text:
    WALLIE POE v. COMMISSIONER OF CORRECTION
    (AC 15741)
    Landau, Schaller and Hennessy, Js.
    Argued June 5
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RAYMOND TRAMONT
    (AC 15319)
    Landau, Schaller and Hennessy, Js.
    Argued June 5
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.


text:
    WALLIE POE v. COMMISSIONER OF CORRECTION
    (AC 15948)
    Landau, Schaller and Hennessy, Js.
    Argued June 5
    officially released July 8, 1997
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. WILLIE FOOTE
    (AC 16591)
    Lavery, Hennessy and Spallone, Js.
    Argued June 9
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


text:
    DONALD L. ALTSCHULER v. MOLLY SUE MINGRONE
    (AC 16336)
    Foti, Heiman and Spear, Js.
    Submitted on briefs June 10
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


text:
    BRENDA SCULLY ET AL. v. CARIN NEWMAN ET AL.
    (AC 16149)
    Foti, Heiman and Spear, Js.
    Submitted on briefs June 10
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


text:
    GERARD J. STROL v. RONALD H. STROL ET AL.
    (AC 16432)
    Lavery, Landau and Hennessy, Js.
    Submitted on briefs June 10
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


text:
    CBF TRUSTEE ET AL. v. LYNN HYMANS ET AL.
    (AC 16804)
    Lavery, Landau and Hennessy, Js.
    Submitted on briefs June 10
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


text:
    WESTBROOK ASSOCIATES v. ANDREW CONSTANTINOU ET AL.
    (AC 16020)
    Dupont, C. J., and O’Connell and Schaller, Js.
    Submitted on briefs June 10
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


text:
    LANDEL BROWN v. MARYLAND CASUALTY COMPANY
    (AC 16198)
    Dupont, C. J., and O’Connell and Schaller, Js.
    Submitted on briefs June 10
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


text:
    HEATHER WILLARD ET AL. v. THOMAS PASSCANTELL ET AL.
    (AC 15784)
    Dupont, C. J., and O’Connell and Schaller, Js.
    Submitted on briefs June 10
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


text:
    MICHAEL RASO v. JACK M. LEVINE
    (AC 16361)
    Dupont, C. J., and O’Connell and Schaller, Js.
    Submitted on briefs June 10
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


text:
    ANDREW L. JONES v. NEW HAMPSHIRE INSURANCE COMPANY
    (AC 15864)
    Dupont, C. J., and O’Connell and Lavery Js.
    Argued June 5
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


text:
    HOWARD I. WERTHEIM v. WEINSTEIN MORTUARY, INC., ET AL.
    (AC 16376)
    Dupont, C. J., and Foti and Spear, Js.
    Submitted on briefs June 10
    officially released July 15, 1997
   Per Curiam.

The judgment is affirmed.


author: STOUGHTON, J.

text:
    CHERIE GREENE v. PHILLIP BYNUM
    (AC 15886)
    Heiman, Spear and Stoughton, Js.
    Argued April 29
    officially released July 29, 1997

      Gail M. Barto, assistant attorney general, with whom were Stephen J. McGovern, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Donald M. Longley, assistant attorney general, for the appellant (state).

      Daniel W. Adelman, for the appellee (defendant).
   Opinion

STOUGHTON, J.

This is an appeal by the state of Connecticut from the judgment of the trial court on an appeal from the decision of a family support magistrate that had reinstated a child support order. The trial court reversed the decision of the family court magistrate because it determined that the magistrate had failed to follow statutory guidelines and that the defendant had not received adequate notice. The state did not appear at the hearing before the trial court and, following the hearing, asserted that it had not received notice of the hearing.

On appeal, the state claims that the trial court (1) lacked subject matter jurisdiction because the defendant’s appeal was not filed within the fourteen day appeal period, (2) lacked subject matter jurisdiction because the petition failed to set forth facts showing aggrievement, (3) lacked personal jurisdiction because the agency created to administer programs mandated by Title IV-D of the Social Security Act was not served, and (4) lacked personal jurisdiction because the named petitioner was not served. Because we agree with the second of these claims and reverse the judgment of the trial court, we find it unnecessary to consider the other claims.

The plaintiff, Cherie Greene, is a recipient of Title IV-D child support services. On March 3,1987, the state petitioned on behalf of Greene to establish that the defendant was the father of her child. On June 11,1987, the Superior Court rendered judgment against the defendant and ordered him to make certain support payments. Thus began a series of efforts by the state to collect support payments from the defendant. The defendant filed a number of motions for modification, many of which resulted in temporary modifications of the original support order. He frequently failed to appear after continuances had been granted to enable him to look for a job. Finally, after a temporary modification had been continued for review on December 19, 1995, the defendant once again failed to appear. The family support magistrate on that date reinstated the original support order.

The defendant purported to appeal from the decision of the family support magistrate pursuant to General Statutes § 46b-231. Proceedings for such an appeal are instituted by filing a petition. General Statutes § 46b-231 (n) (2). On December 29, 1995, the defendant filed a document bearing the caption of the case and entitled “Petition. ” The body of the petition, in its entirety, stated as follows: “The Defendant in the above-captioned matter respectfully requests that the court schedule a hearing relative to the attached appeal.” What was attached to the petition was form JD-FM-111, which simply identified the case.

We have recently said that “[t]he function of the petition is to make the court and opposing parties aware of the alleged error or defect from which the aggrieved party seeks redress.” Sherman v. Sherman, 41 Conn. App. 803, 807, 678 A.2d 9 (1996). In Sherman, the appeal form JD-FM-111 was filed with no petition at all. The petition in this case contained no reasons for appeal and nothing to indicate any error or defect from which the defendant sought redress. It was the equivalent of no petition at all.

The plaintiff argues that the defendant’s petition for appeal did not allege aggrievement as required by statute and case law. The defendant’s petition not only failed to establish aggrievement, but was devoid of any ground for appeal.

“ ‘Pleadings have their place in our system ofjurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.’ Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952).” Pagani v. BT II, Ltd. Partnership, 24 Conn. App. 739, 753, 592 A.2d 397, cert. denied, 220 Conn. 902, 593 A.2d 968 (1991).

“A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal.” (Citations omitted; internal quotations marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).

By filing an insufficient petition for appeal, the defendant failed to comply with the requirements of the statute and, thus, lacked standing to appeal. See Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). The trial court, consequently, lacked jurisdiction to hear the appeal from the decision of the family court magistrate. Although the question of the trial court’s jurisdiction was not raised at the hearing because the state did not appear at that hearing, subject matter jurisdiction may be raised at any time and, when it is raised, it must be decided. See Gemmell v. Lee, 42 Conn. App. 682, 685, 680 A.2d 346 (1996); Cohen v. Cohen, 41 Conn. App. 163, 165, 674 A.2d 869 (1996).

The judgment is reversed and the case is remanded with direction to render judgment dismissing the appeal.

In this opinion the other judges concurred.

       The state is entitled to representation by the attorney general “in all actions for child or spousal support in all cases in which the state is furnishing or has furnished aid or care to one of the parties to the action . . . General Statutes § 46b-231 (t) (1).

       The IV-D agency is “the agency created by section 17b-179, the Child Support Enforcement Bureau of the Department of Social Services, to administer the child support program mandated by Title IV-D of the Social Security Act . . . General Statutes § 46b-231 (b) (13).

       Title IV-D child support, services arise under the statutory scheme set forth in 42 U.S.C. chapter 7 (Social Security), subchapter IV (Grants to States for Aid and Services to Needy Families with Children and for Child-Welfare Services), part, D (Child Support and Establishment of Paternity). Administration in Connecticut, is in the family support magistrate division of the Superior Court. See General Statutes § 46b-231 et seq.

       Additionally, Practice Book § 479B provides: “Any person who is aggrieved by a final decision of a family support magistrate may appeal such decision in accordance with the provisions of [§ 46b-231 (n)] of the General Statutes. The appeal shall be instituted by the filing of a petition which shall include the reasons for the appeal.”

       The state did not waive the question of the trial court’s jurisdiction because it raised the issue at its earliest opportunity. The state initially did not move to dismiss the defendant’s appeal because it had never received the petition for appeal (and, thus, did not attend the hearing on the appeal). The defendant admittedly mailed the state’s copy of the petition to the incorrect address. The state’s motion to reargue, filed with the Superior Court subsequent to the hearing on the appeal, was denied. This appeal presented the state with its first opportunity to raise the issue of jurisdiction.


author: LANGENBACH, J.

text:
    TOWN OF MONROE ET AL. v. RONALD R. RENZ ET AL.
    (AC 15219)
    O’Connell, Schaller and Langenbach, Js.

      Argued February 20
    officially released July 29, 1997

      Richard J. Buturla, with whom, on the brief, were Robert G. Skelton and Leonard A. Fasano, for the appellants-appellees (defendants).

      Edward P. McCreery III, for the appellees-appel-lants (plaintiffs).
   Opinion

LANGENBACH, J.

The defendants appeal from the judgment of the trial court permanently enjoining them from using a rock crusher and from blasting rock to supply the rock crusher in their sand and gravel operation at 201 Turkey Roost Road in the town of Monroe. On appeal, the defendants assert that the trial court improperly (1) determined that they were collaterally estopped from relitigating their defense that the blasting and rock crushing, although otherwise in violation of Monroe’s zoning regulations, was a permissible expansion of a nonconforming use, (2) determined that their rock crushing operations were an illegal expansion of the nonconforming use and (3) granted a permanent injunction against the crushing and associated blasting activities. Moreover, the defendants claim (4) that, even if applicable, Monroe’s zoning regulations are illegal as applied in this case.

The plaintiffs filed a cross appeal, claiming that the trial court improperly (1) set aside the award of attorney’s fees to them, (2) failed to impose daily fines, (3) failed to enjoin all operations until the rock crusher was removed and (4) failed to order that the necessary information be provided to them to enable them to set the amount of the restoration bond.

The parties have shared a long journey through many proceedings before administrative agencies and state and federal trial courts. In 1973, the named defendant, Ronald Renz, purchased a 133 acre parcel of land located in a residential zone in Monroe. The property has been used continuously for sand and gravel excavation since the 1940s and its use as such constitutes a valid prior nonconforming use with respect to the subsequently enacted zoning regulations that established the area as a two acre residential zone.

From 1973 through 1987, the on-site excavation of naturally occurring deposits of sand and gravel remained essentially the same. By 1987, those deposits began to be depleted, and commercial demand for bank run gravel declined. The demand for crushed stone, however, increased. To compete for contracts to provide crushed stone, the defendants installed a rock crusher in 1988. The rock crushing operation consisted of two rock crushers that worked in tandem sending crushed materials down conveyor belts to two screens that sized the stones. Bucket loaders continuously fed blasted rock into the crushing plant. Blasting was conducted once a month to feed the crushing plant. Between blasts, drilling machines constantly drilled into rock formations in preparation for the next blast. Each blast required up to 200 holes fifty feet deep that were packed with up to 28,000 pounds of explosives. The blasting created sheer rock cliffs between sixty and 100 feet in height.

In response to that activity, the town issued a cease and desist order citing the defendants for, inter alia, failure to obtain an excavation permit, failure to post restoration bonds and “expansion of a nonconforming use in a residential zone due to the commencement of blasting and rock processing operations in violation of zoning regulations and the aforesaid ‘Stipulated Rules,’ ” a reference to a 1982 judgment rendered upon a stipulation of the parties in a previous action. The defendants appealed the cease and desist order to the zoning board of appeals, which upheld the order, and then to the Superior Court, Stodolink, J., which dismissed the appeal. The defendants then filed a petition for certification in this court, which was denied.

The defendants next applied to the planning and zoning commission (commission) for a permit for the rock crusher. After the application was denied and the appeal dismissed by the trial court, Sylvester, J., the plaintiffs filed a petition for certification, which was denied.

The defendants also applied to the commission for an excavation permit, which was granted with seventy-eight conditions. On appeal, the trial court, McKeever, J., upheld most of the conditions. Again, a petition for certification to appeal was denied by this court.

Finally, the present action for a permanent injunction by the town was decided in its favor. That decision is the subject of this appeal.

The trial court concluded that the issues before it, i.e., whether the Monroe zoning regulations that prohibit the use of rock crushing equipment and regulate shapes, grading, drainage and restoration apply to this nonconforming use, were decided in the three previous cases involving the same parties and that the doctrines of res judicata and collateral estoppel bar the defendants from relitigating those issues. Additional facts will be set forth as relevant.

I

The defendants claim that the trial court improperly determined that they are collaterally estopped from relitigating their defense that the blasting and rock crushing, although otherwise in violation of Monroe’s zoning regulations, was a permissible expansion of a nonconforming use.

“Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991).

The defendants argue that the issues before the trial court were not fully litigated in the previous proceedings before Judges McKeever, Stodolink and Sylvester because following each of those proceedings this court denied petitions for certification, which constituted a denial of independent appellate review, the finality requirement to support a collateral estoppel preclusion. In making this claim, the defendants rely on Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 268-69, 659 A.2d 148 (1995), which adopted § 28 (1) of 1 Restatement (Second), Judgments (1982). That section provides: “Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded [where, inter alia] [t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action . . . .” DeMilo & Co. held that for collateral estoppel to preclude litigation of an issue there must be some avenue for review of the prior ruling on the issue. Commissioner of Motor Vehicles v. DeMilo & Co., supra, 268-69.

The defendants’ reliance on the language of the restatement and the holding of DeMilo & Co. is misplaced. The defendants were not denied appellate review as a matter of law. There was an avenue for review of the three decisions relied on by the trial court. In each of them, a petition for certification was filed with this court and reviewed in light of the provisions of Practice Book § 4142 et seq. The fact that the petitions were denied is not the equivalent of preclusion as a matter of law. The conclusion of the trial court is in accord with comment (a) to § 28 (1) of 1 Restatement (Second), Judgments: “The exception in Subsection (1) applies only when review is precluded as a matter of law. It does not apply in cases where review is available but is not sought. Nor does it apply when there is discretion in the reviewing court to grant or deny review and review is denied . . . .”

Because we conclude that the trial court correctly precluded the defendants from relitigating the issue of the applicability of the zoning regulations, and because the other issues raised in this appeal were not decided by the trial court, we do not address them. See Brubeck v. Burns-Brubeck, 42 Conn. App. 583, 588, 680 A.2d 327 (1996).

II

In the cross appeal, the plaintiffs claim that the trial court improperly (1) set aside the plaintiffs’ award of attorney’s fees, (2) failed to impose daily fines against the defendants, (3) failed to enjoin all operations until the rock crusher was removed and other violations were corrected, and (4) failed to order that the defendants provide all information necessary to post a restoration bond.

A

General Statutes § 8-12 provides in relevant part: “If the court renders judgment for such municipality and finds that the violation was wilful, the court shall allow such municipality its costs, together with reasonable attorney’s fees to be taxed by the court. ...” On August 27, 1990, the parties filed a proposed “order for temporary injunction by stipulation,” which was entered as a temporary injunction on that date, by the court, Thompson, J. Several years later, in a memorandum of decision dated July 21, 1995, the trial court, Levin, J., determined that the defendants had wilfully violated Monroe’s zoning regulations. The court further determined that it would be inequitable for the taxpayers to bear the expense of legally remedying the defendants’ violations, and awarded attorney’s fees of $25,000 to the plaintiff town.

The defendants filed a motion to open and reconsider the judgment based on the claim that, pursuant to the “order for temporary injunction by stipulation,” the parties had agreed that the town would not pursue a request for a temporary injunction against the defendants to prohibit the use of the rock crusher and blasting alleged in the complaint, and that the defendants were temporarily enjoined from operating the rock crusher and from blasting at certain times. The plaintiffs would not enforce the cease and desist order until a final judgment was rendered in the defendants’ appeal to the Superior Court from the decision of the zoning board of appeals upholding the issuance of that cease and desist order.

On September 14, 1995, on the basis of the earlier stipulation, the trial court, Levin, J., held that “although it may be theoretically possible to hold that the defendants’ activities prior to the entry of the temporary injunction constituted a wilful violation of the zoning regulations, in light of that temporary injunction, which allowed the defendants to continue their operations until the court rendered a final judgment, the court cannot reasonably find that the defendants’ violation of the zoning regulations was wilful.” Thus, the issue before this court is whether the trial court properly amended its earlier finding that the defendant’s violation of the zoning regulations was wilful, and concluded that it was not wilful. We conclude that the trial court did properly amend its finding.

The judgment in question was rendered on July 21, 1995, and the motion to open was filed on July 28,1995. The motion to open was filed, therefore, within the required four month period, and the court had the power to open the judgment. See General Statutes § 52-212 (a); Practice Book § 326; Reich v. Langhorst, 44 Conn. App. 381, 689 A.2d 1134 (1997).

“Where a court has the power to open a judgment, its action represents the exercise of discretion. Cichy v. Kostyk, 143 Conn. 688, 697, 125 A.2d 483 (1956). We will not disturb that decision on appeal unless the court acted unreasonably and in clear abuse of its discretion. Connecticut National Bank v. Oxenhandler, 30 Conn. App. 541, 546, 621 A.2d 300 (1993) . . . .” (Citation omitted.) Danise v. Budget Rent-A-Car of Westchester, Inc., 41 Conn. App. 297, 299, 675 A.2d 464 (1996). “What constitutes wilful misconduct is a question of fact. . . . Although the trial court might have found from the evidence that the conduct of the defendants [with respect to this violation of the zoning laws] was openly defiant of the zoning authorities, it was not required to do so. It is apparent that the trial court concluded that the violation was not wilful in that sense, but resulted from poor judgment on the part of the defendants.” (Citation omitted.) Planning & Zoning Commission v. Desrosier, 15 Conn. App. 550, 560, 545 A.2d 597 (1988).

From our review of the record, we cannot conclude that the trial court acted unreasonably or that it abused its discretion in determining, on reconsideration, that, in light of the temporary injunction, the defendants’ violation of the zoning regulations was not wilful. We, therefore, affirm the portion of the trial court’s September 14, 1995 judgment by which it vacated its earlier award of attorney’s fees.

B

The plaintiffs next claim that the trial court improperly failed to award daily fines pursuant to § 8-12. We disagree.

Section 8-12 provides in relevant part: “The owner ... of any . . . premises where a violation of any provision of such regulations has been committed or exists . . . shall be fined not less than ten nor more than one hundred dollars for each day that such violation continues . . . .” The trial court inteipreted the language of § 8-12 as directory, that is, authorizing the trial court to exercise its discretion to impose daily fines. Accordingly, the court, in ruling on the claim for daily fines, stated that “[b]ecause of the court’s other financial awards, a civil fine is not appropriate.” The plaintiffs contend that, because the legislature used the word “shall” in § 8-12, the statute is mandatory in nature and that the court improperly declined to award daily fines. “[0]ur past decisions have indicated that the use of the word ‘shall,’ though significant, does not invariably create a mandatory duty. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985); Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984).” Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989).

To determine whether a statute’s provisions are mandatory, we have traditionally looked beyond the use of the word “shall” and examined the statute’s essential purpose. Id. The essential purpose that § 8-12 is intended to further, namely, the deterrence of violations of the zoning ordinances, does not mandate that a trial court award daily fines, but rather vests discretion in a trial court to grant such fines under the appropriate circumstances. We agree that the language of § 8-12 authorizes the trial court to exercise its discretion in determining whether to award daily fines. See Gelinas v. West Hartford, 225 Conn. 575, 593, 626 A.2d 259 (1993) (trial court may impose such civil penalties pursuant to § 8-12 as it may deem appropriate in proper exercise of its discretion). We conclude, therefore, that the trial court properly exercised its discretion in not imposing daily fines.

C

The plaintiffs next claim that the trial court improperly failed to order the rock crusher removed.

“A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.” (Internal quotation marks omitted.) Advest, Inc. v. Wachtel, 235 Conn. 559, 562-63, 668 A.2d 367 (1995). As noted by the trial court, Levin, J., in its July 21, 1995 memorandum of decision, and not amended by its September 14, 1995 decision, “[e]ven in an action brought by a zoning enforcement officer to require conformity with the zoning regulations, the granting of injunctive relief, which must be compatible with the equities of the case, rests within the trial court’s sound discretion. Dupuis v. Submarine Base Credit Union, Inc., [170 Conn. 344, 356, 365 A.2d 1093 (1976)]. Those equities should take into account the gravity and wilfulness of the violation, as well as the potential harm to the defendants. Berin v. Olson, 183 Conn. 337, 343, 439 A.2d 357 (1981).’ Johnson v. Murzyn, [1 Conn. App. 176, 183, 469 A.2d 1227 (1984)]. ‘The proof of violations does not . . . obligate the court mechanically to grant the requested injunction for every violation. [Conservation Commission v. Price, 193 Conn. 414, 430, 479 A.2d 187 (1984).]’ Gelinas v. West Hartford, [supra, 225 Conn. 588]; see and compare Crabtree v. Coyle, 19 Conn. App. 208, 211, 561 A.2d 455 (1989).”

In their motion to reargue on the issue of a mandatory injunction requiring removal of the rock crusher from the defendants’ premises, the plaintiffs’ argument was solely: “The defendants’ disdain of five court orders is reasonable concern to the plaintiffs that the defendants may continue to utilize the machinery which is prohibited under the zoning regulations. There is no legal justification for its presence.” (Emphasis added.) The plaintiffs did not allege any other harm requiring an order of removal. The trial court properly took note of the equities, including the “gravity and wilfulness of the violations” and the “potential harm to the defendants” before refusing to order the rock crusher removed. In ruling on this issue, the trial court stated: “While the defendants have . . . not been reluctant to relitigate issues previously settled, they have not previously violated an order of this court, nor may the court presume that they will do so. ‘Injunctive relief may not lie where it is predicated on the fears and apprehensions of the party applying for it or where it would be incompatible wdth the equities of the case . . . and likewise the power of equity to grant such relief may be exercised only under demanding circumstances. . . . The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Karls v. Alexandria Realty Corp., 179 Conn. 390, 402, 426 A.2d 784 (1980).” The court concluded that such harm was not demonstrated and refused to order the removal of the rock crusher.

Our review of the record and the trial court’s opinion in this case leads us to conclude that the trial court neither incorrectly stated the law nor abused its discretion. The trial court properly declined to order the requested injunction.

D

Finally, the plaintiffs claim that the trial court improperly failed to order that all work be halted at the site until the rock crusher was removed and other violations were corrected. The plaintiffs claim that they cannot, as recommended by the trial court, calculate a bond amount until a restoration plan is filed by the defendants. They further claim that the defendants have failed to comply with the terms of the permanent injunction.

In part II C of this opinion, we concluded that the portion of the court’s judgment in which it declined to order an injunction requiring that the rock crusher be removed was proper. The plaintiffs were, however, entitled to require a restoration bond as a condition of the excavation permit pursuant to § 117-2111 of the Monroe town code. Moreover, the plaintiffs cannot obtain meaningful relief from the injury caused by the defendants’ violation of the zoning regulations in the absence of restoration and have no practical means of “ensuring faithful performance” of the restoration without being able to set an amount for a restoration bond. See Monroe town code § 117-2111. We conclude that it was an abuse of the court’s discretion not to order that the defendants provide to the plaintiffs in a timely manner the information they require to calculate an appropriate amount for the restoration bond.

Accordingly, the trial court’s judgment with respect to the performance bond must be reversed and the case remanded for the trial court to order the defendants to provide the information required by the plaintiffs in a timely manner. We agree with the trial court’s direction to the plaintiffs that they calculate the appropriate amount of the restoration bond and, should the defendants fail to provide the ordered information in a timely manner or ultimately fail to file a restoration bond in an amount satisfactory to the plaintiffs, that the plaintiffs at that time initiate further proceedings.

The judgment is reversed in part on the cross appeal and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.


author: KOLETSKY, J.

text:
    CARLA PAUL v. MCPHEE ELECTRICAL CONTRACTORS
    (AC 16153)
    Lavery, Spear and Koletsky, Js.
    Argued March 21
    officially released July 29, 1997

      Patrice S. Noah, for the appellant (defendant).

      Michael E. Driscoll, with whom, on the brief, was Doreen A. West, for the appellees (apportionment defendants).
   Opinion

KOLETSKY, J.

The defendant appeals from the judgment of the trial court granting the apportionment defendants’ motion to strike the apportionment complaint. On appeal, the defendant claims that the trial court improperly held that (1) pursuant to General Statutes § 52-1021), a defendant sued in negligence could not implead apportionment defendants under a product liability theory, and (2) pursuant to the Product Liability Act, General Statutes § 52-572m et seq., the defendant was not a “product seller” and thus the defendant had no right to implead third party defendants for indemnification purposes. We affirm the judgment of the trial court.

The underlying facts are as follows. The plaintiff, Carla Paul, was struck in the head by a light fixture that fell from the ceiling of the Foxwoods Casino, a building located on reservation land of the Mashan-tucket Pequot Tribe. The plaintiff made a claim against the tribe in the tribal court. She also brought a claim in Superior Court against the defendant, McPhee Electrical Contractors, which had installed the light fixture in question. The defendant impleaded Lighting Affiliates Ltd., the seller of the light fixture, and Lightolier Company, Inc., the manufacturer of the light fixture. The defendant did not move for permission to implead under General Statutes § 52-102a, but served an apportionment complaint on the apportionment defendants pursuant to General Statutes § 52-102b. In the apportionment complaint, the defendant claimed that pursuant to the Product Liability Act, the apportionment defendants were hable for an apportionment of damages claimed by the plaintiff, as well as for indemnification. The apportionment defendants moved to strike the apportionment complaint. The trial court granted the apportionment defendants’ motion to strike. This appeal followed.

I

The defendant claims that the trial court improperly held that, pursuant to § 52-102b, a defendant in a negligence claim brought under General Statutes § 52-572h cannot implead apportionment defendants on the basis of a product liability theory. We are unpersuaded.

Subsection (a) of § 52-102b provides in relevant part: “A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. . . .” (Emphasis added.) Subsection (f) of § 52-102b further provides: “This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.” Thus, the statute unambiguously provides that a defendant may implead apportionment defendants under § 52-102b only if they are liable on a negligence basis pursuant to § 52-572h.

Here, the defendant attempted to use § 52-102b to implead apportionment defendants liable, if at all, only under § 52-572m et seq., the Product Liability Act. A product liability claim is exclusively controlled by § 52-572m et seq., and thus can never be a claim arising under § 52-572h. See General Statutes § 52-572n (a); Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 469-71, 562 A.2d 517 (1989); Daily v. New Britain Machine Co., 200 Conn. 562, 570-72, 512 A.2d 893 (1986).

We are not called upon to decide whether it would be good policy to permit negligence defendants to implead apportionment defendants on product liability theories. What we are called upon to do is to construe a statute, and “[w]e must construe the act as we find it, without reference to whether we think it would have been or could be improved by the inclusion of other provisions. . . . Where statutory language is clearly expressed, as here, courts must apply the legislative enactment according to the plain terms and cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.” (Citations omitted; internal quotation marks omitted.) Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986).

Section 52-102b is clear and unambiguous. Section 52-102b sets forth its exclusive application for apportionment purposes and restricts its applicability to claims under § 52-572h. The defendant’s apportionment complaint is not within the ambit of the statutory parameters. We conclude, therefore, that the trial court properly granted the motion to strike the apportionment complaint.

II

The defendant next argues that the trial court improperly held that he had no right to implead third party defendants for indemnification under General Statutes § 52-577a (b). The defendant specifically argues that he qualifies as a “product seller” under the Product Liability Act, and thus, under that act, he has the right to implead third party defendants for indemnification. We disagree.

Section 52-577a (b) provides that in any product liability claim “a product seller may implead any third party who is or may be liable for all or part of the claimant’s claim . ...” A “product seller” in a product liability case is defined in General Statutes § 52-572m (a) as “any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption. The term ‘product seller’ also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products.” (Emphasis added.)

Here, the defendant installed the light fixture at issue. Nowhere is it alleged that the defendant was in the business of selling or leasing light fixtures, or was engaged in the bailment of such light fixtures, or was involved in placing light fixtures into the stream of commerce. See Rodia v. Tesco Corp., 11 Conn. App. 391, 396, 527 A.2d 721 (1987). The defendant, thus, was not a product seller as that term is defined in § 52-572m (a) and used in § 52-577a (b). We conclude, therefore, that under § 52-577a (b), the defendant did not have the right to implead third party defendants for indemnification purposes, and thus the trial court properly struck the indemnification claim contained in the defendant’s apportionment complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-102b provides in pertinent part: “(a) A defendant in any civil action to which section 52-572h [the negligence actions section] applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiffs original complaint. . . . The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h.” General Statutes § 52-102b is applicable to civil actions filed on or after July 1, 1995. This is the first opportunity for our court to construe § 52-102b.

       In his brief, the defendant also claimed that the trial court improperly found that an apportionment defendant has standing to object to an apportionment complaint. The defendant withdrew this claim at oral argument.

       We note that recovery for pain and suffering in the Mashantucket Pequot Tribal Courtis limited to 50percent of “actual damages sustained.” Sovereign Immunity Waiver Ordinance, IV M.P.T.L. Ch. 1, § 5 (d).

       General Statutes § 52-102a (a) provides: “A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded.”

       See footnote 1.

       Paragraph 5 of the apportionment complaint stated: “The apportionment defendant is liable and legally responsible for the plaintiffs injuries, pursuant to [the Product Liability Act] General Statutes § 52-572m, et seq. . . .”

       See footnote 1.

       General Statutes § 52-572n (a) provides: “A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.”

       The defendant further argues that it would be possible to try issues of product liability theory, often themselves based on negligence concepts, in a negligence action. The defendant argues that the differences in the rules applicable to the two theories could be explained adequately in the trial court’s instructions to the jury. This, beyond cavil, is true. As explained above, however, it is not our task to improve on legislation in accordance with our personal predilections. See Johnson v. Manson, supra, 196 Conn. 315. “It is our duty to apply the law, not to make it.” Commissioner of Administrative Services v. Gerace, 40 Conn. App. 829, 833, 673 A.2d 1172 (1996), appeal dismissed, 239 Conn. 791, 686 A.2d 993 (1997) (certification improvidently granted).

       We do not decide whether an indemnification count based on common-law principles could have been raised by the defendant under § 52-102a by moving for permission to implead an indemnity defendant, assuming, of course, that the defendant could have alleged facts sufficient to create such a duty of common-law indemnification.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. WILBERT CHAPMAN, JR.
    (AC 15426)
    Heiman, Spear and Stoughton, Js.
    Argued April 29
    officially released July 29, 1997

      James B. Streeto, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara Eschuk, assistant state’s attorney, for the appellee (state).
   Opinion

HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. The defendant’s motion for judgment of acquittal as to a count charging him with assault in the second degree in violation of General Statutes § 53a-60 (a) (2) was granted by the trial court after the state had completed presentation of its evidence. On appeal, the defendant claims that his conviction is fatally flawed because the trial court (1) permitted the defendant to be tried by the court when the defendant had not properly waived his constitutional right to a trial by jury, (2) unconstitutionally enlarged the crime with which the defendant had been charged by finding the defendant guilty of risk of injury to a child on the basis of facts not alleged in the long form information, (3) found the defendant guilty of the crime of risk of injury to a child when the evidence was insufficient to support the conviction and (4) rendered inconsistent findings by determining the defendant to be not guilty of the crime of assault in the second degree and guilty of risk of injury to a child. We are unpersuaded and affirm the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal. The defendant is the father of the victim, who was nineteen months old at the time of the offense. The victim lived with his mother, and the defendant was living separate and apart from the child and the child’s mother. On occasion, however, the victim’s mother would ask the defendant to care for the child.

On January 29,1994, the victim’s mother left the child in the care of the defendant who was living with Joy Johnson, the mother of three children by the defendant. While Johnson was at work, the defendant cared for all four children, including the victim. On February 4, 1994, Johnson went to the victim’s mother’s home and informed her that the defendant was going to keep the child with him for another week. While at the victim’s home, Johnson picked up clothing for the child.

On February 7,1994, the defendant went to the home of the victim’s mother and told her that the child had been injured. The defendant requested that the victim’s mother give him her medical card so that he could obtain medical treatment for the victim. The victim’s mother asked the defendant what had happened and he told her that the child had fallen from a riding toy and that his penis was swollen. The victim’s mother gave the defendant her medical card and, shortly after midnight on February 8, 1994, the defendant took the victim to the emergency room of Waterbury Hospital.

On February 9, 1994, the victim’s mother, accompanied by two friends, went to the Johnson home. She entered the house alone and observed that the victim had scratches on his chest and that his face appeared to be swollen. When asked how the victim had received the scratches, the defendant replied that the victim had probably received them when he took the child out of the bathtub because he had almost drowned. The victim’s mother requested that the defendant return the child to her home. The defendant said that he would bring the child home that afternoon.

On February 11, 1994, the defendant returned the victim to his mother. The defendant told the victim’s mother that he would not watch the child again because the child was bad and would not listen. The defendant also told her that the victim had knocked over some hot water and that it had almost burned the defendant and one of his other sons. After making those statements, the defendant left the victim’s mother’s home.

The victim’s mother noticed that the child was limping and, when she removed his clothing, she noted that he had bandages taped around his ankles. She removed the bandages and noted blisters on the heels of both of the victim’s feet. She removed the victim’s diaper and saw that the child’s penis was swollen to about three times its normal size. She also noted bum marks under the victim’s scrotum. The victim’s mother called an ambulance and the child was transported to St. Mary’s Hospital, where he was treated. The child was then transferred to Waterbury Hospital, where he remained for observation until February 15, 1994.

The defendant elected to have his case tried before the court. The case was tried on April 26 and 27, 1995. At trial, Johnson testified that on February 7, 1994, when the defendant was bathing three of the children, the victim almost drowned in the bath. The defendant lifted the victim out of the bath and ran into the hallway, hitting the victim’s scrotum and penis on a metal fish tank stand that stood in the hallway. Johnson further testified that the scratches on the victim’s chest were most likely caused by the defendant’s long fingernails. Finally, Johnson testified that the defendant told her that the victim had pulled a pan of boiling water from the table and onto the floor, burning his feet and ankles.

Devica Ramikissoon, the physician who treated the victim at Waterbury Hospital, also testified. Ramikis-soon explained that, when the victim arrived at Waterbury Hospital, he had a number of lesions on his body. The lesions were shallow ulcers and abrasions, and the skin was broken. The lesions were made up of approximately ten identical looped marks, which Rami-kissoon testified were all caused by the same instrumentality.

The state’s expert witness, Betty Spivack, the director of Hartford Hospital’s pediatric intensive care unit and an expert on child abuse, testified that the alleged incidents of near drowning, contact with the fish tank stand, bathtub, boiling water and sharp fingernails, and a fall from a riding toy would not explain the victim’s injuries. She testified that, in her opinion, the victim’s injuries indicated that he was restrained by the ankles and beaten with a thin, looped cord or wire instrument. No direct evidence of the use of a weapon was presented at trial.

The court rendered a judgment of acquittal on the charge of assault in the second degree and found the defendant guilty of the charge of risk of injury to a child. This appeal follows.

I

The defendant first claims that he did not execute a valid waiver of his constitutional right to a jury trial. We are unpersuaded.

Certain additional facts are necessary to an understanding of our resolution of this issue. The record reflects that the defendant was advised of his right to a jury trial in open court at his arraignment. At that time, the defendant requested that a special public defender be appointed to represent him. Attorney Ernest Diette was appointed to represent the defendant, who initially elected a jury trial. After further discussing the matter with counsel, the defendant subsequently elected a court trial. On the day of trial, the court again put the defendant to plea and the defendant indicated that he had discussed the matter with his attorney and chose to be tried by the court.

The defendant concedes that this claim was not properly preserved at trial and seeks review of this claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Since the record is adequate for review and the claim advanced implicates a fundamental constitutional right; see Boykin v. Alabama, 395 U.S. 238, 242-13, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); the defendant has satisfied the first two prongs of Golding, and is entitled to a review of [his] unpreserved claim.” State v. Tangari, 44 Conn. App. 187, 193, 688 A.2d 1335, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997).

We first set out the applicable standard of review. “The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. . . .This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal. . . our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book.” (Internal quotation marks omitted.) State v. Groomes, 232 Conn. 455, 474-75, 656 A.2d 646 (1995).

This case is governed by our decision in State v. Tangari, supra, 44 Conn. App. 187. In Tangari, we held that the defendant knowingly, voluntarily and intelligently waived her right to a jury trial because she was advised of her right to a jury trial in open court, was represented by competent counsel, discussed the waiver of a jury trial with counsel, and responded affirmatively when asked whether she understood that, by electing to be tried by the court, she was giving up the right to a trial by jury. Id., 195. Here, as in Tangari, the record is not silent, but rather reflects that the defendant was advised of his right to a jury trial in open court. The defendant had competent appointed counsel and initially elected a jury trial. After discussing the matter with his attorney, the defendant changed his election and chose a court trial. Furthermore, on the day of trial, the court again asked the defendant, “How do you elect to be tried, sir, by the court or by the jury?” The defendant responded, “By the court.” When asked if he had discussed this with counsel, the defendant responded affirmatively.

“The determination of whether there has been an intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Internal quotation marks omitted.) State v. Shockley, 188 Conn. 697, 707, 453 A.2d 441 (1982). Viewing the totality of circumstances, we conclude that the defendant waived his right to a jury trial and that the waiver was knowing, voluntary and intelligent.

II

The defendant next claims that the trial court unconstitutionally enlarged the crime with which he had been charged by finding him guilty of violating the risk of injury statute on a factual scenario and statutory subsection not alleged in the long form information. The trial court found that the defendant violated each of the three disjunctive provisions of § 53-21, although the long form information charged the defendant with violating only the third provision, committing “an act likely to impair the health of a child under the age of sixteen years.” Thus, the defendant claims that the trial court improperly enlarged the crime charged in violation of his sixth amendment right to be informed of the charges against him. We are unpersuaded.

“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” (Internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 527, 610 A.2d 1113 (1992), quoting State v. Scognamig-lio, 202 Conn. 18, 22, 519 A.2d 607 (1987).

“The defendant’s conviction under either [factual] scenario would consequently bar a subsequent prosecution for that crime. . . . Because the defendant’s conviction is sufficient to bar reprosecution, to establish an infringement of his right to be informed of the nature and cause of the accusations against him, he must demonstrate that [any enlargement] caused him prejudicial surprise or detrimentally affected the presentation of his defense.” (Citation omitted.) State v. Marra, supra, 222 Conn. 528.

The defendant’s conviction was based on the single act of restraining his child by the ankles and beating him with a thin looped cord or wire. The information clearly charged the defendant with violating § 53-21 by committing an act “likely to impair the health of a child under the age of sixteen years to wit he struck [the minor child] then aged 19 months . . . with an instrument causing injury and pain” and his conviction is clearly based on this factual scenario and statutory provision. Thus, an unconstitutional enlargement is not in issue. See State v. Lemoine, 39 Conn. App. 657, 665, 666 A.2d 825 (1995).

Moreover, “[t]he defendant can gain nothing from his present claim without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. ... As the state’s pleadings here informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.” (Citations omitted.) State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979).

We conclude that the defendant’s claim that the trial court improperly enlarged the charge against him is meritless.

Ill

The defendant next argues that the evidence produced at trial was insufficient to support his conviction for risk of injury to a child. The defendant specifically asseits that, because the trial court found that the state had not proven beyond a reasonable doubt that the defendant employed a deadly weapon or dangerous instrument and thereby found the defendant not guilty of assault in the second degree, the evidence was insufficient to convict the defendant of risk of injury to a child. We are unpersuaded.

“When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 118, 665 A.2d 95 (1995).

While the use of a deadly weapon or dangerous instrument to injure the victim is an essential element of the crime of assault in the second degree, the use of a deadly weapon or dangerous instrument is not an element of the crime of risk of injury to a child. Thus, the trial court’s finding that the state failed to prove beyond a reasonable doubt that the defendant employed a weapon or instrument did not affect the sufficiency of the evidence required to support the defendant’s conviction of risk of injury to a child.

Moreover, the evidence presented at trial was sufficient to support the defendant’s conviction of risk of injury to a child. The state produced evidence that the infant victim was in the sole care of the defendant when he was repeatedly and traumatically injured. Both Johnson and Ramkissoon testified as to the extent of the victim’s injuries. Further, Spivak testified that the explanations given for the victim’s injuries were not logical, and, in her opinion, the victim’s injuries were caused by his being restrained by the ankles and beaten with a cord or wire.

“When there is evidence that . . . the injuries occurred while the child was in the sole [care] of the [defendant], the [trier of fact] is permitted to infer not only that the child’s injuries were not accidental but that, in addition, they occurred at the culpable hands of [the defendant].” (Internal quotation marks omitted.) State v. Dumlao, 3 Conn. App. 607, 623, 491 A.2d 404 (1985).

“ ‘[I]t is of no moment that much of the relevant evidence maybe circumstantial. . . . [T]here is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.’ ” State v. Cintron, supra, 39 Conn. App. 118. “Circumstantial evidence may be used to prove all elements of a crime beyond a reasonable doubt.” State v. Dumlao, supra, 3 Conn. App. 623.

“[I]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence. ... In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citations omitted; internal quotation marks omitted.) State v. Cintron, supra, 39 Conn. App. 118-19.

We will not second guess the trial court’s determination on the basis of some vague, speculative or amorphous feeling that some doubt of guilt may be shown by the cold printed record. See id. We have not had the trier of fact’s opportunity to observe the conduct, demeanor and attitude of the witnesses and to gauge their credibility. See id.

We conclude that the evidence presented at trial was sufficient to support the defendant’s conviction of risk of injury to a child, and the defendant’s claim to the contrary is without merit.

IV

Finally, the defendant claims that the trial court improperly found him guilty based on inconsistent findings of fact. We do not agree.

The defendant was charged with assault in the second degree in violation of § 53a-60 (a) (2). Section 53a-60 provides in pertinent part: “(a) A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . After the state rested its case-in-chief, the trial court granted the defendant’s motion for a judgment of acquittal as to the assault charge, finding that the state had failed to prove the use of a deadly weapon or dangerous instrument. Specifically, no weapon was ever recovered or identified by the state and there was no evidence of the use of a weapon other than opinion testimony as to the probable size and shape of the instrument used to inflict the injuries.

The defendant asserts that the trial court’s granting of a judgment of acquittal on the assault charge on the basis of a lack of evidence of the use of a deadly weapon or dangerous instrument necessitated a judgment of acquittal on the charge of risk of injury to a child because that ruling precluded a conviction based on the use of an instrument as alleged in the long form information. Unlike assault in the second degree, however, use of a dangerous instrument is not an element of the crime of risk of injury to a child. The state produced ample evidence to support a finding that the defendant employed a looped cord or wire instrumentality to cause pain and injury, as charged in the long form information.

We conclude that the defendant’s claim of inconsistent determinations is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be [punished].”

       General Statutes § 53a-60 provides in pertinent part: “(a) A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       At the arraignment, the trial court, DiPentima, J., instructed all present, including the defendant, as follows: “You have the right to plead not guilty to the charges against you, and to request a trial either by judge or jury in most cases. You have the right to a public and speedy trial. The state is required to prove your guilt beyond a reasonable doubt.”

       “[Court Clerk]: Twelve criminal, Wilbert Chapman.
      “The Court: Good morning, Mr. Chapman.
      “[Defendant’s Counsel]: Your Honor, might we enter pro forma not guilty pleas, jury election.
      “The Court: Noted.”

       “[Assistant State’s Attorney]: Your Honor, on the jury docket, State vs. Wilbert Chapman. It is line 13 on the jury docket. Attorney Diette represents the defendant in this case. I understand, if it hasn’t already been done, that counsel is going to move for trial by court.
      “[Defense Counsel]: That’s correct, Your Honor. This is a child—an abuse of his own child and therefore—I’ve discussed it with him that we would both prefer having a court trial.”

       “The Court: How do you elect to be tried, sir, by the court or by the jury?
      “[The Defendant]: By the court.
      “The Court: Very well. Have you discussed this with your attorney?
      “[The Defendant]: Yes.”

       “The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

      See footnote 1.

       See footnote 2.

       See footnote 1.

       See footnote 1.

       Count two of the long form information stated in pertinent part: “The [assistant state’s attorney for the judicial district of Waterbury, geographical area number four] further accuses the said Wilbert Chapman of risk of injury to a minor in violation of Section 53-21 Connecticut General Statutes and charges that on a date or dates between January 29, 1994 and February 11, 1994 in the City of Waterbury the defendant did an act likely to impair the health of a child under the age of sixteen years to wit he struck [the minor child] then aged 19 months . . . with an instrument causing injury and pain.”


author: O’CONNELL, J.

text:
    WILLIAM C. MUNROE ET AL. v. EMHART CORPORATION ET AL.
    (AC 15065)
    (AC 15277)
    Dupont, C. X, and O’Connell and Foti, Js.
    Argued January 15
    officially released July 29, 1997

      Daniel P. Scapellati, and Michael S. Taylor, with whom, on the brief, was Mark B. Seiger, for the appellants-appellees (defendants).

      David G. Hetzel, with whom, on the brief, were Dennis O. Brown and Michael P. Thompson, for the appel-lee-appellant (named plaintiff).
   Opinion

O’CONNELL, J.

The defendant Emhart Corporation (Emhart) appeals from the trial court’s judgment, after a court trial, for the named plaintiff, William C. Munroe. Emhart claims in its appeal (AC 15065) that the trial court improperly failed to find that it had established a defense of accord and satisfaction. Munroe filed an independent appeal (AC 15277) claiming that the trial court abused its discretion in refusing to award him interest pursuant to General Statutes § 37-3a. We consolidated the appeals for hearing in this court and affirm the judgment of the trial court.

The record reveals the following facts. Munroe was employed by Emhart as a corporate attorney. In October of 1988, he was informed that his position was among those being eliminated as part of a reorganization of Emhart’s legal department. In exchange for his release and promise to protect confidential information, Emhart offered Munroe an early retirement package. The offer included pension enhancements with a value at that time of $49,802. In addition, Emhart proposed a delayed separation date that allowed Munroe to vest options to an additional 1269 shares of Emhart stock, which he later exercised when they could be sold at a gain of more than $25,000. Before executing the agreement, Munroe asked for and received a written memorandum detailing which options would be exercisable and the time periods during which he could exercise them. On December 2, 1988, Munroe asked to receive the same stock options as other corporate officers and employees of similar age and service. More specifically, he wanted his unvested options accelerated like those of certain departing senior executives. Emhart declined to extend Munroe’s retirement package to include anything more than was previously offered. Munroe signed the separation agreement on December 19,1988, and received a check for the amount that Emhart argues was due him.

After executing the agreement, Munroe continued to seek acceleration of his stock options. During that time period, Emhart became the subject of a hostile takeover attempt. In response to that attempt, Emhart sent its shareholders and filed with the Securities and Exchange Commission (SEC) a form 14D-9 setting forth the terms of the takeover offer. This form included the information that on December 22, 1988, the Emhart board of directors had passed a resolution that “[i]n the event of a change in control ... all then outstanding stock options . . . will become immediately exercisable. ...” When Munroe signed the separation agreement on December 19, 1988, he was unaware that Emhart’s boar d of directors was in the process of considering changes in the stock option plans.

On March 22, 1989, Munroe, after reading the 14D-9 form, again requested acceleration of his stock options. On April 19, 1989, Emhart informed Munroe that he could exercise the 750 remaining vested incentive stock options provided that the change of control occurred by April 30, 1989, but that he could not exercise any unvested stock options. On April 28, 1989, Munroe received a “cash-out” memorandum and check. He was paid for all his vested shares, but not for his unvested shares. When he cashed the check he did not believe that he was entitled to receive any money for his unvested shares. In September, 1989, however, Munroe received a copy of the board of directors’ vote that amended the stock option plans. For the first time, he became aware that he might be entitled to collect on the additional outstanding 2324 unvested shares.

In this action, Munroe seeks to be paid $46,932.88, which is the agreed value of the 2324 unvested shares that he held at the time of his termination. Emhart pleaded a special defense of accord and satisfaction. Following a two day trial, the court rendered judgment for Munroe in the amount of $46,932.88 plus interest at 12 percent from June 20,1990, the date the complaint was filed with the court, until the date of judgment, plus costs. Additional facts are included in the analysis of each appeal.

I

EMHART’S APPEAL

The gravamen of Emhaxt’s appeal is that the trial court improperly rejected its special defense of accord and satisfaction and consequently rendered judgment for Munroe for breach of certain stock option contracts when Munroe knowingly accepted a check tendered in full satisfaction of the defendant’s obligations pursuant to these stock option contracts.

An action involving an identical issue was brought in the federal court by two other key Emhart employees who held stock options under the same plan as the plaintiff and who were terminated on the same date and under the same terms. Lamb v. Emhart Corp., 47 F.3d 551 (2d Cir. 1995). The Second Circuit studied the stock option plans and agreements, the stock option provisions that were included in the termination agreements and the change in control agreements. It concluded that the amendments were incorporated into the termination agreements by reference and that Munroe’s options were outstanding when the employees were terminated. Id., 560. Consequently, it concluded that the plaintiffs in that case were entitled to be paid for their outstanding unvested shares. Id., 561.

Because of the similarity of Lamb v. Emhart Corp., supra, 47 F.3d 551, and the present case, Munroe claimed at trial that he was entitled to judgment in accordance with a theory of collateral estoppel. The trial court agreed that collateral estoppel prevented Emhart from asking the trial court here to reinterpret the provisions of the stock option plans, the stock option agreements, the pertinent provisions of the termination agreement, and the change in control agreements. The trial court found that these issues were fully litigated in Lamb and therefore concluded that the amendments were incorporated into the termination agreements by reference and that the plaintiffs’ options were outstanding at the time of their separation. In addition, the trial court concluded that even if collateral estoppel did not apply, and it had determined the issue de novo, it would have reached the same legal conclusions as the federal court.

The trial court found that, although collateral estop-pel applied to the foregoing issues, it did not apply to Emhart’s special defense of accord and satisfaction. This issue was not litigated in the federal action because Munroe was not a party and the issue of whether an accord and satisfaction existed is necessarily peculiar to Munroe.

Emhart claims in this appeal that the trial court improperly found that there was no accord and satisfaction when Munroe accepted the check and cash-out memorandum. Emhart’s position is that accord and satisfaction does not require a dispute. Emhart’s alternative argument is that, if the law requires a dispute, the trial court improperly found that there was no dispute between Munroe and Emhart. We are bound by the trial court’s finding that no dispute existed between the parties at the time Munroe cashed the check. This was a valid finding based upon the evidence.

Our Supreme Court recently held that “[wjhen there is a good faith dispute about the existence of a debt or about the amount that is owed, the common law authorizes the debtor and the creditor to negotiate a contract of accord to settle the outstanding claim. . . . An accord is a contract between a creditor and debtor for the settlement of a claim by some performance other than that which is due. . . . Without a mutual assent, or a ‘meeting of the minds,’ there cannot be a valid accord.” (Citations omitted; internal quotation marks omitted.) Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 764, 674 A.2d 1313 (1996).

To prove an accord and satisfaction, the defendant must show that at the time of the agreement there was a good faith dispute over the existence of a debt or over an amount owed, and that the debtor and the creditor negotiated a contract of accord to settle the claim. Peerless Hosiery Co. v. Northern Ins. Co., 108 F. Sup. 52, 55-56 (D. Conn.), aff'd, 199 F.2d 957 (2d Cir. 1952). The accord must be a new agreement based on new consideration. Crucible Steel Co. v. Premier Mfg. Co., 94 Conn. 652, 656, 110 A. 52 (1920). The proponent must be able to show that there was a meeting of the minds, and that the offer by the debtor was clearly tendered as full satisfaction of the debt and that the payment was knowingly accepted. Id.; Gillis v. Gillis, 21 Conn. App. 549, 552, 575 A.2d 230, cert. denied, 215 Conn. 815, 576 A.2d 544 (1990).

The trial court found that “[w]hen Munroe cashed the check which he received with a cash-out memo on April 28, 1989, he believed that he had received everything that he was entitled to receive. Thus he had no dispute at that time regarding the amount of the check.” The trial court found that Munroe “had no knowledge that cashing the check would extinguish his rights.” Thus, the trial court concluded that because no good faith dispute was negotiated, no accord and satisfaction was reached. These factual findings are binding on this court unless they are clearly erroneous in light of the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Emhart has not demonstrated that they were clearly erroneous. Accordingly, we conclude that there was no dispute that was settled by the acceptance of the check and no meeting of the minds.

Emhart relies on Hanley Co. v. American Cement Co., 108 Conn. 469, 143 A. 566 (1928), and Gilreath v. Sentry Ins. Co., 38 Conn. Sup. 422, 450 A.2d 873 (1982), for the proposition that a dispute need not exist for accord and satisfaction. Neither case supports this proposition. In Hanley Co. v. American Cement Co., supra, 473, the Supreme Court found a valid accord and satisfaction, even though a dispute between the parties existed when a lesser officer of the plaintiff corporation accepted a check not knowing of the dispute. In Gil-reath v. Sentry Ins. Co., supra, 423, the Appellate Session of the Superior Court expressly held that “[t]he discharge of a debt by accord and satisfaction occurs when a debtor renders performance different from that allegedly due to his creditor and the creditor accepts the substituted performance in full satisfaction of the disputed claim. . . . The cashing ... of a check expressly sent in full settlement of a disputed claim, operates as an accord and satisfaction . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Because the trial court specifically found that there was no dispute, and the defendant has not demonstrated an abuse of discretion, we conclude that there was no valid accord and satisfaction.

Ill

MUNROE’S APPEAL

As part of its judgment, the trial court awarded interest at 12 percent from June 20, 1990, the date the writ was returned to court, to the date of judgment. This interest award was made pursuant to the offer of judgment statute. General Statutes § 52-192a. After rendition of the judgment, Munroe filed a motion seeking to have the trial court add further interest at 10 percent pursuant to General Statutes § 37-3. The trial court denied the motion stating that “[i]nasmuch as the court has already awarded interest pursuant to § 52-192a, it believes that it would be inequitable to award further interest in light of the fact that there was a good faith dispute.”

Munroe contends that denial of § 37-3a interest because § 52-192a interest has already been awarded is not supported in the law. We do not agree. Such denial was sanctioned in Loomis Institute v. Windsor, 234 Conn. 169, 180-81, 661 A.2d 1001 (1995). In Loomis Institute, the Supreme Court expressly stated that “having already awarded the [plaintiff] mandatory offer of judgment interest, the trial court might reasonably have concluded that a further award of interest pursuant to § 37-3a would not have been equitable. ... In these circumstances, we are not persuaded that the trial court abused its discretion in failing to award the [plaintiff] interest pursuant to § 37-3a in addition to interest awarded pursuant to § 52-192a.” Id., 182. Munroe has not demonstrated that the trial court abused its discretion in failing to award interest pursuant to § 52-192a.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Emhart, which merged into the Black & Decker Corporation, and B & D, Inc. Neither of the last two defendants ever employed the plaintiff or entered into any contract with him. Their only connection with this case was their acquisition of Emhart. We refer in this opinion to Emhart as the defendant.

       The plaintiffs at trial were William C. Munroe and James D’Amore. D’Amore did not participate in this appeal.

       The plaintiff in the present case was originally a plaintiff in Lamb, but was voluntarily dismissed because his claim for relief did not meet the minimum amount in controversy for federal diversity jurisdiction

       We note that in addition to Emhart’s argument that a dispute is not necessary for a valid accord and satisfaction, Emhart alternatively argued that a dispute did exist for which an accord and satisfaction was reached. We do not address this alternative claim because the trial court specifically found that a dispute did not exist. We are bound by this finding because Emhart has not persuaded us that it is clearly erroneous.

       General Statutes § 52-192a provides in relevant part: “Offer of judgment by plaintiff. Acceptance by defendant. Computation of interest, (a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case. . . .”

       General Statutes § 37-3a provides in relevant part: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . .”

       We note that the “good faith dispute” regarding the award of interest involves whether Emhart denied its debt to Munroe with good faith; it does not relate to the issue of a dispute regarding accord and satisfaction discussed in part I of this opinion.


author: LANDAU, J.

text:
    PAUL A. COVEY v. ALAN COMEN ET AL.
    (AC 14791)
    Dupont, C. J., and O’Connell and Landau, Js.
    Argued April 30
    officially released July 29, 1997

      Alice Ann Carey, for the appellant (plaintiff).
   Opinion

LANDAU, J.

The plaintiff, Paul A. Covey, appeals from the judgment of the trial court, rendered after a trial to the court, granting the defendants an easement by implication over a certain paved parking area located on the boundary line between the parties’ adjacent parcels of land. On appeal, the plaintiff claims that the trial court improperly (1) granted the defendants an easement by implication when neither party sought one, (2) failed to find record title in the plaintiff and (3) found for the defendants on their estoppel counterclaim. We reverse the judgment of the trial court.

A review of the following facts found by the court facilitates an understanding of the issues in this appeal. This is a dispute between adjoining landowners over the boundary line of their parcels. On August 11, 1987, the defendants purchased their property located in Eas-ton from Marion I. Covey, the plaintiffs mother. The defendant Alan Comen is a chiropractor with an office on the property. At the time of the sale, Marion I. Covey executed an affidavit in which she acknowledged that she had not allowed any encroachments on the property nor permitted anything to cloud its title. She orally stated to the defendants that they could always use the parking lot, indicating that she owned only about four feet of the paved area along the south edge to the highway, but they could use the entire area for parking. The defendants purchased the property relying on this representation and have used the paved parking area as a parking lot for Alan Comen’s patients.

The plaintiff obtained title to the lot adjacent to the defendants on November 27,1989, through a certificate of devise following the death of his mother. In 1990, the plaintiff attempted to sell the adjacent lot, but the prospective buyer decided not to purchase it after speaking with the defendants and being informed of their- right to use the paved area. On September 28, 1990, the plaintiff commenced this action against the defendants, alleging claims of quiet title, tortious inference with contractual relations, and wrongful removal of land markers in violation of General Statutes § 47-34a. The defendants filed an answer and asserted two special defenses and two counterclaims, claiming that the plaintiff breached warranties contained in the contract of sale and that the plaintiff is estopped from claiming title. In response to the defendants’ counterclaims, the plaintiff alleged special defenses that the misrepresentation of fraud claim was barred by the applicable statute of limitations and that the breach of contract claim was barred by the merger doctrine.

In its memorandum of decision, the trial court found that Marion I. Covey knew that the defendant required a parking area for his patients’ use and represented that the home had the necessary zoning approvals for a chiropractor’s office. The trial court concluded that an implied grant of an easement to use the parking area and the driveway came into being for the benefit of the defendants as a result of Marion I. Covey’s representations. The trial court rendered judgment in favor of the defendants on the plaintiffs complaint and in favor of the defendants on the second count of their counterclaim, granting the defendants a permanent easement over the portion of the driveway and parking area located on the adjacent lot. This appeal followed.

The plaintiff first argues that the trial court improperly granted the defendants an easement by implication when no such cause of action was pleaded and when no evidence was offered at trial on which the court could have concluded that such an easement existed. We agree.

“It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint. . . . Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). However, [t]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988); Fuessenich v. DiNardo, 195 Conn. 144, 150-51, 487 A.2d 514 (1985). As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery. . . . Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994).” (Internal quotation marks omitted.) O’Brien v. Coburn, 39 Conn. App. 143, 147, 664 A.2d 312 (1995). A corollary is that a party’s right to recover is limited to the allegations averred in the applicable pleading.

The pleadings in the present case do not provide sufficient notice to the plaintiff of the defendants’ claim of an easement by implication; rather, the pleadings indicate only that the defendants claimed estoppel and breach of contract. The trial court rendered judgment for the defendants on the basis of a theory that was not pleaded in their counterclaim. “A [party] may not allege one cause of action and recover on another. Facts found but not averred cannot be made the basis for a recovery.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952). Moreover, it is important to note that there is no claim that there was a variance in the proof from the pleading.

It is clear that the plaintiff was prejudiced in maintaining his defense on the counterclaim in that he lacked the opportunity to reply to allegations that were absent from the counterclaim and never referred to at trial. See Strimiska v. Yates, 158 Conn. 179, 184, 257 A.2d 814 (1969). Therefore, we conclude that the trial court improperly granted the defendants an easement by implication. As a result, we do not reach the plaintiffs remaining claims on appeal.

The judgment is reversed and the case is remanded for a new trial on the third count of the complaint.

In this opinion the other judges concurred.

       Judith Comen, the wife of the named defendant Alan Comen, is also a defendant in this action.

       The defendants did not file an appellate brief or appear at oral argument.

       The defendants specially pleaded that the plaintiffs ownership of a portion of the driveway would put the defendants’ property in violation of the zoning regulations, and therefore breach the contract for their property. The defendants also pleaded that the plaintiffs claims conflicted with an affidavit of the predecessor in title.

       The defendants did not offer any evidence at trial that the office could not be legally used if the paved parking area were removed.

       It is clear that the trial court rendered final judgment as to the plaintiffs complaint, and therefore the issues raised on appeal arising from the complaint are properly before this court. See Practice Book § 4002A; G. F. Construction, Inc. v. Cherry Hill Construction, Inc., 42 Conn. App. 119, 122, 679 A.2d 32 (1996).
      The trial court’s action as to the defendants’ counterclaims is not as clear. The court rendered judgment for the defendants on their second counterclaim sounding in estoppel to the extent of establishing a permanent easement in favor of the defendants on the disputed land. Thereafter, the plaintiff filed a motion for articulation, pursuant to Practice Book § 4051 seeking clarification on whether the trial court ruled on the defendants’ first counterclaim and for the trial court to articulate the exact location and nature of the easement. The trial court granted the motion and issued a memorandum clarifying the location and nature of the easement, but did not mention the first counterclaim. The plaintiff filed a motion for further articulation, again seeking clarification of whether the trial court ruled on the first count of the counterclaim. The trial court issued a supplemental memorandum of decision dated January 2, 1997, indicating that the first count of the counterclaim had been impliedly decided by its resolution of the remaining claims. The trial court further stated that if its ruling was ambiguous and, thus, required articulation, it found for the defendants on their first counterclaim. The trial court did not address the issue of damages as to this cause of action.
      While the defendants alleged a cause of action of estoppel in their second counterclaim, estoppel is generally not considered a cause of action, but rather is pleaded as a special defense. See Connecticut National Bank v. Voog, 233 Conn. 352, 366, 659 A.2d 172 (1995); Southington Savings Bank v. Rodgers, 40 Conn. App. 23, 24, 668 A.2d 733 (1995), cert. denied, 236 Conn. 908, 670 A.2d 1307 (1996). “As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 164 . . . .” (Citation omitted.) Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994). In the present case, the defendants’ assertion of estoppel is consistent with the plaintiffs allegations, but tends to show that the plaintiff has no cause of action due to the representations made to the defendants by the seller. We will therefore treat the defendants’ counterclaim of estoppel as a special defense. As a result, the issues raised by the plaintiff on appeal arise from a final judgment on the complaint and are therefore reviewable by this court. See Practice Book § 4002A.

       “ ‘An implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property. ... In the absence of common ownership ... an easement by implication may arise based on the actions of adjoining property owners. . . . There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate.’ . . . Kenny v. Dwyer, 16 Conn. App. 58, 64, 546 A.2d 937, cert. denied, 209 Conn. 815, 550 A.2d 1084 (1988); see also D’Amato v. Weiss, 141 Conn. 713, 717, 109 A.2d 586 (1954).” O’Brien v. Coburn, supra, 39 Conn. App. 148. No such theory was pleaded in the present case.

       “A variance is a departure of the proof from the facts as alleged. Not every variance, however, is a fatal one since immaterial variances are disregarded under our practice. Practice Book § [178] .... Only material variances, those which disclose a departure from the allegations in some matter essential to the charge or claim, warrant the reversal of a judgment.. . .Strimiska v. Yates, 158 Conn. 179, 183, 257 A.2d 814 (1969); Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57 (1987) . . . O’Connor v. Dory Corporation, 174 Conn. 65, 68, 381 A.2d 559 (1977). Tedesco v. Stamford, 215 Conn. 450, 461, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992). A variance is material only if the defendant is prejudiced by it.” (Internal quotation marks omitted.) Commissioner of Motor Vehicles v. DeMilo & Co., 233 Conn. 254, 275-76, 659 A.2d 148 (1995).

       The plaintiff did not appeal from the trial court’s rulings as to the first and second counts of his complaint sounding in tortious interference with contractual relations and the wrongful removal of land markers in violation of § 47-34a.


author: PER CURIAM.

text:
    EMIGRANT SAVINGS BANK v. JAMES W. ERICKSON ET AL.
    (AC 16162)
    Foti, Schaller and Daly, Js.
    Argued June 6
    officially released July 29, 1997

      James M. Nugent, for the appellants (defendants).

      Stewart I. Edelstein, with whom, on the brief, were Jennifer L. Chobor and Daniel S. Nagel, for the appel-lee (plaintiff).
   Opinion

PER CURIAM.

The defendants, James W. Erickson and Janice A. Erickson, appeal from the trial court’s denial of the motion, filed by the defendant James Erickson, to open the judgment of strict foreclosure. The defendants make several claims that we need not address to resolve this appeal.

The relevant facts necessary for a proper disposition of this appeal are as follows. In November, 1995, the plaintiff commenced the underlying proceedings to foreclose a mortgage on property owned by the defendants. On February 13, 1996, the trial court, Thim, J., rendered a judgment of strict foreclosure and set the law day of April 16, 1996. On April 15, 1996, the defendant James Erickson filed for Chapter 7 bankruptcy protection, staying the foreclosure as to him. The law day, however, passed as to the defendant Jardee Erickson. On May 30, 1996, the plaintiff obtained relief from the automatic bankruptcy stay without objection from the trustee, and filed a motion to open the judgment of strict foreclosure as to the defendant James Erickson only and to set new law days. On June 17, 1996, the trial court, West, J., granted the motion, modified the judgment of strict foreclosure and set a new law day for James Erickson of July 16,1996, with all prior orders remaining in effect. On June 28, 1996, a motion to open the judgment of strict foreclosure was filed. The text indicated that it was filed on behalf of James Erickson, but it was signed by counsel for “the defendant, Janice Erickson.” On July 15, 1996, the trial court, West, J., denied the motion. Both defendants thereupon filed the present appeal.

The defendants, as appellants, have the responsibility to provide this court with an adequate record for review. Practice Book § 4061; DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983); Sinnott v. Sinnott, 44 Conn. App. 153, 154, 687 A.2d 556 (1997); Connecticut Bank & Trust Co., N. A. v. Linsky, 32 Conn. App. 13, 15, 627 A.2d 954 (1993). The defendants have failed to present either a written memorandum of decision or a transcribed copy of an oral decision signed by the court. See Practice Book § 4059 (a). Additionally, the defendants have failed to file a transcript. We cannot render a decision without first having “specific findings of fact to determine the basis of the court’s ruling.” State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). The appellants have not taken the necessary steps to sustain their burden of providing an adequate record for appellate review. See Walton v. New Hartford, 223 Conn. 155, 165-66, 612 A.2d 1153 (1992). We, therefore, decline to review this matter.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

       On September 25,1996, we ordered the parties to address in their briefs the issue of aggrievement as to Janice Erickson and the issue of James Erickson’s standing to file the appeal. The plaintiff complied. The defendants, however, claim to have complied by “implicitly” addressing those issues in their brief.

       Practice Book § 4059 (a) provides in relevant part that “the court shall, either orally or in writing, state its decision on the issues in the matter. The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office.”