text:
    Edward Stephenson, Jr. v. Frank Evers et al.
    (3484)
    Daly, Bieluch and Covello, Js.
    Argued September 18
    decision released November 12, 1985

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

      Edward P. McCreery III, for the appellee (plaintiff).
   Per Curiam.

This is an appeal from a denial of the named defendant’s motion to dissolve a prejudgment remedy. A similar action between the same parties was previously dismissed for failure to prosecute with reasonable diligence. The named defendant claims that the earlier dismissal operates as a bar to the present action under the doctrine of res adjudicata. We hold that this is not the case and find no error.

On August 6, 1984, the plaintiff commenced the present action in the Fairfield judicial district. He applied for and was granted an ex parte prejudgment remedy. The named defendant moved to dissolve the prejudgment remedy claiming that an earlier action between the same parties involving the same issues was dismissed on December 12, 1983, for failure to prosecute with reasonable diligence. This was true. The court found there was probable cause to sustain the validity of the plaintiffs complaint, rejected the claim of res adjudicata and denied the motion to dissolve. The named defendant appealed.

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties ... in all other actions . . . .” (Emphasis added.) Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980). While a dismissal pursuant to Practice Book § 251 is undoubtedly a final judgment; see Jenkins v. Ellis, 169 Conn. 154, 159, 362 A.2d 831 (1975); the question remains whether such a dismissal constitutes a judgment on the merits.

This issue has now been definitively resolved in favor of the proposition that a dismissal pursuant to Practice Book § 251 does not constitute an adjudication on the merits and, therefore, a subsequent action between the same parties involving the same issues is not barred by the doctrine of res judicata. Milgrim v. Deluca, 195 Conn. 191, 194-95, 487 A.2d 522 (1985).

There is no error.

       Practice Book § 251 provides, in pertinent part: “If a party shall fail to prosecute an action with reasonable diligence, the court may . . . render a judgment dismissing the action with costs.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Charles Olsen v. Zoning Board of Appeals of the Town of Torrington et al.
    (3226)
    Spallone, Daly and Bieluch, Js.
    Argued October 8
    decision released November 12, 1985

      Eugene A. Marconi, for the appellant (plaintiff).

      JohnP. Febbroriello, for the appellees (defendants).
   Daly, J.

The individual defendants, including Barry Cone, applied for and were granted a special exception under § 535 of the Torrington zoning regulations to construct multifamily housing in a single family residential zone. The plaintiff, Charles Olsen, an abutting landowner, appealed to the trial court from the decision of the zoning board of appeals. At the hearing for the zoning appeal, argued on January 6, 1984, the plaintiff claimed that the board violated General Statutes § 8-3c, asserting that the notice of hearing was inadequate and that the application proposal submitted and approved at the hearing differed from the one originally submitted. The trial court granted the defendants’ motion to dismiss the plaintiff’s appeal on the ground that the plaintiff never presented for the court’s consideration a copy of the zoning regulations in question, particularly § 535. From this judgment, upon the granting of certification, the plaintiff has appealed to this court.

The principal issue involved in this appeal is whether the trial court erred in ruling that the zoning regulations were not a proper subject of judicial notice. We find that zoning regulations may be judicially noticed and, therefore, that the trial court was in error.

The trial court granted the defendants’ motion to dismiss the appeal on the ground that the record was incomplete, the zoning regulations never having been presented for the court’s review on appeal. In its memorandum of decision on the appeal, the court erroneously relied on Martin v. Board of Zoning Appeals, 145 Conn. 735, 736, 143 A.2d 450 (1958), for the proposition that “[t]he trial court does not take judicial notice of zoning regulations, nor does [the Supreme] court.”

In 1967, General Statutes § 52-163 was amended, superseding Martin, to permit courts to take judicial notice of the ordinances of any town, city or borough. Public Acts 1967, No. 353; Holden & Daly, Connecticut Evidence § 25, p. 44. As zoning regulations are municipal ordinances, the trial court should have taken judicial notice of § 535 of the Torrington zoning regulations.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       In addition, the trial court denied the plaintiffs subsequent motions to open the judgment and to correct the record.

       Section 535 of the Torrington zoning regulations, amended as of August 23,1980, June 30,1981, and April 13,1983, provides, in pertinent part: “The building of multi-family dwellings in a Restricted Residential Community Zone shall be permitted only by the Planning and Zoning Commission after a public hearing as provided in Section 230. . . . The building of multi-family dwellings in any other zone except those in which it is expressly prohibited or which building of multi-family dwellings is authorized by Section 230, may only be allowed as a Special Exception by the Zoning Board of Appeals after a public hearing in accordance with Section 604.”

       Two other issues were claimed on appeal: (1) whether the hearing notice was adequate, and (2) whether the court in ruling on the motion to correct should have permitted the introduction of the zoning regulations in light of General Statutes § 8-8. We need not consider these issues, as a ruling on the issue of judicial notice is dispositive of the appeal.


author: Dupont, C. J.

text:
    Richard A. Zuch v. The Connecticut Bank and Trust Company, Inc.
    (3793)
    Dupont, C. J., Hull and Borden, Js.

      Argued October 2
    decision released November 12, 1985

      Bourke G. Spellacy, with whom, on the brief, was Peter R. Huntsman, for the appellant (defendant).

      Arnold B. Abrams, for the appellee (plaintiff).
   Dupont, C. J.

The plaintiff, the sole beneficiary of a trust, sought equitable relief in a one count complaint, including an accounting under General Statutes §§ 52-401 through 52-405, from the defendant trustee of the trust. The only factual allegations of the complaint were the recitation of the establishment of the trust and that, “[pjursuant to the said trust agreement, [the defendant] undertook a fiduciary relationship in which it was charged pursuant to the trust agreement to properly manage and invest and distribute the trust funds for the benefit of the plaintiff . . . .”

The first issue to be resolved is whether the trial court, Shaughnessy, J., properly denied the defendant’s motion to strike the complaint for failure to state a claim upon which relief could be granted. The second issue, reached if the motion to strike was properly denied, is whether the trial court, Maloney, J., erred in concluding that the plaintiff’s complaint was suffident as a matter of law and in ordering the appointment of auditors, pursuant to the statutes, for the purpose of evaluating the propriety and prudence of the investment decisions of the trustee made during the entire period of its administration of the trust.

In 1962, Louis Zuch executed a declaration and agreement of trust for the benefit of his son, the plaintiff. It provided for a payment of $350 per month to the plaintiff, with an increase to $400 should the plaintiff marry and have a child. The trust was to terminate in 1987. In 1964, the defendant succeeded Louis Zuch as sole trustee. The corpus of the trust then consisted of a portfolio of stocks, bonds and some cash which, as of June, 1965, was valued at $75,296.85. The plaintiff received $350 per month from the trust until 1967 when his son was born, and $400 per month, thereafter, until August, 1982, when the corpus was exhausted.

In the period from 1971 to 1980, the trust funds were shifted by the defendant among a variety of investments in an attempt to maximize the income generated by the trust. These instruments ranged from diversified stock funds managed by the defendant to interest bearing money market accounts, also managed by the defendant.

The defendant’s motion to strike was denied without opinion by the court, Shaughnessy, J. The motion was based on the defendant’s claim that the plaintiff’s complaint required allegations of misfeasance or nonfeasance by the defendant or allegations of a breach of contract or of the commission of a tort. The defendant did not claim as the basis for its motion to strike, as it did at oral argument and in its brief in this court, that the allegations of the complaint were insufficient to support a cause of action upon which relief could be granted because of the plaintiffs failure to allege a demand and a refusal to give an accounting by the defendant. Claims not made to the trial court will not ordinarily be considered by this court on appeal. Northeast Electrical Contractors v. Udolf, 1 Conn. App. 169, 171, 469 A.2d 419 (1984). In determining whether the motion to strike was properly denied, therefore, we consider only the ground claimed for the motion.

The basis for a right to an accounting is supported by an allegation that a fiduciary relationship exists. C & S Research Corporation v. Holton Co., 36 Conn. Sup. 619, 621-22, 422 A.2d 331 (1980). The fiduciary relationship is in and of itself sufficient to form the basis for the relief requested. Id. The motion to strike, therefore, was properly denied, based upon the grounds claimed, because an action for a statutory accounting from a fiduciary does not require allegations of wrongdoing.

Although the defendant’s motion to strike was not based upon the plaintiff’s failure to allege a demand for an accounting and the defendant’s refusal to give one, the issue was raised for the first time by the defendant in its closing argument before the trial judge, Maloney, J. The court ruled that such a failure did not render the plaintiff’s cause of action insufficient as a matter of law. The court also held that although the plaintiff had not alleged it, the plaintiff had proven during the trial that he had sought an accounting of the reason for the decline in the value of the trust assets, but had, instead, been given periodic reports which listed expenditures, fees and the current market value of the trust assets.

The remedy of an accounting, whether in a legal or equitable form, has been traditionally recognized in this jurisdiction. See, e.g., Barnum v. Landon, 25 Conn. 137 (1856); Sturges v. Bush, 5 Day 452 (1813); Mott v. Downer, 1 Root 425 (1792). General Statutes §§ 52-401 through 52-405 represents the present form of the statutory codification of this remedy. See also Kane v. Kane, 120 Conn. 184, 188, 180 A. 308 (1935).

Appropriate factual allegations for an accounting must be shown before a party can invoke this remedy. An examination of Connecticut cases reveals that an allegation of demand and refusal has been required in most but not all instances, with many decisions turning on the specific facts of the particular case. See Chiarelli v. Pentino, 100 Conn. 686, 690, 124 A. 806 (1924); Southworth v. Smith, 27 Conn. 354, 357 (1858); Smith v. Lawrence, 26 Conn. 468, 478 (1857); Barnum v. Landon, supra, 151; but see New Haven Sand Blast Co. v. Dreisbach, 102 Conn. 169, 190, 128 A. 320 (1925); Sturges v. Bush, supra, 457. The statute, on its face, does not provide any guidance on the issue of the allegations necessary to support a cause of action for an accounting.

The general rule is that a prior demand by the plaintiff for an accounting and a refusal by the defendant to account is a prerequisite to the commencement of an action for an accounting. See 1 Am. Jur. 2d, Accounts and Accounting §§ 46, 47. The plaintiff must allege such a demand in his pleadings, with failure to do so resulting in dismissal of the action. Id; see also 1 C.J.S., Accounting § 38 (a) (4); 143 A.L.R. 1211.

While there are cases which hold otherwise, the vast weight of authority in this jurisdiction requires the allegation of a demand and refusal before a party may successfully invoke the remedy of an accounting. Such a conclusion is in accord not only with the traditional understanding of an accounting as a remedy; see 1 Am. Jur. 2d, Accounts and Accounting §§ 46, 47; 1 C.J.S., Accounting §§ 28, 38 (a) (1); 1 C.J., Accounts and Accounting § 80 n.8; but it also comports with Practice Book Form 604.5. Furthermore, the requirement of such an allegation, as a practical matter, may prevent useless litigation. See Edgerton v. Armour & Co., 94 F. Sup. 549, 557 (S.D. Cal. 1950). The court erred in finding the complaint legally sufficient to state a cause of action upon which relief could be granted.

This conclusion would ordinarily be sufficient for us to remand the case with direction to render judgment for the defendant. In this case, however, the type of accounting sought by the plaintiff and ordered by the court is such that the issue is likely to arise again. In the interest of judicial economy, therefore, we consider the defendant’s claim of error directed to the type of accounting ordered by the court. That order required the defendant to provide a written justification of its investment policy and objectives used in managing the trust over the years in question, and included the following items: the rate of earnings projected in advance by the defendant for each of the years, in addition to the actual earnings and rate of earnings for each year, and opinions by auditors, to be appointed by the court, as to the prudence of the defendant’s investments.

The plaintiff sought an accounting on the basis of the fiduciary relationship assumed by the defendant as trustee. “As a general matter of equity, the existence of a trust relationship is accompanied as a matter of course by the right of the beneficiary to demand of the fiduciary a full and complete accounting at any proper time (65 C.J., [Trusts p.] 878). The scope of such accounting depends of course upon the circumstances of the individual case, and, as a general rule, should include all items of information in which the beneficiary has a legitimate concern.” Baydrop v. Second National Bank, 1 Conn. Sup. 29, 30, modified on other grounds, 120 Conn. 322 [180 A. 469] (1935); see also C & S Research Corporation v. Holton Co., supra.

A proper accounting, at a minimum, should state in clear and concise terms the nature and value of the corpus of the trust when received by the trustee, any realized increases or decreases on principal or income, any income generated by the trust, any disbursements or distributions to beneficiaries, any commissions, charges, or fees paid, including those paid to the trustee in the management and administration of the trust, and the amount and location of any balance or remainder. See Kelly v. Sassower, 52 App. Div. 2d 539, 382 N.Y.S.2d 88 (1976); Bogert, Trusts and Trustees (2d Ed. Rev. 1983) §§ 961, 963, 970; Scott, Trusts (3d Ed. 1967) § 172. “In such an action the court does not go into the items of the account but only pleas attacking the right of the plaintiff to have an accounting are permitted. The defense ‘fully accounted’ means that a full account has been rendered, not that all the money received has been properly expended.” Kane v. Kane, supra, 188.

The trial court erred when it ruled that the scope of the accounting due the plaintiff should include a justification by the defendant of its investment policies during its management of the trust, the projected rate of earnings for each year and an evaluation of the propriety of the investments made by the defendant. The accounting given by the defendant was found by the trial court to have been periodic reports of expenditures, fees, and the current market value of the assets. This was sufficient.

In no way does this result undermine the standard of conduct traditionally accorded to the fiduciary relationship between a trustee and his beneficiary. The plaintiff has not alleged that the defendant engaged in mismanagement of the trust funds, in some type of wrongdoing, or in a breach of its fiduciary relationship. The case, given the particular pleading of the plaintiff, concerns only the scope of an accounting due by a trustee, absent such allegations.

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

In this opinion the other judges concurred.

       No final judgment was rendered by the trial court. General Statutes § 52-405 provides in pertinent part: “When, in any action demanding an accounting, a judgment is rendered ordering such accounting, appeal may be had from such judgment to the appellate court, as if it were a final judgment.”

       General Statutes §§ 52-401 through 52-405 are primarily concerned with the procedure to be followed after the trial court has determined that an accounting is due. General Statutes § 52-401 simply provides: “In any judgment or decree for an accounting, the court shall determine the terms and principles upon which such accounting shall be had.”


author: Per Curiam.

text:
    Samuel E. Hill et al. v. Richard F. Gereg
    (3563)
    Borden, Spallone and Satter, Js.
    Argued September 19
    decision released November 12, 1985

      James B. Mason, with whom, on the brief, was Richard F. Gereg, for the appellant (defendant).

      Barbara J. Wardenburg, with whom, on the brief, was Samuel M. Chambliss, for the appellees (plaintiffs).
   Per Curiam.

The defendant appeals from the denial of his motion to open a default judgment rendered against him. This case is controlled by Clapper v. Clapper, 3 Conn. App. 637, 490 A.2d 1030 (1985).

There is no error.


text:
    Gaylord Hospital v. Robert N. Massaro et al.
    (3857)
    Spallone, Daly and Hadden, Js.
    Argued September 17
    decision released November 12, 1985

      Ronald E. Cassidento, with whom, on the brief, was Eric Carlson, legal intern, for the appellant (defendant Rose M. Massaro).

      Vincent J. Dooley, with whom, on the brief, was Leon J. Govin, for the appellee (plaintiff).
   Daly, J.

The plaintiff, Gaylord Hospital, instituted this action to recover costs for hospital and medical care rendered to the named defendant, Robert N. Massaro, the husband of the defendant Rose Massaro. The trial court accepted the factfinder’s report and rendered judgment for the plaintiff in the amount of $13,500.09, from which judgment the defendant appeals.

The factual situation does not appear to be in dispute. As a result of an unfortunate swimming pool accident, Robert Massaro suffered severe back injuries which led to his admission to the plaintiff’s facility on September 19,1974. The defendant, Rose Massaro, and Robert Massaro were married although they had been living apart at the time of the husband’s accident. The defendant executed a written agreement with the plaintiff whereby she agreed to be responsible for all hospital and medical services rendered to her husband who remained in Gaylord Hospital from September 19, 1974, through June 20, 1975. The total bill for hospital and medical care rendered for that period was $40,559.54, of which there remained a balance of $13,500.09. Suit was instituted by the plaintiff in November, 1980, for collection of the balance, which the defendant refused to pay.

The sole issue on appeal is whether the statute of limitations, General Statutes § 52-576, commenced to run on September 19, 1974, the date the patient was hospitalized, or on June 20,1975, the day the patient was released. If the date of admission to the hospital is the time from which the six year statute began to run, then the action brought in November, 1980, on the defendant’s agreement to pay the hospital bill would be barred.

At the time of trial, General Statutes (Rev. to 1979) § 52-576 provided, in pertinent part, that “[n]o action for an account . . . on any simple or implied contract, or upon any contract in writing, shall be brought but within six years next after the right of action accrues.” The writ was served in November, 1980. Under the statute of limitations, the plaintiff’s cause of action would be barred unless it accrued within six years of serving the writ. Seaboard Burner Corporation v. DeLong, 145 Conn. 300, 303, 141 A.2d 642 (1958).

While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action. That is, an action cannot be maintained until a right of action is complete and, hence, the statute of limitations cannot run before that time. 51 Am. Jur. 2d, Limitation of Actions § 107. “The settled rule that the statute of limitations begins to run upon the accrual of a cause of action applies in actions on implied and quasi contracts.” Id., § 134. In an action for breach of contract, the cause of action is complete upon the occurrence of the breach, that is, when the injury has been inflicted. Kennedy v. Johns-Manville Sales Corporation, 135 Conn. 176, 180, 62 A.2d 771 (1948). In a contract where a defect in roof construction was discovered, a breach or injury is considered to have occurred only when the defective roof was completed. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 158, 464 A.2d 18 (1983). Here, the right of action may be said to have accrued upon the completion of services rendered to the patient, and not at the time he was admitted or during the time he was being treated.

The patient received continuous medical treatment during his hospitalization from September 19, 1974, through June 20, 1975, which the factfinder and the trial court found to be a single course of treatment. “Where services are continuously rendered over an extended period of time under an express or implied contract which does not fix the term of employment nor the time when compensation shall be payable, many courts have regarded the contract as an entire one, raising an implied condition that the compensation shall not be due until the termination of the service, so that the statute of limitations will not begin to run against the claim for compensation until the employment is ended.” Annot., 7 A.L.R.2d 200.

In applying the statute of limitations in contract actions, a distinction has also been made between “a contract obligation . . . providing for a continuing, indivisible responsibility for the attainment of an end result, and a contract for the performing of a specific, definable act.” Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., 25 Conn. Sup. 76, 93, 197 A.2d 83 (1963).

“Where the parties to a contract for medical services neglect to stipulate a date on which payment is due, some courts attempt to give effect to their presumed intention by discerning whether the agreement constituted an indivisible contract, against which the statute of limitations would not begin to run until all services were terminated or the contract completed, or a severable contract, as to which a cause of action accrues, and the statute of limitations commences to run, after each individual service is performed. The distinction is made on the basis of whether the physician was retained to render continuous and related services usually connected with a particular affliction.” Annot., 99 A.L.R.2d 253.

Medical malpractice actions may likewise “be applied to a single act of a physician or ... to a course of treatment.” Giambozi v. Peters, 127 Conn. 380, 385, 16 A.2d 833 (1940). If injury is inflicted as a result of a specific act of the physician, then the statute begins to run from that time. “When, however, the injurious consequences arise from a course of treatment, the statute does not begin to run until the treatment is terminated.” Id.

In this case, the contract for medical services was continuing and indivisible, and terminated with the patient’s release from the hospital. We hold that June 20,1975, when Robert Massaro was released from the plaintiff’s facility, was the time when the plaintiff could first have maintained the action to a successful conclusion, and not September 19, 1974, as claimed. The plaintiff’s action to recover on a debt for hospital services, therefore, was timely filed within the six year period encompassed by the statute of limitations.

There is no error.

In this opinion the other judges concurred.

       The named defendant, Robert N. Massaro, died after the initial complaint was filed and was dropped as a party under the allegations of the amended complaint dated October 17, 1984.

       It should be noted that following this initial period of hospitalization, the patient, Robert Massaro, was admitted to the plaintiff’s facility on two other occasions: from October 6,1977, through October 21,1977, and from November 13, 1977, through November 29, 1977.


author: Hadden, J.

text:
    Susan Davis v. Fitzpatrick’s, Inc., et al.
    (3462)
    Spallone, Daly and Hadden, Js.

      Argued September 17
    decision released November 12, 1985

      Gerald M. Gallant, for the appellant (named defendant).

      Foster M. Young, for the appellee (plaintiff).
   Hadden, J.

This is an appeal by the named defendant from the judgment rendered by the trial court on the findings of a factfinder appointed pursuant to General Statutes § 52-549n.

The plaintiff was the owner of a 1974 Ford automobile on which she carried liability but not collision insurance with the Nationwide Insurance Company. The insurance policy did not expire until July 12, 1982. Shortly before July 14,1981, the plaintiff agreed to purchase for cash a used 1981 Chrysler from the defendant, and on that date went to the defendant’s place of business to take care of the final details and to pick up the Chrysler. Towards the end of the discussion, the subject of transferring the existing insurance policy to the new car was mentioned. The defendant’s salesman was acquainted with the plaintiff’s insurance agent and agreed to contact the insurance agent and tell him of the purchase of the Chrysler so that the insurance policy would be transferred to the new car. Despite some efforts to do so, the salesman never did notify the insurance agent of the ownership of the Chrysler as he had agreed to do. The plaintiff took possession of the Chrysler on July 14, 1981, and, on August 7, 1981, was involved in a collision with another car resulting in damages to her Chrysler totaling $3134.80 plus towing charges of $63. Despite the failure of the salesman to contact the insurance agent, the Chrysler was in fact covered by the Nationwide policy originally written on the 1974 Ford, and Nationwide provided a defense to and coverage for a liability claim made by the occupants of the other car involved in the collision. Nationwide would not pay for the damages to the Chrysler since there was no collision insurance coverage provided in the policy.

The plaintiff then brought this action against the defendant claiming promissory estoppel, negligence and breach of contract, resulting in damages totaling $3197.80 because she had no collision coverage in her insurance policy. The case was referred to a factfinder who conducted a hearing and then filed a finding of facts and a conclusion in which he found in favor of the plaintiff in the amount of $3197.80 on the basis of an “implied oral promise” and promissory estoppel. Over the defendant’s objection, the court accepted the report of the factfinder and rendered judgment for the plaintiff for $3197.80.

The defendant concedes that its agent failed to contact the plaintiff’s insurance agent and notify him of the purchase of the Chrysler and thus breached his agreement to do so. The basic claim made by the defendant, applicable to any theory of recovery, is that there was no evidence to support a finding that the failure to contact the insurance agent was the proximate cause of any damage to the plaintiff.

There was nothing in the record to support a finding that the defendant’s salesman was asked to do, or agreed to do, anything more than to notify the insurance agent to transfer the existing insurance policy, which did not include collision insurance, from the Ford to the Chrysler. The factfinder made no finding regarding the type of insurance that the salesman agreed to procure.

In order for a plaintiff to be entitled to an award of damages, the plaintiff must establish a causal relation between the defendant’s breach and the damages. Calig v. Schrank, 179 Conn. 283, 286, 426 A.2d 276 (1979); Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 22, 213 A.2d 449 (1965).

Since it is undisputed that the insurance coverage on the Ford was transferred to the Chrysler even though the defendant’s salesman did not contact the insurance agent, and since there was no evidence that the salesman ever was asked or agreed to obtain collision insurance for the plaintiff, it follows that any loss incurred by the plaintiff, because she did not have collision insurance, did not flow from any breach of duty by the defendant.

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 originally included a count making a negligence claim against the defendant operator and the defendant owner of the other car involved in the collision. This claim was withdrawn at the hearing before the factfinder. As used in this opinion, “defendant” refers to the named defendant only.


author: Hammer, J.

text:
    Lawrence R. Shuster v. Francis M. Buckley
    (2980)
    Sfallone, Hammer and Satter, Js.
    Argued September 19
    decision released November 12, 1985

      Lawrence R. Shuster, pro se, the appellant (plaintiff).

      Robert L. Wyld, with whom, on the brief, was Alan E. Lieberman, for the appellee (defendant).
   Hammer, J.

The plaintiff has taken this appeal, pro se, from the granting by the trial court of summary judgment for the defendant after its finding that there was no genuine issue of material fact that the plaintiffs action was barred by the three year statute of limitations for tort actions. See General Statutes § 52-577.

The plaintiff commenced this action for legal malpractice, pro se, on July 20,1979. On November 11,1980, he filed a revised complaint alleging that he had retained the defendant as his attorney on October 17, 1975, for the purpose of representing him in certain criminal matters which were then pending against him. The plaintiff alleged that the defendant was “negligent in his duties as an attorney” principally by his failure to file a motion to withdraw the plaintiffs guilty plea prior to sentencing. He further alleged that the defendant’s failure to perform the duties for which he had been retained resulted in the imposition of a sentence which included a period of incarceration followed by probation, causing him embarrassment, emotional distress and the disruption of his professional studies.

On May 11,1981, the defendant filed his answer and alleged by way of special defense that the action was barred by the statute of limitations. On July 31,1981, counsel entered an appearance for the plaintiff, and closed the pleadings by filing a reply dated April 19, 1982, in which he denied the defendant’s special defense. On May 3,1983, the defendant moved for summary judgment on the ground that the plaintiff’s action sounded in tort and was governed by the limitation period set forth in § 52-577 of the General Statutes.

The affidavit filed by the defendant in support of his motion included the following facts which are undisputed. The plaintiff, who was then represented by a public defender, pleaded guilty on October 17, 1975, to a charge of forgery in the second degree in violation of General Statutes § 53a-139 (a) (2). The defendant was thereafter retained by the plaintiff and represented him on December 19, 1975, at a hearing which resulted in the imposition of a sentence of one year, execution suspended after three months, and two years probation. The defendant made no attempt to withdraw his client’s guilty plea at any time prior to the date of sentencing or before the expiration of the statutory appeal period thereafter. The defendant’s motion to stay the execution of his commitment until July 21, 1976, was subsequently granted by the court. On December 16, 1977, the defendant filed a motion to withdraw the plaintiff’s guilty plea which was denied on May 19, 1978. The court also granted the defendant’s motion to withdraw as counsel for the plaintiff on that date.

The plaintiff’s counter-affidavit contradicts the defendant’s assertion that he was retained solely to represent him at the sentencing hearing. The plaintiff states that it was always his intention to withdraw his plea of guilty and to proceed to trial. He further states that the defendant repeatedly assured him after the date of sentencing that he would withdraw the guilty plea at some future date and that these assurances were the basis of his continuing representation of the plaintiff until May 19, 1978.

On November 2, 1983, the trial court granted the defendant’s motion for summary judgment on the ground that the complaint alleged negligence by the defendant rather than the breach of a contractual duty as claimed by the plaintiff, and that § 52-577 was therefore the applicable statute of limitations. The court also concluded that “the act or omission complained of” within the meaning of the statute occurred no later than December 19, 1975, the date of the imposition of sentence.

The trial court subsequently granted the plaintiffs motion for reargument and conducted a further hearing on January 11, 1984. On that date, the plaintiff claimed for the first time that he had filed a reply to the defendant’s special defense of the statute of limitations, pro se, in May, 1981, alleging fraudulent concealment. He also moved the court for leave to amend his complaint to allege a second count sounding in contract.

On January 18,1984, the court reaffirmed its earlier decision. It concluded that the pro se reply, claimed to have been filed in 1981, was not filed until after the court’s original ruling on the motion for summary judgment. It noted further that counsel for the plaintiff informed the court upon reargument that he had not been previously informed by his client that the plaintiff filed any such pleading or that he had expressed his intention to raise the issue of fraudulent concealment at any time. The court also sustained the defendant’s objection to the plaintiff’s motion to amend his complaint.

The plaintiff’s principal claims on appeal are that the trial court erred in concluding (1) that § 52-577 is the applicable statute of limitations and (2) that the act or omission complained of occurred no later than the sentencing date. He also argues that the court erred in denying his motion to amend and in rejecting his claim that he had properly pleaded fraudulent concealment in response to the defendant’s special defense prior to the closing of the pleadings and the court’s decision on the motion for summary judgment.

The trial court may grant summary judgment when the documents submitted in support of the defendant’s motion demonstrate that there is no genuine issue of material fact that the plaintiff’s suit is barred by the applicable statute of limitations. Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). Where there is no dispute as to the applicable statute of limitations, the only facts material to the trial court’s decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed. See Lopez v. United Nurseries, Inc., 3 Conn. App. 602, 605, 490 A.2d 1027 (1985).

A summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 14, 459 A.2d 115 (1983). Affidavits are not pleadings, however, and a plaintiff cannot, under the guise of fortifying the complaint, present an entirely new cause of action or expand the scope of his cause of action by means of a counter-affidavit. Carlini v. Curtiss-Wright Corporation, 71 N.J. Super. 101, 108, 176 A.2d 266 (App. Div. 1961). The issue must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment. See United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969); see generally 73 Am. Jur. 2d, Summary Judgment § 27.

Where the complaint alleges legal malpractice based on negligence, the tort statute of limitations applies. Nickerson v. Martin, 34 Conn. Sup. 22, 25, 374 A.2d 258 (1976); see also Klock v. Lehman Bros. Kuhn Loeb, Inc., 584 F. Sup. 210, 219 n.15 (S.D.N.Y. 1984). Where the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services. Family Savings and Loan, Inc. v. Ciccarello, 207 S.E.2d 157, 160 (W. Va. 1974). The plaintiffs revised complaint is couched in the language of tort rather than contract and we find no merit in his claims to the contrary.

The plaintiff also argues that his complaint alleges a course of continuing negligent conduct on the part of the defendant subsequent to the imposition of sentence. He attempts to distinguish his claim of negligence from those unsuccessfully made by the plaintiff in Robbins v. McGuinness, 178 Conn. 258, 261, 423 A.2d 897 (1979), where the court held that the defendant’s allegedly negligent title search was a completed act which occurred on or before the date of the closing of title.

In order to toll the statute of limitations by reason of continuing tortious conduct, the plaintiff must allege in his complaint or present facts which reasonably support an inference of a continuing breach of duty by the defendant. Bartha v. Waterbury House Wrecking Co., supra, 13. The negligent performance of a professional duty or the failure to perform it must be distinguished, however, from the consequences that result from such act or omission and which are claimed by way of damages. Anderson v. Sneed, 615 S.W.2d 898, 901 (Tex. Civ. App. 1981).

The plaintiff’s complaint alleges that the defendant’s duty was to do whatever was necessary for his vindication. His counter-affidavit asserts that he sought to withdraw his prior plea of guilty so that he could proceed to trial. These ends could be accomplished, if at all, only prior to the imposition of sentence. Where a defendant, upon the negligent advice of counsel, submits to sentencing, the statute of limitations begins to run from that date. Mullins v. Belcher, 284 S.E.2d 35 (Ga. 1981). There was no error in the court’s conclusion that the act or omission complained of occurred no later than the date on which the plaintiff was sentenced.

The plaintiff’s claim that the court erred in refusing to allow him to amend his complaint after the motion for summary judgment had been granted is also without merit. The trial court’s refusal to allow a belated amendment to a pleading in response to the filing of a motion for summary judgment by the adverse party will be sustained unless there is clear evidence of an abuse of discretion. Conference Center Ltd. v. TRC, 189 Conn. 212, 216-17, 455 A.2d 857 (1983). Where, as here, the motion was filed after the court had already ruled in favor of the defendant on its summary judgment motion, its action was clearly justified.

The plaintiff’s final claim relates to the pleading he allegedly filed by way of a reply to the defense of the statute of limitations. The general rule is that parties are bound by the procedural acts of their counsel. Varley v. Varley, 189 Conn. 490, 493, 457 A.2d 1065 (1983). The filing of the reply by his attorney may be assumed to have been authorized by the plaintiff. See Allen v. Nissley, 184 Conn. 539, 542-43, 440 A.2d 231 (1981). An attorney of record has implied authority to do everything necessary in the course of an action and his acts are binding upon the client. 7 Am. Jur. 2d, Attorneys at Law § 149.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] See. 52-577. action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The defendant has properly directed our attention to the plaintiffs failure to comply with the basic rules of appellate procedure and asks that we decline to review his claims because they have not been adequately presented. This apparent disregard of our rules would ordinarily justify such a summary disposition. See Verrastro v. Sivertsen, 188 Conn. 213, 218, 448 A.2d 1344 (1982). Nevertheless, in accordance with our liberal policy in cases where an appellant is not represented by counsel, we have carefully considered his claims to the extent that they are fairly presented, or at least, reasonably discernible, upon the record before us. See Vitale v. Crocco, 1 Conn. App. 184, 185, 469 A.2d 793 (1984).


text:
    Arthur F. Doyle et al. v. Robert J. Russell et al.
    (3389)
    Daly, Bieluch and Covello, Js.
    Argued September 18
    decision released November 12, 1985

      Sheldon A. Messinger, for the appellant (named plaintiff).

      Irwin E. Friedman, for the appellees (defendants).
   Daly, J.

The plaintiff, Arthur F. Doyle, instituted this action against the defendants, Robert J. Russell of Newtown, Connecticut, and Town and Country, Inc., a Pennsylvania Corporation, to recover for injuries and damages sustained as a result of a rear end motor vehicle accident. The court rendered summary judgment on the issue of liability alone and, thereafter, the parties went to trial on the issue of damages. The jury awarded the plaintiff $15,000, which amount the plaintiff considered inadequate. Consequently, the plaintiff appealed from the denial of his motion to set aside the verdict.

On appeal, the plaintiff claims that the trial court erred (1) in limiting the plaintiffs loss of earnings to one week, and (2) in not allowing the jury to consider costs incurred for possible future surgery to the plaintiffs nose.

“ ‘The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.’ ” Josephson v. Meyers, 180 Conn. 302, 312, 429 A.2d 877 (1980); Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983). In addition, litigants may always exercise their constitutional right to have issues of fact decided by a jury and not by the court. Cicero v. E.B.K., Inc., 166 Conn. 490, 494, 352 A.2d 309 (1974).

The plaintiff claims in the first issue that the court incorrectly limited the jury charge to allow the plaintiff’s lost earnings only for one week without consideration of future earning capacity. Paragraph eleven of the plaintiff’s substituted complaint, dated February 9, 1984, alleges: “As a further result of the injuries, Mr. Doyle has not been [able] to fully attend to his employment and has lost income thereby.”

“ ‘It is fundamental to our law that the right of a plaintiff to recover is limited to the allegations of his complaint.’ ” Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983); Montano v. Kin-Therm, Inc., 4 Conn. App. 187, 190-91, 493 A.2d 266 (1985). In his substituted complaint, the plaintiff failed to allege a loss of future earning capacity. Even if he had, the only evidence presented at trial was the loss of one week’s wages and, therefore, the court was not in error in limiting the jury’s consideration in this regard.

The remaining issue concerns whether the trial court correctly instructed the jury not to consider any claim for future medical expenses or surgery involving the plaintiff’s nose injury. In order to recover damages, a plaintiff must establish a causal relationship between the injury and the physical condition which he claims resulted from it. Bonner v. Winter, 175 Conn. 41, 48, 392 A.2d 436 (1978); Bates v. Carroll, 99 Conn. 677, 679, 122 A. 562 (1923). “This causal connection must rest upon more than surmise or conjecture.” Bonner v. Winter, supra; Witkowski v. Goldberg, 115 Conn. 693, 696, 163 A. 413 (1932). “A trier is not concerned with possibilities but with reasonable probabilities.” Budney v. Zalot, 168 Conn. 388, 362 A.2d 861 (1975).

The testimony or opinion of the medical expert must establish that “it was reasonably probable that the [condition in question] resulted from the injury” received in the accident and was therefore directly caused by that injury. (Emphasis added.) Witkowski v. Goldberg, supra. Such testimony, which takes into consideration all the facts and possible hypotheses, removes the veil of speculation from the case and is sufficient to present a question of fact to be determined by the trier. Id.

The report by Donald E. Buckley, a physician, on the plaintiff’s physical condition was introduced into evidence by the plaintiff and provided in part: “It is quite probable that [the plaintiff] also sustained some superior nasal septal injury at this point coupled with an old nasal septal deviation. Presently the patient is bothered by nasal stuffiness which is secondary to both the old septal deviation, which was aggravated with the nasal injury sustained in the automobile accident. Adequate resolution of the problem would require nasal septoplasty should it be a persistent source of patient discomfort.” (Emphasis added.)

According to Webster’s Third International Dictionary, “quite,” as used in Buckley’s report, means “completely,” “wholly,” “positively,” which is sufficient to remove the nose surgery issue from the realm of speculation and to present it as a question of fact to be determined by the jury. An expert witness, who is unwilling to state a conclusion with absolute certainty, is competent to express an opinion stated at least in terms of the probable and not merely the possible. Healy v. White, 173 Conn. 438, 443, 378 A.2d 540 (1977). “ ‘Thus ... a physician may testify as to the probable duration or consequences of an existing illness or condition.” Id. Although Buckley fails to state with absolute certainty that the condition of the nose was directly caused by the accident, his report indicates that a reasonably probable connection existed.

“ ‘As we have often stated, the test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury so that no injustice will be done.’ ” State v. Moss, 189 Conn. 364, 370, 456 A.2d 274 (1983); State v. Derrico, 181 Conn. 151, 171, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). “If a charge as a whole is sufficient to guide the jury in deciding the issues, error cannot be predicated on omission to charge on a specific point as to which no charge is requested. However, if the omitted matter is essential to a proper and complete consideration and decision of the case, failure to include it, although inadvertent, constitutes error.” Gross v. Boston, W. & N.Y. St. Ry. Co., 117 Conn. 589, 596, 169 A. 613 (1933).

In charging the jury, the trial court failed to allow the jury to consider evidence from medical reports addressing future surgeries and treatment of the plaintiffs nose. We find this omission essential to a proper determination of damages regarding the nose injury.

There is error in part, the judgment is affirmed with regard to the plaintiffs future earning capacity but set aside as to the amount of damages awarded for future medical treatment to the nose, and a new trial is ordered limited to that issue.

In this opinion the other judges concurred.

       The plaintiff Mary E. Pinaglia owned the automobile which was operated by the named plaintiff. Pinaglia subsequently withdrew her action against the defendants. As used in this opinion, “plaintiff” refers to the named plaintiff only.

       The preliminary statement of issues was never amended to include the first issue, but since it has not been objected to and has been briefed by both parties, we will consider it.

       The third claim of error which relates to the opportunity to see the request to charge was withdrawn at the time of argument.

       The trial court’s instructions to the jury stated in pertinent part: “You may not consider any claim for costs of surgery on the nose for the reason that there is no evidence before you that the surgery was performed or that it was reasonably medically necessary for injury sustained as a result of this accident.”


author: Spallone, J.

text:
    Howard Kinney v. Penelope Kinney
    (3596)
    Spallone, Daly and Hadden, Js.
    Argued September 17
    decision released November 19, 1985

      Penelope Kinney, pro se, the appellant (defendant).

      John A. Berman, with whom, on the brief, was John K. Currie, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the judgment of the trial court dissolving the marriage of the parties. The defendant claims that the trial court abused its discretion in denying her motion for a continuance, in determining the value of the plaintiff’s assets, in effecting a property settlement, and in making financial awards.

Regarding the defendant’s first claim of error, it is clear that a motion for continuance is addressed to the trial court’s discretion, and the court’s ruling on such a motion will not be disturbed unless a clear abuse of that discretion is shown. Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011 (1984), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1985). The reviewing court is especially hesitant to find such an abuse of discretion where, as here, the trial court has denied a motion for continuance made on the day of trial. Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983). “Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” Ridqeway v. Ridqeway, 180 Conn. 533, 538, 429 A.2d 801 (1980).

The record discloses that the action for dissolution was instituted in June, 1981. The original trial date was May 18, 1983. The defendant failed to appear on that date despite being subpoenaed by her own counsel. At that time, counsel for the defendant sought a continuance on the ground that the defendant was physically unable to attend the trial. The court granted the requested continuance. The case was rescheduled and ultimately tried on June 18,1984, thirteen months after its original trial date. Again the defendant failed to attend, and again her counsel moved for a continuance, the basis being that the defendant was not properly prepared. The court denied the defendant’s request, noting that there had been a considerable amount of discovery in the case, and that the case had been pending for almost three years. The court also noted the defendant’s previous reluctance to appear. Under these circumstances, we cannot say that the trial court abused its discretion in denying the defendant’s request for a continuance. See Thode v. Thode, supra; Leveston v. Leveston, 182 Conn. 19, 23-24, 437 A.2d 819 (1980).

The second issue to be addressed is whether the trial court abused its discretion in determining the value of the plaintiff’s assets. At trial, the sole evidence concerning the value of these assets consisted of the plaintiff’s own testimony. The court noted that the plaintiff was closely cross-examined, and concluded that there was no reason to question his veracity. The trier of facts was free to accept or reject any portion of the evidence of either party. Leo v. Leo, 197 Conn. 1, 6, 495 A.2d 704 (1985); Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Hirst v. Hirst, 2 Conn. App. 348, 350, 478 A.2d 618 (1984). Having only the plaintiff’s testimony to consider, and having no reason to question that testimony, we conclude that the trial court acted reasonably in accepting it and in using it to determine the value of the plaintiff’s assets. See Leo v. Leo, supra, 9.

The defendant’s remaining claims of error relate to the trial court’s decision concerning financial awards and its division of the parties’ property. Again, the dis-positive issue is whether the trial court abused its discretion or whether it could have reasonably concluded as it did. Timm v. Timm, 195 Conn. 202, 207, 487 A.2d 191 (1985); Carpenter v. Carpenter, 188 Conn. 736, 741-42, 453 A.2d 1151 (1982); Bisson v. Bisson, 5 Conn. App. 67, 69, 496 A.2d 543 (1985).

In determining such matters, the trial court must consider the length of the marriage and the causes of its dissolution, and the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs and future potentials of each of the parties. General Statutes §§ 46b-81 (c), 46b-82; see Levy v. Levy, 5 Conn. App. 185, 188, 497 A.2d 430 (1985). It is apparent from a review of the trial court’s memorandum of decision that the court weighed these factors in reaching its determination of the appropriate financial awards and division of property. We cannot, as an appellate court, vary the weight which the trial court placed upon such factors. Carpenter v. Carpenter, supra, 742. Moreover, it is not the function of this court to retry the facts. Leo v. Leo, supra, 4; Carpenter v. Carpenter, supra, 741-42; Hirst v. Hirst, supra, 350. We conclude that the decision of the trial court regarding the financial awards and division of property was reasonable and supported by the evidence presented. See Hirst v. Hirst, supra, 350-51.

There is no error.

In this opinion the other judges concurred.

       At this point, the defendant had retained new counsel.


text:
    Benjamin P. Trivelli v. Ruth A. Trivelli
    (4010)
    Spallone, Daly and Bieluch, Js.
    Argued October 8
    decision released November 19, 1985

      Susan W. Wolfson, with whom, on the brief, was Donna D. Morris, for the appellant-appellee (defendant).

      Richard A. Dice, with whom, on the brief, were Mary B. Ryan and Francis A. Miniter, for the appelleeappellant (plaintiff).
   Spallone, J.

The defendant has appealed from the trial court’s modification of an alimony award. The plaintiff has filed a cross appeal.

The defendant claims that the trial court erred (1) in finding that the defendant could earn more income, (2) in finding that the modification award meets the needs of the defendant, and (3) in failing to order adequate relief for the defendant.

The plaintiffs cross appeal contests the finding that the defendant suffered an unforeseen substantial change in circumstances, which supported an upward modification of alimony. The plaintiff also claims as error the court’s failure to find that the plaintiff suffered an unforeseen substantial change in his circumstances for the worse.

The marriage of the parties was dissolved in 1980. Since the dissolution, the defendant has filed four motions in the trial court seeking to open and modify the judgment. The first three motions were denied. After a contested hearing on the fourth, which was heard with the plaintiff’s motion for modification, the trial court opened the judgment and modified the alimony award upward from $300 per week to $335 per week. The court also ordered the plaintiff to pay for the defendant’s health insurance.

The defendant’s first and second claims of error, as well as both of the plaintiff’s claims of error, attack the factual findings of the trial court. Our review of the record and transcripts discloses that there was ample evidence to support the trial court’s findings.

“A factual finding may not be rejected on appeal merely because the reviewing judges personally disagree with the conclusion or would have found differently had they been sitting as the factfinder. ...” Lupien v. Lupien, 192 Conn. 443, 446, 472 A.2d 18 (1984), quoting Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in light of its observations of the demeanor, attitude and conduct of the witnesses and parties, which observations are so significant in assessing the circumstances, and which are not fully reflected in the printed record on appeal. Lupien v. Lupien, supra, 445; Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982); Stearns v. Stearns, 4 Conn. App. 323, 327, 494 A.2d 595 (1985).

The final claim of error for our consideration is the defendant’s contention that the trial court’s order increasing the alimony and ordering health insurance payments was inadequate and, therefore, an abuse of the trial court’s discretion.

“The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); Vaiuso v. Vaiuso, 2 Conn. App. 141, 147, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). For that reason, the trial court is afforded broad discretion in formulating awards in such actions. As a reviewing court, we are limited to determining whether the trial court abused its discretion in making those awards. Barnes v. Barnes, 190 Conn. 491, 494-95, 460 A.2d 1302 (1983); Vaiuso v. Vaiuso, supra. For us to conclude that the trial court abused its discretion, we must find that the court “either incorrectly applied the law or could not reasonably conclude as it did.” Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983); Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982). Having reviewed the record and the evidence in this case, we conclude that the award of the trial court was clearly within the parameters of its broad discretion and was in accordance with the law and the evidence.

There is no error on the appeal or on the cross appeal.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).


text:
    State of Connecticut v. Dominic Paniccia
    (3859)
    Spallone, Daly and Bieluch, Js.
    Argued October 8
    decision released November 19, 1985

      Richard A. Fuchs, for the appellant (defendant).

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Daly, J.

The defendant was arrested and charged with a violation of the election laws arising out of an illegal campaign contribution given in November, 1981, to the “Democrats for Paoletta.” From the denial of the defendant’s motions to dismiss the first count of the second substitute information charging him with the unlawful offering of a cash contribution in violation of General Statutes §§ 9-348k (9) and 9-348Z on the ground of double jeopardy, and the second count of conspiracy to commit the unlawful offering of a cash contribution in violation of General Statutes §§ 53a-48 and 9-348k (9) on the basis of prosecutorial vindictiveness, the defendant has appealed.

Robert Woehrle, a veteran politician, had been requested by John Ricci, a codefendant, to solicit a cash contribution from the defendant, Dominic Paniceia, Monroe democratic town chairman, for the Bridgeport mayoral campaign of republican Leonard Paoletta. Woehrle collected hundreds of cash contributions, many of which were in excess of $500. Further, the defendant had indicated to the state elections commission investigator that he was unaware that his contribution was illegal.

At the conclusion of the state’s case, the defendant moved for a judgment of acquittal which was granted as to count one. The defendant then rested without submitting any evidence. The trial court, West, J., then granted the defendant’s motion for a judgment of acquittal as to the third count.

On the second count, the defendant moved for a mistrial because of the prosecutor’s improper argument to the jury. In his summation to the jury, the defendant’s counsel questioned the absence of certain witnesses who were not presented by the state. In rebuttal argument, the prosecutor attempted to explain their absence and queried that if the absent witnesses would have been helpful to the defendant, undoubtedly the latter certainly would have produced them. Holding that the state’s comments were improper, the trial court granted the defendant’s request for a mistrial.

The state then filed a second substitute information containing as its first count the extant count previously mistried, that is, the charge of unlawfully offering a cash contribution in violation of General Statutes §§ 9-348k (9) and 9-348Z, plus a second count of conspiracy to commit the unlawful offering of a cash contribution in violation of General Statutes §§ 53a-48 and 9-348k (9). From the trial court’s denial of the defendant’s motions to dismiss the second substitute information which were based on the grounds of double jeopardy and prosecutorial vindictiveness, respectively, the defendant has appealed.

The defendant claims on appeal that the trial court erred in finding that the defendant’s second trial was not barred by double jeopardy principles since a mistrial was declared in the first case on the ground of prosecutorial misconduct. We disagree.

“We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy against a second trial. But we do hold that the the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Since the . . . trial court found . . . that the prosecutorial conduct culminating in the termination of the first trial in this case was not so intended by the prosecutor, that is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.” (Emphasis added.) Oregon v. Kennedy, 456 U.S. 667, 679, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982).

Where the error that prompted the motion for mistrial is “motivated by bad faith or undertaken to harass or prejudice” the defendant, or is intended to provoke the mistrial, then double jeopardy will bar a retrial. United States v. Dinitz, 424 U.S. 600, 611, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976). This was not the case here. The trial court herein found no bad faith on the part of the prosecutor in his remarks to the jury. Hence, there was no error in the court’s refusal to dismiss the case on the ground of double jeopardy. While some of the prosecutor’s remarks were objectionable, the court could correctly determine that the “statements which primarily emphasize the defendant’s failure to call third party witnesses, were not grounds for post conviction relief.” Weddell v. Meierhenry, 636 F.2d 211, 213-14 (8th Cir. 1980).

The trial court was correct in finding that the mistrial was not motivated by bad faith or deliberately provoked by the prosecution.

There is no error.

In this opinion the other judges concurred.

       In a substitute information filed before trial, the defendant was charged with one count of unlawfully receiving a cash contribution in excess of $50 in violation of General Statutes § 9-348k (9), with a second count of unlawfully offering a cash contribution in excess of $50, also in violation of General Statutes § 9-348k (9) and with a third count of unlawfully making a contribution to someone not authorized to receive it in violation of General Statutes § 9-348c.

       On April 4,1985, this court determined that the defendant’s appeal from the denial of his motion grounded on prosecutorial vindictiveness was not an appealable final judgment and, therefore, we will not consider that issue here.

       The defendant’s closing argument included several references to witnesses who did not testify. The transcripts contain the following defense counsel’s comments, excerpted in pertinent part: “Remember, all kinds of names that were mentioned on the stand. Ricci, Gulli and whomever else. They were not here. They never showed up. . . . Where is John Ricci? . . . also Mr. Mathias the investigator. Where is he? How come he is not here to testify?”

       The transcripts contain the following statements made by the state in its rebuttal argument: “Ladies and Gentlemen, [Attorney Fuchs] also talks about Mr. Mathias. Where is Mr. Mathias? Mr. Fuchs is a good lawyer and don’t you think, don’t you really think that if these people were going to help Dominic Paniceia, he would have called them?”

       The trial court, West, J., held in pertinent part: “It is my opinion that the statement to the jury was improper. Perhaps there [were] improper statements made by the defense but, the State’s statement was improper. I would not be able to erase it from the jury’s mind, regardless of what I might attempt to do in my charge. Therefore, I am going to declare a mistrial.”

       See footnote 2, supra.


author: Hull, J.

text:
    State of Connecticut v. Earl Daay
    (3280)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 1—
    decision released November 19, 1985

      Nicholas P. Cardwell, with whom was Kenneth J. McDonnell, for the appellant (defendant).

      Jeffrey L. Kline, assistant state’s attorney, for the appellee (plaintiff).
   Hull, J.

The defendant appeals from his conviction, after a jury trial, of possession of four or more ounces of marihuana in violation of General Statutes (Rev. to 1981) § 19-481 (b). The defendant claims that the trial court erred in denying his motion to suppress the marihuana which he alleges was illegally obtained. Since the defendant disavowed any interest in the suitcase in which the marihuana was discovered, we conclude that he had no reasonable expectation of privacy in it so as to enable him to challenge the search. Accordingly, we find no error.

There was testimony from which the court, in ruling on the defendant’s motion to suppress, could have found the following facts. On August 5,1982, the Connecticut state police received information which made them suspect that an individual would be landing at Bradley International Airport with narcotics in a suitcase. In response to this information, the police arranged to have a narcotics-detecting dog present to sniff the luggage from the appropriate flight. The dog showed interest in one suitcase, prompting the police to watch the baggage claim area. When the defendant picked up the suitcase, a trooper approached him. After the trooper identified himself, the defendant dropped the suitcase, shoved the officer and ran toward the exit. Another trooper apprehended the defendant and arrested him for interfering with an officer in violation of General Statutes § 53a-167a (a). The defendant at first admitted that he owned the suitcase, but then later repeatedly denied ownership. After the defendant disclaimed any interest in the suitcase, the police opened it without a warrant and discovered marihuana inside. The defendant was then charged with possession of marihuana.

Prior to trial, the defendant moved to suppress the marihuana claiming the police committed an unlawful search when they opened the suitcase without a warrant. The trial court denied the motion finding that the defendant had not shown that he had “standing” to challenge the search. The defendant was then convicted of both offenses.

A person may not object to the introduction of evidence resulting from an illegal search unless he first proves that he was a victim of that search. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980). One is a victim of a search when it violates his reasonable expectation of privacy in the area searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387, reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1978). Therefore, the first question that must be answered in any suppression case is whether the individual who seeks suppression had a reasonable expectation of privacy in the area searched. Id. “This inquiry . . . normally embraces two discrete questions. The first is whether the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy,’ [Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)] .... The second question is whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as “reasonable,” ’ id., at 361 . . . Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); State v. Zindros, 189 Conn. 228, 236, 456 A.2d 288, cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1983).

In this case, there was no evidence introduced to show that the defendant entertained a reasonable expectation of privacy in the area searched. The defendant, by dropping the suitcase to flee and by denying ownership of it, clearly disavowed any interest in it. Additionally, at the suppression hearing, the defendant asserted neither a property nor a possessory interest in the luggage even though, had he done so, his testimony could not have been used later to prove his guilt of the possession charge. Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). Ownership of the area searched is not a prerequisite for invoking fourth amendment protection. Katz v. United States, supra, 351. A party must, however, if he wishes to challenge the legality of a search, assert some interest sufficient to show that he actually expected privacy in the area searched and that this expectation was justifiable under the circumstances. State v. Altrui, 188 Conn. 161, 179, 448 A.2d 837 (1982). This the defendant did not do.

The defendant also claims that he should be allowed to challenge the search without making any preliminary showing of interest in the suitcase. In support of this argument, the defendant points out that, absent such a rule, the state is able to assert contradictory positions: that the defendant did not have enough interest in the suitcase to challenge the search, but did have enough interest in it to be convicted of possession of the contents. This, according to the defendant, gives the state an unfair advantage. This argument, plausible on its face, has been rejected by both the United States Supreme Court; United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); and the Connecticut Supreme Court; State v. Altrui, supra. A defendant is not entitled to challenge a search “on some automatic basis because of having been charged with a possessory crime.” (Footnote omitted.) State v. Altrui, supra, 179.

The party who seeks suppression has the burden of proving that he had a reasonable expectation of privacy in the area searched. Rawlings v. Kentucky, supra, 104. Since the defendant did not meet this burden, the trial court was correct in ruling that he could not challenge the search.

There is no error.

In this opinion the other judges concurred.

       The defendant was also convicted of interfering with an officer in violation of General Statutes § 53a-167a (a). He did not appeal his conviction on that offense.

       The defendant did not contest the validity of the initial seizure and detention of the suitcase.

       The trial court, the state and the defendant all phrased the issue as whether the defendant had “standing” to challenge the search. Both the United States Supreme Court; Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); and the Connecticut Supreme Court; State v. Morrill, 197 Conn. 507, 540-41, 498 A.2d 76 (1985); however, no longer conduct a separate inquiry into whether the defendant has “standing,” and focus instead on whether the defendant had a reasonable expectation of privacy in the area searched.


author: Borden, J.

text:
    State of Connecticut v. Darin Jennings
    (2991)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 1
    decision released November 19, 1985

      Preston Tisdale, assistant public defender, for the appellant (defendant).

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Borden, J.

After a trial to a jury, the defendant was found guilty of robbery in the third degree in violation of General Statutes § 53a-136. He appeals from the judgment of conviction claiming (1) that the denial of his midtrial discovery request amounts to a violation of due process of law, and (2) that the denial of his motion for mistrial, based on an allegedly suggestive identification procedure, constitutes reversible error. We find no error.

The jury reasonably could have found the following facts. The state’s sole witness was the victim of a purse snatching incident which had occurred as she entered her place of employment in Bridgeport. As she approached the building carrying her pocketbook, papers and books, she saw a black man enter the building and then exit after a short time. She walked by him to open the door but, to her surprise, the door was locked. As she searched her pocketbook for her keys, the man stated that he must have inadvertently locked the door. He then asked her if she knew a particular individual. Upon finding her keys, the victim opened the door and turned to respond to the man. At that moment, he pushed her, grabbed her pocketbook, and ran off.

Within ten to fifteen minutes after this incident, the victim provided a description of the perpetrator to the police. A week later, she viewed two to three hundred photographs but did not find the perpetrator’s photo in that array. Approximately one month later, she viewed a second photo array containing nine photographs, and selected the defendant’s photograph from that array. At trial, three months after the incident and two and one-half months after the out-of-court identification, the victim identified the defendant in court as the man who had robbed her. On direct examination, she testified that she had not seen the defendant since she selected his photograph. She was cross-examined extensively and confirmed that she was “as certain as [she] can be” that the defendant was the person who “mugged” her. She testified that the incident lasted approximately two to three minutes during which she stood within a few feet of the defendant and “had a very good view of him.” In addition, she testified that she had seen the defendant twice before the robbery. On both occasions, it was daytime and the defendant was jogging on the street where she works. She specifically recalled wondering why this man was jogging on a dead-end street and testified that she had gotten used to seeing him on the block.

I

Denial of Midtrial Discovery

Prior to trial, the defendant filed a motion for production, inspection, discovery and disclosure. The motion specifically requested “the court to permit him to inspect and/or copy all of the photographs which were shown in conjunction with the photograph of the defendant.” The trial court granted this motion and the state’s attorney delivered the nine-photo array to the defendant. During trial, the defendant learned that the victim had originally seen two to three hundred photographs. He then orally renewed his request for production and inspection of these photographs. See Practice Book § 734. The trial court denied this motion. On appeal, the defendant claims this ruling deprived him of due process of law. We disagree.

The victim testified that the defendant’s photograph was not among the array in question. In view of that uncontroverted testimony, the defendant’s claim, as we understand it, is that nonetheless the possibility that his photograph was among the two to three hundred photographs in question renders this evidence sufficiently exculpatory to be subject to disclosure as of right pursuant to Practice Book § 741.

This claim is sufficiently disposed of by State v. Green, 194 Conn. 258, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). There our Supreme Court noted that “the fact that a defendant has been denied access to evidence that may be only ‘arguably favorable’ does not mean that his due process rights have been violated.” Id., 265 n.6. “[A]s in this case, where there has been either a general or a specific [discovery] request, ‘[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ ” Orsini v. Manson, 5 Conn. App. 277, 280-81, 498 A.2d 114 (1985), quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). “After reviewing the record and the defendant’s broad claims of prejudice, we cannot conclude that his lack of [access to the first photo array seen by the victim] prejudiced him in any way or prevented him from obtaining a fair trial.” State v. Reddick, 197 Conn. 115, 122, 496 A.2d 466 (1985).

II

Denial of Motion for Mistrial

The defendant’s second claim of error pertains to the circumstances surrounding his entry into the courtroom before trial began. The defendant claims that he was brought into the courtroom in handcuffs by a sheriff at a time when the only other people in the room were the assistant state’s attorney and the victim. He claims that he was the only guarded black male in the courtroom at the time and that his attorney was not aware of this situation until after the first day of trial. He further claims that the assistant state’s attorney pointed him out to the victim during this “one on one” confrontation. He argues that this conduct under the circumstances was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. See State v. Soriano, 2 Conn. App. 127, 131, 476 A.2d 633 (1984).

At the start of the second day of trial, the defendant made a motion for mistrial which the trial court denied after hearing the arguments of counsel. The assistant state’s attorney denied in argument that he had pointed out the defendant to the victim. During his argument on the motion, the defendant requested an evidentiary hearing “for purposes of making an offer of proof.” This offer of proof was limited to a request by his counsel to put the defendant on the stand in order to testify to what had already been asserted in oral argument. He did not request that the victim be recalled either for purposes of his offer of proof or for further cross-examination. The trial court denied the defendant’s request, indicating that the identification evidence had already been presented to the jury in its entirety and that the appropriate time to make such a motion would have been prior to the admission of that evidence. On this appeal, the defendant presents a two-pronged claim: (1) that the trial court erred by refusing to hold a more extensive hearing than merely hearing the arguments of counsel; and (2) that the trial court erred by denying his motion for mistrial. We disagree.

At the outset, we note that the ultimate question on a motion for mistrial is whether some “conduct inside or outside the courtroom . . . resulted] in 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. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Jackson, 3 Conn. App. 132, 136, 485 A.2d 934 (1985). A motion for mistrial is directed to the trial court’s “broad discretion.” State v. DeMatteo, 186 Conn. 696, 704, 443 A.2d 915 (1982). Similarly, whether to hold an evidentiary hearing on a motion for mistrial is within that same broad discretion. See Moore v. Illinois, 434 U.S. 220, 230-31 n.5, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977). Our inquiry, therefore, is limited to determining whether under these circumstances the trial court abused its discretion in refusing to grant a full evidentiary hearing on the defendant’s motion for mistrial.

The situation presented in this case is distinguishable from the more familiar situation where a criminal defendant makes a colorable claim of impermissibly suggestive identification procedures prior to the admission of the identification evidence. See, e.g., State v. Oliver, 160 Conn. 85, 90, 273 A.2d 867 (1970), cert. denied, 402 U.S. 946, 91 S. Ct. 1637, 29 L. Ed. 2d 115 (1971). In those instances, it is “proper procedure” for the trial court to hold “a preliminary evidential hearing in the absence of the jury to determine whether the proffered in-court identification was based on or tainted by an unconstitutional confrontation.” State v. Duffen, 160 Conn. 77, 82, 273 A.2d 863 (1970), cert. denied, 402 U.S. 914, 91 S. Ct. 1397, 28 L. Ed. 2d 657 (1971); cf. Watkins v. Sowders, 449 U.S. 341, 101 S. Ct. 654, 66 L. Ed. 2d 549 (1981) (defendant not constitutionally entitled to such a hearing outside presence of jury).

In the present situation, however, the defendant sought a hearing in the context of a motion for mistrial after he had been identified by the victim in court and after all of the evidence pertaining to identification had been presented in its entirety to the jury. Thus, the defendant’s request for an evidentiary hearing was not made in the context of a challenge to the admissibility of the evidence of identification. Rather, the request was made in the context of a challenge to the overall fairness of his trial. See State v. TJbaldi, supra. Therefore, in order to establish that the trial court abused its discretion, the defendant must make a colorable claim that a “substantial likelihood of misidentification”; State v. Fullwood, 193 Conn. 238, 245, 476 A.2d 550 (1984); existed and he must also demonstrate the potential for “substantial and irreparable prejudice to [his] case.” Practice Book § 887. The defendant’s claim fails to cross both of these thresholds.

“Because reliability is the linchpin in determining the admissibility of identification evidence, we must consider whether under the totality of circumstances the identification was reliable.” State v. Nelson, 4 Conn. App. 514, 517, 495 A.2d 298 (1985). The factors established for purposes of testing the ultimate reliability of identification evidence include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Id., 517-18. Moreover, when additional procedural safeguards are requested, it is appropriate to consider as countervailing factors the avoidance of fishing expeditions and undue congestion of the criminal dockets. See State v. Dolphin, 195 Conn. 444, 457, 488 A.2d 812 (1985). Applying these factors, we conclude that the defendant has failed to establish a colorable claim of misidentification which would warrant additional proceedings.

Regarding the length of time involved, we cannot say that a period of one month between the date of the crime and the out-of-court identification, or two and one-half months between the out-of-court and in-court identifications, was significantly conducive to misidentification. Further, because the victim had seen the defendant twice before the date of the crime in daytime conditions when she was attentive, she was virtually free of doubt when she identified him in court. At trial, the defendant was granted the full opportunity to cross-examine the victim and thereby to test the reliability of her testimony. We cannot, therefore, presume on this appeal that the evidence as a whole was other than reliable. See State v. Nelson, supra.

Although a full evidentiary hearing would have provided more of a “factual backdrop” for purposes of appellate review; State v. Anderson, 178 Conn. 287, 290, 422 A.2d 323 (1979); and might, therefore, be warranted under other circumstances, that is not the case here. This entire trial involved only one witness’ testimony, and the record adequately reflects for purposes of appeal the allegations of the defendant, the denial of those allegations by the assistant state’s attorney, and the contradictory testimony and extensive cross-examination of the identification witness. The defendant made no effort to bring that witness back to the stand. There is no indication that the defendant’s motion was made for purposes of delay, or that he was on a “fishing expedition . . . . ” State v. Dolphin, supra. The record as a whole, however, simply does not indicate a significant basis for a further hearing on the issue. Cf. State v. Castonguay, 194 Conn. 416, 436, 481 A.2d 56 (1984) (remanded for limited hearing). “It is enough to say that the trial judge is the arbiter of the many circumstances which may arise during a trial in which his function is to assure a fair and just outcome.” State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970). Accordingly, we find no error as to the first prong of the defendant’s argument.

With regard to the second prong of the defendant’s argument, we are unable to conclude that a mistrial was warranted. To the contrary, after carefully reviewing the record, we conclude that the defendant has not sufficiently demonstrated that degree of “substantial and irreparable prejudice”; Practice Book § 887; to justify a mistrial. Accordingly, we find no abuse of discretion by the trial court under the particular facts and circumstances of this case.

There is no error.

In this opinion the other judges concurred.

       In addition to the assistant state’s attorney’s denial of this allegation, the record reflects the request of the assistant state’s attorney for the removal of the defendant’s handcuffs prior to the jury’s entry into the courtroom.

       Although the defendant objected to the admissibility of the photographs on the basis of inconsistencies in the victim’s description and inadequacies in the number of groupings used by the police; cf. State v. Panella, 168 Conn. 532, 538-39, 362 A.2d 953 (1975); he has not briefed this issue. Since the defendant has chosen to brief only the issue of the denial of his motion for mistrial, other claims which might fit under the broad rubric of impermissible identification procedures are deemed abandoned. See State v. Hinton, 196 Conn. 289, 291 n.2, 493 A.2d 836 (1985).