text:
    Marvin A. Camm et al. v. William D. Hart, Jr., et al.
    (4174)
    Hull, Borden and Daly, Js.
    Argued December 11, 1985
    decision released February 25, 1986

      Marylouise S. Black, with whom, on the brief, was Robert A. Fuller, for the appellants (defendants).

      Walter A. Stewart, Jr., for the appellees (plaintiffs).
   Borden, J.

In this mandamus action, the defendants, the members of the planning and zoning commission of the town of New Canaan, appeal from a supplemental judgment rendered in favor of the plaintiffs, owners of a two lot subdivision. The plaintiffs had obtained an original judgment of mandamus compelling the approval of their subdivision because the defendants had failed to act on their application for subdivision approval within the statutorily required period.

The issue in this appeal involves the propriety of the supplemental judgment, which declared that the requirements of the zoning regulations regarding the average width of a lot do not apply to one of the lots in the plaintiffs’ subdivision. We hold that because the plaintiffs’ right to this supplemental judgment was not clear, but was doubtful and contested, it was error for the court to issue the supplemental judgment as part of this mandamus action.

The facts are not in dispute. The plaintiffs brought the mandamus action seeking a certificate of approval of their proposed subdivision, because their subdivision application had been denied by the commission more than sixty-five days from the date of the hearing. See General Statutes §§ 8-26 and 8-26d. The basis of the denial of the application was a failure to meet the minimum lot width requirements of the town zoning regulations. One of the defendants’ claims to the trial court in the initial mandamus proceeding was that the plaintiffs had no clear legal right to a certificate of approval because of the prohibition in General Statutes § 8-26 against approval of a subdivision which conflicts with applicable zoning regulations. See footnote 1, supra. The court, recognizing the plausibility of the argument, rejected it nonetheless because it did “not address the legal result of the Commission’s failure to act within the time permitted under § 8-26d.” The court, rejecting the defendants’ other claims, rendered a judgment of mandamus approving the plaintiffs’ subdivision. See Viking Construction Co. v. Planning Commission, 181 Conn. 243, 435 A.2d 29 (1982). The defendants did not appeal.

In compliance with the judgment, the defendants approved the subdivision map, and the plaintiffs recorded it. Thereafter, the plaintiffs filed an application with the zoning inspector of the town for a “zoning permit” for the subdivision. The inspector denied their application on the ground that the lot involved did not conform to the average width required by the zoning regulations.

The plaintiffs then moved in the trial court for a supplemental judgment which would declare “that the ‘required average width’ definition of the zoning regulations of the Town of New Canaan do not apply to this lot.” The plaintiffs did not seek to establish that their subdivision was in fact in conformity with the lot width requirements of the zoning regulations, nor did the trial court inquire into that issue. Instead, the court, reasoning that it was effectuating its original judgment, granted the motion and rendered the supplemental judgment in the form requested by the plaintiffs. That supplemental judgment forms the basis of this appeal.

We begin by noting that the supplemental judgment was rendered to enforce a judgment of mandamus. Thus, the propriety of the supplemental judgment must be gauged by the same standards as the original judgment. The court cannot take action by way of a supplemental judgment of mandamus that would have been beyond the proper scope of an original judgment of mandamus.

Mandamus is an extraordinary remedy. Hackett v. New Britain, 2 Conn. App. 225, 227, 477 A.2d 148 (1984). “Since mandamus neither gives nor defines a right which one does not already have, it cannot, and does not, act upon a doubtful or contested right. McAllister v. Nichols, 193 Conn. 168, 171-72, 474 A.2d 792 (1984); Gerrity v. Bisciglia, 178 Conn. 235, 238-39, 423 A.2d 871 (1979).” Hackett v. New Britain, supra, 228. We conclude that the plaintiffs’ right to a declaration that the lot width zoning regulations do not apply, even after the mandated subdivision approval, is sufficiently doubtful and contested so as to bar it as a basis for a supplemental judgment of mandamus.

The plaintiffs argue that the issue of the applicability of the lot width requirements of the zoning regulations had been litigated in the original mandamus action and decided in their favor. Thus, they claim that because mandamus is a legal remedy which is also subject to equitable principles; see Sullivan v. Morgan, 155 Conn. 630, 635, 236 A.2d 906 (1967); Hackett v. New Britain, supra, 229; the supplemental judgment was a proper exercise of the court’s general equity power to grant whatever incidental relief is necessary to carry out the main object of the suit. See Clipfel v. Kantrowitz, 143 Conn. 184, 188, 120 A.2d 416 (1956). The plaintiffs further argue that any result other than that effected by the supplemental judgment would vitiate General Statutes §§ 8-26 and 8-26d, and would be contrary to such cases as Vartuli v. Sotire, 192 Conn. 353, 472 A.2d 336 (1984), and Viking Construction Co. v. Planning Commission, supra, which hold the time constraints of General Statutes §§ 8-26 and 8-26d to be mandatory.

The defendants offer several considerations to the contrary, the strongest of which are as follows. They argue that, although the town has combined its planning and zoning functions in one commission, those functions are separate. Vose v. Planning & Zoning Commission, 171 Conn. 480, 483, 370 A.2d 1026 (1976). Subdivision regulation is part of the planning function; id.; while issuance of a zoning permit is part of the zoning function, which regulates the use of land. Kiska v. Skrensky, 145 Conn. 28, 31-32, 138 A.2d 523 (1958). Thus, they argue, approval of the subdivision application did not, and could not, carry with it approval of the lot width requirement which is part of the zoning function. Furthermore, they claim that the effect of the supplemental judgment is to compel the zoning inspector to approve a use which is in violation of the very zoning regulations which it is his duty to enforce, and that he cannot be compelled to do so. See State ex rel. Lavoie v. Building Commission, 135 Conn. 415, 423, 65 A.2d 165 (1949). Their position finds implicit but strong support in Shapero v. Zoning Board, 192 Conn. 367, 371, 472 A.2d 345 (1984). In that case, the Supreme Court appeared to agree with the parties that, even though a coastal site plan had been approved by operation of law because the zoning board had not acted within the sixty-five day period mandated by General Statutes § 22a-109 (e); cf. General Statutes § 8-26; a building permit could not be issued for the site unless the proposed building also complied with all applicable zoning regulations. “This additional requirement is imposed by General Statutes § 8-3 (f), which expressly prohibits the issuance of a building permit unless the proposed building ‘is in conformity with such [zoning] regulations (Footnote omitted.) Shapero v. Zoning Board, supra, 371.

Under these circumstances, the plaintiffs’ right to an exemption from the average lot width requirements of the zoning regulations is far from clear. Thus, the plaintiffs were not entitled to the supplemental judgment.

There is error in part, the supplemental judgment is set aside and the case is remanded with direction to deny the plaintiffs’ motion for supplemental judgment.

In this opinion the other judges concurred.

       General Statutes § 8-26 provides in part that “nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations.”

       The record does not make clear whether the plaintiffs were seeking a building permit pursuant to General Statutes § 8-3 (f) or site plan approval pursuant to General Statutes § 8-3 (g). Both, however, require that the proposed use of the property be in conformity with the zoning regulations.

       The plaintiffs also appealed from the zoning inspector’s denial of their application to the zoning board of appeals, and from the denial by the board they filed a zoning appeal in the Superior Court. That appeal is still pending. We note that the availability of this zoning appeal alone would not necessarily bar the plaintiffs from relief by mandamus to which they are otherwise entitled. See Merlo v. Planning & Zoning Commission, 196 Conn. 676, 680-81, 495 A.2d 268 (1985).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Colonial Bank of Waterbury, Administrator (Estate of Ann R. Carlson) v. George L. Forish, Jr., et al.
    (3132)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 8
    decision released February 25, 1986

      Gary L. Broder, for the appellant (plaintiff).

      Jeremiah M. Keefe, with whom, on the brief, was James E. Kernan, for the appellees (defendants).
   Per Curiam.

This is an appeal by the plaintiff from a judgment rendered by a state trial referee, Hon. Robert A. Wall, acting as the trial court. The plaintiff is the administrator c.t.a. of the estate of Ann R. Carlson, who was the sister of George L. Forish, Jr., the individual defendant in this case. Forish, along with his wife, controlled Central Manufacturing Company, Inc., a corporation named as codefendant in this case. The plaintiff sought recovery on a promissory note in the principal amount of $15,000.

The court found that the note was executed by the corporate defendant, and that the proceeds of the note had been used for corporate purposes. It also found that, prior to her death, Carlson had agreed with Forish that the balance due on the note was $2700.

Judgment was rendered for the plaintiff against the corporate defendant in this amount, with interest from the date of Carlson’s death and attorney’s fees, for a total award of $5336, plus costs. Judgment was also rendered in favor of the individual defendant.

The plaintiff claims that the trial court erred (1) in determining that the decedent had agreed that the balance due on the note was $2700, (2) in rendering judgment for the plaintiff for $5336, plus costs, rather than a greater amount, and (3) in denying the plaintiffs motion for further rectification of the record by articulation.

The plaintiff’s first and second claims of error challenge the factual determinations of the trial court and therefore warrant a summary disposition. “The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. See Practice Book § 3060D.” Belle Camperland, Inc. v. Commissioner, 5 Conn. App. 678, 679, 501 A.2d 1226 (1985). The trial court was presented with conflicting evidence, including the testimony of several witnesses. It is well established that the trial court is in the best position to determine the credibility of witnesses and the weight to be accorded their testimony. Morande v. Newman Lincoln-Mercury, Inc., 5 Conn. App. 423, 499 A.2d 78 (1985). A careful review of the record in this case clearly indicates that the trial court’s findings are supported by the evidence, that they are not clearly erroneous and that its conclusions based on those findings are legally and logically correct. Id., 424.

The plaintiff’s final claim of error concerns the trial court’s refusal further to articulate its decision after the court had previously articulated its decision in response to an earlier motion by the plaintiff. This claim is not considered because of the plaintiff’s failure to seek review by this court pursuant to Practice Book § 3108. See Emerick v. Emerick, 5 Conn. App. 649, 650 n.1, 502 A.2d 933 (1985).

There is no error.


author: Bieluch, J.

text:
    Irving H. Perlmutter v. Carol C. Johnson
    (3366)
    Borden, Spallone and Bieluch, Js.
    Argued October 11, 1985
    decision released February 25, 1986

      Carol C. Johnson, pro se, the appellant-appellee (defendant).

      Roger J. Frechette, with whom, on the brief, was Irving H. Perlmutter, pro se, for the appellee-appellant (plaintiff).
   Bieluch, J.

This appeal by the pro se defendant, Carol C. Johnson, arises out of an action instituted by the plaintiff, Irving H. Perlmutter, for attorney’s fees owed to him by Johnson. The fees were incurred as a result of Perlmutter’s initiation of two actions on Johnson’s behalf. Johnson paid a portion of Perlmutter’s bill, but has refused to pay the remainder. Perlmutter therefore instituted the present action.

The trial court concluded that Perlmutter’s claims were based on a theory of quantum meruit and awarded Perlmutter a total of $4574.06, representing a reasonable fee for Perlmutter’s services in the two cases plus his disbursements. The figure was significantly less than Perlmutter had sought. The court declined to award Perlmutter interest.

Johnson has raised several claims of error, only five of which we will discuss here. In addition, by his cross appeal, Perlmutter has raised six claims of error. We find no error on the appeal, but do find error on the cross appeal.

We note at the outset that Johnson’s brief and reply brief both fail to comply with the requirements of Practice Book § 3060F. The briefs do not contain a statement of the issues presented. Further, they do not contain anything more than a rambling description of the facts of the two cases underlying the present action. No legal arguments are contained in the briefs. On the basis of the briefs, the record, and Johnson’s original preliminary statement of issues, however, we will nonetheless review all claims which are “fairly presented, or at least, reasonably discernible, upon the record before us.” Shuster v. Buckley, 5 Conn. App. 473, 476 n.2, 500 A.2d 240 (1985).

Johnson has made claims of error pertaining to the decision of the trial judge, Levine, J., denying two motions to recuse himself from sitting on this case. The first of these motions was based on Johnson’s claims (1) that “issues involved herein are under consideration by the Appellate Court,” (2) that Judge Levine was also in the process of ruling on another case at the time of trial which involved both parties to this action, and (3) that, in the other case, Judge Levine had inquired as to why Perlmutter was using a cane for assistance in walking, and as to Perlmutter’s wife’s health. We conclude that the judge was correct in refusing to recuse himself in this instance.

Proof of actual bias on the part of the court is not required to demonstrate that the trial judge should have disqualified himself. Cameron v. Cameron, 187 Conn. 163, 170, 444 A.2d 915 (1982). Rather, the appearance of impropriety is as important as the reality where the court is concerned. Id.

In the present case, the trial court admirably demonstrated its impartiality in permitting Johnson, as a pro se litigant, a broad latitude in trying his case. With regard to Johnson’s remaining claims, the assertion that Judge Levine was also considering another case involving these parties at the time of trial, is unsubstantiated. There was no argument presented on this claim beyond the bald statement. Neither the parties nor Judge Levine referred to any such trial after it was first raised by Johnson. We do, however, take judicial notice that the judgment was affirmed by this court recently in Linden Shore District v. Johnson, 4 Conn. App. 225, 493 A.2d 901, cert. denied, 197 Conn. 803, 495 A.2d 282 (1985), an action for foreclosure of municipal tax liens on lands owned by Johnson. Perlmutter moved to be made a party defendant in that case because he claimed an interest in the land there at issue by virtue of an attachment which he had filed in the present case. He subsequently, however, filed a statement of no defense to that action before trial. Thus, the mere fact that Judge Levine tried that prior case did not mandate his disqualification in the present case. Prior appearances of a party before a trial judge do not, in themselves, reflect in any way upon the judge’s impartiality to decide the merits of the case before him.

Finally, with respect to Johnson’s claim that the judge inquired as to Perlmutter’s use of a cane, and as to his wife’s health, the mere fact that he inquired into Perlmutter’s use of a cane, while indicative of a prior acquaintance with Perlmutter, is not a showing of bias in any way. Perlmutter is a practicing attorney and Johnson, as an attorney himself, could not reasonably have expected that Perlmutter would be unknown to the judges of the Connecticut courts. Such prior professional dealings, however, do not demonstrate a personal bias in favor of Perlmutter.

As to Judge Levine’s inquiry as to Mrs. Perlmutter’s health, Judge Levine stated that he did not remember making any such inquiry. Even such an inquiry about Mrs. Perlmutter’s condition, if made, however, would be innocuous. The “taking of the silk” by a judge does not bar him from wearing the fabric of ordinary social civility in the presence of all persons, lay or professional.

It should also be noted that Johnson was notified three weeks prior to trial that the case would be heard by Judge Levine. He failed to move for disqualification until the date of trial and, even then, he failed to apprise Judge Levine of his objections during a conference in chambers just prior to the commencement of trial. Under these circumstances, we conclude that the court was correct in denying Johnson’s motion.

Johnson’s second claim of error regarding disqualification is that Judge Levine engaged in a hushed conversation with opposing counsel at the bench when he knew that Johnson was hard of hearing. Johnson further claims that he demanded to know what the conversation was about, but that Judge Levine refused to say, stating only to the plaintiff that “I may want you to amend your complaint.” Unfortunately, we can find no evidence of such a verbal exchange in the transcript of the case. Neither Johnson’s brief nor his reply brief refer to any pages in the transcript demonstrating that Johnson made any objection to Judge Levine in this regard, nor does the appendix to his reply brief, which contains copies of seventy-two randomly selected transcript pages, provide us with any evidence of such an objection. We therefore decline to consider this claim.

Both Perlmutter and Johnson have claimed error in the court’s decision to award damages based on the theory of quantum meruit. Both parties are in agreement that the quantum meruit theory should not be used where there is an express agreement as to the amount to be paid for the services rendered. They further agree that they had contracted for a rate of $65 per hour to be charged to Johnson for Perlmutter’s services, although they disagree regarding Perlmutter’s claim that this rate was the result of a negotiated “professional courtesy” discount from his usual fee of $100 per hour.

The trial court concluded that the allegations of Perlmutter’s complaint sounded in quantum meruit rather than in contract. The court noted, however, that the case was tried on an express contract theory and that the parties agreed upon the actual hourly figure which had been arranged. On the basis of this variance between the pleadings and the proof at the trial, the court invoked Practice Book § 193, concluding that the rule was authority for the court’s use of quantum meruit as the theory upon which Perlmutter should recover. Thus, the court found Perlmutter to be entitled to $4574.06 in damages, which figure included Perlmutter’s claim for amounts disbursed by him as well as for his fees. We conclude that this was error.

Practice Book § 193 permits the plaintiff to recover a price different from that alleged “if the proof fails to establish the price alleged.” In the present case, however, the proof was uncontradicted regarding the price to which the parties agreed. Thus, their agreed price was established and was the only price in evidence before the court. The court, therefore, erred in finding that any other rate of payment was appropriate. Because the trial court made no finding with regard to the number of hours expended by Perlmutter, it is necessary for us to remand this matter for a hearing limited to a determination of the number of hours so expended.

Johnson’s final claim relates to the court’s error “in not condemning” Perlmutter for retaining $2391.66 paid to him by the Branford board of zoning appeals, which amount represented reimbursement of taxable costs due Johnson in a prior matter. This claim is also without merit.

Perlmutter never used those funds. Rather, he disclosed their existence to both Johnson and the court when his complaint was filed and stated that those funds were being held in escrow pending a final determination of his rights thereto. He further stated that he had notified Johnson when he received the funds. Under these circumstances, we conclude that Perlmutter correctly placed these funds in escrow and that he was not to be condemned for such action. See Code of Professional Responsibility, Disciplinary Rule 9-102 (a). We further note that the court was correct in permitting Perlmutter to keep these funds as an offset. It has long been held that an attorney has “an equitable lien upon the avails [of his actions for a client] for the services and expenses in the suit.” Cooke v. Thresher, 51 Conn. 105, 107 (1883). In the present case, Perlmutter’s undisputed testimony was that he obtained the funds on Johnson’s behalf as a result of an action which he undertook as Johnson’s attorney. He, therefore, had a lien upon those funds.

Perlmutter’s cross appeal raises one final claim, namely, that the court erred in failing to award him interest, as damages on his award. See General Statutes § 37-3a. Such an award is a matter which is within the discretion of the trial court. Sperry v. Moler, 3 Conn. App. 692, 694, 491 A.2d 1115 (1985). We conclude, upon the record, that the court did not abuse its discretion in this case.

There is no error on the appeal. There is error on the cross appeal, the judgment is set aside and the case is remanded for a hearing limited to the issue of the number of hours which Perlmutter expended in connection with his efforts on behalf of Johnson; upon a determination of that number of hours, judgment is to be rendered for Perlmutter in the agreed amount of sixty-five dollars multiplied by the number of hours so found, plus disbursements, less a setoff for Johnson’s funds held by Perlmutter in his clients’ funds account.

In this opinion the other judges concurred.

       The plaintiff has also filed a cross appeal which will be discussed herein.

       See Johnson v. Fuller, 190 Conn. 552, 461 A.2d 988 (1983); Johnson v. Zoning Board of Appeals of Branford, 2 Conn. App. 24, 475 A.2d 339, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984), cert. denied, 471 U.S. 1066, 105 S. Ct. 2141, 85 L. Ed. 2d 498 (1985). The facts of those cases are adequately set forth therein.

       The remainder of Johnson’s claimed errors constitute an attempt to dispute the factual findings of the trial court. We will not upset those findings. Practice Book § 3060D.

       Only three of those claims were briefed. We therefore deem the remainder to have been abandoned. Practice Book § 3060F (a).

       The “issues” of which Johnson spoke were involved in the appeal by Johnson of one of the cases for which Perlmutter’s fee was in dispute. It should be obvious that an appeal of which the court was unaware until Johnson mentioned it, and which did not involve a ruling made by Judge Levine, could have little bearing on the court’s impartiality.

       Ironically, Johnson asserts that the court established a $100 per hour rate pursuant to its use of the quantum meruit theory while Perlmutter asserts that the rate thus established was approximately $49 per hour. Given the number of hours which Perlmutter claims to have spent on the matters at issue, this latter figure seems more accurate. Johnson’s figure bears no relation to the amount which the court actually awarded.

       Paragraph one of the complaint stated that the parties had an agreement regarding “reasonable fees.” Paragraph two stated a total amount due in accordance with that agreement. No hourly rate was alleged.


text:
    Glastonbury Plumbing & Heating, Inc. v. Rita Valeriano et al.
    (3616)
    Borden, Daly and Bieluch, Js.
    Submitted on briefs February 4
    decision released February 25, 1986

      Rita Valeriano, pro se, the appellant (defendant) filed a brief.

      John D. LaBelle, Jr., filed a brief for the appellee (plaintiff).

       This case was assigned for oral argument on February 4,1986. On that date, the parties waived oral argument.

   Per Curiam.

There is no error.


text:
    Marie Notarino v. Arthur B. Powers, Commissioner of Transportation
    (3734)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 7
    decision released February 25, 1986

      Marie Notarino, pro se, the appellant (plaintiff).

      William F. Gallagher, with whom, on the brief, were Joseph M. Delaney and Robert P. Borquez, for the appellee (defendant).
   Per Curiam.

The plaintiff sued the defendant, the commissioner of transportation, for injuries incurred when her motor vehicle went out of control while crossing a wet and slippery bridge in New Haven. After a court trial, the court found that the plaintiff was not in the exercise of due care and that her failure to maintain control, rather than any negligence of the defendant, was the proximate cause of the accident. See General Statutes § 13a-144; Patrick v. Burns, 5 Conn. App. 663, 664-65, 502 A.2d 432 (1985). This finding was based on the infrequency of accidents which occurred on this very heavily traveled bridge and on the extensive damage to the plaintiff’s car. See Meyer v. Barnes, 2 Conn. App. 485, 488, 479 A.2d 1236 (1984). Our review of the record indicates that these factual findings are not clearly erroneous and thus cannot be disturbed.

There is no error.


author: Pickett, J. Bieluch, J.,

text:
    William C. Lee v. Pearl A. Tufveson et al.
    (3396)
    Hull, Bieluch and Pickett, Js.
    Argued November 25, 1985
    decision released February 25, 1986

      Charles C. Greenwald, for the appellants (named defendant et al.).

      Richard P. Kuzmak, with whom, on the brief, was Michael C. Bellobuono, for the appellee (plaintiff).
   Pickett, J.

The defendants Pearl A. Tufveson and Ethel M. Tufveson, have appealed from a Superior Court order conveying to the plaintiff, William C. Lee, title to a parcel of real estate pursuant to General Statutes § 52-22. The plaintiff commenced this action against the defendants Pearl A. Tufveson and Ethel M. Tufveson, inter alios, for breach of a contract to sell real estate located in Cromwell. On December 15,1982, a stipulated judgment was rendered ordering the defendants to convey title to the subject property before February 15, 1983, upon payment by the plaintiff of the sum of $94,000. On March 18, 1983, the defendants moved to open the judgment. This motion was denied on July 25,1983. On August 8,1983, the defendants, Pearl A. Tufveson and Ethel M. Tufveson, filed an appeal to this court challenging the denial of the motion to open the judgment. On January 13,1984, the court dismissed the appeal, suo motu, pursuant to Practice Book § 3109 for lack of diligent prosecution.

On February 7, 1984, after the defendants refused to comply with the stipulated judgment, the plaintiff filed a motion requesting the Superior Court to pass title to the subject property pursuant to General Statutes § 52-22. On July 5,1984, the court ordered the conveyance of title of the subject property pursuant to General Statutes § 52-22. The defendants have appealed the granting of this motion.

The defendants allege that the Superior Court order transferring title to the subject property pursuant to General Statutes § 52-22 was improper for three reasons. The defendants claim (1) that the court’s action modified the terms of a stipulated judgment without consent of the parties, (2) that General Statutes § 52-22 is not the proper vehicle for executing a stipulated judgment, and (3) that the court, by granting the plaintiffs motion to pass title of the subject property without a hearing, violated the defendants’ due process rights under the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution. The third claim was withdrawn during argument and is therefore abandoned. The issue on appeal is whether the Superior Court erred in granting plaintiffs motion to transfer title to the subject real estate pursuant to General Statutes § 52-22. We find no error.

The defendants’ argue that the court’s granting of the plaintiff’s motion to pass title to the real estate pursuant to General Statutes § 52-22 unilaterally modified the stipulated judgment. “When parties to a lawsuit voluntarily enter into a consent decree that is entered on the court records, certain well established consequences follow. Although a consent judgment is a contract rather than an adjudication on the merits . . . such a judgment is as conclusive as if it had been rendered upon controverted facts.” (Citation omitted.) Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 558, 468 A.2d 1230 (1983). The terms of a consent judgment may not be enlarged or lessened by the court. Bryan v. Reynolds, 143 Conn. 456, 460-61, 123 A.2d 192 (1956); Owsiejko v. American Hardware Corporation, 137 Conn. 185, 187-88, 75 A.2d 404 (1950). Nevertheless, “[hjaving found noncompliance, the court, in the exercise of its equitable powers, necessarily [has] the authority to fashion whatever orders [are] required to protect the integrity of the original consent judgment.” Connecticut Pharmaceutical Assn., Inc. v. Milano, supra, 563-64. We find that the court did not enlarge or lessen the terms of the stipulated judgment, but rather only protected the judgment’s integrity by conveying the property.

The defendants’ remaining claim is that General Statutes § 52-22 is not the proper manner in which to execute a stipulated judgment. General Statutes § 52-22 provides: “The superior court in the exercise of its equitable jurisdiction may pass the title to real property by decree, without any act on the part of any party holding title to the real property, when in its judgment it is the proper mode to carry the decree into effect. When the decree is recorded in the land records in the town where the real property is situated, it shall be, while in force, as effectual to transfer the real property as the deed of the party or parties holding title.”

“In the interpretation of statutes, the intent of the legislature is to be found not in what it meant to say but in what it did say. State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984); Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979). A primary rule of statutory construction is that if the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature; State v. Smith, supra, 221; Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975) . . . and there is no need to construe the statute. Bell v. Planning & Zoning Commission, 173 Conn. 223, 226, 377 A.2d 299 (1977). The words of a statute are to be given their commonly approved meaning unless a contrary intent is clearly expressed. Holmquist v. Manson, 168 Conn. 389, 393, 362 A.2d 971 (1975). Where the legislative intent is clear and unambiguous, there is no need for statutory construction or a review of the legislative history. Moreover, it is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms. In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 107, 425 A.2d 588 (1979); Weingarten v. Allstate Ins. Co., 169 Conn. 502, 507-508, 363 A.2d 1055 (1975).” Federal Aviation Administration v. Administrator, 196 Conn. 546, 550-51, 494 A.2d 564 (1985); see Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1053 (1985); Breen v. Department of Liquor Control, 2 Conn. App. 628, 631, 481 A.2d 755 (1984).

The statute provides the court with a more simple and direct method of transferring title than ordering a party to execute a deed especially when the court’s intention is merely to transfer legal title. Atlas Garage & Custom Builders, Inc. v. Hurley, 167 Conn. 248, 257, 355 A.2d 286 (1974); Mendrochowicz v. Wolfe, 139 Conn. 506, 510, 95 A.2d 260 (1953); Robinson v. Cross, 22 Conn. 171, 175-76 (1852); Bascetta v. Bascetta, 1 Conn. App. 256, 470 A.2d 1232 (1984); Manyak v. Manyak, 29 Conn. Sup. 1, 268 A.2d 806 (1970).

General Statutes § 52-22 provides in part: “The superior court in the exercise of its equitable jurisdiction may pass title . . . .” Specific performance is an equitable remedy. Dick v. Dick, 167 Conn. 210, 221-22, 355 A.2d 110 (1974). Therefore, General Statutes § 52-22 is a proper way to execute this stipulated judgment in which the court ordered the transfer of legal title. See Atlas Garage & Custom Builders, Inc. v. Hurley, supra, 257; Dick v. Dick, supra; Robinson v. Cross, supra. The trial court did not err in granting the plaintiffs motion to transfer property pursuant to General Statutes § 52-22.

There is no error.

In this opinion Hull, J., concurred.

Bieluch, J.,

dissenting. I dissent. The majority opinion permits a party to return to court more than one year subsequent to the entry of judgment and to alter the terms of that judgment merely by filing a motion. Such a procedure totally disregards the legal concepts of finality of judgments and compliance with proper procedures for enforcing judgments provided by our common law and rules of practice.

The courts of this state have often expressed disfavor for procedures which undermine “the important principle of finality [of judgments].” Meinket v. Levinson, 193 Conn. 110, 113, 474 A.2d 454 (1984); see also Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983); Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982); Fairfield Lease Corporation v. Romano’s Auto Service, 4 Conn. App. 495, 497, 495 A.2d 286 (1985); Grayson v. Grayson, 4 Conn. App. 275, 296, 494 A.2d 576 (1985). “ ‘Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed . . . .’” Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952), quoting 1 Freeman, Judgments (5th Ed.) § 305 p. 602. The majority’s ruling permits the parties to a judgment to return to court upon motion long after even the trial court’s limited power to set aside or open the judgment has expired. See Practice Book § 326 (four month limitation on setting aside or opening judgments.) The majority’s ruling impermissibly erodes a keystone concept of our law.

Further, the majority opinion ignores the existence of an appropriate procedural vehicle by which the plaintiff could have obtained precisely the result which he sought, namely, the enforcement of the terms of the judgment. By simply alleging noncompliance with the judgment, the plaintiff could have, and should have, brought suit thereon. See Garguilo v. Moore, 156 Conn. 359, 361, 242 A.2d 716 (1968). Merely filing a motion requesting that the court order enforcement of the judgment was legally and procedurally impermissible.

The majority’s argument that General Statutes § 52-22 is clear and unambiguous in clothing the court with the equitable power to transfer property is entirely accurate, but it misses the mark in this case. The statute, while literally fitting the object of this case, merely grants equitable jurisdiction to a court in a proper case, but does not specify the procedure to be observed in its use. The majority opinion reads into the statute the power to employ a simple motion, for which there is no statutory or procedural authority, to wrest property from its owner.

The majority also ignored that the plaintiff’s motion is “a creature not normally spotted in Connecticut’s jurisprudential forests.” Eco Industries, Inc. v. Executive Monarch Hotel, Inc., 4 Conn. App. 659, 662, 496 A.2d 233 (1985). A genetically similar creature, entitled a “Motion for Order in Aid of Judgment,” was at issue in Gentile v. Ives, 163 Conn. 281, 303 A.2d 720 (1972). There the court remarked upon the impropriety of the motion where other remedies, including an action on the judgment, were available, but on the specific facts before it found that an action on the original judgment could not be brought because of the defendant’s sovereign immunity from suit and allowed the motion. Id., 282.

The majority asserts that Gentile and Eco are inapposite to the present case because “[transferring property pursuant to General Statutes § 52-22 ... is not unknown to Connecticut practice.” I do not, however, assert that such transfers are foreign to Connecticut practice. Rather, I assert that the procedure used by the plaintiff to obtain the transfer was unknown to Connecticut practice and was improper.

For the foregoing reasons I dissent.

       The original judgment read in part: “The Court, having heard the parties on the stipulation, finds that the judgment should be entered in accordance with the stipulation.
      “Whereupon it is adjudged that the defendants shall convey for purchase to the plaintiff the real estate hereinbefore described upon payment by the plaintiff of the sum of $94,000.
      “It is further ordered that the defendants shall sign, within seven days of December 15,1982, a deed of conveyance of said real estate. It is ordered that this deed of conveyance shall be delivered to Mr. James T. Borger of the Hartford National Bank and Trust Company who shall, in turn, deliver the deed to the plaintiff upon the payment of $94,000 by the plaintiff. This transaction is ordered to be completed on or before February 15, 1983.”

       Insofar as the dissent relies upon Garguilo v. Moore, 156 Conn. 359, 361, 242 A.2d 716 (1968), Gentile v. Ives, 163 Conn. 281, 303 A.2d 720 (1972), and Eco Industries, Inc. v. Executive Monarch Hotel, Inc., 4 Conn. App. 659, 662, 496 A.2d 233 (1985), this reliance appears to be misplaced. In Garguilo, while the court stated that an action on the judgment was acceptable, it did not hold that it was the plaintiffs only remedy. Garguilo v. Moore, supra, 361. Further, the Garguilo court noted that the case was unique because the stipulated judgment lacked clarity and finality and was not susceptible to immediate enforcement. Id., 364. A resolution of the issues raised in Garguilo required the trial court to interpret the terms of the consent judgment. Id., 365. Certainly, that is not the issue in the present action. Clarity and finality are present and the trial court merely enforced its judgment.
      In Gentile and Eco Industries, Inc., the motions in question were unknown to Connecticut practice. See Gentile v. Ives, supra, 281 (“Motion for Order in Aid of Judgment”); Eco Industries, Inc. v. Executive Monarch Hotel, Inc.,
        supra, 661 (plaintiff filed a “complaint over”). Transferring property pursuant to General Statutes § 52-22, however, is not unknown to Connecticut practice.
      Finally, both Gentile and Garguilo involved only money judgments, not specific performance. It is also noted that in Gentile and Garguilo, the Supreme Court upheld the procedural devices used by the trial court. See Gentile v. Ives, supra, 283; Garguilo v. Moore, supra.


text:
    Production & Handling Systems, Inc. v. Dennis L. Elkins et al.
    (3713)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 4
    decision released February 25, 1986

      Ronald T. Murphy, for the appellant (plaintiff).

      Robert A. Teitenberg, for the appellee (defendant Industrial Recruiters Associates, Inc.)
   Per Curiam.

There is no error.


author: Hull, J.

text:
    Robert A. Couture v. Board of Education of the Town of Plainfield et al.
    (3641)
    Hull, Daly and Bieluch, Js.
    Argued November 12, 1985
    decision released February 25, 1986

      F. Jerome O’Malley, for the appellant (plaintiff).

      Jon S. Berk, with whom were Leslie A. Collins and, on the brief, Thomas P. Barrett and William R. Connon, for the appellees (defendants).
   Hull, J.

In this appeal, the plaintiff claims that the trial court erred in directing the verdict for the defendants in his nuisance and negligence action against them, and in refusing to set aside that verdict. We conclude that the jury could not reasonably and legally have found for the plaintiff and accordingly find that the trial court did not err.

Certain facts are not in dispute. On November 1, 1980, the plaintiff attended a football game between Plainfield and Putnam High Schools. The plaintiff went to the game as a spectator and paid a small admission fee. He was asked, however, to participate as a “chain-man,” a type of game official who measures yardage gained for possible first downs. While serving in this capacity, the plaintiff was injured as a result of being driven into an unprotected grandstand by a player who had been forced out of bounds.

The plaintiff brought suit against the town of Plain-field and its board of education. In the first count of his amended complaint, the plaintiff alleged that the defendants were negligent in several respects, primarily in failing to pad and fence off the bleachers and in permitting benched players to congregate along the sidelines. In the second count, the plaintiff claimed that the defendants had created a nuisance by failing to pad the stands or to erect a barrier between the stands and playing field. The third count was also grounded in nuisance based on the defendants’ alleged failure to prevent players from congregating along the sidelines, thus impairing the plaintiff’s ability to avoid a collision with players who might overrun the sidelines. The defendants pleaded governmental immunity as a special defense to all three counts.

After the plaintiff presented his case to the jury, the defendants, asserting governmental immunity, moved for a directed verdict on all counts. The court granted the motion as to the negligence count finding that the defendants were immune from suit for negligence. The court granted the motion as to the nuisance counts on the basis of its conclusion that the plaintiff was an invitee at the time of his injury, and, as an invitee, was precluded from recovering on a claim of either public or private nuisance.

The plaintiff claims that the court erred by not allowing the jury to decide whether the defendants were immune from liability for negligence. According to the plaintiff, whether the defendants, by sponsoring a football game, were engaged in a governmental function is a question of fact to be determined by the jury. The defendants contend that the application of the doctrine of governmental immunity is a question of law which the trial court correctly decided in their favor.

Our Supreme Court has resolved this question. “Whether the acts complained of . . . [are] governmental or ministerial is a factual question which depends upon the nature of the act complained of. Tango v. New Haven, 173 Conn. 203, 205-206, 377 A.2d 284 (1977); Doran v. Waterbury Parking Authority, 35 Conn. Sup. 280, 281, 408 A.2d 277 (1979); Boucher v. Fuhlbruck, [26 Conn. Sup. 79, 81, 213 A.2d 455 (1965)]; Cieri v. Hartford, 8 Conn. Sup. 542, 542-43 (1940). See generally 18 McQuillin, Municipal Corporations (3d Ed. Rev.) §§ 53.112, 53.114.” Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982). Accordingly, the trial court was in error in ruling that the question was one of law.

Merely because the court erred in finding that governmental immunity presents a question of law does not, however, as the plaintiff claims, mean that the court erred in directing a verdict. While “[directed verdicts are not generally favored ... [a] trial court’s decision to direct a verdict can be upheld . . . when the jury could not reasonably and legally have reached any other conclusion. Pinto v. Spigner, 163 Conn. 191, 192-93, 302 A.2d 266 (1972); Console v. Nickou, 156 Conn. 268, 270, 240 A.2d 895 (1968); Santor v. Balnis, 151 Conn. 434, 435, 199 A.2d 2 (1964).” Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979). The question presented then, is whether the jury reasonably and legally could have found that the defendants were liable to the plaintiff either for nuisance or for negligence.

“It is well settled in this State that municipal corporations are exempt from liability for the negligent performance of a purely governmental duty unless made liable by statute. Pope v. New Haven, 91 Conn. 79, 80, 99 Atl. 51 [1916].” Epstein v. New Haven, 104 Conn. 283, 284, 132 A. 467 (1926). When municipalities are engaged in proprietary or ministerial activities, their actions are not considered governmental and, accordingly, they do not enjoy immunity from negligence resulting from such activities. Gauvin v. New Haven, supra, 184. “The distinction between governmental and nongovernmental functions was clearly stated in Winchester v. Cox, 129 Conn. 106, 109, 26 A.2d 92 (1942): ‘The functions of a municipal corporation fall into two classes, those of a governmental nature, where it acts merely as the agent or representative of the state in carrying out its public purposes, and those of a proprietary nature, where it carries on activities for the particular benefit of its inhabitants.’ (Citations omitted.)” R.A. Civitello v. New Haven, 6 Conn. App. 212, 217-18, 504 A.2d 542 (1986).

It is indisputable under these tests that municipalities, by providing public education* are engaged in a governmental duty. The state is required by article VIII, § 1, of the Connecticut constitution to provide free elementary and secondary education. “By statutory enactment the legislature has delegated this responsibility to the local boards . . . West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 573, 295 A.2d 526 (1972).

Pursuant to their duty to provide public education, the town boards are given substantial discretion to determine educational policy. Id. Included in this authority is the power to decide that sporting events are a necessary or desirable part of the town’s educational program. In the absence of any showing to the contrary, the court had to presume that the defendants, in sponsoring the football game, were acting as “agent[s] or representative^] of the state in carrying out its public purposes . . . .” R.A. Civitello v. New Haven, supra, 217, quoting Winchester v. Cox, supra, 109.

The plaintiff points out that the defendants were not, as part of their duty to provide public education, required to sponsor the football game. He implies that because the event was not statutorily mandated, the defendants are not immune. This claim is incorrect. “Whether the duty is directly imposed upon the city or permissive, that is, one which it voluntarily assumed, as in this case, does not change the character of the act or function. The duty in either case will be governmental if the nature and character of act or function be such. Pope v. New Haven, [91 Conn. 79, 82, 99 A. 51 (1916)].” Hannon v. Waterbury, 106 Conn. 13, 17, 136 A. 876 (1927).

In these circumstances, the jury could have reached only one conclusion: that the defendants, by holding the game, were performing governmental acts. Because the defendants are immune for negligence committed in the performance of governmental acts, the jury could not reasonably and legally have found the defendants liable on the first count of the plaintiff’s complaint. Accordingly, the court was correct in directing a verdict on this count. We have considered the plaintiffs other grounds of error as to his negligence claim and find them to be without merit.

The plaintiff also challenges the court’s decision to direct the verdict against him on the two nuisance counts. He argues, as he did concerning his negligence claim, that the existence of a nuisance is a question of fact which must be decided by the jury. This argument again misses the mark. Whether the elements necessary to establish a claim of nuisance have been proven is, as the plaintiff claims, a question of fact which is ordinarily determined by the trier of fact. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 36, 404 A.2d 889 (1978). As discussed above, however, a court must take factual issues from the jury if, when all the evidence and the inferences drawn therefrom are viewed in favor of the plaintiff, the jury could not reasonably find for the plaintiff. Bleich v. Ortiz, 196 Conn. 498, 500-501, 493 A.2d 236 (1985).

Under the circumstances present in this case, the jury could not have found for the plaintiff on his nuisance counts. There are two types of nuisance: public and private. “A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land. ‘In the modern authorities [private nuisance] includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession, without regard to the quality of the tenure.’ Pollock, Torts (13th Ed.) 442; Salmond, Torts (8th Ed.) 235; Harper, Torts, § 179.” Webel v. Yale University, 125 Conn. 515, 525, 7 A.2d 215 (1939). In contrast, “ ‘[njuisances are public where they violate public rights, and produce a common injury,’ and where they constitute an obstruction to public rights, ‘that is, the rights enjoyed by citizens as part of the public.’ 39 Am. Jur. 286. . . . ‘[I]f the annoyance is one that is common to the public generally, then it is a public nuisance. . . . The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence.’ Nolan v. New Britain, 69 Conn. 668, 678, 38 Atl. 703 [1897]; Hassett v. Palmer, 126 Conn. 468, 476, 12 Atl. (2d) 646 [1940]; Croughwell v. Chase Brass & Copper Co., 128 Conn. 110, 112, 20 Atl. (2d) 619 [1941].” Higgins v. Connecticut Light & Power Co., 129 Conn. 606, 611-12, 30 A.2d 388 (1943).

Here, the plaintiff alleged in counts two and three that the defendants created a nuisance by “installing] unpadded steel and wooden football stands in close proximity to the playing field without constructing any barrier, fence, or rope between the playing fields and the stands,” and by “permitting players not participating in the game to congregate along the sidelines at the point of play . . . rather than restricting [them] to designated areas.” It is clear that even if the plaintiff proved all of these allegations, he could not prevail in nuisance. Because he suffered no injury in relation to his ownership of an interest in land, the plaintiff was precluded from recovering for private nuisance. Webel v. Yale University, supra. Because he was not injured in the exercise of a public right, he could not recover for public nuisance. Higgins v. Connecticut Light & Power Co., supra.

In Higgins v. Connecticut Light & Power Co., supra, our Supreme Court addressed a claim that is very similar to the one made by the plaintiff in this case. In that case, two men who were employed by the state highway department to trim trees surrounding public highways came in contact with a high tension wire. One of the men was electrocuted and the other was injured. The plaintiffs, the surviving employee and the estate of the dead employee, brought suit for negligence and for public nuisance based on the defendant’s failure either to insulate the wires or to place them further from the trunk of the tree. The trial court refused to instruct the jury on nuisance and the plaintiffs claimed its refusal constituted error. The Supreme Court disagreed, reasoning as follows: “There is no claim of proof that the wires were dangerous to the public generally. It is not expected that the general public will climb thirty-foot trees in the highway. Obviously, the plaintiffs’ claim for recovery was based upon their peculiar and particular relation to the defendant and not upon their rights as members of the general public.” (Citation omitted.) Id.

In this case, as in Higgins, the plaintiff’s claim for recovery was based on his particular position in relation to the defendants. At the time he was injured, the plaintiff was not exercising any right he held as a member of the general public. In fact, he was in the area where he was injured only because of his special status as a game official. “To be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several.” Prosser, Torts (3d Ed.), p. 606. Colon v. Farmington, 29 Conn. Sup. 230, 231, 280 A.2d 896 (1971). This element was absent here.

The plaintiff could not legally have recovered on his nuisance claims. The court, therefore, correctly directed verdicts on the nuisance counts.

There is no error.

In this opinion the other judges concurred.

       The plaintiff concedes that if the town is not liable, the board of education, as the town’s agent, cannot be liable.

       There was no allegation of statutory liability.

       Given our disposition of the plaintiff’s claims of error, it is unnecessary to address the alternate grounds for affirming the judgment preserved by the defendants pursuant to Practice Book § 3012 (a).

       While the trial court’s reliance on the plaintiff’s status as an invitee was incorrect, its decision was right. ‘WOiere the trial court reaches a correct decision on incorrect grounds, the decision will be sustained if correct grounds exist to support it. Royce v. Freedom of Information Commission, 177 Conn. 584, 588, 418 A.2d 939 (1979); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).” Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 301, 429 A.2d 883 (1980).


author: Allen, J.

text:
    Ronald Cretaro et al. v. Equitec Real Estate Investors Fund XII et al.
    (3658)
    Dupont, C. J., Borden and Allen, Js.
    Argued November 26, 1985
    decision released February 25, 1986

      John Q. Gale, for the appellants (plaintiffs).

      John F. McKenna, with whom, on the brief, was Richard Goodman, for the appellees (named defendant et al.).

      Lisa Silvestri, for the appellees (defendant Hartford Zoning Board of Appeals et al.).
   Allen, J.

The plaintiffs, taxpayers and owners of property in the city of Hartford, sought an injunction against the defendant Equitec Real Estate Investors Fund XII (Equitec) to prevent it from constructing additions to its property located at 60 Washington Street in Hartford. The plaintiffs are also seeking an injunction against the city and two of its employees to prevent them from issuing any building or zoning permits.

On August 10,1983, the defendant Marvin S. Savin was the owner of the subject property. On August 10, 1983, he requested a zoning permit to add sixteen stories to the existing office structure and add three stories to the adjoining garage of the subject property. The property is currently in an ROl zoning district, a residential office zone. That request for a permit was denied by the city’s zoning administrator. Savin appealed the denial of his request for a permit to the zoning board of appeals (ZBA), which sustained his appeal and granted his application for a permit. The city, through its common council, appealed the ZBA’s decision to the Superior Court. That appeal was withdrawn. Subsequently, Savin sold the property to the defendant Equitec.

The plaintiffs did not seek to join the appeal from the decision of the ZBA. Instead, they brought this independent action for an injunction, a declaratory judgment and damages. The defendants moved to dismiss the action for two reasons. First, they claimed that despite the plaintiffs’ request for injunctive relief, their pleadings constitute an administrative appeal. Second, they claimed that the plaintiffs failed to comply with the time limit for filing such an appeal as set forth in General Statutes § 8-8. The trial court dismissed the action. This is an appeal from that dismissal. We find no error.

The primary issue raised in this action was also raised in a recent case decided by this court. Davis v. Yudkin, 3 Conn. App. 576, 495 A.2d 714 (1985). “[I]f the plaintiff has an adequate remedy at law, he is not entitled to an injunction. Stocker v. Waterbury, 154 Conn. 446, 226 A.2d 514 (1967). General Statutes § 8-9 provides: ‘Appeals from zoning commissions and planning and zoning commissions may be taken to the superior court and, upon certification for review, to the appellate court in the manner provided in section 8-8.’ ” Davis v. Yudkin, supra, 577-78.

The plaintiffs’ right to Superior Court review of the ZBA’s decision is an adequate legal remedy. Id., 578. Furthermore, a party may not bring an independent action to test the very issue which the appeal was designed to test. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); Davis v. Yudkin, supra.

The plaintiffs claim that they may maintain this action for injunctive relief because the ZBA had no jurisdiction to act as it did. The cases cited by plaintiffs are inapplicable. They either involve cases where there was no jurisdiction due to defective notice; DiCamillo v. Clomiro, 174 Conn. 351, 387 A.2d 560 (1978); Smith v. F. W. Woolworth Co., 142 Conn. 88, 111 A.2d 552 (1955); or cases which involve a court exceeding its limited statutory authority; Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 192 A.2d 44 (1963); Consenza v. Whitmore, 37 Conn. Sup. 541, 425 A.2d 949 (1981); or where the validity of a statute or ordinance was attacked. Aaron v. Conservation Commission, 178 Conn. 173, 422 A.2d 290 (1979). The powers granted to the Hartford ZBA are set forth in the charter of the city of Hartford, chapter XIX, § 10. The allegations of the plaintiffs’ complaint which claim that the ZBA acted illegally and arbitrarily do not raise true issues of jurisdiction. The ZBA clearly had jurisdiction to hear the matter. Whether it acted illegally and arbitrarily is the very question which should have been raised on appeal.

The plaintiffs also claim they may maintain an injunctive action to challenge the decision of the ZBA because of the “peculiar and unusual circumstances of the case,” citing Scoville v. Ronalter, 162 Conn. 67, 291 A.2d 222 (1971). In that case, an action for injunction was allowed because no board of appeals had been appointed to which the plaintiffs could appeal. We fail to see any such peculiar and unusual circumstances in this case. The issues appear to be no different from a myriad of other zoning disputes that are governed by the statutory appeal process set forth in General Statutes § 8-8.

The plaintiffs next claim that their independent action is justified because the actions of the ZBA were unconstitutional. We agree with the trial court that the plaintiffs’ conclusory claims of unconstitutionality do not draw support from their underlying factual allegations. The facts alleged in the complaint do not raise constitutional issues.

The plaintiffs also claim that they may maintain this action as a taxpayers’ action and as an action for common law nuisance. It is true that five of the plaintiffs allege their status as taxpayers of the city of Hartford. It is also true that all of the plaintiffs, although they do not use the term “nuisance” in the complaint, allege that the quality of their life as neighbors of the property will deteriorate, and that the value of their homes will diminish, due to such factors as increased noise, worsened air quality, increased traffic, shadow, glare, obscured view from their residences, decrease in safety, and a general change in the character of their neighborhood.

The critical flaw in the plaintiffs’ argument, however, is that they allege that all these harms will come to them “[a]s a result of the illegal action of the Zoning Board of Appeals . . . .” Their claims regarding the deterioration of their neighborhood and the decrease in the value of their homes are precisely what they would have had to allege in order for them to establish aggrievement in an appeal from the action of the ZBA. Thus, it is clear that, even as to those counts of the complaint which they claim to support taxpayers’ claims and actions for nuisance, the common gist of their claims is premised on the illegality of the action of the ZBA. We conclude, therefore, that the plaintiffs’ taxpayers’ action and nuisance counts come within the established rule that a party may not bring an independent action to test the very issues which the zoning appeal was designed to test. Carpenter v. Planning & Zoning Commission, supra.

At oral argument, the plaintiffs claimed that the motion to dismiss heard before the trial court should in fact have been a motion to strike. They did not raise this issue in the preliminary statement of issues filed by them, nor was the issue briefed by the plaintiffs. Furthermore, since they failed to provide a transcript of the proceedings before the trial court, we do not know if the matter was raised in oral argument before the trial court. Their brief filed with the trial court did not raise the issue. This claim is, therefore, not properly before this court. Bowman v. Williams, 5 Conn. App. 235, 240, 497 A.2d 1015 (1985).

There is no error.

In this opinion the other judges concurred.

       The two individual defendants are those officials responsible for issuing building and zoning permits.


text:
    Audrey Zarrelli et al., Co-administrators (Estate of Janice Goodwin) v. The Barnum Festival Society, Inc., et al.
    (3239)
    Hull, Spallone and Daly, Js.
    Argued January 15
    decision released February 25, 1986

      David S. Golub, with whom, on the brief, were Jay H. Sandak and Stanley A. Twardy, Jr., for the appellants (plaintiffs).

      Patrick J. Flaherty, with whom were Louis B. Blumenfeld and, on the brief, Michael T. Mclnemy, for the appellee (named defendant).

      Bruce M. Killion, for the appellee (defendant Connecticut National Bank).
   Hull, J.

This case raises, in stark relief, the question of the adequacy of a jury award of $65,000, before reduction for comparative negligence, for the negligently caused death of a twenty-two year old single, working female who was run over by the rear wheels of a flatbed trailer and died twenty-five days later from the injuries received. We conclude that we must “bite the bullet” and, for the first time in Connecticut, find in the necessarily uncertain area of a jury’s valuation of a human life, such an award inadequate as a matter of law.

On July 5,1976, the plaintiffs’ decedent Janice Goodwin, was a passenger on a float in a Barnum Festival parade in Bridgeport when she fell through a false cardboard floor and was crushed by the rear wheels of the flatbed trailer carrying the float. The plaintiffs, co-administrators of the decedent’s estate, brought this negligence action against the Barnum Festival Society, Inc., Connecticut National Bank (CNB) and United Technologies Corporation (UTC). The plaintiffs claimed that CNB sponsored the float and that UTC lent the tow motor and flatbed trailer which were used to transport the float. The jury returned a verdict in favor of the defendants CNB and UTC and in favor of the plaintiffs against Barnum in the amount of $65,000, reduced to $35,750 because the jury found the plaintiffs’ decedent to be 45 percent comparatively negligent. The plaintiffs filed a motion to set aside the verdict, for judgment notwithstanding the verdict and for a new trial. The trial court denied that motion. The plaintiffs appeal from the judgment on the verdict, claiming inadequacy of the damages assessed against Barnum and claiming error in the finding that the defendant CNB was not liable. The plaintiff claims that the evidence established that CNB was jointly liable for Barnum’s negligence because CNB as a sponsor-agent of Barnum had broad authority over the construction and operation of the float. We find that the court erred in not setting aside the verdict against Barnum on the grounds of inadequacy and did not err in refusing to set aside the verdict for CNB.

The facts, viewed in the light most favorable to sustaining the verdicts; Herb v. Kerr, 190 Conn. 136, 459 A.2d 521 (1983); are as follows: The Barnum Festival Society is an organization of volunteers which holds an annual festival of events in Bridgeport including a parade with floats sponsored by different private companies. CNB donated money to Barnum for the parade. At the time CNB’s funds were committed to the festival, it did not know that those funds would be used to construct a float. CNB took no part in the supervision of the float’s construction.

The float resembled a trolley car. It was built on a flatbed trailer pulled by a tow motor, both of which were supplied by UTC. The trailer was hooked to the tow motor by a gooseneck coupler. Since the gooseneck stuck up in the air, the builders of the float covered it and made it into an enclosure for the conductor. They built a false floor around the gooseneck using cardboard supported by furring strips. This cardboard floor was then covered in the same manner as the rest of the floor of the float.

Janice Goodwin was on the “Wing Ding” committee which consisted of a group of volunteers who organized a special event for children and built a float for the parade. Goodwin helped build the float involved in this case and was aware that the false floor would not support her. She had been asked immediately before the start of the parade to warn others of the false floor. She had been drinking during the parade and shortly before the accident declared she was drunk. On the way back to the starting point of the parade, she moved up to the platform seat at the conductor station which was surrounded by the false floor. She fell off the platform seat and through the false floor beneath the moving trailer. She was run over by the rear wheels.

While on the ground, Goodwin was aware that she was about to be run over by the trailer. The wheels ran over her midsection crushing her pelvic area and leaving a visible tire track. She received very severe and painful injuries to the organs, bones and tissue of the pelvic area. Immediately after the accident, Goodwin was writhing in pain and pleading “don’t let me die.” She was taken to Bridgeport Hospital where she was in constant pain throughout her twenty-five day hospitalization until her death. She was aware of the massive nature of her injuries and in constant fear of dying. She was very upset that her pelvic injuries would prohibit her from bearing children. Despite massive medical procedures, Goodwin died on July 30,1976, as a result of her injuries.

When she died, Goodwin was twenty-two years old. She was an active and healthy young woman who was well liked by her friends. She lived with her fiance, Joseph Lopez, and they planned to be married on July 9,1976. She had a very close and special relationship with her mother. She particularly enjoyed music and dancing. She had a fondness for, and rapport with, children. She was employed at the time of her death as a bank teller at an annual salary of $6725, and was to receive a raise to $7300 a year in September, 1976. She received fringe benefits worth $700 a year. She was an excellent employee who was popular with her co-workers. She had an earning expectancy of $168,000 after reduction to present value and deduction of personal living expenses and taxes. The economic value of the services she could have rendered as a housewife and mother was $612,000, after reduction to present value. She had an estimated life expectancy of 57.22 years, and an estimated work life expectancy of 25.12 years. Medical expenses totalled $9107.62. Funeral expenses were $1441.25.

There are serious constitutional issues posed by setting aside a jury verdict. This is so because “ ‘[ljitigants have a constitutional right to have issues of fact decided by the jury.’ Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961). ‘The right to a jury trial is fundamental in our judicial system, and... the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of a trial by jury includes the right to have issues of fact as to which there is room for reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court.’ Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970); Jacobs v. Goodspeed, 180 Conn. 415, 429 A.2d 915 (1980); Gosselin v. Perry, 166 Conn. 152, 168, 348 A.2d 623 (1974).” Barbieri v. Taylor, 37 Conn. Sup. 1, 2, 426 A.2d 314 (1980). Accordingly, a court should move cautiously in deciding to set aside a jury’s verdict.

A court should be especially hesitant to set aside a jury’s award of damages. This is particularly true in a wrongful death case where “[i]t serves no useful purpose to compare a verdict in one . . . case with those in others. No one life is like any other, and the damages for the destruction of one furnish no fixed standard for others.” Fairbanks v. State, 143 Conn. 653, 661, 124 A.2d 893 (1956). The assessment of damages “defies any precise mathematical computation”; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918 (1957); and, therefore, establishing damages for wrongful death is a task peculiarly within the expertise of a jury. Kiniry v. Danbury Hospital, 183 Conn. 448, 461, 439 A.2d 408 (1981); McKirdy v. Cascio, 142 Conn. 80, 85, 111 A.2d 555 (1955). “However, it is the court’s duty to set aside the verdict when it finds that ‘it does manifest injustice, and is . . . palpably against the evidence. . . . ’ State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91 (1927).” Barbieri v. Taylor, supra, 3.

“The trial court’s refusal to set aside [a] jury verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.” Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981); Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974). This is so because “[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than [an appellate court] can, on the printed record, what factors, if any, could have improperly influenced the jury.” Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972). Our function on appeal is, accordingly, limited to determining whether the trial court abused its discretion in denying the plaintiffs’ motion to set aside the verdict. Such a decision “can be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. [Maltbie,] Conn. App. Proc., p. 151.” Mulcahy v. Larson, 130 Conn. 112, 114, 32 A.2d 161 (1943). The standard of review for an appellate court in a case like this was first stated in Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924): “[T]he only practical test is whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.” It is important to note that Briggs and the cases that have followed do not require a direct showing of partiality, prejudice, mistake or corruption, but rather stand for the proposition that if the amount awarded “shocks the sense of justice” as to what is reasonable, then the inferred conclusion is that the jury were misguided in reaching its decision. See generally Raid v. Topehius, 165 Conn. 231, 239, 332 A.2d 93 (1973); Hook v. Dubuque, 153 Conn. 113, 115, 214 A.2d 376 (1965).

In death cases, the plaintiff is entitled to damages which consist of reasonably necessary medical, hospital and funeral expenses together with “just damages,” including: “(1) the value of the decedent’s lost earning capacity less deductions for her necessary living expenses and taking into consideration that a present cash payment will be made, (2) compensation for the destruction of her capacity to carry on and enjoy life’s activities in a way she would have done had she lived, and (3) compensation for conscious pain and suffering.” Katsetos v. Nolan, 170 Conn. 637, 657, 368 A.2d 172 (1976).

Ante mortem and funeral expenses of $10,548.87 were stipulated to by the parties. We are thus faced with an award of roughly $54,500 for the elements of damages outlined above. We do not deem it necessary to discuss each of Barnum’s arguments concerning the details of the elements of damages. For the verdict so clearly shocks the conscience and is so entirely disproportionate to the injury, that even giving weight to all of Barnum’s claims, the court was in error in not setting aside the verdict on the grounds of inadequacy. There are, as Barnum claims, elements in the case which might have led the jury to be less than generous in its award. The plaintiffs drinking is one example; the fact that the defendant Barnum is a nonprofit enterprise, largely staffed by volunteers, is another. The doctrine of comparative negligence, however, provided the jury a vehicle for weighing the comparative fault of the parties. Once having done this, by finding the plaintiffs’ decedent 45 percent negligent, it was then the jury’s duty to award just damages in the light of all of the circumstances. This the jury did not do.

The plaintiffs’ second claim is that the court erred in not granting its motion to set aside the verdict, for judgment notwithstanding the verdict and for a new trial because the jury failed to find the defendant CNB liable as a sponsor of the festival. The ultimate test is whether given the evidence offered at trial, viewed in the light most favorable to sustaining the verdict; Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983); the jury reasonably could have concluded as it did. An examination of the evidence in this light shows ample support for the jury’s verdict. The evidence showed that CNB’s role as a sponsor basically was limited to financial assistance. It did not have that degree of control and management over the construction of the float that would impose liability on CNB under any theory. We will not disturb the jury’s verdict.

There is error in part, the judgment is set aside as to the amount of damages found by the jury but not as to the degree of comparative negligence, and the case is remanded for a new trial limited to the issue of damages.

In this opinion the other judges concurred.

       The plaintiffs did not appeal the verdict in favor of the defendant UTC.

       In this case, no claim is made that there was any misconduct on the jury’s part. The award of $65,000, in and of itself, is the basis of the appeal.

       CNB, to protect its rights should this court find error in the judge’s refusal to set aside the jury’s verdict as to it, joined in Barnum’s argument regarding damages. Since we find no error in the court’s refusal to set aside the verdict for CNB, we do not address separately CNB's claims as to the adequacy of the verdict.

       We cannot speculate, as Barnum would have us do, on the possibility of a compromise verdict on liability affecting the damages portion of the verdict.


author: Spallone, J.

text:
    Town of Woodbury v. Joseph R. Pepe, Trustee
    (3659)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 5, 1985
    decision released March 4, 1986

      Hillard N. Einbinder, with whom, on the brief, was Arnold M. Potash, for the appellant (defendant).

      James Wu, with whom, on the brief, was John C. Bullock, for the appellee (plaintiff).
   Spallone, J.

The defendant is appealing from the judgment of the trial court rendered for the plaintiff after a court trial. The court held the defendant liable for property taxes due on a road and property adjacent to that road. The defendant was record owner of both the road and the adjacent property.

The defendant has raised ten claims of error. Six of the claims relate to the trial court’s findings of fact or its failure to find certain facts. Two of the claims relate to conclusions of facts based upon other facts, and the remaining two relate to the court’s ultimate conclusions that the defendant was liable for taxes assessed on what the court found to be a private roadway and the land adjacent to the roadway. A review of the record, transcript and the evidence in this case fully supports the express findings of facts and the legal conclusions drawn by the court. The record supports the court’s findings of fact and its failure to find certain other facts and precludes us from finding error as to the first six claims. Facts, when supported by the evidence, may not be called into question or retried on appeal. Meshberg v. Bridgeport City Trust Co., 1 Conn. App. 10, 14, 467 A.2d 685 (1983).

The last two claims of error, that the trial court erred in finding the defendant liable for taxes assessed on Woodlake Road since 1976 and that the trial court erred in finding the defendant liable for taxes assessed on his land adjacent to Woodlake Road, are also without merit.

The facts may be summarized as follows. The defendant developed a condominium complex, known as Woodlake, on land located in the town of Woodbury. The condominium complex consists of 400 units and is inhabited by approximately 1100 residents. The defendant conveyed the individual units but retained ownership of the road known as Woodlake Road which is approximately two miles in length. The defendant also maintained ownership in a seventy-five acre parcel abutting Woodlake Road. The plaintiff has assessed the value of the road and the adjoining seventy-five acres and has every year since 1975 levied real estate taxes against said property, which taxes the defendant has neglected and refused to pay.

The plaintiff brought this action, pursuant to General Statutes § 12-161, against the defendant, seeking to collect the unpaid taxes. The object of this statute is “ ‘to give a simple remedy for the collection of taxes by an ordinary action and to dispense with the prolixity in pleading.’ ” Town of Westport v. Bassett Corporation, 165 Conn. 410, 415, 335 A.2d 297 (1973).

We have, as indicated above, rejected the first eight claims of error as attacks on the factual finding of the trial court. We also reject the last two claims of error.

Connecticut law provides only two methods by which a taxpayer may contest his property taxes. The first and most widely used method is to appeal the assessment to the board of tax review and if the taxpayer is not satisfied he may appeal to the Superior Court under the provisions of General Statutes § 12-118. The second method involves a direct application to the Superior Court under the provisions of General Statutes § 12-119 wherein the taxpayer must allege and prove that his property has been wrongfully assessed. It is conceded that no actions or appeals were brought by the defendant under either of these sections prior to the institution of the plaintiff’s action. We note that §§ 12-118 and 12-119 differ in purpose. The first is an avenue providing for a review of the amount of the assessment made on taxable property, whereas the second contests the taxability of the property.

The defendant, by way of his counterclaim dated April 10,1984, apparently has attempted to make out a claim under the provisions of § 12-119. Specifically, § 12-119 affords a remedy to owners of property which has been wrongfully assessed. In order for a property owner to avail himself of the remedy provided, relief must be sought “within one year from the date as of which the property was last evaluated for purposes of taxation . . . . ” General Statutes § 12-119. Thus, any claim which the defendant may have asserted in his 1984 cross complaint pursuant to the provisions of § 12-119 was valid only insofar as it related to taxes allegedly due for the tax year ending October 1,1983. Because the defendant failed to contest properly the taxability of his property for the tax years 1975 through 1982 inclusive, the trial court was correct in holding the defendant liable for the taxes assessed those years. See Hartford v. Faith Center, Inc., 196 Conn. 487, 489-91, 493 A.2d 883 (1985); Norwich v. Lebanon, 193 Conn. 342, 346-49, 477 A. 2d 115 (1984); Cooley Chevrolet Co. v. West Haven, 146 Conn. 165, 169, 148 A.2d 327 (1959); West Haven v. Aimes, 123 Conn. 543, 548-49, 196 A. 774 (1938).

Even if we assume, arguendo, that the defendant’s counterclaim properly asserted a claim pursuant to § 12-119 for the tax year ending October 1, 1983, the trial court’s judgment that the defendant was liable for taxes assessed during that year was also correct. After a full trial, the court rejected the defendant’s claim that Woodlake Road had been legally dedicated to the plaintiff for public use and found that the roadway was private. These factual findings are, as we have noted, supported by the evidence.

Under the circumstances in this case, we can find nothing to support the defendant’s claims of error.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 12-161 provides: “All taxes properly assessed shall become a debt due from the person, persons or corporation against whom they are respectively assessed to the town, city, district or community in whose favor they are assessed, and may be, in addition to the other remedies provided by law, recovered by any proper action in the name of the community in whose favor they are assessed.”

       General Statutes § 12-118 provides in pertinent part: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court.”

       General Statutes § 12-119 provides: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the superior court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”


author: Dupont, C. J.

text:
    State of Connecticut v. Robert D. Lemoine
    (3357)
    Dupont, C. J., Spallone and Bieluch, Js.

      Argued December 6, 1985
    decision released March 4, 1986

      Denise Derby, for the appellant (defendant).

      Marcia B. Smith, assistant state’s attorney, with whom, on the brief, was John Connelly, state’s attorney, for the appellee (state).
   Dupont, C. J.

After a conviction by a jury of criminal mischief in the third degree, a violation of General Statutes § 53a-117, of breach of the peace, a violation of General Statutes § 53a-181, and of unlawful restraint in the first degree, a violation of General Statutes § 53a-95, the defendant appeals from the judgments of guilty rendered thereafter. He claims that the trial court erred (1) in excluding the testimony of a witness called by the defendant for the purpose of impeaching the testimony of the complaining witness, and (2) in exceeding the scope of permissible judicial comment by characterizing the excluded testimony as unreliable and untrustworthy, so as to prejudice the defendant.

The jury could have reasonably found certain facts based upon the evidence submitted to it. The defendant and the complaining witness, a twenty year old female who had been seeing the defendant socially for approximately five months, attended a party together. Both the defendant and the complaining witness drank beer while at the party. Sometime between 11 p.m. and midnight, they left the party accompanied by two friends. The defendant drove his car to a bar in Waterbury and, upon arrival, opened his car door and fell to the ground. He then became physically ill, and the complaining witness took his car keys from him in order to drive home. While driving the defendant's car, she struck a telephone pole, causing extensive damage to his car, and making it inoperable. The defendant then became verbally abusive toward the complaining witness, screaming at her in addition to threatening her. Eventually, they were driven to the home of the complaining witness, at which time the defendant demanded that she drive him back to his car. During this drive, the defendant verbally abused her and physically attacked her, striking her head against the dashboard of the car and punching her in the stomach. After repeated attempts to leave the defendant, the complaining witness managed to drive home. The defendant later returned to her home in order to retrieve his wallet and his money, which he had given to her for safekeeping. While at her home, the defendant had another physical and verbal altercation with her. He broke the front passenger window of her car, purportedly while attempting to recover his wallet which he saw in her car. At this point, the police arrived and the defendant was placed under arrest.

The complaining witness testified that subsequent to the arrest she saw the defendant at a local bar. Once again, a verbal exchange took place between them during which she stated that the defendant “was going to pay for what he had done.” The defendant claimed that he asked the proprietor of the bar for assistance in restraining the complaining witness, and that finally the owner had to ask her to leave.

The defendant attempted to introduce the testimony of the proprietor regarding the incident at the bar to demonstrate the bias, motive, interest and prejudice of the complaining witness and to corroborate the defendant’s version of the incident at the bar. During that testimony, the court excused the jury and questioned the proprietor as to his personal knowledge of whether the woman involved in the incident at the bar was actually the complaining witness in the case. During the course of this examination, it became clear that although the proprietor recalled the incident between the defendant and a woman, he had no present recollection of who the particular woman involved in the incident was and could not identify the complaining witness as the woman who harassed the defendant. He did not testify that he had heard any of the conversation between the defendant and the woman. Since the witness could not identify the woman he saw in the bar as the complaining witness, the trial court ordered that the proprietor’s testimony be stricken from the record. The court instructed the jury to ignore the testimony on the ground that it was unreliable and untrustworthy.

Since the proprietor could not identify the complaining witness as the woman in his bar, his testimony could not be used to show that she was biased. The complaining witness admitted, in essence, that she was prejudiced against the defendant when she testified that she had said that the defendant would have to pay for what he had done. The defendant makes no claim that his cross-examination of her was restricted in any way. The proprietor did not hear any conversation and only knew that the defendant asked him to prevent a woman from harassing him. The defendant’s version of events in the bar was not basically opposed to the events as recounted by the complaining witness. Furthermore, another witness for the defense testified to the incident and the entire exchange of words between the defendant and the complaining witness. That witness’s testimony corroborated the testimony of the defendant. Even if it could be said that the putative testimony should have been allowed into evidence as impeachment of the complaining witness’s testimony, the trial court could exercise its discretion to exclude cumulative impeachment evidence. State v. Cassidy, 3 Conn. App. 374, 382, 489 A.2d 386 (1985).

The defendant’s claim that the exclusion of the testimony denied him a right to confront witnesses as guaranteed by the sixth and fourteenth amendments to the United States constitution is meritless. The primary interest secured by the confrontation clause of the sixth amendment is the right of cross-examination. See Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985). The proprietor was the defendant’s witness, not a witness against him.

The defendant’s related claim that he was denied due process of law is also without foundation. The defendant’s due process claim implicates his fundamental right to present witnesses in his own behalf. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). In exercising this right, however, the defendant “must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi, supra, 302. Here, the trial court evaluated the evidence offered by the defendant on several grounds, including relevancy, competency and hearsay. The testimony had no relevancy to the crime with which the defendant was charged, did contain hearsay, and showed an inability of the witness to attribute the incident in question to the complaining witness. It should have been excluded. See State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978); State v. Cassidy, supra, 382-83. Nor was the purpose for which it was offered served. Other evidence had shown the bias of the complaining witness and had corroborated the defendant’s version of the incident.

The defendant also claims that the trial court went beyond the scope of permissible judicial comment when it characterized the proprietor’s testimony as untrustworthy and unreliable, thus prejudicing the jury against the defendant. A review of the trial court’s comments in excluding the testimony clearly indicates that the court was only instructing the jury to disregard testimony which the court had ruled was inadmissible. The court’s comments were not in any way derogatory of either the defendant or his witness and simply gave an explanation to the jury of the need to strike the testimony it had heard.

There is no error.

In this opinion the other judges concurred.

       In striking the proprietor’s testimony, the trial court instructed the jury as follows: “THE COURT: Ladies and gentlemen, I’m going to order stricken the testimony of [the proprietor] and further order you to strike it from your minds, ignore it, and do not consider it because of its unreliability. During the course of that testimony, among other things, it became clear that from his own words, [the proprietor] had no idea of who this particular person was on this particular time. Therefore, because of that unreliability, the Court feels, as a matter of law, that that testimony is inherently untrustworthy and is not to be considered by you in any way, shape, form or manner. That is one of the Court’s prerogatives. Insofar as it is humanly possible, I want you to disregard his testimony completely.”