author: Borden, J.

text:
    Steve Day et al. v. General Electric Credit Corporation et al.
    (5357)
    Borden, Daly and Norcott, Js.

      Argued May 11—
    decision released August 23, 1988

      Edward Maum Sheehy, with whom was Ronald D. Williams, for the appellant-appellee (named plaintiff).

      James R. Fogarty, with whom, on the brief, was Andrew P. Nemiroff, for the appellees-appellants (defendant Stamford Square Associates et al.).

      Lawrence W. Kanaga, for the appellee (defendant Robert E. Tierney).

      Edwin L. Doernberger, for the appellee (defendant Keith L. Fitch).

      John S. McGeeney, with whom, on the brief, was John F. Spindler, for the appellees (named defendant et al.).
   Borden, J.

The plaintiff brought this action against the defendants seeking damages for an alleged conspiracy to defraud him by means of various misrepresentations, and for an alleged tortious interference with a contractual relationship. The plaintiff appeals from the judgment, after a jury trial, rendered in favor of the defendants, claiming that the trial court erred in (1) granting the defendant Robert E. Tierney’s motion for summary judgment, (2) directing a verdict for the defendant Charles G. Klock, (3) granting the motion in limine, filed by the defendant General Electric Credit Corporation (GECC), to preclude certain expert testimony, (4) sustaining the defendant Keith L. Fitch’s objection to the introduction of certain evidence, and (5) refusing to charge the jury as requested by the plaintiff.

The defendants Stamford Square Associates (SSA), Stamford Square, Inc. (SSI) and Henry A. Ashforth, brought a counterclaim against the plaintiff alleging a breach of certain warranties, representations and indemnities contained in their partnership agreement with the plaintiff. These defendants cross appeal from the judgment on the counterclaim for nominal damages in the amount of $1, claiming that the court erred in (1) limiting the jury to nominal damages on the counterclaim, and (2) refusing to bifurcate the trial on the counterclaim. We find no error on the appeal and no error on the cross appeal.

I

The Plaintiff’s Appeal

The evidence and claims relevant to the plaintiff’s appeal are as follows. In 1970, the plaintiff acquired title to six lots in Stamford on which he intended to construct an office building. He was approached by GECC, through Tierney, to engage in a joint venture on the site. Over the course of time, GECC loaned the plaintiff in excess of $2,000,000 for the project, taking mortgages on the property and on the plaintiff’s family home. The mortgage documents restricted the plaintiff’s ability to obtain subsequent financing and to prepay the mortgage. The plaintiff claimed that Tierney represented to him that GECC was engaged in a joint venture with him to develop the project on a fifty-fifty basis, that the plaintiff would be the developer and GECC would provide all financing, and that GECC would never foreclose on the plaintiff’s home.

In June, 1974, the plaintiff was in a weak financial position. The following month, John W. Stanger, an officer of GECC, sent a memo to Fitch requesting that Fitch notify the plaintiff that GECC would no longer participate in developing the property. In August, 1974, Tierney told the plaintiff not to count on GECC for further financing of the project, although thereafter GECC made another loan to the plaintiff.

In March, 1975, the plaintiff’s loans were in default. The plaintiff entered negotiations with various joint venture partners to construct the office building, but GECC refused to approve any of the proposed partners. GECC also informed the plaintiff that unless the loans were repaid, it would institute foreclosure proceedings.

In October, 1975, the plaintiff contacted Ashforth, who, the plaintiff claimed, agreed to a joint venture for an office building on a fifty-fifty basis with the plaintiff, with Ashforth contributing $1,000,000 and the plaintiff obtaining the land and building permits and plans. The plaintiff then introduced Ashforth to GECC as his joint venture partner. In November, 1975, GECC and Ashforth agreed that they would be equal partners in the project, with the plaintiff receiving a 15 percent share as a limited partner.

On May 20, 1976, a closing was held for the formation of the partnership. SSI and GECC became general partners, each with a 42.5 percent interest, while the plaintiff became a 15 percent limited partner. At the time, the plaintiff was without significant assets. The plaintiff claimed that between October, 1975, and the closing, GECC made repeated threats to foreclose on the plaintiffs family home. Under these circumstances, which the plaintiff claimed to constitute duress, the plaintiff signed the closing documents and a limited release as to GECC. He conveyed his interest in the Stamford property to the partnership, receiving $300,000 and the cancellation of approximately $1,800,000 in debt owed to GECC. At the time of the signing of the limited release, the plaintiff believed that the mortgages on his properties were enforceable. The plaintiff claimed that he subsequently learned from Tierney that the mortgages were not legally enforceable.

On May 16, 1979, the plaintiff instituted this action in six counts. Later, he filed an amended complaint containing two counts. In the first count, the plaintiff alleged that all of the defendants had engaged in a conspiracy to defraud him of his one-half interest in the Stamford Square project by means of various misrepresentations, namely, that GECC would never foreclose on the plaintiffs home and that GECC could validly foreclose its mortgages on the plaintiff’s property. He alleged that these misrepresentations were made in order to induce him to abandon efforts to obtain development financing for the project from any source other than GECC. The plaintiff further alleged that he relied on the misrepresentations by abandoning all such efforts, by committing himself to obtaining development financing from GECC, by agreeing to release claims against GECC and the other defendants, and by conveying the property to GECC. The plaintiff also alleged that he would not have signed the closing documents if he knew the mortgages were not enforceable, and that, at the time of closing, he had no knowledge of the claims he made in this case as he had relied on the representations of GECC and Ashforth regarding the property and mortgages, placing his trust and confidence in them. In the second count, the plaintiff alleged that the defendants GECC, Stanger, and Fitch tortiously interfered with his contractual relationship with Ashforth, or with the contractual negotiations between him and Ashforth. The defendants denied the critical allegations of the complaint, and filed numerous special defenses.

In pretrial proceedings, the court granted Tierney’s motion for summary judgment on the ground that the plaintiffs claim against Tierney was barred by the statute of limitations because Tierney left the employ of GECC in June, 1975, and thereafter had no authority with regard to the transactions which are the subject of this case. The case was thereafter tried to a jury. At the conclusion of the plaintiff’s evidence, the court granted Klock’s motion for a directed verdict. The jury returned a general verdict in favor of all of the remaining defendants on the complaint. This appeal followed.

A

The plaintiff’s first claim is that the trial court erred in granting Tierney’s motion for summary judgment. The court relied on Tierney’s statute of limitations defense in granting the motion.

The plaintiffs suit against Tierney was based on fraudulent misrepresentation. Claims based upon fraudulent misrepresentation are governed by the three year statute of limitations of General Statutes § 52-577. Wedig v. Brinster, 1 Conn. App. 123, 135-37, 469 A.2d 783 (1983), cert. denied, 192 Conn. 803, 472 A.2d 1284 (1984). Any fraudulent misrepresentations by Tierney were made prior to his departure from his employment with GECC, which was more than three years before the plaintiff sued Tierney.

In order to avoid the application of the statute of limitations to his claim, the plaintiff contends that the statute of limitations did not begin to rim until the May 20, 1976 closing because (1) Tierney’s wrongful conduct was part of a conspiracy among the defendants, and the statute of limitations did not begin to run until May 20,1976, when the last overt act pursuant to the conspiracy was completed; (2) Tierney committed acts of fraudulent concealment sufficient to toll the running of the statute of limitations; and (3) duress operated to toll the statute of limitations. We disagree.

Under the facts of this case, we need not address whether the limitations period with respect to a claim of fraudulent misrepresentation allegedly made during the course of a conspiracy begins to run only at the completion of the conspiratorial conduct. Prior to Tierney’s departure from his employment with GECC, the alleged conspiracy involved only GECC and its employees. The other defendants either did not yet exist or did not act in concert with GECC with respect to the subject matter of this litigation until after Tierney was no longer associated with GECC. Employees of a corporation acting in the scope of their employment cannot conspire with one another or with the corporation that employs them; each acts for the corporation and the corporation cannot conspire with itself. 15A C. J.S., Conspiracy § 2, pp. 599-600; Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.), cert. denied, 439 U.S. 1003, 99 S. Ct. 613, 58 L. Ed. 2d 679 (1978); Lieberman v. Gant, 474 F. Sup. 848, 875 (D. Conn. 1979), aff’d, 630 F.2d 60 (1980); Merkel Associates, Inc. v. Bellofram Corporation, 437 F. Sup. 612, 618 (W.D.N.Y. 1977); Cole v. University of Hartford, 391 F. Sup. 888, 891-94 (D. Conn. 1975). Since there was no conspiracy when Tierney allegedly made the misrepresentation regarding foreclosure of the plaintiffs home, the plaintiffs conspiracy claim did not bar the running of the statute of limitations with respect to Tierney.

We next consider the plaintiffs argument that the statute of limitations did not begin to run with respect to his claim against Tierney until some time in 1978 because of Tierney’s alleged acts of fraudulent concealment. This argument is without merit.

First, the plaintiff failed specifically to plead his claim of fraudulent concealment pursuant to General Statutes § 52-595, in response to Tierney’s statute of limitations defense. See Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983). Second, the record is devoid of any evidence suggesting affirmative acts of concealment on Tierney’s part. The plaintiff argues that silence will constitute an act of concealment if a fiduciary relationship exists between the parties. The plaintiff’s affidavit filed in response to Tierney’s motion for summary judgment, however, discloses no facts with respect to the existence of a fiduciary relationship between Tierney and the plaintiff. At most, the affidavit suggests that a fiduciary relationship may have existed between the plaintiff and GECC. See Albom v. Katz Corporation, 39 Conn. Sup. 533, 536, 466 A.2d 1026 (1983).

Finally, the plaintiff’s contention that issues of fact existed as to whether duress by Tierney tolled the statute of limitations, is also without merit. There was no evidence before the court from which it could have concluded that a genuine issue of fact existed on this question. The plaintiff has failed to refer this court to any portion of the record in support of this claim.

B

Klock retired from GECC on January 1, 1975. The trial court properly directed a verdict in favor of Klock for the reasons set forth in Part IA above: as an employee of GECC, he was not a part of any actionable conspiracy. Thus, the statute of limitations began to run with respect to the claim against him more than three years before suit was brought, and not, as claimed by the plaintiff, on May 20, 1976.

C

The plaintiff next raises two claims of evidentiary error. We have fully reviewed the record and the plaintiff’s arguments with respect to these claims. We conclude, however, that the court did not err in excluding the .evidence proffered by the plaintiff.

D

The plaintiff’s final claims of error pertain to the court’s instructions to the jury on two aspects of his theories of liability. The plaintiff, however, did not request interrogatories to the jury to obtain separate jury findings on the controverted issues in the case. Since the jury returned a general verdict for all the defendants, we “will presume that the jury found every issue in favor of the prevailing party.” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987). If there are two or more distinct defenses, and there is no error as to one of them, the court must presume that the jury found the facts with respect to that defense in favor of the defendants, and the general verdict must be sustained, regardless of any error which might have affected other defenses. Id. In this case, the defendants asserted numerous special defenses. See footnote 3, supra. The plaintiff’s claims of error do not implicate any of these special defenses. Thus, the general verdict rule precludes review of the plaintiffs claims of instructional error.

II

The Cross Appeal

The defendants SSA, SSI and Ashforth filed a counterclaim against the plaintiff. They alleged that the plaintiff breached certain warranties, representations and indemnities contained in the written partnership agreement dated May 20, 1976. That agreement provided that the plaintiff would indemnify the partnership and hold it harmless from any liability or obligation resulting from any breach of the covenants made thereto by the plaintiff, including fees and disbursements of counsel resulting from any attempt by any person to assert such liability or obligation. The only damages that these defendants sought to prove on the counterclaim were their legal fees.

The jury returned a verdict in favor of SSA against the plaintiff on the counterclaim in the amount of $15,001. The jury returned verdicts against SSI and Ashforth on the counterclaim. In response to the plaintiffs motion to set aside the verdict, the court modified SSA’s award on the counterclaim to $1. Defendants SSA, SSI, and Ashforth cross appealed from the judgment on the counterclaim.

A

The defendants first claim that the court erred in refusing to give their request to charge, which would have permitted the jury, in the absence of direct evidence regarding the amount of time devoted to the presentation of the case in court by the defendants’ counsel, to use the court’s estimate of that time. There was evidence introduced by the defendants regarding what was a reasonable hourly rate for legal services in the case. There was no evidence, however, of the amount of time spent by the defendants’ counsel, of any bills rendered or of any fee arrangement. Thus, the defendants sought to combine the evidence of an hourly rate with the court’s estimate of the time spent by the defendants’ counsel in court. The court, instead, instructed the jurors that they could award only nominal damages because “[tjhere has not been any evidence as to the defendants’ legal fees or costs.”

In support of their position, the defendants rely upon holdings by our Supreme Court and by this court that “courts may rely upon their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees.” Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984); Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 386, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985). This line of authority, however, applies where the amount sought is based on a contractual provision for “reasonable attorney’s fees.” Here, by contrast, the defendants’ claim was one of indemnification, in the words of the partnership agreement, to “hold [the defendants] harmless from ... all costs, expenses and damages, including fees and disbursements of counsel.” Under these circumstances, the fees sought by the defendants were reimbursement for their actual expenditures for legal services, an item of damages requiring evidence to support an award of more than nominal damages. Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245-46, 440 A.2d 306 (1982). Neither the court nor the jury was entitled to infer that the combination of the evidence of an hourly rate and the court’s estimate of the time spent in court constituted the fee of the defendants’ counsel.

B

The defendants next claim that the trial court erred in refusing to bifurcate the trial on the counterclaim in order to permit the jury to hear evidence on the issue of counsel fees separately from the other issues in the case. Recognizing that the issue of bifurcation of trial proceedings lies solely within the discretion of the trial court; In re Jose C., 11 Conn. App. 507, 508, 527 A.2d 1239 (1987); the defendants argue that the court abused that discretion in this case because proof of actual expenditures for legal services required the testimony of trial counsel, leaving the defendants with the Hobson’s choice between having counsel testify, thereby raising serious ethical considerations and possibly causing counsel’s disqualification from representation at trial, and not having counsel testify, leaving the defendants without evidentiary support for their claim for actual damages. We do not agree.

The short answer to the defendants’ claim is that the ethical dilemma perceived by the defendants simply did not exist. Our Rules of Professional Conduct provide that a lawyer may both act as an advocate and appear as a witness in the same trial where the lawyer’s “testimony relates to the nature and value of legal services rendered in the case.” Rules of Professional Conduct, Rule 3.7 (a) (2). In addition, the defendants were not required to prove their damages on the counterclaim through the testimony of their attorney. They could have testified regarding the amount of their attorney’s fees incurred in connection with the case, and introduced into evidence copies of their attorney’s statements for services rendered, or produced the testimony of an employee of their attorney who is responsible for preparing billing statements.

There is no error on either the appeal or the cross appeal.

In this opinion the other judges concurred.

       The original complaint was brought by the plaintiff Steve Day and the plaintiff Theodora Day. Thereafter, Theodora Day withdrew as a plaintiff.

       The defendants involved in this appeal and their relationships are as follows. The named defendant is General Electric Credit Corporation (GECC). The defendant Charles G. Klock was president of GECC until January 1,1975. The defendant John W. Stanger was vice-president and general manager of commercial and industrial financing for GECC and reported to Klock. The defendant Keith L. Fitch was in charge of real estate financing for GECC. The defendant Robert E. Tierney worked in Stanger’s department on Fitch’s staff as manager of loan origination. The defendant L. A. Bossidy, on January 1, 1975, replaced Stanger as manager of commercial and industrial financing and reported to Stanger, who became president, and Fitch reported to Bossidy.
      The defendant Stamford Square Associates (SSA) is a limited partnership of which the defendant General Electric Real Estate Credit Corporation (GERECCO), the designee of GECC, and defendant Stamford Square, Inc. (SSI), the designee of the defendant Henry A. Ashforth, Jr., are acting general partners, and of which the plaintiff is the limited partner. The defendant Bruce F. Cohen acted as Ashforth’s attorney during his negotiations with the plaintiff.
      The original complaint was withdrawn as to three other defendants.

       Tierney filed thirteen special defenses. GECC, GERECCO, Stanger, Klock and Bossidy filed eleven special defenses. Fitch filed twelve special defenses. Ashforth, SSI, SSA, and Cohen filed nine special defenses.

       Paragraph 14 of the plaintiffs affidavit states: “During the entire course of my business relationship with GECC, up until and including the closing on May 20, 1976,1 relied upon, trusted, and followed GECC’s advice and counsel regarding the development of the property and the financing of that development by GECC.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Marc L. Fowler et al. v. Kevin Weiss et al.
    (5717)
    Daly, Bieluch and Foti, Js.
    Argued February 17—
    decision released August 30, 1988

      Louis Ciccarello, for the appellants (defendants).

      Charles T. Busek, for the appellees (plaintiffs).
   Daly, J.

The defendants appeal from the judgment rendered, after a trial to the court, awarding the plaintiffs specific performance of a binder of sale as an enforceable contract for the sale of real estate.

The defendants claim that the trial court erred (1) in finding that the binder of sale agreement signed by the parties created a final enforceable agreement, (2) in concluding that the plaintiffs had sustained their burden of proof with regard to their ability to perform their obligation under the binder of sale, and (3) in granting specific performance. We find error.

The following facts are pertinent to this appeal. On August 18,1985, the parties executed a binder of sale agreement whereby the defendants agreed to sell their home, located at 6 Hazel Street, Norwalk, to the plaintiffs for $179,000. A down payment in the amount of $1790 was acknowledged with a superseding “contract of sale” to be signed on or before August 30, 1985, at which time an additional $16,110 would be paid. The sale was contingent upon the plaintiffs conducting a termite inspection and securing a first mortgage of not less than $139,000 at the then current interest rate for a term of thirty years before August 25, 1985. In addition, the binder provided that the closing was scheduled for October 15. The defendants expected to move to the Boston area due to a business relocation but this did not materialize. On or about August 28, 1985, the defendants notified their broker regarding this change of plans and their intent to withdraw from the binder agreement. At that particular time, the defendants returned the 1 percent binder deposit.

At trial, the plaintiffs testified that they applied for a $139,000 mortgage from the Gateway Bank and, on September 4, the bank sent them a written mortgage commitment. The plaintiffs, however, never signed the commitment, paid the required fee or provided the bank with the requested copy of the contract of sale. After making further inquiries concerning the house, the plaintiffs purchased another home in Norwalk.

The trial court concluded that the binder of sale was a legally enforceable agreement and that the plaintiffs were ready, willing and able to purchase the defendants’ house. The trial court ordered specific performance.

In the first claim of error, the defendants argue that this is not a case that can be determined by reference to the statute of frauds. The defendants contend that the parties intended the binder to serve as documentation of their intent to enter into an enforceable contract and a statement of information for the attorneys who would draft the document for the contract of sale.

The decisive question before us is whether the binder of sale was a binding contract or merely an informal writing documenting an intention to create a binding contract. In concluding that the binder of sale was not an enforceable contract, we examined the plain meaning of the contract in conjunction with the intent of the parties. As our Supreme Court has stated, “[t]he court will not torture words to import ambiguity where ordinary meaning leaves no room for ambiguity. Downs v. National Casualty Co., 146 Conn. 490, 494, 152 A.2d 316 [1959]. The circumstances surrounding the making of the contract, the purposes which the parties sought to accomplish and their motives cannot prove an intent contrary to the plain meaning of the language used. Connecticut Co. v. Division 425, 147 Conn. 608, 616-17, 164 A.2d 413 [1960]; see 3 Corbin, Contracts § 542; 4 Williston, Contracts (3d Ed.) § 609.” Zullo v. Smith, 179 Conn. 596, 601, 427 A.2d 409 (1980).

Whether the parties intended legally to bind themselves prior to the execution of a formal contract is to be determined from (1) the language used, (2) the circumstances surrounding the transaction, and (3) the purpose that they sought to accomplish. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 (1974). A consideration of these factors enables a court to determine if the informal contract, in this case the binder, is enforceable or merely an intention to negotiate a contract in the future. See Johnson v. Star Iron & Steel Co., 9 Wash. App. 202, 206, 511 P.2d 1370 (1973).

An examination of the binder of sale reveals that, by its own terms, the parties were not bound until a contract of sale was drawn. The binder specifically stated that a “CONTRACT OF SALE is to be signed on or before August 30,1985.” This contract of sale, unlike the binder, was to be a formal agreement between the parties. Moreover, it contemplated a large payment of $16,110 “on signing the superseding contract.” The plain meaning of supersede is “[t]o make obsolete, inferior, or outmoded ... to make void . . . annul, override ... to make superfluous or unnecessary . . . to take the place of . . . to take precedence over . . . . ” Webster, Third New International Dictionary. Applying the aforesaid definition of superseding we find that the mere execution of the binder by the parties did not create an enforceable contract. “It was essential to the creation of a contract that a formal written agreement should be executed. This formal written agreement was a condition precedent to the completion of a contract, and until such formal written agreement was executed the parties were still in the stage of negotiations for a contract and either party could withdraw from the negotiations.” Atlantic Terra Cotta Co. v. Chesapeake Terra Cotta Co., 96 Conn. 88, 101, 113 A.2d 156 (1921).

In Schlott v. Zaremski, 32 Conn. Sup. 567, 345 A.2d 588 (1975), the parties signed a binder form supplied by a real estate broker. The binder contained the words “subject to the following terms and conditions a formal contract.” The binder was signed by the defendants, but no formal contract was executed by the defendants. The appellate session of the Superior Court held: “In this matter the written proposal and the acceptance by Zaremski did not create a binding and enforceable agreement. The written proposal contained an expressed condition that it was subject to ‘a formal contract’ being prepared and executed. The mere acceptance of the proposal by Zaremski did not create a binding agreement. The phrase ‘a formal contract’ was a condition precedent to the completion of a binding and enforceable agreement and until such a contract was executed, the parties were still in the stage of negotiation for ‘a formal contract.’ The parties did not intend to be bound until ‘a formal contract’ had in fact been executed. The intention of the parties may be implied from the expressed language used. Atlantic Terra Cotta Co. v. Chesapeake Terra Cotta Co., 96 Conn. 88, 101, 113 A. 156 (1921). We agree with the trial court that the plaintiff is not entitled to a real estate broker’s commission, as a matter of law, because no binding and enforceable written agreement was entered into by [the prospective buyer] and the defendants. The written proposal is not one which a court of equity would specifically enforce.” Schlott v. Zaremski, supra, 568.

The language used in the binder here indicates that the agreement was not intended to be an enforceable contract. Although the binder agreement had the basic details of price and payment essential in any contract of sale for the house, it provided for the further negotiation of items involved in the purchase and sale. Moreover, only 1 percent of the negotiated price, $1790, was included in the binder agreement as opposed to 9 percent, $16,110, expected on the signing of the superseding contract. See Atlantic Terra Cotta Co. v. Chesapeake Terra Cotta Co., supra, 98.

The circumstances surrounding the binder transaction also indicate that the binder was not intended by the parties to be legally enforceable. The binder was prepared by a broker in her office and not by an attorney. The parties expected an attorney to draft the contract of sale. As our Supreme Court has recognized, “considering the importance of the transaction to the parties, the memorandum appears no more than a statement of some of the essential features of a proposed contract and not a complete statement of all the essential terms.” Westbrook v. Times-Star Co., 122 Conn. 473, 481, 191 A. 91 (1937).

Finally, the purpose which the parties sought to accomplish further evidences the parties’ intention that this was not a final enforceable contract. The plaintiffs testified that they felt free to negotiate any repair that was deemed necessary by the inspection while they were looking forward to the receipt of the superseding contract. Moreover, the plaintiffs testified that they did not sign the commitment from the bank because they were waiting for the signing of the superseding contract.

In view of our holding, it is unnecessary to consider the other claims of error.

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

In this opinion the other judges concurred.

       “BINDER OF SALE
      “Aug. 18 1985
      “AGREEMENT between (SELLER) Kevin & Elizabeth Weiss residing at 6 Hazel St. Norwalk who hereby agrees to SELL, and Marc L. & Rhonda S. Fowler residing at 329-E 65th St. New York N.Y. who hereby agrees to BUY the property known and described as 6 Hazel St. Colonial INCLUDING THE FOLLOWING EXTRA ITEMS stove/hood d.w. garb disp. Refr. w/ D. as is s/ss. PRICE $179,000
      “payable as BINDER $1790
      “payable on signing superseding CONTRACT $16,110 10 %
      “payable by MORTGAGE $139,000

        “payable on taking TITLE $22,100
      “TOTAL $179,000
      “This sale is contingent upon Buyer’s ability to obtain a first mortgage from a bona fide lending institution of not less than $139,000 at an interest rate of current % per annum for a term of 30 years.
      “Subject to building & termit insp. Aug 25/85.
      “Hale & Grant 100 East 42nd Street New York, N.Y. 10017
      “Atty for Sellers: Preston Searle # (212) 867-2310
      “Atty for Buyers: Chuck Busek
      “The SELLER and BUYER agree that Palotay Real Estate in cooperation with the listing broker IS THE BROKER in this transaction and the SELLER agrees to pay a commission as agreed.
      “MORTGAGE commitment to be obtained on or before Sept. 20/85
      “CONTRACT OF SALE to be signed on or before Aug. 30/85
      “CLOSING OF SALE to be on or before Closing Oct. 15/85
      “WITNESSES: (Signed)
      “ACCEPTED: (Signed)”

       The trial court, in its memorandum of decision, stated: “I see no reason why the binder is not binding on the defendants and I believe it satisfies the requirements of the Statute of Frauds.”

       Black’s Law Dictionary, 5th Ed. defines supersede as to “obliterate, set aside, annul, replace, make void, inefficacous or useless, repeal.”


author: Norcott, J.

text:
    Audrey B. Schultz v. Leonard H. Barker
    (5744)
    Bieluch, Stoughton and Norcott, Js.
    Argued April 20—
    decision released August 30, 1988

      David M. Royston, with whom, on the brief, was Frederick J. Miaño, for the appellant (defendant).

      David A. Zipfel, with whom was Stephen C. Barron, for the appellee (plaintiff).
   Norcott, J.

The plaintiff instituted this action seeking to enjoin the defendant from blocking a right-of-way over the defendant’s property which provides the plaintiff with access to her beachfront cottages. The defendant counterclaimed requesting that the court reform the deeds to both properties to show a right-of-way over the plaintiff’s property providing the defendant with access to the beach, enjoin the plaintiff from interfering with this right-of-way and award money damages.

The matter was heard by an attorney trial referee pursuant to General Statutes § 52-434 (a) (4). Upon issuance of the referee’s report, the defendant moved to correct certain findings pursuant to Practice Book § 438. In response, the referee issued a revised report. Pursuant to Practice Book § 440, the defendant filed an objection to the acceptance of this report. The trial court overruled the objection and rendered judgment for the plaintiff on both the complaint and the counterclaim in accordance with the findings and conclusions of the referee.

The defendant appeals from the judgment for the plaintiff on the counterclaim, asserting that the trial court erred (1) in concluding that the defendant does not have an easement by implication over the plaintiff’s property, (2) in allowing the admission into evidence of a letter from the defendant’s attorney to the plaintiff, and (3) in ruling that there was no mutual mistake in the failure of the parties to provide the defendant with deeded beach rights. We find no reversible error.

The record reflects the following facts relevant to this appeal. The plaintiff and the defendant are, respectively, sister and brother. They, along with another sister, Janice Habicht, not a party to this action, are the heirs of Herbert W. Coburn, their uncle, who owned a single tract of land at Howard Beach in Old Lyme, Connecticut. There are five cottages and a garage on this property. Coburn lived in one of the cottages and rented the other four until his death in 1968. In his will, Coburn devised a particular beachfront cottage to the plaintiff and one to Habicht. He devised the two rear cottages and the garage to the defendant. The plaintiff later purchased the remaining beachfront cottage from the estate. Since Coburn devised only the cottages and did not mention the land on which they were situated, the executor of his estate met with the heirs to discuss the subdivision of the property so that each heir would own the property on which his or her cottage stood. There was no discussion among the heirs regarding beach rights.

A surveyor was hired to produce a subdivision map which was subsequently approved by the Old Lyme planning and zoning commission. The map divided the property into four lots as follows: lot 1 on the northerly portion of the tract at Seaside Lane; lots 2, 3 and 4 on the southerly portion of the tract and running to the beach of Long Island Sound. The map designates lots 2 and 3 as one lot. Lots 2, 3 and 4 require access over lot 1 to reach Seaside Lane which terminates at the northwest corner of lot 1, and the map designated a ten-foot right-of-way along the westerly and southerly boundaries of lot 1 and bordering the northerly boundaries of lots 2 and 3. The map also indicates a tie line running east and west across the southerly portion of lots 2, 3 and 4 and designating a knoll and a drop in the terrain running toward Long Island Sound. The certificates of devise to lots 3 and 4 contain a description of the right-of-way to Seaside Lane, as does the deed to lot 2. Although no instrument mentions rights of access to the beach in favor of the rear parcel, the evidence supports the court’s finding that during the time Coburn owned the property, as well as the time it was owned by the parties and Habicht, residents of the property, whether owners, tenants or guests, walked between the cottages on lots 2, 3 and 4 and between the cottage on lot 2 and the westerly boundary of the property, to use the beach running southerly of the tie line. Until 1982, this pattern of use was with the consent of Coburn or, after his death, with the consent of the plaintiff and Habicht. Since 1982, the defendant has had Habicht’s permission to use the area on the west side of her cottage for beach access. The defendant also has obtained an easement by deed to pass over the area east of Habicht’s cottage and has built a set of steps leading from his property to that area.

In 1982, a dispute arose between the plaintiff and the defendant regarding the plaintiff’s use of the right-of-way from Seaside Lane to her cottages, and the defendant’s right to pass over the plaintiff’s property to reach the beach area. The defendant constructed a fence along the southerly border of his property blocking the plaintiff’s reasonable use of the right-of-way and access to her property. The parties agreed that the defendant would remove the fence and stipulated that the defendant would not interfere with the plaintiff’s use of the right-of-way. The trial court enjoined the defendant from obstructing or preventing the plaintiff from using this right-of-way. The court also concluded that the defendant had no right to pass over the plaintiff’s land to gain access to the beach.

I

The defendant’s first claim is that the court erred in concluding that he does not have an implied easement over the plaintiff’s property. In support of his claim, the defendant asserts that the court erred in finding that an easement over the plaintiff’s land was not reasonably necessary for the fair enjoyment of his property.

When the factual basis of a trial court’s decision is challenged, our function is to determine whether, in light of the pleadings and evidence in the whole record, these findings of fact are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Fattibene v. Kealey, 12 Conn. App. 212, 215, 530 A.2d 206 (1987). “In this state, the law regarding easements by implication arising out of the severance of title of two adjoining or commonly owned properties is well settled. ‘ “Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership . . . there arises by implication of law a . . . reservation of the right to continue such use. . . . [I]n so far as necessity is significant it is sufficient if the easement is ‘highly convenient and beneficial’ for the enjoyment” ’ of the dominant estate. D’Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954), quoting Rischall v. Bauchmann, 132 Conn. 637, 642-43, 46 A.2d 898 (1946), and cases cited therein; see also 2 G. Thompson, Commentaries on the Modern Law of Real Property (1980 Replacement) § 351, p. 292.” Powers v. Grenier Construction, Inc., 10 Conn. App. 556, 559, 524 A.2d 667 (1987).

The record reflects, and the court found, that there was unity of title to the plaintiff’s and the defendant’s parcels of land in Coburn until the property passed by certificates of devise and by sale in 1970, and that there was an apparent and obvious servitude which existed at the time of severance. Thus, three of the four criteria for an implied easement were established. As to the fourth criterion, that the use be reasonably necessary for the fair enjoyment of the property, the court found specifically that although an easement over the plaintiff’s property would enhance the enjoyment of the defendant’s property, it was not necessary to the fair enjoyment thereof. The record reasonably supports the court’s finding.

Although the previous use of the pathways over the plaintiff’s property is an indication that these routes were convenient and beneficial, the evidence indicates that the defendant has convenient access via alternate routes. The record discloses the undisputed fact that although access to the beach between lot 4 and the easterly boundary of the Habicht property formerly was not convenient because the area was overgrown, the area has been cleared, and the defendant has built steps from lot 1 to this part of lot 4. It is also undisputed that since 1983, the defendant has had access to the beach by a deeded right-of-way through this area. There also is an indication in the record that the occupants of the rear cottages are able to use the public beach to which the defendant undeniably has access. In light of the fact that the occupants of the rear cottages on lot 1 have other access to the beach, the trial court’s determination that the defendant did not meet his burden of proving reasonable necessity, and therefore was not entitled to an implied easement over the plaintiff’s property, was not clearly erroneous.

II

The defendant’s second claim is that the trial court erred in allowing into evidence a letter of February 17, 1983, sent by the defendant’s attorney to the plaintiff. The defendant asserts that the letter, in which the defendant, through his attorney, offered to purchase an easement over the plaintiff’s property between lot 2 and the plaintiff’s westerly boundary, was a settlement offer and as such was inadmissible.

“It has long been the law that offers relating to compromise are not admissible on the issue of liability. Nearing v. Bridgeport, 137 Conn. 205, 209, 75 A.2d 505 (1950); Stranahan v. East Haddam, 11 Conn. 507, 512-19 (1836); McCormick, Evidence (2d Ed.) § 274.” Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 490, 446 A.2d 1071 (1982). “ ‘Where it is not clear whether the statement is an offer of compromise or an admission of liability [or other fact] and the motive of the declarant is subject to speculation and conjecture, the statement must be excluded.’ Tait & LaPlante, Handbook of Conn. Evidence (1976) § 11.5 (d) (2), p. 189.” Id. “As a general rule an offer of a specific sum, by way of compromise, to prevent a suit and purchase peace, is inadmissible against the party making such offer.” 2 B. Holden & J. Daly, Connecticut Evidence § 106, p. 1048 (1988).

The letter from the defendant’s attorney was written after the dispute between the parties arose and before this litigation was commenced. In the letter, the defendant’s attorney offered to exchange the defendant’s one-third remainder interest in the parties’ mother’s property, allegedly worth approximately $20,000, for ownership of a right-of-way for beach access from the defendant’s lot 1 across the west side of the plaintiff’s lot 2. The first paragraph of the letter states, in part, that the defendant “has the feeling that it would be better for everyone were he to own a right-of-way so that he was not trespassing or otherwise upsetting the others in the family.” The last paragraph of the letter states that “this letter is merely to open the negotiation .... I am glad to do what I can to bring about a satisfactory solution to both [the defendant’s] problem and to yours . . . .’’Both the defendant and the attorney who wrote the letter testified that the offer was for the purpose of settling the dispute between the plaintiff and the defendant.

This letter was clearly an attempt to compromise or settle the dispute between the parties and offers a property interest valued at a specific sum to avoid suit and to purchase peace and as such was inadmissible.

“ ‘Although the ruling was erroneous, the defendant is not entitled to relief unless the error is also harmful.’ ” Connecticut Limousine Service, Inc. v. Powers, 7 Conn. App. 398, 401, 508 A.2d 836 (1986), quoting McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 40, 440 A.2d 801 (1981). We conclude that this error was harmless as there was sufficient other evidence, as set out in section I, supra, to support the court’s determination that the defendant was not entitled to an easement by implication over the plaintiff’s property.

III

Finally, the defendant claims that the court erred in ruling that there was no mutual mistake in the failure of the parties to provide deeded beach rights to the defendant. The referee in his report, and the trial court in its oral decision, found no evidence to support this claim. Because the defendant has not provided this court with any legal authority for his position and has argued only suppositions and the inconceivability of the common grantor's having devised lot 1 without beach access, his claim will not be considered. See In re Shavoughn K., 13 Conn. App. 91, 99-100 n.2, 534 A.2d 1243 (1984).

There is no error.

In this opinion the other judges concurred.

       “Tie line” is a surveyor’s term designating a line which is measured on the ground to connect objects to a survey. Webster, Third New International Dictionary.

       The defendant does not claim a right to use the beach in the area between the tie line and the front cottages. The parties agree that this area was always restricted to the use of the occupants and guests of the front cottages.

       Since Habicht is not a party to this action, the defendant does not claim an implied easement over this particular piece of property.


text:
    State of Connecticut v. Harrison Washington
    (6060)
    Bieluch, Stoughton and Norcott, Js.

      Argued April 21—
    decision released August 30, 1988

      Joette Katz, public defender, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Susan C. Marks, deputy assistant state’s attorney, for the appellee (state).
   Norcott, J.

After a trial to a jury, the defendant was found guilty of the crime of attempted assault in the first degree in violation of General Statutes §§ 53U-49 and 53a-59 (a) (l) and was acquitted of a charge of first degree robbery. The defendant, in his appeal from the judgment of conviction, raises the following four claims of error: (1) whether the trial court’s instructions deprived him of his constitutional rights by presenting for the jury’s consideration theories of liability unsupported by the evidence; (2) whether the court failed to. instruct the jury adequately on all the essential elements of General Statutes § 53a-59 (a) (1); (3) whether the court’s instruction with respect to General Statutes § 53a-49 (b) unconstitutionally limited the jury in its role as factfinder of an essential element of the crime of attempted assault in the first degree; and (4) whether the state produced sufficient evidence to prove the defendant guilty of the crime of which he was convicted. We find no error.

From the evidence presented at trial, the jury could reasonably have found the following facts. At approximately 1:15 a.m. on October 24,1986, Robert Dellarocco left a bar in Ansonia and began to walk to his boss’ house where he intended to spend the night. While en route, Dellarocco met a man with whom he discussed the possibility of a drug purchase. Dellarocco followed the man into a nearby housing project where Dellarocco purchased $25 worth of cocaine. After the exchange, the two men separated.

As Dellarocco continued through the project on his way to his boss’ house, he was confronted by an unknown black male and black female. The male approached him, placed a small, silver handgun to Dellarocco’s head and demanded money. The woman began to rifle through Dellarocco’s pockets whereupon Dellarocco grabbed the gunman’s arm and began to struggle with him. During this struggle, the gun discharged once, striking no one. At this point, the man who had earlier sold Dellarocco the cocaine reappeared and joined the fray in an attempt to take the contents of Dellarocco’s pockets. The struggle continued, and the gunman forced the handgun towards Dellarocco’s midsection. Dellarocco heard a “click,” which he took to be the sound of the hammer of the weapon being cocked. The confrontation ended when the woman yelled “police,” and the assailants fled.

Ansonia police officer Richard Spataforte testified that sometime after midnight on the night in question, he responded to the sound of a gunshot which he believed came from the Olson Drive project. While investigating, he met Dellarocco who claimed that he had just been robbed of money, which had been folded in sequence in his pocket. Dellarocco told the officer that the man who had stolen the money was black and was wearing very thick eyeglasses. Spataforte put Dellarocco into his squad car and drove to the rear of the project where the defendant and a black female, Denise Glover, both known to Spataforte, approached the car. The two persons were being closely followed by two police officers. Upon seeing the defendant, Dellarocco exited the car and identified him as the gunman. Spataforte then arrested the defendant whom he described as wearing eyeglasses with extremely thick lenses. A search of the defendant’s wallet revealed $108, $92 of which was folded in sequential order and the remainder of which was indiscriminately stuffed therein.

A second Ansonia police officer, Michael Abbels, also arrived at the project to investigate the report of the gunshot. While on foot, he observed the defendant and Glover moving toward him at a quick pace. Upon seeing the uniformed Abbels, the defendant ran into a building stairwell. Abbels testified that as he followed the defendant he observed him have a quick dialogue with two unknown persons in the vicinity of the second floor landing, and then continue to the third floor balcony where he appeared to hide something in a trash pile. The defendant then came back downstairs and, with Abbels and another Ansonia police officer following, walked toward Spataforte’s squad car.

Abbels further testified at trial that he retraced the defendant’s path up the stairwell and found an unexploded .38 caliber bullet with a dented primer on the second step and the remainder of a box of .38 caliber bullets in the trash pile on the third floor. The handgun was never located.

At trial, Abbels, who was qualified as an expert in firearms, testified as to the mechanics of firing a single action handgun and further testified that the dented primer on the recovered bullet was probably caused when an attempt to fire the bullet resulted in a misfire.

I

The defendant first claims that the trial court erred in reading General Statutes § 53a-49 (b) in its entirety to the jury in an attempt to explain what types of conduct would constitute a “substantial step” in an overall course of conduct planned to culminate in the commission of a crime in violation of General Statutes § 53a-49 (a) (2). The defendant maintains, inter alia, that only three of the examples listed under General Statutes § 53a-49 (b) were potentially relevant to the evidence and that the jury was therefore misled and confused by improper instructions which invited them to consider theories of liability unsupported by the evidence. We disagree.

We first note that the defendant did not take an exception to this claimed instructional error at trial and that he seeks review under the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Because the defendant’s claim involves a question of the denial of his fundamental constitutional right not to be convicted except upon proof beyond a reasonable doubt of each and every element of the charged offense, we will afford this claim Evans review. See State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). “[Our Supreme] court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial.” (Citations omitted.) Id.

The test to be applied to the review of alleged instructional error is whether “the charge considered as a whole presents the case to the jury so that no injustice will result.” State v. Stevenson, 198 Conn. 560, 569, 504 A.2d 1029 (1986). In this case, reading the court’s instructions as a whole, we find that the court correctly presented the case to the jury. In reading the text of General Statutes § 53a-49 (b) to the jury, the court was merely illustrating what type of conduct could constitute a “substantial step” in an overall course of conduct planned to culminate in the commission of a crime. In fact, just prior to reading the text of the statute to the jury, the court informed them that “these are examples.” Our Supreme Court has, in the past, approved of the practice of providing the jury with examples to help it to understand complex legal principles. State v. Kurvin, 186 Conn. 555, 569, 442 A.2d 1327 (1982). We have no doubt that the court’s instructions in this case aided the jury in understanding the difficult concept of what constitutes a “substantial step.” We further note that, to the extent the court’s instructions were overinclusive, the defendant has not met the burden of showing how he was prejudiced by the charge. See State v. Townsend, 206 Conn. 621, 627, 539 A.2d 114 (1988). Reviewing the charge as a whole, we find that the trial court used the irrelevant statutory examples only as illustrations and not as various statutory bases of liability which were unsupported by the evidence for the jury to consider. Cf. State v. Williams, supra, 363.

II

The defendant’s second claim of error is that the trial court failed to instruct the jury adequately on all the essential elements of General Statutes § 53a-59 (a) (1). We, again, will afford Evans review to this claim of instructional error not raised at trial.

The essence of the defendant’s claim is that the trial court erred by not instructing the jury that a violation of General Statutes § 53a-59 (a) (1) requires not only an intent to cause serious injury to another person but also an intent that the injury be caused by means of a deadly weapon or a dangerous instrument. We find the defendant’s claim to be wholly without merit.

We have recently rejected a similar claim, based principally on General Statutes § 53a-60 (a) (2), in State v. Tucker, 9 Conn. App. 161, 167-68, 517 A.2d 640 (1986). While Tucker dealt with the crime of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), the pertinent statutory language regarding “intent” is identical to that in General Statutes § 53a-59 (a) (1). General Statutes § 53a-59 (a) (1) is a statutory crime which confines the element of intent to the “intent to cause serious physical injury.” The intent instruction used by the trial court here is indistinguishable from numerous charges which our Supreme Court and this court have repeatedly approved with respect to General Statutes § 53a-59 (a) (1). See State v. Brokaw, 183 Conn. 29, 33-34 n.3, 438 A.2d 815 (1981); State v. Truppi, 182 Conn. 449, 461-62 n.9, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); State v. Fernandez, 5 Conn. App. 40, 50, 496 A.2d 533 (1985). Accordingly, we find no error on this claim.

Ill

The next claim of error is that the trial court’s instructions as to General Statutes § 53a-49 (b) were tantamount to a directed verdict of guilty in violation of the defendant’s state and federal constitutional rights to a fair trial. Once again we note that this claim was not raised in the trial court by a written request to charge or an exception, but the claim warrants our review under the exceptional circumstances exception of State v. Evans, supra. See State v. Findlay, 198 Conn. 328, 345, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).

The defendant contends that the court’s instructional error turned a question of fact for the jury into a judicial determination. We first recognize that a trial court may never impose a directed verdict of guilty regardless of the weight of the evidence; General Statutes § 54-89; State v. Ubaldi, 190 Conn. 559, 573, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); and that “it is the state’s constitutional burden to prove each element of the crime charged beyond a reasonable doubt.” (Citations omitted.) State v. Pollitt, 205 Conn. 132, 151, 531 A.2d 125 (1987).

During its charge on “attempt” to commit a crime under the provisions of General Statutes § 53a-49 (b), the trial court instructed the jury that the examples of behavior articulated in the statute were strongly corroborative of a defendant’s criminal purpose and should not be held insufficient as a matter of law. General Statutes § 53a-49 (b) actually provides, in pertinent part, that the statutory examples of a substantial step “if strongly corroborative . . . shall not be held insufficient as a matter of law.” The state concedes that the challenged instruction is technically erroneous, and thus our review of this claim is limited to whether the error was harmful.

In examining jury charges, we review the instructions as a whole and do not judge individual instructions “ ‘ “in artificial isolation from the overall charge.” (Citations omitted.) Cohen v. Cohen, 182 Conn. 193, 199, 438 A.2d 55 (1980).’ State v. Braswell, 194 Conn. 297, 311, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985).” State v. Usry, 205 Conn. 298, 314-15, 533 A.2d 212 (1987). If, in the context of the entire charge, the challenged instruction is harmless beyond a reasonable doubt reversal is not required. State v. Coleman, 14 Conn. App. 657, 679-82, 544 A.2d 194 (1988).

Examining the jury charge in its entirety against these standards, we find harmless error. The present case is very similar to State v. Price, 205 Conn. 616, 620, 534 A.2d 1196 (1987), where our Supreme Court held that another misstatement of the corroborative principle language in General Statutes § 53a-49 (b) was harmless error because the jury instructions, when viewed in their entirety, properly guided the jury in their determination of whether the essential elements of the crime had been proven.

We have already noted that the trial court made it clear that the articulated list of “substantial steps” under General Statutes § 53a-49 (b) were but examples for the jury’s consideration. In conjunction with this explanation, the trial court also clearly explained the corroborative principle of attempted assault in the first degree both before and immediately after the misstatement. Notwithstanding the misstatement of the statutory language, the jury was clearly told that it was their function to determine whether, in fact, any “substantive step” did exist.

Furthermore, we note that the element of intent was one of the most important elements in this case. It is clear from the trial court’s charge that the responsibility to determine whether this element had been proven beyond a reasonable doubt was also left to the jury’s factfinding role.

“In determining whether a jury instruction was misleading, it is appropriate to consider how it bears on the issues in the case. See generally State v. Huff, 10 Conn. App. 330, 331-32, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).” State v. Shaw, 12 Conn. 294, 305, 530 A.2d 653 (1987). In the present case, the state’s evidence, set forth in detail above, was strong. The evidence of the defendant’s conduct was clearly not consistent with that of an innocent person. From the strength of the evidence and the inferences which could be reasonably drawn therefrom, it is not reasonably possible that the jury, in finding the defendant guilty of attempted assault in the first degree, could have been misled by the trial court’s misstatement. See State v. Price, supra, 621. We find that the jury instruction gave the jurors a clear understanding of the elements of the crime charged, and that, although the trial court made a technical misstatement with respect to the statutory language, it is not reasonably possible that the language complained of could have affected the jury’s verdict. There was no constitutional error in the instruction.

IV

The defendant’s final claim of error is that there was insufficient evidence to support the jury’s guilty verdict of attempted assault in the first degree. The defendant maintains that the state failed to prove beyond a reasonable doubt that the defendant possessed the intent to cause the victim serious physical harm under the provisions of General Statutes § 53a-59 (a) (1) and that the defendant engaged in conduct which constituted a “substantial step” which was “strongly corroborative” of the criminal purpose of assault in the first degree under the provisions of General Statutes § 53a-49 (b).

“ ‘When a claim on appeal challenges the sufficiency of the evidence, we undertake a two part task. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986).” State v. Summerville, 13 Conn. App. 175, 184-85, 535 A.2d 818 (1988). The relevant question for our review is whether, after viewing the evidence in the light most favorable to the state, “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

We find that, under these standards, the defendant’s claim of error must fail. The defendant first contends that the evidence of his intent to cause serious physical injury was insufficient because the state failed to prove that he deliberately aimed the firearm at the victim or that he pulled the trigger. Intent usually is proved only by circumstantial evidence and inferred from the conduct and statements of the defendant. State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984). “Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” Id.

In the present case, the victim, Dellarocco, testified that the defendant had initially pointed a gun at his head before the struggle between the two men ensued. Dellarocco further testified that during the struggle, the defendant threatened him with “a bullet in the chamber” and then aimed the gun at his midsection. Dellarocco heard the sound of a “click,” which according to the expert witness on firearms, if “loud” and “resounding,” represented the sound of the hammer being released by the pull of the trigger. The expert, Abbel, testified further that the .38 caliber bullet which he himself had found on the stairway showed signs of a “dented primer,” indicating that the gun had misfired in an attempt to expel the bullet. From this evidence, the jury could well have reasonably concluded that, but for the misfire, the victim would have been shot in the stomach. On the basis of the cumulative effect of this evidence, we cannot say that there was insufficient evidence of the defendant’s conduct from which the jury could reasonably have inferred that the defendant intended to shoot the victim and thus cause him serious physical injury.

The defendant next asserts that the evidence does not establish beyond a reasonable doubt that he committed an act which constituted a substantial step toward the commission of assault in the first degree. “ ‘To constitute a “substantial step,” the conduct must be “strongly corroborative of the actor’s criminal purpose.”. . . “The application of this standard will, of course, depend upon the nature of the intended crime and the facts of the particular case. . . . This standard properly directs attention to overt acts of the defendant which convincingly demonstrate a firm purpose to commit a crime.” ’ (Citations omitted.)” State v. Upshaw, 7 Conn. App. 257, 261, 508 A.2d 791 (1986), quoting State v. Green, 194 Conn. 258, 276-77, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985).

Under the facts of this case, which do not bear repeating here, it is clear that the defendant’s conduct during the struggle with Dellarocco fully established sufficient evidence from which the jury could have reasonably concluded that he took a “substantial step” toward the commission of the crime of assault in the first degree. The act of pulling the trigger of a loaded handgun, while it is pointed at the midsection of a person, is strongly corroborative of an intention to cause serious physical injury to that person. We find that the defendant’s argument that these circumstances cannot reasonably be construed to exclude beyond a reasonable doubt a rational hypothesis consistent with elements associated with crimes other than that for which the defendant was found guilty is unpersuasive and without merit.

We conclude that sufficient evidence existed for the jury to reasonably have found that the defendant committed a substantial step in a course of conduct planned to culminate in his commission of the crime so as to justify his conviction for attempted assault in the first degree.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides in pertinent part as follows: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime. ...”

       General Statutes ,§ 53a-59 provides in pertinent part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. ...”

       General Statutes § 53a-60 (a) provides: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to. such person or a third person by means of a deadly weapon or a dangerous instrument.”

       The defendant claims that his constitutional right to due process was violated under both the federal and Connecticut constitutions. The constitution of Connecticut, article first, § 8, provides in pertinent part: “No person shall be . . . deprived of life, liberty or property without due process of law.” The fifth amendment of the United States constitution provides in pertinent part: “No person shall ... be deprived of life, liberty, or property, without due process of law,” and the fourteenth amendment provides: “[N]or shall any state deprive any person of life, liberty or property, without due process of law.”

       The pertinent section of the trial court’s instructions to the jury reads: “The state has also charged the accused with the crime of attempted assault in the first degree, in violation of 53a-49, and 53a-59 (1), of the Connecticut General Statutes. . . .
      “Again, you must determine what intention the defendant had in his mind. As I have previously stated, you may determine his intent from his conduct in the light of the surrounding circumstances and from what he himself may have at any time said his intention was. To be a substantial step, the conduct must be strongly corroborative of the defendant’s criminal purpose.
      “Without negating the sufficiency of other conduct, the following is strongly corroborative of the actor’s criminal purpose and shall not be held insufficient as a matter of law: lying in wait; searching for or—these are examples—lying in wait; searching for or following the contemplated victim of the crime; enticing or seeking to entice the contemplated victim of a crime to go to the place contemplated for its commission; reconnoitering the place contemplated for its commission; unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; possession of materials to be employed in the commission of the crime which are specifically designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; possession, collection or fabrication of materials to be employed in the commission of the crime when such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “It is for you to determine on the evidence whether the accused intentionally did anything which constituted a substantial step in a course of conduct which he planned to culminate in the commission of the crime of assault in the first degree by means of a deadly weapon if the circumstances were as he believed them to be.”


author: O’Connell, J.

text:
    Beatrice F. Niles v. Richard B. Niles
    (6022)
    Daly, O’Connell and Foti, Js.
    Argued April 14—
    decision released August 30, 1988

      George J. Bradford, with whom were William Citti and, on the brief, Maria T. Tomasku, for the appellant (plaintiff).

      Richard B. Niles, pro se, the appellee (defendant).
   O’Connell, J.

The plaintiff wife appeals from a post-judgment order in a dissolution action, which awarded the defendant husband interest on his share of the proceeds of the sale of the marital home. The plaintiff claims that the trial court erred (1) in not applying the doctrine of res judicata to deny interest, and (2) in applying General Statutes §§ 52-350Í and 37-1 to a “family judgment.” We find no error.

The parties previously appeared before this court in Niles v. Niles, 9 Conn. App. 240, 518 A.2d 932 (1986), the details of which will not be repeated here. It is sufficient for purposes of the present appeal to state that the parties’ marital home was sold on February 25, 1985, and that, by judgment rendered on August 9, 1985, the defendant became entitled to $67,816.65 as his share of the proceeds. The trial court’s judgment was affirmed in Niles v. Niles, supra, on December 9, 1986. The plaintiff failed to pay the defendant his share until February 2, 1987, and then only after a motion had been filed to compel her to do so.

The defendant again returned to court seeking post-judgment interest on the $67,861.65, to which he claimed entitlement from August 9, 1985, the date of the original judgment. The trial court agreed with the defendant and awarded postjudgment interest in the amount of $8952.83, for the period commencing August 9,1985, plus further interest at a per diem rate of $14.87 from April 3,1987, the date the motion was heard, until the date of payment of such interest.

The plaintiff first claims that the trial court erred in failing to apply the doctrine of res judicata to prevent the award of postjudgment interest. Under this doctrine, a final judgment on the merits by a court of competent jurisdiction precludes the relitigation of all relevant claims which were litigated or which might have been litigated in the initial action. Ven Nguyen v. DaSilva, 10 Conn. App. 527, 531, 523 A.2d 1369 (1987). When this matter was before the trial court on August 9,1985, only the question of prejudgment interest was litigated. The matter of postjudgment interest was not before the court, as it could not have been presumed that the plaintiff would fail promptly to remit to the defendant his share of the sales proceeds, in light of the trial court’s judgment stating the defendant was so entitled. We. therefore conclude that the doctrine of res judicata did not bar the trial court’s award of post-judgment interest, as that matter had not and could not previously have been litigated.

The plaintiff next claims that the trial court erred in holding that interest may be awarded on the marital home sale proceeds which the plaintiff contends derived from a “family judgment.” We assume that the plaintiff, by the use of that term, intends to refer to “family support judgments.” For purposes of postjudgment procedures, that term is defined in General Statutes § 52-350a (7) as “a judgment, order or decree of the superior court for payment of a legal obligation for support or alimony to a spouse, former spouse or child and includes any such order for periodic payments whether issued pendente lite or otherwise.” There is no statutory definition of the term “family judgment” used by the plaintiff.

The defendant, on the other hand, argues that the judgment in question was not a family support judgment, but rather constituted a “money judgment,” as defined in the pertinent part of § 52-350a (13) as “a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money, other than a family support judgment.” We agree with the defendant.

It is apparent that an order for the payment of money from the sale of real estate constitutes a “money judgment” and not a “family support judgment,” as those terms are defined, despite the judgment’s origin in an action on the family docket. One party cannot, at its whim, deprive another of monies due and owing simply by changing the characterization of the obligation owed. While similarities exist between support payments and property settlements, we recognize that each serves a distinct purpose. Support, which is generally modifiable, often serves to satisfy an ongoing obligation, whereas a property settlement constitutes a final resolution of a dispute, and as such, warrants the penalty of interest when satisfaction is not obtained. We therefore conclude that the trial court properly ordered that postjudgment interest be paid. See LaBow v. LaBow, 13 Conn. App. 330, 353, 537 A.2d 157 (1988).

Even if we assume, arguendo, that there is a broader classification of judgment known as a “family judgment” that exists dehors our statutes, we still conclude that the trial court did not commit error. “A determination of whether or not statutory interest is to be awarded as an element of damages ‘ “is one to be made in view of the demands of justice rather than through the application of any arbitrary rule.” ’ Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971). ‘The real question in each case is whether the detention of the money is or is not wrongful under the circumstances.’ Id. . . .” (Citation omitted.) Vernon Foodliner, Inc. v. Central Mutual Ins. Co., 1 Conn. App. 595, 599, 474 A.2d 468 (1984); see also LaBow v. LaBow, supra. In the present case, the plaintiff had the use of money to which the defendant was entitled from August 9, 1985, until February 2, 1987. Justice requires that she pay interest for the use of the money for that period.

There is no error

In this opinion the other judges concurred.


author: Bieluch, J.

text:
    Gaeton Simonetti v. Peter H. Lovermi et al. Lovermi Building Company v. Clintonville Manor Realty et al.
    (5818)
    Daly, Bieluch and Foti, Js.
    Argued February 17—
    decision released August 30, 1988

      Thomas V. Battaglia, Jr., for the appellants (named defendant et al. in the second case).

      Harold B. Yudkin, for the appellee (plaintiff in the second case).
   Bieluch, J.

This appeal by Gaeton Simonetti and his wife, Elizabeth P. Simonetti, and Clintonville Manor Realty, which they own in partnership, contests an award of attorney’s fees in a breach of contract action where the party claiming attorney’s fees under the contract was found to have breached the contract, and the award of interest to that party. The Simonettis and Clintonville Manor Realty claim that the trial court erred in awarding attorney’s fees to the Lovermi Building Company after the trial court found that the company had breached the contract between the parties. They also claim that the court abused its discretion in awarding prejudgment interest on the damages awarded to the company. We find error in part.

The following facts are relevant to the issues on appeal. These consolidated cases arose out of a contract for masonry work in the construction of a convalescent home in North Haven. Gaeton Simonetti was part owner of the land on which the home was being built, and his construction company, Simonetti Construction Company, was the general contractor of the project. The Lovermi Building Company, a corporation of which Peter H. Lovermi was president, was the masonry subcontractor.

The contract between Gaeton Simonetti and the Lovermi Building Company was signed on May 25, 1982. The company agreed to furnish labor and materials on the project for the sum of $148,500. The work began shortly after the contract was signed, and progressed to near completion. On October 8, 1982, however, the hostile personal relationship between Gaeton Simonetti and Peter H. Lovermi culminated in an incident at the work site that led to Lovermi’s being ordered off the site by Simonetti. The court found that Lovermi’s conduct terminated the contract. Shortly after this incident, two actions were initiated.

In the first action, Simonetti v. Lovermi, Superior Court, judicial district of Ansonia-Milford, Docket No. 12135 (October 13, 1982), Simonetti claimed damage by the company’s stoppage of work. The second action Lovermi Building Co. v. Clintonville Manor Realty, Superior Court, judicial district of New Haven, Docket No. 211308 (October 27, 1982), sought foreclosure of a mechanic’s lien. A bond was substituted for the lien, and the claim was expanded to include not only a claim for the work completed under the contract, but also for alleged extras provided as well. This second action was subsequently transferred to the court at Milford, where the two actions were consolidated for trial.

The court rendered judgment on three of the four counts of the amended complaint in the first action in favor of Simonetti, the plaintiff in that case. Simonetti was awarded damages of $10,218.41, with interest from January 1, 1983. This judgment was subsequently opened on motion by Simonetti, and the award of damages was increased to $16,013.92, with interest from the same date. In the second action, the court rendered judgment for the plaintiff, Lovermi Building Company, and awarded it $35,429.22, with interest from January 1,1983. This figure included the sum of $7085.84 awarded for attorney’s fees. The defendants in the second action have appealed from the judgment rendered in favor of the Lovermi Building Company.

The defendants first claim that the trial court erred in awarding attorney’s fees to the plaintiff, Lovermi Building Company, after the court had found that the company breached its contract with Gaeton Simonetti. We agree.

The court awarded attorney’s fees to the plaintiff under the provision of the contract between the parties which states: “If account is turned over to an attorney for collection, customer agrees to pay a reasonable attorney’s fee, computed on the unpaid balance.” The court found that a fee of 25 percent of the amount due to the plaintiff would be reasonable, and awarded a fee of $7085.84, a sum computed on the balance of $28,343.38 it found due for work and materials under the contract.

The plaintiff was entitled to recover for the work it had substantially performed under its contract. See Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 413-14, 538 A.2d 219 (1988); Vincenzi v. Cerro, 186 Conn. 612, 615-16, 442 A.2d 1352 (1982). Where a contractor is allowed recovery for the value of services rendered, “ ‘[sjuch recovery is allowed, not upon the original contract, for that has been breached, but in quasi-contract upon the theory that if such recovery were not allowed the other party would be unjustly enriched at the expense of the contractor.’ ” Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 439, 52 A.2d 137 (1947), quoting Kelley v. Hance, 108 Conn. 186, 188, 142 A. 683 (1928). See Morello v. J. H. Hogan, Inc., 1 Conn. App. 150, 152, 468 A.2d 1248 (1984).

The right of the plaintiff Lovermi Building Company to recover for the work it had performed was based in equity, not upon the original contract between the parties. The trial court erred when it based the award of attorney’s fees on a provision of the contract which had been breached and was no longer in force. Attorney’s fees are recoverable only when a contract provides for such recovery or when it is allowed by statute. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984); Peterson v. Norwalk, 152 Conn. 77, 80, 203 A.2d 294 (1964); Bross Line Construction Corporation v. Ryan Crane Service Corporation, 32 Conn. Sup. 181, 182, 345 A.2d 594 (1975). The plaintiff could not recover attorney’s fees under the breached contract, and no such claim for statutory fees was involved in this case.

We also note that the plaintiff’s own breach precipitated the litigation in which the legal fees at issue were awarded. The plaintiff, because of its substantial performance, was entitled to recover the value of the materials and services supplied under the breached contract. It would be inequitable, however, to allow the party in default under the contract to recover attorney’s fees after its own wilful breach led to the litigation for which the fees were incurred.

We approve the well reasoned decision of the Court of Appeals of Louisiana in U-Finish Homes, Inc. v. Lanzl, 202 So. 2d 339 (La. App. 1st Cir. 1967). This was an action to recover under a mortgage note that provided for the payment of attorney’s fees. The note and mortgage secured payment due the plaintiff contractor under a contract to build three homes for the defendant. In a suit to collect on the mortgage note, the court found that the plaintiff had breached the underlying contract. After allowing the plaintiff to recover the amounts due under the note less the damages caused to the defendants, the court found that the plaintiff’s breach of the contract was “sufficient to vitiate plaintiff’s demand for ‘reasonable attorney’s fee.’ ” Id0., 344. See also National Roofing & Siding v. Gulf Coast Oil Co., 422 So. 2d 204 (La. App. 4th Cir. 1982).

The defendants next claim that the trial court erred in awarding the plaintiff prejudgment interest on the damages awarded. “ ‘Whether interest is a proper element of damages is primarily an equitable determination and is a matter which lies within the discretion of the trial court.’ State v. Stengel, 192 Conn. 484, 487, 472 A.2d 350 (1984); Perl v. Case, 3 Conn. App. 111, 116, 485 A.2d 1331 (1985).” Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 386, 494 A.2d 1216 (1985). Interest may be awarded at the statutory rate from the time the money becomes due. Marcus v. Marcus, 175 Conn. 138, 146, 394 A.2d 727 (1978); Neiditz v. Morton S. Fine & Associates, Inc., 2 Conn. App. 322, 329-30, 479 A.2d 249 (1984), rev’d in part, 199 Conn. 683, 508 A.2d 438 (1986). The court’s decision to award interest is subject to reversal only upon a showing of an abuse of discretion. Perl v. Case, supra, 116; Vernon Foodliner, Inc. v. Central Mutual Ins. Co., 1 Conn. App. 595, 600, 474 A.2d 468 (1984).

The court found that the plaintiff was due $22,491.08 for the work it had substantially performed on the construction project, and that it was also entitled to the sum of $5852.30 for extras furnished in addition to the work specified under the contract, for a total award of damages in the amount of $28,343.38. The court also allowed the plaintiff attorney’s fees in the amount of $7085.84. The court added the award of attorney’s fees to the award of damages for a total judgment of $35,429.22. To this final judgment amount, the court added statutory interest from January 1,1983, thereby compounding its initial error in awarding attorney’s fees to the plaintiff.

Where it is undisputed that some amount was due and owing, and nothing in the record indicates that there was an abuse of discretion, it is not error to award interest. Perl v. Case, supra. “ ‘The real question in each case is whether the detention of the money is or is not wrongful under the circumstance.’ Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971). The question is ‘whethér the interests of justice require the allowance of interest as damages for the loss of use of money.’ Bertozzi v. McCarthy, 164 Conn. 463, 466-67, 323 A.2d 553 (1973) . . . .” Sperry v. Moler, 3 Conn. App. 692, 694-95, 491 A.2d 1115 (1985). The court found that the plaintiff was entitled to an award of damages for the work it had performed, and for the extras it had furnished under the breached contract. The court’s award of interest calculated on this award of damages, exclusive of attorney’s fees, was not erroneous.

Although our finding of error in the court’s award of attorney’s fees to the plaintiff makes consideration of the question of prejudgment interest on this award unnecessary, we note that this was erroneous in any event. Interest is awarded at the maturity of a debt from the time the money becomes due. Marcus v. Marcus, supra; Neiditz v. Morton S. Fine & Associates, Inc., supra. Even if the attorney’s fees were properly awarded, the debt on the award would become due at the time judgment was rendered. Interest on such award could begin to accrue only from that date for any subsequent post judgment collection of the amount.

There is error in part, the judgment is set aside and the case is remanded to the trial court with direction to render judgment for the plaintiff in the amount of $28,343.38, with interest from January 1, 1983.

In this opinion the other judges concurred.

       The Simonettis and Clintonville Manor Realty also claim that if the award of attorney’s fees was appropriate, the court erred in its calculation of the amount of the fees. Because this claim was contingent upon our finding that the award of attorney’s fees was proper, it will not be addressed.

       The trial court specifically found that Simonetti and the company entered into the contract even though Peter H. Lovermi appeared to sign the agreement individually, and not as an officer of the corporation.

       The defendants in this action were Clintonville Manor Realty, Gaeton Simonetti, Elizabeth P. Simonetti and Cascais Brothers Concrete Company, a concrete masonry subcontractor for Simonetti Construction Company.

       No evidence was offered of any damages concerning the claim set out in the fourth count of the amended complaint, and judgment for the defendant was rendered on that count.

       Pursuant to a stipulation of the parties, Lovermi Building Company was ordered by the court to pay Cascais Brothers Concrete Company, a subcontractor, the amount of $1174.50, plus interest from the date of the judgment.