author: SPALLONE, J.

text:
    WILLIAM A. MARCHETTI v. JOHNNY RAMIREZ ET AL.
    (13926)
    Heiman, Hennessy and Spallone, Js.

      Argued December 8, 1995
    decision released March 26, 1996

      David Thomas Ryan, with whom were Bradford S. Babbitt and, on the brief, Craig A. Raabe, for the appellants (defendants).

      Dante R. Gallucci, for the appellee (plaintiff).
   SPALLONE, J.

The defendants appeal from the trial court’s judgment in this negligence action. They claim that the trial court improperly refused to set aside the verdict where (1) the jury awarded damages for future medical expenses in the absence of any evidence that it was “reasonably probable” that such expenses would be incurred, (2) the jury awarded damages for injuries not alleged in the complaint, (3) the plaintiff injected the existence of insurance into the case, so tainting the jury as to require a mistrial to be declared, and (4) the jury made an award that was unsupported by the evidence and far in excess of the damages requested by the plaintiff. We affirm the judgment of the trial court.

From the evidence and the testimony adduced at trial, the jury could reasonably have found the following facts. The plaintiff, William A. Marchetti, was forty-seven years of age at the time of trial and had a further life expectancy of 28.9 years. He was a high school graduate who had been trained in heavy equipment and truck operation while serving in Vietnam. He was working as a mechanic and truck driver for Monaco Excavating, Inc. (Monaco), at the time of the accident, earning $400 per week.

On August 7, 1987, the plaintiff, in the course of his employment by Monaco, was operating a dump truck that weighed 60,000 pounds. While stopped in traffic, he was struck from behind by a refrigerated box truck driven by the defendant Johnny Ramirez and owned by the defendant A.P.A. Truck Leasing Company. The impact tore loose the driver’s seat in the plaintiffs vehicle, causing the plaintiff to be tossed around in a “whiplash” fashion, so that he struck the front and rear windows and the dashboard with his head, shoulders and knees. He immediately suffered pain and injury.

The plaintiff was first treated by his family physician, Alexander Isgut. Isgut testified that the plaintiffs injuries were consistent with the accident history and that the injuries were painful and stressful, requiring medication and referral to an orthopedist.

The plaintiff was referred to Walter Shanley, an orthopedic surgeon. Shanley treated the plaintiff for neck and back injuries until March, 1991, at which time magnetic resonance imaging (MRI) revealed a disc herniation. Shanley found the injuries to be consistent with the accident and opined that the injuries were painful and permanent. He ascribed 25 percent permanent disability to the cervical spine and 15 percent to the lumbar spine. Shanley also stated that the plaintiff would require future medical treatment and would incur future expenses and would be permanently unable to return to work as a truck driver.

The plaintiff was unable to return to work for two months following the accident. In October, 1987, he returned to work for Monaco but was restricted to light duty work. In December, 1987, because Monaco had no light duty work available, the plaintiff accepted a job with another construction company at the rate of $7 per hour. In the spring of 1989, the plaintiff obtained work as a union truck driver, earning $16 per hour plus overtime and benefits. In December, 1990, however, Shanley noted a serious deterioration in the plaintiffs condition and ordered him to cease work.

On June 12, 1991, Shanley and Lawrence Guido, a neurosurgeon, performed a cervical disc removal and fusion on the plaintiff. After surgery, the plaintiff was hospitalized in traction for four days and thereafter continued to require treatment and rehabilitation therapy. Guido, testifying by deposition, stated that the plaintiffs treatment and surgery were for injuries caused by the accident and that the injuries were painful, stressful and permanent in nature. He diagnosed the plaintiff as having a 25 percent permanent partial disability of the cervical spine. He also stated that the plaintiff would be unable to drive a truck and that, should the plaintiff do so, it would be at a serious risk to his spinal cord.

The plaintiff was unable to work before and after the surgery of June 12,1991. He was subsequently referred by Shanley to Eric Garver, an orthopedic surgeon, who treated him with physical therapy from August 4, 1993, to the time of trial. Garver testified that the injuries were caused by the accident and were painful and stressful, and that those injuries permanently prevented the plaintiff from driving a truck. Garver found the plaintiff to be permanently disabled to the extent of 30 percent of the cervical spine and 10 percent of the lumbar spine.

In September, 1993, the plaintiff began light duty work with Breza Builders, where he continues to be employed part-time, earning $7 per hour. In addition to financial losses, the plaintiff continues to suffer constant pain and has difficulty sleeping, moving and performing the activities of daily life. He continues to receive treatment and medication. The medical bills introduced into evidence totaled $47,037.92.

The issue of damages was tried to a jury. On June 9, 1994, the jury returned a general verdict in favor of the plaintiff in the amount of $1,015,142, including economic damages of $667,662 and noneconomic damages of $347,480. The defendants filed a motion to set aside the verdict and for remittitur, on the basis of the same issues raised on appeal. The trial court subsequently denied the defendants’ motions for a new trial and for remittitur, added statutory interest and attorney’s fees, and, on August 1, 1994, rendered judgment in favor of the plaintiff in the amount of $1,272,142.33.

I

The defendants first claim that the trial court improperly refused to set aside the verdict where the jury awarded damages for future medical expenses in the absence of any evidence that it was “reasonably probable” that such expenses would be incurred. That claim is without basis.

“Litigants have a constitutional right to have factual issues resolved by the jury. . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury. ... In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. . . . The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness.” (Citations omitted; internal quotation marks omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 138-39, 540 A.2d 666 (1988).

To set aside a jury verdict, the trial court must find that the verdict is “so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality . . . .” State v. Hammond, 221 Conn. 264, 268, 604 A.2d 793 (1992). It is improper, however, to set aside a verdict where the jury reasonably could have based its verdict on the evidence. American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 774, 607 A.2d 418 (1992).

“It is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date, particularly when there is also a degree of medical certainty that future medical expenses will be necessary. . . . Future medical expenses do not require the same degree of certainty as past medical expenses. . . . Where the doctor testifies that the injured party might need future treatment and the injured party testifies he still suffers pain, that testimony is sufficient for consideration of the element of future medical expense. . . .” (Citations omitted; emphasis added.) Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 233, 788 S.W.2d 729 (1990); Seymour v. Carcia, 24 Conn. App. 446, 455, 589 A.2d 7 (1991), aff'd, 221 Conn. 473, 604 A.2d 1304 (1992). Here, there was testimony that the plaintiff might incur future medical expenses, and the plaintiff testified that he still suffers pain. Therefore, the jury could properly award future medical damages.

Moreover, in this case, the jury rendered a general verdict. That fact, coupled with the absence of interrogatories, made it impossible for the trial court or this court to determine what factors the jury considered in making its award. The general verdict by its very nature is all encompassing and does not disclose whether, in fact, the jury awarded all $667,662 in economic damages for future medical expenses or awarded nothing at all for such expenses. Therefore, neither the trial court nor this court had any reasonable basis on which to break down the verdict. Where there is a general verdict and no breakdown of the components of the verdict, it would be error to set it aside. Creem v. Cicero, 12 Conn. App. 607, 533 A.2d 234 (1987); Katsetos v. Nolan, 170 Conn. 637, 368 A.2d 172 (1976).

II

The defendants next claim that the trial court improperly refused to set aside the verdict where the jury awarded damages for injuries not alleged in the complaint and improperly denied their motion to set aside the verdict and for remittitur in connection with that award. The complaint alleged, inter alia, “ligamentous and muscular sprain of the lumbar spine . . . [and] the cervical spine . . . [m]id to low back pain with radiation into his groin . . . pain in the left shoulder area . . . [and] aggravation of a possible underlying degenerative joint disease at L5-S1.” The MRI that revealed the disc herniation was performed subsequent to the filing of the amended complaint. The plaintiff underwent corrective fusion surgery for that conditon, but the complaint was not further amended to allege specifically the disc herniation or the surgery. Nevertheless, over the defendants’ objection, the trial court admitted evidence of that condition. The defendants claim that such injury and surgical procedure were outside the scope of the pleadings and that the verdict should, therefore, have been set aside. We disagree.

Practice Book § 178 provides: “In all cases of a material variance between allegation and proof, an amendment may be permitted at any stage of the trial .... Immaterial variances shall be wholly disregarded.” “A variance is a departure of the proof from the facts as alleged.” A. V. Giordano Co. v. American Diamond Exchange, Inc., 31 Conn. App. 163, 166-67, 623 A.2d 1048 (1993).

“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.” Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987); Pergament v. Green, 32 Conn. App. 644, 650, 630 A.2d 615, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). The complaint is required only to “fairly put the defendant on notice of the claims against him. ” Farrell v. St. Vincent’s Hospital, supra, 557. There is no legal requirement that the plaintiff specify each injury in an exact medical diagnosis or specify the exact treatment and medical procedures rendered.

The court will overlook an apparent variance “unless that variance is so material as to prejudice the other party in the presentation of its case.” Practice Book § 178; Webb Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57 (1987). Where the defendant is prejudiced in maintaining its defense, surprised by the proof or misled by the allegations in the complaint, the variance is material. A. V. Giordano, Co. v. American Diamond Exchange, Inc., supra, 31 Conn. App 166-67.

To set aside a verdict, variances must be material in a manner essential to the cause of action claimed. “An otherwise valid judgment will thus not be invalidated if a variance does not change the theory of the cause of action . . . .” Id., 167-68. “Justice is not served by accepting a claim of variance from a party who at all times has been in a position of knowing the true state of facts.” Schaller v. Roadside Inn, Inc., 154 Conn. 61, 67, 221 A.2d 263 (1966); Willey v. Boston Electric Light Co., 168 Mass. 40, 43, 46 N.E. 395 (1887).

In Marciniak v. Wauregan Mills, Inc., 139 Conn. 264, 266, 93 A.2d 626 (1952), the plaintiff required surgery to remove a second ruptured disc, and that surgery was not alleged in the complaint. The court held that where the variance is “a purely technical one,” such as in that case, where the defendants were on notice of the injury in question prior to trial and where “the claim of variance does not relate to the plaintiffs cause of action, but only to the injuries ensuing,” the variance is not material. LaFaive v. DiLoreto, 2 Conn. App. 58, 61-62, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).

In the present case, the plaintiff disclosed to the defendants, prior to trial, the physicians’ reports indicating the nature and extent of the injuries and the treatment thereof, including information about the disc herniation. The defendants knew the extent and percentage of permanent disability that would be adduced at trial. The defendants deposed the physicians who testified at trial. The defendants were not deprived of any means of discovery and fully utilized all of those available to them. At trial, the plaintiff presented evidence of the disc injury and its treatment, which had been disclosed to the defendants prior to trial. The defendants, armed with reports, disclosures and depositions, thoroughly cross-examined the plaintiffs witness. Moreover, while objecting to the admission of evidence relating to the disc herniation and surgery, the defendant Ramirez admitted that he was not surprised by either the evidence or the claim with respect to this injury, and that he was aware of these facts. Neither defendant demonstrated surprise or prejudice resulting from the court’s admission of evidence of the injury and its treatment. In the circumstances of this case, we cannot say that the defendants were surprised by the plaintiffs proof, misled by the allegations in the complaint, or prejudiced in maintaining their defense on the merits. For these reasons, the variance was not material; Strimiska v. Yates, 158 Conn. 179, 184, 257 A.2d 814 (1969); Mazziotti v. DiMartino, 103 Conn. 491, 495, 130 A. 844 (1925); and it was not improper for the trial court to admit evidence of either the injuries or the treatments.

Ill

The defendants next claim that the trial court improperly refused to set aside the verdict or to declare a mistrial where the plaintiffs injected the matter of insurance coverage into the case during oral argument. That claim is totally without merit.

“Generally in negligence actions, evidence that the defendant carries liability insurance is inadmissible.” Magnon v. Glickman, 185 Conn. 234, 242, 440 A.2d 909 (1981). In the present case, however, counsel’s reference to insurance was with regard to a coplaintiff, not a defendant, therefore rendering the stricture inapplicable in this case.

IV

The defendants’ final claim challenges the jury award and the court’s denial of the defendants’ motion to set aside the verdict and for remittitur.

As previously discussed, “[t]he trial court’s refusal to set aside the verdict is entitled to great weight”; Mather v. Griffin Hospital, supra, 207 Conn. 139; and the amount of damages is particularly an issue for the jury. Id., 138. “The amount of damages in any given case is dependent on the facts and circumstances of that case.” Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984). An award by a jury may range from penurious to generous and may be set aside only when it is contrary to the law or evidence. American National Fire Ins. Co. v. Schuss, supra, 221 Conn. 774. The award should be sustained if it does not shock the sense of justice or the conscience of the court. Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983).

Here, the plaintiff presented evidence as to past wages, future earning capacity, life expectancy, permanency of the injuries, diminished activities of daily life, past and future medical expenses and pain and suffering. The jury, after due deliberation, awarded the plaintiff economic damages of $667,662 and noneconomic damages of $347,480 for a total of $1,015,142 in damages.

Applying the aforesaid law to the facts and circumstances of this case, we conclude that the trial court’s refusal to declare a mistrial or to set aside the verdict, and its refusal to order a new trial or a remittitur were not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties stipulated that the accident resulted from the failure of the brakes on the defendant A.P.A. Truck Leasing Company’s truck.

       Richard Perneta, a registered physical therapist, supervised sixty-three physical therapy sessions with the plaintiff, each forty-five to ninety minutes long, between October 8, 1987 and May 18, 1993.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LEONARD SUPRENANT ET AL. v. EDWARD K. KUHN ET AL.
    (14359)
    Foti, Landau and Heiman, Js.
    Argued February 20
    decision released March 26, 1996

      Bruce A. Chaplin, with whom, on the brief, was Tania Schmidt-Mpers, law student intern, for the appellants (defendants).

      Charlotte Croman, for the appellees (plaintiffs).
   PER CURIAM.

The defendants appeal from the judgment of the trial court rendered for the plaintiffs awarding $2500 damages. They claim that the trial court improperly based its decision on an issue not raised in the pleadings, and abused its discretion in making certain findings. The defendants have failed to present a written memorandum of decision or a transcribed copy of an oral decision signed by the court explaining the factual basis for its decision. See Practice Book § 4059. We have consistently stated that it is the responsibility of the appellant to provide an adequate record for review. Practice Book § 4061; Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993); State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993).

The judgment is affirmed.


author: LANDAU, J.

text:
    MT. MAUMEE PARTNERSHIP v. ROGER PEET
    (13741)
    Dupont, C. J., and Landau and Hennessy, Js.
    Argued September 28, 1995
    decision released March 26, 1996

      Roger J. Frechette, with whom was Matthew E. Frech-ette, for the appellant (plaintiff).

      Jeffrey B. Sienkiewicz, for the appellee (defendant).
   LANDAU, J.

The plaintiff, Mt. Maumee Partnership, appeals from the judgment, rendered after a trial to the court, quieting and settling title to a parcel of real property in the defendant, Roger Peet. The dispositive issue on appeal is whether the trial court properly concluded that the plaintiff had failed to establish that its record title to the disputed property was superior to that of the defendant.

The trial court reasonably could have found the following facts. At issue is the ownership of a 70.21 acre parcel (parcel B) of woodland property located on Old Gorham Road in the town of Kent. On the opposite side of Old Gorham Road is a 546 acre parcel of woodland property (parcel A) owned by the plaintiff. The plaintiff took title to parcel A in December, 1986, “subject to such state of facts as an accurate survey and/or physical inspection of the premises may reveal.” Shortly after the conveyance, the plaintiff, through its principal, William Davis, engaged Samuel P. Bertacinni, Jr., to conduct a title search of parcel A and to prepare a survey.

Bertacinni determined that parcel A is situated entirely on the north side of Old Gorham Road and that its acreage is consistent with that described in the deeds that conveyed parcel A to the plaintiff. Bertacinni further determined that parcel B, which the plaintiff erroneously believed was part of parcel A, is located entirely south of Old Gorham Road. Bertacinni’s title search established that the plaintiff does not have record title to parcel B. Upon determining that the plaintiff did not own parcel B, Bertacinni did not attempt to determine the owner of record.

Bertacinni informed Davis that, because the plaintiff did not own parcel B, he would not show parcel B on the survey map of parcel A. Davis disagreed with Bertacinni and instructed him to include parcel B on the suivey map. Bertacinni complied with Davis’ request and labeled parcel B on the map as “Parcel B, possibly heirs of Frank Peet.” Davis instructed Bertacinni that, if he did not know who had record title to parcel B, he should change the label regarding parcel B to read “owner unknown.” Bertacinni complied.

Upon learning that the plaintiff was assembling and surveying properties in the area, the defendant also engaged a surveyor, William Wynott, to ascertain the exact location of parcel B. Wynott conducted a title search of parcel B and determined that title had been in the defendant’s family since 1866. In 1950, Frank H. Peet, the defendant’s grandfather, was the sole owner of parcel B. Frank H. Peet died in 1964, leaving a will in which he devised his entire estate to his widow, Clara Peet. On August 3, 1967, Clara Peet executed a quit claim deed to her daughter, Edna Peet, in which she conveyed a thirty acre parcel of property located north of Old Gorham Road. On February 19, 1987, Clara Peet conveyed parcel B to the defendant. Wynott agreed with the Bertacinni survey concerning the respective locations of parcels A and B in relation to Gorham Road.

On May 2, 1988, and January 25, 1989, the plaintiffs predecessors in interest in parcel A, Newman M. Marsil-ius, Jr., and the executrix of the estate of Norman K. Parcells, purported to convey an interest in parcel B to the plaintiff.

On appeal, the plaintiff asserts that its title to parcel B is superior to that of the defendant. The plaintiff argues that the trial court improperly determined that Clara Peet conveyed parcel B to the defendant in February, 1987, because in August, 1967, she conveyed, by quit claim deed, the same property to her daughter, Edna Peet.

“The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances. ... On appeal the scope of review of such a question is plenary and does not require the customary deference to the trial court’s factual inferences.” (Citation omitted; internal quotation marks omitted.) McCullough v. Water front Park Assn., Inc., 32 Conn. App. 746, 750, 630 A.2d 1372, cert. denied, 227 Conn. 933, 632 A.2d 707 (1993).

Our review of the August 2, 1967 quit claim deed reveals that it contains three paragraphs that describe the property conveyed by Clara Peet. The first paragraph states: “All that certain Piece, Parcel or Tract of land in the Town of Kent ... on the Northwesterly side of Gorham Road containing 30 acres.” The second paragraph states that “[sjaid Tract is bounded as follows,” and thereafter provides a detailed boundary summary of the parcel described in the first paragraph. Finally, the third paragraph, which begins: “Being the same premises as,” goes on to describe a “Wood Lot in a Certificate of Devise from the Estate of Frank Starr Peet . . . dated January 21, 1947 . . . reference also being made to a Quit-Claim Deed from Annie B. Peet to Frank H. Peet, dated April 7, 1950 . . . being the third piece described in said deed.”

From the use of the singular in the first paragraph, the trial court found that, as to that paragraph, “[i]t is clear that the intent of the grantor was not to convey two parcels of land.” The court further found that there is an inconsistency in the deed because, although the grantor intended to convey only one parcel, two separate and distinct parcels of land are described. While the first two paragraphs describe the thirty acre parcel located to the north of Gorham Road, the third paragraph describes parcel B. The trial court, therefore, had to determine which one of the two properties, parcel B or the thirty acre piece, Clara Peet intended to convey.

When a deed contains multiple descriptions that appear to be inconsistent and irreconcilable, the rule is that the description containing less certainty must yield to that with greater certainty. Barri v. Schwarz Bros. Co., 93 Conn. 501, 510, 107 A. 3 (1919). Here, the trial court determined that the description of the thirty acre parcel has a much greater certainty than the description of parcel B. The first paragraph very clearly describes the thirty acre parcel as being north of Gor-ham Road and containing thirty acres, more or less. The second paragraph provides the exact boundary dimensions of the thirty acre piece by references to two fixed monuments and several known abutting landowners.

The third paragraph, however, which provides a description of parcel B, is materially less certain. It describes parcel B only by a general reference that it is the same property contained in a 1947 certificate of devise from the estate of Frank Starr Peet, and a 1950 quit claim deed from Annie B. Peet. An examination of both instruments reveals that they merely describe the parcel as a “Wood Lot near Spectacle Lake; exact boundaries unknown; estimated to contain forty or fifty acres.” Although the trial court determined from other exhibits and testimony that the parcel near Spectacle Lake is parcel B, that finding does not add to the certainty of the description of parcel B in the 1967 deed itself.

We conclude that the trial court properly determined that Clara Peet, in the August, 1967 quit claim deed, conveyed only one parcel of land, the thirty acre parcel, to Edna Peet. We further conclude that, because Clara Peet had not conveyed parcel B to Edna Peet in 1967, the defendant received title to parcel B in the 1987 conveyance from Clara Peet. The defendant’s record title to parcel B, therefore, is superior to that of the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the trial court improperly (1) found possession of the subject property to be in the defendant or his predecessors in interest, (2) failed to find valid paper title and possession in the plaintiff, (3) failed to find that the defendant’s predecessor in interest, Clara Peet, was ousted of possession prior to the time she conveyed the subject property to the defendant, and (4) ruled that the defendant has a right to pass over the plaintiffs land to obtain access to Gorham Road.
      Claims one through three are subsumed in the dispositive issue and the last claim was withdrawn at oral argument.

       Because we are not concerned with the record title of the thirty acre parcel, it is irrelevant that the trial court determined that Clara Peet did not have record title to the thirty acre parcel at the time of the conveyance.

       The trial court found that even if parcel B had been conveyed to Edna Peet in 1967, that fact would not support the plaintiff’s claim to superior title over the defendant. To establish title, the party claiming title must rely on the strength of his own title, and not on the weakness of the title of another. Hurlburt v. Bussemey, 101 Conn. 406, 410, 126 A. 273 (1924).


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. GREGORY KING
    (13766)
    Dupont, C. J., and Lavery and Spear, Js.
    Argued November 3, 1995
    decision released March 26, 1996

      MarkDiamon, special public defender, for the appellant (defendant).

      Robert J. Seheinblum, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, assistant state’s attorney, for the appellee (state).
   SPEAR, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). He claims that the trial court improperly (1) denied his motion to dismiss for failure to grant him a speedy trial, (2) made prejudicial comments on the defendant’s right not to testify, (3) denied the defendant’s motion for judgment of acquittal based on renunciation, (4) referred to uncharged crimes in its instructions to the jury, (5) admitted into evidence an array of seven photographs, and (6) allowed the state’s attorney to engage in an improper closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 14, 1992, Eugene Coleman was on duty as the assistant manager at the C-Town supermarket in Hartford. At about 7:45 p.m., Coleman saw the defendant conceal several packages of meat beneath his coat and attempt to leave the store without paying. Coleman stopped the defendant as he was about to leave the store and, after a brief conversation, the defendant began to fight with Coleman in the vestibule of the store. As the parties struggled, they moved outside the store. The defendant punched Coleman several times during the struggle. Howard Walker, another store employee, saw the fighting and tried to help Coleman. While Walker and Coleman were attempting to take the defendant back into the store, the defendant broke away and grabbed an empty forty ounce beer bottle. He broke the bottle and stabbed Walker’s and Coleman’s hands with it. The defendant then fled from the area.

Coleman had seen the defendant in the neighborhood on at least twenty occasions prior to April 14,1992, but did not know his name. Coleman selected the defendant’s photograph from an array and identified the defendant in court as his assailant.

The defendant first claims that the trial court improperly denied his motion to dismiss wherein he alleged a denial of his right to a speedy trial pursuant to General Statutes §§ 54-82C and 54-82d. The following procedural history is necessary to resolve this claim. The defendant was arrested on the subject charges on June 12, 1992. He was unable to post bond and was incarcerated. On May 11, 1993, the defendant was sentenced to a term of imprisonment of thirty months on unrelated charges. On August 3,1993, the defendant filed a request for a trial or final disposition of the pending charges against him. The motion was filed pursuant to then General Statutes § 54-139 (now § 54-82c). On December 17, 1993, the defendant filed a “Motion for Dismissal Pursuant to [General Statutes §] 54-82d” because the subject charges were still outstanding and more than 120 days had passed since the request for disposition and notification to the state’s attorney.

The trial court heard the motion to dismiss on January 5, 1994, and found that the defendant’s attorney had not been available at any time during the 120 day period that was triggered by the speedy disposition request. The court found, therefore, that there was good cause for granting a continuance. At the January 5,1994 hearing, the prosecutor and the defense attorney agreed that the request for speedy trial that had been filed on August 3, 1993, had been granted but “tolled” because of the unavailability of defense counsel. On February 22, 1994, the trial commenced with jury selection.

The defendant mounts a fourfold attack on the trial court’s denial of his motion to dismiss. He claims that (1) the record does not contain a sufficient basis for the granting of a continuance for good cause, (2) the defense did not request a continuance, (3) new counsel should have been appointed in this matter, and (4) the defendant was not brought to trial within thirty days of his motion for a speedy disposition.

The first two claims will be discussed together as they both involve the continuance issue. The record indicates that counsel for the state and the defendant agreed that the attorney who had been appointed to represent the defendant had been on trial throughout the 120 day period. Further, counsel agreed that the 120 day period had been tolled by the court because of the unavailability of defense counsel when it “granted” the speedy disposition request. “When reviewing the grant of continuances which toll the statutory [120 day] period within which to bring a criminal case to trial, this court will find error only if a clear abuse is shown of the trial court’s discretion in finding that a continuance is necessary or reasonable.” State v. Antrum, 185 Conn. 118, 123, 440 A.2d 839 (1981). We conclude that the record reveals that a reasonable continuance was granted for good cause shown. The fact that the defendant never requested the continuance does not itself make the continuance improper. We, therefore, find that the trial court did not abuse its discretion.

The defendant offered no authority for the proposition that the trial court should have appointed another attorney from the public defender’s office to represent the defendant so that the trial could have commenced within the 120 day period. We conclude that such an option, with its attendant implications on the defendant’s right to effective assistance of counsel, was neither reasonable nor required. See State v. Brown, 40 Conn. App. 483, 671 A.2d 1316 (1996).

In his final challenge to the denial of his motion to dismiss, the defendant attempts to utilize General Statutes § 54-82m and its requirement that he be brought to trial within thirty days of his motion for speedy disposition. That statute directs the judges of the Superior Court to make rules that provide that “(1) . . . the trial of a defendant . . . shall commence within twelve months from the filing date of the information ... or from the date of arrest, whichever is later, except that when such defendant is incarcerated . . . pending such trial ami is not subject to the provisions of section 54-82c, the trial of such defendant shall commence within eight months from the filing date of the information . . . or . . . arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information . . . shall be dismissed. ...” (Emphasis added.) General Statutes § 54-82m. We conclude that this claim has no merit because the defendant was incarcerated on other charges before he made any request for a speedy disposition of the subject charges. As such, he was bound to make his claim for a speedy disposition pursuant to § 54-82c. Section 54-82m, by its own terms, does not apply to a person in the defendant’s circumstances. The trial court, therefore, properly denied the motion to dismiss.

Of the remaining five claims raised by the defendant on appeal, only the challenge to the photographic array was raised and preserved in the trial court. We have carefully reviewed and considered the record, briefs and arguments of the parties with respect to the photographic array and conclude that this claim is without merit. We have also reviewed the remaining four claims and conclude that they are similarly without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-82c provides in pertinent part: “Prisoner’s right to speedy trial on pending charges, (a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against, such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate' court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel bring present, the court may grant any necessary or reasonable continuance. . .

       General Statutes § 54-82d provides: “Dismissal of charges on failure to grant prisoner speedy trial. If an action is not assigned for trial within the period of time as provided in section 54-82c, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment or information be of any further force or effect, and the court shall enter an order dismissing the same.”

       In an introductory sentence in his brief, the defendant states that the United States and Connecticut, constitutions, as well as General Statutes § 54-82m, guarantee the accused a right to a speedy trial. He does not assert or brief a constitutional claim on appeal. At oral argument, the defendant’s counsel stated that he was pursuing only the claim pursuant to § 54-82d and no other speedy trial claim.

       The defendant’s attorney had a trial in a double murder case and was thus “unavailable for all these months.”

       General Statutes § 54-82c does not allow the court to grant or deny the speedy disposition request, but does allow the court to continue the case for good cause shown in open court.

       In accordance with this mandate, the judges of the Superior Court promulgated Practice Book § 956B, which affords criminal defendants the right to a speedy trial.


author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. TYRONE CAROLINA
    (13885)
    Dupont, C. J., and O’Connell and Landau, Js.

      Argued December 6, 1995
    decision released March 26, 1996

      Michael K. Courtney, assistant public defender, with whom, on the brief, was William Silk, certified legal intern, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and David Holzbach, assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, following a jury trial, of possession of a narcotic substance in violation of General Statutes § 21a-279 (a). The defendant was also convicted of disregarding the signal of a police officer in violation of General Statutes § 14-223 (b), but does not challenge the conviction of that charge.

The defendant claims that the trial court improperly (1) ruled that the defendant’s custodial arrest was lawful, (2) ruled that the warrantless search of the defendant’s vehicle was lawful, and (3) determined that the defendant’s constitutional right to a juiy selected from a fair cross section of the community was not infringed. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In early May, 1993, Brian Murphy of the Danbury police observed the defendant in the driver’s seat of a parked Ford Escort. Murphy approached the vehicle and found the defendant and a passenger sleeping in the car. Because the defendant did not have a valid operator’s license, Murphy warned him not to operate the vehicle.

While on patrol on June 3, 1993, Murphy recognized the defendant operating the same Ford Escort. After issuing the defendant a summons for operating a motor vehicle without a license, Murphy made arrangements for the car to be towed and the defendant walked home.

On June 4, 1993, Murphy again observed the defendant operating the Ford Escort in Danbury. Murphy pursued the defendant, who led him on a brief chase. The defendant then stopped his car and began to walk away. Murphy arrested the defendant, handcuffed him, patted him down, and placed him in the backseat of the patrol car.

The defendant was arrested at the scene for operating a motor vehicle without a license in violation of General Statutes § 14-36U and failure to obey the signal of a police officer in violation of § 14-223 (b). Each statute authorizes a fine for a first offense; neither provides for incarceration for a first offense.

While the defendant remained at the scene, Murphy searched his car. Under the driver’s seat, Murphy found a clear plastic bag containing four white paper folds. The items were seized and sent to the state toxicology laboratory for testing. The contents of the folds tested positive for cocaine.

I

In his first claim, the defendant argues that a full custodial arrest of a Connecticut resident is prohibited by article first, §§ 7 and 9, of the Connecticut constitution when the offense for which the resident is arrested is punishable by only a fine.

The fallacy in the defendant’s argument is that neither § 7 nor § 9 of article first of the Connecticut constitution specifically prohibits custodial arrests for offenses punishable solely by a fine. In Connecticut, the decision of a police officer, who has arrested a person for a motor vehicle offense, either to release the person on his own recognizance or to take that person into custody is governed by statute. General Statutes § 14-140 (a) provides in pertinent part: “Any person who has been arrested by an officer for a violation of any provision of any statute relating to motor vehicles may be released, upon his own recognizance, by such officer in his discretion, unless such violation is of a provision relating to driving while intoxicated or under the influence of drugs or using a motor vehicle without permission of the owner or evading responsibility for personal injury or property damage or involves the death or serious injury of another, in which cases such person shall not be released on his own recognizance.” (Emphasis added.)

Thus, the statute requires an officer to take the offender into custody if he is charged with certain offenses not relevant here. Under all other circumstances, § 14-140 (a) confers on the arresting officer the discretion either to release the offender or to take him into custody. Section 14-140 (a) presumes custody and then permits the officer, in his discretion, to release the offender.

In order to prevail on his state constitutional claim, the defendant must demonstrate that § 14-140 (a) is unconstitutional. It is axiomatic that every statute is presumed to be constitutional. Eielson v. Parker, 179 Conn. 552, 557, 427 A.2d 814 (1980). A defendant challenging the constitutionality of a statute bears the heavy burden of establishing the statute’s invalidity beyond a reasonable doubt. Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49 (1968). The defendant has failed to analyze § 14-140 (a) in his brief or at oral argument. He has therefore not sustained his burden of establishing that § 14-140 (a) is unconstitutional.

The defendant also relies on our rules of practice to support his argument that his custodial arrest was prohibited. We are not persuaded. The rule of practice is consistent with § 14-140 (a). At the time of the offense, Practice Book § 1004 (a) expressly provided that “a resident of the state of Connecticut . . . shall be issued a summons and complaint, and may, in the discretion of the law enforcement officer, be released without bail on his promise to appear.” (Emphasis added.) Prior to 1983, this section required the release of a Connecticut resident. In 1983, however, the language mandating release was deleted, and the emphasized discretionary language was substituted in its place.

On June 4, 1993, when the defendant committed the traffic offense at issue, the relevant part of § 1004 (b) provided that a Connecticut resident “who is charged with an infraction or with a traffic offense which is payable by mail pursuant to statute shall not be taken into custody, but shall be issued a summons and complaint . . . ,”

Because disregarding the signal of a police officer under § 14-223 (b) is not defined as an infraction and is not among the offenses payable by mail, the defendant was not required to be released under § 1004 (b) of the Practice Book. Because we have concluded that the defendant was properly taken into custody for disregarding the signal of a police officer, it is irrelevant that the defendant was also issued a summons for the infraction of operating a motor vehicle without a license.

II

The defendant next claims that even if his custodial arrest was not prohibited under §§ 7 and 9 of the Connecticut constitution, the search of the passenger compartment of his vehicle was improper under State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988).

Our Supreme Court has reviewed Connecticut law regarding the warrantless search of an automobile stopped in a public area conducted after the driver has been arrested, handcuffed, and placed in a patrol car. State v. Waller, 223 Conn. 283, 612 A.2d 1189 (1992); State v. Delossantos, 211 Conn. 258, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). In Delossantos and Waller, the court recognized that the state constitution permits law enforcement personnel to conduct a warrantless search when a defendant is restrained as a result of a lawful custodial arrest and when the defendant remains at the scene. Specifically, “when police make a lawful custodial arrest of an occupant of an automobile, and the arrestee is detained at the scene, police may contemporaneously search without a warrant the interior passenger compartment of the automobile.” State v. Delossantos, supra, 266-67.

The defendant argues that Delossantos and Waller do not apply to searches conducted pursuant to a custodial arrest for a violation of Connecticut’s traffic laws. Those cases, however, do not rely on the reason for the custodial arrest of a motor vehicle occupant. All they require is that a lawful custodial arrest shall have taken place and that the defendant remain at the scene while the search is conducted.

In the present case, the police made a lawful custodial arrest of the defendant and the defendant was detained at the scene while the search was conducted. The search of the defendant’s passenger compartment was justified as incident to a custodial arrest under the Connecticut constitution.

Ill

The defendant finally claims that his constitutional right to have a jury selected from a fair cross section of the community was infringed because venirepersons were selected from the Danbury judicial district rather than from Fairfield county as a whole.

For a defendant successfully to challenge the composition of his jury array, the defendant must prove “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process.” (Emphasis added.) Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). “Once the defendant has established this prima facie case, the burden then shifts to the state to prove that the selection system resulting in a nonrepresentative array furthers a significant state interest.” State v. Castonguay, 194 Conn. 416, 422, 481 A.2d 56 (1984). At issue in this case is whether the community in the Duren test may be defined as the judicial district instead of the county as a whole.

“To a large extent defining the community for purposes of the sixth amendment is an arbitrary decision. See Taylor v Louisiana, 419 U.S. [522, 537, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975)]. . . . County lines or federal district lines do not magically determine the parameters of a community. . . . [Hjowever . . . because the decision is somewhat arbitrary, it is a decision that should be left when possible to a body authorized to legislate on such matters.” Davis v. Warden, 867 F.2d 1003, 1009 (7th Cir.), cert. denied, 493 U.S. 920, 110 S. Ct. 285, 107 L. Ed. 2d 264 (1989).

In 1977, the Connecticut legislature adopted a unified court system through the creation of twelve judicial districts that replaced counties as the means of establishing venue. General Statutes § 51-344. Over the next five years, the legislature amended the provisions relating to the selection of jurors to replace the word “county” with the words “judicial district.” See General Statutes §§ 51-219c, 51-220a, 51-222, 51-231, 51-238, 51-344. Through these statutes, the Connecticut legislature has defined the community for purposes of jury selection to be the judicial district instead of the county.

Federal courts, concluding that the sixth amendment does not guarantee a defendant that prospective jurors will be selected from an entire district, have approved the selection of venirepersons from subdivisions of districts. The Second Circuit Court of Appeals, for example, has upheld the constitutionality of juries drawn from subdivisions of districts against challenges that the venire did not match the demographics of the district in its entirety. United States v. Gottfried, 165 F.2d 360, 364 (2d Cir. 1948). Other federal courts have similarly concluded that the sixth amendment does not encompass the right to have jurors drawn from an entire district. See Ruthenberg v. United States, 245 U.S. 480, 38 S. Ct. 168, 62 L. Ed. 414 (1918); United States v. Grisham, 841 F. Sup. 1138, 1145 (N.D. Ala. 1994).

On the basis of federal court precedent, we conclude that there is no constitutional limitation on the legislature’s ability to define community as the judicial district for the purposes of jury selection. The defendant has failed to establish a prima facie violation of the second prong of the Duren test. Accordingly, we conclude that the defendant’s right to have a jury selected from a fair cross-section of the community was not infringed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state did not prosecute the charge of operating a motor vehicle without a license.

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       Although we discuss the defendant’s argument, we do not suggest that a rule of practice can deprive a police officer of discretion conferred on him by statute.

       We note that Practice Book § 1004 (b) was further amended effective January 1, 1994. These amendments are not applicable to this case.

       For an offense to be considered an infraction, it must be defined as such in the statute describing the offense. General Statutes § 53a-27.

        Dukes, however, does not support the defendant’s contention because the court specifically declined to “decide what authority [an] officer would have had under our constitution to search (he vehicle . . . when the only provocation for [the stop] was a traffic violation.” State v. Dukes, supra, 209 Conn. 125.

       The defendant malees his claim under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant, however, has failed to support his appellate claim with an independent analysis under the Connecticut constitution. We therefore deem that claim to be abandoned. State v. Robinson, 227 Conn. 711, 721, 631 A.2d 288 (1993).


text:
    SAGINAW PRODUCTS CORPORATION v. ALFRED L. CAVALLO
    (13965)
    Dupont, C. J., and O’Connell and Schaller, Js.
    Argued January 24
    decision released March 26, 1996

      Guy R. DeFrances, Jr., for the appellant (defendant).

      Richard W. Tome, for the appellee (plaintiff).
   O’CONNELL, J.

The defendant appeals from a judgment rendered in favor of the plaintiff, following a court trial, for $41,234.52. The defendant claims that the trial court improperly rendered judgment that surpassed the relief sought in the complaint and also improperly determined that the plaintiff was a creditor of the defendant’s corporation. We affirm the judgment of the trial court.

The following facts are necessary for the disposition of this appeal. The defendant was the president, sole director and only shareholder of C & S Ball Bearing Machinery & Equipment Corporation of America (C & S), a Connecticut corporation. On or about January 15, 1988, the plaintiff purchased steel balls from C & S. When the balls proved defective, the plaintiff wrote to the defendant in his capacity as president of C & S. This letter referred both to prior correspondence and the prospect of litigation if an amicable settlement was not reached.

The defendant owned the building in which C & S was located and in 1989 C & S paid the defendant $41,670 in rent. On September 12,1989, C & S liquidated all its machinery and equipment at an auction that yielded $398,759.75. The defendant paid himself $25,003 from the sale proceeds. The plaintiff received nothing from the proceeds.

The plaintiff obtained a judgment against C & S in Michigan for $39,151.83 and then sued C & S in Connecticut on the Michigan judgment. On June 6, 1990, the Connecticut court rendered judgment for the plaintiff for $39,151.83 plus interest of $1882.69 and costs of $200. The plaintiff obtained property and bank executions against C & S, which were returned unsatisfied.

On March 1,1994, the plaintiff commenced this action in three counts against the defendant in his individual capacity. In the first count, the plaintiff claims that the defendant caused C & S to pay himself a distribution after it became a C & S creditor in violation of General Statutes § 33-321. In the second count, the plaintiff alleges that the defendant, as a director of C & S, breached his fiduciary duty to the plaintiff as a creditor by taking a distribution knowing that C & S lacked funds to pay the plaintiff. In the third count, the plaintiff alleged that the defendant, as a C & S shareholder, took a distribution in violation of General Statutes § 33-359.

The case was tried to the court, which rendered judgment in favor of the plaintiff on all counts for $41,234.52 with interest from July 15, 1990.

I

The defendant first claims that the plaintiffs pleadings did not seek recovery beyond the $25,003 received by the defendant on October 9, 1989. Additionally, the defendant complains that the trial court found the defendant personally liable for the corporate debt despite the plaintiffs failure to plead a cause of action seeking to pierce the corporate veil.

A

It is axiomatic that a plaintiffs right of recovery is limited to the allegations of its complaint. Montano v. Kin-Therm, Inc., 4 Conn. App. 187, 190-91, 493 A.2d 266 (1985). “[Any] judgment, to be adequate as such, must conform to the pleadings, the issues and the prayers for relief. . . . “ (Citation omitted; internal quotation marks omitted.) New Haven v. Mason, 17 Conn. App. 92, 96, 550 A.2d 18 (1988). We will reverse a judgment only if it is based on a different cause of action from that alleged in the complaint. Francis v. Hollauer, 1 Conn. App. 693, 695, 475 A.2d 326 (1984).

Our examination of the complaint does not disclose a factual predicate to support the defendant’s claim of material variance between the complaint and the judgment. Paragraphs seven, eight and nine of the complaint allege that C & S sold substantially all of its assets at auction and that the defendant paid himself $25,003 plus other shareholder distributions after the plaintiff became a creditor of C & S. The plaintiffs demand for relief also includes a claim for other shareholder distributions in addition to the $25,003 distribution. Such “other distributions” claimed to be received by the defendant include the $41,670 in rental payments.

We conclude that the conclusions of the trial court and the judgment it rendered were within the scope of the pleadings and claims for relief.

B

The defendant also argues that the trial court improperly found the defendant personally liable for the corporation’s debt although no cause of action seeking to pierce the corporate veil was pleaded. The defendant’s liability, however, was not premised on his position as an officer of the coiporation, but rather on his statutory liability as director and shareholder. General Statutes § 33-282 et seq. Section 33-321 (b) (1) provides that a director of a corporation in liquidation who votes for distribution of assets in excess of the claims of creditors is liable to reimburse the corporation to the extent of the distribution. Section 33-359 provides that any shareholder of a corporation in liquidation who receives a distribution, knowing it to be improper, is liable to creditors of the corporation. The defendant in the present case was both a director who voted for the improper distribution and a shareholder who received it. Accordingly, the trial court properly imposed personal liability on the defendant pursuant to the Connecticut Stock Corporation Act.

II

The defendant next argues that the trial court improperly found that the plaintiff was a creditor of the defendant’s corporation. To impose director liability under § 33-321 (b) (1), the creditors must be “existing at the date of such [distribution] vote . . . .” To impose shareholder liability under § 33-359, the creditor must be “existing at the time of distribution . . . .” Both statutes also require that the creditor must “obtain judgment against [the] corporation on which execution is returned unsatisfied . . . .”

Following the defendant’s argument to its logical conclusion, we would need to construe these statutes to mandate that a creditor must have reduced its claim to judgment and have an execution returned unsatisfied at the time of the vote of the directors or the distribution to the shareholders. To the contrary,, the plain language of the statutes clearly requires only that the claim be in existence at the time of the vote or distribution, not that a judgment be obtained. When the words of a statute are clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992). We are not persuaded by the defendant’s statutory construction argument because it contradicts the plain meaning of the statutes.

Moreover, it is readily apparent that under most circumstances the defendant’s interpretation would render the statutes meaningless. Presumably, if a judgment was obtained and an execution issued before the assets were distributed, they would be seized pursuant to the execution and the execution would not be returned unsatisfied. We will not presume that the General Assembly intended to enact a meaningless or ineffective law. State v. Siano, 216 Conn. 273, 278, 579 A.2d 79 (1990).

In compliance with the statutes, the plaintiff obtained a judgment against C & S following the wrongful distribution, and only when an execution was returned unsatisfied did it seek a personal judgment against the defendant. The trial court properly held both that the plaintiff was a creditor and the subsequent distribution to the defendant was wrongful.

Ill

Because we have concluded that the defendant is indebted to the plaintiff under the Connecticut Stock Corporation Act, we need not discuss the plaintiffs remaining claim that the defendant breached a common law fiduciary duty.

The judgment is affirmed.

In this opinion the other judges concurred.

       The precise judgment amount is unclear. The plaintiff is seeking $41,234.52, and, because that amount is less than the amount that the defendant understood the judgment to be, we use it for the purposes of this decision.

        Saginaw Products Corp. v. C & S Ball Bearing Machinery & Equipment Corp. of America, Circuit Court for the County of Saginaw, Docket No. 89-386081-CK-l (December 18, 1989).

        Saginaw Products Corp. v. C & S Ball Bearing Machinery & Equipment Corp. of America, Superior Court, judicial district of New Haven at Meriden, Docket No. CV90-235782S (June 6, 1990).

       General Statutes § 33-321 provides in relevant part: “(b) In addition to any other liabilities imposed by law upon directors of a corporation: (1) Directors who vote for any distribution of assets of a corporation to its shareholders in violation of this chapter ... in liquidation, or otherwise, shall be jointly and severally liable to make payment to the corporation to the extent of (A) claims of creditors existing at the date of such vote who obtain judgment against such corporation on which execution is returned unsatisfied

       Paragraphs seven, eight and nine of the complaint provide:
      “7. On or about September 12, 1989, C & S sold substantially all of its assets at an auction which proceeds exceeded $400,000.00.
      “8. From the auction proceeds, defendant caused C & S to pay himself $25,003.00. Said payment was a shareholder distribution upon liquidation of the assets of C & S.
      “9. Upon information and belief, defendant caused C & S to pay himself other shareholder distributions after plaintiff became a creditor of C & S.” (Emphasis added.)

       The complaint contained the following claims for relief. “1. Money damages; 2. An order from this Court directing defendant to return to C & S $25,003.00 and such other shareholder distributions he received after plaintiff became a creditor.”

       The trial court found that the lease between C & S and the defendant was a sham and thus the rental payments were wrongful distributions that should be subject to the claims of creditors.

       General Statutes § 33-359 provides in relevant part: “Any shareholder who receives any distribution of assets from a corporation ... in liquidation or otherwise, and has accepted or received such distribution knowing it to be improper shall be liable for the amount so received: (1) To any creditors existing at the time of such distribution who obtain judgment against such corporation on which execution is returned unsatisfied . . . .”


text:
    JAMES EACOTT, JR., TRUSTEE, ET AL. v. INSURANCE COMPANY OF NORTH AMERICA ET AL.
    (13966)
    Dupont, C. J., and Landau and Spear, Js.
    Argued January 9
    decision released April 2, 1996

      RaymondL. Baribeault, Jr., with whom, on the brief, was Ha?ry E. Calmar, for the appellants (plaintiffs).

      Ernest J. Mallei, with whom, on the brief, was James L. Fischer, for the appellees (defendants).
   SPEAR, J.

The plaintiffs appeal from the judgment of the trial court dismissing, for lack of subject matter jurisdiction, their complaint against a surety and general contractor for pension and health contributions owed to the plaintiffs’ funds pursuant to a labor and material payment bond. The plaintiffs assert that the trial court improperly (1) concluded that their claim was preempted by the Employee Retirement Income Security Act (ERISA); 29 U.S.C. § 1001 et seq.; and (2) refused to consider legislation pending in Congress that would clarify the issue of whether the plaintiffs’ claim was, in fact, preempted by ERISA. We reverse the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. The Stone Building Company (general contractor), a defendant in this action, entered into an agreement to construct the Jewish Community Center of Greater New Haven. The project was a bonded public project. The general contractor hired CA-MI Contracting, Inc. (subcontractor), to perform the masonry work required for the project. The subcontractor thereafter hired members of a labor union to perform the work. Pursuant to an agreement between the subcontractor and the labor union, the subcontractor was required to contribute to the Connecticut Bricklayer’s Pension Fund (fund). This fund constitutes a recognized employee pension benefit plan established pursuant to § 302 of the Labor-Management Relations Act of 1947, later amended as 29 U.S.C. § 186, and also constitutes an employee benefit plan established pursuant to 29 U.S.C. § 1002 (1), (2) and (3). The plaintiffs in this action are duly appointed trustees of the fund.

On July 28,1992, the general contractor on the project entered into a labor and material payment bond with the named defendant, Insurance Company of North America (surety) as required by General Statutes § 49-41. Under the terms of the bond, the surety promised to pay subcontractors and suppliers for labor performed and materials supplied on the project in the event of nonpayment. Payments for labor included payments of pension and health contributions into the plaintiffs’ fund.

The subcontractor subsequently defaulted on its payments into the fund. The plaintiffs, pursuant to General Statutes § 49-42, served written notice on the surety and the general contractor, as principal on the bond, seeking payment for the contributions owed to the fund by the subcontractor. After the defendants refused to make the required payments, the plaintiffs filed a complaint pursuant to § 49-42. The defendants moved to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction, claiming that ERISA preempted the plaintiffs’ claim. The trial court granted the defendants’ motion and later denied the plaintiffs’ motion for reconsideration. This appeal followed.

The plaintiffs first challenge the trial court’s conclusion that ERISA preempts their claim brought pursuant to § 49-42. The plaintiffs maintain that their claim is not preempted because (1) § 49-42 does not sufficiently “relate to any employee benefit plan” as required by § 514 (a) of ERISA; 29 U.S.C. § 1144 (a); (2) ERISA does not adequately provide redress to the plaintiffs since ERISA excludes a surety from its definition of an employer, (3) § 49-42 concerns the business of insurance and is thus exempt from preemption, (4) ERISA affords to state courts concurrent jurisdiction over actions by participants and beneficiaries, and (5) remedial statutes, such as § 49-41, that merely provide an enforcement mechanism, are not subject to federal preemption.

Our discussion of whether the plaintiffs’ claim is preempted by ERISA necessarily begins with an analysis of ERISA’s preemption provision. Section 514 (a) of ERISA; 29 U.S.C. § 1144 (a); provides for the preemption of “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003 (a) . . . .” The United States Supreme Court has addressed a standard for determining whether a state law “relates to” any employee benefit plan. (Emphasis added.) Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (1983). “A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Id.; see also District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 129-30, 113 S. Ct. 580, 121 L. Ed. 2d 513 (1992) (“ERISA pre-empts any state law that refers to or has a connection with covered benefit plans . . . ‘even if the law is not specifically designed to affect such plans, or the effect is only indirect . . .’ and even if the law is ‘consistent with ERISA’s substantive requirements’ ” [citations omitted]); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656, 115 S. Ct. 1671, 131 L. Ed. 2d 695 (1995).

Our resolution of whether § 49-41 “relates to” any employee benefit plan is greatly facilitated by two cases recently decided by the United States Court of Appeals for the Second Circuit that are factually analogous to the present case. In Greenblatt v. Delta Plumbing & Heating Corp., 68 F.3d 561 (2d Cir. 1995), decided October 13, 1995, the defendant-surety appealed from the judgment of the District Court awarding recovery on a surety bond to the plaintiffs. On appeal, the defendant claimed that the federal District Court lacked subject matter jurisdiction to entertain the plaintiffs’ claim on the bond that was issued pursuant to a collective bargaining agreement. Id., 567.

Because federal jurisdiction over a state law claim can arise through the preemption of that state law claim, the Second Circuit entertained the issue of whether the plaintiffs’ claim was preempted by ERISA. “In determining whether a state law [relates to any employee benefit plan], we look first to see whether that law makes explicit reference to ERISA plans. . . . If it does not, we inquire whether pre-emption would serve the basic purpose of § 514 (a): namely, to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.” (Citation omitted; internal quotation marks omitted.) Id., 574. The court then found that “state surety law makes no explicit reference to ERISA plans and does not . . . regulate them in any fashion. Nor does the application of state surety law to bonds ensuring ERISA obligations threaten a ‘multiplicity of regulation’ that would interfere with ‘the nationally uniform administration of employee benefit plans.’ ” Id; see also New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., supra, 514 U.S. 656-58. The Second Circuit therefore concluded that “[a]lthough obviously affecting and involving ERISA plans, surety bond claims are not pre-empted by § 514 (a).” (Emphasis added; internal quotation marks omitted.) Greenblatt v. Delta Plumbing & Heating Corp., supra, 68 F.3d 574; see also Mackey v. Lanier Collection Agency & Service, 486 U.S. 825, 833, 108 S. Ct. 2182, 100 L. Ed. 2d 836 (1988).

The Second Circuit reached the same conclusion in Bleiler v. Cristwood Construction, Inc., 72 F.3d 13 (2d Cir. 1995), decided December 8, 1995, when the court addressed the identical issue now confronting us, specifically, whether ERISA preempts claims brought pursuant to § 49-42. In Bleiler, the Second Circuit reversed the judgment of the District Court dismissing the plaintiff-trustee’s § 49-42 claim on the ground that the state law claim was preempted by ERISA. On an appeal brought by the plaintiff, the Second Circuit, relying on its recent decision in Greenblatt, concluded that the “state contract claim on [the] surety bond was not preempted by ERISA . . . [because] such a claim neither related to any employee benefit plan nor conflicted with any enforcement mechanism specified in ERISA.” Id., 16.

Because the issue of preemption is a matter of federal law; Times Mirror Co. v. Division of Public Utility Control, 192 Conn. 506, 510, 473 A.2d 768 (1984); we are bound by the decision in Bleiler under the supremacy clause of article six of the United States constitution. While §§ 49-41 and 49-42 have an obvious effect on ERISA plans, the statutes do not explicitly make reference to ERISA plans or regulate such plans in any fashion. As such, §§ 49-41 and 49-42 do not sufficiently “relate to any employee benefit plan” to fall within the preemption provision of § 514 (a) of ERISA (29 U.S.C. § 1144 [a]). The trial court, therefore, should have denied the defendants’ motion to dismiss for lack of subject matter jurisdiction.

The plaintiffs also assert on appeal that the trial court improperly refused to consider pending legislation in Congress that would clarify the issue of whether the plaintiffs’ claim was preempted by ERISA. Because we have independently concluded that § 49-42 claims are not preempted by ERISA, we need not address the merits of this issue.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The labor union involved in this action is the District Council of Northern Connecticut of the International Union of Bricklayers and Allied Craftsmen, AFL-CIO.

       General Statutes § 49-41 provides in pertinent part: “Public structures. Bonds for protection of employees and materialmen, (a) Each contract exceeding twenty-five thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof shall include a provision that the person to perform the contract shall furnish to the state or the subdivision on or before the award date, a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person . . . .”

       The bond, and the statute requiring it, serve to protect those who furnish materials and labor on a public project by ensuring payment without any undue delay. See Royal School Laboratories, Inc. v. Watertown, 358 F.2d 813, 816 (2d Cir. 1966); American’s Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 227, 384 A.2d 378 (1978).

       General Statutes § 49-42 provides in pertinent, part: “Enforcement of right to payment on bond. Suit on bond, procedure and judgment, (a) Any person who performed work or supplied materials for which a requisition was submitted to, or for which an estimate was prepared by, the awarding authority and who does not receive full payment for such work or materials within sixty days of the applicable payment date provided for in subsection (a) of section 49-41a, or any person who supplied materials or performed subcontracting work not included on a requisition or estimate who has not received full payment for such materials or work within sixty days after the date such materials were supplied or such work was performed, may enforce his right to payment under the bond by serving a notice of claim on the surety that issued the bond and a copy of such notice to the contractor named as principal in the bond within one hundred eighty days of the applicable payment date provided for in subsection (a) of section 49-41a, or, in the case of a person supplying materials or performing subcontracting work not included on a requisition or estimate, within one hundred eighty days after the date such materials were supplied or such work was performed. ...”

       General Statutes § 4M2 (a) provides in pertinent part that “[i]f the surety denies liability on the claim, or any portion thereof, the claimant may bring action upon the payment bond in the superior court for such sums and prosecute the action to final execution and judgment. . . .”

       We also note that the court in Greenblatt, addressed whether the plaintiffs’ claim was preempted by § 301 of the Labor-Relations Management Act, 29 U.S.C. § 185. That section provides that “suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... or between any such labor organizations, may be brought in any district court, of the United States having jurisdiction of the parties, without respect to tire amount in controversy or without regard to the citizenship of the parties.” The court concluded that §301 “does not pre-empt state surety law. [N]ot every dispute . . . tangentially involving a provision of a collective-bargaining agreement ... is preempted by § 301 . . . .” (Internal quotation marks omitted.) Greenblatt v. Delta Plumbing & Heating Corp., supra, 68 F.3d 572-73. The court continued: “ 'As a general proposition, a state-law claim may depend for its resolution upon both the interpretation of a collective-bargaining agreement and a separate state-law analysis that does not turn on the agreement. In such a case, federal law would govern the interpretation of the agreement, but the separate state-law analysis would not be thereby pre-empted.’ ” (Emphasis added.) Id., 573, quoting Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 413 n.12, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988).

       In Bleiler, the plaintiff also filed a claim pursuant to ERISA that was separate and distinct from its § 49-42 claim. That claim was also dismissed by the District Court. On appeal, that portion of the judgment dismissing the plaintiffs ERISA claim was affirmed. Bleiler v. Cristwood Construction, Inc., supra, 72 F.3d 15-16.

       We recognize that the trial court did not have the benefit of the Greenblatt and Bleiler decisions, as they were decided after the judgment of the trial court.


text:
    L AND G ASSOCIATES, INC. v. ZONING BOARD OF APPEALS OF THE CITY OF DANBURY
    (14356)
    Foti, Schaller and Spallone, Js.
    Argued January 12
    decision released April 2, 1996

      Bruce L. Elstein, with whom, on the brief, was Henry Elslein, for the appellant (substitute plaintiff Kristian J. Taylor).

      Daniel E. Casagra.nde, for the appellee (defendant).
   SPALLONE, J.

This is an appeal from the declaratory judgment of the trial court rendered in favor of the defendant. The substitute plaintiff, Kristian J. Taylor, claims on appeal that the trial court improperly (1) considered the entire public record, rather than considering solely the plain language of the variance certificate in concluding that the variance did not permit construction of an office building on the subject property, (2) created an unreasonable restraint on the alienation of the subject property, and (3) created a restrictive covenant on the subject property.

The named plaintiff brought this action seeking a declaratory judgment as to whether a variance granted by the defendant on July 27, 1978, allows certain property to be the site of an office building. After trial, the court declared that the variance did not allow the construction of an office building on the subject property. The named plaintiff appealed to this court, and, on April 20, 1993, we reversed the judgment of the trial court and remanded the case because the record failed to indicate compliance with the notice requirement of Practice Book § 390 (d). L & G Associates, Inc. v. Zoning Board of Appeals, 31 Conn. App. 12, 623 A.2d 494 (1993).

On September 28, 1993, Seymour, Inc., was substituted as plaintiff. The notice requirements were duly complied with and no additional parties intervened. A new hearing was held and the parties offered no new evidence beyond that introduced at the original trial. On December 14,1994, the court filed its memorandum of decision and rendered judgment for the defendant in accordance with the original decision. This appeal followed. After the appeal was filed, Kristian J. Taylor was substituted as plaintiff.

The evidence adduced at trial reasonably supports the following facts. In July, 1978, Corporate Properties, Inc. (Corporate), held an option to purchase five lots located at the intersection of Lake Avenue and Shannon Ridge Road in Danbury. The entire four and one-half acre parcel is bounded by Lake Avenue to the south and is intersected by Shannon Ridge Road. The parcel is zoned for residential use in an RA-8 zone.

Four of the lots in the parcel are located east of Shannon Ridge Road and referred to as the east parcel. The fifth lot, approximately 0.38 of an acre, is located west of Shannon Ridge Road and referred to as the west parcel.

On or about July 7,1978, Corporate applied for a use variance permitting it to construct a 90,000 square foot office building on the east parcel. The application also sought a variance of building height limits. Corporate’s application requested a variance of existing regulations “to permit the premises to be used for offices for business, banking or professional purposes and parking incidental thereto” and described the proposed use of the entire parcel in the singular as an “office building.” The legal description contained in the application included the entire parcel. The variance application, however, indicated no use of the west parcel. The site plan submitted in support of the application showed a proposed office building on only the east parcel.

Although the application form required that the applicant submit a “plot plan showing location of all buildings and any proposed buildings, and the size of same,” nothing in the application indicated any use of the west parcel. The defendant granted Corporate’s application for a variance on July 27, 1978.

In 1986, the named plaintiff L & G Associates, Inc. (L & G) purchased the west parcel from Corporate. L & G, through its agents, was aware of the variance at the time of the purchase. Subsequently, L & G was informed by the city’s zoning enforcement officer that the variance did not apply to the 0.38 acre west parcel. Thereupon, L & G brought this action seeking a declaratory judgment as to whether the variance applied to the west parcel.

I

The substitute plaintiff first claims that the trial court improperly considered the entire public record, rather than considering solely the plain language of the variance certificate, in concluding that the variance did not allow the plaintiff to construct a building on the west parcel. We disagree.

Our Supreme Court, in determining the use of property that a variance allows, has considered not only the language of the variance certificate, but also the specific use of the property proposed by the applicant, as set forth in the variance application. See Raymond v. Zoning Board of Appeals, 164 Conn. 85, 87-88, 318 A.2d 119 (1972). Courts in other states have also looked to both the variance application and the legal description of the property as it is set forth in the variance certificate to determine the uses that the variance allows. See Hazel v. Metropolitan Development Commission, 154 Ind. App. 94, 99-103, 289 N.E.2d 308 (1972); Clark County Board of Commissioners v. Taggart Construction Co., 96 Nev. 732, 735, 615 P.2d 965 (1980); Rye v. Ciborowski, 11 N.H. 77, 80-82, 276 A.2d 482 (1971).

The proposition that the scope of a variance is determined by examining the specific use proposed in the variance application and approved by the zoning board of appeals is a necessary corollary of the limited nature of variances. “[A] variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations.” (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 372, 537 A.2d 1030 (1988); Clark County Board of Commissioners v. Taggart Construction Co., supra, 96 Nev. 734. “Because a variance affords relief from the literal enforcement of a zoning ordinance, it will be strictly construed to limit relief to the minimum variance which is sufficient to relieve the hardship.” Clark County Board of Commissioners v. Taggart Construction Co., supra, 735.

In this case, the application was for a single 90,000 square foot office building to be located on the east parcel and did not seek permission to use the west parcel for the construction of a separate commercial building. The granting of the variance allows the requested use of land located in a residential zone. A use outside that requested in the variance application and illustrated in the site plan would require a further variance. The intended and requested use violates the zoning regulations because the requested use is not allowed in the RA-8 zone where the subject property is located. To hold otherwise would transform a variance into a change of zone. See Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 271, 588 A.2d 1372 (1991). The trial court did not improperly consider the entire public record in concluding that the variance did not allow construction of an office building on the west parcel. The trial court would have been remiss had it failed to do so.

II

The substitute plaintiffs second claim, that the trial court improperly created an unreasonable restraint on the alienation of the subject property, is completely without merit. The use of the property is subject to the zoning regulations of the town. Such regulations may sometimes require judicial interpretation, but the regulations, not the court, limit the use of the land.

Ill

The substitute plaintiffs third claim, that the trial court improperly created a restrictive covenant on the subject property, is also completely without merit. The trial court did not and could not create a restrictive covenant on the subject parcel. Restrictive covenants are created by deed, not by judicial fiat. See Grady v. Schmitz, 16 Conn. App. 292, 296, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988). Under certain circumstances a trial court may reform a deed to create a restrictive covenant, but this is not such a case.

In sum, the trial court correctly considered the entire public record in determining the scope of the variance in this case and correctly concluded that the variance did not allow a commercial building to be constructed on the subject property. In addition, the trial court did not create an unreasonable restraint on alienation or a restrictive covenant on the property.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 390 (d) provides in pertinent part: “The court, will not render declaratory judgments upon the complaint of any person . . . unless all persons having an interest in the. subject matter of the complaint are parties to the action or have reasonable notice thereof.”