author: O’Connell, J.

text:
    Pleasant Valley Neighborhood Association et al. v. Planning and Zoning Commission of the Town of South Windsor et al.
    (5526)
    (5536)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued December 2, 1987—
    decision released July 5, 1988

      Ralph G. Elliot, for the appellant (named defendant).

      Edwin A. Lassman, with whom, on the brief, was Yolanda Sefcik, for the appellant (defendant Melvin Simon & Company et al.).

      Thomas P. Byrne, for the appellee (named plaintiff et al.).

      Jo Ann Paul, with whom, on the brief, was Bruce S. Beck, for the appellees (Rose Pastula et al.).
   O’Connell, J.

This combined appeal arises from a judgment of the trial court which overturned the defendant planning and zoning commission’s grant of a zone change application. The application was submitted by the defendant developers as a precedent to the construction of the proposed Winchester Mall on the Manchester-South Windsor town line. The defendants claim that the trial court erred (1) in concluding that the commission had violated the uniformity requirement of General Statutes § 8-2 by requiring a buffer strip between commercial and residential zones in this instance and not in other similar situations, and (2) in concluding that the implementation of only three of nine proposed road improvements was necessary as a condition of the zone change application. We find error.

The following facts are relevant to the resolution of this appeal. On September 11, 1984, the defendant developers, Melvin Simon & Co., Richard D. Bronson, Allan Hutensky and Bernard G. Martin (hereafter developers) applied to the South Windsor planning and zoning commission (hereafter commission) for a zone change for a fifty-seven acre parcel located on the South Windsor-Manchester town line. After proper publication of notice of hearing, extensive public hearings on the application were held on November 13 through 15 and on December 11, 1984. On February 5, 1985, the commission granted the application, and the zoning classification was changed from Rural Residential to Designed Commercial. The plaintiffs Pleasant Valley Neighborhood Association, an unincorporated association, and named individual resident taxpayers (hereinafter plaintiffs) appealed to the trial court seeking a reversal of the commission’s grant of the zone change.

On July 23,1986, the trial court overturned the commission’s decision, concluding (1) that the commission’s action was arbitrary, illegal and an abuse of discretion, as it allowed the zone change subject to certain conditions, and (2) that the commission’s conclusion that only three of nine proposed road improvements were required, was not supported by the record. We granted the defendant commission’s and defendant developers’ petitions for certification to appeal.

I

The defendants’ first claim that the trial court erred in concluding that “the zone change violates the uniformity requirement of [General Statutes] Section 8-2, in that it requires a buffer strip between the commercial zone and the residential zone in one specific instance and not in other instances when zones of these two classifications abut.” The so-called “uniformity requirement” set forth in General Statutes § 8-2 provides in pertinent part: “All [local zoning] regulations shall be uniform for each class or kind of buildings, structure or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from . . . whichever commission or board the regulations may . . . designate, subject to standards, set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values.” The defendants contend that because the regulations governing the type of zone change at issue in the present case require the creation of buffer zones between all designed commercial and residential districts, the implementation of such conditions does not violate the uniformity requirements of General Statutes § 8-2 but, to the contrary, can only further the uniformity of regulation in the town. We find this argument persuasive.

We note at the outset of our analysis, that a reviewing court’s discretion in examining a zoning body’s actions in ruling upon a zone change application is very limited. “When formulating zoning regulations, including the establishment of particular zones and the designation thereof a local zoning authority is acting in its legislative capacity.” (Emphasis added.) Coastal Suburban Builders, Inc. v. Planning & Zoning Commission, 2 Conn. App. 489, 492, 479 A.2d 1239 (1984). “We have said on many occasions that courts cannot substitute their judgment for the wide and liberal discretion vested in local zoning authorities when they have acted within their prescribed legislative powers. Courts must not disturb the decision of a zoning commission unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally. First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 540-41, 338 A.2d 490 (1973).” Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983). In addition, when the zoning body had made known on the record the reasons for its actions, “ ‘the reviewing court ought only to determine whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.’ ” Fedorich v. Zoning Board of Appeals, 178 Conn. 610, 613, 424 A.2d 289 (1979), quoting First Hartford Realty Corporation v. Plan & Zoning Commission, supra, 543. Therefore, the action of the zoning body must be sustained by the reviewing court “if even one of the stated reasons is sufficient to support it.” Burnham v. Planning & Zoning Commission, supra, 265; Central Bank for Savings v. Planning & Zoning Commission, 13 Conn. App. 448, 458, 537 A.2d 510 (1988).

Section 4.12.4.Í of the South Windsor zoning regulations provides in pertinent part that the general plan of development submitted as part of the designed commercial zone change application “[s]hall provide buffer areas ... no less than fifty feet in width from any streetline or adjacent business or industrial zone. A buffer no less than one hundred (100) feet in width shall be provided along any residential zone boundary.” The plaintiffs argue that requiring buffer zones in a designed commercial zone while not requiring them in other zoning districts violates the uniformity provisions of General Statutes § 8-2. Because the statutory language contained in § 8-2 only requires intradistrict uniformity, and not uniformity among all districts in a given town; General Statutes § 8-2; and because the designed commercial zone itself constitutes a zoning district, we conclude that the buffer areas mandated as conditions of designed commercial zone approval do not violate the uniformity provisions of General Statutes § 8-2.

The designed commercial zone is a type of zoning district which is sometimes referred to as a “floating zone.” This somewhat ethereal sounding moniker derives from the fact that the zoning district, unlike a district established in traditional Euclidean zoning, is not tied to any particular physical boundaries, but rather conceptually “floats” above the town, until an applicant demonstrates that the detailed conditions pertaining to establishment of the zone can be met. If the zoning body, acting in its legislative capacity, determines that all relevant criteria and conditions have been or can be met, the zone change is approved, and the zone “floats” down upon the designated area to establish physical boundaries. Sheridan v. Planning Board, 159 Conn. 1, 16, 266 A.2d 396 (1969); Nick v. Planning & Zoning Commission, 6 Conn. App. 110, 113, 503 A.2d 620 (1986); T. Tondro, Connecticut Land Use Regulation § III, c. 5, p. 37. Our Supreme Court has long recognized the legality of this flexible zoning device. See Sheridan v. Planning Board, supra, 17 and cases cited therein.

General Statutes § 8-2 does not impinge upon a zoning body’s discretion to determine what conditions must be met within a particular zone. “The requirement of uniformity imposed by § 8-2 of the General Statutes does not deprive the commission of all discretion but, on the contrary, permits it, within reasonable limits, to determine whether substantial differences, germane to the subject and purposes of the ordinance, exist to justify a given zoning classification.” Lavitt v. Pierre, 152 Conn. 66, 75, 203 A.2d 289 (1964). By requiring a one hundred foot buffer within any designed commercial district wherever it abuts a residential zone boundary, the town zoning regulations establish a sufficient guaranty of intradistrict uniformity which satisfies the requirement of General Statutes § 8-2.

The plaintiffs reliance upon our Supreme Court’s decision in Veseskis v. Bristol Zoning Commission, 168 Conn. 358, 362 A.2d 538 (1975), and this court’s own ruling in Bartsch v. Planning & Zoning Commission, 6 Conn. App. 686, 506 A.2d 1093 (1986), is misplaced. In Veseskis, the Supreme Court, in a per curiam decision, held: “To require by zoning regulation a buffer strip between one zone of a particular classification and another zone of a different class in one specific instance and not in other instances when zones of these two zone classifications abut clearly violates the statutory uniformity requirement . . . .” (Emphasis added.) Veseskis v. Bristol Zoning Commission, supra, 360. In Bartsch, this court struck down the grant of a similar zone change application, when a condition of application approval was the creation of a buffer area between the borders of the abutting properties.

These cases can be readily distinguished from the present case because, unlike the present case, the zoning regulations at issue failed to insure consistency of application of the buffer area condition. Unlike the scenario described in Veseskis, pursuant to Section 4.12.4.Í of the South Windsor zoning regulations, every designed commercial zoning district established within the town will have to provide buffer areas of one hundred feet in width along all residential boundaries. The zoning district at issue in Veseskis was a residence C zone, apparently similar in all ways, except the contested buffer condition, to other residence C zones in the town. In the present case, however, the proposed zoning district, a designed commercial zone, is not merely a variety of commercial zone, but is, rather a completely different zoning district. See South Windsor Zoning Regulations § 2.1. Thus, because each designed commercial zone is a separate and distinct zoning district, and because each designed commercial zone requires such buffers as conditions of approval, the holding of the court in Veseskis is inapplicable. In addition, unlike the situation presented in Bartsch, where the zoning commission attempted to enforce a “self-adopted unwritten ‘policy’ [which] exists at its [the commission’s] pleasure and discretion”; Bartsch v. Planning & Zoning Commission, supra, 691; the implementation of the buffer area requirement at issue in the present case is established in the town’s zoning regulations. These precedents are therefore inapposite and unpersuasive.

Applying the standard of review set forth at the onset of our analysis, we conclude that the defendant zoning commission did not act arbitrarily or illegally in requiring a buffer area as a condition of the zone change at issue, and also that the grounds for its decision are reasonably supported by the record. Burnham v. Planning & Zoning Commission, supra 266; Fedorich v. Zoning Board of Appeals, supra; 613.

II

The defendants’ second claim of error alleges that the court erred in concluding that the record did not support the commission’s conclusion that only three of nine proposed road improvements were required to decrease the traffic impact which would result from the mall. We agree.

The record in the present case can be best characterized as expansive. Four nights of public hearings produced 350 pages of transcribed testimony from expert witnesses presented by both the plaintiffs and the defendants, from town employees, from consultants hired by the town to examine the application at issue, and from members of the general public. No claim is made that the commission’s decision was uninformed.

In its memorandum, the trial court stated with regard to this issue that “the evidence in the record does not support the Commission’s conclusion that only improvements seven through nine are necessary to decrease the traffic impact which would result from the mall. The testimony and reports clearly show that some or all of the other improvements are necessary prerequisites to the opening of a shopping mall in the South Windsor area. The portions of the record cited by defendants do not reasonably support the Commission’s conclusion.” (Citations omitted.)

As stated in our discussion of the defendants’ first claim of error, a reviewing court’s authority in examining a zoning body’s decision made in its legislative capacity is extremely limited. In such circumstances it is not the function of the court to retry the case. “Conclusions reached by the commissioner must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached.” Central Bank for Savings v. Planning & Zoning Commission, supra, 451-52, quoting Burnham v. Planning & Zoning Commission, supra.

In its decision, the commission stated that it believed that while “improvements Nos. 1-5 are needed to meet the future traffic growth requirement of the town whether or not the instant application is approved, it finds that these improvements do not need to be in place prior to the opening of the contemplated mall; and therefore their construction is not made a condition of the opening of the mall.”

Our review of the record indicates that although the testimony and evidence was conflicting with respect to the impact of the proposed construction and the ability of the conditions adopted to alleviate the resultant traffic congestion, we hold that the conclusions reached by the commission are reasonably supported by the record and must be upheld. The trial court erred in determining that the record did not support the commission’s conclusion and in substituting its own opinion for that of the commission.

There is error, the judgment is set aside and the case is remanded with direction to render judgment upholding the decision of the defendant commission.

In this opinion the other judges concurred.

       It is not argued by any of the parties that the designed commercial zone does not constitute a zoning district, as referenced in General Statutes § 8-2. Section 2 of the South Windsor zoning regulations entitled “Districts” provides: “For the purpose of these regulations, the town of South Windsor is hereby divided into zoning districts regulating the use of land and buildings, the height and bulk of buildings, and the areas of lots, yards, courts and open spaces as follows and as provided hereafter . . . [2.1] Designation . . . DC ... Principal Use . . . Designed Commercial.” See also Sheridan v. Planning Board, 159 Conn. 1, 16, 266 A.2d 396 (1969); T. Tondro, Connecticut Land Use Regulation § III, c. 5, p. 37.


source: Caselaw Access Project

license: Public Domain

text:
    Van Dyck Printing Company v. Johnson Graphics, Ltd., et al.
    (5746)
    Spallone, Bieluch and O’Connell, Js.
    Argued March 17—
    decision released July 5, 1988

      William J. Nulsen, for the appellant (defendant Vermont Castings, Inc.).

      Jonathan Katz, for the appellee (plaintiff).
   O’Connell, J.

The defendant Vermont Castings, Inc., appeals from a plaintiff’s verdict and judgment thereon in a breach of contract action. The defendant raises five claims of error: one directed to the form and content of special jury interrogatories, and the remaining four directed to the trial court’s refusal to direct a verdict in its favor on each of the plaintiff’s four separate theories of law. We find no error.

The jury could reasonably have found the following facts. The plaintiff corporation contracted to print 200,000 pieces of promotional and operational material for the defendant. The plaintiff delivered the material but was not paid therefor.

At the conclusion of the evidence, both counsel stipulated to eight special interrogatories to be submitted to the jury. The defendant was apparently satisfied with these interrogatories and took no exception thereto. Following its deliberations, the jury answered the interrogatories and returned a verdict in favor of the plaintiff for $52,861.71. The court subsequently awarded interest in the amount of $32,707.71, and attorney’s fees in the amount of $350. The defendant did not move to set the verdict aside.

The number and form of special interrogatories to be submitted to the jury rests in the discretion of the trial court. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 530-31, 457 A.2d 656 (1983). In order to raise a claim of error in the form or content of special interrogatories, the appellant must preserve a claim by objection and exception. West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 317, 541 A.2d 858 (1988); Freedman v. New York, N. H. & H. R. Co., 81 Conn. 601, 611, 71 A. 901 (1909). “In the absence of objection the [defendant] may be presumed to have assented to the submission of these questions.” Freedman v. New York, N. H. & H. R. Co., supra. Accordingly, we will not review the defendant’s claim of error pertaining to the jury interrogatories.

Nor do we afford review to the claims of error relating to the trial court’s refusal to direct a verdict in favor of the defendant. The defendant did not move to set aside the verdict on the grounds of this claimed error. It is fundamental appellate law that in the absence of a motion to set aside the verdict, the reviewing court’s scope of review is limited to a plain error standard. Housing Authority v. Pine Associates, Inc., 13 Conn. App. 489, 492, 537 A.2d 526 (1988); see Practice Book § 4185. “Review under the plain error doctrine ‘is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” Housing Authority v. Pine Associates, Inc., supra, 492-93, quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988). We note, in passing, the policy that directed verdicts are not favored by the courts. Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979); Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984). Upon examination of the record, we conclude that the defendant has failed to show plain error.

There is no error.

In this opinion the other judges concurred.

       Vermont Castings, Inc., is the only defendant that has appealed; accordingly, as used in this opinion, the term defendant refers solely to Vermont Castings, Inc.

       The legal theories advanced by the plaintiff were (1) agency in fact, (2) agency by apparent authority, (3) unjust enrichment, and (4) ratification.

       The defendant also argues that its stipulation as to the form and content of the interrogatories does not deprive it of the right to object and except thereto. We do not agree. See State v. Shipman, 195 Conn. 160, 165, 486 A.2d 1130 (1985) (discussing a litigant’s right to claim error in a jury charge given at his request).


author: Foti, J.

text:
    State of Connecticut v. Shelton Smith
    (5792)
    Borden, Spallone and Foti, Js.
    Argued April 6—
    decision released July 5, 1988

      Brian M. 0 ’Connell, with whom were Steven F. Meo and, on the brief, Aaron P. Slitt, for the appellant (defendant).

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, was David Gold, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, after a jury trial, of larceny in the third degree, as an accessory, in violation of General Statutes §§ 53a-8 and 53a-124 (a) (1), and conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 and 53a-124 (a) (1). The defendant claims on appeal that the trial court erred (1) in denying his motion for judgment of acquittal, and (2) in refusing to suppress the statement of a codefendant. We find no error.

From the evidence presented, the jury could reasonably have found the following facts. On April 23,1986, at approximately 4 p.m., the defendant and three others, two men, Joseph Lemarr and an unidentified male wearing a white jacket, and a woman, Crystal Gaston, entered the Concord 9 Jewelry Store located at 848 Chapel Street in New Haven. There were no customers in the store at the time. Once inside the store, the group of four separated and began browsing, but continued to consult with each other while they looked at jewelry. The defendant, who wore a long black overcoat, and the unidentified male each tried on a $6500 gold chain and medallion, placing it on each other’s neck, while they bargained with the owner about the cost. The owner thought the two were either close friends or brothers. During this time, Gaston inquired about the price of items located in various display cases. No purchase was made by any of the four. They were subsequently seen together conversing and browsing in a nearby jewelry shop. Approximately one half hour after they had left the Concord 9 Jewelry Store, the defendant and his three companions returned; there were still no customers in the store. The defendant asked to see a medallion from the window. The unidentified male manipulated a display case lock and complained to Lemarr, “Man, I can’t get it.” Lemarr then began shaking windows of the display case. The defendant and the owner began bargaining over the price of another item when the owner decided not to do business with him and asked him to leave. The defendant stationed himself in the store’s foyer. Lemarr and Gaston then distracted the owner by arguing with her over the price of various items of jewelry. While they were arguing with the owner, the unidentified male grabbed an entire tray of jewelry, stuffed the jewelry in his coat and ran from the store. That jewelry was valued at approximately $4000.

Although all four had exited the store, the defendant was physically restrained outside of the store by a security guard who had observed the defendant push one of the owners out of his way in an attempt to run. The defendant was searched and found to be in possession of $1000 in cash and a message beeper. His long coat had rips in its lining which could have been used to conceal stolen items. Shortly thereafter, Gaston and Lemarr were apprehended and returned to the scene by the police. Neither had any of the stolen jewelry. Both the defendant and Gaston denied involvement in the theft and knowledge of the thief’s identity. Both the defendant and Gaston stated that they had arrived in New Haven by bus that morning from Hartford with Lemarr.

The defendant contends that the trial court’s denial of his motion for a judgment of acquittal violated his right of due process because the state had failed to sustain its constitutionally mandated burden of proof. The state must prove each and every material element of the crime charged beyond a reasonable doubt. State v. Green, 194 Conn. 258, 274, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). The defendant contends that there was insufficient evidence on both the count of conspiracy, and the count of aiding or abetting for the jury to find him guilty as charged.

“The standard that applies when a jury verdict is challenged for insufficiency of the evidence is well set-tied. The issue is whether the jury could reasonably have concluded, upon the facts established and inferences reasonably drawn therefrom, that the defendant was guilty beyond a reasonable doubt. State v. Baskins, 12 Conn. App. 313, 316, 530 A.2d 663 (1987). ‘The evidence must be given a construction most favorable to sustaining the jury’s verdict.’ State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985); see State v. Monk, 198 Conn. 430, 432, 503 A.2d 591 (1986). Every element of the crime charged must be proved and, although it is in the province of the jury to draw logical inferences from the facts proven, they may not resort to speculation.” State v. Robinson, 14 Conn. App. 40, 42, 539 A.2d 606 (1988). “In reaching conclusions from the totality of the evidence presented; State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986); the jury is permitted to apply its own experience and common sense. See State v. Sullivan, 11 Conn. App. 80, 96, 525 A.2d 1353 (1987); State v. Perez, [10 Conn. App. 279, 291, 523 A.2d 508 (1987)].” State v. Johnson, 14 Conn. App. 586, 597, 543 A.2d 740 (1988).

“To establish the crime of conspiracy under General Statutes § 53a-48 , the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982).” State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). “The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are ‘knowingly engaged in a mutual plan to do a forbidden act.’ State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153 [1970].” State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975). Further, the state must show an intent on the part of the accused that conduct constituting a crime be performed. “A conviction of the crime of conspiracy can be based on circumstantial evidence, for conspiracies, by their very nature, are formed in secret and only rarely can be proved otherwise than by circumstantial evidence. State v. Holmes, supra, 150.” State v. Ortiz, supra.

We agree with the state that the evidence was sufficient to prove that the defendant was a criminal participant in the conspiracy to commit larceny in the third degree, and that there was sufficient evidence to establish that the defendant intended to commit that crime. State v. Sober, 166 Conn. 81, 93, 347 A.2d 61 (1974). The defendant was not merely present at the scene, he came with the principal to the scene of the theft, stayed with him while they both examined jewelry in the store, assisted in attempting to distract the store owners, left with his associates, stayed with them at a nearby jewelry store, returned with that same group, again attempted to distract the store owners, left the store moments before the actual theft, and attempted to flee the scene of the crime with his three companions.

It is for the jury to decide what reasonable inferences should be properly drawn from the evidence presented. State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984). Here, the jury reasonably could have concluded from the evidence in this case that the defendant was engaged in a criminal conspiracy to commit theft.

The defendant claims that his conviction as an accessory to larceny cannot stand because the state failed to prove that he was more than an inactive companion of the perpetrator. We cannot agree. General Statutes § 53a-8 provides that a person who, with the intent required to commit a crime, does an act for the purpose of assisting another in the commission of the crime is as guilty as the principal actor. State v. McCalpine, 190 Conn. 822, 833-34, 463 A.2d 545 (1983); State v. Harrison, 178 Conn. 689, 694-95, 425 A.2d 111 (1979). “Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it.” State v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967). An accessory must have both the intent to help the principal and the intent to commit the crime. State v. Vincent, 194 Conn. 198, 207, 479 A.2d 237 (1984).

The evidence presented here was sufficient for the jury to find more than mere presence, passive acquiescence or innocent acts. The evidence was sufficient to allow the jury to infer that the defendant knowingly and intentionally participated in this criminal behavior. “It is the trier’s function not only to decide credibility but also to determine the facts and from those facts draw logical and reasonable inferences. State v. Wilson, 178 Conn. 427, 434, 423 A.2d 72 (1979); State v. Ortiz, [supra, 646].” State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983). We cannot say that the inferences leading to the defendant’s convictions were illogical or unreasonable.

The defendant next challenges the trial court’s decision to allow the introduction of a statement made by the codefendant Gaston. In that statement, Gaston denied knowing the identity of the male in the white jacket, but she did state that the defendant and Lemarr had come to New Haven with her that morning by bus from Hartford. The defendant gave an identical statement to the investigating officers, which was introduced into evidence.

The trial court refused the defendant’s request for a hearing in limine, concluding that the statement by Gaston, although slightly inculpatory, was nevertheless probative and admissible, and that it was not made during the course of the conspiracy’ After the investigating officer testified regarding the contents of the statement, the court instructed the jury that Gaston’s statement could not be used as evidence of the defendant’s guilt.

The defendant contends that the admission of Gaston’s statement denied him his constitutional right to confront witnesses against him. A defendant’s right to confront witnesses against him is guaranteed by both the sixth amendment to the constitution of the United States and by article first, § 8, of the Connecticut constitution. The confrontation clause is satisfied when the defense is given the opportunity to conduct full and fair cross-examination. Delaware v. Fensterer, 474 U.S. 15, 21-22, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985); State v. Yednock, 14 Conn. App. 333, 339, 541 A.2d 887 (1988).

The defendant relies on Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), for his claim that he was denied his right to confront witnesses against him. In Bruton, the United States Supreme Court was faced with a codefendant’s confession which specifically implicated the defendant. In finding the confession inadmissible, the court concluded: “[Bjecause of the substantial risk that the jury, despite instruction to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of [the codefendant’s] confession in this joint trial violated petitioner’s right of cross-examination served by the Confrontation Clause of the Sixth Amendment.” Id., 126.

More recently, the question of an interlocking confession was considered in Cruz v. New York, 481 U.S. 186, 107 S. Ct. 1715, 95 L. Ed. 2d 162 (1987). The United States Supreme Court rejected the argument that interlocking confessions are not within the Bruton rule, stating: “[Wjhere a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant . . . the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him. Of course, the defendant’s confession may be considered at trial in assessing whether this codefendant’s statements are supported by sufficient ‘indicia of reliability’ to be directly admissible against him (assuming the ‘unavailability’ of the codefendant) despite the lack of opportunity for cross-examination . . . and may be considered on appeal in assessing whether any Confrontation Clause violation was harmless . . . .” (Citations omitted.) Id., 193-94.

The state argues that Gaston’s statement was not a “confession” as that term was used by the Bruton court and its admissibility is, therefore, controlled by Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987). In Richardson, the prosecution introduced a redacted “confession” by the codefendant. As in this case, the “confession” in Richardson did not, on its face, incriminate the defendant. The court distinguished its holding in Bruton: “In Bruton, the codefendant’s confession ‘expressly implicated]’ the defendant as his accomplice . . . thus at the time that confession was introduced there was not the slightest doubt that it would prove ‘powerfully incriminating.’ . . . By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial . . . .” Richardson v. Marsh, supra, 208. “Ordinarily a witness whose testimony is introduced at a joint trial is not considered a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant. This accords with the almost invariable assumption of the law that jurors follow their instructions.” Id., 206.

In this case, Gaston’s statement only indirectly implicated the defendant, if at all, and was only slightly incriminating, if at all. It was not “powerfully incriminating” as in Bruton and Cruz. We, therefore, conclude that the facts of this case fall squarely within the reasoning of Richardson, and that there is no reason to presume that the jurors disregarded the repeated instructions; see State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986); State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); that Gaston’s statement was not to be considered against the defendant in this case.

There is no error.

In this opinion the other judges concurred.


author: Stoughton, J.

text:
    Joseph Girgenti v. Cali-Con, Inc.
    (5786)
    Bieluch, O’Connell and Stoughton, Js.

      Argued March 16—
    decision released July 12, 1988

      Frazier G. Scott, with whom, on the brief, was Roña C. Lynch, for the appellant-appellee (defendant).

      Philip M. Block, for the appellee-appellant (plaintiff).
   Stoughton, J.

The defendant has appealed from a judgment for the plaintiff in a wrongful discharge action rendered after trial to the court. The plaintiff has cross appealed from the granting of the defendant’s motion for summary judgment on the second count of the amended complaint.

The defendant claims that the trial court erred (1) in denying the defendant’s motion for summary judgment, (2) in basing its conclusion on facts not pleaded, (3) in concluding that the plaintiff was terminated because he took precautions for the purpose of public safety, (4) in concluding that the plaintiff’s termination was violative of public policy, (5) in concluding that the plaintiff’s termination constituted the tort of wrongful discharge, and (6) in finding that the plaintiff’s damages amounted to $40,000. We find no error on either the appeal or cross appeal.

The trial court found the following facts and reached the following conclusions. On September 10,1983, the plaintiff was a projectionist at the defendant’s theatre and had been so employed for at least one year prior to that date. His employment was subject to a contract between the defendant and Local 350 of the International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada (hereinafter referred to as the union). On that day, the plaintiff was operating the theatre alone, running the projector, selling tickets and selling merchandise at the refreshment stand. As he was selling tickets while the movie was running, he heard sounds from the projection booth which caused him to believe that there was a burglar within. The plaintiff telephoned the police and told them that someone was in the projection booth. When the police officers arrived, however, they refused to go into the theatre unless the plaintiff turned on the lights. The plaintiff called Andrew Rossetti, one of the officers of the defendant corporation, and Rossetti told the plaintiff that it was his responsibility to handle the situation. The plaintiff turned on the lights, but the police did not investigate further. Subsequently the plaintiff was fired.

The trial court found that the plaintiff had been discharged because he had complained to the defendant and to the union that he had been forced to work in the theatre alone, and because he turned on the lights and thus caused the theatre to empty. The trial court concluded that those reasons were improper as violative of public policy. The trial court based its conclusion on General Statutes § 29-109 and the administrative regulations promulgated thereunder, § 29-109-109. These regulations pertain to the safe operation of projection booths in theatres. It concluded that the plaintiff was required to work alone despite his complaints, and that he was concerned for the safety of the public and for himself when he heard a noise in the projection booth. For the reasons set forth, it found that the plaintiff was fired for taking precautions for public safety. It further found that he had been unable to secure a comparable job for approximately three years and that he had lost $40,000 in wages.

I

The Defendant’s Appeal

The defendant’s first claim is that the trial court erred in denying its motion for summary judgment. A full trial, however, produced a judgment against the defendant. As we have recently held, a denial of such a motion followed by a verdict against the movant is not appeal-able. Greengarden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d 1043 (1988). Accordingly, we will not review this claim.

The defendant’s second assignment of error is that the conclusion of the trial court that the plaintiff was fired because of his complaints that he was forced to work alone and because he emptied the theatre by turning on the lights was drawn from facts which were in evidence, but were not alleged in the complaint. The allegations in a complaint serve to limit the issues to be decided upon trial and are calculated to prevent surprise to opposing parties. Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). Facts found but not averred cannot be made the basis for a recovery. Id., 233. The defendant claims that the complaint alleged that the plaintiff was fired because he had sought aid for the protection of the public and himself in calling for the police. There was testimony, however, that he was discharged because he complained about working alone and because he emptied the theatre. The defendant contends that because these reasons were not alleged in the complaint there was a material variance between pleadings and proof.

The complaint in the present case is certainly not a model of good draftsmanship. There is no indication, however, that there was any objection to the testimony offered by the plaintiff. The appeal process should not be utilized to correct pleading deficiencies which could have been remedied in the trial court. Fuessenich v. DiNardo, 195 Conn. 144, 149, 487 A.2d 514 (1985). The failure to object to the testimony constituted a waiver of any variance between the pleadings and the proof. Samson v. Bechtel, 180 Conn. 96, 100, 429 A.2d 820 (1980). Furthermore, the amended complaint did allege that the plaintiff was required to operate the theatre without additional employees on the premises. It further alleged that he summoned the police, who directed him to turn on the lights, and that his employer also told him to turn on the lights and to do whatever was appropriate. We find that these allegations were sufficient to permit introduction of the testimony from which the court drew its conclusion.

The third claim raised by the defendant is that the court erred in finding that the plaintiff was terminated because he took safety precautions. It is well settled that it is the province of the trial court to pass upon the credibility of witnesses and the weight to be accorded the evidence. This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did. Nulman’s Appeal from Probate, 13 Conn. App. 811, 812, 537 A.2d 495 (19.88). The plaintiff testified that he had complained both to his employer and to his union that he had to work alone. The defendant concedes that there was sufficient evidence to support a finding that the plaintiff was fired for emptying the theatre. The plaintiff testified that he had called the police because he feared that there was an intruder in the projection room, and that the police refused to enter the theatre unless the plaintiff first turned on the lights. We find that it was not unreasonable for the trial court to find that the plaintiff emptied the theatre for purposes of public safety and self protection.

The defendant’s fourth claim of error is that the trial court erred in concluding that the termination of the plaintiff was violative of public policy. The trial court determined that the principal issue in the case was whether the plaintiff’s cause of action for wrongful discharge fell within the narrow public policy exception to the general proposition that contracts for an indefinite term of employment-are terminable at will. It found that the plaintiff had proven a demonstrably improper reason for dismissal, the impropriety of which derived from an important violation of public policy. The public policy which the court found was violated was the concern expressed in General Statutes § 29-109 and the regulations promulgated thereunder. These require that theatres be run in a safe manner. There can be little doubt that it is a public policy of the state that any place of public gathering be so controlled that the safety of the public is protected. Section 29-109 prohibits operation of a moving picture projector in a place of public entertainment until such precautions as the commissioner of public safety has specified have been taken against fire, panic or other personal hazards. Section 29-109-109 of the Regulations of Connecticut State Agencies deals generally with projection rooms, and § 29-109-109 (n) requires that, when a motion picture is being shown, the projectionist shall, at all times, stay in the projection room and give close attention to his duties as a projectionist. We cannot find that the conclusion of the trial court was unreasonable.

The defendant’s fifth claim is that the trial court erred in concluding that the plaintiff’s termination constituted the tort of wrongful discharge. An employer may be responsible in damages if a discharged employee can establish a demonstrably improper reason for his dismissal, the impropriety of which stems from a violation of public policy. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980). The line must be drawn between claims that genuinely involve the mandates of public policy and are actionable, and ordinary disputes between employee and employer that are not. Id., 477. The employee has the burden of pleading and proving that his dismissal occurred for a reason violative of public policy. Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986). The defendant’s reason for discharging the plaintiff must contravene public policy. Battista v. United Illuminating Co., 10 Conn. App. 486, 497-98, 523 A.2d 1356 (1987).

As we have stated earlier, it is the public policy of this state to protect the safety of the public at moving picture theatres. Whether the plaintiff was discharged because he complained about being required to work alone in violation of this policy and for taking precautions for the safety of the public was an issue for the trial court to determine from the evidence. We will not disturb reasonable findings and conclusions of that court.

The defendant also claims that the tort of wrongful discharge should not have been found to lie in this case because the plaintiff was employed under a term contract of fixed duration. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.l, 520 A.2d 217 (1987). The trial court found that the plaintiffs employment was subject to a contract between the defendant and the union. The contract was an exhibit which we have examined carefully. The contract ran from April 27, 1983 to April 26, 1985. The contract fixed the work week, hours of work, wages, vacation time and related matters for motion picture machine operators. The plaintiff was not a party to this contract, although he was a beneficiary of its terms. It did not address hirings or firings, save for a requirement that employees be or become union members. The plaintiff had been an employee of the defendant prior to the effective date of the contract, and there had been an earlier contract between the theatre owners and the union. The plaintiff was paid by the defendant and his term of employment was not fixed by the contract. We conclude that he was employed for an indefinite and not a fixed term and that he was an employee at will.

The defendant claims finally that the award of $40,000 as lost wages for a three-year period was excessive in light of the contract which was to expire one year and seven months after the termination of the plaintiff’s employment. We have concluded, however, that the term of the plaintiff’s employment was not fixed by the contract. It is true that if a new contract were negotiated, the wages agreed upon might have differed. The experience of the past several years is sufficient to establish, however, that any new amount agreed upon would not be less than the amount fixed in the contract that was in force. Accordingly, we find no error in the award of lost wages for three years.

II

The Plaintiff’s Cross Appeal

The plaintiff has cross appealed, claiming error in the granting of the defendant’s motion for summary judgment on the second count of the amended complaint. In his second count, the plaintiff alleged that as a result of his having called the police and having informed the defendant of the inadequate staffing his employment was terminated in violation of General Statutes § 31-51m (b) and (c). Section 31-51m (b) provides in part: “No employer shall discharge . . . any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . .” Section 31-51m (c) provides in part: “Any employee who is discharged ... in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action . . . .” The trial court granted the motion for summary judgment because the plaintiff had not alleged that he had called anyone to report a violation on the part of his employer, nor had he set forth facts showing that he reported his employer’s alleged statutory violation to any public body. After the motion for summary judgment was granted, the plaintiff filed a motion to reargue and attached an affidavit from a member of the union, James Dubois. In his affidavit, Dubois stated that the defendant’s policy of requiring a projectionist to operate the theatre single-handedly was a violation of state regulations, that the plaintiff complained to the union in August of 1983, and that, in response to the complaint, “I raised the issue with the state in Meriden Connecticut.” The motion to reargue was denied and the plaintiff reserved his right to appeal.

The plaintiff neither alleged nor showed that he had reported a violation of any state or federal law or regulation to any public body. The court did not err in granting the motion for summary judgment or in denying the motion to reargue the motion for summary judgment.

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

In this opinion the other judges concurred.

       “[General Statutes] Sec. 29-109. REGULATIONS AS TO MOVING PICTURE PROJECTORS AND FILMS. FIRE-PROOF booths. No moving picture projector involving the use of a photographic film shall be operated in any public building or place of public assemblage or entertainment until such precautions as the commissioner of public safety specifies have been taken against fire, panic or other personal hazards and a certificate of approval for such premises obtained from the commissioner specifying the number of persons that may be admitted to such premises or place at any one time. No moving picture film made of nitrocellulose or highly combustible material shall be used or exhibited in any premises or place mentioned herein unless such film, together with the projector and necessary accessories, is housed in a fire-proof room or booth of such size, type and design as the commissioner specifies, and a certificate of approval has been obtained from the commissioner authorizing such use of such room or booth. No person shall sell, rent, lend or in any way transfer or convey nitrocellulose or similar highly combustible moving picture film to any person except the manager or agent of any premises or place having a certificate of approval as required herein, or dispose of any scrap film except under regulations made by the commissioner.”

       Regs., Conn. State Agencies § 29-109-109 provides: “projection rooms, (a) Smoking will not be permitted in a projection room at any time, and the finding of burnt matches and cigaret and cigar stubs therein will be considered presumptive evidence that this regulation has been violated.
      “(b) The use or possession of intoxicating liquor in projection rooms is prohibited.

        “(c) Projection room doors shall be kept closed at all times but not locked. Each projection room door shall be equipped with a positive closing device.
      “(d) The exhaust fan shall be kept running while projectors are in operation unless the projection room is equipped with an automatic safety switch for the starting of the fan.
      “(e) Intake vents, as described in the regulations, shall be kept open at all times.
      “(f) Magazine doors on projectors shall be kept closed while projectors are in operation.
      “(g) No film shall be unnecessarily exposed.
      “(h) The projection room shall be kept clean and free from all combustible matter. No books, magazines or periodicals will be permitted. If clothing is kept in a projection room, it shall be in a steel locker and only necessary things may be kept in such locker.
      “(i) The projectors and all of the equipment shall be kept clean, in good mechanical condition and free from waste oil or dirt.
      “(j) All accidents and fires, no matter how small, shall be reported to the department by the projectionist immediately by telephone, collect.
      “(k) The projectionist shall have his license in the projection room when operating and the certificate of approval of the projection room shall be posted in plain sight.
      “(1) All spotlight and effect projector openings shall be kept closed while not in actual use.
      “(m) No change shall be made in the projection room or any of the equipment of the same without prior notice to the department.
      “(n) When a picture is being projected, the projectionist shall, at all times, stay in the projection room and give close attention to his duties as a projectionist.
      “(o) Whenever a projectionist finds that the film received for exhibition is in such poor physical condition due to deterioration, faulty patches or torn sprocket holes that it is unsafe to use, he shall immediately notify the commissioner by telephone, collect, and may refuse to project such film.”


author: Norcott, J.

text:
    Bridge Street Associates v. Water Pollution Control Authority of the Town of Suffield
    (5512)
    Daly, Norcott and Foti, Js.
    Argued December 10, 1987—
    decision released July 12, 1988

      Palmer S. McGee, Jr., for the appellant (defendant).

      Anthony F. DiFabio, with whom was JohnM. Wyzik, for the appellee (plaintiff).
   Norcott, J.

The defendant appeals from a judgment of the trial court reducing a sewer assessment levied by the defendant against property of the plaintiff from $120,000 to $33,925. In this appeal, the defendant claims that the trial court erred (1) in finding that the sewer assessment set by the defendant exceeded the special benefit accruing to the plaintiffs property from the availability of sewers, (2) in determining that the amount of special benefit from the sewers serving the plaintiff’s property should be measured by the average per acre value of two comparable properties, and (3) in making certain factual conclusions upon which its decision was based. We find no error.

The plaintiff, Bridge Street Associates, is a limited partnership that owns a two and one-half acre parcel of land fronting Bridge Street in Suffield. The defendant, the water pollution control authority, is the duly authorized agency of the town of Suffield that maintains, operates and manages the sewer system of the town. On May 8, 1984, the defendant levied a sewer assessment of $120,000 against the plaintiff’s property. The plaintiff appealed the assessment to the Superior Court.

At the hearing before the trial court, the following facts were adduced. Some time between the years of 1964 and 1968, the town of Suffield constructed a sewerage system designed to serve the needs of its citizens. As a means of paying for that sewerage system, the town of Suffield levied an assessment on those properties that were deemed to be specially benefited by the installation of the sewers. One of the properties that was deemed to have been so benefited was a certain tract of property that fronted Bridge Street; a sewer line was constructed to serve that property in 1966. In 1968, the Bridge Street property was assessed in the amount of $1800. At the time of the assessment, the only building on the property was a single family residence.

In the years that followed, the tract of land fronting Bridge Street was subdivided into three smaller lots. One of the lots contained the single family residence that had existed in 1968 while the other two lots were vacant. In 1983, the plaintiff purchased the two vacant lots, which totalled approximately 2.5 acres, for $75,000. After obtaining several zoning changes, the plaintiff undertook construction of a forty unit apartment complex on the heretofore vacant lots. The apartment complex was designed to provide housing for the elderly.

When the apartment complex was more than 50 percent complete, the defendant levied a new assessment on the plaintiffs property in the amount of $120,000. The defendant had determined the amount of the assessment by means of a formula that estimated a $3000 special benefit to each of the plaintiffs forty units.

The first question we must determine is whether the trial court erred in finding that the assessment imposed by the defendant exceeded the special benefit to the plaintiffs property by the presence of sewers. We find that the court did not err in so finding.

The defendant clearly had the authority to levy an assessment on the plaintiffs property. General Statutes § 7-249 authorizes municipalities to levy assessments upon property specially benefited by the construction and establishment of a sewerage system. In addition, § 7-249 provides that “[bjenefits to buildings or structures constructed or expanded after the initial assessment may be assessed as if the new or expanded buildings or structures had existed at the time of the initial assessment.” Section 7-249 provides further, however, that any assessment levied thereunder may not exceed the special benefit which accrues to the property assessed from the installation or presence of the sewerage system.

“The burden of proving that a special benefit assessment is invalid because it exceeds the particular dollar benefit accruing to the land is on the property owner. As is true in all cases, the plaintiff must prove the allegations of his complaint. The standard of proof is that of a fair preponderance of the evidence. Faith Center, Inc. v. Hartford, 39 Conn. Sup. 142, 154, 473 A.2d 342 (1982), aff'd, 192 Conn. 434, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984).” Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985).

In reviewing assessments of the type imposed under General Statutes § 7-249, our courts have held that a special benefit assessment imposed by a municipality is presumed to be valid and correct. Katz v. West Hartford, 191 Conn. 594, 602, 469 A.2d 410 (1983). That presumption may be rebutted, however, by the production of sufficient and persuasive contradictory evidence. Id., 603. “Evidence of the fact that the special benefit assessment exceeds the special benefit must have actual persuasive effect, in that it convinces the trier that the nonvalidity of the presumption is as probable as its validity.” Anderson v. Litchfield, supra, 28.

The monetary value of the special benefit conferred upon a piece of property by the presence of a sewerage system must be calculated by the difference between the market value of the realty with and without the sewerage system, even though such a measurement may mean that the cost of the sewerage system cannot be fully recouped by the town. Id., 29; Carlson-Lang Realty Co. v. Windom, 307 Minn. 368, 240 N.W.2d 517 (1976). Whether an assessment exceeds the special benefit to the property, as measured in this fashion, is a question of fact for the trial court, and its finding as to that fact will not be disturbed unless it is clearly erroneous. Anderson v. Litchfield, supra.

In this case, the trial court determined that the plaintiff had produced sufficient countervailing evidence to overcome the presumption in favor of the validity of the assessment imposed by the defendant. We agree.

At trial, the defendant produced an expert witness who testified that the special benefit conferred on the plaintiff’s property by the presence of the sewers was greater than the assessment levied by the town. The defendant’s expert measured the special benefit conferred on the plaintiff’s property by the presence of a sewerage system by taking the difference in the value of the property with sewers and without sewers.

In order to determine the value of the plaintiff’s property with sewers, the defendant’s expert used a “sales comparison” method of valuation. The defendant’s expert selected five properties which he deemed were similar to the plaintiff’s property; on each of these properties there had been constructed a multi-family living development. The defendant’s expert then determined the selling price of the properties by the number of units they contained. The per unit value of those properties ranged from $4196 to $8333. Taking into consideration the fact that the plaintiff’s property was used solely for elderly housing, and therefore was not as valuable as it might otherwise have been, the defendant’s expert determined that the per unit value of the property was $5000. Multiplying that figure by the number of units in the plaintiff’s apartment complex, the defendant’s expert determined the value of the plaintiff’s property with sewers to be $200,000.

To determine the value of the property without sewers, the defendant’s expert first determined the maximum amount of construction that could have occurred if sewers had not been installed. He determined that, in the absence of sewers, the plaintiff’s property could only accommodate three single family dwellings. Analyzing the sales of single family dwellings in the surrounding area, and accounting for the improvements required to make the property suitable for such houses, the defendant’s expert concluded that the property was worth $75,000 without sewers. Taking the difference between the value of the property with sewers and without sewers, the defendant’s expert concluded that the special benefit conferred on the plaintiff’s property by the sewers was $125,000, a figure greater than the assessment imposed by the defendant.

The plaintiff, however, produced evidence that the assessment on the property exceeded the special benefit derived from the presence of the sewers. Although the plaintiff did not challenge the valuation of the property without sewers, it got the defendant’s expert to admit on cross-examination that none of the properties he had used for comparison in valuating the plaintiff’s property contained housing for the elderly. The properties used by the defendant’s expert in his valuation contained condominiums and standard apartment complexes. Both the defendant’s expert and the plaintiff’s expert testified that the property used for condominiums and apartment complexes was more valuable per unit than was property used for elderly housing. In addition, the plaintiff produced evidence that because it had received federal loans to build the elderly housing, there were substantial limitations on the use of the Bridge Street property. There was testimony to the effect that it could earn no more than an 8 percent profit on the property and that it was prevented from selling the property for a period of seventeen and one-half years. The plaintiff’s expert testified that such restrictions would also limit the per unit value of the property. In addition, the plaintiff’s expert called the assessment of $120,000 “outlandish.”

Given this evidence, we cannot say that the trial court erred in concluding that the plaintiff had produced sufficient evidence to rebut the presumption of the validity of the defendant’s assessment. The evidence produced by the plaintiff was sufficient to allow the court to conclude that the plaintiff’s property was worth substantially less than $5000 per unit, and, therefore, that the difference between the value of the property with sewers and without sewers was not greater than $120,000.

The defendant’s second claim is that the trial court erred in determining the amount of the special benefit conferred upon the plaintiff’s property by the presence of sewers.

As noted above, the trial court, in determining the amount of the special benefit, rejected the defendant’s claim that the plaintiff’s property was as valuable per unit as were the other properties the defendant’s expert appraised. The trial court noted that if the plaintiff’s property were valued at $5000 per unit, the value of the property would be approximately $77,000 per acre. This, the court held, was unreasonable in light of the fact that none of the other properties appraised by the defendant’s expert was valued at more than $48,000 per acre.

Thus, the trial court felt it necessary to determine a different measure for the value of the plaintiff’s property. In determining the value of the property with sewers, the court noted that the plaintiff’s forty unit complex was somewhat smaller than some of the complexes cited by the defendant’s expert as comparable properties and somewhat larger than others. The court determined that a per unit evaluation with those properties was unreasonable for the reasons noted above. The court decided, however, that a per acre comparison with some of those other properties would be reasonable. The court took the average per acre value of two of the properties and multiplied that by the 2.5 acres the plaintiff owned.

Our courts have determined that valuation is a matter of fact to be determined by the trier’s independent judgment, and the trier may select the method of valuation most appropriate to the case before it. Cappiello v. Commissioner of Transportation, 203 Conn. 675, 679-80, 525 A.2d 1348 (1987). In making that judgment, the trier is generally free to accept or reject, in whole or in part, expert testimony by either party, and “ ‘ “has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard.” ’ Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980), quoting Greenfield Development Co. v. Wood, 172 Conn. 446, 451, 374 A.2d 1084 (1977).” Cappiello v. Commissioner of Transportation, supra, 680. Our function is to determine whether the trial court’s decision was clearly erroneous. Practice Book § 4061.

The essence of the defendant’s claim is that the trial court erroneously rejected the defense expert’s opinions, methods and conclusions with respect to the value of the benefit to the property. The defendant claims in its brief that “[t]he trial court overlooked the very purpose of defendant-appraiser’s chart and misapplied and gave a wrongful effect to the data therein, thereby arriving at an erroneous determination of value.” We disagree. The trial court fully examined the methodology of the defendant’s appraiser and chose not to abide by it because the court found that “[t]he so-called comparable sales of land for multi-unit dwellings submitted in evidence by way of the appraiser’s report are hardly comparable in relation to the subject property.”

We cannot say from our review of this record that the trial court’s conclusions that there was no rational basis for assessing dissimilar properties similarly and that the special benefit to the plaintiff’s property was to be based on the average per acre value of two comparable properties in a nearby town of similar size and character was not based on competent evidence before it. There is nothing in this record to show that the trial court, in developing its own formula for the special benefit assessment, misapplied or overlooked any consideration which it was duty bound to regard. See Cappiello v. Commissioner of Transportation, supra, 681.

The defendant finally claims that the trial court erred in finding (1) that the sewer assessment of $3000 per unit was based entirely on the defendant’s need to pay off the outstanding debt caused by the sewer construction, (2) that the defendant gave no consideration to the possibility that the assessment was excessive, and (3) that the valuation of $77,813 per acre, where sixteen units were to occupy each acre, was not in conformance with the evidence.

“This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did.” (Citations omitted.) Nulman’s Appeal from Probate, 13 Conn. App. 811, 812, 537 A.2d 495 (1988). Where the findings of fact of the trial court are supported by the evidence, as in the present appeal, we must support those findings under the “clearly erroneous” test. See Practice Book § 4061; Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 155, 527 A.2d 679 (1987).

“Although the presumption of a correct assessment prevailed initially in favor of the town, there was sufficient countervailing competent evidence before the trial court in this case for it to conclude that the plaintiffs had satisfied their burden of persuading it, by a fair preponderance of the evidence, that the special benefit assessment exceeded the special benefit to them.” Anderson v. Litchfield, supra, 29.

There is no error.

In this opinion the other judges concurred.

       The amount the plaintiff would have been required to pay was $119,496. This amount represents the $120,000 assessment less $504 the plaintiff had paid on an earlier assessment.

       General Statutes § 7-249 provides in pertinent part: “At any time after a municipality, by its water pollution control authority, has acquired or constructed, a sewerage system or portion thereof, the water pollution control authority may levy benefit assessments upon the lands and buildings in the municipality which, in its judgment, are especially benefited thereby . . . according to such rule as the water pollution control authority adopts, subject to the right of appeal .... The sum of initial and subsequent assessments shall not exceed the special benefit accruing to the property. Such assessment may include a proportionate share of the cost of any part of the sewerage system .... In assessing benefits and apportioning the amount to be raised thereby among the properties benefited, the water pollution control authority may give consideration to the area, frontage, grand list valuation and to present or permitted use or classification of benefited properties and to any other relevant factors .... No assessment shall be made against any property in excess of the special benefit to accrue to such property . . . .”


author: Bieluch, J.

text:
    Regina Lembo v. Richard M. Schlesinger et al.
    (5592)
    Dupont, C. J., Bieluch and Foti, Js.
    Argued January 14—
    decision released July 12, 1988

      Mark F. Katz, for the appellants (defendants).

      W. James Cousins, for the appellee (plaintiff).
   Bieluch, J.

The plaintiff brought this action to recover a deposit given to the defendants toward the purchase of a condominium unit. The defendants appeal from the judgment in favor of the plaintiff. They claim that certain factual findings of the court are contrary to the evidence, and assert that the court’s conclusion that the plaintiff was entitled to the return of her $2500 deposit plus interest and to a recovery of punitive damages and attorney’s fees pursuant to the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes §§ 42-110a through 42-110q; is contrary to the evidence and the law. We find error in part.

The following facts are relevant to this appeal. On June 26,1983, the plaintiff entered into a nonbinding reservation agreement with the defendant Mark David Associates, a general partnership, for the purchase of a condominium unit in the Balance Rock Condominium in Seymour. Mark David Associates was the declarant and owner of the condominium, and, as such, was its developer and seller. Richard M. Schlesinger, the named defendant, is a partner in Mark David Associates.

The plaintiff deposited $500 with Mark David Associates pursuant to the nonbinding agreement. On or about August 19,1983, the defendants sent to the plaintiff’s attorney a proposed agreement for the sale and purchase of a condominium unit. This agreement had not been signed by the defendants. The plaintiff’s attorney attached a rider to the proposed agreement which changed some terms, and sent these back to the defendants as a counteroffer on August 23, 1983, with a further deposit of $2000. The plaintiff’s attorney delivered the counteroffer to the defendants’ office at the address given in the original proposed purchase agreement.

Neither the plaintiff nor her attorney received an acceptance of the counteroffer from the defendants despite numerous inquiries by the plaintiff’s attorney in September and October, 1983. On November 3, 1983, more than ten weeks after the counteroffer was delivered to the defendants, the plaintiff elected to rescind her counteroffer. A certified letter, return receipt requested, was sent by the plaintiffs attorney to the defendant Mark David Associates on November 3, 1983, advising of the plaintiffs withdrawal of her counteroffer because of the defendants’ failure to return an executed contract. The letter also demanded the return of the plaintiffs deposit of $2500. On November 10,1983, the plaintiff wrote a letter to the defendants confirming her decision to cancel the purchase agreement.

The defendant Mark David Associates responded by letter dated November 11,1983, in which it refused to return the plaintiff’s downpayment, claiming that the delay in returning an executed contract was due to changes it was making in the sales contract in order to qualify for federal housing authority financing. No executed contract was enclosed with that reply. On November 16, 1983, again by certified letter, return receipt requested, the plaintiff’s attorney demanded the return of the deposit, and repeated the decision to rescind the counteroffer.

On November 28, 1983, fourteen weeks after the plaintiff first delivered her counteroffer to the defendants, and after she had notified the defendants on three occasions of her rescission, the plaintiff’s attorney received a letter from the defendant Schlesinger in which he refused to cancel the contract. Enclosed with this letter was a photocopy of a purchase agreement that did not include the rider proposed by the plaintiff, and which was purportedly signed and dated by Schlesinger on October 27, 1983, seven days prior to the plaintiff’s November 3,1983 decision to rescind her counteroffer. No signed contract containing the plaintiff’s proposed changes was ever delivered to the plaintiff by any of the defendants.

After further efforts to obtain her deposit proved unsuccessful, the plaintiff commenced this action. The plaintiff filed a two count complaint against the defendants, seeking, inter alia, the return of her deposit, monetary damages, punitive damages, and attorney’s fees pursuant to General Statutes § 42-110g (a) of CUTPA.

This matter was referred to an attorney trial referee; General Statutes § 52-434; who found that the plaintiff was entitled to her $2500 deposit plus interest from November 10,1983, one week after she withdrew her counteroffer. The referee specifically found that the defendants never signed the counteroffer, nor did they return anything to the plaintiff before November 27, 1983, when the proposed purchase agreement was returned without the rider attached. The referee also found that the plaintiff was entitled to punitive damages and attorney’s fees pursuant to CUTPA. The referee held that the defendants, by refusing to return the plaintiff’s deposit, were acting unfairly and, by executing a purported contract after the plaintiff had effectively withdrawn her counteroffer, were acting deceptively.

The referee concluded that the plaintiff was entitled to the return of her $2500 deposit plus interest, punitive damages of $2500, and attorney’s fees in the amount of $2500, for a total of $7500 plus interest on the plaintiff’s deposit. Judgment was rendered by the trial court in accordance with the referee’s report, and this appeal followed.

The defendants’ first claim is that the court erred in finding that they never effectively accepted the plaintiff’s counteroffer. “ ‘Our review of the trial court’s factual findings is limited solely to the determination of whether they are supported by the evidence or whether, in light of the evidence and pleadings in the whole record, they are clearly erroneous. Practice Book § 4061; Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Fortier v. Laviero, 10 Conn. App. 181, 183, 522 A.2d 313 (1987); Cook v. Nye, 9 Conn. App. 221, 224, 518 A.2d 77 (1986). The function of an appellate court is to review, and not retry, the proceedings of the trial court.’. . . Petti v. Balance Rock Associates, 12 Conn. App. 353, 357, 530 A.2d 1083 (1987).” Licari v. Blackwelder, 14 Conn. App. 46, 51, 539 A.2d 609 (1988).

“It is not within the power of this court to find facts or draw conclusions from primary facts found by the trial court. As an appellate court, we review the trial court’s factual findings to ensure that they could have been found ‘legally, logically and reasonably.’ Appliances, Inc. v. Yost, 186 Conn. 673, 678, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984).” Licari v. Blackwelder, supra, 52. After a thorough review of the record and in light of the “ ‘basic principle of contract law that in order to form a binding contract there must be an offer and acceptance based on a mutual understanding by the parties’ ”; Lyon v. Adgraphics, Inc., 14 Conn. App. 252, 254, 540 A.2d 398 (1988); we find ample support for the court’s findings and conclusions.

The defendants also challenge on two grounds the court’s award of punitive damages and attorney’s fees to the plaintiff pursuant to CUTPA. There is merit to the second claim of error raised by the defendants.

The defendants first attack the award on grounds of evidentiary insufficiency. We have completely reviewed the record in this regard and, under the same standard of review as set out above, we find no merit to this evidentiary claim. See Licari v. Blackwelder, supra.

The defendants next maintain that the court erred in making a CUTPA award where the plaintiff did not show a nexus between the defendants’ conduct and the public welfare, as was required prior to a 1984 amendment to CUTPA. We agree.

The defendants’ unfair and deceptive acts occurred in 1983. At that time, it was necessary for a plaintiff to demonstrate a nexus with the public interest as a prerequisite to recovery under CUTPA. Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 536-37, 461 A.2d 1369 (1983). The public interest requirement of a private action under CUTPA was eliminated by the legislature by a 1984 amendment to the statute. See Public Acts 1984, No. 84-468, §§ 2, 4 (effective June 8, 1984); General Statutes §§ 42-110g, 42-110m.

The trial court, citing Wilson v. Firemen’s Fund Ins. Co., 40 Conn. Sup. 336, 337-40, 499 A.2d 81 (1985), held that the amendment eliminating the public interest requirement could be retroactively applied. We disagree and we reaffirm recent decisions of this court which have held otherwise. See Rotophone, Inc. v. Danbury Hospital, 13 Conn. App. 230, 233, 535 A.2d 830 (1988); Fortini v. New England Log Homes, Inc., 4 Conn. App. 132, 137 n.l, 492 A.2d 545, cert. dismissed, 197 Conn. 801, 495 A.2d 280 (1985). The trial court erred in awarding the plaintiff recovery under CUTPA where she failed to “demonstrate some nexus with the public interest.” Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., supra, 537.

The plaintiff, presenting an alternate ground for affirming the decision of the trial court; Practice Book § 4013 (a) (1); claims that the court’s award of attorney’s fees may stand as punitive damages for the defendants’ intentional conversion of the plaintiff’s money. This claim is unavailing. The court below did not find that the defendants had appropriated the plaintiffs $2500 deposit to their own use. Our review of the record confirms this conclusion.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff to recover damages of $2500, with interest from November 10, 1983.

In this opinion the other judges concurred.

       The attorney trial referee found that the purchase agreement was returned to the plaintiff on November 27, 1983. Our review of the record indicates that the date of actual receipt by the plaintiff was November 28, 1983.


text:
    Susan Lundborg v. Walfrid Lundborg, Jr.
    (5800)
    Bieluch, O’Connell and Stoughton, Js.
    Argued April 18—
    decision released July 12, 1988

      Wesley W. Horton, with whom, on the brief, were Joseph L. Steinberg and Carol S. Widing, for the appellant (defendant).

      Susan Lundborg, pro se, the appellee (plaintiff).
   Stoughton, J.

The defendant appeals from the modification of a judgment rendered in an action for dissolution of marriage. We find error in part.

The plaintiff and the defendant married on April 5, 1967. There are two children of the marriage. W, a son, born on May 17, 1969, and V, a daughter, born on August 19,1970. The marriage was dissolved on September 30,1983, after a trial to Hon. James P. Doherty, state trial referee. The court awarded custody of the minor children to the parties jointly and ordered that W continue to reside with the defendant and that V continue to reside with the plaintiff, an arrangement to which the parties agreed. The court ordered the defendant to pay $50 per week toward the support of V and to provide Blue Cross, C.M.S., and major medical insurance or the equivalent thereof for the benefit of V. No order of support was made for W, who was to live with the defendant. Various other financial orders were made which are not the subject of this appeal.

On December 3,1983, the court increased the amount to be paid toward the support of V from $50 per week to $100 per week. In 1986, each of the parties filed motions seeking modification or clarification of various orders made as a part of the judgment. The following motions were referred to and decided by the court: (1) the defendant’s motion to modify support for V dated May 19,1986; (2) the plaintiff’s motion for contempt dated October 10,1986; (3) the plaintiff’s motion for orders dated December 2, 1986; and (4) the plaintiff’s motion for clarification and modification of judgment dated December 1,1986. On December 18,1986, the court rendered its decision on these motions.

The defendant claims that the court erred in that (1) it increased child support payments when the plaintiff’s motion for clarification and modification did not request such relief, (2) it modified financial orders despite the lack of a financial affidavit from the moving party, and (3) it modified child support payments for V and initiated support payments for W without determining the needs of each child and the existence of a substantial, unanticipated change of circumstances.

The plaintiffs motion, dated December 1, 1986, requesting clarification and modification of the judgment, recited, inter alia, the following allegations: medical bills have been incurred for hospitalization and treatment of V which have not been paid, although the defendant guaranteed at least some of them; the defendant had made only $300 in child support payments since April of 1986; the defendant had not paid the private school attended by V in default of his contract; the defendant had refused to pay the private school attended by W although he had signed a contract with the school; the defendant had not paid medical bills incurred by W; W had changed his residence to live with the plaintiff, but the defendant had made no support payments for W and had neglected W’s needs for many years. After making these and other allegations, the plaintiff requested the following relief: (1) a lump sum child support payment of $250,000; (2) that she be allowed to take over all health insurance policies in place for the children; (3) that the plaintiff be made the beneficiary of the $300,000 life insurance policy held by the defendant for her benefit and that of the children, and that she take responsibility for payment of the premiums; and (4) that the defendant pay the plaintiffs legal fees and pay to the plaintiff an equal amount for expenses.

The court denied the defendant’s motion for modification of support. It ordered the defendant to bring to date alimony and child support payments but denied the plaintiff’s motion for contempt. It further ordered the defendant to reimburse the plaintiff $500 toward her legal expenses in connection with post judgment motions. The court also ordered the defendant to return certain personal property to the plaintiff and not to enter her place of residence, although it did not include those orders in the memorandum of decision. The defendant was ordered to reimburse the plaintiff 80 percent of uninsured psychiatric bills for the children and 50 percent of other uninsured medical and dental bills. None of these orders is challenged in this appeal.

The court found that since December 3,1983, there had been a substantial change of circumstances relative to the matter of child support. He found that W had left the defendant’s abode to live with the plaintiff when he was not away at school. He found that Y had had severe emotional disturbances for which the child had been hospitalized, that the child was in need of continuing psychiatric care and treatment, that the child was living away from home and attending a school in Massachusetts, and that the plaintiff provided for V’s living expenses at the place where the child was staying. The court then modified the child support order and directed the defendant to pay $150 per week for each of the children beginning on January 1, 1987. It also ordered the defendant to pay any and all bills for the schooling of the children which he had contracted to pay to the date of the order, but denied the plaintiff’s request that the defendant be compelled to pay for the costs of education of the children at private educational institutions. The defendant attacks the orders increasing support for V from $100 to $150 per week, establishing support for W of $150 per week, and ordering payment of private school bills.

The right of a party to recover is limited to the allegations of the complaint, and what is in issue is determined by the pleadings. Tehrani v. Century Medical Center, 7 Conn. App. 301, 308, 508 A.2d 814 (1986). The plaintiff did not request an increase in support for V, nor did she seek support payments for W. Rather, her first request was that she be given a lump sum of $250,000 so that she could support the children and so that she would not have to continue to resort to actions in court to compel payments which she believed that the defendant was obliged to make. None of the other three requests had anything at all to do with support payments for the children. It is basic that the movant may prevail only upon grounds of recovery which she has alleged. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 244, 520 A.2d 1008 (1987). A trial court cannot on its own initiative modify child support orders. Guss v. Guss, 1 Conn. App. 356, 361, 472 A.2d 790 (1984). In the absence of any motion requesting such relief, the court should not have ordered support for W nor increased support payments for V.

The order that the defendant pay any and all bills for the schooling of the children for which he had contracted to pay stands on a different footing. Although we will not entirely disregard our rules of procedure, we do give great latitude to pro se litigants in order that justice may be done. Cugini v. Cugini, 13 Conn. App. 632, 634, 538 A.2d 1060 (1988). The plaintiff faded to request the court to articulate the reasons for its order, as she might have done under Practice Book § 4051. We have reviewed the transcript and have determined that the court specifically refused to enforce an unwritten agreement which the plaintiff claimed the defendant had made to pay for the education of the children. Instead, the court directed that the defendant pay for the school year when he enrolled the children and signed for it, and to hold the plaintiff harmless for those obligations which the defendant agreed to assume. The defendant was not simply ordered to pay certain private school bills, as he has claimed, but to pay certain obligations which he himself had incurred. That is implicit in the order that he pay for the schooling for which he contracted to pay. We have recognized that in some domestic cases unique or compelling circumstances may justify or require equitable relief. Goold v. Goold, 11 Conn. App. 268, 274, 527 A.2d 696, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987). The order that the defendant pay for expenses for which he alone contracted, in order to hold the plaintiff harmless, is justified in this case. We conclude that the court did not abuse its discretion in ordering such payments.

In light of this disposition, it is unnecessary to consider the defendant’s other claims.

There is error in part, the judgment is set aside as to the order for periodic support of W and the order increasing the support of V and the case is remanded with direction to render judgment as on file with the exception of those orders.

In this opinion the other judges concurred.