author: Bieluch, J.

text:
    Alpha Crane Service, Inc., et al. v. Capitol Crane Company et al. Paul J. Aparo, Administrator (Estate of Steven J. Palmeri) v. United Technologies Corporation et al.
    (2835) (2836) (2837) (2838) (2839) (2840) (2841)
    Spallone, Daly and Bieluch, Js.

      Argued October 8, 1985
    decision released January 21, 1986

      Jeremiah M. Keefe, with whom was James E. Kernan, for the appellant in both cases (defendant Wetherell Corporation).

      William R. Davis, with whom was Michael C. Jain-chill, for the appellant in the second case (plaintiff Paul J. Aparo).

      Stephen C. Lattanzio, with whom, on the brief, was Albert G. Murphy, for the appellees in the first case (plaintiff Alpha Crane Service, Inc., et al.).

      Joseph G. Lynch, with whom, on the brief, were John W. Lemega and Karen E. Young, for the appellee in both cases (defendant Capitol Crane Company).

      John R. FitzGerald, with whom were Constance L. Epstein and, on the brief, James T. Haviland II, for the appellee in both cases (defendant United Technologies Corporation).
   Bieluch, J.

These appeals arise out of the denial by the trial court of seven motions to set aside various verdicts rendered in two actions consolidated for trial. The two cases are the result of a construction accident in which a crane operator died and a crane was damaged. The appellants have claimed a total of sixteen errors on appeal. We find error.

Because of the complex nature of these appeals, preliminary facts are set forth as follows, and detailed facts will be outlined in the discussion of specific issues. The jury could reasonably have found the following facts. The defendant United Technologies Corporation (UTC) contracted with the defendant Wetherell Corporation for the latter to dismantle and transport to a storage area large exhaust ducts from UTC’s Wilgoos Gas Turbine Laboratory. In connection with that contract, Wetherell hired the defendant Capitol Crane Company to assist by lowering the heavy pieces of ductwork to the ground. The size and weight of the dismantled duct-work, however, made it necessary to engage a second crane to assist in the operation. For that purpose, the plaintiff Alpha Crane Service, Inc., was employed.

On September 5,1978, while lowering an elbow section of ductwork weighing approximately twenty tons, the choker cable suspending the elbow from the boom of Alpha’s crane broke. The elbow dropped onto the cab of Alpha’s crane, crushing it, and killing the crane operator, Steven J. Palmeri, the plaintiff Aparo’s decedent.

As a result of the accident, two separate actions were instituted against the defendants UTC, Wetherell and Capitol jointly: (1) Alpha Crane Service, Inc. v. Capitol Crane Co. (Alpha’s case), an action for damage to the crane; and (2) Aparo v. United Technologies Corporation (Aparo’s case), an action for the wrongful death of Steven J. Palmeri. The defendants responded to these actions with an avalanche of answers, special defenses, cross claims and counterclaims.

Aparo’s case and Alpha’s case were consolidated for trial. The jury, in two separate phases of deliberation, found only Wetherell to be liable to the plaintiffs. In addition, Capitol and UTC were each awarded damages from Wetherell on their cross claims. Wetherell and Aparo filed motions to set aside these bifurcated verdicts on various grounds. The motions were denied and appeals taken from the denials.

I

At trial, UTC called Robert DeBenedictis to testify as an expert witness on crane and rigging safety. UTC first disclosed its intent to call DeBenedictis as a witness on Monday, September 12, 1983, approximately three weeks into the trial. The disclosure was made as a supplemental response to an interrogatory, propounded by Aparo about three years earlier, requesting the names of all experts expected to testify, and the subject matter of their anticipated testimony.

Four days later, on Friday, September 16, 1983, DeBenedictis was called to the stand and counsel for Aparo immediately objected to his offered testimony on the ground of insufficient notice of UTC’s intended offer to allow proper preparation for cross-examination. After a lengthy series of arguments and a conference in chambers, the court ruled that DeBenedictis would be allowed to testify on the following Tuesday when court reconvened. The court also granted an early adjournment that day to allow the parties to depose DeBenedictis in the courtroom during the afternoon, four days prior to his testimony.

Aparo now claims that the court erred in permitting DeBenedictis to testify at all. In support of this claim, Aparo points to Practice Book § 231 which provides for sanctions where a party has “failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead.” Aparo asserts that by its delay in supplementing its disclosure, UTC failed to answer the interrogatory fairly and thereby prejudiced Aparo’s ability to prepare his case. In response, UTC contends that DeBenedictis was disclosed fairly to Aparo as soon as the decision was made to call him as a witness. Although, by the admission of counsel for UTC, DeBenedictis had been in court earlier in the trial, and although he had examined some of the exhibits during court recesses on those occasions, UTC did not decide to call him to the stand until September 8, 1983, four days before his disclosure. At that point, the supplemental disclosure was prepared and filed on the next court day. Aparo did not object to the witness until DeBenedictis took the stand four days later, despite the fact that he had prepared a brief on this issue in anticipation of an offered objection.

The court properly concluded that “no one here is without fault in this situation.” Aparo could have given far more notice of his objection than he did, but UTC was also at fault for failing to prepare its case fully and to disclose its expert despite having had more than three years in which to do so.

The decision to impose sanctions such as the possible exclusion of DeBenedictis’ testimony rested in the trial court’s discretion. Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 107, 476 A.2d 1074 (1984). Here, the court’s decision to allow the testimony, after a deposition of the witness, adequately served to inform opposing counsel of both the existence of the witness, and the nature of his testimony. Further, his testimony before the jury was limited strictly to the scope of the deposition. Under these circumstances, it cannot be said that the plaintiff was prejudiced or that the trial court abused its discretion in ruling as it did. Although sanctions should be imposed to deter those who would use trial-by-ambush tactics; Id., 108; the trial court is in the best position to assess the intent behind the behavior of the offending party and, therefore, its decision must be given great weight and deference. See id.

II

Aparo’s second claim of error is that the court erred in denying his motion to set aside the jury’s verdict in favor of the defendant UTC. “ ‘The ruling of the trial court on a motion to set aside a verdict is entitled to great weight.’ Darling v. Burrone Bros., Inc., 162 Conn. 187, 200, 292 A.2d 912 (1972) . . . .” Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982). The jury’s verdict must stand “ ‘if [it is] one at which honest men acting fairly and intelligently might arrive reasonably . . . even though the opinion of the trial court and this court be that a different result should have been reached.’ Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940).” Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980); see also Trzcinski v. Richey, 190 Conn. 285, 299, 460 A.2d 1269 (1983). In the present case, the transcript reveals that the testimony, although not entirely favorable to UTC, was susceptible of the reasonable interpretation that Wetherell was liable to Aparo to the exclusion of UTC. Consequently, the trial court was correct in refusing to set aside the jury verdict in favor of UTC.

III

Despite the order of the court, Dupont, J., consolidating the Alpha and Aparo cases for trial, counsel for Wetherell moved, at the commencement of jury selection, on August 9,1983, that the trial of the cross claims and counterclaims between the respective defendants be severed from the trial of the plaintiffs’ actions. The court, Hon. Harold Missal, state trial referee, ordered that the cases be tried together unless Judge Dupont’s permission to sever was obtained. Although the record does not reflect whether such permission was, in fact, requested, the motion to sever was renewed before the commencement of evidence, was denied again, this time unconditionally, and an exception was taken to that ruling.

From August 24,1983, until September 21,1983, evidence was taken at trial. On September 15,1983, Judge Missal ruled that the jury’s deliberations would be separated into different parts, the first of which would be to consider Aparo’s case against the three defendants. The court reserved deliberation on all other claims between the various parties in the Aparo and Alpha cases until after a verdict was reached as to the plaintiff’s claims in Aparo’s suit.

On September 30, 1983, the jury completed its first deliberation and returned a verdict in favor of the plaintiff Aparo, solely against the defendant Wetherell, in the amount of $700,000. Thereafter, the court submitted all of the remaining issues to the jury on October 4, 1983. At this time the court submitted the first count of UTC’s two cross complaints to the jury for a determination of damages only. UTC’s motions for summary judgment as to liability on these counts had been granted one day earlier, at which time the remaining counts were withdrawn. The court also directed a verdict for Capitol on the first count of its cross complaint against Wetherell and left the jury to determine damages on that count. In the Alpha case, the jury found Wetherell liable to the plaintiff Palmeri in the amount of $14,000 for damages to the Alpha crane. The jury also found Wetherell to be liable to indemnify Capitol in the amount of $28,655.95 and to indemnify UTC in the amount of $91,539.94. Wetherell’s motions to set the verdicts aside were denied.

Wetherell claims error in that: (1) the court denied its motion to sever the plaintiffs’ trials from the defendants’ trials on the cross claims and counterclaims; and (2) the court, having denied the motion to sever the trials, then separated the various issues for the jury’s individual consideration after evidence had been heard on all aspects of the cases. We disagree with Wetherell. With regard to the first of these issues, it has long been held that the decision to consolidate or sever the trial of different actions is within the sound discretion of the court, and that decision will not be reversed in the absence of a clear abuse of discretion. Rode v. Adley Express Co., Inc., 130 Conn. 274, 277, 33 A.2d 329 (1943).

In the present case, Wetherell advances three arguments in support of its claim that such an abuse was present. First, Wetherell argues that the sheer volume and complexity of the issues in these cases mandated severance of the trial of the cross claims and counterclaims from that of the plaintiffs’ claims. This argument is without merit. In fact, it is precisely the complex nature of these cases which made consolidation appropriate. The trial, which lasted four weeks, would have been duplicated unnecessarily had the motion to sever been granted. “The public’s interest in avoiding unnecessary litigation and conserving scarce judicial resources is too powerful a factor to ignore.” Nielsen v. Nielsen, 3 Conn. App. 679, 684, 491 A.2d 1112 (1985).

Second, Wetherell asserts, the admission of evidence regarding insurance, relevant to the cross claims of UTC against Wetherell, acted to its prejudice since this evidence is inadmissible in negligence cases, such as the plaintiffs’ cases here. In Magnon v. Glickman, 185 Conn. 234, 440 A.2d 909 (1981), the court held that “[generally, in negligence actions, evidence that the defendant carries liability insurance is inadmissible. . . . This rule, however, is not without exception. See, e.g., Gigliotti v. United Illuminating Co., 151 Conn. 114, 122, 193 A.2d 718 (1963) (‘the fact that the contract contained references to insurance could not operate to exclude those portions if they were otherwise admissible and of probative value.’) . . . .’’(Citations omitted.) Magnon v. Glickman, supra, 242.

In the present case, the liability insurance clauses in the contract, as well as the testimony cited by Wetherell in its brief, were, as Wetherell concedes, admissible with regard to UTC’s cross claims. Further, the insurance provisions at issue pertained to Wetherell’s contractual duty to indemnify UTC and to make UTC an additional insured on Wetherell’s liability policy. In only three questions on direct examination was Wetherell’s obligation to obtain liability insurance discussed. It should be readily apparent that severing such a complex trial so as to prevent approximately two transcript pages, related to a side issue, out of about 2,300 from reaching the ears of the jury would be unreasonable.

Finally, Wetherell argues that the pleadings were not closed with respect to the cross complaints at the time of trial in violation of Practice Book § 253. This citation is inapposite. Wetherell is confusing the placement of a case on the trial list with the actual commencement of a trial. This claim purports to relate to the assignment of these cases for trial, but Wetherell’s objection applies only to their earlier placement on the trial list before the side issues were closed. Furthermore, this pleading delay was due primarily to Wetherell’s own negligence in filing its answer and special defenses. Also, there is some uncertainty about the applicability of Practice Book § 253 to the pleadings on cross claims between defendants. “It is not clear whether all pleadings, including those on cross-complaints and third party actions, have to be closed before a trial list claim may be made. Since the rule carefully says ‘terminated in an issue or issues of fact,’ the authors believe a trial list claim can be filed as soon as the pleadings are closed between the plaintiff and the defendant.” 1 Moller & Horton, Connecticut Practice (2d Ed. 1979) p. 324.

The crucial question is whether all pleadings were closed before the commencement of trial. Wetherell’s statement that “[a]t the time of trial . . . the pleadings were not closed with respect to the cross-complaints” is in error and is misleading. The trial of a jury case commences when a jury panel is selected and sworn; see State v. Roy, 182 Conn. 382, 385, 438 A.2d 128 (1980); and the trial of a court case commences with the beginning of evidence; see State v. Flower, 176 Conn. 224, 225-26, 405 A.2d 655 (1978). This claim of Wetherell’s is also without merit.

We, therefore, cannot conclude that the court abused its discretion in refusing to separate the various claims and issues at trial.

With regard to Wetherell’s claim that the court, having refused to sever the trial, erred in separating the issues to be presented to the jury, no arguments have been raised beyond those discussed above. In essence, Wetherell claims that the submission of Aparo’s case to the jury after it had heard testimony regarding liability insurance was improper. Since we have concluded that this was not error, we find no merit in this claim.

IV

Wetherell has also raised four claims of error with regard to its special defense that it was a principal employer, under General Statutes § 31-291, and, as such, was exempt from liability, and that Aparo’s exclusive remedy was under the Workers’ Compensation Act. Wetherell claims that the court erred (1) in refusing to direct a verdict against the plaintiff Aparo, and for it, on this special defense; (2) in giving incorrect instructions to the jury on the elements of the principal employer defense; (3) in submitting factual questions to the jury with insufficient and incomplete instructions on this defense; and (4) in striking Wetherell’s special defense of principal employer to UTC’s cross complaint.

The principal employer defense requires that three elements must be satisfied: (1) The relation of principal employer and contractor must exist in work wholly or in part for the former; (2) the work must be on or about premises controlled by the principal employer; and (3) the work must be a part or process in the trade or business of the principal employer. Mancini v. Bureau of Public Works, 167 Conn. 189, 193, 355 A.2d 32 (1974); Kasowitz v. Mutual Construction Co., 154 Conn. 607, 611, 228 A.2d 149 (1967).

Each of these elements ordinarily constitutes a question of fact to be determined by the jury. Bogoratt v. Pratt & Whitney Aircraft Co., 114 Conn. 126, 136, 157 A. 860 (1932); see also Mancini v. Bureau of Public Works, supra, 195; Grenier v. Grenier, 138 Conn. 569, 571, 87 A.2d 148 (1952). Where the evidence permits no real dispute as to the existence of these three conditions, a verdict may be directed. See Gigliotti v. United Illuminating Co., 151 Conn. 114, 118, 193 A.2d 718 (1963). As with any case, however, a directed verdict is justified only if, “on the evidence, the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed.” Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984).

In the present case, Wetherell asserts that each element of this defense was proven as a matter of law. We agree. The first element of the principal employer defense is that Wetherell and Alpha were in a principal employer and contractor relationship in the work performed by Alpha and Capitol for Wetherell. “[T]he contention of the hired general contractor that it is the principal employer is usually unchallenged.” Ranta v. Bethlehem Steel Corporation, 271 F. Sup. 286, 289 (D. Conn. 1967).

The various pleadings admit and the evidence establishes that the decedent was a crane operator for Alpha which had been retained by Capitol on behalf of Wetherell under the latter’s contract with UTC to dismantle and remove the ductwork located at the Wilgoos Gas Turbine Laboratory on property belonging to UTC. Wetherell had contracted with UTC to “[pjrovide all labor, materials, equipment, and perform all work required for removal of X-219 ducting at the Wilgoos Laboratory.” Wetherell is a mechanical and electrical contractor which does piping installation and demolition. The dismantling of the ductwork was performed by Wetherell’s employees. Since the ducts in this instance were suspended overhead, the use of a crane was required to lower the pieces of cut ductwork to the ground. Wetherell engaged Capitol, a small crane service company, for the use of its crane. On the date of the accident, it was necessary that an additional crane be engaged to assist Capitol in the lowering of heavy pieces of the ductwork. Wetherell authorized Capitol to engage Alpha to supply the second crane. Capitol and Alpha were both contractors engaged by Wetherell as principal employer under its contract with UTC and the jury in this case could not have reasonably and legally reached any other conclusion from the evidence.

With regard to the second element of the principal employer defense, Wetherell was required to prove that its work was on or about premises controlled by it. Again, the pleadings admit and the evidence establishes this as a matter of law.

The term “control” in this context has a specific meaning. It is merely descriptive of the work area and “is used instead of such words as ‘owned by him’ or ‘in his possession’ in order to describe the area in a more inclusive fashion. The emphasis is upon limitation of the area within which the accident must happen rather than upon actual control of the implements which caused the accident.” Crisanti v. Cremo Brewing Co., 136 Conn. 529, 535, 72 A.2d 655 (1950); see also Ranta v. Bethlehem Steel Corporation, supra.

The main purpose of this condition for principal employer responsibility under the Workers’ Compensation Act is to allow recovery for accidents occurring in the work area which could be prevented or minimized by sufficient oversight or control. Crisanti v. Cremo Brewing Co., supra. The contract between UTC and Wetherell required that the contractor remove “X-219 ducting at the Wilgoos Laboratory.” That provision defined the area of control to be the Wilgoos Laboratory, including the site of the accident in which Aparo’s decedent was killed. There is no question raised in the evidence to disprove Wetherell’s contract obligation to remove the ductwork at the place where the dismantled piece fell on Alpha’s crane when the choker cable snapped. To say that the premises were owned by UTC, with access thereto limited by its security program, does not create a reasonable factual question concerning the area under Wetherell’s control pursuant to its contract requiring resolution by the jury. Control of the work area, and not of the work, as raised by paragraph nine of the plaintiff’s complaint, is the requirement of this special defense of principal employer claimed by Wetherell. Once again, no reasonable question of fact remained for the jury to determine on this second element of the principal employer special defense.

The final element of the principal employer defense is that the work must be a “part or process” in the trade or business of the principal employer. This condition has been defined as including “all those operations which enter directly into the successful performance of the commercial function of the principal employer. If the work is of such a character that it ordinarily or appropriately would be performed by the principal employer’s own employees in the prosecution of his business, it is a part or process in his business.” Kasowitz v. Mutual Construction Co., supra, 613, quoting Crisanti v. Cremo Brewing Co., supra, 532.

It has long been held that this condition is not limited to the main tasks performed in the principal employer’s trade or business. Rather, those tasks which are necessary to the routine functioning of a business are also included within the scope of this element of the defense. In Hoard v. Sears Roebuck & Co., Inc., 122 Conn. 185, 188 A. 269 (1936), the removal of rubbish by a contractor was found to be “essential to the operation of the store and . . . thus part of the trade or business of the defendant.” Id., 189. Similarly, in Massolini v. Driscoll, 114 Conn. 546, 159 A. 480 (1932), the driver of a team of horses, employed by a contractor to the city of Hartford for the purpose of carting away rubbish, was killed when he was kicked by one of the horses with which he was working. The court found the city liable in compensation as a principal employer, holding that the scope of the part or process requirement included “the conduct of the usual affairs of the [public] corporation, and such as commonly engage the attention of its officers.” Id., 552. Finally, in Fox v. Fafnir Bearing Co., 107 Conn. 189, 139 A. 778 (1928), the employee of a contractor who was hired to clean the windows of the defendant’s factory was injured. The court concluded that such work was “a part of the work of keeping the employer’s factory in running condition, and [was] therefore a part of its ‘trade or business’ though not directly connected with any manufacturing process.” Id., 195.

From these cases it is clear that the part or process element is intended to include all of those tasks which are required to carry on the principal employer’s business. In the present case, Wetherell’s business, as a mechanical and electrical engineering company, was to dismantle the ductwork at the Wilgoos Laboratory. A necessary and expected part of that business was that the dismantled ducts had to be lowered to the ground. Thus, the use of cranes such as those operated by Capitol and Alpha was a part or process in Wetherell’s trade or business. No reasonable question of fact existed for the jury to determine on this final element of the principal employer defense.

Since no question of fact existed with regard to any of three elements of the principal employer defense, the court erred in failing to grant Wetherell’s motion for a directed verdict on its second special defense that it was subject exclusively to the remedies available to Aparo under the Workers’ Compensation Act.

V

Wetherell has also claimed error in the court’s decision to strike Wetherell’s principal employer defense directed to UTC’s cross complaint. Wetherell asserts that by permitting UTC’s cross claim for indemnity against Wetherell, the court was allowing Aparo, indirectly, to sue Wetherell on a tort claim which would otherwise be precluded by the Workers’ Compensation Act. Wetherell, however, concedes that an indemnity agreement, as was present in this case, may override the provisions of the Workers’ Compensation Act. Wetherell argues, instead, that another of its special defenses — that UTC had breached its contract-defeated any claim that the indemnity agreement, which was part of that contract, superseded the Workers’ Compensation Act. Wetherell insists that for the purpose of UTC’s motion to strike the principal employer defense, all facts in all of its special defenses must be accepted as true. That is simply not the law in this state. When a single special defense is subjected to a motion to strike, only the facts alleged by that special defense are accepted as true. Santoro v. Kleinberger, 115 Conn. 631, 633, 163 A. 107 (1932); Irving Trust Company v. Atwood, 15 Conn. Sup. 114 (1946); see also 1 Stephenson, Connecticut Civil Procedure (2d Ed.) § 116, p. 476. Consequently, the court was correct in granting UTC’s motion to strike Wetherell’s principal employer special defense.

VI

In both Aparo and Alpha, UTC and Capitol filed cross claims against Wetherell by which they alleged that Wetherell had agreed to indemnify them from liability arising out of accidents such as the one involved in these cases. UTC’s claim was based on an express provision in its contract with Wetherell while Capitol’s claims were based on the primary liability principle of Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 207 A.2d 732 (1965), and on an implied contract.

The trial court granted UTC’s motion for summary judgment as to liability on its indemnity claim and left to the jury the determination of damages. The court also directed a verdict for Capitol on its claim for indemnity based on primary liability, and left it to the jury to determine damages in that matter. On Capitol’s claim for indemnity on implied contract, the court left both liability and damages for the jury to decide.

With respect to the summary judgment in favor of UTC, Wetherell has claimed that the court erred in granting summary judgment (1) because, as a matter of law, the contract did not entitle UTC to the damages which it claimed, and (2) because a factual issue remained with regard to Wetherell’s special defense that UTC itself had breached the contract. We conclude that the court did err in part in granting UTC’s motion, and in denying Wetherell’s motion for a directed verdict.

Wetherell’s first claim is that the court erred in concluding, as a matter of law, that the indemnity agreement covered attorney’s fees and costs of defense, and damages to UTC’s own property. That agreement provided, in pertinent part, that Wetherell agreed to indemnify UTC from “any liability, claim of liability, expense, causes of action, loss or damage whatsoever for any injury ... to any person or property in the performance of this Contract, unless such injury is caused by the sole negligence of United, it being the intent of this agreement to protect and indemnify United from any and all loss arising out of or in connection with the Work performed under this Contract.” (Emphasis added.)

As with the term “all,” the term “any” constitutes the broadest scope of coverage possible. See Cirrito v. Turner Construction Co., 189 Conn. 701, 709, 458 A.2d 678 (1983). In the present case, Wetherell agreed to indemnify UTC from any “expense, causes of action, loss or damage whatsoever.” In the absence of express contractual language, however, the term “expense” has been held to encompass only attorney’s fees incurred in defense of the original action, and not in pursuing the remedy of indemnification. Burr v. Lichtenheim, 190 Conn. 351, 363-64, 460 A.2d 1290 (1983). In the present case, both of these issues were litigated. Since no express provision in the contract entitled UTC to attorney’s fees incurred in pursuing its right to indemnification from Wetherell, we conclude that the court erred insofar as it granted UTC’s motion for summary judgment as to Wetherell’s liability for those fees attributable to UTC’s pursuit of indemnification from Wetherell, and insofar as it failed to direct a verdict for Wetherell regarding those fees.

Wetherell’s contract -with UTC did, however, indemnify UTC from any “loss or damage whatsoever” to any “person or property.” This language is in accord with the parties’ express “intent” that UTC was to be protected “from any and all loss arising out of . . . the Work performed under this Contract.” Under these circumstances, we conclude that UTC was entitled to damages for any destruction of its own property pursuant to the contract and that no genuine issue of material fact remained on this issue.

Wetherell’s second claim with regard to UTC’s motion for summary judgment is that the court erred in granting that motion when Wetherell had alleged, by way of special defense, that UTC had breached the contract. Wetherell asserts that if this defense had been proved, then UTC would not have been entitled to rely on the indemnity provision in the contract.

The simple answer to this argument is that the jury, in its first phase of deliberations, and prior to UTC’s motion for summary judgment, considered, as a possible basis for finding UTC negligent, the issue of whether it breached its duty to provide plans, blueprints and specifications. The jury, however, found that UTC was not negligent. Thus, the trial court was correct in concluding that no genuine issue of material fact existed with regard to this special defense.

Wetherell’s final claims of error relate to the trial court’s decision to direct a jury verdict in Capitol’s favor on its cross complaint for indemnity from the party primarily liable, leaving damages for the jury to determine and to the trial court’s decision to deny Wetherell’s motion for a directed verdict against Capitol on the count of Capitol’s cross complaint alleging indemnity by implied contract. We take up the latter of these claims first.

As discussed earlier, a directed verdict cannot be justified unless the jury could not “reasonably and legally” reach any other conclusion. Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984). This count of Capitol’s cross complaint alleged that Wetherell had breached an implied indemnity agreement. Wetherell asserts that no evidence was introduced at trial regarding the existence of a written agreement between Capitol and Wetherell, or of any express indemnity agreement between them, or of conduct establishing an implied agreement. Wetherell does concede, however, that there was an oral agreement between itself and Capitol regarding the crane work to be done, and the price therefor. Further, there was testimony from Robert Vonderkall, president of Capitol Crane at the time of the accident, to the effect that Capitol refused on more than one occasion to do further work on the project until accurate weight measurements were provided by Wetherell regarding the ductwork to be removed. Capitol, in fact, refused to remove alone one of the pieces of ductwork which Alpha subsequently assisted in removing before the accident, because it was informed, apparently by chance, that two cranes had been required to install the piece. As a result of these adamant refusals to perform a dangerous task, Wetherell agreed to do what it could to obtain accurate estimates of the weight of each piece of ductwork, and authorized Capitol to get a second crane onto the job site.

A contract implied in fact may be inferred from words, action or conduct. Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94-95, 429 A.2d 808 (1980). From the above testimony the jury could well have concluded that the oral agreement between Wetherell and Capitol placed the burden of verifying the weights of the ductwork, and of hiring another crane, upon Wetherell. The jury also could have reasonably inferred that Wetherell breached this agreement. Thus, a directed verdict would have been improper on this claim, and the trial court was correct in denying such a motion.

Having concluded that Capitol’s second claim was properly submitted to the jury, we note that the jury returned a general verdict in this case. That verdict must now stand if any one of the claims submitted to the jury was properly submitted. Farley v. T.R. W., Inc., 4 Conn. App. 191, 195A, 493 A.2d 268 (1985). Thus, we decline to review the issue of whether or not the court was correct in granting Capitol’s motion for a directed verdict as to liability on the claim of indemnity from a party primarily negligent in its cross complaint.

Finally, we note that where a claim for indemnity is based on liability of a primarily negligent party, or upon an implied contract theory, the right to attorney’s fees exists with regard to those fees incurred in defense of the claim to be indemnified, but not to fees incurred in establishing the right to indemnification. Burr v. Lichtenheim, 190 Conn. 351, 363, 460 A.2d 1290 (1983). Thus, since in the present case both claims for attorney’s fees were sought, we must remand to the trial court for a determination of the amount of the fees which were attributable solely to the defense of the claims of liability made against Capitol, as opposed to those fees incurred in obtaining indemnity from Wetherell. As in UTC’s claim, only the former may be awarded in this case.

There is no error on the appeal by the plaintiff Aparo; there is no error on the appeal by the defendant Wetherell as to the judgment in favor of the plaintiff William Palmeri; there is error on the appeals by the defendant Wetherell as to the judgments in favor of the plaintiff Aparo and in favor of the cross complainants in each case, United Technologies Corporation and Capitol Crane Company, which judgments are set aside and the cases are remanded to the trial court with direction to render judgment for the defendant Wetherell on the plaintiff Aparo’s complaint, and for further proceedings in accordance with this opinion with respect to the cross complaints of United Technologies Corporation and Capitol Crane Company against Wetherell.

In this opinion the other judges concurred.

       Although Alpha Crane Service, Inc., was the named plaintiff, the actual owner of the crane was the plaintiff William T. Palmeri. Consequently, the subsequent jury verdict was rendered in favor of the plaintiff William T. Palmeri only.

       It should be noted that the parties and the court seem to have blurred the lines demarking the two cases at this point. Although the parties filed separate cross complaints and counterclaims in Aparo’s case and Alpha’s case, the court charged the jury to return a single verdict on UTC’s claims against Wetherell and to return a single verdict on Capitol’s claims against Wetherell. The court also left the jury to determine both liability and the amount of damages due on the second count of Capitol’s cross complaint against Wetherell.

       Practice Book § 253 provides: “Except as otherwise provided in these rules, only those cases in which the pleadings have terminated in an issue or issues of fact decisive of the merits of the case, or issue of fact to the jury, and hearings in damages on defaults shall be placed on the trial list.”

       In fact, on August 9,1983, at the commencement of jury selection, counsel for Wetherell was ordered to file its answers to the cross claims of UTC and Capitol by August 16,1983, so the trial could commence on August 23, 1983. Wetherell’s answers were filed on August 15,1983, before the jury was sworn and before the presentation of evidence actually commenced.

       Wetherell’s argument here seems to be that unless the court was willing to sever the trials entirely, it should have made no other efforts to minimize the difficulty of the jury’s task of deliberation. This line of reasoning appears to be appellate sophistry. In point of fact, Wetherell argued at trial for a separation of the issues to be presented to the jury along different lines. Counsel told the trial court that “I do agree that it makes some sense to simplify all of this for the jury, as it would be a very complex thing to have them consider all of the cases together.”

       General Statutes § 31-291 provides: “When any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be liable to pay all compensation under this chapter [Workers’ Compensation Act] to the same extent as if the work were done without the intervention of such contractor or subcontractor.”
      General Statutes § 31-284 (a) provides: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       Wetherell has also claimed error in the court’s instructions to the jury on the principal employer defense. Our conclusion that the court erred in submitting Aparo’s case to the jury renders any discussion of the court’s instructions unnecessary.

       See Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94-96, 429 A.2d 808 (1980).

       We also note that Wetherell has raised a claim of error related to the court’s granting of Capitol’s motion to strike Wetherell’s principal employer defense. That motion was properly granted for the same reasons as was UTC’s. Although Capitol’s claim for indemnity was one based upon an implied indemnity agreement, we hold that such a claim, as with a contractual indemnity agreement, can override the provisions of the Workers’ Compensation Act.

       Wetherell’s first claim of error with regard to this procedure is that the court erred in granting the motion because it was presented orally after the first jury verdict was obtained. This, Wetherell argues, was not in compliance with Practice Book §§ 378-386.
      Wetherell, however, never raised this objection at trial. Although the merits of the motion were strenuously debated, the propriety of the motion was not disputed. We will not review a claim which was not raised before the trial court. Practice Book § 3063.

       Wetherell also has claimed that just as the court erred in granting UTC’s motion for summary judgment on this ground, the court erred in denying Wetherell’s own motion for a directed verdict. Since these claims raise, essentially, the same point, they shall be dealt with as one.

       The alleged breach was UTC’s failure to provide Wetherell with blueprints, plans and specifications necessary to complete the job.

       Wetherell has also assigned, as error, the court’s denial of Wetherell’s motion for a directed verdict on this point. Since these two claims of error present essentially the same issue, they shall be treated as one.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Marianne Winters v. Robert J. Winters
    (3490)
    Spallone, Daly and Hendel, Js.
    Argued November 20, 1985
    decision released January 21, 1986

      Robert J. Winters, pro se, the appellant (defendant).

      Linda C. Klatt, for the appellee (plaintiff).
   Per Curiam.

In this appeal from a judgment dissolving the marriage of the parties, the defendant, who represents himself on appeal, challenges the trial court’s division of assets and its award of alimony. The defendant also claims that he was inadequately represented by his trial counsel.

Appellate review of “ ‘a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did.’ ” Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984) (brackets in original), quoting Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982). A review of the record reveals that the plaintiff’s testimony provided sufficient evidence to support the factual findings set out in the trial court’s memorandum of decision. The trial court, as the finder of fact, was free to reject contrary evidence. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). We conclude that the division of assets and the award of alimony chailenged by the defendant were made in accordance with law and were amply supported by the evidence. Bratz v. Bratz, 4 Conn. App. 504, 507-508, 495 A.2d 292 (1985).

The right to effective assistance of counsel is guaranteed to a defendant in a criminal proceeding under the sixth and fourteenth amendments to the United States Constitution and article first, § 8 of the Connecticut constitution. Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981). No such right is guaranteed to a defendant in a civil proceeding.

There is no error.


author: Dupont, C. J.

text:
    Sands Associates et al. v. Serafin Rios et al.
    (3783)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 5, 1985
    decision released January 21, 1986

      David J. Peska, for the appellants (defendants).

      Marianne B. Kilby, for the appellees (plaintiffs).
   Dupont, C. J.

In this action to quiet and settle title to a parcel of land to which the defendants claimed title by adverse possession, the trial court rendered judgment for the plaintiffs. In appealing from that judgment, the defendants claim that the trial court erred (1) in finding that the evidence did not support their claim of adverse possession, (2) in applying an improper standard of proof, and (3) in denying their motion for a new trial. We find no error.

The trial court found that the defendants purchased property adjacent to the parcel in question on June 8, 1962. In 1963, they began clearing their land and a portion of the property in dispute. Between 1963 and the time of trial, the defendants maintained a garden which extended from their property onto that in dispute. From about 1962 or 1963, to no later than 1967 or 1968, they raised pigs and chickens on the disputed property. The defendants, in 1968, erected a garage on their property and on a portion of the property claimed by the plaintiff and, in 1969, built a fence along part of the disputed property. They tethered a dog on the disputed property and, on several occasions, had outdoor cookouts there. In October of 1980, the plaintiff purchased the property in question and, shortly thereafter, verbally asserted ownership of it and instructed the defendants to remove their garden from the property. In March of 1982, the plaintiff commenced this action.

The only continuous activity which the trial court found that might substantiate the defendants’ claim of adverse possession was their erection of the garage which overlapped onto the disputed property. The trial court found that the defendants’ other activities were not of a continuing nature. The court noted that the garage had not existed for the requisite statutory period of fifteen years. It concluded, therefore, that the defendants failed to sustain their burden of proving adverse possession.

The defendants’ first claim of error, that the weight of the evidence supports their claim of title by adverse possession, is basically an assertion that they presented more evidence, in terms of number of witnesses and volume of testimony, than did the plaintiff. Sheer quantity of evidence, however, does not govern its probative value. “Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be acccorded their testimony. Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641 (1952).” Morande v. Newman Lincoln-Mercury, Inc., 5 Conn. App. 423, 499 A.2d 78 (1985). The weight of the evidence does not depend upon the number of witnesses for or against a particular proposition. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 404, 461 A.2d 422 (1983).

The claim that a trial court’s findings are not supported by the evidence is governed by Practice Book § 3060D. Pursuant to that section, an appellate reversal or modification of a trial court’s decision is only warranted when that decision is clearly erroneous in light of the evidence and pleadings in the entire record. Doyle v. Kulesza, 197 Conn. 101, 104, 495 A.2d 1074 (1985).

Adverse possession is a question of fact for the trial court and is not reviewable unless the “subordinate facts are legally and logically inconsistent or are insufficient to support the conclusion that they exist. Lengyel v. Peregrin, 104 Conn. 285, 288, 132 A. 459 (1926).” Clark v. Drska, 1 Conn. App. 481, 484-85, 473 A.2d 325 (1984). The record in this case supports the facts as found by the trial court.

The defendants’ next claim of error, that the trial court applied an incorrect standard of proof in determining the adverse possession claim, is also without merit. The defendants argue that the trial court imposed upon them the burden of proving title to the property by “clear and convincing evidence,” rather than by “clear and positive proof,” the established standard of proof in adverse possession cases. Clark v. Drska, supra, 484. The judicial coinage of varying phrases to describe the required measure of proof in adverse possession cases is immaterial as long as the standard of proof is of a degree greater than proof by a preponderance of the evidence. “Clear and convincing evidence” and “clear and positive proof” are judicial parlance for identical standards of proof. Id., 487.

The defendants additionally assert that the trial court’s denial of their motion for a new trial, based upon a claim of newly discovered evidence, was erroneous. The newly discovered evidence was revealed, upon an offer of proof, to consist of testimony by a neighbor whom the defendants claimed to have been unable to contact during the course of the proceedings. The neighbor, according to the defendants’ counsel, would have testified that between 1964 and the time of trial, she had seen the property in dispute being cultivated and maintained on a regular basis by the defendants and that she had also seen, during that period, a chicken coop, pigpen and doghouse on the parcel.

In its memorandum of decision denying the motion for a new trial, the court stated its conclusion that the evidence was not new and could have been ascertained and presented at trial with reasonable diligence by the defendants. The court further noted that even if it were to accept what counsel for the defendants represented as new evidence, the outcome of the case would not change.

A party is entitled to a new trial on the basis of newly discovered evidence “if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result. . . . ” Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959), quoted in Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983); Carrione v. State, 3 Conn. App. 633, 634, 491 A.2d 421 (1985). In acting upon a motion for a new trial based upon newly discovered evidence, the trial court acts in the exercise of its sound legal discretion. Turner v. Scanlon, supra; Shelton Sewer Authority v. DeFilippo, 2 Conn. App. 355, 361, 478 A.2d 623 (1984). In the absence of an abuse of this discretion, the trial court’s action will not be disturbed. Carrione v. State, supra, 635. The facts of this case do not indicate that the trial court abused its discretion in denying the defendants’ motion for a new trial.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs include the present record title holder and its predecessors in title. As used in this decision, plaintiff refers to the present record title owner.


author: Daly, J.

text:
    Loomis and Loomis, Inc. v. Stecker and Colavecchio Architects, Inc., et al.
    (3709)
    Hull, Daly and Bieluch, Js.

      Argued November 13, 1985
    released January 21, 1986

      George D. Royster, Jr., with whom, on the brief, were John W. Lemega and Thomas P. Willcutts, for the appellants-appellees (defendants).

      John A. Wall, for the appellee-appellant (plaintiff).
   Daly, J.

This appeal involves an action to recover fees for certain engineering services rendered to the defendant architects. From the trial court’s denial of the defendants’ motion to set aside the verdict in favor of the plaintiff, the defendants have appealed. The plaintiff then cross appealed.

In November, 1972, the parties entered into a written agreement whereby the plaintiff, Loomis and Loomis, Inc., an engineering design firm, promised to provide structural engineering services for the defendants, Stecker and Colavecchio Architects, Inc., and Louis J. Colavecchio, for an addition to the Windsor High School. In late 1973, the plaintiff was requested by the defendants to accelerate its design work to allow the steel bid to go out early because of rising steel prices. This acceleration, known as “fast tracking,” allowed the steel or structural portion of the project to be bid as a separate contract. The plaintiff claimed entitlement to $32,228 for these additional “fast tracking” services, of which the defendants paid $19,884.33, leaving a balance of $12,343.67. The plaintiff claimed that it was entitled to 75 percent of the defendants’ fee rate as set forth in the Architects’ Blue Book, applied to the structural portion of the project. The defendants maintained that the percentage was to be based upon the fee rate actually charged or 5.59 percent and hence they were not liable for the claimed difference or balance.

The jury returned a verdict in favor of the plaintiff for $12,343.67, plus interest of $13,585, attorney’s fees of $11,456 and court costs of $139.60, totalling $37,524.27. From the trial court’s refusal to set aside the verdict, the defendants have appealed. The plaintiff cross appealed from the court’s refusal to set aside the interest award as being inadequate.

The defendants have raised the following issues on appeal: (1) whether there was sufficient evidence to support the jury’s finding that the plaintiff was entitled to any particular additional fee under Section V (F) (2) (c) of the Manual of Interprofessional Practice of the Connecticut Society of Professional Engineers (Engineers’ Manual); (2) whether there was sufficient evidence presented to support the jury’s finding that the plaintiff was entitled to an additional fee rate based on 9.06 percent; and (3) whether the trial court erred in admitting into evidence testimony concerning an arbitration award rendered in favor of the defendants against the town of Windsor for architectural services rendered.

“The principal claim of error on this appeal is that the verdict of the jury was against the evidence. Our review of a trial court’s refusal to set aside a jury verdict is limited.” Kalleher v. Orr, 183 Conn. 125, 126, 438 A.2d 843 (1981). On the basis of the evidence, if the jury could reasonably have arrived at its decision, then we will not find error in the trial court’s refusal to set aside the verdict. Unless a jury verdict is against the evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality, it should not be disturbed. In reviewing a motion to overturn the jury’s verdict, the trial court must give the most favorable construction to the evidence in support of the verdict of which it is reasonably capable. Id., 126-27; see also Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983). “The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.” Josephson v. Meyers, 180 Conn. 302, 312, 429 A.2d 877 (1980), quoting Katsetos v. Nolan, 170 Conn. 637, 656, 368 A.2d 172 (1976). Where the record merely discloses a case of conflicting evidence, the parties may have the right to have the issues passed upon by the jury and not by the court on a motion to set aside the verdict. Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940).

The defendants claim that there was insufficient evidence to entitle the plaintiff to an additional fee for services performed under Section (V) (F) (2) (c) of the Engineers’ Manual. The jury could reasonably have found that the original contract between the parties incorporated this manual by reference. It is fundamental in contract law and in achieving mutuality of assent that parties to a contract may incorporate into their agreement the terms and conditions of another document by reference. Housing Authority v. McKenzie, 36 Conn. Sup. 515, 518, 412 A.2d 1143 (1979).

Section (V) (F) (2) (c) of the Engineers’ Manual, defining costs, provides “Separate Contracts: The Percentage Method Rate applies to work let under a single construction contract. In the event the Client or Owner decides to have major divisions of the work executed under separate contracts, thereby increasing the Engineer’s burden of service, expenses and responsibility, the Engineer’s fee shall be established by the ‘Percentage Method’ as applied to each separate contract.”

The jury could have found that late in 1973, due to rising steel prices, the plaintiff was requested to accelerate its design work so that the steel could go out early. This acceleration, called “fast tracking,” allowed the structural portion of the project to be bid as a separate contract. A separate contract followed. Compensation for this separate work was fixed by Section (V) (F) (3) which provides: “Structural Engineering Consulting Services: (a) New Work: Fees for preparation of working plans and specifications and other work on normal projects with all trades under the General Contract shall be not less than 75% of the Client’s percentage fee but in no case less than seventy-five percent of the fee listed in the schedule of fees under the proper classification in the Engineers’ Green Book or the Architects’ Blue Book and applied to the construction cost of the work included in the Engineer’s design, plans and specifications, as well as a proportionate share of the General Contractor’s allowance for General Conditions and overhead and profit.”

The testimony revealed that in January, 1974, and in July, 1975, the matter of additional compensation was broached by the plaintiff to the defendants with assurance that it would be paid. There was adequate evidence, therefore, for the jury reasonably to determine that the plaintiff was entitled to an additional fee.

The defendants next claim that there was insufficient evidence to support the finding that the plaintiff was entitled to an additional fee rate of 75 percent based on 9.06 percent of the structural steel cost. The jury heard testimony that the plaintiffs bill of August 5, 1974, was based on the 9.06 percent rate for fast tracking. The figure also appears in the plaintiffs billing, correspondence and testimony. There was testimony that 9.06 percent was based on the rate as it appears in the Architects’ Blue Book. The defendants maintain that the bill paid by the town was based on a rate of 5.59 percent.

“The matter of damages is peculiarly within the province of the trier of fact. . . . The refusal of the trial court to disturb a verdict is strong support for its propriety.” (Citations omitted.) Jonap v. Silver, 1 Conn. App. 550, 560, 474 A.2d 800 (1984). “ ‘As a general rule, contract damages are awarded to place the injured party in the same position as he would have been in had the contract been fully performed.’ ” Fuessenich v. DiNardo, 195 Conn. 144, 153, 487 A.2d 514 (1985); Sperry v. Moler, 3 Conn. App. 692, 695, 491 A.2d 1115 (1985). “On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. (Citations omitted.)” Swift & Co. v. Rexton, Inc., 187 Conn. 540, 543, 447 A.2d 9 (1982). The most favorable construction supports the 9.06 percent base figure as compensation for the additional services performed for the plaintiff.

The defendants next objected to an inquiry pursued by the plaintiff on cross-examination of the defendants’ witness concerning their suit against the town of Windsor for additional money on account of fast tracking. The defendants claimed that the inquiry was irrelevant. The trial court may exercise broad discretion in ruling on the relevancy of evidence. Graham v. Houlihan, 147 Conn. 321, 332, 160 A.2d 745 (1960); Holden & Daly, Connecticut Evidence (1983 Sup.), p. 214-15. Every reasonable presumption must be given in favor of the trial court’s evidentiary rulings in order to determine whether the court has abused its discretion. State v. Braman, 191 Conn. 670, 677, 469 A.2d 760 (1983). While the inquiry appears to be relevant to fast tracking, even if the inquiry were irrelevant, it would be harmless error.

Relating to the plaintiff’s cross appeal, Section VII (K) of the Engineers’ Manual provides in pertinent part: “Accounts unpaid 60 days after billing . . . may be subject to a monthly service charge of 1% on the then unpaid balance (12.0% true annual rate) at the sole election of the Engineer . . . .” The plaintiff claims that it is entitled to the compounded interest. “Interest, in the absence of agreement . . . is simple interest . . . .” Stafford Springs v. Agricultural Society Receivership, 10 Conn. Sup. 240, 241-42 (1941). In addition, the compounding of annual interest at a 12 percent rate in these circumstances would be violative of General Statutes § 37-4 which prohibits ordinary loans at a greater interest than 12 percent per annum. Where interest was fixed at 12 percent per year, the trial court was “not in error in finding that ‘the agreement was to pay one percent per month as long as any balance was unpaid.’ ” Reynolds v. Ramos, 188 Conn. 316, 322, 449 A.2d 182 (1982).

There is no error.

In this opinion the other judges concurred.


author: Hendel, J.

text:
    Walter Decko et al. v. Jack Wood et al.
    (3118)
    Spallone, Daly and Hendel, Js.
    Argued November 20, 1985
    decision released January 21, 1986

      Nellie Decko and Walter Decko, pro se, the appellants (plaintiffs).

      Donna D. Morris, for the appellees (defendants).
   Hendel, J.

This is an action in which the plaintiffs sought an injunction and monetary compensation for damages resulting from the excessive runoff of surface water onto their property as a result of improvements made on the defendants’ adjoining property. After hearing testimony and privately viewing the site in response to the plaintiffs’ motion for a view of the premises, the court rendered judgment for the defendants. The plaintiffs have appealed.

The plaintiffs allege that the court erred when it visited the site without a hearing on the motion for a view, without notice to counsel or the parties and without providing an opportunity for counsel or the parties to be present at the view. The plaintiffs further claim that the trial court erred in finding that the evidence was insufficient to prove that the improvements on the defendants’ property resulted in additional runoff of water causing damage to the plaintiffs’ property. We find no error.

The plaintiffs do not claim that at the time of the view the premises were not in substantially the same condition as they were during the time in question. Nor is it alleged that the circumstances surrounding the view were unfairly prejudicial. Rather, the plaintiffs claim that by privately viewing the premises without notification to the parties the court “failed to allow the plaintiffs the opportunity to show the court the conditions of which they complain.”

The plaintiffs do not challenge the authority of a trial court to take a view pursuant to a party’s motion. It is well established that the finder of fact may take such a view “whenever it is necessary or important to a clearer understanding of the issues.” Greenberg v. Waterbury, 117 Conn. 67, 73, 167 A. 83 (1933). “Granting or refusing to grant such a motion [for a view] rests in the sound discretion of the [trial] court.” LaVoie v. Marshall, 141 Conn. 681, 687, 109 A.2d 508 (1954). Likewise, the trial court is empowered to impose reasonable restrictions upon the conduct of the view. See, e.g., Mackin v. Mackin, 186 Conn. 185, 190, 439 A.2d 1086 (1982) (upholding the trial court’s grant of a partial view).

In the present case, after stating in its memorandum of decision that it had granted the plaintiffs’ motion without the necessity of argument and that it had privately viewed the premises, the trial court said: “Advisedly and deliberately, there was no notification of the parties or of counsel of such viewings in order to avoid improper out-of-court and ill-advised comments and attempts to influence the Court by the [plaintiffs]— notably Mrs. Decko — who, it must be observed for the record, has, since the dates of the court hearing — and without the knowledge of her attorney, made numerous attempts, by telephone, mail and messenger (Mr. Decko) to submit statements, documents and other non-exhibits to the court for its observation.”

Under the circumstances set forth in its memorandum of decision, the trial court, after argument by counsel, could, in its discretion, have ordered that the view of the premises be taken privately. Therefore, even if it is assumed, arguendo, that it was error for the court to grant the motion without argument and to take the view without notice to counsel or the parties, any error is harmless. Fowler v. Fayco, Inc., 290 Ala. 237, 242, 275 So. 2d 665 (1973).

As to the plaintiffs’ second claim of error, a review of the record reveals that the findings of fact made by the court are amply supported by the record. See Lake Williams Beach Assn. v. Gilman Bros. Co., 197 Conn. 134, 140, 496 A.2d 182 (1985).

There is no error.

In this opinion the other judges concurred.


author: Glass, J.

text:
    Beverly R. Ribner v. Robert S. Ribner
    (3471)
    Hull, Bieluch and Glass, Js.
    Argued November 25, 1985
    decision released January 21, 1986

      Stephen F. McEleney, for the appellant (defendant).

      Gerald A. Roisman, with whom, on the brief, was Edith McClure, for the appellee (plaintiff).
   Glass, J.

This is an appeal from the denial of a post-judgment motion for modification of a support order entered as part of a dissolution decree.

The chronological history of this case and the facts relevant to the motion are as follows: On the basis of an agreement, the marriage of the parties was dissolved on August 26, 1982. Pursuant to the agreement, the dissolution decree ordered, inter alia, that the defendant pay child support for his three minor children in the amount of $400 per week.

The defendant’s motion, dated January 17,1983, for specific visitation rights and modification of the existing support order was heard and denied on February 14, 1983. A second motion, dated September 20, 1983, for modification of the support order was heard on June 4,1984, and decided by memorandum of decision dated July 24, 1984. This motion was likewise denied. The denial was based upon the court’s finding of no change of circumstances. The defendant’s appeal is from the denial of this second motion.

The defendant makes the following claims of error: (1) the trial court erred in deciding the motion without hearing evidence; (2) the trial court erred in denying the motion for modification on the basis of earning capacity without a factual basis for its conclusion; (3) the trial court abused its legal discretion in denying the motion in that (A) it failed to find the defendant’s bankruptcy a substantial change in circumstances, (B) it failed to consider or find a substantial change in circumstances in the plaintiff’s financial condition, and (C) it could not have reasonably concluded as it did on the basis of the circumstances outlined by counsel; (4) the trial court erred in denying the motion for modification partly on the basis of the defendant’s agreement to pay the original court award; and (5) the trial court erred in basing its decision in part on a finding that the defendant was unconcerned with his professional practice.

In support of his claims, the defendant urges this court to consider that at the hearing on June 4, 1984, counsel for the defendant called the defendant as a witness who, after inquiry by the court about the positions of the parties, presented an oral summary of his claims. He stated the following: the parties had three minor children, issue of the marriage, then sixteen, fourteen and ten years of age; at the time of the dissolution, he agreed to pay $400 per week support; he earned $313.99 net from his accounting practice and relied heavily on cash generated from his investments for income to pay his obligations; in October, 1983, he was adjudicated a bankrupt and lost interests in all of his real estate holdings and businesses. The financial affidavit of the defendant dated June 4,1984, showed net earnings of $358.74 from his accounting practice and he asserts that there is no evidence nor was there any claim in oral argument that he was dishonest in reporting his income.

In contrast to his financial status, the defendant claims that the financial status of the plaintiff has significantly improved since dissolution. According to the plaintiffs financial affidavit, at the time of the dissolution the parties’ equity in the family home was $146,350. In accordance with the agreement and decree, the defendant conveyed his interest in the property to the plaintiff. The defendant claims that the plaintiff’s income at the time of the dissolution was $11.80 per week, as contrasted with her wages of $70 per week at the time of the hearing on the second motion for modification, and that she receives about $1000 per month additional income from the sale of a limited partnership interest. He contends that although the youngest child was ten years old and the two older children could babysit, the plaintiff has refused to seek fulltime employment. He states that the plaintiff’s financial affidavit includes about $60,000 cash that she did not have at the time of the dissolution, and the trust fund for her and the children has grown since then from $56,820.97 to about $90,000. Additionally, her parents provide her with financial assistance. Both parties have remarried since the dissolution. He contends that the plaintiffs husband was or should be able to share her expenses.

The standard required to be observed by an appellate court in reviewing domestic relations cases has been articulated frequently by our Supreme Court. “[T]he action of the trial court will not be disturbed unless it abused its legal discretion, and in determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); Kelepecz v. Kelepecz, 187 Conn. 537, 538, 447 A.2d 8 (1982); Koizim v. Koizim, 181 Conn. 492, 497, 435 A.2d 1030 (1980); Corbin v. Corbin, 179 Conn. 622, 624, 427 A.2d 432 (1980).

“To modify a support order, the court must determine that there has occurred a substantial change in the parties’ circumstances which was uncontemplated at the time the order was entered. General Statutes § 46b-86 (a); Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977); Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976); 2A Nelson, Divorce and Annulment (2d Ed. 1961) § 17-07. The party seeking modification of a support order must ‘clearly and definitely’ demonstrate the substantial change. McGuinness v. McGuinness, 185 Conn. 7, 10, 440 A.2d 804 (1981); Grinold v. Grinold, supra, 196.” Kelepecz v. Kelepecz, supra, 538.

The defendant strongly presses his claim that the trial court erred in deciding the motion by taking the papers and without hearing any testimony. The defendant specifically requested that the trial court, if it had any question as to the facts supporting the motion, call the parties back into court to give further testimony. By his argument, the defendant concedes that unless the trial court had questions of fact requiring resolution, there was no need for a hearing after oral argument. In rendering its decision, the trial court had for consideration, in addition to the oral arguments of counsel, the court file containing the agreement which was the basis of the dissolution decree, the judgment file, three financial affidavits of the defendant and two financial affidavits of the plaintiff. There is no dispute about the defendant’s adjudication as a bankrupt, nor is there any factual issue about each party having remarried and the defendant being a certified public accountant. Counsel for the defendant suggested a return for a hearing only if the court encountered questions of fact requiring resolution before a decision on the motion. There is no evidence that the court encountered any questions of fact which required a hearing to resolve. Since there were adequate undisputed facts to enable the court to decide the motion and since at the time no one objected to the action of the trial judge, the defendant will not now be heard to complain that the motion was decided without a hearing.

The defendant also claims that the court abused its discretion in not decreasing the support order on the basis of the larger income and increased assets of the plaintiff. This issue was not properly presented in the trial court. The trial court made no specific finding in this regard and no motion for articulation was made. Caracansi v. Caracansi, 4 Conn. App. 645, 648, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985). The defendant’s failure to satisfy his burden of providing this court with an adequate record limits the scope of our review to plain error. Practice Book § 3060D. Our review of the record reveals that the trial court reasonably could have concluded that the change in the plaintiff’s earnings and assets was contemplated by the parties at the time of dissolution. The plaintiff’s August 26,1982 financial affidavit indicates dividends and interest income of $11.80 per week and that the plaintiff intended to seek employment. Also, although the trust fund custodial account was stated as being $56,820.97 as of April 15, 1981, plus interest accrued to the time of dissolution, and is now put at $90,000, the defendant cannot rationally claim that a decrease in the value of this account was contemplated rather than an increase. The plaintiff’s affidavit submitted at the time of the dissolution hearing shows that she had an option to sell a partnership interest valued at $44,000. Her financial affidavit presented for the motion hearing did not show the partnership interest, but a promissory note to the plaintiff was listed in the amount of $26,106.12. In light of the option to sell the partnership interest disclosed in the plaintiff’s August 26, 1982 financial affidavit, the defendant cannot now claim that the promissory note was not contemplated. In summary, the plaintiff’s total assets at the time of dissolution were stated as $201,150 and total liabilities as $6390. The financial affidavit presented for the motion hearing showed total assets of $220,730.12 and total liabilities of $23,000. Those figures show that the plaintiff’s net assets at the time of the dissolution decree were $194,760, whereas her net assets at the time of the motion hearing were $197,730.12. There is no plain error in the trial court’s finding that there had not been a substantial change in the plaintiff’s finances not contemplated at the time of the dissolution decree.

Next, the defendant asserts that his bankruptcy is a crucial fact in his claim of a substantial change in circumstances. He claims that the trial court abused its discretion in failing to find his adjudication as a bankrupt a substantial change in his circumstances warranting a modification of the support order. The bankruptcy of the defendant is significant, but it is not conclusive. The bankruptcy laws are designed to improve, not worsen, a person’s financial status. In this case, to grant the modification motion because of the bankruptcy adjudication, it would have been necessary for the trial judge to find that the defendant’s bankruptcy adjudication caused a deterioration of his financial condition. An examination of the financial affidavits filed by the defendant shows that after bankruptcy his financial condition, in June, 1984, was substantially improved over his financial condition shown in his financial affidavit of August, 1982. At the time of dissolution, he had a net weekly loss of $1258, total assets of $280,076, total liabilities of $326,167 and total weekly expenses of $1296. His financial affidavit dated June 4,1984, presented for consideration with his motion, shows gross wages of $480 per week, net wages of $358.74 per week, total assets of $11,650, no liabilities and total weekly expenses of $799.18. Clearly, these facts do not compel the conclusion that the denial of the motion for modification was improper because the defendant had been adjudicated a bankrupt. The trial court did not abuse its discretion in refusing to grant the defendant’s motion for modification which was based on the fact that he had been adjudicated a bankrupt.

Next, the defendant claims the court erred in denying the motion for modification in part because he agreed to pay the original court award. He claims that the court should encourage parties to come to an agreement on what they feel is an appropriate order of support, but he argues that if such an agreement is considered thereafter by the court in deciding a motion for modification, such action by the court is a disincentive to make support agreements. First, a support order provided in a dissolution decree is not immune from judicial consideration in connection with a modification motion because its basis is an agreement between the parties submitted to the court for adoption. See, e.g., Serby v. Serby, 4 Conn. App. 398, 494 A.2d 617 (1985). Second, and more decisive, the motion for modification was denied because the defendant failed to prove there was a substantial change in the circumstances of either party not contemplated at the time of dissolution. The trial court did not err by considering the agreement of the parties as a factor in determining the motion for modification.

The defendant also claims that the trial court based its decision upon the defendant’s potential earning capacity without the benefit of testimony as to the average salary of one with the defendant’s qualifications. The issue of the defendant’s potential earning capacity does not become relevant until after the court has found that there has been a sufficient change in the parties’ financial condition to warrant a modification. No such finding was made. These comments were not relevant to the judgment in issue and did not affect the final result. Therefore, the claimed error, if any, is harmless. See Rodriguez v. New Haven, 183 Conn. 473, 477-78, 439 A.2d 421 (1981); see also Tremblay v. Connecticut State Employees’ Retirement Commission, 170 Conn. 410, 412-13, 365 A.2d 1125 (1976) (conclusions of the trial court reviewed only insofar as they affect the final result).

We have considered all of the defendant’s remaining arguments and we hold that these arguments have no merit and do not warrant further consideration.

There is no error.

In this opinion the other judges concurred.

       Upon, presenting the defendant’s affidavits to the court, his counsel made the following request:
      “Mr. McEleney: Judge, yes before you take a brief argument, Your Honor, as I indicated in my presentation, or what I thought was my opening argument, it’s a complicated situation. The Court is undoubtedly going to, when looking through some of those documents and some of the things that we’ve said, there may be factual questions that might, or likely in my mind, factual questions that might come to the Court’s mind in its deliberation. I would request that if there is any factual issue that the court has any doubt about, that the parties will come in and the parties will testify and will have testimony from the clients. As I said, a lot of times here, he can explain it better than I can. I don’t want to deprive him of that opportunity. If there’s any question of fact that you have, please give us an opportunity to come in and resolve it for you.
      “The Court: All right.”

       The defendant claims that the trial court’s finding concerning the earning potential of the defendant was not supported by testimony and was therefore improper. In a civil action, a finding made by the trial court as to an obvious fact will seldom be deemed reversible error, simply because no supporting evidence was presented. “[J]udges [cannot] be ignorant of that which is common knowledge to all men.” Sherrer v. Sherrer, 334 U.S. 343, 366, 68 S. Ct. 1087, 92 L. Ed 1429 (1948), as quoted in Utica Mutual Ins. Co. v. Cotter, 26 Conn. Sup. 419, 423, 226 A.2d 112 (1966).


author: Hull, J.

text:
    Kurt T. Godiksen v. Jay M. Miller
    (3547)
    Hull, Daly and Bieluch, Js.
    Argued November 12, 1985
    decision released January 21, 1986

      Philip L. Steele, for the appellant (defendant).

      William J. Melley III, for the appellee (plaintiff).
   Hull, J.

The defendant claims that the trial court erred (1) in finding him liable on a note he executed in conjunction with the purchase of a parcel of land, and (2) in finding that the plaintiff seller was not liable to him for breach of contract, tortious interference with business relations and vexatious suit. Because the defendant did not present a record adequate to show otherwise, we find no error.

The plaintiff sold a parcel of land to Rena Builders, Inc., a company in which the defendant was a principal. In return, Rena gave the plaintiff a mortgage on the land and both Rena and the defendant executed a $20,000 note to the plaintiff. Under the note, the makers were jointly and severally liable to pay the plaintiff monthly until the principal and interest were paid. The plaintiff received only two such payments.

At approximately the same time that Rena gave the plaintiff a mortgage, Rena also gave the Windsor Bank and Trust Company a mortgage on the land to secure a construction loan. The plaintiff knew about the additional mortgage because the original sale was contingent on Rena’s obtaining it. The plaintiff did not know that his attorney had agreed that his mortgage would be junior to the bank’s mortgage. When Rena defaulted on the bank loan, the bank brought a foreclosure action.

In the foreclosure action, the bank alleged that the plaintiff’s mortgage was a subsequent encumbrance. It was discovered, however, that the plaintiff’s mortgage had been recorded in the town land records before the bank’s mortgage. The plaintiff, accordingly, asserted the priority of his mortgage in the foreclosure action. The bank, while contending that the order of recording was erroneous, settled with the plaintiff. The bank, thereafter, secured a judgment of strict foreclosure and the property was not redeemed.

After the foreclosure action was concluded, the plaintiff brought suit against the defendant to recover on the $20,000 note. The defendant denied liability arguing that, by virtue of the subordination agreement, the plaintiffs assertion of priority on the basis of the land records constituted bad faith and, therefore, estopped him from collecting on the note. The defendant filed special defenses and virtually identical counterclaims against the plaintiff alleging tortious interference with business relations, vexatious suit and breach of express and implied contracts. The defendant’s final claim was that the amount the plaintiff recovered from the bank should serve as a “setoff” against any amount the plaintiff recovered from him. The court found for the plaintiff on the note and against the defendant on his special defenses, counterclaims and setoff claim.

The defendant argues that the court erred in concluding that the plaintiff should not be bound by his lawyer’s agreement to subordinate and, because of this error, found for the plaintiff and against the defendant. This argument mischaracterizes the court’s decision and underlying findings. While it appears that such a finding may have been essential to the court’s decision, the court never made an unequivocal finding as to whether the plaintiff was bound by his attorney’s agreement. Rather, the court stated that “[wjhether the attorney’s knowledge of real estate transactions and his impression regarding subordination would be imputed to his principal under the particular facts of this case is questionable.” (Emphasis added.)

Given the ambiguous nature of the court’s statement, we cannot determine the merits of the defendant’s claim of error. “Where the basis of the court’s decision is unclear, proper utilization of the motion for articulation serves to dispel any ambiguity by clarifying the factual and legal basis upon which the court rendered its decision. Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). The [defendant] could have requested such clarification by moving for articulation pursuant to Practice Book § 3082, but he did not. Under these circumstances, we have no basis on which to find error. Urban v. Leggio, 1 Conn. App. 226, 228, 470 A.2d 1226 (1984).” In re Juvenile Appeal (85-1), 3 Conn. App. 158, 161, 485 A.2d 1355 (1985).

The defendant also asserts error in the court’s rejection of his “setoff” claim. This argument is without merit. Setoffs can be based either in law or in equity. Savings Bank of New London v. Santaniello, 130 Conn. 206, 210-11, 33 A.2d 126 (1943). The defendant, here, sought an equitable setoff. In support of his claim, the defendant argued that the plaintiff would be unjustly enriched unless any award he won in his action on the note was diminished by the amount he had received in settlement of his claim against the bank. The court found that that settlement was not made by the defendant, that the defendant did not contribute to the settlement and that the settlement did not involve the defendant's debt to the plaintiff. These findings are not clearly erroneous; Cassidy v. Bonitatibus, 5 Conn. App. 240, 242, 497 A.2d 1018 (1985); and, on the basis of these findings, the court could reasonably have concluded that the defendant was not entitled to a setoff.

There is no error.

In this opinion the other judges concurred.

       The plaintiff received a total of $5750, one half paid by the bank and one half paid by the bank’s title insurer.

       The defendant claimed that the plaintiff, by asserting priority, interfered with his ability to'perform and thereby breached an implied contract not to prevent the defendant from performing.

       The record shows that the defendant’s claim concerning the setoff was stricken prior to trial. This claim was, however, ruled on by the trial court and argued by the parties. “We review this case on the theory upon which it was tried and upon which the trial court decided it. See Machiz v. Homer Harmon, Inc., 146 Conn. 523, 525, 152 A.2d 629 (1959); Cole v. Steinlauf, 144 Conn. 629, 632, 136 A.2d 744 (1957); Maltbie, Conn. App. Proc. § 42.” Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985).

       A legal setoff, in an action brought to recover on a debt, is controlled by General Statutes § 52-139. That statute provides in part that “[i]n any action brought for the recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs, or any of them, and the defendant or defendants, or any of them, one debt may be set off against the other.” Here, there was no claim that the plaintiff was in debt to the defendant. There was, therefore, no “mutual debt” and no possibility of a legal setoff.


author: Spallone, J.

text:
    Edward R. Nick et al. v. Planning and Zoning Commission of the Town of East Hampton
    (3778)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 6, 1985
    decision released January 28, 1986

      Timothy S. Hollister, with whom was Dwight H. Merriam, for the appellants (named plaintiff et al.).

      John L. Boccalatte, for the appellee (defendant).
   Spallone, J.

The plaintiffs are appealing from a judgment rendered after the trial court dismissed their zoning appeal. This court granted the plaintiffs’ petition for certification to appeal. The dispositive issue on appeal is whether the trial court erred in finding that the plaintiffs did not possess the requisite standing to appeal the decision of the defendant, East Hampton planning and zoning commission, pursuant to the provisions of General Statutes (Rev. to 1981) § 8-8.

The plaintiffs, Edward R. Nick and Paul Angelico, own real estate located in the town of East Hampton which abuts land owned by the town on which there is a building that was formerly used as a public school. After a public hearing, the defendant amended its zoning regulations to allow, after the issuance of a special permit, the conversion of municipal buildings into multifamily dwellings. The amended regulations applied to any such building existing at the time of the amendments. The plaintiffs appealed the defendant’s decision, and the trial court ruled that the plaintiffs were not aggrieved, either factually or statutorily, within the meaning of § 8-8. We disagree.

The language of General Statutes (Rev. to 1981) § 8-8 is clear and unambiguous. It provides, in pertinent part, that “[a]ny person or persons severally or jointly aggrieved by any decision of [a zoning authority] or any person owning land which abuts . . . any portion of the land involved in any decision of [such zoning authority] . . . may . . . take an appeal to the superior court. . . .”

Obviously, the statute provides that, as a matter of law, any owner of real estate whose property abuts land affected by a decision of a zoning board authority has standing to pursue an appeal. Smith v. Planning & Zoning Board, 3 Conn. App. 550, 552, 490 A.2d 539 (1985). Such individuals need not prove aggrievement independent of their status as abutters. See Walls v. Planning & Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979). The statute requires only that there be land affected by a decision of the zoning authority, and that the party seeking to appeal owns property abutting that land.

The record discloses clearly that the property owned by the town, which formerly housed a public school, was discernible and was in existence prior to the change in the zoning regulations. The record also discloses that the primary purpose of the amendment was to permit the conversion of the particular school building which abuts the plaintiffs’ properties, and that the school building is the only structure in the town currently available for such conversion. The status of the property was altered as a result of the change. Use of the property for a multi-family dwelling was not allowed prior to the change in the zoning regulations, but was allowed after the change.

Although the defendant argues strongly that the use authorized by the amended regulations was analagous to a “floating zone” concept, we find such a position to be totally untenable. “A floating zone is a special detailed use district of undetermined location in which the proposed kind, size and form of structures must be preapproved.” Sheridan v. Planning Board, 159 Conn. 1, 16, 266 A.2d 396 (1969). Such a zone has no defined boundaries. It is conceived as floating over the entire area where it may eventually be established. Id. As no particular area or property is affected solely upon the amendment of municipal zoning regulations which establish a floating zone, there can be no aggrievement, factual or statutory, until such zone is mapped onto a particular property. See Schwartz v. Town Plan & Zoning Commission, 168 Conn. 20, 23, 357 A.2d 495 (1975); Sheridan v. Planning Board, supra.

The essence of the floating zone concept as it applies to a party’s right to appeal, that no particular property is affected by the mere establishment of such a zone, is not present here. The amendment of the regulations applies to zones which are already delineated. The property abutting the plaintiffs’ properties is affected by the amendment to the zoning regulations adopted by the defendant. It is the only such parcel currently affected by the amendment which was aimed primarily at that particular parcel. The affected property is in esse and is readily ascertainable. The amendments permit a use of the land abutting the plaintiffs’ properties which is different from that previously allowed. The suggestion that the plaintiffs cannot appeal until the planning and zoning commission takes action on a special permit sought pursuant to the amended regulations ignores this fact.

We conclude that the plaintiffs, as abutters to the land involved in the decision of the planning and zoning commission, possessed the requisite statutory aggrievement to appeal that decision and that the trial court erred in not so finding. In so concluding, we need not address the issue of whether the plaintiffs were factually aggrieved.

There is error in part, the judgment is set aside and the case is remanded with direction to find that the plaintiffs Edward R. Nick and Paul Angelico possess the requisite aggrievement to appeal, and for further proceedings as is required by law.

In this opinion the other judges concurred.

       The underlying action was initially brought by several individuals who own real estate which either abuts or is in close proximity to the property involved in the decision of the defendant East Hampton planning and zoning commission. The issues on appeal relate only to the abutting plaintiffs.

       The portion of General Statutes (Rev. to 1981) § 8-8 at issue here is now codified as § 8-8 (a).

       The term “statutory aggrievement” is used herein to denote a party’s right to appeal pursuant to General Statutes (Rev. to 1981) § 8-8, now § 8-8 (a), which is afforded to persons owning land which abuts or is within a radius of one hundred feet of land involved in a decision of a zoning authority.

       The record of the proceedings of the commission was returned without a transcript of the public hearing. The plaintiffs filed a request for completion of the record on October 12,1982. After a hearing, the trial court, Edelberg, J., issued a memorandum of decision in which it granted the plaintiffs’ request and stated that the defendant’s failure to produce a recording or a transcript of the public hearing would render the action of the zoning authority voidable at the option of an aggrieved party who instituted a proper appeal of such action. The court’s ruling was based upon its interpretation of General Statutes (Rev. to 1981) § 8-7a and upon the decision in London v. Zoning Board of Appeals, 150 Conn. 411, 190 A.2d 486 (1963). The court stated further that if the defendant failed to produce either a recording or a transcript of the public hearing, then, upon a proper motion by the plaintiffs and upon the court’s finding that the plaintiffs were aggrieved, the appeal should be sustained.
      On July 26, 1983, the plaintiffs moved to default the defendant for its failure to complete the record as requested. A hearing on the plaintiffs’ motion was held at which time the trial court required the plaintiffs to demonstrate that they were aggrieved by the defendant’s decision. At that hearing, the trial court ruled that the plaintiffs were not aggrieved.
      Although not raised in this appeal, we note that the trial court’s interpretation of the relevant statutory provision and the court’s reliance on the cited case law relating to the validity of the defendant’s action was erroneous. Where the record returned by the commission did not contain a complete transcript of the entire proceedings before it, a party to the appeal must be allowed to introduce evidence in addition to the contents of the record. See Chucta v. Planning & Zoning Commission, 154 Conn. 393, 396-97, 225 A.2d 822 (1967); see also General Statutes (Rev. to 1981) § 8-8 under which the present appeal was brought.


text:
    Rona V. Finizie’s Appeal from Probate
    (3254)
    Dupont, C. J., Borden and Nigro, Js.
    Submitted on briefs November 4,1985
    decision released January 28, 1986

      F. J. Polesak, Jr., and Laurence V. Parnoff filed a brief for the appellant (plaintiff).

      Bernard Green and JoelZ. Green filed a brief for the appellees (defendants Lyonel T. Finizie et al.).

      G. Joseph Lawler and JohnM. Claydon, Jr., filed a brief for the appellee (defendant John M. Claydon, administrator).
   Per Curiam.

The plaintiff appeals from a judgment of the trial court affirming the decision of the Probate Court to remove her as the administratrix of her mother’s estate. The plaintiff claims that the court erred in removing her for failure to perform her duties in an expeditious manner. She also alleges that she was not afforded proper notice and a hearing prior to her removal by the Probate Court.

“In an appeal from a probate order or decree, the Superior Court does not exercise its general jurisdiction but exercises the powers of the probate court from which the appeal was taken.” Hunt v. Dubno, 1 Conn. App. 529, 533, 473 A.2d 1235 (1984). “[A]ny discretion of the probate court . . . existing in the first instance, passes to the superior court on appeal and is to be exercised by it in an independent determination, without regard to the result reached by the probate court.” Prince v. Sheffield, 158 Conn. 286, 299, 259 A.2d 621 (1969); see Baskin’s Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984). It is the duty of this Appellate Court to review the decision of the Superior Court to determine whether the court abused its discretion. Marshall v. Kleinman, 186 Conn. 63, 66, 438 A.2d 1196 (1982); Sklar v. Estate of Sklar, 168 Conn. 101, 110, 357 A.2d 900 (1975).

The trial court found that the plaintiff, who is also one of several heirs, had not filed an inventory in this $19,000 estate until two years after her appointment. An account and return of claims was not filed until four years after her appointment. That account was rejected because the plaintiff had acted on her own claim. The plaintiff subsequently filed a claim against the estate in the amount of $60,000, three times the inventory value. The court further found that at the time of trial, almost eight and one-half years after the decedent’s death, the estate was still not settled. The court concluded that the plaintiff had “neglected to perform her fiduciary duties in an expeditious manner,” dismissed the appeal and ordered the plaintiff removed as administratrix. The findings of the court were sufficient to warrant dismissal under General Statutes § 45-263. As for the plaintiff’s claim concerning the lack of notice prior to her removal by the Probate Court, the record provided is inadequate to substantiate such a claim. Therefore, we cannot find that the court erred. Tomanelli v. Tomanelli, 5 Conn. App. 149, 151, 497 A.2d 91, cert. denied, 197 Conn. 814, 499 A.2d 63 (1985). We also note that such a claim of error in the Probate Court proceedings is rendered harmless by the Superior Court’s de novo review.

There is no error.


text:
    Gretchen MacCalmont v. Robert MacCalmont
    (2932)
    Hull, Borden and Daly, Js.
    Argued December 12, 1985
    decision released January 28, 1986

      J. Patrick Dwyer, with whom, on the brief, was Timothy J. Fitzgerald, for the appellant (defendant).

      Robert M. Elliott, for the appellee (plaintiff).
   Per Curiam.

In this appeal from the judgment dissolving the marriage of the parties, the defendant challenges the court’s division of assets, orders for support for two minor children, award of counsel fees to the plaintiff, and the fairness of the trial. “The trial court has broad discretion in domestic relations cases, and our review of the exercise of such discretion is limited to whether the trial court correctly applied the law and could reasonably have concluded as it did. Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984). A review of the record makes it clear that the division of assets [and other orders were] . . . neither arbitrary nor an abuse of discretion. Anderson v. Anderson, 191 Conn. 46, 57, 463 A.2d 578 (1983); Solla v. Solla, 3 Conn. App. 415, 416, 489 A.2d 395 (1985).” Gincavage v. Gincavage, 4 Conn. App. 519, 495 A.2d 723 (1985).

The defendant makes an additional claim, namely, that he was deprived of a fair trial as a result of the court’s supposedly verbatim adoption of the plaintiff’s memorandum of request for orders. We disagree. The court did not adopt the plaintiffs proposal verbatim. It made several changes from the requested orders in issuing its orders. Furthermore, “[t]he ultimate test as to the adequacy of findings is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for the decision and whether they are supported by evidence.” Grayson v. Grayson, 4 Conn. App. 275, 285, 494 A.2d 576 (1985); see also Cameron v. Avonridge, 3 Conn. App. 230, 235, 486 A.2d 661 (1985).

There is no error.