author: Norcott, J.

text:
    Howard T. Gillis v. Mary P. Gillis
    (8240)
    Dupont, C. J., O’Connell and Nokcott, Js.

      Argued February 16
    decision released May 22, 1990

      Donald McPartland, for the appellant (defendant).

      Maureen Danehy Cox, for the appellee (plaintiff).
   Norcott, J.

This appeal arises from the plaintiffs action to recover payment due for legal services rendered to the defendant. The defendant alleged as a special defense that the parties had entered into an accord, by which the defendant agreed to pay the plaintiff the sum of $17,400 and the plaintiff agreed, in return, to deliver to the defendant a general release from all claims.

In his reply, the plaintiff admitted that he had entered into an accord with the defendant but claimed that he had agreed to provide only a specific release limited to the present lawsuit and not a general release as the defendant contended. The plaintiff filed an offer of judgment, pursuant to § 52-192a, which the defendant rejected.

The case was tried to a jury. At the conclusion of the presentation of evidence, the defendant moved for a directed verdict claiming, inter alia, that both parties had alleged that an accord had been reached and that the case could not, therefore, be submitted to a jury. The court denied this motion and submitted the case to the jury, charging that it must determine whether the parties had entered into an accord. The jury returned a verdict in favor of the plaintiff for $17,400 in damages and $4350 in interest. The defendant then moved to set aside the verdict and to have judgment rendered in accordance therewith. These motions were denied.

The plaintiff filed a motion for attorney’s fees and interest in accordance with his offer of judgment, pursuant to § 52-192a. Thereafter, the trial court, in its memorandum of decision, awarded the plaintiff interest of 12 percent, pursuant to General Statutes § 52-192a, on the damages award of $17,400, but did not award attorney’s fees. The plaintiff then filed a motion for interest in accordance with the memorandum of decision, and the court granted this motion.

The defendant claims that the trial court erred in permitting the jury to consider the issue of whether the parties had entered into an accord. The defendant also claims that the trial court erred in awarding interest pursuant to § 52-192a in addition to the jury’s award of interest pursuant to § 37-3a. We find error on the second issue only.

The defendant first claims that the trial court erred in submitting the issue of accord to the jury. She claims that once the plaintiff admitted to having entered into an accord with her, the issue could no longer properly be submitted to the jury, regardless of the dispute as to what type of release the plaintiff would deliver to the defendant. We disagree.

“An accord is a contract between creditor and debtor for the settlement of a claim by some performance other than that which is due. Satisfaction takes place when the accord is executed.” W. H. McCune, Inc. v. Revzon, 151 Conn. 107, 109, 193 A.2d 601 (1963). The defendant does not claim that her debt has been paid in full, but rather, has alleged an “accord executory.” Id. The defense of accord requires that the defendant allege and prove “ ‘a new agreement with a new consideration.’ ” Crucible Steel Co. v. Premier Mfg. Co., 94 Conn. 652, 656, 110 A. 52 (1920). “There must be a meeting of the minds.” (Emphasis added.) Id.

In this case, while both parties agree that there was an accord between them, they dispute the terms of that accord. We are not persuaded by the defendant’s argument that this dispute is irrelevant. Without a mutual assent, or “meeting of the minds,” there could be no accord. See Crucible Steel Co. v. Premier Mfg. Co., supra. Whether there has been a mutual assent between the parties is a question of fact for the jury to decide. See Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 131, 523 A.2d 1266 (1987); Air-Care N.O. Nelson Co. v. Patchet, 5 Conn. App. 203, 207, 497 A.2d 771 (1985); DiUlio v. Goulet, 2 Conn. App. 701, 703, 483 A.2d 1099 (1984). Because of the parties’ dispute, the trial court did not err in submitting the issue to the jury to determine whether there had been a “meeting of the minds.”

Because the jury concluded that no accord existed, and because we conclude that the trial court did not err in submitting this issue to the jury, we need not address the defendant’s claim that the existence of an accord negated the plaintiff’s right to sue on the underlying obligation.

The defendant’s final claim is that the trial court erred in awarding interest pursuant to § 52-192a in addition to the jury’s award of interest pursuant to § 37-3a and not in lieu of it. The defendant claims that the trial court could not award interest pursuant to § 52-192a in addition to the jury’s award of interest, and it should have substituted its interest award for that of the jury. We do not agree.

General Statutes § 52-192a (b) provides that if a plaintiff makes an offer of judgment, if the defendant does not accept that offer, and “[i]f the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount . . . .” (Emphasis added.)

There is.no question that the application of § 52-192a is mandatory in this situation. The plaintiff filed an “offer of judgment” for $17,400, the defendant rejected the offer, and the jury awarded the plaintiff an amount “equal to” that offer plus interest pursuant to § 37-3a. The total amount recovered by the plaintiff was, therefore, greater than the offer of judgment.

An award of interest pursuant to § 52-192a (b) is punitive in nature, and it is meant to serve the purpose of promoting “fair and reasonable compromise of litigation without trial . . . Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 267, 513 A.2d 144 (1986); Kusha v. Respondowski, 3 Conn. App. 570, 574, 490 A.2d 1014 (1985). This interest is mandated when the amount recovered is greater than or equal to the offer of judgment; see General Statutes § 52-192a (b); and that amount can include interest and attorney’s fees; Crowther v. Gerber Garment Technology, Inc., supra, 270-71; as well as double or treble damages. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 307, 472 A.2d 316 (1984). The plaintiff, in his complaint, sought money damages and interest, and the jury awarded him both as his basic damages. That total was the appropriate amount to be compared to the offer of judgment. See Crowther v. Gerber Garment Tech nology, Inc., supra, 270; see also Gionfriddo v. Avis Rent A Car System, Inc., supra. The trial court did not, therefore, err in awarding § 52-192a (b) interest in addition to § 37-3a interest. See Edward Denike Tree Co. v. Butler, 21 Conn. App. 366, 573 A.2d 349 (1990).

The defendant also appears to argue that the trial court erred in its award of interest because this award was inconsistent with the court’s intention as expressed in the memorandum of decision and was not, therefore, an award of interest “in accordance with the memorandum of decision.” The defendant cites a portion of the trial court’s memorandum of decision in which it concludes: “[R]eading the statute in light of the commonly approved usage of the word ‘except,’ it appears that where § 52-192a is applicable, § 37-3a will not be available.” (Emphasis added.) In its memorandum of decision, the trial court ruled that the “[p]laintiff is entitled to interest, pursuant to § 52-192a, at the rate of twelve percent from the date the complaint was returned to court through the date the court accepted the jury verdict. Nevertheless, the interest should only be computed on the damages award of $17,400, as the interest awarded by the jury was done so pursuant to § 37-3a, which is precluded when § 52-192a is applicable and utilized.” (Emphasis added.)

It is true that the memorandum of decision, read as a whole, does contain some ambiguity as to the court’s intent. The order, however, is clear and unambiguous. It is the appellant’s burden to show that there was error. Ciucias v. Valley Cab Co., 3 Conn. App. 468, 470, 489 A.2d 411 (1970). “ ‘[I]f an appellant requires amplification or clarification ... of a decision to present his claims of error he should seek a further articulation from the trial court.’ ” Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 384-85, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985). Under normal circumstances, this court will not remand a case to “correct a deficiency the appellant should have remedied.” Carpenter v. Carpenter, 188 Conn. 736, 739 n.2, 453 A.2d 1151 (1982); Pointina Beach Assn. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984). We must conclude that the trial court intended to act as it clearly did in its order.

The plaintiff suggests that the trial court erred in not computing interest on the § 37-3a interest portion of the verdict. We agree. Although this is not raised as an issue on cross appeal, we find that, based upon the statutory language of § 52-192a, it was plain error for the trial court to compute interest only on a portion of the award. See Practice Book § 4185. “The plain language of General Statutes § 52-192a specifies that ‘the court shall add to the amount so recovered twelve percent annual interest on said amount. . .’’’(Emphasis added.) Edward Denike Tree Co. v. Butler, supra. The trial court clearly did not act in accordance with the mandate of § 52-192a when it awarded interest only on the damages portion of the award. Accordingly, interest must be awarded on the entire award, that is, the “amount so recovered.”

There is error as to the trial court’s award of interest under General Statutes § 52-192a only, the judgment is set aside as to that award and the case is remanded with direction to recompute the § 52-192a award of interest based upon the entire award.

In this opinion the other judges concurred.

       At the time of this action, there was another action pending between the parties.

       The jury awarded interest pursuant to General Statutes § 37-3a which provides that “interest at a rate of ten 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 . . . .”

       After defining “accord” for the jury, the trial court instructed that “in this case there is a dispute regarding whether or not there is what the law calls a meeting of the minds on this special defense .... [Tjhere is no dispute but that the defendant, Mary P. Gillis, offered the sum of $17,400 as satisfaction of all of the claims made by the plaintiff, Howard T. Gillis, but there is a dispute regarding the release that was to be supplied in return for that payment of money ....
      “Now, regarding this special defense, as I indicated to you, the defendant has the burden of proving it by a fair preponderance of the evidence. If you find it is proven that there is an accord and satisfaction as I’ve explained it to you, that there was a meeting of the minds . . . you will find that the [defendant] has sustained her burden of proof on the special defense .... [I]f you find the [defendant] has proven her special defense . . . that, as I said, is a bar to plaintiff’s recovery.” (Emphasis added.)

       We note, however, that even if the jury had found a meeting of the minds, the plaintiff would not necessarily have been foreclosed from suing on the underlying obligation. “Whether the new agreement was per se accord and satisfaction of the original debt depends upon the intention of the parties. ... It is strongly presumed, however, that a plaintiff, who is claiming a substantially undisputed amount to be due, would not accept a mere promise to pay a much smaller sum in discharge of a claim for a larger amount. . . . ‘[I]t is not a probable inference that a creditor intends merely an exchange of his present cause of action for another. It is generally more reasonable to suppose that he bound himself to surrender his old rights only when the new contract of accord was performed.’ 15 Williston, supra, § 1847.” Air-Care N.O. Nelson Co. v. Patchet, 5 Conn. App. 203, 205-206, 497 A.2d 771 (1985); see also Halloran v. Fischer, 126 Conn. 44, 46, 9 A.2d 290 (1939).


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. Michael Raucci
    (8231)
    Borden, O’Connell and Lavery, Js.
    Argued January 16
    decision released May 22, 1990

      Donald D. Dakers, public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Pepper, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of the trial court reimposing a total effective sentence of not less than fifteen nor more than thirty years, following the granting of his motion to correct an illegal sentence. The sole issue is whether the trial court, when correcting an illegal sentence pursuant to Practice Book § 935 after a multicount conviction has been partially set aside, may restructure the entire sentencing plan in order to effectuate its original sentencing intent. We hold that, under the facts of this case, the trial court had such authority, and, therefore, we find no error.

The defendant was originally convicted on four counts: larceny in the first degree; conspiracy to commit larceny in the first degree; burglary in the third degree; and conspiracy to commit burglary in the third degree. In November, 1983, the court imposed sentence as follows. On the convictions of larceny in the first degree and conspiracy to commit larceny in the first degree, the court imposed concurrent sentences of not less than ten nor more than twenty years. On the convictions of burglary in the third degree and conspiracy to commit burglary in the third degree, the court sentenced the defendant to not less than two and one-half nor more than five years, to run consecutively, both as to each other and as to the first two sentences. The total effective sentence, therefore, was not less than fifteen nor more than thirty years.

In April, 1987, subsequent to the defendant’s sentencing, we held in State v. Stellato, 10 Conn. App. 447, 456-57, 523 A.2d 1345 (1987), that where a defendant is tried on multiple conspiracy counts arising out of a single agreement, the trial court must render judgment and sentence the defendant on only that conspiracy to commit the most serious offense. See also State v. Kitt, 8 Conn. App. 478, 513 A.2d 731 (1986), cert. denied, 202 Conn. 801, 518 A.2d 648 (1987). On the basis of Stellato, the defendant moved, pursuant to Practice Book § 935, to vacate the conviction for conspiracy to commit burglary in the third degree. The court granted the defendant’s motion, and vacated that conviction.

The defendant also moved that the total effective sentence be reduced to not less than twelve and one-half nor more than twenty-five years, by eliminating the term originally imposed on the vacated conviction, namely, not less than two and one-half nor more than five years, and leaving intact the sentences imposed for the three remaining convictions. The court, however, declined to do this. Instead, it resentenced the defendant on the three remaining counts so as to reflect its original sentencing intent, and reimposed a total effective sentence of not less than fifteen nor more than thirty years. The court accomplished this by resentencing the defendant on the first two convictions to consecutive sentences of not less than seven and one-half nor more than fifteen years, and on the third conviction to a sentence of not less than two and one-half nor more than five years, to run concurrent with the first two convictions.

The defendant claims that the trial court had no authority to increase a valid sentence once its execution had commenced, because such authority is vested solely in the sentence review division of the Superior Court. See General Statutes § 51-194; Kolfuss v. Warden, 149 Conn. 692, 694-95, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); State v. Elliott, 8 Conn. App. 566, 573-75, 513 A.2d 1285, cert. denied, 201 Conn. 813, 517 A.2d 630 (1986). Under the factual circumstances of this case, we disagree.

The Connecticut courts have not addressed the parameters of a trial court’s resentencing powers where a multicount conviction has been partially set aside. This issue, however, has been addressed by the federal courts of appeal. The federal resentencing cases have arisen in two contexts.

One context, analogous to the present case, involves resentencing by the district court after granting a motion made pursuant to former Rule 35 of the Federal Rules of Criminal Procedure, permitting the correction of an illegal sentence. The federal circuits are in conflict as to a district court’s resentencing authority under Rule 35. One position taken is that of an aggregate package approach, whereby the trial court is considered to have the authority to revise a sentencing package to effectuate its original sentencing intent. See United States v. Bentley, 850 F.2d 327, 328-29 (7th Cir.), cert. denied, 488 U.S. 970, 109 S. Ct. 501, 102 L. Ed. 2d 537 (1988). The opposing position is that Rule 35 empowers the district court to correct only that portion of the sentence that is illegal, and, as such, limits the court to vacating the illegally imposed sentences without concomitantly increasing the sentences on the valid counts. See United States v. Minor, 846 F.2d 1184, 1188-89 (9th Cir. 1988); United States v. Henry, 709 F.2d 298, 306-309 (5th Cir. 1983).

The other context involves resentencing by the district court following a remand from a direct appeal, where the appellate court has reversed part of a multicount conviction. We agree with the Seventh Circuit Court of Appeals that “nothing but pointless formalism would support a distinction between a sentencing plan disrupted by the vacatur of some counts on appeal and a plan shattered by the district court’s own recognition [on a Rule 35 motion] that the plan was infested with error. We suppose that a district judge might deny the Rule 35 motion and acquire the power to resentence the defendant after the inevitable reversal, but what would be the point?” United States v. Bentley, supra; compare United States v. Rosen, 764 F.2d 763, 766-67 (11th Cir. 1985); United States v. Henry, supra, 304-305. We also conclude that, with respect to the issue posed by this case, it is of no import whether the issue arises following a direct appeal or following the granting of a § 935 motion. To make such a distinction would elevate form over substance.

Where a multicount conviction is remanded after one or more of the convictions is set aside on appeal, the overwhelming weight of the federal authority permits a district court to increase individual sentences as long as the original total effective sentence is not exceeded. The general rationale for this is that the defendant, in appealing his conviction and punishment, has voluntarily called into play the validity of the entire sentencing package, and, thus, the proper remedy is to vacate it in its entirety. More significantly, the original sentencing court is viewed as having imposed individual sentences merely as component parts or building blocks of a larger total punishment for the aggregate convictions, and, thus, to invalidate any part of that package without allowing the court thereafter to review and revise the remaining valid convictions would frustrate the court’s sentencing intent. See, e.g., United States v. Alvarez-Moreno, 874 F.2d 1402 (11th Cir. 1989); United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir. 1989); United States v. Gray, 852 F.2d 136 (4th Cir. 1988); United States v. Diaz, 834 F.2d 287 (2d Cir. 1987); United States v. Cataldo, 832 F.2d 869 (5th Cir. 1987); United States v. Shue, 825 F.2d 1111 (7th Cir.), cert. denied, 484 U.S. 956, 108 S. Ct. 351, 98 L. Ed. 2d 376 (1987); United States v. Colunga, 812 F.2d 196 (5th Cir.), cert. denied, 484 U.S. 857, 108 S. Ct. 165, 98 L. Ed. 2d 120 (1987); United States v. Moore, 710 F.2d 270 (6th Cir. 1983); McClain v. United States, 676 F.2d 915 (2d Cir.), cert. denied, 459 U.S. 879, 103 S. Ct. 174, 74 L. Ed. 2d 143 (1982); United States v. Busic, 639 F.2d 940 (3rd Cir.), cert. denied, 452 U.S. 918, 101 S. Ct. 3055, 69 L. Ed. 2d 422 (1981); see also Kelly v. Neubert, 898 F.2d 15 (3d Cir. 1990) (no due process violation where state trial court increases individual sentences on remand after appeal). Compare United States v. Lewis, 862 F.2d 748 (9th Cir. 1988).

We recognize that when a trial court imposes sentence pursuant to a multicount conviction, its intent ordinarily is to structure the sentences on the various counts so as to arrive at a total effective sentence that it deems appropriate for both the crimes and the criminal. We adopt this “aggregate package” view for resentencing, either following a remand from a direct appeal or pursuant to Practice Book § 935, recognizing the power of the court to fashion the new sentence so as to conform to its original sentencing intent.

We stress that the court’s power under these circumstances is limited by its original sentencing intent as expressed by the original total effective sentence, and, furthermore, that this power is permissive, not mandatory. Although the court may reconstruct the sentencing package to conform to its original intent, it is not required to do so. It may, therefore, simply eliminate the sentence previously imposed for the vacated conviction, and leave the other sentences intact; or it may reconstruct the sentencing package so as to reach a total effective sentence that is less than the original sentence but more than that effected by the simple elimination of the sentence for the vacated conviction. The guiding principle is that the court may resentence the defendant “to achieve a rational, coherent [sentence] in light of the remaining convictions,” as long as the revised total effective sentence does not exceed the original. United States v. Bentley, supra, 328.

It is axiomatic that a trial court has wide discretion to tailor a just sentence in order to fit a particular defendant and his crimes, as long as the final sentence falls within the statutory limits. See State v. Huey, 199 Conn. 121, 126-28, 505 A.2d 1242 (1986); State v. Spears, 20 Conn. App. 410, 419-20, 567 A.2d 1245 (1989). This same wide sentencing discretion equally applies to a trial court’s restructuring of a sentencing plan for a defendant who has been convicted in a multiple count case and who faces a permissible range of punishment based on the individual counts. “[W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the . . . court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture . . . within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.” United States v. Pimienta-Redondo, supra, 14.

In this case, the defendant does not challenge the constitutionality of his revised sentences. Cf. Kelly v. Neubert, supra. Rather, he claims that the trial court lacked the authority to increase his sentence. His argument is necessarily predicated on the assumption that his sentence is in fact being increased. Because, under the aggregate sentencing perspective, the sentencing plan must be viewed in its entirety, the total effective sentence as originally imposed is the backdrop that must be kept in mind, not the individual sentences comprising the total term. Here, the total effective sentence as originally imposed was not less than fifteen nor more than thirty years. Because the defendant was resentenced to this same total term, he has not suffered any additional detriment under his revised sentences. See, e.g., United States v. Pimienta-Redondo, supra, 15.

Although we have not previously addressed this specific issue of whether sentences should be treated individually or in toto when resentencing in a multicount conviction case, this aggregate sentencing posture is not without precedent in our jurisprudence. We have considered a similar issue in determining a sentencing court’s authority under General Statutes § 53a-59 (modification of definite sentences of three years or less). In State v. Lombardo, 19 Conn. App. 631, 639, 563 A.2d 1030 (1989), we concluded that “the term ‘sentence’ as used in § 53a-39 as applied to multiple sentences imposed on multicount informations, refers to the aggregate or total effective sentence.”

Here, the trial court at the resentencing hearing clearly recalled its original sentencing intent, namely, that it intended to impose a total effective sentence of not less than fifteen nor more than thirty years. The court was clear also in its determination that the elimination of the single conspiracy conviction did not change that intent. It then restructured the sentencing package to effectuate that intent. The revised sentence in this case was proper.

There is no error.

In this opinion the other judges concurred.

       Practice Book § 935 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       The court stated: “Certainly, as I remember at trial, and going through a copy of the transcript of the sentencing remarks, it was very obvious to me, and is still very obvious to me, because I recall it specifically that the intention of the court at the time of the imposing of sentence was to end up with an effective sentence of Mr. Raucci to serve not less than fifteen nor more than thirty years. ... I think the record is thoroughly complete with the intent of the court at the time of sentencing to impose a sentence of not less than fifteen nor more than thirty years as a total effective sentence in that particular crime and that particular offense. And keeping that in mind, the court will reimpose sentence on the remaining three counts . . . [s]o that the total effective sentence on the revised sentence would be not less than fifteen years nor more than thirty, and that would carry out the intent of the court at the time of sentencing for an effective sentence of not less than fifteen nor more than thirty. And that will be the sentence imposed by the court.”

       Practice Book § 935 is based in part on the first sentence of the former Rule 35 of the Federal Rules of Criminal Procedure. State v. Pina, 185 Conn. 473, 481 n.6, 440 A.2d 962 (1981). That first sentence provided in pertinent part that “[t]he court may correct an illegal sentence at any time Although Rule 35 has subsequently undergone numerous revisions, the most significant of which is undoubtedly the newly mandated “guideline sentencing” that has overtaken the federal courts; see United, States
        v. Pimienta-Redondo, 874 F.2d 9, 14 n.4 (1st Cir. 1989); the federal cases interpreting the former Rule 35 are useful in our review of the Superior Court’s resentencing powers under Practice Book § 935.


author: Lavery, J.

text:
    A.J. Masi Electric Company, Inc. v. Marron and Sipe Building and Contracting Corporation
    (8143)
    Norcott, Foti and Lavery, Js.

      Argued February 27
    decision released May 22, 1990

      Charles F. Brower, for the appellants (third party defendants).

      Vincent P. McCarthy, for the appellee (defendant-third party plaintiff).

      Robert V. Eberhard, for the plaintiff.
   Lavery, J.

This appeal presents the question whether the doctrine of res judicata prevents a plaintiff from bringing a second lawsuit on a claim, originally brought in a prior lawsuit, where the trial court in the original case, with the consent of the parties, ordered that the claim be severed and tried separately.

The facts are not in dispute. Holly Flor hired Marrón and Sipe Building and Contracting Corporation (Marron-Sipe) to construct the New Milford Car Wash. Marron-Sipe subcontracted with A. J. Masi Electric Co., Inc. (Masi), to perform all the electrical work on the facility. On September 29,1987, Masi sued Marron-Sipe to receive payment for its electrical contracting services (case number 290323). On November 18, 1987, Marron-Sipe brought a complaint against Holly Flor and the New Milford Car Wash, Inc., seeking payment for the cost of labor and material in constructing the car wash and also seeking the cost of Masi’s electrical contracting services (case number 43905). Masi was not a party to case number 43905. The trial court in case number 43905, with the consent of the parties, ordered that Marron-Sipes’ claim against Holly Flor and the New Milford Car Wash, Inc., for the cost of electrical contracting be severed and tried separately. On December 15,1987, Marron-Sipe brought a third party complaint in case number 290323 against Holly Flor and the New Milford Car Wash, Inc., for the cost of Masi’s electrical contracting, thus consolidating all of the parties to the dispute over the cost of the electrical contracting in case number 290323. Case number 290323 was then transferred from Danbury Superior Court to Litchfield, and the case number 47115 was assigned to it.

The third party defendants, Holly Flor and the New Milford Car Wash, Inc., believe that the third party plaintiff’s claim for the cost of the electrical services cannot now be brought in case number 47115 because it could have been brought in case number 43905. The third party defendants therefore filed a motion for leave to amend their answer to the third party complaint to include the special defense of res judicata. They appeal from the trial court’s denial of their motion. The case was tried to a conclusion and a judgment was rendered for the plaintiff, Masi, against the defendant, Marron-Sipe, and for Marron-Sipe as third party plaintiff against the third party defendants Holly Flor and New Milford Car Wash, Inc., the appellants herein. The special defense of res judicata is the only issue on appeal.

The courts of this state follow the Restatement (Second), Judgments, in applying the doctrine of res judicata. See Orselet v. DeMatteo, 206 Conn. 542, 544-46, 539 A.2d 95 (1988); Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363-65, 511 A.2d 333 (1986). The Restatement (Second), Judgments § 26, provides in part: “When any of the following circumstances exists, the [doctrine of res judicata] does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant: (a) The parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein; or (b) The court in the first action has expressly reserved the plaintiffs right to maintain the second action . . . .’’On the basis of § 26 of the restatement, the trial court did not err in denying the third party defend- • ants’ motion to amend their pleading to include the special defense of res judicata. The parties were entitled to litigate the matter once in a court of law and the trial court properly gave them their day in court.

There is no error.

In this opinion the other judges concurred.


author: Spallone, J.

text:
    State of Connecticut v. Walter Torres
    (7788)
    Spallone, O’Connell and Nokcott, Js.
    Argued March 7
    decision released May 22, 1990

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were, Robert Katz, assistant state’s attorney, and, on the brief, Eugene Callahan, state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals his conviction, after a jury trial, of the crime of possession of narcotics in violation of General Statutes § 21a-279 (a). He claims that the trial court erred in denying his motions to suppress statements elicited by the police in violation of his constitutional rights. We find no error.

The jury could reasonably have found that on the morning of April 17,1988, the Norwalk police executed a search warrant at the defendant’s home. The defendant, his common-law wife, his mother and his two children were detained in the kitchen during the search. The officers discovered cocaine and drug paraphernalia in open view on the master bedroom nightstands. The adult occupants of the apartment were then informed of their arrest for narcotics offenses and for risk of injury to children. The officers did not question the defendant and he was not warned of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Further search of the apartment revealed additional cocaine and drug paraphernalia, a police scanner and a cache of weapons.

At the conclusion of the search, the defendant stated to the police that the drugs belonged to him, not to his wife or mother. The defendant made a similar statement later at the police station after being advised of his right to remain silent and to have counsel. The defendant testified on his own behalf at trial and again admitted to owning the drugs. The defendant was convicted of the crime of possession of narcotics, and this appeal followed.

The defendant claims on appeal that his statements to the police should have been suppressed as the fruit of custodial interrogations conducted in violation of his constitutional rights. As to the statement made in his apartment, he claims that, although he had not been advised of his right to remain silent, the police elicited his admission by arresting his mother, a “powerful psychological ploy functionally equivalent to interrogation.” As to the defendant’s statement at the police station, he claims that he made the statement only after police questioning continued despite his refusal to waive his Miranda rights. The state argues that neither claim was distinctly raised at trial and should not now be reviewed.

We need not decide whether the defendant’s pretrial statements were improperly obtained and therefore improperly admitted into evidence, nor need we decide if the defendant’s claims were properly preserved for appeal. Even the erroneous admission of a defendant’s pretrial statements does not automatically require reversal if the defendant testifies to the same matter without compulsion. State v. Hoeplinger, 206 Conn. 278, 289-90, 537 A.2d 1010 (1988). The state bears the burden of showing that the defendant was not induced to take the witness stand in order to overcome the impact of any illegally obtained confessions. Id., 291-92. Subsequent confessions, however, will not be presumed to have been coerced merely because the defendant knew that “the cat” was already “out of the bag.” Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).

The defendant acknowledged several times during his testimony at trial that the cocaine found in the search of the apartment was his. Because these admissions were consistent with his pretrial statements, the defendant cannot claim that he was forced to testify in order to refute his prior confessions. See id., 316-17. The possibility that he would have refused to testify if his pretrial statements had not been admitted during the state’s presentation “is too remote to warrant serious consideration in view of [this] general consistency . . . .” State v. Marino, 190 Conn. 639, 657, 462 A.2d 1021 (1983).

The record reveals that the defendant’s trial testimony was the result of a wholly voluntary tactical decision. His decision to take the stand was made with full awareness that his prior statements, even if illegally obtained, would be available for cross-examination as to his credibility if there were inconsistencies. See id., 656. Taking the stand to admit possession but to deny trafficking in narcotics was probably a significant factor in his being acquitted of the charge of possession with intent to sell. See id.

The admissible evidence of narcotics seized in the defendant’s apartment and his incriminating admissions at trial “constitute the ‘overwhelming evidence’ necessary to render harmless many errors at trial . . . [including] any reasonable possibility that the jurors were influenced by the improper admission of his [prior] statements . . . .” State v. Shifflett, 199 Conn. 718, 752-53, 508 A.2d 748 (1986). We hold, therefore, that the admission into evidence of the fruit of the alleged police interrogations, even if illegal, could not possibly have affected the jury’s judgment in this case.

There is no error.

In this opinion the other judges concurred.


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    Sharon Chouinard v. Massoud A. Marjani
    (7729)
    Dupont, C. J., Spallone and Barnett, Js.

      Argued November 14, 1989
    decision released May 29, 1990

      Terence D. Mariani, for the appellant (plaintiff).

      Joseph A. Mengacci, for the appellee (defendant).
   Spallone, J.

The plaintiff brought this action alleging negligence and intentional assault against the defendant, her doctor, for damages resulting from surgery performed on her without consent. The plaintiff appeals from the trial court’s judgment rendered upon a directed verdict for the defendant on the negligence claim, and upon a jury verdict for the defendant on the assault claim. She asserts that the trial court erred (1) in excluding from evidence any reference to allegedly false signatures appearing on a surgical consent form, (2) in refusing to grant motions for a continuance, (3) in admitting certain deposition testimony into evidence, and (4) in directing a verdict for the defendant on the plaintiff’s claim of negligence. We find error.

The following facts are uncontested. The defendant, an oncology surgeon, treated the plaintiff from 1973 to 1981 for recurring benign breast cysts, performing surgical procedures on the plaintiff in 1974 and 1976 to excise masses in both her breasts. In February, 1981, the defendant again found a mass in the plaintiffs left breast and a smaller mass in the right breast. On February 17,1981, during an office visit, the parties agreed that surgical excision of the mass in the left breast was warranted. On February 26, the defendant performed surgery on both breasts.

The plaintiff denies that she gave her consent to the surgical intrusion on her right breast. The defendant claims that the parties discussed the possible need for surgery on both breasts (bilateral surgery) and agreed that the decision would be left to the defendant’s medical judgment. The defendant testified that the plaintiff, while in the hospital awaiting surgery, was informed of, and gave oral consent to, the bilateral surgery.

I

Before trial, the plaintiff subpoenaed the hospital records pertaining to her treatment. Included was a document entitled “Permission for Operation or Special Procedure,” a consent form containing a description of the proposed surgery. The defendant admits to making this entry in his own hand, to signing his name on the line labeled “Consent Obtained By” and to dating the form on February 17, 1981.

The document also contains handwritten entries for the name of the patient and the attending physician and bears what purport to be the signatures of the patient and a witness to the signing, Betty Williams, who was the office nurse employed by the defendant at that time. The plaintiff and the nurse both denied, out of the hearing of the jury, that the signatures were their own.

The defendant filed a motion in limine seeking to bar the plaintiff or her lawyer “from making any reference to an alleged falsification of her signature [on the form] . . . absent any claims or proof that the defendant signed her name.” The court granted the motion, finding that because the defendant was relying on oral consent, the document was irrelevant and prejudicial to the defendant. The court redacted the document to remove all material not admittedly entered by the defendant and admitted into evidence the form bearing only the description of the procedure and the defendant’s dated signature.

A

We agree with the plaintiff that the trial court, in granting the defendant’s motion in limine, improperly excluded relevant evidence. While there is no precise test for relevancy, evidence is admissible if it tends to establish a fact in issue; Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987); and if its probative value is not far outweighed by its prejudicial effect. State v. Fritz, 204 Conn. 156, 169, 527 A.2d 1157 (1987). Mindful of the difficulty in balancing probative value against prejudicial effect; State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980); appellate courts have recognized that the trial court has broad discretion in determining the admissibility of evidence, and its rulings will not be disturbed absent a showing of a clear abuse of discretion. State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); State v. Speers, 17 Conn. App. 587, 601-602, 554 A.2d 769 (1989).

The only issue at trial was whether the plaintiff gave her consent to bilateral surgery, an issue tightly bound to the credibility of the parties, particularly as the defendant asserted that the plaintiff orally consented. In his signed interrogatories, the defendant stated that on February 17, 1981, he had obtained the plaintiff’s written consent to surgery on both breasts. Such a consent form was filed in the hospital records, admittedly dated and signed by the defendant. If genuine, the form would have been conclusive evidence supporting the defense that the plaintiff had agreed to the surgical procedures on both breasts. At trial, however, the defendant repudiated his earlier assertions, denied obtaining the plaintiff’s written consent, agreed with her that on February 17, 1981, surgery was planned on the left breast only, and claimed that the plaintiff subsequently gave her oral consent to bilateral surgery. We find that the allegedly forged form was relevant to the jury’s assessment of the inconsistencies in the defendant’s accounts.

The defendant objected to the admission into evidence of the entire form with its alleged forgeries on the ground that its prejudicial effect outweighed its probative value. Evidence that is inadmissibly prejudicial is not to be confused with evidence that is merely damaging. State v. Waterman, 7 Conn. App. 326, 350, 509 A.2d 518, cert. denied, 200 Conn. 809, 512 A.2d 231 (1986). All evidence adverse to a party is, to some . degree, prejudicial. To be excluded, the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted. Id. At the hearing on the motion in limine, the burden was on the defendant to demonstrate that the character of the prejudice entitled him to prevail on his motion to exclude the evidence. State v. Binet, 192 Conn. 618, 624, 473 A.2d 1200 (1984). We conclude that the defendant failed to sustain his burden of showing that the prejudice likely to result from admitting this relevant and material document outweighed its probative value.

B

The defendant argues that even if the document were relevant and not unduly prejudicial, the form was properly barred from introduction into evidence because the plaintiff offered no foundation linking the alleged forgeries to the defendant. We disagree.

The record here reflects that the defendant had a legal duty to the plaintiff, defined by hospital rules and health department regulations, to file an executed consent form prior to surgery. The office nurse, Betty Williams, testified that the blank forms were kept at all times in the possession and control of the defendant until the time she would hand deliver each form to the hospital. She denies delivering the form in question. A hospital nurse testified that a completed form was present in the plaintiffs hospital records before surgery and that access to these records is strictly controlled. The admitting physician, here the defendant, is one of the few persons with access. The authenticity of the document for the remainder of its journey to the courtroom, still bearing what the defendant identified as his signature, was verified by the hospital record keeper’s certificate and the chain of custody was not contested. On these facts, we conclude that it was error for the court to fail to find sufficient evidence linking the defendant to the consent form as a foundation for admitting the document in its entirety.

The plaintiff, however, is entitled to relief from an erroneous ruling on the admissibility of evidence only if the error is also harmful. McCahill v. Town & Country Associates Ltd., 185 Conn. 37, 40, 440 A.2d 801 (1981). We find that the plaintiff has met her burden of demonstrating that the erroneous ruling was likely to affect the result of the trial. See Main v. Main, 17 Conn. App. 670, 673, 555 A.2d 997, cert. denied, 211 Conn. 809, 559 A.2d 1142 (1989). The court’s evidentiary ruling prevented the jury from considering relevant and material evidence affecting the ultimate issue as to whether the defendant had the plaintiff’s oral consent for the bilateral surgery. The plaintiff was not permitted to introduce the form in its entirety or to offer evidence that her signature and that of the witness were forged.

The jury could have logically inferred that the defendant had possession of the document, which he admits to executing, that he had the opportunity and motive to sign the names of the plaintiff and the witness nurse, and that he had the opportunity and motive after the surgery to add the consent form to the hospital records. The jury could have drawn the further logical inference that the defendant created the spurious form in an abandoned attempt to provide evidence of written consent in order to conceal the fact that he performed surgery on the plaintiff without her consent, written or oral. See Wallingford v. Neal, 108 Conn. 152, 155,142 A. 805 (1928) (adverse inference may be drawn from guilty conduct). The harm to the plaintiff was patent, and the jury verdict for the defendant on the plaintiff s claim of assault cannot stand.

II

We next consider the plaintiffs claim that the trial court erred in directing a defendant’s verdict on the count of negligence. She contends that the court mischaracterized her count of negligent assault as a count of negligent failure to obtain her consent, thereby misapplying the law to grant a directed verdict. We agree.

It is not clear from the record whether the court treated the plaintiff’s negligence count as an allegation that the defendant negligently failed to get her informed consent or as an allegation that the defendant negligently failed to obtain any consent, oral or written. It is clear that the court directed a verdict for the defendant because the plaintiff (1) failed to produce expert medical testimony that a reasonably competent doctor would have obtained the plaintiffs consent, and (2) failed to establish that the defendant’s negligence proximately caused her injuries because the plaintiff admitted that she would have agreed to surgery on her right breast had the defendant sought her consent. See, e.g., Logan v. Greenwich Hospital Assn., 191 Conn. 282, 288-90, 465 A.2d 294 (1983); Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 248-50, 522 A.2d 829 (1987).

Although the plaintiff’s pleadings could have been more artfully drawn, she does not allege that the defendant owed her a duty dictated by standards in the medical community to obtain her consent before surgery or to explain all attendant risks of bilateral surgery. She alleges, rather, that the defendant owed her a duty not to assault her. Her allegation that the defendant “remembered that Sharon Chouinard had only consented to surgery on her left breast and knowingly exceeded her consent by operating on the right breast as well as on the left breast” was properly treated as a claim of intentional assault. Her allegation that the defendant “forgot that the plaintiff had only consented to surgery on her left breast and operated on both breasts,” read together with her previous allegation, must be treated as a claim of negligent assault. In other words, if the jury were to accept the plaintiff’s claim that she never consented to surgery on her right breast, orally or in writing, it must find that the defendant assaulted the plaintiff. The jury could then find either that the defendant intentionally assaulted the plaintiff, if he acted knowing that he had no consent, or that he negligently assaulted her, if he forgot that he had no consent.

Our courts have long adhered to the principle that the theory of intentional assault or battery is a basis for recovery against a physician who performs surgery without consent. See Schmeltz v. Tracy, 119 Conn. 492, 495-96, 177 A.2d 520 (1985). We also have recognized a cause of action for negligent assault; see Russo v. Porga, 141 Conn. 706, 708-709, 109 A.2d 585 (1954); applying this theory of liability to unconsented-to touching by medical personnel. See Krause v. Bridgeport Hospital, 169 Conn. 1, 8-9, 362 A.2d 802 (1975). “Arguably, an intentional or negligent extension of physical contact beyond that consented to . . . which results in injury may present an actionable battery . . . .” (Emphasis added.) Id., 9.

The plaintiffs complaint alleges both intentional and negligent assault. Community medical standards of care are inapplicable, and whether the plaintiff would have consented to the assault if asked is irrelevant. See Schmeltz v. Tracy, supra. We conclude, therefore, that the court erred in directing a verdict for the defendant because the plaintiff failed to offer medical expert testimony or because she admitted that she would have consented to the surgery on her right breast.

There is no merit to the defendant’s assertion that the plaintiff failed to demonstrate that the directed verdict, if error, was harmful and prejudicial. See Berndston v. Annino, 177 Conn. 41, 45, 411 A.2d 36 (1979). The defendant argues that the evidence applicable to negligent assault was already before the jury on the plaintiff’s count of intentional assault, upon which it returned a defendant’s verdict, a verdict we hold above to be fatally tainted by the wrongful exclusion of relevant evidence.

The defendant’s argument ignores the distinction between intentional and negligent torts. Even if no evidentiary error had clouded the reliability of the verdict on the count of intentional assault, the jury could have logically and consistently rejected a claim of intentional assault yet found that the defendant committed negligent assault. We conclude that a new trial on both counts is necessary. See Logan v. Greenwich Hospital Assn., supra, 308.

Ill

Because the plaintiff will have a new trial, we need not review her claim that the court wrongfully denied her motions for a continuance. We will, however, review her claim that the court erred in admitting into evidence deposition testimony, as this issue is likely to recur at retrial. The gist of the plaintiffs claim is that the deposition testimony of a surgical resident, stating that he had discussed with the plaintiff her upcoming bilateral surgery, was not competent and admissible evidence because the resident could not remember the conversation or the patient. There is no merit to this claim.

Competency of a witness is a threshold matter particularly within the discretion of the trial court to decide and the decision will not be overturned on appeal absent proof of a clear abuse of discretion. State v. Valeriano, 191 Conn. 659, 665, 468 A.2d 936 (1983). The record reflects that the resident’s testimony was not based on speculation or guess, but upon his recollection of events, refreshed by his own notes entered on the plaintiff’s hospital chart, and upon his general familiarity with the defendant’s procedures which directed him to prepare the defendant’s patients for surgery. Once a witness’ competency is established, questions relating to any supposed lack of knowledge of the fact at issue go to the weight rather than the admissibility of the evidence. State v. Baker, 182 Conn. 52, 61, 437 A.2d 843 (1980). The court did not abuse its discretion in admitting the resident’s deposition testimony.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.


text:
    Gene DeMatteo v. Norma J. DeMatteo
    (7671)
    Dupont, C. J., Spallone and Nokcott, Js.
    Argued March 7
    decision released May 29, 1990

      Elizabeth A. Gallagher, with whom were Cynthia C. Bott and, on the brief, William F. Gallagher and Gary I. Cohen, for the appellant-appellee (defendant).

      Daniel J. Mahaney, for the appellee-appellant (plaintiff).
   Norcott, J.

The defendant appeals and the plaintiff cross appeals from the trial court’s postjudgment dissolution order granting the plaintiffs motion to compel the defendant to endorse two Internal Revenue Service (IRS) checks for the tax years 1971 and 1972. The defendant claims that the trial court erred (1) in finding that its order compelling the defendant to endorse the two IRS checks fell within the scope of the parties’ separation agreement and of the court’s dissolution judgment, (2) in hearing the motion to compel without taking into account the plaintiff’s response to the defendant’s request for disclosure and production, (3) in denying the defendant’s motion for recusal and motion for mistrial based on the trial court’s misconduct, and (4) in failing to grant the defendant’s request for an evidentiary hearing on her motion for recusal.

The plaintiff cross appeals from the trial court’s denial of his oral request for interest on the money that was the subject of his motion to compel.

I

The Appeal

A

On July 2, 1981, the parties entered into a separation agreement, which the trial court adopted and incorporated in its judgment and order. Pursuant to the agreement, the plaintiff was to indemnify and hold the defendant harmless “from any liabilities for taxes, assessment, penalties or interest which may result from any joint federal or state income tax returns . . . .” Further, the plaintiff agreed to assume sole responsibility to pay any amount, together with any interest and penalties, in the event of a deficiency assessment by the IRS. The agreement was silent as to tax refunds or overassessments and, accordingly, does not address the parties’ respective property rights in such funds. The parties filed joint tax returns for the tax years that are the subject of this appeal.

Prior to signing the separation agreement, the parties owed a substantial tax deficiency to the IRS. The plaintiff’s financial affidavit dated April 28, 1981, revealed contingent liabilities to the IRS of over one million dollars and noted that the plaintiff was under IRS examination. The plaintiff had satisfied this liability by virtue of a promissory note, payable to the IRS, executed by both parties and by additional tax deficiency payments that he made to the IRS during 1985 and 1986.

In August, 1987, the plaintiff received the first of the two disputed IRS checks, which are the subject of this appeal. One check was made payable to both parties, in the amount of $7688.53 for the 1972 tax year. The second check in the amount of $89,414.07 for the 1971 tax year was received in July, 1988, also made payable to both. The defendant refused to endorse the checks over to the plaintiff. After an unsuccessful attempt to have the IRS reissue the first check in his name only, the plaintiff moved the trial court to compel the defendant’s endorsement of both checks to him. After an evidentiary hearing, the trial court granted the plaintiff’s motion to compel.

As a part of its decision on this motion, the trial court found that the checks represented a “return of [IRS] overpayments for the tax years of 1971 and 1972” and that “none of the money was contributed by the defendant but solely by the plaintiff. ... He paid [the tax deficiency] without prejudice and he is entitled to the returned funds.” These findings were in response to the two principal issues that faced the court: (1) what the two IRS checks represented; and (2) what the intention of the parties was with respect to any money returned by the IRS. The first determination was clearly a factual one, which the court made upon hearing testimony and reviewing the evidence before it. Because the separation agreement did not specifically address the matter of any rebates from the IRS, the trial court, in interpreting the agreement, had to determine the intent of the parties. First Hartford Realty Corporation v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980); Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 123, 492 A.2d 536 (1985). The trial court’s construction of an agreement is an issue of fact that we review, as with the other findings of fact, under the very limited “clearly erroneous” standard. Albrecht v. Albrecht, 19 Conn. App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); Buchetto v. Haggquist, 17 Conn. App. 544, 548, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989); Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985).

From our review of the record, we conclude that the trial court’s findings were not clearly erroneous. As the court noted in its memorandum of decision on the plaintiff’s motion to compel, the separation agreement clearly provides that the plaintiff alone satisfy any tax liabilities. Indeed, tax deficiencies for the joint tax years 1971 through 1980 were paid, subsequent to the divorce, in an amount over $1,800,000, and we find that the trial court did not err in concluding that the plaintiff alone satisfied those debts.

The record reveals that the tax situation of the parties was, at best, complicated, and that the plaintiffs financial affidavit filed prior to the July 2, 1981 judgment showed a detailed contingent tax liability, while the defendant’s affidavit revealed none. This fact strongly suggests that, as of the date of the dissolution, while the parties as joint tax filers knew of the tax deficiency situation, the defendant wanted no part of the payments of the tax liability. This position is consistent with the clear language of the separation agreement. Further, aside from the fact that the IRS had determined that there was an overpayment for 1971, neither party referred to any joint “refund,” in the classical sense, in their subsequent financial affidavits. This also is not surprising since the overall tax situation at the time of the divorce suggested only a very substantial tax liability that was to be, by agreement, the plaintiff’s sole responsibility.

From this evidence, the trial court concluded (1) that it was the intent of the parties that the plaintiff be solely responsible for the tax deficiencies for 1971 and 1972, (2) that the plaintiff maintained that obligation by paying, subsequent to the divorce, over $1,800,000 to the IRS from his own funds, (3) that the two IRS checks constituted, not a refund, but a return of an overpayment of tax deficiencies, and (4) that, thus, the checks belonged to the plaintiff. We cannot conclude under the applicable standard of review that these findings were clearly erroneous.

Nor do we find persuasive the defendant’s argument that the evidence before the trial court was insufficient for it to conclude as it did. The essence of this argument is that because the court received no evidence as to whether the defendant contributed to the payment of the tax deficiencies for the tax years 1971 and 1972, it erred in concluding that she, in fact, had not done so. The response to the defendant’s contention is that nowhere in her case-in-chief did she attempt to introduce any evidence suggesting that she had contributed to the payment of the tax deficiencies, even though the record reveals that she had a full opportunity to testify for herself or to call tax experts and other witnesses to testify on her behalf. Furthermore, it is unlikely that any such evidence or testimony would have persuaded the court in light of the separation agreement that specifically excused her and held her harmless from making tax deficiency payments for the tax years in question.

B

As a corollary to her first claim of error, the defendant next argues that she was precluded from submitting any evidence of her contributions to the payment toward tax liabilities for 1971 and 1972 because the trial court denied her motion for compliance with her discovery requests pursuant to Practice Book § 218. The defendant claims that the court specifically erred in “refusing to hear and then denying” her motion for compliance before it ruled on the plaintiff’s motion to compel. This argument is without merit.

We first note that, on November 21 and December 12, 1988, the trial court held a combined evidentiary hearing on the plaintiff’s motion to compel endorsement and on the defendant’s motion to compel compliance with her discovery requests. The defendant’s motion was in response to the plaintiff’s production and disclosure of information. The plaintiff had turned over his entire file, but the defendant deemed this to be inadequate and requested that he comply by producing additional information.

On the first day of the combined evidentiary hearing, the court denied the defendant’s request for further discovery. Thus, it is an inaccurate portrayal of the record to suggest that the trial court either failed to grant the defendant an evidentiary hearing on her motion or determined the result of the plaintiff’s motion before resolving the defendant’s motion for additional discovery.

Secondly, we do not find merit in the defendant’s contention that she was unable to respond adequately to the plaintiff’s motion to compel without the information sought under her motion for discovery. Pursuant to Practice Book § 218, “[discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure.” “ ‘The granting or denial of a discovery request rests in the sound discretion of the court. Kiessling v. Kiessling, 134 Conn. 564, 568, 59 A.2d 532 (1948).’ Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983). That discretion, however, is limited, and it is an abuse of discretion to deny the disclosure of information which would be of assistance in the prosecution or defense of the actions. Practice Book § 218; Standard Tallow Corporation v. Jowdy, supra, 58-59.” Knights of Columbus Federal Credit Union v. Salisbury, 3 Conn. App. 201, 210, 486 A.2d 649 (1985).

In the present case, the defendant contends that the trial court denied her the discovery of crucial materials needed to counter the plaintiff’s motion to compel. Our review of the record does not support her claim.

At the combined hearing on both parties’ motions, the trial court had before it evidence (1) that the parties were joint taxpayers for the tax years subject to this appeal, (2) that the plaintiff’s counsel provided to the defendant’s counsel all of the documentation in his file, but that the defendant remained dissatisfied, and (3) that prior to the discovery request the defendant’s counsel had provided the IRS with a power of attorney for the tax years 1971-80 on behalf of the defendant. From the evidence produced at the hearing, including the testimony of the plaintiff’s tax expert, the trial court, as finder of fact, concluded that the defendant’s request for discovery was without merit and accordingly denied it. We cannot say from our review that the court, in so doing, abused its discretion.

C

The defendant next claims that the trial court erred in denying her motion to recuse itself and in refusing to allow her an evidentiary hearing on this motion.

On November 21, 1988, prior to the court’s receipt of evidence on the motions to compel, the defendant’s counsel orally requested that the trial court, Pickett, J., recuse itself from further matters regarding the case. In support of this motion, the defendant cited three incidents of improper ex parte judicial action: (1) an alleged prejudgment ex parte action by which the court, in chambers, entered an order restraining the defendant from the use of her own assets; (2) another alleged prejudgment ex parte action by which the court accepted a report in chambers, from “an alleged investigator,” concerning the activities of the defendant; and (3) an alleged ex parte conversation between the court and another judge, Kline, J., concerning a ruling that the latter court made concerning postjudgment child support. The defendant then raised two additional grounds of inappropriate judicial conduct: (1) the trial court’s comments about the professional conduct of the defendant’s trial counsel allegedly made “in other proceedings in connection with this matter”; and (2) the “appearance of impropriety” that resulted from the fact that, in an unrelated matter that took place subsequent to the judgment in this case, the plaintiff’s counsel represented Judge Pickett’s nephew. Judge Pickett denied any knowledge of the defendant’s allegations concerning the case involving his nephew and the conversation with Judge Kline and denied the defendant’s motion, ruling that the prejudgment ex parte actions of which the defendant complained occurred “prior to judgment in this case and would have been merged.”

Accusations of judicial bias or misconduct implicate the basic concepts of a fair trial. Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). The “appearance as well as the actuality of impartiality on the part of the trier” will suffice to constitute proof of bias sufficient to warrant disqualification. Id., 170. The standard that we employ on appellate review is whether a reasonable person who is aware of the circumstances surrounding the judicial proceeding would question the judge’s impartiality. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 440-41, 509 A.2d 51 (1986). Applying this standard, we find no error in the trial court’s refusal to recuse itself in this case.

The defendant’s allegations of judicial impropriety involve speculation, second-guessing and allusion to conduct, including conduct involving another court, Kline, J., which she neither objected to nor appealed. Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse nor are they sufficient to warrant an evidentiary hearing on the same. LaBow v. LaBow, 13 Conn. App. 330, 340, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); Szypula v. Szypula, 2 Conn. App. 650, 656, 482 A.2d 85 (1984).

Furthermore, the first two ex parte actions of which the defendant complains occurred before the July, 1981 judgment. At no time during that proceeding did the defendant ever complain of the actions or seek disqualification of the judge. It was not until this issue relating to the disputed IRS checks arose in 1988 that the defendant chose to raise this claim of improper judicial conduct. Such action on the defendant’s part can be construed as the functional equivalent of waiving the claim of error and consenting to having this judge preside over the case. Logical Communications, Inc. v. Morgan Management Corporation, 4 Conn. App. 669, 670, 496 A.2d 239 (1985); see also Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985). “A litigant must raise the question of disqualification in a timely and appropriate manner; Pavel v. Pavel, 4 Conn. App. 575, 576 n.2, 495 A.2d 1113 (1985); Jazlowiecki v. Cyr, 4 Conn. App. 76, 78, 492 A.2d 516 (1985); Szypula v. Szypula, [supra, 654]; or the claim will be deemed to have been waived. Verissimo v. Verissimo, 3 Conn. App. 222, 224, 486 A.2d 1134 (1985).” Logical Communications, Inc. v. Morgan Management Corporation, supra, 670.

In this case, we cannot say that, having waited seven years after the actions claimed to be improper had occurred, the defendant objected in a “timely and appropriate fashion.” Accordingly, the trial court did not err in denying her motion to recuse.

II

The Cross Appeal

On December 12,1988, the trial court heard the continuation of the plaintiff’s motion to compel. During the course of that hearing, the plaintiff made an oral request that the court award interest on the two checks representing the IRS overassessments. While it is clear that the plaintiff’s original motion to compel did not include a request for interest, it is equally clear that the trial court regarded the plaintiff’s oral request as an amendment to that motion and addressed the issue in its memorandum of decision on the motion to compel.

In its memorandum of decision, the trial court addressed the plaintiff’s request as follows: “It is apparent that the unjustified refusal of the defendant to endorse the checks has deprived the plaintiff of the use of the money. Had the separation agreement provided for interest, the court would have awarded it from August 17,1988, at the rate of 10 percent. There being no provision for interest, the court declines to award interest but rather leaves the plaintiff to such civil action as he may have on this claim.” It is apparent from this decision that the court declined to award interest because it felt that it had no authority to do so. On cross appeal, the plaintiff claims that the trial court erred because no statutory authority prohibits the award of interest in a domestic relations case where the separation agreement is silent on the subject, and to deny interest constituted an abuse of discretion.

It is axiomatic that a trial court considering a domestic relations case acts as a court of equity that is empowered to fashion appropriate relief under its broad equitable powers. Febbroriello v. Febbroriello, 21 Conn. App. 200, 208, 572 A.2d 1032 (1990); LaBow v. LaBow, supra, 351; see also Darak v. Darak, 210 Conn. 462, 478, 556 A.2d 145 (1989). “There is no statutory prohibition against awarding interest on a judgment in domestic relations cases. LaBow v. LaBow [supra, 353].” Kronholm v. Kronholm, 16 Conn. App. 124, 133, 547 A.2d 61 (1988). The absence of reference to interest in a separation agreement also does not undermine the authority of the court to make an award of interest. See Niles v. Niles, 15 Conn. App. 718, 727, 546 A.2d 329 (1988); LaBow v. LaBow, supra.

The trial court here found that the “unjustified refusal of the defendant to endorse the checks” would have been the justification for the award of interest had the court believed it had the authority to do so. The question of whether interest is a proper element of recovery ordinarily rests upon whether the detention of money is wrongful. Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971). We find that, as a matter of law, the trial court erred in concluding that it had no authority by which it could award interest, and, having found that the plaintiff was unjustifiably denied the use of his money, it should have awarded interest accordingly. Cf. LaBow v. LaBow, supra (award of interest appropriate “[bjecause there is no statutory prohibition against awarding interest on a judgment in domestic relations cases, and because the courts may fashion remedies that are appropriate and equitable, and because the court found that the retention of the sums owed was wrongful”).

There is no error on the appeal, there is error on the cross appeal and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Paragraph 7.3 of the Separation Agreement provides: “The Husband agrees to indemnify and hold the Wife harmless from any liabilities for taxes, assessments, penalties or interest which may result from any joint federal or state income tax returns signed or to be signed by the Husband and the Wife, and the Husband shall pay for the defense against any such claims.” Paragraph 7.4 provides that the plaintiff-husband alone pay for any “deficiency assessments in connection with any of the aforesaid joint returns.”

       The defendant speculates that the representation of Judge Pickett’s nephew may have been done as a favor to Judge Pickett. The defendant admitted, however, that she had no evidence to support this assertion.

       Further, Judge Pickett correctly pointed out that even if this conversation had taken place, the defendant’s proper course would have been to raise this claim in 1982 to Judge Kline, the judge whose ruling she wanted to challenge.


text:
    M. Joseph Kelly et al. v. Zoning Board of Appeals of the Town of Hamden et al.
    (8040)
    Dupont, C. J., Foti and Lavery, Js.
    Argued January 9
    decision released May 29, 1990

      Carl J. Amento, with whom was Robert J. Piscitelli, for the appellants (plaintiffs).

      Steven Rolnick, assistant town attorney, for the appellee (named defendant).

      Thomas O. Terrace, for the appellees (defendant John Capone et al.).
   Lavery, J.

This is an appeal from the judgment of the trial court dismissing the plaintiffs’ appeal from a decision of the Hamden zoning board of appeals (board) granting a petition for a variance to the defendants John Capone and Capone Development Corporation (Capone) to build multi-family dwellings on a parcel owned by the defendants on Evergreen Avenue in Hamden. The plaintiffs are owners of property abutting the subject parcel. The dispositive issue in this appeal is whether there was evidence before the board that the application of the existing zoning regulations to the subject parcel would impose a legally cognizable hardship on the owner’s use of the land. We find error in the trial court’s conclusion that there was a hardship requiring a variance.

The essential facts pertinent to this appeal are as follows. On April 24,1987, the defendant Capone applied to the board for a variance to build multi-unit dwellings consisting of thirty-six two bedroom condominium units in seven two story buildings on 4.1 acres off Evergreen Avenue in Hamden. The condominiums were intended to be exclusively for the elderly and the handicapped and would have had access only to Evergreen Avenue. The site is located in an R4 zone, which permits multi-family dwellings provided that the dwellings are located on and have vehicle access to Whitney Avenue, Dixwell Avenue or Old Dixwell Avenue. All of those streets are major thoroughfares in the town of Hamden. The property is located on Evergreen Avenue and does not have vehicle access to any other street. The R-4 zone is a one-family dwelling zone except for property located on one of the three listed streets.

In February, 1987, the board denied a prior variance application to build fifty-four units of senior citizen housing on the site. Capone has not claimed that there has been any change of circumstance since the prior application. The hardship set forth in the application that is the subject of this appeal was the pressing need for housing for the elderly and the handicapped, and that the proposed site has unique physical and topographical features due to its historic use as a site for agricultural experiments. The application also claims that due to the severe slope of the land it is impractical to subdivide the property into individual lots.

On June 18, 1987, a hearing was held before the board. At the hearing, Capone presented the testimony of an engineering expert, George Cotter. Cotter testified that it was possible to build up to twelve single-family residences either by front lots and rear lots or by a single roadway as was. proposed for the condominium project. Capone’s attorney, Thomas O. Terrace, testified: “We are reducing the scope of the project from eleven buildings as originally proposed to seven buildings. In this effect, it would be fewer buddings than that which is allowed under the regular single-family home subdivision where, should my client submit the application for a subdivision, [he would] be allowed as a right to put ten to twelve single family homes in the area.”

Capone presented testimony on the need for elderly housing, the advantages of multi-family development versus single-family development of the subject parcel and the compatibility of the multi-family dwellings with the surrounding neighborhood. The plaintiffs, neighbors opposing the development, stated that the only hardship was economic; that, under the existing regulations, Capone could develop the property by constructing single-family homes just as the plaintiffs had developed their property; that Evergreen Avenue was a narrow, winding street with blind curves and steep slopes; that the street was difficult to negotiate in the winter; that existing surface, water and sewage problems would be aggravated by the building of the multifamily dwellings; and that the site was inappropriate for elderly housing.

The Hamden town planner filed a report with the board, opposing the granting of the variance. At the end of the hearing, the board granted the variance stating that “it was the minimum variance necessary to allow reasonable use of the land and its use would not impair the essential character of the neighborhood.”

A variance is an authorization obtained from the zoning board of appeals to use property in a manner otherwise forbidden by the zoning regulations. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 372, 537 A.2d 1030 (1988). For a variance to be granted under General Statutes § 8-6 (3), two conditions must be fulfilled: (1) the variance must be shown not to affect substantially the comprehensive zoning plan; and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978). The zoning board’s action must be reasonably supported by evidence in the record. Smith v. Zoning Board of Appeals, supra, 326; Aitken v. Zoning Board of Appeals, 18 Conn. App. 195, 204, 557 A.2d 1265 (1989). The hardship must be different in kind from that generally affecting properties in the same zoning district. Smith v. Zoning Board of Appeals, supra, 324. It is well settled that the granting of a variance must be reserved for unusual or exceptional circumstances. Proof of hardship is a condition precedent to granting a variance. Point O’ Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 365, 423 A.2d 90 (1979). The hardship must “ ‘arise from circumstances or conditions beyond the control of the property owner.’ ” Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39, 438 A.2d 1186 (1982).

Since the reasons stated upon the record were not sufficient to meet the two-pronged conditions set forth above, we must search the record to find some basis for the granting of the variance. Grillo v. Zoning Board of Appeals, supra, 369. Nowhere does the record show that Capone cannot use the parcel of land in a manner consistent with the zoning regulations and in the same manner as the other properties on Evergreen Avenue. Although in the variance application Capone contends that it is impractical to subdivide the property due to the topography, the record shows no evidence to substantiate this claim. Capone’s attorney claimed that as a matter of right the applicant could put in ten to twelve single-family homes on the site. Capone’s engineer testified “there is a potential of up to twelve houses if developed on the site.” Capone’s traffic engineer, in comparing the proposed project to a subdivision, said “If you build single-family homes on the property it will be exactly the same traffic. The town planner said “[t]he site may be used for single-family dwellings on lots of 10,000 square feet each. The maximum density allowed by the regulations is somewhere betwesen nine and fifteen units, depending on whether the site was developed with rear lots or by a road . . . .”

There was no evidence that a single-family subdivision could not be developed. Capone presented no evidence that the limitation to single-family homes on that parcel would be confiscatory or would effectively destroy the economic utility of the parcel. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151-52, 365 A.2d 387 (1976); Culinary Institute of America, Inc. v. Zoning Board of Appeals, 143 Conn. 257, 261, 121 A.2d 637 (1955). The topography, a steep slope, is shared by every parcel along a long ridge on the east side of Evergreen Avenue. There was no evidence that the application of the existing zoning regulation affected this particular parcel in a manner distinct from neighboring properties. “[T]he hardship must be different in kind from that generally affecting properties in the same zoning district . . . .” Smith v. Zoning Board of Appeals, supra, 327.

The burden is on the applicant to prove hardship. Carini v. Zoning Board of Appeals, 164 Conn. 169, 172, 319 A.2d 390 (1972), cert. denied, 414 U.S. 831, 94 S. Ct. 64, 38 L. Ed. 2d 66 (1973). Our examination of the record reveals no hardship.

There is error, the judgment is set aside and the case is remanded with direction to render judgment sustaining the appeal.

In this opinion the other judges concurred.

       Capone’s application contained the following language concerning hardship:
      “The unique hardship involves the special use proposed for this parcel. The only reference to ‘elderly’ housing in the regulations consists of the definition of elderly parking. No reference is made to the location, design, and construction of this type of dwelling unit. All governmental studies demonstrate the pressing need for elderly housing.
      “Although town consultants expressed the need for smaller housing units in their studies, it is clear that their intent was not adequately expressed due to the fact that no private elderly construction has occurred.
      “Additionally, the proposed site has unique physical and topographical features due to its historical use as an agricultural experimental site. The parcel also slopes downward from Evergreen Ave. easterly to the area of Murlyn St.; thus, making it impractical to subdivide the property into individual lots and creating an ideal candidate for a planned residential community.
      “The proposal is designed to promote the general welfare of the community because it serves the public good and it is not detrimental to the neighborhood. Finally, the fact that the proposed condominiums will be restricted and limited to elderly occupancy constitues a special reason sufficient to authorize the grant of a variance.”