author: DUPONT, C. J.

text:
    WALTER R. CREPEAU ET AL. v. HOLMER P. GRONAGER ET AL.
    (13027)
    Dupont, C. J., and Heixnan and Spear, Js.

      Argued December 8, 1995
    officially released May 7, 1996

      Holmer P. Gronager, pro se, the appellant-appellee (named defendant).

      Peter M. Nolin, with whom, were James M. Weis-bard, and on the brief, AnnM. Siczewicz, for the appel-lees-appellants (plaintiffs).

      Edward V. O’Hanlan, for the appellee-appellant (defendant Katherine L. Gotch).
   DUPONT, C. J.

The defendant Holmer P. Gronager appeals from the trial court’s judgment, which was based on factual findings made by an attorney trial referee. The issue raised by Gronager is whether the trial court should have based its judgment on the attorney trial referee’s finding that Gronager fraudulently conveyed property to the defendant Katherine Gotch in order to hinder the plaintiffs’ ability to collect a debt due them by Gronager. The plaintiffs cross appealed from the trial court’s refusal to render judgment against Gotch for damages.

The plaintiffs’ four count complaint against the defendants alleged that Gronager’s conveyance of his interest in a condominium to Gotch hindered the plaintiffs’ ability to collect an arbitration award in favor of the plaintiffs against Gronager, that the defendants, on two occasions, engaged in deceptive and unfair trade practices in violation of General Statutes § 42-110a et. seq., and that the defendants fraudulently conveyed certain stock.

The attorney trial referee found the following facts. From 1986 to 1989, the plaintiffs made certain investments with Gateway Securities, Inc. (Gateway), a corporation wholly owned by Gronager. Gotch worked at Gateway from 1983 until August, 1990, when Gateway ceased operations. In 1989, a National Association of Securities Dealers (NASD) arbitration proceeding was conducted involving the plaintiffs, Gateway, Gronager and David Weston, a broker at Gateway, in which the plaintiffs alleged improprieties with their account. Gotch was not a party to the arbitration proceeding. On January 30, 1990, NASD sent notice of its award in favor of the plaintiffs to Gronager, who had been aware of the award prior to this date.

On January 19,1990, the plaintiffs’ attorney contacted an employee at NASD who informed him that the plaintiffs had been awarded $227,250. The attorney requested that NASD advise Gronager of the award. On January 24, 1990, Gronager conferred with a law firm regarding the arbitration award and the possibility of moving to vacate the award. He also met with an attorney about the arbitration award on January 25 and 26, 1990.

By letter dated January 25, 1990, the plaintiffs’ attorney informed Gronager of the award amount and the plaintiffs’ intent to seek immediate satisfaction of the award. The letter referred to a previous letter concerning a warning not to attempt to hinder collection through the making of transfers or the assumption of obligations. Although the letter was sent by certified mail, return receipt requested, the plaintiffs’ attorney never received such receipt.

On January 29,1990, Gronager transferred his interest in a condominium to Gotch by quitclaim deed, which stated that the consideration for the conveyance was “$1.00 and other valuable consideration.” On that same day, Gronager’s attorney recorded the quitclaim deed and filed a real estate conveyance tax return with the town of Greenwich, indicating that no conveyance taxes were due on the transaction because the consideration paid was less than $2000. Gotch did not participate in the preparing and filing of the quitclaim deed and, at the time of Gronager’s conveyance to her, did not provide any consideration. Since October, 1986, the defendants had lived together in the condominium, the title to which was in both names.

The condominium was purchased for $450,000, with $150,000 contributed by Gronager, $25,000 contributed by Gotch, and a purchase money mortgage in the amount of $275,000. Gronager’s share of the down payment was financed, in part, by a loan to him from Gateway. Prior to January 29, 1990, Gronager made all payments on the condominium mortgage and all payments of the condominium common charges, and he declared all interest deductions on his personal tax returns. Gotch reimbursed Gronager for approximately one half of these payments. On the basis of these contributions and mortgage obligations, Gronager owned 65 percent and Gotch owned 35 percent of the condominium.

On the day of the conveyance, Gronager prepared a self-styled loan agreement, which was typed and signed by Gotch. The agreement provided that Gotch, in recognition of full ownership of the condominium, agreed to pay Gronager $117,000 on January 29, 2015, and $4680 per year in interest on the loan until its maturity date or until the loan was repaid. The agreement was unsecured and not witnessed or acknowledged by anyone.

At the time of the conveyance, Gotch was aware of the arbitration claim and the amount of damages requested by the plaintiffs and the possible unfavorable consequences of the arbitration. The provisions of the loan agreement stated that there was no down payment required, provided for a low interest rate, and contained no acceleration clause in the event of a default.

Although Gronager claimed to have received $46,958.04 in interest payments on the loan from Gotch, their tax returns did not reflect this claim. Gotch’s payments actually constituted payments to assist Gronager in covering shortages in Gateway’s customer accounts because her checks to him were endorsed by Gronager on behalf of Gateway and deposited in Gateway’s account.

In April, 1990, Gronager and Gateway moved to vacate the award of the arbitrators in favor of the plaintiffs in the United States District Court for the District of Massachusetts. In response to the motion, the plaintiffs moved for an order requiring the posting of a security bond or, in the alternative, a writ of attachment. On July 23, 1990, the District Court denied Gateway and Gronager’s motion to vacate, denied the plaintiffs’ motion for bond or attachment as moot since judgment was imminent, granted the plaintiffs’ motion to confirm the award, and ordered that judgment enter for the plaintiffs in the amount of $227,250, with costs and interest accruing from January 24, 1990, at the rate of 12 percent. On August 30,1990, the District Court issued a Certification of Judgment in accordance with its decision of July 23, 1990.

As of August 30,1990, Gronager was jointly and severally liable to the plaintiffs, along with the other parties to the arbitration, for $243,537.28, and as of January 9, 1992, the amount totaled $274,489.50. On January 9, 1992, the plaintiffs recovered $98,290.20 from Weston. The plaintiffs seek the balance of their federal judgment from the defendants.

The referee found that Gronager, with the intent to defraud or hinder the plaintiffs’ ability to collect on a debt, transferred his interest in property to Gotch for no consideration. He also found that Gronager was insolvent at the time of the fraudulent conveyance and that Gotch knowingly participated in the transaction. The referee recommended that damages be awarded against Gronager “in the amount of $176,190.30, together with interest under [General Statutes] § 37-3a from January 9, 1992 until the date of judgment.” The referee also recommended that the transfer of Gronager’s interest in the property be set aside “to the extent necessary to satisfy the plaintiffs’ damages, but limited to the defendant Gronager’s sixty-five (65%) percent interest in the subject property.”

The referee filed a corrected report as a result of a motion by the plaintiffs and, among other corrections, recommended “damages against Gronager and Gotch jointly and severally, in an amount equal to $177,873.16 as of January 9, 1992, plus interest at ten (10%) percent under [General Statutes] § 37-3a to the date of judgment . . . .”

In its memorandum of decision, the trial court adopted the factual findings of the referee, but concluded that the referee should not have applied the Uniform Fraudulent Transfer Act (act), General Statutes §§ 52-552a through 52-5521. The trial court, quoting Molitor v. Molitor, 184 Conn. 530, 535, 440 A.2d 215 (1981), found the application of the statute of no consequence “ ‘since the uniform act ... is largely an adoption and clarification of the standards of common law.’ ” The trial court found, however, that the act differed from the common law and General Statutes (Rev. to 1991) § 52-552 in that the act shifts the burdens of proof and provides for remedies against the transferee. The trial court, nevertheless, found that “[a]ny change in the burden of proof is not relevant, as the [referee] found that the plaintiffs met their burden under § 52-552 or the [act].”

The trial court also concluded that because the act did not apply and neither § 52-552 nor the common law provided a monetary remedy against the transferee beyond the fraudulently conveyed property itself or the proceeds thereof, Gotch was not jointly and severally liable for the underlying debt of Gronager. The trial court adopted the referee’s original recommendation dated January 21, 1993, and also adopted the attorney trial referee’s corrected recommendation as to the amount of damages against Gronager only.

I

APPEAL

Gronager first argues that the attorney trial referee’s factual findings to support a fraudulent conveyance were clearly erroneous, and, therefore, the trial court improperly adopted them. In order to determine whether the attorney trial referee’s findings, as adopted by the trial court, were clearly erroneous, we must determine if they were supported by the evidence. Stamford v. Kovac, 36 Conn. App. 270, 274-75, 650 A.2d 626 (1994).

“ ‘A party who seeks to set aside a conveyance as fraudulent bears the burden of proving that the conveyance was made without substantial consideration and that, as a result, the transferor was unable to meet his obligations (constructive fraud) or that the conveyance was made with fraudulent intent in which the transferee participated (actual fraud).’ Tessitore v. Tessitore, 31 Conn. App. 40, 42, 623 A.2d 496 (1993).” Farrell v. Farrell, 36 Conn. App. 305, 309, 650 A.2d 608 (1994).The trial referee found by clear and convincing evidence that both defendants participated in the conveyance of the condominium with actual intent to hinder or defraud the plaintiffs from collecting their judgment, and that as a result of the conveyance, the defendant Gronager was unable to meet his financial obligations.

Gronager claims that the attorney trial referee improperly determined the value of his assets at the time of the conveyance in determining that as a result of the conveyance he was unable to meet his obligations. He argues that his testimony established the overall worth of his interest in Gateway as sole shareholder at $745,000, $400,000 of which constituted goodwill value. The attorney trial referee, however, chose not to believe Gronager’s testimony and found, on the basis of the evidence, that Gronager’s interest in the corporation was negligible as of January 29, 1990. “In making this explicit factual determination, the attorney trial referee implicitly found certain witnesses to be credible and believable in their testimony. This was precisely his function as a fact finder. ‘The resolution of conflicting factual claims falls within the province of the trial court.’ Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). Additionally, ‘[w]e cannot retry the facts or pass on the credibility of . . . witness[es].’ Id.” Griffin v. Planning & Zoning Commission, 30 Conn. App. 643, 652, 621 A.2d 1359 (1993). More specifically, the attorney trial referee found that, on December 31, 1989, Gateway suffered a decline in cash flow in excess of $900,000 and suffered losses in excess of $30,000.

In September, 1989, the state of Massachusetts sought penalties against Gateway, and in September, 1990, barred Gateway and Gronager from doing business in that state. As of January or February, 1990, the Connecticut banking department imposed various penalties on Gateway, including temporarily barring it from soliciting trades for five days and imposed $25,000 in fines. Furthermore, the trial referee found that “[a] scant seven (7) months after the transfer, in August, 1990, Gateway would shut down [and] was to be forced into involuntary bankruptcy in 1991.”

Gronager also argues that at the time of the conveyance, he had an interest in residential property that was improperly excluded in calculating the value of his assets. The referee concluded that the defendant’s interest in a residential property, owned jointly with his first wife, Rose Gronager (Rose), at the time of the condominium conveyance, had no significant value because it was then subject to a valid claim to which Gronager had voluntarily relinquished his interest. In August, 1988, Rose initiated a dissolution action based on a claim of abandonment, in which she sought permanent occupancy and possession of a jointly owned house, in which Gronager had not resided since 1983. In August, 1990, pursuant to a voluntary settlement of the dissolution action, the residence was conveyed to Rose by quitclaim deed prepared on February 9, 1990. Gronager denied knowledge of Rose’s claim and denied any intent to voluntarily relinquish his interest in the marital property at the time of the conveyance of the condominium. The referee, however, chose to disbelieve this testimony, relying instead on other evidence.

The attorney trial referee found that Gronager had assets consisting of an individual retirement account and a bank account, which totaled approximately $37,000, and that his liabilities exceeded that amount.

Gronager also argues that the referee incorrectly determined the amount of his liabilities. First, he claims that the referee should not have included the full amount he owed on two mortgages, totaling $295,000, but should have apportioned the amount of liability based on the percentage of ownership in the mortgaged property. The referee properly found that Gronager was liable for these mortgages jointly and severally, and, therefore, could have become liable for the full amount of the mortgages in case of default.

Gronager next argues that the referee should not have included the arbitration award of $227,250 as a liability because it was not until the denial of the motion to vacate the award on July 23, 1990, and the granting of the plaintiffs’ motion to confirm that the “contingent award” became a liability. The fact that the arbitration award was not reduced to a judgment until August 30, 1990, did not preclude the referee from including the award amount as a debt as of the date of his conveyance of his interest in the condominium to the defendant Gotch. See White v. Amenta, 110 Conn. 314, 318, 148 A. 345 (1930).

Because Gronager’s liabilities exceeded $500,000 and his assets were no greater than $40,000, the referee properly concluded that he was insolvent at the time of the transfer. The referee stated: “It has been discussed before that Gronager’s assets were clearly insufficient to satisfy the Crepeau award and he was insolvent after the conveyance. Where the conveyance leaves the grantor without sufficient property to meet existing debts, it cannot be supported as against creditors unless the consideration is one which the law terms valuable. Clarke v. Black, 78 Conn. 467, 62 A. 757 (1906). Here, Gronager received no valuable consideration for the transfer and he was insolvent.”

Gronager does not dispute numerous other factual findings giving rise to the conclusion of a fraudulent conveyance. The referee found that the transfer of the condominium was made to a relative, and that Gro-nager retained possession or control of the property transferred. Both defendants admitted in their testimony that they concealed the transfer and the loan agreement. See Beers v. Botsford, 13 Conn. 146, 153 (1839). Gotch testified that they did not disclose the loan agreement to their lawyers, friends, business associates, family members, or the plaintiffs until after Gateway had ceased operations in August, 1990. The transfer occurred after a lawsuit had been filed, thus, establishing an inference that the conveyance was made in order to frustrate the plaintiffs’ execution on the judgment. See Burakowski v. Grustas, 134 Conn. 205, 207, 56 A.2d 461 (1947).

We conclude that the trial court correctly adopted the referee’s findings of a fraudulent conveyance.

II

CROSS APPEAL

The plaintiffs allege that the trial court improperly reversed the referee’s recommendation of an award of damages against Gotch. The plaintiffs claim that, in addition to setting aside a fraudulent conveyance, common law permits a party to recover damages against a transferee who knowingly participates in the fraudulent conveyance.

The following additional facts are necessary to resolve this claim. The attorney trial referee, in response to the plaintiffs’ motion, issued a corrected report that recommended an award of damages against both defendants, jointly and severally, in the amount of $177,873.16, plus interest. This amount represented the outstanding debt still due the plaintiffs from the original judgment against Gronager. The referee found that by virtue of Gotch’s knowing participation in the fraudulent conveyance, she became jointly and severally liable for the underlying debt of Gronager.

The trial court rejected this amended recommendation because it concluded that under common law principles and General Statutes (Rev. to 1991) § 52-552, the plaintiffs were not judgment creditors on January 29, 1990, and, therefore, they could not invoke a remedy of damages against Gotch as a transferee. The trial court, relying on Derderian v. Derderian, 3 Conn. App. 522, 529, 490 A.2d 1008, cert. denied, 196 Conn. 810, 811, 495 A.2d 279 (1985), concluded that the plaintiffs could recover no more from Gotch than the property itself or any proceeds from the fraudulent conveyance and that § 52-552 did not provide for a remedy of punitive damages. We do not apply § 52-552 to this case because the plaintiffs did not rely on it for their cause of action, and do not argue in their brief that the statute is applicable.

The plaintiffs primarily rely on Nowsky v. Siedlecki, 83 Conn. 109, 75 A. 135 (1910), and Finance Corp. of New England, Inc. v. Scard, 100 Conn. 712, 124 A. 715 (1924), to support their claim. They argue that Derder-ian v. Derderian, supra, 3 Conn. App. 522, failed to follow.those two cases or to cite them. They claim that, contrary to Derderian, Nowsky and Finance Corp. of New England, Inc., allow damages to be awarded against both wrongdoers in an action at law and the relief of setting aside the fraudulent conveyance in an equitable action against both wrongdoers.

Derderian v. Derderian, supra, 3 Conn. App. 529, states that “[c]ommon law principles do not authorize a general creditor to pursue the transferee in a fraudulent conveyance action for anything other than the specific property transferred or the proceeds thereof. Austin v. Barrows, 41 Conn. 287, 299 (1874); Smith v. Blake, 1 Day 258, 262 (1804); see also annot., 11 A.L.R.4th 345; 37 C.J.S., Fraudulent Conveyances § 279; Glenn, Fraudulent Conveyances (Rev. Ed. 1940) § 74.” Nothing in that statement is inconsistent with the cases cited by the plaintiffs. Derderian was a partition action in which the defendant counterclaimed to set aside a fraudulent conveyance and in which no damages were claimed. The statement does not address the issue of whether both parties to the fraudulent conveyance may be liable for the entire debt of the judgment debtor where the transferee is not a judgment debtor of the general creditor.

Connecticut case law clearly allows, in one lawsuit, a claim for damages — an action at law — and a claim that a conveyance should be set aside as fraudulent — an equitable action. Finance Corp. of New England, Inc. v. Scard, supra, 100 Conn. 717-18; Nowsky v. Siedlecki, supra, 83 Conn. 112; see also Gaudio v. Gaudio, 23 Conn. App. 287, 302, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). The issue of the present case, however, is not whether Connecticut procedure allows equitable and legal causes of action to be joined in one suit, but whether the assets of a transferee who is not a judgment debtor, but who participates in the fraudulent conveyance, can be reached to pay any deficiency in the judgment owed to the judgment creditor by the transferor, when the value of the property conveyed is insufficient to satisfy the debt, absent a statute that provides for such a remedy.

Two cases provide an answer to that question. When the sole claim in an action against the transferee, where there has been a fraudulent conveyance, is for damages, and the value of the property is insufficient for the payment of the entire debt of the transferor, compensation for the excess of the debt of the transferor over the value of the property could not succeed at common law. See Austin v. Barrows, 44 Conn. 287, 299 (1874). The case of Nowsky v. Siedlecki, supra, 83 Conn. 109, supports the same proposition in the context of a combined action at law for damages and an equitable action to set aside a fraudulent conveyance. If the transferee can prove a contribution to the original purchase price of the property, the interest in the property as to that contribution is not reachable by a general creditor of the transferor-debtor, but the transfer of the interest of the debtor may be set aside as a fraudulent conveyance. Id., 119. Furthermore, any supplemental judgment for the difference between the value of the fraudulent conveyance and the debt owed by the transferor can be had only against the transferor-debtor. Id.

Nowsky v. Siedlecki, supra, 83 Conn. 112, states: “A judgment creditor who complains that his debtor has transferred all his property, when insolvent, to his wife, by a voluntary and fraudulent conveyance, and that she participated in the fraud, has, among other remedies, one at law for compensation in damages against both the wrong-doers; and one in equity to have the fraudulent conveyance set aside. The plaintiff sought both these remedies, and had a right to seek both, in a single action.” This language is relied on by the plaintiffs to support their conclusion that Gotch can be liable for the entire debt of Gronager to the extent the plaintiffs have not been made whole. The phrase “compensation in damages” in the context of Nowsky relates to compensation of damages for the value of the fraudulent conveyance and not to damages in the amount of the entire debt of the transferor to the extent it exceeds such value.

We conclude that the holding in Derderian that, at common law, a party may not recover damages from a transferee beyond the property conveyed or the proceeds thereof does not conflict with other cases, which also hold that, without a statute to the contrary, the amount of damages to be recovered from a transferee of a fraudulent conveyance cannot exceed the value of the property transferred. Furthermore, none of the cases relied on by the plaintiffs awarded damages to the party alleging a fraudulent conveyance beyond the property itself or the value of the property. We conclude that the trial court properly rejected this portion of the referee’s award, and that the plaintiffs’ cross appeal must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Holmer P. Gronager and Katherine Gotch. The latter is also the cross appellee in the plaintiffs’ cross appeal.

       The plaintiffs are Walter R. Crepeau and Donna Crepeau.

       The appeal involves only the first count, the alleged fraudulent conveyance of a condominium.

       This change in the damages’ amount represented a correction in the calculation of interest and not a change in the principal.

       See footnote 9.

       The plaintiffs claim that Gronager failed to comply with Practice Book § 439 because he did not provide the trial court with a transcript of the proceedings before the attorney trial referee and, therefore, is precluded from challenging the referee’s factual findings. The findings of the referee, however, are adequate for the puiposes of our review. Furthermore, the requirements of § 439 apply to the necessity of a transcript for the purposes of the trial court’s review and do not apply to this court.

       We recognize that, under the common law, an individual or corporation’s value should be assessed as of the time of the alleged fraudulent conveyance. State v. Martin, 77 Conn. 142, 144, 58 A. 745 (1904). Ample evidence of Gateway’s worth at the time of the conveyance supported the referee’s assessment of its value, and we cite this evidence only because it supports, with hindsight, the correctness of the referee’s factual determination.

       Gotch married Gronager in December, 1990, when his divorce from his first wife became final. The referee determined that the delay in marriage was due to the lack of that divorce, and that under such circumstances, Gotch should be considered a relative of Gronager.

       General Statutes (Rev. to 1991) § 52-552 provides: “All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.” General Statutes (Rev. to 1991) § 52-552 was repealed by No. 91-297, and replaced with §§ 52-552a through 52-5521, the Uniform Fraudulent Transfer Act. The plaintiffs do not claim that this act permits a remedy of damages against Gotch. The trial court concluded that the act could not be retroactively applied to the conveyance in this case, which had occurred prior to the act’s passage.

       The plaintiffs’ complaint as amended consisted of counts alleging a fraudulent conveyance at common law and an unfair trade practice under § 42-110a et seq. “For a party to be entitled to a statutory remedy, her prayer for relief must be specifically based on that statutory remedy. Alaimo v. Royer, 188 Conn. 36, 43, 448 A.2d 207 (1982).” Derderian v. Derderian, supra, 3 Conn. App. 529.


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT M. BROWN
    (14983)
    Lavery, Heiman and Stoughton, Js.
    Argued December 11, 1995
    officially released May 14, 1996

      Alexander H. Schwartz, with whom, on the brief, was Sharon Bradley Bowler, for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, with whom, on the brief, was James E. Thomas, state’s attorney, for the appellee (state).
   STOUGHTON, J.

The defendant was convicted after a jury trial of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), and three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). On appeal, he claims that (1) the trial court improperly refused to grant him either a mistrial because of the untimely disclosure of potentially exculpatory evidence that he had previously requested or a continuance to perform dioxyribonucleic acid (DNA) and blood group testing on the untimely disclosed evidence, (2) he was denied his right to due process, to a fair trial and to present a defense because the state failed timely to disclose exculpatory evidence, (3) the trial court improperly permitted the introduction of evidence of prior bad acts, and (4) the trial court abused its discretion in denying his motion for a new trial in light of the results of the postverdict analysis of the untimely disclosed evidence. We agree with the defendant’s first claim and reverse the judgment of the trial court and remand the case for a new trial. Because our resolution of the first issue entitles the defendant to a new trial, we do not reach the second and fourth issues. Because the third issue is likely to recur on retrial, we address that issue despite the reversal on other grounds.

The jury could reasonably have found the following facts. In July, 1983, the female victim placed an advertisement in a newspaper for a female roommate to share her condominium. She received a telephone call in response to the advertisement on the first day it appeared. The male caller said that he was calling for his sister. He made certain inquiries and then said, “We’ll be over.” When asked for a time, he said that it would be about noon.

As the victim was preparing lunch at about noon, she saw a man approaching the condominium unit. Before she reached the entry, the man had already opened the door and entered. He said that he had called earlier. As the victim was showing the man through the condominium, he grabbed her and waved a knife in front of her face.

The man found a pair of socks and a belt in her bedroom, with which he gagged and bound her. He then removed her jeans and sexually assaulted her. Afterwards, he forced her to use a douche and then wiped her off with a towel. Subsequently, after warning the victim not to move, the man took the douche container with him and left. Thereafter, the victim put on her jeans and called for assistance from a neighbor.

The victim was taken to the Bay State Medical Center where she was examined and a sex crime kit was prepared. The Suffield police were informed of the incident, and the victim gave a statement in which she described her attacker. She was initially unable to identify him from an array of photographs, but in October, 1983, she did identify the defendant as her attacker from another photographic array. She stated that she was “100 percent sure” that he was her assailant. She also identified the defendant as her attacker at trial.

The sex crime kit, which had been sent for processing to the Connecticut state police, was returned to either the Suffield police or the hospital on August 17, 1983. It was missing at the time of trial and the prosecutor was unable to determine where it had been sent. Although a warrant for the arrest of the defendant was issued in 1983, he was incarcerated in another state at that time.

On July 30, 1992, approximately one year before the trial began, the defendant filed a motion seeking, among other things, disclosure of exculpatory information or material and copies of any scientific tests or reports. Both the prosecution and the defense believed that the police had lost the sex crime kit and articles of clothing belonging to the victim. Copies of the laboratory reports were given to the defendant, together with a receipt from the laboratory for the jeans that had been worn by the victim on the date of the crime.

On July 15, 1993, during the trial, the prosecution learned that the jeans were still in the possession of the Suffield police and gave that information to the defendant. The jeans were tested and seminal fluid protein was found. The defendant, upon learning that the jeans had been located and that there was a semen stain on them, moved for a twenty-one day continuance in order to have DNA testing done. The prosecution objected because of the delay that would be caused by a continuance. The trial court denied the motion, although it acknowledged that the interests of justice required DNA testing if such tests were possible. The court decided, however, that a long delay for testing procedures would be unfair to the jury and that, to avoid additional delay, he would order DNA testing only if the jury convicted the defendant.

After the prosecution rested, the defendant called as a witness the chief toxicologist for the state of Connecticut. The toxicologist testified that a test had been done on a shirt, a pair of jeans, a bedspread and a towel. A seminal stain was found in the crotch of the jeans, but no seminal stains were found on the other items. He also had tested the sex crime kit containing blood, saliva, samples from the vaginal, rectal and oral areas, and hair pulls, all taken from the victim. No sperm or anything from anyone other than the victim was found in any of the samples. No blood typing was done because there was no sample from a suspect. Further, the toxicologist testified that DNA testing was not available in rape cases in 1983, but that such testing could have been done between 1983 and 1993.

The prosecution, outside the presence of the jury, had informed the court that blood and saliva samples taken from the victim and the defendant revealed that they had the same blood grouping, and that their antigens were so similar that the defendant could not be ruled out. The prosecution reported that two or three more days would be required to perform preliminary subgroupings of blood types and to determine whether there was sufficient material for DNA testing.

The defendant requested a continuance for sub-grouping of the blood and renewed the request for a three week continuance for DNA testing. The motions were denied. The defendant also moved for a mistrial, which was denied. Thereafter, the jury returned its guilty verdict.

Before sentencing, in accordance with the trial court’s suggestion, a cutting from the jeans was sent to the Federal Bureau of Investigation laboratory for restriction fragment length polymor phism (RFLP) DNA testing. No result could be obtained, however, because the DNA was either insufficient or too degraded. A second cutting was sent for polymerase chain reaction (PCR) DNA testing. Both cuttings were probed for the DQ alpha type.

The test results were not available for eight months. The test results indicated that the defendant could not be excluded as the donor of the semen in the first cutting, nor could the victim, her husband, who at the time of the assaults was her boyfriend, or 20 percent of the population be excluded. The defendant, however, was excluded as a possible donor of the semen in the second cutting. In denying the defendant’s motion for a new trial, the court stated its belief that the inability to put the evidence before the jury was not materially injurious. We disagree.

I

The defendant claims that the trial court abused its discretion by refusing to grant either a mistrial or the requested continuance for DNA testing on the semen stain after the untimely disclosure of the jeans and sex crime kit.

Whether to grant a request for continuance is within the discretion of the trial court, and a reviewing court must make every reasonable presumption in favor of the proper exercise of the trial court’s discretion. State v. Mozell, 40 Conn. App. 47, 53, 668 A.2d 1340 (1996). We must look at the circumstances of the case, particularly the reasons offered for the request, in order to determine whether the denial of the request was arbitrary. Id., 54. The trial court denied the motion for a continuance in part because of the inconvenience to the jury of a lengthy continuance. Further, the trial court was aware that a mistrial had been declared in this case earlier in the year and wanted to avoid another mistrial. The defense, however, was mistaken identity and a DNA test result excluding the defendant would have strengthened that defense.

“[A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. . . . On appeal, the defendant bears the burden of establishing that the occurrence was so prejudicial, in the context of the trial as a whole, that it denied him a fair trial. . . . The decision to grant or deny a motion for a mistrial is within the sound discretion of the trial court. . . . State v. Traficonda, 223 Conn. 273, 282, 612 A.2d 45 (1992). The trial court also has broad discretion in determining whether the defendant was prejudiced.” (Internal quotation marks omitted.) State v. Pettway, 39 Conn. App. 63, 72, 664 A.2d 1125, cert. denied, 235 Conn. 921, 665 A.2d 908 (1995). We conclude that the trial court’s denial of an opportunity for the defense to have the DNA tests completed prior to the conclusion of the trial and an opportunity to put that evidence before the jury was so prejudicial, in the context of the trial as a whole, that it denied the defendant a fair trial.

The defendant, therefore, was entitled to either a continuance or the declaration of a mistrial. See Arizona v. Youngblood, 488 U.S. 51, 55, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). The trial court should have granted the defendant’s motion for a continuance. Having failed to do so, the defendant was entitled to the granting of his motion for a mistrial. We therefore reverse the judgment of the trial court and remand for a new trial.

II

Because our resolution of the first issue is dispositive, we do not address the second and fourth issues. We do, however, address the third issue because it may recur on retrial. That issue is whether the trial court improperly permitted introduction of evidence of prior acts that were not sufficiently similar to acts alleged to have occurred in the commission of the crime at issue.

The prosecution was permitted to offer testimony that in mid-July, 1983, a young woman placed an advertisement in a newspaper seeking a female roommate for an apartment in Agawam, Massachusetts. A man telephoned and said that he was looking for an apartment for his sister. He was told that he would have to speak to the person who had placed the advertisement. A man went to the apartment on July 18,1983, knocked on the door across from the apartment and asked for the person who had placed the advertisement. He told Janice Trenholm, the woman who answered the door, that he had car trouble and that he was a friend of the other woman, and asked to use the bathroom. When Trenholm’s son appeared, the man left.

Trenholm was a court reporter at the Springfield Superior Court, where she saw the defendant some weeks later. She informed the police that she recognized him from the incident of July 18. The Suffield police were informed and obtained a photograph of the defendant, which the victim in this case identified from a photographic array.

The evidence in question did not show any bad act or criminal conduct. It was offered on the question of identity, and, for this purpose, it was admissible. State v. Pollitt, 205 Conn. 61, 69, 530 A.2d 155 (1987).

The judgment is reversed and the case remanded for a new trial.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.


author: SPEAR, J.

text:
    AMERICAN MORTGAGE CORPORATION v. IRENE HOPE
    (13604)
    SchaUer, Spear and Hennessy, Js.

      Submitted on briefs December 14, 1995
    officially released May 14, 1996

      Jeffrey A. McChristian filed a brief for the appellant-appellee (plaintiff).

      Theodore A. Lubinsky filed a brief for the appellee-appellant (defendant).
   SPEAR, J.

The principal issue in this case is whether, in determining the amount of the defendant mortgagor’s debt for inclusion in his bankruptcy plan under Chapter 13 of the United States Bankruptcy Code, 11 U.S.C. § 1301 et seq., the trial court should have included, as part of the debt, certain expenses incurred by the plaintiff second mortgagee after title vested in it pursuant to a judgment of strict foreclosure. Those claimed expenses are the realtor’s commission on the sale of the property, conveyance taxes, and recording fees (sale expenses) as well as interest on the first mortgage from the payoff date through the date on which the plaintiff sold the foreclosed property (interest expense). The second issue is whether the trial court improperly refused to award additional attorney’s fees that the plaintiff claims it incurred because of the bankruptcy proceedings.

The plaintiff appeals from that part of the judgment disallowing the sale expenses and additional attorney’s fees and the defendant cross appeals from that part of the judgment allowing the interest expense. We affirm the trial court’s judgment with respect to the sale expenses and the denial of additional attorney’s fees. We reverse the judgment with respect to the interest expense.

There is no dispute as to the relevant facts. On April 4, 1990, the defendant executed a promissory note in the amount of $30,000 payable to the plaintiff and secured by second mortgages on two separate parcels located in Berlin and New Britain respectively. Upon default in payment, the plaintiff commenced separate foreclosure actions on the properties. The court rendered a judgment of strict foreclosure as to the Berlin property and title vested in the plaintiff on November 2, 1991. On December 17, 1991, the plaintiff paid off the first mortgage. On February 13, 1992, the plaintiff sold the Berlin property for $109,900. The court rendered a judgment of foreclosure by sale in the New Britain action, but the sale was stayed because the defendant filed a petition in bankruptcy on November 16, 1991.

In the bankruptcy court, the defendant agreed to pay the amount that the Superior Court found to be due to the plaintiff. The bankruptcy court ordered a relief from stay in the New Britain foreclosure “for the limited purpose of determining the debt due [the plaintiff] for inclusion in the debtor’s chapter 13 plan.” In finding the debt, the trial court disallowed the realtor’s sale commission in the amount of $6594, recording fees and conveyance taxes of $680.39, as well as the plaintiffs request for additional attorney’s fees. The court did allow interest in the amount of $2009.12, computed from the date on which the plaintiff paid off the first mortgage to the date on which the plaintiff sold the property.

The proceeding in the Superior Court, pursuant to the relief from stay, was not a deficiency judgment hearing pursuant to General Statutes § 49-14. The trial court fashioned a mechanism to determine the amount of the debt pursuant to the relief from stay order. That mechanism utilized the deficiency formula of § 49-14 with respect to the sale expenses, but not the interest expense. The parties disagree as to whether the fair market value of the property should be reduced by the sale and interest expenses, before applying that value toward the debt. The defendant advocates incorporating the deficiency formula of § 49-14 so that the full fair market value of the property would be credited toward the debt with that value being reduced by only the amount of the first mortgage and back taxes. The plaintiff asserts that, in addition to the balance on the first mortgage, its expenses relating to the sale as well as the interest on the first mortgage payoff should be deducted from the fair market value of the property and the resulting net value applied toward the debt. The trial court, in allowing the interest expense, but disallowing the sale expenses, calculated the debt to be $9228.68.

The plaintiff argues that the trial court should have adopted the procedure set out in the Uniform Commercial Code, General Statutes § 42a-9-504, that allows a creditor to deduct expenses and to apply the net value of the collateral toward the debt. The fallacy in this argument is that § 42a-9-504 governs a situation where a secured party takes possession of collateral after a default, but does not take title. The secured party claiming the benefit of § 42a-9-504 does not own the collateral at the time of sale, but possesses it only for the purpose of the sale and the consequent satisfaction of the debt in whole or in part. If the secured party wants to become the owner of the collateral, the procedure in General Statutes § 42a-9-505 (2) must be followed. Even then, the secured party cannot obtain title if there is a timely objection. The plaintiff points to nothing in the Uniform Commercial Code that would allow a secured party, who takes title to the collateral, to sell it thereafter and to add the expenses of the sale to the obligor’s debt.

We agree with the defendant that the deficiency judgment formula is properly used in determining the amount of the debt in this situation. “ [Foreclosure is peculiarly an equitable action, and the court may entertain such questions as are necessary to be determined in order that complete justice may be done.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Hillcrest Associates, 233 Conn. 153, 170-71, 659 A.2d 138 (1995). “[T]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 773, 657 A.2d 668, cert. granted, 234 Conn. 908, 659 A.2d 1208 (1995). The formula in § 49-14 accurately determines the remaining debt after a strict foreclosure and it is fair and equitable to apply it here. Pursuant to § 49-14, the value of the property foreclosed is fixed as of the date title vests in the foreclosing plaintiff for purposes of any deficiency. Eichman v. J & J Building Co., 216 Conn. 443, 445, 582 A.2d 182 (1990); Farmers & Mechanics Savings Bank v. Durham Realty, Inc., 34 Conn. App. 204, 207, 640 A.2d 1017 (1994). The value of the property is reduced by any prior encumbrances and back taxes. “Although § 49-14 is silent as to the deduction of prior encumbrances from the appraised value, it is well settled that the court should deduct from the amount of the appraisal the aggregate of prior claims against the property in order to determine the value of the security and hence the extent to which the debt or obligation has been satisfied by the application to it of the foreclosed property.” (Emphasis added.) Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 461-62, 217 A.2d 694 (1966). For example, if the property is worth $100,000 as of the date title vests and there is a first mortgage with a balance of $69,000 and back taxes of $1000, a foreclosing second mortgagee whose debt totals $30,000 would be completely satisfied. The $30,000 difference between the balance of the first mortgage plus back taxes ($70,000) and the fair market value of the property ($100,000) is the equivalent of a cash payment to the foreclosing mortgagee. This procedure is fair to the mortgagee and the mortgagor. The mortgagor receives a full credit for any market value above the prior encumbrances, while the foreclosing second mortgagee receives a credit for the prior encumbrances (first mortgage and back taxes) that burden the property at the time that title vests.

The expenses incurred in the sale of the property after the plaintiff acquired title are not prior claims against the property and, therefore, are precluded pursuant to Lenczyk. “Were this not so, there would be no finality to the finding of value based on the day title vested in the plaintiff. Changes in value, changed market conditions, improvements or newly discovered deficiencies in the property are only a few examples of the plethora of issues that might be raised were the rule not as it exists.” City Savings Bank of Bridgeport v. Miko, 1 Conn. App. 30, 34, 467 A.2d 929 (1983).

Two principles emerge from the cases addressing this issue. First, the value of the property is determined as of the date title vests. Second, the only allowable deductions from that value are for prior encumbrances in effect on the date title vests. If the value of the foreclosed property is equal to, or in excess of, the value of the senior encumbrances plus the debt of the foreclosing property, no deficiency exists. The debt would be completely extinguished and there would be no legal basis for allowing the foreclosing plaintiff, in whom title has vested, to sell the property thereafter and create a new debt by charging the sale expenses to the defendant mortgagor. Clearly, expenses related to the sale of the foreclosed property after the foreclosing party acquires title cannot increase the debt of the mortgagor.

This reasoning also disposes of the issue of the $2009.12 interest expense that the trial court allowed. Only the balance on the first mortgage as of the date title vested is properly deductible from the fair market value of the property. Furthermore, the postvesting payoff protected the plaintiffs interest from any adverse action by the senior mortgagee. As a matter of equity, the loss of interest on the money used to pay off the first mortgage for the time period between the date of the payoff and the date the property was sold is not an expense to be paid by the mortgagor but is rather an expense that is properly chargeable to the plaintiff.

The plaintiff last claims that the trial court improperly denied additional attorney’s fees for the bankruptcy and debt determination proceedings. “ ‘Whether to allow [attorney’s] fees and in what amount calls for the exercise of judicial discretion.’ ” Clement v. Clement, 34 Conn. App. 641, 649, 643 A.2d 874 (1994); see also Cook v. Bieluch, 32 Conn. App. 537, 544, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993). The memorandum of decision indicates that the trial court had previously awarded the plaintiff attorney’s fees in the amount of $1500 in the New Britain action. The memorandum indicates in a footnote that fees in the amount of $1700 were awarded in the Berlin action, but the defendant states in her brief that only $1300 was awarded as attorney’s fees. The plaintiff does not state what fees were awarded in the Berlin action. The trial court did not give any reason for the denial of additional fees and the plaintiff did not request an articulation. There was no evidentiary hearing, according to the plaintiffs brief, and we do not know what amount was requested and what, if any, evidence or documentation was presented in support of the request. Because the record is insufficient to afford review, we cannot determine whether the trial court abused its discretion in refusing to award additional attorney’s fees.

On the defendant’s cross appeal, the judgment is reversed as to the allowance of $2009.12 in interest as part of the debt and the case is remanded with direction to find the debt in the amount of $7219.56; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 49-14 provides in pertinent part: “Deficiency judgment, (a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment. . . .”

       General Statutes § 42a-9-504 provides in pertinent part: “Secured party’s right to dispose of collateral after default; effect of disposition. (1) A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing. Any sale of goods is subject to article 2. The proceeds of disposition shall be applied in the order following to (a) the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and, to the extent provided for in the agreement and not prohibited by law, the reasonable attorneys’ fees and legal expenses incurred by the secured party; (b) the satisfaction of indebtedness secured by the security interest under which the disposition is made; (c) the satisfaction of indebtedness secured by any subordinate security interest in the collateral if written notification of demand therefor is received before distribution of the proceeds is completed. If requested by the secured party, the holder of a subordinate security interest must seasonably furnish reasonable proof of his interest, and unless he does so, the secured party need not comply with his demand. . . .”

       General Statutes § 42a-9-505 (2) provides: “In any other case involving consumer goods or any other collateral a secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debtor if he has not signed after default a statement renouncing or modifying his rights under this subsection. In the case of consumer goods no other notice need be given. In other cases notice shall be sent to any other secured party from whom the secured party has received, before sending his notice to the debtor or before the debtor’s renunciation of his rights, written notice of a claim of an interest in the collateral. If the secured party receives objection in writing from a person entitled to receive notification within twenty-one days after the notice was sent, the secured party must dispose of the collateral under section 42a-9-504. In the absence of such written objection the secured party may retain the collateral in satisfaction of the debtor’s obligation.”

       The court and the parties used the sale price of $109,900 as the fair market value of the property as of the date title vested. There was no objection to this procedure. “[A] recent sale of the subject realty resulting from fair negotiations between a desirous buyer and a willing seller . . . will ordinarily be the most reliable indicator of fair market value . . . .” (Internal quotation marks omitted.) A & M Realty v. Dahms, 217 Conn. 95, 100-101, 584 A.2d 466 (1991); see also New Haven, Savings Bank v. West Haven Sound Development, 190 Conn. 60, 71, 459 A.2d 999 (1983).

       The defendant does not challenge the payoff figure of $74,368.62 as of December 17, 1991, even though this figure presumably includes interest that accrued after title vested.

       This figure represents the debt found by the trial court in the amount of $9228.68 less the disallowed sum of $2009.12.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. SANTOS MIRANDA
    (14439)
    Foti, Landau and Heiman, Js.
    Argued February 20
    officially released May 14, 1996

      Ernest J. Diette, Jr., for the appellant (defendant).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgments of conviction, rendered after a court trial, of six counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), and risk of injury to a child in violation of General Statutes § 53-21. He claims that the evidence was insufficient to support the convictions. The defendant further claims that the trial court improperly restricted cross-examination of a witness and excluded certain testimony.

The central issue in this appeal is whether a person, who is not the biological or legal parent of a child and does not owe a legal duty to that child, can be convicted of assault in the first degree of that child absent evidence of either an overt act causing the injuries, or of aiding and abetting another in the commission of the crime. We conclude that under the circumstances of this case, absent an overt act or an omission to act where there is a legal duty to do so, the defendant, a nonparent, could not be convicted under § 53a-59 (a) (3). We, therefore, reverse the judgment of the trial court in part.

The trial court could reasonably have found the following facts. On January 27, 1993, the defendant, age twenty-one, lived with his sixteen year old girlfriend, Dianek Rodriguez, and her two children in Meriden, having moved there in September, 1992. The defendant is not the father of either child, a boy, two years old, and a girl, the victim, four months old. He assumed responsibility for the welfare of both children and took care of them as if he were their father. He established a family-like relationship with the children and their mother.

On the evening of January 27, 1993, the defendant was in the shower when Rodriguez screamed that the baby was turning blue and could not breathe. The defendant went to help, saw the baby had turned purple, and the defendant began crying. He then picked up the baby, put her on her back, breathed into her mouth and pushed on her chest. Milk came from the baby’s mouth and she began to breathe normally. The defendant went out of the apartment to place a 911 emergency call and returned to the apartment immediately afterward.

At approximately 8:05 p.m., Steven Cushing, a trained paramedic, arrived in response to the call. After observing and examining the child, he placed her in an ambulance, and rushed to Meriden Veterans Memorial Hospital. Because of the serious and extensive injuries to the child, she was transported by Life Star helicopter to Hartford Hospital, where she remained in intensive care for two and one-half days. She was discharged on February 5, 1993. The department of children and families took custody of the child and her brother.

Upon examination at Hartford Hospital, the child was found to be a textbook example of battered child syndrome. She was found to have multiple rib fractures in the posterior area, multiple skull fractures, bruises to soft tissue areas, a brachial plexus injury, a rectal tear, and bilateral subconjunctival nasal hemorrhages. These injuries were sustained during three or more occasions of wilful and deliberate abuse. Some of the injuries were fresh and some were five to ten days old. The rectal tear was a serious physical injury that created a risk of death because the child’s intestine could have been perforated, resulting in an overwhelming infection.

The trial court found that the defendant was aware of the child’s injuries and “[although he was so aware, he failed to act to help or aid her by promptly notifying authorities of her injuries, taking her for medical care, removing her from her circumstances and guarding her from future abuses.”

The trial court concluded, as to the charges of assault in the first degree, that under these circumstances the defendant’s “failure to aid the child demonstrates an extreme indifference to human life.” His failure to act constitutes a “gross deviation from the standard of conduct that a reasonable person would observe in that situation,” and his “conduct was reckless and caused serious physical injuries.”

As to the one count of risk of injury, the trial court concluded that, through his failure to act, the defendant, “unlawfully caused and permitted the child to be placed in such a situation that her life and limb were endangered and her health was likely to be injured; in fact her life was endangered and her health was injured and impaired.”

The defendant claims that the evidence presented at trial was insufficient to convict him of either assault in the first degree or risk of injury to a child.

In reviewing claims of insufficiency, we first review the evidence presented at trial and construe it in the light most favorable to sustaining the trial court’s finding of guilt. State v. Stanley, 223 Conn. 674, 677, 613 A.2d 788 (1992). We then look at the facts established at trial and the reasonable inferences drawn from those facts and decide whether the court could have reasonably concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Malone, 40 Conn. App. 470, 480-81, 671 A.2d 1321 (1996). Our standard in reviewing the conclusions of the trier of fact is limited. State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We will construe the evidence in the light most favorable to sustaining the trial court’s judgment and will affirm the court’s conclusions if reasonably supported by the evidence and logical inferences drawn therefrom. State v. Wohler, 38 Conn. App. 277, 281, 661 A.2d 103 (1995).

The question on appeal is not whether we believe that the evidence established guilt beyond a reasonable doubt, but rather whether, after viewing the evidence in the light most favorable to sustaining the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995). We give deference to the unique opportunity of the trier of fact to observe the conduct, demeanor and attitude of the trial witnesses and to assess their credibility. State v. Cintron, 39 Conn. App. 110, 119, 665 A.2d 95 (1995). The trial court’s findings of fact are entitled to great weight; State v. Osman, 218 Conn. 432, 436, 589 A.2d 1227 (1991); but those findings are not conclusive. State v. Cobbs, 203 Conn. 4, 13, 522 A.2d 1229 (1987).

The defendant’s claim of insufficiency of the evidence as to the charge of risk of injury to a child under § 53-21 is inadequately briefed. He has neither cited authority nor provided any legal analysis. We are, therefore, precluded from reviewing this claim. State v. Mozell, 37 Conn. App. 574, 579-80, 657 A.2d 686, cert. denied, 234 Conn. 910, 660 A.2d 355 (1995).

While § 53-21 proscribes criminal omissions, such as a person’s deliberate indifference to or acquiescence in creating a situation inimical to a child’s physical welfare; State v. Apostle, 8 Conn. App. 216, 242, 512 A.2d 947 (1986); the same is not true of § 53a-59 (a) (3). A failure to act when one is under no legal duty to do so, thereby permitting a dangerous condition to exist, is not sufficient to support a conviction for assault in the first degree pursuant to § 53a-59 (a) (3).

Assault in the first degree under § 53a-59 (a) (3) requires that a defendant recklessly engage in conduct that creates a risk of death to another person and thereby causes serious physical injury to another person. State v. Jupin, 26 Conn. App. 331, 340, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). A person acts recklessly with respect to a particular result or a circumstance described by statute “when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. ...” General Statutes § 53a-3 (13). The state of mind constituting recklessness may be inferred from conduct. State v. Bunkley, 202 Conn. 629, 645, 522 A.2d 795 (1987).

Generally, if the injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct, the defendant is criminally responsible. State v. Spates, 176 Conn. 227, 234-35, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979). That conduct, creating criminal liability, may be by an act or an omission to act if within the intendment of the statute. See State v. Tomassi, 137 Conn. 113, 119, 75 A.2d67 (1950). Criminal liability may also arise not only by overt acts but by an omission to act where there is a legal duty to do so. 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 3.3, p. 282.

The defendant’s convictions under § 53a-59 (a) (3) were not based on facts found from the evidence presented that he either inflicted or aided and abetted another in inflicting the injuries suffered by the victim. The basis of the court’s convictions is that the defendant knew or should have known of the child’s injuries and did nothing, although he had a duty to do something. The court’s determination that the defendant “had a duty to act to protect the health and well-being of the baby girl” is based on the undisputed evidence that the “defendant took on the responsibility for the care and welfare of [both] children with the mother of these children.”

Central to the fact-finding process is the drawing of inferences from the evidence or from the facts established by the evidence that the court deems to be reasonable and logical. In re Keijam T., 221 Conn. 109, 123, 602 A.2d 967 (1992). The trial court could not reasonably and logically have found by direct evidence, or inferred from the evidence or facts established, that the defendant had a legal duty to the victim. Where a single fact is essential to proof of an element, such evidence must support the inference of that fact beyond a reasonable doubt. State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). The facts that the defendant was a member of the household, that he considered himself the stepfather of the baby girl, and that he took on the responsibility of the care and welfare of that child do not establish a legal duty.

The existence of a duty is a question of law. Only if such a duty is found to exist does the court then determine whether the defendant violated that duty in a particular situation. Shore v. Stonington, 187 Conn. 147, 151-52, 444 A.2d 1379 (1982). While evidence may have been sufficient to establish that the defendant had a moral duty to act, it was not sufficient to establish that he had a legal duty to act. A legal duty is defined as “[a]n obligation arising from . . . the operation of the law . . . .” Black’s Law Dictionary (6th Ed. 1990). A duty has been defined as an obligation, “whether imposed by the common law, statute, or contract . . . .” Ballentine’s Law Dictionary (3d Ed. 1969). As a matter of law, no legal duty can be found to have existed under the particular circumstances of this case and, therefore, no conviction could be had pursuant to § 53a-59 (a) (3).

We have reviewed the defendant’s remaining claims. After a thorough review of the record, transcripts and briefs and, after affording these claims the appropriate scope of review, we find the defendant’s assertions to be without merit.

The judgment of conviction on the six counts of assault in the first degree in violation of § 53a-59 (a) (3) is reversed and the matter is remanded with direction to render judgment of not guilty on those charges; the judgment of conviction of risk of injury to a child in violation of § 53-21 is affirmed.

In this opinion the other judges concurred.

       The defendant was charged with twenty-five counts of assault in the first degree. He was found not guilty of the remaining counts, all of which charged him with having either personally inflicted the victim’s injuries, or having aided and abetted another in inflicting those injuries.

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       A child suffering from battered child syndrome would have certain types of injuries that were not sustained accidentally. Such a diagnosis “is often indicated when a child’s injuries do not jibe with the history given by the parent.” State v. Dumlao, 3 Conn. App. 607, 610, 491 A.2d 404 (1985).

       We take judicial notice that the child’s mother has entered a plea of guilty under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to charges relating to having caused these injuries to the child.

       The defendant was sentenced to a total effective sentence of forty years, consisting of ten years on the risk of injury count, consecutive to two fifteen year sentences consecutive on each of two counts of assault in the first degree. As to the four other counts of assault in the first degree, the defendant received sentences of fifteen years concurrent to all other sentences. As part of a plea agreement, Rodriguez will receive a sentence of twelve years suspended after she serves seven years.

       A claim of insufficient evidence, even if not preserved, is reviewable. State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995); State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993). When inadequately briefed, however, an issue is considered abandoned. We will not review an issue that has not been adequately briefed. State v. Mozell, 37 Conn. App. 574, 579-80, 657 A.2d 686, cert. denied, 234 Conn. 910, 660 A.2d 355 (1995). Even a claim of insufficiency must be adequately briefed by providing legal analysis and citing authority to be reviewable. Id., 580. The defendant’s brief merely states the issue in its heading and nothing further. The defendant’s brief addresses only the crime of assault in the first degree and the elements of that crime without addressing the crime of risk of injury.


author: O’CONNELL, J.

text:
    ALEXANDER JONES v. LESTER J. FORST ET AL.
    (14412)
    O’Connell, Landau and Healey, Js.
    Argued February 28
    decision released May 14, 1996

      Paul N. Ngobeni, for the appellant (plaintiff).

      Henri Alexandre, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Margaret Q. Chappie, assistant attorney general, for the appellees (defendants).
   O’CONNELL, J.

The plaintiff, a former Connecticut state trooper, appeals from the judgment in favor of the defendants rendered after a trial to the court. The defendants are Lester J. Forst, former state police commissioner, and John S. Wilks, a former state trooper and investigator for the state police division of internal affairs. The plaintiff claims that the trial court improperly failed to consider his evidence of disparate treatment based on his race. We affirm the judgment of the trial court.

The trial court found the following facts. On October 17, 1987, Trooper William Longo of the Connecticut state police was injured during an off-duty altercation at Bopper’s Cafe in Hartford. It was claimed that Longo was assaulted and injured by Eric Matland, a bouncer at the cafe. An investigation of Matland’s record was made by someone in the state police department and it was determined that his right to operate a motor vehicle was under suspension. In retaliation for the assault on Longo, the plaintiff, along with Trooper Nev-ille Brooks, targeted Matland for an arrest for operating his motor vehicle while his license was under suspension. At the instigation of the plaintiff, Brooks established a surveillance of Bopper’s Cafe on October 20, 1987. When Matland left the cafe, Brooks followed him and maintained radio contact with the plaintiff. Matland entered Interstate 84 westbound, and the plaintiff stopped Matland, intending to arrest him for operating his motor vehicle while his license was under suspension. He discovered that Matland’s right to operate was not under suspension, however, and arrested him instead for speeding and using a radar detector. Matland filed a written complaint with the state police regarding the tactics used by the plaintiff and further denied that he was speeding or using a radar detector. In response to that complaint, the plaintiff was ordered to file a written report. The plaintiff denied, in writing, knowledge of any surveillance or any plan to single out Mat-land for selective law enforcement action. After the plaintiffs statement, the tape of the radio transmissions for the date of the incident was retrieved and clearly showed that the plaintiff and Brooks had participated in the activity of which Matland complained.

On November 6, 1987, the plaintiff was interviewed by Wilks as part of an internal affairs investigation of the complaint. The plaintiff was represented by the state police union president at this interview. The plaintiff denied any knowledge of any surveillance or plan to single out Matland for selective law enforcement action. On November 10,1987, the plaintiff contacted the internal affairs office and asked if he could change his statement. When he was again interviewed, he admitted his participation in the alleged activities and admitted that he had previously lied in his written statement and at the November 6, 1987 hearings.

The plaintiff was charged with conduct unbecoming an officer — using unacceptable tactics to arrest Matland for a motor vehicle violation, falsifying written and oral reports to a superior and intentionally withholding material matter from those reports. Those charges were based on the plaintiffs lying in his written report and his subsequent lying at the internal affairs investigation interview.

Following the internal affairs investigation, Wilks submitted a report to the labor relations division of the state police. The plaintiff was given a hearing to determine appropriate discipline, at which he was represented by the state police union. Following that hearing, the plaintiff was sent a letter by Lieutenant Colonel John Mulligan notifying him that he was discharged from the state police. The plaintiff grieved his discharge pursuant to the union contract, and the discharge was upheld by an arbitrator. The plaintiff did not appeal the arbitrator’s decision.

The plaintiff claims that he was discharged because of his race in violation of the due process and equal protection clauses of the fourteenth amendment to the constitution of the United States, 42 U.S.C. § 1983, and article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments. The trial court found that the plaintiff “failed to provide any evidence that would indicate that he was discharged because of his race” (emphasis added) and that “the plaintiff was discharged for two reasons: (a) Conduct unbecoming an officer, and (b) falsifying written and oral reports to a superior officer and intentionally withholding material matter from a written and verbal report made to the [state police] department or to a superior.”

The plaintiff complains that the trial court did not analyze his case under the principles of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under McDonnell Douglas Corp., the complainant bears the initial burden of establishing a prima facie case of race discrimination by a preponderance of the evidence. Id., 802. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a nondiscriminatory basis for the action taken against the plaintiff. Id. However, “ ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 363, 514 A.2d 749 (1986).

The plaintiff testified that white and black troopers who lied did not receive similar disciplinary action, but was unable to substantiate this broad statement with the names of any such troopers or the underlying facts of the charges against them. Although the plaintiff failed to support his allegation, the defendants presented evidence that the plaintiff was discharged for reasons other than race. For example, Mulligan, the executive officer of the state police department, testified that any trooper who lied to internal affairs was terminated in accordance with department policy. The defendants also offered uncontroverted evidence that the plaintiff was discharged because of his use of improper methods in securing Matland’s arrest.

Furthermore, both at the conclusion of the plaintiffs case, and at the end of the evidence, the plaintiffs trial counsel conceded that he had failed to establish a prima facie case of race discrimination. Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings. Kanopka v. Kanopka, 113 Conn. 30, 38-39, 154 A. 144 (1931); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.5. In this case, the plaintiffs judicial admissions alone constitute a sufficient basis to sustain the trial court’s judgment.

It is readily apparent in the present case that the plaintiff did not sustain his initial burden of establishing a prima facie case of race discrimination so as to shift the burden of providing a nondiscriminatory reason for the plaintiffs discharge to the defendants. Notwithstanding the plaintiffs failure to establish a prima facie case, the defendants nonetheless established nondiscriminatory reasons for the plaintiffs termination.

The plaintiffs claim is an attack on the factual findings of the trial court. Our function, however, is limited solely to the determination of whether the decision of the trial court is clearly erroneous. Practice Book § 4061; Ernst Steel Corp. v. Reliance Ins. Co., 13 Conn. App. 253, 257, 536 A.2d 969 (1988). Our review of the record discloses abundant support for the trial court’s finding that the plaintiff had not sustained his burden of establishing a case of race discrimination.

The judgment is affirmed.

In this opinion the other judges concurred.

       A second claim, pertaining to the trial court’s failure to grant a continuance, was not briefed and is therefore abandoned. State v. Ramsundar, 204 Conn. 4, 16, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

       The fourteenth amendment to the United States constitution, § 1, provides in relevant part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       Title 42 of the United States Code, § 1983, provides in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities seemed by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

       Article first, § 20, of the Connecticut constitution, as amended by article twenty-one of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex, or physical or mental disability.”

       Trial counsel was not appellate counsel.

       Trial counsel added that the plaintiff could not show race discrimination unless the trial court admitted a report being prepared in a federal case. Because the report did not pertain to this plaintiff, the trial court ruled that it was not relevant. That ruling became unreviewable when the second claim in this case was abandoned.


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    DEBBIE HUNTER, ADMINISTRATRIX (ESTATE OF ALFORDE HUNTER) v. HEALEY CAR AND TRUCK LEASING, INC., ET AL.
    (14703)
    O’Connell, Foti and Lavery, Js.
    Argued February 27
    officially released May 14, 1996

      Karen E. Souza, for the appellant (plaintiff).

      Patricia A. Cofrancesco, deputy corporation counsel, for the appellees (defendants).
   O’CONNELL, J.

The plaintiff appeals from the judgment for the defendants rendered after the trial court granted the defendants’ motion for a directed verdict. The plaintiff claims that the trial court (1) abused its discretion in granting the defendants’ motion for a directed verdict and (2) abused its discretion in allowing the defendants to make an untimely disclosure of an expert witness. We reverse the judgment of the trial court and order a new trial.

Directed verdicts are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion. Glucksman v. Walters, 38 Conn. App. 140, 143, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995). In reviewing a trial court order directing a verdict, we consider all of the evidence and the reasonable inferences drawn therefrom in the light most favorable to the plaintiff. Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979).

Considering the evidence in this case in the light most favorable to the plaintiff, the jury could have found the following facts. On June 17, 1987, the minor decedent, while attempting to cross a street to retrieve a runaway ball, was struck by a motor vehicle driven by Robert Brooks. The plaintiff, who is the mother of the decedent and the administratrix of his estate, brought a negligence action against Brooks. The plaintiff also named the city of New Haven as a defendant because Brooks was operating the car in his capacity as a New Haven police officer. Healey Car and Truck Leasing, Inc., who owned Brooks’ car, was also named as a defendant to the action.

The defendants, claiming that the accident was unavoidable, filed a special defense of comparative negligence and offered evidence to dispute the speed of Brooks’ car and his opportunity to avert the accident. They also attacked the credibility of the plaintiffs other witnesses and their opportunity to observe the accident.

At the close of the evidence, the defendants moved for a directed verdict, arguing that the jury could not reasonably and legally reach a conclusion that Brooks was negligent. The trial court agreed and directed the jury to return a verdict for the defendants.

In determining whether a defendants’ verdict was warranted in the present case, we consider the following evidence that was offered to the jury. Harris Henderson, a prisoner in the backseat of Brooks’ vehicle at the time of the accident, testified that he observed children playing in the area where the accident occurred. Henderson further testified that he observed the decedent run toward a parked van and then emerge in front of it immediately prior to the accident. Henderson’s testimony conflicted with that of Brooks, who testified that he did not see any children playing in the vicinity of the accident and that he did not see the decedent prior to the accident. Negligence is ordinarily a question of fact. Id., 526. Thus, given the conflicting nature of the testimony presented, it was a question for the jury to determine whether Brooks’ failure to observe the decedent constituted negligence in failing to maintain a proper lookout.

Additionally, Henderson testified that a few seconds prior to the collision, Brooks turned his head to the right to speak to him. Henderson yelled, “Watch out for the kid, ” because, although Henderson saw the decedent, he believed Brooks did not. Whether this evidence supported findings of negligent failure to maintain a lookout and negligent failure to exercise reasonable care under the circumstances were questions of fact for the jury. Whether Brooks was negligent in failing to stop or turn his vehicle to avoid hitting the decedent is similarly a question of fact that should have been determined by the jury.

One of the children playing with the decedent, Remilla Brown, testified that there were no cars approaching from either direction and that, as the decedent started to cross the street, Brooks’ car quickly approached and struck the decedent. “Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role.” (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 179, 665 A.2d 63 (1995). The trial court should have allowed the jury to determine on the basis of Brown’s testimony whether Brooks was negligent in driving too fast.

This case presents the type of conflicting evidence that warrants full consideration by a jury. We infer that the trial court, having heard the evidence and observed the witnesses, was not impressed by the strength of the plaintiffs case. In light of the evidence presented, however, the trial court should not have concluded that a jury could not, without speculation, have returned a plaintiffs verdict. The plaintiff was entitled to have her evidence considered by a jury because “[a]s we have noted before, ‘[a] party has the same right to submit a weak case as he has to submit a strong one . . . .’” Somma v. Gracey, 15 Conn. App. 371, 375, 544 A.2d 668 (1988).

Because the plaintiff did not file a motion to set aside the verdict, we must restrict our review to plain error. Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 363, 603 A.2d 1160 (1992); Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981). Plain error review is reserved for truly extraordinary situations where “the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . and results in an unreliable verdict or miscarriage of justice.” (Citations omitted; internal quotation marks omitted.) State v. Harvey, 27 Conn. App. 171, 187, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). We conclude that the trial court’s failure to give the plaintiffs case to the jury meets the plain error standard and that the plaintiff is entitled to a new trial at which a jury may consider the plaintiffs offers of negligence.

We do not reach the issue concerning the untimely disclosure of an expert witness.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.


text:
    WILLIAM E. OSBORNE ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF GUILFORD ET AL.
    (13889)
    Laveiy, Spear and Stoughton, Js.
    Argued December 7, 1995
    officially released May 14, 1996

      William F. Gallagher, with whom, on the brief, was Barbara L. Cox, for the appellant (defendant John T. Conroy).

      Ronald J. Piombino, for the appellees (plaintiffs).
   STOUGHTON, J.

The defendant John T. Conroy appeals from the judgment of the trial court sustaining the plaintiffs’ appeal from the decision of the zoning board of appeals of Guilford (board) granting the defendant a variance of a setback requirement.

The defendant claims on appeal that the trial court (1) based its conclusion that the granting of the variance was barred by the self-created hardship rule on a finding that was unsupported by the evidence, and (2) improperly failed to recognize a good faith exception to the self-created hardship rule under the facts of this case. Because we agree with the defendant on his first claim, we do not reach the second claim.

The following facts are relevant to this appeal. The defendant enlarged and winterized a former summer residence on property he owns on Mulberry Point Road in Guilford. He hired an architect for the project. The architect retained a land surveyor to stake the comers of the foundation. Under the Guilford zoning regulations, an eight foot sideline setback was required. The surveyor inadvertently staked the sideline at a point only 7.4 feet from the defendant’s west boundary, providing a setback that is seven inches less than the required eight feet, but 2.4 feet further from the sideline at issue than the original structure. The error was discovered only after the construction was substantially complete. The surveyor applied to the board for a variance from the eight foot sideyard requirement to permit the setback of 7.4 feet, as already constructed.

The record discloses that the members of the board discussed the application for a variance and concluded that an honest error had been made by the surveyor, that the house had already been constructed and strict enforcement would cause undue hardship, that most of the other houses in the area are on nonconforming lots, that the dwelling as constructed will not have an adverse impact on the comprehensive plan, that the original house was five feet from the abutting property line and that the new house is 7.4 feet from the line, 2.4 feet farther from the sideline than was the old house. The board, therefore, voted unanimously to grant the application for variance. The plaintiffs, the owners of abutting property to the east, appealed to the trial court from the decision of the board.

The trial court determined that the sole issue before it was whether the defendant’s hardship was self-created. It found that the defendant had employed the surveyor whose error caused the noncompliance. It concluded that, to date, no good faith exception to the self-created hardship prohibition on the granting of variances has been recognized in Connecticut. It further concluded that the self-created hardship rule precluded the board from granting a variance in this case and sustained the plaintiffs’ appeal.

We first consider whether the granting of a variance was barred by the self-created hardship rule. The trial court’s finding that the surveyor was retained by the defendant was not a finding made by the board, and the defendant asserts that that finding was not supported by the record.

Ordinarily, “the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing ... as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.” (Internal quotation marks omitted.) Mobil Oil Corp. v. Zoning Board of Appeals, 35 Conn. App. 204, 209, 644 A.2d 401 (1994); Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 731-32, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989). The trial court’s findings will be upheld unless we find that they “are unsupported by the evidence or . . . are clearly erroneous.” Sink v. Meadow Wood Country Estates, Inc., 18 Conn. App. 569, 574, 559 A.2d 725, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989).

The self-created hardship rule provides that “[w]here the applicant . . . creates a nonconformity, the board lacks power to grant a variance. ” Kulak v. Zoning Board of Appeals, 184 Conn. 479, 482, 440 A.2d 183 (1981); Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39, 438 A.2d 1186 (1982).

The surveyor testified before the board that he was retained by the architect, and not by the defendant property owner, to mark the offset for the building, and that the surveyor incorrectly placed one of the stakes 0.6 of a foot, seven inches, closer to the west boundary than it should have been. The architect also testified that because of the “tightness” of the lot, he, not the defendant, took the precaution of hiring the surveyor to set comer stakes before construction. Nowhere does it appear in the record that the surveyor was other than an independent contractor or that the surveyor was retained by the defendant.

We conclude that the trial court’s finding that the surveyor was hired by the defendant was not supported by the record. In light of that conclusion and in the absence of any evidence that the surveyor was other than an independent contractor in control of his own means and methods of work, “ ‘except as to the result of his work’ Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 697, 651 A.2d 1286 (1995); we conclude that the trial court incorrectly found that the hardship was self-created and then improperly applied the self-created hardship rule. We, therefore, reverse the judgment of the trial court and remand with direction to deny the appeal. Because our decision on the first issue is dispositive, we do not reach the other issues.

The judgment is reversed and the case remanded with direction to render judgment denying the plaintiffs’ appeal to the trial court.

In this opinion the other judges concurred.

       Although the zoning board of appeals of Guilford was also a defendant in the trial court action, only the defendant John T. Conroy has appealed herein, and we shall refer to him throughout this opinion as the defendant.