text:
    Hebrew Home and Hospital, Inc. v. Joseph Neiman et al.
    (2106)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued November 7
    decision released December 11, 1984

      Jeffrey L. Polinsky, for the appellant (named defendant).

      BenM. Krowicki, with whom, on the brief, was Peter L. Lawrence, for the appellee (plaintiff).
   Per Curiam.

The named defendant, Joseph Neiman, appeals from the damages aspect, only, of a summary judgment rendered against him in the amount of $11,919.26, for charges incurred on behalf of his mother, Anna Neiman, at the plaintiff nursing home.

The defendant admitted that he guaranteed his mother’s bill for the period between her admission to the nursing home and her eventual receipt of social security benefits which thereafter covered all of her expenses. The plaintiff’s affidavit, signed by David Houle, vice president and controller of the Hebrew Home, merely stated an unitemized total amount due.

Although we would not normally condone an unitemized bill where the need to prove the claimant’s damages would require supporting facts, the defendant did not object, either in the trial court or on appeal, to the skeletal nature of the plaintiff’s affidavit.

If the defendant was unable to oppose the motion for summary judgment because of a lack of knowledge of the composition of the total bill, he should have filed an affidavit to that effect pursuant to Practice Book § 382. At that time, the court would have taken the appropriate action required under the circumstances. We deem, therefore, that the defendant waived any objection to any deficiencies in the form of the affidavit.

The defendant’s own affidavit did not comply with Practice Book § 381. The defendant’s affidavit, therefore, did not raise a genuine issue of material fact. Thus, summary judgment was appropriate. Practice Book § 384; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984); Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 372, 260 A.2d 596 (1969); DiUlio v. Goulet, 2 Conn. App. 701, 703, 483 A.2d 1099 (1984).

There is no error.

       Although this action was originally brought against both Joseph Neiman and Walter Neiman, the latter has been dropped as a party and is not involved in this appeal. We therefore refer to Joseph Neiman as the defendant.

       The appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).

       Practice Book § 382 reads as follows: “Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present facts essential to justify his opposition, the court may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”

       Practice Book § 381 requires supporting and opposing affidavits to include “such facts as would be admissible in evidence.” The defendant’s affidavit stated only that “this guaranty was not intended to be a blank check; it was intended to cover actual and necessary care given to Anna Neiman. . . . This file will show that an Offer of Judgment in the amount of five thousand (5,000) dollars was made by the undersigned. Said offer .... is deemed to be the amount actually due.” Such a conclusory statement cannot be said to include admissible evidentiary facts.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Metropolitan District v. Town of Barkhamsted
    (2632)
    Hull, Borden and Daly, Js.

      Argued October 10
    decision released December 18, 1984

      Bourke G. Spellacy, with whom were Karen P. Blado and Michael J. Whelton, for the appellant (plaintiff).

      Wesley W. Horton, with whom were David L. Fineberg, DavidB. Losee and, on the brief, Charles M. Rice, Jr., for the appellee (defendant).
   Hull, J.

This case involves the proper basis for assessing land owned by the plaintiff, the Metropolitan District, and used for reservoir purposes in the defendant town of Barkhamsted, on the tax assessment lists of 1979,1980, and 1981. The underlying facts are not in dispute.

The district is a specially chartered municipal corporation which owns 6628 acres of land in the town. The land consists of a reservoir and associated watershed area used to meet the needs of member towns and nonmember customers of the district. In a dispute over the tax assessment on its land, the district argued that the per acre value of its land was $118.65; the town claimed that the land value was $1900 per acre. The district appeals from the judgment of the trial court valuing its land at $1800 per acre, claiming error in the court’s application of the property tax assessment provision of the special act which created it.

The district was created in 1929 by a special act of the Connecticut General Assembly. 20 Spec. Acts 1204, No. 511. The charter, as amended by 21 Spec. Acts 655, No. 505, provides as a method of real estate tax assessment that land shall be “assessed for taxation at the average assessed valuation per acre of the improved farming land in such town.” See Part I, infra.

On October 1,1979, the town’s tax assessor assessed the district’s property at $1900 per acre. The district appealed this assessment to the board of tax review of the town. Upon the board’s refusal to change the assessment, the district appealed to the Superior Court.

The court determined that the true and actual value of the property was $11,930,400, representing an $1800 per acre valuation. The court rejected the district’s claim that General Statutes §§ 12-107a through 12-107c applied to its land in the town. The court found that the land had never been classified under those sections and that the legislature never intended those sections to be used in determining the value of water company property.

The court did not further consider the question of the possible existence of improved farmland in the town or its average assessed value per acre. It proceeded, without explaining the reasons for not applying the charter assessment provision, to determine the assessment value of the district’s property on the basis of testimony by the town’s appraiser, James Oles, and common knowledge of increasing farmland values. The court reduced the assessment per acre to $1800, which it labeled a “conservative figure,” agreed to by the town.

The tax assessor of the town testified that $118.65 was the average assessment per acre of the farmland in the town. A document posted at the town hall showed various farmland classifications and a schedule of recommended use values pursuant to General Statutes §§ 12-107a through 12-107e. Tillable land is classified, in descending order of quality from best to worst, as “Tillable A,” “Tillable B,” “Tillable Cl” and “Tillable C2.” “Permanent Pasture Land” is defined as “Untillable Land.” The term “improved farmland” is not used in the document. The entire assessment of farmland consists of 254.6 acres classified as “Tillable C2” and 427.9 acres classified as “Permanent Pasture.” For the years 1979,1980 and 1981, “Tillable C2” farmland was assessed by the town at $150 per acre and “Permanent Pasture Land” at $100 per acre. These values were based on the list of statewide and river valley recommended use values per acre provided to towns by the state tax commissioner. The resulting calculation is as follows:

Thus, $118.65 per acre, computed as $80,980 for 682.5 acres, is the average assessed valuation per acre of farmland in the town. This $118.65 per acre valuation reflects the fact that the owners of all farmland in Barkhamsted have applied for and received classification of their land as farmland under General Statutes §§ 12-107a through 12-107c.

The district proffered only two witnesses. The first of these was the town assessor, Mary Ringuette. She testified as follows: There is no improved farmland in the town; her definition of such land is “land along the river valley or along some flat land that is not slopey, not rocky, so it’s able to have a tractor go through and plant crops” such as lettuce or tobacco, as distinguished from hay; tillable C2 land is not improved farmland; she stated that her opinion is consistent with those of the other assessors at the Hartford County and Litchfield County assessors’ meetings.

The other witness was Leon C. Kirk, a senior engineer with the real estate department of the district. He examined assessment cards in the assessor’s office for land classified as farmland, being all of the tillable C2 land and pasture land. These cards show that if all of the town’s farmland were assessed without the preferential statutory reduction, the average assessment per acre would be $963.54, or $874.14 if farmland located in a business zone were excluded.

Kirk testified that in his opinion “tillable C2 and pasture land do come within the definition of improved farmland.” The trial court specifically found that the district tried the case without a competent appraiser.

James C. Oles, an expert appraiser with twenty-six years of experience, testified for the town. He prepared a report for trial estimating the fair market value, in a sale, of improved farmland from a willing seller to a willing buyer. He did not consider any farmland within the town despite the fact that there are four working dairy farms in the town and despite the land classified as farmland by the assessor.

Oles testified that the reason he did not consider existing farms in Barkhamsted in determining the value of the district’s land is that the only “improved farming land” in the town is now under water as the “reservoir was built by the Metropolitan District on the best land that existed in the Town of Barkhamsted.” He defined “improved farming land” as “prime crop land cleared, the absolute best farmland there is.” He used farmland values from other towns in Litchfield County with similar market conditions for farming.

The district briefed three major issues: (1) that the court erred in interpreting the property tax assessment provisions of the charter; (2) that the court erred in its interpretation of the relationship of the charter to General Statutes §§ 12-63, 12-76 and 12-107a through 12-107c; and (3) that the court erred in setting the assessment at $1800 per acre.

The appellee also briefed, as an alternate ground upon which the judgment may be affirmed pursuant to Practice Book § 3012 (a), whether General Statutes § 12-76, as amended in 1963, repealed by implication the assessment provision of the district’s charter.

I

Statutory History

In West Hartford v. Board of Water Commissioners, 44 Conn. 360 (1877), the Supreme Court held that a reservoir owned by a municipal corporation in another town was not liable to taxation in the latter town. This case prompted adoption of the original predecessor of General Statutes § 12-76, which stated: “Land owned or taken by any municipal corporation for the purpose of creating or furnishing a supply of water for its use or benefit, shall be liable to taxation, and shall be set in the list in the town where such land is situated, to the corporation owning or controlling such water supply, at a valuation which would be fair for said land if used for agricultural purposes: provided, however, that no such land shall be liable to taxation, or set in any list as aforesaid, wherever the inhabitants of the town in which the said land is situated have the right to the use of such water supply upon the same terms and conditions as the inhabitants of such municipal corporation, and when such town actually uses the same.” (Emphasis added.) Public Acts 1879, No. 79. Thereafter, the legislature altered the language “for agricultural purposes” as follows: “land shall be liable to taxation and shall be assessed ... at the average assessed valuation per acre of the improved farming land in town. ” (Emphasis added.) Public Acts 1913, No. 156.

In 1929, the district was created by 20 Spec. Acts 1204, No. 511. This act contained no section specifically on taxation of its water supply property until, in 1931 for the East Branch of the Farmington River and again in 1949 for the West Branch, the Charter borrowed the identical language of the 1913 Public Act: “[A]ll land taken for any of said purposes shall be set in the list for taxation in the town in which said land is situated, to the Metropolitan District, and assessed for taxation at the average assessed valuation per acre of the improved farming land in such town. ” (Emphasis added.) 21 Spec. Acts 655, No. 505, § 14; 25 Spec. Acts 1162, No. 444, § 10.

In 1963, the pertinent portion of the present § 12-76 was amended to state: “[S]uch land shall be liable to taxation and shall be assessed in the town in which such land is situated to the corporation owning or controlling such water supply at what would be its fair market value were it improved farm land. ” (Emphasis added.) Public Acts 1963, No. 490, § 10.

II

The Relationship op the Charter to General Statutes § 12-63, 12-76 and 12-107a through 12-107c

A

Whether the Charter Provision Was Repealed by Implication by General Statutes § 12-76

We will first consider the town’s alternate position that General Statutes § 12-76, as it read prior to the 1982 amendment; see footnote 7, supra; is applicable to this case.

The trial court decided the case in favor of the town with reference to the language of the charter. Thus, the court did not consider the town’s alternate argument that General Statutes § 12-76 rather than the charter applied to this tax appeal. This is a pure issue of law briefed by the district. The issue is also in the preliminary statement of issues of both parties. Thus, the issue is properly before this court. Cochran v. McLaughlin, 128 Conn. 638, 644, 24 A.2d 836 (1942).

In 1963, the relevant portion of General Statutes § 12-76 was changed to provide that land of a municipal water supply corporation be “assessed ... at what would be its fair market value were it improved farm land.” Public Acts 1963, No. 490, § 10. The town claims that this amendment repealed the assessment provision of the charter by implication and was applicable to the 1979, 1980 and 1981 assessment lists. In the same legislative session, General Statutes § 12-63 was amended to provide preferential tax treatment for farm land as follows: “rule of valuation. The present true and actual value of land classified as farm land pursuant to section 12-107c, as forest land pursuant to section 12-107d, or as open space land pursuant to section 12-107e shall be based upon its current use without regard to neighborhood land use of a more intensive nature, provided in no event shall the present true and actual value of open space land be less than it would be if such open space land comprised a part of a tract or tracts of land classified as farm land pursuant to section 12-107c. The present true and actual value of all other property shall be deemed by all assessors and boards of tax review to be the fair market value thereof and not its value at a forced or auction sale.” (Emphasis added.) Public Acts 1963, No. 490, § 9.

In East Haven v. New Haven, 159 Conn. 453, 271 A.2d 110 (1970), a special act in 1929 had granted to New Haven the right “ ‘to establish and maintain an airport within the limits of said city and the town of East Haven and to acquire property as a site for such airport, either by purchase or by condemnation proceedings under the provisions of the general statutes.’ ” East Haven v. New Haven, supra, 463. The 1929 General Assembly had also enacted two general statutes about airports consistent with the special act. In 1946, the General Assembly adopted the predecessor of General Statutes § 15-79. This statute did not expressly repeal the 1929 special act, but did so by implication.

The Supreme Court stated: “This section, known as § 15-79 of the General Statutes, in effect at the time of trial, was a drastic change in legislative policy from [allowing airports in another town without the town’s approval]. It prohibited municipalities from purchasing or taking land in any other municipality for the establishment, expansion or improvement of an airport without the approval of that municipality. The state itself was prohibited from establishing, expanding or improving any airport without the approval of the municipality or municipalities concerned. This was a patent shift of policy from one permitting extension of municipal airports into other municipalities with no power in the towns so invaded to prohibit it to one prohibiting not only all municipalities from so doing but the soverign as well, unless the permission of the municipality concerned was first obtained.” East Haven v. New Haven, supra, 466-67.

It then summarized the law on repeal by implication as follows: “[T]he general rule is that ‘[a] special and local statute, providing for a particular case or class of cases, is not affected by a statute general in its terms, broad enough to include cases embraced in the special law, unless the intent to repeal or alter is manifest.’ State ex rel. Wallen v. Hatch, 82 Conn. 122, 124, 72, A. 575 [1909]. ‘But whenever it is made to appear that the legislature intended to repeal a special act by any general legislation, then the special act falls, although not named. And such intention may be made to appear by the words of the general act, by the subject-matter with which the general act is concerned, by other legislation on the same matter, by the surrounding circumstances, by the purpose to be accomplished, or by anything else to which reference may properly be had for the purpose of discovering the legislative intent.’ Hartford v. Hartford Theological Seminary, 66 Conn. 475, 484, 34 A. 483 [1895].

“ ‘When a subsequent enactment covering a field of operation coterminous with a prior statute cannot by any reasonable construction be given effect while the prior law remains in operative existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails, and the prior law yields to the extent of the conflict.’ 1 Sutherland, Statutory Construction (3d Ed.) § 2012, p. 463. ‘There is no rule which prohibits the repeal by implication of a special or specific act by a general or broad one. The question is always one of legislative intention, and the special or specific act must yield to the later general or broad act, where there is a manifest legislative intent that the general act shall be of universal application notwithstanding the prior special or specific act.’ 50 Am. Jur. 565, Statutes, § 564.” East Haven v. New Haven, supra, 467-68.

In upholding the trial court’s enjoining New Haven from expanding its airport into any portion of East Haven unless permission was first obtained from East Haven, the court stated: “We conclude that the subject matter of § 15-79 covers the whole field of the establishment, expansion and improvement of airports in the state. This later statute is exclusive, and its provisions are manifestly repugnant to the 1929 special act.” Id., 471-72. Repeal by implication is not favored. Hirschfeld v. Commission on Claims, 172 Conn. 603, 606, 376 A.2d 71 (1977); Knights of Columbus Council v. Mulcahy, 154 Conn. 583, 591, 227 A.2d 413 (1967). “If courts can by any fair interpretation find a reasonable field of operation for both statutes without destroying or perverting their evident meaning and intent, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect. Leete v. Griswold Post, 114 Conn. 400, 405, 158 A. 919 [1932]; Costa v. Reed, 113 Conn. 377, 385, 155 A. 417 [1931], and cases cited; 1 Sutherland, Statutory Construction (3d Ed.) § 2014.” Shanley v. Jankura, 144 Conn. 694, 702, 137 A.2d 536 (1957).

Each party cites Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 280 A.2d 344 (1971) and Miller v. Eighth Utilities District, 179 Conn. 589, 427 A.2d 425 (1980), as authority for its position. The district claims these two cases as authority for the generally accepted proposition of East Haven v. New Haven, supra, that the intent to repeal or alter must be manifest before an earlier special act is repealed by implication by a later general statute. The town points out that in each case the subsequent public act specifically stated that all prior charters and special acts were to continue in effect.

Such arguments essentially beg the question, for each situation is unique. In East Haven v. New Haven, supra, there was an essential repugnancy, for the special act involved required no approval for location of an airport in any town while the later general statute required such approval. These provisions are diametrically opposed. The Supreme Court, in finding repeal by implication, specifically noted the comprehensive nature of the later general statute.

We find nothing in the legislative history of the charter and General Statutes § 12-76 to display a manifest intent that the charter provision is repealed by the later general statute. Rather than an essential repugnancy, the two methods of assessment can live together compatibly as two different but related methods of achieving the same objective.

“[T]he legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them.” Miller v. Eighth Utilities District, supra, 594, citing Mack v. Saars, 150 Conn. 290, 298, 188 A.2d 863 (1963); Holden & Daly, Connecticut Evidence, § 50.

We conclude that the charter provision for assessment of the district’s land in the town was not repealed by implication by the provision of General Statutes § 12-76, adopted as § 10 of No. 490 of the 1963 Public Acts.

B

The Application of General Statutes §§ 12-107a through 12-107c to Assessment of Improved Farmland Under the Charter

In 1963, the General Assembly enacted No. 490 of the Public Acts, entitled “An Act Concerning the Taxation and Preservation of Farm, Forest, and Open Space Land” in order to revise the tax structure, thus enabling owners of such land to continue its environmentally sound use free from the pressure to sell caused by tax rates based on increasing market value created by encroaching residential and commercial development. See General Statutes § 12-107a.

General Statutes § 12-107c permits owners of land to apply to the tax assessor to have their land classified as farmland. General Statutes § 12-107c (a) provides that “in determining whether such land is farm land, such assessor shall take into account, among other things, the acreage of such land, the portion thereof in actual use for farming or agricultural operations, the productivity of such land, the gross income derived therefrom, the nature and value of the equipment used in connection therewith, and the extent to which the tracts comprising such land are contiguous.” If the land is classified as farmland, pursuant to General Statutes § 12-63 its valuation is based on its current use as farmland without regard to more intensive neighborhood land use, in contrast to property which is to be valued at its fair market value.

The district’s land has never been classified as farmland under General Statutes § 12-107c (a). The district, however, claims that the trial court erred in not giving it the benefit of General Statutes § 12-107c in determining the assessment of its land.

This claim is disposed of by Meriden v. Board of Tax Review, 161 Conn. 396, 288 A.2d 435 (1971), in which the Supreme Court held that Meriden could not have its water supply land, located in the town of Berlin, classified as forest land under General Statutes § 12-76. The state forester had granted Meriden forest land classification but the Berlin tax assessor refused to recognize that classification. On appeal the trial court sustained the plaintiff’s appeal and reclassified the property in question from “improved farmland” valued at $214,560 to “forest land” valued at $22,350. In finding error, the Supreme Court stated: “The legislative history of § 12-76 and the plain, unambiguous language of the statute make it clear that it was the intention of the legislature to exempt from taxation land owned or taken for water-supply purposes by a municipality in the town where the land is situated, provided that town’s inhabitants are given the use, and actually use, the water supply, on the same terms as the inhabitants of the town which owns the land. Since the inhabitants of Berlin did not share in this use, it was the intent of the legislature that the town of Berlin should not lose the tax on the land so used. It was the purpose of the statute to restore this exempted land to the assessment list of the town of Berlin and that it should be assessed at its fair market value as improved farmland. Norwalk v. New Canaan, 85 Conn. 119, 126, 81 A. 1027 [1911]. There is nothing in either of these statutes to support a claim that the provisions of § 12-107d repealed by implication or in any way amended or modified the method of assessment required by § 12-76.” (Emphasis added.) Id., 403.

The district attempts to distinguish Meriden because a special act provision is involved in this case. We conclude that the distinction is immaterial and adopt the rationale of Meriden.

Three factors buttress the conclusion that the General Assembly did not intend that the district’s water supply land in the town be favorably assessed by permitting it to sneak under the tent of a farmland classification under General Statutes § 12-107c.

First, General Statutes § 12-107b (a) defines “farm land” as “any tract or tracts of land, including woodland and wasteland, constituting a farm unit.” There is no such claim here. Second, the statutory factors for determining what is farmland under General Statutes § 12-107c (a) are clearly inapplicable to the district’s land in Barkhamsted. Third, as the Supreme Court observed in Johnson v. Board of Tax Review, 160 Conn. 71, 73, 273 A.2d 706 (1970): “It is thus clear that §§ 12-107a [through] e, as derived from Public Act 490, are as much conservation statutes as they are tax relief measures. The declaration of policy in § 12-107a recites, inter alia, that it is in the public interest ‘to conserve the state’s natural resources.’ Indeed, it would appear that the purpose of the tax relief is to aid the conservation effort. . . .” Since the district’s water supply-land is subject to restrictions on its sale, the conservation purpose of General Statutes § 12-107c would not be enhanced in any way by giving the benefit of the favorable farmland assessment to the district’s land. 20 Spec. Acts 1204, No. 511, § 53; see also General Statutes §§ 16-50c, 22a-355, 25-37a through 25-37g.

We conclude that General Statutes § 12-107c is inapplicable to the assessment of the district’s land in Barkhamsted.

Ill

The Standard of “Improved Farmland”

The trial court did not define the phrase “improved farmland.” The memorandum of decision merely cites the charter provision concerning assessment of improved farmland. The town argues that by basing its decision on the fair market value of other farmland in Litchfield County the court impliedly found that there was no improved farmland in the town. We do not reach the question of whether, in the absence of any improved farmland in the town, the court would have been justified in considering the factors that it did consider. In the absence of an appropriate definition employed by the trial court, there was no proper standard by which to weigh the facts presented by this record. Thus, the fundamental issue in the case was never considered.

The assessor spoke in assessor’s language, defining “improved farmland” as land “able to have a tractor go through and plant crops.” She acknowledged that she classified approximately 255 acres of Barkhamsted land as tillable C2, suitable for crop land. She relied on a “Recommended Use Values/Acre” notice from the state tax department which was concerned with values of land seeking the benefits of General Statutes §§ 12-107a through 12-107c. She concluded that there was no improved farmland in the town despite her knowledge of four working dairy farms on the list of farmland, assessed under No. 490 of the 1963 Public Acts, which she prepared for Kirk.

The appraiser, stipulated to be an expert land appraiser, spoke in appraiser’s language. He defined “improved farming land” as “prime crop land cleared, the absolute best farmland there is.” He applied the standard of fair market value. By his definition, he could find no improved farmland in the town except the land under the reservoir.

The district’s project engineer used both tillable C2 and pasture land in his computations since this was all of the assessed farmland available in the town. He testified that in his opinion these two categories of farmland “do come within the definition of ‘improved farmland.’ ” He did not specifically give his definition of “improved farmland.”

None of the definitions used at the trial is directly relevant to the statutory standard of improved farmland. Both the assessor and the appraiser considered farmland from the standpoint of its potential use. This is a practical everyday standard for the municipal assessor. Requiring assessments to change with various changed improvements on farmland would be a much more onerous task.

The fundamental problem here, however, is that “improved farmland” is a statutory term never before defined in Connecticut, and that all of the witnesses were marching to their own particular drummer.

The charter provides that water supply land of the district “shall” be assessed in the manner provided in the charter. “[T]he word ‘shall’ must be assumed to have been used with full awareness of its ordinary meaning.” Graham v. Zimmerman, 181 Conn. 367, 371, 435 A.2d 996 (1980). “Shall” is a word ordinarily creating a mandatory duty. Skulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29, 226 A.2d 380 (1967).

“[W]here the language of the statute is clear and unambiguous the courts cannot, by construction, read into statutes provisions which are not clearly stated.” Point O’Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 366, 423 A.2d 90 (1979); Holden & Daly, supra.

There is a dearth of authority on the definition of “improved farmland.” In Norwich v. Lebanon, 193 Conn. 342, 350, 477 A.2d 115 (1984), the Supreme Court referred to the statutory phrase found in General Statutes § 12-76 but did not define it. In O’Connell v. Remington, 102 Conn. 401, 407, 128 A. 710 (1925), the testator’s will provided that “at Dexter Remington’s decease the avails arising from the improvement of the farm” were to be equally divided between certain parties. The Supreme Court stated that “[i]n creating the life estates in Dexter, the testator obviously uses the word improve in its familiar sense of a beneficial use.” The court further stated: “We think the gift in question must be construed as a gift of the proceeds arising from the use or working of the farm.” O’Connell v. Remington, supra, 407.

In Johnson v. Frederick, 163 Ala. 455, 50 So. 910 (1909), § 12-47 of the Alabama code provided that partition fences between “improved lands” shall be erected at the joint expense of the occupants. The plaintiff sued the defendant to compel her to pay a portion of the expense of erecting a partition fence. The evidence was that the plaintiff had enclosed her lands with a wire fence, consisting of posts with four stands of wire attached thereto, and was and had been using her said lands as a pasture for her cows and horses. In confirming the trial court’s award to the plaintiff, the court stated: “The history of this legislation, as to the building of partition fences between lands of adjoining owners under certain conditions, and requiring the adjoining owners to pay for the same, seems to have had its origin in the colony of Massachusetts. There, and in other states of the Union where this legislation has been enacted, the term ‘improved lands’ has been held to mean lands appropriated by the owner and devoted to a particular use—used or employed to good purpose, or turned to profitable account. Wiggin v. Baptist Society, 43 N. H. 260, 261 [1861]. We therefore hold that appellant, having fenced her land in and devoted it to the use of pasturage for her cows and horses, and thereby turned it to profitable account, made it improved land within the contemplation of section 4247 of the Code.” Johnson v. Frederick, supra, 459.

The leading case in Connecticut involving the definition of “farmland” gives cogent guidelines for our task of interpretation in this case. In Johnson v. Board of Tax Review, 160 Conn. 71, 273 A.2d 706 (1970), the defendant board had sustained the assessor’s refusal to classify the plaintiffs’ land as “farmland.” The land was fully cultivated as a nursery. The trial court sustained the plaintiffs’ appeal, concluding that the land should have received preferential tax treatment under General Statutes §§ 12-107a through 12-107c as “farmland.” Although General Statutes § 12-107b is devoid of any specific definition of farmland, the court resorted to the general statutory definitions and common word usage to determine that cultivated nursery land constitutes “farmland” within the purview of General Statutes §§ 12-107a through 12-107c.

“Where a statute or regulation does not define a term, it is appropriate to focus upon its common understanding as expressed in the law and upon its dictionary meaning. The Hearst Corporation v. State Department of Assessments & Taxation, 269 Md. 625, 308 A.2d 679 (1973).” Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979).

Webster, Third New International Dictionary, defines the word “improve,” in part, as follows: “[T]o increase the value of (land or property) by bringing under cultivation, reclaiming for agriculture or stock raising, erecting buildings or other structures, laying out streets, or installing utilities as sewers (improved farmland).” The same dictionary defines “reclaim” in part as follows: “[T]o rescue from a wild or uncultivated state: make fit for cultivation or use.”

The International Association of Assessing Officers defines the term “improvement” as “[ajnything done to raw land with the intention of increasing its value. Thus, a structure erected on the property constitutes one very common type of improvement, although other actions, such as those taken to improve drainage, are also improvements. Although such cases are rarely intentional, ‘improvements’ can conceivably diminish the value of the land; note, however, that easements restricting the use and value of land are not considered improvements.” International Association of Assessing Officers, Improving Real Property Assessment, A Reference Manual, p. 425.

Applying Webster’s definition of “improve” to the definition of “farmland” derived from General Statutes § 1-1 (q), the essence of the test is that the land has been altered, changed or developed from its natural state, in a not inconsequential manner, in order to enhance or promote its use as farmland. Under this definition, the most virgin and rich Connecticut Valley farmland is not “improved farmland” if it has not been improved in some way. On the other hand, land of substantially less quality for farming may be “improved farmland” if a sufficient change from its natural state has occurred for farming purposes. Whether a particular parcel of land is “improved farmland” is, therefore, a question of fact for the trial court, to be determined by reference to this definition. The court must consider, under the totality of the circumstances, whether sufficient improvements in type, quantity or both have been made to all or part of a tract of land to justify such a classification. This case must therefore be remanded to determine the value of the district’s property in terms of the value of improved farmland.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The special act, as amended, is also known as and will be referred to as the charter of the district.

       By amendment dated June 28,1983, the district added the assessment years beginning on October 1, 1980, and October 1, 1981, to its original application.

       From this figure the value of the land is reduced, for tax purposes, by 30 percent as is done for all land. General Statutes § 12-62a (b).

       General Statutes §§ 12-107a through 12-107c provide a procedure for reduced assessments for farmland if certain criteria are met. A detailed discussion of these statutes is found in Part II B, infra.

       While the charter used the term “farming land,” General Statutes § 12-76 has used the term “farm land” since 1963. We consider these two terms to be synonymous. For simplicity, this opinion will refer throughout to “farmland” except where the term is used in quoted textual material.

       The relevant provisions of General Statutes §§ 12-107a through 12-107e were added as part of Public Acts 1963, No. 490. General Statutes §§ 12-107d and 12-107e provide mechanisms for obtaining “forest land” or “open space land” classifications, respectively. Those sections are, therefore, not involved in this case.

         Genera] Statutes § 12-76 was amended in an immaterial respect in 1978 and in 1982 the district charter was made explicitly subject to § 12-76. Public Acts 1982, No. 82-452, § 1.

       Although the district’s statement of issues claimed that the trial court misinterpreted the application of General Statutes § 12-63 to this case, the district concedes, in its brief, that General Statutes § 12-63 is inapplicable to this ease.

       In Torrington Water Co. v. Board of Tax Review, 168 Conn. 319, 362 A.2d 866 (1975), the Supreme Court upheld the trial court’s direction that the plaintiff’s land should be classified as forest land under General Statutes § 12-107d. The Supreme Court distinguished Meriden v. Board of Tax Review, 161 Conn. 396, 288 A.2d 435 (1971), since General Statutes § 12-76, as adopted in § 10 of No. 490 of the 1963 Public Acts, applied only to water supply land owned by municipalities. Since that case involved a private water company it is not germane to the issues in this case.

       The statutory definition of “farming” provided by General Statutes § 1-1 (q) leaves no doubt that “farmland” includes land used for a broad range of purposes: “Except as otherwise specifically defined, the words ‘agriculture’ and ‘farming’ shall include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, including horses, bees, poultry, fur-bearing animals and wildlife, and the raising or harvesting of oysters, clams, mussels, and other molluscan shellfish; the operation, management, conservation, improvement or maintenance of a farm and its buildings, tools and equipment, or salvaging timber or cleared land of brush or other debris left by a storm, as an incident to such farming operations; the production or harvesting of maple syrup or maple sugar, or any agricultural commodity, including lumber, as an incident to ordinary farming operations or the harvesting of mushrooms, the hatching of poultry, or the construction, operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for farming purposes; handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market, or to a carrier for transportation to market, or for direct sale any agricultural or horticultural commodity as an incident to ordinary farming operations, or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market or for direct sale. The term ‘farm’ includes farm buildings, and accessory buildings thereto, nurseries, orchards, ranges, greenhouses or other structures used primarily for the raising and, as an incident to ordinary farming operations, the sale of agricultural or horticultural commodities. . . .”


author: Daly, J.

text:
    John Nann v. Maria Elena Pignatelli, Executrix (Estate of Constance Wilcox Pignatelli)
    (2326)
    Hull, Spallone and Daly, Js.
    Argued October 9
    decision released December 25, 1984

      Robert K. Walsh, with whom, on the brief, was Dianne E. Dusman, for the appellant (plaintiff).

      Dean R. Singewald, for the appellee (defendant)'.
   Daly, J.

The plaintiff has appealed from a judgment of the trial court in favor of the defendant denying him specific performance and damages involving an option to purchase a lot.

The court found the following facts: The plaintiff, John Nann, is an insurance agent and a financial planner specializing in tax shelter plans. The defendant’s decedent, Constance Wilcox Pignatelli, was in her late seventies and blind at the time the 1973 agreement was entered into. At one time, by virtue of inheritances from the Wilcox family of Madison, she had had substantial land holdings. Through the years, she and her only child, Maria Elena Pignatelli, now her executrix, frequently found themselves short of funds and sold parcels of the land to generate cash.

The parties entered into a written agreement on December 26,1973, whereby the plaintiff secured options to purchase two lots owned by the defendant’s decedent in the Middle Beach Road West area of Madison. In return for the options, the agreement called for the plaintiff to lend the defendant’s decedent the sum of $5000, secured by a blanket mortgage on the subject lots. Interest on the loan was to be paid monthly at 8 percent. The option agreement provided that if the plaintiff were to exercise the first option, which concerns Lot No. 2, the $5000 loan would be applied toward the purchase price of $20,000, with the balance to be seller-financed in the form of a $15,000 purchase money mortgage. If the plaintiff were to exercise the second option, which concerned Lot No. 1, then the $15,000 purchase price would be similarly seller-financed with a purchase money mortgage.

Lot No. 1 was a landlocked parcel, bounded on two sides by other Pignatelli property. The plaintiff’s attorney had drawn up the 1973 agreement in such a way as to insure that Lot No. 1 would have access through Lot No. 2, since under the option agreement the plaintiff would be exercising his option to buy Lot No. 2 first. The option to buy Lot No. 1 had a year longer to run than the option on Lot No. 2.

As mortgagee, the plaintiff applied considerable pressure to the defendant’s decedent, and in January, 1975, demanded payment of the mortgage in full together with unpaid interest from the preceding year. The plaintiff agreed to withdraw his demand in return for having his options to purchase Lots No. 1 and No. 2 extended. The interest rate on the mortgage was increased from 8 percent to 10 percent a year, and payment in full was to be made no later than January 1, 1976.

In December, 1975, the plaintiff instituted foreclosure proceedings against the defendant’s decedent. Those proceedings were withdrawn in February, 1976, when the defendant’s decedent repaid the loan in full with the proceeds from the sale of another of her properties.

On June 15, 1976, the plaintiff notified the defendant’s decedent that he was exercising his option to purchase Lot No. 1. The option to purchase Lot No. 2 had already lapsed, on July 1, 1975. The plaintiff’s stated position at the time he chose to exercise his option to purchase Lot No. 1 was that he expected a twenty-five foot access to go along with it. The defendant’s decedent’s response was that the option to buy Lot No. 1 did not include a twenty-five foot right of way and that, in fact, it had been knowingly excluded. The defendant’s decedent contended that the parties had agreed that the plaintiff would have access through Lot No. 2, or that he would seek access elsewhere through the property of one of the abutting owners. A letter written by the plaintiff confirmed that he knew the option to purchase Lot No. 1 did not include a twenty-five foot right of way.

The defendant refused to comply with the plaintiffs demands, and would not sell him Lot No. 1. The plaintiff then instituted his action for specific performance of the contract for a conveyance of Lot No. 1 and monetary damages. The trial court found for the defendant, indicating that the plaintiffs failure to exercise the first option made the second option impossible to perform since an easement by necessity would be necessary.

The plaintiff first claims that the trial court erred in admitting parol evidence regarding the intent of the parties to contradict the unambiguous terms of the written contract for the sale of land. The law in Connecticut is that an objection must be made and an exception must be taken to make a ruling a ground for appeal. Practice Book § 288; Holden & Daly, Connecticut Evidence (1966 and Sup. 1983) § 13. The plaintiff did not appropriately object or take exception at the trial level. We thus will not consider the evidentiary ruling where no claim of error was preserved for review on appeal by proper objection and exception. State v. Braman, 191 Conn. 670, 684, 469 A.2d 760 (1983).

The plaintiff next argues that, as the defendant failed to show that obtaining an alternative right of way was a condition precedent to the existence of the contract, the plaintiffs inability to do so does not excuse the defendant’s refusal to perform. “Whether the performanee of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in the contract and read in the light of the circumstances surrounding the execution of the instrument.” Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645 (1970).

The option agreement did not contain any description of a right of way or access over other Pignatelli property bounding on the two lots. Together, the two lots offered the plaintiff access. If he chose to bypass the purchase of Lot No. 2, he left himself with an option to purchase a landlocked piece of property. The trial court specifically found that this was the bargained for agreement, and it did not find any condition precedent involving a right of way.

The plaintiff next claims that the court abused its discretion in failing to grant specific performance on equitable grounds. It is basic law that an action for specific performance of a contract to sell real estate is an equitable action and is to be determined by equitable principles. Morris v. Costa, 174 Conn. 592, 599, 392 A.2d 468 (1978). Parkway Trailer Sales, Inc. v. Wooldridge Bros., Inc., 148 Conn. 21, 25, 166 A.2d 710 (1960).

“Applications for specific performance of agreements to sell land are addressed to the discretion of the court which must determine upon the facts and under the circumstances whether the contract is fair, reasonable, on good consideration, free from fraud, surprise or mistake and made according to the requirements of the law. Sidor v. Kravec, 135 Conn. 571, 573-74, 66 A.2d 812 [1949]. As a general rule, equity, in deciding whether to grant specific performance in enforcing a contract, will consider the fairness of an agreement in accordance with the circumstances as they existed at the time of the execution of the contract even though the property contracted to be sold becomes considerably more valuable at the time performance is due.” Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 18-19, 420 A.2d 1142 (1979).

The plaintiffs uncontroverted testimony at trial was that he would not accept Lot No. 1 in a landlocked condition. Evidence was also received that the defendant’s decedent had no objection to selling Lot No. 1 to the plaintiff, the right of way aside. The trial court concluded that the plaintiff’s unwillingness to accept title to Lot No. 1, unless accompanied by a twenty-five foot wide access easement which had not been part of his option rights, prompted the defendant’s decedent’s nonaction in response.

Specific performance is a form of equitable relief which rests in the sound discretion of the court. Lanna v. Greene, 175 Conn. 453, 458, 399 A.2d 837 (1978). We cannot say that the trial court abused its discretion in refusing to order specific performance. See Hyman v. Nicholson, 14 Conn. Sup. 240 (1946).

The plaintiff’s last claim of error is that the trial court’s conclusion that the plaintiff rendered the second option impossible to perform by failing to exercise the first option is unsupportable in the law and by the facts of the case. The law is well settled that if a person promises absolutely, without exception or qualification, that a certain event shall take place and the thing to be done or the event is neither impossible or unlawful at the time of the promise, he is bound by his promise unless the performance, before that time, becomes unlawful. Straus v. Kazemekas, 100 Conn. 581, 588, 124 A. 234 (1924).

The trial court injected the issue of impossibility of performance although it was not raised in the pleadings. The facts here do not present a case of impossibility. There are grounds, however, to support the trial court’s decision. When sitting in equity, a court has broad discretion to act. If under the circumstances specific performance would be inequitable, which form of relief will be accorded rests in its sound discretion, depending upon the equities of the case, and based on reason and sound judgment. Schneidau v. Manley, 131 Conn. 285, 289, 39 A.2d 885 (1944). Although the trial court’s decision rests upon mistaken grounds, the result reached was correct for the reasons stated in this opinion and we, therefore, affirm the judgment rendered. Cheshire v. McKenney, 182 Conn. 253, 261, 438 A.2d 88 (1980); see Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978); Maltbie, Conn. App. Proc. § 36.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The defendant is the daughter of Constance Wilcox Pignatelli who died in late 1977 before this case went to trial. By motion, Maria Elena Pignatelli was substituted as party defendant.

       The letter, dated March 25, 1974, was from the plaintiff to Dennis O’Brien, a friend of and advisor to the defendant’s decedent. The pertinent portion of the letter states: “[M]ay I propose the following: I will provide the Pignatellis with a mortgage on the approved building lot on which I now hold a purchase option in exchange for two considerations. First, that I will be granted by Princess Pignatelli the right of way which the town has established through the cottages located on Middle Beach Road West, with the provision that the access as now established, will be moved to an easterly or westerly direction in the future, should it prevent that parcel of land on which the cottages are located from being developed as a building lot. The reason the Princess has expressed for her reluctance to grant this right of way in the past was based on her concern that as it has been established by the town, it would prevent her from utilizing (or selling) this parcel as a building lot.”


author: Borden, J.

text:
    State of Connecticut v. Curtiss Heinz
    (3382)
    Hull, Borden and Spallone, Js.

      Argued October 9
    decision released December 25, 1984

      Vincent J. Trantolo, for the appellant (defendant).

      CarlSchuman, assistant state’s attorney, with whom, on the brief, were Rosita Creamer, assistant state’s attorney, and Maureen Platt, deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

This case comes to us on a remand from the Supreme Court. That court had granted petitions for certification by both the state and the defendant from a decision of the Appellate Session of the Superior Court; State v. Heinz, 38 Conn. Sup. 570, 455 A.2d 346 (1982) (Heinz I); and, after resolving the claims raised by the petitions, it remanded the case to this court for consideration of other claims of error which neither the Supreme Court nor the Appellate Session had had the occasion to resolve. State v. Heinz, 193 Conn. 612, 631, 480 A.2d 452 (1984) (Heinz II).

The facts of the case have already been stated in the two previously reported decisions and need not be fully repeated here. Suffice it to say that they involve four performances by female “exotic” dancers at a cafe in East Hartford known as the Venus Lounge, of which the defendant was the liquor permittee. Two of the performances took place on December 19,1979, when the defendant was on the premises, and two on January 9, 1980, when he was not seen on the premises. The defendant was convicted of four counts of promoting an obscene performance in violation of General Statutes § 53a-194. The four counts correspond to the four performances.

The procedural history of this case is also documented in the two previous decisions and need not be described at length here. In short, the defendant appealed to the Appellate Session which held that counts two, three and four should be dismissed, and that a new trial was required on count one. Heinz I, supra. Thereafter, the Supreme Court granted the defendant’s petition for certification to appeal from the decision of the Appellate Session on count one and the state’s petition for certification to appeal from the decision of the Appellate Session on counts three and four.

The Supreme Court found no error on the defendant’s appeal, found error on the state’s appeal and remanded the case to this court for resolution of the defendant’s claims of error on counts three and four. Heinz II, supra. The posture of the case upon its arrival in this court, therefore, is that a new trial is required on count one, count two is to be dismissed, and the defendant’s remaining claims of error must be addressed. On those claims, we find error.

I

The first issue requires little discussion. The state concedes that the evidentiary error found by the Appellate Session on count one and affirmed by the Supreme Court; see Heinz II, supra, 627-28; also applies to counts three and four, but it attempts to persuade us that we should hold the error harmless as to those counts. Because we find other errors requiring a new trial on counts three and four, which errors involve issues which are likely to recur, and because it is not likely that this evidentiary error will recur, we need not consider the state’s argument. See footnote 2, supra.

II

The defendant argues that the court erred in restricting his cross-examination of two of the state’s principal witnesses, Robert F. Kenary of the East Hartford police department and James Malcolm of the Hartford police department. We agree.

Kenary was assigned to investigate the activities at the Venus Lounge with Malcolm, who was unknown in East Hartford, assisting him. Their testimony on direct examination described in detail the performances of January 9, 1980.

The trial was conducted in February, 1981, approximately fourteen months after the night in question. Kenary used his affidavits, which he had prepared the day after his observations, to refresh his recollection of many of the details of the performances. Malcolm testified solely from memory. Neither had made any notes at or after leaving the Venus Lounge that night.

Kenary testified on cross-examination that after leaving the Venus Lounge they went to investigate another cafe in East Hartford known as Pompei’s, where they observed two performances by female dancers. He also testified that he had three beers at the Venus Lounge, three beers at Pompei’s, and one beer at home after going off duty that night. Malcolm testified on cross-examination that he had three or four beers at the Venus Lounge, and that he had a total of six beers that night at both the Venus Lounge and Pompei’s within a period of two and one quarter hours.

The defendant’s principal challenge to the evidentiary rulings of the court involve his attempts to elicit from Kenary and Malcolm testimony regarding the effect of this consumption of alcohol on their abilities to recall what they observed that night. The defendant attempted to ask Kenary in effect whether the alcohol he had consumed could have affected his ability to recall what he observed that night and thus what he wrote the next day in his affidavit. In a similar vein, the defendant attempted to cross-examine Malcolm by inquiring into his experience with alcohol as a police officer, and by asking him about the effect of alcohol on the ability to recall. The court sustained the state’s objections, and the defendant duly excepted.

The defendant claims that these rulings limiting his cross-examination of Kenary and Malcolm deprived him of the right of confrontation provided by the sixth and fourteenth amendments to the United States constitution. Although we do not think that they rise to the level of a constitutional violation, we conclude that under the particular facts of this case they were an abuse of discretion by the trial court.

“ ‘The right of an accused to effectively cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment. . . . The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.’ ” (Citations omitted.) State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984). “The constitutional standard is met when defense counsel is ‘permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ ” State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980), quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Thus, a claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis: whether the constitutional standard has been met, and, if so, whether the court nonetheless abused its discretion. State v. Gaynor, supra, 509-10.

Here, the constitutional standard was met. The defendant was permitted to bring before the jury the facts that Kenary had seven and Malcolm had six beers the night of January 9,1980, and that Kenary prepared his affidavits, on which he relied in his testimony, the next day. The confrontation clause does not require that the defendant be permitted also to elicit from the officers the opinion that consumption of alcohol during and after observing something can affect one’s ability accurately to observe and later recall what one observed. This is so, however, not because, as the trial court ruled, there is no such effect. It is so because it is an effect which is common knowledge and is an inference which is clearly within the ability of the jurors, as laypersons, to draw based on their own common knowledge and experience. The jury may, without the aid of expert testimony, use the consumption of alcohol as a basis on which to infer impairment of ability to observe and recall accurately. D’Amato v. Johnston, 140 Conn. 54, 58, 97 A.2d 893 (1953) (intoxication and its accompaniments are a matter of general knowledge); McCormick, Evidence (2d Ed.) § 45 n.23; see also Prisk v. State, 137 Conn. 35, 36, 74 A.2d 462 (1950). Therefore, while this was evidence which the trial court could, in its discretion, have permitted, we do not find that it violated the defendant’s rights under the sixth and fourteenth amendments by declining to do so.

This leaves the question of “whether the trial court abused its discretion in restricting the scope of cross-examination. ‘To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [his] cross-examination were clearly prejudicial.’ . . . ‘The purpose of such cross-examination is to test the credibility of the witness and the accuracy and reasonableness of his direct testimony.’ ” (Citations omitted.) State v. Gaynor, supra, 510. A combination of factors persuades us that the court not only “would have been well advised to have exercised its discretion in favor of permitting the inquiry”; State v. Asherman, supra, 721; but also that it abused its admittedly “wide discretion in fixing the limits of cross-examination . . . on the issue of credibility”; State v. Miller, 186 Conn. 654, 670, 443 A.2d 906 (1982); in barring that inquiry.

First, Kenary’s and Malcolm’s descriptions of the performances were critical to the state’s case. Whether a particular performance is obscene depends necessarily on a number of important factors, one of which is the relation to the entire performance of those parts of it which are sexually explicit. See Miller v. California, 413 U.S. 15, 24, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973); State v. Andrews, 150 Conn. 92, 97, 186 A.2d 546 (1962). Thus, the extent to which Kenary and Malcolm could accurately observe and later recall the details of that performance and the relation of those details to the entire performance were important to their credibility as witnesses.

Second, Kenary’s and Malcolm’s testimony formed the factual basis of the opinions of the other witnesses for the state that the performances were obscene. This was not a case, like one involving a book or movie, in which the jury could view the allegedly obscene material. Cf. State v. Gagliardi, 174 Conn. 46, 381 A.2d 1068 (1977). It had to depend, first, on Kenary’s and Malcolm’s testimony, tested under the flame of cross-examination, and second, on the opinions of those other witnesses based on hypothetical questions incorporating that testimony. Even when one has the material at hand the decision of obscenity vel non, which implicates the first amendment, is not ordinarily simple and straightforward. Where, as here, the material is supplied only through verbal description by witnesses, the accuracy of that description should be subject to a wide latitude on cross-examination.

Third, the trial court, in the manner in which it sustained the state’s objections, essentially ruled out of the case any inference which the jury might otherwise have been willing to draw about the effect of alcohol on Kenary’s and Malcolm’s abilities to observe and recall and on the reliability of their testimony, based as it was on observations made before and while drinking. In the presence of the jury, the court twice remarked that the number of beers consumed by Kenary had no bearing on his ability to prepare his affidavit the next day, and once remarked that the defendant’s cross-examination on the effect of Malcolm’s drinking was limited to a claim that Malcolm was intoxicated or under the influence of liquor. The jury should have been permitted to draw whatever inferences it deemed to be reasonable about the effect of that consumption of alcohol, without the burden of those remarks by the trial court barring or limiting such inferences.

We agree with the state that “[t]he inferences which the defendant attempted to elicit from the [witnesses] are so obvious that they could as readily be drawn by the jury . . . State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984); but the difference here is that, because of the manner of the court’s rulings, those inferences could not be “as well articulated by the defendant’s counsel in his summation.” Id. Indeed, our examination of that argument indicates that his counsel, in apparent deference to the court’s remarks, avoided arguing those obvious inferences. We have, moreover, examined the entire cross-examination of Kenary and Malcolm, as we must in passing on a claim of undue restriction of cross-examination. State v. Asherman, supra. That examination does not alter our conclusion that the trial court abused its discretion in this case.

Ill

The defendant next argues that the trial court unduly restricted his cross-examination of another of the state’s key witnesses, Mary Ann Pressamarita, with regard to four separate but related series of questions. We agree that the court erred on two of those series, but we find no error on the other two.

The state presented Pressamarita as an expert witness to give her opinion that the performances were obscene. On direct examination, presented by the state and through a limited voir dire by the defendant directed at her competence as an expert, she testified essentially as follows: She is an East Hartford housewife who belongs to several organizations which concern themselves with the issue of obscenity. One such statewide organization is Connecticut Citizens for Decency (CCD), of which she was a founder and which has 1400 members from throughout the state, representing seventy towns. CCD meets two or three times per year in order to discuss how to fight pornography, and through her membership in it she has become familiar with the contemporary community standards prevailing in the state. She is a religious, conservative Catholic. Any good, moral person would be offended by nudity and sex. Her opinion regarding the contemporary community standards is not colored by her religious beliefs.

In response to hypothetical questions summarizing the descriptions of the performances supplied by Kenary and Malcolm, Pressamarita gave her opinion, based on her experiences and the community standards, that the performances described were obscene.

A

The first series of rulings on cross-examination of Pressamarita of which the defendant complains concerns his attempt to inquire into her membership in a religious organization known as the Blue Berets. She testified on cross-examination that, in addition to the CCD, she was a member of that organization, which is concerned with obscenity.

The defendant asked two questions: “What is the Blue Berets?” and “How did the Blue Berets get their name?” The basis of the defendant’s questions was to test whether her membership in the Blue Berets had any significance on the opinion she gave on direct examination. The court sustained the state’s objections on the basis that the witness need not answer questions about her religious beliefs or associations, and the defendant excepted.

In connection with these questions the defendant made a documentary offer of proof by way of marking for identification several newspaper articles and letters to the editor, one from Pressamarita. These articles and letters described the Blue Berets.

The gist of these documents is as follows: She and the Blue Berets believe that the Virgin Mary gives them messages through miraculous Polaroid instant photographs. The Virgin Mary commands that they use Polaroid in order to preclude darkroom fraud and to demonstrate the authenticity of the images of Jesus, Mary, St. Michael, St. Theresa, Satan and another demon known as Fat Lips, expected to appear in the photographs. The name of the group derives from the Virgin Mary’s instruction to them to wear blue berets in order to symbolize their membership in heaven’s army. The Virgin Mary gives them instructions through the trances of Veronica Leuken, a housewife in Bayside, New York, where the group goes periodically for vigils at a styrofoam likeness of the Virgin Mary. The Blue Berets have pressured the East Hartford town council into passing “a tough anti-smut” law. The CCD is a political arm of the Blue Berets.

Pressamarita is quoted in these documents as follows: “The blue berets are a sign, among other things, that we are submissive to our husbands. ... We feel women should be home, raising their families.” “We look like a bunch of fanatics, a bunch of nuts. ... We don’t care—we’re fools for Christ.” “We are going to start calling ourselves Connecticut Citizens for Public Decency. ... We have lots of friends in the Protestant community who believe in the things we believe in. It’s not just Catholics.”

This record convinces us that, by sustaining the objections to the defendant’s questions, the court did not permit the “defense counsel . . . ‘to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ ” State v. Gaynor, supra, 509. Thus, the court’s rulings violated the defendant’s “ ‘right . . . effectively [to] cross-examine an adverse witness . . . embodied in the confrontation clause of the sixth amendment.’ ” State v. Asherman, supra, 718.

Pressamarita was offered as an expert witness on the critical issue of whether the performances in question violated statewide contemporary community standards. The basis of her knowledge of those standards was her connection with the CCD. The defendant’s offer of proof demonstrated a close connection between the CCD and the Blue Berets, and that in fact the two groups may be essentially one. The offer also demonstrated that the members of the Blue Berets, including Pressamarita, hold attitudes and beliefs, however sincere, which the jury could find to be at variance with community standards. At the least, it offered a basis on which the jury could find that Pressamarita’s testimony regarding those standards was not reliable. The defendant was entitled to attempt to convince the jury that Pressamarita’s view of those standards was inaccurate, and that her opinions about the performances were based, not on those standards, but on her own private views, as expressed through the Blue Berets. Without this critical information, the jury was deprived of the necessary facts from which it could appropriately draw inferences about Pressamarita’s reliability. See State v. Gaynor, supra.

We recognize that ordinarily a witness’ religious beliefs are not a proper subject of inquiry on cross-examination, unless their relevance to a substantive issue in the case outweighs the witness’ interest in privacy and the danger of prejudice. McCormick, Evidence (2d Ed.) § 48; see Part II B, infra. Here, however, the questions were neither aimed at nor framed in terms of Pressamarita’s religious beliefs. They sought to show that her direct testimony was based, not on the contemporary community standards with which she professed to be familiar through the CCD, but on a set of beliefs inconsistent with those standards. The fact that the Blue Berets, which vivifies her beliefs, is religious in origin could not shield Pressamarita from an inquiry designed to illuminate that inconsistency.

B

The defendant’s next claim more directly implicates the question of the propriety of cross-examination of Pressamarita regarding her religious and moral beliefs. She had testified on direct examination that her opinion regarding the contemporary community standards was not colored by her own religious beliefs. On cross-examination she testified without objection that her opinion was based on her moral beliefs and that her religious beliefs did have an effect on her opinion of whether the performances described to her were obscene.

The defendant then asked her five questions aimed at her moral and religious beliefs, to which the court sustained the state’s objections. The defendant duly excepted.

The religious beliefs of a witness are generally not a proper subject of cross-examination for the purpose of impeaching her credibility. People v. Baseer, 90 Ill. App. 3d 866, 414 N.E.2d 5 (1980); McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570 (1934); 27 A.L.R.4th 1167, 1168. Such an inquiry is ordinarily irrelevant to the issues at hand, inflammatory and unduly prejudicial. Contemporary Mission, Inc. v. Bonded Mailings, 671 F.2d 81, 84 (2d Cir. 1982); United States v. Sampol, 636 F.2d 621, 666 (D.C. Cir. 1980); State v. Thomas, 130 Ariz. 432, 636 P.2d 1214 (1981); State v. Duke, 362 So. 2d 559, 560-61 (La. 1978).

This general prohibition against cross-examination on one’s religious beliefs is not absolute, however. Such cross-examination is permissible, in the court’s discretion, if it is relevant to the substantive issues of the case and if its relevance outweighs any prejudicial effect and the privacy interest of the witness. McCormick, Evidence (2d Ed.) § 48; 8 Wigmore, Evidence (McNaughton Rev.) § 2213; 27 A.L.R.4th 1167, 1172-73; 76 A.L.R.3d 539, 548 n.20; see, e.g., Asbill v. State, 390 So. 2d 1168 (Ala. App. 1980); Commonwealth v. Mimms, 232 Pa. Super. 486, 492-96, 335 A.2d 516 (1975) (Hoffman, J., dissenting); McKim v. Philadelphia Transportation Co., 364 Pa. 237, 72 A.2d 122 (1950); Allen v. Guarante, 253 Mass. 152, 148 N.E. 461 (1925). Furthermore, cross-examination about religious beliefs is proper if the topic was raised on direct examination, even if it would otherwise be inadmissible. People v. Baseer, supra, 871-72; People v. Umerska, 94 Mich. App. 799, 807-808, 289 N.W.2d 858 (1980); 27 A.L.R.4th 1167, 1173.

We are not persuaded that exclusion of the answers to these questions amounted to a violation of the defendant’s constitutional right of confrontation. We are persuaded, however, that for a coalescence of reasons the trial court abused its discretion in excluding those answers.

First, the question of whether Pressamarita’s religious beliefs affected her opinions on obscenity was raised by the state in her direct examination, when she asserted that her opinions were not so affected. Thus the truthfulness of that assertion was fair game for cross-examination.

Second, the nature of Pressamarita’s testimony on direct examination was not simply what she had observed. Her testimony was an opinion on the obscenity of a performance, a matter which is itself fraught with moral overtones. Furthermore, her testimony was laced with moral judgments. She testified that any good, moral person would be offended by nudity and sex, that the performance would shock, repel or disgust the average Connecticut resident, that the performance was an affront to public decency and demoralizing to the community, and that it expressed ideas, “but not good ones.”

Third, Pressamarita’s testimony was central to the question to the defendant’s guilt or innocence, since the challenged material was not before the jury in this case. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973). It therefore had to rely on the description of the performances by Kenary and Malcolm, and the characterization of that description by Pressamarita and the other two expert witnesses offered by the state.

Finally, the defendant’s offer of proof about the Blue Berets and Pressamarita’s central role in that group afforded a substantial basis for an inference that her moral and religious beliefs are intertwined with an active attempt to combat what she considers obscene. Thus the jury, had it had access to her connection with that group and its beliefs, could have entertained doubt about the objectivity of her opinions.

C

We consider the defendant’s final two evidentiary claims together. One concerns the exclusion of his attempt to cross-examine Pressamarita about the efforts of the CCD to have a particular book removed from schools. The other concerns the exclusion of his attempt to cross-examine her about her son’s arrest for public indecency and whether she considered his conduct obscene. As to both, the trial court was clearly within its discretion, since they both were collateral matters likely to “ ‘confuse rather than to illuminate the case.’ ” State v. Gaynor, supra, 511.

In accordance with the remand of the Supreme Court in State v. Heinz, 193 Conn. 612, 480 A.2d 452 (1984), on count one, the judgment is set aside and the case is remanded for a new trial. In accordance with the remand of the Appellate Session in State v. Heinz, 38 Conn. Sup. 570, 455 A.2d 346 (1982), on count two, the judgment is set aside and the case is remanded with direction to dismiss that count.

There is error as to counts three and four, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Appeals formerly filed in the Appellate Session of the Superior Court have been transferred to the Appellate Court by Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3; General Statutes § 51-197a.

       The defendant also claimed error in the trial court’s failure to grant his motion to correct an illegal sentence and in its charge to the jury regarding the effect of a regulation of the liquor control commission. Because we find error on counts three and four, necessitating a new trial, we need not reach the claim criticizing the sentence. Likewise, upon examination of the claimed error in the charge to the jury, we conclude that it is unlikely this particular situation will recur at the new trial, and we do not reach that issue here. Jacques v. Carter, 2 Conn. App. 27, 35 n.5, 476 A.2d 621 (1984). We express no opinion on the merits of these claims.

       In Ms brief, the defendant appears to argue that the trial court also erred in restricting his attempt to cross-examine Kenary and Malcolm about whether they might have confused the performances at Pompei’s with those at the Venus Lounge. The particular rulings which he cites in support of this argument, however, involve questions about their consumption of alcohol and its effect, and do not involve that possible confusion. We therefore consider only these rulings.

       We reject the state’s initial argument that the defendant’s claim is not reviewable because he did not make a formal offer of proof. We know of no such requirement as a precondition of review of a claimed error in restricting cross-examination. The cases relied on by the state; State v. Gooch, 186 Conn. 17, 24, 438 A.2d 867 (1982); State v. Rodriguez, 180 Conn. 382, 393, 429 A.2d 919 (1980); involved evidence excluded on direct examination. Furthermore, the defendant made quite clear the grounds of his claim to the admissibility of the evidence which he sought to elicit. See Practice Book § 288.

       We are reminded of Justice Stewart’s famous dictum: “I have reached the conclusion . . . that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964) (Stewart, J., concurring).

       General Statutes § 53a-193 (a) provides in pertinent part as follows: “Whether a material is obscene shall be judged by ordinary adults applying contemporary community standards. In applying contemporary community standards, the state of Connecticut is deemed to be the community.”

       The court stated as follows: “I think I can protect the witness in this case. No witness in my court ever has to answer any questions about religious organizations or associations which they are part of. I would claim that refusing to answer or just reluctance to answer would be safeguarded under the Constitution and under the rules of this court. And if a witness, for any reason, declines to answer, I think that would be acceptable. On the other hand, if a witness has no hesitancy about it, what’s the harm? ... I would simply point out to the witness that in my court, it’s not that you have any basis for being sensitive about it but I would protect any witness without their asking the Court for protection on any question of religious affiliation or a witness has a right to decline to answer, as far as I’m concerned. And so that you may avail yourself of that privilege without any hesitation at any point and decline to answer the question, on that basis.” Pressamarita, following the court’s remarks, declined to talk about her religious beliefs.

       The exhibits for identification also contain an open letter from Pressamarita to Archbishop John P. Whealon decrying his apparent admonition to Catholics to “stay away” from Lueken’s shrine, which is not approved by the local bishop.

       These five questions are as follows: (1) “I take it, ma’am, that although your decision and the answers that you gave [the assistant state’s attorney] were in fact based in part on your religious beliefs, you do not want to discuss your religious beliefs in this courtroom?”
      (2) After Pressamarita testified that she considered herself an activist in the area of obscenity and pornography: “Okay, and is it not true that that activity, to a great extent, is based upon your strong belief that you have a calling from God ... to eliminate obscenity and profanity in our society?”
      (3) “Don’t your religious beliefs bias your opinion ... on the obscenity?”
      (4) Following Pressamarita’s testimony that part of her opinion was based on her moral beliefs, and that there is a difference between her moral and her religious beliefs: “Do you feel that your morality in any way is affected by your personal religious beliefs?”
      (5) “Do you feel you have a strong moral calling from God?”

       Having examined the entire cross-examination of Pressamarita, we reject the state’s argument that there was enough other material brought out on cross-examination for the jury adequately to gauge her credibility. We also find no need to consider the state’s argument that the error, if any, was harmless. The practical significance of the “harmless error” rule is to determine whether an error requires a new trial. Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982). We have already decided that a new trial is required. The purpose of our inquiry here is simply to rule on issues which are likely to recur, in order to give guidance to the trial court at that new trial.


text:
    Melvin Daniels v. New Haven Police Department et al.
    (2121)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued November 6, 1984
    decision released January 1, 1985

      Francis X. Dineen, with whom, on the brief, was Deborah Morgan, for the appellant (plaintiff).

      Jane S. Scholl, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, Bernard, F. McGovern, Jr., and Richard J. Lynch, assistant attorneys general, for the appellee (defendant commission on human rights and opportunities).
   Borden, J.

Because of the unique way in which this administrative appeal was filed in the trial court and because of the confused state of the record, we are constrained to rely on representations in the parties’ briefs, and at oral argument in this court, to reconstruct its procedural history.

The plaintiff filed a complaint with the defendant, the state commission on human rights and opportunities, alleging employment discrimination against him by the New Haven police department and Council 15, New Haven Police Department Union, Local 530. The commission dismissed the complaint on May 27,1982. The plaintiff filed an application to reconsider, which the commission denied on February 24, 1983.

On March 25,1983, the plaintiff filed with the Superior Court a document entitled “Motion to Appeal from Administrative Decision,” accompanied by a lengthy “Memo in support of Motion to Appeal from Administrative Decision.” The document contained no citation or return date. It did contain the following legend, signed by the plaintiffs attorney: “I certify that copies have been given to all counsel.” In fact, however, a copy was sent, by certified mail, only to the office of the attorney general, counsel for the commission. No copies were sent to or served on the police department or the union which, to this day, are unaware of this case.

On April 14, 1983, the attorney general filed his appearance for the commission. On April 18,1983, the case appeared on the short calendar, but it does not appear that the attorney general had received notice of the short calendar session. Before the court at this session was the plaintiff’s “Motion to Appeal from Administrative Decision.” The plaintiff requested that the court take the case on the papers. The court did so and, sua sponte, rendered judgment dismissing the case. Thereafter, in response to the commission’s motion for rectification for appeal, the court articulated the bases of its judgment to be, inter alia, that a petition had not been served on the parties, that the form of the appeal was improper, and that there was no evidence of service of the appeal or return of it to court. The plaintiff appealed.

We adopt the reasoning of the Appellate Session of the Superior Court that an administrative appeal under General Statutes § 4-183 requires a proper citation, and that failure to cite a necessary party to the appeal renders the appeal dismissable for lack of jurisdiction. Board of Education v. State Board of Education, 38 Conn. Sup. 712, 716-17, 461 A.2d 997 (1983). Here, what the plaintiff purported to present as an appeal to the trial court had no citation, and failed to cite in the police department and the union, both of which were necessary parties.

There is no error.

In this opinion the other judges concurred.

       We note that the attorney presenting the plaintiff’s oral argument in this court is not the same attorney who filed this document in the trial court and who submitted the plaintiff’s brief in this court.

       Although this lack of service does not appear in the record, counsel for the plaintiff, with commendable candor, disclosed this to us at oral argument.

       The plaintiff did not claim in his preliminary statement of issues under Practice Book § 3012, or in his brief, any error in the court’s dismissal of the case without prior notice to him that it was considering such action. Furthermore, in oral argument in this court his counsel, again with commendable candor, specifically disclaimed reliance on any such claim.

       The appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).


author: Spallone, J.

text:
    Commissioner of Environmental Protection v. Lake Phipps Land Owners Corporation
    (2223)
    Hull, Spallone and Daly, Js.
    Argued November 6, 1984
    decision released January 1, 1985

      David M. Reilly, for the appellant (defendant).

      Jeffrey M. Sachs, special assistant corporation counsel, with whom, on the brief, was Victor P. Fasano, special assistant corporation counsel, for the appellee (third party defendant).
   Spallone, J.

This is an appeal by the third party plaintiff, Lake Phipps Land Owners Corporation (hereinafter corporation), from the trial court’s judgment dismissing its third party complaint against the third party defendant, city of West Haven (hereinafter city).

The original action was filed by the plaintiff commissioner of environmental protection (hereinafter commissioner) against the corporation seeking a permanent injunction mandating that the corporation comply with an order of the commissioner requiring it to repair three dams it owns in the city of West Haven. The corporation then filed an impleader action against the city, alleging that the city is or may be liable to the commissioner because some construction projects by the city worsened the condition of the dams.

The city filed a motion to dismiss challenging the sufficiency of the third party complaint. The trial court granted the motion to dismiss because the corporation failed to allege that the city was liable to the corporation for all or part of the commissioner’s claim against the corporation, that the third party complaint did not set forth a cause of action premised on secondary liability and that the third party action is separate and distinct from the main action and is therefore inappropriate for impleader. The trial court, treating the motion to dismiss as a motion to strike, dismissed the third party complaint.

The third party complaint was correctly dismissed because, by its very language, it failed to meet the requirements of General Statutes § 52-102a and Practice Book § 117. Senior v. Hope, 156 Conn. 92, 97, 239 A.2d 486 (1968).

Connecticut General Statutes § 52-102a (a) provides in pertinent part that “[a] defendant in any civil action may move the court for permission ... to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” An impleading party has the burden of alleging facts sufficient to bring an action within the requirements of the statute. Senior v. Hope, supra, 98. As a fundamental and threshold requirement, a third party plaintiff must allege that the third party defendant is or may be liable to the third party plaintiff for all or part of the plaintiff’s claim against him.

In this case, the amended third party complaint alleges that “the City of West Haven is or may be liable to the plaintiff for all or part of the plaintiff’s claim against the third party plaintiff.” This language is clearly incorrect and fails to meet an essential allegation mandated by the statute.

The complaint should have alleged that the city of West Haven is or may be liable to the third party plaintiff corporation, not the plaintiff commissioner. The omission of an essential allegation to a statutory action sufficiently supports the trial court’s dismissal of the third party complaint. Therefore, we need not discuss the court’s other reasons for granting the dismissal.

There is no error.

In this opinion the other judges concurred.

       The amended third party complaint is in three counts. Paragraph 7 of the first count provides that “[t]he City of West Haven is or may be liable to the plaintiff for all or part of the plaintiffs claim against the third party plaintiff . . . .” Paragraph 4 of the second count provides that “[t]he City of West Haven is or may be liable to the plaintiff for all or part of the plaintiff's claim against the third party plaintiff . . . .” Paragraph 5 of the third count provides that “[t]he City of West Haven is or may be liable to the plaintiff for all or part of the plaintiffs claim against the third party plaintiff . . . .”

       A motion to dismiss is an improper vehicle to challenge the propriety of an impleader complaint. Practice Book § 143. An attack upon the sufficiency of an impleader complaint should be made by a motion to strike. That motion is used to test the legal sufficiency of a complaint, counterclaim or cross-claim, or of any count thereof, to state a claim upon which relief can be granted. Practice Book § 152. The trial court treated the motion to dismiss as a motion to strike, and we do the same.

       The language of Practice Book § 117 is virtually identical to that of General Statutes § 52-102a.


author: Per Curiam.

text:
    Winifred A. Kloter v. Carabetta Enterprises, Inc.
    (2758)
    Hull, Borden and Spallone, Js.
    Argued November 15, 1984
    decision released January 1, 1985

      Stephen T. Gionfriddo, for the appellant (defendant).

      Jerome D. Levine, for the appellee (plaintiff).
   Per Curiam.

The principal issue in this appeal is whether the plaintiff in a nuisance action may obtain both damages for the reduction in the value of her land and mandatory injunctive relief to remove the cause of the damage. Under the circumstances of this case, we find no error in the trial court’s judgment granting both remedies.

In 1968, the defendant corporation built an apartment complex on land which it owned adjacent to the plaintiffs property in Vernon. During construction, the defendant installed a culvert which collected storm and surface water from its land and discharged that water directly onto the plaintiff’s land. The plaintiff filed the present action in nuisance in 1977 and a default judgment was rendered against the defendant on January 7, 1980. The defendant moved for a hearing in damages at which the plaintiff was awarded $18,000 with costs. The defendant appealed that award, for reasons not pertinent here, and the Supreme Court remanded the case for a new hearing in damages. Kloter v. Carabetta Enterprises, Inc., 186 Conn. 460, 442 A.2d 63 (1982).

At the second hearing in damages, the court awarded the plaintiff $16,436, representing the difference between the value of the land before and after the defendant added its culvert. The court also awarded the plaintiff permanent injunctive relief, directing the defendant to seal up its culvert and further enjoining it from installing any other system or device to divert water onto the plaintiff’s land. The defendant asserts, primarily, that the award of both damages and injunctive relief was improper. The defendant also raises three other minor claims of error, only one of which merits comment.

It is clear that the plaintiff may obtain both damages and injunctive relief in a case such as this. The case of Berin v. Olson, 183 Conn. 337, 439 A.2d 357 (1981), which involved damages to the plaintiff’s property caused by water flowing from the defendant’s land, is exactly on point. There the court stated “[t]he defendants also contend that an adequate remedy at law existed, as evidenced by the fact that the plaintiff was awarded damages, and because the plaintiff could keep coming back to the courts for damages if he should sustain any further injury by the defendants’ acts. The fact that the court awarded damages does not preclude the plaintiff from receiving injunctive relief. See Taylor v. Conti, [149 Conn. 174, 181, 177 A.2d 650 (1962)] (award of both damages and injunctive relief); 42 Am. Jur. 2d, Injunctions § 40, p. 780; 5 Clark, Waters and Water Rights § 458. ‘For over one hundred years in this state, we have recognized the general power of equity to afford relief by injunction and damages for injury caused by a nuisance created by the unreasonable conduct on one’s own property of an otherwise lawful activity. . . .’ Nair v. Thaw, 156 Conn. 445, 451-52, 242 A.2d 757 (1968) (award of money damages and injunction restraining certain activity of the defendant). ‘A remedy at law, to exclude equity jurisdiction, must be as complete and beneficial as the relief in equity.’ Beach v. Beach Hotel Corporation, 117 Conn. 445, 453, 168 A. 785 (1933); Winestine v. Rose Cloak & Suit Co., 93 Conn. 633, 638, 107 A. 500 (1919).” Berin v. Olson, supra, 341-42.

In this case, the wrong to the plaintiff would continue if the defendant’s actions were not enjoined. Thus, the plaintiff is entitled both to damages for the injury which has already occurred and to an injunction to prevent further such injuries.

As to the defendant’s final claim of error, that the trial court was biased against it, a careful examination of the portion of the transcript excerpted by the defendant to demonstrate its claim shows the claim to be entirely baseless. Such a reckless attack on the trial judge does not advance the cause of justice.

There is no error.