author: Daly, J.

text:
    In re Sarah M.

    (7532)
    Dupont, C. J., Daly and Stoughton, Js.
    Argued June 7 —
    decision released August 15, 1989

      Jane S. Scholl, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant (petitioner).

      Thomas F. Gudsnuk, with whom, on the brief, were Barbara L. DeGennaro and Tracy L. Ford, law student intern, for the appellee (respondent father).

      Gary L. Broder, for the appellee (respondent mother).

      Bruce W. Diamond, with whom, on the brief, was Richard M. Marano, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Daly, J.

This appeal involves a petition to terminate the parental rights of the parents of the minor child brought pursuant to General Statutes § 17-43a by the commissioner of the department of children and youth services (DCYS). DCYS appeals from the trial court’s denial of the petition, claiming that trial court erred (1) in finding that there was no claim made concerning the absence of an ongoing parent-child relationship, and (2) in finding that DCYS had not met its burden of proving that the parents had failed to rehabilitate themselves. We find error in part.

The following facts are relevant to the disposition of this appeal. The child was born on December 5, 1981. At that time, the parents were legally married, but living separately. After a short period during which the parents were reunited, they divorced and legal custody of the child was awarded to the mother. In May, 1985, the mother incurred financial difficulties and placed the child in the father’s care. In August, 1985, a DCYS caseworker was assigned to investigate allegations that the child had been sexually abused by her father. The investigation did not indicate that the father had committed any abuse. In September, 1985, the father was awarded legal custody under the conditions that he cooperate with DCYS and reside with his mother. The DCYS caseworker continued his involvement in the case and, on the basis of his conclusion that Sarah was a neglected child, petitioned the trial court for her commitment to DCYS, pursuant to General Statutes § 46b-129 (d). The court granted the petition on November 5,1985. Since that time, the child has been placed in two foster homes, in a hospital for emergency psychiatric treatment, and, since August 1,1986, has been in a facility for emotionally disturbed children.

The same caseworker remained on the case after the child was committed to the care of DCYS. Both parents experienced difficulties dealing with him and specifically requested that DCYS assign a new caseworker, but that request was denied. During that time, the parents did not consistently exercise their visitation rights.

On March 27,1987, DCYS petitioned the court to terminate the parental rights of both parents, alleging (1) that the parents had failed to rehabilitate themselves, pursuant to General Statutes § 17-43a (b) (2), and (2) that the child had been denied by reason of acts of parental commission or omission, the care, guidance or control necessary for her physical, educational, moral or emotional well being, pursuant to General Statutes § 17-43a (b) (3). On April 23, 1987, the court ordered that visitation end but indicated that if the father received counseling, the court would reconsider its order. On August 25, 1987, DCYS amended its petition to include a third allegation that there was an absence of an ongoing parent-child relationship. See General Statutes § 17-43a (b) (4). The court allowed this amendment on September 10, 1987.

On October 17,1988, the trial court denied the petition to terminate the parental rights of both parents, stating (1) that there was no claim that there was an absence of an ongoing parent-child relationship, (2) that DCYS did not meet its burden of proving the parents had failed to rehabilitate themselves, and (3) that DCYS did not meet its burden of proving parental commission or omission. The appeal is based only on the first two findings.

The petitioner’s first claim is that the trial court erred in concluding that DCYS had not stated a claim pursuant to § 17-43a (b) (4). Practice Book § 4061 empowers this court to reverse the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.

The trial court stated in its memorandum of decision that “[tjhere is . . . no claim that there is an absence of an ongoing parent-child relationship.” Our review of the record, however, indicates that that statutory ground was claimed in the amended petition. We conclude that the trial court erred in determining that that statutory basis was not claimed. Accordingly, we must remand for a new hearing on that claim.

The petitioners’ second claim of error is that the trial court’s factual findings, made pursuant to General Statutes § 17-43a (d), and as further stated in its memorandum of decision, are inconsistent with its conclusion that DCYS did not prove by clear and convincing evidence that the parents had failed to rehabilitate themselves, pursuant to § 17-43a (b) (2). We disagree.

“ ‘The termination of parental rights is defined as “the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . .” General Statutes § 17-32a (e) (Rev. to 1972) [now § 45-61b (g)]. Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents and their children “undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 [1972]; see In re Appeal of Kindis, 162 Conn. 239, 240, 294 A.2d 316 [1972]; Cinque v. Boyd, [99 Conn. 70, 82, 121 A. 678 (1923)].’ Anonymous v. Norton, 168 Conn. 421, 425, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). Termination of parental rights is ‘a most serious and sensitive judicial action.’ Id., 430.” In re Luis C., 210 Conn. 157, 164-65, 554 A.2d 722 (1989).

“ ‘Section 17-43a carefully sets out . . . four situations that, in the judgment of the legislature, constitute “countervailing interests” sufficiently powerful to justify the termination of parental rights in the absence of consent. The commissioner of children and youth services, in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds.’ ” Id., 165.

General Statutes § 17-43a (b) (2) empowers the trial court to grant a petition to terminate parental rights if it finds, upon clear and convincing evidence, that “the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child.”

Our Supreme Court has recently held that § 17-43a (b) (2) “requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable ‘within a reasonable time.’ There may be instances in which the evidence does not establish that parental rights should be terminated under this section, despite the fact that continuing support programs for the parent may be suitable or even necessary.” In re Luis C., supra, 167. Moreover, the court must also consider the six factors listed in General Statutes § 17-43 a (d) when determining whether a parent has failed to rehabilitate himself or herself. In re Shavoughn K., 13 Conn. App. 91, 92, 534 A.2d 1243 (1987), cert. denied, 207 Conn. 805, 540 A.2d 374 (1988).

In the present case, the trial court issued factual findings as required by § 17-43a (d). Our review indicates that the fifth factual finding suppports the conclusion that DCYS did not meet its burden of proving lack of rehabilitation. The trial court found that both parents had sufficiently changed their circumstances from 1986 to 1988 to be able to provide proper parenting in the forseeable future. The trial court properly extended its consideration of evidence of the parents’ changed circumstances that had occurred through the end of the trial. See In re Shannon S., 41 Conn. Sup. 145, 146, 562 A.2d 79, aff d, 19 Conn. App. 20, 560 A.2d 993 (1989). The court also properly concluded that the fact that both parents needed further counseling did not mean they had not sufficiently rehabilitated themselves. See In re Luis C., supra. Because it was proper for the court to consider the rehabilitation efforts of both parents through the time of trial, and because its factual finding of rehabilitation is not clearly erroneous, we conclude that the court did not err in determining that DCYS failed to prove its claim.

Likewise, the court’s factual finding in the memorandum of decision supports its conclusion. The court also found that DCYS’ own expert witness, a clinical psychologist who had evaluated both parents in 1986, made no recommendation that either parent receive therapy and that this expert had no knowledge of the mother’s present psychological state.

Our limited function on appeal is to determine whether the trial court’s conclusion regarding termination of parental rights is legally correct and factually supported. In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). Because the trial court’s conclusion was factually supported and legally correct, we conclude that the trial court did not err in denying the petition on this ground.

There is error in part, the judgment with respect to the denial of the petition on the ground of an absence of an ongoing parent-child relationship is set aside and the case is remanded for a new hearing limited to that issue.

In this opinion the other judges concurred.

       The trial court also ordered both parents and Sarah to be evaluated at Newington Children’s Hospital. The evaluation took place in March, 1986.

       In its second factual finding, made pursuant to General Statutes § 17-43a (d), the trial court found partial excuse for both parents’ inconsistent visitation based on their lack of transportation.

       General Statutes § 17-43a (b) (2) provides that the court may order the termination of parental rights if DCYS can prove by clear and convincing evidence, that, for more than one year, the nonconsenting parents of a “child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child.”

       General Statutes § 17-43a (b) (3) provides that the court may order the termination of parental rights if DCYS can prove by clear and convincing evidence, that for more than one year, “the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights.”

       General Statutes § 17-43a (b) (4) provides that the court may order the termination of parental rights if DCYS can prove by clear and convincing evidence, that, for more than one year, “there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.”

       General Statutes § 17-43a (d) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the forseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       The fifth factual finding states, “Although Lynn W. has maintained only sporadic contact with Sarah over the time since her commitment, she has changed her circumstances sufficiently where one could conclude that Sarah could be returned to her in the forseeable future. With counseling and support services this would result. As to Kenneth M., contact was minimal even prior to his visitation being terminated by the court. However, here, too, his current willingness to recognize Sarah’s problems and his willingness to participate in counseling allows one to conclude that he, too, could provide proper parenting within the forseeable future.”

       The petitioner also argued that the trial court’s factual finding that the existence of a personality conflict between the parents and the DCYS caseworker was not caused by any improper action or motive by the caseworker is inconsistent with the trial court’s earlier conclusion that the conflict was part of the reason that DCYS did not meet its burden in proving that the parents failed to rehabilitate themselves. We need not determine whether this specific factual determination is inconsistent with the trial court’s ultimate conclusion because, taken as a whole, the memorandum of decision states other factual findings pertaining to: (1) the parents’ evidence of their changed circumstances; (2) DCYS’ failure to present evidence to the contrary on these changed circumstances; and (3) the court’s determination that Sarah will have to remain at the institution for emotionally disturbed children for at least one year, at which time Lynn W., the mother, could move back to Connecticut and participate in counseling in preparation for the return of her daughter, all of which are consistent with the conclusion that DCYS did not prove its case.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Glenn M. Gold v. University of Bridgeport School of Law et al.
    (7022)
    Spallone, O’Connell and Foti, Js.
    Argued March 14 —
    decision released August 15, 1989

      Max F. Brunswick, with whom was Irving J. Pinsky, for the appellant (plaintiff).

      Richard L. Albrecht, with whom were George Mihalakos and, on the brief, Mary Ann Connors, for the appellees (defendants).
   O’Connell, J.

The plaintiff appeals from the judgment of the trial court setting aside the jury’s verdict on two counts of his three count complaint. He brought this action against the defendant law school and three of its officials seeking money damages and injunctive relief.

The plaintiff, a student at the defendant University of Bridgeport School of Law, was dismissed at the completion of his first year for failing to maintain a minimum grade point average. He applied for readmission and was rejected. Thereafter, he filed this action in three counts alleging (1) fraud, (2) violation of the Home Solicitation Sales Act, and (3) breach of contract. The jury returned a verdict for the plaintiff on the first and third counts, awarding him $12,000, and for the defendants on the second count. The trial court set aside the jury’s verdict on counts one and three, as against the weight of the evidence, and the plaintiff brought this appeal. We find no error.

A trial court’s decision to set aside a jury verdict raises serious issues because of a litigant’s constitutional right to have issues of fact and the assessment of damages determined by a jury. Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988); Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988). “ ‘[A verdict] should not [be] set aside . . . where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality.’ ” Palomba v. Gray, supra, 24; quoting Burr v. Harty, 75 Conn. 127, 129, 52 A. 724 (1902).

It is rudimentary jurisprudence that where a verdict is challenged because of insufficient evidence, the question is whether the jury could reasonably have concluded upon the facts established and inferences reasonably drawn therefrom that the plaintiff had sustained his burden of proof. State v. Miller, 202 Conn. 463, 486, 522 A.2d 249 (1987). On appeal, the evidence will be construed in the light most favorable to supporting the jury’s verdict. Id. The decision to set aside a verdict, however, involves the exercise of the trial court’s broad discretion, which in the absence of a clear abuse will not be disturbed. In reviewing that decision, we accord it great weight and indulge every reasonable presumption in favor of its correctness. Palomba v. Gray, supra.

First Count

The plaintiff alleged, in the first count of his complaint, that the law school’s brochure was a substantial factor in inducing him to matriculate and that certain statements contained therein were untrue. He labeled that count “Fraud and/or Deceptive Trade Practices.” On appeal, he argues that it is based on the Connecticut Unfair Trade Practices Act (CUTPA). General Statutes § 42-110b. The distinction between CUTPA and fraudulent misrepresentation is that while the plaintiff must prove reliance on an alleged fraudulent misrepresentation, reliance is not an element of a CUTPA claim.

Practice Book § 109A expressly requires that “[w]hen any claim made in a complaint ... is grounded on a statute, the statute shall be specifically identified by its number.” The plaintiff, however, failed to identify the CUTPA statute by number. Although § 109A is “directory, rather than mandatory”; Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988); it is apparent that noncompliance with § 109A, in the present case, caused the trial court to treat the count as a claim of fraudulent misrepresentation and not as a CUTPA claim. This is demonstrated by an absence of a reference to the alleged CUTPA claim in the trial court’s instructions to the jury. Rather, it specifically stated that “the plaintiff is seeking to recover damages for fraudulent representations which he claims the defendant made to him . . . .” The plaintiff did not take an exception to the absence of a CUTPA charge or claim it as error on appeal. Accordingly, our review of this count will be limited to common law fraudulent misrepresentation.

The elements of fraudulent misrepresentation are (1) a false representation of a statement of fact, (2) such representation was untrue and either known by the defendants to be untrue or made in careless disregard as to whether it was true or false, (3) such representation was made for the purpose of inducing the plaintiff to act upon it, and (4) the plaintiff did in fact rely upon such misrepresentation to his detriment. Grayson v. Grayson, 4 Conn. App. 275, 287, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987).

The plaintiff argues in his brief that he must prove his case by only a preponderance of the evidence. This is incorrect. “It is well established that fraud must be proven by ‘ “ ‘clear, precise, and unequivocal evidence.’ ” ’ ” Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 181, 540 A.2d 693 (1988); Bound Brook Assn. v. Norwalk, 198 Conn. 660, 666, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986); Cutsumpas v. Connecticut Light & Power Co., 16 Conn. App. 108, 113, 546 A.2d 962 (1988). Thus, we must apply that standard of proof to the evidence presented.

In his statement of the case, filed with this court pursuant to Practice Book § 4065 (c), the plaintiff claimed that the brochure falsely stated (1) that all faculty committees included a student representative when the committee that denied his petition for readmission did not contain such a student representative, and (2) that the law school is housed in a living-learning center in hopes that the students will be intimately involved in the educational experience when, in fact, he had an undesirable room and a requested room change was denied. He also stated that the dean who recruited him had falsely represented that a friendly interaction existed between the students and instructors, where, in fact, there was an atmosphere of fear and intimidation.

Pursuant to Practice Book § 4065 (c) and (d), those are the only issues upon which the plaintiff may rely to support the jury verdict and we will restrict our analysis accordingly. Moreover, because the plaintiff failed, in the argument portion of his brief, to allude to any evidence of a misrepresentation concerning housing accommodations, we will not search the record, sua sponte, for such evidence. See Practice Book § 4065 (d). As a result, that issue will be discussed only in terms of his breach of contract claim.

Turning to the plaintiffs first argument concerning the omission of a student from the academic status (readmission) committee, the record shows that this was not an oversight. Rather, it was by design in order to preclude students from learning the contents of another student’s file. In light of the rule that fraud will not be presumed; Cutsumpas v. Connecticut Light & Power Co., supra, 114; and the reasonable explanation for excluding student representation on the academic status committee, there was insufficient evidence to support a claim that the defendants fraudulently misstated student representation on faculty committees in order to induce the plaintiff to enroll in the school. Furthermore, the plaintiff failed to establish that he relied on this statement when he decided to enroll. Rather, his claim appears to be the result of hindsight after he had been excluded and denied readmission.

The plaintiff’s remaining claim of fraudulent misrepresentation involves alleged statements made by the dean who recruited him. He claims that the dean spoke of the “friendly interaction that existed between the students and the instructors at the University of Bridgeport School of Law.”

While we recognize that this is not a warranty action, we interpret the challenged statements to be more akin to mere “puffing,” as opposed to fraudulent misrepresentation. See Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987). Such “favorable comments by sellers with respect to their products are universally accepted and expected in the market place . . .” and do not give rise to liability. Id.

Moreover, the plaintiffs brief relies on only two incidents, both involving the same professor, to support his claim. In the first situation, the plaintiff asserts that on one occasion the professor bombarded him with questions that culminated in a violent vocal outburst when he perceived that the plaintiff had not properly prepared for class. The second situation the plaintiff presented involved communications between the same professor and a student in the plaintiffs class who is now a practicing attorney. We acknowledge that, on the basis of that former student’s testimony, there did not appear to be a pleasant relationship between him and the professor. We are not convinced, however, that the plaintiff’s reliance on two isolated incidents supports his claim concerning the overall relationship between the student body and the faculty. Nor is it reasonable to conclude that the interaction between one professor and two students is evidence that the plaintiff was induced to enroll in the school by a false representation that there was “friendly interaction between the students and instructors” by a dean who knew that the true relationship was fear and intimidation.

From our review of the plaintiff’s evidence, we are satisfied that the trial court correctly ruled that there was no basis upon which the jury could conclude that the plaintiff had sustained his burden of proving that he was misled or deceived by the defendants’ misrepresentations concerning the law school or its teaching services.

We note that the trial court concluded that the plaintiff failed to sustain his case by a preponderance of the evidence. That standard is, of course, the incorrect standard of proof in a fraudulent misrepresentation case. Verrastro v. Middlesex Ins. Co., supra. If there was insufficient evidence, however, to sustain the plaintiffs burden of proof on the lower preponderance of evidence standard, it is obvious that evidence was lacking to meet the more stringent clear, precise and unequivocal standard. We are satisfied, from our review of the evidence, that the trial court did not abuse its discretion in setting aside the verdict on the first count.

Third Count

The third count is based on breach of a contract to rent the plaintiff a room suitable for living and studying. The gravamen of this count is that the room was not fit for living and studying due to its location directly above a library smoking room. The plaintiff claims that as a result his room was constantly filled with smoke.

The plaintiff became aware of the smoke problem immediately after moving in. Despite the claimed severity of the problem, ‘however, he complained only to a student advisor who lived in the dormitory. He did not file a complaint with the dean of students, the dean of the law school, or with the university’s housing department. Instead, he occupied the room for two semesters, the full academic year, and thus received the benefit of a rental contract from which he now seeks damages for a loss that he could have avoided by the expenditure of reasonable effort. See West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 332, 514 A.2d 734 (1986); 3 Restatement (Second), Contracts § 350, comment (b). Accordingly, we agree with the trial court’s conclusion that the plaintiff failed to offer evidence to support his breach of contract claim and thus, it did not err in setting aside the jury verdict on this count.

There is no error..

In this opinion the other judges concurred.

       Subsection (c) of Practice Book § 4065 provides: “a statement of the NATURE OF THE PROCEEDINGS AND OF THE FACTS OF THE CASE. The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the record or transcript upon which the party relies. The statement of facts should not be detailed or voluminous but must be confined strictly to facts bearing upon the questions raised. An appellant may not rely upon any fact unless it is set forth in his statement of facts or is incorporated into his brief in accordance with subsection (d) hereof.”

       Practice Book § 4065 (d) provides: “The argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the record or transcript.”

       This dean was named as a defendant.

       This professor was named as a defendant.


author: Dupont, C. J.

text:
    Arlene R. Hall et al. v. Angelo Altomari Emma K. Nau et al. v. Arlene R. Hall et al.
    (6969)
    (6970)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 6 —
    decision released August 15, 1989

      Robert M. Wechsler, with whom, on the brief, was Michael Jon Barbarula, for the appellants (plaintiffs in the first case, defendants in the second case).

      M. Dean Montgomery, for the appellee (defendant in the first case).

      Stephen L. Bishop, with whom, on the brief, was Bracken C. O’Neill, for the appellees (plaintiffs in the second case).
   Dupont, C. J.

These appeals, involving two cases that were consolidated for trial, concern the determination of the rights of various parties to a private road. Certain facts are common to both cases. Arlene R. Hall is the owner of a parcel of land located at 1022 Long Ridge Road in Stamford. Merrill Lynch RealtyFairfield, Inc., leases the property from Hall for a real estate business of which Hall is the manager. She is also the owner of a fifty foot wide parcel of land, referred to by the pleadings as a private road, contiguous to the south boundary of the 1022 Long Ridge Road parcel. This road is subject to certain restrictions in favor of other parcels of land, and the interpretation of the language of those restrictions forms the basis for the dispute among the parties.

Hall v. Altomari

The defendant, Angelo Altomari, is the owner of a parcel of land located on the south side of the private road owned by the plaintiff Hall. The defendant’s property, upon which there is a three-family residence and a parking lot, is a one acre interior parcel with no access to Long Ridge Road. The defendant testified that the three families living in the residence require five parking spaces.

The deeds to the defendant’s property contain the following language relative to his rights to the plaintiff’s private road: “Together with a right of way in common with others for all lawful purposes to and from said premises to Long Ridge Road over and across the private road fifty (50) feet in width as shown on said map bordering said premises to the north.”

The plaintiffs’ complaint alleged that the defendant and his tenants were parking as many as five cars on the private road without permission and further alleged that the business of the plaintiff Merrill Lynch RealtyFairfield, Inc., was being harmed by the defendant’s use of the private road for parking. The complaint sought, inter alia, a temporary and permanent injunction restraining the defendant and his tenants from parking on the private road.

The defendant sought, by way of counterclaim, damages for the obstruction and interference with his alleged right-of-way over the road. The counterclaim necessitated a determination as to whether the plaintiffs had obstructed the defendant’s right to use the private road by allowing parking on it and, in addition, whether the defendant had acquired certain rights by adverse possession to park on the plaintiffs’ road.

The attorney state trial referee found that the actual traveled portion of the fifty foot wide road was sixteen feet and recommended that both parties be enjoined from obstructing the sixteen foot traveled portion of the road. In addition, the referee concluded that the defendant had not obtained any right to park on the road by adverse possession, but that the defendant’s deeds granted the right to park on the private road. Accordingly, the referee denied the plaintiffs’ request for an injunction restraining the defendant from parking on the private road and recommended that all parties be permitted to use the untraveled portion of the road for parking.

The plaintiffs filed an objection to the acceptance of the state attorney trial referee’s recommendation and, after a hearing, the trial court overruled the objection and rendered judgment in accordance with the recommendation. The plaintiffs appeal from that portion of the judgment granting to the defendant the right to use the untraveled portion of the private road for parking.

The plaintiffs contend that the attorney state trial referee erred in concluding that the defendant’s deeds granted the right to park on the private road owned by the plaintiff Hall. The plaintiffs claim, rather, that the rights granted by the deeds relative to the road are limited to the rights of ingress to and egress from the defendant’s interior parcel. We agree.

“For a determination of the character and extent of an easement created by deed we must look to the language of the deed, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties.” Mackin v. Mackin, 186 Conn. 185, 189, 439 A.2d 1086 (1982). The determination of the intent behind language in a deed presents a question of law on which our scope of review is plenary Eis v. Meyer, 17 Conn. App. 664, 667-68, 555 A.2d 994, cert. granted on other grounds, 211 Conn. 805, 559 A.2d 1139 (1989).

We conclude on the basis of the language of the deeds, the situation of the parties’ properties and the surrounding circumstances that the defendant’s rights with respect to the private road owned by the plaintiff Hall are limited to the rights of access to and egress from the defendant’s property to Long Ridge Road and do not include the right to park.

“It is well established that a right-of-way granted in general terms may be used for any purpose reasonably necessary for the party entitled to use it.” Hagist v. Washburn, 16 Conn. App. 83, 86, 546 A.2d 947 (1988). The issue of what constitutes reasonable use is a question of interpretation of the particular language used to create the right-of-way.

Unlike the right-of-way at issue in Hagist, the right-of-way at issue in the present case is not one granted in general terms. The defendant’s deeds provide that he is entitled to a right-of-way for all lawful purposes “to and from said premises to Long Ridge Road over and across” the plaintiff Hall’s private road. We interpret the phrase “to and from said premises to Long Ridge Road” in this case as words of limitation restricting the defendant’s rights with respect to the private road to those of ingress and egress.

Even when a right-of-way is granted in broad language, the owner of the dominant estate does not acquire an absolute right to park vehicles on the subject property. See 25 Am. Jur. 2d, Easements and Licenses, § 79. “The language employed is not the only criterion.” Russo v. Stepp, 2 Conn. App. 4, 6, 475 A.2d 331 (1984). Thus, in Russo, a right-of-way granted to the defendant “for purposes of ingress and egress and to use for general driveway purposes(emphasis added) id., 5; was interpreted by this court not to include the right to park vehicles. This conclusion was based on the language of the grant, with consideration given to the situation of the property and the surrounding circumstances. Id.

The situation of the properties and the surrounding circumstances in the present case further support our conclusion that the rights granted by the defendant’s deeds are limited to those of ingress and egress. The defendant’s property has no frontage on Long Ridge Road. Thus, the physical relationship of the properties indicates that the intention of the grant of the right-of-way was to permit access to the defendant’s interior lot over the private road, rather than to permit parking on the road. In addition, there was testimony that the defendant’s property contains a large parking lot adequate to serve the parking needs of the three-family residence located on the defendant’s property.

On the basis of the language of the deeds at issue and the surrounding circumstances, we conclude that the trial court erred in accepting that portion of the attorney state trial referee’s recommendation permitting the defendant to park on the private road owned by the plaintiff Hall.

Nau v. Hall

The plaintiffs, Emma Nau and Wendell Bishop, are the owners, individually and as trustees, of a parcel of land fronting on Long Ridge Road and abutting, on the southwest, the fifty foot wide private road owned by the defendant Arlene R. Hall. The plaintiffs have rights to the defendants’ private road by reason of a deed reservation granting the right to use the private road “to and from Long Ridge Road, for the purpose of access.” For some time prior to the commencement of this action, the plaintiffs have been using the private road for access to the rear of their row of stores located on Long Ridge Road.

The plaintiffs brought suit against the defendants, Hall and Merrill Lynch Realty-Fairfield, Inc., alleging, in the first count of their revised complaint, that the plaintiffs have the right to travel over and across the private road, and that the defendants were blocking portions of the fifty foot wide private road, thereby violating the plaintiffs’ rights to travel over the road. The second count of the plaintiffs’ complaint alleged that the defendants had paved a portion of the plaintiffs’ property. The complaint sought a temporary and permanent injunction restraining the defendants and their tenants, guests and invitees from obstructing the fifty foot wide road and damages for the paving of the plaintiffs’ property.

As to count one, the attorney referee found that the traveled portion of the private road was sixteen feet in width and recommended that an injunction issue, restraining the defendants from interfering with the plaintiffs’ access over a sixteen foot portion of the roadway. In addition, the referee concluded that the plaintiffs have the right to park on the untraveled portion of the roadway. As to count two, the referee recommended judgment in favor of the plaintiffs in the amount of $1559.29 because of the plaintiffs’ “need, or desire” to have the paving, which was erroneously placed on the property, removed.

After overruling the defendants’ objection to the acceptance of the referee’s recommendation, the trial court rendered judgment in accordance with the recommendation. The defendants appeal, claiming that the trial court erred (1) in granting to the plaintiffs the right to park on the private road, and (2) in awarding damages to the plaintiffs.

The defendants’ first claim is that the referee erred in granting to the plaintiffs the right to park on the untraveled portion of the private road when such relief was not sought by the plaintiffs in their revised complaint. We agree.

The first count of the plaintiffs’ revised complaint alleged that the defendants were obstructing the private road and thereby interfering with the plaintiffs’ right to use the entire fifty foot wide road as an access way. The issue at trial related only to the actual width of the right-of-way. Thus, the issue of the plaintiffs’ right to park on the road was not raised by the pleadings or by-the evidence at trial. The plaintiffs did not request any relief with respect to the right to park on the private road. The court therefore, erred in granting relief over and above that sought by the plaintiffs. Phillips v. Palakewitz, 17 Conn. App. 476, 480, 553 A.2d 1160 (1989); Lichteig v. Churinetz, 9 Conn. App. 406, 412, 519 A.2d 99 (1986). Furthermore, the language of the reservation and the circumstances of the parties would not lead to the conclusion that parking on the road was included.

The defendants also claim that the referee erred in awarding damages to the plaintiffs for the defendants’ paving of the plaintiffs’ property. The referee’s finding, as adopted by the trial court, was that when the defendants improved a portion of the private road, they mistakenly paved a portion of the plaintiffs’ property and that the plaintiffs had the blacktop removed at a cost of $1599.29. Accordingly, the referee recommended judgment against the defendants in the amount of $1599.29. The defendants claim that the trial court erred in awarding damages to the plaintiffs because the plaintiffs did not present any evidence of a diminution in the value of their property as a result of the paving.

“ ‘Some damage necessarily follows any wrongful invasion of another’s property. . . .’ Patalano v. Chabot, 139 Conn. 356, 362, 94 A.2d 15 (1952).” (Citations omitted.) Kelly v. Ivler, 187 Conn. 31, 45-46, 450 A.2d 817 (1982). An award of substantial damages, however, requires a showing of an actual, rather than a mere technical injury. Mackin v. Mackin, supra, 190.

The present case does not involve an extensive change to the realty or a significant risk of unreasonable economic waste. Compare Spera v. Audiotape Corporation, 1 Conn. App. 629, 474 A.2d 481 (1984). The cost of restoration here was relatively little and was impliedly found not to exceed the former value of the property, nor did the paving significantly enhance the value of the property over its value before the injury. See Ratner v. Willametz, 9 Conn. App. 565, 520 A.2d 621 (1987).

The referee found that the cost of restoring the property to its former condition, that is,, removal of the blacktop, amounted to $1559.20, and measured the damages by the cost of restoration or repairs. There was an implied finding that there was no extensive change to the realty. On this record, the measure of damages used was justified.

In Hall v. Altomari, there is error and that portion of the judgment granting the defendant the right to park on the right-of-way is set aside.

In Nau v. Hall, there is error as to the first count and that portion of the judgment granting the plaintiffs the right to park on the right-of-way is set aside; there is no error as to the second count.

In this opinion the other judges concurred.

       The plaintiffs are Arlene R. Hall and Merrill Lynch Realty-Fairfield, Inc.


author: Stoughton, J.

text:
    State of Connecticut v. Timothy Drake
    (6719)
    Stoughton, Norcott and Foti, Js.
    Argued June 21 —
    decision released August 15, 1989

      Steven J. DeFrank, special public defender, with whom, on the brief, was William M. Bloss, special public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Warren Murray, deputy assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant has appealed from the judgment following his conviction by a jury of burglary in the second degree, in violation of General Statutes § 53a-102, unlawful restraint in the second degree, in violation of General Statutes § 53a-96, and falsely reporting an incident, in violation of General Statutes § 53a-180.

The jury could reasonably have found the following facts. On the night of March 13, 1987, the defendant abandoned his car near Gallagher’s Estate in Norwalk. He proceeded on foot to a house in Norwalk where the victim, a young woman, was asleep in an upstairs bedroom. The victim had left a light on in the downstairs living room and in the upstairs hallway. She was awakened at around 3 a.m. by the defendant’s pounding on the back door of the house. She then heard shattering glass. As she was dialing for the police, the defendant came into the bedroom and said to her, “Put down the phone. I’m not here to rob you. I’m running from the police.” He told the victim that the house was surrounded by police, that the police had stopped him for speeding, and that he was on parole. The victim also testified that the defendant was bigger than she.

The defendant then stayed with the victim for one hour and forty minutes. During that time, he told the victim where he had abandoned his car, had two glasses of water, and made four telephone calls. Finally, a woman drove up in a station wagon and parked in the driveway of the victim’s house. The defendant instructed the victim to allow the woman into the house. The defendant then instructed the woman to go back outside and make sure that no police were lurking about the house. After the woman went outside to look around, she flashed the headlights of her station wagon. The defendant then left the house and drove off with the woman in the station wagon. The police determined the defendant’s identity from the registration of the car he had abandoned, from blood samples in the home, and from the victim’s identification.

The defendant reported his car stolen on the morning of March 14. Later that day, the police called him, told him that they had found his car, and asked him to come down to the station to claim it. Thereafter, the defendant arrived at the Norwalk police station where he was arrested pursuant to a warrant.

On appeal, the defendant claims that the trial court erred in failing to render a judgment of acquittal on the convictions for burglary and unlawful restraint. He does not challenge his conviction for falsely reporting an incident.

The defendant claims that there was insufficient evidence to support the convictions for burglary and unlawful restraint, and that the trial court deprived him of his right to a unanimous verdict. He seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 536 (1973).

We first give these claims a limited review under State v. Evans, supra, in order to determine whether they are truly of constitutional proportions or are merely characterized as such by the defendant. State v. Utz, 201 Conn. 190, 208, 513 A.2d 1191 (1986). The record adequately supports an allegation that the claim of insufficiency of evidence with respect to the burglary and unlawful restraint convictions is of constitutional proportions; see State v. Ruth, 16 Conn. App. 148, 153, 547 A.2d 548 (1988); State v. Dickson, 10 Conn. App. 462, 464, 523 A.2d 935 (1987); and therefore we review these claims.

The defendant’s first claim of error is that there was insufficient evidence to support his conviction on the burglary count. He contends that no evidence was presented to show that he had the intent to commit a crime within the dwelling at the exact moment that he unlawfully entered it.

The standard of review of a claim of insufficiency of evidence is well established. We consider the evidence in the light most favorable to sustaining the jury’s verdict, and we will affirm that verdict if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Cates, 202 Conn. 615, 627, 522 A.2d 788 (1987); State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). After carefully reviewing the record in this case, we find ample evidence to support the defendant’s convictions. The nature of the defendant’s entry was itself evidence from which the jury could infer his intent to commit a crime within the house. As our Supreme Court stated in State v. Little, 194 Conn. 665, 675, 485 A.2d 913 (1984), “[t]he time, manner and forcible nature of the entry permitted a reasonable inference, based on human experience, that the unlawful entry by the defendant was hardly without purpose, but rather was with the intent to commit a crime therein.” There is no merit to this claim.

The defendant next contends that there was insufficient evidence to support his conviction for unlawful restraint because there was no evidence that he assaulted or threatened the victim or that force was imminent.

“Restrain” is defined in General Statutes § 53a-91 (1) as “to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (a) deception and (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.”

There was sufficient evidence for a reasonable jury to conclude that the defendant had confined the victim in her home without her consent. The defendant confronted the victim in her bedroom at 3 a.m. He told her to put down the phone she was holding. He was larger than the victim and appeared to be “almost desperate.” He told the victim that he was on probation or parole and that he was running from the police because he could be sent back to jail. The defendant also told the victim that police with dogs were surrounding the house and that he would be shot. The victim testified that she felt terrorized and did not flee from the house because she was afraid the defendant would chase after her. This was sufficient evidence that the defendant’s acts substantially interfered with the victim’s liberty. See State v. Bell, 188 Conn. 406, 416, 450 A.2d 356 (1982). We reject the defendant’s claim that there was not enough evidence to sustain his conviction of unlawful restraint.

We turn finally to the defendant’s claim that he was deprived of his right to a unanimous verdict by the court’s charge on burglary in the second degree.

The defendant claims that the jury could have convicted him on one of two theories of criminal liability for burglary. Under General Statutes § 53a-102, a burglary occurs whenever a person enters or remains unlawfully in a dwelling at night with intent to commit a crime therein. The state presented evidence that the defendant unlawfully entered the victim’s dwelling and unlawfully remained there.

The defendant claims that the trial court erred in failing “to limit its charge to the unlawful entry alternative.” Having given this claim a limited review under State v. Evans, supra, we conclude that it is not truly of constitutional proportions.

A unanimity charge on a specific act is required only if the alternative acts are conceptually distinct from each other and there has been supporting evidence on each act. State v. Delgado, 19 Conn. App. 245, 247-48, 562 A.2d 539 (1989); see also State v. Belton, 190 Conn. 496, 504, 461 A.2d 973 (1983). Our resolution of this claim is controlled by our opinion in State v. Delgado, supra. Here, as in Delgado, there is no conceptual difference between entering unlawfully and remaining unlawfully, nor was there any evidence of an initial lawful entry. See State v. Delgado, supra, 248-49; see also State v. Belton, supra (defendant testified he entered lawfully). Consequently, the defendant was not entitled to a unanimity charge, see State v. Delgado, supra; see also State v. Suggs, 209 Conn. 733, 762, 553 A.2d 1110 (1989). There is no merit to this claim.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-102 provides: “(a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.
      “(b) Burglary in the second degree is a class C felony.”

       General Statutes § 53a-96 provides: “(a) A person is guilty of unlawful restraint in the second degree when he restrains another person.
      “(b) Unlawful restraint in the second degree is a class A misdemeanor.”

       General Statutes § 53a-180 provides: “(a) A person is guilty of falsely reporting an incident when, knowing the information reported, conveyed or circulated to be false or baseless, he: (1) Initiates or circulates a false report or warning of an alleged occurrence or impending occurrence of a fire, explosion, crime, catastrophe or emergency under circumstances in which it is likely that public alarm or inconvenience will result; or (2) reports by word or action, to any official or quasi-official agency or organization having the function of dealing with emergencies involving danger to life or property, an alleged occurrence or impending occurrence of a fire, explosion or other catastrophe or emergency which did not in fact occur or does not in fact exist; or (3) gratuitously reports to a law enforcement officer or agency (A) the alleged occurrence of an offense or incident which did not in fact occur, (B) an allegedly impending occurrence of an offense or incident which in fact is not about to occur, or (C) false information relating to an actual offense or incident or to the alleged implication of some person therein.
      “(b) Falsely reporting an incident is a class A misdemeanor.”


text:
    Frank Sabino v. Virginia Ruffolo
    (7376)
    Dupont, C. J., Daly and Stoughton, Js.
    Argued May 9 —
    decision released August 22, 1989

      Richard A. O’Connor, with whom, on the brief, was Michael S. McKenna, for the appellant (plaintiff).

      Richard D. Arconti, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the trial court’s dismissal of his action against a member of a general partnership from which he purchased a cooperative apartment unit in New York City. In his complaint, the plaintiff alleged that the partnership had fraudulently represented to him at the time of the sale that the apartment was unencumbered when, in fact, the partnership had previously pledged the stock controlling the unit to a lending institution. The plaintiff obtained a prejudgment attachment on the defendant’s Connecticut residence in the amount of $110,000. The attachment was subsequently replaced by an escrow account. The defendant simultaneously filed a motion to dismiss and a motion to strike the complaint. The motion to dismiss was premised upon forum non conveniens and failure to join indispensable parties. The trial court granted the motion to dismiss on the ground of forum non conveniens rather than on the alleged failure to join indispensable parties.

The first issue raised is whether the filing of the motion to dismiss simultaneously with the motion to strike constituted a waiver of the right to file the motion to dismiss. Practice Book § 112 sets forth the order in which pleadings are to be filed. It states that a motion to dismiss is to be filed before a motion to strike. Practice Book § 113 states that “[i]n all cases, when the court does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.” (Emphasis added.) Thus, generally, pleadings are not to be filed out of the order specified in § 112, and the filing of a pleading listed later in the order set out by § 112 waives the right to be heard on a pleading that appears earlier on the list.

The very words of § 113, “when the court does not otherwise order” indicate, however, that the court has discretion to allow the filing of pleadings out of order. Section 6 of the Practice Book supports this view by allowing for the liberal interpretation of the rules where “strict adherence to them will work surprise or injustice” because the very design of the rules is “to facilitate business and advance justice.”

In Burton v. Planning Commission, 209 Conn. 609, 615, 553 A.2d 161 (1989), a distinction was drawn between Practice Book §§ 143 and 155, the language of which specifically provides sanctions for failure to file documents in a timely manner, and § 380, which does not contain an automatic sanction. The court held that a rule with a built-in sanction was mandatory, while one without such a sanction could be waived at the court’s discretion. The presence of the language “when the court does not otherwise order” in § 113 demonstrates that no such automatic sanction was intended with respect to the order of pleadings. Therefore, the trial court had discretion to overlook the simultaneous filing of the motion to dismiss and the motion to strike and to consider the motion to dismiss.

The plaintiff next claims that the trial court abused its discretion by granting the defendant’s motion to dismiss on the ground of forum non conveniens. We agree.

The standard of review usually applied for a forum non conveniens dismissal is abuse of discretion. Piper Aircraft v. Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981), reh. denied, 455 U.S. 928, 102 S. Ct. 1296, 71 L. Ed. 2d 474 (1982); Gulf Oil v. Gilbert, 330 U.S. 501, 511-12, 67 S. Ct. 839, 91 L. Ed. 1055 (1947); Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 64 (2d Cir. 1981); Union Carbide Corporation v. Aetna Casualty & Surety Co., 212 Conn. 311, 319, 562 A.2d 15 (1989); Brown v. Brown, 195 Conn. 98, 486 A.2d 1116 (1985); Szmyd v. Szmyd, 641 P.2d 14, 18 (Alaska 1982); Loper v. Superior Court, 126 Ariz. 14, 17, 612 P.2d 65 (1980); Plas v. Superior Court, 155 Cal. App. 3d 1008, 1018, 202 Cal. Rptr. 490 (1984).

As a rule, when a court finds it has jurisdiction over a cause of action, it has both the right and the duty to exercise that power. Conn. Const., art. I, § 10; England v. Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964). The common law doctrine of forum non conveniens is an exception to the general rule that a court must hear and decide cases over which it has jurisdiction by statute or constitution, and recognizes the discretion of a court, in some few instances, where jurisdiction and venue are proper; Gulf Oil v. Gilbert, supra; to dismiss a suit because the court has determined that another forum is better suited to decide the issues involved. Miller v. United Technologies, 40 Conn. Sup. 457, 459, 515 A.2d 386 (1986); Digital Equipment v. International Digital Systems, 130 N.H. 362, 540 A.2d 1230 (1988).

Courts invoke the doctrine of forum non conveniens with caution, and only in exceptional circumstances that demonstrate both inconvenience and hardship. Bechtel Corporation v. Industrial Indemnity Co., 86 Cal App. 3d 45, 150 Cal. Rptr. 29 (1978); Casey v. Truss, 720 P.2d 985 (Colo. App. 1986); Leeper v. Leeper, 116 N.H. 116, 118, 354 A.2d 137 (1976).

Although the federal courts have long recognized the principle of forum non conveniens; Piper Aircraft v. Reyno, supra; Gulf Oil v. Gilbert, supra; the degree to which the states apply it varies. See Texas City Refining Inc. v. Grand Bahama Petroleum Co., 347 A.2d 657 (Del. 1975); Digital Equipment v. International Digital Systems, supra; Semanishin v. Metropolitan Life Ins. Co., 46 N.J. 531, 218 A.2d 401 (1966).

In Connecticut, case law is scant on the doctrine of forum non conveniens. The Supreme Court in Brown v. Brown, supra, noted, in passing, the existence of the doctrine of forum non conveniens at common law. Id., 108. Although dismissal was granted in Brown, that case is distinguishable from the one before us. Brown did not involve the common law doctrine of forum non conveniens, but instead addressed dismissal under the statutory inconvenient forum provision of the Uniform Child Custody Jurisdiction Act. General Statutes § 46b-97 (a), (b); Brown v. Brown, supra; see also Kioukis v. Kioukis, 185 Conn. 249, 440 A.2d 894 (1981).

In Miller v. United Technologies Corporation, supra, the cause of action arose out of an airplane crash in Egypt. Those injured in the crash were Egyptian citizens, and the only nexus with Connecticut was the design and manufacture of some of the parts of the airplane. After extensive analysis, the motion to dismiss was, nevertheless, denied.

The case of Union Carbide Corporation v. Aetna Casualty & Surety Co., supra, recognizes the existence of the common law doctrine of forum non conveniens and upholds the dismissal by the trial court of an action on the basis of the doctrine. The case, however, concerns jurisdiction by Connecticut’s long arm statute, multiple parties, complex litigation, and a plaintiff amenable to having the action proceed elsewhere.

The United States Supreme Court has laid oüt a forum non conveniens analysis in a series of decisions; Piper Aircraft v. Reyno, supra; Gulf Oil Corporation v. Gilbert, supra; In re Union Carbide Corporation Plant Disaster at Bhopal, India, 634 F. Sup. 842, 846, modified, 809 F.2d 195 (S.D.N.Y. 1986) (Bhopal); and a few states have adopted that analysis. Texas City Refining v. Grand Bahama Petroleum Co., supra; Digital Equipment v. International Digital Systems, supra. Although the federal analysis is a useful guide, for analyzing state cases; Union Carbide Corporation v. Aetna Casualty & Surety Co., supra; the operation of the forum non conveniens doctrine, when invoked by a federal court, differs in several important respects from its operation when invoked by a state court.

Under the United States constitution, the federal courts are courts of limited jurisdiction. U.S. Const., art. Ill, § 2. Thus, a party is entitled to bring an action in federal court only in a limited number of circumstances and only upon an affirmative showing that the case is within the competence of the federal courts, as defined in the constitution.

State courts, on the other hand, have jurisdiction over all types of cases except those few that congress or the constitution have specifically removed from their jurisdiction. See U.S. Const., art. III, § 2. Therefore, states bear the ultimate responsibility for providing their citizens with a forum in which to resolve their differences. Ferreira v. Ferreira, 9 Cal. 3d 824, 512 P.2d 304, 109 Cal. Rptr. 80 (1973); Bechtel Corporation v. Industrial Indemnity Co., supra; Kelce v. Touche Ross & Co., 191 Colo. 202, 557 P.2d 374 (1976). When a litigant properly presents his concerns before a state court, that court should not lightly sweep those concerns under the putative judicial carpet of another state. Connecticut’s constitution specifically assures the citizens under its protection that the state’s courts will be open for the resolution of their disputes. Conn. Const., art. I, § 10. Thus, Connecticut’s courts should be even more reluctant than federal courts to dismiss claims that are properly before them.

When a federal court decides not to hear a case because it has determined that some other forum is more appropriate, the court has two choices. It can dismiss on the ground of forum non conveniens, in which case the suit can be reinstituted under identical procedures, embodied in the federal rules of civil procedure, in another federal district court; Gulf Oil Corporation v. Gilbert, supra, 504; or the original court can transfer the case under 28 U.S.C. § 1404 (a). In the former case, the plaintiff is assured of another procedurally identical forum within the federal system. Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964). In the latter case, not only does the federal system assure the plaintiff another forum with the same procedural law as the original court would have provided, but the court to which the case is transferred will apply the same substantive law as the original court would have used. In re Union Carbide Corporation Plant Disaster at Bhopal, India, supra.

In contrast, when a state court decides that another state’s courts constitute a more convenient forum, the state effectively closes its doors to the plaintiff, leaving him to take his chances in an entirely different judicial system. In some cases, he may be left with no forum at all. Furthermore, the second state may apply different conflict of laws rules, resulting in the application of a different body of substantive law. In any case, the plaintiffs remedy is inevitably delayed while he again attempts to obtain personal jurisdiction over the defendant and to institute a new action. In the interim, the statute of limitations may have run, the plaintiff may find that no adequate remedy is available to him in the new forum, or he may lose the benefit of a prejudgment remedy obtained in the first state.

The trial court found, in the case before us, that the defendant, as a member of a New York partnership, would be amenable to process in New York. There was no guarantee, however, on the basis of the facts known to the trial court, that the defendant, in fact, would be amenable. The court also found that New York would be a more convenient forum because the partnership, the contract, the property allegedly conveyed under the contract, and the plaintiffs current residence are all in New York. These factors tend to favor a New York forum, but, in both the federal and state courts, there is a well settled presumption strongly favoring a plaintiffs choice of his home forum. Gulf Oil Corporation v. Gilbert, supra, 508; Digital Equipment v. International Digital Systems, supra, 364. At the initiation of this suit, both the plaintiff and the defendant resided in Connecticut. Therefore, the plaintiff is entitled to this presumption in his favor. Casey v. Truss, supra; Leeper v. Leeper, supra.

The defendant argues that the suit can be reinstituted in New York “without inconvenience or prejudice” to the plaintiff. That assertion is belied by the facts. When the plaintiff filed suit, he obtained a prejudgment attachment on the defendant’s Connecticut residence. The attachment was subsequently replaced by an escrow account in the amount of $110,000. Dismissal of the plaintiffs action would result in the loss of that fund, and there is only speculation as to whether the defendant has sufficient assets in New York to establish a similar account or whether the New York court would establish such a fund. Therefore, dismissal not only would deny the plaintiff his choice to litigate in his home forum, as he is ordinarily entitled to do, but would strip him of any assurance that an adequate remedy would be available to him in the event that he ultimately prevailed in New York.

The common law doctrine of forum non conveniens, which originated in a unified British court system, is difficult to transplant to our federal system. The diverse laws, procedures and remedies available in the various states cause the doctrine to be unworkable or unjust in many instances. Therefore, except where extraordinary circumstances exist, the doctrine should not be applied by state courts. Such circumstances may include, in combination, or, in some instances standing alone, multiple parties, uniform child custody statutes or other uniform statutes, long arm statutes, complex litigation, or a great geographical distance between the original forum and the locus of the cause of action. See, e.g., Union Carbide Corporation v. Aetna Casualty & Surety Co., supra. Unless such special and extraordinary circumstances exist, there is no need to undertake the analysis that the federal cases have used. See Gulf Oil Corporation v. Gilbert, supra.

In the present case, none of these special circumstances is present. Both the plaintiff and the defendant were Connecticut residents when the suit was filed. The case involves adjacent states, two parties with a relatively simple and straightforward contract dispute, and does not involve special legislation or a uniform act. Furthermore, the loss of the existing escrow account, which would result from dismissal, could deprive the plaintiff of a remedy. See Texas City Refining, Inc. v. Grand Bahama Petroleum Co., supra. The trial court’s dismissal of the action on the ground of forum non conveniens, therefore, constituted an abuse of discretion. Digital Equipment v. International Digital Systems, supra, 365.

There is error, the judgment of dismissal is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The trial court, in a judgment dated August 17,1988, denied the motion to strike. The plaintiff, therefore, had no need to appeal from that judgment. On December 19, 1988, this court ordered the trial court to articulate its reasons for granting the defendant’s motion to dismiss. The court complied with the order, but, after having discussed the reason for its judgment of dismissal, went on to discuss the defendant’s motion to strike. In that discussion, the court stated, contrary to its prior judgment, that the motion to strike was denied in part, and granted, in part. The court’s discussion of the motion to strike in its articulation is without effect and is superfluous because, having granted the motion to dismiss, there was no need for the discussion, and because the appeal and the articulation issued in connection with the appeal concerned only the motion to dismiss, the motion to strike having been denied prior to the appeal.

       The trial court held that the claim that the plaintiff had failed to join indispensable parties was not an appropriate basis for a motion to dismiss and, accordingly, based its granting of the defendant’s motion to dismiss solely on the ground of forum non conveniens.


author: Per Curiam.

text:
    Gregory Hughes et al. v. Town of Glastonbury
    (7551)
    Borden, Spallone and Foti, Js.
    Argued June 22 —
    decision released August 22, 1989

      Snow Gene Munford, for the appellants (plaintiffs).

      Andrew J. O’Keefe, with whom, was Maureen Sullivan Dinnan, for the appellee (defendant).
   Per Curiam.

In this public nuisance action arising from an automobile accident, the plaintiffs appeal from the judgment rendered after a jury verdict in favor of the defendant. The plaintiffs claim that the court erred (1) in refusing to allow a hypothetical question to the plaintiffs’ expert in the absence of certain facts, (2) in allowing into evidence an out-of-court statement of a passenger in the automobile, (3) in denying the plaintiffs’ motion in limine, (4) in admitting as prior inconsistent statements the complaints of four other lawsuits brought by the plaintiffs, (5) in admitting certain testimony, on cross-examination of the plaintiffs’ expert, regarding the exercise of reasonable care, and (6) in its charge to the jury on nuisance. We find no error.

The named plaintiff, Gregory Hughes, was injured in a one car accident. He and his father commenced this action against the town of Glastonbury, alleging nuisance in the town’s failure properly to mark, illuminate and maintain the stretch of roadway where the accident occurred. The plaintiffs have appealed several evidentiary rulings and the court’s instructions to the jury on the law of nuisance.

The plaintiffs’ first five claims attack the evidentiary rulings of the court. We find these claims to be merit-less. The evidentiary rulings at issue involve the trial court’s discretionary function and, therefore, will be disturbed on appeal only upon a showing of an abuse of that discretion. Leech v. Rozbicki, 17 Conn. App. 352, 353, 552 A.2d 451 (1989). Our review indicates that the court’s actions were clearly within its discretionary-authority.

The plaintiffs did not properly preserve, for purposes of appellate review, the issue of the court’s instruction to the jury on nuisance. Practice Book § 4165 (d) (1). Accordingly, they have waived their right to press the claimed error on appeal. State v. Hardison, 16 Conn. App. 142, 143 n.1, 546 A.2d 968 (1988). The plaintiffs claim this issue qualifies for review under the plain error doctrine. Practice Book § 4185. “ ‘Such 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. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).” Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223 (1987). We find that this case does not present such an extraordinary situation and, therefore, does not merit review under the plain error doctrine.

We have carefully considered each of the plaintiffs’ claims of error including a plenary review of the record, transcript and briefs of both parties. The plaintiffs, as the appellants, have the burden of showing that there was error in the judgment from which the appeal was taken. Coles v. Coles, 17 Conn. App. 831, 832, 553 A.2d 1169 (1989). After affording the appropriate scope of review, we find that the plaintiffs have not met their burden.

There is no error.


text:
    Galt Booth et al. v. Robert C. Flanagan, Administrator (Estate of Carol A. Schroff), et al.
    (7580)
    Borden, Daly and Foti, Js.
    Argued June 15 —
    decision released August 22, 1989

      Bruce L. Elstein, with whom, on the brief, was Henry Elstein, for the appellants (plaintiffs).

      Roger J. Frechette, with whom, on the brief, was Matthew E. Frechette, for the appellee (named defendant).

      Roger Sullivan, for the appellees (defendants Stephen W. Yardan and Gary W. Flesche).
   Per Curiam.

This is a suit based on a contract to purchase real estate from an estate, entered into between the plaintiffs and one of the defendants, the former administrator of the estate. Subsequent to the contract, the decedent’s will was admitted to probate. The other defendants are various executors and successor executors of the estate. The suit is in five counts: one count for specific performance of a contract; two counts claiming damages for an alleged breach of a duty of the defendants to submit the contract to the Probate Court for approval; one count for damages based on promissory estoppel; and one count for an injunction to require the defendants to submit the contract to the Probate Court for approval. The defendants had raised numerous special defenses, among them that the court lacked subject matter jurisdiction based on General Statutes § 47-33a. The trial court, Berdon, J., had earlier denied the defendants’ motion to dismiss for lack of subject matter jurisdiction.

At the time of trial, the parties were before the court, Clark, J., arguing the defendants’ motion to strike from the jury docket and certain objections of the defendants to the plaintiffs’ responses to discovery requests and requests for admission. Without notice to the parties, the court sua sponte found that a motion for summary judgment was “posed” by the defendants in the course of their oral arguments on the motions to strike the case from the jury docket. The court thereupon found that there was no genuine issue of fact regarding the defendants’ special defense based on General Statutes § 47-33a, and that the defendants were therefore entitled to judgment as a matter of law. The court dismissed the case for lack of subject matter jurisdiction based on General Statutes § 47-33a. This appeal followed.

The court erred in rendering a summary judgment based on what it considered to be an oral motion for summary judgment raised during the argument on the motion to strike from the jury docket. The court had no written motion, and no facts established before it by way of affidavits, depositions or other documentary proof. See Practice Book §§ 378 through 384. Furthermore, the proper way to challenge subject matter jurisdiction is by a motion to dismiss, rather than a motion for summary judgment. See Practice Book § 143.

We reject the defendants’ argument that the court’s judgment should be upheld nonetheless because the court lacked subject matter jurisdiction. With respect to the defendants’ claim based on General Statutes § 47-33a, that claim affected only the specific performance count. The plaintiffs’ claims for damages and for an injunction do not fall within the provisions of General Statutes § 47-33a. See General Statutes § 47-33a (c), footnote 1, supra. Furthermore, there were no facts, either established of record or undisputed, to compel the trial court to conclude that it lacked subject matter jurisdiction over the claim for specific performance; see, e.g., Brookfield v. Hutchins, 126 Conn. 435, 440, 11 A.2d 853 (1940); Hall v. Pierson, 63 Conn. 332, 348, 28 A. 544 (1893); 1 W. Locke & P. Kohn, Connecticut Probate Practice § 73; and none of the cases cited by the defendants compel that conclusion. Furthermore, the plaintiffs argue that they are able to establish facts that will take the case out of the terms of the statute. That issue should have been litigated in a more orderly fashion than was afforded the plaintiffs here. See Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 703, 556 A.2d 602 (1989).

There is error, the judgment is set aside and the case is remanded for further proceedings according to law.

       “[General Statutes] Sec. 47-33a. action on agreement to sell real estate, (a) No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed, unless the interest is extended as provided herein or unless action is commenced within the period to enforce the agreement and notice of lis pendens is filed as directed by section 52-325.
      “(b) The interest may be extended only by reexecution of the written agreement or by execution of a new written agreement, provided the agreement, whether reexecuted or newly executed, shall be recorded as directed by sections 47-10 and 47-17. The périod provided by this section shall not otherwise be extended, whether because of death, disability or absence from the state or for any other reason. Upon the expiration of an interest the title to property affected by the interest shall not thereafter be considered unmarketable because of the expired interest.
      “(c) Nothing in this section shall be construed to limit or deny any legal or equitable rights a party may have under the agreement except the right to have the agreement specifically enforced.”


text:
    Sharon Patricia Carlos v. Don Anthony Carlos
    (7412)
    Borden, Stoughton and Norcott, Js.
    Argued June 15 —
    decision released August 22, 1989

      Joseph V. Meaney, Jr., with whom, on the brief, was Thomas A. Burke, for the appellant (defendant).

      Gerald L. Garlick, with whom, on the brief, was H. David Leventhal, for the appellee (plaintiff).
   Per Curiam.

This is an appeal by the defendant from the judgment of the trial court dissolving the marriage of the parties, dividing the marital assets and granting certain other relief. The defendant claims that the trial court erred in making its financial orders.

The court found the following facts. Shortly after the parties were married, the plaintiff began working for the defendant’s company, a rapidly growing sales organization. In order to support a lavish life-style, they withdrew funds from the corporation, which created a severe cash flow problem for the corporation. The plaintiff, in her capacity as the office manager, failed to pay withholding and other taxes and expenses, and borrowed funds to sustain the corporation. The court found that the defendant is the sole owner of the business. It recited certain facts as having been stipulated to, and then made the financial orders of which the defendant complains.

During the trial, the parties stipulated to the following facts:

1. The plaintiff has an earning capacity of approximately $40,000 per year;

2. The Birch Road property is worth $340,000;

3. The Hurlbut Street property is worth $360,000;

4. The plaintiff’s jewelry is worth $7000.

In its memorandum of decision, the trial court made the following statement:

“The parties have stipulated to and the court so finds, the following facts.
“1. The plaintiff, although not presently employed, has an earning capacity of approximately $40,000 per year.
“2. The parties’ jointly owned real estate located on Birch Road in Bloomfield has a value of $340,000 and is subject to a first mortgage of approximately $43,000. In addition thereto it is encumbered by liens to the Internal Revenue Service, the State of Ohio and Connecticut National Bank totaling approximately $392,000. The plaintiff is personally liable only for the Connecticut National Bank lien of $304,000.
“3. The defendant’s property located at 53 Hurlbut Street in West Hartford is valued at $360,000 and is subject to a first mortgage of $149,000, the previously described liens of $392,000 and additional liens of $162,000.”

The court found that the defendant’s solely owned business, although insolvent, had a positive value that the court did not have to establish because the plaintiff claimed no interest in it.

After stating that it had reviewed, weighed and considered all of the evidence and applied the applicable law, the court’s judgment dissolving the marriage contained the following orders:

1. That the defendant hold the plaintiff harmless from any debts owed by his business, including any indebtedness due to the Connecticut National Bank;

2. That the defendant pay to the plaintiff $118,000, payable over five years at an annual interest rate of 10 percent and in monthly installments of $2294.69;

3. That the plaintiff may secure payment of this judgment by a lien on the real estate located at Birch Road, Bloomfield, and Hurlbut Street, West Hartford;

4. That, in lieu of installment payments, the defendant may pay the plaintiff $106,000 within 30 days;

5. That upon full payment, the plaintiff shall quitclaim her interest in the Birch Road, Bloomfield, property to the defendant.

The defendant correctly points out that the parties never stipulated as to the encumbrances on the various properties. There was testimony from which the court might have found that there were liens on both properties in favor of the Internal Revenue Service in the amount of $280,000, the state of Ohio in the amount of $60,000 and Connecticut National Bank in the amount of $304,000. These amounts total $644,000, not $392,000.

There also was testimony that the amount due the Internal Revenue Service was “at least $180,000.” It is true, as the plaintiff argues, that the figure of $392,000 may be arrived at by using $180,000 instead of $280,000 and including only one half of the $304,000 bank debt. Adding $180,000, $60,000 and $152,000 would produce a total of $392,000 for the encumbrances.

More important than any speculation about how the trial court might have arrived at the amount of the encumbrances is the fact that the parties had never agreed on these figures. We read the memorandum of decision as stating that the parties stipulated to facts including the total amount of the encumbrances. For that reason, we are constrained to find that the underpinning of the decision is not sound even though the award may be fair. “The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984).

There is error in part, the judgment is set aside as to the trial court’s financial orders and the case is remanded for a new hearing on those issues.


author: Foti, J.

text:
    Richard L. Baldwin v. Gail L. Baldwin
    (7312)
    O’Connell, Stoughton and Foti, Js.
    Argued June 14 —
    decision released August 22, 1989

      Jean S. Ferlazzo, with whom, on the brief, were Dianne M. Andersen, Melissa A. Granel, and Lynne Jackson, law student intern, for the appellant (defendant).

      Jack D. Garamella, with whom, on the brief, was Christine M. Ellis, for the appellee (plaintiff).
   Foti, J.

The defendant appeals from the judgment of the court denying her motion to adjudge the plaintiff in contempt. The defendant alleges that the trial court erred in determining that the parties’ separation agreement was ambiguous and in finding that the parties intended that the gain realized by the plaintiff from the exercise of certain stock options did not constitute “income” as contemplated by the parties in that separation agreement. We find no error.

The parties’ marriage was dissolved on March 4, 1983, and their separation agreement was incorporated into the judgment. At that time both parties listed as assets on their financial affidavits stock options obtained by the plaintiff as part of an incentive plan at his place of employment. The agreement contained an escalation clause that provided that the plaintiff pay the defendant 15 percent of his gross income from employment over $95,000. The defendant made no claim upon any amounts realized by the plaintiff through the exercise of stock options shown on his financial affidavit on file at the time of the dissolution, but claims that any amount gained from the exercise of stock options acquired through employment after the filing of that financial affidavit is income received as a result of his employment over and above the sum of $95,000. The plaintiff claims that money gained from stock options is not “income” from employment as contemplated by the agreement and, therefore, that the defendant is not entitled to additional monies derived from this source. The trial court found that the language of the separation agreement was ambiguous and concluded that the parties did not intend that stock options be included as income for purposes of the escalation clause.

“The words used by the parties ‘ “must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the contract.” Beach v. Beach, 141 Conn. 583, 589, 107 A.2d 629 [1954].’ Sturtevant v. Sturtevant, 146 Conn. 644, 647-48, 153 A.2d 828 [1959].” Marcus v. Marcus, 175 Conn. 138, 141-42, 394 A.2d 727 (1978). Settlement agreements incorporated into dissolution judgments should be interpreted consistently with accepted contract principles, and when a contract term is ambiguous, the intent of the parties is to be ascertained by a fair and reasonable construction of the written words considering both the circumstances of the execution of the writing and the object of the parties. Marsico v. Marsico, 195 Conn. 491, 493, 488 A.2d 1248 (1985).

A word is ambiguous when it is capable of being interpreted by reasonably well informed persons in either of two or more senses. Federal Aviation Administration v. Administrator, 196 Conn. 546, 554, 494 A.2d 564 (1985). “Ambiguous” can be defined as unclear or uncertain, or that which is susceptible of more than one interpretation, or understood in more ways than one. Lopinto v. Haines, 185 Conn. 527, 538, 441 A.2d 151 (1981).

The separation agreement did not define the term “income.” We find that the court did not err in determining that that term was ambiguous and thereby seeking to ascertain the intent of the parties as expressed in the language of the agreement. See Marcus v. Marcus, supra, 141. The interpretation of the contractual intention of the parties is a question of fact to be determined by the trier of fact. Bolmer v. Kocet, 6 Conn. App. 595, 608, 507 A.2d 129 (1986); Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 408, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987).

In finding that the stock options were not income under the separation agreement, the trial court found the following factors persuasive: (1) the court credited the plaintiff’s testimony that the stock options were not to be included as income; (2) the stock options were listed in the financial affidavits as “assets” and not as “income”; and (3) the sums to be paid pursuant to the escalation clause were not deferrable, while stock options were properly deferrable.

On appeal, the defendant attacks the factual findings of the court as clearly erroneous. We will not retry the case. Pulaski v. Ledwith, 5 Conn. App. 629, 631, 501 A.2d 396 (1985), cert. denied, 198 Conn. 803, 503 A.2d 1186 (1986). Our review of the record fails to disclose that the factual findings of the court were clearly erroneous in view of the evidence, or that the decision was otherwise erroneous in law; Practice Book § 4061; or unsupported by the evidence. Coles v. Coles, 17 Conn. App. 831, 832, 553 A.2d 1169 (1989).

There is no error.

In this opinion the other judges concurred.

       Although no specific reference was made to the stock options in the separation agreement, article 11.5 provided: “The parties are the owners of various stocks, securities and bank accounts. The husband shall be entitled to retain these assets except that the husband shall pay to the wife within two weeks from date the sum of $5000. The wife waives any and all other assets of the husband except as herein set forth.”

       The separation agreement provided that in addition to paying the defendant $30,000 a year in alimony, the defendant was required to pay to the defendant “a sum equal to fifteen percent of all gross income he receives as a result of his employment over and above the sum of $95,000. The plaintiff will pay to the defendant any sums due and owing to her as a result of this provision as the same become available to him and will not defer payments on a yearly basis.”


text:
    State of Connecticut v. Elijah Rose
    (7118)
    O’Connell, Stoughton and Foti, Js.

      Argued June 14 —
    decision released August 22, 1989

      Martin Zeldis, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Mary Elizabeth Baran, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from a judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes §§ 53a-133 (1) and 53a-134 (a) (3).

The jury could reasonably have found the following facts. On the night of April 14,1987, the defendant and his accomplice took a taxi to a condominium complex in Danbury. Near this destination, the defendant stretched his arm over the back of the seat, pinned the driver across the chest and demanded money. The accomplice then placed a knife against the driver’s throat and threatened to cut him if he resisted. The defendant took approximately $150 from the driver and he and his accomplice fled the scene on foot.

The defendant claims that the trial court erred (1) in refusing to give him access to witness statements and reports, and (2) in instructing the jury on the charge of robbery in the first degree. He also challenges the unavailability of his alleged accomplice at his trial. We find error.

We first address the defendant’s challenge to the trial court’s jury instruction on the robbery charge because the error on this claim requires a remand for a new trial. The defendant contends that the court’s instruction permitted the jury to convict him of robbery in the third degree instead of robbery in the first degree because the jury was not required to find that the defendant or his accomplice used or threatened to use a deadly weapon in the commission of the crime.

“It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). An instruction that dilutes the state’s burden, or places a burden on the defendant to prove his innocence, is unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).” State v. Reddick, 197 Conn. 115, 131-32, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). A portion of the court’s charge, however, cannot be viewed in isolation from the overall instruction. State v. Quintana, 209 Conn. 34, 47, 547 A.2d 534 (1988). If the state can “ ‘prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled/ ” then we need not reverse. State v. Townsend, 206 Conn. 621, 626, 539 A.2d 114 (1988), quoting State v. Sinclair, 197 Conn. 574, 584, 500 A.2d 539 (1985).

Robbery in the third degree “occurs when the accused uses or threatens the immediate use of physical force for the purposes of committing a larceny.” In re Juvenile Appeal (84-4), 1 Conn. App. 642, 645, 474 A.2d 485 (1984); see General Statutes § 53a-136. Robbery in the first degree, however, includes the additional element of the use or threatened use of a dangerous instrument during the commission of the crime. General Statutes § 53a-134; In re Juvenile Appeal (84-4), supra, 646.

The court began its charge by referring to the information and stating that “[i]t accuses [the defendant] of committing the crime in one or two ways. By use or threatened use of a dangerous instrument and by the use of force for overcoming resistance in the taking of the property. . . . The state has alleged two bases on which you can predicate a conviction.” (Emphasis added.)

The implication of the court’s language is clear. It informed the jury that it could convict the defendant on the basis of one of two theories, only one of which involved the use of a dangerous weapon. It reinforced this impression later in the charge when it told the jury that “[t]he penal code divides the crime of robbery into several degrees. ... A person commits robbery in the first degree when in the course of commission of the crime or the immediate flight therefrom, he or another participant uses or threatens the use of a dangerous weapon. This is the second way the state contends the act could have occurred.” (Emphasis added.) Once again, the court instructed the jury on two theories of liability where no such alternatives exist.

The record discloses that the court subsequently indicated the proper course for the jury to follow by giving a correct definition of the crime of first degree robbery. That single statement, however, cannot undo the prejudice created by the prior faulty instructions. This is especially true in light of the court’s closing instructions telling the jury that it could find the defendant guilty of robbery in the first degree without finding that he or his accomplice used or threatened the use of a dangerous weapon.

We conclude that it is reasonably likely that the jury was misled in reaching its verdict. State v. Wood, 208 Conn. 125, 143-44, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). The fact that the jury was instructed on several occasions that it did not have to find that the defendant or his accomplice used or threatened the use of a dangerous instrument during the commission of the crime creates the possibility that the state was able to gain a conviction without having to prove one of the elements of the crime charged.

Accordingly, we must set aside the defendant’s conviction and remand the case for a new trial. In light of our disposition of the issue, we need not address the other two claims of error.

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

In this opinion the other judges concurred.

       General Statutes § 53a-133 provides in pertinent part: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking . . . .”
      General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument . . . .” (Emphasis added.)

       The court instructed the jury as follows: “Now, in order to find Mr. Rose guilty of this charge, ladies and gentlemen, it’s essential that you find these three elements and each and every one of them has been committed and that they have been proven beyond a reasonable doubt. That while a robbery is being committed, that either the defendant or another person-participant in the crime — displayed or threatened the use of a dangerous instrument.”

       The court told the jury that “[t]he state has alleged — as I said — two ways in which the crime might have been committed. If you find that the first one was in fact proven to you beyond a reasonable doubt, then you go no further and find him guilty. If you find, the first one is not proven to you beyond a reasonable doubt, then you will consider the second. If you find that the second is proven beyond a reasonable doubt, you return a verdict of guilty. If you find the state has not proven him guilty beyond a reasonable doubt on the second specification in the information, your verdict of course will be not guilty.”