author: Hull, J.

text:
    Benjamin F. Miller, Jr. v. Colin C. J. Angliker, M.D., Director, Whiting Forensic Institute
    (2704)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued April 2—decision
    released July 2, 1985

      John R. Williams, for the appellant (plaintiff).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Hull, J.

This is an appeal from the denial of Benjamin Miller, Jr.’s petition for a writ of habeas corpus which, if granted, would have released him from confinement at the Whiting Forensic Institute. We conclude that the trial court’s denial of that petition was proper.

The court’s meticulous and comprehensive findings of fact need only be summarized here. On March 17, 1972, Benjamin Miller, Jr., was arrested after an investigation of nearly five years duration into the murders of five black prostitutes. All were found strangled in a wooded area off of the Merritt Parkway, near River Bank Road in Stamford. The first victim, Rosell Rush, was found on August 4, 1967. Thereafter, the bodies of Donna Roberts, Gloria Kahn, Gail Thompson and Alma Henry were found on May 3,1968, September 8, 1968, July 10,1971, and August 22,1971, respectively.

There was a substantial amount of publicity about the murders in the Stamford area. The black community, as well as other groups, expressed anger over the lack of progress in the police investigation. For that reason, a special team of state police officers and a Stamford police detective was created to investigate the murders full time.

After a Reverend James Miller received an anonymous telephone call describing the location of one of the bodies and expressing the desire that the victim receive a Christian burial, the police made a check of other Reverend Millers in the Stamford area. As a result of that check, the name of the plaintiff, who claimed to be an ordained clergyman, was placed on a file card. After three more bodies were found, Miller was invited to an interview. He wrote a letter to the police saying that he could not come.

Nothing further was done to investigate Miller until January, 1972, when the card and Miller’s failure to come in were discovered by the detective assigned to the investigation. At that point, a background investigation of the plaintiff was initiated. It was determined that Miller was a white employee at the Darien post office who walked past the home of Reverend James Miller every day during lunch. The plaintiff also spent a great deal of time preaching to the black community in Stamford, particularly to the women of the community. Miller also had a history of mental illness, having, at one time, been hospitalized at Fairfield Hills State Hospital. Police visited Fairfield Hills and were given access to Miller’s files without his prior approval.

The police then expanded their investigation of Miller, interviewing his wife and acquaintances. They found that Miller had marital problems. He had beaten and threatened to kill his wife. Finally, they interviewed the plaintiff at his home, beginning with a reading of his Miranda rights. This interview was not productive, however, because the plaintiff appeared to be somewhat incoherent.

Between January 26, 1972, and February 16, 1972, Miller was interviewed by the police four more times. These interviews were lengthy sessions, each of which began with a reading of Miller’s Miranda rights. Miller was described as a compulsive talker who forced the police officers to work in shifts. During one of the interviews Miller offered to take a polygraph test, which was administered on the next occasion upon which he spoke to police. The test was inconclusive due to Miller’s erratic emotional changes.

During these interviews, Miller made several incriminating statements to police officers. He stated that he had learned of Gail Thompson’s murder some six weeks later. This was directly contradicted by the statement of the victim’s mother, who said that Miller had visited the family home “a couple of days” after the body was found to express his condolences. Miller also admitted to having had sexual relations with Gail Thompson in his car in North Stamford, and when he was shown a photograph of her body, he correctly identified the item around her neck as a handkerchief although the publicized version of the killings suggested that all of the victims had been strangled with bras. Further, when Miller was shown a photograph of the body of Alma Henry, he correctly identified adhesive tape as the substance wrapped around her head, stating “I don’t use tape that narrow.” From the photograph it was almost impossible to identify what was wrapped around her head, and the fact that tape had been used was not publicly known.

On February 16,1972, police suggested to Miller that he should consult Robert Miller, a psychiatrist at Fair-field Hills. He declined to see Robert Miller, preferring to see Shirley Williams, a psychiatrist at the Norwalk Hospital, instead. After speaking with Williams, Benjamin Miller was seen by Michael Moadel, another psychiatrist, who signed an order for Miller’s temporary involuntary commitment to Fairfield Hills. Miller was immediately taken to Fairfield Hills and was admitted.

In early January, 1972, State Police Detective Robert Geoghan and Stamford Police Detective George Mayer had visited Fairfield Hills where they discussed Miller’s background with Robert Miller, who was considered to be “somewhat of a forensic psychiatrist.” He agreed that if the plaintiff could be admitted to Fairfield Hills, it would provide an excellent opportunity to conduct interviews of the plaintiff.

Throughout his confinement, there has been substantial agreement that Benjamin Miller suffers chronic schizophrenia. There was also evidence in his hospital records that he had been placed on suicide watch occasionally, that he was delusional and that “religosity [sic] is in evidence.” Miller regularly received medication in the form of trilafon and, at some point, he was also given sinequan.

Miller was interviewed on several occasions by Robert Miller, by the investigating officers or by all of them. Robert Miller indicated to the officers that he believed that the plaintiff was, in fact, the killer of the women, although at no time did he obtain a confession. These interviews culminated, on February 29,1972, in Benjamin Miller’s handwriting a confession to the murders of seven women. At another point, he wrote that he had killed Gail Thompson, Alma Henry, Sissy Rush and others he could not remember. The plaintiff led the conversation during which these confessions were made and his statements about the Gail Thompson murder corresponded to the physical findings at the scene.

On March 1,1972, Miller signed both a handwritten statement and a typed duplicate admitting to and detailing the murder of Alma Henry. He also signed a statement indicating that he had returned, with police, to the murder scene where he pointed out the spot where the murder had occurred, and stating that he had tied her hands, taped her mouth and whipped her body with tree branches while he was killing her. These facts were not publicly known. In this statement, Miller also admitted that before Alma Henry died, but while she was unconscious, he had committed the act of cunnilingus upon her body.

On March 10,1972, Miller signed another statement admitting to the murder of Donna Roberts, and giving considerable detail about her murder and the transportation of her body.

Each statement was witnessed by Geoghan and Mayer, who both stated that Miller had voluntarily led them to the murder scenes and to the places where the bodies were deposited thereafter. Each statement also contained Miller’s written acknowledgment of his rights. As a result of this investigation and the confessions, Miller was arrested on March 17, 1972, and was indicted by a grand jury on May 15,1972, for the five murders listed above.

On the date of Miller’s indictment, attorney Herbert Bundock was appointed to represent him. Bundock had been an assistant public defender for Fairfield County for ten years prior to his appointment to represent Miller. Although his position was part time, he spent practically full time on the job. Miller pleaded not guilty to all five counts and the case was continued to June 20, 1972, pending the filing of any pretrial motions.

On June 6, 1972, Bundock filed a motion for discovery which included a request for all exculpatory information in the possession of the prosecution. Bundock also obtained two pychiatric reports, dated April 14, 1972, and May 6, 1972, both of which confirmed that Miller was competent to stand trial. Bundock also reached an agreement with Joseph Gormley, the state’s attorney involved in the case, which allowed him free access to the state’s file on the Miller case. Gormley testified at the habeas corpus hearing that he was reasonably certain that Bundock had seen practically the entire file.

From the date of his appointment through the end of 1972, Bundock worked on Miller’s case. He had a psychiatrist, Johnathan M. Himmelhock, appointed by the court and, from conversations with Himmelhock, Bundock concluded that the doctor would testify that Miller was insane.

Bundock also spoke with Miller and his father on several occasions during this time. Benjamin Miller, Sr., told Bundock, on April 1,1972, that his son had stated that he was sick and had signed a confession, but that he would sign anything. Miller, Jr., corroborated this version of the events on September 12,1972. He stated that he had been afraid of a beating when he signed the statements and that, after they showed him photographs of the bodies many times, they drove him to the murder scenes and asked him if this was the place. He said he would respond by saying “I think so” to please them. He also stated that the police had repeatedly asked him to confess to the murders, had harrassed him, and had called him a liar. At no time did Bundock use any of this information to file a motion to suppress Miller’s confessions. Rather, he came to an agreement with Gormley that Miller should plead not guilty by reason of insanity. Gormley agreed to present only a prima facie case under those circumstances. Both the plaintiff and his father willingly participated in that plea.

On July 29, 1972, Robert F. Lupinacci was apprehended in the act of attempting to strangle a black prostitute. The crime occurred in the same area as those of which Miller was accused. The report of this incident was eventually turned over to Gormley because of the similarities between the crimes.

Lupinacci was a known patron of Stamford’s black prostitutes and he was allegedly in the downtown area on the night that Gloria Kahn disappeared. Lupinacci also admitted to having taken other prostitutes to the same place where the assault occurred. He frequently used pornographic literature and drove a car similar to one which had been seen in the same area where the body of Gail Thompson had been found.

A Stamford police officer informed the state trooper who was investigating the Lupinacci case that during the Alma Henry and Gail Thompson investigations, Lupinacci had inquired about the location and duration of police stakeouts relative to those investigations. Lupinacci had further commented that not all of the murders had been committed with bras, a fact not known to the public.

The Miller case was opened because of the Lupinacci investigation. That fact was reported in the newspaper and was brought to Bundock’s attention in the form of a scrapbook put together for him by Miller, Sr. During the investigation, the state police sent twenty-three items of evidence, obtained at the scenes of the murders with which Miller was charged, to the FBI for comparison with the Lupinacci case. In the end, however, Lupinacci was charged only with assault and the investigation was closed on September 23, 1972, with a statement that there was no solid evidence connecting Lupinacci to the killings of which Miller was accused. Gormley never offered the Lupinacci file to Bundock, nor did the evidence show that Bundock had ever requested it.

On January 30,1972, Miller was found not guilty by reason of insanity of the murders of Donna Roberts, Gail Thompson and Alma Henry for which he was tried. He was ordered confined to Fairfield Hills pursuant to General Statutes § 53a-47 (c) pending an examination to determine whether he was a danger to himself or to others. At a hearing on March 29,1973, Miller was found to be a danger to himself and to others and was confined to the custody of the commissioner of mental health. Miller has never disputed the validity of the March 29, 1973 proceedings, and, since his confinement, the superintendent of Fairfield Hills has filed reports every six months as required by General Statutes § 53a-47 (c) (3), concluding that Miller’s release would still constitute a danger to himself or to others.

On January 21,1982, nearly nine years after Miller was committed, he filed the present petition seeking a writ of habeas corpus claiming, essentially, two grounds therefor: (1) that he received ineffective assistance of counsel in violation of his constitutional rights; and (2) that the state’s attorney withheld exculpatory information from him. The trial court concluded that Miller failed to prove either claim and, further, that Miller, by failing to appeal from the March 29, 1973 order committing him to the custody of the commissioner of mental health, was barred from presenting these claims for the first time in a habeas corpus petition.

In this appeal, Miller claims that the trial court erred: (1) in holding that he had failed to prove that he had not deliberately bypassed his right to appeal from the March 29,1973 confinement order; (2) in holding that the prosecution did not withhold exculpatory information from him; and (3) in holding that his counsel was not ineffective, in violation of his rights under the sixth and fourteenth amendments to the constitution of the United States. We conclude that although the court erred in its application of the “deliberate bypass” rule, that error was harmless in light of the court’s correct conclusions as to the merits of the petition.

The trial court concluded that “the Petitioner cannot for the first time raise any issue as to the impropriety of [the commitment hearing of March 29, 1973] by habeas corpus. Vena v. Warden, 154 Conn. 363 [225 A.2d 802 (1966)]; Blue v. Robinson, 173 Conn. 360 [377 A.2d 1108 (1977)].” This conclusion misses the point of Miller’s claims, for they do not relate to the commitment hearing, but to the original acquittal. Miller testified that he was never told of his right to appeal from his acquittal by reason of insanity. He never testified about whether he was told that he could appeal from the subsequent commitment order. Consequently the court concluded that he had failed to prove that he had not deliberately bypassed his right to appeal from the later order.

In Vena v. Warden, supra, the court stated that “a petitioner may collaterally raise federal constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly to us if he alleges and proves, by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal.” Id., 366-67. Since Miller’s constitutional claims do not arise out of the commitment order, but out of his acquittal, it was that judgment, if any, from which he should have been required to appeal.

Not only did Miller testify that he was not told of his right to appeal from his acquittal, but the claims which he raises in this petition are “more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal.” State v. Gregory, 191 Conn. 142, 145, 463 A.2d 609 (1983), quoting State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982); see also State v. Chairamonte, 189 Conn. 61, 64-65, 454 A.2d 272 (1983).

Although each of the cases cited immediately above dealt only with claims of ineffective assistance of counsel, the same rationale used therein applies to the present claim regarding the prosecutor’s failure to turn over to Bundoek alleged exculpatory evidence which would not ordinarily be part of the record in a direct appeal. In State v. Chairamonte, supra, the court, referring to its role in a direct appeal, stated: “Our role in a case like this, however, is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. Without a hearing in which the reasons for counsel’s decision may be elicited, any decision of ours on this claim would be entirely speculative.” Id., 64; see also State v. Mason, supra, 579. Similarly, without a hearing in which Gormley’s reasons for failing to disclose the Lupinacci evidence are elicited, and in which that evidence itself is provided, we would have an insufficient basis for deciding the merits of Miller’s claim. See State v. Grasso, 172 Conn. 298, 301, 374 A.2d 239 (1977). Consequently, under the circumstances of this case it would have been inappropriate for Miller to raise either of these claims through a direct appeal.

In State v. Mason, supra, however, the court stated: “We note that a defendant may well be forced to raise a claim of ineffective assistance on direct appeal, even when the record is inadequate for review, because of the possibility that if this is not done collateral review of the claim may be precluded by a finding that the appellate process has been deliberately bypassed. . . . Whether there has been a deliberate bypass . . . must be determined on a case by case basis.” (Citations omitted.) Id., 579 n.3. This statement cannot be construed as a prohibition of habeas corpus petitions in the absence of a prior direct appeal. Rather, it is merely a caution to counsel reminding them of the risks of such a petition. Under the circumstances of this case, however, we can find no fault in Miller’s failure to directly appeal.

We conclude that because Miller’s claims in this petition, in all likelihood, could not have been successfully appealed directly, there was no violation of the deliberate bypass rule in this case.

With regard to the merits of the constitutional claims raised by Miller’s petition, those claims arise, to a great degree, out of the circumstances of the Lupinacci investigation. In that context, Miller seeks to augment the trial court’s findings of fact with his own discussion of that investigation. Miller’s claimed facts presented with regard to the Lupinacci investigation include the following: Lupinacci was a regular patron of Stamford’s prostitutes. He was seen cruising in his car on the night of Gloria Kahn’s disappearance, and was positively identified by another prostitute as having tried to pick her up on that same night.

On the night of Lupinacci’s arrest, his car was searched and in the trunk was a deck of pornographic playing cards. One card was missing from the deck and a similar card had been found at the scene of the Gail Thompson murder. Vacuum sweepings of the trunk also disclosed a “negroid limb hair.” Lupinacci’s car had also been seen at the area of the murders on prior occasions. Lupinacci was described as hating blacks and as a “sex nut” who had a history of sexually molesting women and who had been accused of rape in the past. He also, apparently, went to great lengths to devise a way to look up from a basement work site under the dresses of women walking by on the street. He was known to frequent bars which Rosell Rush was known to patronize, and he was a known patron of both Gail Thompson and Gloria Kahn.

In addition, Miller would further augment the court’s findings of fact by adding a summary of the testimony of Michael Sheldon, a professor at the University of Connecticut School of Law, from the habeas corpus hearing. Professor Sheldon testified at length about the quality of Bundock’s handling of Miller’s case. It is sufficient for us to state that he made clear his opinion that Bundock’s handling of the matter was not competent. The trial court did not, however, credit Sheldon’s opinion which, of course, it was free to reject.

We note at the outset of our consideration of Miller’s claims that they arise in a procedurally confused context. Ordinarily, claims of procedural misconduct or ineffective assistance of counsel arise after the accused has been found guilty. Here, however, Miller claims that he should have been acquitted unconditionally rather than by reason of insanity. Accordingly, the tests by which courts have traditionally decided the validity of claims such as those presented here do not mesh well with the facts of this case.

Miller claims that Bundock’s failures as counsel were “glaring” and “legion.” Specifically, he points to Bundock’s lack of research into the Lupinacci case and to his failure to challenge the validity of Miller’s confessions although Miller had provided him with cause to dispute whether they had been made voluntarily. These failures, however, must be viewed in light of the agreement reached between the state and Bundock regarding Miller’s insanity plea.

The standard used to review claims of ineffective assistance of counsel is whether defense counsel’s performance was “reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975); see also Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985); State v. Chairamonte, supra, 63. The burden here is on Miller to prove that counsel did not meet this standard; Levine v. Manson, supra, 640; State v. Chairamonte, supra; State v. Clark, supra; and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984).

“[A] court will not second guess the tactics and strategy chosen by trial counsel after reasonable investigation and research.” Whitehead, Constitutional Criminal Procedure, 371-72; see also Strickland v. Washington, supra, 689; Aillon v. State, 597 F. Sup. 158, 164 (D. Conn. 1984); Levine v. Manson, supra, 648. Although we might, given the benefit of 20/20 hindsight, conclude that Bundock’s approach was not the best possible one, “the claim of ineffective representation must be examined as of the time the questioned representation occurred.” Levine v. Manson, supra, 649; Siemon v. Stoughton, 184 Conn. 547, 554, 140 A.2d 210 (1981). Bundock knew of the Lupinacci investigation long before Miller’s trial and, as the court below found, “on the strength of all the information available to him he had come to the conclusion that the best defense for his client was a plea of not guilty by reason of insanity.” This decision required Bundock to consider the possibility of conviction for all five murders for which he was indicted and a resulting possible maximum sentence of 125 years; General Statutes § 53a-35 (c) (1) (Rev. to 1971); as well as the possibility of acquittal of the charges if he chose to pursue a complete acquittal. His decision to opt for the security of an agreement with the prosecution was well within the bounds of prudent advice to his client. It certainly did not “so [undermine] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result” as required by Strickland v. Washington, supra, 686. Nor has Miller established that, but for Bundock’s decision, the result for him would have been different, i.e., that he would have been acquitted of the charges against him. Id., 2068. We conclude, therefore, that Miller has not sustained his burden of proving a violation of his constitutional right to the effective assistance of counsel.

Miller’s second claim is that Gormley committed misconduct by failing to provide Bundock with the exculpatory evidence contained in the Lupinacci file. This claim is premised upon the holding in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), where the Cpurt stated that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment . . . .’’Id., 87.

In cases, such as the present one, where only an initial general request for “any exculpatory information or material” has been made, it has been held that “there is no significant difference between cases in which there has been merely a general request for exculpatory matter and cases . . . in which there has been no request at all.” United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). Consequently, the test applied for determining the materiality of evidence where no request has been made is equally applicable to the present case. That test is whether “the omitted evidence creates a reasonable doubt [about the defendant’s guilt] that did not otherwise exist . . . .” Id., 112.

Technically, the Agurs test is not applicable to this case because Miller was found not guilty by reason of insanity. Nevertheless, since we have concluded that practical justice requires us to consider the combined effect of the finding of not guilty by reason of insanity together with the plaintiff’s continued involuntary confinement at the Whiting Forensic Institute, we will apply the general principles of Brady concerning the prosecution’s failure to disclose exculpatory evidence to this case. Accordingly, we must determine whether it is reasonably certain that the contents of the Lupinacci file should have caused Bundock to change his mind about his decision to recommend that Miller adopt an insanity plea, and that, had he done so, upon a trial after a plea of not guilty, a reasonable doubt would have been created by the Lupinacci material. Even if we assume, arguendo, that, had the Lupinacci evidence been admitted at such a trial, it would have created a reasonable doubt, nonetheless the first part of the test is still not met in this case.

There is a point at which the prosecution must yield exculpatory evidence which has not been requested by the defense, but, as the Court said in United States v. Agurs, supra, “we have rejected the suggestion that the prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel . . . .’’Id., 111. We must, necessarily, leave the initial determination of what to surrender voluntarily, to the prosecution. Id., 107. We can only subsequently determine whether the failure to surrender evidence was “of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Id., 108. We conclude that, in the unusual circumstances of this case, the state’s attorney’s failure to turn over the Lupinacci evidence to the plaintiff did not deny the plaintiff a fair trial.

From our vantage point, twelve years after the events, we must assay the factors leading to Bundock’s handling of the case as he did. He was an experienced criminal defense lawyer. He knew both the strengths and weaknesses of the state’s case against his client. He knew of Miller’s confessions and other highly incriminating evidence and he knew of the unanimous opinions of the psychiatrists who had examined Miller that he was insane. He knew of the probable lengthy incarceration, tantamount to the duration of his client’s life, that Miller would face if he were convicted on all three counts, or possibly on all five counts upon which Miller had been indicted had he not accepted the agreement with the prosecution to plead not guilty by reason of insanity. He came to the reasonable conclusion that his client was, in fact, guilty and needed confinement in an institution and close supervision and treatment. Under General Statutes § 53a-47, the superintendent of the institution was required to file a report with the court every six months with respect to Miller’s condition. Further, General Statutes § 53a-47, at the time of Miller’s commitment, placed the burden upon the state to establish, upon the preponderance of the evidence, that the defendant was mentally ill. To sum up the situation Bundock faced, he chose a path which meant that his client, against whom the evidence was sufficiently strong, not only for a grand jury to indict him on five counts of murder, but, in all likelihood, to convict him of one or more of those murders, would not go to prison but rather would either be confined in a hospital, which all medical testimony indicated was appropriate, or be released as a free man. Applying, as we do, the Brady exculpatory rules, we cannot conclude that, had Bundock received all of the Lupinacci data in the state’s possession, his resulting analysis thereof would have been reasonably certain to cause him to handle the case differently.

There is no error.

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). such person should be released prior to the expiration of the maximum period, in accordance with the standards set forth in subdivision (1), provided such a hearing shall be held at least every five years.”

       General Statutes (Rev. to 1971) § 53a-47(e), at the time of Miller’s confinement, provided: “(1) Upon certification by the superintendent of the hospital or institution that, in his opinion, such person is no longer mentally ill to the extent that his release would constitute a danger to himself or others, the court may order the release of the person confined at the expiration of thirty days from the time such certificate is filed.
      (2) At the time such certificate is filed with the court, a copy shall be furnished to the state’s attorney or prosecutor who may request a hearing as to whether such person should be released. At such hearing, evidence of mental condition may be submitted. The confined person shall be released unless the state establishes by a preponderance of the evidence that such person is, at the time of hearing, mentally ill to the extent that his release would constitute a danger to himself or others. (3) The superintendent shall, during such confinement, submit to the court at least every six months a written report with respect to the mental condition of such person. Copies of such report shall be furnished to the state’s attorney or prosecutor and counsel for the confined person. The court, upon its own motion or at the request of the parties, may at any time hold a hearing to determine whether

       We face, at this point, what appears to be a case of first impression in this country: Whether Miller could have appealed from the court’s judgment of not guilty by reason of insanity. Since, in our view of the case, it is not necessary to rule on this issue, we decline to do so. We note, however, that, looking to the substance of the effect of this judgment on the plaintiff rather than to the form of the proceedings, he was thereafter subject to confinement in a state mental institution for up to twenty-five years which, of course, would not have occurred had he elected to go to trial and had he been found not guilty. Thus, to some extent, he is aggrieved of the trial court’s judgment as required by Practice Book § 3000, even though that judgment conformed to his plea. Practice Book § 945, however, requires the court to notify the defendant of his right to appeal only where there has been a conviction. At the very least, his right to appeal directly was so questionable that his failure to take such an appeal should not bar our consideration of his habeas corpus petition.

       With regard to the other aspect of the Brady test, it is beyond doubt that evidence tending to prove the guilt of a third party is exculpatory with regard to the accused. In United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), the court held that “[i]f there is a duty to respond to a general request ... it must derive from the obviously exculpatory character of certain evidence in the hands of the prosecutor.” (Emphasis added.) Id., 107. This has been interpreted as requiring disclosure only where “the exculpatory nature of the information in the hands of the prosecutor is obvious.” State v. Palmer, 196 Conn. 157, 160, 491 A.2d 1075 (1985). That standard is clearly satisfied in this case.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Ralph D. Osborn v. Rocklen Automotive Parts and Service, Inc.
    (3397)
    Borden, Spallone and Daly, Js.
    Argued May 7—decision
    released July 2, 1985

      Hugh I. Manke, with whom, on the brief, was David A. Reif, for the appellant (plaintiff).

      Geoffrey A. Hecht, for the appellee (defendant).
   Daly, J.

The plaintiff instituted this action against the defendant for improperly discharging him from employment. From the granting of the defendant’s motion for summary judgment, the plaintiff has appealed.

The following facts are not in dispute. The plaintiff filed a complaint against the defendant with the commission on human rights and opportunities (CHRO), claiming that he was fired, in violation of General Statutes § 46a-60 (a) (l), because of a physical disability. The CHRO chairperson dismissed the matter for lack of sufficient evidence, and the plaintiff’s rights to further recourse were elucidated. The plaintiff failed to avail himself of the opportunity to apply for reconsideration, or to take an appeal to the Superior Court, but instead commenced this action.

The trial court rendered summary judgment for the defendant, holding that the plaintiff’s exclusive remedy was under the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-51 et seq. The plaintiff then appealed to this court.

General Statutes § 46a-83 (a) provides: “After the filing of any discriminatory practice complaint, the chairman of the commission shall refer the same to a commissioner or investigator to investigate and if the commissioner or investigator determines after the investigation that there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint, he shall endeavor to eliminate the practice complained of by conference, conciliation and persuasion.”

If these informal procedures are unsuccessful, the CHRO must certify the complaint, hold a hearing and order appropriate relief. General Statutes §§ 46a-84, 46a-86. Thereafter, any party aggrieved by a final order of the CHRO may appeal to the Superior Court. General Statutes § 46a-95 (j).

The CHRO is charged by the act “with initial responsibility for the investigation and adjudication of claims of employment discrimination. That the act does not provide an unconditional private right of action for claimants like the plaintiff is underscored by the terms of General Statutes § 46a-99, which expressly provides such a direct right of action when the allegedly discriminatory employer is a state agency.” Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216, 491 A.2d 1096 (1985). Because the plaintiff failed to follow the administrative route prescribed by the legislature for his claim of discrimination, he lacks the statutory authority to pursue that claim in the Superior Court.

The plaintiff had available to him administrative remedies that could have afforded him meaningful relief under the statutes that govern his claim of discrimination. His failure to exhaust his appellate review-procedures after bringing his complaint to the CHRO forecloses his access to judicial relief, because it deprived the trial court of jurisdiction to hear his complaint. Id., 217-18.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 46a-60 (a) provides: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation or physical disability, including, but not limited to, blindness.”


text:
    Whitney Center, Inc. v. Town of Hamden
    (2644)
    Dupont, C.P.J., Hull and Daly, Js.
    Argued February 15
    decision released July 2, 1985

      Hugh I. Manke, assistant town attorney, for the appellant (defendant).

      John W. Barnett, for the appellee (plaintiff).
   Hull, J.

The defendant appeals from the judgment of the trial court sustaining the plaintiff's appeal from the defendant’s tax assessment on the plaintiff’s real property on the assessment lists of October 1, 1980, and October 1,1981, and reducing the assessments for each of those years.

The defendant makes three major claims: (1) whether the court erred in relying upon an appraisal that was not based on the highest and best use of the subject property; (2) whether the court erred in relying upon an appraisal that did not include a calculation of maximum income; and (3) whether the court erred in overlooking the cost of construction in 1977-1978 and a 1977 bank appraisal. We find no error.

The facts, as found by the trial court, are not in dispute. The plaintiff operates a life care center on approximately 10.27 acres in Hamden. The center consists of a six-story structure containing lounges, a library, recreation rooms, laundry rooms, meeting rooms and 204 living units of various sizes, a one-story attached health care center and two garages connected to the central building by a covered walkway. Residents of the center pay a lump sum entrance endowment and a monthly service fee thereafter for the rights and services provided by the plaintiff.

For assessment purposes, the value of the plaintiffs real estate must be distinguished from the value of its business since it is the realty itself which is subject to the property tax assessment. General Statutes §§ 12-40 through 12-121. This task is complicated, in the present case, by the close relationship between the business and the land as well as by the fact that residents do not pay rent in the traditional sense.

There are three accepted methods of valuation which may be used for the assessment of real property. They are the comparable sales approach, the income approach, or the reproduction cost or cost approach. Uniroyal, Inc. v. Board of Tax Review, 174 Conn. 380, 385-86, 389 A.2d 734 (1978). The comparison sales approach was not used by the appraisers in this case since sales prices for other life care centers were unavailable. The reproduction cost approach, often used when a special purpose property must be assessed; Chrysler Corporation v. State Property Tax Appeal Board, 69 Ill. App. 3d 207, 387 N.E.2d 351 (1979); was also not used by the appraisers. Both the plaintiffs appraiser and the defendant’s appraiser agreed upon the income approach as the appropriate route to be taken in appraising the property.

Since both appraisers used this method of valuation, the defendant’s claims of error relating to the trial court’s decision to ignore the cost of construction of the center are groundless because the cost of construction is not involved in the income approach to valuation. Although valuation of some properties may appropriately involve more than one single theory of valuation, and appraisals may be made which combine the cost and income approaches; Xerox Corporation v. Ross, 71 App. Div. 2d 84, 421 N.Y.S.2d 475 (1979); such was not done in this case.

The claim of the defendant that the plaintiff relied upon an appraisal which was not based on the highest and best use of the property is also without merit. An assessment of land at its fair value, of necessity, regardless of the method of valuation, takes into account the highest and best value of the land. Hackensack Water Co. v. Borough of Old Tappan, 77 N.J. 208, 390 A.2d 122 (1978).

Having agreed upon the income method as the correct method for valuation, the appraisers disagreed on which components of the plaintiff’s total income should be attributed to the real property rather than to the business, and on the valuation of those components. The trial court concluded that “this is a case where under all the circumstances a compromise figure will most accurately reflect the fair market value.” The defendant’s arguments are, essentially, that the court should have accepted his expert’s evidence and calculations rather than substantially accepting the plaintiff’s computations.

The short answer to the defendant’s claims is found in New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 459 A.2d 999 (1983), wherein the court stated: “In determining valuation pursuant to § 49-14 [concerning deficiency judgments in a mortgage foreclosure action], the trier, as in other areas of the law, is ‘not bound by the opinion of the expert witnesses . . . . ’ Birgel v. Heintz, 163 Conn. 23, 30, 301 A.2d 249 (1972). The referee could have rejected the appraisers’ testimony ‘in whole or in part regardless of [his] belief or nonbelief of the subordinate facts relating to [their opinions]’ Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983).” New Haven Savings Bank v. West Haven Sound Development, supra, 69-70. “In an appeal from the acquisition of property by eminent domain, we concluded that ‘[ultimately, the determination of the value of the land depended on the considered judgment of the referee, taking into account the divergent opinions expressed by the witnesses and the claims advanced by the parties.’ Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 516, 172 A.2d 612 (1961).” New Haven Savings Bank v. West Haven Sound Development, supra, 69. “ ‘The evaluation of testimony is the sole province of the trier of fact. We do not retry the case. The conclusion of the trial court must stand unless there was an error of law or a legal or logical inconsistency with the facts found.’ (Citations omitted.) Maresca v. Allen, 181 Conn. 521, 523, 436 A.2d 14 (1980). We will disturb the trial court’s determination of valuation, therefore, only when it appears on the record before us that the court ‘misapplied or overlooked, or gave a wrong or improper effect to, any test or consideration which it was [its] duty to regard.’ ” New Haven Savings Bank v. West Haven Sound Development, supra, 70.

“In the present case the trial court employed the income method of valuation, the approach primarily relied upon by all of the appraisers, including the defendants’ witness. Our review of the reasoning and figures utilized by the court reveals that in determining valuation it accepted and rejected portions of each appraiser’s testimony in an effort to reach a compromise between the conflicting evidence presented. Under the circumstances of this case such an approach, which was clearly an effort to give due regard to all circumstances, was reasonable.

“We further reject the defendants’ contention that there was ‘no evidence’ upon which the court could have reached its valuation figure. When confronted with conflicting evidence as to valuation, the trier may properly conclude that under all the circumstances a compromise figure most accurately reflects fair market value. See Bennett v. New Haven Redevelopment Agency, supra, 515-16.” New Haven Savings Bank v. West Haven Sound Development, supra.

There is no error.

In this opinion the other judges concurred.

       The defendant also argued that the court erred in excluding evidence updating the 1977 bank appraisal. Since this issue is not properly presented in the defendant’s brief, under Practice Book § 3060P (c) (3), we do not consider it.


author: Covello, J.

text:
    Marshall D. Morris v. Marion J. Morris Irwin et al.
    (2905)
    Dupont, C.P.J., Borden and Covello, Js.
    Argued April 18
    decision released July 2, 1985

      Edward W. Manasse, for the appellant (plaintiff).

      Albert E. Goring, Jr., for the appellees (defendants).
   Covello, J.

By writ, summons and complaint dated July 15,1978, Marion J. Morris commenced an action against her husband, Marshall D. Morris, seeking a dissolution of their marriage. Both parties in that action were represented by counsel and in due course the matter proceeded to a four day trial before Hon. John R. Thim, state trial referee, and was aborted on October 29,1979, when counsel orally presented a proposed agreement concerning all aspects of the dissolution including the disposition of marital assets.

The referee asked the parties individually whether each understood the agreement and approved of its terms. Each responded in the affirmative. The referee then dissolved the marriage and ordered a division of the couple’s property pursuant to their stipulation which counsel had read into the record. Thereafter, a written judgment, certified by both attorneys as conforming to the judgment entered in court, was submitted and executed by the referee.

In May, 1982, Marshall D. Morris instituted this action against his former wife, the named defendant, and their sons, seeking a declaratory judgment as to the validity of certain orders entered incident to the judgment dissolving their marriage. The trial court, Pickett, J., rendered judgment upholding those orders. The plaintiff appealed.

The gravamen of the plaintiff’s claim is that the court lacked subject matter jurisdiction to dispose of the marital property as it did. He seeks to renounce his earlier agreement for that reason. We conclude that under the circumstances evident here, the plaintiff cannot contest subject matter jurisdiction and we therefore find no error.

The dissolution orders contained no provision for periodic alimony nor were there any orders of support as the two children of the marriage were already beyond the age of eighteen years. The plaintiff paid his wife $60,000 as lump sum alimony and she in turn conveyed to him her interest in five parcels of land in the town of Morris for his use for life. The decree further provided that upon the plaintiffs death or his failure to occupy the Morris property for eight continuous months, title to the land would vest in the couple’s two children. The plaintiff now claims that this latter portion of the decree constitutes an order in the nature of support for children beyond their eighteenth birthday and, as such, the court lacked subject matter jurisdiction to enter it.

“[I]t is clear that, under the common law, a trial court has inherent authority to open and modify a judgment it rendered without jurisdiction. Such a judgment is void ab initio and is subject to both direct and collateral attack. See Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260, 259 A.2d 598 (1969); Samson v. Bergin, 138 Conn. 306, 312, 84 A.2d 273 (1951); Restatement, Judgments §§ 7, 11, 117; Restatement (Second), Judgments § 15 and Introductory note to Chapter 5, p. 8 (Tent. Draft No. 6, 1979); 3 Freeman, Judgments (5th Ed.) § 1227; 47 Am. Jur. 2d, Judgments §§ 752, 753.” Broaca v. Broaca, 181 Conn. 463, 467-68, 435 A.2d 1016 (1980). “If a court has never acquired jurisdiction over a defendant or the subject matter . . . any judgment ultimately entered is void and subject to vacation or collateral attack.” Bartels v. International Commodities Corporation, 435 F. Sup. 865, 867 (D. Conn. 1977).

The traditional view has in recent years been moderated by a perception, especially in dissolution cases “ ‘that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a fill opportunity originally to contest the jurisdiction of the adjudicating tribunal. James & Hazard, Civil Procedure (2d Ed. 1977) § 13.16, esp. 695-97; Restatement (Second), Judgments § 15 (Tent. Draft No. 5 1978).’ Monroe v. Monroe, 177 Conn. 173, 178, 413 A.2d 819. Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so. James & Hazard, op. cit. 695; Restatement (Second), Judgments, supra.” Vogels v. Vogel, 178 Conn. 358, 362-63, 422 A.2d 271 (1979).

“Litigation about whether subject matter jurisdiction exists should take into account whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments. Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 468 A.2d 1230 (1983); Vogel v. Vogel, supra; Monroe v. Monroe, 177 Conn. 173, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); 1 Restatement (Second), Judgments § 12.” Arseniadis v. Arseniadis, 2 Conn. App. 239, 243-44, 477 A.2d 152 (1984).

In the present case, we are confronted with a collateral attack on a 1979 Connecticut judgment which was more than two and one-half years old when this challenge was instituted. No appeal was taken from the original judgment. Not only did the plaintiff have the opportunity to litigate jurisdiction in the original action, he created the jurisdictional problem by asking the court to adopt his agreement in the original dissolution proceedings. His attorney joined in presenting a written proposed judgment to the court, certified as being in conformity with the oral judgment rendered by the referee.

The plaintiff does not argue that an ambiguity, mistake or misrepresentation exists. He simply claims that the court was without jurisdiction to accept and order the very terms of the agreement which he himself submitted to the court for adoption. Under such circumstances we are unable to find the “strong policy reasons for giving him a second opportunity to [challenge jurisdiction].” VogelY. Vogel, supra, 363. “[A] party cannot belatedly contest subject matter jurisdiction when he ‘was fully aware of the consequences of the [decree] and had the opportunity to fully litigate the question of jurisdiction in the original action, but, by stipulation, agreed without reservation to the terms of the orders which he now challenges.’ Vogel v. Vogel, 178 Conn. 358, 363, 422 A.2d 271 (1979); Monroe v. Monroe, supra, 178; James & Hazard, Civil Procedure (2d Ed. 1977) § 13.16, pp. 695-96; 1 Restatement (Second), Judgments § 12, esp. comment c (1982).” Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 560, 468 A.2d 1230 (1983).

We do not countenance the principle that the parties can, simply by entering a stipulation, confer subject matter jurisdiction on the court. We hold only that, under the circumstances of this case, the plaintiff cannot make a belated and collateral attack on the original judgment of the court.

There is no error.

In this opinion the other judges concurred.


author: Dupont, C.P.J.

text:
    Stephen T. Huber et al. v. St. Labre Indian School Educational Assn. et al.
    (2565)
    Dupont, C.P.J., Hull and Daly, Js.
    Argued February 15
    decision released July 2, 1985

      Eugene C. Cushman, with whom was John C. Carta, for the appellant (named plaintiff).

      Gordon M. Lucey, for the appellees (defendants).
   Dupont, C.P.J.

This case presents the question of whether the. trial court erred in dismissing the named plaintiff’s probate appeal from a decree denying the executor’s application to sell certain real property.

The executor of the estate of Cleo M. Millerbaugh moved pursuant to General Statutes §§ 45-238 and 45-241 for an approval of a private sale of certain property to the plaintiff. The terms of the sale were alleged to be in accordance with the testatrix’ intent as expressed in her will. The relevant testamentary language was as follows: “FIFTH: If I own the house on Ferry Road in Old Saybrook, Connecticut presently occupied by me as my home at the time of my death, I direct that said property (three acres, more or less), the house and outbuildings with all of their contents, lock, stock and barrel, be sold, preferably to someone who would live in the house and who would appreciate its historical significance, but in any event to a buyer who meets with the approval of Celia Jacobs Stevenson, now or formerly of North Granby, Connecticut 06060.

“Stephen T. Huber of East Lyme, Connecticut, if he survives me, is to have first refusal to buy the property (three acres, more or less) and the house and outbuildings with all of their contents, lock, stock and barrel, at a price deemed reasonable to him; provided the price meets with the approval of Celia Jacobs Stevenson. I direct that Celia Jacobs Stevenson be reimbursed for any expenses which she may incur as a result of this provision, and that she also receive a reasonable fee for her services.”

The Probate Court, after notifying the interested parties and holding a hearing, denied the application to sell the property privately. The executor and the plaintiff pursuant to General Statutes § 45-288 appealed that denial to the Superior Court, which affirmed the denial.

The Probate Court stated its reasons for denying the application. The first reason was that the pertinent clause in the will, particularly the language “first refusal” was ambiguous and therefore the will had to be construed which was beyond its jurisdiction. It also reasoned that the sale price was significantly below the appraised value and, consequently, that the best interests of the charitable residuary beneficiary, the defendant St. Labre Indian School Educational Association, would not be served by such a sale.

The Superior Court, sitting as an appellate court of probate, construed the will and held that the relevant testamentary language concerning the right of first refusal was void for uncertainty. Furthermore, it implicitly found Celia Jacobs Stevenson was a fiduciary and owed a duty to all the beneficiaries of the estate, which she breached by agreeing to a sale price well below the appraised value and by purchasing certain personalty from the estate through the plaintiff. Additionally, the court found that the executor sold personalty to the plaintiff separately, contrary to the express provisions of the testatrix’ will.

On appeal, the plaintiff claims that the trial court erred in concluding (1) that the clause in the testatrix’ will concerning the right of first refusal to purchase the property was void, (2) that Stevenson breached a duty owed to the other beneficiaries, and (3) that the executor violated the express provisions of the will. The defendants filed, pursuant to Practice Book § 3012, a preliminary statement of issues presenting alternate grounds for upholding the Superior Court’s decision and, in the event a new proceeding is required, they presented for review several adverse rulings.

The central issue on appeal is whether the trial court erred in construing the relevant testamentary language. Before addressing the merits of this issue, this court must determine whether the trial court acted within its jurisdiction. The Probate Court denied the application for a private sale since the request required the Probate Court to engage in a construction of the will. The plaintiff and the executor, rather than commencing an action to construe a will, as directed by the Probate Court, took an appeal pursuant to General Statutes § 45-288.

“The General Assembly has not empowered them [Probate Courts] to determine directly and conclusively the construction to be given to wills and codicils.” Burnham v. Hayford, 141 Conn. 96, 100, 104 A.2d 217 (1954). Probate courts are without jurisdiction to construe a will unless the construction “is merely incidental to the determination of a matter within the court’s express statutory jurisdiction.” Id., 100-101; see Hart ford National Bank & Trust Co. v. Willard, 175 Conn. 372, 383, 398 A.2d 1186 (1978). “In an appeal from probate, the Superior Court exercises the limited statutory jurisdiction of the Probate Court.” Marshall v. Kleinman, 186 Conn. 67, 69, 438 A.2d 1199 (1982); 1 Locke & Kohn, Connecticut Probate Practice § 216.

In this case, the Probate Court, recognizing that it had no power to construe a will, and that any construction was not incident to a determination of to whom a sale should be made within the express statutory authority of General Statutes § 45-238, correctly directed that the plaintiff and the executor bring an action to construe the will. Here, the testatrix’ will provided the executor with power to sell the real estate without the approval of the Probate Court. The trial court, therefore, exceeded its jurisdiction by construing the testatrix’ will since that construction was not merely incidental to deciding whether to authorize a sale. Although the trial court arrived at the correct result, the judgment is affirmed on different grounds. Satti v. Rago, 186 Conn. 360, 369, 441 A.2d 615 (1982).

There is no error.

In this opinion the other judges concurred.

       The executor of Cleo M. Millerbaugh’s estate, H. Judson Carr, was also named as a plaintiff but is not involved in this appeal. Stephen T. Huber is hereinafter referred to as the plaintiff.

       General Statutes § 45-238 provides in pertinent part: “(a) Upon the written application of the conservator of the estate of any incapable person, guardian of the estate of any minor, administrator or trustee appointed by the court, including a trustee of a missing person, or the executor or trustee under any will admitted to probate by the court, after public notice and other notice which the court may order and after hearing, the court may authorize the sale or mortgage of the whole or any part of, or any easement or other interest in, any real property in this state of any incapable person, minor, missing person, deceased person or trustee, or of any real property the legal title to which has been acquired by such administrator, executor or trustee, if the court finds it would be for the best interests of the parties in interest to grant the application.”

       General Statutes § 45-241 (a) provides: “The court of probate in ordering a sale under the provisions of sections 45-238, 45-240 to 45-244, inclusive, and 45-27M shall direct whether the sale shall be public or private. If a public sale is directed, the court shall direct the notice thereof which shall be given. If a private sale is directed, the court may, if it appears to be for the best interests of the estate, determine the price and the terms of the sale, including purchase money mortgage or mortgages, as it considers reasonable and advisable.”

       In light of our holding that the trial court exceeded its jurisdiction by construing the will, this court does not reach the issues presented involving alternate grounds on which the trial court’s decision may be upheld.

       Courts regularly construe wills, divining the testatrix’s intent by examining the language used and the relevant surrounding circumstances. Kane v. Kane, 107 Conn. 716, 721, 142 A.2d 466 (1928). It is a rare case where a will provision cannot be given effect because it is void for uncertainty. Other jurisdictions have been able to interpret similar testamentary language to that at issue here. Weiskircher Estate, 384 Pa. 619, 122 A.2d 60 (1956); Snyder v. Snyder, 75 Iowa 255,39 N.W. 297 (1888); annot., 13 A.L.R. 4th 947.

       Paragraph eight of the will provided the executor the power to sell any realty or personalty of the estate.


author: Per Curiam.

text:
    Helen M. Gilhuly v. Constantine P. Karazulas et al.
    (2952)
    Dupont, C.P.J., Hull and O’Neill, Js.
    Argued April 19—decision
    released July 9, 1985

      Morgan P. Ames, for the appellant (plaintiff).

      Francis A. Smith, Jr., with whom, on the brief, was Thomas W. Witherington, for the appellees (named defendant et al.).

      Max Frauwirth, for the appellee (defendant C. J. Fortiokis).
   Per Curiam.

The plaintiff appeals from the judgment rendered on a jury verdict in favor of the defendants, as contrary to law, against the evidence and inadequate. Basically, she claims that the trial court erred in failing to charge the jury properly with reference to certain remarks made by counsel for one of the defendants during his closing argument. We find no error.

The plaintiff brought this action seeking damages for injuries which she allegedly received as the result of a fall on premises owned by the named defendant and his wife, and leased by the defendant C. J. Fortiokis. After all the parties had rested, they made final argument, none of which was recorded. During the course of his argument, counsel for one of the defendants made some statements to which the plaintiffs attorney excepted.

This court is bound by the record presented, and will not consider claims of improper argument where the closing argument has not been recorded and cannot be reconstructed. State v. Vitale, 190 Conn. 219, 226, 460 A.2d 961 (1983).

There is nothing in the record to show any prejudice to the plaintiff arising from any comments made during final arguments. Cf. Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 203-205, 470 A.2d 705 (1984). The plaintiff, not having requested the recording of final arguments, is deemed to have acquiesced in the procedure and has waived any right to object to any impropriety therein. State v. Bowman, 3 Conn. App. 148, 157, 485 A.2d 1343 (1985).

There is no error.

       The transcript reveals that the following discussion took place during final argument by attorney Frauwirth, counsel for the defendant Fortiokis:
      “Mr. Ames: If he’s going to read anything that was not read during the trial, of course, I object to that. He’s limited to what came into evidence.
      “Mr. Frauwirth: All right.
      “The Court: I don’t know what he’s going to read.
      “Mr. Ames: I suspect.
      “Mr. Frauwirth: You suspect what?
      “Mr. Ames: I suspect you’re about to read something that was not read during the trial.

        “Mr. Frauwirth: Was a deposition taken in the presence of you and your client?
      “Mr. Ames: There was.
      “Mr. Frauwirth: You object if I make some comment about it?
      “Mr. Ames: I do unless it was read during the trial.
      “The Court: Anything in the deposition is not admissible unless it came out.
      “Mr. Frauwirth: I read some articles. Yes, your Honor. . . .
      “Mr. Ames: Wait a minute. I must object to this, he’s not entitled to bring up old newspapers that are not in evidence.
      “The Court: I don’t know what he’s going to say.
      “Mr. Frauwirth: If they wanted to prove to you that it was cloudy, they had a means of finding out it was cloudy. The Bridgeport publication everyday puts in this column—
      “Mr. Ames: You see, your Honor.
      “The Court: You can’t show that to the Jury.
      “Mr. Ames: This is a gross impropriety. He has no right to bring in old newspapers.
      “The Court: I don’t know whether he’s going to tell them what is in that newspaper or whether he’s going to say that you have a way of determining what the climatic conditions were on that day. He hasn’t told them what is in the newspaper.
      “Mr. Ames: He’s shown them the newspaper. He held the newspaper up in front of them.
      “Mr. Frauwirth: All I’m telling you is this: If they want to prove it’s a cloudy day or the sun was shining, there’s means of proof. . . .
      “Mr. Ames: I object. The testimony was he is an optometrist, not an optician.
      “Mr. Frauwirth: Very good, he’s an optometrist. . . .
      “Mr. Frauwirth: Am I within my rights to quote from a disclosure in compliance with—
      “Mr. Ames: I do object.
      “The Court: I’ll sustain the objection. I’ll have to sustain the objection. That didn’t come out during the course of the trial.
      “Mr. Frauwirth: Okay. I haven’t vilified you.”
      Frauwirth concluded his final argument and Ames proceeded with his rebuttal argument.


author: Satter, J.

text:
    Elizabeth Genovese, Administratrix (Estate of Alphonso Genovese) v. J. N. Clapp Company, Inc.
    (3055)
    Borden, Daly and Satter, Js.
    Argued April 25—decision
    released July 9, 1985

      William A. Leone, for the appellant (plaintiff).

      Susan Boyan, with whom were O. James Purnell III and, on the brief, Robert C. DuBeau, for the appellee (defendant).
   Satter, J.

This appeal presents the issue of whether a claimant, which did not file its claim for payment against an estate within the time limited by the Probate Court, could interpose the claim by way of recoupment in the estate’s action against it. The trial court held that it could. We agree.

The facts are as follows: The plaintiff’s decedent and the defendant corporation were excavation contractors. Over the nine years preceding the decedent’s death, they called upon each other to help out when either was involved in large jobs requiring additional men and equipment. They each kept separate books and a running account of their transactions. The exchanges of services and equipment mostly cancelled themselves out, but from time to time payments were made from one to the other.

At the time of the decedent’s death in 1979, the balance on the running account was in the defendant’s favor but, because of the friendship between the defendant’s principal and the decedent, the principal decided to file no claim against the estate and simply to call it quits.

The plaintiff administratrix, coming upon a credit in the decedent’s account books against the defendant for $19,950, made demand for payment and, on the defendant’s refusal, instituted this action. At the trial, the defendant conceded that it owed the decedent at the time of his death almost $20,000, but also proved that the decedent owed it approximately $37,000. The trial court allowed the defendant to recoup its claim to the extent of the plaintiff’s claim and rendered judgment for the defendant.

In this appeal, the plaintiff does not dispute the finding of the trial court that the balance of the accounts was in the defendant’s favor. Rather, invoking General Statutes § 45-205, she argues that the trial court erred in allowing the defendant to assert its claim by way of recoupment in this action, when it failed first to file it timely against the estate.

General Statutes § 45-205, commonly referred to as the nonclaim statute, empowers courts of probate to limit the time within which creditors must file their claims against estates and provides that if a creditor fails to exhibit his claim within the time ordered, “he shall be barred of his demand against such estate.” Compliance with the statute is a prerequisite to the plaintiff bringing an action on his claim and recovering against the estate. State v. Goldfarb, 160 Conn. 320, 325, 278 A.2d 818 (1971); Beard’s Appeal, 78 Conn. 481, 483, 62 A. 704 (1906).

If the defendant here had sued to recover the approximately $37,000 from the estate without having first timely filed its claim with the administratrix, it would have been barred by the nonclaim statute. If it had counterclaimed in this action for the difference between the approximately $37,000 the estate owed it and the approximately $20,000 it owed the estate, it would have been barred by the statute. But when it interposed its claim solely by way of recoupment to defeat the estate’s action against it, the claim is not barred by the statute.

Recoupment means “keeping back something which is due, because there is an equitable reason to withhold it.” Black’s Law Dictionary (5th Ed. 1979). The defense of recoupment has two characteristics: (1) the defense arises out of the transaction constituting the plaintiff’s cause of action; and (2) it is purely defensive, used to diminish or defeat the plaintiffs cause, but not as the basis for an affirmative recovery. Id. It rests on the principle that both sides of a transaction should be settled at one time in order to prevent circuity of actions. Beecher v. Baldwin, 55 Conn. 419, 432, 12 A. 401 (1887); 20 Am. Jur. 2d, Counterclaims, Recoupment and Set-Offs § 6.

Recoupment is available defensively as long as the plaintiffs cause of action exists. It may be asserted even though the defendant’s claim, as an independent suit, is barred by the statute of limitations. Beecher v. Baldwin, supra, 431; Jewett City Trust Co. v. Gray, 35 Conn. Sup. 508, 510, 390 A.2d 948 (1977).

Similarly, our courts have long held that the claim, barred by General Statutes § 45-205 or its predecessors, may be asserted, by way of recoupment, in an action brought by the estate against the claimant. Berrigan v. Pearsall, 46 Conn. 274, 276-77 (1878). The Supreme Court noted in Berrigan v. Pearsall, supra, that under the nonclaim statute, “[i]f the party neglects to present his claim within the time limited he loses his right of action against the estate. . . . [T]he debt was not paid [however] by the defendant’s omission to present it ... it was justly and equitably his due, as much after as before the expiration of the time limit, but by reason of the statute he was deprived of his remedy and could not enforce its payment. But it by no means follows that he could not make it available as an offset against a claim in favor of the estate . . . .” Id. The court reasoned that it would be “grossly inequitable” to do otherwise. Id., 276.

The purpose of General Statutes § 45-205 is to require that an administrator or executor be informed of the claims against the estate in order to allow him to pass upon them, and thereby to speed settlement of estates. Breen v. Phelps, 186 Conn. 86, 101, 439 A.2d 1066 (1982); Schwarzchild v. Binsse, 170 Conn. 212, 216, 365 A.2d 1195 (1976). The plaintiff argues that permitting the defense of recoupment would contravene that purpose. Her contention has no merit. Recoupment no more prolongs settlement of estates than any other defense to an estate’s cause of action.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 45-205 provides in pertinent part: “(a) The court of probate may order the citation of the creditors of the deceased whose estate is in settlement before it to bring in their claims against such estate within such time, not more than twelve months nor less than three months, from the date of such order ....
      “(b) If any creditor fails to exhibit his claim to the fiduciary or his attorney as directed in such order, within the time limited by such order, he shall be barred of his demand against such estate . . . . ”

       It is true, as the plaintiff argues, that Berrigan v. Pearsall, 46 Conn. 274 (1878), referred in dictum to the nonclaim statute as a statute of limitations, and that State v. Goldfarb, 160 Conn. 320, 325, 278 A.2d 818 (1971), made clear that it is not a statute of limitations but simply imposes a condition precedent to recovery against a solvent estate. State v. Goldfarb, supra, did not, however, overrule the holding of Berrigan v. Pearsall, supra, which remains the law of our state.


text:
    Eula Wiley et al. v. Douglas Lloyd, Commissioner of Health Services
    (3096)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued May 7—decision
    released July 9, 1985

      Diane Polan, for the appellant (plaintiff Eleanor Theriault).

      Jane S. Scholl, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Hull, J.

This appeal by the plaintiff Eleanor Theriault, arises out of the trial court’s disposition of several pretrial orders which culminated in the striking of the plaintiffs’ complaint, based upon their lack of standing to bring this action, and in a subsequent judgment of dismissal. The defendant has also presented, pursuant to Practice Book § 3012 (a), an alternative ground upon which the decision of the trial court may be affirmed. He claims that the court erred in denying his motion to dismiss for lack of subject matter jurisdiction because the plaintiffs failed to allege facts sufficient to overcome the bar of sovereign immunity. We agree.

Theriault was a plaintiff in a marital dissolution action in the New Haven judicial district when she commenced the present action pursuant to 42 U.S.C. § 1983. She claimed that the defendant violated her constitutional rights by requiring her to provide the information requested in the “health form” VS-63, required under General Statutes § 46b-68. That form requested information regarding her race and that of her spouse, their respective educational backgrounds, number of prior marriages and marital histories. The form is supplied to the clerks of the Superior Court by the defendant. Theriault did not allege that her final decree had been denied on the basis of her failure to provide the information requested in the form. We take judicial notice of the fact that her final decree was granted on November 22, 1983. See State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476 (1964).

On November 29,1983, the court granted the defendant’s motion to strike the complaint. That motion alleged that the plaintiffs lacked standing to bring their action because of their failure to allege any injuries caused by the defendant. The court, Celotto, J., concluded that neither the injury nor a causal connection with the defendant’s actions were sufficiently alleged to withstand a motion to strike. After the plaintiffs failed to file a new pleading, the defendant moved for judgment. That motion was granted by the court, Hadden, J., which rendered a judgment of dismissal on January 4, 1984, and the plaintiff Theriault filed the present appeal. Because we conclude that the defendant’s alternative ground for affirming the trial court’s decision is dispositive of this case, we do not reach Theriault’s claims of error.

The doctrine of sovereign immunity involves the jurisdiction of the court over the subject matter of the action. Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977), quoting Block, “Suits Against Government Officers and the Sovereign Immunity Doctrine,” 59 Harv. L. Rev. 1060, 1061 (1946); Horak v. State, 171 Conn. 257, 262, 368 A.2d 155 (1976). Consequently, a motion to dismiss the complaint is, pursuant to Practice Book § 143 (1), the appropriate procedural vehicle by which to raise a claim that sovereign immunity bars an action.

“In a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts.” Sentner v. Board of Trustees, 184 Conn. 339, 343, 439 A.2d 1033 (1981). Theriault and the trial court have both relied upon Sentner v. Board of Trustees, supra, for the test to be applied in determining whether a complaint sufficiently alleges unconstitutional acts to overcome the doctrine of sovereign immunity. The trial court found that the allegations of this complaint defeated the sovereign immunity bar as defined by Sentner, and Theriault, naturally, agrees with this analysis. We conclude, however, that Sentner does not speak to the issue for which she seeks to use it.

In Sentner, the trial court had overruled a demurrer to the complaint, as here, but the Supreme Court was dealing with an appeal on the merits of the case after a full trial. Id., 341. No error had been claimed in the overruling of the demurrer. Thus, the opinion does not address the issue of the sufficiency of allegations. Rather, it dealt with the merits of the appeal on the presumption that the allegations of the complaint were sufficient. Id, 343-45.

In Upson v. State, 190 Conn. 622, 461 A.2d 991 (1983), however, the claims of error in the appeal specifically raised the trial court’s dismissal of the plaintiff’s complaint on sovereign immunity grounds. There the court held that “ ‘[t]he complaint, to survive the defense of sovereign immunity, must allege sufficient facts to support a finding of a taking of [property] in a constitutional sense . . . . ’ Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976). Where ‘the complaint is insufficient to establish an unconstitutional taking . . . the doctrine of sovereign immunity is a sufficient bar to the jurisdiction of the court.’ Id., 262. In the present case the trial court took no evidence. It was, however, required to determine the sufficiency of the claim of an unconstitutional taking, as alleged by the plaintiff, in order to determine the validity of the sovereign immunity averment which was the basis of the defendant’s motion to dismiss.” Upson v. State, supra, 625. Although the present case does not involve a taking of property, it is clear that the test to be derived from Upson is whether or not sufficient facts of unconstitutional activity have been alleged to overcome the sovereign immunity bar.

In the present case, the allegations of Theriault’s count of the complaint are far from sufficient to overcome that bar. She does not allege that the clerk of the court has even asked for the health form to be completed. Nor does she allege that her decree of dissolution has been denied based upon her failure to complete that form. She merely alleges that she “does not want to” provide the information requested on the form. We conclude that such allegations are insufficient, as a matter of law, to overcome the bar of sovereign immunity.

Since we conclude that the allegations of the complaint did not overcome the bar of sovereign immunity, the court had no jurisdiction over the action.

There is no error.

In this opinion the other judges concurred.

       Eula Wiley, the named plaintiff, has not filed an appeal from the judgment of the trial court. Hence, Eleanor Theriault is the only appellant herein.

       The pretrial orders and rulings at issue include the denial of the plaintiffs’ amended motion for class certification, the denial of the plaintiffs’ motion to reargue the denial of class certification, the granting of the defendant’s objection to the motion to reargue class certification, the denial of the motion of Elizabeth Antrum to intervene as a plaintiff, and the granting of the defendant’s motion to strike the complaint.


author: Borden, J.

text:
    Daniel Jack II v. William Scanlon et al.
    (3467)
    Hull, Borden and Spallone, Js.

      Argued May 9—decision
    released July 9, 1985

      Howard B. Field III, for the appellants (defendants).

      Richard P. Weinstein, for the appellee (plaintiff).
   Borden, J.

This appeal raises as its principal issues the propriety and constitutionality of an award of double damages pursuant to General Statutes § 14-295. The case arose from the following facts: The plaintiff was southbound on a highway divided by a median strip. The defendant, driving a rented car, was northbound. At a break in the median, he prepared to make a left turn. In so doing, his car crossed into the southbound lane, in which the plaintiff was driving. The two cars collided. The plaintiff suffered injuries, and brought this action seeking compensatory damages. The plaintiff was permitted to amend his complaint, over the defendant’s objection, to add claims for exemplary damages and double or treble damages pursuant to General Statutes § 14-295.

The defendant admitted negligence but not recklessness as alleged in the complaint. A hearing in damages was held and the jury awarded compensatory damages in the amount of $22,000. The award was accepted by the court. The court then considered the plaintiff’s claim for damages pursuant to General Statutes § 14-295 upon the same evidence, and found that the defendant’s conduct warranted an award of double the compensatory damages, increasing the damages to $44,000. The court also assessed exemplary damages, which the parties agreed would be one half of the jury’s award of compensatory damages, or $11,000. The total recovery by the plaintiff was $55,000.

On appeal, the defendant challenges the propriety of the court’s award of double damages pursuant to General Statutes § 14-295, and its consideration, when making that award, of evidence that the defendant was driving after drinking. The defendant further claims that General Statutes § 14-295 is unconstitutional because it lacks sufficient standards to guide the court in its decision whether to double or treble damages. We find no error.

The court’s application of General Statutes § 14-295 was proper. The statute permits the assessment of double or treble damages against “[e]ach person who, by neglecting to conform to any provision of sections 14-230 to 14-242, inclusive, or section 14-245, or 14-247, causes any injury to the person or property of another ... if, in the discretion of the court in which any action is pending, double or treble damages are just

The defendant admitted the allegations of the complaint which asserted liability. His liability, by those assertions, had numerous bases, including acts which amounted to a violation of General Statutes § 14-242 for which double or treble damages may be assessed pursuant to § 14-295, as well as other acts of negligence for which double or treble damages are not properly assessed. Since the defendant’s admitted liability was based, in part, on a violation of one of the statutes mentioned in § 14-295, double or treble damages could properly be considered by the court.

The ultimate determination of damages pursuant to § 14-295, however, requires that liability be wholly based on a violation of one of the statutes enumerated. Leone v. Knighton, 196 Conn. 494, 496, 493 A.2d 887 (1985). This requirement is clearly enunciated in cases applying the general verdict rule, which prohibits this type of statutory damages if it is not clear from a jury’s verdict that liability was found solely on a basis authorized by that statute. See DeMilo v. West Haven, 189 Conn. 671, 676, 458 A.2d 362 (1983); Tillinghast v. Leppert, 93 Conn. 247, 250, 105 A. 615 (1919); Broschart v. Tuttle, 59 Conn. 1, 8-9, 21 A. 925 (1890). This requirement is also founded on the principle that statutes imposing a penalty should be read strictly. Dunbar v. Jones, 87 Conn. 253, 256, 87 A. 787 (1913); Cantor v. State Board of Electrical Examiners, 3 Conn. App. 707, 710, 492 A.2d 194 (1985).

The requirement that the defendant’s liability rest on a statutory foundation was met. The court found in its oral decision on the statutory damages that the evidence before it, including the defendant’s admission that he made a left turn without stopping for the plaintiffs approaching car, indicated that the specific basis of the defendant’s liability was the violation of General Statutes § 14-242. This is one of the statutory violations listed in § 14-295 as a permissible basis for awarding double or treble damages. The court, therefore, properly went on to determine, pursuant to § 14-295, if this was a situation in which double or treble damages would be just.

Awards of double or treble damages under § 14-295 are not required simply because a defendant has been found to have violated one of the named statutes. Rather, such damages are assessed based on the degree of the defendant’s culpability. Cristilly v. Warner, 87 Conn. 461, 469, 88 A. 711 (1913) (Beach, J., dissenting), overruled on other grounds, Daury v. Ferraro, 108 Conn. 386, 143 A. 630 (1928); Goldfarb v. Bragg, 39 Conn. Sup. 228, 229, 475 A.2d 346 (1984); Eustace v. Adley Express Co., 1 Conn. Sup. 58, 59 (1935). As aptly stated in Eustace v. Adley Express Co., supra, and reiterated in Goldfarb v. Bragg, supra, “the imposition of the penalty of double or treble damages should be reserved for cases which involve offenses more serious than simple negligence. Such a penalty should be imposed only where the violation of the rules of the road has been deliberate or at least under conditions which indicate that the defendant was conducting himself with reckless disregard of the rights of others.”

The court properly reviewed all the circumstances of the accident in order to determine whether the defendant’s conduct was culpable enough to assess damages against him. In doing so, the court correctly considered evidence of the defendant’s drinking prior to the accident as one of the relevant circumstances. General Statutes § 14-295 does not limit the court’s review solely to evidence of the acts which violated one of the statutes named in § 14-295 and brought that statute into play. Those acts must be the basis of the defendant’s liability and thereby make the damages under § 14-295 available; they are not, however, the only events which the court may consider in determining whether to award double or treble damages. The statute permits the court to view the defendant’s conduct as a whole to determine if such damages would be just. In this case, the court’s determination to award double damages was based on the statutory violation of § 14-242, and on the evidence of the defendant’s drinking before driving and failure to recollect events after the accident. The defendant has chosen not to file a transcript of the evidence. See footnote 3, supra. Thus, we have no basis on which to question the sufficiency of that evidence. We cannot say that, under these circumstances, the court’s determination was an abuse of its discretion. See Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 296-97, 472 A.2d 306 (1984).

The defendant contends that § 14-295 is unconstitutional, however, because it fails to state adequate standards for the court to use in determining whether to award double or treble damages. His burden, which is heavy; Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 135, 479 A.2d 231 (1984); is to show that, under the facts of this case, the statute does not provide adequate standards for the proper and consistent administration of the statute; see State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980); and that those charged with its enforcement and administration are able by its terms to apply it on a subjective basis and in a discriminatory manner. See Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). We conclude that he has not met this burden.

The defendant’s observation that the language of the statute is broad and confers an imprecise standard on the court by permitting damages “if, in the discretion of the court . . . double or treble damages are just,” is accurate. The lack of precision in a statute, in and of itself, however, is not enough to violate due process. Roth v. United States, 354 U.S. 476, 491, 77 S. Ct. 1304, 1L. Ed. 2d 1498 (1957); Seals v. Hickey, 186 Conn. 337, 344, 441 A.2d 604 (1982); State v. Anonymous, 179 Conn. 155, 164, 425 A.2d 939 (1979). Statutes challenged on the basis that they lack adequate standards are construed with reference to “judicial opinions involving the statute, the common law, legal dictionaries or treatises.” State v. Perruccio, 192 Conn. 154, 159, 471 A.2d 632 (1984); State v. Pickering, supra, 62-63. “Persons who may be affected by [a statute] should be able to determine what conduct or procedure on the part of the court that may affect them is permitted or required by reference to the wording of the statute together with whatever judicial gloss may be available to interpret its wording.” Seals v. Hickey, supra. Our review of § 14-295 reveals that a judicial gloss has been added to it, which has created a sufficient standard to guide the courts.

As previously discussed, this statute has been applied, at both the trial and appellate levels, in a limited manner. A “more than mere negligence” standard has been created, based on the culpability of the defendant’s conduct; Cristilly v. Warner, supra; Goldfarb v. Bragg, supra; Eustace v. Adley Express Co., supra; which is reviewable for any claimed abuse. See Seals v. Hickey, supra, 348. This judicially created standard precludes unlimited and arbitrary discretion by the court in its application of this statute. “Our case law over the years has delineated [the] parameters [of the court’s discretion in applying the statute] in a manner amenable to the exercise of judicial power in the trial court, and, thereafter, to meaningful judicial review.” Id., 349. This judicial gloss leads us to conclude that the statute is not unconstitutional for lack of adequate standards in its administration. See id; State v. Pickering, supra, 64; Monroe v. Monroe, 177 Conn. 173, 180, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); see also Miller v. Schoene, 276 U.S. 272, 281, 48 S. Ct. 246, 72 L. Ed. 2d 568 (1928).

There is no error.

In this opinion the other judges concurred.

       The other defendant in this case was the corporation from which the named defendant rented the vehicle. We refer to the driver of the car as the defendant, although our decision affects both defendants.

       Three other issues were briefed by the defendant but were withdrawn at oral argument before this court.

       The evidence heard by the court in this case was only that presented to the jury on the issue of damages. Although it would have been preferable for the parties to present evidence to the court specifically on the issue of liability where liability was admitted but where a more specific basis is required for the statutory damages; see Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 282, 472 A.2d 306 (1984); the parties did not request such a procedure and acquiesced in the more informal procedure followed by the trial court. Since the court’s factual findings are not challenged on appeal and no transcript of the hearing in damages was filed for us to review those findings, we accept the court’s determination of liability based on a violation of General Statutes § 14-242 even in the absence of a specific hearing on this issue.

       The defendant’s argument as stated in his brief is inartfully drafted and appears to rest on two grounds. The first is that the statute violates the equal protection clauses of the federal and Connecticut Constitutions; U.S. Const., amend. XTV, § 1; Conn. Const., art. I, § 20; by allowing plaintiffs similarly situated to recover differently depending on the court’s views of what is just. The defendant, however, lacks standing to bring an equal protection claim on behalf of plaintiffs. Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); Shelly Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 449, 489 A.2d 398 (1985), cert. granted, 196 Conn. 805, 494 A.2d 903 (1985). We address his claim only on the second ground, in which he alleges an inadequate delegation of standards under the due process clauses of the federal and state constitutions. U.S. Const., amend XIV, § 1; Conn. Const., art. I, § 8.

       We note, in addition, that the broad standard in the statute invoking judicial discretion is itself reviewable; see Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985); and has been used as a basis with which to review this statute in the past. See Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 296-97, 492 A.2d 306 (1984); Dubreuil v. Waterman, 84 Conn. 47, 53-54, 78 A. 721 (1911). “ ‘Discretion means “a legal discretion to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” ’ ” Montanaro Bros. Builders, Inc. v. Snow, supra. Since an authoritative judicial gloss has been placed on this statute by case law, specifying a more stringent standard which conforms to the spirit of this law and subserves justice, however, we need not decide whether the broad discretionary standard as set out in the statute is, by itself, constitutional.


text:
    Philip E. Tischbein v. Marian C. Tischbein
    (3187)
    Dupont, C.P.J., Hull and Daly, Js.
    Argued May 10—decision
    released July 9, 1985

      Richard S. Perles, for the appellant (plaintiff).

      Judy A. Stevens, with whom, on the brief, was Richard T. Meehan, Sr., for the appellee (defendant).
   Per Curiam.

This appeal arises from a dissolution of marriage action. The trial court rendered a judgment dissolving the marriage and awarded the defendant wife the marital residence provided she execute a note and second mortgage for $10,000 payable to the plaintiff husband on the occurence of the first of the following events: the defendant wife’s death, the closing date if the house is transferred, or on September 15,1996. In addition, the trial court permitted the defendant wife to retain her vested pension, her savings bonds and stocks, her savings and checking account, and other items of personalty. In addition to the $10,000 note, the trial court permitted the plaintiff husband to retain his ownership in two automobiles, a check for approximately $500 and any personalty presently in his possession or control. The plaintiff husband appealed that judgment.

On appeal, the plaintiff challenges the trial court’s assignment of the marital property. Connecticut’s appellate courts have repeatedly, evidently to no avail, indicated that the scope of appellate review in domestic relations is limited to determining whether the trial court could reasonably conclude , as it did. Thode v. Thode, 190 Conn. 694, 699, 462 A.2d 4 (1983); Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983); Carpenter v. Carpenter, 188 Conn. 736, 741-42, 453 A.2d 1151 (1982); Szilagyi v. Szilagyi, 3 Conn. App. 25, 28, 484 A.2d 469 (1984). This court has reviewed the record and finds that the trial court could reasonably conclude as it did.

There is no error.

       Two other claims of error were briefed by the plaintiff husband. These claims, however, are not properly before this court since the plaintiff did not include the claims in his preliminary statement of issues as required by Practice Book § 3012 (a). Bielaska v. Waterford, 196 Conn. 151, 156, 491 A.2d 1071 (1985); Barrett v. Central Vermont Railway, Inc., 2 Conn. App. 530, 536, 480 A.2d 589 (1984).


text:
    Town of Windsor v. George R. Macri et al.
    (3289)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued May 15—decision
    released July 9, 1985

      George R. Macri, pro se, with whom, on the brief, was Julia S. Macri, pro se, the appellants (defendant George R. Macri et al.).

      John A. Wall, with whom, on the brief, was Susan B. Flanders, for the appellee (plaintiff).
   Per Curiam.

The trial court rendered a judgment of strict foreclosure on the plaintiff town’s tax lien foreclosure action brought pursuant to General Statutes § 12-181. This judgment was rendered after the plaintiff moved for summary judgment against the defendants George R. Macri and Julia S. Macri, which the trial court granted. The plaintiff conceded at oral argument, and the record discloses, that a reply to the special defense interposed by those defendants had not been filed when the trial court decided the motion. Practice Book § 379 provides that a party may not move for summary judgment against any party to which the motion is directed until the pleadings are closed as to those parties. See Doublewal Corporation v. Toffolon, 195 Conn. 384, 391, 488 A.2d 444 (1985). The trial court here granted the motion for summary judgment before the pleadings were closed.

There is error, the judgment is set aside and the case is remanded for further proceedings.

       The other defendants in this action were defaulted for failure to appear or for failure to disclose a defense or for failing to plead. Thereafter, judgment against those defendants was sought and granted.