text:
    Sandra W. Sleavin v. Greenwich Gynecology and Obstetrics, P.C., et al.
    (3545)
    Hull, Borden and Daly, Js.
    Argued December 12, 1985
    decision released March 4, 1986

      David W. Skolniek, with whom, on the brief, was Andrew R. Lubin, for the appellant (plaintiff).

      Ronald D. Williams, for the appellees (defendants).
   Hull, J.

This medical malpractice case involves the narrow issue of whether the court’s charge to the jury that a doctor is not liable for a bona fide error in judgment was erroneous in the context in which it was given and, if so, whether such an error was harmless in light of the charge as a whole. We concur with the reasoning of Logan v. Greenwich Hospital Assn., 191 Conn. 282, 299, 465 A.2d 294 (1983), that the giving of such a charge is error. We conclude, however, that in view of the whole charge and the exact circumstances under which the charge was given, the error was harmless.

The plaintiff brought suit alleging that the defendant, Robert E. Hardy, a physician acting as agent and employee of the named defendant, negligently performed a Caesarean delivery, causing her certain injuries and losses. After a trial to a jury, a verdict was returned for the defendants. The plaintiffs motion to set aside the verdict was denied and she appeals. The plaintiff claims three bases of error: (1) the court erred by charging the jury with respect to the defendants’ liability for errors in judgment; (2) the court erred by failing to charge the jury as to a doctor’s liability for errors in judgment in accordance with the plaintiff’s request to charge; and (3) the court erred by requiring the jury to choose between conflicting principles of law relative to a doctor’s liability for errors in judgment. It is obvious that these three issues essentially boil down to one: Whether giving the “bona fide error in judgment” charge constituted reversible error.

The underlying facts are not in dispute. In September, 1974, the defendant Robert E. Hardy, a licensed physician specializing in obstetrics and gynecology, was working as an agent of the defendant Greenwich Gynecology and Obstetrics, P.C. Hardy undertook the management of the plaintiffs pregnancy. Immediately after the plaintiff’s Caesarean delivery on May 25,1975, the plaintiff complained of pain in her abdomen. The plaintiff was admitted to Greenwich Hospital several times where various medical procedures were performed. The plaintiff experienced a variety of complications which necessitated a hysterectomy and the removal of both ovaries and tubes. The plaintiff’s main claim was that Hardy failed to provide proper postoperative management and thereby caused her injuries and disabilities.

Two experts testified on the plaintiff’s behalf stating that her damages were caused by Hardy’s failure to conform to the proper standard of care. The defendants’ experts testified that the Caesarean section was properly performed and that Hardy’s conduct was within the accepted standard of care.

During the course of the trial, Hardy discussed the issue of a physician’s “judgment” in response to a number of questions asked of him. He stated, in part, as follows: “There was no indication from my judgment that the patient had any more infection. . . . [I]f the physician feels that the patient has been treated adequately and there are no signs of infection, [antibiotics] should be stopped . . . .” Later, Hardy stated as follows: “Now, as a doctor making a judgment as to what to do in this decision, my decision was reached on the basis of my clinical acumen, my judgment as to whether the patient was better, what her clinical findings and signs were, and I felt that it was in the best interest of the patient to discontinue the antibiotics at this time.” Thus the, “error of judgment” defense was central to Hardy’s case.

Before the completion of the trial, the plaintiff, citing Logan v. Greenwich Hospital Assn., supra, as authority, submitted the following request to charge: “The central issue in a negligence case such as this is whether the defendant Robert E. Hardy deviated from the required standard of reasonable care expected of a physician in his care and treatment of the plaintiff, not his mental state at the time of the conduct which constitutes the deviation.” The plaintiff also asked the court to charge that errors of judgment constitute negligence if they result from the failure to use reasonable care. Despite the plaintiff’s requests, the trial court charged the jury that a doctor under certain circumstances may not be liable for errors in judgment. In so doing, the court stated as follows: “He is not liar ble for a bona fide error in judgment provided he concludes as best he can and does what he thinks best after careful examination and acts in good faith subject to the rules of care, skill and diligence as I have defined that to you.” (Emphasis added.) Later, the court stated: “He is not to be judged by the result, nor is he necessarily to be held liable for an error in judgment. ” (Emphasis added.)

“However, the fact that he may have acted to the best of his ability will not avoid legal liability for damages resulting from substandard treatment. An obstetrician/gynecologist cannot adopt a course of treatment which would be a breach of his duty to use due care. And even though he has used his best judgment he still may be found guilty of malpractice if he has failed to perform one of the duties which he owed to the patient.

“The rule that an obstetrician/gynecologist is not liable for a mistake of judgment is not ironclad but rather it exempts the doctor from liability only where there is reasonable doubt as to the nature of the physical condition involved or as to the proper course to be followed or where good judgment may differ. Errors in judgment which accrue with the best of intentions may constitute negligence if they result from a failure to use reasonable care.” (Emphasis added.) The plaintiff duly excepted to these portions of the charge.

We note first the framework within which we test the charge. “The primary function of the charge to the jury is to assist them in applying the law correctly to the facts which they find to be established. Magnon v. Glickman, 185 Conn. 234, 244, 440 A.2d 909 (1981). ‘ “A charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.” Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933).’ Matthews v. F.M.C. Corporation, 190 Conn. 700, 704, 462 A.2d 376 (1983). ‘The test is whether the charge as a whole fairly presented the case to the jury so that no injustice was done.’ Magnon v. Glickman, supra, 245. The charge will ordinarily be sustained if it meets this test, although it may not be exhaustive, perfect or technically accurate. Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953).” Farley v. T.R.W., Inc., 4 Conn. App. 191, 193-94, 493 A.2d 268 (1985).

In Logan v. Greenwich Hospital Assn., supra, our Supreme Court faced a similar challenge to a trial court’s charge concerning errors in judgment. In responding to the claim of error, our Supreme Court reviewed the history of the “bona fide error in judgment” charge: “The apparent source of the [errors in judgment] language was a passage in Green v. Stone, 121 Conn. 324, 330, 185 A. 72 (1936), as follows: ‘The plaintiff complains of the failure of the court to charge in the language of this request and of its statement in a single sentence of the charge that a doctor is not liable for a bona fide error in judgment, and says that the jury may well have obtained the impression from the charge that the defendant could under no circumstances be held responsible for an error of judgment so long as it was bona fide. The court repeatedly charged the jury that it was the duty of the defendant to exercise the care and skill required of a specialist in the field of obstetrics, and the charge made it abundantly clear that he would be absolved from a bona fide error in judgment only in case he exercised such care and skill.’ We do not construe Green as approving the reference to ‘a bona fide error in judgment,’ but as concluding that it did not sufficiently distort the general purport of the charge to constitute reversible error. A similar charge was also sustained in Levett v. Etkind, 158 Conn. 567, 576, 265 A.2d 70 (1969), although it is not clear that the portion pertaining to a ‘bona fide error in judgment’ was under attack.” Logan v. Greenwich Hospital Assn., supra, 298-99. The court then stated as follows: “[T]o use such a phrase in a charge upon negligence serves only to confuse a jury by implying that only an error in judgment made in bad faith can be actionable. The central issue in the ordinary negligence case is whether the defendant has deviated from the required standard of reasonable care, not his mental state at the time of the conduct which constitutes the deviation. ‘Negligence is conduct which creates an undue risk of harm to others.’ 2 Restatement (Second), Torts § 463, comment b; Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 501, 365 A.2d 1064 (1976). Errors in judgment which occur with the best intentions constitute negligence if they result from a failure to use reasonable care.” Logan v. Greenwich Hospital Assn., supra, 299.

The defendant argues conversely that the Supreme Court’s pronouncements on this subject are dictum. While this is undoubtedly true, it does not diminish the persuasiveness of the legal proposition stated. There is weak dictum and strong dictum. Our Supreme Court has acknowledged that dictum is not binding because it is made “with no intent to lay down in positive form a rule of law.” Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691 (1955). We construe the Supreme Court’s language in Logan, however, as clearly having an “intent to lay down in positive form a rule of law.” We concur with its analyses in Green v. Stone, supra, in Logan v. Greenwich Hospital Assn., supra, and in Levett v. Etkind, supra. We read Logan as stating that the “error in judgment” charge never did have clear judicial sanction in Connecticut and does not now have such sanction. Lest the charge linger on life support systems, we now declare that giving such a charge is likely to confuse the jury and therefore is error.

We note that the first of the three sections of the “error in judgment” charges challenged by the plaintiff was given in the identical language under analysis in Logan v. Greenwich Hospital Assn., supra. Thus, we find the court’s charge in this case to be erroneous.

Our task does not end, however, with a determination that the charge was in error. We must now consider, in the light of the charge as a whole, whether the giving of this charge and the failure to give the charges requested by the plaintiff were harmful error. Farley v. T.R.W., Inc., supra. A careful review of the charge to the jury reveals that the “error in judgment” language did not significantly put out of line the general thrust of the charge concerning the failure to use reasonable care. We note in this regard that each time the court used the challenged language, it used it in conjunction with clear accompanying language which emphasized that the ultimate test was a failure to use reasonable care. The court at no time charged the jury only as to the “error in judgment” rule without using the reasonable care test alongside. Additionally, the court repeatedly instructed the jury to determine if Hardy’s conduct, and not his mental state, deviated from the standard of reasonable care.

Reviewing the charge of the court as a whole, we determine that the case was fairly presented to the jury to avoid confusion. The erroneous bona fide error instructions, when read in context, could not have misled or confused the jury. Megin v. Carney, 148 Conn. 130, 133, 167 A.2d 855 (1961). We do not review single segments of the charge in isolation of the whole. Moseley v. Hamilton, 2 Conn. App. 680, 682, 483 A.2d 613 (1984). We do not critically dissect the charge to the jury for the purpose of discovering possible inaccuracies of statement. Rather, we consider the charge’s probable effect in guiding a jury to a correct verdict in the case. Matthews v. F.M.C. Corporation, 190 Conn. 700, 704, 462 A.2d 376 (1983). Considered under these standards, the challenged instructions, though erroneous, were not harmful.

The claimed failure to give the requested charges is merely the other side of the coin, and the third claim of error is just another way of restating the first two claimed errors.

There is no error.

In this opinion the other judges concurred.

       Since the liability of the named defendant is vicarious only, we shall refer throughout to the defendant Hardy separately.

       The portion of the charge at issue in Logan was as follows: “ ‘The part I left out is that he is not liable for a bona fide error in judgment provided he concludes, as best he can, and does what he thinks best, after a careful examination, and acts in good faith subject to the rule of care, skill and diligence such as I have defined it to you. If he exercises reasonable care, skill and diligence the fact that a result has not been as favorable as hoped for by the plaintiff or the physicians themselves raises no presumption of want of proper care or skill. In other words, if the physicians use skill, care and diligence they are not to be held liable if a bad result occurs. Failure in a procedure, bad results or injuries, as in this case, does not by itself raise any presumption of such want of skill or care.’ ” Logan v. Greenwich Hospital Assn., 191 Conn. 282, 298 n.6, 465 A.2d 294 (1983).

       The Supreme Court did not determine whether the inclusion of the errors in judgment language constituted reversible error because the plaintiff had not properly preserved the claim.

       The Supreme Court’s sweeping aside of the “error in judgment rule” in Green is more readily apparent than the similar treatment of Levett. In Levett, the court stated: “The plaintiff also excepted to the court’s charge that the law does not expect from a physician the utmost degree of care or skill known or obtainable to the profession and that if a physician exercises the degree of care, skill and diligence required by the law, as defined by the court, he is not liable for a bona fide error in judgment. The plaintiff claims that the jury should have been instructed as in an ordinary negligence case that, where the danger is great, reasonable care may demand a very high degree of care. On the claims of proof, such an instruction was not required. There is no merit to either of these claims. The instruction of the court on this matter as given by the trial court has been approved many times by this court, and it was applicable to the claims of proof in this case. Marchlewski v. Casella, 141 Conn. 377, 380, 106 A.2d 466 [1954].” (Emphasis added.) Levett v. Etkind, 158 Conn. 567, 576, 265 A.2d 70 (1969).
      A quick reading of the emphasized language may lead one to believe that the court was specifically approving the “error in judgment” charge. When one looks at the quotation in context, however, it is clear that this portion of the charge was not under attack. The portion of the charge challenged by the plaintiff was the omission of a charge that when the danger is great, reasonable care may demand a very high degree of care. Additionally, reference to the Marchlewski case, cited by the court, shows beyond any doubt that the language concerning the instruction “on this matter” having been “approved many times by this court,” referred to the omission from the charge of the language that “where the danger is great, reasonable care may demand a very high degree of care” and not to the “error in judgment” language.

       For another example of the lingering death of a much more ancient legal concept, see the administration of the legal last rites to scire facias. Vidal Realtors of Westport, Inc. v. Harry Bennett & Associates, Inc., 1 Conn. App. 291, 293-96, 471 A.2d 658, cert. denied, 192 Conn. 804, 472 A.2d 1284 (1984).

       The following excerpts from the charge are illustrative: “Now, negligence on the part of a doctor is the failure to exercise that degree of reasonable and ordinary care, diligence and skill in the diagnosis and treatment of his patient that is ordinarily possessed and exercised by obstetricians and gynecologists who are engaged in the same line of practice throughout the nation and in similar cases and during the same period of time. . . .
      “The plaintiff cannot make a recovery in this case before you unless there is medical or expert testimony that . . . the Greenwich Gynecology and Obstetrics, P.C. and Dr. Hardy, failed to exercise that degree of reasonable and ordinary care, diligence and skill in the diagnosis and treatment of this plaintiff, Sandra Sleavin, such as is ordinarily possessed and exercised by obstetricians and gynecologists in this nation. . . .
      “The duty of an obstetrician and gynecologist is in general in the treatment of a patient is this: to exercise reasonable skill and diligence in the treatment of the patient. . . .
      “[T]he defendants are by this rule bound to use that same degree of care, skill and knowledge which is employed throughout this nation ....
      “[BJefore the plaintiff can recover a verdict against the defendants here the plaintiff must establish by expert testimony first that the defendants failed to exercise the care, skill and diligence ordinarily had and exercised by doctors engaged in the special practice of obstetrics and gynecology in this nation ....
      “A physician is under a duty to his patient to exercise that degree of care, skill and diligence which physicians in the same general line of practice ordinarily possess and exercise in similar cases.”

       The significance of the repeated statement of the correct rule is emphasized in Megin v. Carney, 148 Conn. 130, 133, 167 A.2d 855 (1961), wherein our Supreme Court stated: “In the charge preceding these two paragraphs, the court had thrice stated correctly the rule governing the measure of duty owed by the defendant to the plaintiff. After the two paragraphs, the court again reiterated the rule three more times. A charge must be read and considered in its entirety; Salvatore v. Hayden, 144 Conn. 437, 442, 133 A.2d 622 [1957]; and not by critical examination of isolated words, phrases and passages culled from context. Virelli v. Benhattie, Inc., 146 Conn. 203, 210, 148 A.2d 760 [1959], There is no merit to the claim that the two sentences could have misled or confused the jury.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Waterbury Printing Company v. Lucille Tamburini, Executrix (Estate of Oresto Tamburini), et al.
    (3817)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 4
    decision released March 4, 1986

      Richard Bruno, for the appellant (defendant).

      William M. Hoey, -with whom, on the brief, was Francis J. Grady, for the appellee (plaintiff).
   Per Curiam.

There is no error.


author: Glass, J.

text:
    Stephen Feuser et al. v. Raymond O. Lampron et al.
    (3098)
    Hull, Bieluch and Glass, Js.
    Argued November 25, 1985
    decision released March 4, 1986

      Susan M. Angelica, with whom, on the brief, were Edward Muska and Thomas P. Arvantely, for the appellant (named defendant).

      John M. Wyzik, for the appellees (plaintiffs).
   Glass, J.

The named defendant appeals from the trial court’s denial of his motion to substitute a lien filed pursuant to General Statutes § 52-304. The issue raised is whether a court has discretion to deny a motion to substitute a lien after making a finding that the fair market value of the proferred real and personal property, less prior encumbrances, equalled or exceeded the value of the cash attachment. We hold that after making such a finding, the court has no discretionary basis for denying the motion.

The underlying action was instituted by the plaintiffs, Stephen and Bertha Feuser, against the defendants, Raymond Lampron and Linda Ruth Lampron, to collect money allegedly loaned by the plaintiffs to the defendants. The plaintiffs are the parents of Linda Lampron.

Initially, the plaintiffs obtained an ex parte prejudgment remedy order of attachment in the amount of $65,000 against the defendants’ interests in certain real property located in East Windsor, Connecticut. Subsequently, the plaintiffs obtained a judgment against Linda Lampron and a judgment lien was filed against her interest in the property. Raymond Lampron then sought a reduction of the prejudgment attachment by the amount of the judgment lien against Linda Lam-pron. The court reduced the attachment to $30,000. Thereafter, an unusual transaction occurred: the plaintiffs agreed to purchase the property from the defendants. In contemplation of the sale, the plaintiffs obtained a substituted prejudgment remedy order of attachment in the amount of $30,000 against the cash proceeds of the sale in lieu of the attachment against the real property interest of Raymond Lampron. The sale was consummated and Raymond Lampron thereafter purchased other real property in East Windsor. On January 9,1984, Raymond Lampron filed a motion in the trial court, seeking to substitute a $20,000 lien on the newly acquired real property in lieu of $20,000 of the $30,000 prejudgment remedy order against the cash money held in a bank account under the joint control of the plaintiffs’ and the defendants’ attorneys. The motion provided that the remaining $10,000 of the $30,000 lien was to continue to be in cash. Thus, the prejudgment remedy order would be against $20,000 of real property and $10,000 of cash money. At the hearing on his motion, Raymond Lampron adduced evidence that the newly acquired property had a fair market value of $112,000 and a liquidation value of $90,000. The parties agreed that the mortgage lien against the property amounted to $70,000. After finding for the plaintiff as to the fair market and liquidation values of the property, the trial court denied the motion on the basis of the instability of the real estate market.

The basic claim of Raymond Lampron is that the trial court erred in denying his motion for substitution after finding the equity in the real property was between $20,000 and $42,000. He claims that the value of the real property and the proposed cash lien would provide the plaintiffs with a lien on “other property of the defendant which has an equal or greater net equity value than the amount secured” by the cash attachment. See General Statutes § 52-304. We agree.

“The procedure for dissolution of attachment by substitution of bond or lien is found in General Statutes § 52-304, which provides that ‘[wjhen any estate is attached . . . the defendant may apply in writing to the court in which such action may be pending, or any judge thereof, to dissolve the attachment lien upon the substitution of (a) a bond with surety or (b) a lien on any other property of the defendant which has an equal or greater net equity value than the amount secured by such attachment.’ ” Brainard v. Smyth Mfg. Co., 178 Conn. 250, 252, 423 A.2d 881 (1979). The purpose of the statute is to prevent a plaintiff from abusing the prejudgment remedy of attachment by allowing the defendant to substitute either a lien or bond in lieu of the property originally attached. Id., 253. “The language of the statute is clear, precise and unambiguous. There is no necessity for any judicial construction of the statute. Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981).” Kaplan v. Ellis, 1 Conn. App. 368, 370, 472 A.2d 28 (1984). Moreover, a fair reading of the case law relating to General Statutes § 52-304 indicates that its provisions are not discretionary. In Capobinco v. Samorak, 102 Conn. 310, 316-17, 128 A. 648 (1925), our Supreme Court reviewed the then existing statutes concerning attachment and concluded that their provisions were mandatory. See General Statutes (Rev. to 1918) §§ 5884 through 5891.

Upon application pursuant to this statutory proceeding, the trial court may only review the request as to the sufficiency of the offered lien or bond. Sachs v. Nussenbaum, 92 Conn. 682, 688, 104 A. 393 (1918). In the present case, the trial court found that the property’s fair market value, less a prior encumbrance, was $42,000. The trial court also found that the liquidation value, less the prior encumbrance, was $20,000. Either figure, coupled with the $10,000 lien on the defendant’s bank account, equals or exceeds the $30,000 secured by the attachment. The trial court refused, however, to order the substitution because of the instability of the real estate market. We hold that the trial court’s speculation as to fluctuating real estate values is not authorized by the plain wording of the statute, and we decline to expand such language. Section 52-304, requires the trial court to determine the property’s “net equity value.” In the present case, both the liquidation value and the fair market value equalled or exceeded the value of the attachment. The plaintiffs did not propose any alternative valuation at trial. As such, the value of the substitution should have been found sufficient.

The plaintiffs argue that the trial court could have found the lien inadequate by considering liquidation costs. The court made no such finding. Rather, it denied the request because the value of the security was subject to changing market conditions.

In Brainard v. Smyth Mfg. Co., supra, 252, the Supreme Court held that the trial court’s use of fair market value to grant the substitution pursuant to § 52-304 was proper. We now hold that the trial court’s denial of the defendant’s application for substitution, after finding that the fair market value equalled or exceeded the amount of the original attachment, was improper.

There is error, the trial court’s denial of the named defendant’s application to substitute a lien for the attachment is set aside and the case is remanded with direction to grant that application.

In this opinion the other judges concurred.

       Mr. and Mrs. Lampron received money from the plaintiffs to purchase a house. The Lamprons claim the money was a gift. A default judgment was entered against Mrs. Lampron. She is not involved in this appeal.

       Where a statute, such as the one governing attachments, infringes upon a person’s common law right to alienate freely his property, “ ‘it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.’ ” Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1983), quoting Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975). It is not within the power of an appellate court to add to an otherwise clear and unambiguous statute, even if there appears good reason to do so. Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975).
      We acknowledge that the legislative debate concerning § 52-304 makes a reference to the exercise of judicial discretion in such matters. Such commentary from the floor of the legislature, however, may not add to the otherwise plain language of the statute. Hayes v. Smith, 194 Conn. 52, 57-58, 480 A.2d 425 (1984).


author: Hull, J.

text:
    Jean H. Rebillard, Executor (Estate of Jules Rebillard) v. Bernice Hagedorn et al.
    (3538)
    Hull, Borden and Daly, Js.
    Argued December 10, 1985
    decision released March 4, 1986

      Charles F. Brower, with whom was Elbert G. Manchester, for the appellants (defendants).

      John W. Pickard, for the appellee (plaintiff).
   Hull, J.

The defendants, the daughters of Jules Rebillard, the decedent, appeal from the judgment of the trial court finding for the plaintiff, their brother and the executor of the decedent’s estate, in his action to compel reconveyance of certain real property to the estate. The trial court correctly determined that the property in question was held by one of the defendants in a resulting trust for the decedent. Accordingly, we find no error.

The trial court found the following facts. In March or April of 1982, the decedent was admitted to Hartford Hospital after suffering a stroke. While in the hospital, he executed a statutory short form power of attorney to the defendants, Bernice Hagedorn and Shirley Hurley, pursuant to General Statutes § 1-42 et seq. A short time later, the decedent was transferred to Geer Memorial Health Center, a long term treatment facility and convalescent hospital. Approximately one month after the decedent arrived at Geer, Hagedorn and Hurley conveyed certain real estate owned by the decedent to their sister, the defendant Doris Carlson, by quitclaim deed. The property was transferred to Carlson to facilitate mortgaging it if necessary to provide for the decedent’s care, and, accordingly, no consideration was exchanged for the property. The decedent died six months later. There was no evidence that the property was ever mortgaged.

The plaintiff was appointed executor of the estate. In that capacity, he asked the defendant Carlson to reconvey the property. When she refused, the plaintiff brought this action against her and the other defendants to force them to return the property. The plaintiff sued in four counts claiming as follows: (1) that Hurley and Hagedorn fraudulently conveyed the property to defeat the rights of the decedent’s creditors; (2) that Hurley and Hagedorn, by conveying the property, exceeded the scope of their authority under the power of attorney; (3) that Hurley and Hagedorn breached their fiduciary duties to the decedent by conveying the property; and (4) that the conveyance was made with the intent to establish a trust in favor of the decedent’s beneficiaries and creditors. The plaintiff also alleged, in each count, that Carlson refused to reconvey the property in derogation of the rights of the decedent’s beneficiaries and creditors.

The court found for the plaintiff on the fourth count, holding that, since the transfer was intended solely to benefit the decedent, a resulting trust had been created in his favor. Because the court found for the plaintiff on a resulting trust theory, it did not rule on the plaintiffs other claims but rather rendered judgment for the plaintiff and ordered Carlson to reconvey the property to him as executor.

In this appeal, the defendants make one claim: that the court erred in deciding that a resulting trust was created by the conveyance of the property to Carlson. In support of this claim, the defendants make two arguments. First, they contend that pursuant to the power of attorney Hagedorn and Hurley had the authority to transfer title to the land to anyone they chose, with or without consideration. They claim that the court based its decision to impose a trust on a misapplication of this principle. The defendants also argue that the court’s decision was based on a clearly erroneous determination of fact, namely, its finding that the property had not been mortgaged to pay for the decedent’s care.

The defendants’ first argument mischaracterizes the court’s decision. The court did not conclude that the defendants lacked the authority to transfer absolute title to the property, but rather found that they lacked the intent to do so. “Intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which could not reasonably be drawn.” (Citations omitted.) Whitney v. Whitney, 171 Conn. 23, 33, 368 A.2d 96 (1976). Here, the court’s finding that Hagedorn and Hurley did not intend to vest legal and equitable title in Carlson is not only reasonable but almost inescapable. Carlson testified that the only purpose for the transfer was to provide for the care of the decedent. She also testified that she would have reconveyed the property to the decedent had he recovered from his illness. Additionally, Hurley testified that she had not intended to make a gift of the property to Carlson. Given this testimony, the court’s conclusion that Hurley and Hagedorn did not intend to convey absolute title to the property to Carlson was, beyond doubt, reasonable.

On the basis of this determination of the parties’ intent, the court correctly found a resulting trust. Where one person has acquired obstensibly absolute title to property when he was not intended to, under circumstances which indicate that he should not be permitted to retain absolute title, equity may impose a resulting trust. 76 Am. Jur. 2d, Trusts § 196. Where, for example, the property is conveyed without consideration for a particular purpose and that purpose is either fulfilled or frustrated, a court may find a resulting trust. Bassett v. Pallotti, Andretta & Co., Inc., 117 Conn. 58, 62, 166 A. 752 (1933). Similarly, where the purchase price for property is paid by one individual and title is taken in the name of another, the law may impose a resulting trust in favor of the person who paid the purchase price. Farrah v. Farrah, 187 Conn. 495, 500, 446 A.2d 1075 (1982); Ward v. Ward, 59 Conn. 188, 195, 22 A. 149 (1890). In these and similar circumstances, a resulting trust is imposed based on the parties’ presumed or actual intent that a trust relationship result from the transfer.

Here, the court found that the parties intended that the property be transferred for a limited purpose only: to provide for the decedent. None of the parties intended to vest absolute title in Carlson. As discussed previously, these findings are indisputably correct, and these findings justified the imposition of a resulting trust. Once the purpose for which the property was transferred, the care of the decedent, was either fulfilled or frustrated, the property in equity had to be reconveyed to the decedent’s estate. Bassett v. Pallotti, Andretta & Co., Inc., supra.

The defendants’ second claim is that the trial court’s finding that the property had not been mortgaged was clearly erroneous. They argue that the evidence that a mortgage had been taken on the property was clear and uncontroverted and, therefore, the trial court erred in making a contrary finding. According to the defendants, the trial court made its decision to impose a resulting trust on the basis of this erroneous finding.

It is unnecessary for this court to determine whether the trial court’s conclusion about the mortgage was clearly erroneous, since its ultimate decision to find a resulting trust was correct. “Where the trial court reaches a correct decision on incorrect grounds, that decision will be sustained if correct grounds exist to support it. Royce v. Freedom of Information Commission, 177 Conn. 584, 588, 418 A.2d 939 (1979); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).” Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 301, 429 A.2d 883 (1980). Here, ample grounds existed to support the trial court’s conclusion.

There is no error.

In this opinion the other judges concurred.

       While the court did not expressly dispose of the plaintiff’s first count, it impliedly rejected that count by finding that the defendants, in conveying the property, acted with honesty and with a sincere desire to take care of their father.

       While the property was owned by the decedent, it is the intent of Hagedorn and Hurley that is controlling. Pursuant to the power of attorney, the defendants became the decedent’s agents and operated in his stead to the extent authorized by the power of attorney. Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981). “The principal in such a relationship is ‘bound by, and liable for, the acts which his agent does with or within the actual or apparent authority from the principal, and within the scope of the agent’s employment . . . .’ 3 Am. Jur. 2d, Agency § 261.” Bank of Montreal v. Gallo, 3 Conn. App. 268, 273, 487 A.2d 1101 (1985).


author: Borden, J.

text:
    In re Christine F.

    (3814)
    (4375)
    Hull, Borden and Daly, Js.
    Argued December 11, 1985
    decision released March 4, 1986

      James W. Auwood, for the appellant (mother of the minor child).

      Barry J. Ward, for the appellant (father of the minor child).

      Judith M. Earl, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (department of children and youth services).

      Jefferson Hanna III, for the minor child.

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

   Borden, J.

These are the combined appeals of two parents from the trial court’s judgment terminating parental rights in their five year old daughter. Both challenge the sufficiency of the evidence upon which the judgment is based. In addition, the mother assigns as error the trial court’s failure to make adequate written findings pursuant to General Statutes § 17-43a (d). The father assigns as error the trial court’s conclusion that the best interest of the child warrants a waiver of the requisite one year waiting period mandated by General Statutes § 17-43a (b) and (c). The father also claims that the trial court’s judgment violates the public policy of this state. We find no error.

Between January and July, 1984, the department of children and youth services (DCYS) received four referrals concerning this child, who is the youngest of three children of these divorced parents. Both of the other two children had been adjudicated neglected and committed to the custody of DCYS at separate times in the past. On July 23,1984, DCYS received a sexual abuse referral from a social worker at a Norwich hospital where the child had been physically examined. The child was admitted to the hospital and, the following day, DCYS initiated coterminous child neglect and parental termination petitions and obtained an order of temporary custody. See General Statutes §§ 17-38a, 46b-129 (temporary custody) and 17-43a (e) (coterminous petitions). Because the present appeals are from the judgment of termination of parental rights, we will not further address the adjudication of neglect other than to note that the trial court made the requisite preliminary finding that the child was uncared for and neglected. See In re Juvenile Appeal (84-AB), 192 Conn. 254, 267, 471 A.2d 1380 (1984).

The parental termination petition alleged, pursuant to General Statutes §§ 45-61Í (f) (2) and 17-43a (b) (3), that the child has been denied by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being. In addition, the termination petition alleged, pursuant to General Statutes § 17-43a (c), that the stated reason for termination of parental rights has existed for less than one year but that the totality of the circumstances surrounding the child indicate that a waiver by the court of the one year requirement is in the best interest of the child. The particulars alleged in the petition include that the child has been sexually molested on more than one occasion, including July 23,1984, and that the mother has been unable to protect the child from sexual molestation. It was also alleged that the mother is unable to control the child’s behavior, that she threatens the child and yells obscenities at her, and that both parents are intellectually limited.

On November 15,1984, the trial court issued a memorandum of decision, finding by clear and convincing evidence that the child was uncared for and neglected, that the child has been abandoned by both parents in the sense that each parent has failed to maintain a reasonable degree of interest, concern or responsibility for her welfare, and that the child has been denied, by reason of acts of both parental commission and omission, the care, guidance and control necessary for her physical, educational, moral and emotional well-being. The court also found that the totality of the circumstances surrounding the child warrants a waiver of the requisite one year period as provided in General Statutes § 17-43a (b) and (c). Finally, the court found that termination of parental rights was in the best interest of the child. Accordingly, the trial court rendered judgment terminating the parental rights of both parents, and appointed the commissioner of DCYS as statutory parent for the purpose of placing the child for adoption.

I

The issues raised by the respondents in this appeal focus our attention upon the requirements of General Statutes § 17-43a (b), (c) and (d). Because the issue raised by both parents regarding the sufficiency of the evidence upon which the judgment is based; General Statutes § 17-43a (b); overlaps with the claims of the mother regarding the adequacy of the court’s written findings; General Statutes § 17-43a (d); and the claim of the father regarding violations of public policy; General Statutes § 17-38a (a); these issues will be addressed together.

The evidence presented during the two days of hearings included the testimony of a hospital pediatrician, a psychologist, who evaluated the family members for purposes of these proceedings, two DCYS case workers, a neighbor who has been acquainted with the family members for a number of years, the child’s father and a foster mother. Documentary evidence introduced at trial included hospital records, the psychologist’s written report and the written reports of the DCYS case workers. On the basis of this evidence, the trial court found that both parents are of borderline mental ability. The mother was found to experience difficulty coping with moderate disruptions and is easily overwhelmed by problems. Her own needs take priority. She is easily frustrated to a high degree. She has a live-in boyfriend with whom she fought and argued violently; she experienced beatings from this man and would transfer her frustrations into verbal assaults upon the child. She lived for a period of time in a one room apartment with rabbits, cats and dogs; the animals were allowed to void in this room. A neighbor had taken the child to live with her on some twenty occasions for days at a time, once extending to a period of three months. The court also found that thefather has an alcohol problem and has difficulty caring for his own needs. The child was found to have been exposed to inappropriate sexual activity and the father was found to have been involved as a participant in that activity. On appeal, both parents claim that these latter findings regarding sexual activity and the father’s participation in it, in particular, are not supported by clear and convincing evidence. The mother has raised this issue because this finding is one of the predicates to the finding that she is unable to protect the child from further abuse.

The pediatrician who examined the child testified that he observed peripheral irritation in the vaginal and perineal area and a one centimeter opening in the center of the hymenal ring which indicated a possibility of manipulation. He further testified that during the course of the examination, the child made statements to him which indicated that the father had fondled her. These statements were consistent with the physical condition that the pediatrician observed. On cross-examination, the pediatrician testified that he was unable to formulate an opinion that it was more probable than not that the child’s condition was related to sexual abuse. He also testified that a child can be touched in a sexual manner without showing any physical results of that touching.

The evaluating psychologist testified that the child’s reactions during testing “really indicated” to him that there had been sexual abuse. On cross-examination, he testified that the child’s test responses did not identify the father, as opposed to the mother’s boyfriend, as the cause of the abuse. The child did, however, exhibit strong negative reactions to the father which the psychologist observed.

On appeal, the parents argue that because this expert testimony did not exclude, to a reasonable degree of medical probability, the hypothesis that the child’s injuries were accidental, the evidence was legally insufficient to establish the cause of the sexual abuse. This argument is unavailing for several reasons.

First, it erroneously assumes that this evidence was the only available evidence regarding the causation of sexual abuse. Our review of the record indicates that the child made statements to the foster mother and the neighbor which indicated that the father had inappropriately touched her. In addition, the neighbor found pornographic pictures in the child’s possession which the child stated her father had given her. The child made similar statements to a DCYS case worker. Thus, the available evidence allowed the trial court, as the finder of fact, to draw inferences which were consistent with either culpability or innocence on the part of the father. The trial judge, in such a situation, is not required to select those inferences which favor one finding over the other; State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985); merely because the clear and convincing evidence standard of proof is greater than the civil preponderance standard. See id. “The rule is that the [trial court’s] function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” Id., 616-17. We find no error in the reasoning or logic of the trial court based upon the totality of the evidence.

Second, the parents’ claims of error regarding the sufficiency of the evidence unduly emphasize the weight to be accorded the failure of the physician and psychologist to formulate opinions as to the cause of the sexual abuse. The fact that those experts did not formulate opinions as to the ultimate issue of causation is undoubtedly significant. This fact alone does not, however, render the balance of their entire testimony meaningless to the trier of fact, especially where that testimony was based on personal knowledge obtained by direct observations and statements of the child during examination. Indeed, the testimony of these two witnesses clearly establishes that sexual abuse had occurred, and the psychologist’s opinion to that effect is beyond dispute. See In re Theresa S., 196 Conn. 18, 28, 491 A.2d 355 (1985).

The parents’ challenge to the sufficiency of the evidence regarding the cause of that abuse essentially amounts to a claim “that direct evidence as to any acts of commission [on the part of the father] or omission [on the part of the mother] was lacking and that the judgment rested upon speculation and inference.” In re Juvenile Appeal (85-2), 3 Conn. App. 184, 192-93, 485 A.2d 1362 (1985). We eschew these attempts to minimize the overall impact of the totality of the evidence, whether direct or circumstantial, upon the trier of fact. Id., 193. “It is not our function to retry the case or to pass upon the credibility of the witnesses; Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975); and we will not. Our review of the evidence indicates that the findings of the court were amply supported by the evidence.” Id.

Although the trial court’s findings regarding sexual abuse and the cause of that abuse are the primary targets of the respondents’ appeals, the issue regarding the adequacy of other findings has also been raised. As previously indicated, General Statutes § 17-43a (d) requires that written findings pertaining to six enumerated factors be made by the court in rendering judgment terminating parental rights. Our review of this issue is limited to the claims of the mother as raised and discussed in her brief. See Travelers Ins. Co. v. Henderson, 1 Conn. App. 409, 411 n.3, 472 A.2d 356 (1984). In this regard, the specific statutory requirements, which the mother claims the court did not adequately address, are set forth in General Statutes § 17-43a (d) (1), (3), (5) and (6).

Subsection (d) (1) of the statute requires the court to consider “[t]he timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent.” The mother’s claims regarding the trial court’s memorandum are twofold: (1) that the evidence indicated that DCYS made no effort to facilitate a reunion; and (2) that DCYS, therefore acted contrary to the public policy of this state. See General Statutes § 17-38a (a). Since this latter claim overlaps with the father’s public policy argument, they will be addressed together.

With regard to the adequacy of the trial court’s finding, it is clear from the record that the court took into consideration the extent and duration of this family’s history of contacts with DCYS. The memorandum of decision states that there is a history of the parents’ inability and incompetence to care for or parent their children. In addition, the court noted that DCYS, through its agents and employees, had been involved with the parents and this particular child since 1980. The court specifically found that DCYS had in the past made attempts to buttress the home while the child was in the custody of the mother. These findings were adequately set forth in the trial court’s memorandum and fully comply with the statutory requirements.

The parents’ attacks upon the action of DCYS and the findings of the trial court, based on the alleged violation of the public policy of this state as set forth in General Statutes § 17-38a (a), are also unavailing. “The primary concern of DCYS is the safety of [the child]. Family integrity can be the goal of DCYS only when such a reunion will not endanger the safety of the child. ‘Where appropriate, the agency can and must take unilateral action either to reunite families or to terminate parental rights as expeditiously as possible to free neglected children for placement and adoption in stable family settings.’ ” (Emphasis in original.) In re Juvenile Appeal (84-AB), 192 Conn. 254, 258, 471 A.2d 1380 (1984). The parents' claim that the action of DCYS violates public policy overlooks the fact that this action is statutorily prescribed; General Statutes § 17-43a (e); in such cases where DCYS may deem it “appropriate.” In re Juvenile Appeal (84-AB), supra; see also State v. Anonymous, 179 Conn. 155, 425 A.2d 939 (1979). In the present case, the evidence clearly indicates that the determination by DCYS of the appropriateness of this action was not based upon an immediate or spontaneous decision. As the trial court aptly noted, DCYS had been extensively involved with these parents for many years and had made efforts to buttress the family. These findings are amply supported by the evidence and are consistent with the public policy of “ ‘[freeing] neglected children for placement and adoption in stable family settings.’ ” In re Juvenile Appeal (84-AB), supra.

General Statutes § 17-43a (d) (3) requires the court to consider “the feelings and emotional ties of the child with respect to [her] parents . . . .” The trial court found that there exists a loving relationship between the mother and the child. The child, however, was found not to have any affection for the father. Notwithstanding the positive relationship between the mother and child, the trial court noted that it is obvious that neither parent in this case, even with the most structured outside guidance and buttressing, would be able effectively to care for or protect the child adequately. With regard to the mother’s claim on appeal that the trial court failed to make these specific written findings, the memorandum of decision speaks for itself and speaks to the contrary.

The respondent mother claims that the court failed to give the appropriate weight to its findings as to this factor. We find no support for this claim in the record. Admittedly, the finding regarding this statutory factor is inconsistent with the ultimate conclusion to terminate the mother’s parental rights. Nevertheless, the fact that the legislature has “[interpolated] objective guidelines into the open-ended fact-oriented statutes which govern [parental termination] disputes”; Seymour v. Seymour, 180 Conn. 705, 710, 433 A.2d 1005 (1980); should not be construed as a “predetermined weighing of evidence”; Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981); by the legislature. Where, as here, the record reveals that the trial court’s ultimate conclusions are supported by clear and convincing evidence, we will not reach an opposite conclusion on the basis of any “one segment of the many factors considered in a termination proceeding . . . .” In re Theresa S., supra, 25.

General Statutes § 17-43a (d) (5) requires the court to consider, inter alia, “the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return [her] to [her] home in the foreseeable future . . . .” The trial court specifically found that neither parent has made these requisite adjustments and the language of its finding tracks this statutory factor verbatim. Thus, it is in complete conformity with the statutory mandate. It is also amply supported by the evidence.

General Statutes § 17-43a (d) (6) requires the court to consider “the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.” Although the respondent mother claims that this factor was not considered, the trial court’s memorandum of decision indicates otherwise. As previously indicated, the court considered the prior history and the efforts of DCYS and there is no indication in the record that the agency acted unreasonably. To the extent that the mother now claims that she was prevented from maintaining a meaningful relationship with the child either by virtue of the father’s conduct or her economic circumstances, we note that the first claim was not raised at trial. Nor was there proof that the father interfered with her relationship with the child. The second claim merely makes reference to two statements in the transcript as evidence that she is a recipient of social security and that she was once evicted from her apartment. “The [respondent mother] . . . has presented this court with nothing but suppositions and allegations to support this claim. She would have us believe that her rights were terminated solely because she was poor. The [respondent’s] parental rights were terminated on the basis of her actions and omissions, not her economic situation.” State v. Anonymous, supra, 168.

II

The father also assigns as error the trial court’s decision to waive the one year statutory time period which is required pursuant to General Statutes § 17-43a (b) as a condition to termination of nonconsenting parents’ rights. We disagree.

According to General Statutes § 17-43a (c), “[t]he court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child.” In the present case, the trial court ruled that “[t]he court must conclude by clear and convincing evidence that neither parent is able or capable now or in the future to provide even the most basic essential structure necessary for the care and protection of [the child]. To delay action by this Court in terminating parental rights is to delay the inevitable at a very crucial time in this young child’s life. The Court finds [from] the totality of the circumstances surrounding the child that [a] waiver of the requirement that one year expire prior to the termination of parental rights is necessary to promote the best interest of the child.”

“ ‘We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.’ ” In re David E., 4 Conn. App. 653, 656, 496 A.2d 229 (1985). It is readily apparent from the quoted language of the trial court’s memorandum of decision that the court carefully considered each aspect of the statutory provisions pertaining to waiver of the one year waiting period. “Our review of the record reveals that the trial court’s decision was legally correct and factually supported.” Id.

There is no error.

In this opinion the other judges concurred.

       Counsel for the child did not file a separate brief but appeared at oral argument and endorsed the position of the department of children and youth services in these appeals.

       Although the parental termination petition was filed pursuant to the provisions of both §§ 17-43a and 45-631, we note that the pertinent provisions of those two statutes are identical. Therefore, the allegations in the petition do not give rise to any distinct or separate statutory treatment. For purposes of clarity, all statutory references in this opinion are to General Statutes § 17-43a.

       Because we find that the trial court did not err in terminating parental rights on the basis of General Statutes § 17-43a (b) (3), we do not further consider the propriety of the court’s conclusion, pursuant to § 17-43a (b) (1), that the child has been abandoned.

       Pursuant to the statutory scheme, the trial court may grant a petition to terminate parental rights according to the following prescribed conditions: (1) if the court finds by clear and convincing evidence that at least one of the four grounds enumerated in subsection (b) exists; (2) if this ground has existed for at least one year, except where circumstances warrant a waiver of this requirement pursuant to subsection (c); and (3) if the court’s subordinate findings are reduced to writing and reflect the court’s consideration of the six factors enumerated in subsection (d). The trial court must also find that termination of parental rights is in the best interest of the child pursuant to § 17-43a (b). See General Statutes § 17-43a (b), (c), (d).

       General Statutes § 17-38a provides in pertinent part: “The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.”


text:
    Donald R. Groody v. Loehmann-Blasius Chevrolet, Inc.
    (4047)
    Dupont, C. J., Borden and Spallone, Js.
    Argued February 5
    decision released March 4, 1986

      Robert J. Nichols, for the appellant (defendant).

      Donald R. Groody, pro se, the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    E.J. Elliott et al. v. South Isle Food Corporation
    (3613) (3635) (3636)
    Dupont, C. J., Borden and Daly, Js.
    Submitted on briefs December 13,1985
    decision released March 11, 1986

      Richard A. Johnson filed a brief for the appellant (defendant in each case).

      John G. Betar, Jr., David Quatrella and Donald Pinto, law student intern, filed a brief for the appellees (plaintiffs in each case).
   Borden, J.

The defendant lessee appeals from three judgments rendered in favor of the plaintiff lessors in three summary process actions which were brought pursuant to General Statutes § 47a-23. These actions involve one lease for the use and occupancy of three properties. Two of these actions (the Bridgeport cases) were initiated in the Housing Session at Bridgeport in the judicial district of Fairfield, and judgments were rendered by Driscoll, J. The other action was brought to geographical area number three at Danbury (the Danbury case), and judgment was rendered by Lavery, J.

The principal issue in these appeals is whether the trial courts erred in failing to find that the defendant’s violations under the lease were technical and that the literal enforcement of the lease would result in an inequitable forfeiture. The defendant also assigns as error in the Bridgeport cases the trial court’s refusal to grant its posttrial motion to present additional evidence. In the Danbury case, the defendant assigns as error the trial court’s refusal to grant its motion to vacate the judgment and to dismiss the action. We find no error.

Certain facts, which are common to these three actions, are not in dispute. The two parcels of property which are the subject of the Bridgeport cases are located in Southport and Stratford. The property which is the subject of the Danbury case is located in Dan-bury. The plaintiffs are two individuals who own the Danbury and Stratford properties and lease the South-port property. The defendant is an Ohio corporation which holds certain franchise rights from Wendy’s International, Inc., and presently owns and operates two Wendy’s restaurants in Connecticut.

On March 5, 1983, the parties entered into a written agreement whereby the defendant leased these properties from the plaintiffs. Although separate leases were executed for each of the three sites, the agreement recites that it constitutes a “package deal.” According to the agreement, a default as to a provision in any one of the leases would constitute a default as to the entire agreement, namely, all of the leases. In addition, paragraph twenty-four, which governs default, provides that the lessor may terminate the lease if the lessee fails to pay rent when due or fails to keep and perform any other covenant in the lease, provided that the lessor shall give certain notice to the lessee specifying the default. The defendant took possession of the properties pursuant to the leases and has remained in possession.

In July, 1984, the plaintiffs issued notices to quit and initiated three summary process actions against the defendant. In their complaints the plaintiffs alleged, inter alia, that the defendant had breached the following covenants in the lease: (1) the covenant to remove, within thirty days, any mechanic’s liens which the defendant caused to be filed against the leasehold property; (2) the covenant to maintain insurance coverage on the leasehold property; and (3) the covenant to pay an increased rental if the defendant defaulted on its rental obligations three times during any one year period. The defendant filed an answer admitting that mechanic’s liens had been filed and not removed, and that increased rent had not been paid, but denied that they received proper notice from the plaintiffs regarding the rent increase. The defendant denied that the insurance had not been paid and filed a special defense alleging that the violations of the lease are technical, that the loss to the lessors has been small, and that the hardship to the lessee from literal enforcement of the lease will be enormous and irrevocable.

In the Bridgeport cases, the parties went to trial and judgment was rendered in favor of the plaintiffs. In the Danbury case, the parties entered into a stipulation prior to trial, the terms of which constitute the primary aspects of the court’s judgment for the plaintiffs which is now challenged on appeal. Because of the differences in the factual situations underlying these judgments, we discuss the cases separately.

I

The Bridgeport Cases

With regard to the covenant to remove mechanic’s liens, the trial court found that mechanic’s liens had been filed against the plaintiffs’ property in the amount of either $176,000 or $250,000. The court also found that the defendant permitted these liens to remain on the premises in violation of the terms of the lease. With regard to the covenant to maintain insurance on the properties, the trial court found that the defendant had allowed the insurance to lapse. The court rejected as unproven the defendant’s claim that it had notified the plaintiffs regarding the continuation of insurance. Finally, with regard to the covenant to pay increased rent, the trial court found that the rental increase had not been paid, and rejected as unsubstantiated the defendant’s claim that this default was due to defects in the plaintiffs’ notices regarding the increase. In addition, the court found that the defendant did not respond to the plaintiffs’ notices of default and did not claim at trial that any of the notices had not been received. Therefore, the trial court found that pursuant to paragraph twenty-four of the lease, the plaintiffs were entitled to terminate the lease and issue notices to quit possession of the premises.

The court also found that the notices to quit conformed substantially to the statutory requirements. Accordingly, the court rendered judgments for the plaintiffs to recover possession of the premises. See General Statutes § 47a-26d. Because the defendant on this appeal does not challenge the trial court’s findings regarding the alleged defaults, notices of default, or notices to quit possession of the premises, the focus of this appeal concerns the equitable doctrine of forfeiture, which was the defendant’s principal defense at trial.

“The rule regarding equitable relief from the forfeiture of a lease is that ‘in cases of wilful or gross negligence in failing to fulfil a condition precedent of a lease, equity will never relieve. But in case of mere neglect in fulfilling a condition precedent of a lease, which does not fall within accident or mistake, equity will relieve when the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease.’ ” (Citations omitted.) Seven Fifty Main Street Associates v. Spector, 5 Conn. App. 170, 174, 497 A.2d 96 (1985). In reviewing claims of error in the trial court’s exercise of discretion in matters of equity, we give great weight to the trial court’s decision. Id. “[E]very reasonable presumption should be given in favor of its correctness. Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252 (1983). The ultimate issue is whether the court could reasonably conclude as it did. Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979).” Seven Fifty Main Street Associates v. Spector, supra.

In the present case, the defendant essentially concedes that the extent of its breaches and the resultant loss to the plaintiffs would appear to be more than slight. Nevertheless, the defendant asserts that when these losses are measured against the magnitude of this entire deal, the breaches and the plaintiffs’ losses were minor. In addition, the defendant contends that, because there was no evidence of monetary harm to the plaintiffs resulting from the mechanic’s liens, any harm caused by the defendant’s breaches was negligible. Similarly, as to the failure to pay rent, the defendant argues that the amount due was minimal and that the base rent had been paid through the time of trial. Finally, the defendant points out that there was no evidence regarding the amount that the plaintiffs may have paid for substitute insurance coverage. Thus, the defendant implies that the harm to the plaintiffs was either unproven or negligible.

On the other hand, the plaintiffs point out that there were three mechanic’s liens filed against one of the properties which total at least $176,000, and that one of the lienholders had instituted a foreclosure action on the plaintiffs’ property which was still pending at the commencement of the trial in this case. The plaintiffs also point out that the trial court found that these liens were substantial and that the defendant’s failure to remove these liens indicates either an inability or an unwillingness to do so. In this regard, the trial court specifically noted the testimony of the defendant’s chief operating officer that the defendant had not experienced money problems. The court also found that the defendant permitted the liens to remain on the property even after receiving notice from the plaintiffs regarding this default. The record clearly indicates that the liens were placed on the property in January of 1984, and six months later the defendant admitted the existence of these liens in its answer. Thus, the court specifically considered the defendant’s delay in remedying this default and correctly found it to be more than slight.

These findings indicate that the trial court could have correctly viewed this case as an example of at least borderline “wilful or gross negligence in failing to fulfil [conditions] precedent of a lease, [where] equity will never intervene.” Seven Fifty Main Street Associates v. Spector, supra. Nevertheless, the court considered the third equitable factor, namely, the extent of the loss to the defendant if forfeiture were granted. The court noted that the defendant, which admittedly had no money problems, had failed to complete construction on one of the properties and had not even commenced construction on the other two. Although the defendant claims on appeal to have invested substantial sums in these properties, we agree with the plaintiffs that these were, by and large, merely “soft costs” rather than costs of construction or renovation as alleged. In addition, we disagree with the defendant’s unsupported claim that the potential loss to the plaintiffs is slight, whether that loss is measured by the size of this entire deal or otherwise. We conclude that the record does not support the defendant’s claim that the trial court abused its discretion by rendering judgment of forfeiture of this lease based on these facts and circumstances.

The defendant’s second claim of error is that the trial court erroneously denied its motion to present additional evidence. We disagree.

The defendant made this motion shortly after the trial had ended but before the court had rendered its decision. The motion essentially sought the court’s permission to introduce evidence that the mechanic’s liens had been released. In its memorandum of decision denying this motion, the trial court noted that all the evidence which the defendant sought to introduce concerned matters which it had ample opportunity to have accomplished before the end of the trial. Indeed, the court noted that notwithstanding the fact that several breaches had occurred, the defendant’s motion merely sought to introduce evidence concerning the alleged remedy of only one of those breaches. Accordingly, the court denied the motion.

We conclude that it was well within the trial court’s discretion to deny the motion.

II

The Danbury Case

The facts giving rise to the plaintiffs’ initiation of this summary process action are identical to those discussed above. In this case, however, before trial the parties entered into an agreement whereby a stipulated judgment of possession was rendered in favor of the plaintiffs on September 6,1984. This judgment, according to the stipulation, was to be stayed until September 20, 1984, and vacated if the defendant, by that date, had paid the mechanic’s liens in full. The stipulation also required the defendant to give the plaintiffs a written statement verifying the payment of these liens. On September 20, 1984, these conditions had not been complied with. Therefore, judgment for the plaintiffs became fully effective as of that date. On October 1, 1984, the defendant filed a motion to vacate the judgment, alleging that it had fully complied with the conditions set forth above. The trial court denied the motion after a hearing on October 4,1984. The defendant claims that the trial court’s refusal to vacate judgment constitutes reversible error. We disagree.

We construe the defendant’s motion as a motion to open the judgment pursuant to Practice Book § 326. A timely motion to open judgment is directed to the trial court’s discretion. Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1977); Banks v. Evans, 6 Conn. App. 175, 179, 504 A.2d 522 (1986). At the hearing on this motion, the trial court noted that the September 20 deadline was “a final date . . . the dead-line date,” and that the defendant had neither fully, nor substantially complied with the stipulation. Accordingly, the trial court, in the exercise of its discretion, denied the defendant’s motion. We find no abuse of that discretion under the facts and circumstances of this case.

There is no error.

In this opinion the other judges concurred.


text:
    Marcia Dunn v. John Dunn
    (3823)
    Hull, Spallone and Daly, Js.
    Argued January 17
    decision released March 11, 1986

      Brian J. Farrell, for the appellant (defendant).

      Robert K. Wynne, for the appellee (plaintiff).
   Per Curiam.

The only issue in this appeal involves the propriety of the trial court’s action in granting the plaintiff’s motion to open the judgment modifying the award of alimony made incident to the judgment dissolving the parties’ marriage.

No useful purpose could be served by our reciting here the labyrinthian procedural morass through which this case has meandered. Suffice it to say that the trial court was confronted with complex legal entanglements, the resolution of which required the court to exercise its power to act equitably. This power “is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); Trivelli v. Trivelli, 5 Conn. App. 488, 490, 500 A.2d 244 (1985); Vaiuso v. Vaiuso, 2 Conn. App. 141, 147, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984).

“‘A motion to open . . . is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless [the court] acted unreasonably and in clear abuse of its discretion. See Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1979); State v. Fahey, 147 Conn. 13, 15, 156 A.2d 463 (1959). In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971); E.M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959).’ ” Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985), quoting Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466-67, 440 A.2d 159 (1981). For us to conclude that the trial court abused its discretion we must find that the court “either incorrectly applied the law or could not reasonably conclude as it did.” Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983); Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982); see Banks v. Evans, 6 Conn. App. 175, 504 A.2d 522 (1986).

Our review of the record, transcript and briefs fails to disclose that the trial court abused its discretion. The action taken by the court was well within the parameters of its authority and was in accordance with the law.

There is no error.


author: Spallone, J.

text:
    Rose H. Badrigian, Administratrix (Estate of Harry Peter Badrigian) v. Elmcrest Psychiatric Institute, Inc., et al.
    (3574)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 6, 1985
    decision released March 11, 1986

      Dion W. Moore, for the appellant-appellee (named defendant).

      Harold J. Geraqosian, for the appellee-appellant (plaintiff).
   Spallone, J.

The defendant has appealed from a judgment rendered upon a jury verdict for the plaintiff in the amount of $100,110.89. The defendant filed a motion to set aside the verdict and for judgment notwithstanding the verdict, both of which the court denied. The plaintiff has cross appealed from the denial of its motion to set aside the verdict as to the amount of the verdict only.

The defendant claims that the trial court committed error (1) in denying the defendant’s motion for a directed verdict and permitting the issue of the alleged negligence of the defendant to go to the jury without expert evidence of the standard of care owed by the defendant to the plaintiff’s decedent, (2) in refusing to charge the jury on the elements of medical malpractice as requested by the defendant, (3) in refusing to charge the jury on the elements of care required of an owner of property to an invitee, (4) in its comments during its charge to the jury on the evidence with regard to the mental condition of the plaintiff’s decedent, and (5) in submitting the case to the jury when there was no evidence introduced to establish that the decedent’s injury was proximately caused by any negligence attributed to the defendant.

The plaintiff, in her cross appeal, claims that the trial court erred in not setting aside the verdict because certain interrogatories presented to the jury with regard to the question of comparative negligence were contrary to the law and the evidence.

The plaintiffs decedent, Harry Peter Badrigian (Peter), was hospitalized at the defendant’s facility, a psychiatric institute, where both inpatient and outpatient care and treatment are offered. Peter had entered the hospital on October 16,1979, and remained in the hospital and received care and treatment until his discharge, against medical advice, on November 12,1979. On the same day of his discharge, Peter was accepted as a day patient. The outpatient or day facility was located across state highway, route 66, from the main facility where the day patients, as part of their therapy and treatment, were encouraged to eat lunch. The cost of the lunch was included in the hospital charges. On November 13, 1979, Peter was at the day center for treatment and while crossing route 66 to go to lunch, he was struck by a car driven by Anthony Bracha. He died on November 18, 1979.

The plaintiff’s complaint seeks damages for the wrongful death of her decedent. Its allegations are based primarily on the alleged negligence of the defendant in failing to supervise its patients, particularly in crossing the state highway. The jury applied the doctrine of comparative negligence and its final verdict reflected a finding that the plaintiff’s decedent was one-third negligent. The jury also found for the driver of the vehicle and returned a defendant’s verdict in his behalf.

Underlying the defendant’s claims of error is its insistence that expert medical testimony was required in this case to establish the standard of care owed to the decedent by the defendant. The defendant raised this issue in a motion for a directed verdict filed after the plaintiff rested and after the defense rested. The issue was raised again after the verdict was returned when the defendant filed motions to set aside the verdict and for judgment notwithstanding the verdict.

The trial court filed a memorandum of decision in response to all of the defendant’s motions in which it rejected the defendant’s theory of the case. In a well reasoned decision, the trial court concluded that the alleged failure to provide a supervisor to monitor the plaintiff’s decedent in safely crossing the highway was not a medical procedure. Accordingly, it instructed the jury that the only issue to be decided was whether, in light of the evidence, a supervisor should have been provided so that the plaintiff’s decedent could reach the defendant’s main facility located across the highway.

The court recognized and accepted as evidence much expert medical testimony and opinion as well as the hospital record, and it accepted evidence of lay persons. This evidence related to the mental condition of the decedent and, in turn, whether the defendant should have known that he needed assistance in crossing the highway. The court correctly decided that this was not a medical malpractice action, but an action sounding in ordinary negligence and subject to proof of the standard of care owed by a reasonably prudent person under the particular facts and circumstances. See Todd v. Malafronte, 3 Conn. App. 16, 19, 484 A.2d 463 (1984).

The defendant is attempting to transform this case from one of simple negligence into that of medical malpractice requiring expert medical testimony to prove a medical standard of care and a breach thereof. The negligence alleged in the plaintiffs complaint was provable without expert medical testimony. Cf. Levett v. Etkind, 158 Conn. 567, 573-74, 265 A.2d 170 (1969); Console v. Nickou, 156 Conn. 268, 273-74, 240 A.2d 895 (1968); Todd v. Malafronte, supra. Such testimony of the mental condition of the plaintiff’s decedent was; however, helpful in establishing the ordinary negligence alleged. The expert medical testimony which was presented provided the jury with evidence of the mental condition of the decedent on the date of the accident, which was relevant only to a consideration by the jury that the plaintiffs decedent needed supervision in crossing the busy state highway, that the defendant knew or reasonably should have known of that need, that the failure to provide it constituted negligence, and to the degree of contributory or comparative negligence of the plaintiffs decedent.

The court, in effect, held that one need not be guided by medical experts in determining whether a mentally ill person should be allowed to cross on foot a heavily traveled four lane state highway without supervision. There was no esoteric or uniquely medical issue to be determined under the allegations of this case, and the court correctly categorized the negligence charged against the hospital as involving “no materia medica, nor any complex issue requiring specialized knowledge.” We find no error in the court’s submission of this case to the jury under the theory of simple negligence where no expert medical testimony was necessary to establish the standard of care owed to the decedent by the defendant under the circumstances alleged and proven.

Our analysis of the principles of law determining the first claim of error also determines the issues raised by the defendant’s second and fourth claims of error, and as to those we also find no error.

The defendant’s third claim of error, that the court should have charged the jury on the duty of care owed an invitee, is of no merit, since the accident happened on a public highway, and not on property owned by or under the possession or control of the defendant. See generally Wright & Fitzgerald, Connecticut Law of Torts § 46 et seq.

The defendant’s final claim of error, that there was no evidence to establish proximate cause of the decedent’s injuries and death by any negligence attributable to the defendant, also fails. Despite the claim, a review of the exhibits and transcript discloses ample evidence to allow the court to submit the issue to the jury, and also to prevent the court from setting aside the plaintiff’s verdict on this ground. A jury could reasonably have concluded that a proximate cause of the decedent’s death was the negligence of the defendant in failing to oversee the safe crossing of a busy highway by a mentally clouded patient in its care. Whether such evidence was sufficient for a verdict was for the jury to decide. Eagar v. Barron, 2 Conn. App. 468, 470, 480 A.2d 576 (1984); see State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983). It is also within the province of the jury to determine the credibility of and the weight to be given to the testimony of witnesses. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981). The evidence supported the jury’s conclusion that a proximate cause of the decedent’s death was the defendant’s negligence; see Campbell v. Pommier, 5 Conn. App. 29, 34, 496 A.2d 975 (1985); and the court did not abuse its discretion in denying the defendant’s motion to set aside the verdict. Labatt v. Grunewald, 182 Conn. 236, 240-41, 438 A.2d 85 (1980).

Our review of the claims of error made by the plaintiff indicates, under the circumstances of this case, that the plaintiffs cross appeal is lacking in merit. The plaintiff in her preliminary statement of issues claims that the interrogatories submitted to the jury which dealt with comparative negligence were contrary to law and against the evidence. The apparent focus of the plaintiff’s claim, as discussed in her brief, relates to the propriety of charging the decedent with comparative negligence, in view of his mental disability.

The plaintiffs claim that the decedent, due to his mental disability, could not properly have been charged with comparative negligence, is unpersuasive. The cases which relate to this issue indicate that in order for an individual’s mental disability to impinge upon whether that person is chargeable with negligence, the individual must be incapable of exercising reasonable care. See King v. Connecticut Co., 110 Conn. 615, 618, 149 A. 219 (1930); Bushnell v. Bushnell, 103 Conn. 583, 590, 131 A. 432 (1925). Thus, a person’s mental disability is not an automatic bar to that person’s liability. See Turner v. Caldwell, 36 Conn. Sup. 350, 351, 421 A.2d 876 (1980). The circumstances and facts of the particular case will determine whether an individual possesses the mental capacity required to be charged with negligence, or whether that individual is incapable of exercising reasonable care and is not responsible for his actions. See Bushnell v. Bushnell, supra. The jury had evidence as to the mental capacity of the plaintiff’s decedent and could reasonably have concluded that he possessed sufficient mental capability to be charged with comparative negligence.

There is no error.

In this opinion the other judges concurred.

       This action was brought against two defendants, Elmcrest Psychiatric Institute, Inc., and Anthony Bracha. The jury found against Elmcrest only. Therefore, in this opinion, our designation of the defendant refers to Elm-crest.

       In her brief, the plaintiff also challenges the amount of the damages awarded as insufficient. Because this claim was not raised in the plaintiff’s preliminary statement of issues, we decline to consider it. State v. Thompson, 5 Conn. App. 157, 160 n.3, 497 A.2d 423 (1985).

       Although the cases cited applied the doctrine of contributory negligence, which was substantially replaced by the doctrine qf comparative negligence; see Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 797-98, 462 A.2d 1043 (1983); the basic principles established in those cases for determining contributory negligence are now applicable in ascertaining the percentage of comparative negligence attributable to the plaintiff under the provisions of General Statutes § 52-572h. See Wendland v. Ridgefield Construction Services, Inc., supra; Gomeau v. Forrest, 176 Conn. 523, 525-26, 409 A.2d 1006 (1979); Melesko v. Riley, 32 Conn. Sup. 89, 90-91, 339 A.2d 479 (1975).


text:
    Harry DiSimone v. Antoinette Vitello et al.
    (3551)
    Borden, Spallone and Daly, Js.
    Argued November 25, 1985
    decision released March 11, 1986

      Dorm A. Swift, for the appellants (named defendant et al.).

      Fred H. White, Jr., for the appellee (plaintiff).
   Per Curiam.

This is an appeal from the trial court’s denial of the defendants’ motion to set aside a default judgment rendered, after a hearing in damages, more than three years earlier. The defendants claim that the denial of their motion was improper because (1) they did not receive notice of the judgment as required by Practice Book § 354, (2) the Superior Court clerk’s office failed to provide the defendants with notice of the hearing in damages in accordance with Practice Book § 368, (3) the hearing in damages was held in violation of General Statutes § 52-221, thereby preventing the defendants from offering defenses to the action and challenging the amount of damages, and (4) they had alleged good grounds to warrant setting aside the judgment. We find no error.

The plaintiffs complaint alleged that he was assaulted in the defendants’ bar on August 28, 1976, and sustained serious physical injury. The record shows that the defendants were properly served with the complaint on August 16, 1978.

On August 24, 1979, a default for failure to appear was entered against the defendants upon the plaintiff’s noticed motion. See Practice Book § 352. On December 11,1980, after an uncontested hearing in damages, the court rendered judgment for the plaintiff and awarded $22,000 in damages. The clerk’s certification on the memorandum of decision indicates that a copy of the memorandum was sent to the parties. Thereafter, the plaintiff’s lawyer mailed a letter dated July 29, 1983, to the defendants indicating the terms of the judgment and requesting its satisfaction.

No action was taken on the defendants’ behalf until May 18,1984, when the defendants moved to set aside the default judgment. The defendants alleged that the default was entered and judgment rendered without the proper notice required by Practice Book §§ 354, 367 and 368. The plaintiff opposed this motion, claiming that the defendants had been properly notified as to the default and hearing in damages. He also alleged that the default was the result of the defendants’ own negligence. The court denied the defendants’ motion. This appeal followed.

“A civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment. Practice Book § 326.” Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983). A trial court’s denial of a timely motion to open a judgment will not be disturbed on appeal unless the court acted unreasonably and in clear abuse of its discretion. See Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985); Steve Viglione Sheet Metal Co. v. Sakonchick, supra, 711. After this four month period has expired, the court no longer has jurisdiction to make other than clerical modifications or corrections. Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985). Absent a claim of lack of subject matter jurisdiction; see, e.g., Broaca v. Broaca, 181 Conn. 463, 466-67, 435 A.2d 1016 (1980); the rules of practice allow for substantive modification of a judgment beyond the four month period where the parties have consented or where the court has continuing jurisdiction. Practice Book § 326.

The defendants do not claim that the court’s jurisdiction is continuing or by consent. The defendants’ claims of error in substance challenge the jurisdiction of the court to render the default judgment because of lack of proper notices to them preceding and subsequent to the default and judgment. Our analysis of their first claim leads us to conclude that the court did not err in refusing to set aside the judgment, because the defendants’ motion was untimely and the court therefore lost jurisdiction to grant it.

The defendants’ first claim is that they were never notified of the default as required by Practice Book § 354. That section states in pertinent part that “[a] notice of every . . . judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed forthwith by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shall be sent to the clerk’s office.” In the present case, the judgment after default was rendered after the hearing in damages. Practice Book § 354 requires that notice to a nonappearing party be sent by the adverse counsel only after the judgment is rendered, not after entry of the default. The plaintiff’s counsel substantially complied with this section by his July 29,1983 letter to the defendants.

Although this letter was dated two and one-half years after the judgment was rendered against the defendants, this delay does not constitute a jurisdictional defect. At the most, where a defendant does not otherwise have notice of a default judgment, such a delay would merely extend the time in which the defendant could move to set aside the judgment. Furthermore, the clerk’s notation on the court’s memorandum of decision awarding damages indicates that a copy of the decision was sent to the defendants. Thus, we presume that the clerk did so; Wright v. Bourbeau, 3 Conn. App. 512, 519, 490 A.2d 522 (1985); and, in the absence of a finding to the contrary, that the defendants received it. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 533, 457 A.2d 656 (1983). The defendants did not seek to have the judgment set aside until May 18, 1984, more than nine months after the date of the plaintiff’s counsel’s letter, and three and one-half years after receiving a copy of the decision. Since the defendants’ motion was filed more than four months after they received actual notice of the judgment, the court lacked jurisdiction to set the judgment aside.

The defendants’ second and third claims of error do not challenge the untimeliness of their motion to set aside the judgment, which the court lacked jurisdiction to grant. Thus, we need not consider those claims.

There is no error.

       The sheriffs return indicates that the defendant, Antoinette Vitello, was served personally, and that the defendant, Pat Vitello, was served by abode service. See General Statutes § 52-57.