text:
    Moses J. Neiditz et al. v. Morton S. Fine and Associates, Inc.
    (2275)
    Dannehy, C.P.J., Hull and Dupont, Js.

      Argued February 29
    decision released July 24, 1984

      Louis B. Blumenfeld, with whom, on the brief, were Vincent J. Dowling and Mary L. Beardsley, for the appellant (defendant).

      Jerome E. Capian, for the appellees (plaintiffs).
   Dupont, J.

The plaintiffs seek the recovery from the defendant, a professional corporation engaged in the business of land surveying and civil engineering, of damages for the alleged negligent preparation of a boundary survey of the plaintiffs’ land. The plaintiffs allege that errors in a site plan, which delineated the boundaries, courses and dimensions of their land and which had been prepared by the defendant for submission to the town of West Hartford in connection with an application for a zone change, resulted in economic loss to them. A state referee, Hon. Alva P. Loiselle, sitting as the trial court, awarded damages to the plaintiffs for the increased costs of developing their realty which it found were causally connected to the errors in the site plan and awarded statutory interest at the rate of 8 percent from June 11, 1973. From this judgment, the defendant appeals.

The defendant, on appeal, claims that the trial court erred (1) in finding the defendant negligent without expert testimony as to its standard of care and in finding negligence in the performance of a 1972 contract; (2) in awarding some damages without evidence that they were actually incurred by the plaintiffs; (3) in awarding property taxes as damages; (4) in awarding damages arising out of conditions imposed on the approval of the plaintiffs’ second application for a zone change; and (5) in awarding interest. The defendant also claims that it has been denied a full and fair review of its appeal because two of its trial exhibits have been lost.

The trial court found the following: the site plan prepared by the defendant and dated March 21,1972, contained the words “Note - Boundary Based on Field Survey of Morton S. Fine & Assoc. August, 1955”; the site plan was in error; a new site plan was prepared by the defendant correcting the error after the town of West Hartford deemed the error to be a material one requiring a second application for a zone change; the approval of the second application was based upon compliance with eight conditions; an appeal was taken from the second application, and dismissed; the defendant did field work at the premises; the parties did not agree that the defendant was to perform particular services but that the defendant was engaged in 1972 to depict, describe and locate the boundaries of the realty; and the defendant was negligent in 1972 in its depiction of the plaintiffs’ land on its survey. The trial court further found that the plaintiffs informed the defendant in 1972 that a site plan was needed for an application for a zone change, and that the defendant’s principal stockholder had been a member of the planning and zoning commission of West Hartford and was familiar with the requirements of applications for such zone changes.

The defendant argues that it did not contract with the plaintiffs in 1972 to perform a boundary survey but contracted, instead, to perform the minimum work necessary to comply with the town’s regulations for a zone change application. The defendant’s claim is that it did not contract to do any topographic or field work for the plaintiffs in February of 1972 and, therefore, it could not have been negligent in the preparation of its site plan of March, 1972. The defendant argues, in essence, that whatever error was found on that plan originated in 1955 when the defendant originally contracted with the plaintiffs to prepare a boundary plot of the land. The plaintiffs, however, do not claim that the defendant was negligent in 1955 but, rather, that it was negligent in the preparation of the 1972 site plan. The trial court made specific findings that the parties entered into a contract in 1972, and that the defendant’s negligence occurred in 1972 when it prepared the site plan and certified it as being substantially correct based on a field survey. The trial court also found that the defendant knew or should have known that an exterior angle had not been checked, either by reference to an existing deed or in the field, and that the defendant knew that the site plan was requested for use in an application for a zone change. The facts found are supported by the evidence and are not clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). On such facts, no statute of limitations barred suit by the plaintiffs. See General Statutes § 52-577.

The defendant claims that the court could not find the defendant negligent in 1972 because no expert testimony was produced as to the standard of care required in the preparation of the 1972 map. An expert witness for the plaintiffs did testify, however, that in his opinion a land surveyor acting as such in 1972 would not be in conformity with the standard of due care for registered land surveyors in Connecticut if he did not go into the field but, nevertheless, prepared the site plan in question. Although the defendant produced other experts who testified that the work of the defendant in 1972 did conform to the standard of care required of land surveyors in Connecticut, it was for the trier to determine the credence to be given to the testimony of the various experts, in view of the other evidence proffered by the parties. Bond v. Benning, 175 Conn. 308, 313, 398 A.2d 1158 (1978).

The remaining claims of error relate to the damages found by the trier to be due, and to the interest awarded on the judgment. The general rule for the measure of damages is that the damages are to equate that monetary amount which will place the injured party in the same position it would have been in had the defendant not breached its contract. Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980). Eight conditions were imposed by West Hartford in order for the plaintiffs to obtain the zone change. These conditions were not required when the first application for a zone change was granted and are causally connected to the negligence of the defendant. But for the defendant’s negligence, the plaintiffs would not have had to comply with the conditions. One of the plaintiffs was obliged to give a surety bond to the town in order to guaranty the implementation of some of the conditions. These conditions mandated the construction of a traffic lane, a sewer line, and sidewalks. Although not all of the work and expense incident to such construction had been completed and paid at the time of trial, the plaintiffs were bound by the surety bond to complete the work. The costs in 1972 totalled $30,898 and were found by the trial court to be fair and reasonable. The surety bond was in the amount of $31,000. Prospective damages are recoverable if they are reasonably certain to occur. Craney v. Donovan, 92 Conn. 236, 245, 102 A. 640 (1917).

The trial court also found that the plaintiffs incurred additional architectural and legal fees, in the total amount of $3597, as a result of the defendant’s negligence. Due to the delay between the first approval of the zone change and the dismissal of the appeal from the second approval, the plaintiffs paid property taxes in the amount of $7877.69. In its memorandum of decision on the defendant’s motion to open the judgment on the ground that the damages awarded were excessive, the trial court found that during the period of delay, no practical use could be made of the plaintiffs’ real estate nor could it be readied for use. On these facts, the property taxes were paid without any expectation of profit from the real estate. Damages arising from a delay in completing construction because of the negligence of a defendant are compensable. See Walter Kidde Constructors, Inc. v. State, 37 Conn. Sup. 50, 82, 434 A.2d 962 (1981).

The trial court awarded interest to the plaintiffs at the rate of 8 percent per annum from June 11, 1973, the date the approval of the plaintiffs’ second application for a change of zone became final, to the date of the judgment. The defendant claims that the statutory rate of interest was 6 percent until October 1, 1979, when the statutory rate became 8 percent, and that the higher rate of interest cannot be applied retroactively because to do so would be to increase the defendant’s substantive liability. It is the defendant’s contention that interest should be 6 percent per annum from June 11,1973, to October 1,1979. The trial court concluded that General Statutes § 37-3a may be applied retroactively and it permitted interest in this case at the rate of 8 percent per annum from the date the damages became payable.

The allowance of interest as an element of damages is within the discretion of the trial court. Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973). Whether to include interest as damages is an equitable determination for the trial court and interest may be awarded at the statutory rate from the time the money becomes due. Marcus v. Marcus, 175 Conn. 138, 146, 394 A.2d 727 (1978). The trial court correctly determined that the damages were due on June 11, 1973, and that interest began to accrue from that date. Williams v. Vista Vestra, Inc., 178 Conn. 323, 334, 422 A.2d 274 (1979). The question, however, is not when interest begins to run but at what statutory rate.

Two Connecticut cases decided by the Appellate Session of the Superior Court held, without discussion, that interest when properly awarded in the discretion of the trial court should be calculated at the statutory rate of 6 percent until October 1, 1979, and at the statutory rate of 8 percent thereafter. Antinozzi Associates v. Arch Fracker Plumbing & Heating Contractor, Inc., 39 Conn. Sup. 375, 380-81, 465 A.2d 333 (1983); Krol v. Goldring, 38 Conn. Sup. 610, 614-15, 458 A.2d 15 (1982). Our analysis of this issue leads us to a contrary holding in the present case.

Two other Connecticut cases dispose of the issue but do not resolve it. In Walter Kidde Constructors, Inc. v. State, supra, former Chief Justice Charles S. House, as a state trial referee, reiterated the proposition that prejudgment interest is an element of fair compensation, whether an action seeks damages in tort or contract, and included in the judgment rendered, without discussion, interest from October 1, 1974, at the rate of 8 percent. In Vincenzi v. Cerro, 186 Conn. 612, 422 A.2d 1352 (1982), interest was awarded at the rate of 6 percent for money due prior to October 1,1979, since the plaintiff had conceded that an 8 percent rate should not have been applied prior to that date.

There is a paucity of cases nationwide on the issue of which statutory rate of interest applies to prejudgment damages where one statute amends the rate set by another statute during the period the money is found to have been due to the date of judgment, and where the second statute is silent as to whether it may be applied retroactively. The decisions are not in accord. Note, 4 A.L.R.2d 932.

The intent of the legislature in raising the permissible statutory interest rate to 8 percent on money due was obviously to close the gap between prevailing interest rates and the statutory interest rate of 6 percent. The higher interest rate is a legislative recognition of the fiscal obsolescence of a 6 percent interest rate. The legislature may retroactively cure inequities in statutes as long as vested rights are not disturbed. Enfield Federal Savings & Loan Assn. v. Bissel, 184 Conn. 569, 440 A.2d 220 (1981). The defendant had no vested right in a ceiling on the statutory rate of interest payable. Discretionary interest rates are a matter of statutory grace and may be changed by the legislature as it sees fit. 45 Am. Jur. 2d, Interest and Usury § 11.

The purpose of General Statutes § 37-3a is to provide compensation for a delay in obtaining money which rightfully belongs to the plaintiff. Porter v. Clerk of the Superior Court, 368 Mass. 116, 330 N.E.2d 206 (1975). Money awarded at a later time, in some financial climates, is worth less than if it had been paid when due. Inflationary erosion dissipates the effect of receiving, as damages, interest calculated at the old rate and makes the new rate a necessary “retroactive” tool of the court. Furthermore, the statute itself provides that the interest rate of 8 percent is to apply to the detention of damages after they became payable. Whether the legislature increases or decreases an interest rate, its goal is the same—-to put the plaintiff, at the discretion of the court, on a monetary parity with others who receive interest at the rates prevailing at the time of the award.

Since one of the purposes of allowing interest as damages, in cases where the parties themselves have not established a particular interest rate, is to accomplish justice in a particular situation and since the inclusion of interest is discretionary with the court in accord with the principles of equity, the decision to award interest at a greater or lesser statutory percentage rate should be left with the trial court. See 11 Williston, Contracts (Jaeger 3d Ed.) § 1412. Rather than analyze a statute which provides for discretionary interest rates in civil actions as affecting substantive or procedural rights in order to determine whether it may be applied retroactively in those instances in which the legislature has not been explicit in the language of the statute, courts should analyze the particular proceedings affected by the change in the interest rate. See Porter v. Clerk of the Superior Court, supra. That judicial discretion, however, should not be exercised arbitrarily nor should it be immune from appellate review.

“Retroactive” and “prospective” can become words of artificiality when there is a judicial attempt to match them with the words “procedural” and “substantive” in the context of some statutes. A legislative enactment granting a court the discretion to award interest is such a statute. Where procedure ends and substance begins is an impalpable line. Rather than analyze a statute, the purpose of which is to make the plaintiff financially whole in a particular economic environment, in terms of whether it is “only” procedural or, alternatively, in terms of whether it is of the “higher” genus of substantive, such a statute should be analyzed in terms of its purpose. If whether any interest at all should be awarded as prejudgment damages is optional with the trial court, the rate at which it accrues, as set by the legislature, should also be within the ambit of choice of the trial court.

On the facts of this case, it was not an abuse of discretion for the trial court to determine that the statutory 8 percent interest rate which became effective in 1979 should be applied to money due since 1973.

There is no error.

In this opinion the other judges concurred.

       The defendant claims that the plaintiffs did not prove that they all had title to the -realty involved in this action on the dates relevant to the action, 1972 and 1973. All eight plaintiffs did business as Morama Associates. It is agreed by the parties that four of them were the record owners of the real estate in 1972, and three were deeded the property in 1976. An exhibit upon which the trial court relied indicates that seven of the plaintiffs were owners in 1973. The trial court found that the defendant had admitted in its answer to the plaintiffs’ complaint that all eight were owners in 1972 and 1973. The issue of ownership is not directly involved in this case and therefore proof of title of each plaintiff is not required. See Velsmid v. Nelson, 175 Conn. 221, 229, 397 A.2d 113 (1978). The result of any decision in this case will not be affected by which plaintiffs are proper parties or which parties are members of Morama Associates or Morama Corporation. Rohm v. Hill, 18 Conn. Sup. 258, 259 (1953).

       The original application for a zone change to permit the construction of commercial and office buildings was submitted to the town of West Hartford in April of 1972. In connection therewith, the plaintiffs submitted plans prepared by the defendant, including a site plan dated March 21,1972. A public hearing was held and the application was granted. No appeal was taken. A second application was submitted after the town of West Hartford ruled that the change of zone was a nullity because of errors in the plans. The second application was approved subject to the compliance by the plaintiffs with eight conditions. An appeal from the approval of the second application was taken and subsequently dismissed. It is the expense of that appeal, the expenses of the delay incident thereto, and the expenses incident to compliance with the eight conditions which the plaintiffs claim as damages and which are the subject of this appeal.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The defendant has briefed ten issues, having raised fourteen issues in its amended preliminary statement of issues. One of these issues, loss of the exhibits, is discussed in footnote 5, infra. Another, the awarding of damages to the plaintiffs without proof of ownership, is discussed in footnote 1, supra. The other remaining issues discussed in its brief have been consolidated for purposes of review by this court.

       The missing exhibits relate to the memoranda of employees of the defendant. One of the exhibits related to whether the defendant was told to spend a minimum amount of money in preparing its work and the other, to whether the plaintiffs intended to develop only one portion of the land owned by them. Even if these exhibits were available for appellate review, the transcript and the other exhibits make it clear that their availability would not make a material difference in the outcome. Stern & Co. v. International Harvester Co., 146 Conn. 42, 47, 147 A.2d 490 (1958).

       The plaintiffs alleged in their complaint that they relied on a site plan prepared by the defendant dated March 21, 1972, and that the defendant negligently failed to survey accurately the plaintiffs' land and negligently failed to establish accurately the correct boundaries and topography of that land. They allege that their damages arose from this negligence and from the breach of their 1972 contract pursuant to which the defendant agreed to furnish an accurate survey of their land for use in their submission to the town of West Hartford of a zone change application.

         A defendant may be liable in negligence for the breach of duty which arises out of a contractual relationship. Urban v. Hartford Gas Co., 139 Conn. 301, 304, 93 A.2d 292 (1952).

       The defendant claims, on appeal, that the award of the attorney’s fees for the second zone change application was error because there was no evidence as to their actual amount and no evidence that they were paid. The defendant did not object to the testimony at trial that the charge for legal services for such representation was $2500. Whether they were actually paid is irrelevant. They were due.

       In pertinent part, General Statutes § 37-3a provides: “[I]nterest at the rate of eight per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable . . .

         The defendant, in its amended preliminary statement of issues, claimed error in applying interest to damages which were not liquidated. The defendant has not briefed the issue and it is deemed abandoned. Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 262 n.1, 425 A.2d 1289 (1979).

       No claim has been made by the defendant that a retroactive application of the statute would render it unconstitutional.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. Patrick Manluccia
    (2692)
    Dannehy, C.P.J., Dupont, and Borden, Js.
    Argued April 5
    decision released July 24, 1984

      Margaret Hayman, assistant public defender, for the appellant (defendant).

      Jaynes G. Clark, special deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Brian E. Cotter, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant was convicted on two counts of risk of injury to a minor in violation of General Statutes § 53-21, and on one count of attempting to commit sexual assault in the third degree in violation of General Statutes §§ 53a-49 and 53a-72a (a) (1). He appeals. We find no error.

The jury could reasonably have found the following facts. In the summer of 1979, the victim, a thirteen year old boy, was introduced to the defendant by Arthur Parent, who was a neighbor of the victim in Danbury. On July 4,1979, the defendant and Parent took the victim to an amusement park. They then went to the defendant’s apartment in Danbury where the victim saw several photographs, some of which were of nude males. The defendant offered him fifty dollars to pose for nude photographs. The victim agreed and the defendant took several frontal nude photographs of him. The defendant told the victim he was going to sell the photographs to someone in California. He packaged them and mailed them in the victim’s presence as he took the victim home. Parent arranged another session at some time between July 4,1979, and July 26,1979, at which the defendant took more nude photographs of the victim. In some of these photographs the victim had an erection induced by viewing another magazine, shown to him by the defendant, with pictures in it of nude women. On July 26, 1979, the defendant and Parent took the victim to New York City. On the way back to Danbury, the defendant told the victim that he had sold the pictures of the victim to someone in California, and made sexually suggestive remarks to the victim. The defendant and Parent took the victim to the defendant’s apartment in Danbury where they attempted to assault him sexually. The victim ran away.

The defendant’s arguments on appeal are concerned solely with the admission into evidence of two magazines, eight envelopes accompanied by four letters and sixteen Polaroid photographs accompanied by a photostat of a photograph. All these materials were seized from the defendant’s apartment pursuant to a search warrant. We discuss each group of items separately.

I

The two magazines, entitled “Special Boys” and “Homy Teens,” consist of photographs of nude teenage boys in various states of sexual activity and arousal. Both purported to be publications of K & J Collectors, located at 152 West 42nd Street, New York City. Both contained requests for their readers to send in, for payment, photographs of teenage boys. The state offered and the court admitted the magazines for the limited purpose of showing the defendant’s motive for photographing the victim; namely, to respond to the solicitations contained in the magazines. The court gave appropriate limiting instructions to the jury. The defendant argues that the magazines were irrelevant and that, in any event, the court abused its discretion because their prejudicial impact outweighed their probative value. We disagree.

The relevance of the magazines to show the defendant’s motive is obvious and requires no more discussion than to point out that they “render[ed] the existence of a material fact in the case more certain or more probable than it would have been without the evidence.” State v. Ward, 172 Conn. 163, 168, 374 A.2d 168 (1976). The fact that the victim testified that the defendant told him that he would sell the photographs to someone in California did not, as the defendant claims, vitiate the relevance of these publications, which purportedly came from New York City. Neither the state nor the jury were bound to accept as gospel that statement of intended location of sale by the defendant.

Nor was there any abuse of discretion by the court in weighing the probative value of the magazines against their prejudicial impact. There is little doubt that, because of their nature, they would tend to have some prejudicial effect on the jury’s perception of the defendant. By the same token, however, they were highly probative of a central fact in the case; namely, that the defendant did take the nude photographs of the victim, some of them showing him in a state of sexual arousal. Moreover, there was no suggestion by the state that possession of these publications constituted a crime. Finally, the record indicates that these magazines were two of a group of sixty-three similar publications seized from the defendant’s apartment; and that the court excluded the other sixty-one. Thus, the court scrupulously exercised its “judicial discretion, to decide whether the probative value of the [evidence] outweighed the prejudice likely to result from its admission.” State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 62 L. Ed. 2d 862 (1980).

II

The envelopes and letters consisted of the following. There were four large magazine-size envelopes addressed to the defendant, each indicating the sender to be “M.V.” of the same New York City street address as that of K & J Collectors, the publisher of the magazines. These envelopes were postmarked May 5,1978, May 30, 1978, October 30, 1978, and March 9, 1979. Three of them contained handwritten notes on printed stationery indicating “Memo from the Desk of K & J Collectors,” signed by “M.V.,” generally thanking the defendant for his mail order and indicating that his magazine order was enclosed. There also were four empty letter-size envelopes addressed to the defendant from “M.V.” at the same address, and postmarked April 25, 1978, October 16, 1978, February 6, 1979, and May 22, 1979. Finally, there was a letter signed by “M.V.” at the same address, which was partially printed and partially handwritten. The printed portion indicated that certain of “[t]he following K & J/M.V. Magazines are no longer available” and that a refund or alternate could be selected. The handwritten portion elaborated somewhat on the offer of a refund or alternate selection, and indicated “thanks for the photo.”

These items were, like the magazines, offered and admitted for the purpose of showing the defendant’s motive, and the court gave limiting instructions to the jury. The defendant’s first attack on the admissibility of these items tracks his argument with regard to the magazines. He claims that they are irrelevant and, if relevant, that they are unduly prejudicial. We disagree.

Like the magazines, the relevance of these items lies in the light they shed on the defendant’s motive. The identity of the addresses, the linkage which they indicate between “M.V.” and K & J Collectors, and the dates of the postmarks, all of which are within fifteen months of the defendant’s encounter with the victim, corroborated the evidence, supplied by the magazines and their contents, of the defendant’s motive. Unlike the magazines, moreover, these items contain nothing in and of themselves which was likely to be inflammatory or repulsive to the jury. Any prejudice of such a nature would only arise by reference of these materials to the magazines; but such a reference would do no more than highlight the highly probative value of the items. Cf. State v. Onofrio, 179 Conn. 23, 28-33, 425 A.2d 560 (1979). The court did not abuse its discretion in admitting the envelopes and letters.

The defendant also argues that these items were inadmissible as hearsay. Recognizing that they were offered and admitted for the sole purpose, not of establishing the truth of their contents, but for the purpose of showing the defendant’s motive, and were thus not hearsay; see State v. Stepney, 191 Conn. 233, 249, 464 A.2d 758 (1983) (United States Supreme Court appeal pending); the defendant argues that nonetheless they constitute what he characterizes as nonassertive hearsay conduct of M.V. The defendant relies on an English case; Wright v. Doe, 132 Eng. Rep. 877 (1838), affirming 112 Eng. Rep. 488 (1837); and Hine, Appeal from Probate, 68 Conn. 551, 37 A. 384 (1897), which is apparently the only Connecticut case involving the doctrine of nonassertive hearsay conduct and which has been largely ignored since. See also McCormick, Evidence (2d Ed.) § 250 (criticizing the doctrine); Fed. R. Evid. 801 (a) and 801 (c) (nonverbal conduct is a statement, for hearsay purposes, only if it is intended as an assertion). We find it unnecessary to rule on this somewhat esoteric claim, because it is clear that the defendant did not make it with sufficient clarity in the trial court.

The defendant had filed a written motion in limine to exclude from evidence all the items seized from his apartment. This motion did not mention hearsay as a ground. At the mid-trial hearing on the motion, he conceded that they were not hearsay because they were offered to show the defendant’s motive by showing what he acted on; but he objected on the grounds of relevancy and undue prejudice. After the court had ruled in response to the motion in limine, the state began its formal introduction of those seized materials which the court had ruled admissible. The first items offered were the two magazines. The defendant’s counsel, referring to the hearing on the motion in limine, said: “We, of course, had some discussion on this outside the presence of the jury last week and the state put forth at that time that the purpose was to establish motive and state of mind. For that purpose I indicated that I had no objection to that.” He went on to repeat his earlier ground of relevancy. The next group of items offered by the state consisted of the envelopes and letters. The defendant’s counsel stated: “I would object for the same reason that it is hearsay material for the same reason.” Thus, after a written motion in limine, a hearing and an immediately preceding offer of related evidence, in all of which the defendant disclaimed reliance on hearsay as a basis of objection, the defendant’s sole use of the word “hearsay,” coupled with the phrase, “for the same reason,” used twice, was insufficient to alert the trial court that he intended to invoke the doctrine he now asks us to apply. We decline to do so. State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983).

Ill

The third category of items admitted into evidence about which the defendant complains consists of sixteen Polaroid photographs and one photostat of a photograph. The sixteen photographs appear to be taken of images on a television screen. Two of the photographs are of nude boys in a shower, showing either their buttocks or their bodies above the waists; six are of faces of young boys; one is of several young men who appear to be in a kind of military lineup dressed in undershorts; three appear to be of young children in underwear; one appears to be of a young boy dressed in a shirt and shorts; and three are so unclear as to be unintelligible to the eye. Some of the pictures bear handwritten legends on them indicating names of television shows or movies, such as “Mackenzies of Paradise Cove,” “Pom Pom Girls,” “Partridge Family” and “Bad News Bears Breaking Training.” The photostat of a photograph is in two parts on a single sheet of paper: the top half shows a woman dressed as a nurse and a line of young children; the bottom half shows the same woman, and a man dressed in a business suit.

These items came into evidence, not as part of the state’s case, but solely to impeach a witness for the defendant, his brother Frank Manluccia, Jr. Frank Manluccia, who lived in the second floor apartment beneath the defendant’s apartment on the third floor and who previously had occupied the third floor apartment, testified on direct examination that he had a key to the defendant’s apartment; that he often entered the defendant’s apartment in the defendant’s absence because he stored some of his clothes there; that he visited the apartment twenty-five times per month; that he had seen Polaroid photographs there, some of which he identified in his testimony; that he did not see pictures of naked boys there; and that he would have noticed pictures of naked boys there. In rebuttal, the state offered the items at issue here through the Dan-bury police officer who had executed the search warrant, and who testified that he found them on top of a desk in the defendant’s apartment. The defendant objected. The state claimed the items on the basis of credibility. The court admitted them for that limited purpose and so instructed the jury. The defendant excepted to the court’s ruling.

On appeal, the defendant argues that admission of the photographs was error because they were not inconsistent with Frank Manluccia’s testimony; because they constituted an attempt, by the use of extrinsic evidence, to impeach him as to a collateral matter; and because their prejudicial impact outweighed their probative value. This argument is without merit.

We note, first, that the defendant has not properly presented this claim because nowhere in his brief does he state the ground of his objection. See Practice Book § 3060F (c) (3); Enterprise Leasing Corporation v. Dixon, 1 Conn. App. 496, 501, 472 A.2d 1300 (1984). In fairness to him, however, we have examined the transcript, which discloses that the sole basis of his objection was relevancy.

“Our rules of practice make it clear that when an objection to evidence is made, a succinct statement of the grounds forming the basis for the objection must be made in such form as counsel desires it to be preserved and included in the record. Practice Book § 288. ‘This court reviews rulings solely on the ground on which the party’s objection is based.’ State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971). In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153 (1975); State v. Manning, supra, 118-19; State v. Gelinas, 160 Conn. 366, 369, 279 A.2d 552 (1971); Casalo v. Claro, 147 Conn. 625, 628-29, 165 A.2d 153 (1960). The purpose of such a requirement is apparent since we have consistently stated that we will ‘not consider . . . evidentiary rulings . . . where no claim of error was preserved for review on appeal by proper objection and exception.’ State v. Hoffler, 174 Conn. 452, 461, 389 A.2d 1257 (1978). Moreover, once the authority and ground for an objection is stated, our review of the trial court’s ruling is limited to the ground asserted. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982); State v. Manning, supra, 118; see Practice Book § 3063.” State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983).

“[I]t is quite clear that neither the trial court nor the prosecution was alerted to or interpreted [the defendant’s] objection to be based upon anything but relevancy, nor could they reasonably have been expected to do so. Thus, to review the defendant’s claim, which has been articulated for the first time on appeal and not before the trial court, would result in a ‘trial by ambuscade of the trial judge.’ ” ’ State v. Brice, supra, quoting State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95 (1960). We therefore do not address the merits of [this] claim of error.” State v. Braman, supra, 685. Furthermore, assuming arguendo that a claim of irrelevancy invokes by implication a claim that the probative value of evidence is outweighed by its prejudicial impact, we conclude that the court did not abuse its discretion in admitting these materials.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The defendant’s counsel stated: “Objection, your Honor. I don’t see the relevancy of this.”


author: Per Curiam.

text:
    Thomas F. Conran, Jr. v. G. T. LaBonne & Associates, Inc., et al.
    (2432)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued May 3
    decision released July 31, 1984

      Robert W. Gordon, for the appellant (plaintiff).

      Aaron P. Slitt, for the appellees (defendants).
   Per Curiam.

The plaintiff, an insurance salesman, brought an action to recover money damages from the defendant, an insurance brokerage firm, for the alleged termination of an employment contract. The trial court rendered judgment for the defendant and the plaintiff appealed.

The contract provided that the plaintiff would work full-time for the defendant, and that the defendant would pay the plaintiff, in most instances, 50 percent of the premiums generated by the plaintiff. The contract was for a term of one year which term was automatically renewable from year-to-year. It also provided that the plaintiffs “book of business,” that is his accumulated list of steady customers, was to become the exclusive property of the defendant. In the event of termination of employment by reason other than death, the plaintiff was to be paid 50 percent of the commissions on all renewals of policies for four years. After the execution of the contract, the defendant sold all of its assets, including the plaintiffs “book of business,” to another insurance brokerage company. The plaintiff then began employment with the buyer and entered into another employment contract, the terms of which were essentially the same as his contract with the defendant. The plaintiff claims that upon the defendant’s sale of its business, his contract with the defendant terminated and he was due compensation for four years’ commissions.

The trial court found that the plaintiff, upon his execution of a new contract with the defendant’s buyer, continued to receive the very same commissions to which he would have been entitled had he continued to work for the defendant. Since this was go, the court concluded that the plaintiff was not entitled to a judgment against the defendant since he then would collect twice for the same commissions.

It is the argument of the plaintiff that payment of commissions for four years is a form of deferred compensation due him for his sale of his “book of business.” No provision of the contract substantiates that view. The contract clearly provided that the “book of business” belonged to the defendant upon the signing of the contract.

A contract should be viewed in its entirety and its terms are to be construed in view of the language used, and the purposes and circumstances of the parties. Saphir v. Neustadt, 177 Conn. 191, 203, 413 A.2d 843 (1979); Lanna v. Greene, 175 Conn. 453, 459, 399 A.2d 837 (1978). Nothing in the contract between the plaintiff and the defendant indicates that the plaintiff was to receive a double payment for the same commissions upon termination of his employment with the defendant, or that any commissions were due him as deferred compensation.

There is no error.

       The trial court found that the plaintiff did not prove any damages. In view of this court’s opinion, it is not necessary to consider the plaintiffs claim of error that the trial court erred in so finding.

       The plaintiff sued George T. LaBonne, G. T. LaBonne and Associates, Inc., and G. T. L. A., Inc., the successor corporation of G. T. LaBonne and Associates, Inc. The action was later withdrawn as to George T. LaBonne. As used in this opinion, defendant refers to G. T. LaBonne and Associates, Inc.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       On oral argument, the plaintiff claimed that he was" due the sum of $50,000 upon his retirement from his employment with the defendant. Nowhere in his complaint, however, is such an allegation made. The only mention of $50,000 in the contract is that a $50,000 life insurance policy is to be paid by the defendant upon the death of the plaintiff.


text:
    Louis Vitale et al. v. Michael Natalino et al.
    (2919)
    Dannehy, C.P.J., Hull and Spallone, Js.
    Submitted on briefs May 10
    decision released July 31, 1984

      Louis Vitale, pro se, the appellant (plaintiff), filed a brief.

      Bruce L. Levin and Anthony V. Avallone filed a brief for the appellees (named defendant et al.).

      Raymond B. Green filed a brief for the appellees (defendant Tobin & Levine et al.).
   Per Curiam.

The plaintiff filed this appeal following a trial in which the jury found against the plaintiffs on each of the five counts in their complaint.

The parties did not appear for oral argument, but stipulated that the court may rule on the basis of the record and briefs. After a careful study of the record and briefs of those issues properly before this court, we conclude that there is no merit to the plaintiffs claims.

There is no error.

       The original suit included both Louis Vitale and Andres Rodriguez as the plaintiffs. Rodriguez was nonsuited and failed to appeal the nonsuit. For the purposes of this appeal, Vitale is the sole plaintiff.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


text:
    Board of Education of the city of Waterbury v. Waterbury Teachers Association
    (2416)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued April 4
    decision released July 31, 1984

      Ronald Cordilico, with whom, on the brief, was William Dolan, for the appellant (defendant).

      John F. Phelan, for the appellee (plaintiff).
   Per Curiam.

This is an appeal from a judgment granting the plaintiff’s application to modify an arbitration award. The application was made pursuant to General Statutes § 52-419.

The facts of the case are simple. The defendant, Waterbury Teachers Association (WTA), is the bargaining representative of those teachers employed by the plaintiff, the Board of Education of the city of Waterbury (board). The parties are the signatories of a collective bargaining agreement. A teacher, Linda McGill, filed a grievance alleging that the plaintiff had failed to recall her from a layoff as was required by the layoff provisions of the collective bargaining agreement. After exhausting the internal grievance procedure, the dispute was submitted to arbitration. The submission was as follows: “Did the Board violate the Agreement’s Article XX, Section 17—Recall—provision by not recalling Linda McGill from the layoff effective September, 1976 until February 6,1978? If so, what shall the remedy be?”

The award was as follows: “The Waterbury Board of Education violated the Agreement’s Article XX, Section 17—Recall—provision by not recalling Linda McGill from the layoff, effective September, 1976, until February 6,1978. The Board shall adjust Ms. McGill’s employment record to reflect, for the purpose of seniority and for any other purpose, a recall date effective October 3, 1977.”

The plaintiff objected to the award in that it included the words “and for any other purpose.” The trial court modified the award by striking those words. It also denied the defendant’s application to confirm the award.

The sole issue on appeal is whether the court erred in concluding that the award did not conform to the submission. The board, in seeking to justify the decision of the trial court, argues that the submission has to be read together with the grievance. There is no decisional authority in this state for the proposition that the award must conform to the underlying grievance as well as to the submission. A challenge to an award is limited to a comparison of the award with the submission, and if the submission is unrestricted, an appellate court cannot review it for errors of law or fact. Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983).

The submission in this case was unrestricted and contained no limiting or conditional language concerning the scope of an appropriate remedy. The arbitrator did not make an award “upon a matter not submitted” and, therefore, there was no defect which would allow modification of the award pursuant to General Statutes § 52-419.

There is error, the judgment of the trial court is set aside and the case is remanded with direction to dismiss the plaintiffs application to modify and to render judgment granting the defendant’s application to confirm the arbitrator’s award.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       General Statutes § 52-419 provides: “modification or correction of award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order modifying or correcting the award if it finds any of the following defects: ... (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted . . . . (b) The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”


author: Spallone, J.

text:
    Caroline P. Hirst v. Norman F. Hirst
    (2434)
    Dupont, Borden and Spallone, Js.
    Argued May 10
    decision released July 31, 1984

      Ernest LaFollette, for the appellant (defendant).

      Patrick R. Gil, for the appellee (plaintiff).
   Spallone, J.

This is an appeal from a second modification of a dissolution decree. Upon the dissolution of the parties’ marriage in 1980, the court awarded custody of the minor child to the plaintiff mother; it ordered the defendant to pay $150 per week as child support, plus an additional $50 per week at such times when the child was enrolled in private school during the child’s minority; and it ordered the defendant to pay $5000 to the plaintiff as repayment of debts, over a period of 5 years at the rate of $20 per week.

On August 24, 1981, the court, after a hearing on the plaintiff’s motion for contempt, found the defendant in contempt and in arrears in the amount of $2325. It ordered the defendant to pay $25 per week towards this arrearage. The court also granted the defendant’s motion for modification, reducing the previously ordered total weekly payment of $220 per week to $150 per week.

On October 20,1982, both parties moved for modification of the child support order. After a hearing, the court ordered an increase in the child support order from $150 to $175 per week plus $25 per week on the arrearage.

The defendant has appealed from the October 20, 1982 modification claiming that the court abused its discretion in modifying upward the defendant’s child support payments absent a finding of a substantial change in circumstances occurring subsequent to the initial modification order.

In response to the defendant’s motion for rectification of appeal, the trier of fact, Ryan, J., filed a rectification of appeal articulating the basis of his decision. He stated that, in acting upon the motion to modify the judgment, he took into consideration each and every one of the criteria listed in § 46b-84 of the General Statutes and, on the basis of the evidence presented at the time of the hearing, he found that there was a substantial change in circumstances which was not contemplated by the parties at the prior modification hearing. A review of the record, transcripts and briefs supports the findings and awards of the trial judge.

During the hearing there was conflicting testimony as to the earnings and earning capacity of the defendant. There was also evidence presented, which had not been before the court at the time of the prior modification, that some of the defendant’s personal expenses were paid by his corporation. The evidence was that the corporation paid the automobile expenses of the defendant and also paid the taxes and insurance on a house owned by Martha Crampton, with whom the defendant had been living for several years. The corporation also paid rent to Martha Crampton. The trial judge was in the best position to determine the credibility to be given the testimony. Burton v. Burton, 189 Conn. 129, 138, 454 A.2d 1282 (1983). The trial court chose to believe the plaintiff’s evidence. The trier of the facts is free to accept or reject, in whole or in part, the evidence of either party. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Brey v. Brey, 1 Conn. App. 397, 399, 472 A.2d 354 (1984). This is particularly true with respect to financial awards in a dissolution action where “great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.” Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981); Fattibene v. Fattibene, 183 Conn. 433, 442, 441 A.2d 3 (1981). We are not the finders of fact; that is for the trial court. Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 4, 420 A.2d 1142 (1979); Riccio v. Abate, 176 Conn. 415, 418, 407 A.2d 1005 (1979); Brey v. Brey, supra. Our review is limited to a determination of whether the decision made is logically consistent and supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We conclude that it is.

The defendant also claims that the court abused its discretion in not decreasing the support orders on the basis of the larger income reported by the plaintiff. The trial court could have concluded that the change in the plaintiffs earnings was contemplated by the parties because the change was only a reflection of the fact that she had transformed a nonliquid asset into a liquid asset. The asset was the family home which was sold for the same price at which it was listed on her financial affidavit at the time of the dissolution. There was also evidence to support a finding that the plaintiffs expenses had increased.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


text:
    Richard P. Hayes v. Town of Coventry
    (2441)
    Dannehy, C.P.J., Hull and Spallone, Js.
    Argued May 10
    decision released July 31, 1984

      Laurence P. Rubinow, with whom, on the brief, was Elliot G. Macht, for the appellant (plaintiff).

      Abbot B. Schwebel, for the appellee (defendant).
   Spallone, J.

This is an appeal from a judgment rendered by the trial referee in an appeal from a statement of compensation filed by the defendant concerning the plaintiff’s property.

The facts may be summarized as follows: On June 26, 1972, the planning and zoning commission of the town of Coventry denied the plaintiff’s application for approval of a subdivision plan relating to the plaintiff’s property. A similar application filed on June 21,1973, was also denied by the commission. On October 5,1981, the defendant filed, with the clerk of the Superior Court in Tolland, a statement of compensation in the amount of $30,000, for the parcel of land owned by the plaintiff. The plaintiff’s parcel was approximately 15.1 acres and the taking of the land was for future expansion of the town’s landfill. The clerk of the Superior Court issued a certificate of taking on October 29,1981, and the defendant deposited the sum of $30,000 with the clerk. Upon motion by the plaintiff, the court ordered payment and the plaintiff received the $30,000 deposit.

Thereafter, the plaintiff, pursuant to General Statutes § 8-132, appealed to the Superior Court in the judicial district of Tolland for a review of the statement of compensation. The plaintiff claimed to be aggrieved by the inadequacy of the statement of compensation. The matter was referred to a state trial referee who, after a hearing and exercising the powers of the Superior Court; see General Statutes § 52-434; rendered judgment for the plaintiff in the amount of $43,000, less the $30,000 already paid, together with interest and costs, as set forth in the memorandum of decision.

The plaintiff has appealed claiming that the referee’s valuation of the plaintiff’s property is not supported by the evidence and, further, that the referee erred in his rulings with reference to evidentiary offers regarding the condemned property.

We disagree with the plaintiff’s first claim; there was sufficient evidence to support the award. The plaintiff’s appraiser determined the value of the plaintiff’s property to be $90,000, regardless of whether the property was to be used as a residential subdivision or as a future site for the landfill. It is within the province of the trier of fact to pass upon the credibility of the witnesses and the weight to be accorded their evidence. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976); New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 684, 474 A.2d 810 (1984). Furthermore, it is a fundamental principle that the trial court is in the best position to determine the facts in a given case, to assess the credibility of the witnesses and to weigh their opinions. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982); Zolan, Bernstein, Dworken & Klein v. Milone, 1 Conn. App. 43, 46, 467 A.2d 938 (1983).

In condemnation proceedings, the referee is charged with the duty of making an independent determination of the value of the property involved and its fair compensation. E & F Realty Co. v. Commissioner of Transportation, 173 Conn. 247, 253, 377 A.2d 302 (1977). The referee is not limited to arbitrating the differing opinions of the witnesses, but is to make determinations “in the light of all the circumstances, the evidence, his general knowledge and his viewing of the premises.” Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972); see Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). He may “accept or reject the testimony of an expert offered by one party or the other in whole or in part.” Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967); see also Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 221. In the present case, the referee acted properly in considering the subdivision rejections involved with the plaintiff’s property as well as the sale of property comparable to that of the plaintiff, and in determining the weight to be afforded that evidence. The referee acted properly in reaching his conclusion as to the value of the property within the framework of the evidence elicited at the hearing and at a viewing of the property.

The plaintiff further contends that the referee erred in his rulings with reference to the evidentiary offers made by the plaintiff regarding the condemned property. The referee excluded as irrelevant certain evidence offered by the plaintiff. A review of the record and the briefs fails to indicate to this court that the evidence was improperly excluded. Questions of relevancy cannot be adjudicated by precise rules of law and must be left to be determined in each case according to reason and judicial experience. Johnson v. Healy, 183 Conn. 514, 516, 440 A.2d 765 (1981); Hoadley v. University of Hartford, 176 Conn. 669, 672, 410 A.2d 472 (1979). The trial court has broad discretionary powers to determine the relevancy or remoteness of the evidence. Hardisty v. Hardisty, 183 Conn. 253, 257, 439 A.2d 307 (1981); Filosi v. Hawkins, 1 Conn. App. 634, 640, 474 A.2d 1261 (1984).

In ruling the offered evidence irrelevant, the referee followed the rule repeatedly expressed by our Supreme Court, which has limited the evidence to those factors in existence on the date of the taking. Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 230 A.2d 9 (1967). Although the zoning rejections occurred prior to the taking, those rulings were in effect and were factors to be considered -on the date of the taking. Usually, the date of the taking is the date upon which the condemnor records the certificate of taking. Stanley Works v. New Britain Redevelopment Agency, supra, 103. The referee did not abuse his discretion in excluding evidence regarding the action of the condemnor prior to the taking, which the plaintiff contended affected the fair market value of the property. Nothing in the record or briefs supports a conclusion by this court that the referee abused his broad discretion in his rulings on the evidence.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


author: Dannehy, C.P. J.

text:
    Shelton Sewer Authority v. Salvatore DeFilippo et al.
    (2298)
    Dannehy, C.P.J., Hull and Borden, Js.

      Submitted on briefs April 10
    decision released July 31, 1984

      Salvatore DeFilippo, pro se, the appellant (defendant), filed a brief.

      Michael A. Dowling and Bruce M. Killian filed a brief for the appellee (plaintiff).
   Dannehy, C.P. J.

This is an appeal by the defendant from the trial court’s refusal to vacate the order or to open the judgment in a case brought for the assessment of damages in connection with the condemnation of the defendant’s property by the plaintiff for the construction of a sewerage system.

There is no dispute about the basic facts in this case. In May, 1974, the defendant, Salvatore DeFilippo, owned property in Shelton. As part of a public works project, the plaintiff, a municipal sewer authority, desired to acquire a portion of that property for the construction of a sewerage system. The plaintiff was unable to agree with the defendant as to the compensation to be paid for the taking of the property. The plaintiff consequently petitioned on May 3,1974, pursuant to General Statutes (Rev. to 1972) § 7-248 for the appointment of a committee of three disinterested persons to ascertain the value of the land and to report its doings to the court. Section 7-248, at that time, provided that “[i]f the report is accepted, such acceptance shall have the effect of a judgment in favor of the owner of the property against the municipality for the amount of the assessment made by the committee and, except as otherwise provided by law, execution may issue therefor. Said court or such judge may make any order in such proceedings necessary to protect the rights of all parties interested.”

Pursuant to that section, the trial court also directed that the plaintiff be permitted to enter immediately upon the property proposed to be taken, and to devote it to the public use specified in the petition upon deposit with the clerk of the court of a sum fixed by the court at $7900. On May 14,1974, the plaintiff deposited the sum of $7900 with the clerk of the court and entered immediately upon the property.

On October 25, 1974, the trial court appointed as a disinterested committee a retired Superior Court judge, a local real estate broker and an attorney. At a hearing before this committee on May 5, 1978, the plaintiff submitted its appraisal of $7900. The defendant, who at the hearing and at all times thereafter represented himself, submitted his valuation in the amount of $46,250. After viewing the property and from all of the evidence, the committee assessed the damages at $10,500, and filed its report with the court on May 17,1978. The court accepted the report on October 13, 1978, and rendered judgment ordering the plaintiff to pay the defendant the sum of $10,500.

The defendant refused to accept payment. After what plainly appears as an acerbic exchange of motions, the court on July 10, 1981, ordered again that the report of the committee be accepted; that the clerk of the court pay the defendant $7900 or deposit the same for his use with the state treasurer; and that the plaintiff pay the defendant the additional sum of $2600 or deposit said sum for his use with the state treasurer. The defendant then filed a motion to open the judgment and set aside the order. The court denied the motion. This appeal followed.

The case was assigned for hearing in this court on April 10, 1984, at which time the plaintiff appeared, but the defendant failed to appear. Mindful that the defendant is a layman and reluctant for that reason to impose swiftly the dismissal sanction authorized by Practice Book § 3109, the court recessed to determine his whereabouts. After a series of telephone calls, the clerk of this court communicated with the defendant in Bridgeport at the school where he was teaching. He said he had not been given notice that the case had been assigned for argument and requested permission to submit the case for decision on the records and briefs only, without oral argument. The plaintiff graciously acquiesced in the request, and our permission was granted.

The statement of the issues intended for presentation on this appeal barely speaks for itself. We discern, with difficulty, only three issues which need be addressed: (1) whether the trial court erred in refusing to open the judgment and vacate its order; (2) whether the award of $10,500 is inadequate; and (3) whether the defendant is entitled to interest on the award of $10,500.

The defendant appears to claim that the order be set aside and the judgment opened on two grounds. He first argues that he never received a copy of the report of the committee and that as a result he was unable to examine the committee “as to their actions and conclusions surrounding their report.” This claim is without merit. The committee’s report was filed with the court on May 17, 1978, and thereafter was available for examination by the parties. As a matter of common sense, it is highly improbable that the defendant, an experienced licensed real estate broker and insurance appraiser, would be unaware of this and unable by ordinary diligence to obtain the report.

The defendant also claims that he was wrongfully denied the opportunity to submit new evidence to the committee. Essentially, the defendant sought to introduce evidence that in 1979 houses built in the immediate area of his condemned property on lots of similar size required no zoning variance as had previously been necessary. This, he contends, would establish that his lot which was taken was a complete building lot and, therefore, of greater value than it would be otherwise. The construction of those houses in 1979, however, occurred after the date of the taking. The law is clear that damages sustained in a taking by eminent domain are to be measured as of the date of the taking. Textron, Inc. v. Commissioner of Transportation, 176 Conn. 264, 267, 407 A.2d 946 (1978); Research Associates, Inc. v. New Haven Redevelopment Agency, 152 Conn. 137, 139, 204 A.2d 833 (1964). Thus, the defendant could not properly offer evidence to prove the value of his property at a time other than the date of taking.

The situation before us is similar to a petition for a new trial on the ground of newly discovered evidence under General Statutes § 52-270. The same conditions must apply. Stocking v. Ives, 156 Conn. 70, 72, 238 A.2d 421 (1968); Kane v. Kane, 118 Conn. 291, 294, 172 A. 84 (1934). “A party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result. . . . This rule is necessary, for without it there might never be an end to litigation. . . . The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done. In deciding this question, the court has the exercise of a sound legal discretion, and its action cannot be disturbed unless this discretion has been abused.” (Citations omitted.) Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959), quoted in Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983). In view of these criteria and the fact that the record discloses that the defendant introduced similar evidence at the hearing in an effort to establish that his lot was a complete building lot, we see no abuse of discretion in the trial court’s refusal to order the case opened so that the defendant might offer the same evidence.

Finally, the defendant attempts to claim that the award of $10,500 is inadequate compensation. The award was based on the report of the committee. Evidence as to the value of the land was conflicting as was the extent of the defendant’s damage. The committee considered all of the evidence, and, before reporting to the court, viewed the defendant’s property. No challenge was made to the competency of the committee and there is no indication that its conduct was improper or irregular.

The defendant also claims that the court erred in not allowing interest on the award of $10,500. We agree. “In disposing of this [claim] we have treated it as it was presented by the parties, disregarding, as did they, certain technical, procedural problems and irregularities and deciding the [claim] solely on the basic right of the defendant to recover interest on the condemnation award as claimed.” Ives v. Burgess, 155 Conn. 698, 699, 231 A.2d 276 (1967).

Under General Statutes (Rev. to 1972) § 7-248, the defendant was entitled to interest as a proper element of just compensation for his condemned land from the date the plaintiff was permitted to enter upon his land. The deposit of $7900 did not stop the running of interest on the award because the defendant was given no right to obtain possession of it. See Salgreen Realty Co. v. Ives, 149 Conn. 208, 177 A.2d 673 (1962). The sum deposited was not available to him until the court directed payment of the award. In the present case, payment was directed on October 13, 1978, when the court accepted the report of the committee and rendered judgment. Accordingly, the defendant is entitled to interest on the $10,500 from May 14,1974, the date of taking, until October 13,1978, the date of the judgment. Since the amount of interest due the defendant as an additional component of his condemnation award is a matter for judicial determination based on equitable considerations; Leverty & Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, 380, 471 A.2d 958 (1984); it is necessary that the case be remanded for a further hearing to determine a just and reasonable rate of interest.

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

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The first mortgagee of the property, The Derby Savings Bank, was also named as a defendant. The bank has not joined in this appeal and claims no interest in the compensation award to the defendant.

       General Statutes (Rev. to 1972) § 7-247 empowered any municipality by its Sewer authority to acquire land by purchase, condemnation or otherwise for the construction and operation of a sewer system or systems.

       General Statutes (Rev. to 1972) § 7-248 provided: “determination of compensation for property. Whenever the sewer authority is unable to agree with the owner of any property as to the compensation to be paid for the taking of such property, the sewer authority in the name of the municipality may petition the court of common pleas for the county or judicial district wherein such property is located, or a judge of said court if said court is not in session, to determine such compensation. Such petition shall be accompanied by a summons, signed by a competent authority, to be served as process in civil actions before said court, notifying the owner of the property to be taken, and all persons interested in such property, to appear before said court or such judge. Said court or such judge shall appoint a committee of three disinterested persons who shall be sworn before commencing their duties. Such committee, after giving reasonable notice to the parties, shall view the property in question, hear the evidence, ascertain the value, assess just damages to the owners or parties interested in the property so proposed to be taken and report its doings to said court or such judge. Said court or such judge may accept such report or reject it for irregular or improper conduct by the committee in the performance of its duties. If the report is rejected, said court or such judge shall appoint another committee, which shall proceed in the same manner as the first committee was required to proceed. If the report is accepted, such acceptance shall have the effect of a judgment in favor of the owner of the property against the municipality for the amount of the assessment made by the committee and, except as otherwise provided by law, execution may issue therefor. Said court or such judge may make any order in such proceedings necessary to protect the rights of all parties interested. Except as hereinafter provided, such property shall not be used or enclosed by the sewer authority until the amount of the assessment as so determined has been paid to the party to whom it is due, or deposited for his use with the state treasurer. Upon such payment or deposit, such property shall become the property of the municipality. The expenses and costs of such hearings shall be taxed by the court or judge. When it appears to the satisfaction of the court or judge at any stage of the foregoing proceedings that the public interest will be prejudiced by delay, said court or judge may direct that the sewer authority be permitted to enter immediately upon any real property proposed to be taken and to devote it to the public use specified in the petition upon the deposit with the clerk of the court of a sum to be fixed by said court or such judge upon a notice to the parties of not less than five days. Such sum when so fixed and paid shall be applied, so far as necessary for that purpose, to the payment of any award that may be made with interest thereon from the date of the entry of the petitioner upon such real property, and the costs and expenses of the proceeding, and the residue, if any, shall be returned to the municipality.”
      The plaintiffs petition was brought to the Court of Common Pleas pursuant to § 7-248. After July 1,1978, when the Court of Common Pleas was merged into the Superior Court pursuant to General Statutes § 51-164s, all pleadings were addressed to the Superior Court.
      In 1978, General Statutes § 7-248 was revised to provide that the amount of compensation to be paid for the taking of property may be determined in the same manner specified for redevelopment agencies in accordance with §§ 8-129 through 8-133. The revised statute is not applicable to this case.

       The defendant’s appraisal was based on a $12,500 market value for the property and $33,750 for damage to his adjoining property which he claimed had resulted from the taking.

       The defendant’s lot measured 50 x 100 feet and was designated as lot no. 124 on a map entitled “Map of Epson Downs, Near Derby, Connecticut, The Property of John B. Scarlett, Scale 1" - 60', surveyed 1899. D.S. Brinsmade,” filed for record in the Shelton town clerk’s office.

       The defendant appraised the value of lot no. 124 on the basis of its highest and best use as a complete building lot. Although at the time of the appraisal a zoning variance was necessary to construct on a lot that size, the defendant noted in his appraisal that “[t]here were many new homes in the immediate area on 50 ft. by 100 ft. lots or 5,000 sq. ft. lots which were built and received variances from the zoning Board of Appeals.”


author: Hull, J.

text:
    Arlyne Bush v. Quality Bakers of America et al.
    (2057)
    (2610)
    Dannehy, C.P.J., Hull and Borden, Js.
    Argued May 1
    decision released August 7, 1984

      Douglas L. Drayton, with whom, on the brief, was Jason M. Dodge, for the appellants (defendants).

      Gerard S. Spiegel, for the appellee (plaintiff).
   Hull, J.

In this workers’ compensation case, these combined appeals raise questions concerning the constitutionality of the conclusive presumption of General Statutes § 31-297 (b) and the subject matter jurisdiction of the workers’ compensation district commissioner.

The facts are not in dispute. On May 2, 1980, the decedent, Roy Bush, who had been an employee of Quality Bakers of America (Quality), suffered a cardiac arrest and died after playing a racquetball game shortly after noon at a private health club with the president of Quality. Bush’s widow, the claimant, filed a workers’ compensation claim for survivor’s benefits, providing written notice of her claim via certified mail to Quality on November 26, 1980. As of December 16, 1980, twenty days after receiving written notice of the widow’s claim, Qualify had not filed any notice of intention to contest the claim as required pursuant to General Statutes § 31-297 (b).

On January 26, 1982, the workers’ compensation commission for the seventh district entered a finding of compensability for the decedent’s death against Quality on the basis of the conclusive presumption established by General Statutes § 31-297 (b), but found, in addition, that his death did not arise out of and during the course of his employment.

Quality and its workers’ compensation carrier, Travelers Insurance Co., appealed the commissioner’s finding and award to the compensation review division (CRD). On January 29, 1982, the defendants filed a motion requesting the CRD to reserve for the Appellate Session of the Superior Court the constitutional challenge to § 31-297 (b) in accordance with then General Statutes § 31-324. The CRD denied the motion for reservation on November 9,1982, from which Quality and Travelers appeal in appeal No. 2057. The CRD later affirmed the commissioner’s decision, upholding the constitutionality of General Statutes § 31-297 (b), but amended his findings to exclude the factual determination that the decedent’s death did not arise out of his employment. From this decision, Quality also appeals. That appeal, No. 2610, was consolidated with the first on November 14, 1983. Quality conceded at argument that since the second appeal, No. 2610, also involved the issue of constitutionality sought to be reserved in appeal No. 2057, No. 2057 was rendered moot. Appeal No. 2057 is therefore dismissed for mootness.

Quality raises two issues which, as will be seen, overlap to some extent: (1) whether § 31-297 (b) violates the due process clause of both the state and federal constitutions by conclusively presuming compensability of a claim if the employer fails to file a notice contesting liability within twenty days of receipt; and (2) whether the workers’ compensation commissioner lacks jurisdiction to award compensation benefits when there is a finding that the employee’s death did not arise out of and in the course of employment.

Quality argues that the conclusive presumption of § 31-297 (b) is unconstitutional because there is no rational connection between the fact proved and the ultimate fact presumed. To support its contention, Quality cites the landmark case of Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318 (1971), holding unconstitutional General Statutes § 7-433a, which established a conclusive presumption that a policeman’s heart attack or hypertension was work related if the policeman had passed a pre-employment physical examination.

The Ducharme court stated the issue in oft-quoted language as follows: “As the defendant municipality has properly argued, the presumption created by the statute being a conclusive one, and hence not rebuttable by proof of the actual facts, it would require an adjudication that a perfectly healthy off-duty Putnam policeman who brought on a heart attack by overexertion on the last day of a lengthy out-of-state vacation suffered the attack ‘in the course of his employment,’ ‘in the line of duty’ and ‘within the scope of his employment’ by the city—despite the circumstance that that situation was entirely without foundation in fact. Constitutionally, the legislature can no more bind the courts to such a factually unsupportable conclusive adjudication than it can require their adjudication that a camel is a horse by the enactment of a statutory conclusive presumption that all four-footed animals are horses.” Id., 140.

The question of whether the holding that the conclusive presumption was unconstitutional in Ducharme requires a similar holding concerning the conclusive presumption in General Statutes § 31-279 (b) was faced squarely in De Leon v. Jacob Bros., Inc., 38 Conn. Sup. 331, 446 A.2d 831 (1981), appeal dismissed, 456 U.S. 952, 102 S. Ct. 2026, 72 L. Ed. 2d 447 (1982) (for want of a substantial federal question). The Appellate Session of the Superior Court determined in De Leon that the conclusive presumption of compensability, where liability is not contested by the employer within twenty days of written notice, did not violate the employer’s rights to procedural due process and equal protection of the laws. We concur with the reasoning of the De Leon court as set forth in the following lengthy excerpt from that opinion: “ ‘Statutes creating permanent irrebuttable presumptions, which are neither necessarily nor universally true, are disfavored under both the Fifth and Fourteenth Amendments, because they preclude individualized determination of the facts upon which substantial rights or obligations may depend. Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973).’ Coleman v. Darden, 595 F.2d 533, 536 (10th Cir. 1979).

“ ‘ “ A presumption of law must be based upon facts of universal experience and be controlled by inexorable logic.” ’ Ducharme v. Putnam, 161 Conn. 135, 140, 285 A.2d 318 (1971). To be constitutionally valid there must be a ‘rational connection between the fact proved and the ultimate fact presumed . . . .’ Tot v. United States, 319 U.S. 463, 467-68, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943). The United States Supreme Court ‘has held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause of the Fourteenth Amendment.’ Heiner v. Donnan, 285 U.S. 312, 329, 52 S. Ct. 358, 76 L. Ed. 772 (1931).

“The broad scope of this irrebuttable presumption doctrine has been significantly narrowed, however, in more recent decisions involving economic areas. In Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975), the Supreme Court upheld a federal statute precluding survivors from receiving social security benefits unless the claimant’s relationship to the wage earner existed at least nine months before his death. Thereafter, in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S. Ct. 2882, 49 L. Ed. 2d 752 (1976), the court validated a federal law creating two irrebuttable presumptions concerning miners’ disability and death from complicated pneumoconiosis.

“While it is intellectually impossible to articulate accurately the doctrinal underpinning of the Supreme Court’s recent decisions in the irrebuttable presumption area, ‘congressional judgments in the form of “irrebuttable presumptions” in the economic area will be upheld where there is a rational relationship between the criteria set forth in the statutory mandate and a legitimate congressional purpose. ’ (Emphasis added.) Sakol v. Commissioner of Internal Revenue, 574 F.2d 694, 698 (2d Cir. 1978).

“In Menzies v. Fisher, 165 Conn. 338, 334 A.2d 452 (1973), the Supreme Court reviewed the legislative history of § 31-297 (b) and found that the act ‘sought to correct some of the glaring inequities and inadequacies of the Workmen’s Compensation Act. Among the defects . . . were the needless, prejudicial delays in the proceedings . . . delays by employers or insurers in the payment of benefits, lack of knowledge on the part of employees that they were entitled to benefits and the general inequality of resources available to claimants with bona fide claims.’ Id., 342. The court found that the object of the twenty day rule was ‘to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.’ Id., 343. The court concluded that ‘[t]his rule is equitable because employers and insurers have the necessary resources to fulfill its mandate . . . .’Id., 345.

“The statute and its legislative history were thereafter reexamined in Adzima v. UAC/Norden Division, 177 Conn. 107, 411 A.2d 924 (1979). The court there concluded that the twenty day rule applied only to cases where liability was contested, and not to situations where the extent of the medical disability was in dispute. In neither Menzies nor Adzima was the legitimacy of the legislative purpose of the means adopted to effect that end challenged by either the appellants or the Supreme Court. We see no reason to do so now.

“We conclude that the statute in question is economic in nature, that it articulates a legitimate legislative purpose and that the means adopted to produce the result bear a rational relationship to the stated purpose of the statute. This being the case, the conclusive presumption is entitled to be examined within the less expansive prohibitions found in Weinberger v. Salfi, supra, and Usery v. Turner Elkhorn Mining Co., supra. When examined within the context, the legislation is found to be constitutionally valid.” De Leon v. Jacob Bros., Inc., supra, 333-35.

We adopt both the reasoning and conclusions of the De Leon court and find General Statutes § 31-297 (b) constitutional under both the state and federal constitutions. Quality has not met its heavy burden of proving the statute unconstitutional beyond a reasonable doubt. Eielson v. Parker, 179 Conn. 552, 557, 427 A.2d 814 (1980); Engle v. Personnel Appeal Board, 175 Conn. 127, 134, 394 A.2d 731 (1978).

There is an additional cogent reason for such a conclusion. The presumption in Ducharme concerned the fact of whether the injury was work related. Before the appearance of the “economic areas” line of cases, there was strong authority, both state and federal, to support the conclusion of unconstitutionality. See Ducharme v. Putnam, supra, 140-42. The conclusive presumption in this case, however, does not conclusively presume any fact either jurisdictional or evidentiary concerning a claimant’s case. It holds that the employer “shall be conclusively presumed to have accepted the compensability of such . . . death.” It is clearly, in the metaphor employed by then Justice House in Ducharme v. Putnam, supra, a horse of a different color.

When stripped to its essentials, it is clear that this is a procedural provision adopted for policy reasons by the General Assembly to meet recognized abuses in the workers’ compensation system. “The Constitution does not preclude such policy choices as a price for conducting programs for the distribution of social insurance benefits. Cf. Geduldig v. Aiello, [417 U.S. 484, 496, 94 S. Ct. 2485, 41 L. Ed. 2d 256 (1975)].” Weinberger v. Salfi, 422 U.S. 749, 785, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975). This short cutoff date to contest liability is akin to statutes of limitation or default judgments on liability and must be viewed in the context of the problems that gave rise to it. The employer does not establish any facts by not contesting the matter. It may not contest the case for any one of myriad reasons, including the involvement of close factual questions, negligence or oversight, or business considerations of the employer.

Although General Statutes § 31-297 (b) speaks in terms of a conclusive presumption, the label given to the twenty day cutoff period is not determinative of the issue. This precise question was presented in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S. Ct. 2882, 49 L. Ed. 2d 752 (1976). “Were the Act phrased simply and directly to provide that operators were bound to provide benefits for all miners clinically demonstrating their affliction with complicated pneumoconiosis arising out of employment in the mines, we think it clear that there could be no due process objection to it. For, as we have already observed, destruction of earning capacity is not the sole legitimate basis for compulsory compensation of employees by their employers. New York Central R. Co. v. Bianc [250 U.S. 596, 40 S. Ct. 44, 63 L. Ed. 1161 (1919)]. We cannot say that it would be irrational for Congress to conclude that impairment of health alone warrants compensation. Since Congress can clearly draft a statute to accomplish precisely what it has accomplished through [the Federal Coal Mine Health and Safety Act] § 411 (c) (3)’s presumption of disability, the argument is essentially that Congress has accomplished its result in an impermissible manner by defining eligibility in terms of ‘total disability’ and erecting an ‘irrebuttable presumption’ of total disability upon a factual showing that does not necessarily satisfy the statutory definition of total disability. But in a statute such as this, regulating purely economic matters, we do not think that Congress’ choice of statutory language can invalidate the enactment when its operation and effect are clearly permissible. Cf. Weinberger v. Salfi, 422 U.S. 749, 767-85 [95 S. Ct. 2457, 45 L. Ed. 2d 522] (1975); McDonald v. Board of Election, 394 U.S. 802, 809 [89 S. Ct. 1404, 22 L. Ed. 2d 739] (1969); United States v. Carolene Products Co., 304 U.S. 144, 154 [58 S. Ct. 778, 82 L. Ed. 1234] (1938).” Usery v. Turner Elkhorn Mining Co., supra, 23-24. Similarly, were the notice statute in this case couched in terms that an employer cannot contest certain matters unless he specifically raises the questions within twenty days of notice to the employer, there would be little constitutional objection to it.

Quality’s argument that the commissioner lacked jurisdiction because of his finding that Bush’s death did not arise out of and in the course of his employment falls of its own weight. “[I]t is settled law that the commissioner’s jurisdiction is ‘confined by the Act and limited by its provisions.’ Jester v. Thompson, 99 Conn. 236, 238, 121 A. 470 [1923]; Morisi v. Ansonia Mfg. Co., 108 Conn. 31, 33, 142 A. 393 [1928].” Gagnon v. United Aircraft Corporation, 159 Conn. 302, 305, 268 A.2d 660 (1970). And, under General Statutes § 31-284 (a), an employee’s liability is limited to “personal injury sustained by an employee arising out of and in the course of his employment or on account of death ... so sustained . . . .” The fact that Bush was an employee of Quality who died is not contested. Quality relies only on the claim of the need of the claimant to prove at least a prima facie case of a work related death.

In so doing, Quality overlooks the effect of the statutory preclusion. Quality gave up or relinquished any right it had to contest that issue. “The statute clearly speaks to a threshold failure on the employer’s part to contest ‘liability’: to claim, for example, that the injury did not arise out of and in the course of employment; see Menzies v. Fisher [165 Conn. 338, 340, 334 A.2d 452 (1973)]; that the injury fell within an exception to the coverage provided by workmen’s compensation; see Draus v. International Silver Co., 105 Conn. 415, 418, 135 A. 437 (1926); or that the plaintiff was not an employee of the defendant, but an independent contractor; see Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 704, 131 A. 739 (1926). If there is such a failure to contest, both liability, and any substantive claim as to the extent of disability, are precluded.” Adzima v. UAC/Norden Division, 177 Conn. 107, 113-14, 411 A.2d 924 (1979). Quality conceded compensability and jurisdiction to adjudicate the Bush claim when it failed to contest the initial claim. Any other interpretation of the statute would gut the remedial purpose of the twenty day rule. The jurisdictional claim is illusory. By not contesting compensability, Quality waived any jurisdiction claim.

We agree with the conclusion of the compensation review division that once the commissioner found statutory preclusion of any defense to compensability, “he was no longer permitted to make any factual exploration or finding concerning such a potential question.” Quality’s threshold failure to contest liability foreclosed any further inquiry.

In Menzies v. Fisher, supra, the Supreme Court of Connecticut found the employer’s notice of contest inadequate under the statute in failing to supply any specific grounds for denying the plaintiff’s claim. That court found that the trial court’s failure to preclude the employer’s defenses was harmless error in the light of its having sustained the award. The court then stated: “Our decision as to the procedural effect of § 31-297 thus renders moot the claim by the defendants that the injuries sustained by the claimant’s decedent did not, on the facts, arise out of and in the course of employment.” Id., 348.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 31-297 (b) provides: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or' before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any gounds or the extent of his disability.”

       General Statutes § 31-324 then provided: “When, in any case arising under the provisions of this chapter, the compensation review division is of the opinion that the decision involves principles of law which are not free from reasonable doubt and which public interest requires shall be determined by the appellate session of the superior court, in order that a definite rule be established applicable to future cases, said compensation review division may, on its own motion and without any agreement or act of the parties or their counsel, reserve such case for the opinion of the appellate session of the superior court. Upon a reservation so made, no costs shall be taxed in favor of either party, and no entry fee, record fee, judgment fee or other clerk’s fee in either court shall be taxed. Upon the filing of such a reservation, the question shall come before the appellate session of the superior court as though an appeal had been taken, and said court shall thereupon reserve the case for the opinion of the supreme court in the manner herein indicated; but if, in the opinion of the appellate session of the superior court, the principles of law involved in the decision are in fact free from reasonable doubt and the public interest does not in fact require that they be determined by the supreme court, the appellate session of the superior court may, in its discretion, hear and determine the controversy as in other cases.”

       “Quality” hereinafter will refer to both appellants unless otherwise noted.

       We will leave for another day the question of whether the denial by CRD of a petition for reservation of a question constitutes a final judgment from which the right of appeal will lie. See Practice Book § 3000.

       General Statutes § 7-433a, which was successfully challenged in Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318 (1971), was substantially replaced by the present language of General Statutes § 7-433e as a result of the Ducharme court’s decision.

       The constitutionality of General Statutes § 31-297 (b) was also not considered in Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 355 A.2d 277 (1971).

       Quality distinguishes De Leon v. Jacob Bros., Inc., 38 Conn. Sup. 331, 446 A.2d 831 (1981), on the ground that the commissioner found a work related injury in that case. Our decision on the jurisdictional argument, infra, however, disposes of this claim.


text:
    Hilda Bencivenga v. City of Milford
    (2393)
    Dannehy, C.P.J., Hull and Borden, Js.
    Argued May 2
    decision released August 7, 1984

      Bruce L. Levin, for the appellant (defendant).

      Max F. Brunswick, with whom, on the brief, was Sherman A. Zitomer, for the appellee (plaintiff).
   Per Curiam.

On October 26, 1981, the defendant, in eminent domain proceedings, took properties at 164 and 176 Hillside Avenue in Milford owned by the plaintiff and, in its statement of compensation, assessed damages at $65,000. The plaintiff applied to the Superior Court in the judicial district of Ansonia-Milford at Milford for a review of the assessment on the ground that it was inadequate. See General Statutes § 8-132. The matter was referred to Hon. Raymond J. Devlin, state referee, who, exercising the powers of the Superior Court, rendered judgment reassessing the damages for the taking at $84,500. From that judgment the defendant has taken this appeal.

The properties in question consisted of two lots with a house on each located on Hillside Avenue in a section of Milford near Long Island Sound. Before the taking, the two houses which occupied the lots were badly damaged by fire. After the taking, and prior to trial, the houses were razed. The several expert appraisers valued the properties, in their condition before the fire, from $65,000 to $98,000.

There was no claim by the defendant that the plaintiff was not entitled to be compensated for her fire damaged houses nor did the plaintiff concede that the damage by fire reduced the total value of her properties. There was thus before the court for determination only the question of the fair value of the plaintiffs properties at the date of the taking.

The plaintiff had two appraisers, William J. Roper and Thomas E. Holloman. Neither appraiser viewed the interior of either house, but Roper was present when the houses were demolished and in a position to observe the construction and improvements of each house and lot. Roper found the damages for the entire taking to be $98,000. Holloman found the damages for the entire taking to be $91,500.

The defendant’s appraiser, William McCarthy, in October, 1979, found the damages for the entire taking to be $65,000, and persisted in that opinion, testifying at the trial that the damages for the entire taking was $65,000.

All three appraisers were obviously competent and the court endeavored to determine why McCarthy’s appraisal of the value of the properties taken remained at $65,000 while the appraisals of Roper and Holloman were significantly higher. All three appraisers agreed that the value of real estate in the neighborhood of the plaintiff’s properties increased measurably between October, 1979, and October 26, 1981, the date of taking. McCarthy nevertheless felt that any increase in value, large or small, would not have benefited the plaintiff’s properties and that, in fact, “these properties are worth less [now] than what I put on there [in 1979].” The higher opinions of the value given by the plaintiff’s appraisers were largely based on the appreciation in the value of the real estate between 1979 and the date of taking, October 26, 1981.

The court visited the premises after the close of the testimony and was able to assess the damages due the defendant.

The plaintiff was entitled to receive just compensation for the properties taken, and the task of the court was to reach a result which would give the plaintiff, as nearly as possible, a fair equivalent in money. Winchester v. Cox, 129 Conn. 106, 114, 26 A.2d 592 (1942). No one method of valuation was controlling, and the court was free to select the method most appropriate for the case. Wronowski v. Redevelopment Agency, 180 Conn. 579, 586-87, 430 A.2d 1284 (1980). The determination of the value of these properties was a matter for the considered judgment of the court, taking into account the divergent opinions expressed by the witnesses and the claims advanced by the parties. Benson v. North Haven, 126 Conn. 506, 510, 12 A.2d 551 (1940). Of course, the court was not bound by, nor did it in this case accept, the dollar damage estimate of any one of the appraisers. Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425, 151 A.2d 693 (1959). It was its duty to award the plaintiff just compensation for the damages proven to have directly resulted from the taking in the light of the court’s view of the premises. That view was all encompassing and the articulated finding is not susceptible to any change which would subvert the conclusion reached and the consequent judgment. Benson v. North Haven, supra.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       No attempt will be made to review the rulings on evidence in view of our strong policy that rulings that are claimed as evidentiary errors must be provided and printed in the briefs as required and outlined by Practice Book § 3060F (c) (3). Gross v. Latimer, 1 Conn. App. 501, 505, 472 A.2d 1303 (1984).