text:
    Laura Benavides v. Alvaro Benavides
    (4933)
    Hull, Spallone and Bieluch, Js.
    Argued March 11
    decision released June 2, 1987

      Claudine Siegel, with whom, on the brief, was Julia Bradley, for the appellant (plaintiff).

      Alvaro Benavides, pro se, the appellee (defendant.)

      Shelley Geballe, Martha Stone, Susan Weisselberg, Jon Alander, Katharine H. Robinson, Stephen F. Frazzini and Ira Horowitz filed a brief for the Connecticut Civil Liberties Union Foundation et al. as amici curiae.
   Spallone, J.

The plaintiff is appealing from the decision of the trial court awarding counsel fees.

The plaintiff, in a postjudgment action, successfully pursued her claim for custody of the parties’ minor children and for back child support under General Statutes § 46b-61 and under the Uniform Child Custody Jurisdiction Act, General Statutes §§ 46b-90 et seq. The plaintiff was represented by Connecticut Legal Services, Inc., a federally funded nonprofit organization which provides legal representation without cost to persons unable to afford private counsel. The plaintiff claimed attorney’s fees pursuant to General Statutes § 46b-62 and filed an affidavit of legal services rendered, including time sheets listing such services. The plaintiff claimed attorney’s fees in the amount of $2100 which the trial court found to be justified and to be a “modest sum compared with what some of the divorce lawyers of [counsel’s] experience would have charged.”

Nonetheless, the court reduced the amount awarded because her counsel was employed by a federally funded nonprofit organization. The court stated: “I think I’ll cut the fees down because of its nonprofit status. If Mrs. Siegel was a private attorney then I would certainly have no hesitation [in] awarding twenty-one hundred dollars. But what I think I’m going to do is simply cut in half, again without depreciating in any way her services because she’s not getting the money anyway, and make it for an order of one thousand fifty. The fifty percent credit representing in some off-hand way in my own mind that since it is a federally funded organization that probably under all the circumstances a thousand fifty is fair.”

The plaintiff appeals from the 50 percent reduction in the amount of counsel fees claiming the trial court erred in arbitrarily reducing by half what it found to be justifiable and reasonable counsel fees under the circumstances in this case. We agree with the plaintiff and find error.

Although Connecticut courts have not addressed this issue, we may look to other jurisdictions for guidance. In family matters, the majority of courts have held that the award of counsel fees to the prevailing party is proper even when that party is represented without fee by a nonprofit legal services organization. Martin v. Tate, 492 A.2d 270, 274 (D.C. App. 1985); Butler v. Butler, 376 So. 2d 287 (Fla. App. 1979); Love v. Love, 370 So. 2d 1231 (Fla. App. 1979); In re Marriage of Brockett, 130 Ill. App. 3d 499, 501, 474 N.E.2d 754 (1984); In re Marriage of Gaddis, 632 S.W.2d 326, 328-29 (Mo. App. 1982); Ferrigno v. Ferrigno, 115 N. J. Super. 283, 284-85, 279 A.2d 141 (1971); cf. Thompson v. Thompson, 630 P.2d 243, 244 (Mont. 1981) (no award of attorney’s fees to legal services organization under Uniform Marriage and Divorce Act because party receiving legal aid cannot meet required showing of necessity under statute).

Courts have ruled similarly in nonfamily contexts. Sellers v. Wollman, 510 F.2d 119, 123 (5th Cir. 1975) (proper to award attorney’s fees to legal aid society in action under Truth in Lending Act, 15 U.S.C. § 1640 [a] [2]); accord Manning v. Princeton Consumer Discount Co., 533 F.2d 102, 106 (3rd Cir. 1976), cert. denied, 429 U.S. 865, 97 S. Ct. 173, 50 L. Ed. 2d 144 (1976); Folsom v. Butte County Assn. of Governments, 32 Cal. 3d 668, 681-84, 186 Cal. Rptr. 589, 652 P.2d 437 (1982) (suit to enforce public transportation law); Wiginiton v. Pacific Credit Corporation, 2 Hawaii App. 435, 446-47, 634 P.2d 111 (1981) (unfair and deceptive collection practices action); Linthicum v. Archambault, 379 Mass. 381, 388, 398 N.E.2d 482 (1979) (consumer protection action); Shands v. Castrovinci, 115 Wis. 2d 352, 359-61, 340 N.W.2d 506 (1983); (landlord-tenant action).

In Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984), the United States Supreme Court held that an award of attorney’s fees to a nonprofit legal service organization in a civil rights action was to be calculated according to the prevailing market rate. The court concluded from the legislative history of 42 U.S.C. § 1988 that “Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization.” Id., 894. Before the Supreme Court decided Blum, various circuit courts of appeal had also concluded that nonprofit legal service organizations are eligible for attorney’s fees under federal civil rights laws. Ramos v. Lamm, 713 F.2d 546, 551-52 (10th Cir. 1983); Gautreaux v. Chicago Housing Authority, 690 F.2d 601, 613 (7th Cir. 1982), cert. denied, 461 U.S. 961, 103 S. Ct. 2438, 77 L. Ed. 2d 1322 (1983); Copeland v. Marshall, 641 F.2d 880, 898-900 (D.C. Cir. 1980) (en banc); Perez v. Rodriguez Bou, 575 F.2d 21, 24 (1st Cir. 1978); Torres v. Sachs, 538 F.2d 10, 12 (2d Cir. 1976) (attorney’s fees under Voting Rights Act of 1965, 42 U.S.C. § 19731 [e]); Tillman v. Wheaton-Haven Recreation Assn., Inc., 517 F.2d 1141, 1147-48 (4th Cir. 1975). These courts relied on both the legislative history of the civil rights acts and independent policy grounds in reaching this conclusion.

We are aware that indigents are represented by legal services attorneys in a large number of family relations matters. It would be unreasonable to allow a losing party in a family relations matter to reap the benefits of free representation to the other party. A party should not be encouraged to litigate under the assumption that no counsel fee will be awarded in favor of the indigent party represented by public legal services; see Ferrigno v. Ferrigno, supra; or as in this case, that a reasonable fee will be discounted for the same reason. “Put in another way, the public should be relieved from the financial burden of obtaining an indigent plaintiff’s divorce or successfully defending against a husband’s complaint, to the extent that the husband is able to pay all or part of her attorney’s fees. The taxpayer has an interest in recovering where possible a portion of the costs in these situations.” Id.

An award of counsel fees that does not discriminate against nonprofit legal service entities will encourage nonprofit counsel to expend its resources in the representation of those clients who are unable to afford private counsel in disputed child custody and child support enforcement litigation. The purposes of such acts as the Uniform Child Custody Jurisdiction Act in Connecticut, General Statutes § 46b-91, are advanced and are made more available to the poor where there is an expectancy that the nonprofit legal sendees will recoup at least part of its resources through an award of counsel fees to its client. Furthermore, a realization that the opposing party, although poor, has access to an attorney and that an attorney’s fee may be awarded deters noncompliance with the law and encourages settlements.

We note that the criteria set forth in General Statutes § 46b-82 do not include the court’s consideration of counsel’s status as a nonprofit or publicly funded organization when making an award of counsel’s fees. The court in making its determination “may order either spouse to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in Sec. 46b-82.” General Statutes § 46b-62. Section 46b-82 sets forth the criteria for awarding alimony. Therefore, in addition to the financial ability of the parties, the court must also consider the length of the marriage, causes for the dissolution, age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and, in the case of a parent to whom custody of minor children has been awarded, the desirability of such parents securing employment. General Statutes § 46b-82.

The trial court, in expressly stating that it was halving the award because of “its nonprofit status” and “since it is a federally funded organization,” introduced a factor not contained in General Statutes §§ 46b-62 and 46b-82. The language of §§ 46b-62 and 46b-82 makes no provision for any consideration of the status of the legal services rendered, be it private counsel or nonprofit counsel. While the court in the exercise of its inherent equitable powers may consider factors other than those enumerated in the statutes if such factors are appropriate for a just and equitable resolution of the marital dispute; Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982); Osborne v. Osborne, 2 Conn. App. 635, 642, 482 A.2d 77 (1984); the court here made no effort to establish how a reduction in half of attorney’s fees solely because of the nonprofit status of the plaintiff’s counsel was appropriate for a just and equitable resolution of the dispute. We therefore cannot consider such a reduction to be anything other than arbitrary and erroneous. See In re Marriage of Brockett, supra, (error for trial court to refuse attorney’s fee to nonprofit organization where statute does not expressly limit a fee awarded to a legal services office).

There is error, the order for counsel fees is set aside and the case is remanded with instructions to award counsel fees in the amount of $2100.

In this opinion the other judges concurred.

       As one commentator has stated: “Legal services for the poor is free only to the indigent person. Someone has to pay for it and that someone— the taxpayer—should be compensated, the compensation being the increased effectiveness of the legal services program.” G. McLaughlin, “The Recovery of Attorney’s Fees: A New Method of Financing Legal Services,” 40 Fordham L. Rev. 761, 784 (1972).

       To avoid a windfall to the plaintiff, the award of attorney’s fees should be made directly to the organization providing the legal services. See Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir. 1980); Hairston v. R & R Apartments, 510 F.2d 1090, 1093 (7th Cir. 1975).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Judy Marangio v. Shop Rite Supermarkets, Inc.
    (5276)
    Dupont, C. J., Hull and Spallone, Js.

      Submitted on the briefs April 27
    decision released June 2, 1987

      Richard F. Connors filed a brief for the appellant (plaintiff).

      Ralph G. Eddy filed a brief for the appellee (defendant).
   Spallone, J.

The plaintiff appeals following the trial court’s granting of the defendant’s motion for summary judgment.

This is an action for personal injuries which the plaintiff claims to have sustained as a result of her falling to the floor in the defendant’s supermarket. The accident is alleged to have occurred on August 28, 1980. The suit was instituted on August 20, 1985. The complaint ruled on by the trial court is the third complaint filed on behalf of the plaintiff for the same cause of action.

The history of the pleadings filed in connection with the plaintiff’s claim and the actions taken on the pleadings is as follows. (1) August 12,1982: the plaintiff commenced her first lawsuit by causing service of process to be made upon the defendant, Shop Rite Supermarkets, Inc.; (2) December 6, 1982: a judgment of non-suit is entered in this first lawsuit for the plaintiffs failure to comply with the defendant’s request for disclosure; (3) November 28,1983: the plaintiff instituted her second lawsuit regarding this matter by service of process on the defendant, Shop Rite Supermarkets, Inc. The complaint in this case specifically alleged that it had been instituted under General Statutes § 52-592; (4) August 27,1984: a judgment of nonsuit was entered in the second lawsuit because of the plaintiff’s failure to comply with the defendant’s request for supplemental disclosure; (5) August 20, 1985: the plaintiff instituted her third lawsuit for the same cause of action. Paragraph 9 of her complaint alleged that the third lawsuit was commenced pursuant to General Statutes § 52-592; (6) October 22, 1985: the defendant filed an answer and special defenses to the third complaint. By way of a second special defense, the defendant pleaded that the plaintiff’s claim is barred by the applicable statute of limitations, General Statutes § 52-584.

The defendant’s motion for summary judgment was granted on the ground that the plaintiff’s action, since it was commenced more than three years after the date of the alleged act or omission complained of, was barred by the statute of limitations and not saved by the application of General Statutes § 52-592, the accidental failure of suit statute.

General Statutes § 52-592 (a) provides in pertinent part: “If any action, commenced within the time limited by law ... if, in any such action ... a judgment of nonsuit has been rendered . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action. ...”

The plaintiffs third action obviously would be outside the statute of limitations because it was brought nearly five years after the negligent “act or omission complained of”; General Statutes § 52-584; unless it is saved by the operation of § 52-592 (a).

Whether the present action is barred by the statute of limitations depends upon the construction of the words “determination of the original action” in § 52-592 (a). The plaintiff argues that the “original action” refers to the next preceding action, and that, therefore, her final lawsuit was brought within one year of this prior action. The defendant contends that the “original action” refers to the first action brought within the applicable statute of limitations period. The trial court agreed with the defendant and we agree with the trial court.

Our analysis requires a review of General Statutes § 52-584 and § 52-592 (a), and how they impact on one another. Section 52-584 places a limit upon the time parties are subject to litigation, while § 52-592 (a) serves to save suits that would otherwise be barred by the statute of limitations. In essence, § 52-592 (a) gives the plaintiff a year from the date of the nonsuit to bring a new action.

The phrase “original action” is not defined in § 52-592 (a). Consequently, we must resort to the rules of statutory construction to determine its meaning. It is a cardinal rule that, where the language of a statute is clear and unambiguous, the intent of the legislature is to be ascertained from the words used. State v. Pellegrino, 194 Conn. 279, 284, 480 A.2d 537 (1984); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn 327, 334, 471 A.2d 646 (1984). Words and phrases of a statute are to be construed “according to the commonly approved usage of the language.” Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 174, 479 A.2d 1191 (1984); Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981). Every sentence, clause and phrase in the statute has a purpose and no part of a statute is superfluous. Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984); State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978). A statute must be read as a whole and “ ‘ “construed to give effect and to harmonize all of its parts.” ’ ” Hayes v. Smith, supra.

Applying these principles to the language used in § 52-592 (a), we note that the plaintiff is authorized by the statute to “commence a new action . . . within one year after the determination of the original action . . . .” (Emphasis added.) The statute does not say “may continue the action by bringing suit within one year,” or use any words other than those which contemplate an end to the original action and the commencement of a new action within one year of the end of the original action. The interplay of the words “new action” and “original action” can lead to no other conclusion than that the plaintiff is limited in time to bringing a new action within one year from the end of the original action, not the last action. Nowhere in the statute is there language that contemplates a continuing action so that a new action may commence within one year from the last nonsuit. Such construction would be contrary to the public policy inherent in statute of limitations. The applicable statute of limitations would be extended indefinitely and would be of no effect. There would be no finality in the litigation process.

We hold that “original action” refers to the first action brought by the plaintiff and that the granting of summary judgment for the defendant by the trial court manifests a clear understanding of the meaning of § 52-592 (a) and gives efficacy to the public policy considerations inherent in the interplay between statutes of limitations and those statutes authorizing suits, under limited circumstances, where the suit would be otherwise barred by the statute of limitations.

There is no error.

In this opinion the other judges concurred.


author: Borden, J.

text:
    Lillian Lauder v. Michael Peck
    (4704)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 4
    decision released June 2, 1987

      Alan M. Kosloff, for the appellant (defendant).

      David L. Schulman, with whom was Cheryl Diane Feuerman, for the appellee (plaintiff).
   Borden, J.

This case involves a suit by the plaintiff against the defendant, her former attorney. In a lengthy and detailed memorandum of decision, the trial court found, inter alia, that the defendant falsely made and forged a release of lis pendens which the plaintiff had filed pro se against real estate of her former husband located in Massachusetts. The plaintiff had an equitable interest in the real estate by virtue of a Connecticut marital dissolution judgment. The court found that the defendant’s conduct constituted a forgery in violation of General Statutes § 53&-137. The trial court further found that the defendant committed two larcenies of the plaintiffs money in violation of General Statutes § 53a-119, and that the defendant was therefore liable to the plaintiff for treble damages pursuant to General Statutes § 52-564. The forgery and larcenies were intimately connected, because the defendant, by signing the release of lis pendens, obtained money of the plaintiff from the proceeds of the sale of the Massachusetts real estate. The defendant appeals. We find no error.

The defendant’s first three claims of error attack certain critical factual findings of the trial court, namely, that the defendant committed the forgery and the larcenies. The defendant claims that these findings are clearly erroneous. We note “that clear and convincing proof of the actions alleged is required in order to assess treble damages pursuant to [General Statutes] § 52-564.” Schaffer v. Lindy, 8 Conn. App. 96, 105, 511 A.2d 1022 (1986). The trial court’s memorandum of decision makes clear that it applied the proper burden of proof. We have fully examined the entire record of this case. Suffice it to say that we are satisfied that the court’s findings are supported by sufficient evidence in the record, and that our review of the entire record does not leave us with a firm conviction that a mistake has been committed. Buddenhagen v. Luque, 10 Conn. App. 41, 45, 521 A.2d 221 (1987). We therefore cannot disturb these findings as clearly erroneous. Id.

In connection with these factual claims, the defendant points out that between the end of the trial and the filing of the trial court’s memorandum of decision, the trial judge called both counsel to a chambers conference. Thereafter, on the morning when the judge filed his memorandum of decision, he called counsel into open court and placed on the record his recollection of that conference. The transcript of these in-court proceedings discloses that, while writing the memorandum of decision, the judge called counsel to his chambers for two purposes: to inquire as to what action, if any, the grievance committee had taken against the defendant; and to disclose to them that he had written his memorandum of decision “up to the point of damages.” In that chambers conference, the judge then disclosed a tentative damages figure at which he had arrived. After counsel left his chambers, the judge had second thoughts about that figure, and immediately telephoned counsel and informed them that he had not arrived at the damages figure which he had mentioned in chambers.

Four days later, after those telephone calls, trial counsel for the defendant hand-delivered a letter to the judge recounting his recollection of the chambers conference, and requesting an additional evidentiary hearing on damages. It was this letter which prompted the in-court proceedings which took place two days later. At these proceedings, the judge stated his recollection of the purposes and content of the chambers conference, as described above. The defendant’s counsel did not dispute the judge’s recollection. The judge at that point also denied the defendant’s request, initially raised in his letter and repeated in court, for an additional hearing.

Although we do not condone the actions of the trial court regarding these proceedings in chambers, they are not sufficient grounds to disturb the court’s judgment. The defendant did not object to them in any way or request the judge to disqualify himself. Thus, the defendant must be held to have waived any claim of error arising from the proceedings. Postemski v. Landon, 9 Conn. App. 320, 323, 518 A.2d 674 (1986). Nor were the proceedings so egregious as to amount to plain error requiring reversal. Cf. Trapp v. Trapp, 6 Conn. App. 143, 145, 503 A.2d 1187 (1986).

The defendant next claims that the court erred in finding that the defendant violated General Statutes § 52-564; see footnote 2, supra; because the defendant did not steal the defendant’s property or knowingly receive and conceal stolen property. We disagree.

The defendant claims that the finding by the court that he committed a “larceny,” in violation of General Statutes § 53a-119, of the plaintiff’s property does not support a conclusion that the defendant “stole” the plaintiff’s property, within the meaning of General Statutes § 52-564. See footnote 2, supra. This claim is without merit.

The word “steals” as used in General Statutes § 52-564 is synonymous with the definition of larceny under General Statutes § 53a-119. Indeed, larceny is broadly defined in General Statutes § 53a-319. See footnote 3, supra. It “includes, but is not limited to: . . . (8) Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen . . . . ” (Emphasis added.) General Statutes § 53a-119 (8); see also Ballentine’s Law Dictionary (3d Ed. 1969) p. 1215 (defines steal as “[t]o commit larceny”).

The defendant next claims that the trial court’s finding that the defendant committed a forgery in violation of General Statutes § 53a-137, and two larcenies in violation of General Statutes § 53a-119, were beyond the scope of the complaint. This claim is also without merit.

The first count of the complaint alleged that: “the Defendant falsely made and forged a release of said Notice of Lis Pendens, acknowledging therein that he was the issuing authority of said Notice of Lis Pen-dens,” that “[s]aid release of Lis Pendens was made falsely and forged by the Defendant in that he knew he was not the issuing authority of said Notice of Lis Pendens [and] that he was not authorized to release the same,” and that “[a]s a result of the Defendant’s falsely making and forging said release of Notice of Lis Pendens” the plaintiff was damaged. (Emphasis added.) The plaintiff’s prayer for relief requested: “[i]n regards to the First Count, double damages pursuant to Connecticut General Statutes Section 52-565. ” (Emphasis added.) The term “falsely makes” is defined in General Statutes § 53a-137 (4); see footnote 1, supra; for purposes of General Statutes §§ 53a-138 through 53a-145, entitled “Forgery And Related Offenses.” The court, therefore, borrowed the criminal offense definition of “falsely makes” and used it in the civil context of General Statutes § 52-565.

The second count of the complaint repeated the essential allegations of the first count, and added the allegation that “[t]he making and forging of said Release of Notice of Lis Pendens was a false token, pretense or device, by the Defendant to obtain the property of the Plaintiff and was so falsely made and sworn with the intent to defraud the Plaintiff of the property to which she was entitled, all to her loss and damage.” (Emphasis added.) The plaintiffs prayer for relief requested “[i]n regards to the Second Count, treble damages pursuant to Connecticut General Statutes Section 52-564.” General Statutes § 52-564 authorizes treble damages for stealing property of another. See footnote 2, supra. Stealing is synonymous with larceny. General Statutes § 53a-119 (2) defines larceny to include “[ojbtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person.” It is clear that the plaintiff’s complaint referred to and invoked General Statutes § 53a-119 (2).

Significantly, the defendant does not suggest that the definition provided in General Statutes § 53a-137 (4) which the trial court used in making its factual determinations, differs in any way from the meaning of “falsely makes” under General Statutes § 52-565. Indeed, in his post-trial brief in the trial court the defendant specifically acknowledged that General Statutes §§ 52-564 and 52-565 refer to the crimes of theft and forgery. Furthermore, we have already decided that the meaning of “larceny” under General Statutes § 53a-119 is synonymous with “steals” under General Statutes § 52-564. It is also synonymous with “theft.” See, e.g., General Statutes § 53a-119 (7) (theft of services).

The defendant’s argument is that, even if the trial court was correct in using the Penal Code definitions as guidance in construing General Statutes §§ 52-564 and 52-565, it should not have declared the defendant’s conduct to be forgery and larceny in violation of the criminal statutes. The flaw in this argument is that both General Statutes § 52-564 and 52-565 clearly invoke by their terms the criminal statutes involved. We cannot reasonably read them otherwise. We have referred to General Statutes § 52-564 as a statute pursuant to which “facts which constitute a crime would need not be proven beyond a reasonable doubt if they are at issue in a civil action.” Schaffer v. Lindy, supra, 104. Indeed, we note that early in this century actions for treble damages under General Statutes § 52-564 were “not ordinarily brought until the defendant Piad] been tried, convicted and sentenced in the criminal court for the stealing.” Plumb v. Griffin, 74 Conn. 132, 135, 50 A. 1 (1901).

The defendant’s final claim is that the court erred in trebling the prejudgment interest which it awarded to the plaintiff. We disagree. Prejudgment interest on money wrongfully withheld from the owner is a proper, albeit discretionary, element of a plaintiffs damages. Perl v. Case, 3 Conn. App. 111, 116, 485 A.2d 1331 (1985). General Statutes § 52-564 provides that if the defendant stole the plaintiffs property, he “shall pay the owner treble his damages.” We see no reason to carve out of those damages, as a matter of law, the prejudgment interest element for the benefit of a defendant who has been found liable pursuant to General Statutes § 52-564.

There is no error.

In this opinion the other judges concurred.

       The court found that the defendant “committed a forgery in violation of § 53a-137.” We read this as a reference to General Statutes § 53a-137 (4), which is part of the definitional section of the statutes regarding forgery and related offenses, General Statutes §§ 53a-137 through 53a-145. The actual forgery offenses are defined in General Statutes §§ 53a-138 through 53a-140, and 53a-142. The defendant makes no claim of error regarding this definitional nuance.

       General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to: . . . (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device he obtains from another any property, with intent to defraud him or any other person.”

       General Statutes § 52-565 provides: “Any person who falsely makes, alters, forges or counterfeits any document, or knowingly utters, as true, any document falsely made, forged or counterfeited, shall pay double damages to the party injured thereby.” Although the trial court found that the defendant had committed a forgery by falsely making the release of lis pen-dens, it did not use General Statutes § 52-565 as a basis for doubling damages. Its multiple damages award flowed from General Statutes § 52-564. See footnote 2, supra. Of course, its finding of larcenies under General Statutes § 52-564 were closely connected with its finding that the defendant falsely made the document.


author: Berdon, J.

text:
    Lewis Truck and Trailer, Inc. v. Antoine Jandreau
    (4899)
    Spallone, Bieluch and Berdon, Js.
    Argued March 10
    decision released June 2, 1987

      Barry T. Pontolillo, with whom, on the brief, was Vincent T. McManus, Jr., for the appellant (defendant).

      Alan J. Barth, for the appellee (plaintiff).
   Berdon, J.

The defendant appeals from the judgment of the trial court on the counterclaim denying him damages for abuse of process. We find no error.

The plaintiff brought this action to recover damages for work done and parts supplied on or about January 5, 1981, for the repair of the defendant’s truck. At the commencement of the action, the plaintiff obtained an ex parte prejudgment remedy for the attachment of the truck. Upon the defendant’s motion, the court, Fracasse, J., dissolved the attachment for lack of probable cause because the plaintiff did not obtain written authorization for the work pursuant to General Statutes § 14-65f (a), which became effective on October 1, 1980. Section 14-65f (a) provides in part: “A repair shop shall not charge for work done or parts supplied without a written authorization or in excess of the estimate unless the customer gives consent orally or in writing.”

The defendant filed an answer with several special defenses and a counterclaim. In his counterclaim, the defendant sought damages from the plaintiff, alleging that the attachment of the truck “constituted an abuse of process, in that the process was used [in] a malicious and improper manner with the unlawful intent and purpose of compelling the Defendant by duress to pay monies to the Plaintiff, which it was not due.” It was conceded by the defendant that he relies solely upon the doctrine of abuse of process. That being so, he may not recover upon any other ground. Smith v. Furness, 117 Conn. 97, 101, 166 A. 759 (1933).

In Connecticut “we have long recognized abuse of process as a cause of action in tort whose gravamen is the misuse or misapplication of process, its use ‘in an improper manner or to accomplish a purpose for which it was not designed.’ ” Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980) quoting Varga v. Pareles, 137 Conn. 663, 667, 81 A.2d 112 (1951); 3 Restatement (Second), Torts § 682. It is now clear that an ulterior motive, although usually present, is not an essential element of this cause of action. Varga v. Pareles, supra.

The purpose of the prejudgment remedy of attachment is “security for the satisfaction of the plaintiff’s judgment, should he obtain one.” Coit v. Sistare, 85 Conn. 573, 578, 84 A. 119 (1912); Meyers v. C. I. T. Corporation, 132 Conn. 284, 287, 43 A.2d 742 (1945). The trial court found that the plaintiff used the attachment for the sole purpose of securing payment of the indebtedness it claimed. There was no evidence or finding by the court that the attachment was misused or misapplied. The defendant does not challenge the trial court’s findings. Since the prejudgment remedy was used for its proper purpose, the plaintiff did not abuse the use of this process.

Nevertheless, the defendant argues that, as a matter of law, the obtaining of a prejudgment remedy when it was probable that the debt could not be enforced as a result of General Statutes § 14-65f (a) constituted an abuse of a process. The defendant, however, confuses vexatious litigation or malicious prosecution with the cause of action for abuse of process. “Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently, in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause.” (Footnotes omitted.) W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 121, p. 897.

There is no error.

In this opinion the other judges concurred.

       “A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff’s favor.” Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).


text:
    Shirley B. Everett v. James L. Pabilonia et al.
    (3623)
    Spallone, Bieluch and Berdon, Js.
    Argued March 10
    decision released June 2, 1987

      Mary E. Holzworth, with whom, on the brief, was Allyn L. Brown, Jr., for the appellant (plaintiff).

      James J. Murphy, Jr., with whom, on the brief, was Dawn E. Currier, for the appellees (defendants).
   Spallone, J.

The plaintiff is appealing from the judgment of the trial court denying her a right-of-way by deed and granting her a more limited right-of-way by prescription.

The following facts are not in dispute. In 1948, Francis and Josephine Czainski, the plaintiffs predecessors in title, purchased property in the town of Windham at a foreclosure sale. At the time of purchase, the lot contained a house and a garage that were three-quarters finished. The Czainskis completed work on those structures and added a second garage in 1962. On November 25, 1968, the Czainskis conveyed the property to the plaintiff by deed, which deed, in addition to a metes and bounds description, described the property as “[b]eing Lot #101 as shown on a plan entitled ‘Modern Life Homes Corporation, Hitchcock Park, Willimantic, Conn., Partial Layout of Plots, drawn by F.H. Hamilton August 1946 Scale 1" = 3',’ which plan is on file in the office of the Town Clerk of the Town of Windham.” A road depicted as Cod Colony Road is clearly shown on the aforementioned plan as abutting the plaintiffs property. Neither Cod Colony Road nor any of the other residences shown on the aforementioned map, however, was ever completed. Both the plaintiff and the Czainskis, however, had used a dirt path to reach the two garages on the plaintiffs property, and this path was located in the general area where Cod Colony Road was to have been located. The defendants are the present owners of the land adjoining the plaintiff’s property, including the dirt path by which the plaintiffs reached their garages.

In 1981, the defendants began to interfere with the plaintiff’s use of the dirt path. Thereafter, the plaintiff brought the present action in two counts, the first count claiming a right-of-way by deed and the second count claiming an easement by prescription. After a trial, the court found that the plaintiff had failed to offer evidence to establish a right-of-way by deed, but that the plaintiff had established a prescriptive easement. The court also found that the plaintiff had not established that she was entitled to exemplary damages. The court therefore rendered judgment granting the plaintiff a right-of-way “extending from the southerly boundary of the plaintiff’s property to the southerly tire path of the dirt road as it presently exists.” The plaintiff appealed from this judgment on October 12, 1984.

On October 29, 1984, the plaintiff filed a motion to open and modify the judgment and a motion seeking further articulation of the court’s judgment. These motions were argued on November 11, 1985. On December 24, 1985, the court rendered its decision articulating its decision and denying the motion to open and modify. The plaintiff thereafter amended her appeal to include the denial of her motion to open and modify the judgment.

The plaintiff claims the trial court erred (1) in denying the plaintiff’s motion to open and modify the judgment, when, as a matter of law, she had a right-of-way by deed because the deed made reference to a recorded plan depicting Cod Colony Road, (2) in limiting the plaintiff’s right-of-way acquired by prescription, (3) in refusing to award exemplary damages, and (4) in refusing to grant injunctive relief restraining the defendants from interfering with her right-of-way. We find no error.

In her first claim of error, the plaintiff asserts that the court erred in denying her motion to open and modify because, as a matter of law, her deed established that she had a right-of-way over Cod Colony Road. The plaintiff relies on Whitton v. Clark, 112 Conn. 28, 151 A. 305 (1930), and later related cases. See Lake Garda Co. v. D'Arche, 135 Conn. 449, 66 A.2d 120 (1949) (right-of-way can be created even where roadways are not developed); Merino v. Fish, Inc., 112 Conn. 557, 153 A. 301 (1931); Tuccio v. Lincoln Development Corporation, 27 Conn. Sup. 373, 239 A.2d 69 (1967); Hackert v. Edwards, 22 Conn. Sup 499, 175 A.2d 381 (1961). In Whitton v. Clark, supra, 32, our Supreme Court stated: “[T]he law is well settled that where an owner of land causes a map to be made of it upon which are delineated separate lots and streets and highways by which access may be had to them, and then sells the lots, referring in his conveyances to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands.” (Citations omitted.) The plaintiff claims that because her deed clearly makes reference to a recorded map that shows Cod Colony Road as abutting her property, and because she would benefit from the use of at least part of Cod Colony Road, the court erred by failing to hold that she had established a right-of-way over the proposed Cod Colony Road.

Initially, we note that the plaintiff raised this argument for the first time in a memorandum of law submitted on November 5, 1985, in connection with her motion to open and modify and her motion for articulation. This claim was never made at trial; nor was it made in either the motion to open and modify or the motion for further articulation, both of which were filed on October 29,1984, over a year before the issue was raised in the memorandum. If it is assumed arguendo that the court had jurisdiction to consider this claim, our review of the trial court’s decision is limited to determining whether the trial court abused its discretion. Acheson v. White, 195 Conn. 211, 215, 487 A.2d 197 (1985). In making this determination, we must make every reasonable presumption in favor of its action. Id.

We find that the trial court did not abuse its discretion in refusing to open the judgment in order to hold that the plaintiff had established an easement over the proposed Cod Colony Road. The authority relied on by the plaintiff, Whitton v. Clark, supra, and its progeny, were recently clarified by our Supreme Court in Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 464 A.2d 26 (1983). In Stankiewicz, the court held that while a grantor may convey an implied easement for the use of streets by making reference in a deed to a map that delineates such streets, an easement over these streets will be created only if the conveyor in fact owns the streets. Id., 170. The court reasoned that since a grantor cannot convey a greater title than he possesses, a grantor cannot create an easement, express or implied, over land in which he has no interest. If this reasoning is applied to the present case, the plaintiff would be able to establish an implied easement over Cod Colony Road only if she demonstrated that at the time the deed in her chain of title first referred to the map delineating Cod Colony Road, the grantor conveying this deed in fact owned the street. The plaintiff, however, has failed to demonstrate that she established, or even raised, this point at trial. Thus, even if we assume that the trial court had jurisdiction to consider this claim, we would be unable to find that the court abused its discretion in failing to open the judgment in order to hold that the plaintiff had established an implied easement over Cod Colony Road.

In her second claim of error, the plaintiff claims that the trial court erred by defining too narrowly the scope of her prescriptive easement. The trial court found that the plaintiff had established a prescriptive easement over the dirt path located adjacent to the southern border of her property. The plaintiff claims that, in addition to an easement over the dirt path, the court should have found that she had established an easement over a grass portion along the path because this portion was necessary for her to be able to back her vehicles out of her driveway.

The determination of the scope of a prescriptive easement is a question of fact. See Reynolds v. Soffer, 190 Conn. 184, 190, 459 A.2d 1027 (1980). Our review of the factual findings of the trial court is limited to the determination of whether, in view of the evidence and pleadings in the whole record, these findings are clearly erroneous. Practice Book § 4061. A factual finding of the trial court is clearly erroneous if it is unsupported by the evidence or 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); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987). In the present case, while the testimony was uncontradicted that the plaintiff and her predecessor had customarily backed out of the driveway and traveled over the dirt path to reach the main street, the testimony was unclear as to whether the plaintiff and her predecessor used the grassy area next to the path when backing her vehicle from her driveway. While there was testimony that the grassy area was used for other purposes, the testimony did not clearly establish that it was used as part of the right-of-way. Without such evidence, we cannot find that the trial court’s findings as to the scope of the easement were clearly erroneous.

In her third claim of error, the plaintiff contends that the trial court erred in refusing to award her exemplary damages. The court concluded that although the defendants had inconvenienced the plaintiff by blocking access to the proposed Cod Colony Road, the defendants had not caused the plaintiff any real damage. In addition, the court found that the defendants could not be charged with reckless indifference or malicious intent toward the plaintiff since the defendants had made a good faith effort to satisfy the plaintiffs claim. The plaintiff claims that the court ignored certain evidence she introduced concerning her damages and that there was sufficient evidence to find that the defendant acted with reckless disregard of her rights.

“ ‘[PJunitive damages’ and ‘exemplary damages’ are merely alternate labels for the same remedy, a remedy awarded only when the evidence shows reckless, intentional or wanton violation of the rights of others.” Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 289 n.7, 472 A.2d 306 (1984); see also Alaimo v. Royer, 188 Conn. 36, 42-43, 448 A.2d 207 (1982). The trial court’s findings regarding the alleged reckless indifference or malicious intent of the plaintiff are factual findings subject to review under the clearly erroneous standard. Practice Book § 4061; see Leabo v. Leninski, 2 Conn. App. 715, 724, 484 A.2d 239 (1984). After reviewing the record and briefs, we cannot say that the court’s conclusion on this issue was clearly erroneous.

Finally, the plaintiff claims that the trial court erred in failing to grant her injunctive relief restraining the defendants from interfering with her use of the right-of-way. An injunction is a harsh remedy and our courts have consistently held that its issuance is only proper in order to prevent irreparable injury. Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981); Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222 (1971); Bendell v. Johnson, 153 Conn. 48, 51, 212 A.2d 199 (1965). The granting of an injunction is not mandatory but is within the sound discretion of the trial court. Berin v. Olson, supra; Jones v. Foote, 165 Conn. 516, 521, 338 A.2d 467 (1973); Koepper v. Emanuele, 164 Conn. 175, 178, 319 A.2d 411 (1972); Lichteig v. Churinetz, 9 Conn. App. 406, 412, 519 A.2d 99 (1986). We note that the plaintiff did not establish a legally enforceable right-of-way over the gravel path until judgment was rendered in her favor in these proceedings. There is no reason to believe that the defendants will violate the judgment of the court. On the contrary, the court found that the defendants, after being advised by their attorney, agreed that the plaintiff had a right to use the right-of-way by prescription. We therefore find no abuse of discretion in the trial court’s failure to grant injunctive relief.

There is no error.

In this opinion the other judges concurred.

       Although the plaintiff in the first count of her complaint claimed a right-of-way by deed over the defendant’s land, the plaintiff did not claim that the right-of-way was established under the Whitton doctrine because of the map reference in her deed. Instead, the plaintiff claimed a right-of-way by deed in apparent reliance on language that appears to have been contained in the defendant’s deed. In her complaint, the plaintiff claimed that the portion of the defendant’s land subject to such right-of-way was as follows: “A right-of-way from Cod Colony Road to the land of Pakorvich to be kept open adjacent to the southerly boundary of lot #101 Hitchcock Park (so-called). The above land and right-of-way shown on a plan entitled Modern-Life Homes Corporation, Hitchcock Park, Willimantic, Conn. Proposed lay out of Plats, Drawn by F.H. Hamilton August 1946 filed with City Clerk, Willimantic, Conn. Oct. 22,1946.” In addition, in both her motion to open and modify and her motion for articulation, the plaintiff requested the court to describe the plaintiffs right-of-way in accordance with this language, and made no reference to her present claim. As the trial court later found and the plaintiff admitted in oral argument, however, this description referred to a wholly different location than the Cod Colony Road area that the plaintiff now claims was established by virtue of the map reference in her deed.

       Under General Statutes § 52-212a and Practice Book § 326, a motion to open judgment must be filed within four months from the date it was rendered. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 465, 440 A.2d 159 (1981). Absent certain exceptions not relevant here, a trial court has no jurisdiction to hear a motion filed beyond this four month period. Id., 465-66. Although the plaintiff filed her motion to open and modify within four months of judgment, the motion specifically requested that the judgment be modified only in three respects, none of which were related to the present claim of implied easement under the Whitton doctrine. The present claim was not raised until over a year after the trial court rendered judgment.


author: Bieluch, J.

text:
    Ida Kuhn et al. v. Bridgeport Ambulance Service et al.
    (3850)
    Borden, Daly and Bieluch, Js.
    Argued January 7
    decision released June 2, 1987

      Lawrence V. Parnoff, for the appellants (plaintiffs).

      Peter J. Dank, with whom, on the brief, was Sheila M. Tierney, for the appellee (named defendant).
   Bieluch, J.

The plaintiffs, Ida and Russell Kuhn, husband and wife, have appealed from the trial court’s judgment rendered after the denial of their motion to set aside the jury’s verdict, finding the named defendant liable for $2452.45 in damages to the plaintiff Ida Kuhn, and, upon the court’s direction, finding for the defendant on the plaintiff Russell Kuhn’s claim for loss of consortium of his wife. They claim, inter alia, that the trial court erred in finding that there was no evidence presented to sustain the husband’s claim for loss of consortium, and that the jury’s award of damages to the wife was inadequate. We find no error.

The following facts could reasonably have been found by the jury and are not in dispute. Ida Kuhn was injured while accompanying her mother to the hospital in an ambulance. This was a routine transport and not an emergency trip to the hospital. Ida Kuhn was sitting in the back of the ambulance when it stopped suddenly, causing her to fall. She sustained injuries which required medical treatment.

Ida Kuhn and her husband, Russell Kuhn, sued the defendant ambulance company and the driver of the ambulance. The complaint sought damages for Ida Kuhn including medical expenses, loss of earnings, permanent physical injury, and physical and mental pain and anguish. Russell Kuhn sought damages for loss of consortium.

At the conclusion of the evidence, the trial court instructed the jury on those claims relating to Ida Kuhn’s injuries. On motion of the defendant, however, the court directed the jury to find for the defendant on Russell Kuhn’s claim for loss of consortium. In so doing, the court found that Russell Kuhn’s testimony concerning his wife’s inability to accompany him on trips was insufficient to support a claim for loss of consortium. The court similarly found that his assistance with housework because of Ida Kuhn’s restricted activities was not a loss of consortium. The jury returned a plaintiffs verdict for Ida Kuhn, but only in the amount of her special damages, $2452.45. This figure represents her medical expenses and loss of wages. It is apparent, therefore, that no award was made for her claims of permanent physical injury or physical and mental pain and anguish. The plaintiffs’ motion to set aside the verdict as inadequate was denied.

The plaintiffs’ first claim is that the trial court erred in directing a verdict for the defendant against Russell Kuhn. The court found that the only testimony concerning loss of consortium was Russell Kuhn’s testimony that the injuries to his wife left her unable to accompany him on long trips and required that he assist her in housework. The trial court held that damages for loss of consortium are intended to compensate one spouse for the loss of companionship of the other spouse. It concluded that the inability of Ida Kuhn to accompany him on trips did not evidence that he lost her companionship. The trial court therefore directed the jury to render its verdict for the defendant on the husband’s claim for loss of consortium.

In Hopson v. St. Mary’s Hospital, 176 Conn. 485, 408 A.2d 260 (1979), our Supreme Court first recognized a spouse’s right to recover damages for loss of consortium. Id., 494-95. The term consortium was defined as the services of the spouse, including financial support, and a variety of intangible relations which exist between spouses living together in marriage, generally described in terms of affection, society, companionship and sexual relations. Id., 487. The issue presented in the present appeal is whether the inability to accompany a spouse on long trips, if proven, is compensable as loss of consortium.

There is no precedent in this jurisdiction which recognizes such a travel restriction as compensable loss of consortium, although other jurisdictions have apparently recognized such a right. See Massey v. Berlo Vending Co. 329 S.W.2d 772, 778 (Mo. 1959) (upholding damages to husband for loss of consortium where spouse no longer able to go on trips, conventions or attend social functions). In the present case, however, we need not decide the precise issue, because the jury found that Ida Kuhn did not sustain any compensable physical injury beyond medical expenses and lost wages. This finding is inherent in the jury’s limited award of $2452.45, which the plaintiffs concede represents only Ida Kuhn’s medical expenses and lost wages. The jury, therefore, did not find that Ida Kuhn had sustained any compensable injury beyond medical expenses and lost wages. There is nothing in the record to indicate that contributory or comparative negligence was in issue in this case so as to compromise or reduce a verdict award to an injured plaintiff.

“[A] consortium action is derivative of the injured spouse’s cause of action . . . .” Hopson v. St. Mary’s Hospital, supra, 494; Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 312, 524 A.2d 641 (1987). Russell Kuhn’s recovery upon his claim for loss of consortium, was dependent upon the jury’s determination that his wife had suffered compensable injuries in her own right beyond damages for medical expenses and loss of wages. See Izzo v. Colonial Penn Ins. Co., supra; 2 M. Minzer, Damages in Tort Actions § 11.10. Even if the judge had allowed the jury to consider Russell Kuhn’s claim for loss of consortium, the jury verdict rendered for his wife establishes that he could not have prevailed on his claim for loss of consortium which was contingent on a finding of additional compensable injury to his spouse. Loss of consortium rides piggyback on such additional compensable injuries to the spouse. See Izzo v. Colonial Penn Ins. Co., supra. The alleged error, therefore, was harmless. See, e.g., Cramer v. Barlow, 138 Conn. 352, 356-57, 84 A.2d 795 (1951) (refusal to allow amendment to complaint alleging derivative liability for negligence not harmful error where trial court properly found alleged agent not negligent).

The plaintiffs’ claims numbered two through four relate solely to alleged errors concerning the defendant’s duty of care. The plaintiff Ida Kuhn claims that the trial court erred in restricting the testimony of an emergency medical technician concerning the stability of persons riding in the patient compartment of ambulances. She also claims that the court’s charge on the issue of due care and its directed instruction that an ambulance is not a common carrier were erroneous. We need not address these three issues because they relate only to the issue of negligence, which was found by the jury in the plaintiff Ida Kuhn’s favor. Any errors in the restriction of evidence, or in the trial court’s jury charge, could not have adversely affected the jury’s determination and verdict for her and were harmless. See Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982); Darling v. Waterford, 7 Conn. App. 485, 488, 508 A.2d 839 (1986). We need not, therefore, review these claims of error. See Hartman v. Warner, 75 Conn. 197, 199, 52 A. 719 (1902).

Ida Kuhn’s fifth and final claim of error asserts that the court made improper comments on the evidence and misstatements of law in its charge to the jury, resulting in a compromise verdict. All but one of the statements by the court which Ida Kuhn now challenges concerned either the defendant’s duty of care or her duty of due care. For the reason stated earlier, we will not review these statements. The one statement challenged by Ida Kuhn, which relates to the issue of damages, was not excepted to at trial. We, therefore, decline to review the challenged instruction. See Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 244 n.4, 522 A.2d 829 (1987).

Ida Kuhn’s claim that the statements by the court confused the jury and resulted in a compromise verdict requires brief comment. There is no support in the record for this claim. See Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983). We conclude that the jury’s verdict falls within the uncertain limits of fair compensation. See Mansfield v. New Haven, 174 Conn. 373, 387 A.2d 699 (1978). There is no evidence on the record which demonstrates that the jury was influenced by partiality, prejudice, mistake or corruption. Fox v. Mason, supra. The case of Johnson v. Franklin, 112 Conn. 228, 152 A. 64 (1930), cited by the plaintiffs, is not controlling in this case. In Johnson, the Supreme Court found substantial evidence of pain and suffering on the record. The record in the present case contains no such substantial evidence. From the evidence in the record, we cannot say that this is the exceptional case where the trial court would be justified in disturbing the jury’s award of damages as inadequate. See Rickert v. Fraser, 152 Conn. 678, 680, 211 A.2d 702 (1965) (where jury awarded plaintiff special damages for medical expenses and lost wages, no error in refusing to award for physical injury, pain and suffering). The trial court did not abuse its discretion in denying the plaintiffs’ motion to set aside the verdict. Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 438, 513 A.2d 1235, cert. denied, 201 Conn. 811, 516 A.2d 887 (1986).

There is no error.

In this opinion the other judges concurred.

       The plaintiffs withdrew their action against the codefendant, Paul Monahan, driver of the ambulance in which the named plaintiff was a passenger. As used in this opinion, the term defendant refers only to Bridgeport Ambulance Service.

       A review of the exhibits establishes that Ida Kuhn incurred $2081.35 in medical expenses and $371.10 in lost wages, for a total of $2452.45.


text:
    State of Connecticut v. Paul E. Daley
    (5220)
    Spallone, Bieluch and Berdon, Js.
    Argued March 10
    decision released June 2, 1987

      Thomas J. Keramidas, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, for the appellee (state).
   Berdon, J.

After a trial to a jury, the defendant was convicted of operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a (a). The sole issue presented in this appeal is whether the trial court erred in refusing to allow the defendant to rehabilitate a witness after the witness’ credibility was attacked on cross-examination. We find no error.

An issue at the trial was whether the defendant was operating the motor vehicle which was owned by Theodore Levesque. The jury could reasonably have found the following facts. When a Waterford police officer observed the motor vehicle operated by the defendant leave the parking lot of the Waterfront Cafe at a high rate of speed, he gave chase, radioing ahead to advise other officers that he was attempting to stop the vehicle. As the vehicle entered Niantic, it was followed by a local police officer. The Niantic police officer was positioned within fifteen feet of the vehicle when it finally came to rest in a parking lot. The officer saw two silhouettes in the rear of the automobile and one in the front seat moving from the driver’s side to the passenger’s side. When the officer approached the automobile, he found the defendant with his upper body on the passenger’s seat, his lower body on the driver’s side and his feet near the accelerator and brake. At the scene, the defendant denied having operated the motor vehicle.

At trial, the defendant testified that he did not operate the motor vehicle and claimed that it was driven by the owner Levesque. The defendant called Levesque as a witness. Prior to questioning him, the jury was excused and Levesque was advised by the court of his privilege against self-incrimination. When the jury returned, Levesque asserted this privilege and refused to answer any of the questions propounded to him by defense counsel.

The state, without objection, then proceeded to cross-examine the witness bringing into issue his credibility by showing his relationship with the defendant and that he had discussed the case with the defendant on the day of trial and on a previous occasion. On redirect examination, Levesque testified that he had been served with a subpoena to appear in court. The court then sustained objections to questions which sought to elicit that Levesque refused to obey the subpoena and was compelled to appear by a sheriff as a result of a capias issued by the court. The defendant claimed that this evidence was necessary in order to rehabilitate the credibility of the witness.

Ordinarily, within the discretion of the court, “a witness is permitted on redirect examination to explain or clarify any relevant matters in his testimony which may have been weakened or obscured by his cross-examination.” State v. Conrod, 198 Conn. 592, 596, 504 A.2d 494 (1986); State v. Graham, 186 Conn. 437, 448, 441 A.2d 857 (1982). It is fundamental, however, that when the credibility of a witness is attacked on cross-examination, the other party has a right to rehabilitate his witness during redirect examination. “Under our adversary system of trials the opponent must be given an opportunity to meet this attack [on credibility] by evidence sustaining or rehabilitating the witness.” C. McCormick, Evidence (3d Ed.) § 49, p. 115; F. Wharton, Criminal Evidence (14th Ed. Torcia) § 452; C. Tait & J. LaPlante, Connecticut Evidence § 7.28; see State v. Glenn, 194 Conn. 483, 499, 481 A.2d 741 (1984); State v. Ward, 49 Conn. 429, 442 (1881); Merriam v. Hartford & N. H. R. R. Co., 29 Conn. 354 (1850).

Since Levesque refused to testify on direct, his credibility was not relevant and, therefore, there was nothing to rehabilitate. The defendant, however, argues that the jury could have drawn an inference from Levesque’s fifth amendment refusal to testify. The refusal of a witness to testify, on the ground that it would incriminate him, could not be the basis for any inference. People v. Thomas, 51 N.Y.2d 466, 473, 434 N.Y.S.2d 941, 415 N.E.2d 931 (1980). “[T]he general rule is that when a witness, other than the accused, declines to answer a question on the ground that his answer would tend to incriminate him, that refusal alone cannot be made the basis of any inference by the jury, either favorable to the prosecution or favorable to the defendant.” Annot., 24 A.L.R.2d 895, 896.

There is no error.

In this opinion the other judges concurred.

       “Having undertaken to enhance his credibility before the jury on his direct examination, the state was entitled to flesh out that image on cross-examination within the context of his direct testimony. Not to have been permitted to do so would have subverted the truth-finding process . . . .” State v. Glenn, 194 Conn. 483, 499, 481 A.2d 741 (1984).

       The defendant also argues that the state “opened the door” to credibility and he should, therefore, have been permitted to pursue this line of inquiry. When one side opens the door by eliciting inadmissible evidence, whether to allow rebuttal evidence is within the sound discretion of the court. State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). The trial court did not abuse its discretion in this case.


text:
    James D. Cotton v. Mary Ellen Cotton
    (4874)
    Hull, Spallone and Bieluch, Js.
    Argued March 12
    decision released June 2, 1987

      Gaetano Ferro, for the appellant (plaintiff).

      David P. Ball, with whom, on the brief, was Robert E. Young, for the appellee (defendant).
   Spallone, J.

The plaintiff is appealing from the judgment of the trial court rendered in an action to dissolve the marriage of the parties. The plaintiffs principal claim is that the trial court erred in granting custody of the parties’ four minor children to the defendant wife. The plaintiff also contends that, if this court finds error in the custody awards, we should require the trial court to adjust its financial awards. We find no error.

The trial court found the following facts in its memorandum of decision. The parties were married in 1971. During their marriage, they had four boys. At trial, each party presented psychological testimony regarding custody arrangments for the children. Robert S. Colen, a psychologist testifying for the plaintiff father, described the defendant mother as a very bright, sensitive, caring and loving parent, with her primary commitment being toward her children. Colen also stated, however, that she seemed overwhelmed by parental responsibilities and that she could not successfully accept the responsibility for raising four children in the absence of their father. He recommended that custody of the two older children be awarded to the plaintiff father and the two younger children to the defendant mother.

Kenneth McGrath, a psychologist, testified for the defendant, basing his opinions on a meeting and telephone conversations with the defendant together with Colen’s data and report. McGrath testified that the defendant had an outstanding record of exemplary performance, that she was functioning well under the stress of the divorce and that she was providing more than adequate care for the children. He also testified that children should not ordinarily be divided, and recited some common negative effects of such divisions. The court concluded that McGrath advocated a custody award to the defendant.

The court also found that the plaintiff had refused to allow one of the children to enter into a special education program at elementary school. Although the plaintiff denied this contention, his testimony was found not to be credible in light of contrary testimony by the principal of the school. The court found that the evidence clearly established that the best interests of the children require that custody be awarded to the mother, with the plaintiff father having reasonable, liberal and flexible rights of visitation. After determining support and alimony awards and a property settlement, the court rendered judgment accordingly.

The plaintiff has listed six reasons to support his claim that the court erred in awarding custody of the parties’ four minor children to the defendant. He alleges that the court (1) misunderstood the expert testimony of the psychologist presented by the defendant, (2) failed to order that a custody study be performed by the family relations office, (3) failed to appoint counsel to represent the minor children, (4) failed to permit testimony about the children’s psychology and preferences which it knew to be admissible, (5) failed to consider the preferences of the oldest child and failed to recognize that a child’s wishes should be considered in determining custody, and (6) failed to enforce the parties’ agreement and a previous court order that the parties would be bound by the recommendations of a court-appointed psychologist.

The plaintiff’s primary claim is that the court’s factual finding regarding McGrath’s custody recommendation was clearly erroneous. The court stated in its memorandum of decision that McGrath “advocates a custody award to the defendant mother.” The plaintiff asserts that McGrath made no such recommendation, but that his testimony was limited to commenting on the defendant’s ability to raise the children herself and criticisms of Colen’s recommendation that custody of the children be divided between the parents. The plaintiff contends, therefore, that the court based its custody determination on a recommendation that was never made.

Our review of the factual findings of the trial court is limited to the determination of whether, in view of the evidence and pleadings in the whole record, those findings are clearly erroneous. Practice Book § 4061. A factual finding of the trial court is clearly erroneous if it is unsupported by the evidence or 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); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Buddenhagen v. Luque, 10 Conn. App. 41, 45, 521 A.2d 221 (1987). “ ‘It is the province of the trier of fact to weigh the evidence presented and determine the credibility and effect to be given the evidence. See Hally v. Hospital of St. Raphael, 162 Conn. 352, 359, 294 A.2d 305 (1972). On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. . . .’ ” Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 160, 510 A.2d 440 (1986), quoting Swift & Co. v. Rexton, 187 Conn. 540, 543, 447 A.2d 9 (1982).

It is true that McGrath did not make a specific recommendation regarding the children’s custody in this case. He did testify, however, that he disagreed with Colen’s recommendation that custody be divided between the two parents, stating that the splitting of siblings often results in grief, mourning, loss and anger among the siblings. He also testified that the defendant was fully capable of raising the four boys, and that they should stay together. We cannot say that it was clearly erroneous for the trier of fact to infer from such testimony that McGrath advocated a custody award to the defendant mother.

The remaining of the plaintiffs claims are addressed to the discretionary functions of the trial court and may be disposed of quickly. Our appellate courts have repeatedly held that the trial court has broad discretion in family matters. Yontef v. Yontef, 185 Conn. 275, 279, 440 A.2d 899 (1981). Judicial review of the trial court’s exercise of its discretion is limited to determining whether the court correctly applied the law and could reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).

The plaintiff’s claim that the court failed to order a custody study by the family relations office is without merit. The court did order the family relations office to prepare a report on custody, visitation and finances, but the office failed to make a recommendation before the case went to trial. The plaintiff does not claim that he ever sought a continuance at trial pending the recommendation of family relations. The trial court was not obligated to consider such a study before rendering judgment, as an order of custody study lies within the broad discretion of the trial court. General Statutes § 46b-6; Ridgeway v. Ridgeway, 180 Conn. 533, 542 n.6, 429 A.2d 801 (1980).

The court did not err in failing to appoint counsel to represent the minor children. The appointment of counsel for minor children lies within the discretion of the trial court. General Statutes § 46b-54; Ridgeway v. Ridgeway, supra. The plaintiff has provided us with no basis for concluding that the trial court abused its exercise of discretion in this matter.

We find no merit to the plaintiffs claim that the court failed to permit testimony that it knew to be admissible. The plaintiff never excepted to the trial court rulings in this regard and therefore failed to preserve this claim for review. Practice Book § 288; Kimbrell v. Rossitto, 6 Conn. App. 638, 652, 507 A.2d 120 (1986). We note that even after the court sustained one of the defendant’s hearsay objections, it suggested that the plaintiff could research this issue over the lunchtime recess, and that the court would allow him to continue the line of inquiry after the recess upon locating the proper authority for allowing the hearsay testimony. Despite the fact that the plaintiff notified the court after the recess that he had located the proper hearsay exception, he failed to return to this line of inquiry in her cross-examination of the witness.

There is no merit to the plaintiff’s claim that the court failed to consider the preference of the oldest child to live with his father. The testimony concerning the child’s statement was a hearsay statement introduced though his father. The weight to be given such testimony is solely within the province of the trial court. Timm v. Timm, supra, 210; Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 282 (1982). The plaintiff has failed to demonstrate that the court failed to consider this testimony.

Finally, there is no merit to the plaintiff’s claim that the court erred by failing to enforce the parties’ agreement and a previous court order that the parties would be bound by the recommendation of a court-appointed psychologist. First, the trial record indicates that any such agreement was limited solely to pendente lite orders. Second, only a judicial authority has the power to make or modify custody awards. See Valante v. Valante, 180 Conn. 528, 532, 429 A.2d 964 (1980); Holmes v. Holmes, 2 Conn. App. 380, 382, 478 A.2d 1046 (1984). No court in this state can delegate its judicial authority to any person serving the court in a nonjudicial function. The court may seek the advice and heed the recommendation contained in the reports of persons engaged by the court to assist it, but in no event may such a nonjudicial entity bind the judicial authority to enter any order or judgment so advised or recommended.

Because the claimed errors in the financial awards are conditioned upon a finding of error in the custody award, we have no need to review these claims.

There is no error.

In this opinion the other judges concurred.


text:
    Faver T. Hawkins v. Edgar M. Hawkins III
    (5014)
    Spallone, Bieluch and Berdon, Js.
    Argued March 11
    decision released June 9, 1987

      Peter M. Ryan, for the appellant (defendant).

      Mary Ellen Wynn, for the appellee (plaintiff).
   Spallone, J.

The defendant is appealing from the judgment of the trial court rendered in a dissolution of marriage action.

After a fully contested dissolution action, the state trial referee dissolved the marriage of the parties. The court awarded the parties joint custody of the minor children with the principal residence of the children to be with the plaintiff mother, subject to reasonable rights of visitation to the defendant father.

In its memorandum of decision, the court made the following findings of fact. The parties had been married since May 9,1970. At the time of trial, the plaintiff was 39 years old, in good health, had a college degree in fine arts and had been most recently employed as a broker at Merrill Lynch and Company earning $15,000 per year. She left her employment when this action was commenced and intends to seek further employment in the securities field with the likelihood that she will succeed. She has consistently received, over the last seven or eight years approximately $30,000 per year from a trust set up by her grandfather for her mother. The power of appointment over the trust rests in her mother and the plaintiff has no vested or assured interest in the income therefrom, and the court concluded that the plaintiffs interest in the trust was at best an expectancy. The defendant is one of the trustees of the trust and has a vote in determining if the plaintiff should receive any income or principal. The plaintiff had previously received a large distribution from the principal of the trust but the trial court found this unlikely to occur again. The plaintiff also owns about $45,000 in stocks, bonds and savings plus a prospective beneficial interest in another trust.

The defendant at the time of the trial was 42 years old, in good health and a vice-president in the New York offices of the Bank of America, earning $83,000 per year. He has a degree from Brown University and a degree of Master of Business Administration from Stanford University. He owns about $55,000 in stocks, savings, pension and profit sharing with his company.

The principal asset of the parties is their marital home. The parties agreed that the home was valued at $425,000 and was subject to two mortgages totaling $178,000. The plaintiff contributed virtually all of her resources to the purchase and maintenance of their home, while the defendant paid the mortgage payments and contributed a small weekly sum to the family. The proceeds from the parties’ first home in California also went into the purchase of the present home, but the only money provided for this first home was a loan from the plaintiff’s mother which was later forgiven.

Upon granting the dissolution, the court made certain awards, the following of which are challenged by the defendant on appeal: (1) the defendant shall convey to the plaintiff his interest in the home subject to the two mortgages of record, which obligations the plaintiff assumes; (2) the defendant shall pay to the plaintiff as alimony the sum of $18,000 per year in installments of $1500 per month, for a period of three years or her sooner death or remarriage.

On appeal, the defendant claims that the trial court erred (1) in failing to consider the income tax consequences of the alimony award, (2) in failing to consider the nature of the plaintiff’s interest in the trust set up by her grandfather, and (3) in assigning the marital residence to the plaintiff. We find no merit to any of the defendant’s averments of error.

The defendant’s first claim of error, that the trial court should have considered the tax consequences of its alimony order, has no foundation in law. Although the court may choose to consider the impact that an award may have on the parties’ tax liability; Powers v. Powers, 186 Conn. 8, 10, 438 A.2d 846 (1982); neither statute nor case law requires that a trial court consider the federal tax implications of the financial awards. Seaver v. Seaver, 10 Conn. App. 134, 521 A.2d 1053 (1987). The court’s action here was not an abuse of its necessarily broad discretion. Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982); Niles v. Niles, 9 Conn. App. 240, 254, 518 A.2d 932 (1986); Jetmore v. Jetmore, 6 Conn. App. 632, 634, 507 A.2d 116 (1986).

The defendant’s second claim of error, that the trial court failed to consider the plaintiff’s interest in her grandfather’s trust, is also without merit. Here, the court, over the plaintiff’s objection, admitted evidence regarding the amount of principal in the trust, the amount of income and principal received from the trust by the plaintiff, and the possible alternate dispositions of the remainder. See, Anderson v. Anderson, 191 Conn. 46, 55-57, 463 A.2d 578 (1983); Thompson v. Thompson, 183 Conn. 96, 98-99, 438 A.2d 839 (1981); Krause v. Krause, 174 Conn. 361, 364-65, 387 A.2d 548 (1978); Rubin v. Rubin, 7 Conn. App. 735, 739-44, 510 A.2d 1000, cert. granted, 201 Conn. 805, 513 A.2d 700 (1986). In its memorandum of decision, the court expressly made note of the trust, described the plaintiff’s interest therein and the amount of the income and principal that had been paid to her over the years. While the defendant disputes the trial court’s characterization of the plaintiff’s interest in the trust as a “mere expectancy,” it is undisputed that the plaintiff was guaranteed no fixed sums, or any funds at all, under the trust. We cannot find from the record before us that the trial court erred in refusing to consider the plaintiffs interest in her grandfather’s trust.

Finally, the defendant claims that the trial court erred in assigning the marital residence to the plaintiff. There was ample evidence to support the award. As in all financial awards including the assignment of property, “[t]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstance which arise out of a dissolution of a marriage.” Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975).

There is no error.

In this opinion the other judges concurred.

       In connection with this claim, the defendant also appears to claim that the $18,000 award over three years, although labeled alimony by the court, was actually a property settlement, and therefore should have been subject to the criteria of General Statutes § 46b-81 rather than General Statutes § 46b-82. Because the defendant has failed to set forth adequately the factual and legal basis for this claim, we decline to review it. See Griffin v. Muzio, 10 Conn. App. 90, 94, 521 A.2d 607 (1987).

       The trust was created for the plaintiffs mother by the plaintiffs grandfather. The trust allowed the trustees to make periodic distributions to the plaintiffs mother and her issue (including the plaintiff) that the trustees, in their discretion, deemed to be in the beneficiaries’ best interests. The trust further provided that upon the plaintiff’s mother’s death, her share would pass to whomever the plaintiffs mother appointed in her will, or if no appointment was made, to the issue of the plaintiff’s mother.

       The defendant did not file a motion for articulation in the trial court to determine the extent, if any, that the trial court considered the plaintiff’s interest in her grandfather’s trust in its award. See Practice Book § 4051. It is the appellant's responsibility to provide an adequate record for review. Practice Book § 4061; Thiel Realty Corporation v. Culligan Water Conditioning Co., 9 Conn. App. 191, 192-93, 517 A.2d 1052 (1986); and under normal circumstances, as here, we will not remand to correct a deficiency the appellant should have remedied. Id.; Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983).