author: DUPONT, C. J. SHEA, J.,

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION v. BONITA L. C. MARBURG ET AL.
    (AC 16387)
    Dupont, C. J., and Landau and Shea, Js.

      Argued May 1
    officially released August 5, 1997

      Robert B. Bellitto, for the appellants (defendant Margaret A. Fabrizio et al.).

      Edmund T. Curran, for the appellee (plaintiff).
   Opinion

DUPONT, C. J.

This case arose when the plaintiff, United Services Automobile Association (USAA), sought a declaratory judgment that, under its contract of homeowners insurance with the defendant Bonita L. C. Marburg, it had no duty either to defend or to indemnity Marburg for any judgment rendered against her in a lawsuit brought by a child and his mother, who are also defendants in this action.

The child and his mother instituted an action against Marburg in August, 1993, alleging that in 1991, when the child was eleven and twelve years old, Marburg had sexually abused him on at least seventy-three occasions during tutoring sessions. The Stratford school system had referred the child to Marburg for such tutoiing. The child and his mother claimed that, as a result of the sexual abuse, which involved intercourse, sodomy and fellatio, the child suffered serious psychological and emotional injury. He and his mother also incurred substantial expenses for medical and psychological care as a result.

Counts one, three and five of the amended complaint of the child and his mother against Marburg contained allegations by the child of sexual misconduct, sounding, respectively, in assault and battery, negligence, and negligent infliction of emotional distress. Counts two, four and six mirrored one, three and five, but were brought by the child’s mother and sought damages for expenses incurred. Count seven asked for punitive damages because of the egregious and unconscionable nature of the sexual misconduct. The eighth count alleged a fraudulent transfer of assets to Marburg’s husband, John Marburg, also named as a defendant.

On November 28, 1995, the child and his mother filed a substitute complaint against Marburg. Although alleging the same sexual misconduct, it eliminated counts one, two, seven and eight, leaving only the counts alleging negligent misconduct.

Within two weeks of filing the substitute complaint, the child and his mother and Marburg stipulated to judgment for the child and his mother. They also drafted a separate written covenant, in which the child and his mother agreed that if Marburg gave full cooperation to the child and his mother in both cases, the child and his mother would not seek to satisfy any judgment rendered against Marburg from any real, personal or other property owned by her.

At the time of the alleged events, Marburg and her husband were the named insureds under a homeowners insurance policy issued by USAA. Although the policy provided coverage for “damages because of bodily injury or property damage,” it excluded coverage for damages resulting from “bodily injury . . . which is expected or intended by the insured [or] arising out of or in connection with a business engaged in by an insured.”

USAA sought summary judgment on the portion of its declaratory judgment claim in which it sought a declaration that it owed no duty to indemnify Marburg against the claims of the child and his mother. It argued that no material issue of fact existed as to whether all of the damages of the child and his mother fell within the “expected-or-intended-injury” exclusion and the “business-pursuits” exclusion, and, thus, the damages would be excluded from coverage as a matter of law. The child and his mother opposed the motion, stating that there were material issues of fact regarding Mar-burg’s intent to harm the child and regarding the business pursuits exception. Specifically, they alleged that Marburg suffered from a mental disease or defect that prevented her from forming an intent to cause the child harm, and that at least some of Marburg’s sexual misconduct did not occur during her tutoring sessions with the child. The plaintiff claims that there is no coverage because Marburg’s acts were intentional and because the damages did arise out of or in connection with business pursuits. The trial court granted the plaintiff’s motion for summary judgment.

The standard of review for summary judgment is well established. “Practice Book § 384 mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show 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. A material fact is a fact that will make a difference in the result of the case. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evi-dentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Fernandez v. Standard Fire Ins. Co., 44 Conn. App. 220, 222, 688 A.2d 349 (1997).

Many cases from other jurisdictions have held, under a doctrine of presumption of intent, that acts of sexual molestation of minors are so heinous that intent to cause harm is presumed as a matter of law. See annot., 31 A.L.R.4th 957, § 5 (b) (1984). The trial court in this case limited the doctrine of presumption of intent to cause harm to minors to situations where the actor is aware of the minority of the victim. The court specifically found that Marburg possessed the requisite intent because Marburg was aware of the child’s age.

The court reasoned that Marburg is presumed to know the law, and, therefore, she knew that the sexual acts were in violation of the criminal laws that prohibit such activities with minors. This presumption supports the conclusion that when Marburg engaged in the misconduct with knowledge of the victim’s age, she intended to cause her victim injury, as a matter of law. The defendants claim that the presumption is rebutta-ble, and that they have sufficiently raised an issue of fact that could rebut the presumption that Marburg intended to cause harm. Marburg claims that she suffered from a mental illness that made her incapable of forming such intent.

An insured’s conduct can be considered unintentional in situations such as those here only if the insured can produce evidence to show that she did not intend to cause the damage. See Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 205-206, 663 A.2d 1001 (1995). If the insured cannot show that her behavior was unintentional, the presumption of intent remains intact, and the exclusion of the homeowners policy precludes coverage. Id.

“It is axiomatic, in the tort lexicon, that intentional conduct and negligent conduct, although differing only by a matter of degree; Mingachos v. CBS, Inc., 196 Conn. 91, 103, 491 A.2d 368 (1985); are separate and mutually exclusive. ‘The distinction between intentional and unintentional invasions draws a bright line of separation among shadings of almost infinitely varied human experiences.’ W. Prosser & W. Keeton, Torts (5th Ed. 1984) p. 33. Although in a given case there may be doubt about whether one acted intentionally or negligently, the difference in meaning is clear. ‘As Holmes observed, even a dog knows the difference between being tripped over and being kicked.’ Id.” American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 775-76, 607 A.2d 418 (1992).

“In its most common usage, ‘intent’ involves ‘(1) . . . a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act.’ . . . [W. Prosser & W. Keeton, supra, p. 34.] Also, the intentional state of mind must exist when the act occurs. Id. Thus, intentional conduct ‘extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does.’ Id., p. 35. Furthermore, ‘[i]t is not essential that the precise injury which was done be the one intended.’ Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975). ‘Rather, it is an intent to bring about a result which will invade the interests of another in a way that the law forbids.’ W. Prosser & W. Keeton, supra, p. 36. Our case law accords with these principles. See, e.g., Mingachos v. CBS, Inc., supra [196 Conn. 103]; Alteiri v. Colasso, supra [334].” (Emphasis in original.) American National Fire Ins. Co. v. Schuss, supra, 221 Conn. 776.

The defendants rely on the case of Home Ins. Co. v. Aetna Life & Casualty Co., 35 Conn. App. 94, 644 A.2d 933 (1994), rev’d on other grounds, 235 Conn. 185, 663 A.2d 1001 (1995), to support their claim that Marburg’s mental disorder prevented her from controlling her actions and, therefore, made her incapable of forming an intent to injure. In Home Ins. Co., we held that in order to determine whether an insured’s acts were intentional for purposes of a policy’s intentional act exclusion clause, we must consider “whether, because of mental illness or defect, the insured did not understand the nature or wrongfulness of [her] conduct, or was deprived of the capacity to control [her] actions regardless of [her] understanding of the nature or wrongfulness of [her] action.” Id., 106-107; see State Farm Fire & Casualty Co. v. Wicka, 474 N.W.2d 324, 331 (Minn. 1991).

We now examine whether the defendants have produced any evidence to show that Marburg did not intend to cause harm. If they have produced any such evidence, a material issue of fact would be in dispute, but, if they have not, no material issue would be in dispute, and the defendants would be entitled to summary judgment. In support of their opposition to the plaintiffs motion for summary judgment, the defendants attached an affidavit of Irene R. Kitzman, Marburg’s treating psychiatric physician (Kitzman affidavit), and a letter, dated October 27, 1995, from Ronald T. Markby, a physician, to one of Marburg’s attorneys, Ralph L. Palmesi (Markby letter). We agree with the trial court that neither the Markby letter nor the Kitzman affidavit supports a finding of lack of intent of Marburg.

The Markby letter is not competent evidence to support an opposition to a motion for summary judgment. See Practice Book § 380; see also Scinto v. Stamm, 224 Conn. 524, 533, 620 A.2d 99, cert. denied, 510 U.S. 861, 114 S. Ct. 176, 126 L. Ed. 2d 136 (1993) (stating “[u]nswom assertions of fact, summary conclusions of law and unsupported allegations in an affidavit do not entitle a party to summary judgment”); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 12, 459 A.2d 115 (1983); 2830 Whitney Avenue v. Heritage Canal Development Associates, 33 Conn. App. 563, 567, 636 A.2d 1377 (1994) (“[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence”). Practice Book § 380, although containing the phrase “including but not limited to,” contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable. Practice Book §§ 380 through 382 set forth detailed requirements to ensure that affidavits in support of summary judgment are proper. Those rules would be meaningless if they could be circumvented by filing unsworn letters written to an attorney for a party in support of or in opposition to summary judgment. The trial court acted properly when it did not consider the Markby letter in support of the defendants’ position on the summary judgment motion.

The defendants’ only other support of their opposition to summary judgment is the Kitzman affidavit. As the trial court stated, “Kitzman’s affidavit, though providing a definite diagnosis of Marburg’s psychiatric condition in the relevant time frame, states no facts or opinions from which it might reasonably be inferred that because of that condition, Marburg was incapable of controlling her conduct toward [the child] or of forming an intent to cause him injury. On that score, it offers no functional description of major depressive disorder without melancholia; it does not state why Marburg was diagnosed as suffering therefrom; it makes no mention of any symptoms or results of the disorder experienced by Marburg in the course of her treatment; and it otherwise fails to give any reason for believing that the disorder, either typically or as suffered by Marburg, involves or causes behavior control problems of the sort here claimed by the defense.”

What the affidavit says about Marburg’s sexual proclivities is that Marburg knew she had a problem predisposing her to impulsive sexual promiscuity but did not inform her physician of her involvement with the child. Those statements are important both for what they state and what they do not state. The statements reveal that Marburg was never treated by Kitzman for a psychiatric problem involving sexual attraction to young boys, such as the child involved here, because she never told Kitz-man about her sexual involvement with him. A logical assumption is that the psychiatric problem with which Marburg was diagnosed, major depressive disorder without melancholia, does not typically involve such sexual problems, or else Kitzman would have treated her for such a problem.

The affidavit also does not state, to a reasonable or to any degree of medical probability, that Marburg actually suffered from a problem involving sexual attraction to young boys. In fact, the one statement in the affidavit that seems to support that proposition, that Marburg knew that she had a problem predisposing her to impulsive sexual promiscuity, is not a diagnosis based on a reasonable medical probability but, rather, is hearsay. Finally, we agree with the trial court that even if “Kitzman’s hearsay statement as to Marburg’s self-described predisposition to impulsive sexual promiscuity could properly be considered on this summary judgment motion, it would not support an inference that that predisposition, if indeed she had one, made her incapable, because of mental illness, of controlling her actions or of forming an intent. That a person is predisposed to engage impulsively in particular conduct by no means suggests that she has lost the ability to prevent herself from engaging in that conduct.” Any such predisposition, even if treatable by Kitzman had she been told about it, does not necessarily have anything to do with Marburg’s alleged inability to form an intent to harm the child. This hearsay statement is substantively lacking to prove Marburg’s capacity to control her actions or to prove an inability to intend to cause injury.

The defendants did not sustain their burden of providing an evidentiary foundation to demonstrate that a genuine issue of material fact existed. They claim that it is not their burden to demonstrate the existence of an issue of material fact but, rather, the plaintiffs burden to show the lack of one. “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]. . . . Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 664-65, 646 A.2d 143 (1994). Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See Practice Book § 381.” (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., supra, 235 Conn. 202-203 (1995).

USAA was entitled to rely on the doctrine of presumption of intent to show that Marburg intended to injure the child when she engaged in sexual acts with him, knowing that he was twelve years old or younger. Without a countervailing demonstration by the insured sufficient to rebut the presumption and to put a material fact in issue, Marburg’s acts were within the intentional act exclusion of her USAA policy. Summary judgment was proper.

The judgment is affirmed.

In this opinion LANDAU, J., concurred.

SHEA, J.,

concurring. I agree with the majority in affirming the summary judgment of the trial court declaring that the insurance policy issued by the plaintiff to the defendant Bonita L. C. Marburg does not apply to the claims against Marburg arising out of her sexual relationship with the defendant minor child. In this case, however, there is no need to decide whether this court should join those jurisdictions that have adopted the presumption that sexual molestation of a minor child raises a presumption of intent to harm the child as a matter of law and, therefore, falls within the policy exclusion of liability for damages resulting from the intentional conduct of an insured.

The affidavits of the child and his mother supporting the motion for summary judgment, which have not been controverted, narrate the circumstances of the relationship between the child and Marburg. The facts recited in those documents plainly indicate that Marburg realized that the child had not reached the age necessary for consent to sexual intercourse. I agree with the majority that the two counteraffidavits filed in behalf of the defendants are insufficient to raise an issue of fact with respect to the mental condition of Marburg that would affect the conclusion to be drawn from the affidavits of the mother and the child that her conduct was intentional.

       Although this is an action for declaratory judgment in which notice was not given to anyone other than the named parties; see Serrani v. Board of Ethics, 225 Conn. 305, 622 A.2d 1009 (1993); we conclude that all parties having an interest in this case are parties, and that, therefore, there is no jurisdictional obstacle to deciding this appeal. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 228, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997).

       The case of the child and his mother versus Marburg was still pending at the time the plaintiff filed its declaratory judgment action. The plaintiff chose to defend Marburg in that action pursuant to a reservation of its rights to contest coverage.

       Summary judgment may be sought in a declaratory judgment action because Practice Book § 379 provides in relevant part: “In any action, except actions for dissolution of marriage, legal separation, or annulment of marriage, and except administrative appeals which are not enumerated in Sec. 275 (d), any party may move for summary judgment at any time . . . .”

       Although the plaintiffs motion for summary judgment included both exceptions from coverage as its basis, we, like the trial court, need not discuss the business exclusion of the policy in view of our decision as to the exclusion for intentional acts. No party has briefed the exclusion from coverage based on a business exception.

       A presumption of law is one that arises from the force of the law of the jurisdiction and is founded on public policy, social convenience or safety. Ballantme’s Law Dictionary (3d Ed. 1969); see also Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985); Woycik v. Woycik, 13 Conn. App. 518, 522-23, 537 A.2d 541 (1988). Such presumptions may be irrebuttable or rebuttable. Ballantine’s Law Dictionary (3d Ed. 1969); see also Katz v. West Hartford, 191 Conn. 594, 603 n.3, 469 A.2d 410 (1983). The presumption of intent here is rebuttable.

       On appeal, the Supreme Court determined that the Appellate Court had improperly remanded the case to the trial court on the ground that a material issue of fact existed concerning the insured’s mental state at the time he committed the acts. The Supreme Court held that the insured’s mental state had not been put into issue at the trial court and, therefore, affirmed the trial court’s rendering of summary judgment. Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn 185, 663 A.2d 1001 (1995).

       The Supreme Court, in reviewing that decision, did not reach the question of whether the standard was correct. Home Ins. Co. v. Aetna Life & Casualty Co., supra, 235 Conn. 206 n.19. Although we believe that standard to be correct, for the purposes of this decision, we need not reach the issue because, under any of the three standards, our conclusion would be the same.

       Practice Book § 380 provides: “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 motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the court otherwise directs. The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.” (Emphasis added.)

       The Kitzman affidavit states: “I, Irene R. Kitzman, M.D., being sworn state: 1. I was Mrs. Marburg’s treating psychiatric physician from May 24, 1989 through June 23, 1989, and again from January 10, 1991 through April 8,1993.2.1 treated Mrs. Marburg for recurrent episodes of Major Depressive Disorder, without Melancholia. 3.1 am a Board Certified Psychiatrist, receiving such certification in November, 1985. 4.1 received my psychiatric residence training at Yale University School of Medicine, and my medical training at Albert Einstein College of Medicine in New York City. 5. While in my treatment, Mrs. Marburg knew that she had a problem predisposing her to impulsive sexual promiscuity. 6. While in her treatment with me, Mrs. Mar-burg neglected to tell me that she has become sexually attracted to or sexually involved with [the child]. If she had made an effort to tell me of this or asked for my help, either prior to or during the time she was having relations with [the child], it is in the realm of reasonable medical probability that I could have treated her for this problem.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    CHERYL BARSZCK ET AL. v. ALBERT J. SOLNIT, COMMISSIONER OF MENTAL HEALTH AND ADDICTION SERVICES, ET AL. LOUIS FULINELLO v. ALBERT J. SOLNIT, COMMISSIONER OF MENTAL HEALTH AND ADDICTION SERVICES, ET AL. CHERYL BARSZCK v. ALBERT J. SOLNIT, COMMISSIONER OF MENTAL HEALTH AND ADDICTION SERVICES, ET AL.
    (AC 16167)
    (AC 16286)
    (AC 16290)
    O’Connell, Landau and Hennessy, Js.
    Argued June 3
    officially released August 5, 1997

      Heidi G. Winslow, for the appellants (plaintiffs).

      Peter L. Brown, assistant attorney general, with whom were Paul K. Pemerewski, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiffs appeal from the judgments of the trial court granting the defendants’ motion to dismiss the plaintiffs’ claim for injunctive relief in the first case and denying the plaintiffs’ requests for writs of restitution in the second and third cases. On appeal, the plaintiffs claim that the trial court improperly (1) dismissed their claim for injunctive relief by concluding that their claim was moot and that they had failed to exhaust their administrative remedies under their respective collective bargaining agreements and (2) denied their requests for writs of restitution claiming forcible entry and detainer by finding that they had voluntarily surrendered possession of their dwelling units. We affirm the judgments of the trial court.

The record reveals the following facts. At the time of the hearing on the claim for an injunction, the plaintiffs were employees of the state department of mental health and addiction services. They resided in “state housing,” two residence halls on the grounds of the former Fairfield Hills State Hospital in Newtown. In June, 1996, each of the plaintiffs received a letter from the commissioner of mental health and addiction services directing them to vacate their housing by July 13, 1996. The letter also stated that anyone remaining in their housing after that date would be dismissed from their jobs and the utilities to their residences would be shut off.

The plaintiffs thereafter filed an action seeking a temporary and permanent injunction to restrain the defendants from (1) shutting off or threatening to shut off the utilities, (2) terminating or threatening to terminate the plaintiffs’ employment if they did not vacate the premises, and (3) evicting the plaintiffs from the premises by any means other than summary process. The trial court denied the plaintiffs’ application for injunc-tive relief. All of the plaintiffs subsequently moved out of the residence halls. They then filed an appeal to this court from the trial court’s denial of their application.

On July 30,1996, two of the plaintiffs, Cheryl Barszck and Louis Fulinello, filed separate actions claiming an unlawful entry and detainer and seeking writs of restitution restoring them to possession of the dwelling units. After a hearing, the trial court denied both writs. The plaintiffs also appeal from this denial.

The plaintiffs first claim that the trial court improperly denied their injunction application. Before we review this claim, however, we must first determine whether it is now moot because all the plaintiffs have moved out of the state residences.

“Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. . . . It is a well-settled general rule that the éxistence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Citations omitted; internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93, 671 A.2d 345 (1996).

It is undisputed that none of the plaintiffs still resides in the state residence halls. It is, therefore, clear that the injunctive relief the plaintiffs seek would have no practical effect. The plaintiffs argue, however, that this claim qualifies for review under the “capable of repetition yet evading review” exception. “Our cases reveal that for an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995).

In the present case, we find that the challenged action, the trial court’s dismissal of the injunctive action, is not inherently of such a limited duration that there is a strong likelihood that the majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Furthermore, the issue presented in this case could arise in a future case in which the plaintiffs have not vacated the premises and, therefore, would retain, during the appeal, a viable legal interest in obtaining the injunction. Thus, this exception does not apply because it fails to meet all three requirements. “In the absence of the existence of an actual dispute between the parties, the resolution of which can furnish some relief to the plaintiff, or an applicable exception to the mootness doctrine, we must dismiss the [claim].” Ayala v. Smith, supra, 236 Conn. 96. We, therefore, dismiss this claim as moot.

We next analyze the plaintiffs’ claim that the trial court improperly denied their writs of restitution based on claims of unlawful entry and detainer. See General Statutes § 47a-43. After an evidentiary hearing, the trial court found that Fulinello and Barszck “did vacate the premises as of July 13, 1996 [and July 15, 1996, respectively] and surrendered [their] keys to the premises to the [commissioner’s] representative without protest.” It also found that at the time the defendants entered the premises, the plaintiffs were not in possession of the premises as required by § 47a-43. On the basis of these findings, we conclude that the trial court properly denied the plaintiffs’ requests for writs of restitution.

“The process of entry and detainer is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit, who has been deprived of it, may be restored to the possession and enjoyment of that property. For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant’s entry. Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 108, 523 A.2d 888 (1987). The question of whether the plaintiff was in actual possession at the time of the defendants’ entry is one for the trier of fact. Communiter Break Co. v. Scinto, 196 Conn. 390, 394, 493 A.2d 182 (1985). Generally, the inquiry is whether the one claiming actual possession has exercised the dominion and control that owners of like property usually exercise, although it is not necessary to show a continuous personal presence on the land. Id., 394.” Catropa v. Bargas, 17 Conn. App. 285, 289, 551 A.2d 1282 (1989).

Here, the trial court found that, at the time of the defendants’ entry, the plaintiffs did not exercise any physical control with the intent and apparent purpose of asserting dominion over the premises. “We will not retry the facts since the trial court in its role as fact finder has the unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . .” (Internal quotation marks omitted.) Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 132, 619 A.2d 863 (1993). “The factual finding of a trial court on any issue is reversible only if it is clearly erroneous. Practice Book § 4061.” Zarembski v. Warren, 28 Conn. App. 1, 4, 609 A.2d 1039, cert. denied, 223 Conn. 918, 614 A.2d 831 (1992). The plaintiffs argue that the trial court’s finding was clearly erroneous because there was no evidence that the tenants vacated the residences voluntarily and without protest. Our review of the record indicates that the factual findings challenged by the plaintiffs are clearly supported by the evidence. The plaintiffs, therefore, failed to meet their burden of proving the entry and detainer claims.

The judgments are affirmed.

In this opinion the other judges concurred.

       The plaintiffs named in this consolidated appeal are Cheryl Barszck, Rodney Mailloux, Helen Hogan and Louis Fulinello.

       The defendants named are Albert Solnit, commissioner of mental health and addiction services, Reginald Jones, secretary of the office of policy and management, and Ted Anson, commissioner of public works.

       This court granted the defendants’ motion to have the three appeals consolidated.

       The plaintiffs maintain that the action would not be moot should this court reverse the judgments for the defendants in the two entry and detainer actions and restore their possession of the dwelling units. Because of our resolution of the plaintiffs’ entry and detainer claims, we need not address that assertion.

       General Statutes § 47a-43 provides in relevant part: “Complaint and procedure: Forcible entry and detainer; entry and detainer, (a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same or (2) having made apeaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court. . . .”

       See footnote 5.


author: DUPONT, C. J.

text:
    STATE OF CONNECTICUT v. ANTHONY MILNER
    (AC 15091)
    Dupont, C. J., and Spear and Daly, Js.

      Argued June 3
    officially released August 5, 1997

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Keith DuBoff assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, C. J.

The defendant was charged with the crimes of burglary in the first degree in violation of General Statutes § 53a-101, interfering with an officer in violation of General Statutes § 53a-167a, assault of a peace officer in violation of General Statutes § 53a-167c, larceny in the fifth degree in violation of General Statutes § 53a-125a, and criminal mischief in the first degree in violation of General Statutes § 53a-115.

After a jury trial, the defendant was convicted of the crimes of burglary in the first degree, criminal mischief in the first degree and interfering with an officer, and he was acquitted of the charges of larceny and assault of a peace officer.

On appeal, the defendant claims that the trial court improperly rendered judgment on inconsistent verdicts and failed to provide the defendant with a “statement” of a prosecution witness after direct examination of that witness.

The jury reasonably could have found the facts that follow. On December 22,1993, at approximately 1 a.m., Officer Richard Bowen, a patrolman with the Windsor Locks police department, was conducting a routine building check of a gas station in Windsor Locks. When Bowen pulled up to the building, he noticed two people inside, later identified as the defendant and Shelton Smith. The men were standing behind the cash register area, and one of them was loading cigarette cartons into the arms of the other. Believing that he had discovered a burglary in progress, Bowen called dispatch and requested backup units. At about this time, the two men became aware of Bowen’s presence.

Bowen noticed that a window on one of the bay doors had been broken. It appeared that the defendant and Smith had entered the station through this broken window. Bowen then approached the station on foot, drew his weapon, and ordered the defendant and Smith to lie down on the ground. The defendant and Smith moved toward the rear of the station and momentarily disappeared from Bowen’s sight. When they reappeared, Bowen again ordered them to he down on the ground. The defendant and Smith then began throwing items from a display case and smashing the glass windows, in an attempt to escape from the building.

At around this time, Officer Michael Bracken, the first backup officer, arrived on the scene. The defendant and Smith continued to smash windows, showering the officers and their cruisers with glass. Bowen repeated his order for the defendant and Smith to get down on the ground. At one point, Smith grabbed a two-by-four and smashed windows with it. Smith then attempted to come out of the window through which the men had entered the station. Bowen hit Smith with his nightstick, and Smith retreated into the station and unsuccessfully tried to kick down the front door. As Officer Daniel Squires arrived, Smith escaped from the building and fled. Squires pursued him.

Bowen pointed his weapon at the defendant, who remained in the building, and ordered him to lie on the ground. The defendant moved to the rear of the station and threw something at the window near Bowen. The window shattered, and glass fragments sprayed on Bowen’s face. Bowen reholstered his weapon and brushed the glass off his face. At that moment, the defendant came through one of the smashed windows and lunged at Bowen. The defendant grabbed Bowen near his waist, in an attempt to grab Bowen’s weapon. Bowen hit the defendant with his nightstick, and the two fell to the ground. The nightstick flew out of Bowen’s hand. At that point, Bracken came to assist Bowen and they struggled with the defendant before they finally handcuffed him.

As a result of the struggle, Bowen sustained glass cuts on his hands and face, back pain from his fall to the ground, and a broken finger. Bracken received a cut inside his mouth and minor abrasions to his arms.

I

The defendant first claims that the trial court improperly rendered judgment on inconsistent verdicts. This claim involves the conviction of the defendant on the charge of burglary in the first degree, and the acquittal of the defendant on the charge of assault of a peace officer. The defendant argues that the jury’s verdicts should be overturned because they are contrary to logic. We disagree. The jury’s verdicts are neither legally nor factually inconsistent.

A

The jury’s verdicts were not inconsistent as a matter of law. The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements. Such verdicts are legally inconsistent if “the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted.” State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). In the present case, the defendant was convicted of one offense and acquitted of the other. Since we are not dealing with a situation in which the defendant is convicted of two offenses, and one conviction negates the other, the verdicts are not legally inconsistent in the usual sense.

In the present case, where the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is “necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration.” State v. Manning, 162 Conn. 112, 123, 291 A.2d 750 (1971), quoting State v. Keating, 151 Conn. 592, 596, 200 A.2d 724 (1964), cert. denied sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 (1965). If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other. See State v. Manning, supra, 123-24.

A person is guilty of the crime of burglary in the first degree when “he enters or remains unlawfully in a building with intent to commit a crime therein and ... in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.” (Emphasis added.) General Statutes § 53a-101 (a) (2). A person is guilty of the crime of assault of a peace officer when “with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties ... he causes physical injury to such peace officer . . . .” (Emphasis added.) General Statutes § 53a-167c (a) (l). On their faces, these statutes are not identical. Subsection (a) (1) of the assault of a peace officer statute requires actual infliction of injury, whereas first degree burglary can be committed by an attempt to inflict injury. Assault of a peace officer, § 53a-167c (a) (1), requires an intent to prevent an officer from performing his duties by causing injury to him; see State v. Flynn, 14 Conn. App. 10, 21, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988); whereas first degree burglary can be satisfied by recklessly causing injury. Assault of a peace officer applies to injuries only to “peace officers,” whereas first degree burglary applies to injuries to “anyone.” Since the two charges consist of different elements, a conviction of first degree burglary is not legally inconsistent with an acquittal of assault of a peace officer.

B

The relevant facts of this case also demonstrate that the verdicts were not factually inconsistent. The jury reasonably could have found that the defendant did not possess the specific intent to prevent Bowen from performing his duties by causing physical injury to him. Rather, the jury reasonably could have found that Bowen’s injuries were the result of the defendant’s reckless conduct as he attempted to flee the scene of the burglary. In the alternative, the jury could have found that the defendant attempted to injure Bowen, but did not actually injure him.

Even if the verdicts were factually inconsistent, the defendant cannot prevail on this claim. A jury verdict may not be overturned on the ground that a conviction on one count is factually inconsistent with an acquittal on another count. See United States v. Powell, 469 U.S. 57, 69, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932). Our Supreme Court has also adopted this rule. See State v. Martin, 189 Conn. 1, 6, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983); State v. Rosado, 178 Conn. 704, 708-709, 425 A.2d 108 (1979).

The rationale behind this rule is that “where truly inconsistent verdicts have been reached, ‘[t]he most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.’ ” United States v. Powell, supra, 469 U.S. 64-65, quoting Dunn v. United States, supra, 284 U.S. 393. It is possible that the jury arrived at inconsistent verdicts through mistake, compromise, or lenity. However, “ ‘verdicts cannot be upset by speculation or inquiry into such matters.’ ” State v. Stevens, 178 Conn. 649, 653, 425 A.2d 104 (1979), quoting Dunn v. United States, supra, 394. Indeed, “[i]t was the jury’s prerogative to act as they did and it is essential to the preservation of the right to a trial by jury that their conclusions be respected.” State v. Stevens, supra, 656. Moreover, the “ ‘fact that the inconsistency may be the result of lenity, coupled with the Government’s inability to invoke review [of the acquittal], suggests that inconsistent verdicts should not be reviewable.’ ” State v. Flynn, supra, 14 Conn. App. 25, quoting United States v. Powell, supra, 66.

The defendant states in one sentence in his brief that inconsistent verdicts deprive defendants of their rights under the fifth, sixth, and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution. He does not expand on this statement or make any argument in support of it. In any case, a claim that factually inconsistent verdicts must be set aside is not one of constitutional dimension. See United States v. Powell, supra, 469 U.S. 65; State v. Gaston, 198 Conn. 490, 492, 503 A.2d 1157 (1986); State v. Pieger, 42 Conn. App. 460, 466, 680 A.2d 1001, (1996), aff'd, 240 Conn. 639, 692 A.2d 1273 (1997). Thus, the defendant’s contention that his constitutional rights were violated by inconsistent verdicts is without merit.

II

The defendant’s second claim is that the trial court should have provided him with the alleged “statement” of a prosecution witness. The defendant claims that the trial court’s failure to do so violated his rights under General Statutes § 54-86b and Practice Book §§ 752 and 755, as well as his constitutional right of confrontation.

The following additional facts are relevant to this issue. At the defendant’s trial, Bowen was the state’s first witness. Following direct examination, defense counsel moved for production of any of Bowen’s statements. The state produced Bowen’s police report and the face sheet of the report, also prepared by Bowen. Bowen’s police report had been typed for him by Detective Rick Rachele because Bowen had injured his hand during his struggle with the defendant. The police report was signed by Bowen. On a motion by defense counsel, the court ordered the state’s attorney to check the case file for any other reports signed by Bowen. No such reports were found.

Following defense counsel’s cross-examination of Bowen, the state called Michael Petraska, the general manager of the gas station. The defendant moved for production of Petraska’s statement to police regarding damage to the station. In response, the state produced the report of Rachele, which was signed only by Rachele. Upon review of Rachele’s report, defense counsel stated that he believed it was a substantially verbatim recording of what Bowen told Rachele because it was very similar to Bowen’s testimony. Therefore, defense counsel argued, Rachele’s report was a statement of Bowen and, as such, should have been produced after Bowen’s direct testimony. Defense counsel moved the trial court to make a ruling as to whether Rachele’s report was a statement of Bowen.

Rachele was called to the stand to testify, outside the presence of the jury. He testified that his report was not a verbatim recording of a statement by Bowen. Rather, he testified that his report was a summary of what Bowen and other officers at the scene had told him. The trial court ruled that Rachele’s report did not amount to Bowen’s statement as defined in Practice Book § 749. The defendant claims that the trial court improperly ruled that Rachele’s report did not constitute Bowen’s statement as defined in Practice Book § 749. We disagree.

The trial court has broad discretion in determining what constitutes a statement that must be disclosed, and its findings will be disturbed only if they are clearly erroneous. See State v. Wityak, 29 Conn. App. 455, 462, 616 A.2d 276 (1992), aff'd, 226 Conn. 470, 627 A.2d 1341 (1993); State v. Black, 23 Conn. App. 241, 244, 579 A.2d 1107, cert. denied, 216 Conn. 827, 582 A.2d 204 (1990).

“Practice Book § 749 limits the disclosures governed by §§ 748 through 755 to two categories of materials: ‘(1) A written statement made by a person and signed or otherwise adopted or approved by him; or (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.’ ” State v. Myers, 193 Conn. 457, 470, 479 A.2d 199 (1984). The trial court’s finding that Rachele’s report did not fall into either of these two categories was not improper.

It is clear from the record that Bowen signed his own report, but not Rachele’s report. Moreover, Rachele testified that his report was the result of his investigation of the incident, including a summary of what Bowen and other officers at the scene had told him. In fact, Rachele’s report indicates that Bracken was the first officer with whom he spoke. Rachele also testified that his report was not a transcription or verbatim account of a statement given by Bowen. Rachele signed his report as investigating officer. Accordingly, we conclude that the trial court properly found that Rachele’s report did not amount to a statement by Bowen, and disclosure of it was not required by § 54-86b and Practice Book §§ 752 and 755.

Even if Rachele’s report was a statement of Bowen, the trial court’s failure to provide the defendant with it after Bowen’s direct testimony did not violate the defendant’s right of confrontation. The defendant failed to raise this claim at trial. “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 240.

With regard to the first prong of the Golding test, it is undisputed that the record is adequate to review the alleged claim of error. As to the second prong, the defendant has presented a claim of constitutional magnitude. In general, “ [t]he right under the rules of practice to statements of witnesses after direct examination is not a right of constitutional magnitude”; State v. Coriano, 12 Conn. App. 196, 200, 530 A.2d 197, cert. denied, 205 Conn. 810, 532 A.2d 77 (1987); but, under certain circumstances, the state’s failure to produce material to which the defendant is entitled under § 54-86b and Practice Book § 752 may “ ‘adversely affect a defendant’s ability to cross-examine . . . witnesses and thereby infringe upon his constitutional right of confrontation.’ ” State v. Reddick, 36 Conn. App. 774, 781, 654 A.2d 761, cert. denied, 232 Conn. 922, 656 A.2d 671 (1995), quoting State v. Williamson, 212 Conn. 6, 20, 562 A.2d 470 (1989). Thus, the defendant’s claim is one of constitutional magnitude.

The defendant fails, however, to establish the third prong of the Golding test. The defendant fails to demonstrate that his constitutional right of confrontation was, in fact, violated and that the alleged violation deprived him of a fair trial. In determining whether cross-examination has been impaired so as to violate the defendant’s right of confrontation, our Supreme Court has considered such factors as the trial or reviewing court’s access to the unproduced material, whether the defendant’s conviction rested on the testimony of the witness whose statement was not produced, and whether other impeachment material was available to the defendant. State v. Williamson, supra, 212 Conn. 21-23; State v. Reddick, supra, 36 Conn. App. 781; State v. Wager, 32 Conn. App. 417, 424, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 1231 (1993).

In the present case, both the trial court and this court had access to Rachele’s report. In addition, while Bowen’s testimony was important in implicating the defendant in the burglary, the defendant’s conviction did not rest solely on this testimony. Bracken also testified at trial regarding the defendant’s involvement in the incident at the gas station, including his presence in the building, his smashing of the glass windows, and his struggle with both officers prior to being handcuffed.

Furthermore, other impeachment material was available to the defendant. The defendant had access to Bowen’s police report and face sheet. Defense counsel also had the opportunity to review Rachele’s report at trial. Although he had already cross-examined Bowen when the report was produced, he could have called Bowen as a defense witness if he found any impeachment material in the report. Thus, based on all three relevant factors, the defendant’s right of confrontation was not violated by the trial court’s failure to provide Rachele’s report to the defendant after Bowen’s direct testimony. Accordingly, the defendant cannot prevail on his unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court sentenced the defendant to the following terms of imprisonment: fifteen years for burglary, one year for interfering with an officer, and five years for criminal mischief. The sentences imposed were concurrent, for a total effective sentence of fifteen years, suspended after ten years, followed by three years of probation.

       Claims of legal inconsistency also arise when verdicts are based on a legal impossibility. An example of this would be the conviction of one defendant and the acquittal of the other in a joint trial of two alleged coconspirators. See State v. Robinson, 213 Conn. 243, 252-53, 567 A.2d 1173 (1989).

       The offense was committed on December 22,1993. The section headings of the General Statutes were revised in 1995. The revision to § 53a-167c is not relevant here.

       Although the facts of the case indicate that the defendant could have been charged with violating either subsection (a) (1) or (a) (2) of General Statutes § 53a-167c, the short form information did not specify which subsection the defendant was charged with violating, and the defendant did not seek a bill of particulars. The case was apparently tried, however, as if the defendant was charged with violating only subsection (a) (1). The trial court instructed the jury only as to that subsection. Neither the assistant state’s attorney nor defense counsel objected to the jury instructions.

       General Statutes § 54-86b provides: “(a) In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use.
      “(b) If the prosecution fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”

       Practice Book § 752 was repealed effective October 1, 1995. Practice Book § 743 superseded § 752. Practice Book § 752 provided: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       Practice Book § 755 was repealed effective October 1, 1995. Practice Book § 735A superseded § 755. Practice Book § 755 provided: “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”

       At the time of trial, Practice Book § 749 defined the term “statement” as: “(1) A written statement made by a person and signed or otherwise adopted or approved by him; or
      “(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       Another factor to be considered is whether the witness has adopted a counterpart transcript within a short time after making the statement. See State v. Reddick, supra, 36 Conn. App. 781. This factor, however, is not applicable to the present case because we are not faced with a situation in which the witness’ tape-recorded statement has been destroyed.


text:
    STATE OF CONNECTICUT v. WILLIE BOWMAN
    (AC 15960)
    O’Connell, Schaller and Hennessy, Js.
    Argued April 25
    officially released August 5, 1997

      Norman A. Pattis, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Clark, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Willie Bowman, appeals from a judgment of conviction, after a jury trial, of attempted sexual assault in the third degree in violation of General Statutes §§ 53a-72 (a) and 53a-49, assault in the third degree in violation of General Statutes § 53a-61 and being a persistent dangerous felony offender pursuant to General Statutes § 53a-40 (a) (1). The defendant claims that the trial court improperly (1) denied his motion for a mistrial after the victim offered evidence that she had suffered a miscarriage, (2) allowed constancy of accusation evidence to be admitted with respect to the counts not involving sexual misconduct, and (3) permitted hearsay testimony to be admitted under the excited utterance exception to the hearsay rule. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of November 6, 1994, the victim, who was five months pregnant, stopped at the home of her friend, Roseann Bowman. There, she met the defendant, who is Roseann’s father, for the first time. The three consumed one or two alcoholic beverages each.

At approximately 11 p.m., the defendant agreed to drive the victim home, but when his car neared her home, he refused to let her out of the car. He then drove to his apartment located in the Westville section of New Haven. Both the defendant and the victim entered his apartment where the victim called her husband. During that call, the victim told her husband that she was at “Willie’s” apartment because he refused to take her home. Thereafter, the victim and the defendant began listening to music and drinking alcoholic beverages. After a second telephone conversation with her husband, the victim again asked the defendant to take her home. The defendant responded, “Well, you [are] not going home until you give me some,” to which the victim replied, “No, you [are] not getting any.” The defendant jumped across the coffee table and onto the victim. The defendant grabbed and pulled on the victim’s clothes as the victim screamed and successfully fought off the defendant. During the struggle, the defendant put his hands around the victim’s neck, choked her, and hit her face.

The victim then called her husband a third time and instructed him to call the police. During that telephone call, the defendant took the receiver from the victim and informed her husband that she was free to leave and that he would call a cab for her. At this time, the husband testified that he thought his wife was “playing a joke” and simply hung up after speaking to the defendant.

The next day, the defendant agreed to take the victim back to his daughter’s home. While they were in the car, the defendant threatened the victim that if she told anyone what had happened he would kill her and her children. As the defendant’s car approached Bowman’s residence, the victim jumped out of the car and ran to the office of the Ailing Memorial Golf Course. There, the first person she encountered was Patricia Bradley, the course supervisor. The victim requested that she call the police. Bradley complied. While the two waited for the police to arrive, the victim told Bradley what had happened. Shortly thereafter, Officer Reginold Sutton arrived and gathered preliminary information from the victim. Approximately one week after the assault, the victim suffered a miscarriage, which was unrelated to the assault.

On November 20, 1994, the victim went to the New Haven police department and met with Sergeant Joann Peterson. Peterson testified that at the time she interviewed the victim she seemed “disengaged [and that] her mind appeared to be elsewhere.” Peterson was aware of the miscarriage and testified that she did not press the victim on certain points due to her fragile emotional state.

The jury trial commenced on February 6, 1996. On February 14, 1996, the jury returned verdicts of guilty to the charges of attempted sexual assault in the third degree in violation of §§ 53a-72 (a) and 53a-49 and assault in the third degree in violation of § 53a-61. Immediately thereafter, the jury found the defendant guilty of being a persistent dangerous felony offender pursuant to § 53a-40 (a) (1). This appeal followed.

I

The defendant first claims that the trial court abused its discretion when it denied his motion for a mistrial after evidence regarding the victim’s miscarriage was introduced. We disagree.

The following additional facts are relevant to this claim. During trial, in anticipation of the victim’s testimony, the defendant moved to preclude testimony regarding the miscarriage, arguing that it was too prejudicial. In response, the state argued that the victim’s statements to Peterson were inconsistent with her prior statements to Sutton but could be explained by the miscarriage. The trial court denied the motion but cautioned that this testimony should come into evidence only if the court found it relevant to explain the victim’s state of mind upon completion of the defendant’s cross-examination.

In accordance with the trial court’s ruling, the victim was instructed by the state that she could not mention her miscarriage during her testimony on direct examination. Despite this, the victim testified on direct that she had suffered a miscarriage. In the jury’s absence, the defendant moved for a mistrial on the ground that the victim had violated the court’s previous ruling. At this time, the defendant stated that he had hoped to avoid the miscarriage evidence during his cross-examination of the victim; however, he was unable to represent to the court that he would have been successful in this endeavor. The court denied the defense motion and stated that its prior evidentiary ruling had been made with the understanding that “this information was going to come in any event sooner or later.”

The trial court also indicated that after the defendant completed his cross-examination of the victim, it would entertain another motion for mistrial if the defendant so moved. Thereafter, the jury was brought in and given the following instruction: “The court made a ruling that there was to be no mention of any loss of child, miscarriage . . . and the reason why is quite simple, there is absolutely no evidence that this is in any way connected with the defendant; indeed, I am telhng you it’s not and, in fact, counsel have stipulated that there is no connection between the defendant and this event. . . . In fact, the state has violated my order and the fault lies, quite clearly, with the state of Connecticut here.” At the close of defense counsel’s cross-examination of the victim, he asked if she blamed the defendant for her miscarriage to which she replied, “Yes.” Further, during closing argument, the defendant argued to the jury that the sole reason that the victim followed through with her complaint against the defendant was because she blamed him for her miscarriage.

The defendant argues on appeal that the trial court improperly denied his motion for a mistrial after the victim violated the court ruling because the limiting instruction was insufficient to cure the prejudice caused by the victim’s testimony. We are unpersuaded.

“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . State v. Wooten, [227 Conn. 677, 693-94, 631 A.2d 271 (1993)]. On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972). . . . State v. Day, 233 Conn. 813, 836-37, 661 A.2d 539 (1995). The trial court is in a better position than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. Id., 837. The decision whether to grant a mistrial is within the sound discretion of the trial court. Id., 835; see Practice Book § 887.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 350-51, 696 A.2d 944 (1997).

The record reveals that the trial court denied the defendant’s motion after it concluded that his constitutional right to a fair trial had not been denied. The evaluation of a trial court’s denial of a mistrial must be viewed in the context of the entire trial. See State v. Traficonda, 223 Conn. 273, 282-83, 612 A.2d 45 (1992). The trial court instructed the jury that (1) the miscarriage was in no way attributable to the defendant, (2) the state had violated the court’s order, and (3) the jury should have no sympathy for the victim as sympathy has no place in the courtroom. The jury is presumed to follow the instructions of the trial court. See State v. Rodriguez, supra, 210 Conn. 333; State v. Nelson, 17 Conn. App. 556, 568, 555 A.2d 426 (1989). Moreover, defense counsel stated for the record that “[i]t was my understanding that the court was willing to let this in to explain inconsistencies, to explain statements to Officer Peterson and her earlier statements and it went to her state of mind. I objected on the grounds that its prejudicial impact was far more than its probative value, however, having come in for that puipose and against the court’s order, it strikes me that I’m required, or entitled, rather, to throw it in.”

The defendant has failed to establish that, when taken in context of the entire trial, he was prejudiced by the violation of the court order. We, therefore, conclude that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial.

II

The defendant next claims that the trial court improperly admitted the victim’s statement to Peterson. The court ruled that it was not possible to separate information related to the sexual assault charges from that related to the assault and still give the statement contextual meaning. The defendant claims that the trial court’s “refusal” to redact portions of the statement under these circumstances mandated a wholesale exclusion of the statement. We reject this claim.

The record reveals that the parties engaged in a discussion with the court prior to Peterson’s testimony, in anticipation of the state’s introduction into evidence of the victim’s statement to Peterson under the constancy of accusation doctrine. The trial court rejected the defendant’s invitation to identify and redact those statements related exclusively to the assault charge but did agree to redact portions of the statement pertaining to the victim’s miscarriage.

When the statement was admitted into evidence, the court instructed the jury that the statement is one of “constancy of accusation” and that this doctrine would be explained in greater detail during the final charge. The defendant did not object to the trial court’s explanation. As promised, the trial court’s final charge to the jury included the following instruction: “Any evidence of constancy of accusation applies only to attempted sexual assault in the first degree and to the lesser included offense of attempted sexual assault in the third degree.” The defendant did not take an exception when this limiting instruction was given to the jury.

The trial court has broad discretion in ruling on the admissibility of evidence. See State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). “ ‘Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . The aggrieved party, therefore, assumes a heavy burden when seeking to reverse the exercise of judicial discretion.’ ” State v. Hernandez, 28 Conn. App. 126, 137, 612 A.2d 88, cert. denied, 223 Conn. 920, 614 A.2d 828 (1992).

We find that the trial court properly considered the request of the defendant and found that the statements related to the sexual assault were inextricably intertwined with the statements related to the assault. The trial court, aware of this, gave an adequate limiting instruction to the jury to prevent any prejudice that the defendant might suffer. Thus, we conclude that the statement was properly admitted.

Ill

The defendant’s final claim is that the trial court improperly admitted statements made by the victim to Bradley and Sutton under the excited utterance exception to the hearsay rule. The defendant argues that due to the circumstances under which they were made, these “declarations” did not carry with them the requisite reliability that is the hallmark of an exception to the hearsay rule. We agree with the defendant, but find the error to be harmless under the circumstances.

A statement is inadmissible hearsay if it is made “extra judicially by one not under oath and . . . offered in proof of [the facts] stated” and does not fall within one of the enumerated exceptions. Murray v. Supreme Lodge, N. E. O. P., 74 Conn. 715, 718, 52 A. 722 (1902). “As a preliminary matter, the trial judge must determine whether an utterance qualifies under [an] exception to the hearsay rule, and that decision will not be disturbed on appeal unless it constitutes an unreasonable exercise of discretion. State v. Stange, [212 Conn. 612, 616-17, 563 A.2d 681 (1989)]; State v. Chesney, 166 Conn. 630, 638, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974); Perry v.Haritos, [100 Conn. 476, 484, 124 A. 44 (1924)].” State v. Cayouette, 25 Conn. App. 384, 387, 594 A.2d 1020 (1991).

“In Perry v. Haritos, [supra, 100 Conn. 476], our Supreme Court recognized the spontaneous utterance exception to the hearsay rule. This exception allows otherwise inadmissible statements into evidence to prove the truth of the matter asserted if it is proven that (1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. State v. Stange, [supra, 212 Conn. 616-17]; Perry v. Haritos, supra, 484.” State v. Guess, 44 Conn. App. 790, 803, 692 A.2d 849 (1997). The overarching consideration governing these requirements is whether the statements were made “ ‘before reasoned reflection had taken place.’ ” State v. Dollinger, 20 Conn. App. 530, 538, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990); Rockhill v. White Line Bus Co., 109 Conn. 706, 708, 145 A. 504 (1929).

At trial, Bradley testified that the victim approached her booth at approximately 2:30 p.m. and asked that she call the police. Bradley complied and handed the receiver through the window to the victim so that she could speak to the police. After the victim completed the call, Bradley invited the victim inside where they conversed about what had happened to the victim over the past several hours. Sutton arrived and questioned the victim and took down her statements for his official incident report. Over the defendant’s objection, the trial court allowed the entirety of both conversations to be admitted under the excited utterance exception to the hearsay rule. The testimony of both Bradley and Sutton consisted, in great part, of statements made to them by the victim.

The excited utterance exception “rests on the view that such assertions, made in reaction to a startling event, are trustworthy and void of self-interest. Mei v. Alterman Transport Lines, Inc., [159 Conn. 307, 313-15, 268 A.2d 639 (1970)].” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.11.1, p. 373. We find that the victim had ample time to collect her thoughts prior to making those statements and, therefore, the statements lacked the spontaneity required under the excited utterance exception. Accordingly, we find that the reliability of the statements was undercut and that the statements were improperly admitted for substantive purposes under this exception to the hearsay rule.

The remaining issue raised by the defendant is whether these statements, improperly admitted for substantive purposes under the excited utterance exception, were so prejudicial that they mandate a reversal of the defendant’s conviction. We find that they are not. When a statement has been improperly admitted pursuant to an exception to the hearsay rule, the potential prejudice to the defendant arises from admission of the statements for substantive purposes. That prejudice is not present in this case. Prior to the charge to the jury, the trial court explained that both parties had stipulated that the victim’s statements could be considered for substantive purposes. We find that, under these circumstances, the error is harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record reveals that, the victim interpreted that statement by the defendant to mean that he wanted to engage in sexual activity with her.

       On direct examination, the state asked, “You said you had been through something else?” The victim responded, “Yes, I had just lost my baby.”

       The defense also pointed out another matter of concern to him which was “[w]hat I had hoped to avoid was the impression of being the insensitive man attacking a woman who lost a baby, and I think that was a serious tactical consideration. I have no idea whether I could have pulled it off or not, but now it’s out there and I feel compelled to address it . . . .”

       During closing arguments the defense utilized the miscarriage evidence to its advantage when it argued that the victim had a motive to fabricate in that she blamed the defendant for her miscarriage.

       We note that although the court informed the defendant that it would entertain another motion for a mistrial after the cross-examination of the victim the defense never so moved.

       This statement was admitted at trial as exhibit H. The redacted statement that was considered by the jury included the following description of the incident: “I don’t know exactly where I was at, but I knew I was at [Bowman’s] house. ... We sat there and had a few drinks and I asked him would he take me home now but he wouldn’t.... [Bowman] said I was gonna give him some before I left. I guess he meant I was giving him some pussy and I said well no I’m not. So he said yes you are, and I sat there and the next thing I know he like leaped over the table and he grabbed me by my throat and proceeded to choke me, and he kept choking me and choking me .... So the next thing I know he punched me in my eye.”

       We note that the defendant failed to articulate which statements he found to be related exclusively to the assault charge, either during trial or now on appeal.

       The trial court informed the jury as follows: “[Tjhere has been a stipulation by the parties .... [They] have agreed that [Sutton’s police report] may be considered substantively. . . . Also, [the victim] spoke to Patricia Bradley and spoke to Officer Sutton, in each case they relayed to you things that she said and it is agreed by the parties that [her statements to them] may be used for any purpose and may be considered substantively.”


author: LAVERY, J.

text:
    MANUEL C. PIMENTAL ET AL. v. CHERNE INDUSTRIES, INC., ET AL.
    (AC 16231)
    O’Connell, Lavery and Landau, Js.

      Argued May 28
    officially released August 5, 1997

      Jeffrey R. Martin, for the appellants (plaintiffs).

      Michael F. O’Connor, for the appellees (defendant town of Groton et al.).
   Opinion

LAVERY, J.

The plaintiffs, Manuel C. Pimental and United States Fidelity and Guaranty Company (USF&G), appeal from the judgment of the trial court granting the defendants’ motion for summary judgment in this negligence case. On appeal, the plaintiffs contend that the trial court improperly applied Connecticut law, which does not permit an injured employee’s workers’ compensation carrier to bring a direct action to assert its subrogation rights, when it should have applied the law of Massachusetts, which would support such an action. We agree with the plaintiffs.

The following facts and procedural history are necessary for the disposition of this appeal. On August 30, 1990, Pimental sustained physical injuries when a sewer repair device exploded during the course of his employment at a sewer repair project in the town of Groton. At the time of the explosion, Pimental, a resident of Massachusetts, was employed by Middlesex Corporation, a Massachusetts corporation having its principal place of business in that state.

Pimental applied for workers’ compensation benefits in Massachusetts and was paid in accordance with the provisions of the Massachusetts workers’ compensation laws. Pimental, USF&G and Middlesex Corporation sued Cherne Industries, Inc., the town of Groton, Groton’s employee Anthony Nenna, and Miller Contracting Corporation (Miller), which was a subcontractor on the project. Middlesex Corporation subsequently withdrew its claims and Miller’s motion for summary judgment was successful.

Pimental’s claim against Cherne Industries, Inc., sounds in product liability. Pimental’s claims against Nenna and Groton, however, are based on Nenna’s alleged negligence and, therefore, the vicarious liability of Groton as Nenna’s employer. USF&G’s claim against Groton and Nenna asserts subrogation rights that arose pursuant to Massachusetts law. Groton and Nenna subsequently moved for summary judgment against USF&G only. These two defendants claimed that under Connecticut law, USF&G had no right to bring a direct action to assert its subrogation or lien rights. The trial court, applying Connecticut law, granted Nenna and Groton’s motion for summary judgment against USF&G. The trial court concluded that USF&G had no right under Connecticut law to maintain its action against Nenna and Groton. Pimental and USF&G now appeal from the decision of the trial court granting the defendants’ motion for summary judgment.

The proper choice of law rules that apply in determining whether the trial court properly granted the defendant’s motion for summary judgment are those traditionally applied to workers’ compensation conflicts cases. Our Supreme Court has set forth the applicable analysis in Simaitis v. Flood, 182 Conn. 24, 437 A.2d 828 (1980), and, accordingly, we follow its reasoning.

“In Thomas v. Washington Gas Light Co., 448 U.S. 261, 100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980), the United States Supreme Court adhered to an interests analysis approach to determine whether the District of Columbia could award supplemental benefits to an employee who had already received compensation in the state of Virginia without violating the full faith and credit clause of the United States constitution. The employee was a resident of the District and was hired by a company in the District. Although he worked primarily in the District of Columbia, he also worked in Virginia where he was injured. Virginia law excluded any other remedy ‘at common law or otherwise’ on account of the injury in Virginia. The court held that ‘a State has no legitimate interest within the context of our federal system in preventing another State from granting a supplemental compensation award when that second State would have had the power to apply its workmen’s compensation law in the first instance. The Full Faith and Credit Clause should not be construed to preclude successive workmen’s compensation awards.’ Id., 286.” Simaitis v. Flood, supra, 182 Conn. 31-32.

In the present case, Pimental received workers’ compensation under Massachusetts law. Massachusetts’ interest in compensating the injured employee, a Massachusetts resident, to the fullest extent possible is clear and legitimate. Massachusetts’ other articulable interest lies in permitting Pimentai’s employer, a Massachusetts corporation, to recover from the defendants the amount of compensation already paid or to be paid in the future under Massachusetts law. Connecticut’s interest in limiting the liability of employers doing business in Connecticut “is not of controlling importance”; Thomas v. Washington Gas Light Co., supra, 448 U.S. 280; particularly on the facts of this case. Just as Virginia had no legitimate interest in preventing the District of Columbia from awarding relief supplemental to that awarded in Virginia, Connecticut has no legitimate interest in preventing Massachusetts from providing employers with a right of action for damages against a third party, where both the employee and the employer are residents of Massachusetts.

Just as our Supreme Court did in Simaitis v. Flood, supra, 182 Conn. 24, we, too, look beyond an interest analysis and examine the Restatement (Second) of Conflict of Laws and Professor Larson’s treatise on workers’ compensation; 1 Restatement (Second), Conflict of Laws § 181 (1971); 4 A. Larson, Workers’ Compensation Law (1997) § 87.40, pp. 16-84 through 16-95; which suggest approaches that lead to the same result. “The Restatement provides that: ‘A State of the United States may consistently with the requirements of due process award relief [not merely compensation] to a person under its workmen’s compensation statute, if (a) the person is injured in the State, or (b) the employment is principally located in the State, or (c) the employer supervised the employee’s activities from a place of business in the State, or (d) the State is that of most significant relationship to the contract of employment with respect to the issue of workmen’s compensation under the rules of §§ 187-188 and 196, or (e) the parties have agreed in the contract of employment or otherwise that their rights should be determined under the workmen’s compensation act of the State, or (f) the State has some other reasonable relationship to the occurrence, the parties and the employment.’ Restatement (Second), 1 Conflict of Laws 181.” Simaitis v. Flood, supra, 33. On the facts of this case, the right of action provided by Massachusetts law is clearly available to the plaintiffs under (b), (c) or (d) of the Restatement.

Further, “[according to Professor Larson, the applicable law in a workers’ compensation case is the law of the place of the employment relation, because ‘the existence of the employer-employee relation within the state gives the state an interest in controlling the incidents of that relation, one of which incidents is the right to receive and the obligation to pay compensation.’ 4 Larson, supra, § 87.40, p. 16-84.” Simaitis v. Flood, supra, 182 Conn. 34. Here, it is clear that the employment relation exists in Massachusetts, not in Connecticut. Although there are various widely accepted approaches, each one compels the conclusion that the trial court should have applied Massachusetts law in this case.

The defendants and the trial court, however, rely on Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 588 A.2d 194 (1991), for the proposition that the law of Connecticut should have been applied in this case. This reliance is misplaced. Cleveland addressed the issue of whether an injured employee can receive workers’ compensation benefits in Connecticut. Id., 192. Cleveland does not address the choice of law to be applied to workers’ compensation issues in the context of third party tort actions, which is the issue in this appeal. Simaitis, however, does address these issues and is controlling here.

In sum, we conclude that the trial court should have applied the law of Massachusetts in this case, and since Massachusetts law specifically provides for a direct action by the workers’ compensation carrier against a tortfeasor, pursuant to Mass. Gen. Laws c. 152, § 15 (1986), the trial court improperly granted the defendants’ motion for summary judgment.

The judgment is reversed and the case is remanded with direction to deny the motion for summary judgment and for further proceedings.

In this opinion the other judges concurred.

       There are three remaining defendants in this case: Anthony Nenna, the town of Groton and Cheme Industries, Inc. The plaintiffs are appealing from the trial court’s judgment rendered on the granting of a motion for summary judgment filed by only two of the defendants, Nenna and Groton.

       Mass. Gen. Laws c. 152, § 15 (1986) provides in relevant part: “Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee shall be entitled, without election, to the compensation and other benefits provided under this chapter. Either the employee or insurer may proceed to enforce the liability of such person, but the insurer may not do so unless compensation has been paid . . . .”

       This sewer repair device is known as a “muniball.”

       USF&G is Pimental’s workers’ compensation carrier.

       Cherne Industries, Inc., is the seller of the muniball.


author: PER CURIAM.

text:
    TRACY CHESTER v. ZONING BOARD OF APPEALS OF THE TOWN OF WESTPORT
    (AC 16106)
    Lavery, Schaller and Hennessy, Js.
    Argued April 22
    officially released August 5, 1997

      W. I. Haslun II, with whom, on the brief, was Cristin L. Rothfuss, for the appellant (plaintiff).

      Andrew F. Fink, town attorney, for the appellee (defendant).
   Opinion

PER CURIAM.

This appeal arises out of the denial of an application for a variance made to the zoning authorities of the town of Westport (town). The plaintiff, Tracy Chester, appeals from the judgment of the trial court dismissing her appeal from the decision of the defendant, the Westport zoning board of appeals (board). The board denied the plaintiffs application for a variance from the town’s setback and lot coverage regulations after the Westport planning and zoning commission ordered the plaintiff either to bring the deck on her property into compliance with the town’s setback and lot coverage regulations or to remove the structure. On appeal, the plaintiff contends that the trial court improperly decided that General Statutes § 843a does not exempt the plaintiffs property from enforcement of the town’s lot coverage regulations.

At the hearing before the board concerning her application for a variance, the plaintiff asserted the alternative position that her property is exempt from the town’s lot coverage regulations pursuant to § 8-13a. The plaintiff argued that because the town had not attempted to enforce the lot coverage regulation for more than three years while the deck was situated on her property, her property should be exempt, pursuant to § 8-13a, from the town’s lot coverage regulations. In its memorandum of decision, the trial court dismissed the plaintiffs appeal from the board’s denial of her application for a variance. The trial court, however, also stated that § 8-13a does not exempt the plaintiffs deck from compliance with the town’s lot coverage regulations.

The issue presented in this appeal is whether the trial court improperly decided that § 8-13a does not exempt the plaintiffs property from enforcement of the town’s lot coverage regulation. This issue was not properly before the trial court in this case. The only issue properly before the trial court in the plaintiffs zoning appeal was the board’s denial of the plaintiffs application for a variance. That issue was correctly decided by the trial court on the basis of insufficient proof of hardship. The plaintiff did not contest that determination in this appeal. Therefore, the trial court’s discussion and purported determination of § 8-13a is dicta and not binding on the parties, and we neither reject nor endorse the trial court’s dicta. See Hubbell Inc. v. Bridgeport, 240 Conn. 475, 485, 692 A.2d 765 (1997).

The judgment is affirmed.

       General Statutes § 8-13a provides: “When a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot or when a building is situated on a lot that violates a zoning regulation of a municipality which prescribes the minimum area of the lot, and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries or to the area of such lot, as the case may be.”