injury cases is not persuasive. “It serves no useful purpose to compare a verdict in one personal injury case with verdicts in other personal injury cases. The question is one peculiarly within the province of the jury. Juries may differ widely in the conclusions which they reach in what may be apparently similar cases, and, in fact, in any given case one jury may arrive at a result substantially different from that of another jury. This flexibility, though it may lead to uncertainty, is a necessary concomitant of the jury system as it operates in cases of this nature. ‘Proper compensation for personal injuries cannot be computed by mathematical formula, and the law furnishes no precise rules for their assessment.’ Lopez v. Price, 145 Conn. 560, 569, 145 A.2d 127 (1958).” (Citations omitted.) Birgel v. Heintz Corporation, supra, 34.

The proper tests are whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation, and whether the verdict so shocks the court’s sense of justice as to compel the conclusion that the verdict was influenced by partiality, prejudice, mistake or corruption. Shea v. Paczowski, 11 Conn. App. 232, 235, 526 A.2d 558 (1987); Zarrelli v. Barnum Festival Society, Inc., supra.

There is no error.

In this opinion the other judges concurred.

       The remittitur of $58,500 reflected the amount received by the plaintiff in settlement of his action against three other defendants.

       “[General Statutes] Sec. 52-200. disclosure not conclusive. When either party in any action has obtained from the other party a disclosure on oath, respecting the matters alleged in any pleading, the disclosure shall not be deemed conclusive, but may be contradicted like any other testimony.”

       The instruction given the jury with regard to bias stated in pertinent part: “When weighing the testimony of a witness you should consider his appearance upon the stand. You should try to size him up, having in mind all those little circumstances which point to his truthfulness or untruthfulness. You should consider any possible bias or prejudice he may have, whether for or against the plaintiff or the defendant. You should consider any interest or lack of interest he has in the outcome of the trial.”


author: Norcott, J.

text:
    State of Connecticut v. Paul O’Bright
    (5405)
    Spallone, Bieluch and Nokcott, Js.

      Argued January 21 —
    decision released March 29, 1988

      Mitchell Brody, deputy assistant state’s attorney, with whom was, James G. Clark, assistant state’s attorney, and, on the brief, John M. Massameno, assistant state’s attorney, for the appellant (state).

      Hubert J. Santos, for the appellee (defendant).
   Norcott, J.

The state appeals from the trial court’s order granting the defendant’s motion to dismiss. The sole issue on appeal is whether a trial court order purporting to dismiss an information and discharge the defendant was a dismissal with prejudice that would preclude reprosecution of the defendant for the same offense. We find that it does not and, therefore, we find error.

The relevant facts in this appeal are not in dispute. The defendant was charged by information with promoting prostitution in the second degree in violation of General Statutes § 53a-87 (a) (1). On October 4, 1985, the trial court, Susco, J., granted the defendant’s motion to dismiss on the basis that the affidavit in support of the arrest warrant failed to establish probable cause. The trial court stated, “Fve reviewed your motion to dismiss, as well as the affidavit which accompanied the warrant, and I will grant your motion. The charges are dismissed, and the defendant is discharged.” The court did not state whether the dismissal was with or without prejudice as was required by Practice Book § 819, which has since been repealed. Neither the state nor the defendant asked for articulation of this order, and the state did not object to the granting of the motion.

Thereafter, the state obtained a second arrest warrant and recharged the defendant with the same offense. The trial court judge who had granted the original motion to dismiss signed the second warrant. On July 31, 1986, the second trial court, Brennan, J., granted the defendant’s motion to dismiss the new information with prejudice construing the first trial court’s dismissal to have been “with prejudice.” The court also concluded that the state had waived its right to appeal the first dismissal.

We first note that the state requests that we hear this appeal under the plain error doctrine. We find it unnecessary to resort to plain error review, however, because we find that the matter was fully adjudicated in the trial court. The defendant raised the issue of whether the first dismissal was a dismissal with prejudice, and the trial court dealt conclusively with that issue in its memorandum of decision. After the motion to dismiss was granted, the state acted properly in seeking permission to appeal the dismissal and then filing an appeal with this court. Practice Book § 819, since repealed. Accordingly, we find that the matter is properly before this court.

In State v. Fleming, 198 Conn. 255, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), our Supreme Court held that “an illegal arrest imposes no jurisdictional barrier to a defendant’s subsequent prosecution.” In this case, the first trial court clearly found that the initial arrest was illegal in that it was not supported by probable cause. If the arrest itself could not bar a subsequent prosecution of the defendant, we fail to see how a dismissal premised on that arrest'would impose a jurisdictional barrier to the filing of a second information against the defendant.

Furthermore, we find that even without the authority of State v. Fleming, supra, there exists no persuasive legal authority for the trial court’s conclusion that a dismissal coupled with a “discharge” is the equivalent of a dismissal “with prejudice.” A discharge is merely the act by which the defendant is set at liberty. Black’s Law Dictionary (5th Ed. 1983). Setting the defendant at liberty following a dismissal of the charges against him does not bar reprosecution of that defendant. See, Commonwealth v. Cartagena, 482 Pa. 6, 14-15, 393 A.2d 350, 354 (1978).

.There is error. The order granting the defendant’s motion to dismiss with prejudice is vacated and the case is remanded to the trial court with instructions to reinstate the information.

In this opinion the judges concurred.

       Prior to its repeal in 1987, Practice Book § 819 provided: “If the judicial authority grants a motion to dismiss, he shall specify whether the dismissal is with or without prejudice. If the dismissal is with prejudice, the defendant shall be released, and the prosecuting authority may, where he is entitled by law, appeal the dismissal in the same manner and to the same effect as appeals from final judgments in criminal prosecutions. If the dismissal is without prejudice, the defendant shall be released, but the dismissal shall not be a bar to further prosecution for the same offense or offenses.”

       Even though we find the use of the plain error doctrine unnecessary for our consideration of the present appeal, we note that the appeal would qualify under the standards of that doctrine recently repeated in State v.
        Scott, 10 Conn. App. 347, 353, 522 A.2d 1245, cert. denied, 204 Conn. 804-805, 528 A.2d 1152 (1987) and State v. Harris, 10 Conn. App. 217, 230, 522 A.2d 323 (1987).

       We also note that the first trial court clearly did not intend its dismissal to be “with prejudice.” This is indicated by the fact that the same court signed the second arrest warrant for the defendant.


author: Per Curiam.

text:
    State of Connecticut v. Gary Lancaster
    (5656)
    Borden, Bieluch and O’Connell, Js.
    Argued November 13 —
    decision released November 27, 1987

      Howard I. Gemeiner, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom were Robert Devlin, assistant state’s attorney, and, on the brief, Alice Osedach, legal intern, for the appellee (state).
   Per Curiam.

After a complete examination of the record, transcripts and briefs filed in this matter and after having afforded the defendant’s sole claim of error the appropriate scope of review, we conclude that the defendant’s claim is not reviewable because of the lack of an adequate record. This case is controlled by State v. Vitale, 190 Conn. 219, 226, 460 A.2d 961 (1983), and State v. Mitchell, 8 Conn. App. 598, 605, 513 A.2d 1268, cert. denied, 201 Conn. 810, 516 A.2d 887 (1986).

There is no error.


text:
    Linda Lou DuBois v. James Rene DuBois
    (5584)
    Borden, Bieluch and O’Connell, Js.
    Submitted on briefs November 13 —
    decision released November 27, 1987

      Bruce A. Fontanella filed a brief for the appellant (plaintiff).

      William J. Tracy, Jr., and William J. Eddy filed a brief for the appellee (defendant).
   Per Curiam.

We have thoroughly reviewed the records and briefs filed in this matter and, having afforded the plaintiffs claims of error the appropriate scope of review, we conclude that there is no merit to those claims.

There is no error.


text:
    Eva Williams v. Joseph Williams
    (5514)
    Dupont, C. J., Borden and O’Connell, Js.
    Argued December 4 —
    decision released December 7, 1987

      Daniel V. Presnick filed a brief for the appellant (defendant).

      Michael J. McClary, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Ann Treat v. Douglas Allen
    (4880)
    Dupont, C. J., Borden and O’Connell, Js.
    Submitted on briefs December 3 —
    decision released December 13, 1987

      Edward N. Lerner filed a brief for the appellant (plaintiff).

      Harold C. Donegan filed a brief for the appellee (defendant).
   Per Curiam.

A careful examination of the record and briefs filed in this appeal, coupled with our analysis of the claim of error raised by the plaintiff, leads to the conclusion that the plaintiff was not deprived of a fair trial.

There is no error.


text:
    State of Connecticut v. Augustus J. Simmons
    (5578)
    Daly, Norcott and Foti, Js.
    Argued December 8 —
    decision released December 13, 1987

      Augustus J. Simmons, pro se, the appellant (defendant).

      Geoffrey Marion, deputy assistant state’s attorney, with whom, on the brief, was James G. Clark, assistant state’s attorney, for the appellee (state).
   Per Curiam.

After a plenary examination of the record, transcripts and briefs filed in this matter, and after having afforded those claims of error, which are properly before this court, the appropriate scope of review, we conclude that there is no merit to the defendant’s averments of error.

There is no error.


text:
    Matthews and Connell, P.C. v. Twin Towers Associates et al.
    (4707)
    Borden, Daly and O’Connell, Js.
    Argued October 6 —
    decision released December 13, 1987

      Louis I. Parley, with whom, on the brief, was Robert G. Wetmore, for the appellants (defendants).

      William J. Egan, with whom, on the brief, was Penny Q. Seaman, for the appellee (plaintiff).
   Per Curiam.

An arbitration proceeding was initiated by the defendant DeMatteo Construction Company, in the name of the defendant Twin Towers Associates, against the plaintiff Matthews and Connell, P.C., the architect for a construction project involving the parties. Thereafter, the plaintiff instituted the present action, seeking to enjoin that arbitration proceeding. The trial court permanently enjoined the arbitration. This appeal followed. We find no error.

In their several claims of error, the defendants raise what appear to be complex questions of law. Our thorough review of the record and the briefs of the parties, however, reveals that the defendants only seek to retry this case on appeal. This we will not do. Griffiths v. Griffiths, 12 Conn. App. 807, 531 A.2d 1203 (1987) (per curiam).

The findings and conclusions of the trial court must be affirmed as they are supported by the evidence. Lawlor v. Searles, 12 Conn. App. 511, 513, 531 A.2d 607 (1987) (per curiam).

There is no error.


text:
    Walter Doll, Jr., et al. v. Warren L. Prelesnik et al.
    (5633)
    Spallone, O’Connell and Stoughton, Js.
    Argued December 17 —
    decision released December 22, 1987

      David A. Golas, for the appellant (defendant J. L. Swensson, Jr.).

      Stephen C. Barron, for the appellees (named defendant et al.).
   Per Curiam.

There is no error.


text:
    Elihu Club, Inc. v. Board of Tax Review of the City of New Haven
    (5534)
    Spallone, Bieluch and Stoughton, Js.
    Argued December 16 —
    decision released December 22, 1987

      Francis G. Pennarola, for the appellant (plaintiff).

      MartinS. Echter, deputy corporation counsel, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Gary Kerpa v. A & A Brothers, Inc., et al.
    (5406)
    Spallone, Bieluch and Stoughton, Js.
    Argued December 17 —
    decision released December 22, 1987

      Gary Kerpa, pro se, the appellant (plaintiff).

      Theodore R. Tyma, with whom, on the brief, was Paul V. McNamara, for the appellee (named defendant).
   Per Curiam.

The plaintiff’s first, second and sixth claims of error were not raised in the trial court; consequently, we will not consider those claims. The plaintiff’s third, fourth and fifth elaims of error invoke the discretionary function of the court. Our review of the record, transcript and briefs fails to disclose any abuse of such discretion.

There is no error.


text:
    Holyoke Mutual Insurance Company in Salem v. Kenneth E. Papa et al.
    (5234)
    Daly, Nokcott and Fon, Js.
    Argued December 9 —
    decision released December 22, 1987

      John W. Lemega, with whom was John B. Farley, for the appellant (plaintiff).

      Wesley W. Horton, with whom were Anthony Apicella, and, on the brief, John W. Ranucci, law student intern, for the appellees (defendants).
   Per Curiam.

On June 30,1986, the plaintiff filed an appeal from an order of the trial court granting the defendants’ motion for a protective order. On August 29, 1986, the plaintiff amended its appeal to include a claim that the trial court erred in granting the defendants’ motion for judgment on August 25,1986. Because we find that the trial court’s order granting the defendants’ motion for a protective order was not an appeal-able final judgment we dismiss the case for lack of jurisdiction. State v. Curdo, 191 Conn. 27, 31, 463 A.2d 566 (1983); American Factors, Inc. v. Foreign Intrigue, Inc., 6 Conn. App. 656, 658, 506 A.2d 1085, cert. denied, 201 Conn. 802, 513 A.2d 696 (1986) (when an appeal is jurisdictionally defective the defect cannot be cured by an amended appeal filed after judgment has entered).

The appeal is dismissed.


text:
    Ralph J. Dalusio v. Patricia M. Dalusio
    (5564)
    Borden, O’Connell and Stoughton, Js.
    Argued January 5 —
    decision released January 12, 1988

      Joseph Glass, for the appellant (plaintiff).

      Carol A. Brown, with whom, on the brief, was William P. Tuccio, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Lea Lefebvre v. Albert E. Weiss et al.
    (5810)
    Spallone, Stoughton and Norcott, Js.
    Argued January 20 —
    decision released January 26, 1988

      Albert E. Weiss, pro se, the appellant (named defendant).

      Nicholas G. Sarantopoulos, filed a brief for the appellee (plaintiff).
   Per Curiam.

In this appeal, the named defendant is asking us to intervene into areas where the trial court properly exercised its lawful discretion and appropriately performed its factfinding function. This we will not do.

There is no error.


text:
    Board of Education of the City of New Haven v. Board of Mediation and Arbitration et al.
    (5371)
    Spallone, Daly and Norcott, Js.
    Argued January 21 —
    decision released January 26, 1988

      Barbara J. Collins, with whom, on the brief, were J. William Gagne, Jr., and Kevin A. Fusco, for the appellant (defendant AFSCME, Council 4, Local 287).

      Lubbie Harper, Jr., for the appellee (plaintiff).
   Per Curiam.

There is no error.