author: Spear, J.

text:
    State of Connecticut v. Scott Larkin
    (12709)
    Schaller, Spear and Hennessy, Js.
    Argued February 16
    decision released June 6, 1995

      Frederick A. Busconi, pro hac vice, with whom, on the brief, was Anne Pappas Phillips, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Mark A. Stabile, supervisory assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from a judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l), sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) refused to order the disclosure of the victim’s diary until after the trial had commenced, (2) failed to make all of the victim’s medical and psychiatric records available to him, (3) admitted evidence of prior bad acts and (4) denied his motion for judgment of acquittal that claimed that the conviction of both first and second degree sexual assault constituted double jeopardy.

The jury reasonably could have found the following facts. On April 5, 1991, the defendant, a twenty year old male, met the victim, a twelve year old girl, at a highway picnic area across the street from the victim’s house. He gave the victim a beer and drove her to a wooded area where they engaged in sexual intercourse and other sexual acts. The victim told several people about her sexual encounter with the defendant, all of whom testified at trial. The victim’s parents, upon learning about the incident from reading the victim’s diary, reported the incident to the state police. Additional facts will be discussed as the context requires.

I

The defendant first claims that the late disclosure of the victim’s diary violated his federal and state constitutional rights to a fair trial, confrontation and due process. He argues that his late receipt of the material information contained in the diary prevented him from adequately preparing his defense, thereby depriving him of a fair trial. We disagree.

Prior to trial, the defendant moved to compel the state to disclose all exculpatory evidence pursuant to Practice Book § 741. In response, the state made the contents of its file, except the victim’s diary and medical and psychiatric records, available for the defendant’s review. The defendant thereafter moved to compel disclosure of the diary, but the trial court, after reviewing the documents, ordered the release of only certain pages. The defendant’s subsequent motions for the state to disclose the entire diary were all denied. It was not until the second day of the victim’s cross-examination at trial that the court allowed the defendant access to the victim’s entire diary.

It is well established that “ ‘[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). . . .” (Citation omitted.)State v. Daugaard, 231 Conn. 195, 205, 647 A.2d 342 (1994). In order to prevail on a Brady claim, the defendant must show “(a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.” (Internal quotation marks omitted.) Id.; State v. Shannon, 212 Conn. 387, 406, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989). A defendant does not satisfy this three prong test by showing only a failure to disclose.

Our Supreme Court has further explained that evidence is material only “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. Shannon, supra, 212 Conn. 406-407. “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense.” (Internal quotation marks omitted.) State v. Daugaard, supra, 231 Conn. 206.

Where, as here, the evidence was disclosed to the defendant at trial, the burden is on the defendant to “establish that he was prejudiced by the state’s failure to make the information available to him at an earlier time.” Id.

Our analysis of whether the defendant was prejudiced by the late disclosure focuses on the effect of the timing of the disclosure on the jury’s verdict. The defendant makes the sweeping claim that the timing of the disclosure affected his entire trial strategy. He fails, however, to specify in what way he was prejudiced by not having been given the diary prior to trial. On the contrary, the diary was disclosed soon enough for it to be of use to the defendant during his cross-examination of the victim. In addition, the trial court granted the defendant’s request for a continuance to allow him to prepare for his cross-examination of the victim. In State v. Reddick, 197 Conn. 115, 122, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986), our Supreme Court held that the defendant’s bald assertion that he was deprived of the opportunity to make an adequate investigation failed to establish prejudice. As in Reddick, the defendant here has asserted prejudice but failed to sustain his burden of showing such. Therefore, the Brady claim must fail.

II

The defendant next claims that the trial court improperly refused to make all of the victim’s medical and psychiatric records available to the defense. He argues that he was entitled to review the records in their entirety because they went to the victim’s mental and physical state as well as to her motive, bias and credibility. He further argues that an in camera review of the records does not adequately protect his right to prepare his defense, and suggests that we establish a procedure whereby defense counsel and the state would initially review all such records to determine what is exculpatory and material. The court would then review the records to determine which should be admitted. The defendant alternatively claims that the release of parts of the privileged records forty-three days prior to trial violated the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.

We note that the defendant is not challenging the trial court’s exercise of discretion in determining that certain records were not material to the defendant’s impeachment of the victim. Rather, he is challenging the constitutionality of the in camera review procedure. Both our Supreme Court and this court have addressed this issue and balanced the competing interests of the victim’s privacy and the defendant’s constitutional right to confrontation. Both courts have held that an in camera review of privileged records does not violate a defendant’s constitutional rights. See State v. Harris, 227 Conn. 751, 631 A.2d 309 (1993); State v. Hufford, 205 Conn. 386, 533 A.2d 866 (1987); State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984); State v. Leonard, 31 Conn. App. 178, 623 A.2d 1052 (1993). We, therefore, reject the defendant’s claim that he is entitled to review the records.

The defendant also claims that the trial court’s release of the pertinent parts of the privileged records forty-three days prior to the commencement of the trial violated his constitutional rights under the sixth and fourteenth amendments to the United States constitution. Because the records were disclosed to the defendant, he can complain only of the timing of the disclosure. Under these circumstances, the defendant has the burden of proving that he was prejudiced by such timing. State v. Walker, 214 Conn. 122, 126-27, 571 A.2d 686 (1990). He has failed to do so.

The defendant does not cite any specific ways in which his trial preparation was hindered by the timing of the disclosure. In addition, we note that the defendant did not seek a continuance from the trial court. “ ‘On this record, the defendant’s claims of prejudice are purely speculative and cannot furnish a basis for the reversal of his conviction.’ ” Id., 128.

Ill

The defendant also claims that the trial court improperly admitted evidence of a prior sexual assault that he had committed against the victim. He argues that the evidence should not have been admitted because any probative value of the evidence was outweighed by its highly prejudicial nature. At trial, the victim was allowed to testify that on February 12, 1991, the defendant kissed her, put his hand down the front of her pants and rubbed her vagina. This evidence of a prior sexual assault was admissible only to show the defendant’s sexual interest in the victim and hence his motive for the subsequent assault.

The basic principle that governs this issue is well established in Connecticut. Evidence of prior misconduct, although inadmissible to prove bad character or propensity to commit the crime, is admissible to prove motive if a two part test is satisfied: “(1) [the evidence] must be relevant and material, and (2) its probative value must outweigh its prejudicial effect.” State v. Jenkins, 24 Conn. App. 330, 335, 588 A.2d 648, cert. denied, 219 Conn. 903, 593 A.2d 132 (1991). In State v. James, 211 Conn. 555, 560 A.2d 426 (1989), our Supreme Court held that evidence of prior sexual misconduct perpetrated by the defendant on the same victim was relevant and material to showing motive. “That the defendant had a particular sexual interest in [the victim] is certainly relevant to his motivation to commit the crime charged.” Id., 578. Therefore, the victim’s testimony that the defendant had previously committed sexual acts toward her was relevant and material.

In determining whether the trial court properly held that the probative value of the evidence outweighed the prejudicial effect, we apply a deferential standard of review. “Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Jenkins, supra, 24 Conn. App. 337. We conclude that the trial court did not abuse its discretion in determining that the probative value of the evidence outweighed its prejudicial effect.

The defendant claims that the evidencé was unfairly prejudicial because it was likely to arouse the jury’s emotions, hostility or sympathy. While it is true “that relevant evidence that is potentially prejudicial should be excluded . . . ‘where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy’ id., 337; the defendant fails to persuade us that the evidence in question so aroused the jury’s emotions as to be inadmissible. “Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous. ... All adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to bé admitted. . . .” (Citations omitted; internal quotation marks omitted.) State v. Zoravali, 34 Conn. App. 428, 435, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994). Furthermore, the court minimized any prejudicial effect of the evidence by instructing the jury that the evidence was admissible only to show the defendant’s motive.

IV

Finally, the defendant claims that his conviction of two counts of first degree sexual assault in violation of § 53a-70 (a) (2) as well as two counts of second degree sexual assault in violation of § 53a-71 (a) (1) violated his federal constitutional right against double jeopardy. We find no such violation.

To avail himself of the protections guaranteed by the double jeopardy clause, a defendant must first show that a violation occurred. It is undisputed that the defendant’s claim that his convictions for both first degree sexual assault and second degree sexual assault implicates the constitutional protection “against multiple punishments for the same offense [in a single trial]. . . .” (Citation omitted; internal quotation marks omitted.) State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). No violation occurred here because the defendant, while having been charged and convicted of both first and second degree sexual assault, was not punished separately for both crimes.

In Chicano, our Supreme Court held that when a defendant is convicted of both a greater and a lesser included offense, the proper remedy is to combine the convictions of the lesser offense and the greater offense and to vacate the sentence for the lesser offense. Vacatur of both the conviction and the sentence on the lesser offense is not required. Id., 725. In this case, the trial court did not sentence the defendant for the two counts of second degree sexual assault but, rather, properly combined the two counts of second degree sexual assault with the two counts of first degree sexual assault, and sentenced the defendant accordingly. There is, therefore, no double jeopardy violation from which the defendant is entitled to relief.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . .

       General Statutes § 53a-73a (a) provides in pertinent part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

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

       We decline review of the state constitutional claims because the defendant failed to analyze the claims separately under the state constitution. See State v. Sivri, 231 Conn. 115, 140 n.16, 646 A.2d 169 (1994).

       The trial court released the pages from the victim’s diary dated February 12, April 5, and April 15, 1991.

       The defendant requested and received an afternoon to review the diary and did not ask for any additional time to prepare.

       See footnote 5.

       Although the defendant is correct in stating that in Commonwealth v. Stockhammer, 409 Mass. 867, 570 N.E.2d 992 (1991), the Massachusetts Supreme Judicial Court held that the Massachusetts state constitution requires that counsel be given full access to the privileged records, we are not bound by the precedent of a sister state. Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 433, 572 A.2d 951 (1990); Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 737 n.8, 563 A.2d 1347 (1989).

       See footnote 5.

       The defendant neither raised nor briefed a state constitutional claim.

       The state concedes in its brief that first and second degree sexual assaults are greater and lesser included offenses, because the same acts constitute violations of distinct statutory provisions and neither provision requires proof of a fact that the other does not. State v. Chicano, 216 Conn. 699, 707, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Robert Engelman, Executor (Estate of Ella B. Ryder) v. Connecticut General Life Insurance Company
    (13205)
    Lavery, Spear and Freedman, Js.

      Argued March 20
    decision released June 6, 1995

      William H. Clendenen, Jr., with whom, on the brief, was Nancy L. Walker, for the appellant (plaintiff).

      Timothy F. Woodbridge, for the appellee (defendant).
   Freedman, J.

The plaintiff, Robert Engelman, is the executor of the estate of Ella B. Ryder. He appeals from the judgment of the trial court holding that Ryder did not effectively change the beneficiary of her life insurance policy with the defendant, Connecticut General Life Insurance Company. He also argues that the court erroneously concluded that the defendant was not liable for having paid the proceeds of the policy to the beneficiary Ryder wanted to replace. Because we remand this matter to the trial court for further proceedings, we do not reach these issues.

The trial court found the following facts. In 1961, Ryder purchased policy no. 1020625 from the defendant insuring her life for $100,000. Her husband was listed as owner of the policy and primary beneficiary, and her nephew, Philip Zink, was named as a contingent beneficiary. Upon her husband’s death in 1973, Ryder, as executrix of her husband’s estate, became the owner of the policy, with the right to change the beneficiary. She attempted to change the beneficiary in 1976, through her agent, and in 1978, when she wrote to the defendant. These attempts were unsuccessful because the defendant could not locate the policy without the policy number and Ryder was unable to locate the policy.

In 1979, after obtaining the policy number, Ryder’s attorney, the plaintiff Robert Engelman, wrote a letter to the defendant directing a change of beneficiary from Zink to the executor of Ryder’s estate. The letter was placed in the policy file, but the defendant did not record the policy change. Instead, the defendant sent the plaintiff a change of beneficiary form, which the plaintiff sent to Ryder. The form was never returned to the plaintiff or received by the defendant. It is not known whether Ryder ever received it from the plaintiff.

Ryder died on July 2, 1990, and the plaintiff was appointed the executor of her estate. Until her death, Ryder made the premium payments on the policy. When the plaintiff notified the defendant of Ryder’s death, the appropriate claim forms were provided to him. In June, 1992, the defendant formally denied the plaintiff’s claim for the policy proceeds and refused to commence an interpleader action. Instead, it sought out the beneficiary that Ryder had sought to replace, sent him claim forms, and paid the proceeds of the policy to him. The plaintiff then instituted the present action, alleging breach of contract, failure to pay the proceeds of the policy to the court for the purposes of an interpleader action in violation of General Statutes § 52-484, and violations of the Connecticut Unfair Insurance Practices Act (CUIPA); General Statutes § 38a-815 et seq.; and the Connecticut Unfair Trade Practices Act (CUTPA). General Statutes § 42-110a et seq.

The trial court rendered judgment for the defendant concluding that, although Ryder’s intent was clear, she had not done all in her power to comply with the procedure set out in the policy regarding changing a beneficiary. On appeal, the plaintiff argues that the trial court improperly concluded that Ryder had not effectively changed her beneficiary. The plaintiff also argues that the court improperly held that the defendant did not violate CUTPA and CUIPA. Because we conclude that the record discloses a fundamental flaw in the proceedings that deprived the trial court of subject matter jurisdiction, we reverse the trial court’s judgment and do not reach the merits of the appeal.

As relief on the breach of contract count, the plaintiff sought “a declaratory judgment ordering the defendant to pay the death proceeds to the Estate of Ella B. Ryder.” On the count seeking relief for the defendant’s refusal to pay the proceeds of the policy into court, the plaintiff sought “a declaratory judgment ordering the defendant to pay the life insurance proceeds to the Superior Court for the Judicial District of New Haven at New Haven.” Although not raised by the parties, we note that Zink, the named beneficiary of the policy who was paid the policy proceeds, was not named in this action. Moreover, counsel at oral argument indicated that Zink had not been notified of the action. If the plaintiff had been successful in his claims, however, the outcome of the action would have affected the interests of Zink.

“In order for a trial court to have jurisdiction over declaratory judgment actions . . . it must comply with the notice requirement of Practice Book § 390 (d), which provides: ‘The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.’ ” Mannweiler v. LaFlamme, 232 Conn. 27, 32, 653 A.2d 168 (1995). “Failure to comply with § 390 (d) deprives the trial court of subject matter jurisdiction to render a declaratory judgment. . . . [Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. . . . Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon. . . .” (Citations omitted; internal quotation marks omitted.) Id., 34-35; see also Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993); Rich-Taubman Associates v. Harwyn Stamford, Inc., 35 Conn. App. 296, 299, 645 A.2d 1039 (1994).

The plaintiff asserts that he did not pursue the claim for a declaratory judgment at trial and that he considered it to be abandoned. However, “[n]either the trial court’s memorandum of decision nor the judgment file indicates that the declaratory judgment aspect of the case was not determined by the trial court. ... We conclude, therefore, that the trial court considered and denied the declaratory relief sought.” Mannweiler v. LaFlamme, supra, 232 Conn. 31. Because Zink was not a party to this action and did not have reasonable notice thereof, the trial court was without subject matter jurisdiction over the action.

“The trial court’s lack of subject matter jurisdiction here, however, does not require a dismissal on remand. We have recently held that ‘[u]nlike other jurisdictional defects implicating the trial court’s subject matter jurisdiction . . . the bringing of a declaratory judgment action is not itself precluded by a failure to comply with the notice requirement.’ Serrani v. Board of Ethics, supra, 225 Conn. 309 n.5; Connecticut Ins. Guaranty Assn. v. Raymark Corp., [215 Conn. 224, 230, 575 A.2d 693 (1990)]. On remand, the plaintiffs may pursue further procedural efforts to cure the jurisdictional defect regarding the notice requirement.” Mannweiler v. LaFlamme, supra, 232 Conn. 36. “Once there has been compliance with § 390 (d), the trial court will have plenary authority to render whatever judgment it then deems appropriate.” Serrani v. Board of Ethics, supra, 310; Rich-Taubman Associates v. Harwyn Stamford, Inc., supra, 35 Conn. App. 300.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       This is so even though the defendant stipulated at trial that it paid the proceeds to Zink as a “volunteer” and that if the payment was improper, the defendant was not exonerated from paying Ryder’s estate. The defendant did not stipulate, however, that it waived any future claims against Zink if the court determined that he was improperly paid.

       In Mannweiler v. LaFlamme, supra, 232 Conn. 27, the plaintiffs, who owned property in a certain subdivision, sought declaratory and injunctive relief to prevent the defendants, the owners of a lot in the same subdivision, from violating restrictive covenants in their deed by further subdividing the parcel they owned. The court stated: “It is unclear from the trial court’s memorandum of decision whether it ruled separately on the claims for injunctive and declaratory relief. After discussing the question of common scheme, the court concluded by stating: ‘Judgment is entered for the defendants.’ The judgment file also is not instructive, as it merely reads: ‘The court, having heard the parties, finds the issues in favor of the defendants.’ ” Id., 31 n.6.
      Similarly, in the present case, the trial court’s memorandum of decision stated that there was no breach of contract on the part of the defendant, and that no CUTPA or CUIPA violations were found; it did not make reference to a declaratory judgment, simply concluding that “[jjudgment may enter for the defendant on all counts.” The judgment file, after describing the relief Sought on all counts, including the claims for a declaratory judgment, simply stated: “The Court, having heard the parties, finds the issues for the Defendant on all counts. In addition, the Court rejects the Defendant’s special defense. Whereupon, it is adjudged that judgment enter for the Defendant on all counts.”


author: Dupont, C. J.

text:
    Allen Glucksman et al. v. Kris Walters et al.
    (12788)
    Dupont, C. J., and O’Connell and Spear, Js.
    Argued March 13
    decision released June 6, 1995

      Thomas M. Cassone, with whom, on the brief, were Christopher R. Bello, Lawrence M. Lapine and Robert S. Bello, for the appellants (plaintiffs).

      Charles A. Deluca, with whom, on the brief, was Gary R. Khachian, for the appellee (defendant Young Men’s Christian Association of Stamford).
   Dupont, C. J.

The plaintiffs, Allen Glucksman (Glucksman), and his wife, Shari Glucksman, brought this action against the defendants, Kris Walters and the Young Men’s Christian Association (YMCA), to recover damages for injuries that occurred when Walters attacked Glucksman during a pickup basketball game in the gymnasium of the Stamford YMCA. The named plaintiff seeks damages in his individual capacity and Shari Glucksman seeks damages for loss of consortium.

The plaintiffs’ action was brought in five counts. The first and second counts are not at issue in this appeal. The third count alleged liability on the part of the YMCA on the ground of respondeat superior. The fourth count alleged negligence on the part of the YMCA. The fifth count alleged loss of consortium based on the claims of respondeat superior and negligence.

At the close of the plaintiffs’ case-in-chief, the YMCA moved for a directed verdict on the third count of the complaint. The trial court reserved judgment on that motion, and then granted the motion prior to the court’s charge to the jury. The remaining counts were fully tried and presented to a jury. On the fourth and fifth counts, the jury found for the YMCA. The plaintiffs filed a motion to set aside the verdict, which the trial court denied. The plaintiffs appeal from the judgment for the YMCA and the denial of the plaintiffs’ motion to set aside the verdict underlying the judgment on the fifth count.

On appeal, the plaintiffs argue that the trial court improperly (1) directed the verdict in favor of the YMCA on the respondeat superior count of the plaintiffs’ complaint, (2) permitted the YMCA’s experts to testify concerning industry custom or practice, and then charged the jury that it could consider the common practices of other YMCAs, and (3) refused to charge the jury with regard to the YMCA’s failure to comply with its own policies, procedures and guidelines. We reverse the judgment in part and affirm it in part.

There are certain facts that the jury reasonably could have found if it found the plaintiffs’ evidence credible. At the Stamford YMCA, weekday pickup basketball games occur regularly at lunchtime. These games are aggressive and competitive. Confrontations or disagreements between players, including physical challenges, occur frequently.

On the afternoon of July 7, 1994, a pickup basketball game took place in the gymnasium of the YMCA. The plaintiff Glueksman and the defendant Walters were guarding one another. Glueksman was a member of the YMCA and Walters was a part-time employee. Glueksman had possession of the ball and moved toward the basket. As Glueksman progressed, he charged into Walters, knocking him backward, which was a foul. Walters responded by punching Glueksman in the head. Other players moved to intercede and Glueksman stumbled away from Walters toward the basket. Walters then attacked Glucksman again, hitting him repeatedly in the head and the back.

As a result of the attack, Glucksman suffered a subarachnoid hemorrhage of the brain, a heart attack and a focal seizure. He spent thirteen days in the hospital, seven of which were in intensive care. Glucksman exhibits mood swings, memory loss and a lack of patience. His work and personal life have suffered because of the attack.

Walters, as a part-time employee of the YMCA, had permission to use the facilities during his off hours. At the YMCA, professional employees were expected to maintain order and to conduct themselves in accordance with the YMCA’s policies whether on duty or not. Other part-time employees, with positions similar to Walters, considered themselves to be on duty, ready to help maintain order in the facility, during work and off hours. Employees were expected to maintain order on the basketball court where games sometimes were aggressive and unruly. At least one full-time employee expected Walters to help keep order during evening basketball games.

I

Respondeat Superior

The plaintiffs argue that the trial court improperly directed a verdict for the YMCA on count three of the plaintiffs’ complaint, which alleged liability on the basis of respondeat superior. We agree.

“Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s decision directing a verdict and denying a subsequent motion to set it aside, this court considers all the evidence, including reasonable inferences, in the light most favorable to the plaintiff.” (Citations omitted.) Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979). “ ‘[A] party has the same right to submit a weak case [to the jury] as he has to submit a strong one ....’” Somma v. Gracey, 15 Conn. App. 371, 375, 544 A.2d 668 (1988).

In order to prevail on their challenge to the directed verdict, the plaintiffs must show that they presented sufficient facts to establish a prima facie case of respon-deat superior. Under the doctrine of respondeat superior, “[a] master is liable for the wilful torts of his servant committed within the scope of the servant’s employment and in furtherance of his master’s business.” Pelletier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d 251 (1967). “A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment. . . . While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master’s business, or was engaged in an abandonment of the master’s business .... Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable.” (Citations omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 209-10, 579 A.2d 69 (1990).

“ ‘The doctrine of respondeat superior focuses on the employee’s conduct rather than on the employer’s knowledge or approval of the acts. If the employee acted with apparent authority in furtherance of employer business, the employer’s consent or ratification of the misconduct is irrelevant . . . evenaninno-cent employer must compensate an injured party.’ ” Belanger v. Village Pub I, Inc., 26 Conn. App. 509, 520, 603 A.2d 1173 (1992), quoting Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 646, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990).

If the jury found the plaintiffs’ evidence credible, it could reasonably find that, but for his position as an employee, Walters would not have been on the basketball court, that Walters had been responsible for helping to maintain order on the basketball court, that the YMCA benefited when Walters played basketball because it had an employee on the court to help keep order, that the commission of fouls disrupts a basketball game, and that Walters attacked Glucksman in a misguided effort to prevent Glucksman from committing fouls and disrupting the game.

This case is similar to Pelletier v. Bilbiles, supra, 154 Conn. 544, and Reilly v. DiBianco, 6 Conn. App. 556, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 193 (1986). In Pelletier, an employee of a confectionery store, who was charged with keeping order in the store, assaulted a customer who had thrown a wrapper on the floor. The court, finding that the issue of respondeat superior should have reached the jury, wrote, “The beating of an unruly customer, if the plaintiff can be so characterized, is an extremely forceful, although misguided, method of discouraging patrons of the Spa, including the plaintiff, from causing disturbances on the premises in the future. The fact that the specific method a servant employs to accomplish his master’s orders is not authorized does not relieve the master from liability. ... A master does not escape liability merely because his servant loses his temper while he is conducting the master’s business.” (Citations omitted.) Pelletier v. Bilbiles, supra, 548. Here, the plaintiffs presented sufficient evidence for a reasonable jury to infer that Walters beat Glucksman in a misguided attempt tq maintain order on the basketball court.

In Reilly, we affirmed the trial court’s denial of a motion to render judgment for the defendant notwithstanding the verdict where the plaintiff had been beaten by the defendant’s employee after the plaintiff allegedly stole a checkbook from the defendant’s service station. We found that it was appropriate for a jury to consider the issue of respondeat superior where “the assault occurred, or at least began, on the premises of the business . . . the employer was present at the time, and . . . the assault was committed in defense of the employer’s property.” Reilly v. DiBianco, supra, 6 Conn. App. 573-74. In the present case, Walters was involved in an aggressive basketball game, sponsored by his employer. He would not have been in the game but for his employment with the YMCA. One of the duties of Walters, inferentially, was to help keep order on the basketball court.

The YMCA attempts to distinguish Pelletier and Reilly by noting that, in those cases, it was clear that the employee was on duty and was arguably acting to further his principal’s business. The standard by which we judge whether the issue of respondeat superior should be submitted to a jury, however, does not require the connection to be clear, but rather, only reasonable. There was testimony from an employee of the Stamford YMCA that she always considered herself to be on duty when she was in the facility. There was testimony from the YMCA director that the YMCA professional staff was always considered to be on duty. Further, the professional staff was always required to maintain order in the facility. The only reason Walters was in the YMCA was because of his job, initially as a volunteer and then, at the time of the attack, as a part-time employee. It reasonably can be inferred that Walters had a degree of responsibility as a YMCA employee not only during scheduled work hours but also when he was playing basketball. It can also be reasonably inferred that the basketball games are one aspect of the YMCA’s business, and that that business is furthered when an employee is keeping order on the court.

The YMCA further argues that there is less evidence of respondeat superior here than in Gutierrez v. Thorne, 13 Conn. App. 493, 537 A.2d 527 (1988), and Brown v. Housing Authority, 23 Conn. App. 624, 583 A.2d 643, cert. denied, 217 Conn. 808, 585 A.2d 1233 (1990); where we upheld the trial courts’ decisions that no other conclusion could be reached rationally except that the doctrine of respondeat superior did not apply.

In Gutierrez, we affirmed a summary judgment in favor of the employer, the commissioner of mental retardation, for the consequences of an employee’s sexual assault on a retarded client. We held, “it is clear that [the employee] was not furthering the defendant’s business interests when he sexually assaulted the plaintiff. He was engaging in criminal conduct which had no connection to the defendant’s business of providing supervision and training to mentally retarded persons regarding daily living skills. Since there were no facts before the court from which it could conclude that [the employee] was furthering the defendant’s interests, the defendant’s nonliability under a respondeat superior theory was properly determined as a matter of law.” Gutierrez v. Thorne, supra, 13 Conn. App. 499. (Gutierrez is distinguishable from the present case, however, because, in this matter, there was testimony that employees considered themselves to be responsible, as employees, whenever they were within the walls of the YMCA, and further, it can be inferred that the YMCA, which provides activities such as basketball for its members, benefited when employees maintained order in basketball games. In Gutierrez, there was no such reasonable connection between the business of the commissioner of mental retardation and the sexual assault of one of its clients.

In Brown v. Housing Authority, supra, 23 Conn. App. 624, an altercation arose between the plaintiff and the defendant’s employee after the plaintiff asked the employee to move his van, which was blocking traffic. When the employee refused to move the van, the plaintiff drove away. The employee then followed the plaintiff down the street, rear-ending his car several times. The plaintiff got out of his vehicle to talk with the employee. The employee grabbed a hammer and struck the plaintiff in the chest.

Under these facts, we found that the employee “was not furthering the defendant’s business interests when he assaulted the plaintiff. His intentional, criminal acts were in no way connected to the defendant’s business.” Id., 628. The employee worked as a maintenance mechanic for the defendant employer. The assault, although it occurred during working hours, could not have arisen from the job responsibilities of the employee. In Brown, the employee necessarily abandoned his employer’s business to pursue and attack the plaintiff. In the present case, however, a jury could have found that Walter’s attack arose out of his responsibilities as an employee of the YMCA. Because this is so, the plaintiffs are entitled to a new trial on the third count and on the fifth count as it relates to the doctrine of respondeat superior.

II

Negligence

The plaintiffs next ask that the judgment in favor of the YMCA be set aside and the matter be remanded for a new trial as to the YMCA’s liability because the trial court improperly (1) permitted the YMCA’s witnesses to testify about the level of supervision of adult pickup basketball games at other facilities and (2) charged the jury that it could consider the prevailing practices of supervision of adult pickup basketball games at other facilities when determining whether the YMCA utilized or failed to utilize reasonable care. We disagree with the plaintiffs’ claims.

Certain additional facts are relevant to the resolution of this issue. The plaintiffs introduced the testimony of Howard Berg, an administrator at the Stamford Jewish Community Center, who testified about adult pickup basketball games at the center. On direct examination, Berg discussed, inter alia, the nature of the sport, the ways to minimize violence in the sport, the amount of supervision used at the center, the practices of other facilities in regard to supervision and his opinion of whether there were any universal standards for supervision.

The YMCA presented testimony from various witnesses regarding the level of supervision of adult pickup basketball games at other facilities. Among the witnesses were Robert Lapp, the executive director of the Darien YMCA; Dorothy Kyle, the executive director of the Westport YMCA; and Martin Einhorn, the director of health and fitness at the Jewish Community Center in West Hartford.

Lapp was questioned by the YMCA about industry practices concerning the supervision of adult pickup basketball games. He testified about practices that were generally followed in the industry. Then Lapp was asked to compare the practices of the Stamford YMCA to the general industry practices. Lapp testified that the practices of the Stamford YMCA were consistent with the practices of other facilities. Kyle was questioned about the level of supervision at the Westport YMCA.

The plaintiffs objected to the questions posed to Lapp and Kyle but their objections were overruled without comment by the trial court. Prior to the testimony of Einhorn, the plaintiffs raised an oral motion in limine to preclude Einhorn from testifying about the supervision of pickup basketball in his facility on the grounds that those practices were irrelevant to the Stamford YMCA in that there was no link between the facilities and there was no evidence of a common practice or standard on which the witness could base his testimony. The court denied the motion on the ground that Ein-horn’s testimony could be introduced to rebut Berg’s testimony.

The trial court charged the jury that it could consider the practices of the YMCA, as well as of other facilities, when it considered whether the YMCA used reasonable care. The trial court cautioned that whether such practices existed, were followed or were even applicable were matters solely within the jury’s discretion. The trial court also charged the jury on the reasonable person standard.

The plaintiffs contend that it was improper for the trial court to permit Lapp to testify as to whether the Stamford YMCA supervised basketball in accordance with recognized industry practices in light of other testimony from Lapp that the level of supervision varied from facility to facility. The plaintiffs claim that the prejudicial value of this information outweighed any probative value, that there was no foundation laid for the admission of the evidence and that the record disclosed that there was no industry practice or custom with regard to supervision of adult pickup basketball. The plaintiffs also contend that it was improper for the trial court to have permitted Kyle to testify concerning the practices of the Westport YMCA in light of Lapp’s testimony that there was no common industry custom or practice. Finally, the plaintiffs argue that the trial court improperly denied the plaintiffs’ motion in limine concerning Einhorn’s testimony about supervisory practices in his facility because there was no foundation in the record to support testimony about the industry practice of supervision of adult basketball.

The YMCA argues that the contested testimony was admissible as rebuttal evidence and, further, that the trial court had the discretion to allow the YMCA independently to introduce the evidence to establish an industry custom or practice. We agree with the YMCA that it is admissible as rebuttal evidence.

“[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. . . . The purpose of allowing the introduction of such evidence is not to give the opposing party a license to introduce unreliable or irrelevant evidence but to allow the opposing party to put the initial offer of evidence into its proper context. . . . Thus, the trial court must consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit [the evidence] ... to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. . . . Such a decision, of course, rests within the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Somers v. LeVas-seur, 230 Conn. 560, 565-66, 645 A.2d 993 (1994).

The plaintiffs here opened the door to the challenged testimony by questioning one of the witnesses, Berg, on the practices of supervision in his facility, practices of other facilities and whether there were universal standards of supervision. Berg supplied an answer from which the jury could infer that the pickup basketball games in his facility were supervised more strictly than those at the Stamford YMCA. In light of this testimony, introduced by the plaintiffs, it was appropriate for the trial court to allow rebuttal testimony about the supervision of pickup basketball games at other facilities.

Further, in response to the plaintiffs’ claims concerning Lapp’s testimony, we note that although Lapp did testify that supervision varied from facility to facility, he also testified about general industry practices of supervision. Therefore, his testimony concerning whether the supervisory practices of the Stamford YMCA were consistent with general industry practices was not improper.

The plaintiffs also challenge that portion of the trial court’s charge to the jury concerning the supervisory practices of the Stamford YMCA and of other facilities. The plaintiffs argue that the charge was not based on the evidence in the record because both the plaintiffs’ and the YMCA’s witnesses testified that there was no common practice of supervision among facilities but, rather, that the level of supervision varied from facility to facility.

“A charge . . . is to be read as a whole without the dissection of its parts. It will not be the source of reversible error absent a determination that the probable effect of the charge was to lead the jury to an incorrect verdict. . . . The charge must be examined to determine whether it fairly presents a case to a jury so that no injustice results and is not to be examined with a legal microscope, to search for technical flaws, inexact, inadvertent or contradictory statements.” (Citations omitted; internal quotation marks omitted.) Gajewski v. Pavelo, 36 Conn. App. 601, 609, 652 A.2d 509, cert. granted, 232 Conn. 915, 654 A.2d 355 (1995). We find that the trial court properly charged the jury on the issue of supervisory practices.

Both parties recognize that evidence of the practices or customs of similar facilities can be admitted at the trial court’s discretion when the trier of fact needs to take into account circumstances beyond the scope of common knowledge and experience in order to answer the question of whether reasonable care was exercised. Woodbury Water Co. v. Public Utilities Commission, 174 Conn. 258, 259, 386 A.2d 232 (1978); Jacobson Electric Co. v. Rome Fastener Corp., 156 Conn. 55, 60, 238 A.2d 415 (1968). The plaintiffs do not argue that the procedures associated with supervising pickup basketball games are within the common knowledge and experiences of jurors. Rather, the plaintiffs contend that the testimony presented at trial concerning industry practices indicated that there was no single practice followed in the industry, and, therefore, that the trial court should not have allowed the jury to consider, as the trier of fact, whether certain practices existed.

The trial court, however, did not instruct the jury that there was a single industry practice. Rather, the trial court told the jury that it could consider the "practices of other facilities.” There was testimony from the directors of a number of facilities explaining the particular supervisory practices employed at those facilities. The charge simply allowed the jury to consider that testimony when determining whether the Stamford YMCA used reasonable care. This was not improper.

Ill

Charge to the Jury

Finally, the plaintiffs argue that the trial court improperly refused to charge the jury that the YMCA had established certain safety policies, which were evidence of the standard of care, and, that if the YMCA did not follow those policies, then the jury could properly find that the YMCA breached the standard of care. The plaintiffs contend that there was sufficient evidence in the record to support such a charge, that it was legally sound, and that they were prejudiced by its omission. We disagree with the plaintiffs’ claims.

As a preliminary matter we must discuss the YMCA’s claim that the plaintiffs are not entitled to review of the charge because of its failure to comply with Practice Book § 318, which provides in pertinent part: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply.” “The defendant must provide the trial court with the factual and legal basis for the charge before an appellate court can find error in the court’s refusal to give the charge as requested.” State v. Robinson, 14 Conn. App. 40, 45-46, 539 A.2d 606, cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 333 (1988).

The plaintiffs admit in their reply brief that they cited no authority in support of their proposed charge. The plaintiffs, however, refer this court to Konover Development Corp. v. Zeller, 228 Conn. 206, 214, 635 A.2d 798 (1994), where the Supreme Court reached the merits of a jury instruction issue even though it appears that the plaintiff did not strictly comply with Practice Book § 318 in the request to charge. In Konover, the issue was preserved for appeal “because the trial court ruled on its merits.” Konover Development Corp. v. Zeller, supra, 215.

Here, the plaintiffs raised the issue of the defects in the charge in their motion to set aside the verdict by claiming that the trial court failed “to charge the jury on the defendant’s failure to comply with its own standards, procedures or guidelines, as requested.” The court denied the motion, indicating that the basis for the decision “is known to the parties as a result of prior arguments.” This is sufficient evidence that the trial court was aware of the language in the proposed charge and the plaintiffs’ rationale for including that language in the proposed charge. Therefore, we will review the plaintiffs’ claim.

The first part of the plaintiffs’ proposed charge is a recitation of facts, as alleged by the plaintiffs, concerning the claimed supervisory policies of the Stamford YMCA. “The court’s review of the evidence in its charge to the jury is subject to the overriding consideration that its comments be fair and that they not mislead the jury, so that injustice is not done to either party.” Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 589, 356 A.2d 873 (1975). “[T]he summary of evidence in a court’s charge will not meet the ultimate test of fairness if it directs attention to particular features of evidence in such a way as to single them out and give them an undue prominence.” Id., 591. The way in which reference to the evidence may be made lies largely within the discretion of the court and the court need not discuss particular items of the testimony because such comment is discretionary. Id., 590.

It was within the discretion of the trial court to include or exclude in its charge the recitation of the evidence as contained in the proposed charge. Since that proposed charge featured a review of only part of the evidence as presented by the plaintiffs concerning the supervisory practices of the Stamford YMCA, we conclude that the trial court did not abuse its discretion by failing to charge in accordance with the plaintiffs’ request.

The next part of the proposed charge asks the trial court to charge that the rules or guidelines of the YMCA are evidence of the standard of care and that, if the YMCA did not follow those rules or guidelines, it breached the standard of care.

“The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . .” (Internal quotation marks omitted.) State v. Lee, 32 Conn. App. 84, 104, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994). “When reviewing the court’s instruction, our role is to determine whether, taken as a whole, [it] fairly and adequately presents] the case to a jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) State v. Beliveau, 36 Conn. App. 228, 246, 650 A.2d 591 (1994), cert. granted on other grounds, 232 Conn. 910, 654 A.2d 354 (1995). “It is well established precedent that although [a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given ... [a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Citations omitted; internal quotation marks omitted.) State v. Cardany, 35 Conn. App. 728, 738-39, 646 A.2d 291, cert. denied, 231 Conn. 942, 653 A.2d 823 (1994).

Here, the plaintiffs essentially wanted the trial court to charge that the YMCA had rules relating to supervision and that, if the YMCA violated those rules, it could be considered a breach of the standard of care. Although the plaintiffs claim that the trial court made no reference to the rules of the Stamford YMCA relating to supervision, the trial court did charge the jury that it could consider, when it reached the issue of reasonable care, whether the YMCA had established practices and whether the YMCA violated those practices. Therefore, the trial court, in the language of the charge to the jury, essentially included the substance of the plaintiffs’ proposed charge.

The judgment is reversed in part and the case is remanded for a new trial on the third count and the fifth count as it relates to the issue of respondeat superior.

In this opinion the other judges concurred.

       The plaintiffs have not argued that the directed verdict on the count relating to respondeat superior prejudiced the jury’s consideration of the remaining counts. Although a trial court may direct a verdict if a jury could not reasonably and rationally reach any other conclusion, the “preferred procedure ... is to submit the issues to the jury, and then to set aside the verdict.” Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 499-500, 656 A.2d 1009 (1995). If the counts submitted to a jury for consideration are factually identical and legally similar, as in this case, a jury may be influenced by the court’s direction of a verdict and there is a risk that the jury will comingle the legal theories involved in the separate counts and be influenced by the knowledge that the court has decided that as to one count the plaintiff should not prevail. See generally State v. Horne, 215 Conn. 538, 547, 577 A.2d 694 (1990). In this case it is impossible to know whether the jury was so influenced.

       Specifically, the trial court stated, “In your consideration of whether the YMCA utilized or failed to utilize reasonable care and supervision or management of the basketball game, it is proper for you to consider the prevailing practices of other facilities and the YMCA’s own practices. However, whether such practices existed, whether they were followed or whether they were even applicable are matters solely in your sole consideration.”

       The request to charge is as follows: “You have heard testimony in this case from Messrs. Kane and Weinstein that the defendant YMCA had established certain safety guidelines with regard to supervising the gymnasium area during the hours of 11:30 a.m. and 2 p.m. These witnesses testified that it was the policy of the defendant YMCA to have at least one professional staff person in the gymnasium between the hours of 11:30 a.m. and 2 p.m. in order to supervise the activities going on therein and that said person would either be in earshot or be watching the games 90 percent of the time. While this is my recollection of the testimony, you are not bound by my recollection, but rather must rely upon your own recollection of the testimony.
      “If you find that the defendant YMCA had established certain safety rules or guidelines or issued orders for the safe conduct of its business, such rules or orders are evidence of the appropriate standard of care as set by one in the business. As you have heard testimony, the business of the defendant YMCA was, among other things, the providing of a gymnasium within which to play basketball.
      “If you find that the defendant has not followed its own established safety rules or policies or guidelines which it issued for the safe conduct of its business, then you may properly find that the defendant YMCA breached the standard of care which it owed to the plaintiff Allen Glueksman. And, if you find that the defendant breached the standard of care which it owed to the plaintiff Allen Glucksman and that this breach of duty was the proximate cause, as I have defined that term for you previously, of the plaintiff Men Glúcksman’s injuries, then you must find in favor of the plaintiff Allen Glucksman.”


author: Schaller, J.

text:
    Heather Lyn Limited Partnership v. Town of Griswold et al.
    (13432)
    Foti, Schaller and Freedman, Js.
    Argued March 14
    decision released June 13, 1995

      Richard J. Duda, with whom was Mary Beth Duda, for the appellants (defendants).

      Richard J. Pascal, with whom, on the brief, was Lloyd L. Langhammer, for the appellee (plaintiff).
   Schaller, J.

The defendants, the town of Griswold and the borough of Jewett City, appeal from the judgment of the trial court in favor of the plaintiff, which was rendered on the plaintiffs complaint brought pursuant to General Statutes § 12-117a for a reduction in the amount of the assessment and tax on a parcel of real property. The principal issue in this appeal is whether the trial court improperly reduced an assessment on the plaintiffs real property by adopting an appraisal method that was invalid as a matter of law. We reverse the judgment of the trial court.

The trial court found the following facts. On July 1, 1987, the plaintiff purchased an apartment complex located at the corner of Brown Avenue and Russell Street in the town of Griswold. Thereafter, the plaintiff declared the twenty-six units as condominiums.

The plaintiff furnished the assessor of the town of Griswold with all of the information relevant to the assessment of the property. The assessor implemented, as of October 1, 1992, and October 1, 1993, a valuation of the condominium units for the town of Griswold at 70 percent of their alleged actual valuation. The plaintiff appealed to the town board of tax review for a reduction of the assessments made, but the board made no changes. On June 11,1993, the plaintiff commenced this action against the defendants.

The defendant town of Griswold conducted a revaluation pursuant to General Statutes § 12-62 with the resulting values assessed on all property as of October 1, 1992. The plaintiff’s premises were assessed at $37,450 per unit, 70 percent of $53,000, which the board determined to be the fair market value of each unit. Since the conversion to condominiums, six units have been sold. At the time of trial, all units were either available for rent or occupied as rental units. No units have been sold since October 1,1992. A prior tax appeal concerning the premises with respect to the tax lists of October 1, 1988, October 1, 1989, and October 1, 1990, went to judgment on December 17, 1990. The trial court in that case found the true and actual fair market value of each unit to be $21,600.

At trial, the plaintiff’s expert, Chris S. Buckley, testified that the fair market value of the twenty-six units appraised as residential condominiums for purchase by a single purchaser was $426,000; when appraised as residential apartments, the value was $920,000. Buckley employed a method of appraisal, which he called “the discounted cash flow developmental method of income capitalization,” utilizing projections of sales for a period of eight years less expenses and discounting to a present value estimate. By that method, the fair market value of each unit was $16,385. An alternative value as rental apartments was also estimated using the “income capitalization approach” over a period of eight years. The trial court found Buckley’s appraisal method “inherently credible when it relates the fair market value per unit to be $16,385 . . . based on the discounted cash flow analysis.” The trial court, however, gave “considerable weight” to the 1990 judgment in the prior tax appeal, and found the present fair market value of each unit to be $21,600, a figure identical to the value found by the trial court in 1990.

It is well established that “[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). The credibility and the weight of expert testimony is judged by the same standard, and the trial court “is privileged to adopt whatever testimony [the court] reasonably believes to be credible.” (Internal quotation marks omitted.) Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987). On appeal, we do not retry the facts or pass on the credibility of witnesses. Nor’easier Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988).

“The trial court was presented with conflicting testimony as to the value of the property, and concluded that the report and testimony of the plaintiffs expert was the most credible. In any assessment case in which the trial court is confronted with conflicting appraisal methods, it is a proper function of the court to give credence to one expert over the other. Connecticut Coke Co. v. New Haven, 169 Conn. 663, 666, 364 A.2d 178 (1975).” Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 99-100, 626 A.2d 1292 (1993). The conclusions reached by the trial court must stand “unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law.” (Internal quotation marks omitted.) Hartford v. Tucker, 15 Conn. App. 513, 517-18, 545 A.2d 584, cert. denied, 209 Conn. 807, 548 A.2d 444 (1988). We will not disturb the trial court’s adoption of the plaintiff’s valuation of the property, therefore, unless the appraisal was legally invalid.

General Statutes § 12-63b (a) provides for the following three methods of appraisal to be considered when determining the present true and actual value of real property for tax assessment in the absence of comparable sales: “(1) Replacement cost less depreciation, plus the market value of the land, (2) the gross income multiplier method as used for similar property and (3) capitalization of net income based on market rent for similar property.”

At trial, the plaintiff’s expert explained that he had used an income capitalization approach, the discounted cash flow method, using projected sales over eight years to obtain the fair market value of the property for October 1, 1992, and October 1, 1993. “The discounted cash flow method is an accepted method for determining the present value of real property. The Appraisal of Real Estate (10th Ed. 1992) pp. 420-21; Dictionary of Real Estate Appraisal (2d Ed. 1984) p. 94.” Newbury Commons Ltd. Partnership v. Stamford, supra, 226 Conn. 100. “The income capitalization approach to value consists of methods, techniques, and mathematical procedures that an appraiser uses to analyze a property’s capacity to generate benefits (i.e., usually the monetary benefits of income and reversion) and convert these benefits into an indication of present value.” Appraisal Institute, The Appraisal of Real Estate (10th Ed. 1992) p. 409.

To determine if projected sales is an appropriate factor to be considered in determining value pursuant to the income capitalization method, we look to the plain language of § 12-63b (b). “The objective of statutory construction is to give effect to the intended purpose of the legislature. State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). . . . Forsyth v. Rowe, 226 Conn. 818, 828, 629 A.2d 379 (1993). Where the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intent of the legislature and there is no need for statutory construction .... All Brand Importers, Inc. v. Dept, of Liquor Control, 213 Conn. 184, 195, 567 A.2d 1156 (1989).” (Internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 223, 640 A.2d 89 (1994).

“Section 12-63b (a) (3) requires the use of ‘market rent’ as the indicator of income. . . . ‘[T]he term “market rent” means the rental income that such property would most probably command on the open market as indicated by present rentals being paid for comparable space. In determining market rent the assessor shall consider the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination.’ (Emphasis added.) General Statutes § 12-63b (b).” First Bethel Associates v. Bethel, 231 Conn. 731, 739-40, 651 A.2d 1279 (1995). The statute is clear and unambiguous in providing that market rent is the factor to be considered in a determination of value under the income capitalization method. Future projected sales is not contained in the statute as a factor for consideration.

The trial court purported to adopt the income capitalization method of appraisal conducted by the plaintiff’s expert. Despite evidence of the rental income from the units not yet sold, the court chose to accept the plaintiff’s expert’s determination of value based on projected sales over the next eight years. “Although valuation of some properties may appropriately involve more than one single theory of valuation, and appraisals may be made which combine the cost and income approaches; Xerox Corporation v. Ross, 71 App. Div. 2d 84, 421 N.Y.S.2d 475 (1979); such was not done in this case.” Whitney Center, Inc. v. Hamden, 4 Conn. App. 426, 428, 494 A.2d 624 (1985). The trial court concluded that the approach it was adopting was the income capitalization method pursuant to § 12-63b (a) (3). What it actually used was a hybrid between the income capitalization method and the sales method pursuant to General Statutes § 12-63. The trial court explicitly rejected the comparable sales approach as too speculative, but then allowed the plaintiff to speculate even further by measuring value using projected sales over eight years.

The function of the trial court is to determine the “true and actual value of the plaintiff’s property. Dickau v. Glastonbury, 156 Conn. 437, 441, 444, 242 A.2d 777 [1968]; Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 673, 154 A.2d 608 [1959].” (Internal quotation marks omitted.) Executive Square Ltd. Partnership v. Board of Tax Review, 11 Conn. App. 566, 570, 528 A.2d 409 (1987). We are persuaded, on this record, that the trial court improperly applied the law in correcting the town’s valuation of the plaintiffs property. The plain language of §§ 12-63b (a) (3) and 12-63b (b) demonstrates that the trial court incorrectly adopted and applied an appraisal method conducted under the income capitalization method that relied on future sale of units as a measure of value.

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

In this opinion the other judges concurred.

       General Statutes § 12-117a provides in pertinent part: “appeals from DECISIONS OF BOARDS OF TAX REVIEW CONCERNING ASSESSMENT LISTS FOR ASSESSMENT YEARS COMMENCING OCTOBER 1, 1989, TO OCTOBER 1, 1992. Notwithstanding the provisions of sections 12-118,12-121aa and 12-121bb, any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1,1992, October 1, 1993, or October 1, 1994, may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . .”

       General Statutes § 12-63b (a) provides: “The assessor or board of assessors in any town, when determining the present true and actual value of real property as provided in section 12-63, which property is used primarily for the purpose of producing rental income, exclusive of such property used solely for residential purposes, containing not more than six dwelling units and in which the owner resides, and with respect to which property there is insufficient data in such town based on current bona fide sales of comparable property which may be considered in determining such value, shall determine such value on the basis of an appraisal which shall include to the extent applicable with respect to such property, consideration of each of the following methods of appraisal: (1) Replacement cost less depreciation, plus the market value of the land, (2) the gross income multiplier method as used for similar property and (3) capitalization of net income based on market rent for similar property. The provisions of this section shall not be applicable with respect to any housing assisted by the federal or state government except any such housing for which the federal assistance directly related to rent for each unit in such housing is no less than the difference between the fair market rent for each such unit in the applicable area and the amount of rent payable by the tenant in each such unit, as determined under the federal program providing for such assistance.”

       General Statutes § 12-63b (b) provides: “For purposes of subdivision (3) of subsection (a) of this section and, generally, in its use as a factor in any appraisal with respect to real property used primarily for the purpose of producing rental income, the term ‘market rent’ means the rental income that such property would most probably command on the open market as indicated by present rentals being paid for comparable space. In determining market rent the assessor shall consider the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination.”


text:
    Griswold Ashland Limited Partnership v. Town of Griswold
    (13433)
    Foti, Schaller and Freedman, Js.
    Argued March 14
    decision released June 13, 1995

      Richard J. Duda, with whom was Mary Beth Duda, for the appellant (defendant).

      Richard J. Pascal, with whom, on the brief, was Lloyd L. Langhammer, for the appellee (plaintiff).
   Schaller, J.

The defendant appeals from the judgment of the trial court in favor of the plaintiff, which was rendered on the plaintiffs complaint brought pursuant to General Statutes § 12-117a for a reduction in the amount of the assessment and tax on a parcel of real property. The principal issue in this appeal is whether the trial court improperly reduced an assessment on the plaintiffs real property by adopting an appraisal method that was invalid as a matter of law. We reverse the judgment of the trial court.

The trial court found the following facts. On December 31,1985, the plaintiff purchased twenty-one units of an apartment complex located at 358 East Main Street in the town of Griswold. In May, 1988, the plaintiff declared the units as condominiums. The Griswold Ashland complex contains a total of thirty units of which twenty-one are owned by the plaintiff.

The plaintiff furnished the assessor of the town of Griswold with all of the information relevant to the assessment of the property. The assessor implemented, as of October 1,1992 and October 1,1993, a valuation of the condominium units for the town of Griswold at 70 percent of their alleged actual valuation. The plaintiff appealed to the town board of tax review for a reduction of the assessments made, but the board made no changes. On June 11,1993, the plaintiff commenced this action against the defendant.

The assessor and the board of tax review determined the assessed valuations of each of the plaintiffs units to be $37,310. Since the conversion to condominiums, one unit was sold in December, 1992. This unit was foreclosed, however, and auctioned off for $10,000 in October, 1993. At the time of trial, eighteen of the units were being rented, and the three other units were available for rent. The plaintiff had appealed a prior assessment and the court had reduced the assessment.

At trial, the plaintiffs expert, Chris S. Buckley, testified that the fair market value to a single purchaser of the subject twenty-one condominium units taken together was $394,000, and that the fair market value as to each unit was $18,762. Buckley employed a method of appraisal, which he called “the discounted cash flow developmental method of income capitalization,” utilizing projections of sales for a period of eight years less expenses and discounting to a present value estimate. The trial court found that the “[pjlaintiff s appraisal and expert witness are more timely, complete, without bias, considered and expert.” The trial court, however, gave considerable weight to the 1990 judgment in the prior tax appeal, and found the present fair market value of each unit to be $26,000 and the assessed value to be $18,100, a figure in conformity with the value found by the trial court in 1990.

This claim is controlled by our decision in Heather Lyn Ltd. Partnership v. Griswold, 38 Conn. App. 158, 659 A.2d 740 (1995). Consistent with our holding in that case, we conclude that the plain language of General Statutes §§ 12-63b (a) (3) and 12-63b (b) demonstrates that the trial court incorrectly adopted and applied an appraisal method conducted under the income capitalization method that relied on future sale of units as a measure of value.

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

In this opinion the other judges concurred.

       General Statutes § 12-117a provides in pertinent part: “appeals from DECISIONS OF BOARDS OF TAX REVIEW CONCERNING ASSESSMENT LISTS FOR ASSESSMENT YEARS COMMENCING OCTOBER 1, 1989, TO OCTOBER 1, 1992. Notwithstanding the provisions of sections 12-118,12-121aa and 12-121bb, any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment year commencing October 1,1989, October 1, 1990, October 1,1991, October 1,1992, October 1,1993, or October 1,1994, may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . .”


text:
    Madison Hills Limited Partnership v. Town of Madison et al.
    (14081)
    Dupont, C. J., and O’Connell, Foti, La very and Hennessy, Js.
    Considered May 3
    decision released June 13, 1995

      Steven R. Dembo, in support of the motion.

      Bernard Green and Marni Smith Katz, in opposition to the motion.
   Dupont, C. J.

The issue to be resolved in this decision is whether the appellees, TEPA Associates (TEPA) and Candlewood Development Company (Candlewood), are entitled to have their motion for a stay of four ancillary administrative appeals granted. We conclude that those proceedings are not directly ancillary to this appeal and, therefore, deny their motion.

The plaintiff brought an action to quiet title to a parcel of land in Madison. The trial court granted the plaintiff’s motion for default against the defendants, the town of Madison and all unknown persons having an interest in the property. The court then rendered judgment quieting title in the plaintiff. More than two and one-half years later, TEPA and Candlewood moved to open the judgment on the ground that they held title to the property. The court granted their motion and opened the judgment.

After the plaintiff appealed from that decision, TEPA and Candlewood filed a motion for stay of ancillary proceedings pursuant to Practice Book § 4183 (4). The ancillary proceedings involve two applications filed by the plaintiff with the Madison inland wetlands agency to conduct regulated activities on the property that is the subject of the quiet title action. TEPA and Can-dlewood opposed both applications on the ground that the land did not rightfully belong to the plaintiff and had been wrongfully taken from them without due process of law. Despite their arguments, the agency granted the plaintiff’s applications and issued the requested permits. TEPA and Candlewood appealed from the agency’s decisions to the Superior Court. The plaintiff has moved to dismiss each of the administrative appeals on the ground that TEPA and Candlewood lack standing because they do not own the property in question.

As part of this court’s supervision and control of proceedings on appeal, it is within our discretion to “order a stay of any proceedings ancillary to a case on appeal.” Practice Book § 4183 (4). TEPA and Candlewood seek a stay of their four administrative appeals because, they claim, the issue of ownership of the property in question is at the center of this appeal and their administrative appeals. They argue that the ownership issue should be resolved by this court before it is considered by the trial court in the context of the administrative appeals.

With respect to the appeal pending in this court, the plaintiff has appealed from the granting of a motion to open the judgment. The only issue that can be raised in such an appeal is whether the trial court had the power to open the judgment. Solomon v. Keiser, 212 Conn. 741, 746-47, 562 A.2d 524 (1989); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418-19, 426 A.2d 1324 (1980); Sanchez v. Prestia, 29 Conn. App. 157, 159 n.3, 612 A.2d 824, cert. denied, 224 Conn. 913, 617 A.2d 167 (1992). At the time the plaintiff appealed, the action to quiet title had been opened and the issue of ownership of the property had not yet been finally decided by the trial court. That issue, therefore, cannot be before this court at this time. Because the issues in the administrative appeals are not directly ancillary to this appeal from the granting of the motion to open, we deny the motion for stay of the administrative appeals.

The motion for a stay of ancillary proceedings is denied.

In this opinion the other judges concurred.

       Practice Book § 4183 provides in relevant part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed .... The court may . . . on its own motion or upon motion of any party ... (4) order a stay of any proceedings ancillary to a case on appeal . . . .”

       TEPA and Candlewood represent that they took four appeals from the agency’s decision granting the plaintiff’s applications. It is unclear why four appeals were taken.

       Such issue could be considered in a later appeal from a judgment on the merits of the action to quiet title, in the event we decide that the trial court properly exercised its power in opening the judgment.

       TEPA and Candlewood may have recourse in both the trial court and the agency. Under General Statutes § 4-183 (f), the administrative appeals did not of themselves stay the enforcement of the agency decision. Section 4-183 (f) provides: “The filing of an appeal shall not, of itself, stay enforcement of an agency decision. An application for a stay may be made to the agency, to the court or to both. Filing of an application with the agency shall not preclude action by the court. A stay, if granted, shall be on appropriate terms.”


author: Hennessy, J.

text:
    Gladys Floch v. Planning and Zoning Commission of the Town of Westport et al.
    (13151)
    Dupont, C. J., and Lavery and Hennessy, Js.
    Argued March 14
    decision released June 13, 1995

      Patricia E. Curtin, for the appellants-appellees (defendants).

      Sharon Bradley Bowler, with whom, on the brief, was Austin K. Wolf, for the appellee-appellant (plaintiff).
   Hennessy, J.

The defendants appeal from the judgment of the trial court sustaining the plaintiffs appeal from the planning and zoning commission’s approval of a special permit to construct athletic fields on property owned by the town of Westport and located adjacent to the property of the plaintiff. The defendants claim that the trial court improperly found that illegal conditions, attached without the benefit of a vote by the planning and zoning commission, were not sever-able from the commission’s approval and therefore invalidated the approval. We affirm the judgment of the trial court.

The following facts were found by the trial court in its memorandum of decision. The plaintiff, Gladys Floch, owns land abutting Staples High School in West-port. The parks and recreation commission of the town of Westport sought, through an application to the planning and zoning commission, a special permit for the construction of two athletic fields on the property of Staples High School. On October 28, 1992, a public hearing was held on this application, and, at a work session following this hearing, the planning and zoning commission approved the application with several stated conditions. Subsequent to this approval, a final resolution was drafted, signed by the commission chairman and filed with the commission’s office for public inspection. The final written resolution contained several conditions that had not been part of the approval voted by the commission on October 28, 1992.

The defendants do not quarrel with the trial court’s conclusion that several of the conditions of approval included in the final resolution had not been voted on by the planning and zoning commission. The defendants’ sole argument is that because these conditions were not the subject of a vote by the commission, they were a nullity from the outset and should have been severed from the original approval and that the approval should not have been overruled on the basis of these illegal conditions. We disagree.

The parties agree that where illegal conditions are attached to a special permit, they do “not necessarily render the whole decision illegal and inefficacious. If there are sufficient grounds to support the remaining action of the commission, which is not contested by the parties, a modification of the decision may be decreed.” Beckish v. Planning & Zoning Commission, 162 Conn. 11, 18, 291 A.2d 208 (1971); Hochberg v. Zoning Commission, 24 Conn. App. 526, 530, 589 A.2d 889 (1991). The dispositive consideration in determining whether modification or reversal is in order is whether the illegal conditions are an “integral” part of the zoning authority’s decision. Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990). “[I]f so, [the commission’s decision] even if valid in all other respects, cannot be upheld.” Id.; see also Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 354-55, 232 A.2d 916 (1967).

Prior cases discussing the severability of illegal conditions from zoning decisions have involved conditions that were voted on by the zoning authority but were found, on review, to be substantively void or outside the commission’s authority to enact. See, e.g., Beckish v. Planning & Zoning Commission, supra, 162 Conn. 11; Hochberg v. Zoning Commission, supra, 24 Conn. App. 526. Thus, no prior cases can guide the resolution of this case because here the conditions are claimed to be illegal not because the commission was without authority to impose them, but because the commission did not impose them by voting on them.

The defendants claim that there was a valid approval of the application, and that even though the final resolution included conditions that were not a part of the approval, the illegal conditions, not having been validly enacted, never became a part of the approval. Thus, the defendants would have us conclude that the original approval exists untouched by the illegal conditions and that it was improper for the trial court to do anything more than remove the illegal conditions from the valid approval.

The trial court rejected this analysis and concluded that because the illegal conditions were part of the approval that was filed in the commission’s office they are necessarily the “official conditions” and inherently integral to the commission’s decision. The trial court reasoned that to hold otherwise would be disingenuous because, in the absence of the plaintiff’s appeal, the conditions listed in the final resolution would have been enforced despite the fact that they were not validly enacted. The trial court also noted that both the illegal conditions of the approval in question and the town’s zoning regulations provided that all conditions would be considered integral to a conditional approval and that the failure of any one condition necessarily invalidated the entire approval.

We adopt the trial court’s reasoning because it accurately reflects the fundamental principle that a zoning commission’s authority to issue a conditional special permit can be legally exercised only by the commission voting on every condition, and not by individual members acting independently. See General Statutes § 8-3c. We conclude that the trial court correctly invalidated the issuance of the special permit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the planning and zoning commission of the town of Westport, the parks and recreation commission of the town of West-port and the town of Westport.

       The plaintiff filed a cross appeal, limited to the claim that the trial court improperly failed to find that a conflict of interest existed where a member of the planning and zoning commission was married to a member of the board of one of the applicant entities. In light of our resolution of the defendants' appeal, it is unnecessary to reach this claim.

       Section 43-7.6 of the town of Westport zoning regulations provides: “When the Commission grants a Special Permit or approves a Site Plan with conditions, each and all said conditions shall be an integral part of the commission’s decision. Should any of the conditions on appeal from such decision be found to be void or of no legal effect, then the conditional approval is likewise void. The applicant may refile another application for review.”

       Condition eleven of the approval provides: “This is a conditional approval. Each and every condition is [an] integral part of the Commission decision. Should any of the conditions, on appeal from this decision, be found to be void or of no legal effect then this conditional approval is likewise void. The applicant may refile another application for review.”

       We note that this is an unusual situation, where an abutting landowner, and not the party to be bound, complains of the illegal conditions, especially where the illegal conditions were designed to benefit the complaining landowner. Nevertheless, we find that reversal of the commission’s decision is necessary to preserve the integrity of the zoning process.