author: Heiman, J.

text:
    Cummings and Lockwood v. Richard E. Gray et al.
    (10029)
    Lavery, Landau and Heiman, Js.
    Argued October 3
    decision released December 24, 1991

      F. Timothy McNamara, for the appellants (defendants).

      Charles F. Brower, for the appellee (plaintiff).
   Heiman, J.

The defendants appeal from the trial court’s summary judgment in favor of the plaintiff on both the complaint and the defendants’ counterclaim.

The defendants assert that the trial court improperly granted summary judgment in favor of the plaintiff on (1) the complaint because of the defendants’ failure to answer the plaintiff’s requests for admissions despite the defendants’ claim that they did not receive the requests, and (2) on the defendants’ counterclaim even though the subject matter of the requests for admissions was not material to the counterclaim. We affirm the trial court’s summary judgment on the complaint, and reverse the summary judgment on the counterclaim.

The pertinent facts may be summarized as follows. The defendants are Richard E. Gray, a member of the New York bar, and Chariot Holdings, Ltd., a Delaware corporation of which Gray is the chief executive officer. The plaintiff is a Connecticut law firm. In 1986, the defendants retained the plaintiff to represent them in certain commercial litigation in Connecticut. The plaintiff entered upon its representation of the defendants, and, ultimately, a dispute arose between the parties. The plaintiff commenced this action to recover $105,141.66 that the defendants allegedly owed it for services rendered.

The complaint contained a single count alleging that the plaintiff performed legal services for the defendants in accordance with a retainer agreement between the parties, that the reasonable value of the services was $105,141.66 and that the defendants failed, despite the plaintiff’s proper demand for payment, to compensate the plaintiff fully for the services rendered. The defendants’ answer admitted that Gray paid the plaintiff $46,175.86 but denied that the defendants owed the plaintiff any additional payment. The defendants also filed special defenses claiming that the services rendered by the plaintiff were valueless and that the plaintiff’s bill was excessive. In addition, the defendants filed a counterclaim against the plaintiff seeking damages for the plaintiff’s alleged legal malpractice. The plaintiff denied the allegations of the special defenses and filed an answer and special defense to the counterclaim. The gravamen of the plaintiff’s special defense was that the counterclaim was not instituted in good faith.

The plaintiff also filed requests for admissions asking Gray to admit that (1) he retained the plaintiff to represent the defendants, (2) the plaintiff performed legal services on the defendants’ behalf, (3) the reasonable value of the services rendered was $105,141.66, and (4) he paid the plaintiff only $46,175.86. The defendants did not respond to the requests for admissions as required by Practice Book § 239.

After the pleadings were closed, the plaintiff filed a motion for summary judgment supported by an affidavit signed and sworn to by Eric W. Weichmann, a partner in the plaintiff law firm. The affidavit averred that Weichmann had personal knowledge that the defendants retained the plaintiff to provide legal representation to them in connection with certain litigation, that the plaintiff performed legal services for the defendants in accordance with the retainer, that the plaintiff billed the defendants $105,141.66, and that the defendants paid only $46,175.86 of the bill. The plaintiff also submitted a copy of the requests for admissions, and claimed that because the defendants failed to respond to the requests, they were deemed admitted.

The defendants did not file an affidavit responding to the factual claims set forth in the Weichmann affidavit. Rather, they filed an affidavit, signed by the defendant Gray, that claimed that he did not receive the requests for admissions until approximately three months after they were allegedly mailed. The plaintiff filed a counteraffidavit signed by a secretary employed by the plaintiffs attorney claiming that the requests were mailed to Gray on August 14,1990, and that she received neither the envelope nor anything else back from the postal service indicating nondelivery of the requests for admission.

The trial court granted the plaintiff’s motion for summary judgment, and rendered judgment in favor of the plaintiff on both the complaint and the defendants’ counterclaim. This appeal followed.

I

The defendants first claim that the court improperly granted the plaintiff’s motion for summary judgment on the basis of the defendants' failure to answer the requests for admissions, despite the defendants’ contention that they did not receive the requests. We disagree.

Under our rules of practice, any party may move for summary judgment once the pleadings in a case are closed. Practice Book § 379. “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits . . . written admissions and the like.” Practice Book § 380. “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384. The party seeking summary judgment bears the burden of showing the nonexistence of any material fact. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). A material fact is one that “will make a difference in the result of the case.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969); Na-Mor v. Roballey, 24 Conn. App. 215, 217, 587 A.2d 427 (1991).

Once the moving party has filed the appropriate documents, the party opposing the motion “must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984); Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra. The mere presence “of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.” Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980). Rather, “the defendant must recite specific facts . . . which contradict those stated in the plaintiffs affidavits and documents.” Id., 39-40. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).” (Citations omitted; internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781; Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).

The Weichmann affidavit satisfied the plaintiff’s burden of establishing the nonexistence of any material issue of fact. The affidavit established that the defendants retained the plaintiff to represent them in a lawsuit, that the plaintiff performed legal services for the defendants at their request, that the plaintiff expected to be compensated in the ordinary course of business and that the defendants failed, despite a proper demand for payment, to pay the bills rendered by the plaintiff. These facts, if uncontroverted, were sufficient to establish the defendants’ liability to the plaintiff. The plaintiff, by presenting evidence in support of its motion for summary judgment, cast on the nonmoving party the duty of demonstrating the existence of a genuine issue of material fact together with evidence disclosing the existence of that issue. Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra.

The defendants failed to meet this obligation. Rather than filing an affidavit showing that an issue of material fact existed as to the plaintiff’s claim, the defendants limited their response to the issue of whether they had received the plaintiffs requests for admissions. The claimed nonreceipt of the requests for admissions was not a material fact for the purpose of the plaintiff’s motion for summary judgment, however, because it was not a fact that would change the outcome of the case. United Oil Co. v. Urban Redevelopment Commission, supra; Na-Mor, Inc. v. Roballey, supra. Even if the claim of nonreceipt set forth in Gray’s affidavit is true, the trial court would have been obligated to render summary judgment in favor of the plaintiff because the defendants did not contradict the allegations contained in the Weichmann affidavit. These allegations, standing alone, were sufficient to require summary judgment. See Practice Book § 384.

In light of this, we need not decide whether the trial court improperly based its granting of the motion for summary judgment on the defendants’ failure to respond to the requests for admissions. “[TJhis court is authorized to rely upon alternative grounds supported by the record to sustain a judgment.” Pepe v. New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987). “Even if we were to have concluded that the trial court based its judgment on erroneous grounds, we would properly affirm the judgment ‘if the same result is required by law.’ A&H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978).” Pepe v. New Britain, supra.

II

The defendant next asserts that the trial court improperly rendered summary judgment in favor of the plaintiff on the counterclaim. We agree.

A court may not grant summary judgment sua sponte. Booth v. Flanagan, 19 Conn. App. 413, 415, 562 A.2d 592 (1989); see Practice Book § 384; Booth v. Flanagan, 23 Conn. App. 579, 580, 583 A.2d 148 (1990) , appeal dismissed, 220 Conn. 453, 599 A.2d 380 (1991) . The issue first must be raised by the motion of a party and supported by affidavits, documents or other forms of proof. Booth v. Flanagan, supra, 19 Conn. App. 415. Further, “any party may move for summary judgment upon any counterclaim . . . as if it were an independent action.” Practice Book § 379. Because a counterclaim is a separate and distinct action; Practice Book § 379; Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985); a party seeking summary judgment on both a complaint and a counterclaim must file an appropriate motion addressed to each. See Practice Book § 379.

Here, the plaintiff moved for summary judgment on the complaint only. As a result, the trial court was without the authority to render summary judgment on the counterclaim. Booth v. Flanagan, supra, 19 Conn. App. 415.

We note that the defendants do not assert the absence of a separate motion for summary judgment on the counterclaim as the basis on which they seek reversal of the trial court’s ruling. Nonetheless, the trial court’s failure to follow this clearly applicable rule constituted plain error and requires reversal. See Practice Book § 4185; Burke v. Ruggerio, 24 Conn. App. 700, 708, 591 A.2d 453 (1991).

On the basis of our resolution of this issue, we do not address the defendants’ claim that the trial court also improperly premised its ruling on the defendants’ failure to respond to the plaintiffs requests for admissions.

The judgment on the complaint is affirmed. The judgment on the defendants’ counterclaim is reversed and the case is remanded for further proceedings on the counterclaim.

In this opinion the other judges concurred.

       Practice Book § 239 provides in pertinent part: “Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 238 (b) . . . the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.”

       The motion for summary judgment states: “The Plaintiff in the above captioned matter claims that there is no genuine issue of material fact in the Complaint and moves for a Summary Judgment for the following reasons . . . ."


source: Caselaw Access Project

license: Public Domain

text:
    Foster Development Associates v. Frank Talar et al.
    (9847)
    Daly, Foti and Heiman, Js,

      Argued October 28
    decision released December 24, 1991

      Jane W. Freeman, for the appellants (named defendant et al.).

      C. George Kanabis, with whom were Renee Houle and, on the brief, Melvin Scott, for the appellee (plaintiff).
   Heiman, J.

The defendants Frank and Mary Talar appeal from the trial court’s judgment permanently enjoining them from interfering with the plaintiffs use of an easement over their property. The defendants also appeal from the trial court’s judgment against them on their counterclaim, which sought an injunction directing the plaintiff to remove storm pipes, drains and utilities from the property and prohibiting the plaintiff from abusing its deeded easement rights in the property. The defendants claim that the trial court improperly (1) rendered its judgment more than 120 days after the trial’s completion, (2) denied their motion to open or to set aside the judgment or for a new trial, (3) modified its original judgment after vacating it, (4) granted injunctive relief even though the plaintiff failed to request it specifically, (5) concluded that the plaintiff’s deeded easement rights included the right to install underground pipes and utilities and (6) rendered judgment for the plaintiff on the defendants’ counterclaim. We reverse the trial court’s judgment.

The pertinent facts are as follows. The plaintiff owns a parcel of land located in East Lyme. The defendants own a strip of land, approximately fifty feet wide, that abuts the southern edge of the plaintiff’s lot. The plaintiff and the defendants acquired their respective properties through a chain of title originating from a common grantor. Both the plaintiff’s and the defendants’ deeds describe an easement in favor of the plaintiff over the defendants’ property.

The plaintiff originally brought this action seeking a declaratory judgment regarding the scope of the easement. Specifically, the plaintiff sought a determination as to whether the easement permitted it to install underground utility pipes and to make other improvements to the property. In its prayer for relief, the plaintiff also requested damages, attorney’s fees, costs and “[s]uch other relief as the Court deems just and proper.” The defendants filed an answer together with a counterclaim seeking damages, temporary and permanent injunctions prohibiting the plaintiff from installing underground utilities, abusing its easement rights and unduly burdening the servient estate and an order commanding the plaintiff to “remove all storm drains, piping and related materials” from the property. The case was tried to the court, which received copies of the pertinent deeds as well as photographs and maps showing the plaintiff’s development and use of the property. The court also heard evidence establishing the plaintiff’s development of a roadway and its installation of drainage facilities and various underground utility lines on the property.

The trial court rendered a declaratory judgment on June 26,1990, finding that the easement permitted all of the plaintiff’s activities, including installing a roadway, drainage facilities, electric and telephone lines and water and sewer pipes. The trial court also ruled in favor of the plaintiff on the defendants’ counterclaim. On July 6, 1990, the trial court vacated its judgment on both the complaint and the counterclaim, sua sponte, because the plaintiff had failed to join all parties having a potential interest in the easement, and ordered the plaintiff to cite in additional parties. The plaintiff filed an amended complaint on July 12, 1990, joining East Lyme Limited Partnership, the town of East Lyme and the East Lyme water and sewer commission as defendants. Frank and Mary Talar filed an amended answer and an amended counterclaim, and the plaintiff filed an answer to the amended counterclaim. East Lyme Limited Partnership, the town of East Lyme and the East Lyme water and sewer commission filed answers to the amended complaint. After the pleadings were closed, the plaintiff claimed the case for the trial list. On November 5, 1990, while the parties were awaiting trial, the court, on its own motion, purported to modify its original judgment and issued a permanent injunction prohibiting the defendants from interfering with the plaintiff’s reasonable use and enjoyment of the easement. The defendants filed a motion to open or to set aside the judgment or for a new trial which the trial court denied on December 20,1990. The defendants then appealed to this court.

The defendants claim that the trial court improperly modified its original judgment to include a permanent injunction after it vacated the original judgment. We agree.

An order modifying a judgment presupposes the existence of an underlying judgment. The judgment that the trial court attempted to modify on November 5, 1990, by issuing a permanent injunction, was vacated, however, by that court sua sponte on July 9,1990, and was never reinstated. “[Vjacating a prior order renders the situation the same as though the order had never been made.” State v. Phillips, 166 Conn. 642, 646, 353 A.2d 706 (1974). By vacating its declaratory judgment, the trial court nullified that judgment. Because there was no underlying judgment in effect on November 5, 1990, that was subject to modification, the trial court’s order attempting to modify the original judgment was fatally flawed.

In light of our disposition of this case, it is unnecessary to consider the defendants’ remaining claims.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The plaintiff’s complaint included three counts. The first count was directed against Frank and Mary Talar. The second count was directed against George Caulkins and William Mulholland, employees of the town of East Lyme. The third count was directed against Michael Polla, superintendent of utilities for the town of East Lyme. On February 13, 1990, the plaintiff withdrew the complaint as to Caulkins, Mulholland and Polla. For the purposes of this appeal, the word defendants refers to only Frank and Mary Talar.

       While we do not decide whether the plaintiffs general prayer for “such other relief as the court deems just and proper” is adequate to support the entry of injunctive relief, we note that a party seeking equitable relief must demand it specifically, unless the nature of the demand itself indicates that the relief sought is equitable relief. Practice Book § 139; Dorsey v. Mancuso, 23 Conn. App. 629, 634, 583 A.2d 646 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991).


author: Landau J.

text:
    Frank Jacobs v. Harold Thomas
    (9509)
    Foti, Landau and Cretella, Js.
    Argued September 26
    decision released December 31, 1991

      Jeffrey J. Mirman, with whom, on the brief, was Peter B. Rustin, for the appellant (defendant).

      Kerry M. Wisser, for the appellee (plaintiff).
   Landau J.

The defendant appeals from the judgment of the trial court awarding the plaintiff compensatory-damages in the amount of $45,800. On appeal, the defendant claims that the trial court improperly (1) concluded that the oral partnership agreement claimed by the plaintiff was not within the statute of frauds, (2) allowed the plaintiffs expert to testify as to the damages suffered by the plaintiff, and (3) precluded the defendant from introducing evidence. We affirm the judgment of the trial court.

This action for a breach of an oral partnership agreement to purchase and to rehabilitate certain properties located in Hartford is before this court for the second time. Because the pertinent facts relating to the underlying action are set forth in Jacobs v. Thomas, 18 Conn. App. 218, 557 A.2d 145 (1989), a brief summary of the facts will suffice to establish the context of this appeal.

The plaintiff and the defendant entered into an oral agreement to purchase and to rehabilitate two parcels of residential property. The plaintiff tendered a check to the defendant, dated July 2,1985, in the amount of $500 as a down payment for the subject properties. The check was returned to the plaintiff, not cashed, and the defendant informed the plaintiff that he was no longer interested in pursuing the deal with the plaintiff. Thereafter, in October, 1985, the defendant and his wife independently purchased the subject properties.

Prior to commencement of this trial for damages for breach of contract, the defendant, through a motion in limine, attempted (1) to preclude the plaintiff from introducing evidence concerning the alleged oral partnership agreement asserting that the agreement involved an interest in land that was governed by the statute of frauds, and (2) to prohibit the plaintiffs expert from testifying as to the value of the properties at issue rather than to the value of an ongoing business concern. The trial court denied the motion.

At trial the plaintiff again “offered evidence intended to establish that [he] and the defendant had entered into an oral agreement to form a partnership for the purpose of purchasing and rehabilitating two apartment buildings and thereafter either renting the apartments or selling the buildings”; id., 219-20; and introduced expert testimony as to the value of the properties. He also successfully precluded the defendant from introducing the plaintiff’s check ledger into evidence for the purpose of demonstrating that there were insufficient funds in the plaintiff’s checking account to cover the check that the plaintiff gave to the defendant for one half of the deposit on the properties. The jury rendered a verdict in favor of the plaintiff in the amount of $45,800. The defendant filed a motion to set aside the verdict, which was denied.

In its memorandum of decision, the trial court found that (1) the partnership was not for an interest in real estate as contemplated by the statute of frauds, (2) the plaintiff’s witness was qualified to testify as an expert, and (3) the testimony regarding the plaintiff’s alleged damages was appropriate in that it correctly set out the measure of damages in a breach of contract action. The court also listed four reasons for excluding the evidence to challenge the validity of the plaintiff’s check.

I

The defendant first claims that the trial court improperly concluded that the oral partnership agreement did not fall within General Statutes § 52-550, Connecticut’s statute of frauds. His argument is twofold. He argues first that this agreement constitutes an interest in real estate that the statute of frauds has been interpreted to include, and, second, that this was an undertaking that was not capable of being completed within a period of one year. We disagree.

A

General Statutes § 52-550 provides in pertinent part: “No civil action may be maintained . . . unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (4) upon any agreement for the sale of real property or any interest in or concerning real property; or (5) upon any agreement that is not to be performed within one year from the making thereof . . .

These two subsections of General Statutes § 52-550 were at issue in the case of Maguire v. Kiesel, 86 Conn. 453, 85 A. 689 (1913). In Maguire, “the plaintiff and defendant entered into an oral agreement to share equally in the profits that should be made from the purchase of a lot of land, the building and rental of a house thereon, and the sale thereof, if an opportunity to sell should be had. No time limit was placed upon the continuation of the agreement, but it might have been fully performed within one year.” Id., 454.

In addressing the defendant’s claim that this was an interest in real estate and thus fell within the purview of the statute of frauds, our Supreme Court concluded that the statute contemplated only a “ ‘transfer of lands, or some interest in them.’ . . . The subject-matter of the agreement was not land or any interest therein. It was a fund of money representing profits from a joint enterprise in the nature of a partnership.” (Citation omitted.) Id., 457-58, citing Bunnel v. Taintor, 4 Conn. 568, 573 (1823). In concluding that this “agreement for a joint enterprise in the nature of a copartnership which has for its purpose the purchase, improvement, and sale of real estate for the profit arising therefrom . . . is not within the statute”; (emphasis added) Maguire v. Kiesel, supra, 458; the court acknowledged that the “overwhelming weight of authority in other jurisdictions is to the same effect . . . .” Id.

The defendant seeks to distinguish Maguire by arguing that the agreement in the present case expressly envisioned the acquisition of title to the properties while the agreement at issue in Maguire did not. The defendant, however, overlooks the fact that in Maguire the acquisition of title to the property at issue was similarly envisioned by the parties. The court expressly found that “[i]t was a part of the agreement that the defendant should have the title of the land conveyed to himself and the plaintiff jointly.” Id., 454. The factual scenario of the present case is indistinguishable from that of Maguire. Here, the plaintiff and defendant also entered into an oral agreement to acquire two parcels of property and envisioned the transfer of title with the underlying purpose of the acquisition being for monetary gain not for personal enjoyment of the property.

“Although this enterprise was one which contemplated and involved the management of real estate and a division of funds derived from its rental and sale, it was, not the real estate, but the funds in which the plaintiff claims an interest by reason of the agreement.” Faiola v. Faiola, 156 Conn. 12, 21, 238 A.2d 405 (1968). The primary purpose of the statute of frauds is “to provide reliable evidence of the existence and the terms of the contract . . . .” Heyman v. CBS, Inc, 178 Conn. 215, 221, 423 A.2d 887 (1979). Our conclusion that the subject of the oral agreement was a fund representing profits from a joint enterprise in the nature of a partnership rather than an interest in real estate is consistent with this purpose. The particular terms of the agreement are irrelevant. The only relevant factor is that the plaintiff and the defendant were partners in a venture the sole purpose of which was financial gain. Because we adopt the Maguire court’s interpretation of the applicability of the statute of frauds to this type of agreement, the defendant’s first argument must fail.

B

The defendant also claims that the trial court improperly concluded that the oral partnership agreement did not fall within the statute of frauds because it found that the agreement could have been completed within one year from the date of the agreement. Specifically, the defendant argues that because the partnership envisioned by the plaintiff was an ongoing business it was governed by the one year rule of the statute of frauds. We disagree.

In order to preserve full review of a trial ruling challenged in an appeal from a judgment rendered on a jury verdict, it is incumbent on the appellant to move to set aside the verdict. Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988); Voight v. Selman, 14 Conn. App. 198, 200, 540 A.2d 104 (1988). Because the defendant did not present this claim to the trial court in its motion to set aside the verdict, our standard of review is limited to a determination of whether the trial court committed “plain error.” Practice Book § 4185; Cuartas v. Greenwich, 14 Conn. App. 370, 374-75, 540 A.2d 1071 (1988); Voight v. Selman, supra; DeLorenzo v. Great Atlantic & Pacific Tea Co., 4 Conn. App. 560, 561, 495 A.2d 1106 (1985). The purpose of this rule is “to provide an opportunity for the trial court to pass upon claims of error which may become the subject of an appeal.” Pietrorazio v. Santopietro, 185 Conn. 510, 514, 441 A.2d 163 (1981).

Here, the court did not expressly find that the parties entered into an agreement providing that the plaintiff was to become a partner with the defendant in a joint venture that was not to be performed within one year, as claimed by the defendant. Nor did the defendant, in his motion to set aside the verdict, challenge this aspect of the statute of frauds. In his motion to set aside the verdict, the defendant challenged the trial court’s “allowing evidence of a partnership to purchase real property in the absence of a written document.” Consequently, the defendant can prevail only if the court committed plain error.

It is axiomatic that “[wjhere the time for performance is definitely fixed at more than one year, the contract is, of course, within the statute.” Burkle v. Superflow Mfg. Co., 137 Conn. 488, 492-93, 78 A.2d 698 (1951). Our most apposite precedent, however, comports with the majority view that a contract of indefinite duration is not subject to the one year provision of the statute of frauds. C. R. Klewin, Inc. v. Flagship Properties, Inc., 220 Conn. 569, 600 A.2d 772 (1991); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 197, 520 A.2d 208 (1987), citing Burkle v. Supeflow Mfg. Co., supra; see also 1 Restatement (Second), Contracts § 130, comment a; 2 A. Corbin, Contracts (1950) §§ 444 and 445; 3 S. Williston, Contracts (3d Ed. Jaeger) § 500. “ ‘Under the prevailing interpretation, the enforceability of a contract under the one year provision does not turn on the actual course of subsequent events, nor on the expectations of the parties as to the probabilities. Contracts of uncertain duration are simply excluded; the provision covers only those contracts whose performance cannot possibly be completed within a year.’ (Emphasis added.) 1 Restatement (Second) Contracts, supra •, Burkle v. Superflow Mfg. Co., supra.” Finley v. Aetna Life & Casualty Co., supra.

It is undisputed that the agreement to purchase and to rehabilitate the subject properties was of indefinite duration. The defendant presents no evidence in support of his assertion that the agreement could not possibly be performed within one year. When reviewing for plain error, we look for only “ ‘manifest injustice amounting to plain error under all the circumstances.’ Valley v. Fazzina, 187 Conn. 423, 428, 446 A.2d 1068 (1982).” Small v. South Norwalk Savings Bank, supra, 760. Applying that standard in this case, we find no error that “is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). We conclude, therefore, that this argument also fails.

II

The defendant next claims that the trial court improperly permitted the plaintiff’s expert, a real estate appraiser, to testify as to the damages suffered by the plaintiff. In his motion to set aside the verdict, the defendant argued that the trial court improperly “allow[ed] evidence from a real estate appraiser, as to projected value after rehabilitation, as the measure of damages when evidence of such damages should have been limited to the value of the agreement, the value of the lost business opportunity on the day of the breach . . . .” In denying the defendant’s motion, the trial court concluded that the proffered testimony offered the jury a sound basis on which to determine damages in accordance with standards enunciated by our Supreme Court in West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 514 A.2d 734 (1986). We agree with the trial court.

In West Haven Sound Development Corporation v. West Haven, supra, the defendant challenged the trial court’s ruling that permitted the plaintiff’s expert witness to testify to the value of the plaintiff’s business at the time of the alleged breach. In permitting the expert to testify as he did, the court admitted his testimony as a computation of expected future earnings capitalized to the present value.

“ ‘The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed.’ ” Id., 319; Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309, 460 A.2d 488 (1983). Damages for breach of contract are to be determined at the time of the occurrence of the breach. Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 749, 535 A.2d 1287 (1988); Gordon v. Indusco Management Corporation, 164 Conn. 262, 272, 320 A.2d 811 (1973). Courts have traditionally “held that a party may recover ‘general’ contract damages for any loss that ‘may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself.’ Hadley v. Baxendale, 9 Ex. 341, 354, 156 Eng. Rep. 145 (1854); see Farnsworth, Contracts (1982) § 12.14, p. 874 n.5; McCormick, Damages (1935) § 138, pp. 564-65; Dobbs, Remedies (1973) § 12.3 p. 804; 3 Restatement (Second) [Contracts] § 351 (2) (a) . . . . [The Connecticut courts have] consistently applied the general damage formula of Hadley v. Baxendale to the recovery of lost profits for breach of contract, and it is [the] rule that ‘[u]nless they are too speculative and remote, prospective profits are allowable as an element of damage whenever their loss arises directly from and as a natural consequence of the breach.’ Kay Petroleum Corporation v. Piergrossi, 137 Conn. 620, 624, 79 A.2d 829 (1951) . . . .” West Haven Sound Development Corporation v. West Haven, supra, 320.

In his complaint, the plaintiff alleged that “[a]s a result of the actions of the defendant aforesaid, the plaintiff was deprived of the benefit of his bargain and lost the expectancy of acquiring and rehabilitating said premises, all to his loss and damage,” and sought money damages and “[s]uch other legal relief as the court deems appropriate.” These assertions can properly be considered requests for recovery for the damage suffered by the plaintiff through a wrongful termination of a contract. Where such is the case, the entire damage, both past and prospective, may be recovered in a single action. Maguire v. Kiesel, supra, 460. “The measure of damages in the present case is therefore reasonable compensation for the loss which the plaintiff suffered in being wrongfully deprived of the benefit of the agreement. That which it provided for was a sharing of profits. Such profits were, therefore, within the contemplation of the parties. . . . The measure of the loss must be found in the profits which under the agreement the plaintiff would have been entitled to receive.” (Citations omitted.) Id.

At trial, the plaintiffs expert testified as to the projected value of the subject properties in 1985 had the defendant not breached the contract and had the plaintiff been permitted to rehabilitate the buildings. This sum was then reduced by the amount equal to the value of one year’s time that it would have taken the parties to complete the anticipated construction. Because the prospective profits as testified to by the plaintiff’s expert were not speculative or remote, but were reasonably to be expected in the ordinary course of events; id., 461; the trial court properly permitted the plaintiff’s expert to value the subject properties as he did.

Ill

The defendant’s final claim is that the trial court improperly excluded evidence that the plaintiff had insufficient funds in his account to cover the check written as a deposit for the purchase of the subject properties. Here, too, the defendant’s argument is twofold. He argues that the trial court’s denial precluded him from presenting relevant evidence and also denied him his constitutional right to cross-examine the witnesses against him. We disagree.

A

To corroborate his assertion of the existence of an oral agreement with the defendant, the plaintiff introduced into evidence a $500 check he had made payable to the defendant as a partial deposit on the properties. In response, the defendant attempted to offer into evidence the plaintiff’s check ledger to demonstrate that there were insufficient funds in the plaintiffs account at the time the check was drawn to honor the check. The trial court set forth four grounds for excluding the proffered evidence: (1) it did not challenge the plaintiffs credibility because the check was offered only as corroboration of the plaintiffs claimed oral contract; (2) the check ledger was in no way proof of the validity of the check; (3) the check had never been tendered by the defendant, so its validity was not in question; and (4) it was inadmissible extrinsic evidence.

Evidence is relevant if it has a tendency to establish the existence of material facts, i.e., those facts directly at issue. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. See State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986).

The check was offered for the sole purpose of corroborating the existence of the oral agreement. Had the check ledger been offered to challenge this assertion, it is axiomatic that it would have been admissible, relevant evidence. The defendant, however, offered this evidence not to challenge the plaintiff’s assertion that an oral agreement existed, but to demonstrate the plaintiff’s inability to honor the check. The plaintiff’s ability to honor the check was not material. Because the evidence offered by the defendant was immaterial it was properly excluded by the trial court.

B

The defendant also claims that in preventing him from introducing this evidence the trial court improperly denied him his right to cross-examine witnesses. Although a criminal defendant does in fact have a federal and state constitutional right to cross-examine witnesses; U.S. Const., amend. VI; Conn. Const., art. I, § 8; Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct 1105, 39 L. Ed. 2d 347 (1974); State v. Maldonado, 193 Conn. 350, 356, 478 A.2d 581 (1984); a defendant in a civil action has no comparable constitutional right. Struckman v. Burns, 205 Conn. 542, 549, 534 A.2d 888 (1987). In the context of a civil case, our Supreme Court, in accepting a common law right to cross-examination, stated “[t]he right of cross-examination is not a privilege but an absolute right and if one is deprived of a complete cross-examination he has a right to have the direct testimony stricken.” Gordon v. Indusco Management Corporation, 164 Conn. 262, 271, 320 A.2d 811 (1973); see also Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 140 n.10, 439 A.2d 282 (1981). This right does not, however, permit the defendant to present evidence that is irrelevant or otherwise inadmissible. Because we conclude that this evidence was properly excluded, the trial court’s ruling did not deny the defendant his right, constitutional or otherwise, to cross-examine the witnesses against him.

The judgment is affirmed.

In this opinion the other judges concurred.

       In Jacobs v. Thomas, 18 Conn. App. 218, 557 A.2d 145 (1989), this court reversed the trial court’s judgment rendered on a directed verdict in favor of the defendant.

       The defendant has conceded that the position he is advancing is the minority viewpoint.

       The plaintiff does not argue that the $500 check constituted a memorandum sufficient to satisfy the statute of frauds. To comply with the statute of frauds “an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof, or from a reference contained therein to some other writing or thing certain; and these essentials must at least consist of the subject of the sale, the terms of it and the parties to it, so as to furnish evidence of a complete agreement.” Montanaro v. Pandolfini, 148 Conn. 153, 157, 168 A.2d 550 (1961). In Breen v. Phelps, 186 Conn. 86, 91, 439 A.2d 1066 (1982), the Supreme Court held that an agreement set forth on the reverse side of a money order that stated “[t]his sum as a deposit on the Henry Phelps or Mrs. Anna Phelps property at agreed price of $5,000.00 (Five Thousand Dollars) by the parties being Anna Phelps and William R. Breen” was insufficient to comply with the statute of frauds. Here, the check presented as a down payment stated even less. All that was printed on the check tendered by the plaintiff was the address of the subject properties.

        Bunnel v. Taintor, 4 Conn. 568 (1823), which was factually identical to Maguire, also held that the oral contract at issue in that case was not within the statute of frauds.

       The defendant does not challenge the qualifications of the plaintiff’s expert to value the properties.

       The plaintiffs expert predicted the profits that the plaintiff would have earned had the contract not been breached. He then computed the net present value of these future earnings to arrive at a valuation of the plaintiff’s interest at the time of the breach. West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 317, 514 A.2d 734 (1986).


author: Daly, J.

text:
    Connecticut Bank and Trust Company, Inc. v. Geoffrey J. Winters et al.
    (9800)
    Daly, Foti and La very, Js.

      Argued October 2
    decision released December 31, 1991

      Jan A. Marcus, with whom was Alan R. Spirer, for the appellant (defendant PaineWebber, Inc.).

      James T. Shearin, with whom were Edward P. McCreery III and, on the brief, Neil A. Lippman and Alice Ann Carey, for the appellee (defendant Union Trust Company).

      John Haven Chapman, for the appellee (intervenor Chapman, Moran, Hubbard and Zimmermann).
   Daly, J.

The defendant PaineWebber, Inc. (PaineWebber), appeals challenging the trial court’s decision denying a stay of proceedings and ordering the distribution of proceeds from a foreclosure sale. We affirm the judgment of the trial court.

The plaintiff, Connecticut Bank and Trust Company (CBT), instituted a foreclosure action against the named defendant, Geoffrey J. Winters. A foreclosure sale was ordered. After satisfying the plaintiff’s debt, $506,565.85 remained for PaineWebber, Weatherly Securities and Union Trust Co., each a subsequent encumbrancer. PaineWebber’s claim had priority over those of the other encumbrancers.

Initially, Union Trust argued that distribution of this fund should be delayed until the appeal in the related case of Paine Webber Jackson & Curtis, Inc. v. Winters was decided. If distribution was delayed, PaineWebber’s judgment lien could be reduced through a setoff of the underlying judgments in that action to establish equitable treatment of all creditors. PaineWebber opposed this setoff and sought an immediate distribution of the fund.

Subsequently, this court issued a decision in the related case of Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). In that case, the trial court had rendered a judgment for $440,000 on PaineWebber’s complaint and a separate judgment for $440,000.18 on Winter’s counterclaim. This court upheld those awards and further directed the trial court to award PaineWebber prejudgment interest. Id. The amount of that interest was calculated to be approximately $260,000.

Union Trust and Weatherly Securities again moved for a distribution of proceeds and for a setoff of the PaineWebber and Winters judgments. PaineWebber initially agreed to the distribution of proceeds and a setoff of the PaineWebber and Winters judgments’ for purposes of these foreclosure proceedings. Paine Webber’s agreement was conditioned on those judgments’ being set off against each other in Paine Webber Jackson & Curtis v. Winters, supra. PaineWebber’s motion for set off in that case was later denied by the trial court. In this case, the trial court ordered distribution of the $506,565.85 fund remaining from the foreclosure sale in the amounts of $260,000 to PaineWebber toward its $425,000 lien, $143,485.67 to Weatherly, and $103,080.18 to Union Trust toward its claim of $228,813.90. PaineWebber argues that the trial court should not have allowed the setoff reducing its claim to $260,000 in this case because there was no setoff allowed in Paine Webber Jackson & Curtis, Inc., v. Winters, supra. Had the trial court refused to allow the setoff in this case, the defendant would have been entitled to the full $425,000 of its lien toward its claim of $440,000 plus interest against Winters.

I

The first issue raised by the defendant is whether the trial court abused its discretion in refusing to grant a stay of proceedings pending the outcome of Paine Webber Jackson & Curtis, Inc. v. Winters, 26 Conn. App. 322, 600 A.2d 1048 (1991).

The trial court has been “vested a large measure of discretion . . . in terminating or granting stays and, upon review, the issue usually is whether that discretion has been abused.” Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 459, 493 A.2d 229 (1985). This court “must make every reasonable presumption in favor of the trial court’s decision” when reviewing a claim of abuse of discretion. Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985).

The defendant’s motion to consolidate this case with Paine Webber Jackson & Curtis, Inc. v. Winters was denied by the trial court. Granting a stay would act to the detriment of junior encumbrancers because interest would run in favor of the senior encumbrancers. We find that the denial of the motion for stay did not constitute an abuse of discretion by the trial court.

II

The defendant next claims that the trial court abused its discretion by ordering a setoff in this case when it was not allowed in Paine Webber Jackson & Curtis, Inc. v. Winters, supra.

Foreclosure, being an equitable action, permits the trial court to examine all matters to ensure that “complete justice may be done.” Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966). The trial court in a foreclosure action has broad discretion in determining whether to permit a foreclosure or to lessen the stated indebtedness. Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980). Thus, “[t]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981).

The trial court in this case was not bound by the trial court’s denial of a motion for setoff in the Paine Webber Jackson & Curtis, Inc. v. Winters case. The motion for setoff in that case was dismissed because the complaint was not filed within the statutory period. Because the trial court did not reach the merits of the motion for setoff in that case, the court in this case was not bound by that decision. The defendant initially requested the trial court to order a setoff but now claims the court improperly allowed the setoff. A party “may not claim as error that which it has requested . . . nor may he challenge the court’s unequal distribution of the sale proceeds unless it was an abuse of discretion.” (Citations omitted.) LaCroix v. LaCroix, 189 Conn. 685, 688, 457 A.2d 1076 (1983). We find that the trial court’s order for distribution of proceeds in this case was not an abuse of discretion.

In Betts v. Connecticut Life Ins. Co., 78 Conn. 442, 62 A. 345 (1905), an equitable proceeding involving the winding up of a corporation by receivership, our Supreme Court permitted a setoff even though the party had failed to file a complaint in accordance with the governing statutory procedures for the granting of a setoff. Id., 450-51. Betts further demonstrates the broad powers of the court in granting a setoff in an equitable action. Thus, even if the defendant incorrectly asked for a setoff, the trial court, exercising its equitable powers, could have ordered it without abusing its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    Paine Webber Jackson and Curtis, Inc. v. Geoffrey J. Winters
    (9632)
    Daly, Foti and Lavery, Js.

      Argued October 2
    decision released December 31, 1991

      Jan A. Marcus, with whom was Alan R. Spirer, for the appellant (plaintiff).

      John Haven Chapman, with whom, on the brief, was Brian E. Moran, for the appellee (defendant).
   Daly, J.

The plaintiff, Paine Webber Jackson & Curtis, Inc. (PaineWebber), appeals following the trial court’s denial of its motion for setoff pursuant to General Statutes § 52-141 (b) (4). We affirm the judgment of the trial court.

This motion for setoff arose out of an action by the plaintiff against the defendant, Geoffrey Winters, for sums due on a promissory note. The defendant filed a counterclaim for tortious misconduct. The jury found in favor of the plaintiff on its complaint for $440,000 and for the defendant on his counterclaim for $440,000.18. On May 15,1989, separate judgments were rendered. The plaintiff moved for prejudgment interest pursuant to General Statutes § 52-192a because the plaintiff’s award exceeded its offer of judgment for $295,000. We reversed the trial court’s denial of this motion for interest and directed an award of prejudgment interest to the plaintiff. Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990).

On August 21,1990, the day this court issued its decision, the plaintiff filed this complaint and motion for setoff pursuant to General Statutes § 52-141. The trial court denied this motion holding that the plaintiff had failed to file its complaint within twenty-four hours after final judgment as required by § 52-141 (b) (4). The plaintiff argues that the court’s granting of a setoff in the related case of Connecticut Bank & Trust Co. v. Winters, 26 Conn. App. 317, 600 A.2d 1046 (1991), was inconsistent with the denial of its motion for setoff in this case. Connecticut Bank & Trust Co. v. Winters, supra, is a foreclosure proceeding in which PaineWebber has a lien on the proceeds remaining from the sale of Winters’ property. We note that a motion to consolidate this appeal with Connecticut Bank & Trust Co. v. Winters, supra, has been denied. We will consider this appeal independent of that case. The only issue in this appeal is whether the term “final judgment” in § 52-141 (b) (4) applies to the trial court’s judgments on May 15, 1989, or to this court’s decision on August 21,1990. We hold that final judgment was rendered in this case on May 15, 1989.

Appellate Court jurisdiction is restricted to appeals from judgments that are final. General Statutes § 51-197a (a). Therefore, this court had jurisdiction over the original appeal by the plaintiff concerning the award of prejudgment interest. The term final judgment, however, lacks a “ ‘plain and unambiguous’ ” definition. Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 486, 547 A.2d 528 (1988). Generally, a pending appeal’s effect on an otherwise final judgment presents a very difficult problem in applying the concept of finality because of the lack of formalized rules. Id.; Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 413-14, 525 A.2d 83 (1987). Due to the absence of formalized rules, our Supreme Court has held “that the relationship between a pending appeal and a judgment depends upon the nature of the issue to be addressed.” Preisner v. Aetna Casualty & Surety Co., supra, 414.

The present case involves the commencement of the statute of limitations. A pending appeal does not affect the finality of a trial court’s judgment when the issue involves the triggering of the statute of limitations. Varley v. Varley, 181 Conn. 58, 60-61, 434 A.2d 312 (1980). Our Supreme Court has noted that “[a]n appeal does not vacate a judgment; it serves only to stay the enforcement of the rights acquired by the successful litigant.” Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953). Therefore, the trial court’s judgment is final “unless set aside by this court . . . .’’Id.

This court’s decision in Paine Webber Jackson & Curtis, Inc. v. Winters, supra, 22 Conn. App. 648-56, to award interest pursuant to § 52-192a did not operate to set aside the original judgments in the case. A party seeking an award of interest as allowed by § 52-192a must file a posttrial motion because the award can be determined only after a judgment has been rendered. Id., 653; see Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 310, 472 A.2d 316 (1984). The determination of postjudgment motions are separate and distinct from the original judgments. “Rulings on postjudgment motions to modify an original judgment where the court has continuing jurisdiction are final judgments.” Pascal v. Pascal, 2 Conn. App. 472, 476, 481 A.2d 68 (1984).

Here, the only mistake in the original judgments was the trial court’s failure to award the plaintiff interest under § 52-192a. This court’s decision to award interest did not require us to examine or to disturb the underlying substantive issues that were decided by the trial court. Paine Webber Jackson & Curtis, Inc. v. Winters, supra. Thus, the final judgment in this case was rendered on May 15, 1989. The statute of limitations for the § 52-141 motion to set off was triggered that same day. As a result, the plaintiff’s complaint and motion for setoff filed on August 21, 1990, was untimely.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-141 provides in pertinent part: “(a) In a civil action for trespass to real or personal property or for a tort, unaccompanied by force, resulting in consequential injury, a defendant may set off against any judgment rendered against him any debt which he holds, jointly or severally, against the plaintiff, subject to the conditions contained in subsections (b) and (c) of this section.
      “(b) . . . (4) Any such set-off shall be claimed by filing a complaint in the court in which the judgment has been rendered within twenty-four hours after final judgment.”


author: Cretella, J.

text:
    City of Waterbury v. East Park Associates, Inc.
    (10115)
    Foti, Landau and Cretella, Js.

      Submitted on briefs November 8, 1991
    decision released January 7, 1992

      George E. Mendillo filed a brief for the appellant (named defendant).

      Edward W. Case filed a brief for the appellee (third party defendant).
   Cretella, J.

This appeal presents the issue of whether a court is required to award expenses of litigation, including reasonable attorney’s fees, to a condominium association pursuant to General Statutes § 47-253 (c). Because we conclude that a finding of liability pursuant to § 47-253 (a) mandates an award of attorney’s fees and expenses of litigation pursuant to § 47-253 (c), we reverse the trial court’s refusal to award all expenses of litigation, including reasonable attorney’s fees, incurred by the association in pursuing its claim against the declarant under § 47-253.

The following facts are relevant to this appeal. The city of Waterbury instituted this action against East Park Association, Inc., the condominium association for East Park Condominium, to enforce § 5.27 of the zoning ordinances of the city of Waterbury. Section 5.27 requires a suitable barrier between parking areas of condominium projects and abutting residential properties. The city’s zoning enforcement officer determined that there was no fence or other barrier abutting the parking area of East Park Condominium, and this action was commenced to compel the association to remedy the violation.

The declarant, East Park Associates Limited Partnership, had neglected to construct the appropriate barrier at the time it obtained municipal approval of the condominium. The condominium association notified the declarant of the city’s claim and subsequently filed a third party complaint against the declarant pursuant to General Statutes § 47-253 (a).

The trial court issued an injunction directing the condominium association to construct a fence along the boundary of the condominium parking area. With respect to the third party complaint, the court found for the condominium association against the declarant pursuant to § 47-253 (a) (2) and required the declarant to reimburse the condominium association for the reasonable costs incurred in the construction of the fence. The court further found that the declarant’s failure to comply with § 5.27 of the Waterbury zoning ordinance was an innocent and unintentional omission, and declined to award the condominium association its expenses of litigation and a reasonable attorney’s fee, pursuant to § 47-253 (c). This appeal by the condominium association follows.

Section 47-253 (c) provides, without additional qualification or condition, that whenever the liability of a declarant to a condominium association is established under § 47-253, the declarant “is also liable for all expenses of litigation, including reasonable attorney’s fees, incurred by the association.” Rather than making the award of expenses and attorney’s fees discretionary with the court; see, e.g., General Statutes §§ 4-184a (b), 46b-87, 52-256b; the clear words of the statute mandate an award of litigation expenses and attorney’s fees “[wjhenever the declarant is liable to the association” under § 47-253. “[WJhen the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature.” Stitzer v. Rinaldi’s Restaurant, 211 Conn. 116, 118, 557 A.2d 1256 (1989); Mayor v. Mayor, 17 Conn. App. 627, 631, 554 A.2d 1109 (1989).

Furthermore, a mandatory award under § 47-253 (c) advances the purpose of § 47-253. Section 47-253 (a) establishes the declarant’s liability to hold the condominium association harmless for the costs and losses arising out of any wrong for which the declarant is deemed to be responsible. This is an indemnification requirement. See Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965) (“indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest”). Only a mandatory award of litigation expenses and attorney’s fees incurred by the association will effectuate the indemnification purpose of § 47-253. See Burr v. Lichtenheim, 190 Conn. 351, 363, 460 A.2d 1290 (1983); Link v. Shelton, 186 Conn. 623, 632, 443 A.2d 902 (1982); Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 82, 504 A.2d 1376, cert. denied, 199 Conn. 807, 508 A.2d 769 (1986).

Accordingly, upon finding the declarant liable to the condominium association under § 47-253 (a), the trial court should have found the declarant also “liable for all expenses of litigation, including reasonable attorney’s fees, incurred by the association,” pursuant to § 47-253 (c).

The judgment on the third party complaint is reversed and the case is remanded with direction to render judgment as on file except as to the matter of an award of expenses of litigation and for further proceedings for the limited purpose of determining the award of expenses of litigation, including reasonable attorney’s fees, due the third party plaintiff.

In this opinion the other judges concurred.

       General Statutes § 47-253 (c) provides in pertinent part: “Whenever the declarant is liable to the association under this section, the declarant is also liable for all expenses of litigation, including reasonable attorney’s fees, incurred by the association.”

       General Statutes § 47-253 (a) provides: “Neither the association nor any unit owner except the declarant is liable for that declarant’s torts in connection with any part of the common interest community which that declarant has the responsibility to maintain. Otherwise, an action alleging a wrong done by the association must be brought against the association and not against any unit owner. If the wrong occurred during any period of declarant control and the association gives the declarant reasonable notice of and an opportunity to defend against the action, the declarant who then controlled the association is liable to the association or to any unit owner for (1) all tort losses not covered by insurance suffered by the association or that unit owner, and (2) all costs that the association would not have incurred but for a breach of contract or other wrongful act or omission.”

       In its brief, the declarant argues that the trial court improperly found a zoning violation by the association in the first instance and improperly found it liable to the association pursuant to General Statutes § 47-253 (a). Since the declarant has “failed to comply with Practice Book § 4005 relating to the filing of a cross appeal in this matter, we need not consider this claim.” Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 499, 548 A.2d 728 (1988). If an appellee wishes to change the judgment in any way, the party must file a cross appeal. See Practice Book § 4005.


author: Norcott, J.

text:
    State of Connecticut v. William A. Jupin, Jr.
    (9229)
    Norcott, Heiman and Cretella, Js.
    Argued September 24, 1991
    decision released January 7, 1992

      John T. Walkley, for the appellant (defendant). RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Steven Sedensky, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). He claims that the trial court improperly (1) denied his motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that he acted under circumstances evincing extreme indifference to human life, (2) refused to charge the jury on the lesser included offense of assault in the third degree in violation of General Statutes § 53a-61 (a) (2), and (3) refused to exclude the victim from the courtroom, thereby denying the defendant his constitutional right to a fair trial. We affirm the judgment.

The jury could reasonably have found the following facts. In September, 1988, the defendant and the victim, Diana Wright, lived in a second floor apartment on Fox Street in Bridgeport. Sharing the apartment were Ronald Donaldson, his girl friend, Cindy Terwilliger, who had known Wright for nine years, and Terwilliger’s three year old daughter. A common wall separated the bedroom that Wright and the defendant occupied from that of Donaldson and Terwilliger. Wright and the defendant usually slept until noon or 1 p.m. on Saturdays. By September, 1988, Wright had developed a serious drinking problem for which Terwilliger had encouraged her to seek counseling.

On the evening of September 23, 1988, the defendant and Wright, along with a friend, went to a bar. At about 10:30 or 11 p.m., the defendant brought Wright home, believing she was drunk. He then returned to the bar. At about 1 a.m. on September 24, 1988, Terwilliger saw Wright washing dishes in the apartment. At about 1:30 a.m., while Terwilliger was asleep in her bedroom, an ambulance and a paramedic, Peter Yuro, arrived. Although Yuro spent less than twenty minutes examining Wright, he learned that she was sick and felt pain throughout her body. She told him she had “the blues” and had been drinking earlier that night, but could not remember how much. She also indicated she had emotional problems for which she was taking medication. Yuro noted that Wright became confused during the examination and exhibited some unusual behavior in that she talked to and treated a doll as if it were a child. Yuro found her respiration, blood pressure and pulse to be normal, and did not note any indicia of trauma on her body. He did not recall smelling alcohol on her. Wright spoke to him in a normal manner and gave him both her Social Security and telephone numbers. After the examination, she walked out of the apartment without assistance with Yuro to go by ambulance to Park City Hospital.

Between 2 and 2:30 a.m., the defendant returned to the apartment and knocked on Terwilliger’s door, looking for Wright. He told Terwilliger that he and a friend had been at a bar with Wright and he had taken Wright home because she was drunk. The defendant then found a note stating that Wright had gone to the hospital. Shortly thereafter, Wright telephoned the defendant and asked for a ride home. The defendant then went to the hospital to get her. Although Wright had completed various paperwork upon arriving at the hospital, she left with the defendant before seeing a physician. She told the defendant at the hospital that she was all right, and the couple arrived home between 3 and 3:30 a.m. The defendant then locked their liquor on their porch to prevent Wright from drinking any more. Shortly thereafter, an argument ensued between them. Through the wall between the bedrooms, Terwilliger heard the couple arguing about why Wright had gone to the hospital. After knocking on their door and asking them to be quiet, she did not see or hear anything further in the apartment. She left with her daughter and Donaldson later that morning. During the argument, Wright had become abusive and fought with the defendant, scratching his arms and chest. He slapped her on her cheek with an open hand at about 4 a.m., and then they went to bed. Later that morning as Terwilliger was leaving the apartment, she looked through a crack in the door and saw the couple asleep in bed.

At about 11 a.m., the defendant awoke and, while Wright was still in bed, went to a nearby store to buy a TV Guide and a bottle of soda. Upon returning, he looked through the TV Guide and then began doing some household repairs. Twice during the afternoon, he noticed that Wright had urinated in bed. He removed her nightgown and twice applied baby powder to dry her. Later, he heard her breathing heavily and tried to awaken her, but she did not respond. At about 3:30 p.m., he called Park City Hospital and told a nurse he had a female friend whom he had been unable to awaken for the past few hours. The nurse suggested that he call an ambulance. The defendant did so, and at about 4:30 p.m. two paramedics, Kurt Liell and Parker Christopher, arrived.

Liell and Christopher found Wright unconscious in bed and unsuccessfully tried to awaken her. With the defendant present, Liell examined Wright. She did not respond to stimuli. Liell found bruises on her face, around her head and behind one of her ears. The bruise behind the ear could have signified a head injury or a basal skull fracture, a thin crack in the bone next to the ear. Liell saw multiple bruises on her upper body, including her entire chest, and on her stomach and legs. When he examined her pupils, he found the left one to be dilated and unresponsive to light. Upon opening her eyes, Liell noticed they did not move. Her teeth also were clenched, signifying possible head trauma. Liell saw blood on her teeth and lips that appeared to have been wiped away, and detected breathing problems and an abnormally high heart rate. He saw that Wright’s body was covered with baby powder, which the defendant told Liell he had used to dry her after she had urinated. The defendant also told the paramedics he had argued with Wright and had slapped her a couple of times.

Wright was then taken to the hospital, where she arrived comatose, essentially the same condition as that in which Liell and Christopher had found her. Tests done in the emergency room showed her blood alcohol level just prior to surgery measured 0.03, indicating she was not under the influence of intoxicating liquor. A registered nurse in the emergency room, Irene LaConte, saw the bruise behind one of Wright’s ears. She attributed it to brain trauma and said such a bruise would not be caused by a slap unless the blow had been very forceful.

A neurosurgeon, Michael Opalak, then examined Wright and performed surgery on her shortly thereafter. He found bruises behind both her ears and determined that she was suffering from an acute subdural hematoma, which is caused by a torn vein or artery in the brain and involves a blood clot in the tissues of the skull that line and cover the brain. He determined that Wright’s condition had developed in the preceding seventy-two hours, and that there had been bleeding in her brain for between forty-eight and seventy-two hours prior to surgery. It was unlikely that a person experiencing a subdural hematoma would have been in the same condition Wright was in at 1:30 a.m. Contact with a floor, wall or furnishings could have caused her condition, but it was very unlikely that she caused the acute subdural hematoma by falling down. Opalak did not see anything during surgery indicating that a fall had caused Wright’s condition; a fall would not likely have resulted in the rupture of the particular veins that were damaged. Opalak stated that more than a slap was needed to cause Wright’s condition, and that a blunt rather than a sharp object was the cause.

Wayne Carver, the chief state medical examiner, reviewed Wright’s medical records and found nothing to indicate that a subdural hematoma existed at 1:30 a.m. when Yuro first examined her. Carver determined that Wright’s condition could have been caused by a blunt injury to the head, including a fall to the floor in her apartment. He determined that a subdural hematoma could be caused by the amount of force required to fracture the skull, and that a single blow to the head could have caused both the skull fracture and the subdural hematoma. Bruises to the back of the ear commonly signify basal skull fractures, and the accumulation of blood that caused damage in Wright’s brain began within the forty-eight hours prior to her surgery. Carver found that the damage to her brain had progressed rapidly, and he characterized the force that caused her condition as a “good brisk deed” that went from side to side in striking her.

After surgery, Wright remained in a coma from which she did not begin to emerge for twelve to eighteen months. She developed hydrocephalus, an excess of fluid that becomes trapped in chambers of the brain, which then enlarge and compress the brain. A shunt was implanted to drain the fluid to relieve the hydrocephalus. She is presently able to open her eyes, look around and answer a few questions, but she is unable to live outside a hospital or nursing home environment.

I

The defendant first challenges the sufficiency of the evidence regarding the charge of assault in the first degree. He claims that the cumulative effect of the direct and circumstantial evidence was insufficient to prove each element of the crime beyond a reasonable doubt. He specifically argues that the state failed to prove that he recklessly caused Wright’s injuries. Thus, he asserts that two essential elements of § 53a-59 (a) (3) were not established. Further, the defendant proffers that the evidence supports other reasonable hypotheses that are inconsistent with his guilt of the crime charged. We do not agree.

The two part test for appellate analysis of a claim of evidentiary insufficiency is well established. First, we review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. Second, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Montanez, 219 Conn. 16, 19, 592 A.2d 149 (1991); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). In reaching its conclusions, a jury may draw reasonable and logical inferences from the facts proven, but it may not resort to speculation and conjecture. State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990). With respect to the type of evidence the jury employs to reach its verdict, it is immaterial to the probative force of that evidence that it be, in whole or part, circumstantial rather than direct. State v. Allen, 216 Conn. 367, 381, 579 A.2d 1066 (1990). Each essential element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. King, supra, 601. Finally, in determining whether the jury reasonably could have found guilt, we ask if any rational factfinder could have done so. State v. Montanez, supra, 20; State v. King, supra.

The defendant first attacks the sufficiency of the evidence with respect to the element of causation. He claims that such an inadequate nexus exists between his conduct and Wright’s injuries, that the jury could not find, beyond a reasonable doubt, that he caused those injuries. We do not agree.

The evidence shows that, although Wright became confused and exhibited some unusual behavior when paramedic Yuro examined her at 1:30 a.m., she otherwise responded to him in a normal manner and walked out of the apartment without assistance to go to the hospital in the ambulance. Yuro did not note any bruises or other indicia of trauma on her body during a nearly twenty minute examination, and the defendant testified that Wright said that she was all right when he picked her up at the hospital between 2:30 and 3 a.m. The defendant further testified that Wright was walking about the apartment and having a conversation with him between 3:30 and 4 a.m., just before the couple fought and he struck her. Terwilliger also saw Wright washing dishes at 1 a.m. and heard her arguing with the defendant at about 3:30 a.m.

The medical testimony also indicated that Wright’s comatose condition did not exist just prior to the argument with the defendant. Both Opalak and Carver placed the onset of Wright’s condition within forty-eight to seventy-two hours prior to her surgery in the afternoon of September 24,1988. Both physicians testified, however, that it was unlikely that Wright had an acute subdural hematoma at the time Yuro examined her at 1:30 a.m. Opalak stated that more than a slap would have been necessary to cause Wright’s condition and that it was very unlikely that she had caused it by falling down. He found nothing during surgery to tie her condition to a fall, adding that it was unlikely that a fall would bring about the rupture of the particular veins in Wright’s brain that were damaged. Opalak and Carver both stated that a blunt instrument likely caused Wright’s condition, with Carver testifying that the amount of force necessary to fracture her skull would have been sufficient to cause a subdural hematoma. He stated that a single blow to the head could cause both the fracture and the subdural hematoma, adding that the force that caused Wright’s condition went from side to side in striking her. From this evidence, the jury reasonably and logically could have concluded that Wright’s injuries resulted from her having been struck with a blunt instrument sometime between 2:30 a.m. and 4:30 p.m. on September 24, 1988, and that the defendant was the only person who could have inflicted those injuries.

Although the defendant maintains that the cumulative effect of the direct and circumstantial evidence at trial was insufficient to prove that he caused Wright’s injuries, we remain mindful of the well established principle that it is not the province of a reviewing court to “sit as a [seventh] juror . . . [even if] some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. King, supra, 602. This court has not had the opportunity to observe the conduct, demeanor and attitude of the witnesses, nor has it had the chance to evaluate their credibility, tasks that are exclusively within the province of the jury as trier of fact. State v. Carter, 196 Conn. 36, 46, 490 A.2d 1000 (1985). We emphasize that it is not any single fact but the cumulative impact of a multitude of facts that establishes guilt when proof is based substantially on circumstantial evidence. State v. King, supra. After a scrupulous review of the record, we conclude that the jury reasonably and logically could have determined that the cumulative effect of the evidence was sufficient to establish beyond a reasonable doubt that the defendant, using a blunt object, caused Diana Wright’s injuries.

The defendant’s next line of attack on the sufficiency of the evidence posits that the state failed to prove he acted recklessly. Although he concedes the testimony at trial showed he had fought with and slapped Wright, he contends that no other evidence was offered that cumulatively could have established reckless conduct on his part.

Assault in the first degree under § 53a-59 (a) (3) requires that a defendant recklessly engage in conduct that creates a risk of death to another person and thereby causes serious physical injury to another person. Griffin v. Parker, 219 Conn. 363, 365-66, 593 A.2d 124 (1991). A person acts recklessly with respect to a particular result or a circumstance described by a statute “when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. . . .’’General Statutes § 53a-3 (13); State v. Bunkley, 202 Conn. 629, 643, 522 A.2d 795 (1987); see also State v. Montanez, supra, 22. Recklessness involves a subjective realization of that risk and a conscious decision to ignore it. State v. Bunkley, supra. It does not involve intentional conduct “ ‘ “because one who acts recklessly does not have a conscious objective to cause a particular result.” ’ ” Griffin v. Parker, supra, 370; State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986). Because it is difficult to prove this through direct evidence, the “ ‘state of mind amounting to recklessness may be inferred from conduct.’ ” State v. Bunkley, supra, 645, quoting Mooney v. Wabrek, 129 Conn. 302, 308, 27 A.2d 631 (1942).

The evidence taken in the light most favorable to sustaining the verdict shows that the defendant admitted striking Wright at about 4 a.m. on September 24,1988. It indicates that her condition at 1:30 a.m. was not consistent with that of a person suffering from an acute subdural hematoma. No bruises were visible on her body, and, even though she had been drinking the previous evening, she responded to a paramedic’s questions in a normal manner and was able to walk out of the apartment under her own power. The defendant testified that Wright had said that she was all right when he picked her up at the hospital between 2:30 and 3 a.m. His testimony further showed that at about 3:30 a.m. she was still coherent enough to engage in conversation and inflict injuries on him in a physical confrontation. At 4:30 p.m., however, Wright was unconscious and had extensive bruising on her face, head and behind one ear. There were multiple bruises on her upper body, including her entire chest, and on her stomach and legs. Blood was found on her teeth and lips. Finally, the evidence indicates that no one other than the defendant was with Wright between 2:30 a.m. and 4:30 p.m. On the basis of the cumulative effect of this evidence, we conclude that the jury reasonably and logically could have inferred beyond a reasonable doubt that, when the defendant struck Wright, he consciously disregarded a substantial risk that serious physical injury would result.

Finally, with respect to his sufficiency of the evidence claims, the defendant posits that the verdict cannot stand because the evidence supports several reasonable hypotheses that are inconsistent with his guilt of the crime charged. We disagree.

The defendant urges on us the proposition that “any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused must prevail.” State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990). He argues that such reasonable conclusions exist because no evidence shows that a fight occurred between the defendant and Wright that was either loud or prolonged, or that involved brutality or extreme indifference to human life. He asserts that the medical testimony shows it was not possible to conclude when Wright lost consciousness and that it was reasonable to infer that neither she nor the defendant would have been aware of the gravity of the situation for some time after the injury occurred. Further, the defendant contends that because Wright, on the evening of September 23, 1988, had been drinking alcoholic beverages “sufficiently to have a projected level of intoxication between” 0.22 and 0.29, this, along with her habit of sleeping late on Saturdays, and her complaints to paramedic Yuro and unusual behavior with a doll, give rise to several reasonable hypotheses inconsistent with guilt.

Our review of the record, however, leads us to reject the defendant’s arguments. “ ‘A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.’ ” State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984). “ ‘But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition.’ ” Id., 611; State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982); State v. Foord, 142 Conn. 285, 294-95, 113 A.2d 591 (1955). “ ‘ “Emphasis needs to be placed on the distinction between the word ‘reasonable’and the word‘possible.’ . . . Proof of guilt must exclude every reasonable supposition of innocence .... ‘[A] mere “possible hypothesis” of innocence will not suffice.’ (Citations omitted.) State v. Englehart, 158 Conn. 117, 121-22, 256 A.2d 231 (1969).” State v. Morrill, supra, 611.’ ” State v. Turner, 24 Conn. App. 264, 270-71, 587 A.2d 1050, cert.. denied, 218 Conn. 910, 591 A.2d 812 (1991).

We find that the defendant’s arguments reflect merely possible hypotheses that fail to rise to the level of reasonable hypotheses inconsistent with guilt. Even if the dispute with Wright was not loud, prolonged or brutal, we cannot say it would have been unreasonable for the jury to conclude the argument could have resulted in violence that led to an acute subdural hematoma. A jury is free to draw inferences that are consistent with guilt as well as inferences that are consistent with innocence. State v. Morrill, supra, 610; State v. Aleksiewicz, 20 Conn. App. 643, 647, 569 A.2d 567 (1990). To argue to the contrary, as the defendant does, would require us to believe that the jury could find he had slapped Wright but that it could not find that his action led to an acute subdural hematoma. Because the defendant’s suggestion that the argument was not loud or lengthy raises, at best, only a possible hypothesis of innocence, the jury was entitled to reject it in finding that the evidence established the defendant’s guilt beyond a reasonable doubt. Similarly, even if it is not medically possible to determine when Wright lost consciousness, and even if it was reasonable for the jury to infer that neither she nor the defendant would have been aware of the seriousness of her injuries for some time after they had occurred, such assertions raise nothing more than possible hypotheses of innocence the jury was not required to credit. For the jury to have rejected the defendant’s theories cannot be regarded as unreasonable or illogical in light of the ample amount of trial testimony detailing the symptoms of a subdural hematoma, the extensive amount of bruising on Wright’s body and the defendant’s activities in the four to five hours before he summoned help.

The defendant’s contention that Wright’s use of alcohol and her complaints to paramedic Yuro at 1:30 a.m. give rise to reasonable hypotheses inconsistent with guilt also must fail. In essence, the defendant argues that Wright’s condition already may have existed, since she was not feeling well and had exhibited unusual behavior prior to their argument. Opalak testified that Wright’s behavior with the doll and her complaints to Yuro were not consistent with the symptomatology of an acute subdural hematoma, and both he and Carver testified that it was unlikely Wright was suffering from an acute subdural hematoma at 1:30 a.m. In light of this expert testimony, which the jury apparently chose to believe, we cannot say the defendant has raised anything more than a possible hypothesis of innocence.

We next consider the claim that alcohol may have played a role in Wright’s injury. Because her blood alcohol level measured 0.03 just prior to her surgery on the afternoon of September 24,1988, the defendant extrapolates backward and arrives at the conclusion that Wright must have had a blood alcohol level of between 0.22 and 0.29 at approximately 3:30 a.m. that morning, which could have resulted in a fall that caused her condition. Yet here again, the medical testimony, as well as the defendant’s own testimony, undercuts his contentions.

The defendant testified that he took Wright home from the bar at about 10:30 or 11 p.m. on September 23, 1988. Although he had to help her to the car, he testified that when they arrived home she was cognizant enough to be aware that he was going to leave the apartment and asked him to stay. Later, between 2:30 and 3 a.m., Wright also was apparently coherent enough to make a telephone call to the defendant from Park City Hospital to ask him for a ride home. Although he testified she had difficulty walking when he picked her up, he stated that after arriving home between 3 and 3:30 a.m., Wright walked freely about the apartment, engaged in conversation with him and fought with him, scratching his arms and chest.

The defendant’s theory is further undercut by the testimony of Yuro, who did not recall smelling alcohol on Wright when he examined her at 1:30 a.m. and stated that she responded to his questions in a normal manner. Wright gave him various information, including her Social Security and telephone numbers, and walked out of the apartment without assistance to go to the hospital in the ambulance. In short, we decline to accept the defendant’s reasoning, since it raises no more than merely possible hypotheses of innocence.

Viewing the cumulative effect of the evidence as a whole, and giving due weight to all the considerations urged on us by the defendant, we are persuaded that the state has established beyond a reasonable doubt that he acted with extreme indifference in causing serious physical injury to Wright. The record in this case, not unlike that in State v. Famiglietti, supra, contains direct evidence of the defendant’s presence in the apartment shortly before he fought with Wright and of his continued presence there after he struck her. It was entirely reasonable and logical for the jury to have determined beyond a reasonable doubt that no one other than the defendant had the opportunity to inflict the injuries to her head and body that have left her so seriously debilitated today. See id., 614; State v. Jordan, 136 Conn. 201, 204, 69 A.2d 834 (1949). Accordingly, we reject the defendant’s contention that the evidence was legally insufficient to justify a verdict of guilty of the crime of assault in the first degree.

II

The defendant next claims that the trial court improperly refused to instruct the jury, as requested, on assault in the third degree; General Statutes § 53a-61 (a) (2); as a lesser included offense of assault in the first degree. The trial court denied the request because it did not conform to the requirements of Practice Book § 854, and the defendant excepted.

A defendant is entitled to a charge on a lesser included offense when he meets the four conditions set forth in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980): “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” See State v. Edwards, 214 Conn. 57, 62-63, 570 A.2d 193 (1990); State v. Dedrick, 24 Conn. App. 518, 523, 589 A.2d 1241 (1991). The state claims that the defendant has not satisfied the first condition of the Whistnant test. We agree.

In State v. McIntosh, 199 Conn. 155, 158-61, 506 A.2d 104 (1986), our Supreme Court articulated the standards necessary to meet the first condition of Whistnant, which requires the defendant to request “an appropriate instruction.” A proposed instruction is not appropriate unless it is made in compliance with Practice Book § 854. State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990). In the context of a written request to charge on a lesser included offense, this requirement of § 854 is met only if the proposed request contains “ ‘such a complete statement of the essential facts as would have justified the court in charging in the form requested.’ Michaud v. Gagne, 155 Conn. 406, 410, 232 A.2d 326 (1967), quoting Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925) . . . .” State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984). A trial court has no obligation “to instruct, sua sponte, on general principles of law relevant to all issues raised in evidence.” (Internal quotation marks omitted.) State v. Hall, supra, 592, quoting State v. McIntosh, supra, 160; State v. Preyer, 198 Conn. 190, 198 n.9, 502 A.2d 858 (1985).

Here, the defendant’s request to charge did not comply with Practice Book § 854. It contained no facts whatsoever, much less “ ‘a complete statement of the essential facts as would have justified the court in charging in the form requested.’ ” State v. Killenger, supra, 57; State v. Dedrick, supra, 524. Indeed, the defendant’s request to charge mirrored the “skeletal list of statutory subsections” in the request that was deemed inadequate in State v. McIntosh, supra, 159-61.

Although the defendant contends in his brief that “the factual and legal authority for the requested instruction here was more than clear to the Court from the evidence [adduced] at trial,” our Supreme Court has expressly determined otherwise. See, e.g., State v. Hall, supra (defendant’s testimony at trial insufficient to justify jury instruction on lesser included offense where written request to charge was inadequate). Moreover, the court has quite clearly expressed its preference for counsel’s cooperation with respect to requests for jury instructions pursuant to Practice Book § 854. Such cooperation is no more than a minor burden that is neither unreasonable nor novel in light of the ever increasing refinement of our law. State v. McIntosh, supra, 160-61. Because the defendant’s proffered request failed to meet the first condition of Whistnant, we need not consider the other elements of the test. We conclude that, since the request contained no more than a recitation of the crime and its statutory provision, the trial court properly refused to instruct the jury on the elements of assault in the third degree, General Statutes § 53a-61 (a) (2), as a lesser included offense of the crime charged.

Ill

The defendant’s final claim is that he was denied his constitutional right to a fair trial because the court improperly refused to exclude Wright from the courtroom. During trial, Wright was wheeled into the courtroom in a geri-chair accompanied by her mother and two nurses. Wright was wearing a bathrobe and slippers. The defendant’s counsel objected to her presence, claiming that it unfairly prejudiced the defendant’s right to a fair trial. The court denied counsel’s request that Wright be excluded from the courtroom, and the defendant excepted. On appeal, the defendant now claims that the mere presence of Wright in the courtroom constituted evidence that could have led the jury to be prejudiced against him, thereby infringing on his right to a fair trial.

“ ‘The function of the court in a criminal trial is to conduct a fair and impartial proceeding. Glasser v. United States, [315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942)].’ State v. Bember, 183 Conn. 394, 401, 439 A.2d 387 (1981).” State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985). “A fair trial is implicit in the term ‘due process of law.’ ” State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), quoting Wojculewicz v. Cummings, 145 Conn. 11, 19, 138 A.2d 512, cert. denied, 356 U.S. 969, 78 S. Ct. 1010, 2 L. Ed. 2d 1075 (1958). “ ‘ “Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. U.S. Const., amend. XIY; Conn. Const., art. I, § 8; Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 [1941]; Wojculewicz v. Cummings [supra]” ’ ” State v. Fernandez, supra.

A trial judge in a criminal case may take all steps reasonably necessary for the orderly progress of the trial. State v. Woolcock, 201 Conn. 605, 622, 518 A.2d 1377 (1986); State v. Siller, 12 Conn. App. 395, 398, 530 A.2d 1106, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). Control of the proceedings in the courtroom is necessarily within the trial judge’s discretion. Antel v. Poli, 100 Conn. 64, 69, 123 A. 272 (1923). He is responsible for having the trial conducted in a manner that approaches an “ ‘ “ ‘atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.’ Glasser v. United States, [supra]; Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 77 L. Ed. 1321 [1933].” State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975).’ State v. Gordon, 197 Conn. 413, 424-25, 504 A.2d 1020 (1985).” State v. Fernandez, supra. When the rights of those other than the parties are implicated, “ ‘ “[t]he trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice.”. . .’” State v. Fernandez, supra, 11, quoting subdivision (a) of standard 6-1.1 of the American Bar Association Standards Relating to the Administration of Criminal Justice (Special Functions of the Trial Judge [1978]).

The defendant does not provide us with citation of authority nor does our research disclose any authority for the proposition that a crime victim may be excluded from the courtroom upon the defendant’s objection to her presence. In two analogous cases, it was held that a plaintiff had the right to be present during trial, even though bound to a stretcher, and that no deprivation of a fair trial resulted therefrom. See Wojculewicz v. Cummings, supra; Antel v. Poli, supra. In Antel, the plaintiff, during jury selection, was carried into court on a stretcher while making exclamations of pain that could be heard by everyone in the courtroom. See Rozbicki v. Huybrechts, 22 Conn. App. 131, 133-34, 576 A.2d 178 (1990), aff'd, 218 Conn. 386, 589 A.2d 363 (1991). In this case, Wright was merely wheeled into court, attended by two nurses and her mother, without incident. The record does not indicate, nor does the defendant claim, that the state said or did anything to bring about her presence in court. Any concern the defendant had about whatever feelings jurors may have felt toward Wright was adequately addressed in the court’s instructions to the jury. The court clearly informed jurors that their verdict was not to be influenced by sympathy, sentiment or emotion, but must be arrived at based on their cool and considered application of law to the facts disclosed by the evidence. In the absence of evidence to the contrary, jurors are presumed to follow the court’s instructions. State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987); Klingeman v. MacKay, 25 Conn. App. 217, 220, 594 A.2d 18 (1991). We conclude that denial of the defendant’s request to exclude Wright from the courtroom was a proper exercise of the court’s power to control the proceedings before it, which safeguarded Wright’s obvious interest in the case yet did not impinge on the defendant’s right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”

       In the context of operating a motor vehicle, a person is presumed to be under the influence of alcohol when his blood alcohol level measures .10 or higher. See General Statutes § 14-227a; State v. LeRoy, 16 Conn. App. 472, 478-79, 547 A.2d 940 (1988).