author: PER CURIAM.

text:
    AYOTTE BROTHERS CONSTRUCTION COMPANY v. JOAN FINNEY
    (15185)
    Dupont, C. J., and Landau and Hennessy, Js.
    Submitted on briefs June 7
    officially released August 13, 1996

      Richard C. Sanger filed a brief for the appellant (named defendant).

      Timothy A. Daley filed a brief for the appellee (plaintiff).
   PER CURIAM.

The defendant, Joan Finney, appeals from the trial court’s judgment for the plaintiff on the count of her complaint that alleges unjust enrichment. We affirm the trial court’s judgment.

The defendant is the owner of a parcel of real property at 272-276 Albany Turnpike in Canton. The defendant leased the property to Leigh Miller, who intended to use it in connection with her business. The lease contemplated the construction of a building on the premises. Miller hired a general contractor to supervise improvements to the area surrounding the building, and the general contractor in turn hired the plaintiff to do paving work.

The dispositive issue on appeal is whether the defendant was unjustly enriched by the work that the plaintiff did on her property. We conclude that the trial court properly found that the defendant was unjustly enriched. We, therefore, affirm the judgment of the trial court.

In 1981, the defendant applied to the Canton zoning commission (commission) for an expansion of the operation of the car works that she maintained on the property. She also paid for a site development plan, which provided for a building to be constructed on the rear portion of the property with a paved area adjacent to it.

In 1982, the defendant entered a lease agreement with Europart, Inc., in which Leigh Miller, the future lessee, was a principal. The term of the lease was ten years, and it gave the defendant the right to construct the building in accordance with the site plan.

In 1988, the defendant filed another application with the commission, requesting permission to alter the property’s use. She had a second site plan drawn up, which the commission approved. In October, 1988, prior to the expiration of the 1982 lease, the defendant and Miller entered into another lease, also for a ten year period. The lease included a five year option to extend the lease, and an option to purchase. Miller cosigned a construction mortgage with the defendant to finance the building. The defendant was to construct the shell of the building, and Miller was to be responsible for the interior of the building and the land surrounding it. The new building was completed in the spring of 1989.

Miller hired Landev Remodeling, Inc., as a general contractor to do work on the building. Landev, in turn, hired the plaintiff, Ayotte Brothers Construction Company, in June 1989, to do some paving and other site work. In all, the plaintiff completed $28,608.55 worth of work on the property. Subsequently, the plaintiff put a mechanic’s lien on the property for this unpaid amount.

Later, Miller and Robert Coffin entered a written agreement to which the parties referred as “selling the lease.” Coffin assumed all of Miller’s rights and obligations under the lease and was paying rent to the defendant at the time of the lawsuit. At the closing, $35,000 was placed in escrow to satisfy the hen. Subsequently, the mechanic’s lien was discharged by the court, and the escrow was released to Miller. At the time of trial, Coffin had not exercised the option to purchase.

The issue to be decided is whether the defendant, as the owner of the property, was unjustly enriched as a result of the improvements that the plaintiff made on her property. Unjust enrichment is the appropriate cause of action here since the plaintiff and defendant did not have a contract. Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to contract. 5 S. Williston, Contracts (Rev. Ed.) § 1479. Recovery for unjust enrichment is appropriate when a defendant retains a benefit that has come to him at the expense of another. Polverari v. Peatt, 29 Conn. App. 191, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992); see National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985); Schleichler v. Schleichler, 120 Conn. 528, 534, 182 A.2d 162 (1935).

The elements of unjust enrichment are well established. Plaintiffs seeking recovery for unjust enrichment must prove “(1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefit, and (3) that the failure of payment was to the plaintiffs’ detriment.” Bolmer v. Kocet, 6 Conn. App. 595, 612-13, 507 A.2d 129 (1986).

“[T]he determinations of whether . . . particular [facts constitute the elements of unjust enrichment] are subject only to a limited scope of review on appeal. Stabenau v. Cairelli, 22 Conn. App. 578, 581, 577 A.2d 1130 (1990). Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. Id. This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court. Reynolds v. Ramos, 188 Conn. 316, 321, 449 A.2d 182 (1982); see also Hamm v. Taylor, 180 Conn. 491, 495-96, 429 A.2d 946 (1980) . . . .” Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).

We conclude that the trial court was not clearly erroneous in finding facts supporting the three elements of unjust enrichment. The defendant, as the owner of the property, was benefited by the paving. The defendant did not pay for the paving. Finally, the plaintiff performed work on the property for which the defendant has not paid, to the detriment of the plaintiff.

The defendant claims that the trial court improperly found that the option to purchase clause in the lease does not prevent her from being unjustly enriched. This is not the case. The evidence indicates that the defendant is unjustly enriched despite the option to purchase. If Coffin never exercises his option, then the defendant is benefiting by the improvement of her property. If he does exercise the option, the defendant is still benefited because the sale price will reflect the paving and site work that has enhanced the property’s value.

The defendant also asserts that she should not be liable as a matter of law because the plaintiff failed to pursue the mechanic’s lien properly . She claims that because the lien was discharged, the money held in escrow was released to Miller and therefore no longer protects her from paying the plaintiff. We are not persuaded by this argument. The mechanic’s lien has no bearing on this action because the defendant was not a party to it. The mechanic’s lien concerned the plaintiff, the lessee Miller, and Landev Remodeling, Inc. Whether the plaintiff properly pursued the lien is not germane to whether the defendant was unjustly enriched by the paving on her property.

We conclude that the trial court properly rendered judgment for the plaintiff.

The judgment is affirmed.

       The plaintiff claimed in a count alleging' a contract, that an agency relationship existed between the defendant and her lessee. The trial court found no merit in this claim and based its decision on the unjust enrichment claim. The parties do not reargue the agency theory on appeal.

       The option to purchase clause in the lease provided that the purchase price would be the average of the values accorded the property by three separate appraisers. Therefore, even if Coffin exercised the option to purchase, the defendant would benefit by selling the property at a higher price.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    CHRISTOPHER BRUBECK v. NOREEN BURNS-BRUBECK
    (14919)
    Dupont, C. X, and Landau and Hennessy, Js.
    Argued April 24
    officially released August 13, 1996

      Samuel J. Albom, for the appellant (defendant).

      Ellen B. Wells, with whom was Samuel V. Schoonmaker TV, for the appellee (plaintiff).

      Cordalie Benoit, for the minor child.
   HENNESSY, J.

The defendant, Noreen Bums-Brubeck, appeals from the trial court’s judgment denying her motion to modify custody and visitation. The defendant claims that the trial court (1) improperly failed to reinstate joint custody to her after the abatement of her disability, (2) violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and (3) violated the supremacy clause of article VI and the equal protection clause of the fourteenth amendment of the constitution of the United States.

The trial court found the following facts. In 1984, the trial court dissolved the marriage of the defendant and the plaintiff, Christopher Brubeck. Pursuant to an agreement of the parties, the trial court granted joint legal custody of their minor child with the residence of the child to be with the defendant. In 1988, in response to the plaintiffs ex parte application, the court granted temporary sole custody of the child to the plaintiff. In 1990, after a full hearing on the plaintiffs motion to modify custody and visitation, the trial court granted the plaintiff sole custody of the child and the defendant visitation rights. In 1992, the defendant filed a motion to modify the orders rendered by the trial court in 1990. After a contested hearing, the court denied the defendant’s motion to modify, and it is from that denial that the defendant appeals.

I

The defendant first claims that the trial court improperly failed to order joint custody of the minor child. The following facts are necessary for the resolution of this issue. Subsequent to the dissolution of the marriage, the defendant became afflicted with the disease of alcoholism. While the defendant sought treatment, the plaintiff became the sole custodian of the child pursuant to the court orders rendered in 1988 and 1990. After completing her treatment, the defendant moved the trial court to restore her as a joint custodian of the child.

The authority to render orders of custody and visitation are found in General Statutes § 46b-56, which provides in part: “(a) In any controversy before the superior court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding . . . custody and visitation.....(b) In making any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . . .” Before a trial court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child. Stewart v. Stewart, 177 Conn. 401, 407-408, 418 A.2d 62 (1979).

The defendant claims that the only relevant change in circumstance that existed in the prior modification orders was that the defendant became disabled. She claims that because she recovered from that disability, the trial court should have reinstated joint custody.

A review of the trial court’s 1990 memorandum of decision granting custody to the plaintiff does not support the claim that the sole reason for the trial court’s decision was the defendant’s disability. The trial court did not reach its custody decision based on the defendant’s alcoholism or on the defendant’s clinical depression, although it found that the defendant’s actions resulting from these conditions contributed to disruption in the child’s life. After reviewing the reports and the testimony, the trial court concluded that the child had adapted well to living with his father and his “intelligent and caring” stepmother. The court further found that the plaintiff was the more stable parent and that it was in the best interests of the child that the plaintiff have sole custody.

In support of the present motion for joint custody, the defendant argued that she had met all the requirements set down by the court after the 1990 custody hearing and that she had maintained sobriety. The defendant further argued that the plaintiff, because of changes in his work schedule, could not spend sufficient time with the child. This change of schedule, it is claimed, is a substantial change of circumstance. The trial court recognized that the defendant has made great strides in putting her life in order and that the relationship between the plaintiff and the defendant has improved. The trial court noted that as a result, the plaintiff has allowed the defendant more visitation with the child than the trial court had ordered in 1990. The trial court did not consider the additional visitation allowed by the plaintiff as a change in circumstance that would lead to a change in custody, but rather a positive act that is in the best interests of the child. The trial court found that both the plaintiff and the defendant were good and loving parents, but that the defendant’s actions since the trial court’s 1990 order have been mainly responsible for the ongoing litigation. The court concluded that the plaintiff had provided the necessary care and love for the child. It also concluded that the defendant had failed to establish either a substantial change in circumstances or that it would be in the best interests of the child to modify the existing custody arrangement.

The sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by allowing custody to remain with the plaintiff. “The trial court had the advantage of observing the witnesses and the parties. Considerable evidence was presented concerning the activities of the parties since [the prior modification of custody]. In circumstances like these, whether the best interests of the [child] dictate a change of custody is left to the broad discretion of the trial court. Joy v. Joy, 178 Conn. 254, 257, 423 A.2d 895 [1979]; Stewart v. Stewart, supra [177 Conn. 408], A mere difference of opinion or judgment cannot justify the intervention of this court. ‘Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.’ Morrill v. Morrill, 83 Conn. 479, 491, 77 A. 1 [1910] . . . .” Trunik v. Trunik, 179 Conn. 287, 289-90, 426 A.2d 274 (1979). The trial court had ample evidence before it to conclude that there had been no substantial change in circumstances and that a change in custody was not in the best interests of the child. We conclude that the trial court did not abuse its discretion.

II

The defendant next argues that the trial court violated the Americans with Disabilities Act in arriving at its custody orders. The defendant contends that if one loses custody of a minor child as a result of a disability, the Americans with Disabilities Act requires that the trial court restore custody once the disability has abated. The defendant also contends that the trial court’s decision denying the motion for a restoration of joint custody was unconstitutional under the supremacy and equal protection clauses of the federal constitution.

The defendant argues that because she is a recovering alcoholic, she is a disabled person under the Americans with Disabilities Act, and that the act, as federal legislation, preempts the field regarding the treatment of disabled persons in both the private and public sectors. Furthermore, she contends that the act prevents the court from discriminating against her by using the state standard of the best interests of the child, rather than the automatic restoration of joint custody of the minor child. She claims that discriminating in this manner is a violation of the act and a violation of her constitutional rights.

The defendant failed to raise any of these claims before the trial court, and they are presented for the first time on appeal. Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.” “Practice Book § 4185 provides that this court is not bound to consider a claim that was not distinctly raised at trial. This rule applies to constitutional claims. DiBerardino v. DiBerardino, 213 Conn. 373, 376, 568 A.2d 431 (1990); Sands v. Sands, 188 Conn. 98, 106, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). [Ojnly in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court. Roche v. Fairfield, 186 Conn. 490, 505, 442 A.2d 911 (1982). Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. ... An exception may also be made where consideration of the question is in the interest of public welfare or of justice between the parties. . . . Statewide Grievance Committee v. Friedland, 222 Conn. 131, 147, 609 A.2d 645 (1992).” (Citations omitted; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 828-29, 614 A.2d 414 (1992). The defendant has not claimed nor has she pointed us to any such exceptional circumstances in the present case and, accordingly, we decline to review the merits of this claim.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    STATE OF CONNECTICUT v. DONALD BARBER, JR.
    (14735)
    Lavery, Schaller and Hennessy, Js.
    Argued December 12, 1995
    officially released August 13, 1996

      Gilbert Shasha, for the appellant (defendant).

      Denise B. Smoker, deputy assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Peter McShane, assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Donald Barber, Jr., entered a conditional plea of nolo contendere to the charge of violating subdivisions (1) and (2) of General Statutes § 14-227a (a), the behavioral and per se subdivisions of the statute prohibiting the operation of a motor vehicle while under the influence of alcohol. The court accepted the plea, rendered a judgment of guilty and imposed sentence. The defendant claims that the trial court improperly denied (1) his motion to suppress his blood test results because the search warrant was not supported by probable cause and (2) his motion to suppress the blood test results and his motion to dismiss the charges against him because, under § 14-227a (V), the results of a chemical analysis of a single hospital blood test are not admissible or competent evidence without expert extrapolation testimony.

On October 10, 1993, the defendant, while operating a motorcycle, was involved in a collision with an automobile. As a result of the accident, the defendant suffered injuries and was taken by ambulance to a hospital, where hospital personnel performed a test to determine the amount of alcohol in his blood. On October 18, 1993, the police submitted an affidavit and application for a search and seizure warrant to seize the results of the blood test indicating the defendant’s blood alcohol content (BAC). The court found probable cause and signed the search and seizure warrant. The defendant moved to suppress the hospital records, and the trial court denied the motion.

The court also denied the defendant’s accompanying motion to dismiss the charges based on a claim of insufficiency of the evidence. That claim is based on the defendant’s contention that the results of the blood test were inadmissible because a second blood sample was not taken and because the state stipulated that it would not present extrapolation testimony. After the trial court denied these motions, the defendant entered a conditional plea of nolo contendere to the charges under both subdivisions of § 14-227a (a). This appeal followed.

I

The defendant’s first claim is that the affidavit and application in support of the search and seizure warrant seeking the results of the toxicology screen performed on the blood sample taken from the defendant at the hospital did not establish probable cause. The defendant contends that the affidavit and application failed to establish any evidence regarding the “quantity” of alcohol in the defendant’s body at the time of operation. The gravamen of his complaint is that the court could not have found probable cause on the facts relied on and, therefore, could not have issued a valid warrant. Without a valid warrant, he argues, the results of his blood test are not admissible against him.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched. . . . [State v. Barton, 219 Conn. 529, 547-48, 594 A.2d 917 (1991)]. The role of an appellate court reviewing the validity of a warrant is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991). State v. Duntz, [223 Conn. 207, 215, 613 A.2d 224 (1992)].

“This court’s scope of review, in evaluating the existence of probable cause, is limited to the facts that appear on the four comers of the affidavit or facts that may be properly inferred from those facts. State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). In so doing, we must use common sense; State v. Castano, 25 Conn. App. 99, 101, 592 A.2d 977 (1991); and defer to the reasonable inferences drawn by the [issuing] magistrate. State v. Barton, supra, 219 Conn. 544-45. Our role is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. State v. Johnson, supra, 219 Conn. 565. . . . State v. Anziano, [26 Conn. App. 667, 672, 603 A.2d 415 (1992)].” (Citations omitted; internal quotation marks omitted.) State v. Marsala, 42 Conn. App. 1, 6-7, 679 A.2d 367 (1996).

The search and seizure warrant affidavit presented in this case contained the following information. Michelle Pike was headed south and had stopped to make a left turn into a parking lot. The defendant, who was operating a motorcycle traveling south on the same road, failed to see Pike’s vehicle until he was a short distance away. He applied his brakes and veered left at the same time that Pike began to turn left. The vehicles collided. The defendant was injured, taken to a hospital and a blood test was performed during the course of the treatment he received for his injuries. Pike’s vehicle’s lights were on, and the stretch of road where the collision occurred was straight, with no physical or sight obstructions. During the course of an interview with the defendant at the hospital, the affiant, a police officer, detected a strong odor of liquor on the defendant’s breath. When asked if he “had been consuming alcoholic beverage,” the defendant stated that he had been drinking at the Stone House Cafe prior to the accident. The warrant requested that the blood sample taken from the defendant at the hospital be seized as evidence to establish probable cause to arrest the defendant for operating a motor vehicle while under the influence of liquor and drugs.

The defendant argues that the facts contained in the affidavit do not establish with any certainty the quantity of alcohol in his body at the time of the accident. He contends that the affidavit merely establishes the possibility that his BAC was greater than the legal limit. Applying the information contained in the affidavit and application for the search and seizure warrant to the principles set forth in Barton and the cases cited therein, we conclude that probable cause existed to issue the warrant. It was not unreasonable for the magistrate to believe that a criminal offense had taken place on the basis of the facts that the defendant was operating a motorcycle with an unobstructed view of the road, failed to observe a motor vehicle stopped in the road with its lights on in time to avoid the collision, had a strong odor of liquor on his breath and admitted to having been drinking alcohol shortly before the accident.

Accordingly, we hold that the trial court correctly concluded that, under the totality of circumstances, there was probable cause to issue the search and seizure warrant.

II

The defendant next claims that the results of a single blood chemical analysis obtained pursuant to General Statutes § 14-227a (1) are not relevant or admissible to prove a violation of General Statutes § 14-227a (a) without a second test and extrapolation testimony. The defendant relies on State v. Geisler, 22 Conn. App. 142, 162, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657, on remand, 25 Conn. App. 282, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992). Initially, we note that the defendant pleaded nolo contendere to both the behavioral and per se subdivisions of § 14-227a (a), subdivisions (1) and (2) respectively.

In State v. Geisler, supra, 22 Conn. App. 161-62, this court held that the statutory scheme of General Statutes (Rev. to 1985) § 14-227a (c) (5) and (6), as amended by No. 85-596 of 1985 Public Acts, required extrapolation testimony. Subdivision (5) provided for a second test and subdivision (6) provided, in part, that “evidence [be] presented which demonstrates that the test results and the analysis thereof accurately reflect the blood alcohol content at the time of the alleged offense.” (Emphasis added.) The court relied on this language and its legislative history to conclude that evidence presented pursuant to § 14-227a (c) to prove a violation of the per se subdivision, § 14-227a (a) (2) requires extrapolation testimony. Geisler did not pertain to evidence presented pursuant to § 14-227a (l), the hospital subsection, to prove a violation of either subdivision (1) or (2) of § 14-227a (a).

In State v. Gilbert, 30 Conn. App. 428, 437, 620 A.2d 822 (1993), this court addressed the issue of whether test results presented pursuant to the hospital subsection, § 14-227a (l), are admissible to prove a violation of the behavioral subsection, § 14-227a (a) (1). This court concluded that subsection (Z) of § 14-227a “makes admissible as evidence, for the prosecution of a violation under § 14-227a (a), any chemical analysis of the defendant’s blood that is taken at a hospital. Such chemical analyses are therefore admissible under § 14-227a (Z) ‘notwithstanding the provisions of subsection (c)’ for both behavioral and per se violations under § 14-227a (a).” Id., 439-40. The court held that § 14-227a (c) was inapplicable because the evidence was being proffered pursuant to the hospital subsection, § 14-227a (Z). Id., 440.

The defendant asks this court to require a second test and extrapolation testimony for test results admitted pursuant to the hospital subsection, § 14-227a (Z). The defendant contends that Geisler supports his request. The defendant’s reliance on Geisler is misplaced. Geisler required a second test and extrapolation testimony because the evidence in that case was proffered pursuant to § 14-227a (c). Section 14-227a (c) specifically required a second test, and this court interpreted the “analysis thereof ’ language in subdivision (6) of § 14-227a (c), together with its legislative history, to require extrapolation testimony. In this case, the state proffered the evidence pursuant to the hospital subsection, § 14-227a (Z), which contains neither requirement. In fact, since Geisler, the legislature has amended the “analysis thereof’ language of subdivision (6) of § 14-227a (c) to eliminate the requirement of extrapolation evidence under most circumstances. See State v. Korhn, 41 Conn. App. 874, 678 A.2d 492 (1996). Furthermore, Gilbert tells us that evidence presented pursuant to the hospital subsection, § 14-227a (Z), is not subject to the prerequisites of § 14-227a (c). See also State v. Haselman, 33 Conn. App. 242, 244-45, 635 A.2d 310 (1993), cert. denied, 228 Conn. 921, 636 A.2d 851 (1994); State v. DesLaurier, 32 Conn. App. 553, 562-65, 630 A.2d 119 (1993), aff'd, 230 Conn. 572, 646 A.2d 108 (1994).

We see no requirement in the statutory scheme or case law cited by the defendant that evidence presented pursuant to § 14-227a (Z) be subject to the prerequisites formerly set forth in § 14-227a (c) (6). If we were to conclude that such prerequisites exist, without a basis in statute or case law, we would be usurping the authority of the legislature.

The defendant also claims that the trial court improperly denied his motion to suppress and motion to dismiss on the ground that the results of a single test, without extrapolation testimony, are irrelevant, inadmissible and insufficient to prove a violation of § 14-227a (a) (1). The defendant contends that the single test does not prove the defendant’s BAC at the time of operation and has a highly prejudicial effect. The trial court denied both motions, reasoning that the absence of extrapolation testimony affected the weight of the evidence, rather than its admissibility.

The defendant essentially asks us to hold that evidence of the defendant’s BAC one and one-half hours after a collision is irrelevant, without extrapolation testimony, to prove that he was operating a motor vehicle while “under the influence of intoxicating liquor” in violation of § 14-227a (a) (1) or “while the ratio of alcohol in [his] blood [was] ten-hundredths of one per cent or more of alcohol, by weight” in violation of § 14-227a (a) (2).

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. State v. Jeffrey, 220 Conn. 698, 704, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992). We have also held that evidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. State v. Rinaldi, 220 Conn. 345, 353, 599 A.2d 1 (1991); State v. Jeffrey, supra, 706. State v. Marra, 222 Conn. 506, 521, 610 A.2d 1113 (1992).

“[T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible. . . . State v. Joly, 219 Conn. 234, 252, 593 A.2d 96 (1991). The trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court’s ruling on the admissibility of evidence in the absence of a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990).” (Internal quotation marks omitted.) State v. Sauris, 227 Conn. 389, 406-407, 631 A.2d 238 (1993).

In State v. Geisler, supra, 22 Conn. App. 164-65, this court rejected the proposition that the result of a test administered after operation, combined with evidence of the defendant’s behavior, the amount of alcohol the defendant consumed and the time that it was consumed is sufficient to find that the test results accurately reflect a defendant’s blood alcohol level at the time of the offense. State v. Geisler, supra, 165, which involved a sufficiency of the evidence analysis, rejected that proposition for three reasons: first, the test results establish a per se offense; second, the existence of the “and the analysis thereof’ language and the requirement of a second test in subsection (c) of the statute; and, third, the legislative debate concerning the reliability of test results.

We conclude that Geisler is inapplicable to the present case for three reasons. First, as we have stated above, the statutory language on which Geisler based its conclusions does not appear in subsection (Z) of § 14-227a. Subsection (Z) does not contain a requirement for a second test, nor does it contain the “analysis thereof’ language. Second, we held in State v. Gilbert, supra, 30 Conn. App. 440, that the language of subsection (Z) of § 14-227a is clear and does not require reference to legislative history. Therefore, any reference to the legislative history in Geisler is irrelevant to this case. Finally, Geisler involved a sufficiency claim as opposed to an admissibility claim, as in this case. Therefore, Geisler does not prohibit the admission of blood test results as relevant to the determination of whether at the time of operation the defendant was under the influence of intoxicating liquor or had a BAC of 0.10 percent or greater.

We do not decide whether the blood test result proffered pursuant to § 14-227a (Z) alone, without extrapolation testimony, would have been sufficient to support a prosecution under § 14-227a (a), but merely that the blood test, together with evidence concerning the defendant’s behavior or other evidence that the state may have presented, could allow a reasonable jury to find that the defendant was operating a motor vehicle while under the influence of intoxicating liquor or while his BAC was 0.10 percent or greater. See State v. Hanich, 200 Conn. 615, 623-24, 513 A.2d 638 (1986); State v. Plourde, 3 Conn. Cir. Ct. 465, 477-78, 217 A.2d 423 (1965).

Accordingly, we conclude that the trial court did not improperly deny the defendant’s motion to suppress or motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes § 14-227a (a) provides in part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor ... or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

        State v. Cooper, 38 Conn. App. 661, 663-64, 671-72, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), is also inapplicable because in that case, as in Geisler, the hospital subsection, § 14-227a ffi, was not involved.


author: HEALEY, J.

text:
    FRANK LAWSON v. WHITEY’S FRAME SHOP DOROTHY CHAREST v. WHITEY’S FRAME SHOP
    (14394) (14833)
    Spear, Hennessy and Healey, Js.

      Argued May 3
    officially released August 20, 1996

      Kirstin B. Coffin, for the appellants-appellees (plaintiffs).

      Michael D. O’Connell, with whom was Julia B. Morris, for the appellee-appellant (defendant).
   HEALEY, J.

The plaintiffs in this consolidated action, Frank Lawson and Dorothy Charest, appeal and the defendant cross appeals from the judgment of the trial court rendered after a trial to the court. The plaintiffs’ complaints were in two counts. The first counts made claims alleging conversion, while the second counts sought damages for violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a through 42-1 lOq. The trial court awarded each plaintiff $50, which amount was trebled, on the first count and $1018 on the second count. The defendant filed a counterclaim in two counts seeking its fees and costs under General Statutes § 14-150 and the reasonable value of fees, interest and costs allegedly owed to it by the plaintiffs. The trial court awarded the defendant $1168 to be paid by each plaintiff on the second count. On the plaintiffs’ appeal, they claim that (1) the trial court awarded insufficient compensatory and CUTPA damages because the awards are against the weight of the evidence and contrary to law and (2) the trial court did not allow them sufficient latitude as pro se litigants. On the defendant’s cross appeal, it claims that the trial court improperly determined that it had violated CUTPA.

The following facts are relevant on these appeals. The plaintiffs each incurred over $3000 in fines arising from unpaid parking tickets issued by the city of Hartford. The plaintiffs did not contest the tickets when they were issued. On April 5,1990, the defendant, acting at the direction of the Hartford police department, towed the plaintiffs’ automobiles to its lot. At a hearing pursuant to a city ordinance before the Hartford tax department on April 6, 1990, a hearing officer reduced the amount of the fines the plaintiffs owed by eliminating the additional interest and penalties due. Each plaintiff still owed over $1000, the total of the face amounts of the tickets. Some time later, the plaintiffs contacted the defendant and informed it that they were still contesting the validity of the tickets.

Pursuant to both a city ordinance and the contract between the defendant and the city of Hartford, the defendant was prohibited from releasing automobiles to their owners until all outstanding parking fines were satisfied. The contract specified that when the automobile owner came to retrieve his or her automobile with proper proof of payment of the fines, the defendant was to collect its towing, storage and administrative fees from the automobile owner. The contract also stated that any automobiles not claimed by their legal owners should be stored and disposed of pursuant to General Statutes § 14-150.

The plaintiffs did not pay the parking fines and thus could not retrieve their automobiles from the defendant. On April 24,1990, allegedly acting pursuant to § 14-150 (g), the defendant sent notice to the department of motor vehicles of its intent to sell both automobiles. On May 4, 1990, the defendant, also allegedly acting pursuant to § 14-150 (g), sent notice to the plaintiffs that their automobiles would be sold. On July 16, 1990, the defendant sold the automobiles for their salvage value of $50 each.

The trial court determined that because the plaintiffs demanded the return of their automobiles while they contested the tickets in a variety of fora, the automobiles were not “abandoned” as that term is used in § 14-150. Because the automobiles were not abandoned, the court reasoned, the defendant did not have the authority to dispose of them. Therefore, the trial court awarded to each plaintiff the $50 salvage value the defendant received for each automobile.* *** 6This amount was trebled under General Statutes § 52-564. The trial court also awarded to each plaintiff CUTPA damages of $1018 because it concluded that the defendant’s improper disposal of the automobiles could cause substantial injury to consumers. These awards were offset by the trial court’s determination that each plaintiff owed the defendant $1168 in towing and storage fees.

I

A

The plaintiffs first claim that the amounts of the trial court’s compensatoiy and CUTPA awards were against the weight of the evidence and contrary to law. Even though the trial court awarded compensatory and CUTPA damages, the plaintiffs incongruously assert that the trial court improperly “fail[ed] to award compensatory damages, punitive damages and attorney’s fees . . . .” In addition, the plaintiffs claim that the trial court improperly awarded damages to the defendant. We disagree.

First, the plaintiffs contend that they had proved greater compensatory damages than those awarded by the court. They argue that the trial court required them to prove their damages with too high a degree of specificity. To be precise, the plaintiffs assert that they should have also received damages to compensate them for the book value of the automobiles and wages they allege they lost as a result of being deprived of the use of their automobiles. “It is axiomatic that a claimant seeking damages bears the burden of proving, with reasonable certainty, those damages sustained as a result of his injury. Fox v. Mason, 189 Conn. 484, 488, 456 A.2d 1196 (1983); Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 410, 456 A.2d 325 (1983); Johnson v. Flammia, 169 Conn. 491, 500, 363 A.2d 1048 (1975).” Conaway v. Prestia, 191 Conn. 484, 493-94, 464 A.2d 847 (1983). “The trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Citations omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 27-28, 664 A.2d 719 (1995). “The assessment of damages is peculiarly within the province of the trier and the award will be sustained so long as it does not shock the sense of justice. The test is whether the amount of damages awarded falls within the necessarily uncertain limits of fair and just damages.” (Citations omitted; internal quotation marks omitted.) Buckman v. People Express, Inc., 205 Conn. 166, 174-75, 530 A.2d 596 (1987).

A review of the transcript reveals no evidence to support the plaintiffs’ claims for greater compensatory damages. First, Charest testified that not only did she initially have another vehicle to use in her weekend job as a produce vendor, but that in previous years she had never shown a profit in this endeavor. Second, Charest testified that Lawson was not able to work from 1990 to 1992 as a result of losing the use of his automobile. The plaintiffs, however, offered no other evidence to substantiate the claim for Lawson’s lost wages. Finally, the plaintiffs did not offer any evidence regarding the book value of either automobile. In light of the paucity of evidence relating to actual damages, therefore, the trial court clearly did not abuse its discretion in awarding compensatory damages of $50 for each car.

As noted previously, the trial court trebled its compensatory damage award to the plaintiffs pursuant to § 52-564. In discussing the award, however, the trial court stated that “[s]ection 52-564 may ... be inapplicable because the defendant was acting under a claim of right . . . .” We conclude that § 52-564 is inapplicable.

Statutory theft under § 52-564 “is synonymous with larceny under General Statutes § 53a-119.” Discover Leasing, Inc v. Murphy, 33 Conn. App. 303, 309, 635 A.2d 843 (1993), citing Lauder v. Peck, 11 Conn. App. 161, 165, 526 A.2d 539 (1987). Pursuant to § 53a-119, “[a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or witholds such property from an owner. ” By comparison, “ [conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner’s rights.” Discover Leasing, Inc v. Murphy, supra, 309, citing Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979). In addition, conversion requires that the owner be harmed as a result of the unauthorized act. Devitt v. Manulik, supra, 660. Conversion may arise subsequent to an initial rightful possession. Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994). Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant’s conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion. In the present case, the trial court did not find that the defendant intended to deprive the plaintiffs of their automobiles. In fact, the trial court stated that “the defendant was acting under an honestly held claim of right. ” Therefore, the plaintiffs’ proof that the defendant converted their property cannot, on its own, support a finding of statutory theft under § 52-564. The trial court, therefore, improperly applied § 52-564 to the facts of this case.

Although the defendant in its cross appeal has not specifically raised this issue of whether the trial court properly awarded treble damages, Connecticut courts have concluded that the misapplication of a statute constitutes plain error and therefore we “may in the interests of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185. For instance, our Supreme Court held that a trial court’s failure to apply a pertinent statute is plain error even though neither party raised the issue either at trial or before the Supreme Court. Stoni v. Wasicki, 179 Conn. 372, 377, 426 A.2d 774 (1979). Similarly, in State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985), the court determined that a jury charge that “demonstrates that the trial court has overlooked the applicable statute justifies consideration as plain error.” See also Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980) (“oversight of a clearly applicable statute can be considered plain error”). Here, the trial court awarded treble damages pursuant to § 52-564 even though the plaintiff had not proven one of the essential elements of the statute. The trial court, therefore, improperly applied a statute that was not pertinent to facts it had found. This constitutes plain error and we vacate the trial court’s award of treble damages but leave undisturbed its award of compensatory damages of $50.

The plaintiffs next assert that the trial court should have awarded punitive damages and attorney’s fees even though they acknowledge that the trial court did award CUTPA damages and they assert no other bases on which to claim punitive damages or attorney’s fees. They also state that the trial court, in determining their CUTPA damages, improperly concluded that they “did not merit a large damage award.” The trial court did not specifically identify whether the plaintiffs CUTPA award was for attorney’s fees or punitive damages. Therefore, we will discuss both.

General Statutes § 42-1 lOg (d) provides that a trial court “may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorney’s fees based on the work reasonably performed by an attorney . . . .” “The trial court has discretion whether to award attorney’s fees under CUTPA and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Internal quotation marks omitted.) Steiger v. J. S. Builders, Inc., 39 Conn. App. 32, 36, 663 A.2d 432 (1995), quoting Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). Assuming, arguendo, that the trial court did not award attorney’s fees, we conclude that, because the plaintiffs were pro se at the time of trial and because they did not present any evidence regarding any other attorney’s fees, the trial court did not commit either a manifest abuse of discretion or an injustice.

General Statutes § 42-1 lOg (a) provides that “[t]he court may, in its discretion, award punitive damages ... as it deems necessary or proper.” (Emphasis added.) See Gargano v. Heyman, supra, 203 Conn. 622. “[Pjunitive damages are available when there is evidence of a reckless indifference to the rights of others or an intentional and wanton violation of those rights. . . .” (Citations omitted; internal quotation marks omitted.) Staehle v. Michael’s Garage, Inc., 35 Conn. App. 455, 462-63, 646 A.2d 888 (1994), quoting Gargano v. Heyman, supra, 622; Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 54, 634 A.2d 870 (1993). As noted, the trial court did not specify whether the CUTPA damages were for attorney’s fees or punitive damages. The trial court did state, however, that the defendant’s practice of disposing of unclaimed scofflaw vehicles could cause substantial injury to consumers. Therefore, for the purposes of our discussion here, we will treat the $1018 in CUTPA damages as punitive damages.

Section 42-1 lOg (a) does not provide a method for determining punitive damages. Courts have awarded punitive damages in amounts equal to actual damages or multiples of the actual damages. Staehle v. Michael’s Garage, Inc., supra, 35 Conn. App. 463. Our Supreme Court has upheld a punitive damage award where there was extensive evidence as to issues relevant to punitive damages, including a reckless indifference to the rights of others. Tessmann v. Tiger Lee Construction Co., supra, 228 Conn. 55. Here, the trial court awarded punitive damages that are over twenty times the amount of actual damages and it determined that the defendant’s conduct was not egregious. Therefore, we conclude that the trial court did not abuse its discretion in its award of punitive damages.

Next, the plaintiffs claim that the trial court improperly determined that they owed the defendant for towing and storage fees pursuant to the defendant’s counterclaim. They assert that under the contract between the defendant and the city of Hartford, the defendant could have recovered the storage charges from the city. The plaintiffs point to language in the contract defining “city storage” pursuant to which the city will pay the defendant one dollar a day in storage fees. This same definition, however, states that city storage occurs where “the City has elected to encumber such charges.” (Emphasis added.) The plaintiffs did not present any evidence that would indicate that the city had or would have elected to be responsible for such charges. The contract also states that where an automobile has been towed for failure to pay parking fines, “[t]he City shall not be liable for any storage fees.” Further, “storage fee” is defined as “that sum chargeable to the owner of a motor vehicle, towed under the direction of the Hartford Police Department . . . [and] chargeable to the owner of the vehicle.” The plaintiffs concede that the defendant towed the automobiles at the direction of the Hartford police department. Therefore, the storage and towing charges are chargeable to the plaintiffs. The plaintiffs do not dispute that the trial court properly calculated the amount of damages they owe the defendant. Thus, the award of damages to the defendant was proper.

B

The plaintiffs’ next claim that the trial court did not afford them sufficient latitude as pro se litigants. They argue that the trial court could have concluded that there was sufficient evidence of their lost employment opportunities to have awarded greater compensatory damages and that the trial court did not allow them to present all of their evidence.

“Although we will not entirely disregard our rules of procedure, we do give great latitude to pro se litigants in order that justice may be done.” Lundborg v. Lundborg, 15 Conn. App. 156, 160, 543 A.2d 783, cert. denied, 209 Conn. 818, 515 A.2d 756 (1988). “ ‘[T]he right of self-representation [however] provides no attendant license not to comply with relevant rules of procedural and substantive law.’ ” State v. Krijger, 33 Conn. App. 49, 55, 633 A.2d 310 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994), quoting Galland, v. Bronson, 204 Conn. 330, 334-35, 527 A.2d 1192 (1987).

As discussed previously, the plaintiffs presented no evidence to substantiate their claims for lost wages. While the trial court should allow pro se litigants latitude, such latitude does not extend to inferring damages in an evidentiary vacuum. In addition, a careful review of the transcript reveals numerous examples of the trial court’s assisting the plaintiffs in the organization and presentation of their cases as well as allowing them time to find and review documents. Therefore, the trial court did grant the plaintiffs sufficient latitude in the presentation and evaluation of their evidence.

We also conclude that the trial court afforded the plaintiffs sufficient time to present all of their evidence. Even if we were to construe the plaintiffs dialogue with the court to be a request for a continuance that the court denied, “such denial is within the discretion of the trial judge and will be set aside only if a clear abuse of discretion is shown. . . . We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Citations omitted; internal quotation marks omitted.) State v. Krijger, supra, 33 Conn. App. 55. We cannot conclude that the trial court abused its discretion by refusing to extend the trial.

Finally, we note that the trial court, in its memorandum of decision, stated that “[although the [CUTPA] claim was not specifically pressed at trial by these pro se plaintiffs, the court regards this claim as still being in the case.” Therefore, we conclude that the trial court did grant the plaintiffs sufficient latitude as pro se litigants.

II

The defendant cross appeals claiming that the trial court improperly determined that it had violated CUTPA by disposing of the plaintiffs’ automobiles. The defendant asserts that the city had the right, pursuant either to its police powers or the Home Rule Act, to direct the defendant, by means of their contract, to dispose of the cars pursuant to § 14-150. Therefore, the defendant reasons, it relied in good faith on the authority and direction of the city to dispose of the automobiles. Alternatively, the defendant argues that under § 42-110c, its actions constitute an exception to CUTPA rules.

As an initial matter, we agree with the defendant, as the plaintiffs concede, that the city properly enacted its parking violation ordinances under the Home Rule Act. See New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 499, 439 A.2d 404 (1981) (“a municipality [has] such powers as are necessary to enable it to discharge its duties and carry into effect the objects and purposes of its creation”). The proper promulgation of those ordinances does not, however, immunize those parties with whom the city has contracted to effectuate those ordinances against all civil liability. While the city obviously had the power to enact such ordinances, the city and its agents must nevertheless still adhere to all other laws, including the limitations of § 14-150, in executing those ordinances. Under the circumstances here, therefore, the defendant’s claim that the city could direct it, pursuant to the Home Rule Act, to dispose of the plaintiffs’ automobiles is unavailing. The contract between the city and the defendant is the sole method by which the city could transfer its authority to the defendant. The contract, therefore, necessarily defines the scope of that authority conferred by the city on the defendant.

The contract between the defendant and the city sets forth the reasons the city may have for directing the defendant to tow and store a vehicle. These include clearing vehicles during emergencies such as snowstorms and removing vehicles involved in accidents, vehicles to be held for evidence, scofflaw vehicles and vehicles in other situations that the police may designate. The defendant asserts that it properly relied on the portion of its contract with the city that specifies that “[f]or vehicles not claimed by their legal owners, the contractor shall store and dispose of said vehicles as provided by section 14-150 of the Connecticut Statutes.” The trial court concluded, however, that, since the plaintiffs’ cars were not abandoned as defined in § 14-150 (a), the statute did not apply in this case. The defendant responds by asserting that the language of the contract that states that the defendant “shall store and dispose of said vehicles” directs the court only to 14-150 (g) and that the rest of the statute does not apply. Further, they argue, if § 14-150 applies in its entirety, then the automobiles may be deemed to have been abandoned. We disagree.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Citations omitted; internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995). “ ‘In such a situation our scope of review is plenary’ . . . .” De Leonardis v. Subway Sandwich Shops, Inc., 35 Conn. App. 353, 357, 646 A.2d 230, cert. denied, 231 Conn. 925, 648 A.2d 162 (1994). When only one inteipretation of a contract is possible, “the court need not look outside the four comers of the contract . . . .” Hedberg v. Pantepec International, Inc., 35 Conn. 19, 28, 645 A.2d 543, cert. granted on other grounds, 231 Conn. 927, 648 A.2d 879 (1994) (appeal withdrawn February 21, 1995). We conclude that the language of the contract between the defendant and the city is not ambiguous. Therefore, its proper interpretation is a matter of law.

The contract states that the defendant shall store and dispose of unclaimed vehicles as provided by § 14-150. The contract does not specify that the defendant is to dispose of vehicles only as provided by subsection (g) of the statute. Therefore, given the clear and unambiguous language of the contract, § 14-150 applies in its entirety.

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . It is a well established rule of statutory construction that when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. . . . Courts should not read into clearly expressed legislation provisions which do not find expression in its words.” (Citations omitted; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 830-31, 614 A.2d 414 (1992). Section 14-150 (a) applies to motor vehicles abandoned by a person “within the limits of any highway or upon property other than his own”; a motor vehicle that is “a menace to traffic”; § 14-150 (b); “a motor vehicle without proper registration”; § 14-150 (c); or certain motor vehicles with “no registration marker plates or invalid marker plates.” General Statutes § 14-150 (d). As the trial court found, there is no provision in the statute that applies exclusively to scofflaw vehicles. The defendant, therefore, pursuant to its contract with the city, could properly dispose of only those types of vehicles specifically enumerated by § 14-150 and not those vehicles towed because of outstanding parking violations. Because the plaintiffs’ automobiles were towed due to outstanding parking violations, we conclude that the defendant acted outside the scope of its contract with the city as defined by § 14-150. In short, because § 14-150 does not contemplate the disposal of scofflaw vehicles, the contract between the city and the defendant by necessity could not have provided for the disposal of such vehicles.

We also note that the city ordinances do not specify in any way that automobiles towed for excessive parking violations may be disposed of pursuant to § 14-150. While we decline to state that such a reference in the ordinances would have made the defendant’s conduct proper, at least it would have put the owners of vehicles towed pursuant to those ordinances on notice that their vehicles may be sold in order to compensate a towing contractor’s towing and storage fees.

The defendant next argues that its actions at the direction of the city are exempt from CUTPA. The defendant reasons that, because municipalities are generally immune from CUTPA liability under § 42-110c, it is immune as well. We decline to address this claim because, as we have determined, the defendant’s actions were outside the scope of its contract with the city. The disposal of the plaintiffs’ automobiles, therefore, could not have been at the direction of the city. Thus, the defendant is not exempt from CUTPA liability under § 42-110c.

The judgments are reversed only as to the award of treble damages on the plaintiffs’ first counts and the cases are remanded with direction to render judgments as on file except as modified to award only compensatory damages of $50 on the first count in each case.

In this opinion the other judges concurred.

       The plaintiffs present six different overlapping claims regarding damages. Because the six all address the amount or type of damages or both, in the interest of economy, we will treat them as one claim.

         On April 23,1991, the city issued parking ticket releases to each plaintiff because the fines were deemed to be uncollectable.

       Section 22-44 (b) of the Hartford city ordinances provides: “The chief of police shall not authorize or direct the release of any vehicle placed within a vehicle pound pursuant to [the scofflaw ordinance] until such time as the owner or person in charge of such vehicle shall have: (1) Supplied the chief of police with evidence of his identity and ownership; (2) Satisfied all outstanding municipal parking citations against the subject vehicle to the satisfaction of the chief of police; (3) Paid the cost of removal, impoundment, and administration; and (4) Signed areceiptfor such vehicle.”

       General Statutes § 14-150 provides in pertinent part: “Abandoned or unregistered motor vehicles and motor vehicles which are a menace to traffic. Notice. Removal. Storage. Hearing. Lien. Sale, (a) Any person who abandons any motor vehicle within the limits of any highway or upon property other than his own without the consent of the owner thereof for a period longer than twenty-four hours shall have committed an infraction and shall be fined not less than eighty-five dollars. The last owner of record of a motor vehicle found abandoned, as shown by the files of the department of motor vehicles, shall be deemed prima facie to have been the owner of such motor vehicle at the time it was abandoned and the person who abandoned the same or caused or procured its abandonment.
      “(b) Any inspector of the motor vehicle department, any officer attached to an organized police department or any state police officer upon discovery of any motor vehicle, whether situated within or without any highway of this state, which is a menace to traffic or public health or safety, shall take such motor vehicle into his custody and cause the same to be taken to and stored in a suitable place.
      * ** *
      “(g) The owner or keeper of any garage or other place where such motor vehicle is stored shall have a lien upon the same for his storage charges. Unless title has already vested in the municipality pursuant to subsection (d), if the current market value of such motor vehicle as determined in good faith by such owner or keeper does not exceed five hundred dollars and such motor vehicle has been stored for a period of not less than fifteen days, such owner or keeper may, unless an application filed by the owner pursuant to subsection (d) of this section is pending and the owner of such motor vehicle has notified such owner or keeper that such application for hearing has been filed, sell the same for storage and towing charges owed thereon, provided a notice of intent to sell shall be sent to the commissioner and the owner of such motor vehicle, if known, five days before the sale of such vehicle. . . .”

       The trial court awarded the $50 under the plaintiffs’ first count of conversion. The trial court refused to award compensatory damages for lost wages or for the alleged full value of the automobiles because, the court asserted, the plaintiffs failed to produce any evidence to substantiate those claims for damages.

       General Statutes § 52-564provides: “Treble damages for theft. Anyperson who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       The trial court awarded compensatoiy damages under the plaintiffs first count of conversion. A party may also claim compensatory damages under CUTPA. See General Statutes § 42-1 lOg (a) (persons suffering ascertainable loss of money or property may bring action to recover actual damages). Even under CUTPA, however, a plaintiff “must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990). Therefore, our discussion of compensatory damages will relate to the plaintiffs’ common law and statutory remedies for actual damages.

       In addition, a plaintiff must satisfy a higher standard of proof, namely, clear and convincing evidence, in order for a trial court to award treble damages pursuant to § 52-564, while “[i]t is ordinarily sufficient in civil cases to prove the existence of a criminal act by a preponderance of the evidence.” Schaffer v. Lindy, 8 Conn. App. 96, 104, 511 A.2d 1022 (1986).

       The plaintiffs did not file a motion for articulation pursuant to Practice Book § 4051.

       The trial court determined that the defendant “was caught in a dilemma not entirely of ils own choosing because of the provisions of its contract with the city. It could not release the cars without proof the tickets were paid and faced the prospect of holding these cars for an indefinite period of time. . . . [TJhe cars were properly towed to and lawfully retained by the defendant prior to the disposal of the cars.”

       The plaintiffs rely on the following exchange to assert that the trial court did not allow them to present additional evidence:
      “The Court: Do you have any other evidence you want, to present to the court?
      “Ms. Charest: Not at present.
      “Mr. Lawson: Not at present.
      “Ms. Charest: I have to go back all through this stuff again tomorrow.
      “The Court: You know the trial was scheduled for today.
      “Ms. Charest: I know, I just—
      “The Court: It’s going to, you know, it’s going to finish today. I tried to really bend over backwards today.
      “Ms. Charest: Yes, you did.
      “The Court: And I really tried to.
      “Ms. Charest: And I appreciate it.
      “The Court: And I have to ask you, is there any other evidence that you plan to present or want to present and then I’ll decide whether you should have a right to do it.
      “Ms. Charest: No, I don’t think so. Not at this time, Your Honor.
      “The Court: Okay. . . . How about you, Mr. Lawson? In other words, I’m not trying to intimidate you. If you want to present other evidence, you tell me. I may say to you, I don’t think you have a right but I don’t want to frighten you into not making a request.”

       General Statutes § 7-194 provides in pertinent part: “[A]U towns, cities, or boroughs which have a charter or which adopt or amend a charter under the provisions of this chapter shall have the following specific powers in addition to all powers granted to towns, cities and boroughs under the constitution and general statutes: To manage, regulate and control the finances and property, real and personal, of the town, city or borough and to regulate and provide for the sale, conveyance, transfer and release of town, city or borough property and to provide for the execution of contracts and evidences of indebtedness issued by the town, city or borough.”

       See footnote 3.

       General Statutes § 42-110c provides in pertinent part: “(a) Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state ....
      “(b) The burden of proving exemption, as provided in this section, from the provisions of this chapter shall be upon the person claiming the exemption.”

       See part IA.

       The defendants rely on Dutch Point Credit Union, Inc. v. Caron Auto Works, Inc., 36 Conn. App. 123, 131, 648 A.2d 882 (1994), for the proposition “§ 14-150 allows for the sale of personal property that is deemed abandoned.” (Emphasis added.) That case, however, is distinguishable on its facts. The automobile in question in Dutch Point was towed after a traffic accident. The automobile, therefore, was a “menace to traffic,” §14-150 (b), and consequently the statute and its provision for disposal of the automobile applied.

       See Connelly v. Housing Authority, 213 Conn. 354, 567 A.2d 1212 (1990).


author: DUPONT, C. J.

text:
    LESLIE SRAGER ET AL. v. KENNETH KOENIG
    (14859)
    Dupont, C. J., and O’Connell, Foti, Landau and Hennessy, Js.
    Argued June 5
    officially released July 3, 1996

      Mami Smith Katz, in support of the motion.

      John Timbers, in opposition to the motion.

       July 3, 1996, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   DUPONT, C. J.

The defendant filed a motion to dismiss this appeal and for the sanction of attorney’s fees because the plaintiffs’ counsel abused the appellate process. After granting the motion to dismiss the appeal, we held a hearing on June 5,1996, to address the defendant’s motion for sanctions. We grant the defendant’s motion for sanctions and, further, sua sponte, prohibit the plaintiffs’ counsel from filing any papers in this court and from making an appearance in this court for a period of six months.

The facts that are relevant to an understanding of the defendant’s motion for sanctions follow. This action involves a contract for the sale of the defendant’s real property. The plaintiffs, Leslie Srager and Joan Srager, brought a prior action against the defendant and others, and the plaintiffs filed two notices of lis pendens on the defendant’s property in connection with that action. The suit was subsequently dismissed as to the defendant for insufficient service of process. The plaintiffs then brought another action against the defendant and filed athirdnotice oflis pendens on the defendant’s property. Before the trial court had an opportunity to consider the defendant’s motions to discharge the three notices of lis pendens, the plaintiffs filed a fourth notice of lis pendens on the defendant’s property. The court, Vertefeuille, J., after a hearing, discharged the first three notices of lis pendens declaring them invalid. Subsequently, the fourth notice of lis pendens was also discharged by the court, Vertefeuille, J.

Upon discharge of the fourth notice of lis pendens, the plaintiffs filed an untimely appeal in this court pursuant to General Statutes § 52-325c. Because the statutory appeal period implicated this court’s subject matter jurisdiction, the appeal was dismissed. Srager v. Koenig, 36 Conn. App. 469, 651 A.2d 752 (1994). The plaintiffs subsequently filed this appeal from the discharge by the court, Levin, J., of a fifth notice of lis pendens.

Attorney John Timbers, who has represented the plaintiffs in all of the proceedings before the trial court, continues to represent the plaintiffs on appeal. The plaintiffs commenced the original action on May 1,1992, for, inter alia, an order compelling the defendant to convey to them his property located at 1662 and 1664 Fairfield Beach Road in Fairfield. The fifth notice of lis pendens filed on the defendant’s property was discharged more than three years later, by order dated May 10, 1995.

After the filing of the plaintiffs’ second appeal, the defendant filed a motion to dismiss the appeal for failure to prosecute with proper diligence because Timbers failed, after receiving five extensions, to file a timely appellants’ brief. We granted the defendant’s motion to dismiss and now consider his request for sanctions against Timbers for abuse of the appellate process.

“It is an inherent power of the court to discipline members of the bar, and to provide for the imposition of reasonable sanctions to compel the observance of its rules. . . .” (Citations omitted; internal quotation marks omitted.) Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33-34, 474 A.2d 787 (1984). “The practice of law is ... a profession the main purpose of which is to aid in the doing of justice . . . . In re Application of Griffiths, 162 Conn. 249, 254-55, 294 A.2d 281 (1972), rev’d and remanded, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973), quoting Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 414, 165 A. 211 (1933). An attorney as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege that has been accorded him. In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914). This unique position as officers and commissioners of the court . . . casts attorneys in a special relationship with the judiciary and subjects them to its discipline. (Citations omitted.) Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 524, 461 A.2d 938 (1983).” (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 237-38, 558 A.2d 986 (1989).

“There are three possible sources for the authority of courts to sanction counsel and pro se parties. These are inherent power, statutory power, and the power conferred by published rules of the court. The power of a court to manage its dockets and cases by the imposition of sanctions to prevent undue delays in the disposition of pending cases is of ancient origin, having its roots in judgments . . . entered at common law . . . and dismissals .... That power may be expressly recognized by rule or statute but it exists independently of either and arises because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs so as to achieve an orderly and expeditious disposition of cases. . . . Simply stated, [t]he inherent powers of . . . courts are those which are necessary to the exercise of all others. ...” (Citations omitted; internal quotation marks omitted.) Feuerman v. Feuerman, 39 Conn. App. 775, 777, 667 A.2d 802 (1995), quoting In the Matter of Presnick, 19 Conn. App. 340, 347, 563 A.2d 299, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).

Pursuant to Practice Book § 4184, the following actions, among others, may result in the imposition of sanctions: failure to comply with rules and orders of the court; filing of any papers that unduly delay the progress of an appeal; presentation to the court of unnecessary or unwarranted motions; repeated failures to meet deadlines; and presentation to the court of a frivolous appeal or frivolous issues on appeal. “Offenders will be subject, at the discretion of the court, after hearing, to appropriate discipline, including the prohibition against appearing in the court or filing any papers in the court for a reasonable and definite period of time, the imposition of a fine pursuant to Gen. Stat., § 51-84, and costs and payment of expenses, together with attorney’s fees to the opposing party. ...” Practice Book § 4184.

The appellate record in this case is replete with instances of Timbers’ failing to comply with the rules of this court, filing unnecessary and unwarranted motions that have unduly delayed the progress of this appeal and repeatedly failing to meet deadlines. When considered together, they evidence an overall course of conduct that is a blatant and continuous abuse of the judicial process, and of the rules of this court. We conclude that the sum of Timbers’ actions that are hereinafter described constitutes an egregious abuse of the appellate process.

He filed three motions for articulation in the trial court. One of the motions for articulation concerned Judge Vertefeuille’s order discharging the fourth notice of lis pendens. Because the appeal did not concern that order, but instead concerned Judge Levin’s order discharging the fifth notice of lis pendens, the motion for articulation directed to Judge Vertefeuille was improper pursuant to Practice Book § 4051.

He sought untimely appellate review under Practice Book § 4054, resulting in the filing of a motion for permission to file a late motion for review. He failed to file a timely memorandum in opposition to the defendant’s previous motion for sanctions in violation of Practice Book § 4041 (a), resulting in a motion for permission to file an untimely memorandum in opposition. He failed to file a timely memorandum in opposition to the defendant’s motion to dismiss and for sanctions in violation of Practice Book § 4041 (a), resulting in a motion for permission to file an untimely memorandum in opposition and a motion for permission to file a substitute memorandum in opposition.

He failed to file a timely appellants’ brief, resulting in six requests for extensions; he failed to file the requisite number of copies of the appellants’ brief in violation of Practice Book § 4070; he filed a motion for permission to file a substitute appellants’ brief, after having finally filed a brief.

These actions reveal that the majority of motions and filings submitted in this court by Timbers on behalf of the plaintiffs became necessary only as a result of Timbers’ delinquent behavior. During the sanctions hearing, Timbers explained that because he is a sole practitioner, it is difficult for him to comply with the rules of practice with respect to deadlines and copy requirements. While the demands of appellate practice may be more onerous for a sole practitioner, this court bears the responsibility of processing cases in an orderly and expeditious manner. See In the Matter of Presnick, supra, 19 Conn. App. 351. “Disciplinary proceedings not only concern the rights of the lawyer and the client, but also the rights of the public and the rights of the judiciary to ensure that lawyers uphold their unique position as officers and commissioners of the court. ... An attorney must conduct himself or herself in a manner that comports with the proper functioning of the judicial system.” (Citations omitted.) Id., 345.

There is a recurring pattern of abuse of the judicial process exhibited by Timbers. In CFM of Connecticut v. Chowdhury, 38 Conn. App. 745, 745 n.1, 662 A.2d 1340, cert. granted on cross appeal, 235 Conn. 933, 667 A.2d 1270 (1995), this court dismissed a portion of Timbers’ client’s appeal as untimely under Practice Book § 4009. We dismissed the remaining portion of the appeal because of Timbers’ failure to file a timely appellant’s brief that complied with the rules of practice. The Chowdhury case concerns sanctions ordered by the trial court against Timbers and his client for bad faith pleading. Id., 746.

We conclude that Timbers’ actions in this appeal, when viewed against the backdrop of the untimely prior appeal, and five notices of lis pendens all involving the same alleged cause of action and the same real estate, warrant the imposition of sanctions. Because the defendant’s counsel has continuously faced the burden of responding to Timbers’ numerous filings and violations of the rules of practice, thus increasing the cost to the defendant of defending this appeal, we order Timbers to pay to the defendant’s counsel, Green and Gross, attorney’s fees in the amount of $1000 and reimbursement of costs in the amount of $324.69, for a total of $1324.69, within thirty days of the issuance of this order. In order to protect this court, and the litigants who appear in this court; see In the Matter of Presnick, supra, 19 Conn. App. 350; we sua sponte order that Timbers be prohibited henceforth from filing any papers in this court and from making an appearance in this court for a period of six months. After that period, and upon proof provided to the office of the chief clerk that payment of the $1324.69 was made within thirty days, Timbers may resume practice before this court if he is otherwise qualified to practice law in the courts of this state.

In this opinion the other judges concurred.

       In the context of that first action, the plaintiffs appealed from the discharge of their notice of lis pendens filed on the property of another defendant in that case. We affirmed the trial court’s judgment. Srager v. Koenig, 41 Conn. App. 905, 673 A.2d 1185, cert. denied, 237 Conn. 929, 677 A.2d 947 (1996).

       The plaintiffs filed a motion for reconsideration en banc of the order granting the defendant’s motion to dismiss the appeal. We denied the plaintiffs’ motion on June 19, 1996.

       We do not consider, but note, that after the June 5, 1996 hearing on the defendant’s motion for sanctions, Timbers filed an improper motion, requesting that this court consider a substitute memorandum in opposition to the motion for sanctions that included thirteen appendices equaling approximately thirty-eight pages of additional arguments, even though he already had filed a memorandum in opposition before oral argument.

       The defendant’s counsel submitted an affidavit representing that the defendant had incurred $13,910 in legal fees and $324.69 in costs in defending this appeal.


author: O’CONNELL, J.

text:
    DAWN ROMANO v. CITY OF DERBY
    (14853)
    O’Connell, Spear and Hennessy, Js.
    Submitted on briefs June 10
    officially released August 20, 1996

      Milo J. Altschuler filed a brief for the appellant (plaintiff).

      Gayle C. Carr filed a brief for the appellee (defendant).
   O’CONNELL, J.

On December 31, 1988, David Salemme, a supernumerary policeman employed by the city of Derby, shot his friend, the plaintiff, Dawn Romano, numerous times before fatally shooting himself. The plaintiff alleged that Derby police officers employed by the city negligently failed to protect her from Salemme.

The case was tried before an attorney trial referee, who made findings of fact and concluded that the defendant was not liable to the plaintiff for the injuries that Salemme inflicted on her. The plaintiff challenged the referee’s decision in the trial court, which found a sufficient basis in the evidence to support the attorney trial referee’s conclusions. Accordingly, the trial court accepted the referee’s report and rendered judgment for the defendant. The plaintiff appealed to this court claiming that the attorney trial referee and the trial court improperly found and concluded respectively that (1) the plaintiff failed to prove that the defendant owed her a special duty of care, (2) the officers’ actions taken in this case were discretionary rather than ministerial, and (3) Salemme’s criminal act absolved the defendant of liability. We affirm the judgment of the trial court.

The following facts found by the attorney trial referee are necessary to resolve this appeal. During March of 1988, the plaintiff advised a Derby police sergeant that Salemme had physically abused her and that she feared Salemme would continue to abuse her. The sergeant reported the plaintiffs complaint to a superior officer and spoke with Salemme about his behavior. Although the plaintiff was advised of her right to file a written complaint and to seek a protective order in conjunction with the incident, she chose not to do so.

In December, 1988, officers responded to the report of an argument between the plaintiff, Salemme and a third individual. There was no physical contact, however, between the plaintiff and Salemme during that incident. Later that month, the plaintiff complained to a lieutenant and the chief of police that Salemme had threatened to abuse her and that she feared further acts of violence would occur. On the basis of their knowledge of the parties and the prior incidents involving them, the officers did not believe the plaintiff to be in danger.

I

We begin by setting forth the applicable standards of review. Attorney trial referees are empowered to hear and decide issues of fact. Spears v. Kerars Realty Co., 171 Conn. 699, 702-703, 372 A.2d 121 (1976). It is axiomatic that “a reviewing authority may not substitute its findings for those of the trier of the facts.” Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989). In reviewing an attorney trial referee’s report, a trial court cannot find additional facts or reject others unless a material fact has been found without evidence. Id., 714.

A

The plaintiff first claims that the attorney trial referee and the trial court improperly concluded that the defendant, acting through the officers, did not breach its duty of care. We disagree.

A negligence action against a state or local governmental entity for negligence cannot be predicated on the breach of a general duty owed to the public. Sestito v. Groton, 178 Conn. 520, 527, 423 A.2d 165 (1979). Instead, to maintain an action that a police department’s general duty “precipitates into a special one to prevent harm to an individual, the law requires ... a showing of harm to an identifiable victim.” Shore v. Stonington, 187 Conn. 147, 156, 444 A.2d 1379 (1982). Such a special duty arises only in situations “where it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm.” (Emphasis added.) Id., 153.

The attorney trial referee found that the plaintiff had not sustained her burden of proving that the officers owed her a special duty of care. In making this determination, the referee heard testimony from the plaintiff, the chief of police, and various members of the police department to the effect that (1) the plaintiff did not describe the extent of her difficulties with Salemme to the officers, (2) the plaintiff chose not to file a complaint or to seek a protective order, and (3) the officers did not witness any physical violence between the plaintiff and Salemme. On the basis of this evidence, the attorney trial referee found that “it was not apparent to the officers that [their] failure to act would likely subject the plaintiff, as an identifiable person, to imminent harm,” and that the defendant’s general duty of care was not transformed into a special one.

B

After reviewing the transcript and testimony of the hearing, the trial court concluded that a sufficient basis existed in the evidence to support the attorney trial referee’s findings and therefore concluded that judgment should be rendered for the defendant. We will not overturn these conclusions unless they are legally or logically inconsistent with the facts found. Bruno v. Civil Service Commission, 192 Conn. 335, 344, 472 A.2d 328 (1984). We cannot conclude, given the testimony before the attorney trial referee, that the trial court improperly accepted this report and rendered judgment in accordance with the findings contained therein.

C

The plaintiff further claims that the officers owed her a special duty of care under the Family Violence Act. General Statutes § 46b-38a. We disagree.

The family violence act gives special protections to family or household members when certain incidents occur between them. In order to qualify for protection under the act, a plaintiff must fall into one of the following categories defined by the statute: “(A) spouses, former spouses; (B) parents and their children; (C) persons eighteen years or age or older related by blood or marriage; (D) persons sixteen years of age or older other than those persons in subparagraph (C) presently residing together or who have resided together; and (E) persons who have a child in common . . . .” General Statutes § 46b-38a (2). Because the plaintiff does not fall into any of these categories, she is not entitled to protection under the Family Violence Act. The officers therefore did not owe the plaintiff a special duty of care under this statute.

II

The plaintiff next claims that even if the attorney trial referee and the trial court properly found that she was not an identifiable person subject to imminent harm, the officers and the defendant were liable to her because the officers negligently performed their general duty to the public.

Political subdivisions of the state are immune from liability for “negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” General Statutes § 52-557n (a) (2) (B). They are not immune, however, from liability for ministerial acts “performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.” (Internal quotation marks omitted.) Kolaniak v. Board of Education, 28 Conn. App. 277, 280-81, 610 A.2d 193 (1992). Thus, “liability may attach for a negligently performed ministerial act, but not for a negligently performed . . . discretionary act.” Id., 281.

“Whether the act complained of ... is [discretionary] or ministerial is a factual question which depends upon the nature of the act complained of.” (Internal quotation marks omitted.) Couture v. Board of Education, 6 Conn. App. 309, 311, 505 A.2d 432 (1986). Because the attorney trial referee’s findings are supported by evidence in the record, we cannot conclude that he improperly found that the acts complained of were discretionary or that the trial court improperly rendered judgment in accordance with those findings.

Ill

The plaintiff finally claims that the attorney trial referee and the trial court improperly found that the defendant was exempted from liability because Saiemme’s acts were criminal.

A municipality is not “liable for damages to person or property caused by (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct . . . .” General Statutes § 52-557n (a) (2) (A). Salemme’s acts clearly constitute assault in the first degree in violation of General Statutes § 53a-59. Under § 52-557n (a) (2) (A), the defendant is therefore not hable to the plaintiff for the injuries that Salemme inflicted on her.

The plaintiff relies on Doe v. Mannheimer, 212 Conn. 748, 563 A.2d 699 (1989), for the proposition that illegal acts of a third person do not relieve a defendant of liability if the acts are within the scope of the risk created by the defendant’s conduct. This reliance is misplaced because Doe was not an action against a municipality and § 52-557n (a) (2) (A) did not apply.

The plaintiff also contends that the attorney trial referee could not have exempted the defendant from liability on the ground that Salemme’s acts were criminal. To support this contention, the plaintiff asserts that Salemme was never prosecuted for the injuries he inflicted on the plaintiff.

It is well established that “[t]he meaning [of] a statute is determined by legislative intent and that legislative intent must be determined by language actually used in the legislation.” Broadley v. Board of Education, 229 Conn. 1, 6, 639 A.2d 502 (1994). When the language used in a statute is plain and unambiguous, we will not look beyond the words themselves because we assume that the language expresses the legislative intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).

Section 52-557n exempts municipalities from liability for the acts of its employees that “constitute criminal conduct.” There is no requirement that the employee be charged or convicted of a crime before a municipality is exempt from liability. We therefore conclude that the attorney trial referee properly found that Salemme’s acts were criminal, and the trial court properly rendered judgment in accordance with that finding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The officers were not named as defendants individually.