author: Daly, J.

text:
    James J. Quinn III v. Middlesex Insurance Company et al.
    (6271)
    Dupont, C. J., Daly and Stoughton, Js.
    Argued June 17
    decision released September 13, 1988

      Jan C. Trendowski, for the appellant (named defendant).

      William F. Gallagher, with whom, on the brief, was Leo E. Ahern, for the appellee (plaintiff).
   Daly, J.

The defendant Middlesex Insurance Company appeals from the trial court’s order directing it to proceed to arbitration of an uninsured motorist claim pursuant to General Statutes § 52-410. Middlesex claims that the trial court erred in holding that the plaintiffs status as a party to its insurance contract was a question of coverage to be decided by an arbitration panel. We find no error.

The following facts are not in dispute. On February 12, 1984, the plaintiff was injured in an automobile accident. The car he was operating was owned by him and was insured by the defendant Insurance Company of North America (INA). The plaintiff was successful in recovering a settlement against the other owner and operator in the amount of $20,000, which represented the full amount of the tortfeasor’s liability insurance. The plaintiff alleged that he was covered by Middlesex through an insurance policy issued to his father. Pursuant to a standard arbitration provision in that policy, the plaintiff made a demand for arbitration. Middlesex refused to proceed with arbitration maintaining that the plaintiff was injured while operating his own automobile and, hence, was not a covered person under its policy. The plaintiff applied to the Superior Court to compel Middlesex and INA to submit to uninsured motorist arbitration.

Both policies provided that the insurer shall pay for all sums that a covered person shall be legally entitled to recover as damages from the owner of any uninsured or underinsured vehicle because of bodily injuries sustained by a covered person in a motor vehicle accident caused by the owner of the uninsured or underinsured vehicle. Additionally, both policies further provided that if the covered person and insurer disagree on whether the covered person is entitled to recover damages pursuant to the uninsured motorist provision, that issue must be determined by arbitration.

The parties were heard before the court, on July 13, 1987, at which time an order compelling arbitration issued. This appeal ensued.

Middlesex claims that the trial court erred in determining that this case is subject to arbitration. Specifically, Middlesex argues that the plaintiff was not an insured under his father’s policy because he owned and operated his own vehicle and was therefore clearly excluded from coverage under that policy. Middlesex also claims that an agreement to arbitrate is a condition precedent to arbitration. We disagree.

We begin by noting that an order directing the parties to proceed with arbitration is a final judgment from which one can appeal. Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 (1953).

It is axiomatic that claims of coverage under an uninsured motorist policy are to be decided by arbitration. See Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 21, 453 A.2d 1158 (1983); Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 42, 434 A.2d 304 (1983). General Statutes § 38-175c (a) (1) (B) provides that all motor vehicle insurance policies that include an uninsured motorist provision issued on or after October 1, 1971, “which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. . . .’’Our Supreme Court has made it abundantly clear that the issue of coverage is to be decided through the arbitration process and not by the courts. Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 185, 520 A.2d 202 (1987) (a question concerning the extension of benefits to accidents involving underinsured vehicles is a coverage issue); Wilson v. Security Ins. Group, 199 Conn. 618, 621-23, 509 A.2d 467(1986) (whether policies could stack and whether benefits should be offset by workers’ compensation are coverage issues settled through arbitration); Oliva v. Aetna Casualty & Surety Co., supra (whether nonfulfillment of policy provisions concerning the timely presentation of a claim affects recovery is a coverage issue for the arbitrator to examine).

“In determining whether the question presented here involves a coverage dispute, we look for guidance to several previous decisions of our Supreme Court that interpreted the scope of § 38-175c.” Lane v. Aetna Casualty & Surety Co., 203 Conn. 258, 264, 524 A.2d 616 (1987). Middlesex argues that the present case differs from the cases listed above in that, although such arbitration is compulsory, the submission to such arbitration is predicated on a contractual agreement between the parties. This argument is incorrect as it is contrary to our Supreme Court’s broad interpretation of the statute combined with the expressed intent of the legislature. In Security Ins. Co. of Hartford v. DeLaurentis, supra, 186, our Supreme Court restated its holding in Oliva in holding that “this court interpreted [§ 38-175c (a) (1)] broadly and held that the expressed intent and effect of the statute ‘is to remove from the court and to transfer the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration.’ ” (Emphasis added.)

Although there are no Connecticut cases that determine whether the status of one claiming to be an insured relative of a named insured is a coverage question, we are guided by a similar case in California. In Van Tassel v. Superior Court of Fresno County, 12 Cal. 3d 624, 626, 526 P.2d 969, 116 Cal. Rptr. 505 (1974), the California Supreme Court held that jurisdictional facts, including whether the claimant mother of a deceased policyholder was entitled to the status as an insured, were subject to determination by an arbitrator. See also Hartford Accident & Indemnity Co. v. Jackson, 150 Cal. App. 3d 111, 114, 197 Cal. Rptr. 477 (1983). Likewise, we hold that whether the policy herein should be construed to extend benefits to the plaintiff is a question of coverage which must be submitted to arbitration.

There is no error.

In this opinion the other judges concurred.

       Section 52-410 (a) provides: “A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court ... to proceed with the arbitration in compliance with their agreement. ...”

       The defendant INA is not involved in this appeal.

       Middlesex’s policy provides: “If we and you, or your legal representative, don’t agree on your legal right to receive damages or the amount of damages, then upon the written request or either party, the disagreement will be settled by arbitration. . . .The decision in writing of any two arbitrators will be binding on you and us, subject to the terms of this insurance.”

       Middlesex’s policy further provides: “You, your, yourself means the person named on the declarations page and the person’s husband or wife if a resident of the same household.
      “You, your, yourself also means a member of the family .who is a resident of the household and who doesn’t own a car or whose spouse doesn’t own a car.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Joann Roman et al. v. City of Stamford
    (5912)
    Borden, Stoughton and Foti, Js.
    Argued May 18
    decision released September 13, 1988

      James V. Minor, assistant corporation counsel, with whom, on the brief, were Mary E. Sommer, corporation counsel, and Sherwood R. Spelke, for the appellant-appellee (defendant).

      Paul J. Pacifico, for the appellee-appellant (named plaintiff).
   Borden, J.

The defendant city of Stamford appeals from the judgment of the trial court rendered, after a jury trial, in favor of the named plaintiff, Joann Roman, in the amount of $25,000, and in favor of the plaintiff Madeline Roman, in the amount of $4690. The named plaintiff cross appeals from the trial court’s denial of her motion to set aside the jury verdict as being inadequate. The issue dispositive of both the appeal and the cross appeal is whether a municipality is liable in negligence where an automobile is struck by a falling tree located within the limits of the roadway, because a city charter provision directs the city’s park commission to provide for the care and control of all trees within the limits of public roads. We hold that it is not. We therefore find error on the appeal, and we need not reach the issue raised by the cross appeal.

The jury could reasonably have found the following facts. On October 25, 1980, the named plaintiff was a passenger in an automobile owned by the plaintiff Madeline Roman. As the automobile was traveling on Lakeside Drive in Stamford, a rotted pine tree fell from property owned by the defendant onto the roadway, crushing the roof of the automobile and injuring the named plaintiff. The tree was located within the roadway limits, but approximately seventeen feet from the edge of the paved portion of the road, in a heavily wooded area. No part of the tree overhung the traveled portion of the road.

The plaintiffs’ sole theory of liability on appeal, and the sole theory of liability that the trial court submitted to the jury, is “that there was a duty on the part of the city to maintain the trees and care for the trees.” The court instructed the jury that, by enacting § 595.1 of its charter, the defendant undertook a private duty to be responsible for the care and maintenance of trees within the limits of all public roads, and that its failure to carry out this duty with reasonable care would be a basis for tort liability to the plaintiffs.

The defendant claims that the charter provision in and of itself could not be the basis of liability in this case, and that the trial court therefore erred in denying its motion for a directed verdict and its motion to set aside the verdict. We agree.

Before we address the merits of the defendant’s claim, however, we must make clear what this case does not involve. It does not involve municipal liability based on nuisance, nor does it involve municipal liability based on the defective highway statute, General Statutes § 13a-149. Both of these theories of liability were contained in the plaintiffs’ complaint but were not submitted to the jury because of lack of evidence. See footnote 1, supra. Nor do the plaintiffs attempt to support the judgment on the theory that the defendant is liable in negligence because its conduct constituted the ministerial operation of a city park. See Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982).

Indeed, the plaintiffs and the trial court eschewed any claim of liability based on the distinction between governmental and ministerial duties. See id., 184. The trial court did not instruct the jury in accordance with that distinction, and the plaintiffs neither requested such an instruction nor excepted to the instructions as given. This case was decided in the trial court and argued on appeal solely upon the theory that, by enacting a charter provision pertaining to the care and maintenance of trees within the limits of all public roads, the defendant undertook a private duty to be responsible for such trees, and that its failure to carry out this duty with reasonable care was therefore actionable.

The plaintiffs and the trial court relied wholly upon Dyer v. Danbury, 85 Conn. 128, 81 A. 958 (1911), to support the theory that the city’s charter provision created an actionable private duty. In Dyer, our Supreme Court noted in dictum that “[w]here . . . some special power or privilege out of which grow public duties, primarily for the benefit of its own citizens, is granted to a municipality at its request, or where with its consent some special duty, not belonging to it under the general laws, is imposed upon it . . . the municipality is in a sense performing a private duty, and although no liability for damages is imposed by statute for negligence in the performance of such duties, the municipality is nevertheless liable for it.” Id., 131. For this proposition, Dyer relied upon Jones v. New Haven, 34 Conn. 1 (1867), where the court “held that the declaration stated a good cause of action, upon the ground that it therein appeared that the State had authorized the city as a special privilege to assume control of the ‘protection and preservation’ of the trees, of which the pruning and removal of the dead limbs was a part, and that the city had assumed the exclusive control of the trees, and the duty of protecting them, for the special benefit of its own inhabitants, and that the duty was a private, as distinguished from a governmental, one.” Dyer v. Danbury, supra, 132-33. Even if we assume, arguendo, that Dyer and Jones supported the view that a city charter provision in and of itself may create an actionable private duty as a matter of law, we conclude that this theory of municipal liability is no longer viable under Connecticut law.

The theoretical construct underlying Dyer and Jones is a doctrine of municipal assumption of liability. Dyer and Jones both teach that a municipality assumes a “private duty” where “some special power or privilege . . . is granted to a municipality at its request or where with its consent some special duty, not belonging to it under the general laws, is imposed upon it . . . .” (Emphasis added.) Dyer v. Danbury, supra, 131. It is clear that this construct, wherein special powers are granted to or imposed upon the municipality, harkens back to the days before the advent of the principle of home rule. Home rule legislation in Connecticut was first enacted in 1915, repealed in 1929, and revived in 1951. See Caulfield v. Noble, 178 Conn. 81, 85 n.2, 420 A.2d 1160 (1979). That legislation is now codified in General Statutes §§ 7-187 through 7-201. Home rule became a constitutional fixture in Connecticut by virtue of article tenth, § 1, which provides, in pertinent part, that “ ‘[a]fter July 1, 1969, the general assembly shall enact no special legislation relative to the powers, organization, terms of elective offices or form of government of any single town, city or borough . . . .’The purpose of home rule is twofold:‘to relieve the General Assembly of the burdensome task of handling and enacting special legislation of local municipal concern and to enable a municipality to draft and adopt a home rule charter or ordinance which shall constitute the organic law of the city .... [H]omerule legislation was enacted “to enable municipalities to conduct their own business and control their own affairs to the fullest possible extent in their own way . . . .’” Caulfield v. Noble, [supra, 86-87], quoting Fragley v. Phelan, 126 Cal. 383, 387, 58 P. 923 (1899).” Shelton v. Commissioner, 193 Conn. 506, 520-21, 479 A.2d 208 (1984).

The question necessarily presented by this case, then, is whether the Jones-Dyer construct of municipal liability continues to be a valid conceptualization of the doctrine of actionable private duties of a municipality. We hold that it does not.

Unlike the Dyer and Jones doctrine of assumption of municipal liability based upon a charter provision, the modern construct of municipal liability rests upon distinctly different considerations. Recently, in Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988), our Supreme Court examined the doctrine of municipal liability and immunity in Connecticut. The court reiterated its adherence to the “public duty doctrine,” which distinguishes between so-called public duties and so-called private duties. “ ‘ “[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed if at all in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it or to perform it properly, is an individual wrong, and may support an individual action for damages.” ’ ” Id., 166, quoting Shore v. Stoning-ton, 187 Conn. 147, 152, 444 A.2d 1379 (1982), quoting Leger v. Kelley, 142 Conn. 585, 589-90, 116 A.2d 429 (1955). “[T]he public duty doctrine provides the starting point of the analysis” with regard to the question of municipal liability. Gordon v. Bridgeport Housing Authority, supra, 170. Thus, “the court looks to see whether there is a public or private duty.” Id. This determination involves a question of law. Id.

“In the application of [the public duty doctrine], the problem is always to determine whether the [action] involved does create a duty to the individual. . . . [I]t appears that the test is this: If the duty imposed upon the public official . . . is of such a nature that the performance of it will affect an individual in a manner different in kind from the way it affects the public at large, the [action] is one which imposes upon the official a duty to the individual, and if the official is negligent in the performance of that duty he is liable to the individual.” Leger v. Kelley, supra, 590-91.

It is clear that this construct of an actionable private duty is very different from that articulated in Dyer and Jones. Under this modern construct, we conclude that the duty involved in the present case on the part of the city to maintain and care for the trees within the limits of all public roads does not constitute a private duty. The tree in question was one of at least 100,000 trees growing on approximately 250 miles of land bordering Stamford roads, for which the city’s park commission was responsible. The duty involved here was not of such a nature that its performance would likely affect any passengers on city roads in a manner different in kind from the way it affects the public at large. The duty to maintain and care for such trees is aimed principally at preserving the scenic and environmental values fostered by their continued viability, and only incidentally at the safety of travelers on the adjoining highway.

Moreover, the municipal duty regarding highway safety is encompassed and necessarily limited by the defective highway statute; General Statutes § 13a-149; and by the corresponding common law doctrine of liability for creation of a nuisance. See, e.g., Lukas v. New Haven, 184 Conn. 205, 209-10, 439 A.2d 949 (1981). It would be inconsistent with the limits of those bases of liability to find a private duty in the present case.

Once it is determined that the duty involved in the present case is a public duty, the issue of municipal liability may also turn upon whether the specific act in issue was ministerial or discretionary. Gordon v. Bridgeport Housing Authority, supra, 168-70, 181. “When municipalities are engaged in proprietary or ministerial activities, their actions are not considered governmental and, accordingly, they do not enjoy immunity from negligence resulting from such activities. Gauvin v. New Haven, supra, 184.” Couture v. Board of Education, 6 Conn. App. 309, 312, 505 A.2d 432 (1986); see also Brown v. Branford, 12 Conn. App. 106, 110-11, 529 A.2d 743 (1987). A “ministerial” act, as opposed to a “discretionary” act, “ ‘refers to [one] which is to be performed in a prescribed manner without the exercise of judgment or discretion.’ ” Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406 (1977), quoting Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 (1975). Municipal liability for the breach of a public duty attaches “only if the act complained of is a ministerial act or [if] one of the narrow exceptions to discretionary acts [outlined in Shore v. Stonington, supra,] applies.” Gordon v. Bridgeport Housing Authority, supra, 170.

A city charter provision, therefore, will not create liability as a matter of law. The judicial inquiry has been refined since the days of Jones and Dyer by requiring the trier of fact, where an alleged breach of a public duty is' involved, to assess the nature of the governmental action involved: “ ‘Whether the duty is directly imposed upon the city or permissive, that is, one which it voluntarily assumed, as in this case, does not change the character of the act or function. The duty in either case will be governmental if the nature and character of [the] act or function be such. Pope v. New Haven, [91 Conn. 79, 82, 99 A. 51 (1916)].’ Hannon v. Waterbury, 106 Conn. 13, 17, 136 A. 876 (1927).” Couture v. Board of Education, supra, 313. The existence, or nonexistence for that matter, of a charter provision on the subject is no longer determinative of the question of municipal liability where a public duty has allegedly been breached. “Whether the acts complained of . . . were governmental or ministerial is a factual question which depends upon the nature of the act complained of. . . . If the acts are considered governmental in character [by the trier of fact], then the defendant is not liable because the plaintiff has not alleged statutory liability and the defendant is otherwise immune.” (Citations omitted.) Gauvin v. New Haven, supra, 186.

Accordingly, the trial court erred in instructing the jury that the city charter provision, as a matter of law, created an actionable duty to the plaintiffs. Because the plaintiffs’ sole theory of liability, upon which the case was presented to the jury, did not constitute a valid ground for recovery, the court should have granted the defendant’s motion for a directed verdict and its motion to set aside the verdict.

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

The cross appeal is dismissed.

In this opinion the other judges concurred.

       The plaintiffs’ two count complaint alleged a defective highway under General Statutes § 13a-149 and a nuisance. The trial court charged these theories out of the case by instructing the jury not to consider them because there was no evidence to support them. The plaintiffs did not challenge in the trial court, and do not challenge on appeal, this action of the trial court.
      The court then instructed the jury that “we’re down to one and only one cause of action that you can consider in this case. And that’s the allegations throughout this complaint, and they’re interspersed between the first and second count, that there was a duty on the part of the city to maintain the trees and care for the trees. ’ ’ Because of our conclusion that the defendant was not liable to the plaintiffs under the legal theory submitted to the jury, we need not address the defendant’s other claim of error, namely, that the court erred in submitting the case to the jury on a theory of negligence because the complaint, even read broadly, did not embrace such a theory.

       Section 595.1 of the charter of the city of Stamford, adopted in 1977 and entitled “Powers and Duties of the Park Commission,” provides: “The Park Commission, subject to the approval of the Mayor, shall determine all park policies for the City of Stamford except as may be determined by the Board of Representatives and to that end it: (1) shall establish, construct and maintain all parks; (2) shall provide for the care and control of all trees and shrubs within the limits of any public road; (3) shall establish such rules as are necessary for the proper use and maintenance of the parks; and (4) may receive gifts of money or property in the name of the City of Stamford for park purposes.”

       Because our conclusion with respect to the defendant’s appeal requires that judgment be directed in favor of the defendant, we need not address the issue of the adequacy of the verdict raised in the named plaintiff’s cross appeal.

       We note that since Dyer was decided in 1911, neither it nor Jones has been applied by the Supreme Court or this court to impose liability on a municipality on the theory of a violation of a private duty on which the plaintiffs rely in the present case. See Comba v. Ridgefield, 177 Conn. 268, 271, 413 A.2d 859 (1979); Karnasiewicz v. New Britain, 131 Conn. 691, 694, 42 A.2d 32 (1945); Adley Express Co. v. New Haven, 129 Conn. 560, 564, 29 A.2d 841 (1943); Bacon v. Rocky Hill, 126 Conn. 402, 409, 11 A.2d 399 (1940); Hoffman v. Bristol, 113 Conn. 386, 391-92, 155 A. 499 (1931); Spitzer v. Waterbury, 113 Conn. 84, 87, 154 A. 157 (1931); Thelin v. Downs, 109 Conn. 662, 669, 145 A. 50 (1929); Rogers v. Meriden, 109 Conn. 324, 327-28, 146 A. 735 (1929); Vezina v. Hartford, 106 Conn. 378, 380-81, 138 A. 145 (1927); Riccio v. Plainville, 106 Conn. 61, 64-65, 136 A. 872 (1927); Gelford v. Hartford, 85 Conn. 689, 693, 84 A. 85 (1912); Wischenbart v. New Britain, 12 Conn. Sup. 321, 323 (1944); but see Water Commissioners v. Manchester, 87 Conn. 193, 201-202, 87 A. 870 (1913); Mitchell v. Meriden, 3 Conn. Cir. Ct. 498, 217 A.2d 487 (1965), cert. denied, 155 Conn. 718, 231 A.2d 282 (1967); Sturges v. East Haven, 9 Conn. Sup. 351 (1941).

       We note that prior to Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988), there appeared to be a distinction between an action in which liability was sought to be imposed directly upon the municipality; see, e.g., Couture v. Board of Education, 6 Conn. App. 309, 505 A.2d 432 (1986); and an action in which liability was sought to be imposed on a municipality based upon the negligent conduct of a municipal officer or employee for which the municipality may be derivatively liable pursuant to General Statutes § 7-465. See, e.g., Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982); Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979). The Gordon court, however, in examining the liability of a municipality did not appear to distinguish between a municipality’s direct liability, and its derivative liability for the actions of its officers and employees.


author: Spallone, J.

text:
    State of Connecticut v. Rufus Smith
    (6067)
    Dupont, C. J., Borden and Spallone, Js.
    Argued April 5
    decision released September 13, 1988

      Ernest J. Diette, Jr., special public defender, with whom, on the brief, was Barry B. Johnson-Fay, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom, on the brief, was Mary Galvin, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of manslaughter in the first degree in violation of General Statutes § 53a-55.

The defendant claims that the trial court erred (1) by refusing to caution the jury to scrutinize the testimony of a key state’s witness because the witness was an accomplice to the crime charged and had a motive to testify falsely, and (2) in its denial of the defendant’s motion to suppress evidence seized pursuant to a search warrant. We find no error.

The jury could reasonably have found the following facts. On the morning of March 31, 1986, the defendant was visiting his cousin, Robert Tate, at Tate’s house in New Haven. At approximately 1 p.m., the two men left Tate’s house to make a heroin purchase. Tate was driving his automobile and the defendant was seated in the front passenger seat. After two unsuccessful attempts to purchase the narcotics in the immediate neighborhood, Tate suggested they try a house located at the corner of James and Wolcott Streets in New Haven. As they approached this intersection, the defendant spotted the victim, Alonzo Jenkins, standing in front of the house that was their point of destination. The defendant instructed Tate to pull over and he thereupon exited the vehicle to confront Jenkins. After Tate exited the vehicle, he overheard the defendant tell Jenkins that he was armed with a gun.

Tate turned away from the two men and headed toward the front porch of the house, still intent on purchasing heroin. As he approached the stairs, he heard a shot. He turned and saw Jenkins and the defendant still talking. The defendant was holding a long silver gun at his side with the barrel pointed downward. Tate yelled at the defendant, fearing the gunshot would arouse suspicion and prevent him from making his drug purchase. Tate again began ascending the porch steps and stopped when he heard a second shot. When he turned back this time, he saw only the defendant, who shouted, “Let’s go,” and hurried toward Tate’s automobile. Tate returned to the vehicle and the two men quickly left the area.

While Tate was driving from the scene, the defendant stated that he had shot the victim in the leg, and warned that if the victim reported the shooting he would go back and kill him. The two proceeded to the area of Howard and Spring Streets, where they made another unsuccessful attempt to buy heroin. As they were leaving, they noticed a police officer on a motorcycle watching Tate’s car. With Tate still driving, they attempted to elude the officer. Tate eventually pulled the vehicle over to the curb at the corner of Putnam and Dewitt Streets, where the defendant left the car and fled through nearby backyards. At that point, the defendant was wearing grey khaki pants and a green checked sweater.

Additional officers soon arrived at the scene, questioned Tate and brought him to the police station. After initially telling the officers that he only knew his passenger by the name “Jamie,” Tate informed them that the passenger was, in fact, his cousin, the defendant, and identified him from a photograph. A fingerprint was discovered on the passenger side roof of Tate’s car, which was later matched to the defendant’s right ring finger.

The victim was found at the scene of the shooting, gasping for air and bleeding from a stomach wound. He was taken to Yale-New Haven Hospital where he was pronounced dead. It was ascertained at the hospital that the victim died of a gun shot wound.

The police secured a warrant for the defendant’s arrest but were unable to effectuate an arrest. On April 2, 1986, two days after the shooting, Detectives Leroy Dease and Joseph Reynolds applied to the Superior Court for a search and seizure warrant. They sought to enter the defendant’s apartment to arrest him, and to search for the long, silver handgun, the gray khaki pants and the checked sweater. The warrant was executed the following day, at which time the officers seized one box of .38 caliber special bullets, two “wad cutters” and two pistol grips.

The defendant was eventually apprehended and charged with murder. At trial, the jury acquitted the defendant of the charge of murder, but found him guilty of the lesser included offense of manslaughter in the first degree.

I

The defendant’s first claim of error involves the trial court’s refusal to instruct the jury in accordance with the defendant’s request to charge. The defendant claims that, on the basis of Tate’s testimony elicited at trial, he was entitled to have the jury instructed to examine Tate’s credibility closely on the grounds that Tate was an accomplice to the crime committed and also because Tate had criminal charges stemming from that incident pending against him. We disagree.

Tate had been initially charged with murder but, upon further investigation, the state reduced the charge to one of hindering prosecution. On direct examination, Tate acknowledged that this charge was still pending and testified that he had not been made any promises by the state regarding that charge in exchange for his testimony against the defendant. Tate was questioned closely on this point during cross-examination and the defendant focused on both the reduction of the initial charge and Tate’s possible hopes for leniency. On redirect and recross-examination, Tate reiterated that there was no bargain struck to reduce the initial charge nor any understanding regarding the disposition of the hindering prosecution charge.

We address first the claim that Tate’s status as an accomplice to the shooting should have been brought to the jury’s attention.

“ ‘The well-settled rule in this state regarding the testimony of an accomplice is that “where it is warranted by the evidence, it is the court’s duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if he assisted or aided or abetted in the commission, of the offense with which the defendant is charged.” (Emphasis in original.) State v. Ferrara, 176 Conn. 508, 512, 408 A.2d 265 (1979); State v. Colton, 174 Conn. 135, 140, 384 A.2d 343 (1977).’ State v. Shindell, 195 Conn. 128, 142, 486 A.2d 637 (1985).” State v. Edwards, 201 Conn. 125, 156, 513 A.2d 669 (1986). We conclude that under the facts and circumstances of this case, the evidence did not warrant the defendant’s characterization of Tate as an accomplice.

At best, Tate’s testimony indicated that he drove the defendant to the scene of the shooting with the intention of making a drug purchase, that he was nearby when the shooting occurred and that he drove the defendant away from the scene after the shooting. These facts, in comparison with the underlying circumstances of those cases where an accomplice charge was warranted, reveals the deficiencies in the defendant’s argument. In State v. Edwards, supra, the witness had already pleaded guilty to being an accomplice to the defendant’s crime; in State v. Colton, supra, the witness testified that he had committed arson at the defendant’s request and had pleaded guilty to charges brought against him stemming from that act; and in State v. Shindell, supra, the witness had testified as to his part in an arson conspiracy with the defendant and acknowledged that various charges were then pending against him as a result of that conspiracy.

In State v. Ferrara, supra, our Supreme Court found no error in the giving of an accomplice charge “even though [the witness] was not charged with aiding or abetting and did not admit that he committed the offense with which he was charged . . . .” Id., 512-13. The Ferrara court based its decision, however, on the following evidence adduced at the trial: that the homicide victim had stabbed the witness’ brother moments before his own death and, therefore, the witness had a reason to attack the victim himself; that the victim, the witness and the defendant were at the scene of the crime together; that the witness had the victim’s blood on his clothing; that the witness had threatened to kill the victim; and that the witness was seen running away from the scene of the crime. Id., 512.

The facts of the present case reveal neither an admission by the witness of his complicity in the shooting nor evidence as forceful as that adduced in Ferrara to warrant the requested instruction. See State v. George, 194 Conn. 361, 375, 481 A.2d 1068 (1984). The trial court did not err in determining that the evidence did not warrant the charge.

The defendant’s second claim, that a special cautionary instruction regarding Tate’s motive, interest or bias should have been given, is also without merit. The defendant relies on State v. Cooper, 182 Conn. 207, 438 A.2d 418 (1980), wherein the court held that “the [trial] court should have instructed the jury in substantial compliance with the defendant’s request to charge to determine the credibility of [the] witness in the light of any motive for testifying falsely and inculpating the accused.” Id., 211-12. The court then “emphasize[d], however, that in order for the request to be applicable to the issues in the case, there must be evidence . . . to support the defendant’s assertion that the complaining witness was the culpable party.” (Emphasis added.) Id., 212. Furthermore, the court stated that “the defendant is entitled to such an instruction only where it is requested with regard to a complaining witness who could himself be subject to prosecution depending upon the veracity of his version of the particular criminal transaction involved.” Id., 212 n.5. Cooper’s limited holding was recently reaffirmed in State v. George, supra, 374.

Because Tate was not a complaining witness, the defendant was not entitled to the requested charge and the trial court did not abuse its discretion by refusing to so instruct the jury.

II

We need not discuss at length the defendant’s claim that the trial court erred in denying the defendant’s motion to suppress evidence which he alleged was seized pursuant to an improperly issued search warrant. The defendant challenges the warrant on the grounds that the information contained in the application and accompanying affidavit was insufficient to support a finding of probable cause as required by State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). Although we agree with the defendant that the two-prong Aguilar-Spinelli test which was reaffirmed in Kimbro is applicable to the probable cause determination at hand, we disagree with his argument that the requirements were not sufficiently met.

“ ‘The Aguilar-Spinelli test for reviewing a magistrate’s finding of probable cause consists of two prongs: “ ‘The issuing [judge] must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.’ ” State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984), [quoting] State v. Jackson, 162 Conn. 440, 446, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972).’ State v. Morrill, 205 Conn. 560, 566, 534 A.2d 1165 (1987).” State v. Tulli, 14 Conn. App. 356, 358-59, 541 A.2d 515 (1988).

The defendant argues that the affidavit submitted by Dease and Reynolds was inadequate in that it did not address the veracity and the basis of knowledge of those individuals who had provided information to the detectives. The defendant then offers as support for his argument a myriad of cases concerning the use of information supplied by confidential informants in a search warrant application.

The defendant’s claim fails in that none of the information contained in the supporting affidavit was obtained from a confidential informant. The detectives investigating the killing of Jenkins compiled their information from eyewitnesses to the crime, from the defendant’s wife, from other police officers and from one other individual, named in the affidavit, who came forward to report having recently seen the defendant. The short answer to this issue is that when dealing with information obtained from a victim, a witness or a fellow police officer, no special showing of reliability is required. See, e.g., Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, reh. denied, 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970); Jaben v. United States, 381 U.S. 214, 85 S. Ct. 1365, 14 L. Ed. 2d 345 (1965); State v. Telesca, 199 Conn. 591, 603, 508 A.2d 1367 (1986); State v. Amarillo, 198 Conn. 285, 310, 503 A.2d 146 (1986); State v. Daley, 189 Conn. 717, 723-24, 458 A.2d 1147 (1983). “Courts are much more concerned with veracity when the source of the information is an informant from the criminal milieu rather than an average citizen who has found himself in the position of a crime victim or witness. . . . Basis of knowledge is likewise less of a problem in the victim-witness cases, for by definition the victim or witness is reporting first-hand knowledge.” 1 W. LaFave, Search and Seizure — A Treatise on the Fourth Amendment § 3.4, pp. 586-87; id., § 3.5 (information held by other police).

Applying the correct test to the warrant application presented to the trial court, we cannot say that it erred in finding the warrant contained sufficient information to establish probable cause. “Each case must be tested on its own when determining whether sufficient indicia of facts and circumstances exist to support the judge’s finding of probable cause and his’ultimate decision to issue the warrant . . . and that finding of probable cause ‘should be paid great deference by reviewing courts.’ State v. Just, [185 Conn. 339, 369, 441 A.2d 98(1981)] . . . (Citations omitted.) State v. Tulli, supra, 362.

There is no error.

In this opinion the other judges concurred.

       The trial court was also aware of the fact that the state’s attorney’s office believed that the evidence was insufficient to prosecute Tate as an accomplice to the crime. During the trial, outside of the presence of the jury, the prosecuting attorney stated that “there was no deal for the reduction of the charge [initially brought against Tate]. That was done unilaterally by the prosecution, because at best, that’s the charge that fit, at best.”

       The court did instruct the jury concerning the general credibility of witnesses and cautioned them to “consider any possible bias or prejudice that [a witness] may have whether for or against the state, or for or against the accused [and his] or her lack of interest, or interest of whatever sort, in the outcome of the trial.” The court also gave a specific instruction as to Tate’s credibility with regard to his previous felony convictions. Under the specific facts of this case, we find these instructions to be adequate.

        Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Under article first, § 7, of our state constitution, a finding of probable cause must conform to the Aguilar-Spinelli two-prong analysis regardless of whether it is a warrantless search; State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985); or a search made pursuant to a warrant. State v. Morrill, 205 Conn. 560, 565-66, 534 A.2d 1165 (1987).

       The defendant’s confusion regarding the correct standard to be applied to a review of the affidavit may stem from the detectives’ failure to name each of the eyewitnesses who provided them with information. Although we can easily state that the failure to name each witness did not transform them into “confidential informants,” we do acknowledge that under some circumstances this failure may require a showing closer to that mandated for confidential informants. See 1W. LaFave, Search and Seizure — A Treatise on the Fourth Amendment § 3.4 (a), pp. 722-25. We conclude that in this case, because the affidavit stated that the witnesses had provided sworn statements to the detectives and that their information had been successfully used to obtain a warrant for the defendant’s arrest, the reviewing magistrate had sufficient indicia to conclude that the witnesses were not anonymous and that their statements were reliable.


author: Bieluch, J.

text:
    David Shortt v. New Milford Police Department
    (5957)
    Bieluch, O’Connell and Stoughton, Js.
    Argued March 16
    decision released September 13, 1988

      Janet Bond Arterton, with whom, on the brief, was Nancy E. Fey, for the appellant (plaintiff).

      Michael S. McKenna, with whom were Jeffrey B. Sienkiewicz, and, on the brief, Richard S. Cody, for the appellee (defendant).
   Bieluch, J.

This is an appeal by the plaintiff from a judgment of the trial court dismissing an action brought against his employer under General Statutes § 31-72 for nonpayment of wages. The sole question before us is whether the trial court erred in finding a lack of subject matter jurisdiction for the plaintiffs failure to exhaust available grievance procedures under a collective bargaining agreement. We find error.

The following facts are relevant to this appeal. The plaintiff was hired by the defendant New Milford police department as a police officer. After completing his training, he began working as a probationary patrol officer on July 23, 1984. On August 23, 1984, during the course of a required medical examination, a physician discovered that the plaintiff had certain “extra heartbeats.” The plaintiff, however, continued to work as a police officer. He was later examined by several physicians who performed various tests and monitored his heart function to determine the extent and seriousness of his condition. During this time, the plaintiff continued to work and to receive his salary as a full-time employee of the defendant.

On October 12, 1984, the plaintiff was hospitalized for further medical examination and tests. He received sick pay for the three days he was confined to the hospital. When he returned to work on October 15, 1984, the plaintiff was permitted to carry his police badge and was subject to the orders of his superiors in the police department, but he was not allowed to act in his full capacity as an officer. He was not permitted to seek other employment, even though other jobs were available for which he was qualified. The plaintiff considered himself a badge carrying police officer, but received no wages until he was permitted to return to full active duty on April 17, 1985, after he had executed a workers’ compensation waiver of liability for his preexisting condition.

As a member of the International Brotherhood of Police Officers, Local No. 361 (union), and subject to its collective bargaining agreement with the defendant, the plaintiff, on November 15, 1984, filed a grievance concerning the defendant’s failure to pay his wages for the previous month. On November 19, 1984, the first step of the plaintiffs grievance proceeding was denied because the defendant considered him to be on “indefinite sick leave without pay.” Shortly thereafter, counsel for both parties began to negotiate a possible settlement and no further steps were taken under the grievance procedure of the collective bargaining agreement. When no agreement was reached, the plaintiff brought suit under General Statutes § 31-72 to collect wages allegedly due him for the period of six months between October 15, 1984, and April 17, 1985. This action was commenced on October 10, 1986, just as the two year statute of limitations; General Statutes § 52-596; was about to expire.

On December 18, 1986, the defendant moved to dismiss this civil action “for the reason that the court lacks jurisdiction over the subject matter of the dispute.” An affidavit attached to the defendant’s motion to dismiss alleged that the plaintiff failed to take further steps in the “administrative” grievance process set forth in Article XXIII of the collective bargaining agreement between the town of New Milford and the police union. The defendant’s motion was granted by the trial court on March 13, 1987. This appeal followed.

The single issue on appeal is whether the trial court properly dismissed the plaintiff’s civil action for his failure to exhaust all grievance proceedings set forth in the police union’s collective bargaining agreement with the town. We hold that the court’s dismissal of the plaintiff’s civil action, brought pursuant to General Statutes § 31-72, was improper and, accordingly, we find error.

In its brief memorandum of decision, the court, after referring to Article XXIII of the collective bargaining agreement, held: “It is the conclusion of this court that the contract terms mandate that the three steps of the contract be completed before [the] plaintiff may invoke applicable law, i.e., Title 31, Part II of the Connecticut General Statutes. The contract provides an adequate administrative remedy that must be exhausted before [the] plaintiff may resort to relief in court. Fortunato v. Board of Public Safety, 36 Conn. Sup. 637, 640 [423 A.2d 909 (1980)].” (Emphasis in original.)

“It is well settled that a jurisdictional prerequisite to seeking relief in a court of law is that all available administrative remedies must have been exhausted. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556, 529 A.2d 666 (1987); Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 1230 (1987); Doe v. Heintz, 204 Conn. 17, 34, 526 A.2d 1318 (1987).” Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 4, 544 A.2d 152 (1988). Under limited circumstances, certain exceptions to this principle apply. See, e.g., id.; Planning & Zoning Commission v. Craft, 12 Conn. App. 90, 94, 529 A.2d 1328, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987). Generally, however, litigants in administrative matters who have not exhausted all administrative remedies available to them are foreclosed from relief in a court of law. It was under this principle of law that the trial court dismissed the plaintiffs action. In doing so, the court erred.

The trial court’s reliance on Fortunato v. Board of Public Safety, supra, as dispositive of the motion to dismiss the plaintiffs wage action was misplaced. Fortunato was not an action to collect wages allegedly unpaid. Rather, it was a mandamus action brought to require the defendant board to reinstate the police officer as a police lieutenant. The plaintiff in Fortunato had previously initiated the grievance procedure set forth in the police union’s collective bargaining agreement with the city of Meriden. Rather than complete the grievance schedule, he chose to seek a writ of mandamus, claiming that he had been denied due process of law and his rights under the provisions of the city charter. On appeal from the dismissal of the mandamus action, the former Appellate Session of the Superior Court ruled that the collective bargaining agreement controlled the procedure for reinstatement of the police officer under the terms of General Statutes § 7-474 (f). Id., 641. This statute provides that “[w]here there is a conflict between any agreement reached by a municipal employer and an employee organization and approved in accordance with the provisions of sections 7-467 to 7-477, inclusive, on matters appropriate to collective bargaining, as defined in said sections, and any charter ... or any general statute directly regulating the hours of work of policemen or firemen, or any general statute providing for the method or manner of covering or removing employees from coverage under the Connecticut municipal employees’ retirement system or under the policemen or firemen survivors’ benefit fund, the terms of such agreement shall prevail . . . . ” (Emphasis added.)

General Statutes § 7-468 (a) provides that “[e]mployees shall have, and shall be protected in the exercise of, the right of self-organization, to form, join or assist any employee organization, to bargain collectively through representatives of their own choosing on questions of wages, hours and other conditions of employment . . . .” (Emphasis added.) “ ‘Wages’ means compensation for labor or services rendered by an employee . . . . ” General Statutes § 31-71a (3). A basic right of an employee is the payment of wages for services rendered. “Wages are no less earned when the employee holds himself in readiness to perform than when he actually performs. General Motors Corporation v. Unemployment Compensation Commission, 331 Mich. 303, 312, 49 N.W.2d 305 [1951].” Geremia v. Administrator, 146 Conn. 264, 270, 150 A.2d 203 (1959).

The collection of wages, however, is not a matter “appropriate to collective bargaining.” See General Statutes § 7-474 (f). Fair wages and their prompt payment are matters of public policy and general welfare and are guaranteed by law. See General Statutes §§ 31-70 through 31-76k. The provisions of General Statutes § 31-72 govern the collection of wages for services rendered. The employee’s rights under these statutory provisions are not- preempted by collective bargaining agreements.

The plaintiff’s statutory right, under General Statutes § 31-72, to bring a separate civil action to collect wages allegedly due him was not foreclosed by his prior submission of a grievance for nonpayment under the union’s collective bargaining agreement. In originally submitting his claim to the grievance procedure of the union contract, the plaintiff sought to vindicate his contractual right to collect the unpaid wages. By contrast, in bringing an action pursuant to General Statutes § 31-72 immediately before the running of the two year statute of limitations fixed by General Statutes § 52-596, the plaintiff was asserting an independent statutory right, accorded by this state, to collect twice the full amount of such wages, with costs and reasonable attorney’s fees. “The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 50, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974).

The decision of the United States Supreme Court in Alexander v. Gardner-Denver Co., supra, illustrates the clear error in the trial court’s decision in this case. The plaintiff in Alexander, a black man, filed a grievance under a collective bargaining agreement following his discharge from employment. The agreement contained a nondiscrimination clause. Prior to an arbitration hearing on the plaintiff’s claim under the collective bargaining agreement, the plaintiff filed a charge of racial discrimination with the Colorado Civil Rights Commission which referred the matter to the Equal Employment Opportunity Commission (EEOC). Thereafter, the arbitrator, without referring to the plaintiff’s claim of discrimination, found that the plaintiff had been discharged for cause. Following a determination by the EEOC that there was not reasonable cause to believe that Title VII of the Civil Rights Act of 1964 had been violated, the plaintiff instituted an action under Title VII to the United States District Court for the District of Colorado. The District Court granted summary judgment against the plaintiff and dismissed the action on the ground that having voluntarily elected to pursue his grievance to final arbitration under the nondiscrimination clause of the collective bargaining agreement, the plaintiff was bound by the decision of the arbitrator and thereby precluded from suing his employer under Title VII. The Court of Appeals for the Tenth Circuit affirmed. On certiorari, the United States Supreme Court reversed. A unanimous court held that the plaintiffs statutory right under Title VII to a trial de novo on his claim of discharge due to racial discrimination was not foreclosed by prior submission of his grievance pursuant to the collective bargaining agreement. As the court so aptly stated, “a contractual right to submit a claim to arbitration is not displaced simply because Congress also has provided a statutory right against discrimination. Both rights have legally independent origins and are equally available to the aggrieved employee.” Id., 52. We find this reasoning applicable here.

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

In this opinion the other judges concurred.

       General Statutes § 31-72 provides in relevant part: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action. At the request of any worker who has failed to receive payment under the provisions of said sections, the labor commissioner may take an assignment of such wage claim in trust for the assigning employee and may bring any legal action necessary to recover the amount provided by this section, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court.”

       Article XXIII of the collective bargaining agreement provides: “Grievance Procedure and Arbitration
      “Grievances arising out of matters covered by this Agreement or conditions of work or applicable law arising out of employee-employer relations will be processed in the following manner:

        “Step 1.
      “An employee or the IBPO having a grievance or complaint, shall take such grievance or complaint to the Chief of Police in writing or, in his absence, the officer in charge. The Chief of Police or the officer in charge, in his absence, shall answer the grievance within five (5) working days from receipt of the grievance in writing.
      “Step 2.
      “If the grievant or the Union are not satisfied with the decision rendered by the Chief of Police, such grievance shall be submitted in writing not less than seven (7) days prior to the next regularly scheduled meeting date of the Commission. The Board of Police Commissioners shall consider the matter at the next monthly meeting or a special meeting and render its decision in writing within seven (7) days after its meeting.
      “Step 3.
      “If the grievant or the Union are not satisfied with the decision rendered by the Board of Police Commissioners, he may, within fifteen (15) days, submit the matter to the State Board of Mediation and Arbitration for arbitration. The decision of the Arbitration Panel shall be final and binding on both parties. Said Board shall not have the authority to change, modify, or otherwise amend this Agreement.”

       “[General Statutes] Sec. 52-596. actions for payment of remuneration for EMPLOYMENT. No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues, except that this limitation shall be tolled upon the filing with the labor commissioner of a complaint of failure to pay wages pursuant to the provisions of chapter 558.”

       We note that the “affidavit” attached to the defendant’s motion to dismiss was not properly executed under oath. Rather, it was merely “acknowledged [by the signer] to be his free act and deed.” See General Statutes §§ 1-22 to 1-25 governing the form and procedure involved in the use of oaths and §§ 1-28 to 1-41 concerning acknowledgments; see also State v. Grant, 176 Conn. 17, 23-24, 404 A.2d 873 (1978).


author: O’Connell, J.

text:
    James W. Turner v. Wendell L. Hobson et al.
    (6076)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued April 12
    decision released September 13, 1988

      Joshua A. Winnick, with whom was John J. Resnick, for the appellant (plaintiff).

      Gary B. O’Connor, for the appellees (defendants).
   O’Connell, J.

The plaintiff appeals from the trial court’s grant of the defendants’ motion for summary judgment, in an action for specific performance of a real estate sales contract. The plaintiff contends that the trial court erred (1) in failing to apply the legal presumption that, in the absence of express terms, the balance due on the contract is payable in cash at the time of closing, and (2) in finding that no issue of material fact existed. We find no error.

The following facts are relevant to the disposition of this appeal. On November 27, 1985, the plaintiff buyer and the defendant sellers entered into a purchase and sale agreement for a ninety-four acre parcel of land in Watertown. The purchase price was listed in the agreement as $515,000 if the closing occurred on or before October 1, 1986, and $535,000 if the closing took place between October 1, 1986, and July 2, 1987. The plaintiff buyer deposited $1000 with the defendant sellers’ real estate broker, and was required to deposit an additional 10 percent of the purchase price two months prior to closing. The agreement further provided that “financing [was] to be mutually agreed upon between buyer and seller.” No further terms regarding financing were contained in the contract.

By letter dated May 22, 1986, the defendant sellers proposed financing terms to the plaintiff buyer. The plaintiff rejected these terms in writing, and indicated that he intended to pay cash for the property at the time of closing. The defendant sellers then notified the plaintiff buyer that they were terminating the contract. The plaintiff thereafter commenced this action seeking specific performance of the purchase and sale agreement. The trial court granted the- defendants’ motion for summary judgment, holding that the purchase and sale agreement did not satisfy the statute of frauds.

The plaintiff first claims that the trial court erred in failing to apply a presumption that the balance due on a real estate contract would be paid in cash at closing, when the parties had failed to agree upon terms of payment at the time the contract was signed. Such presumption, if applied here, would allow the contract to be specifically enforced. We agree with the trial court’s refusal to apply this presumption.

“In order to satisfy the statute of frauds, an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof, or from a reference contained therein to some other writing or thing certain; and these essentials must at least consist of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement. Montanaro v. Pandolfini, 148 Conn. 153, 157, 168 A.2d 550 (1961).” Carta v. Marino, 13 Conn. App. 677, 680, 538 A.2d 1091 (1988). The statute of frauds does not require that the memorandum constitute the contract itself; all that is required is that the memorandum furnish with reasonable certainty, evidence that the parties have come to a complete agreement. Lynch v. Davis, 181 Conn. 434, 438-39, 435 A.2d 977 (1980).

The resolution of this appeal hinges upon the characterization of the facts, because the presumption that payment in cash was intended arises only “where no method of payment has in fact been agreed upon by the parties. The presumption rests rather upon the failure to agree than upon the failure to state what was agreed.” Santoro v. Mack, 108 Conn. 683, 689, 145 A. 273 (1929).

We uphold the trial court’s ruling. First, an examination of the agreement discloses that it appears that the parties contemplated a purchase money mortgage as the method of payment of at least part of the balance. The parties drew two lines through the blank spaces in the contract adjacent to the words “cash or certified check at time of closing.” Such a marking, in conjunction with the addition to the printed form of the words “financing to be mutually agreed upon between buyer and seller,” indicates that the parties did not contemplate cash payment of the balance due. If the balance were to be paid in cash or by a mortgage to be held by a third party, there would be no need to provide for a mutual agreement between the buyer and seller as to financing. The plaintiff cannot now seek to override the expressed terms agreed to by the parties to facilitate his own ends. Cf. Botticello v. Stefanovicz, 177 Conn. 22, 31, 411 A.2d 16 (1979).

In stating that financing was to be mutually agreed upon by the parties, but failing to state in the memorandum what the terms of the financing were, the contract lacked essential terms and was therefore unenforceable. “A memorandum is insufficient if it fails to specify the terms of payment of any part of the purchase price . . . .” Lynch v. Davis, supra, 439 and cases cited therein.

Since cash would not be paid at closing, and since the parties contemplated a purchase money mortgage, the contract precludes the operation of the legal presumption of cash payment. That presumption only arises when no method of payment is prescribed by the parties. Here, the method of payment is known but the precise terms of that method of payment were left to a future agreement. When the terms of a purchase money mortgage are not known, the statute of frauds prevents enforcement of the contract. Lynch v. Davis, supra, 438-39; Carta v. Marino, supra. Consequently, absent the essential element of terms of payment, the agreement was not enforceable under the statute of frauds.

In his second claim of error, the plaintiff contends that the trial court erred in granting the defendants’ motion for summary judgment, because a genuine issue of material fact existed which precluded the trial court’s action. We will not review this claim, as the plaintiff failed to raise it during the trial court proceedings on the motion. In fact, the plaintiff not only failed to suggest that there was a genuine issue of material fact, but filed his own cross motion for summary judgment stating therein that “there is no material fact outstanding.” We will not review claims raised for the first time on appeal. State v. Reddick, 15 Conn. App. 342, 354-55, 545 A.2d 1109 (1988).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-550 provides in pertinent part: “statute OF frauds; written agreement or memorandum, (a) No civil action maybe maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (4) upon any agreement for the sale of real property or any interest in or concerning real property. . . . ”

       The plaintiff’s cross motion for summary judgment was denied by the trial court in the same memorandum of decision that granted the defendants’ motion.