author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. BRUCE FELDER
    (13501)
    (13503)
    Dupont, C. J., and Heiman and Hennessy, Js.

      Argued September 12
    decision released December 19, 1995

      Matthew J. Collins, for the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kimberly A. Graham and Kathleen McNamara, assistant state’s attorneys, for the appel-lee (state).
   HENNESSY, J.

The defendant, Bruce Felder, appeals from a judgment of conviction, after a jury trial, of four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and four counts of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). The court sentenced the defendant to fourteen years of incarceration on each of the robbery counts and eight years on each of the larceny counts with all sentences to run concurrently.

The defendant claims that the trial court improperly (1) suppressed witnesses’ prior statements during a suppression hearing and at trial, (2) interpreted Practice Book § 752 and (3) denied a motion to suppress evidence of identifications of the defendant made by two witnesses. All three claims relate primarily to the rulings of the trial court on the defendant’s motion to suppress identification testimony. We affirm the judgment of the trial court.

The court found the following facts during the suppression hearing. Eraina Villani, Tamara Barriga, Kim Guerrette and Jessica Symonovich became lost while driving in Hartford and requested directions from a man standing near Pulaski Circle. The man drew a gun, entered the rear seat of the car and demanded that the women give him their money and jewelry. An interior light was lit, and the women had a clear view of the man’s face during the five to twenty minutes that he was in the car. The man then ordered the women out of the car, demanded the key from the driver and drove away. The police arrived at the scene within minutes, and the victims described their assailant to the police as a black male, approximately five feet seven inches tall and one hundred fifty pounds, with thin facial hair, consisting of a mustache, beard or goatee, a medium to dark complexion, a crooked nose and high protruding facial bones.

Seven days later, the women met at the Hartford police station to give written statements and to look at photographs in an attempt to identify their assailant. The police gave Barriga, Guerrette and Symonovich books of photographs to look at while Villani was in a separate room. The police showed Villani eight photographs of black males, similar in age and general appearance. She positively identified a picture of the defendant as being of the person who had committed the robbery. After viewing several pages of photographs, Symono-vich, who was seated at a conference table with Barriga and Guerrette, also saw a photograph of the defendant and identified it as being of the man who had robbed them. Barriga and Guerrette then viewed the photograph picked by Symonovich and identified it as being of the perpetrator.

I

We address the defendant’s first two claims together. The defendant first claims that the trial court improperly denied his request at the suppression hearing for the production of prior statements of the four witnesses pursuant to Practice Book § 752. During the cross-examination of Symonovich, the defendant requested production of any prior statements Symonovich had made. The state acknowledged possession of a statement, but argued that the statement was not discoverable prior to the witness’ testimony on direct examination at trial. The court agreed and denied the defendant’s request.

Relying on Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the defendant argues that his due process rights were violated because the prosecution suppressed evidence that was material and favorable to him. The defendant argues that the statements are material and favorable because each of the witnesses identified him because of his broken or disjointed nose, but three of the four witnesses testified that they did not include this facial trait in their prior statements to the police. The defendant claims that he was denied a fair suppression hearing and trial because the court did not order the prosecution to disclose these statements at the suppression hearing.

The state argues (1) that Practice Book § 752 does not require the state to produce statements of a witness in its possession that relate to the subject matter about which the witness has testified until the witness has been called by the state and testified on direct examination at trial, and (2) that because the evidence was disclosed during the trial, it could not be considered suppressed as that term is used in Brady. The defendant asserts that a literal interpretation of § 752, which does not require the state to produce prior statements of witnesses until trial, leads to unworkable and unfair results in that fairness requires that a defendant have access to statements at a potentially dispositive hearing.

At the suppression hearing, the defendant relied solely on the text of § 752 to support his request for Symonovich’s prior statement to the police. “The rules of statutory construction apply with equal force to Practice Book rules. State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981). ‘Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction.’ ...” (Citations omitted.) Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984). Section 752, however, clearly refers to a witness’ testimony at trial, not to pretrial motion hearings. Furthermore, this issue was addressed and settled in State v. Davis, 175 Conn. 250, 397 A.2d 1347 (1978). In Davis, our Supreme Court stated that “[sjection 533N [now § 752] specifically limits the availability of such a statement ‘until the witness has testified upon direct examination on the trial of the case.’ ” (Emphasis in original.) Id., 252; see also State v. Anonymous (83-FG), 190 Conn. 715, 733 n.13, 463 A.2d 533 (1983) (“§ 752 applies only after a witness has testified at a trial and is inapplicable to a pretrial hearing on a motion to suppress”). In addition, this court has held that a defendant has no right to statements under § 752 if the witness has not testified at trial. State v. Cardona, 6 Conn. App. 124, 128, 504 A.2d 1061 (1986).

A hearing on a motion to suppress identification is not potentially dispositive because such a motion, even if granted, would not terminate the prosecution. Unlike a finding of no probable cause, which deprives the trial court of jurisdiction over the defendant’s person; State v. Greenfield, 228 Conn. 62, 73, 634 A.2d 879 (1993); the granting of a motion to suppress identification has no such effect. Here, the state produced the statements at trial in accordance with the requirements of § 752, and the defendant used the statements in his cross-examination of the state’s witnesses at trial. The record, therefore, does not support the defendant’s claim that he was harmed or denied a fair trial by reason of the court’s refusal to deviate from the rules of practice.

Finally, the defendant contends, relying on Brady, that his due process rights were violated because the prosecution, irrespective of its good or bad faith, did not produce evidence favorable to him that was material to guilt after a request for such evidence. The principles set forth in Brady do not apply in this case. “Evidence . . . that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady.” State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). Because the statements were disclosed at trial, the defendant can complain only of the timing of the disclosure. Under these circumstances, the defendant bears the burden of proving that the disclosure came so late as to prevent him from receiving a fair trial. State v. Walker, 214 Conn. 122, 127, 571 A.2d 686 (1990). As noted previously, the record does not support the defendant’s claim that the timing of the disclosure denied him a fair trial or prejudiced him in any way.

The trial court acted correctly in denying the defendant’s request at the suppression hearing for witness statements.

II

The defendant’s final claim is that the court improperly denied his motion to suppress identifications made by Barriga and Guerrette. The court found that the procedure used with respect to the photographic identifications made by Barriga and Guerrette was unnecessarily suggestive. The court then stated: “Applying the Manson v. Brathwaite [432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)] factors, and upon a consideration of the totality of the circumstances, I feel all of the identifications are rehable, that they meet the reliability test . . . .” The defendant contends that the court abused its discretion in finding that the state had shown by clear and convincing evidence that, although the identification procedures employed involving Barriga and Guerrette were unnecessarily suggestive, the identifications made by these two witnesses were nevertheless reliable because each witness had an independent recollection of the defendant from her observations made during the commission of the offense.

If a court determines that an identification procedure was unnecessarily suggestive, the court may determine that the identifications are nevertheless reliable and thus admissible. State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). InManson v. Brathwaite, supra, 432 U.S. 114-15, the United States Supreme Court set forth the following factors for determining whether an identification is reliable although the identification procedure was unnecessarily suggestive: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty the witness demonstrated at the confrontation; and (5) the time between the crime and the confrontation. We weigh the corrupting effect of the suggestive identification against these factors. Our Supreme Court has adopted the factors set forth in Manson as those to be considered in determining the reliability of an identification subsequent to a suggestive identification procedure. State v. Ramsundar, supra, 10-11. Where the factual basis of the court’s decision is challenged, we must determine whether the facts that have been found are supported by the evidence or whether, in light of the evidence and the pleading in the whole record, those facts are clearly erroneous. State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).

The court found that the victims had ample opportunity to view the perpetrator’s face. Both Barriga and Guerrette testified that they saw the defendant when he was outside of the car, where there was some light, and almost all of the time when he was in the car because he ordered that the dome light in the car be kept on. Barriga testified that the defendant was in the car between five and ten minutes. Additionally, Barriga and Guerrette were within two feet of their assailant and had a full view of his face. The court further found that the attention of the victims was focused on the defendant’s face and gun. The witnesses also testified that the defendant, who was not more than a few feet from them, spoke to and pointed a gun at them. The court found that the victims provided an accurate description of their assailant to the police. Both Barriga and Guerrette testified that they told the police that the assailant was a black male with prominent cheekbones, wearing a black jacket and a hat. Barriga added that he was five feet eight or nine inches tall and had a light moustache, goatee and braids. Guerrette added that he was in his late twenties, had white lettering on his jacket and wore a baseball cap. The court found that all of the victims displayed a very high level of certainty that it was the defendant who had committed the crime. The record reflects that both Barriga and Guerrette had identified the defendant with some degree of certainty. Barriga testified that she was almost positive that the photograph she picked out was of the person who had committed the offense. Guerrette testified that she was certain that the photograph she selected was that of the assailant.

The court found that the ten day period between the commission of the crime and the identification of the photograph of the perpetrator was not sufficiently lengthy to render the identifications unreliable. The trial court was guided by State v. Howard, 221 Conn. 447, 455, 604 A.2d 1294 (1992), wherein the Supreme Court held that a two and one-half month hiatus between the commission of the crime and the identification was not so lengthy that it rendered the identification unreliable. See also State v. Parker, 197 Conn. 595, 600, 500 A.2d 551 (1985). The facts found by the trial court are supported by the record. Under the circumstances as presented, we conclude that the trial court did not improperly admit Barriga’s and Guerrette’s identification testimony.

The judgments are affirmed.

In this opinion the other judges concurred.

       An additional charge of larceny in the second degree in violation of General Statutes § 53a-123 (a) (1) was eliminated after a motion to suppress was denied by the court and a long form information was filed. Appeal No. 13501, ordered by this court to be consolidated with Appeal No. 13503, is an appeal from the judgment of the trial court that the defendant violated the terms of his probation. There are no issues briefed or arguments made in connection with that appeal.

       Practice Book § 752 provides: “Alter a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

         A review of the record does not show that the defendant made a request for prior statements of any other witness at the suppression hearing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ALAN CLARK v. LYNNE CLARK
    (14388)
    Landau, Schaller and Hennessy, Js.
    Submitted on briefs September 8
    decision released October 10, 1995

      Lisa A. Faccadio and Christine S. Dorsey filed a brief for the appellant (plaintiff).

      Edward J. Peters, Jr., filed a brief for the appellee (defendant).
   PER CURIAM.

This is an appeal by the plaintiff from the judgment of the trial court rendered pursuant to a pendente lite order.

The plaintiff claims that the trial court abused its discretion in granting the pendente lite order in the absence of notice, but the record lacks any facts or findings to support this contention. The plaintiff has failed to present a written memorandum of decision or a transcribed copy of an oral decision signed by the court explaining the factual basis for its decision. We have consistently stated that it is the responsibility of the appellant to provide an adequate record for review. Practice Book § 4061; Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993); State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). We see no reason to depart from this rule.

The judgment is affirmed.


text:
    JOSEPHINE RUTKA v. KIMBERLY COCHRAN ET AL.
    (13894)
    Dupont, C. J., and Foti and Freedman, Js.
    Argued September 18
    decision released October 10, 1995

      SebastianS. Ciarcia, forthe appellants (defendants).

      Norman F. Fishbein, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. FREDERICK WARREN
    (13793)
    Schaller, Spear and Hennessy, Js.
    Argued September 18
    decision released October 10, 1995

      Jeffrey D. Hutcoe, for the appellant (defendant).

      Denise B. Smoker, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne Mahoney, deputy assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE STREET BANK AND TRUST COMPANY, TRUSTEE v. JOSEPH A. WICKLIFFE ET AL.
    (14378)
    O’Connell, Foti and Heiman, Js.
    Argued September 14
    decision released October 10, 1995

      Sharon C. Webb, with whom, on the brief, was Geoffrey A. Hecht, for the appellant (named defendant).

      Charles Basil, with whom, on the brief, were James R. Byrne and Adam L. Bendett, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    F. J. DAHILL COMPANY, INC. v. RICHARD M. SULLIVAN
    (13818)
    Dupont, C. J., and O’Connell and Spear, Js.
    Submitted on brieis September 8
    decision released October 10, 1995

      Milton A. Bemblum and Nancy J. Vavra filed a brief for the appellant (defendant).

      Robert T. Harrington filed a brief for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    IN RE CAROLINE M.

    (14003)
    O’Connell, Fotl and Laveiy, Js.
    Argued September 19
    decision released October 10, 1995

      Gregory P. Camese, for the appellant (respondent mother).

      Michael J. Besso, assistant attorney general, with whom were James Kelly, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, Susan T. Pearlman, assistant attorney general, and Christine M. Bielaczyk, law student intern, for the appellee (petitioner).

      Michael Jewell, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   PER CURIAM.

The judgment is affirmed.


text:
    OSCAR CALE v. CORREIRA EXCAVATORS, INC., ET AL.
    (13853)
    Heiman, Spear and Hennessy, Js.
    Argued September 19
    decision released October 10, 1995

      Carlos M. Santos, for the appellant (plaintiff).

      Margaret E. Corrigan, for the appellees (defendants).
   PER CURIAM.

The decision of the compensation review board is affirmed.


text:
    BRAUNSTEIN AND TODISCO, P.C. v. BERNARD BOSSOM ET AL.
    (13268)
    O’Connell, Foti and Lavery, Js.
    Argued September 19
    decision released October 10, 1995

      David M. Reilly, for the appellants (defendants).

      Howard K. Levine, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    IN RE APPLICATION OF DANIEL V. PRESNICK
    (13866)
    Dupont, C. J., and O’Connell and Heiman, Js.
    Argued September 22
    decision released October 17, 1995

      Daniel V. Presnick, pro se, the appellant (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    RICHARD SINGER v. STATE EMPLOYEES’ RETIREMENT COMMISSION
    (13791)
    Dupont, C. J., and O’Connell and Heiman, Js.
    Argued September 22
    decision released October 17, 1995

      Richard Singer, pro se, the appellant (plaintiff).

      Maria C. Rodriguez, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    GAETANO MARINO v. EDWARD J. PETERS ET AL.
    (13957)
    Landau, Schaller and Hennessy, Js.
    Argued September 20
    decision released October 17, 1995

      Norman A. Pattis, with whom, on the brief, was John R. Williams, for the appellant (plaintiff).

      Michael P. Del Sole, for the appellee (named defendant).

      Christopher L. Brigham, with whom, on the brief, was Katherine C. Callahan, for the appellee (defendant Anthony Polvino).
   PER CURIAM.

The judgment is affirmed.


text:
    ARTHUR J. GREENWOOD v. PERKIN ELMER CORPORATION ET AL.
    (13596)
    Landau, Heiman and Daly, Js.
    Argued September 26
    decision released October 17, 1995

      Kevin J. Maher, for the appellants (defendants).

      Brendan T. Canty, for the appellee (plaintiff).
   PER CURIAM.

The decision of the compensation review board is affirmed.


text:
    ADELE M. COOKE v. BOARD OF EDUCATION OF THE CITY OF NORWALK ET AL.
    (13760)
    O’Connell, Spear and Shea, Js.
    Argued September 26
    decision released October 17, 1995

      Edward J. Cooke, Jr., for the appellant (plaintiff).

      Thomas N. Sullivan, for the appellees (defendants).
   PER CURIAM.

The judgment is affirmed.


text:
    VONA LIMONE v. DONALD HAAG
    (13829)
    Foti, Lavery and Cretella, Js.
    Argued October 3
    decision released October 24, 1995

      Gerald Hecht, for the appellant (defendant).

      Steven M. Frederick, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    SOUTHINGTON SAVINGS BANK v. VILLAGE BUILDERS AND DEVELOPERS, INC., ET AL.
    (12851)
    O’Connell, Lavery and Hennessy, Js.
    Argued September 27
    decision released October 24, 1995

      Sebastian N. Giuliano, with whom were Thomas T. Lonardo and, on the brief, Nella R. Rafala, for the appellants (defendants).

      Janet C. Hall, with whom was Christopher Hug, for the appellee (plaintiff).
   PER CURIAM.

The judgments are affirmed and the cases are remanded for the purpose of setting new law days.


text:
    NICHOLAS PERFITO v. AETNA CASUALTY AND SURETY COMPANY
    (13699)
    Laveiy, Schaller and Hennessy, Js.
    Argued September 27
    decision released October 24, 1995

      Kimball Haines Hunt, for the appellant (plaintiff).

      Robyn L. Sondak, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    AMITY BANK v. GEORGE J. SCARVELES ET AL.
    (11173)
    O’Connell, Landau and Heiman, Js.
    Argued September 27
    decision released October 24, 1995

      Max F. Brunswick, for the appellant (named defendant).

      Thomas E. Crosby, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    JEFFREY A. WALKER v. STATE OF CONNECTICUT
    (14263)
    Lavery, Heiman and Schaller, Js.
    Argued September 28
    decision released October 24, 1995

      Jeffrey A. Walker, pro se, the appellant (petitioner), filed a brief.

      James A. Kitten, assistant state’s attorney, with whom, on the brief, was Mary Galvin, state’s attorney, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    JOHN M. SYDORIAK, JR. v. LYNDA B. MUNRO, ADMINISTRATRIX (ESTATE OF THOMAS R. PEATE)
    (13606)
    Dupont, C. J., and O’Connell and Landau, Js.
    Argued October 3
    decision released October 24, 1995

      Joseph Glass, for the appellant (plaintiff).

      J. Kevin Golger, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    COMMAND ELECTRIC, INC. v. 249 PEARL STREET ASSOCIATES ET AL.
    (14370)
    Foti, Lavery and Cretella, Js.
    Argued October 3
    decision released October 24, 1995

      Thomas J. Farrell, for the appellant (defendant Stathis Manousos).

      George M. Purtill, with whom was R. Richard Croce, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    EVELYN R. NEWTON v. TOWN OF GREENWICH
    (13804)
    Heiman, Spear and Freedman, Js.
    Argued October 2
    decision released October 24, 1995

      John F. Newton, for the appellant (plaintiff).

      Joyce H. Young, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    JOHN A. GRAHAM v. COMMISSIONER OF CORRECTION
    (14484)
    Foti, Lavery and Cretella, Js.
    Argued October 3
    decision released October 24, 1995

      William T. Koch, Jr., with whom, on the brief, was Richard T. Miller, certified legal intern, for the appellant (petitioner).

      Kevin T. Kane, state’s attorney, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JERMAIN LITTLE
    (14108)
    O’Connell, Landau and Heiman, Js.
    Argued October 25
    decision released November 21, 1995

      Barry A. Butler, assistant public defender, for the appellant (defendant)

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Blawie, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

This case is controlled by State v. Groomes, 232 Conn. 455, 656 A.2d 649 (1995).

The judgment is affirmed.


text:
    GRADY COBB v. COMMISSIONER OF CORRECTION
    (14206)
    O’Connell, Landau and Hennessy, Js.
    Argued October 24
    decision released November 21, 1995

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Richard F. Jacobson, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ROBERT HENDERSON
    (13245)
    Lavery, Spear and Hennessy, Js.
    Argued October 23
    decision released November 21, 1995

      David B. Bachman, special public defender, for the appellant (defendant)

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JERMAINE GIBBS
    (13936)
    Heiman, Hennessy and Glass, Js.
    Argued October 30
    decision released November 21, 1995

      S. Dave Vatti, special public defender, with whom, on the brief, was Patrick J. Fitzgerald, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    ROBERT W. SPEED, JR. v. EILEEN Q. SPEED
    (13390)
    O’Connell, Landau and Herman, Js.
    Argued October 25
    decision released November 21, 1995

      William J. Nulsen, for the appellant (plaintiff).

      HaldanE. Connor, Jr., for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    LOYOLA ACADEMY v. KELLY ENERGY SYSTEMS, INC.
    (14024)
    Landau, Schaller and Hennessy, Js.
    Argued October 27
    decision released November 21, 1995

      Colin D. Johnson, for the appellant (defendant).

      William L. Stevens, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. EDWIN QUILES
    (13092)
    Heiman, Hennessy and Glass, Js.
    Argued October 30
    decision released November 21, 1995

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom were Kieman L. Ignacio, legal intern, and, on the brief, James E. Thomas, state’s attorney, and Vicki Melchiorre, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RICHARD RODRIGUEZ
    (12910)
    Dupont, C. X, and O’Connell and Heiman, Js.
    Argued October 27
    decision released November 21, 1995

      Miles Gerety, assistant public defender, with whom, on the brief, was Elizabeth Kisiel, certified legal intern, for the appellant (defendant).

      Linda N. Howe, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    GERALD A. FRANCESE SEAFOOD COMPANY v. LUND’S FISHERIES, INC.
    (13994)
    Lavery, Landau and Spear, Js.
    Argued October 30
    decision released November 21, 1995

      Ronald F. Ochsner, for the appellant (defendant).

      John C. Wirzbieki, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. LINDSEY JONES, JR.
    (13720)
    Dupont, C. J., and O’Connell and Schaller, Js.
    Argued October 31
    decision released November 21, 1995

      Vicki H. Hutchinson, special public defender, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Patricia Gilbert, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    ANN BUSAK v. CITY OF STAMFORD ET AL.
    (13744)
    Heiman, Schaller and Spear, Js.
    Argued September 21
    decision released November 21, 1995

      Paul J. Pacifico, for the appellant (plaintiff).

      James D. Moran, Jr., with whom, on the brief, were Kevin J. Maher and Maureen E. Driscoll, for the appel-lees (defendants).
   PER CURIAM.

The decision of the compensation review board is affirmed.


text:
    STATE OF CONNECTICUT v. DONOVAN DAVIS
    (14173)
    Foti, Laveiy and Landau, Js.
    Argued October 31
    decision released November 21, 1995

      Mary Miller Haselkamp, assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were John A. Con-nelly, state’s attorney, and Corinne Klatt, supervisory assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. OVID MCMILLER
    (14400)
    Dupont, C. J., and O’Connell and Schaller, Js.
    Argued October 31
    decision released November 28, 1995

      Earl I. Williams, for the appellant (defendant).

      Michele C. Lukban, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Jeffrey Doskos, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    DENNIS J. FANNERON ET AL. v. DAVID L. BAIRD ET AL.
    (13854)
    Lavery, Schaller and Freedman, Js.
    Argued November 1
    decision released November 28, 1995

      Leslie Byelas, for the appellants (defendants).

      Arthur C. Laske III, for the appellees (plaintiffs).
   PER CURIAM.

This case is controlled by Practice Book § 441.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CAMERON SHAW
    (14291)
    Dupont, C. J., and Foti and Spallone, Js.
    Submitted on briefs November 1
    decision released November 28, 1995

      M. Donald Cardwell filed a brief for the appellant (defendant).

      James E. Thomas, state’s attorney, Lisa Her skowitz, deputy assistant state’s attorney, and Vicki Melchiorre, Alfred Baldwin and Rosearme Wagner, assistant state’s attorneys, filed a brief for the appellee (state).
   PER CURIAM.

The judgments are affirmed.


text:
    STATE OF CONNECTICUT v. JOHN NARANJO
    (13353)
    Dupont, C. J., and Foti and Spallone, Js.
    Argued November 1
    decision released November 28, 1995

      John R. Williams, for the appellant (defendant).

      Ronald G. Weller, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Rinnan, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    KRISTOFER BASTEK ET AL. v. JAMES SCHULTZ
    (13912)
    Dupont, C. J., and Schaller and Hennessy, Js.
    Argued November 2
    decision released November 28, 1995

      James Schultz, pro se, the appellant (defendant).

      David W. Bastek, pro se, the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    WAYNE JONES v. COMMISSIONER OF CORRECTION
    (14527)
    O’Connell, Laveiy and Heiman, Js.
    Argued November 2
    decision released November 28, 1995

      James A. Shanley, Jr., special public defender, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard Eisenman, assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    RECOVERY ALLIANCE, INC. v. DEPARTMENT OF REVENUE SERVICES, DIVISION OF SPECIAL REVENUE
    (14669)
    Foti, Landau and Daly, Js.
    Argued November 3
    decision released November 28, 1995

      Francis W. Benner, for the appellant (plaintiff).

      Richard M. Sheridan, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    SHAWMUT BANK CONNECTICUT, N.A. v. FRANK D. GIVEN ET AL.
    (14337)
    Dupont, C. J., and Lavery and Schaller, Js.
    Submitted on briefs November 3
    decision released November 28, 1995

      Joseph Chiarelli filed a brief for the appellants (named defendant et al.).

      Linda Clifford Hadley filed a brief for the appellee (substitute plaintiff).
   PER CURIAM.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    STATE OF CONNECTICUT v. KENNETH HOWELL
    (14192)
    Foti, Sehaller and Cretella, Js.
    Argued November 3
    decision released November 28, 1995

      Eugene J. Riccio, with whom, on the brief, were Margaret M. Wynne and MarcJ. Grenier, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara Eschuk, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    JOHN E. KRAFT v. LORRAINE A. KRAFT
    (14233)
    Foti, Landau and Spear, Js.
    Submitted on briefs November 6
    decision released November 28, 1995

      Linda M. Guliuzza filed a brief for the appellant (plaintiff).

      Thomas B. Lynch filed a brief for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    ALLEN UNGER v. BRUCE PILEGGI
    (14216)
    Dupont, C. J., and Lavery and Schaller, Js.
    Submitted on briefs November 6
    decision released November 28, 1995

      Joseph Dimyan and Wendy A. Grispin filed a brief for the appellant (defendant).

      Cheryl Ann Gordon filed a brief for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed.


text:
    BANK OF NEW HAVEN v. INTERSTATE INVESTMENT ASSOCIATES ET AL.
    (14583)
    Lavery, Spear and Hennessy, Js.
    Submitted on briefs November 6
    decision released November 28, 1995

      Lawrence A. Dubin filed a brief for the appellants (defendants).

      Kenneth J. Papa filed a brief for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    JOHANNA GERARDE v. ROCCO GERARDE
    (13526)
    Foti, Landau and Spear, Js.
    Submitted on briefs November 6
    decision released November 28, 1995

      David P. Mester filed a brief for the appellant (plaintiff).

      Lisa A. Faccadio and Christine S. Dorsey filed a brief for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    DIANE L. PERRONE v. MICHAEL C. PERRONE
    (14569)
    Dupont, C. J., and Foti and Heiman, Js.
    Submitted on briefs November 6
    decision released November 28, 1995

      Judith C. Benedict and Daniel S. Fabricant filed a brief for the appellant (plaintiff).

      Robert P. Hanahan filed a brief for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    JAMES RICHARD DUPREE v. GARY MASTERS ET AL.
    (14788)
    Dupont, C. J., and Foti and Heiman, Js.
    Submitted on briefs November 6
    decision released November 28, 1995

      Guy L. DePaul filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and LisaGut-tenberg Weiss, William J. McCullough and Michael Belzer, assistant attorneys general, filed a brief for the appellee (defendant).
   PER CURIAM.

The decision of the compensation review board is affirmed.


text:
    RICHARD R. RATCLIFFE v. HELEN E. RATCLIFFE
    (14386)
    O’Connell, Spear and Hennessy, Js.
    Submitted on briefs November 6
    decision released December 5, 1995

      Eugene P. Falco filed a brief for the appellant (defendant).

      Richard R. Ratcliffie, pro se, the appellee (plaintiff), filed a brief.
   PER CURIAM.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. PATRICK NEMHARD
    (14030)
    Heiman, Schaller and Hennessy, Js.
    Argued November 7
    decision released December 5, 1995

      Dante R. Gallucci, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    MICHAEL DEVINCENTIS v. VALERIE DEVINCENTIS
    (13609)
    Foti, Lavery and Landau, Js.
    Argued October 31
    decision released December 5, 1995

      James V. Somers, with whom, on the brief, were Suzanne L. McAlpine, and John J. Keefe, Jr., for the appellant (plaintiff).

      James B. Streeto, for the appellee (defendant).
   PER CURIAM.

The plaintiff appeals from a judgment of dissolution. This appeal can best be categorized as a valiant but futile effort to retry the case in this court. No novel principles of law or appellate procedures are involved and to discuss the defendant’s claim would serve no good purpose. See Byrne v. Trice, 170 Conn. 442, 442-43, 365 A.2d 1063 (1976).

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ROSA RODRIGUEZ
    (13678)
    Heiman, SchaHer and Hennessy, Js.
    Argued November 7
    decision released December 5, 1995

      PaulR. Kraus, special public defender, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Brian Kennedy, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    LOIS COPES STEIGERT v. FREDERICK E. STEIGERT
    (13612)
    Foti, Lavery and Landau, Js.
    Argued October 31
    decision released December 12, 1995

      Kathleen M. Harkins, for the appellant (defendant).

      James R. Greenfield, with whom, on the brief, was Janet M. Degnan, for the appellee (plaintiff).
   PER CURIAM.

The defendant appeals from a judgment denying a motion to open. Counsel for the defendant on appeal was trial counsel and this appeal can best be categorized as a valiant but futile effort to retry the case in this court. No novel principles of law or appellate procedures are involved and to discuss seriatim the defendant’s numerous claims would serve no good purpose. See Byrne v. Trice, 170 Conn. 442, 442-43, 365 A.2d 1063 (1976).

The judgment is affirmed.


text:
    TRAVIS HIE v. STATE OF CONNECTICUT
    (13638)
    Dupont, C. J., and Lavery and Heiman, Js.
    Argued November 27
    decision released December 12, 1995

      Glen W. Falk, special public defender, with whom, on the brief, was David B. Bachman, special public defender, for the appellant (petitioner).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

The judgment is affirmed.


text:
    BRIAN J. FOLEY v. TERRY-PAT ASSOCIATES ET AL.
    (14200)
    O’Connell, Landau and Spallone, Js.
    Argued November 27
    decision released December 19, 1995

      Jeanine M. Dumont, for the appellant (plaintiff).

      Neal C. Mizner, with whom, on the brief, was Richard Robinson, for the appellees (named defendant et al.).
   PER CURIAM.

The trial court’s acceptance of the attorney trial referee’s report and its rendering of judgment thereon was in complete accord with applicable law and should not be disturbed.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CRAIG PONDER
    (14720)
    Heiman, Schaller and Spear, Js.
    Argued November 28
    decision released December 19, 1995

      Robert C. McCoy, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Stephen Carney, deputy assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The judgment is affirmed.


text:
    CARMEN MILLER v. THAMES VALLEY COUNCIL FOR COMMUNITY ACTION ET AL.
    (13914)
    Dupont, C. J., and Poti and Heiman, Js.
    Argued November 30
    decision released December 19, 1995

      Ronald M. Christensen, for the appellant (plaintiff).

      Lucas D. Strunk, with whom, on the brief, was Margaret E. Corrigan, for the appellees (defendants).
   PER CURIAM.

The decision of the compensation review board is affirmed.


text:
    NICHOLAS CECERE v. EBI INDEMNITY COMPANY
    (14207)
    Foti, Lavery and Schaller, Js.
    Argued November 29
    decision released December 19, 1995

      Otto P. Witt, for the appellant (plaintiff).

      Constance L. Epstein, with whom, on the brief, was Matthew D. Gilmond, for the appellee (defendant).
   PER CURIAM.

The judgment is affirmed.


text:
    CONNECTICUT NATIONAL MORTGAGE COMPANY v. LISE-LOTTE KNUDSEN ET AL.
    (14086)
    Landau, SchaUer and Hennessy, Js.
    Argued November 30
    decision released December 19, 1995

      Lise-Lotte Knudsen, pro se, the appellant (named defendant), filed a brief.

      Neil E. Atlas, with whom, on the brief, was Lynne R. Dzilenski, for the appellee (substitute plaintiff).
   PER CURIAM.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    AMERICAN BANK OF CONNECTICUT v. KATHERINE G. IVIMEY ET AL.
    (13413)
    Landau, Schaller and Hennessy, Js.
    Argued November 30
    decision released December 19, 1995

      John Ivimey, Sr., pro se, with whom , on the brief, was Katherine Ivimey, pro se, the appellants (defendants).

      Leanne M. Kinsley, for the appellee (plaintiff).
   PER CURIAM.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


author: Borden, J.

text:
    Neil F. Pagano v. Board of Education of the City of Torrington
    (2800)
    (2805)
    Dupont, C.P.J., Borden and Spallone, Js.

      Argued February 5—decision
    released May 14, 1985

      Maxwell Heiman, with whom were Louis P. Kocsis and, on the brief, William J. Tracy, Jr., for the appellant-appellee (plaintiff).

      William H. Narwold, for the appellee-appellant (defendant).
   Borden, J.

These two combined appeals arise out of the efforts of the defendant, the Torrington board of education, to terminate the teaching contract of the plaintiff, Neil F. Pagano, a tenured teacher. In Appeal No. 2800, Pagano appeals from the judgment of the trial court dismissing his administrative appeal from the decision of the board. That decision was to terminate his teaching contract. Pagano also sued the board for damages for wrongful discharge. In Appeal No. 2805, he appeals from the judgment of the trial court awarding him an amount of damages less than he sought; the board cross appeals, claiming that he is not entitled to any damages. Because we find one over-arching claim of the board dispositive of both cases, we find no error on Pagano’s appeals in both cases and error on the board’s cross appeal in the damages action.

I

The administrative appeal case is the second phase of an earlier administrative appeal. The facts are not in dispute. In 1979, as a result of complaints by several female high school students and an investigation by the superintendent of schools, the board notified Pagano that it was considering terminating his contract for moral misconduct. Pagano requested that the charge be heard by an impartial hearing panel. See General Statutes § 10-151. After a hearing, the panel found the charge proved but recommended a reprimand and suspension rather than termination. Upon receipt of the hearing panel’s report, the board met and unanimously voted to terminate Pagano’s contract of employment. Pagano appealed that decision to the Superior Court. By decision dated April 15, 1982, the court, J. Healey, J., correctly noted that, although the board was bound by the panel’s factual findings, it was not bound by the panel’s recommendation as to disposition. See Petrino v. Board of Education, 179 Conn. 428, 430, 426 A.2d 795 (1980). Rejecting all but one of Pagano’s attacks on the decision of the board, the court, relying on Goldberg v. Kelly, 397 U.S. 354, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), held that, because the board refused to permit Pagano or his attorney to address it orally prior to its determination as to disposition, Pagano was deprived of due process of law in that respect. The court set aside the termination and remanded the matter to the board for further proceedings in accordance with law. Both sides sought certification for appeal to the Supreme Court, which was denied.

The board notified Pagano of a special meeting to be held on April 29,1982, to discuss this case and other pending litigation between Pagano and the board. Pagano notified the board that he would not attend that or any other meeting of the board. At the meeting, the board voted to hold another meeting to permit Pagano and his attorney to attend and speak, at which time it would consider appropriate action.

On July 21, 1982, the board notified Pagano of a meeting to be held on July 26,1982, at which he could present argument as to the disposition of his contract. On July 26, 1982, Pagano and his attorney attended the meeting. Instead of presenting argument, however, Pagano’s attorney asked for a roll call of the board, challenged its jurisdiction, asserted that Pagano’s civil rights had been violated, and told the board that it could do whatever it desired and he would see them in court. The board thereupon went into executive session to consider again the hearing panel’s report. Upon its return, the board again voted to terminate Pagano’s contract.

Pagano appealed again to the Superior Court. The major thrust of his appeal was that the board had predetermined its decision to terminate prior to the meeting of July 26, 1982, and that it was unconstitutionally biased. The trial court, Kline, J., permitted Pagano to examine, over the objection of the board, the individual board members on the issue of predetermination and bias. The court decided that the termination of July 26, 1982, was proper and dismissed Pagano’s appeal.

The damages action case was tried together with the administrative appeal. It was based on a stipulation of facts. The stipulation recited the history of the case, Judge Healey’s decision, and the decision in another case in which Judge Healey held that Pagano was not entitled to unemployment benefits. The parties also stipulated to the amount that Pagano would have earned as a teacher during the years in question and to that which he earned while employed outside the teaching profession.

Judge Kline considered Pagano’s complaint as one for damages for wrongful discharge. It ruled that, because the purported termination in 1979 had been set aside by Judge Healey’s decision, Pagano was not properly terminated until July 26,1982. It awarded him damages equal to the amount he would have earned as a teacher less that which he did earn otherwise.

II

We find it unnecessary to discuss Pagano’s various claims on his appeals in the two cases; nor is it necessary to discuss any but one of the board’s claims on its cross appeal in the damages action. This is because one claim of the board, offered as an alternate ground to affirm the judgment of the trial court in the administrative appeal and as a ground of its cross appeal in the damages action, is dispositive of both cases. That claim is essentially that, despite Judge Healey’s decision to the contrary in the first phase of the administrative appeal, the termination of Pagano by the board in 1979 did not violate his due process rights, as indicated by the decision in Jones v. Morris, 541 F. Sup. 11 (S.D. Ohio 1981), aff’d, 455 U.S. 1009, 102 S. Ct. 1699, 72 L. Ed. 2d 127 (1982). We conclude, moreover, that under the circumstances of these cases the doctrines of law of the case, collateral estoppel and res judicata do not require us to afford finality to that decision of Judge Healey.

We note, first, that the denial by our Supreme Court of the board’s petition for certification for appeal from the judgment rendered by Judge Healey does not necessarily indicate approval of either the result reached or the opinion rendered by him. State v. Doscher, 172 Conn. 592, 376 A.2d 359 (1977). We also note that the effect of Jones v. Morris, supra, was raised in the trial court before Judge Kline, was stated in the board’s preliminary statements of issues on appeal in both the administrative appeal case and the damages action case, and was fully briefed by both parties in this court.

In Jones v. Morris, supra, pursuant to Ohio’s teacher termination statutory scheme, which was similar to General Statutes § 10-151, an impartial referee after a full hearing found certain charges against a tenured teacher to be proved and recommended to the local board that the teacher’s employment be terminated. The board accepted the recommendation and terminated his employment without giving him further notice or an opportunity to argue or object to the board regarding the findings or recommendations of the referee. The teacher sued the board under 42 U.S.C § 1983 for violation of his claimed due process right to object to the referee’s decision. A three judge federal panel rejected his claim, holding that due process required only that he be afforded a full, trial-type hearing before the referee, but did not require that he also be afforded the right to argue to the board as the ultimate decision-maker, which could base its decision on the referee’s report. The teacher argued that Goldberg v. Kelly, supra, required that he be given the right to appear before the board and to present his arguments before it made its ultimate decision. Jones v. Morris, supra, 18. The court rejected that argument. Quoting from Mathews v. Eldridge, 424 U.S. 319, 349, 96 S. Ct. 893, 447 L. Ed. 2d 18 (1975), the seminal case on administrative due process, it stated: “ ‘The essence of due process is the requirement that “a person in jeopardy of serious loss [be given] notice of the case against him and, an opportunity to meet it. . . . All that is necessary is that the procedures be tailored, in light of the decision to be made, to “the capacities and circumstances of those who are to be heard, . . . ” to insure that they are given a meaningful opportunity to present their case.’[Citations omitted] . . . Mathews [v. Eldridge, supra, 349].

“In the instant case, of course, Jones had the opportunity to appear personally with counsel for a full, trial-type evidentiary hearing either before the Board, the final decisionmaker, or a neutral hearing officer, prior to the termination of his employment. Jones appeared before the referee by his own choice. The case law is clear that such a hearing officer may report to the final decisionmaker on the evidence received, and the decisionmaker may base his decision on the referee’s report. The additional procedural safeguard which Jones asserts he is due is an opportunity to make an oral or written objection to the hearing officer’s decision; in essence, a procedure similar to that of a judicial appeal from the decision of the trial court as to findings of fact. . . .

“What is required, under the criteria of Mathews v. Eldridge, are procedures that will insure fairness in administrative action. Id. 424 U.S. at 348, 96 S. Ct. at 909. Using the criteria of Mathews we conclude that the present procedures are fair, and the additional procedures demanded by Jones are unnecessary to insure minimal constitutional due process. . . . The board’s decision, that the referee’s findings constitute sufficient cause to terminate a teacher, is an act within their particular expertise, which, however, is also subject to review if not supported or warranted by the evidence adduced at the hearing. . . . Thus, it is doubtful if Jones’ proposed procedural safeguard of interposing his objections between the referee’s findings of fact and the board’s ultimate decision on the ‘legal’ consequences of that act would be of great value in lessening the already minimal risk of an unfair termination. . . .

“The additional procedural safeguards requested by Jones would be of little, if any, value in minimizing any risk of an unfair deprivation of Jones’ property interest in his continuing teaching contract. In fact, under similar factual situations, courts have held that such procedures are not constitutionally required. Perry v. Sinderman, [408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1982)]; Bates v. Sponberg, [547 F.2d 325 (6th Cir. 1976)].” (Emphasis in original.) Jones v. Morris, supra, 19-21.

On March 22, 1982, approximately three weeks before Judge Healey’s decision in this case, the United States Supreme Court summarily affirmed the judgment of the three judge panel. Jones v. Morris, 455 U.S. 1009, 102 S. Ct. 1699, 72 L. Ed. 2d 127 (1982). Although the precedential value of such a summary affirmance has been the subject of some disagreement among the justices of the United States Supreme Court; see 12 Moore, Federal Practice 400.05-1; in general it is regarded as a decision on the merits and binding on lower courts. Id.

We are persuaded by the reasoning of the three judge panel in Jones v. Morris, supra, and that persuasion is buttressed by the affirmance of the panel’s judgment by the Supreme Court. Just as in Jones v. Morris, supra, Pagano’s right to due process was fulfilled by the full, trial-type evidentiary hearing held before the impartial hearing panel, the procedure he selected pursuant to General Statutes § 10-151. That procedure gave him the full opportunity to meet the case against him and to present his own case. Mathews v. Eldridge, supra. Once the hearing panel made its factual report and recommendation as to disposition, the board was bound by the panel’s factual findings, but not by its legal conclusions or its recommendations. Petrino v. Board of Education, supra. As to termination, “ ‘[t]he jurisdiction and discretion to determine what . . . may be [due and sufficient cause] rests in the hands of the school authorities.’ Tucker v. Board of Education, 177 Conn. 572, 578, 418 A.2d 933 (1979).” Petrino v. Board of Education, supra. Although that discretion is not unfettered; see Tucker v. Board of Education, supra, 580-82; it does involve a decision within the board’s particular expertise. Jones v. Morris, supra, 20. Due process does not require, however, that after a full evidentiary hearing on the merits, with a full factual report to the board, the teacher be given an opportunity orally to address the board before it exercises that discretion. Jones v. Morris, supra; Jones v. Board of Education, 60 Ohio App. 2d 138, 395 N.E.2d 1337 (1978).

The analogy, relied on by Judge Healey, to the convicted criminal defendant’s right of allocution before the imposition of sentence is inapt. Although such a right is certainly within the power of the legislature to fashion, which it has not done; see footnote 2, supra; the constitution does not impose it on a board of education. “We reiterate the wise admonishment of Mr. Justice Frankfurter that differences in the origin and function of administrative agencies ‘preclude wholesale transplantation of the rules of procedure, trial, and review which have evolved from the history and experience of courts.’ ” Mathews v. Eldridge, supra, 348. All that due process requires is that a person in jeopardy of serious loss has notice and a meaningful opportunity to meet the case against him and to present his case, and that the procedures be tailored, in light of the decision to be made, to the capacities and circumstances of those to be heard. Id., 348-49.

We conclude, therefore, that Pagano’s appeal from the decision in his administrative appeal is without merit. Also, since the conclusions of Judge Kline in the damages action, that Pagano was wrongfully discharged in 1979 and was thus entitled to damages until the proper termination in 1982, were based on Judge Healey’s earlier ruling, those conclusions cannot stand.

Ill

Nor do the traditional doctrines concerning the finality of judgments require that the first decision of the trial court, holding that Pagano’s rights were violated in 1979, must stand. Although the administrative appeal case before Judge Kline was a separate case with a separate docket number from that before Judge Healey, functionally the second appeal was a continued, second phase of the first. Under these circumstances, the doctrine of law of the case, rather than collateral estoppel or res judicata, comes into play. See Chicago & North Western Transportation Co. v. United States, 574 F.2d 926 (7th Cir. 1978) (applying law of the case to second appeal from second ruling of administrative agency, after intervening judicial remand to the agency).

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be involved. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478. In essence it expresses the practice of judges generally to refuse to reopen what has already been decided and is not a limitation on their power.” Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). It has less force at the appellate level than in the trial court. Id., 100.

Even at the appellate level, however, “[l]aw of the case should . . . apply unless there are unusual circumstances, or a ‘compelling reason,’ Dale v. Hahn, 486 F.2d 76, 81 (2d. Cir. 1973), cert. denied, 419 U.S. 826, 95 S. Ct. 44, 42 L. Ed. 2d 50 (1974), that would render the doctrine inapplicable. These include (1) substantial new evidence introduced after the first review, (2) a decision of the Supreme Court after the first review that is inconsistent with the decision on that review, and (3) a conviction on the part of the second reviewing court that the decision of the first was clearly erroneous.” Chicago & North Western Transportation Co. v. United States, supra, 930; see also United States v. Fernandez, 506 F.2d 1200, 1203 n.7 (2d Cir. 1974), explaining Johnson v. Cadillac Motor Car Co., 261 F. 878 (2d Cir. 1919); Zdanok v. Glidden Co., Durkee Famous Foods Division, 327 F.2d 944, 950-51 (2d Cir. 1964); Bowles v. Good Luck Glove Co., 150 F.2d 853, 854 (7th Cir. 1945), cert. denied, 326 U.S. 794, 66 S. Ct. 484, 90 L. Ed. 483 (1946); see generally annot., 87 A.L.R.2d 271. We believe that factors (2) and (3) both apply here.

It is true that the decision of the United States Supreme Court summarily affirming the three judge panel in Jones v. Morris, supra, was made about three weeks before Judge Healey’s decision. There is no indication, however, that either he or the parties were aware of that decision at that time, and the nature of its publication can hardly command a conclusion that they be charged with notice of it. Thus, functionally it was an intervening decision of the Supreme Court after the first judicial review of the board’s 1979 termination decision. Furthermore, as the first appellate court fully to review the constitutional merits of Judge Healey’s decision, we are convinced that it was clearly erroneous. See Jones v. Morris, supra.

We therefore conclude that the trial court, Kline, J., in this case did not err in dismissing Pagano’s administrative appeal, although we rest our decision on a ground different from that used by the trial court. Bencivenga v. Zoning Board of Appeals, 2 Conn. App. 384, 387, 478 A.2d 1049 (1984). We also conclude that, in the damages action, the trial court erred by awarding any damages to Pagano, since we conclude that Pagano was not wrongfully discharged in 1979.

In Appeal No. 2800, there is no error. In Appeal No. 2805, there is no error on the appeal; there is error on the cross appeal, the judgment for the plaintiff is set aside and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       At that time, appeals to the Supreme Court from decisions of the trial court in administrative appeals were only by a petition for certification. General Statutes (Rev. to 1983) § 51-197Í.

       Although Judge Healey’s decision rested solely on due process grounds, we note that the statute, General Statutes § 10-151, does not appear to contemplate a further hearing before the board after the report of the impartial hearing panel. It provides in pertinent part: “Within fifteen days after the close of the hearing before an impartial hearing panel, unless the parties mutually agree to an extension, such panel shall submit in writing its findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher. The board of education shall give the teacher concerned its written decision within fifteen days of receipt of the written recommendation of the impartial hearing panel.”

       Cf. Kern v. Contract Cartage Co., 55 Ohio App. 481, 484-85, 9 N.E.2d 869 (1936): “It seems apparent that if [the superior] court committed prejudicial error in determining the law of the case for the guidance of the [board of education] upon remand, and if we should now adhere to such erroneous determination, the Supreme Court, as the court of last review, would reverse the judgment resulting from such erroneous determination [even though it previously refused to review the case] .... It necessarily follows that if [the superior] court erred in its former determination ... we are not bound thereby but have the duty in furtherance of substantial justice between the parties to now make [a] proper determination . . . . ”


author: Norcott, J.

text:
    Housatonic Valley Publishing Company v. Citytrust
    (2217)
    Borden, Fracasse and Norcott, Js.

      Argued February 28
    decision released May 14, 1985

      Stuart D. Rosen, with whom were Andrew W. Krevolin and, on the brief, Samuel J. Henderson and Thomas A. Gugliotti, for the appellant (defendant).

      Robert J. Guendelsberger, with whom was Arthur J. Peitler, for the appellee (plaintiff).
   Norcott, J.

The plaintiff, Housatonic Valley Publishing Company, brought an action against the defendant, Citytrust, to recover a sum allegedly owed for advertisements which ran in a local newspaper, the Brookfield Journal. From the judgment rendered against it, the defendant has appealed.

The facts in this case are not in dispute. The plaintiff was the publisher of several small daily and weekly newspapers in the western Connecticut region. The defendant is a bank with branch operations in locations served by the plaintiffs publication. Between December 31, 1981, and March 18, 1982, several ads were placed in the plaintiffs newspaper and were not paid when due and billed.

The advertising was placed by a business called Creative Media Services, Inc. (Creative Media), a firm which the defendant used to buy space and place its ads. The defendant paid Creative Media at a rate of $1500 per month plus costs for this service.

The plaintiff publishing company billed Creative Media, and Creative Media in turn billed the bank. The plaintiff always carried this account as “Citytrust c/o Creative Media” at the latter’s address. Relying on the defendant’s solid reputation in the community, the plaintiff did no credit check on either the defendant or Creative Media. The plaintiff relied entirely on the defendant’s credit.

After the defendant bank had paid Creative Media on its then current outstanding bills, including those for all the ads which appeared in the plaintiff’s newspaper, Creative Media went bankrupt. Creative Media had not transmitted the payment to the plaintiff. When the account became delinquent, the plaintiff called the defendant and the call was transferred to a Nancy Horton, who had previously worked for Creative Media, but who now was an employee of the bank doing the same job she had done at Creative Media. Nancy Horton had entered the employment of the defendant after she had been laid off by Creative Media when the firm was in the throes of financial difficulties.

The trial court found that Creative Media was an agent of the defendant, and accordingly rendered judgment for the plaintiff in the amount of $3454.35.

Pursuant to' Practice Book § 3082, the defendant moved the trial court to articulate further its decision in regard to its findings on agency. In response to the motion for rectification of appeal, the trial court found that “there was an actual agency based upon the payment of $1500 per month by the defendant to Creative Media for the purpose of having Creative Media place its ads in those areas determined by Creative Media to be for the benefit of the defendant.” The court placed no reliance on any apparent authority, and specifically placed no reliance on the factual situation regarding Nancy Horton. The defendant makes the following assignment of errors on appeal: (1) that the evidence fails to support a finding of agency because the plaintiff failed to prove the necessary element of control; (2) that the receipt of benefits by the defendant does not constitute ratification; and (3) that if the trial court’s judgment is correct as to liability, the plaintiff proved only $2329.66 in damages.

The role of this court is to decide whether the decision of the trial court is clearly erroneous in view of the evidence and pleadings in the record. Practice Book § 3060D; New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 684, 474 A.2d 810 (1984). The case should be disposed of on the theory on which it was tried and on which the trial court decided it. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132 n.8, 464 A.2d 6 (1983); Machiz v. Homer Harmon, Inc., 146 Conn. 523, 525,152 A.2d 629 (1959). We thus limit our review to a determination of whether the trial court could have found the existence of actual agency.

In the present case, the memorandum in response to the defendant’s motion for rectification makes clear that the trial court relied upon a finding of actual agency in rendering judgment for the plaintiff. Our rejection of that finding should occur only where it is “clearly erroneous,” that is, “ ‘unsupported by the record, incorrect, or otherwise mistaken.’ ” J.&J. Enterprises of Lenair, Inc. v. Shaw, 190 Conn. 321, 322, 460 A.2d 1283 (1983); see Practice Book § 3060D.

“ ‘Agency is defined as “ ‘the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . .’ Restatement (Second), 1 Agency § 1.” ’ ” Beckenstein v. Potter & Carrier, Inc., supra, 132. The three elements required to show that an agency exists are a manifestation by the principal that the agent will act for him, acceptance by the agent of the undertaking, and an understanding between the parties that the principal will be in control of the undertaking. Id., 333; Botticello v. Stefanovicz, 177 Conn. 22, 25, 411 A.2d 16 (1979); 1 Restatement (Second), Agency § 1, comment b (1958).

The burden of proving agency is on the party asserting its existence. New England Whalers Hockey Club v. Nair, supra, 683. The existence of an agency relationship is a question of fact for the trier, and the facts found by the trial court must support its conclusion. Botticello v. Stefanovicz, supra, 26-27.

The defendant’s claim of error that the plaintiff failed to prove the necessary element of control has merit. We find that neither the totality of evidence put before the court at trial nor the facts found and relied on by the trial court in its memorandum of rectification provide a sufficient basis from which an inference of control could be derived, and thus the finding of actual agency cannot stand. The trial court’s limited finding of actual agency was based (1) on payment of an amount between the defendant and Creative Media for its services, and (2) on the benefit derived from the services by the defendant. This was an insufficient basis upon which to find actual agency, and as such the trial court’s finding is clearly erroneous. Botticello v. Stefanovicz, supra, 27.

We need not reach the plaintiff’s assignment of error regarding the doctrine of ratification. There was neither a finding of ratification nor reliance on that doctrine by the trial court. Finally, because our ruling on the issue of agency is dispositive of the appeal, we need not address the last claim of error based on the amount of damages awarded.

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

In this opinion the other judges concurred.


author: Per Curiam.

text:
    Julia S. Macri et al. v. Susan Ingraham et al.
    (3243)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued April 10—decision
    released May 14, 1985

      George R. Maori, with whom, on the brief, was Julia S. Maori, pro se, the appellants (plaintiffs).
   Per Curiam.

Judgment was rendered for the plaintiffs. They were awarded nominal damages of one dollar, not having introduced any evidence as to damages. They were also awarded costs and a permanent injunction.

There is no error.


author: Fracasse, J.

text:
    Tecla Polce et al. v. Stop & Shop Companies, Inc.
    (2706)
    Borden, Fracasse and Norcott, Js.
    Argued February 28
    decision released May 14, 1985

      Alan G. Schwartz, with whom, on the brief, were Jeremy G. Zimmerman and Jeanette C. Schreiber, for the appellant (defendant).

      Bruce D. Jacobs, with whom, on the brief, was Stanley A. Jacobs, for the appellees (plaintiffs).
   Fracasse, J.

This is an action for damages resulting from injuries sustained by the plaintiff Tecla Polce while on the premises of the defendant, Stop & Shop Companies, Inc.; the plaintiff Valentino Polce sought damages for loss of consortium. The matter was tried to a jury and judgment was rendered in favor of the plaintiffs. The defendant appealed claiming the court erred in its charge to the jury.

The defendant claims that the court erred by failing to instruct the jury (1) that the defendant’s responsibility to compensate the plaintiffs is limited if the plaintiff’s disability arose from a subsequent accident, and (2) that the defendant had no responsibility for those injuries attributable to a preexisting condition.

The record indicates that the defendant failed to file a motion to set aside the verdict as required by Practice Book § 320 or § 3000. Such failure limits our review to the standard of plain error. Practice Book § 3063; Pietrorazio v. Santopietro, 185 Conn. 510, 513-16, 441 A.2d 163 (1981); Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 183, 485 A.2d 1360 (1985); Eagar v. Barron, 2 Conn. App. 468, 472, 480 A.2d 576 (1984); Rozbicki v. Pelletier, 2 Conn. App. 87, 88, 476 A.2d 1069 (1984). Examination of the record gives no indication of plain error; the charge as given, relating to disabilities claimed to arise from a subsequent accident and relating to injuries claimed to be attributable to a preexisting condition, was correct in law, adapted to the evidence and issues and sufficient to guide the jury.

There is no error.

In this opinion the other judges concurred.


text:
    Roseann O’Connor v. Brian O’Connor
    (3290)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued April 12—decision
    released May 14, 1985

      John J. Houlihan, Jr., with whom, on the brief, were William R. Davis and Anthony C. Polvino, law student intern, for the appellant (plaintiff).

      James O. Shea, with whom, on the brief, was Roger Brewer, for the appellee (defendant).
   Per Curiam.

This is an action for damages resulting from injuries sustained by the plaintiff in a one car accident, which occurred in East St. Amstead, Quebec, Canada. She alleges that she sustained various injuries as a result of the accident, all of which were caused by the defendant’s negligent operation of the motor vehicle. The defendant filed a motion to strike, claiming that Quebec law applied to the present action and under that law the plaintiff had no cause of action. The trial court granted the defendant’s motion to strike and rendered judgment for the defendant after the plaintiff declined to file a new pleading. The plaintiff, on appeal, urges us to “overrule” Gibson v. Fullin, 172 Conn. 407, 374 A.2d 1061 (1977), despite our status as an intermediate appellate court.

The law in Connecticut is clear that in motor vehicle cases “ ‘[t]he creation and extent of liability are fixed by the law of the state in which the tort is committed.’ Bissonnette v. Bissonnette, 145 Conn. 733, 734, 142 A.2d 527 [1958]; see Murray v. Milford, Connecticut, 380 F.2d 468, 470 (2d Cir. [1967]); Menczer v. Menczer, 160 Conn. 563, 280 A.2d 875 [1971]; Landers v. Landers, 153 Conn. 303, 304, 216 A.2d 183 [1966]; Bohenek v. Niedzwiecki, 142 Conn. 278, 283, 113 A.2d 509 [1955].” Gibson v. Fullin, supra, 411. In the face of this uniform and recent Supreme Court precedent, whether the traditional rule of lex loci delicti should be reevaluated and possibly discarded in appropriate circumstances is not for this court to decide.

There is no error.


author: M. Hennessey, J.

text:
    Harry Roraback v. Travelers Insurance Company
    (2765)
    Dupont, C.P.J., Borden and M. Hennessey, Js.
    Argued March 8
    decision released May 14, 1985

      Mark A. Altieri, with whom, on the brief, was James J. Gentile, for the appellant (plaintiff).

      Terence A. Zemetis, for the appellee (defendant).
   M. Hennessey, J.

The plaintiff, Harry Roraback, appeals from a judgment denying his application to vacate an arbitration award. The issue concerning the extent of liability for underinsured motorist coverage was submitted by the plaintiff and the defendant, Travelers Insurance Company (Travelers), to arbitration. The submission was unrestricted. No issues of law were reserved for the court.

The submission to arbitration was under the following stipulation of facts. On December 26, 1980, the plaintiff was involved in an automobile accident in which the vehicle he drove was struck from behind by a vehicle insured by Fireman’s Fund Insurance Company (Fireman’s). Fireman’s paid to the plaintiff its liability limit of $20,000.

The vehicle which the plaintiff was operating was owned by Anthony Carrano, and he was operating that vehicle with Carrano’s permission. The Carrano vehicle was insured with Travelers. Carrano also insured another vehicle with Travelers. Each of the Carrano vehicles carried uninsured-underinsured motorist coverage with limits of $20,000 per person, $40,000 per accident. The named insured was Carrano.

Subsequent to being paid the $20,000 policy limit by Fireman’s, the plaintiff filed an underinsured motorist claim against Travelers under the policy issued to Carrano. The plaintiff’s claim was premised on stacking of the $20,000 underinsured motorist coverage of the two automobiles owned by Carrano and covered under the Travelers policy. The defendant would then be liable in the amount of $40,000. The defendant did not agree. It took the position that since the plaintiff was neither the named insured nor a relative of the named insured residing in the named insured’s household, the plaintiff was only covered under the policy on the car he was driving.

The arbitrators found that the plaintiff’s injuries exceeded the $20,000 coverage of the liability policy, but concluded that the plaintiff could not stack the underinsured coverage and was thus entitled to only $20,000. Thereafter, the plaintiff filed an application to vacate the award pursuant to General Statutes § 52-418. The trial court denied the application to vacate and rendered judgment sustaining the award.

“Judicial review of an arbitration award is limited to an analysis of the grounds for vacating an award set forth in General Statutes § 52-418 and by the terms of the contractual agreement between the parties.” American Motorists Ins. Co. v. Brookman, 1 Conn. App. 219, 221-22, 470 A.2d 253, cert. denied, 193 Conn. 801, 473 A.2d 1226 (1984). Where a party challenges an award under General Statutes § 52-418 (a) (4) on the ground that the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definitive award upon the subject matter submitted was not made, review is properly limited to a comparison of the award with the submission. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 21, 453 A.2d 1158 (1983); Courchaine v. Shelby Mutual Ins. Co., 2 Conn. App. 438, 479 A.2d 1218 (1984).

In the present case, the parties voluntarily chose to leave the submission unrestricted. Upon being asked by the chairman of the arbitration panel whether they would care to limit the submission, both counsel agreed to allow the arbitrators to decide coverage, liability and damages. Nor does the record reveal that any specific questions were submitted by the parties to the arbitrators.

The plaintiffs challenge to the award is grounded on the proposition that an insurance policy which attempts to prevent stacking of the underinsured motorist coverage is contrary to law and public policy and that the arbitrators cannot apply a clause that limits stacking as they did in this case.

The decision of the arbitrators disallowing the stacking of coverage was a legal determination. Since the arbitrators’ award was unrestricted, its legal determination is not subject to review. Where the submission is unrestricted, the award is final and binding and cannot be reviewed for errors of law or fact. See Carroll v. Aetna Casualty & Surety Co., supra, 19; American Motorists Ins. Co. v. Brookman, supra, 223. We need not, and do not, address the issue of whether the stacking of underinsured motorist coverage should have been permitted. The plaintiff, by agreeing to an unrestricted submission, agreed to be bound by the award made by the arbitrators. The trial court correctly denied the plaintiffs application to vacate the award.

There is no error.

In this opinion the other judges concurred.


author: Dupont, C.P.J.

text:
    Ruth H. Anderson et al. v. Town of Litchfield et al.
    (2168)
    (2169)
    (2170)
    (2171)
    (2172)
    (2173)
    (2174)
    (2175)
    (2176)
    (2177)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued February 8
    decision released May 14, 1985

      Donald R. Holtman, with whom, on the brief, was Dean F. Radke, for the appellant (named defendant).

      Joseph P. Fasi, for the appellees (plaintiffs).
   Dupont, C.P.J.

These cases concern ten appeals from judgments of the trial court which reduced the sewer assessments of ten property owners. Each plaintiff is a property owner in the town of Litchfield. The town assessed benefits arising from the construction of a sewer, pursuant to General Statutes § 7-249. After trial, the court, Stoughton, J., determined that it was impossible either to confirm or alter the assessments without additional evidence, and ordered the cases back on the trial list in order that additional evidence might be offered by any party. A second trial court, Sullivan, J., rendered judgments in each case, reducing the special benefit assessments in varying amounts.

The town, on appeal to this court, claims as error (1) that the first trial court ordered the cases back to the trial list, and (2) that the second trial court failed to hold the plaintiffs to a proper burden of proof, found that the special benefit of General Statutes § 7-249 is equal to the increment in the fair market value of the benefitted property and failed to apply a presumption in favor of the town that each sewer assessment was at least equal to the special benefit to each property.

The claim that the first trial court should not have returned the cases to the trial list was not made to either trial court, and is raised for the first time on appeal. This court need not consider claims of law not raised at trial. Practice Book § 285A; Northeast Electrical Contractors v. Udolf, 1 Conn. App. 169, 171, 469 A.2d 419 (1984). Furthermore, the town did not move for judgment after the first trial court’s order and, in fact, submitted additional evidence to the second trial court.

A stipulation of facts of the parties presented to the second trial court included the amounts of the gross total cost and the net cost of an entire sewer line, and a statement of the formula used by the town to apportion the net cost among the property owners benefited. Thus, there is no dispute that the town intended by its assessments to recoup its entire net cost of the sewer construction by apportioning that cost among all of the property owners benefited.

An appraiser for the plaintiffs, using a market data approach, testified to the difference between the fair market value of the realty of each plaintiff, with sewers and without sewers. An appraiser for the town testified that the installation of sanitary sewers usually caused an increase in property value of between 5 percent and 10 percent. He further testified that the special benefit to each parcel was approximately equal to the assessment levied by the town. The trial court found the proper assessment in each case to be a figure between that of the plaintiff’s expert and that of the town’s assessment. The court rejected the proposition of the town that it could, pursuant to General Statutes § 7-249, by using a uniform formula for all properties which were the subject of the special benefit assessment, recoup its entire expenditure for sewer lines, even if that figure exceeded the dollar increase in market value, as found by the court, of each individual property, caused by the installation of a sanitary sewer.

The burden of proving that a special benefit assessment is invalid because it exceeds the particular dollar benefit accruing to the land is on the property-owner. As is true in all cases, the plaintiff must prove the allegations of his complaint. The standard of proof is that of a fair preponderance of the evidence. Faith Center, Inc. v. Hartford, 39 Conn. Sup. 142, 154, 473 A.2d 342 (1982), aff'd, 192 Conn. 434, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984).

A special benefit assessment by a town council is presumed to be valid and correct. Katz v. West Hartford, 191 Conn. 594, 602, 469 A.2d 410 (1983). The presumption is equivalent to prima facie proof that the special benefit assessment does not exceed the special benefit. The presumption, however, may be rebutted by the production of sufficient and persuasive contradictory evidence. Id., 603. Evidence of the fact that the special benefit assessment exceeds the special benefit must have actual persuasive effect, in that it convinces the trier that the nonvalidity of the presumption is as probable as its validity. Id., 603 n.3.

The presumption of a correct assessment is one of public policy. As such, the plaintiffs had the burden of producing substantial countervailing evidence as to its invalidity, with the burden of proving sufficient facts to put the presumed fact of correctness into issue. Tait, “The New Federal Rules of Evidence: A Summary of the Differences Between the Rules and the Connecticut Law of Evidence,” 9 Conn. L. Rev. 1, 8-9 (1976). A presumption in favor of a party, that a particular fact is true, shifts the burden of persuasion to the proponent of the invalidity of that fact, and that burden is met when, by the particular quantum of proof, the validity of the fact has been rebutted. Holland v. Holland, 188 Conn. 354, 357-58, 449 A.2d 1010 (1982); see Katz v. West Hartford, supra, 603 n.3.

The Katz court relied on Carlson-Lang Realty Co. v. Windom, 307 Minn. 368, 240 N.W.2d 517 (1976). Katz v. West Hartford, supra, 602-603. The facts of the latter case are almost identical to the facts of the present case. Both cases involve the installation of sanitary-sewers to service land with existing private septic or private sewer systems. The question in both cases is the determination of the proper amount of a special benefit assessment when the standard to be applied requires that the assessment may not exceed the special benefit. The Carlson-Lang court concluded that a special benefit assessment must be calculated by the difference between the market value of the realty before and after the improvement, even though such a measurement may mean that the cost of the improvement cannot be fully recouped by the town. Carlson-Lang Realty Co. v. Windom, supra, 369-73. If the assessment were to be greater in amount than the particular benefit conferred upon the particular property, the assessment would be unconstitutional as a taking without full compensation. Id., 370.

Whether an assessment exceeds the special benefit levied is a question of fact for the trial court and its finding as to that fact will not be disturbed unless it is clearly erroneous. Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 647, 474 A.2d 752, cert. denied, 469 U.S. 932, 105 S. Ct. 328, 83 L. Ed. 2d 265 (1984).

Although the presumption of a correct assessment prevailed initially in favor of the town, there was sufficient countervailing competent evidence before the trial court in this case for it to conclude that the plaintiffs had satisfied their burden of persuading it, by a fair preponderance of the evidence, that the special benefit assessment exceeded the special benefit to them. That the trial court did not discuss the presumption or the standard of proof in its memorandum is not sufficient to find error.

There is no error.

In this opinion the other judges concurred.

       These appeals were originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (e).

       The eases were not combined on appeal, but were heard together since the issues on appeal are the same in each case. The cases vary only in the amounts of the special benefits found to be proper by the trial court. At oral argument, the town claimed that the reductions in the assessments granted by the trial court were without logic and unrelated to any evidence introduced. That claim was not the subject of any of the town’s preliminary statements of issues nor is it made in the town’s brief. We do not, therefore, consider the claim. State v. Martin, 2 Conn. App. 605, 612A, 482 A.2d 70 (1984); Barrett v. Central Vermont Railway, Inc., 2 Conn. App. 530, 534-36, 480 A.2d 589 (1984).

       General Statutes § 7-249, in pertinent part, provides: “At anytime after a municipality, by its water pollution control authority, has acquired or constructed, a sewerage system or portion thereof, the water pollution control authority may levy benefit assessments upon the lands and buildings in the municipality which, in its judgment, are especially benefitted thereby
      . . . according to such rule as the water pollution control authority adopts, subject to the right of appeal .... The sum of initial and subsequent assessments shall not exceed the special benefit accruing to the property. Such assessment may include a proportionate share of the cost of any part of the sewerage system .... In assessing benefits and apportioning the amount to be raised thereby among the properties benefitted, the water pollution control authority may give consideration to the area, frontage, grand list valuation and to present or permitted use or classification of benefitted properties and to any other relevant factors. ... No assessment shall be made against any property in excess of the special benefit to accrue to such property. ...”

       The defendant also claims that the second trial court erred in failing to consider the future benefit accruing to the property from the installation of a sewerage system. This court assumes without deciding that the defendant’s analysis is correct. Nonetheless, the defendant, in its brief, refers to no evidence adduced at trial, which establishes the future benefit accruing to the property. Consequently, the trial court’s failure to consider any future benefit accruing to the property, under the circumstances, would be harmless error. Spiniello Construction Co. v. Manchester, 189 Conn. 539, 456 A.2d 1199 (1983).

       General Statutes § 7-249 specifically states that the assessment cannot exceed the special benefit accruing to the property. In contrast, General Statutes § 7-249a speaks of the cost of construction, in determining the levying of benefit assessments.


text:
    Anne Fukelman v. City of Middletown
    (2235)
    Borden, Fracasse and Norcott, Js.
    Argued February 28
    decision released May 14, 1985

      Francis O’Neill, city attorney, for the appellant (defendant).

      William C. Galligan, for the appellee (plaintiff).
   Fracasse, J.

The plaintiff instituted this action against the defendant city pursuant to General Statutes § 13a-149 for injuries sustained as a result of a fall upon a defective sidewalk. The trial court rendered judgment awarding the plaintiff damages plus costs. The defendant appealed, claiming that the trial court erred: (1) in concluding that the defendant had constructive notice of the defect; (2) in concluding that the defect was the sole proximate cause of the injuries; (3) in accepting the testimony of the plaintiff’s doctor; and (4) in awarding costs.

The first, second and third claims of error attack the trial court’s findings of fact. Questions of fact are to be determined solely by the trial court. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Connecticut National Bank v. Nagy, 2 Conn. App. 448, 449, 479 A.2d 1224 (1984). The weight given the evidence and the credibility of the witnesses are likewise within the province of that court. Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982). “This court will not reverse the decision of the trial court unless it is found to be ‘clearly erroneous in light of the evidence and the pleadings in the record as a whole.’ Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book § 3060D.” Contoura Business Products, Inc. v. TLD, Inc., 1 Conn. App. 690, 692, 474 A.2d 1265 (1984), quoting Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983). A review of the memorandum of decision and the record indicates that the court’s conclusions are legally and logically correct and are supported by the facts set out in the memorandum of decision. The facts set out in the memorandum are supported by the evidence, and, on the basis of the whole record, those facts are not clearly erroneous.

As to the fourth claim of error, the defendant asserts that costs may not be taxed against a municipality in the absence of statutory authority.

During oral argument, the plaintiff represented that a bill of costs was presented to the clerk, who has not yet taxed costs. Although the procedure for taxing costs as provided by Practice Book § 412 has not been followed in this case, this fourth claim of error will be considered, in the interests of judicial economy, the parties having fully briefed the claim.

Costs which are taxable in civil actions are fixed by statute. General Statutes § 52-257; Verrastro v. Sivertsen, 188 Conn. 213, 217, 448 A.2d 1344 (1982). Contrary to the defendant’s claim, a municipality is not exempt from the taxation of costs, as is the state. Costs cannot be taxed against the state in the absence of a statute specifically allowing such taxation. State v. Chapman, 176 Conn. 362, 366, 407 A.2d 987 (1978). This rule is based on the principle of sovereign immunity of the state. Unlike the state, a municipality has no sovereign immunity. Murphy v. Ives, 151 Conn. 259, 264, 196 A.2d 596 (1963).

In the absence of a specific statutory exception or prohibition, General Statutes § 52-257 applies to the defendant. There is no such exception in General Statutes § 52-257 or in General Statutes § 13a-149, pursuant to which this action was brought. In comparison, General Statutes § 13a-144, which permits similar actions against the state for damages sustained on a state highway, bridge or sidewalk, specifically states that “no costs or judgment fee in any such action shall be taxed against the defendant.” We conclude that costs may properly be taxed against the defendant municipality in an action brought pursuant to General Statutes § 13a-149.

There is no error; costs shall be taxed in accordance with this opinion.

In this opinion the other judges concurred.