author: O’CONNELL, J.

text:
    IROQUOIS GAS TRANSMISSION SYSTEM ET AL. v. HENRY J. MILESKI
    (14448)
    Dupont, C. J., and O’Connell and Landau, Js.
    Argued June 4
    officially released September 10, 1996

      Walter A. Flynn, Jr., with whom, on the brief, was George J. Markley, for the appellant (defendant).

      James Wu, with whom, on the brief, was Brian R. Shagan, for the appellee (plaintiff).
   O’CONNELL, J.

The defendant, Henry Mileski, appeals from the judgment of the trial court rendered in accordance with a condemnation committee’s report. Mileski claims that the court improperly rendered judgment because the committee (1) engaged in irregular or improper conduct in the performance of its duties, (2) failed to make an independent determination of value and fair compensation, (3) failed to use the “before and after” method of valuation in determining damages, (4) did not consider severance damage, and (5) did not consider the highest and best use of the property, and that the trial court improperly considered Mileski’s failure to file a motion to correct the committee report pursuant to Practice Book § 438. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiffs, Iroquois Gas Transmission System, L.P., and Iroquois Gas Transmission System, Inc. (collectively Iroquois), were in the process of laying a pipeline to transmit natural gas from Canada through New York and Connecticut across Long Island Sound to a terminus on Long Island. In the course of establishing this route, Iroquois filed a condemnation petition seeking both a permanent and temporary easement over property owned by Mileski. Iroquois obtained the immediate right of entry over a fifty foot wide parcel of Mileski’s property. Iroquois’ rights were in the nature of a permanent easement affecting 0.58 acres and a temporary easement for the purposes of work space for a period of one year, affecting 0.25 acres of Mileski’s property.

Pursuant to General Statutes § 16-266, a committee consisting of three state trial referees was appointed to assess damages and to award compensation for the permanent and temporary easements. During a two day hearing, the committee visited the property and heard the testimony of Mileski and each of the parties’ appraisers. Both appraisers used the direct sales comparison approach to determine the value of the property. Iroquois’ appraiser determined the value to be $63,900, and Mileski’s appraiser determined the value to be $295,000. Posttrial briefs were also submitted to the committee.

The committee issued its report and awarded Mileski $44,743 in damages resulting from the taking of both the permanent and temporary easements. Mileski filed an objection to the report with the trial court, alleging essentially the same errors claimed in this appeal. Iroquois then filed a motion for judgment, which the trial court granted.

Section 16-266 requires that the committee “view the property in question, hear the evidence, ascertain the value, assess just damages to the owner or owners of such property and report its doings to [the] court . . . .” The committee’s “decision is reviewable only if it is apparent that it misapplied, overlooked, or gave a wrong or improper effect to any test or consideration that it was that [committee’s] duty to regard.” (Internal quotation marks omitted.) Gasparri v. Dept. of Transportation, 37 Conn. App. 126, 130, 655 A.2d 268 (1995).

The trial court found that the requirements of § 16-266 were satisfied. The trial court’s memorandum of decision did not address the claims against the committee, but concluded that it could not presume that the committee averaged the two appraisal figures without considering the property viewing, the evidence presented during the hearing, and the contents of the post-trial briefs. Nor did the trial court presume that the committee did not consider the “highest and best use” of the property and resulting severance damages.

A threshold procedural question is dispositive of this appeal. Practice Book § 434 requires that a committee report “state, in separate and consecutively numbered paragraphs, the facts found and the conclusions drawn therefrom. It should not contain statements of evidence or excerpts from the evidence. The report should ordinarily state only the ultimate facts found; but if the committee has reason to believe that his conclusions as to such facts from subordinate facts will be questioned, he may also state the subordinate facts found proven . . . .” (Emphasis added.) In the present case, the committee did not include its findings of the subordinate facts.

Practice Book §§ 435,438 and 439 establish the procedure by which a party, who feels that a statement of subordinate facts is necessary, may make corrections to the facts contained in the committee report. If the committee has not yet filed its report, any party may make a request for subordinate findings. Practice Book § 435; Harbor Construction Corp. v. D. V. Frione & Co., 158 Conn. 14, 18, 255 A.2d 823 (1969). If a party has not made a request for subordinate facts before the committee’s findings and report have been filed, it may file a motion to correct, stating the findings that the party wants added or deleted. Practice Book § 438. This court strictly construes the requirements of § 438. Dorsen v. Kay, 13 Conn. App. 645, 648-50, 538 A.2d 1080, cert. denied, 208 Conn. 805, 545 A.2d 1102 (1988).

If the committee fails to correct its findings in compliance with a motion to correct, the moving party may file an exception seeking correction of the findings by the court. Practice Book § 439. However, “[t]he court will not consider [such] an exception unless its subject matter has been submitted to the committee in a motion to correct. . . .” Practice Book § 439.

Thus, a party who fails to file a motion to correct the facts or to add further facts severely limits his right to attack the subordinate facts in the report. Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 140, 508 A.2d 43 (1986). “Absent such a motion and a subsequent exception to the report, the trial court, in ruling on the objection, [is] limited to determining whether the subordinate facts were sufficient to support the ultimate factual conclusions.” Id. This court is limited to considering whether the facts found in the report and the conclusions drawn therefrom are adequate to support the judgment. Id.

Mileski did not file pleadings in accordance with Practice Book §§ 435 and 438. Instead, he filed an objection to acceptance of the committee’s report pursuant to Practice Book § 440. Section 440, however, cannot be used to attack findings of fact. Garofalo v. Argraves, 147 Conn. 685, 687, 166 A.2d 158 (1960); Kowalsky Properties, Inc. v. Sherwin-Williams Co., supra, 7 Conn. App. 140. Because Mileski failed to file a motion to correct, his claims must fail.

We conclude that the trial court properly rendered judgment in accordance with the committee report.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court did not rule on Mileski’s objection to the report; however, the objection was implicitly overruled upon the court’s granting of Iroquois’ motion for judgment.

       Practice Book § 435 provides: “Either party may request a committee to make a finding of subordinate facts or of his rulings, and of the claims made, and shall include in or annex to such request a statement of the facts, or rulings, or claims, he desires the committee to incorporate in the report.”

       Practico Book § 438 provides in pertinent part: “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts ... he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him. . .

       Practice Book § 439 provides in pertinent part: “If a committee fails to correct a report or finding in compliance with a motion to corn'd, the moving party may, within ten days after the decision on the motion to correct, file exceptions seeking corrections by the court in the report, or finding. The court will not consider an exception unless its subject matter has been submitted to the committee in a motion to correct . . . . ”

       Practice Book § 440 provides in pertinent part: “A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted. . . .”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    DEPARTMENT OF TRANSPORTATION v. JOSEPH PACITTI ET AL.
    (14471)
    Dupont, C. J., and Foti and Spear, Js.
    Argued March 22
    officially released September 10, 1996

      Robert T. Morrin, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (plaintiff).

      Patrick J. Fitzgerald, with whom, on the brief, was William C. Longa, for the appellee (named defendant).

      Stuart D. Rosen, with whom, on the brief, were Ann M. Siczewicz and Patrick E. Gonya, Jr., for the appellee (defendant Taco Bell Corporation).
   FOTI, J.

The plaintiff appeals from the judgment rendered denying its application for temporary and permanent injunctions against the defendants Joseph Pacitti and Taco Bell Corporation (Taco Bell). The plaintiff claims that the trial court improperly (1) denied its request for the issuance of an injunction and (2) refused to admit certain evidence. We affirm the judgment of the trial court.

The underlying facts as found by the trial court are not substantially in dispute. Pacitti is the owner of a development called the Vernon Park Plaza in Vernon; Taco Bell operates a restaurant in the development. The original plan by Pacitti was to construct a 120,000 square foot retail shopping center providing 427 parking spaces. The proposed development would have included a large supermarket and was expected to generate up to 1289 car trips either entering or leaving the plaza during each of the peak hours of operation.

General Statutes § 14-311 (a) provides in relevant part: “No person . . . shall build, expand, establish or operate any . . . development generating large volumes of traffic . . . until such person or agency has procured from the State Traffic Commission a certificate that the operation [of the development] will not imperil the safety of the public.” Section 14-312-1 (a) of the Regulations of Connecticut State Agencies provides that a development “providing two-hundred or more parking spaces, or a gross floor area of 100,000 square feet or more” generates large volumes of traffic.

Since the proposed development would have generated large volumes of traffic, according to these definitions, on July 23, 1989, Pacitti applied to the traffic commission for a certificate of operation. The traffic commission referred the application to the bureau of engineering and highway operation of the department of transportation bureau, which conducted a traffic study of the proposed development to determine its impact on the flow of traffic. An engineer for the bureau prepared a report that recommended that the proposed development be permitted to operate if eleven conditions concerning roadway improvements were met. The police chief of the town of Vernon concurred with the bureau’s recommendation, which concurrence was noted on the report. The report was based on the design, size, and expected traffic generation of the development as proposed.

On September 19,1989, certificate no. 973 was issued to Pacitti and on September 25,1989, he was so notified by the executive director of the traffic commission. The certificate provided among other things that no person would operate the development or any portion thereof prior to the completion of all the conditions unless permission had been requested and received from the traffic commission.

At some point in the fall of 1990, Taco Bell began constructing its restaurant, and on November 14, 1990, the bureau informed the executive director of the traffic commission that Taco Bell should not be issued a certificate of occupancy unless all eleven conditions in the original certificate were completed or the traffic commission granted a revised partial opening.

Pacitti’s application for a certificate of operation listed James Bubaris, P.E., as an authorized representative “to be contacted during review of application.”

On November 21, 1990, Bubaris contacted the traffic commission requesting that Taco Bell be allowed to open without complying with the conditions set forth in the original certificate of operation. Bubaris had conducted a study and concluded that the existing geometry and phasing of the intersection was sufficient for the operation of Taco Bell, Shawmut Bank and a proposed department of motor vehicles facility located across the street from the development. In the letter, a commitment was made to do certain roadwork in front of Taco Bell in the spring of 1991 if the traffic commission would permit Taco Bell to open in December.

The bureau thereupon recommended to the traffic commission that Taco Bell be permitted to operate pursuant to an amended certificate and without full compliance with the requirements of the original certificate if two conditions were met. The conditions were that a traffic sign be installed and that no more than 12,200 square feet of building space be occupied until all of the conditions of the original certificate had been met. The Vernon police chief again concurred with the bureau recommendation.

On December 18, 1990, the traffic commission adopted the bureau recommendation and approved an amended certificate that permitted the opening of Taco Bell. Pacitti was notified on the same day. Pacitti complied with the conditions set forth in the amended certificate but the roadwork referred to in the Bubaris letter was never done. The development continues to consist solely of Taco Bell and a vacant Shawmut Bank because the inland wetlands commission of the town of Vernon refused to issue the permits necessary for an expansion of the development. Apart from the two uses mentioned, no other uses are made of the rest of the property.

On December 18, 1992, the director of the traffic commission wrote Pacitti to inform him that the traffic commission had voted to order him to cease and desist operating those portions of the development that were then doing business in violation of the original certificate. The traffic commission did not send a copy of the order to Taco Bell headquarters in California but rather sent a copy to James Santos, the Taco Bell employee responsible for obtaining the necessary permits for the certificate of occupancy. Santos denied having received a copy of the order and Taco Bell did not have a copy of the order in its files at corporate headquarters in California. Santos was the construction manager for Taco Bell in December, 1990, but had no responsibility for its operation in 1992. Santos testified that he was aware that the certificate of occupancy was in jeopardy in November, 1990, and he did receive a copy of the Bubaris letter to the traffic commission. Santos reported none of this to his superiors because he was assured by Pacitti that the work necessary to comply with the original certificate would be done. Subsequent to the issuance of the certificate, Santos became aware of the fact that the work that was supposed to be done in the spring of 1991 had not been done.

The traffic commission sought, in addition to a temporary and permanent injunction restraining Pacitti from operating Vernon Park Plaza, the penalties as provided by General Statutes § 14-314, and such other relief as the court deemed just and proper.

I

Following a hearing, the trial court, in exercising its discretion, declined to issue an injunction, concluding that sufficient evidence had not been presented to demonstrate that compliance with the conditions of the original certificate would correct any traffic problems that might exist.

The decision to grant or deny an injunction is discretionary and will not be reversed absent a clear abuse of discretion. Crabtree v. Coyle, 19 Conn. App. 208, 211, 561 A.2d 455 (1989). In deciding, the trial court must consider the equities, including the gravity and wilfulness of the violation, as well as the potential harm. Gelinas v. West Hartford, 225 Conn. 575, 595-96, 626 A.2d 259 (1993); Berin v. Olson, 183 Conn. 337, 343, 439 A.2d 357 (1981). Irreparable harm need not be shown in a statutory injunction case. Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984). “ ‘[T]he enactment of the statute by implication assumes that no adequate alternative remedy exists and that the injury was irreparable, that is, the legislation was needed or else it would not have been enacted.’ ” Id. Proof of a violation, however, does not deprive the court of discretion and does not obligate the court automatically to grant every injunction sought for every violation. Gelinas v. West Hartford, supra, 588.

Our review of the record discloses that the trial court did not require the traffic commission to prove irreparable harm or that there was no adequate remedy at law. The trial court applied a correct legal standard and stated: “The burden placed on the plaintiff here is no greater than the one the plaintiff itself ascertained that it had to assume (1) in its complaint by alleging a threat to traffic safety, (2) in its repeated efforts at trial to have evidence of traffic safety presented to the court, and (3) by its posttrial motion to have the court reconsider an evidentiary ruling which prevented this evidence coming in at trial. In fact, the equitable balancing of interest referred to in these statutory injunction cases would, in the court’s opinion, place a relatively light burden on the state agency. It might be little more than a burden of presenting some evidence rather than an obligation to prevail on the equities by a preponderance of the evidence. It is not for the courts to second guess agencies on the danger to the public interest or welfare or to second guess the legislature about the relative importance of such a danger vis-a-vis the burden of harm inflicted on a citizen once the legislature has provided for a statutory injunction. But the courts—at least unless explicitly so instructed by the legislature and leaving aside any due process concerns raised by that observation—cannot be required to issue injunctive relief against people without some showing of the existence of the danger or problem the statutory scheme sought to avert at least where the party opposing the injunction has shown such relief would harm its interests.”

The trial court concluded that no evidence had been presented to support the allegations in the complaint or to show a threat to traffic safety, nor was there any evidence that compliance with the conditions of the original certificate would correct any traffic problems that might exist. The court also observed that, if the injunction were granted, Taco Bell would be closed and its two dozen workers would be laid off. The court recognized that, if a traffic problem did exist, there was no evidence that the defendants were the cause of the problem. The trial court, in weighing the equities, did not abuse its discretion in denying injunctive relief.

II

The traffic commission next asserts that the trial court improperly refused to admit the records of the department of transportation. The traffic commission has failed to comply with Practice Book § 4065 (d) (3). Because the traffic commission has failed to provide us with an adequate basis on which to consider the nature or merits of its claim, we decline to review it. Bank of Boston Connecticut v. Ciarleglio, 26 Conn. App. 503, 506, 604 A.2d 359 (1992).

III

The traffic commission also claims that the trial court improperly denied its application for an injunction under General Statutes § 14-311 (b). Our review of the record discloses that the trial court heard evidence that the regulatory criteria, i.e., 200 or more parking spaces, or a gross floor area of 100,000 square feet or more, was not met in the development. The trial court, however, did not rule on this question, but, rather, denied the traffic commission’s application for injunctive relief after balancing the equities. Nor did the trial court rule as to whether the traffic commission had authority under § 14-311 to issue the cease and desist order.

Further, there is no dispute that the original certificate was amended and that the amended certificate allowed Taco Bell’s occupancy on two conditions, both of which were complied with at all relevant times. The traffic commission approved the amended certificate, which permitted the opening of Taco Bell. At no time was Taco Bell operating in violation of the amended certificate.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state traffic commission of the department of transportation instituted this action; the plaintiff will be referred to as the traffic commission.

       The parties agreed to consolidate the hearings on the claims for temporary and permanent injunctive relief.

       The Shawmut Bank, a former defendant, has ceased to operate its facility in the development; it does, however, retain its leasehold interest, which includes an access drive in the development.

       General Statutes § 14-314 provides: “Any person, firm or corporation failing to comply with any order made pursuant to any provision of this chapter shall be fined not more than five thousand dollars or imprisoned not more than thirty days or both, and shall be subject to the provisions of section 14-111. Any person, firm or corporation failing to comply with any traffic control signal, sign, marking or other device placed and maintained upon the highway, or with any regulation adopted pursuant to any provision of this chapter, by tire State Traffic Commission or the traffic authority of any city, town or borough shall be deemed to have committed an infraction, if no other penalty is provided by law. Traveling at a greater rate of speed than is reasonable as provided in section 14-218a shall not be deemed to be a failure to comply with the provisions of this section but shall be deemed to be the commission of an infraction within the provisions of said section 14-218a.”

       The plaintiff also argues that the trial court improperly ruled that the defendants had no right to appeal the cease and desist order pursuant to General Statutes § 14-311 (e); we find no merit to this claim.

       Practice Book § 4065 (d) (3) provides in pertinent part,: “When error is claimed in any other ruling in a court or jury case, the brief or appendix shall include, where appropriate . . . the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception. ...”

       General Statutes § 14-311 (b) provides: “No local building official shall issue a building or foundation permit to any person, firm, corporation, state agency or municipal agency to build, expand, establish or operate such a development until the person, firm, corporation or agency provides to such official a copy of the certificate issued under this section by the commission. If the commission determines that any person, firm, corporation, or state or municipal agency has (1) started building, expanding, establishing or operating such a development without first obtaining a certificate from the commission or (2) has failed to comply with the conditions of such a certificate, it shall order the person, firm, corporation or agency to (A) cease constructing, expanding, establishing or operating the development or (B) comply with the conditions of the certificate within a reasonable period of time. If such person, firm, corporation or agency fails to (i) cease such work or (ii) comply with an order of the commission within such time as specified by the commission, the commission may make an application to the superior court for the judicial district of Hartford-New Britain or the judicial district where the development is located enjoining the construction, expansion, establishment or operation of such development.”


text:
    STATE OF CONNECTICUT v. CHARLES D. TYSON III
    (15283)
    Foti, Landau and Spear, Js.
    Argued May 1
    officially released September 10, 1996

      Neal Cone, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Clark, senior assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder, in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c, attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134, and assault of apeace officer in violation of General Statutes § 53a-167c. The defendant claims that the trial court improperly instructed the jury on consciousness of guilt and on various other matters including, credibility, reasonable doubt, presumption of innocence, identity and punishment. The defendant also alleges that the trial court improperly sentenced him for both murder and felony murder, and may have abused its discretion in its review, in camera, of certain subpoenaed police personnel records. We agree that the trial court, after properly merging the intentional murder and felony murder convictions, improperly imposed concurrent sentences for both, and, therefore, remand this matter with direction.

The jury reasonably could have found the following facts. On October 24,1991, at approximately 10:30 p.m., Stanley Greiman drove into a parking garage on George Street in New Haven, which was adjacent to the apartment complex where he resided. After parking his vehicle, Greiman walked to the intersection of Park Street and Frontage Road to examine a motor vehicle accident that he had noticed upon entering the parking garage. Greiman subsequently walked back through the garage toward the entrance to his apartment complex. Once in the garage, Greiman heard the noise of metal hitting the pavement. Looking into an adjacent parking lot that is separated from the garage by a fence, Greiman saw a person swinging an object at something or someone moving on the ground. Greiman immediately left the garage to find a police officer from the accident scene to report his observations. Outside the Park Street entrance to the parking garage, Greiman encountered Detective Winkler Christensen of the New Haven police department and Donald Rossberg, a building superintendent from a nearby apartment complex, and informed them of the disturbance in the parking lot.

Standing at the Park Street garage entrance, Christensen looked in the direction of the parking lot and saw a male wearing a red shirt swinging an object at somebody moving on the ground. Rossberg, from the same position, observed a person wearing a green and grey jacket and a red or orange shirt hitting another individual with an object. Both Christensen and Ross-berg quickly approached the area where the assault was taking place.

Approximately ten feet before they reached the driveway to the parking lot, Christensen observed the defendant, Charles Tyson, walk out of the parking lot onto the sidewalk. Christensen observed that the defendant was wearing a red shirt and sweating profusely. Rossberg observed that the defendant’s clothing was similar to that of the assailant and that the defendant was approaching them with one hand behind his back.

As Rossberg continued past the defendant, Christensen displayed his detective’s badge and asked the defendant if they could talk. The defendant advanced toward Christensen, pulled out a pipe that he had been holding behind his back and attacked Christensen, aiming the pipe at Christensen’s head. Christensen avoided the assault to his head, but suffered a blow to his back, causing him to fall facedown to the ground. Christensen rolled over and observed the defendant move toward him. Christensen reached for his weapon, and the defendant dropped the pipe and fled. Christensen picked up the pipe and pursued the defendant. A Yale University police officer apprehended the defendant.

Christensen, accompanied by a Yale University police officer, later returned to the parking lot where the initial assault had occurred. At the scene, they discovered the victim, James Tyson, lying on the ground with his back against the fence. The victim was unable to communicate and was bleeding profusely from the top of his head. He had sustained massive head injuries and was transported by ambulance to Yale-New Haven Hospital. On November 7, 1991, the victim died from injuries produced by blows to the head.

Forensic testing performed on the pipe used in the attack on Christensen and the defendant’s clothing revealed the presence of human blood of the same type as that of the victim.

I

The defendant first claims that the trial court improperly instructed the jury on consciousness of guilt. The defendant’s claim is unpreserved and he seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or under the plain error doctrine. Practice Book § 4185.

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

The defendant’s claim is not of constitutional magnitude alleging the violation of a fundamental right. Although the defendant claims that the charge allowed the jury to use constitutionallyprotected conduct, other than flight, to find him guilty, such as failure of the defendant to give a postarrest statement to the police, our review of the court’s entire instruction shows otherwise. It is clear that the court, when referring to the defendant’s “actions or flight,” was relating that to the earlier statement regarding the state’s claim that the defendant “first attacked and then fled.”

Evidence of flight may be used to infer consciousness of guilt. State v. Freeney, 228 Conn. 582, 593-94, 637 A.2d 1088 (1994). “The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” State v. Nemeth, 182 Conn. 403, 408, 438 A.2d 120 (1980). Because the defendant’s flight was not constitutionally protected conduct, his claim amounts to an unpreserved noncon-stitutional one which does “not warrant special consideration simply because [it] bearfs] a constitutional label.” State v. Golding, supra, 213 Conn. 240. Since the defendant has failed to demonstrate that his claim is of constitutional magnitude alleging the violation of a fundamental right, we decline to review it.

Plain error review “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990). The claimed error here is not so egregious or obvious as to merit such review.” (Internal quotation marks omitted.) State v. Sawyer, 32 Conn. App. 854, 856-57, 632 A.2d 372, cert. denied, 228 Conn. 911, 635 A.2d 1230 (1993). The instructions read as a whole did not result in an “unreliable verdict or miscarriage of justice. . . .” (Citations omitted; internal quotation marks omitted.) State v. Harvey, 27 Conn. App. 171, 187, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). Plain error review is not warranted.

II

The defendant next alleges that the trial court improperly instructed in various portions of its charge to the jury, thereby diluting the presumption of innocence, and also related to the jury the court’s impression that the defendant was guilty.

Our review of the charge as a whole leads us to conclude that the claim is without merit in its entirety. The trial court’s charge was fair, evenhanded and proper. Patently nonconstitutional claims, unpreserved at trial, should not be considered merely because they are tagged with a constitutional label, and should be summarily dismissed. State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). The defendant challenges tihe court’s instruction that “the law is made to protect society and innocent persons and not to protect guilty ones.” Identical or substantially similar language has been recently upheld by our appellate courts. State v. Ellis, 232 Conn. 691, 705-706, 657 A.2d 1099 (1995); State v. Walton, 227 Conn. 32, 66-67, 630 A.2d 990 (1993); State v. Tucker, 226 Conn. 618, 651-52, 629 A.2d 1067 (1993); State v. Zollo, 36 Conn. App. 718, 735, 654 A.2d 359 (1995).

The defendant also claims as improper the court’s instruction that “the jury should not concern itself with the punishment to be meted out in the event of a conviction.” This language also does not raise an issue of constitutional dimension, and even if we consider it to have raised such an issue, there was no possibility that the jury was misled, taking the instructions as a whole. See State v. Francis, 228 Conn. 118, 135, 635 A.2d 762 (1993); State v. Colon, 37 Conn. App. 635, 639, 657 A.2d 762, cert. denied, 234 Conn. 917, 660 A.2d 354 (1993); State v. McFadden, 25 Conn. App. 171, 176-77, 593 A.2d 979, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991). The defendant argues that the court improperly instructed the jury that “the state does not want the conviction of innocent persons.” We do not agree. See State v. Allen, 28 Conn. App. 81, 84, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992).

The defendant also alleges as an unpreserved claim that the trial court’s instruction to the jury was improper in that it failed to charge that the state’s burden was to prove the identity of the defendant as the perpetrator of the crime beyond a reasonable doubt. “It is axiomatic that a jury must find that the defendant on trial before it was the person who committed the alleged offense in order to render a verdict of guilty.” State v. Smith, 7 Conn. App. 715, 718, 510 A.2d 219, cert. denied, 201 Conn. 804, 513 A.2d 699 (1986). In State v. Walker, 9 Conn. App. 373, 376-77, 519 A.2d 83 (1986), cert. denied, 202 Conn. 805, 520 A.2d 1286 (1987), we noted that “[t]he court . . . properly instructed the jury that each essential element, including identity, had to be proved by the state beyond a reasonable doubt. A review of the charge as a whole leads us to the conclusion that it is not reasonably possible that the jury was misled as to the state’s burden of proof.”

Our review of the complete jury instructions in this case also leads us to conclude that it is not reasonably possible that the jury was misled as to the necessity of determining the identity of the perpetrator beyond a reasonable doubt. The trial court more than adequately gave detailed instructions on the issue of identity. A jury instruction conforms with constitutional requirements if it provides jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992). We conclude, therefore, that none of the unpreserved claims dealing with the various challenged instructions amounts to a constitutional violation that clearly deprived the defendant of a fair trial.

The defendant’s final claim of instructional error, for which he noted an exception, is the trial court’s instruction to the jury for assessing the defendant’s credibility as a witness. The court instructed: “As you know, an accused person is not obliged to take the witness stand in his own behalf. On the other hand, he has a perfect right to do so as the defendant, Mr. Tyson, has done in this case. In weighing the testimony that the defendant has given you, you should apply the same principles by which the testimony of other witnesses are tested and that necessarily involves a consideration of his interest in the case. You will consider the importance to him of the outcome of this trial. An accused person having taken the witness stand stands before you just like any other witness and is entitled to the same consideration and must have his testimony measured in the same way as any other witness.”

Our Supreme Court has repeatedly approved the identical or substantially similar language. State v. Williams, 220 Conn. 385, 397, 599 A.2d 1053 (1991); State v. Mack, 197 Conn. 629, 637, 500 A.2d 1303 (1985); State v. Avcollie, 188 Conn. 626, 637, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983). We are bound by these decisions. State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994).

Ill

The state concedes, and we agree, that after properly merging the intentional murder and the felony murder convictions, the trial court improperly imposed concurrent sixty year terms of imprisonment on each conviction. Sentencing on multiple convictions for a single homicide under the felony murder statute and any other homicide statute constitutes double jeopardy. State v. Chicano, 216 Conn. 699, 710, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State v. Miller, 36 Conn. App. 506, 516, 651 A.2d 1318, cert. denied, 232 Conn. 912, 454 A.2d 357 (1995).

We must remand this matter with direction to combine the defendant’s convictions for felony murder and intentional murder and to vacate one of the sentences. The total effective sentence will remain the same by combining these sentences. State v. Chicano, supra, 216 Conn. 721-25.

IV

The defendant posits that the trial court may have abused its discretion in its in camera review of the personnel records of Christensen. The records were subpoenaed by the defense, delivered to the court, sealed and marked as an exhibit. After conducting an in camera review of this and three other such exhibits, the court denied the defendant access and stated, inter alia: “There’s nothing which I have found which needs to be turned over for impeachment purposes so [this file] will remain sealed pending either some unforeseen developments at trial or appellate review if necessary.” In order to determine whether the court’s action in denying access of Christensen’s personnel record to the defendant constituted an abuse of discretion, we have conducted our own in camera inspection of the sealed exhibit. We conclude that the trial court did not abuse its discretion in denying the defendant access to the privileged material.

The judgment is reversed in part and the case is remanded with direction to combine the defendant’s murder conviction with his felony murder conviction and to vacate the sentence for one of those convictions.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       Greiman testified that the noise sounded like a tire iron hitting the pavement.

       On the evening of October 24, 1991, Christensen was working in plain clothes as an extra duty officer, providing security to four high-rise buildings at the New Haven Towers Association and the surrounding grounds. This is a two block area located between Park and High Streets in New Haven.

       The victim, James Tyson, and the defendant, Charles Tyson, apparently are not related.

       The court instructed: “Now, the law of our state recognizes a principle known as admission by conduct. Certain conduct of a person may be considered by you to show a guilty knowledge or consciousness of guilt. When a person is on trial for a criminal offense it is proper to show his conduct subsequent to the alleged criminal offense or offenses which may fairly have been influenced by the actions. Flight when unexplained can indicate consciousness of guilt if the facts and circumstances support it. The state claims that the defendant first attacked and then fled from Detective Christensen immediately after the commission of the crime charged in counts one, two and three. If you find that the defendant did flee the police or otherwise tried to evade them following the commission of the crimes alleged, you may find that such actions tend to show a guilty connection with the criines charged in the first three counts. In other words, any actions of the defendant subsequent to the criminal actions alleged which you find show a guilty knowledge influenced by the criminal action itself may be used by you as circumstantial evidence of the defendant’s guilt.. That is, if you find that, the defendant's actions or flight, show consciousness of guilt you may use that conclusion as independent evidence of guilt, along with the other facts of the case to determine whether he has been proven guilty of the crimes charged.”

       We need not consider a claim on appeal unless it was directly raised at the trial or arose subsequent to the trial. Practice Book § 4185. “This court, reviews rulings solely on the ground on which the party’s objection is based.” State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971); State v. Busque, 31 Conn. App. 120, 127, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994).

       Only one of the defendant’s specific claims of instructional impropriety was preserved for appellate review.


author: SCHALLER, J.

text:
    INDEPENDENCE ONE MORTGAGE CORPORATION v. THOMAS KATSAROS ET AL.
    (15535)
    O’Connell, Iieiman and Schaller, Js.
    Argued June 6
    officially released September 10, 1996

      Gerald L. Garlick, for the appellant (plaintiff).

      Robert C. Rinciaro, with whom, on the brief, were Serge G. Mihaly and Richard G. Kascak, for the appel-lee (defendant Larry Lainey).
   SCHALLER, J.

The plaintiff Independence One Mortgage Corporation appeals from the judgment of strict foreclosure rendered by the trial court. The plaintiff claims that, in determining that the mortgage of the defendant Larry Lainey was prior in right to its mortgage, the trial court improperly failed to apply the doctrine of equitable subrogation. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. The dispute about priority of mortgages arose during the foreclosure action instituted by the plaintiff. The subject property was previously owned by the defendant John Eoanou. Lainey loaned Eoanou $60,000 and to secure that loan took a mortgage from Eoanou on the subject property. That mortgage was recorded on November 5, 1990, in the land records of the town of Easton subsequent to eleven other encumbrances on the property.

In 1991, Eoanou negotiated with the defendant Thomas Katsaros for the sale of the property. Prior to the closing, Eoanou, through his attorney, sought to obtain releases of all the existing encumbrances on the property. Eoanou’s counsel negotiated for the payment and release of the eleven mortgages and liens prior in right to the Lainey mortgage. The eleven encumbrances were released at the closing, but the Lainey mortgage was not released.

On June 11, 1991, Eoanou, by warranty deed, conveyed the property to Katsaros. The deed did not provide that it was subject to any of the existing mortgages or liens. As part of the real estate transaction, Katsaros borrowed $1,000,000 from the plaintiff and executed a mortgage deed to the plaintiff securing the loan with the subject property.

Subsequent to the transfer of property from Eoanou to Katsaros, the plaintiff instituted a foreclosure action with respect to the property. In its amended complaint, the plaintiff alleged that it had priority over the Lainey mortgage. The issue of priority of mortgages was litigated in the trial court. The trial court found that because the Lainey mortgage was properly recorded prior in time to the plaintiffs mortgage, the Lainey mortgage was entitled to priority over the plaintiffs mortgage.

The law relating to the priority of interests has its roots in early Connecticut jurisprudence. A fundamental principle is that a mortgage that is recorded first is entitled to priority over subsequently recorded mortgages provided that every grantee has a reasonable time to get his deed recorded. Brown v. General Laundry Service, Inc., 139 Conn. 363, 372, 94 A.2d 10 (1952), vacated on other grounds, 347 U.S. 81, 74 S. Ct. 367, 98 L. Ed. 2d 520 (1954); Beers v. Hawley, 2 Conn. 467, 469 (1818).

The plaintiff recognizes that the first in time, first in right principle is applicable to this case. The plaintiff argues, however, that the doctrine of equitable subrogation should preempt that fundamental principle and place the plaintiff in the position of first mortgagee. Equitable subrogation has been applied in certain limited circumstances to rearrange the priorities of parties in a case. Any such rearrangement is based on fairness and justice. See Connecticut National Bank v. Chapman, 153 Conn. 393, 398-99, 216 A.2d 814 (1966); Home Owners’ Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 238-39, 193 A. 769 (1937); Lomas & Nettleton Co. v. Isacs, 101 Conn. 614, 620-21, 127 A. 6 (1924); 2 J. Story, Equity Jurisprudence (14th Ed. 1918) § 707. Our Supreme Court has stated that “[i]n numerous cases it has been held that one who advances money to discharge a prior lien on real or personal property and takes a new mortgage as security is entitled to be subrogated to the rights under the prior lien against the holder of an intervening lien of which he was ignorant.” (Emphasis added.) Home Owners’ Loan Corp. v. Sears, Roebuck & Co., supra, 237.

The plaintiff argues that it has satisfied the elements of equitable subrogation. The plaintiff contends that it advanced money that was used to discharge prior debts, it took a new mortgage on the property as security for the advanced funds and it was ignorant of a prior lien on the property. The plaintiff believes that it is entitled to be subrogated to the rights of the prior eleven lien holders and, therefore, it should be entitled to assert a priority interest over Lainey’s interest.

The plaintiff neglects an important distinction in relying on Home Owners’ Loan Corp. v. Sears, Roebuck & Co., supra, 123 Conn. 232. When considering whether the doctrine of equitable subrogation can apply in a given set of circumstances, a distinction must be made between intervening lien holders and existing lien holders. In this case, Lainey was an existing lien holder, not an intervening lien holder. Lainey had recorded a mortgage hen prior to any interest of the plaintiff in the subject property. The doctrine of equitable subrogation is not intended as a means of circumventing the rights of existing lien holders who have properly recorded their mortgage instruments. “The case of Lewis v. Hinman, 56 Conn. 55, 13 Atl. 143 [1887], went no farther than to hold that where the owners of a third mortgage paid a first mortgage on the property and caused a release of that mortgage to be recorded, in ignorance of a second mortgage, they could not assert any rights under the released mortgage against one who, in reliance upon the record, purchased the second mortgage . . . .” Home Owners’ Loan Corp. v. Sears, Roebuck & Co., supra, 245.

The situation in which a party may assert the doctrine of equitable subrogation occurs when an intervening lien holder attempts to claim priority over a lien holder who had a prior interest in the subject property. “One of the most common mistakes connected with releases of mortgages is when the mortgage is renewed and the prior lien released in ignorance of intervening rights. Ignorance in such a case is regarded in equity as equivalent to a mistake, and relief will be granted when there is no other element of estoppel, and when the party seeking relief has not delayed action. . . . When a new mortgage is substituted in ignorance of an intervening lien, the mortgage released through mistake may be restored in equity and given its original priority as a lien.” (Citation omitted; internal quotation marks omitted.) Lomas & Nettleton Co. v. Isacs, supra, 101 Conn. 620 (first and second mortgagee, who released mortgages to refinance, subrogated to priority over unknown third mortgage); see also Connecticut National Bank v. Chapman, supra, 153 Conn. 399-400 (first mortgagee, who released mortgage to refinance, subrogated to priority over unknown second mortgagee).

In this foreclosure action, the trial court properly considered the equities of the parties. “Because a mortgage foreclosure is an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done. . . . [T]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). When Lainey obtained and recorded his mortgage subsequent to eleven other lien holders, he bargained that, if the eleven encumbrances prior to his encumbrance were released, his encumbrance would become the first on the property to the extent of his interest. The plaintiff bargained that it would have priority with respect to all encumbrances that had been satisfied and released before the plaintiffs interest was recorded. In order to obtain priority over Lainey, the plaintiff merely had to satisfy Lainey’s interest; otherwise, Lainey retained his priority relative to the plaintiff. The plaintiff may have desired to obtain a first mortgage on the property when it provided the money to Katsaros, but that desire cannot prevail over Lainey’s established position. The trial court correctly determined that the parties were in precisely the positions for which they bargained.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this action are Thomas Katsaros, Larry Lainey, John Eoanou and Eoanou’s wife.

         The plaintiff claims that “Lainey’s mortgage was not brought to anyone’s attention ... at the closing and therefore was not included in the list of lienholders that received their . . . payments.” Eoanou, however, had received a $60,000 loan from Lainey just seven months prior to the closing. We will not speculate about the events that caused the Lainey mortgage to be the only encumbrance not released when Eoanou transferred the property to Katsaros.

         The trial court made no finding as to precisely what Katsaros did with the money he received from the plaintiff. The plaintiff claims that the money was used to pay off the existing encumbrances on the property and that Eoanou received no money from the real estate transaction. Lainey claims that Katsaros gave the money to Eoanou and that Eoanou used the money to pay off the eleven prior encumbrances. Lainey points out that it is not uncommon for parties to use the proceeds of a sale to pay off prior encumbrances on the property. In the absence of findings by the trial court, we cannot speculate about the details of the real estate transaction.

       The trial court made no finding that the plaintiff was ignorant of the Lainey mortgage. Absent such a finding, we will not rely on the plaintiffs assertion that it was ignorant of the Lainey mortgage. We note that the Lainey mortgage was readily discoverable by a title search of the property.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. NICHOLAS J. PANELLA, JR.
    (14681)
    Foti, Spear and Hennessy, Js.
    Argued June 6
    officially released September 10, 1996

      G. Douglas Nash, public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Christopher A. Parakilas, assistant state’s attorney, for the appellee (state).
   SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61, interfering with an officer in violation of General Statutes § 53a-167a, and assault of a peace officer in violation of General Statutes § 53a-167c. He claims that (1) the trial court improperly instructed the jury that it must find that the defendant was warding off an assault before considering whether he was justified in his use of force against a police officer who was arresting him, and (2) the evidence was insufficient to support the verdict of guilty of assault in the third degree. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On December 23, 1993, East Windsor police officers responded to a report of domestic violence at the defendant’s house. At a nearby house, Officer John Ferguson spoke to Shana Mitchell, the defendant’s live-in girlfriend at the time. Mitchell told Ferguson that the defendant had tried to push her out of a window and that she wanted the defendant arrested. Ferguson noticed that Mitchell had sustained a cut to her arm from the incident.

Ferguson and Officer Bruce Everitt then proceeded to the defendant’s house to arrest him. The officers determined that the defendant was intoxicated on the basis of his slurred speech, bloodshot eyes, and odor. The officers questioned the defendant about the incident that night. After the defendant claimed that nothing had happened, Ferguson informed the defendant that Mitchell had given a statement, that there was physical evidence of abuse, and that he was under arrest. The defendant responded: “The fire is burning. I am going to bum and you’re going to burn with me. I am not going to fucking jail. Fuck you.” The defendant then jumped out the second floor window onto the porch roof. The officers attempted to bring the defendant inside by grabbing his belt and wrapping their arms around his neck and feet. Ferguson went downstairs to the front lawn below the defendant, but could not reach him. The defendant continued to punch Everitt as Everitt continued to hold on to the defendant’s foot. The defendant eventually freed himself from Everitt’s grasp and fell off the roof onto Ferguson.

Ferguson again told the defendant that he was under arrest and again attempted to handcuff the defendant. In response, the defendant kicked and punched Ferguson repeatedly. The defendant then said, “I’m going to kill you, ” and proceeded to reach for Ferguson’s gun. Ferguson then struck the defendant in the head with a steel flashlight, causing the defendant to bleed heavily. The officers tackled the defendant as he attempted to flee and eventually handcuffed him.

At trial, the defendant disputed the officers’ account of the incident, but admitted that his recollection of the events was vague. He testified that he climbed out the window because he feared for his safety. He further testified that he did not remember being told that he was under arrest and that he did not remember fighting with Ferguson on the front lawn. The defendant did recall, however, being struck with the flashlight.

I

The defendant first claims that the trial court improperly instructed the jury that it must first find that the defendant was warding off an assault before considering whether he was justified in his use of force against an officer. The defendant asserts that the trial court’s instruction eliminated his self-defense claim that he was entitled to resist an arrest effectuated by excessive force.

“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. ... In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995). “While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) State v. Adams, 38 Conn. App. 643, 658, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995).

The defendant argues that the instruction improperly eliminated his self-defense claim that he defended himself against excessive police force used to effectuate his arrest. Having reviewed the charge as a whole, we conclude that the charge was correct in law and was adapted to the issues and facts presented at trial. It is not reasonably possible, therefore, that the jury was misled.

The trial court instructed the jury to consider the defendant’s claim of self-defense if it found that he was warding off an assault rather than resisting arrest. This instruction was properly adapted to the evidence, and accounted for the different versions presented by the state and the defendant. The defendant testified that Ferguson attacked him with a flashlight without provocation. The defendant further testified that he resisted because he feared for his life, and that this fear was based on his belief that “police officers have a reputation of beating [and] of assaults . . . .” Moreover, the defendant testified that no one told him that he was under arrest. Accordingly, the defendant’s own testimony establishes that he used force not to resist an arrest, but rather to ward off what he believed to be an assault.

The trial court, in adapting its charge to the evidence, instructed the jury that “if you find the defendant struggled with the officers to ward off an assault, you must consider the defendant’s claim of self-defense or justification.” This instruction comports with the defendant’s testimony. We conclude, therefore, that the instruction was correct in law, adapted to the evidence, and sufficient to guide the jury.

II

The defendant next claims that the evidence was insufficient to support a conviction of assault in the third degree. He argues that the state failed to present sufficient evidence to establish, beyond a reasonable doubt, that the victim sustained physical injury or that the defendant intentionally inflicted physical injury. We disagree.

“In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” Id., 134.

General Statutes § 53a-61 (a) provides in part that “[a] person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person . . . .” The defendant argues that the state failed to prove beyond a reasonable doubt that he intentionally caused physical injury to Mitchell or that Mitchell sustained such physical injury. General Statutes § 53a-3 (3) defines “physical injury” as the “impairment of physical condition or pain.”

Ferguson, testifying as to a conversation he had with Mitchell on the night of the assault, stated that “she had a cut on her arm which she said that she had gotten . . . from a window frame and [the defendant] tried to push her out the window.” On the basis of this testimony, the jury reasonably could have concluded that (1) the cut to Mitchell’s arm constituted an impairment of physical condition pursuant to § 53a-3 (3), (2) the defendant caused such injury when he attempted to push Mitchell out of the window, and (3) the defendant had the intent to cause physical injury. We conclude, therefore, that the evidence was sufficient to support a conviction of assault in the third degree.

In the alternative, the defendant urges this court to replace our well established standard for evaluating claims of insufficient evidence with a less deferential standard espoused by federal Judge Jon Newman. See J. Newman, “Beyond ‘Reasonable Doubt,’ ” 68 N.Y.U. L. Rev. 979 (1993). We decline to do so. The standard of review applicable to sufficiency claims has been established by our Supreme Court precedent. See, e.g., State v. Sivri, supra, 231 Conn. 115; State v. Greenfield, supra, 228 Conn. 62. Whether our Supreme Court precedent should be reexamined, discarded or changed is not for this court to decide. State v. Oliver, 41 Conn. App. 139, 146, 674 A.2d 1359 (1996); State v. Adams, 36 Conn. App. 473, 477, 651 A.2d 747 (1994), appeal dismissed, 235 Conn. 473, 667 A.2d 796 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

       The relevant portions of the trial court’s instruction to the jury are as follows: “The fact that the defendant thought that the attempted arrest was wrongful or that a peace officer was acting unlawfully is no defense to his use of force which was unjustified. The defendant Mr. Panella contends, however, that any struggle that ensued during the course of his arrest was not due to his interfering with an officer, but rather was the result of an assault on him by the police officers. . . . Further, if you find that the defendant struggled with the officer to ward off an assault, the defendant contends our law is that the use of reasonable force to defend oneself against an assault by an officer may be justified. . . . The state must disprove self-defense beyond a reasonable doubt, therefore, if you find the defendant struggled with the officers to ward off an assault, you must consider the defendant’s claim of self-defense or justification. If you find that existed and the state has not disproved their defense beyond a reasonable doubt, you must find the defendant not guilty.”

       We conclude that the defendant adequately preserved this claim pursuant to Practice Book § 315 by filing a written request to charge that sufficiently alerted the trial court as to the legal proposition on which he was relying.

       It is axiomatic that the defendant need not have intended to cause the specific injury that Mitchell suffered to support a finding of intent. Instead, the defendant need only have intended to cause some physical injury when he attempted to push Mitchell out of the window. The jury could have reasonably inferred that, by attempting to throw Mitchell out a second floor window, the defendant intended to cause injury to Mitchell that would result from her struggle to stay inside the house or from her fall to the ground approximately eleven feet below. “Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct.” State v. Smith, 35 Conn. App. 51, 63, 644 A.2d 923 (1994); see also State v. Francis, 228 Conn. 118, 128, 635 A.2d 762 (1993); State v. Smith, 212 Conn. 593, 603, 563 A.2d 671 (1989).


author: DUPONT, C. J.

text:
    EDWARD ROSENFIELD ET AL. v. ROSE MARIE CYMBALA ET AL.
    (15172)
    Dupont, C. J., and Foti and Schaller, Js.
    Submitted on briefs May 3
    officially released September 10, 1996

      Peter N. Upton and Nicole I. Mason filed a brief for the appellant (named plaintiff).

      Robert M. Axelrod filed a brief for the appellee (named defendant).
   DUPONT, C. J.

The sole issue presented by this appeal is whether the trial court properly rendered the summary judgment sought by the defendant Rose Marie Cymbala against the plaintiffs on the ground that their foreclosure action against her is barred by the doctrine of res judicata. We affirm the judgment of the trial court.

The pertinent facts and procedural history are not in dispute. The plaintiff brought the present foreclosure action seeking immediate possession of certain real property located in the town of Essex and a deficiency judgment against the defendant. The defendant moved for summary judgment on the ground that the plaintiffs action is barred by the doctrine of res judicata. The trial court, Aurigemma, J., concluded that the mortgage at issue in the present action was the subject of a prior foreclosure action brought by the plaintiff against the defendant. In the prior action, upon conclusion of the plaintiffs case-in-chief, the defendant moved for a judgment of dismissal pursuant to Practice Book § 302 for the plaintiffs failure to make out a prima facie case. The trial court, Higgins, J., granted the motion for dismissal, and rendered a judgment dismissing the action. We affirmed that judgment on appeal. Rosenfield v. Cymbala, 33 Conn. App. 931, 636 A.2d 881 (1994).

The defendant moved for summary judgment in the present action on the issue of liability and claimed that there exists no issue of material fact and that the defendant is entitled to judgment as a matter of law because the plaintiffs action is barred by the doctrine of res judicata. The plaintiff opposed the defendant’s motion for summary judgment, claiming that the merits of the prior action were never reached. The trial court concluded that a “judgment of dismissal rendered by a court pursuant to § 302 of the Practice Book after the plaintiff has rested is a trial on the merits for purposes of the doctrine of res judicata.” On that basis, the trial court granted the defendant’s motion for summary judgment.

The plaintiff acknowledges that the doctrine of res judicata applies if there is a preexisting judgment on the merits of a case, but claims that in the prior action, the judgment of dismissal rendered pursuant to Practice Book § 302 for the plaintiffs failure to make out a prima facie case is not a judgment on the merits. The defendant responds that because the plaintiff had the opportunity to present his case-in-chief in the prior action, and did so, the judgment of dismissal rendered at the close of his case is a judgment on the merits to which the doctrine of res judicata applies. We agree with the defendant and conclude that, under the facts of the present case, the trial court properly rendered summary judgment in the defendant’s favor because the judgment of dismissal rendered in the prior action should be treated as a judgment on the merits and, therefore, the principles of res judicata bar the present action.

The standard of review of a trial court’s decision granting a motion for summary judgment is well settled and is not challenged in this case. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.” D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). A trial court “must view the evidence in the light most favorable to the nonmoving party” when deciding a motion for summary judgment. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Remington v. Aetna Casualty & Surety Co., 35 Conn. App. 581, 583, 646 A.2d 266 (1994). “The test is whether a party would be entitled to a directed verdict on the same facts.” Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).

Before turning to the plaintiffs claim that a judgment of dismissal rendered pursuant to § 302 for failure to make out a prima facie case is not a judgment on the merits for purposes of applying the doctrine of res judicata, it is necessary to briefly discuss the law of res judicata. “[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L. Ed. 195 (1876); 1 Restatement (Second), Judgments §§ 19, 25; James & Hazard, Civil Procedure (2d Ed.) § 11.3.” State v. Aillon, 189 Conn. 416, 423-24, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983); Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996).

“The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” Delahunty v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn. 589. In determining whether the judgment is on the same claim as an earlier action so as to trigger the operation of the doctrine of res judicata, our Supreme Court has adopted the transactional test which compares the complaint in the second action with the pleadings and the judgment in the earlier action. Id., 590. Furthermore, “the appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . . .” (Emphasis in original; internal quotation marks omitted.) Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 717-18, 627 A.2d 374 (1993).

The doctrine of res judicata “should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being ‘(1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation.’ People v. Taylor, 12 Cal. 3d 686, 695, 527 P.2d 622, 117 Cal. Rptr. 70 (1974); see generally Vestal, [Res Judicata/Preclusion (1969)] pp. 7-12; [18] Wright, Miller & Cooper, [Federal Practice and Procedure] § 4403. But by the same token, the internal needs of the judicial system do not outweigh its essential function in providing litigants a legal forum to redress their grievances.” State v. Ellis, 197 Conn. 436, 465-66, 497 A.2d 974 (1985); see also Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989).

The pivotal inquiry in this appeal, as framed by the pleadings, is to determine whether the judgment of dismissal rendered pursuant to § 302 in the prior action should be treated as a judgment rendered on the merits. There is no statute or rule of practice that expressly determines whether a judgment of dismissal pursuant to § 302 operates as res judicata precluding subsequent litigation of the same cause of action. Therefore, the starting point of our analysis is a review of Connecticut case law regarding the conclusiveness of a judgment rendered as a result of a plaintiffs failure to make out a prima facie case.

Prior to 1978, our rules of practice permitted a court to render a judgment “as in case of a nonsuit” if a plaintiff failed to make out a prima facie case. Practice Book, 1963, § 278. A motion for a judgment of dismissal for failure to make out a prima facie case pursuant to § 302 replaced the former motion for judgment as in case of nonsuit for failure to make out a prima facie case. Compare Practice Book § 302 with Practice Book, 1963, § 278; see Lukas v. New Haven, 184 Conn. 205, 210 n.3, 439 A.2d 949 (1981). Other sections of the Practice Book relating to disciplinary nonsuits, as opposed to evidentiary nonsuits, were renumbered in 1978, but retained the sanction and nomenclature of “nonsuit.” See Practice Book, 1963, § 280 (now § 351); Practice Book, 1963, § 42 (now § 352). Thus, the changes in 1978 indicate that disciplinary nonsuits and what were formerly evidentiary nonsuits, that is those entered for failure to make out a prima facie case, were treated differently.

Although a judgment as in case of nonsuit for failure to make out a prima facie case was established by Connecticut’s judiciary as a rule of practice in 1963, the rule, in substance, was actually adopted from General Statutes § 52-210, which has been in existence since 1852. See Public Acts 1851-1859, c. IV, § 1. Prior to 1852, “[t]he involuntary nonsuit for insufficiency of evidence, was unknown to the common law practice of this State.” Cook v. Morris, 66 Conn. 196, 210, 33 A. 994 (1895). The language of § 52-210 and § 278 was identical until the judiciary supplanted § 278 with § 302 in 1978. The language of § 302 has remained the same since that date.

The language of § 302 differs from that of § 278 in two respects. First, pursuant to § 302, a “defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.” Section 278, however, contained no such provision for a defendant to offer evidence in the event the motion was not granted. Second, under § 278, after the plaintiff has produced his evidence and rested his cause, “the defendant may move for judgment as in case of non-suit, and the court may grant such motion . . . .” (Emphasis added.) Under § 302, after the plaintiff has produced his evidence and rested his cause, “the defendant may move for judgment of dismissal, and the court may grant such motion . . . (Emphasis added.)

For purposes of our analysis, it is the second distinction contrasting the use of the phrase “judgment as in case of nonsuit” in § 278 and the phrase “judgment of dismissal” in § 302 that is relevant. Black’s Law Dictionary (6th Ed. 1990) defines “[njonsuit” as “[a] term broadly applied to a variety of terminations of an action which do not adjudicate issues on the merits.” “Dismissal,” however, is a more expansive term and is defined as “[a]n order or judgment finally disposing of an action, suit, motion, etc., without trial of the issues involved.” Id.

The cases that involve § 278 determine that the consequence of the failure to make out a prima facie case is a judgment as in case of nonsuit. These cases hold that the plaintiff may bring the same suit again because a nonsuit is not a judgment on the issues. Lewis v. Sco-ville, 94 Conn. 79, 90-91, 108 A. 501 (1919); Cook v. Morris, supra, 66 Conn. 209. The definition, however, in the pre-1978 cases of “a prima facie case” remains the same as in the more recent cases.

“When [a motion for a judgment of dismissal for failure to make out aprima facie case] has been granted, the question is whether sufficient facts were proved to make out a prima facie case.” Hinchliffe v. American Motors Corp., 184 Conn. 607, 609, 440 A.2d 810 (1981). “A nonsuit for failure to prove a prima facie case implicates the evidence.” (Emphasis added.) Del Vecchio v. Civil Service Commission, 178 Conn. 490, 491, 423 A.2d 139 (1979). A plaintiff has failed to make out a prima facie case “when the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff.” Minicozzi v. Atlantic Refining Co., 143 Conn. 226, 230, 120 A.2d 924 (1956); see also Hinchliffe v. American Motors Corp., supra, 609. A court’s decision to deny a motion for a judgment of dismissal at the close of the plaintiffs case for failure to make out a prima facie case is “not a conclusion that the plaintiff has sustained his burden of proof on the contested issues of his complaint.” Lukas v. New Haven, supra, 184 Conn. 211. A court’s decision to grant a motion for a judgment of dismissal for failure to make out a prima facie case is, however, a conclusion that a plaintiff has failed to sustain his burden of proof as to the allegations of his cause of action.

“A judgment on the merits is one which is based on legal rights as distinguished from mere matters of practice, procedure, jurisdiction or form.” Fairmont Aluminum Co. v. Commissioner of Internal Revenue, 222 F.2d 622, 625 (4th Cir. 1955); see also Swift v. McPherson, 232 U.S. 51, 56, 34 S. Ct. 239, 58 L. Ed. 499 (1914). “A decision with respect to the rights and liabilities of the parties is on the merits where it is based on the ultimate fact or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends.” 46 Am. Jur. 2d 879, Judgments § 606 (1994).

The judgment of dismissal rendered in the prior action was based on the trial court’s determination that the evidence produced revealed that the plaintiff could not recover as a matter of law. Upon the conclusion of the plaintiffs case in the prior action, the trial court found that the plaintiff failed to establish that consideration for the note and mortgage deed was given by the plaintiffs assignor, Connecticut Investment Company, Inc., to the defendant. The trial court also determined that the plaintiff failed to produce any evidence as to an appraisal of the mortgaged property or its current market value. Furthermore, the plaintiff did not present evidence of “any default of payment or of other terms of the note nor the amount of any alleged debt presently due and owing from the plaintiff to anyone who has an interest in [the] underlying note.” The trial court concluded that the plaintiff, as the assignee, could acquire no more legal rights than those held by the original assignor and, therefore, the plaintiff’s insufficiency of the evidence precluded him from foreclosing on the mortgage. Moreover, in its memorandum of decision, the trial court characterized the extent of the proceedings as a “trial of the issues.” The plaintiff had an opportunity to present his case as though the trial would go to conclusion.

The prior action was not disposed of by way of a disciplinary nonsuit or a dismissal for failure to prosecute with due diligence, but, rather, the trial court rendered a judgment of dismissal after the plaintiff had an opportunity to give his case his “best shot.” It is a judgment that is every bit as worthy of res judicata as is a judgment by default. See Milgrim v. Deluca, 195 Conn. 191, 196, 487 A.2d 522 (1985).

When the pleadings place the burden of proving any matter in issue on the plaintiff, he must “ ‘in the first instance, introduce all the evidence upon which he relies to establish his claim.’ ” DiMaio v. Panico, 115 Conn. 295, 298, 161 A. 238 (1932), quoting Hathaway v. Hemingway, 20 Conn. 191, 195 (1850). A plaintiff cannot present other evidence or more compelling evidence to sustain his burden of proof after he has rested, nor reserve better or more evidence for another trial by claiming that res judicata does not apply. A plaintiffs failure to make out the best case possible can lead to a judgment of dismissal for failure to make out a prima facie case. That failure should not be used as a shield to avoid the consequences of the application of the doctrine of res judicata.

We conclude that the change in nomenclature from “judgment as in case of nonsuit” to “judgment of dismissal” effectuated by the 1978 revision of the rules of practice is a substantive change that, in effect, causes a judgment of dismissal for failure to make out a prima facie case to be equated with a judgment on the merits for the purposes of res judicata.

Because the plaintiff’s cause of action is the same cause of action brought against the same defendant in the former action, and because the judgment of dismissal rendered in the prior action was affirmed on appeal, and is a judgment that established that the plaintiff did not prove entitlement to recovery as a matter of law, we conclude that the trial court properly determined that the judgment of dismissal operates as res judicata, thereby, barring the present action and entitling the defendant to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pearl-Main Investment Company was also named as a defendant in this foreclosure action. The trial court issued a default against it for failure to appeal', and it is not involved in this appeal. In this opinion, references to the defendant are to the defendant Rose Marie Cymbala.

       The plaintiffs are Edward Rosenfield and Connecticut Investment Company, Inc. Although this appeal was filed by both of the plaintiffs, the plaintiff Connecticut Investment Company, Inc., has neither filed a brief in its individual capacity nor joined in the brief filed by the plaintiff Edward Rosenfield. We, therefore, consider its appeal abandoned. Smith v. Nationwide Mutual Ins. Co., 214 Conn. 734, 735 n.1, 573 A.2d 740 (1990). References to the plaintiff in this opinion are to the plaintiff Edward Rosenfield.

       The plaintiff Edward Rosenfield, brought the prior foreclosure action by way of a complaint in two counts, the first of which was disposed by summary judgment on June 16, 1990. A trial to the court proceeded on the second count, which sought a foreclosure of the mortgage.

       Practice Book § 302 provides: “Dismissal in Court Cases for Failure to Make Out a Prima Facie Case

        “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment, of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       The failure to make out a prima facie case is not necessarily the same as finding the issues for the defendant; see Morrow v. Atlanta & Charlotte Air Line Railway Co., 84 S.C. 224, 242, 66 S.E. 186 (1909); and, therefore, may not always be a decision on the merits, but yet be entitled to res judicata treatment. See Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 14, 578 A.2d 646 (1990); see also Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988).

       The parties do not dispute that the mortgage at issue in this appeal was the subject of the former foreclosure action brought by the plaintiff against the defendant.

       Practice Book, 1963, § 278 provided: “-Nonsuit for Failure to Make Out a Prima Facie Case
      “If, on the trial of any issue of fact in a civil action, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment as in case of nonsuit, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case”

       Unlike judgments by default, disciplinary nonsxxits and disciplinary dismissals are not adjxxdications on the merits nor are they to be treated as such. See Milgrim v. Deluca, 195 Conn. 191, 487 A.2d 522 (1985).

       General Statutes § 52-210 provides: “Motion for nonsuit. If, on the trial of any issue of fact in a civil action, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment as in case of nonsuit, axxd the court may grant such motion, if in its opinion the plaintiff has failed to make oxit a prima facie case.”

       This statute was first codified in General Statutes (1888 Rev.) § 1109 and provided: “When on the trial of any issue ixx fact, in a civil action, the plaintiff shall have produced his evidence axxd rest ed his cause, the defendant may move for judgixient as in case of non-suit, and the court may grant such motion, if in its opinion the plaintiff shall have failed to make out a prima facie case.”

       We note that a similar result is reached under federal law. Under federal practice, a dismissal on the ground that a plaintiffs evidence is insufficient for recovery is with prejudice to a new action unless otherwise ordered by the judge. Fed. R. Civ. P. 41 (b).