author: Borden, J.

text:
    State of Connecticut v. Frank X. Lo Sacco
    (5130)
    Borden, Daly and Bieluch, Js.

      Argued June 11
    decision released September 22, 1987

      Frank X. Lo Sacco, pro se, the appellant (defendant).

      F. Kent Sistare, Jr., special assistant state’s attorney, with whom, on the brief, were John Whalen and James G. Clark, assistant state’s attorneys, for the appellee (state).
   Borden, J.

The defendant appeals from his conviction, after a trial to the court, on two informations, each charging the infraction of creating a public disturbance in violation of General Statutes § 53a-181a. The two charges arose out of incidents occurring on separate days, June 14,1985, and June 15,1985, respectively. The defendant claims that the trial court erred (1) in denying his motion for judgment of acquittal on both counts, (2) in failing to advise him of his constitutional right not to testify, (3) in basing his convictions on constitutionally protected speech, (4) in allowing the state to file a substitute information on the day of trial, (5) in denying his motion for mistrial, and (6) in denying him a jury trial pursuant to General Statutes (Rev. to 1985) § 54-82b (a). We find error in part.

I

The defendant’s first claim is that the trial court should have granted his motion for judgment of acquittal on both informations. We agree in part, and hold that the evidence was insufficient to support a guilty verdict with respect to the incident on June 15, 1985.

The defendant was charged with violating subdivisions (1), (2) and (3) of General Statutes § 53a-181a (a). That statute provides: “A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.” The trial court concluded that the defendant violated subdivisions (1) and (2) of the statute on both dates in question.

Our standard of review of the conclusions of the trier of fact, whether it be a judge or a jury, is limited. State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We construe the evidence in the light most favorable to sustaining the verdict or judgment, and we will confirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Hanson, 12 Conn. App. 32, 38, 529 A.2d 720 (1987).

The trier of fact in this case was the judge. Pursuant to Practice Book § 4059, the trial court rendered an oral memorandum of decision setting forth the factual basis of its decision. In the absence of a conclusion that a finding is clearly erroneous, we are bound by the court’s findings. Practice Book § 4061.

The trial court found the following background facts. Prior to 1984, the defendant and the complaining witness, Deborah Parmalee, lived together and had a child, Kevin, who was bom in 1979. In 1983 or early 1984, the relationship ended, and a custody proceeding ensued which was ongoing at the time of the two incidents in question. The trial court found that during the period when the defendant and Parmalee were living together, Parmalee was “constantly terrified” of the defendant. The court found support for this conclusion in the “disparity in physical size between the two individuals— the defendant being a robust, well built male, and the complainant witness being a somewhat frail and tiny female.”

As to the incidents at issue, the court found that on June 14,1985, at about 9:45 p.m., Parmalee and Kevin were returning to their home by car when the defendant “accosted” them. According to the oral memorandum of decision, the following occurred: “[T]he [complainant’s] car apparently was stopped, but [the defendant] leaned up against the car, had been — had a strong odor of alcohol on his breath, was yelling at the complaining witness, had his face up close to her. She became annoyed by this, in the light of the previous history of the tumultuous relationship [between the two], became very frightened.” The trial court further found that the defendant intended to interfere and annoy, and that as a result, both Parmalee and Kevin suffered from “apprehensive fear and a state of fright.” The court concluded that the defendant “[intended] to cause annoyance to the complaining witness . . . and . . . engaged in violent and threatening behavior, and also that he annoyed the complaining witness by offensive conduct.” (Emphasis added.) By its finding, therefore, the court concluded that the defendant violated the first two subdivisions of General Statutes § 53a-181a (a).

With respect to the second count, the court found that on the following day, June 15, as Parmalee and Kevin were leaving Friendly’s Restaurant, they were once again “accosted” by the defendant. Parmalee and Kevin were getting into the car, when the defendant, who had just arrived at Friendly’s, approached the car and called to the child. The court found that “the child was very much disturbed. It caused him to run into the car and do a back-flip into the back seat, so as to get away from the father.” (Emphasis added.) Moreover, it concluded that Parmalee was “substantially frightened” and that the defendant’s conduct created in Parmalee and Kevin “apprehensive fear and a state of fright.” The court concluded that the defendant intended, to annoy and alarm the child and Parmalee by offensive conduct, especially in light of the incident of the prior evening and the history of their relationship. Additionally, the court concluded that the defendant engaged in “violent and threatening behavior.” By its finding, once again, the court concluded that the defendant violated the first two subdivisions of General Statutes § 53a-181a (a).

On the basis of our thorough review of the testimony in this case, we conclude that two specific factual findings of the court are clearly erroneous because they are unsupported by the evidence. See generally Buddenhagen v. Luque, 10 Conn. App. 41, 521 A.2d 221 (1987). First, there is no evidence to support the trial court’s finding that Parmalee was “constantly terrified” by the defendant. The bare fact that the defendant is larger than Parmalee is insufficient evidence to support such a conclusion. Second, the trial court’s conclusion that Kevin, in reacting to the defendant’s presence at Friendly’s, was placed into “apprehensive fear and a state of fright,” was “disturbed” and did “aback flip . . . to get away from his father,” is also unsupported by the evidence. The only evidence on this matter was presented by Kevin himself, who was called as a defense witness. He testified that he “flipped” into the back seat because he was “startled” to see his father, since he did not expect him to be at Friendly’s. There is no evidence to support a conclusion that the child feared the defendant in any way and was trying to get away from him. Nor is there any evidence to support a conclusion that Kevin was “annoyed” by the defendant.

Before turning to the issue at hand, we must recognize a constitutional limitation on the application of General Statutes § 53a-181a. By the broad language chosen by the legislature, the statute is intended to proscribe a wide range of human conduct which otherwise could not be prohibited by precise statutory language. It has been recognized that criminal statutes of this sort must be “scrutinized with particular care” since they may “make unlawful a substantial amount of constitutionally protected conduct,” including speech. Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 2508, 96 L. Ed. 2d 398 (1987). In Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), the United States Supreme Court held that when words are claimed to offend a statute, only those “having a direct tendency to cause acts of violence by the persons” to whom they are addressed may be proscribed. “[Flighting words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” are not protected by the first amendment. Id., 572. This limiting doctrine has been applied in Connecticut to a number of statutes. See State v. Beckenbach, 1 Conn. App. 669, 476 A.2d 591 (1984), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985) (“Fighting words” limitation applied to that portion of breach of the peace statute; General Statutes § 53a-181; which proscribes abusive language); State v. Anonymous (1978-4), 34 Conn. Sup. 689, 695, 389 A.2d 1270 (1978) (“Fighting words” limitation applied to subdivision (2) of disorderly conduct statute; General Statutes § 53a-182; which prohibits “offensive or disorderly conduct”); see also State v. Duhan, 194 Conn. 347, 357 n.2, 481 A.2d 48 (1984). With these constitutional considerations in mind, we turn to the issue at hand, namely, whether the defendant’s conduct as found by the trial court, but excluding the findings we have determined to be clearly erroneous, reasonably supports a conclusion that the defendant created a public disturbance on both occasions in question.

With respect to the incident on June 14, 1985, we conclude that the evidence was sufficient to support the trial court’s determination that the defendant, with intent to cause annoyance and alarm, did annoy Parmalee by offensive conduct in violation of subdivision (2) of General Statutes § 53a-181a.

“Offensive conduct” is not defined in the statute, and upon a review of Connecticut case law, we have discovered only one case that discusses the term. In State v. Anonymous (1978-4), supra, the Appellate Session of the Superior Court held that any definition of “offensive conduct” must incorporate the fighting words limitation of Chaplinsky v. New Hampshire, supra, to the extent that the conduct punished is speech. The instructions to the jury in State v. Anonymous (1978-4), supra, 694-95, were incomplete because they did not include the limiting language. Despite this omission, the court noted “evident care” in the framing of the charge which defined offensive conduct as “conduct which under contemporary community standards is so grossly offensive to a person who actually overhears it or sees it as to amount to a nuisance.” Id., 692; see also D. Wright, Connecticut Jury Instructions (2d Ed.) § 882. We agree with and adopt this definition of offensive conduct.

There was evidence that the defendant went up to Parmalee’s car, placed his hands on the window, leaned his head into the car and into Parmalee’s face, and proceeded to yell at her for one and one-half to two minutes, despite her repeated requests that he stop. Parmalee was frightened by the defendant because he appeared to have been drinking heavily and was very excitable, angry and upset. The transcript reveals further that Parmalee became alarmed, rolled up her window, drove away and parked her car, grabbed her son, Kevin, and rushed into her apartment, leaving the groceries she had bought in the car. We conclude that the trial court could reasonably have found such conduct to be offensive in that it was “under contemporary community standards ... so grossly offensive to [Parmalee] ... as to amount to a nuisance.” Moreover, the trial court could reasonably have concluded that the defendant intended to cause annoyance or alarm and that Parmalee was so annoyed. In reaching this conclusion, we are mindful of the fighting words limitation; Chaplinsky v. New Hampshire, supra; and emphasize that it was the defendant’s conduct in this case, and not his speech, which serves as the basis for our conclusion that the evidence supported the verdict.

Turning to the incident on June 15,1985, we conclude that the evidence was insufficient to support the court’s determination of guilt. With respect to the court’s finding that the defendant engaged in “offensive conduct,” we can find no evidence that would support this conclusion. The defendant merely approached the complainant’s car while she was at Friendly’s and called Kevin to come to him. This conduct neither constitutes “fighting words,” nor can it be reasonably viewed as “so grossly offensive ... as to amount to a nuisance.” While Parmalee may in fact have been frightened by the defendant’s conduct, this is not sufficient to support a conviction when the defendant’s conduct does not reach the requisite level.

Nor do we find evidence to support the trial court’s conclusion that the defendant violated subdivision (1) of General Statutes § 53a-181a (a) by engaging in violent or threatening behavior. These terms are neither defined in the statute, nor have they been subject to construction by decisional law. We may, therefore, look to the common understanding of the words as expressed by their dictionary meaning. Metropolitan District v. Barkhamsted, 3 Conn. App. 53, 72, 485 A.2d 1311 (1984).

“Violent” is defined as “characterized by extreme force” and “furious or vehement to the point of being improper, unjust, or illegal.” Webster, Third New International Dictionary. “Threatening” is defined as a “promise [of] punishment” or, “to give signs of the approach of (something evil or unpleasant).” Id. When two or more words are grouped together, it is possible to ascertain the meaning of a particular word by reference to its relationship with other associated words and phrases under the doctrine of noscitur a sociis. See 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 47-16; see also State v. Roque, 190 Conn. 143, 152, 460 A.2d 26 (1983); State v. Duhan, 38 Conn. Sup. 665, 668, 460 A.2d 496 (1982). Placed within the context of the other words in the statute, the word “threatening” takes on a more ominous tone. The statute proscribes “engaging in fighting or in violent, tumultuous, or threatening behavior.” In State v. Duhan, supra, the Appellate Session of the Superior Court defined “tumultuous” as “riotous” and “turbulent.” Fighting, by its plain meaning, involves physical force. We conclude that the language of subdivision (1) of General Statutes § 53a-181a (a) involved in this case, namely, “violent or threatening behavior,” evinces a legislative intent to proscribe conduct which actually involves physical violence or portends imminent physical violence. This conclusion is consistent with the “fighting words” limitation; see Chaplinsky v. New Hampshire, supra, 573; which must be applied when the conduct sought to be proscribed consists purely of speech. Under such circumstances, the words spoken must have a direct tendency to inflict injury or to cause acts of violence or a breach of the peace by the persons to whom they are directed. See State v. Beckenbach, supra.

We conclude that the defendant’s conduct on June 15, 1985, when he walked toward the complainant’s car while calling for his son to come to him, does not approach the level of violent or threatening behavior required by the statute. There was neither violence nor the threat thereof.

II

The defendant next claims that the trial court erred by failing to advise him, prior to taking the witness stand, of his constitutional right not to testify under the fifth amendment. We disagree.

We first note that the defendant is not claiming that the trial court failed to follow the procedure of Practice Book § 961 for establishing a waiver of his constitutional right to counsel. See generally State v. Gethers, 193 Conn. 526, 532-40, 480 A.2d 435 (1984). Rather, the defendant’s limited claim is that he, as a pro se defendant, was entitled to an advisement of his constitutional right not to testify prior to testifying. While we recognize that the defendant does have a constitutional right not to testify; Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 2709-10, 97 L. Ed. 2d 37 (1987); Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); and recognize that it is sound judicial practice to advise a pro se defendant of this right, we conclude that under the circumstances of this case it was not incumbent upon the court to inform the defendant of this constitutional right. We are unwilling to impose upon the trial court the burden of advising a pro se defendant of every constitutional right that may be implicated by a particular decision, strategy or course of conduct he chooses during a trial. While there may be extreme situations under which a duty arises to advise a pro se defendant of his right not to testify, this case does not present one of them.

The defendant made the decision to take the witness stand on his own behalf, without any suggestion to do so by the court. Cf. State v. Agresta, 5 Conn. Cir. 242, 250 A.2d 246 (1968). Moreover, the record is clear that the defendant knew that he did not have to testify. In fact, the defendant was not only aware of his right not to testify; cf. Cochran v. State, 117 So. 2d 544, 547 (Fla. App. 1960); but acted upon it. He chose to testify concerning the events surrounding the June 15,1985 incident, and declined to testify to the events surrounding the June 14, 1985 incident.

Ill

The defendant next claims that the trial court improperly based its determination of guilt on constitutionally protected speech. We disagree.

In our review of the sufficiency of the evidence on the first information, involving the June 14,1985 incident, we determined that the trial court’s findings of fact reasonably supported its judgment. Those findings of fact included the following: The defendant placed his hands on the window of the complainant’s car, leaned his head into the car and into her face, and yelled, very loudly and over repeated requests that he stop, for a period of one and one-half to two minutes. The trial court never made reference, in its memorandum of decision, to the content of the defendant’s speech. It is clear, therefore, that its determination was based on the defendant’s overall conduct, rather than the content of his speech.

IV

The defendant next raises five claims arising out of the trial court’s decision to allow the state, on the day of trial, to substitute the two original informations, each of which charged the defendant with the misdemeanor offense of disorderly conduct; General Statutes § 53a-182; with two informations charging the defendant with the infraction of creating a public disturbance; General Statutes § 53a-181a. He claims that the trial court erred (1) in denying his motion to strike the substitute informations, (2) in denying his motion for a continuance, (3) in failing to put him to plea on the substitute informations, (4) in failing to advise him sua sponte of his right under General Statutes § 51-164n (b) to elect to pay a fine for an infraction, and (5) in failing to give him an opportunity to consult with counsel. These claims are without merit.

A

The defendant claims that the trial court abused its discretion in denying his motion to strike the substitute informations under Practice Book § 623. That rule provides, in relevant part, that “upon motion of the defendant, the judicial authority, in his discretion, may strike the . . . substitute information, if the . . . substantive rights of the defendant would be prejudiced.” The defendant claims that his substantive right to a jury trial was prejudiced since, upon being charged with infractions, rather than class C misdemeanors; see General Statutes §§ 53a-182 and 53a-36 (3); he lost his statutory right to a jury trial. See State v. Weisser, 9 Conn. App. 255, 256-57, 518 A.2d 655, cert. denied, 202 Conn. 803, 519 A.2d 1207 (1986); see also General Statutes § 54-82b (a). We have recently held that the defendant has no right to a jury trial when he is charged with the infraction of creating a public disturbance. State v. Weisser, supra.

The defendant’s claim lacks merit. The infraction does not entitle the defendant to a jury trial because its maximum penalty is a fine of ninety dollars. General Statutes § 51-164n (f). The defendant loses no right to a jury trial simply because the state chooses to expose him to a risk of penalty which does not warrant a jury trial.

The defendant also claims that his substantive right to notice was affected by the substitution of the informations on the day trial began. This claim is unfounded. The infraction of creating a public disturbance, in violation of General Statutes § 53a-181a, is virtually identical in terms to the first three subdivisions of disorderly conduct in violation of General Statutes § 53a-182.

B

The defendant next claims that the trial court erred in failing to grant his request for a continuance which, he claims, he needed in order to prepare to defend against the new charges. We disagree. A review of the record reveals that, although the defendant moved for a continuance, it was not because of any need to prepare his defense in light of the substitute informations. Rather, he requested it so that he could subpoena an officer as a witness. The court granted that request for a continuance to issue the subpoena.

C

The defendant next claims that the court lacked jurisdiction over him because, although he was put to plea on the first informations, he was never put to plea on the substitute informations. This claim is meritless. The record is barren of any suggestion that the defendant endeavored to change his plea to guilty or expressed a desire to waive his right to a trial prior to the rendering of a verdict. His original pleas applied with full force to the substitute informations. See State v. Piskorski, 177 Conn. 677, 748, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Jones, 166 Conn. 620, 628-29, 353 A.2d 764 (1974); State v. Lorusso, 151 Conn. 189, 191, 195 A.2d 429 (1963).

D

The defendant next claims that his convictions should be set aside because the trial court failed to advise him of his right, under General Statutes § 51-164n (b), to elect “to pay the fine . . . for the infraction . . . [where] [s]uch payment shall be considered a plea of nolo contendere and shall be inadmissible in any proceeding, civil or criminal.” The defendant cites no support for the proposition that the trial court has a duty to advise a pro se defendant of such a matter, nor have we discovered any. When a defendant elects to proceed without the benefit of counsel, he takes the risk that because of his inexperience and lack of knowledge, he will suffer disadvantages to which, with proper representation, he would not be subject. Furthermore, it is clear that the pro se defendant was not disadvantaged by his lack of knowledge of the law. There is absolutely nothing in this record to indicate that the defendant would have elected to pay a fíne rather than proceed to trial. Indeed, it is clear that he intended to exercise his right to a trial and, in fact, repeatedly asserted his desire for a jury trial.

E

The defendant also claims that the trial court erred in failing to give him an opportunity to consult with an attorney when the substitute informations were filed. The defendant, however, did not request such an opportunity. Nor do the facts of this case suggest that the court should have done so sua sponte.

Y

The defendant next claims that the trial court erred in denying his motion for a mistrial which he filed on the basis of the court’s improper restriction of his attempt, on cross-examination of Parmalee, to elicit testimony of motive, bias, and interest. Specifically, the defendant claims that he was precluded from questioning Parmalee about the custody hearings between him and Parmalee that were being held at the time he was arrested; he claims that those hearings were the reason Parmalee pressed charges against him. The defendant also claims that as a result of the restriction on his cross-examination, he was forced to take the witness stand to provide this information to the court.

We acknowledge that the opportunity to cross-examine a witness for bias, interest or motive is a constitutionally protected right. See State v. Cosby, 6 Conn. App. 164, 168, 504 A.2d 1071 (1986). “The ultimate question on a motion for mistrial is whether there was ‘ “substantial and irreparable prejudice to the defendant’s case.” Practice Book § 887. A mistrial is warranted “only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial.” ’ State v. Jennings, 5 Conn. App. 500, 505, 500 A.2d 571 (1985). Such a motion invokes the court’s wide discretion.” State v. Kluttz, 9 Conn. App. 686, 705, 521 A.2d 178 (1987).

The defendant did not suffer substantial and irreparable prejudice from the trial court’s restriction of his cross-examination of Parmalee. Because the trial was to the court, the issue is whether the court, as the trier of fact, was deprived of information necessary to its decision that resulted in prejudice to the defendant. The record fails to reveal that this was the case. Parmalee testified on direct examination to the precise information which the defendant claims he was restricted from eliciting from her on cross-examination. She stated that, at the time of the incidents, she and the defendant were involved in “day to day hearings of our custody dispute.”

The defendant’s claim that he was forced to take the witness stand to provide this information also fails. In fact, a review of the relevant portions of the defendant’s testimony reveals that it was largely repetitive of Parmalee’s testimony. Furthermore, the trial court, in its oral decision, specifically found that at the time of the incidents child custody proceedings were occurring. The court, therefore, was adequately informed of the potential for bias as it affected Parmalee’s credibility. The court did not abuse its discretion in denying the defendant’s motion for a mistrial.

VI

The defendant’s final claim is that he was entitled to a jury trial pursuant to General Statutes (Rev. to 1985») § 54-82b (a), which provided for a jury trial “in criminal actions where the maximum penalty is a fine of ninety-nine dollars or a sentence of thirty days, or both.” He argues that because he was fined a total of $150 on both informations, he falls within the statute. The defendant misconstrues the nature of his fine which, in fact, consisted of two separate $75 fines, totaling $150. The defendant’s maximum exposure under General Statutes § 53a-181a, since it is an infraction, was a fine of “not less than thirty-five dollars and not more than ninety dollars.” General Statutes § 51-164n (f). Therefore, at no time was the defendant exposed to a fine in excess of $99 on a separate criminal charge.

There is error in part, the judgment of conviction on the second information is set aside and the case is remanded with direction to render a judgment of acquittal on the charge in that information.

In this opinion the other judges concurred.

       The defendant appeared pro se in the trial court and on appeal.

       The information states that the date of the second incident was “6/15/86.” This is clearly a typographical error.

       The defendant specifically requested the court to state the subdivisions of General Statutes § 53a-181a (a) that it found he had violated. The court complied and found that the defendant had violated subdivisions (1) and (2). It made no finding with respect to subdivision (3). We read this as a conclusion that the defendant did not violate that subdivision, and we therefore do not consider it further.

       The trial court did not, in its oral memorandum of decision, set forth the content of the defendant’s speech. A review of the complainant’s testimony, however, reveals the following:
      “Mr. Whalen: What was he saying?
      “Parmalee: Mr. Lo Sacco was yelling at me because he was saying that he had called my future husband’s apartment earlier in the evening, and had asked to speak to Kevin, and had been told that Kevin was not there. And, I then started to explain to Mr. Lo Sacco that even though he had just seen us leaving from that apartment, we, in fact, had not been there very long, because Kevin and I had been grocery shopping, and that when he had been told that Kevin was not there, that was the truth. Mr. Lo Sacco said no, I know it’s not the truth. You’re a god damn liar. You’ve always been. You always will be. You never tell the truth about anything anyway, so — He just continued on. He wouldn’t let me explain.”

       The transcript states that there was “an attempt to cause annoyance.” (Emphasis added.) We read this as a misinterpretation of the trial court’s oral rendering which, in this context, must have been a statement that the defendant “intended to cause annoyance.”

       The only evidence that could conceivably be the source of this finding of fact is the following colloquy:
      “Mr. Whalen: Now, at some point, during your relationship with Mr. Lo Sacco, did problems develop?
      “Parmalee: Yes.
      “Mr. Whalen: And, do you recall about when that took place?
      “Parmalee: October of 1983.
      “Mr. Whalen: And what was the nature of the problem?
      “Parmalee: Mr. Lo Sacco’s abuse of me.”
      This single reference to “abuse” in October, 1983, without further elaboration as to its meaning cannot reasonably be interpreted as evidence which supports a finding that Parmalee was “constantly terrified” by the defendant.

       Because we hold that the trial court could reasonably have concluded that the defendant intentionally annoyed Parmalee by offensive conduct, in violation of subdivision (2) of General Statutes § 53a-181a, we need not determine whether the evidence was sufficient to prove that the child, Kevin, also was so annoyed. Moreover, we need not decide whether the evidence was sufficient to support a conclusion that the defendant engaged in violent or threatening behavior in violation of subdivision (1) of the statute.

       Since we have concluded that there was insufficient evidence to support the judgment with respect to the second conviction, that judgment must be set aside. The remaining claims of error, therefore, will be discussed only insofar as they bear on the defendant’s conviction under the first information.

       During the defendant’s testimony, the court sought to elicit some information and the defendant responded as follows: “First of all, I have the right not to testify about the events of June 14,1985 ... I had advised the state’s attorney that I do not intend to testify about the June 14th, and I would object to the court compelling me to testify about the June 14,1985.”

       General Statutes § 53a-182 provides in relevant part: “(a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise. . . .”
      General Statutes § 53a-181a is identical except that subdivision (2) proscribes only offensive conduct, and not disorderly conduct.

       The defendant also claimed, in his motion for a mistrial, that the court’s restriction affected his ability to question Parmalee on her ability to ignore momentary, trivial or inconsequential annoyances. The defendant did not argue this to the court at the time of its ruling, and since we do not consider it to implicate a fundamental constitutional right; State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); we decline to review this claim further.

       General Statutes (Rev. to 1985) § 54-82b (a) has been amended effective October 1,1986, by Public Acts 1986, No. 86-227. It now provides that “[tjhere is no right to trial by jury in criminal actions where the maximum penalty is a fine of one hundred ninety-nine dollars or a sentence of thirty days, or both.”


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    The Metropolitan District v. Housing Authority of the City of Hartford
    (5394)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 2
    decision released September 22, 1987

      Rudolph P. Arnold, for the appellant (respondent).

      Cecily A. Isbell, with whom were Bourke G. Spellacy and, on the brief, David Hetzel, for the appellee (petitioner).
   Hull, J.

The petitioner in this action is a municipal corporation authorized, inter alia, to deliver water and sewer services to the residents of the Metropolitan District, which includes the city of Hartford. The respondent is a public housing authority which owns low and moderate income housing projects in the city of Hartford. The petitioner has, for a number of years, provided sewer services to the respondent’s housing projects.

On January 16, 1986, the petitioner filed a petition in the Superior Court for the appointment of a receiver of rents. The petitioner asserted that from January 1, 1982, until the time of the petition, the respondent refused to pay the amounts it owed the petitioner for sewer services rendered. The court denied the respondent’s motion to dismiss the petition, and the case proceeded to a hearing.

The parties agreed that the amount of disputed charges, as of August 7, 1986, was $581,482. At the hearing, the respondent sought to introduce three contracts into evidence. The respondent made an offer of proof that the contracts dealt with the issue of sewer charges and contained a covenant from the city of Hartford to provide sewer services in exchange for specific payments from the respondent. The court sustained the petitioner’s objection that the documents were not relevant.

On August 7, 1986, the court made a finding that $581,482 was owed to the petitioner from the respondent. It stated further that “[gjiven the nature of the Housing Authority it would appear to the court that the best interests of all the parties would be served by postponing or delaying the effective date of the appointment of a receiver of rents until September 2, 1986, to give an opportunity for the payment of those arrearages.” On August 29,1986, the court appointed a receiver of rents, to become effective September 2, 1986. The respondent has appealed from the August 7, 1986 order claiming that the court erred (1) in denying it’s motion to dismiss, (2) in disregarding pertinent statutes, (3) in refusing to admit relevant contractual evidence, and (4) in granting the petition when there was not sufficient evidence to support the court’s findings.

I

As a preliminary matter, the petitioner has raised the question of whether this appeal has been taken from a final judgment. In E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975), the Supreme Court developed two distinct tests for determining whether there is an appealable final judgment in a case. One test is whether the rights of a party are concluded by the order. See Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961). The other test is whether the order terminates a separate and distinct proceeding. See Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 (1953); see also Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84-85, 495 A.2d 1063 (1985). In applying both of these tests to the facts of the present case, we conclude that an appealable final judgment does exist.

When judgment was rendered on August 7,1986, the rights of the parties had been concluded. The petitioner at that point had the right to $581,482 from the respondent. The respondent no longer had the right to contest the issue of liability. Further, at the conclusion of proceedings on August 7,1986, the court ordered the execution of the judgment, in the form of the appointment of a receiver, unless the arrearages were paid before September 2, 1986. The court did not reserve decision on whether to appoint a receiver. It merely delayed the effective date of the appointment of that receiver.

Moreover, a separate and distinct proceeding was terminated once the court determined that the debt was due and a receiver should be appointed. See Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 524, 468 A.2d 574 (1983). The written order of August 29,1986, was merely the implementation of the judgment of August 7, 1986. That the order which entered on August 7, 1986, did not provide that a receiver begin his or her duties immediately in no way detracts from its being a final adjudication of the amounts owed to the petitioner. We therefore will consider the claims raised by the respondent.

II

The respondent’s first claim is that the court erred in denying its motion to dismiss, which raised the question of whether sewer services are a utility service for which a receiver can be appointed. The respondent contends that a utility receivership authorized by General Statutes § 16-262Í is limited to the four utility services stated in the statute: water, gas, electric and telephone.

General Statutes § 16-262f (a) provides in relevant part that “[u]pon default of the owner, agent, lessor or manager of a residential dwelling who is billed directly by an electric, gas, telephone or water company or by a municipal utility for utility service furnished to such building,” the utility may petition for appointment of a receiver of rents. The respondent interprets the term “utility service” not to include sewer charges. We disagree.

General Statutes § 16-1, the general definitions section for title 16 of the General Statutes, does not define either “municipal utility” or “utility service.” Nor does chapter 283, which contains the statutory section at issue here, § 16-2621 Both the common usage of the statutory language and the statutory scheme, however, bear out that sewer services are included in the utilities referred to in the statute, and are thus the proper subject of a receivership.

The petitioner is a municipal corporation, created in 1929 by a special act of the General Assembly, 20 Spec. Acts 1204, No. 511, which was given “broad powers relating to sewage disposal, water supply and regional planning as well as powers limited to certain highways.” Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 450, 280 A.2d 344 (1971). Such a municipal entity is commonly considered a “utility.” In chapter 293 of the General Statutes § 16-345 (c), the term “public utility” is specifically defined to include the “owner or operator of underground facilities for furnishing . . . sewage . . . service . . . .”

Moreover, as the trial court observed, sewer services are commonly considered utility services. In Clay v. East Orange, 177 N.J. Super. 79, 85, 424 A.2d 1199 (1980), the court stated that a “sewerage service charge is, in fact, a utility charge.” In Ripperger v. City of Grand Rapids, 338 Mich. 682, 687, 62 N.W.2d 585 (1954), the court said, “Water bills and bills for use of the sewer are very much alike. A public sewer system is a public utility the same as a water system.”

Accordingly, as a municipal corporation rendering utility services in the form of sewer services, the petitioner is a “municipal utility” within the meaning of the statute. Further, sewer services, like water services, are considered “utility services” and fit within the scope of General Statutes § 16-2621

General Statutes § 16-262Í was enacted as part of Public Acts 1975, No. 75-625, now codified as General Statutes §§ 16-262c through 16-262Í. The legislature did, in some of the sections, refer to municipal utilities furnishing specific utility services. The referrals are specific and selective, however. The legislature did not specify the same utility services in each instance. For example, in § 16-262c (a), the legislature spoke of a “municipal utility furnishing electric, gas, telephone or water services”; in § 16-262c (b) (1) the legislature spoke of a “municipal utility furnishing electricity or gas”; and in § 16-262d (a), it spoke of a “municipal utility furnishing electric, gas or water service.” In §§ 16-262e (a) and 16-262Í (a), however, the legislature dispensed with the specification described above and simply used the phrase “municipal utility for utility service.”

General Statutes § 16-262Í provides for a specific schedule of payment priorities to be followed by the receiver after his or her appointment. Charges for electric, gas, telephone, water or oil which accrue after the appointment of the receiver are to be paid first. The statute provides next, however, for costs and expenses, and then for “any arrearage found by the court to be due and owing the company or municipal utility . . . for service provided . . . . ” (Emphasis added.)

If the legislature had meant to provide only for payment to the five utilities provided for earlier in the statute, it would have again used the specific references. We interpret that general language to represent a conscious decision by the legislature not to limit the remedy created by these statutes to those municipal utilities providing only electric, gas, water or telephone services. We therefore conclude that the trial court correctly denied the respondent’s motion to dismiss.

Ill

The respondent’s next claim is that the court erred in disregarding state statutes that relieve the respondent of liability for sewer use charges. The respondent relies on General Statutes §§ 8-71 and 8-216 (b), which it asserts obligate a housing authority to pay only a fixed sum to be determined by the municipality with the approval of the state commissioner of housing.

General Statutes § 8-71 provides: “In lieu of real property taxes, special benefit assessments and sewerage system use charges otherwise payable to such municipality, except in such municipalities as, by special act or charter, on May 20, 1957, had a sewer use charge, an authority shall pay each year to the municipality in which any of its moderate rental housing projects are located a sum to be determined by the municipality, with the approval of the commissioner of housing, not in excess of twelve and one-half per cent of the shelter rent per annum for each occupied dwelling unit in any such housing project hereunder; except that the amount of such payment shall not be so limited in any case where funds are made available for such payment by an agency or department of the United States government, but no payment shall exceed the amount of taxes which would be paid on the property were the property not exempt from taxation.” (Emphasis added.)

The petitioner is not a “municipality” within the meaning of General Statutes § 8-71 as defined in General Statutes § 8-39 (l), for it is not a “city, borough or town.” The petitioner certainly is not “the municipality” referred to in § 8-71, for it is not “the particular municipality for which a particular housing authority is created,” as defined in § 8-39 (l). That entity is the city of Hartford.

General Statutes § 8-71 creates an accommodation between municipalities and tax exempt housing authorities in order to reimburse the muncipality for lost tax revenue. That statute, however, does not concern an independent, coexistent municipal entity. It does not refer to the Metropolitan District, and therefore nothing in the statute absolves the respondent of its obligation to pay for sewer services.

The respondent also relies on General Statutes § 8-216 (b) to absolve it of liability to the petitioner. Again, the reliance is misplaced. We have reviewed the statute and find nothing in it to absolve the respondent of its obligation to pay for sewer services, and nothing in the statute which requires the petitioner to seek payment of these charges from anyone other than the respondent. That statute, which does not mention any utility service, only authorizes the state to enter into agreements with a municipality in which the state may agree to make payments in lieu of taxes (PILOT) to the municipality on behalf of a housing authority. It does not create direct liability between the Metropolitan District and the city. The respondent’s claims that it is statutorily absolved of liability are therefore without merit.

IV

The respondent’s next claim is that the court erred in refusing to admit into evidence three contracts which contain a promise from the city of Hartford to provide sewer services in exchange for specific payments from the respondent.

“The rules for determining the admissibility of evidence are well settled. The trial court has broad discretion to determine both the relevancy and remoteness of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987); State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); Turgeon v. Turgeon, 190 Conn. 269, 273, 460 A.2d 1260 (1983); Hughes v. Contemporary Mission, Inc., 180 Conn. 150, 153, 429 A.2d 827 (1980). Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters. State v. Fritz, supra, 167-68; State v. Boucino, supra; State v. Falcon, 196 Conn. 557, 566, 494 A.2d 1190 (1985). In considering the relevancy of evidence, we ask whether ‘it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978).’ State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985). Because there is no precise and universal test of relevancy, however, the question must ultimately be addressed on a case-by-case basis in accordance with ‘ “the teachings of reason and judicial experience.” ’ State v. Sharpe, supra, 659; Johnson v. Healy, 183 Conn. 514, 516, 440 A.2d 765 (1981); Hoadley v. University of Hartford, 176 Conn. 669, 672, 410 A.2d 472 (1979).” Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987).

The operative language in each contract is substantially the same, and states in pertinent part: “The city agrees that, during the period commencing with the date of the acquisition of any part of the site or sites for each Project and continuing throughout the useful life of such project, it will not levy, impose or charge any taxes, special assessments, service fees, charges or tolls against the project or against the Authority and will furnish, without cost or charge to the Authority or the tenants thereof, municipal services and facilities for such Project and the tenants thereof, of the same character as those furnished without cost or charge for other dwellings and inhabitants in the City, including but not limited to: fire, police and health protection and services, street maintenance, snow removal, garbage, trash and ash collection and disposal, sewer services, street lighting on public streets within any Project and on the boundaries thereof . . . .”

What the respondent again fails to note is that the petitioner is not a party to this contract. The contract is between the city of Hartford and the respondent, and does not absolve the respondent of direct liability to the petitioner.

Section S121 of the Hartford city ordinances provides that the “sewer user charge will be billed to the property owner of record of the property.” An ancillary contract discussing secondary liability for sewer payments could have no effect on the respondent’s obligations to the petitioner. See generally Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981); 17 Am. Jur. 2d, Contracts § 294. While the court found that the respondent does have a claim against the city of Hartford for payment of its sewer charges, that contractual right cannot be interpreted to allow the respondent to avoid its direct obligation to the petitioner. The trial court therefore did not abuse its discretion in denying admission of the three contracts in question.

V

The respondent’s final claim is that there was insufficient evidence in the record to support the court’s finding of a debt due from the respondent to the petitioner. “An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of the appellate court is to review, and not to retry, the proceedings of the trial court. The scope of review is delineated in Practice Book § 4061 as follows: ‘The [appellate] court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.’ Practice Book § 4061 makes explicit what was implicit in its predecessor; Practice Book § 3060D; namely, that the ‘clearly erroneous’ test applies only to the ‘factual findings’ of the trial court, and not to its legal conclusions. ‘ “We cannot retry the facts or pass upon the credibility of the witnesses.” Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975) . . . . ’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980); Cook v. Nye, 9 Conn. App. 221, 224, 518 A.2d 77 (1986).

“As a corollary of our limited scope of review, in an appeal based on a claim of evidentiary insufficiency regarding a factual finding we do not examine the record to determine whether the judge or trier of fact could have made a finding other than the one made. Instead, we first determine whether there is evidence to support the finding. If not, the finding is clearly erroneous. Even if there is evidence to support it, however, a finding is clearly erroneous if 'in view of the evidence and pleadings in the whole record [this court] is left with the definite and firm conviction that a mistake has been committed.’ Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985).” Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987).

The parties stipulated that the petitioner had provided $1,874,486.72 worth of sewer services to the respondent, and that, with certain payments credited, the amount still outstanding totaled $581,482. The statutory scheme provides for the petitioner to bill the record owner of the property directly. There is no evidence of any agreement or provision which would make a third party liable for the debts of the respondent. In all, we cannot say that the trial court’s action was clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 16-262f provides in relevant part: “(a) Upon default of the owner, agent, lessor or manager of a residential dwelling who is billed directly by an electric, gas, telephone or water company or by a municipal utility for utility service furnished to such building, such company or municipal utility may petition the superior court or a judge thereof, for appointment of a receiver of the rents or payments for use and occupancy for any dwelling for which the owner, agent, lessor or manager is in default. The court or judge shall forthwith issue an order to show cause why a receiver should not be appointed, which shall be served upon the owner, agent, lessor or manager or his agent in a manner most reasonably calculated to give notice to such owner, agent, lessor or manager as determined by such court or judge, including, but not limited to, a posting of such order on the premises in question. A hearing shall be had on such order no later than seventy-two hours after its issuance or the first court day thereafter. The sole purpose of such a hearing shall be to determine whether there is a sum due and owing between the owner, agent, lessor, or manager and the company or municipal utility. The receiver appointed by the court shall collect all rents or payments for use and occupancy forthcoming from the occupants of the building in question in place of the owner, agent, lessor or manager. The receiver shall pay the petitioner or other supplier, from such rents or payments for use and occupancy, for electric, gas, telephone, water or heating oil supplied on and after the date of his appointment. The owner, agent, lessor or manager shall be liable for such reasonable fees and costs determined by the court to be due the receiver, which fees and costs may be recovered from the rents or payments for use and occupancy under the control of the recover, provided no such fees or costs shall be recovered until after payment for current electric, gas, telephone and water service and heating oil deliveries has been made. The owner, agent, lessor or manager shall be liable to the petitioner for reasonable attorney’s fees and costs incurred by the petitioner, provided no such fees or costs shall be recovered until after payment for current electric, gas, telephone and water service and heating oil deliveries has been made and after payments of reasonable fees and costs to the receiver. Any moneys from rental payments or payments for use and occupancy remaining after payment for current electric, gas, telephone and water service or heating oil deliveries, and after payment for reasonable costs and fees to the receiver, and after payment to petitioner for reasonable costs and fees to the receiver, and after payment to the petitioner for reasonable attorney’s fees and costs, shall be applied to any arrearage found by the court to be due and owing the company or municipal utility from the owner, agent, lessor or manager for service provided such building. Any moneys remaining thereafter shall be turned over to the owner, agent, lessor or manager. The court may order an accounting to be made at such times as it determines to be just, reasonable, and necessary.”

       The transcript states that “Both [counsel] have conferred upon these matters. And our agreement is as follows. That the total amount due to the Metropolitan District as of today’s date, August 7, 1986, is the amount of $783,220.98 . . . applying [certain credits] to the total . . . We come up with a balance due to the Metropolitan District in the amount of $581,482.”

       General Statutes § 8-216 (b) provides that: “The state, acting by and in the discretion of the commissioner of housing, may enter into a contract with a municipality and the housing authority of the muncipality to make payments in lieu of taxes to the municipality on land and improvements owned or leased by a housing authority under the provisions of part II of chapter 128. Such payments shall be made annually in an amount equal to the taxes that would be paid on such property were the property not exempt from taxation, and shall be calculated by multiplying the assessed value of such property, which shall be determined by the tax assessor of such municipality in the manner used by such assessor for assessing the value of other real property, by the applicable tax rate of the municipality. Such contract shall provide that, in consideration of such grant-in-aid, the municipality shall waive during the period of such contract any payments by the housing authority to the municipality under the provisions of section 8-71, and shall further provide that the amount of the payments so waived shall be used by the housing authority for a program of social and supplementary services to the occupants or shall be applied to the operating costs or reserves of the property, or shall be used to maintain or improve the physical quality of the property.”


author: Per Curiam.

text:
    Donald J. Lawlor v. Sonny J. Searles
    (5439)
    Hull, Borden and Daly, Js.
    Submitted on briefs September 1
    decision released October 6, 1987

      Howard, Rosenfield and Jeffrey L. Polinsky filed a brief for the appellant (defendant).

      Daniel H. Kennedy, Jr., filed a brief for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the trial court’s judgment of contempt. The trial court had rendered judgment for the plaintiff, pursuant to a stipulation of the parties, permanently enjoining the defendant “from using . . . the property known as 303 Cromwell Avenue, Rocky Hill, Connecticut or from permitting said property to be used for the overnight storage of any commercial vehicle on said premises other than the storage of one tractor type vehicle and one trailer which must be owned by the defendant or by his corporation, Searles Industries, Inc., parking of any commercial vehicle on said premises other than the parking of one tractor type vehicle which must be owned by the defendant or said corporation, maintenance of any commercial vehicles on said premises, and/or refueling of any commercial vehicles on said premises.” Thereafter, the court found the defendant in contempt for having failed to comply with the terms of the injunction.

In this appeal, the defendant claims that the trial court erred in finding him in contempt for conduct allegedly beyond the scope of the court’s injunction. Specifically, the defendant argues that the vehicles found to have violated the trial court’s injunction were located on an unnumbered lot on Cronin Drive, property located behind and adjacent to 303 Cromwell Avenue, and therefore could not be a proper basis for a finding of contempt. We disagree.

As we have recently stated, “[although the court has the power to issue orders necessary to protect the integrity of a stipulated judgment, it may not enlarge the scope of that judgment.” Foley v. Southport Manor Convalescent Center, Inc., 11 Conn. App. 530, 537, 528 A.2d 841 (1987). Certainly, traditional notions of fair play require that a litigant enjoined from engaging in certain conduct receive adequate notice of what conduct has been prohibited. See Blaydes v. Blaydes, 187 Conn. 464, 446 A.2d 825 (1982).

In this case, however, the trial court specifically found that the parties were aware that the property described as 303 Cromwell Avenue throughout the course of the litigation, in the stipulated judgment and in the injunction, included the parcel to the rear upon which the offending conduct took place. The court rejected the defendant’s argument to the contrary. The court’s finding was adequately supported by the record. Thus, the defendant’s claim is without merit.

There is no error.


text:
    Kazimiera Bielen v. Edward Bielen
    (5329)
    Hull, Borden and Daly, Js.
    Submitted on briefs September 1
    decision released October 13, 1987

      William C. Bieluch, Jr., filed a brief for the appellant (defendant).

      Robert A. Skovgaard filed a brief for the appellee (plaintiff).
   Borden, J.

The defendant appeals from the judgment of the trial court ordering him to pay an award of postjudgment attorney’s fees and expenses. The defendant raises five claims of error, all of which we have fully considered and reject as without merit.

Four of the defendant’s five claims concern either the factfinding or the discretionary function of the trial court. The defendant has failed to demonstrate that the facts found are clearly erroneous, or that the court abused its discretion.

The only claim of the defendant which warrants discussion is that the court erred by granting the plaintiff’s motion for attorney’s fees without taking evidence as to the financial circumstances of the parties at the time of the hearing on the motion. On the facts of this case, we disagree.

After a trial, the original judgment of dissolution was rendered on August 22, 1984. This was followed by numerous and lengthy postjudgment proceedings brought by the defendant to challenge that judgment, both in the trial court, and by way of several attempts to appeal which were ultimately dismissed.

In February, 1986, the plaintiff moved in the trial court for an award of attorney’s fees and expenses incurred as a result of those postjudgment proceedings. The court heard this motion on June 24, 1986, and awarded attorney’s fees and expenses to the plaintiff. At the hearing on the motion, neither party proffered a financial affidavit or other evidence as to their financial circumstances at that time.

Ordinarily, it is error for the court, in ruling on a motion for postjudgment attorney’s fees, to refuse to consider the parties’ current financial positions where there was “timely and adequate objection . . . on that basis.” Fisher v. Fisher, 4 Conn. App. 97, 101-102, 492 A.2d 525 (1985); Caracansi v. Caracansi, 4 Conn. App. 645, 651, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985). Here, however, the defendant made no such objection, and made no such claim to the court. In fact, the defendant made clear, both in oral argument to the trial court and in a written brief on the matter, that “the substance of our argument is that counsel fees in this situation are discretionary with the Court, and we don’t feel that they are merited at this point . . . . ”

Neither party offered testimony or objected to the lack of testimony. Both parties in effect invited the court to focus solely on the merits of the plaintiff’s request, without reference to their current finances. “ ‘If counsel has full knowledge of improper conduct (or what he perceives to be improper procedure) he cannot remain silent, hoping for a favorable ruling, and then be heard to complain when the order is unsatisfactory. See Holden & Daly, Conn. Evidence § 12.’ ” Carter v. Carter, 8 Conn. App. 356, 360-61, 512 A.2d 979 (1986), quoting Walsh v. Walsh, 190 Conn. 126, 132, 459 A.2d 515 (1983). Under these circumstances, we decline to review the defendant’s claim.

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Felix Meizoso et al. v. Joseph Bajoros
    (5225)
    Hull, Borden and Daly, Js.
    Submitted on briefs September 1
    decision released October 13, 1987

      Laurence V. Pamojf filed a brief for the appellants (plaintiffs).

      Kevin R. Murphy filed a brief for the appellee (defendant).
   Daly, J.

The named plaintiff brought this action in negligence and nuisance for personal injuries he sustained in a fall allegedly caused by the defective condition of a softball field under the control of the defendant. The named plaintiff’s former wife joined in this action raising a claim for loss of consortium on the theories of negligence and nuisance resulting from her husband’s injuries. The trial court directed a verdict in favor of the defendant on the counts of nuisance and loss of consortium from nuisance. The jury returned a verdict in favor of the defendant on the remaining two counts, negligence and loss of consortium from negligence.

The plaintiffs claim on appeal that the trial court erred (1) in directing a verdict on the two counts based on a theory of nuisance, (2) in limiting the jury’s inspection of the site of the injury, (3) in restricting the plaintiffs’ cross-examination of the defendant, and (4) in instructing the jury on the duty of care owed to an invitee and on the measure of damages for loss of consortium.

The jury could reasonably have found the following facts. On June 28, 1980, the defendant, owner of Capellero’s Grove, catered a picnic for the International Association of Electrical Inspectors. The defendant’s business specialized in social catering for large groups offering activities of basketball, badminton, Ping-Pong, softball and volleyball. The named plaintiff, an electrical contractor, attended the picnic after paying the ticket price of $15. While playing second base in a softball game, he tripped and fell in an attempt to catch a fly ball. The named plaintiff claims that the fall resulted in a broken ankle and, subsequently, in the dissolution of the marriage between him and his wife some four years later.

The plaintiffs’ failure to file a motion to set aside the verdict limits our review to a determination of whether there has been “plain error” in any of the issues raised. Practice Book § 4185; Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986); Rozbicki v. Pelletier, 2 Conn. App. 87, 88, 476 A.2d 1069 (1984). The plaintiffs’ claims of error, however, do not rise to the level of plain error.

The plaintiffs’ first claim of error is that the trial court erroneously directed a verdict in favor of the defendant on the two nuisance counts. The general rule in Connecticut is that a “trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion.” Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). In our review of the trial court’s directed verdict in favor of the defendant, we must consider the evidence in the light most favorable to the plaintiffs. Pinto v. Spigner, 163 Conn. 191, 193, 302 A.2d 266 (1972).

A review of the facts in the light most favorable to the plaintiffs indicates that the jury could not have found for the plaintiffs on the nuisance counts. Webel v. Yale University, 125 Conn. 515, 525, 7 A.2d 215 (1939), firmly established that in order to recover in a private nuisance action a plaintiff must have an ownership interest in the land. See D. Wright & J. Fitzgerald, Torts (2d Ed.) § 130. In this case, the named plaintiff had no such interest in the land. In fact, he was one of approximately 250 customers paying to gather at Capellero’s Grove. His attendance at the union’s picnic does not rise to an ownership interest in the land. Because the named plaintiff suffered no injury in relation to his ownership of an interest in the land, the trial court correctly directed a verdict in favor of the defendant.

The plaintiffs’ second claim of error is that the court erroneously restricted the jury’s inspection of the site of the injury. In this case, the trial court allowed the jury to view the ball field where the injury occurred, without permitting the jurors to feel the ground in the area where the named plaintiff fell. Our Supreme Court has held that whether and to what extent a view of the subject matter is taken rests in the sound discretion of the court. O’Connor v. Dory Corporation, 174 Conn. 65, 72, 381 A.2d 559 (1977); see State v. Taxiltaridis, 2 Conn. App. 617, 622, 481 A.2d 98 (1984). The discretion afforded to the trial court is considerable. See Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985). There is nothing in the record before us to suggest that the trial court, by preventing the jurors from feeling the ground of the ball field, was being unfair. Nor does it appear that a more extensive view was reasonably necessary to do justice between the two parties. See Mackin v. Mackin, 186 Conn. 185, 189-90, 439 A.2d 1086 (1982).

The plaintiffs additionally claim that the trial court erroneously ruled that the plaintiffs’ evidence of prior injuries was irrelevant. Counsel’s question regarding prior injuries was, however, withdrawn, making it not properly preserved for appeal. Even if we were to consider the plaintiffs’ claim, a review of the record indicates that there was no plain error in the trial court’s ruling.

The plaintiffs’ final claim of error is based on the jury instructions regarding the duty of care owed to an invitee and the measure of damages for loss of consortium. The plaintiffs assert that the jury charge was inadequate because it imposed a lesser duty upon the owner of the land than that required by law. It is clear from a review of the charge that the instruction accurately reflects Connecticut law, as stated by our Supreme Court in Warren v. Stancliff, 157 Conn. 216, 220, 251 A.2d 74 (1968). The trial court’s instruction on the measure of damages for loss of consortium comports with the authorities that the right of consortium tracks the existence of the marital relationship and terminates upon its dissolution by death or divorce. 2 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions (1984) § 11.16 [5]; see also Sawyer v. Bailey, 413 A.2d 165 (Me. 1980); Bemis Co. v. Rubush, 401 N.E.2d 48 (Ind. App. 1980). Reviewing the record and arguments presented in this appeal, we conclude that it was not plain error for the trial court to have instructed the jury as it did.

There is no error.

In this opinion the other judges concurred.

       This case is analogous to Couture v. Board of Education, 6 Conn. App. 309, 505 A.2d 432 (1986). In Couture, this court held that the plaintiff, who helped in officiating a football game as a “chainman,” could not recover, on a private nuisance theory, for injuries he suffered. This court held that since the plaintiff had no ownership interest in the land, the trial court correctly directed the verdict for the defendant on the nuisance count.

       The relevant portion of the court’s charge regarding the duty to warn is as follows: “Now, as far as warnings are concerned, in this case, the plaintiff testified there has been some indication that he knew the field was bumpy when he went on to the field. If you believe that the bumpy condition of the field caused the plaintiff to fall or that the plaintiff already knew that the field was in a bumpy condition, then the defendant was not legally obligated to give any warning. The purpose of a warning is to alert somebody to the condition that he doesn’t know about. There is no need to warn someone of a condition if he’s already aware of it. I mean, that would make, that wouldn’t add anything to the situation. If you find that the plaintiff already knew of the condition of the field, then the plaintiff wouldn’t be entitled to any warning from the defendant . . . .”

       The relevant portion of the court’s charge regarding loss of consortium is as follows: “There’s another limiting factor here and I’m going to limit it by the fact that there was a dissolution of the marital contract that was completed approximately four years after the injury. So that the law decreed an end to that marriage contract. I charge you that also, in effect, put an end to any expectation of any continued consortium benefit.”


text:
    Amelia Schofield v. Russell Schofield
    (5924)
    Dupont, C. J., Borden and Bieluch, Js.
    Submitted on briefs September 14
    decision released October 27, 1987

      Glenn T. Davis filed a brief for the appellant (plaintiff).

      William E. Hall filed a brief for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the granting by the trial court of the defendant’s motion to modify that portion of the judgment of divorce relating to alimony. The issues raised on appeal are (1) whether the court erred in finding that the increase in the plaintiff’s income due to her obtaining employment subsequent to the divorce was not contemplated by the parties, and (2) whether the court abused its discretion in reducing the alimony payments to the plaintiff by $50 per week. We find no error.

The parties were divorced in 1972. The defendant was ordered to pay alimony in the amount of $100 per week, and child support in the amount of $25 per week for each of the parties’ four minor children, then ages seventeen, sixteen, fourteen and five. He was also ordered to make the payments on the first mortgage on the home owned by the plaintiff. The plaintiff did not work outside the home at the time of the divorce. Her financial affidavit filed at that time showed that her only income was derived from court-ordered alimony and child support. This income exceeded her expenses by a small amount.

At the time of the hearing on the defendant’s motion to modify in 1987, the plaintiff was employed. Her gross earnings from employment totalled $371.89 per week. This was supplemented by the weekly alimony payment of $100. The four children had reached majority. At the hearing on the motion to modify, the plaintiff testified that, at the time of the divorce, she had expected to get a job and did in fact become employed as a bookkeeper soon thereafter. The defendant testified that, at the time of the divorce, the matter of whether the plaintiff would get a job “was never discussed” and that since the plaintiff had never worked before, he “had no idea she was going to be going to work.” He also testified that, with respect to his continuing obligation to make the mortgage payments, he “wanted to make sure that the home was kept as a homestead for the children not to upset their day-to-day living.”

The court concluded that the defendant had shown a substantial change in circumstances which was not contemplated by the parties. Thereupon, the court reduced the alimony order from $100 per week to $50 per week. This appeal followed.

The plaintiff first claims that the court erred in finding that the plaintiff’s employment subsequent to the divorce was not contemplated by the parties at the time of the divorce. The plaintiff does not dispute that the trial court was justified in finding the change in her income to be substantial; rather, she challenges the court’s determination that the defendant had shown that the increase in the plaintiffs income due to employment was not contemplated.

“We recognize that a party seeking modification of financial orders incident to a marital dissolution judgment must clearly and definitely establish an uncontemplated substantial change of the circumstances of either party which demonstrates that continuation of the prior order would be unfair and improper. Wingerd v. Wingerd, 3 Conn. App. 261, 262, 487 A.2d 212 (1985). We also recognize the well established standard of review in this court of the trial court’s actions in such matters. We do not substitute our judgment for that of the trial court. Vanderlip v. Vanderlip, 1 Conn. App. 158, 159, 468 A.2d 1253 (1984). Great weight is due the action of the trial court, which will not be disturbed unless the court has abused its discretion or its finding has no reasonable basis in the facts. Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987); Wingerd v. Wingerd, supra, 263.” Fabiano v. Fabiano, 10 Conn. App. 466, 469, 523 A.2d 937 (1987). We decide, not whether we would have drawn the same inferences or found the same facts, but whether the trial court could have reasonably done so. Grayson v. Grayson, 4 Conn. App. 275, 294, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987).

In this case, we cannot conclude that the court’s finding that the plaintiffs earnings from employment were not contemplated at the time of the divorce had no reasonable basis in the facts. This conclusion was based upon the defendant’s testimony that it was not contemplated that the plaintiff would go to work, and upon the court’s view that the original alimony award and the order that the defendant make the first mortgage payments reflected the parties’ intent “to further the desirability of [the plaintiff’s] staying home with the children.” The trial court’s finding has a sufficient basis in the evidence presented.

The plaintiff’s second claim is that the court erred in reducing the amount of alimony by $50 per week. Having concluded that the court’s finding regarding the plaintiff’s employment cannot be disturbed, our review of the plaintiff’s challenge to the trial court’s determination of the amount of the modification ordered is limited: “ ‘The goal of our analysis is simply to decide whether the trial court’s conclusion was reasonable.’ ” Griffiths v. Griffiths, 12 Conn. App. 807, 807-808, 531 A.2d 1203 (1987) (per curiam), quoting Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987). We conclude that the court did not abuse its wide discretion in its modification of the alimony award.

There is no error.

In this opinion the other judges concurred.

       We note that General Statutes § 46b-86 (a), which provides for modification “upon a showing of a substantial change in the circumstances of either party,” has been repealed and substituted by Public Acts 1987, No. 87-104. That act provides in relevant part that “modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court.” (Emphasis added.) That act was not effective until October 1, 1987, and therefore does not affect this case.


text:
    Henry Debowsky v. Gertrude Debowsky
    (5294)
    Dupont, C. J., Spallone and Bieluch, Js.
    Submitted on briefs September 1
    decision released October 27, 1987

      Elizabeth Allen filed a brief for the appellant (plaintiff).

      David M. Askinas filed a brief for the appellee (defendant).
   Per Curiam.

The plaintiff husband brought this action against the defendant wife, seeking a dissolution of their forty-two year marriage, a division of the marital assets, and alimony. The defendant filed a cross complaint requesting similar relief. The trial court found for the defendant on the complaint and cross complaint, adjudged the marriage dissolved on the ground of irretrievable breakdown, and declared that those assets held in the defendant’s name would remain the sole property of the defendant and those assets held in the plaintiff’s name would remain the sole property of the plaintiff. No alimony was awarded to either party.

On appeal, the plaintiff claims that the trial court abused its discretion in not awarding alimony or any part of the defendant’s assets to the plaintiff in light of the evidence adduced at trial concerning the plaintiff’s ill health and unemployability.

Pursuant to General Statutes § 46b-81, a trial court in a dissolution action has the discretion to assign to either spouse all or any part of the property owned by the other spouse. See Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982). Pursuant to General Statutes § 46b-82, a trial court has similar discretion to award alimony to either spouse. These statutory provisions for the award of alimony and assignment of property are permissive, not mandatory. Such awards rest in the sound discretion of the trial court and will not be interfered with unless it appears that such discretion has been abused. Thomas v. Thomas, 159 Conn. 477, 480, 271 A.2d 62 (1970); Bielan v. Bielan, 135 Conn. 163, 168, 62 A.2d 664 (1948).

A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982); see Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 979 (1986). It is evident from the record that the trial court properly considered the statutory criteria enumerated in General Statutes §§ 46b-81 and 46b-82. The trial court also specifically found that the plaintiff was the sole cause for the dissolution of the marriage and that the plaintiff had made no financial or moral contribution to the marriage. These findings have support from the evidence adduced at trial. Furthermore, the trial court concluded that the need to protect the assets of the defendant was a compelling one. This conclusion also finds its support in the evidence.

The trial court is not obligated to make express findings on each of the statutory criteria. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). Also, the trial court is not required to give equal weight to each of the specified criteria it considers in determining an award. While a trial court must consider all statutory criteria for property division and alimony, no single criterion is preferred over the others, and the court has wide latitude in varying the weight placed on each criterion under the circumstances of each case. Carpenter v. Carpenter, supra, 740-41. Where, as here, the trial court considered all mandatory factors in reaching its decision, this court on appeal may not vary the weight which the trial court placed upon the various factors in reaching its determination. Kinney v. Kinney, 5 Conn. App. 484, 487, 500 A.2d 569 (1985), cert. denied, 199 Conn. 804, 506 A.2d 146 (1986).

There is no error.


text:
    Frank E. LiVolsi, Jr., Executor (Estate of Isabel Rafferty Bruno), et al. v. Lorraine Pylypchuk
    (5278)
    Dupont, C. J., Spallone and Bieluch, Js.
    Submitted on briefs September 1
    decision released October 27, 1987

      Carolyn R. Linsey filed a brief for the appellant (defendant).

      Franklin Melzer filed a brief for the appellee (named plaintiff).

      David J. Ordway filed a brief for the appellees (plaintiff Elizabeth Bruno et al.).
   Per Curiam.

The plaintiffs brought this action to set aside the conveyance of real property by the decedent to the defendant. The case was referred to an attorney trial referee pursuant to General Statutes § 52-434 (a) (4). After trial, the attorney referee filed a report setting forth his findings and recommending that judgment should issue in favor of the plaintiffs. On appeal from the judgment rendered by the trial court accepting the report of the attorney trial referee, the defendant challenges two findings of the attorney trial referee.

Practice Book § 438 requires that a party challenging the factual findings of an attorney trial referee must file a motion to correct with the trial court within two weeks after the filing of the referee’s report. The defendant, however, failed to file such a motion in the present case. Having filed no motion to correct any of the facts found by the attorney trial referee, the defendant has waived any right to attack the subordinate factual findings contained in the report. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986); Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 140, 508 A.2d 43 (1986); Ruhl v. Fairfield, 5 Conn. App. 104, 106, 496 A.2d 994 (1985). Furthermore, the defendant failed to object to the trial court’s acceptance of the report pursuant to Practice Book § 440 and, therefore, the conclusions reached in the report must stand. Seal Audio, Inc. v. Bozak, Inc., supra. Accordingly, we decline to review the judgment of the trial court. Id.

There is no error.

       The plaintiffs are the executor of the estate of the decedent and the decedent’s three grandchildren.


author: Bieluch, J.

text:
    Balboa Insurance Company v. Joseph D. Zaleski et al.
    (5461)
    Dupont, C. J., Spallone and Bieluch, Js.
    Submitted on briefs September 1
    decision released November 3, 1987

      Mark S. Rosenblit filed a brief for the appellant (named defendant).

      Mark E. Blakeman filed a brief for the appellee (plaintiff).
   Bieluch, J.

The named defendant, Joseph D. Zaleski, appeals from the judgment rendered by the trial court in favor of the plaintiff for monetary damages in its suit on a general indemnity agreement executed by the defendants. The sole issue before this court is whether the plaintiffs action was barred by the six year statute of limitations on contract actions contained in General Statutes § 52-576. Determinative of this question is the date of accrual of the plaintiffs cause of action. The trial court held that the cause of action arose when the plaintiffs loss was determined by judgment against it on its performance bond and on its labor and material payment bond which were issued at the defendant’s request pursuant to the underlying general indemnity agreement. We find error.

The facts are undisputed. On April 5,1979, the town of Chester awarded a contract by low bid to the defendant for replacement of the roof on the Chester Elementary School. Among the required conditions was the submission of performance and labor and material payment bonds. To obtain these financial guarantees from the plaintiff, the defendant and Dorothy Zaleski, as individual indemnitors, executed a general indemnity agreement in favor of the plaintiff on May 31, 1979. Thereafter, on June 14, 1979, the defendant, as principal, and the plaintiff, as surety, executed a performance bond and a labor and material payment bond to the town of Chester, as obligee. Upon the furnishing of these two bonds, the contract for the school roof replacement was executed by the town and the defendant on July 2, 1979.

Daniel Moriarty & Associates, the town’s architects and supervising engineers on the roof project, on September 21, 1979, gave the defendant seven days written notice that the town was terminating the roof replacement contract, giving as its reason the defendant’s “wrongful abandonment of work and removal of materials and supplies.” A copy of this notification was sent to the plaintiff.

On February 25, 1980, Green Enterprises, Inc., a supplier of materials for the roof contract, brought suit in the Superior Court in the judicial district of New London against the defendant and the surety on their labor and material payment bond. Summary judgment was rendered in favor of Green Enterprises, Inc., in that action on October 27, 1981.

The defendant on March 25,1980, brought an action in the Superior Court in the judicial district of Hartford-New Britain at New Britain against the town of Chester for breach of contract. The town, on April 28, 1980, countered with a suit in the Superior Court in the judicial district of Middlesex against the surety for payment under its performance and labor and material payment bonds. On April 19,1983, the defendant’s case and the town’s case were consolidated for trial in the judicial district of Hartford-New Britain at New Britain. After trial of the consolidated cases, the court on July 22,1983, rendered judgment in A.W. Campbell Co. v. Chester, for the town. In Chester v. Balboa Ins. Co., damages of $5550, plus interest and taxable costs, were awarded to the town on the two surety bonds.

After these judgments were rendered, the plaintiff brought suit on its general indemnity agreement on January 23, 1985, within the period fixed by the statute of limitations. This action was returned to the Superior Court in the judicial district of Hartford-New Britain at Hartford. Although the defendants were Joseph D. Zaleski, doing business as A.W. Campbell Co., Joseph D. Zaleski, individually, and Dorothy Zaleski; see footnote 1, supra; mesne process had been served only upon Dorothy Zaleski. The plaintiff was unable to locate Joseph D. Zaleski for service upon him. Because of this failure of service, a second suit, the action before us, was commenced by service of the writ, summons and complaint upon each defendant on October 2,1985. Upon motion of the defendant, these two cases were consolidated for trial. Subsequently, the two actions were withdrawn as to the defendant Dorothy Zaleski. Later, the earlier case was withdrawn in its entirety, leaving only the second suit against the defendant for trial and judgment.

The defendant alleged by way of special defense that the cause of action did not accrue within six years before the commencement of suit, contrary to the statute of limitations, General Statutes § 52-576. By stipulation, the evidence at trial consisted of the exhibits introduced by the parties.

The plaintiff’s claim at trial was that the statute of limitations began to run on October 27, 1981, when judgment was rendered against it in the suit brought by Green Enterprises, Inc., on its labor and material payment bond. The defendant, on the other hand, alleged by special defense that the statute began to run on September 21, 1979, the date of the defendant’s breach of his contract with the town of Chester and his concomitant default thereby of the general indemnity agreement, which gave the plaintiff the immediate right to bring suit against the defendant.

The trial court rendered judgment for the plaintiff, finding that none of the plaintiff’s losses was barred by the statute of limitations before the commencement of this action on October 2, 1985. The holding of the court was narrow and succinct. Without reviewing the specific terms of the general indemnity agreement, the court’s complete legal reasoning was simply stated: (1) where an agreement indemnifies against liability, the cause of action arises as soon as liability is incurred; and (2) where it indemnifies against loss, the cause of action does not accrue until a loss has occurred. That court cited Fairfield v. D’Addario, 149 Conn. 358, 361, 179 A.2d 826 (1962), and Calamita v. DePonte, 122 Conn. 20, 23, 187 A. 129 (1936). On that basis, the court concluded: “Obviously, as to the plaintiff’s indemnity of the defendant’s performance with the town of Chester, liability was incurred as soon as the defendant defaulted;Fairfield v. D'Addario, supra, 361; but as to the defendant’s indemnity of the plaintiff’s loss, liability occurred only when the plaintiff had such a loss. Calamita v. DePonte, supra, 24-25.” In reaching that conclusion, the court erred by failing to consider the terms and provisions of the general indemnity agreement upon which suit had been brought.

The sole issue presented in this appeal is framed by General Statutes § 52-576 (a). As relevant here, the statute provides that “[n]o action ... on any contract in writing, shall be brought but within six years after the right of action accrues . ” (Emphasis added.) In our jurisdiction, an action is commenced on the date of service upon the defendant. Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 33, 392 A.2d 485 (1978); Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234 (1974). The plaintiff’s suit against the defendant, therefore, commenced on October 2,1985. The determinative question before us, consequently, is whether the plaintiff’s cause of action under the general indemnity agreement “accrued” before or after October 2, 1979. “ ‘Applied to a cause of action, the term to accrue means to arrive; to commence; to come into existence; to become a present enforceable demand.’ Eising v. Andrews, 66 Conn. 58, 64, 33 A. 585 (1895).” D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 182, 455 A.2d 833 (1983).

The trial court correctly found that “[ojbviously, as to the plaintiffs indemnity of the defendant’s performance with the town of Chester, liability was incurred as soon as the defendant defaulted.” It erred, however, when it concluded thereafter that “as to the defendant’s indemnity of the plaintiff’s loss, liability occurred only when the plaintiff had such a loss.” These contradictory holdings were predicated upon the same general indemnity agreement. In substance, the trial court found that the defendant’s agreement was an indemnification for both liability and loss, but since the plaintiff sought recovery for loss, and not for liability, the particular action accrued when the loss occurred. The trial court incorrectly subdivided the general indemnity agreement this way.

There could be but one statute of limitations applicable to any cause of action under the defendant’s indemnification agreement, and we find that the plaintiff’s right of action against the defendant thereunder accrued as soon as it incurred liability due to the defendant’s default on the roof replacement contract. This default occurred on September 21, 1979, giving the plaintiff an immediate right to bring suit against the defendant. Our conclusion is based upon our review of the law and examination of the general indemnity agreement before us.

Generally, indemnity agreements fall broadly into two classes, those where the contract is to indemnify against liability and those where it is to indemnify against loss. In the first, the cause of action arises as soon as liability is incurred, but in the second it does not arise until the indemnitee has actually incurred the loss. Fairfield v. D’Addario, supra, 361; Calamita v. DePonte, supra, 23. Where an indemnity agreement, however, indemnifies against liability as well as against loss, the case here, the indemnitee does not have to wait until the loss occurs, but may sue on the agreement as soon as liability is incurred. 41 Am. Jur. 2d, Indemnity § 29.

“The intention of the parties to a contract is to be determined by a fair and reasonable construction of the language used interpreted in light of the situation of the parties, the circumstances connected with the transaction, the motives of the parties and the purposes which they sought to accomplish. E & F Construction Co. v. Rissil Construction Associates, Inc., 181 Conn. 317, 320, 435 A.2d 343 (1980); Marcus v. Marcus, 175 Conn. 138, 141, 394 A.2d 727 (1978).” John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 77-78, 480 A.2d 499 (1984).

By the second paragraph of his indemnity agreement, the defendant undertook “to indemnify and save harmless the Surety from and against any and all demands, liabilities, loss, costs, damages or expenses . . . whether the Surety shall have paid out any such sums or any part thereof or not . . . .” (Emphasis added.) The fourth paragraph of the agreement provides that “[i]n the event of Default, as defined above, Surety may at its option and sole discretion: / . . E. File an immediate suit to enforce the provisions of this Agreement.” The third paragraph defines default as follows: “Principal shall be in Default with respect to a Contract, and hereunder if any of the following occur: A. Principal breaches, abandons or repudiates any Contract. B. Any Obligee declares Principal to be in Default. C. Principal fails to pay for any labor or materials when such payment is due. ...”

These clear and unambiguous terms of the defendant’s general indemnity agreement indicate that the parties themselves expressly agreed and intended that the plaintiff was to have an immediate right to commence suit on the agreement in the event (1) that the defendant breached or abandoned his contract with the town of Chester, (2) that the town declared the defendant to be in default, or (3) that the defendant failed to pay for any labor or materials when payment was due, notwithstanding that no loss had yet been determined, suffered or paid by the plaintiff on its performance or labor and material payment bonds. The plaintiffs cause of action accrued to it by having such a contractual right of immediate suit on the agreement upon default by the defendant. This occurred on September 21, 1979. The statute of limitations, therefore, commenced to run on that date.

In Dickson v. United States Fidelity & Guaranty Co., 150 Miss. 864, 876-77, 117 So. 245 (1928), the indemnitee sued the indemnitor on the latter’s bond in which he agreed and bound himself to “ ‘at all times save harmless and keep indemnified the United States Fidelity & Guaranty Company . . . against all suits, actions, debts, damages, costs, charges, and expenses, including court costs and counsel fees . . . by reason of the suretyship of the United States Fidelity and Guaranty Company.’ ” Unlike the indemnity agreement before us, the bond in Dickson did not by its terms expressly undertake to indemnify specifically for “liabilities.” Also, the bond before that court did not give the indemnitee the right of immediate suit in the event of default.

Notwithstanding that the bond in Dickson was not as clear and specific in setting forth the indemnitee’s rights on default as the agreement before us, the issue in that case was similar to that under consideration by us, and the decision of the Mississippi Supreme Court supports our conclusion on the stronger factual basis here. That court held as follows: “One question is whether the bond sued on indemnified appellee, the indemnitee therein, against loss alone, or both liability and loss, as surety on the contractor’s bond. We think it plain from the language of the bond, above quoted, that the bond was one indemnifying appellee against liability as well as loss, and therefore appellee did not have to wait until loss occurred before it had a right of action on the bond. Appellee’s right of action arose at once upon its becoming liable as surety on the contractor’s bond.” Id., 877. The agreement in the case before us not only expressly indemnified the plaintiff against liability and loss, but also provided for indemnification “whether the Surety shall have paid out any such sums or any part thereof.”

Our conclusion is also supported by the holding of our Supreme Court in Bridgeport v. Aetna Indemnity Co., 91 Conn. 197, 99 A. 566 (1916), that the liability of an indemnity company accrued at the time the principal breached its contract underlying the bond, and the obligee’s cause of action for recovery of damages arose upon such breach notwithstanding that the amount of damages had not yet been determined. Id., 204. The court’s specific holding, applicable to the case before us, was as follows: “A cause of action in favor of the city thereupon arose for the recovery of the damages consequent upon such breach. It might have brought suit immediately, or waited such length of time as the statute of limitations permitted, but only one action could be brought, and in that action, whenever brought, full recovery, covering the future as well as the past, could be had.” Id.

The immediate right to bring suit against the defendant accrued to the plaintiff upon the defendant’s default of its roof replacement contract with the town of Chester. Under the provisions of paragraph 4E of the general indemnity agreement, and under the rule of law concerning a contract which indemnifies against liability as well as loss, the plaintiffs cause of action accrued upon the defendant’s default in the underlying performance and labor and material payment bonds. This is so notwithstanding the fact that the plaintiff had not yet suffered a determined or fixed loss.

We hold that the plaintiff’s cause of action accrued on September 21, 1979, when the defendant first defaulted on the underlying bonds covered by his general indemnity agreement. Since the plaintiffs suit did not commence until the defendant was served by mesne process on October 2,1985, this action is barred by the six year statute of limitations provided in General Statutes § 52-576.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       The complaint named as defendants Joseph D. Zaleski doing business as A.W. Campbell Company and Joseph D. Zaleski as an individual. The complaint also named Dorothy Zaleski as a defendant, but the action against her was withdrawn by the plaintiff on March 24, 1986. Inasmuch as the defendant Joseph D. Zaleski doing business as A.W. Campbell Company and individually is legally one and the same individual, we shall refer to him as the defendant.

       As relevant here, General Statutes § 52-576 provides: “(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right'of action accrues . . . .”