author: Norcott, J.

text:
    O & P Realty v. Lucy Santana
    (6310)
    Borden, Stoughton and Norcott, Js.
    Argued October 19, 1988
    decision released January 10, 1989

      David A. Pels, for the appellant (defendant).

      Marshall D. Glazer, for the appellee (plaintiff).
   Norcott, J.

This is an appeal from a judgment for the plaintiff landlord in a summary process action based on the nonpayment of rent. The defendant tenant claims that the trial court erred in holding that a disclaimer by the plaintiff, contained in the notice to quit, prevented the creation of a new tenancy. We find no error.

The facts are undisputed. The plaintiff and the defendant entered into an oral month-to-month lease with rent payments due on the first day of each month. On May 12, 1987, the defendant was served with a notice to quit that contained the following statement: “NOTICE IS HEREBY GIVEN THAT EFFECTIVE THIS DATE ANY MONIES RECEIVED BY THE LANDLORD WILL BE ACCEPTED AS USE AND OCCUPANCY ONLY AND NOTAS RENT.” (Emphasis in original.) On May 14,1987, the plaintiff received and cashed a money order from the defendant on which the defendant had written “Rent full for May lst-31, 1987.” The plaintiff received a similar money order in June, 1987, that the defendant claims constituted her rental payment for June. The plaintiff retained but did not cash this money order.

On June 2,1987, the plaintiff filed this summary process action. In her answer, the defendant alleged payment as a special defense. The trial court held that the plaintiff’s statement contained in the notice to quit, that it would accept any monies tendered solely as use and occupancy charges, was effective to block the creation of a new tenancy.

The defendant argues that in accepting the money-orders the plaintiff became bound by the condition the defendant had written thereon, that is, that they were “rent” payments. She further claims that this acceptance of “rent” created a new tenancy and waived the plaintiffs right to continue the summary process action, despite the plaintiffs prior disclaimer. The defendant bases this claim on the argument that under the law of contracts the acceptance of the “conditional” money orders constituted an accord and satisfaction. This argument is without merit.

Our Supreme Court recently set out the law of accord and satisfaction in County Fire Door Corporation v. C. F. Wooding Co., 202 Conn. 277, 281-82, 520 A.2d 1028 (1987). The court stated: “When there is a good faith dispute about the existence of a debt or about the amount that is owed, the common law authorizes the debtor and the creditor to negotiate a contract of accord to settle the outstanding claim. Such a contract is often initiated by the debtor, who offers an accord by tendering a check [for an amount less than that demanded] as ‘payment in full’ or ‘in full satisfaction.’ If the creditor knowingly cashes such a check, or otherwise exercises full dominion over it, the creditor is deemed to have assented to the offer of accord. Upon acceptance of the offer of accord, the creditor’s receipt of the promised payment discharges the underlying debt and bars any further claim relating thereto, if the contract of accord is supported by consideration. . . .

“A contract of accord and satisfaction is sufficiently supported by consideration if it settles a monetary claim that is unliquidated in amount.” (Citations omitted. Emphasis added.) “When a debtor knows precisely how much he is to pay and to whom he is to pay it, his debt is a liquidated one.” Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 165, 475 A.2d 310 (1984).

As the court made clear, a condition precedent to the making of a contract of accord and satisfaction is that there be a dispute as to the amount owed or an unliquidated claim. See also 1 Am. Jur. 2d, Accord and Satisfaction §§ 18,26, 27. The defendant has not alleged that the amount owed was in dispute or unliquidated. The only dispute is whether the plaintiff was required to accept the amount paid as “rent” or could accept it as payment for “use and occupancy.” On the facts of this case, we therefore conclude that the law of accord and satisfaction does not apply.

The defendant also seems to argue that the trial court erred in determining that the plaintiffs disclaimer was otherwise effective in preventing the creation of a new tenancy. We disagree.

In a month-to-month tenancy, an acceptance by the landlord of a tender of rent after the service of a notice to quit renders the notice void and creates a new tenancy. Kligerman v. Robinson, 140 Conn. 219, 222, 99 A.2d 186 (1953). In Casner v. Resnik, 95 Conn. 281, 287, 111 A. 68 (1920), the court held, however, that “[i]f, as the landlords claimed, the lease had already been terminated, they had a right to refuse a belated tender of rent, and to notify the tenant that it would be accepted only as compensation for use and occupation. If the tenant paid the money after that notification, the status quo was preserved.”

Housing court decisions in this state, often citing Casner, have repeatedly held that a landlord may accept a tender of rent after the service of a notice to quit and characterize it as payment for use and occupancy if the landlord has, prior to the offer of rent, notified the tenant that the tender will be accepted only as use and occupancy payments. See Schwartzberg v. Arbour, 22 Conn. Sup. 395, 173 A.2d 895 (Cir. Court 1961); Donoher v. Depino, Superior Court for the judicial district of New Haven, Docket No. SPNH 8408-7417BR (December 6, 1984); Hintlian v. Beachard, Superior Court for the judicial district of Hartford-New Britain at New Britain, Docket No. SPN-8203-3512-WE (April 8, 1982); Wethersfield Gardens v. Tabor, Superior Court for the judicial district of Hartford-New Britain at Hartford, Docket No. SP-H-8112-13227 (February 23, 1982); Housing Authority of the Town of East Hartford v. Carroll, Superior Court for the judicial district of Hartford-New Britain at Hartford, Docket No. SP-H-8009-7856EH (December 9, 1980); East Hartford Housing Authority v. Mastrangelo, Superior Court for the judicial district of Hartford-New Britain at Hartford, Docket No. SP-H-7909-2887EH (November 14, 1979); Galati v. Thompson, Superior Court for the judicial district of Hartford-New Britain at New Britain, Docket No. SPN-7909-702-NB (October 23, 1979); Hartford East Apartments v. Raum, Superior Court for the judicial district of Hartford-New Britain at Hartford, Docket No. H-7903-00912EH (June 19, 1979). In fact, the use of such disclaimers was praised in Zitomer v. Palmer, 38 Conn. Sup. 341, 343-44, 446 A.2d 1084 (App. Sess. 1982) in which the court concluded that “[t]he added statement clearly admonishes that any sums offered after receipt of the notice [to quit] will be retained for purposes other than rent. The admonition serves two useful purposes. It avoids misleading tenants who tender late payments and it insulates the summary process action from being flawed by the acceptance of rent after commencement of the summary process.” We agree with this analysis.

Additionally, from a policy point of view, summary process actions are designed “to permit the landlord to recover possession on termination of a lease . . . without suffering the delay, loss and expense to which he may be subjected under a common-law action. . . . The process is intended to be summary and is designed to provide an expeditious remedy to the landlord seeking possession.” (Citations omitted.) Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973); Southland Corporation v. Vernon, 1 Conn. App. 439, 445, 473 A.2d 318 (1984). A holding that disclaimers such as the one at issue here are ineffective would force landlords to file a motion for use and occupancy payments pursuant to General Statutes § 47a-26b in every case and would require them to return any tendered offers of rent or run the risk of subjecting their summary process actions to dismissal. See Alteri v. Layton, 35 Conn. Sup. 258, 408 A.2d 17 (1979). This is not a desirable policy and does not comport with the objectives of the summary process statute.

We hold, therefore, that the trial court did not err in determining that the plaintiff’s disclaimer in the notice to quit, having been served on the defendant prior to her tender of the money order marked “rent,” effectively prevented the creation of a new tenancy and preserved the plaintiffs right to continue the summary process proceeding.

There is no error.

In this opinion the other judges concurred.

       The defendant also claims that the law of negotiable instruments requires that the acceptance of the “conditional” payments bound the plaintiff to the condition thereon. The arguments in her brief, however, are couched only in terms of the theory of accord and satisfaction. Because the defendant has not properly briefed the issue of the applicability of the law of negotiable instruments by formulating any legal argument, we decline to review it. See New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 682 n.2, 474 A.2d 810 (1984).

       The disclaimer in Zitomer contained in the notice to quit stated: “Any payments tendered after service of the notice to quit will be accepted for reimbursement of costs and attorneys’ fees and for use and occupancy only with full reservation of rights to continue with the eviction action.” Zitomer v. Palmer, 38 Conn. Sup. 341, 343, 446 A.2d 1084 (App. Sess. 1982).
      We do not decide the effect of those portions of that disclaimer referring to costs and attorneys fees as they do not appear in the disclaimer in the case before us.


source: Caselaw Access Project

author: Stoughton, J.

license: Public Domain

text:
    Olga Arrieu et al. v. Town of Litchfield et al.
    (6660)
    Borden, O’Connell and Stoughton, Js.
    Argued November 4, 1988
    decision released January 10, 1989

      Paul R. Phalen, for the appellants (plaintiffs).

      Michael D. Rybak, with whom, on the brief, was R. Christopher Blake, for the appellee (defendant Litchfield Historical Society, Inc.).
   Stoughton, J.

This is an appeal by the plaintiffs from the judgment of dismissal rendered in favor of the defendants on a motion to dismiss filed by one of the defendants, the Litchfield Historical Society, Inc. (Society). The plaintiffs claim that the trial court erred (1) in finding that the plaintiffs had failed to exhaust their administrative remedies, (2) in finding that the failure of the defendant zoning board of appeals (board) to notify the planning and zoning commission of the Society’s pending application was procedural rather than jurisdictional, (3) in finding that subparagraphs (1) and (3) of paragraph 2 (b), section 3, Article VII, of the Litchfield zoning regulations were directory rather than mandatory, and (4) in dismissing the second count of their complaint, brought under General Statutes § 22a-19a. We find no error.

The plaintiffs are landowners whose properties abut that of the Society, which is located in a building constructed in 1905. The Society sought a use variance in order to enlarge and substantially renovate the building. Following a public hearing at which the plaintiffs appeared in opposition to the variance, the board granted the variance for the addition, but denied a variance to construct a small parking lot. Apparently, the plaintiffs’ appeal of this decision to the Superior Court was dismissed for failure to serve the town clerk. See Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (en banc).

The plaintiffs’ first claim of error is that the trial court erred in finding that they had failed to exhaust their administrative remedies. The plaintiffs contend that they have exhausted their administrative remedies because their first appeal of the use variance was dismissed by the trial court on jurisdictional grounds and not on the merits. They claim that because that dismissal left them without the ability to attack the board’s action, they have “exhausted” their administrative remedies and were entitled to seek a declaratory judgment. We disagree.

“[Wjhen a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979).” Davis v. Yudkin, 3 Conn. App. 576, 578, 495 A.2d 714, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985). The fact that the original appeal was dismissed for failure to serve the town clerk does not give the plaintiffs the right to bring an independent action based upon the same grounds. See Carpenter v. Planning & Zoning Commission, supra. Here, the plaintiffs have failed to take their statutory appeal from the board’s decision and consequently they have failed to exhaust their administrative remedies. Id. There is no merit to this claim.

The plaintiffs’ second and third claims are intertwined. Essentially, the plaintiffs claim that paragraph 2 (b), section 3, Article VII, of the Litchfield zoning regulations sets forth mandatory requirements that were not met by the board. Hence, the plaintiffs argue, the failure by the board to transmit the application immediately to the planning and zoning commission constitutes a jurisdictional defect that renders its action null and void. See Bencivenga v. Zoning Board of Appeals, 2 Conn. App. 384, 387, 478 A.2d 1049 (1984). It is undisputed that the board failed to transmit the Society’s application to the commission and that it did not receive a report from the commission on or before the public hearing.

Paragraph 2 (b), section 3, Article VII, of the regulations provides in pertinent part: “Every application for variance from the Use Regulations and Special Regulations as distinguished from the Height and Area Regulations shall be: 1. Immediately transmitted to the [Planning and Zoning] Commission and, on or before the public hearing held by the Board on such application for variance, the Commission shall make a report with recommendations thereon, such report to be a part of the record of the case.” The plaintiffs further point out that Article II of the regulations provides in pertinent part: “SECTION I — Rules. In the construction of this regulation, the rules and definitions contained in this Article shall be observed and applied, except where the context clearly indicates otherwise.

“2. The word ‘shall’ is mandatory and is not discretionary.”

The plaintiffs’ argument that the trial court’s reasoning is erroneous rests solely on their assertion that under the regulations “shall” may be interpreted only as mandatory. The regulations belie this claim, however. Section 1 provides that “[i]n the construction of this regulation, the rules and definitions contained in this Article shall be observed and applied, except where the context clearly indicates otherwise.” (Emphasis added.)

The trial court found that the regulation was merely directory on the basis of several factors: First, the regulation was in the “Procedure” section of the regulations. Second, there was no language that expressly invalidated any board actions if the board did not comply with the regulation. See Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967). Finally, the trial court noted that the regulation did not go to “the essence of the thing to be accomplished.” See id. We cannot say that the trial court was clearly in error in finding that this regulation was merely directory. Accordingly, the failure of the board to follow its directions did not amount to a jurisdictional defect. There is no merit to these claims.

The plaintiffs’ fourth claim of error pertains to the second count of the complaint, which was brought under General Statutes § 22a-19a. They claim that the trial court erred in dismissing their action on the basis of their failure to exhaust their administrative remedies. The plaintiffs assert that an action under General Statutes §§ 22a-19a and 22a-20 does not require that administrative remedies be exhausted prior to appeal because § 22a-20 creates a bypass to the general rule that parties seeking a declaratory judgment must first exhaust their administrative remedies.

The record before us does not disclose that this issue was ever raised before the trial court. It is the duty of the appellant to present us with an adequate appellate record. Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 63, 539 A.2d 614 (1988). Because the record does not disclose that the plaintiff ever made this claim before the trial court, we decline to review it. Practice Book § 4185; Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 650 n.8, 514 A.2d 352, cert. denied, 201 Conn. 809, 515 A.2d 378 (1986).

There is no error.

In this opinion the other judges concurred.

         Although both parties assert that this hearing was held and that an appeal was taken, and the trial court apparently relied in its decision on the fact that an appeal was taken, the record is bereft of any exhibits or documents pertaining to it. We also note that the appellants did not seek an articulation by the trial court pursuant to Practice Book § 4051 in order to clarify the trial court’s decision.

       It is not clear from the record whether this issue was brought to the attention of the board at the hearing or whether the planning and zoning commission did in fact receive notice of the application.

       General Statutes § 22a-19a provides: “The provisions of sections 22a-15 to 22a-19, inclusive, shall be applicable to the unreasonable destruction of historic structures and landmarks of the state, which shall be those properties (1) listed or under consideration for listing as individual units on the National Register of Historic Places (16 USC 470a, as amended) or (2) which are a part of a district listed or under consideration for listing on said national register and which have been determined by the state historic preservation board to contribute to the historic significance of such district. If the plaintiff in any such action cannot make a prima facie showing that the conduct of the defendant, acting alone or in combination with others, has or is likely unreasonably to destroy the public trust in such historic structures or landmarks, the court shall tax all costs for the action to the plaintiff.”

       General Statutes § 22a-20 provides: “Sections 22a-14 to 22a-20, inclusive, shall be supplementary to existing administrative and regulatory procedures provided by law and in any action maintained under said sections, the court may remand the parties to such procedures. Nothing in this section shall prevent the granting of interim equitable relief where required and for so long as is necessary to protect the rights recognized herein. Any person entitled to maintain an action under said sections may intervene as a party in all such procedures. Nothing herein shall prevent the maintenance of an action, as provided in said sections, to protect the rights recognized herein, where existing administrative and regulatory procedures are found by the court to be inadequate for the protection of the rights. At the initiation of any person entitled to maintain an action under said sections, such procedures shall be reviewable in a court of competent jurisdiction to the extent necessary to protect the rights recognized herein. In any judicial review the court shall be bound by the provisions, standards and procedures of said sections and may order that additional evidence be taken with respect to the environmental issues involved.”


author: Foti, J.

text:
    State of Connecticut v. Louis C. Fiocchi, Jr.
    (6361)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 5, 1988
    decision released January 17, 1989

      A. Paul Spinella, with whom, on the brief, was David K. Jaffe, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, was Rosita M. Creamer, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from a judgment of conviction, after a jury trial, of unlawful discharge of a firearm in violation of General Statutes § 53-203.

On appeal, the defendant assigns five reviewable claims of error: (1) that the trial court improperly instructed the jury with respect to his justification defense; (2) that the trial court’s instruction on his defense of mistake of law was confusing and misled the jury; (3) that the jury instruction, on the whole, was unfairly weighted in favor of the state; (4) that the trial court erred in refusing to suppress his oral statements made in violation of his Miranda rights; and (5) that the trial court improperly excluded evidence of a business record.

The jury could reasonably have found the following facts. The defendant lives in a rural section of Glastonbury and raises domestic animals on his property including a horse, a cat and approximately a dozen chickens. The defendant’s neighbor, John Bunker, owned a four year old Brittany Spaniel named Blue. On at least three occasions in 1986, the dog was observed entering the defendant’s property and attacking his chickens. On June 23,1986, at approximately 7 p.m., the defendant saw the dog enter his property. He fired three shots at the dog, killing the animal. The defendant then moved the dog’s body to an adjacent cornfield and called the police.

The defendant’s first three assignments of error challenge the trial court’s instructions to the jury. His first claim is that the trial court erroneously limited its instruction on the defense of justification to General Statutes § 22-358. The defendant argues that in addition to charging the jury that it could find the defendant’s killing the dog justified under the circumstances set forth in General Statutes § 22-358, he was also entitled to a “general justification” instruction.

“When a defendant admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate. A defendant must, however, assert a recognized legal defense before such a charge will become obligatory. ” (Emphasis added.) State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979). Our Supreme Court has held that only when the evidence presented indicates the availability of one of the numerous statutory defenses, codified in the General Statutes, is the defendant entitled, as a matter of law, to a theory of defense charge. Id., 708.

We are not aware of any general noncodified justification defense recognized under our law, and, therefore, we conclude that the defendant had no right to such an instruction.

With respect to the defense of justification provided in our penal code pursuant to General Statutes §§ 53a-16 and 53a-19, which the defendant referred to in his request to charge, we conclude that those statutes do not apply to the use of force against animals. These statutes represent a codification of the common law; see Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes, p. 219; and specifically refer to the use of force against “persons.” “Person” is defined under General Statutes § 53a-3 (1) as “a human being, and, where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.” (Emphasis added.) Based on a plain language reading of these statutes, it is evident that General Statutes §§ 53a-16 and 53a-19 apply only to the use of force against another person and not animals. Therefore, the trial court properly limited its instruction of the defense of justification to the specific statutory defense for killing a dog set forth in General Statutes § 22-358.

The defendant’s next claim is that the trial court’s instruction to the jury on the defense of mistake of law was confusing and misled the jury. In particular, he objects to the court’s charge defining what constitutes an official statement pursuant to General Statutes § 53a-6 (b).

There was testimony presented at trial that when the defendant’s wife complained to Officer Jack Landon of the Glastonbury police department that the dog had entered her property and bothered her chickens, he told her about a personal incident in which he shot his rifle several times in the air in order to scare away dogs that went after his sheep. The defendant’s wife testified that Landon had told her that this course of action would probably be the best way to handle her situation. She later related this discussion to the defendant.

On the basis of this testimony, the defendant requested an instruction on the defense of mistake of law. He asserts that the court should have instructed the jury, as he requested, that “a Glastonbury police officer is a public servant and if a statement was made in the course of his employment it is an official statement.” The trial court did not give this particular instruction but instead gave a general charge on the defense of mistake of law in which it discussed the statute and set out the situations in which mistake of law would be a defense to a crime. As to what was meant by “official act,” the court read to the jurors a dictionary definition of that term: “An act done by an officer in his official capacity under color and by virtue of his office.” Ballantine’s Law Dictionary. The court explained that they had heard testimony from both Landon and the defendant’s wife and that it was for the jurors to decide whether the statement made by Landon was made officially.

“Jury instructions are calculated to give the jurors a clear understanding of the elements of the crime charged, and to afford them proper guidance for their determination of whether those elements were present. (Citation omitted.) As long as the charge achieves those goals it is constitutionally adequate.” State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985). “Jury instructions, of course, need ‘not be exhaustive, perfect or technically accurate,’ so long as they are ‘correct in law, adapted to the issues and sufficient for the guidance of the jury.’ Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953).” State v. Kurvin, 186 Conn. 555, 572, 442 A.2d 1327 (1982). The question for our determination is whether the charge, when considered as a whole, presented the case to the jury so that no injustice resulted. State v. Gabriel, 192 Conn. 405, 419, 473 A.2d 300 (1984). “A charge must be considered as to its probable effect on the jury in guiding them to the correct verdict in the case.” Id.

We conclude that the trial court’s instruction on the defense of mistake of law was adequate. The trial court properly refused to instruct the jury, as the defendant requested, that Landon’s comment constituted an official statement made during the course of his employment. Under the circumstances of this case, the court was correct in finding that this question was one of fact for the jury to decide.

The defendant’s final claim with respect to the jury instructions is that the charge was unfairly weighted in favor of the state, confusing, and led to injustice. The defendant has not pointed to any particular portions of the charge as misleading, confusing or unfair. The only argument presented by the defendant in support of this claim is that the verdicts in this case were inconsistent. It is well settled that consistency in verdicts is not required. State v. Dumlao, 3 Conn. App. 607, 625, 491 A.2d 404 (1985). This claim is, therefore, without merit.

The defendant’s fourth claim is that the trial court erred in refusing to suppress oral statements he made to Officer Roy Dudzik prior to his arrest which, he argues, were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant asserts that his prearrest discussions with Dudzik amounted to a custodial interrogation because the atmosphere in which the discussions took place was coercive. This claim is without merit.

“ ‘Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody and (2) the defendant must have been subjected to police interrogation. Miranda v. Arizona, supra, 444.’ State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986); State v. Stankowski, 184 Conn. 121, 136, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). Custodial interrogation occurs when ‘ “questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, supra . . . .’ State v. Brown, supra. Although what constitutes police custody is not always self-evident, ‘the Miranda court was concerned with interrogation that takes place in a police dominated environment containing “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Miranda v. Arizona, supra, 467 . . . .’ State v. Januszewski, 182 Conn. 142, 158, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). The United States Supreme Court has held that ‘the only relevant inquiry [into custody] is how a reasonable man in the suspect’s position would have understood his situation.’ Berkemer v. McCarty, 468 U.S. 420, 422, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); State v. Brown, supra, 54. This court has stated that a ‘ “person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 553-54,100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); State v. Acquin, 187 Conn. 647, 655, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983); State v. Ostroski, 186 Conn. 287, 291-92, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982); State v. Derrico, 181 Conn. 151, 159, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).’ State v. Young, 191 Conn. 636, 651-52, 469 A.2d 1189 (1983). . . . We must look at the totality of the circumstances of the questioning in order to determine whether a ‘reasonable person’ would have construed those circumstances as placing him in a custody situation.” State v. Hoeplinger, 206 Conn. 278, 286-87, 537 A.2d 1010 (1988).

In determining whether a trial court erroneously denied a motion to suppress the oral statements of a defendant, we must scrupulously examine the record in order to ascertain whether its factual findings, made in reaching that conclusion, are supported by substantial evidence. State v. Schifflett, 199 Conn. 718, 723, 508 A.2d 748 (1986). We have reviewed the record in this case and conclude that the trial court’s finding that the defendant was not in custody was supported by substantial evidence.

There was evidence presented during the suppression hearing that, after shooting the dog, the defendant reported the incident to the police. When Officers Dudzik and Charles Utz arrived at the defendant’s home, they parked their police cruiser, with lights flashing, at the foot of the defendant’s driveway. Before the officers reached the defendant’s home, he came out of his house and met them in the driveway. The defendant told the officers that he had shot the dog. The defendant then accompanied the officers to the cornfield across from his house, and showed them the location of the dead dog. At Dudzik’s request, the defendant produced the gun he had used to shoot the dog. The trial court found that the defendant was never told to remain in the area and was at all times, until his arrest, free to leave. The court concluded that the defendant made the statements voluntarily and that, under the circumstances presented here, no reasonable person would have felt that his attendance was compelled.

The defendant does not contest these facts but rather argues that he was compelled to remain in the vicinity, to answer questions and to do what he was told, by virtue of the nature of the coercive atmosphere created by the presence of the police. The only evidence of coercion, however, is the defendant’s assertions that the police were not “amicable,” and that he felt he had no choice but to be cooperative.

Although the defendant’s impressions are relevant to the inquiry of whether the defendant was in custody, they are not, as the defendant asserts, the determining factor, and alone are not sufficient to establish a custody situation. Instead, we examine the totality of the circumstances to determine whether a reasonable person, under the same circumstances, would not have felt free to leave. State v. Hoeplinger, supra, 276.

The question of whether a person has been “seized” for purposes of determining whether he or she was in custody is a question of fact. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1980). The trial court specifically found the defendant’s testimony at the suppression hearing, to the effect that he felt intimidated, not credible. We will not reexamine the trial court’s determination as to the credibility of witnesses. State v. DeForge, 194 Conn. 392, 398, 480 A.2d 547 (1984).

Furthermore, the situation presented in this case is not of the type that the Miranda court intended to deter. The mere fact that an officer dressed in uniform and arriving in a police cruiser questions a person is not enough to trigger Miranda warnings. “ ‘Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. . . . [P]olice officers are not required to administer Miranda warnings to everyone they question’ State v. Januszewski, supra, 159, quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). “ ‘Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.’ ” State v. Brown, 199 Conn. 47, 52-53, 505 A.2d 1225 (1986), quoting Florida v. Royer, 460 U.S. 491, 497,103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). We conclude that there was substantial evidence to support the trial court’s finding that the defendant was not in custody.

The defendant’s final claim is that the trial court improperly excluded a business record. The following facts are relevant to this issue. On direct examination of Milo Pacquin, an animal control officer, the defendant attempted to introduce under the business records exception to the hearsay rule, an infraction report that the witness had prepared. The report contained information regarding an incident in which Pacquin had investigated a complaint made by the defendant that the dog was on his property. As a result of this incident, Pacquin issued an infraction against the dog’s owner and prepared the report at issue. On direct examination, Pacquin testified to these events. The trial court ruled that the document was a business record but excluded it, nevertheless, on the grounds that the report was irrelevant and not the best evidence.

Although we agree with the defendant that evidence of the dog’s prior incursions onto his property was relevant to his defense of justification, pursuant to General Statutes § 22-358, we conclude that the exclusion of this evidence was harmless. Because other testimony of the events described in the infraction report was already in evidence and the document’s author had already given a verbatim account of the report’s contents, further evidence on this issue would have been cumulative. State v. Day, 12 Conn. App. 129, 135, 529 A.2d 1333 (1987). Therefore, since the defendant has not sustained his burden of demonstrating the harmfulness of this error to his case, his conviction must stand. See State v. Ruth, 181 Conn. 187, 199-200, 435 A.2d 3 (1980).

There is no error.

In this opinion the other judges concurred.

       The defendant was acquitted of the first two counts of the information, namely, cruelty to animals; General Statutes § 53a-247; and criminal mischief in the third degree; General Statutes § 53a-117 (a) (1).

       “[General Statutes] Sec. 53-203. unlawful discharge of firearms. Any person who intentionally, negligently or carelessly discharges any firearm in such a manner as to be likely to cause bodily injury or death to persons or domestic animals, or the wanton destruction of property shall be fined not more than two hundred fifty dollars or imprisoned not more than three months or both.”

       The defendant makes two claims which are not reviewable because he failed to brief them properly. First, the defendant asserts that it was error for the trial court to deny his pretrial motion to dismiss because General Statutes § 22-358 provides a complete defense to the crimes charged. As a general rule, the denial of a motion to dismiss is not reviewable unless it involves a fundamental constitutional right. State v. Ramos, 201 Conn. 598, 601-602, 519 A.2d 9 (1986). In the defendant’s scant analysis of this issue, he merely states that the trial court’s denial of his motion was “arbitrary and capricious, and constituted an error of law.” He does not even attempt to attach a constitutional label to his claim. The plaintiff has provided us with no legal authority or analysis in support of this claim. See
        State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987); State v. Smith, 10 Conn. App. 624, 635, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987). We, therefore, decline to address this claim.
      The defendant’s second claim, that he was denied his right under the fifth and fourteenth amendments to the United States constitution to present a defense, is similarly not reviewable. The defendant has failed to comply with the mandatory rules of procedure for briefing evidentiary claims pursuant to Practice Book § 4065, and we therefore have nothing to review. In his brief, the defendant states that on thirty-two occasions he was denied the opportunity to present evidence of his defense of justification and includes only one verbatim account of such a ruling as an example. The defendant did not cite to the specific page numbers in the transcript of the rulings he objects to, nor did he include these sections of the transcript in his appendix, as required by Practice Book § 4065. Absent references to the particular questions, offers of proof, and rulings that constitute the defendant’s claim, we are unable to review it.
      Our rules of practice are clear that “[ejvidence relevant to the error must be printed in narrative form with appropriate references to the transcript.” State v. Ramsundar, 204 Conn. 4, 17, 526 A.2d 1311 (1987). “The bare assertion in a brief that the evidence was improperly excluded, coupled with transcript page references, will not suffice. ... It is our strong policy that rulings claimed as evidentiary errors to be reviewed by this court be provided and printed in the briefs as required and outlined by the Practice Book.” (Citation omitted.) State v. Seller, 12 Conn. App. 395, 402, 530 A.2d 1106 (1987); Osborne v. Osborne, 2 Conn. App. 635, 641, 482 A.2d 77 (1984). We have found that strict compliance with the Practice Book § 4065 does not cause surprise or injustice, "especially when the claim of error relates to a matter which lies largely in the discretion of the trial court.” Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 242-44, 522 A.2d 829 (1987).

       General Statutes § 22-358 provides in pertinent part: “killing of dogs doing damage, quarantine of biting dogs, notice, (a) Any owner or the agent of any owner of any domestic animal or poultry, or the chief canine control officer or any canine control officer or any warden or regional canine control officer, may kill any dog which he observes pursuing or worrying any such domestic animal or poultry. . . .
      “(d) Any person who kills any dog in accordance with the provisions of this section shall not be held criminally or civilly liable therefor.”

       “[General Statutes] Sec. 53a-16. .justification as defense. In any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense.”

       Section 53a-19 provides in pertinent part: “(a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” (Emphasis added.)

         General Statutes § 53a-6 (b) provides in pertinent part: “A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless (1) the law provides that the state of mind established by such mistaken belief constitutes a defense, or unless (2) such mistaken belief is founded upon an official statement of law contained in a statute or other enactment, an administrative order or grant of permission, a judicial decision of a state or federal court, or an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.”

       The trial court gave the jury the following instruction as to the defense of mistake of law: “The second defense asserted by the defendant is a justifiable mistake of law. In that regard ordinarily a mistake of law, even if it is an honest mistake of law, is not a valid defense to a crime. . . .
      “But we do have a special law in Connecticut, section [53a-6 (b)] of our general statutes which provides in part as follows. A person shall not be relieved — again they’re using a double negative — a person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not as a matter of law constitute an offense unless — another way that they might have said that is that you could be relieved of criminal liability if — and now is the important part and I’m going to skip one because it is not applicable — number two, such mistaken belief is founded upon an official statement of law contained in a statute or other enactment, an administrative order or grant of permission, a judicial decision of a state or federal court, and none of those really apply to this case. And now the one that seems to be in question here, or an interpretation of the statute or law relating to the offense officially made or issued by a public servant, agency or body legally charged and empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.
      “Now, you remember the testimony that relates to this. The officer told you his side of it on the one hand and Mrs. Fiocchi and Mr. Fiocchi told you their version on the other and it’s up to you to decide in your fact finding capacity who to believe and who not to believe and what facts actually were true.
      “Under this second defense as related to this case the defendant would be relieved of criminal responsibility for his conduct if the following elements are found.
      “Number one, he acted under a mistaken belief that killing the dog did not as a matter of law constitute a criminal offense. Number two — and this is an and, not an or — the mistaken belief is founded upon the official statement of law. It has to be an official statement of law. And, number three, the official statement of law is contained in an interpretation of the statute of law relating to an offense officially made or issued by a public servant legally charged with enforcing the law.
      “So you have three elements there to think about. He has to have been mistaken. The mistake has to have been founded on an official statement of law and the official statement of law has to have been made officially by a public servant whose job it is to enforce the law.
      “Again, no definitions are specifically provided by the legislature and you should use the ordinary meaning of these words in applying the rule.
      “The statute uses both the phrases official statement and officially made to describe the interpretation of the law. It will be your responsibility to determine as a matter of fact in this case from all the evidence whether such a statement was officially made.
      “Ballantine’s Law Dictionary, fourth edition, defines official act as, ‘An act done by an officer in his official capacity under color and by virtue of his office.’
      “Again, since the defendant has raised this defense of mistake of law the state has the burden of disproving the defense beyond a reasonable doubt. In other words you cannot find the defendant guilty of any of the three charges unless upon all the evidence you are satisfied beyond a reasonable doubt that he was not mistaken as to the law by an official statement contained in interpretation of the statute of law officially made by a public servant as most particularly set forth in the statute read to you previously.”
      After the jury retired to deliberate, it requested further clarification on what was meant by “official.” The court then repeated its earlier charge.

       The defendant makes a related claim that it was error for the trial court to deny his request for a second suppression hearing with respect to prearrest oral statements made to the animal control officer. We conclude that the trial court did not abuse its discretion in denying this motion on the grounds that it was untimely and that the issues had been adequately determined by its earlier ruling. Practice Book §§ 811, 824.

       The state does not contest the fact that the best evidence rule was not the proper ground for excluding the report. See C. Tait & J. LaPlante, Connecticut Evidence (1988) § 10.10.


text:
    State of Connecticut v. Phu Dinh Le
    (6571)
    Boeden, Spallone and Foti, Js.
    Argued October 6, 1988
    decision released January 17, 1989

      Robert Farr, for the appellant (defendant).

      Paul Ferencek, deputy assistant state’s attorney, with whom were Susann E. Gill, assistant state’s attorney, and, on the brief, T. R. Paulding, Jr., deputy assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from a judgment of conviction, rendered after a trial to the court, of unlawful restraint in the first degree in violation of General Statutes § 53a-95 and breach of peace in violation of § 53a-181. The only issue raised on appeal is whether the trial court erred in finding that intent is not an essential element of the crime of unlawful restraint. We find error.

The trial court found the following facts. On November 29, 1986, the defendant attended a dance in East Hartford. While at the dance, Viet Nguyen, who was accompanied by the defendant, approached the victim and blew smoke in his face. Later that evening, as the victim and his wife were leaving the hall, the defendant seized the victim from behind and told him to exit the premises. The victim responded: “Fine — let’s get my wife and we’ll get out of here; there’s no sense of anything happening or anybody getting hurt real bad or going to jail.” The defendant and the victim proceeded out of the building into the parking lot, with the victim remaining in the defendant’s grasp. As they approached the victim’s car, a group of people were waiting, including Nguyen, who kicked the victim. The defendant placed the victim in a headlock, and the victim was struck by another party. Eventually, the victim broke free of the defendant’s grasp and began to defend himself. At that point, the altercation ended.

The defendant’s defense at trial was that he was not an active participant in the assaults of the victim, but instead was attempting to break up the fight. The only disputed issue at trial, therefore, was the defendant’s intent.

In its decision, rendered orally, the trial court found that intent was not an essential element of the crime of unlawful restraint. In particular, the trial court stated: “I’m not sure what his intentions were. But we have a situation here under the penal code where we have a section that doesn’t call for intent.” The defendant claims that this conclusion was erroneous and denied him his right to a fair trial. We agree.

Before turning to the merits of the defendant’s appeal, we address the issue of reviewability. The defendant, by neither objecting to the trial court’s remarks when made nor moving for a new trial pursuant to Practice Book § 902, failed to preserve this issue properly for appeal. While it is the general practice of this court not to review claims not distinctly raised at trial; Practice Book § 4187; State v. Chapman, 16 Conn. App. 38, 48, 546 A.2d 929 (1988); State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951 (1988); we may, in the interests of justice, notice plain error not brought to the trial court’s attention. Practice Book § 4187; State v. Eric T., 8 Conn. App. 607, 614, 513 A.2d 1273 (1986). Because we find that the defendant’s claim is one that involves a “truly extraordinary [situation], where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings”; State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); we will, to avoid a miscarriage of justice, invoke our discretionary authority.6 Practice Book § 4187; State v. Eric T., supra, 614; Barca v. Barca, 15 Conn. App. 604, 606, 546 A.2d 887 (1988); see also State v. Turello, 183 Conn. 330, 332, 439 A.2d 364 (1981) (trial court’s incorrect interpretation of a statute found to be plain error); State v. Burke, 182 Conn. 330, 331, 438 A.2d 93 (1980) (trial court’s noncompliance with a mandatory statute found to be plain error).

We now turn to the merits of the defendant’s claim. The trial court explicitly found, in its oral decision, that there was no mens rea element required to find the defendant guilty of unlawful restraint. The plain language of the statute renders this finding erroneous. A person is guilty of unlawful restraint in the first degree when he or she “restrains another person under circumstances which expose the latter to a substantial risk of injury.” (Emphasis added.) General Statutes § 53a-95. General Statutes § 53a-91 (1), which applies to this section, defines the word “restrain” as restricting “a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty . . . .” (Emphasis added.) The use of the word “intentionally” within the statutory language of unlawful restraint requires proof of a specific intent by virtue of General Statutes § 53a-5. See State v. Shaw, 186 Conn. 45, 53, 438 A.2d 872 (1982); State v. Davis, 13 Conn. App. 667, 672, 539 A.2d 150 (1988). We conclude that because unlawful restraint is a specific intent crime it was error for the trial court to rule that intent was not an element which was required to be proven beyond a reasonable doubt. The defendant is therefore entitled to a new trial.

There is error, the judgment is set aside as to the conviction of unlawful restraint and the case is remanded for a new trial on that charge.

In this opinion the other judges concurred.

       The defendant was acquitted of the charge of disorderly conduct in violation of General Statutes § 53a-182.

       “[General Statutes] Sec. 53a-95. unlawful restraint in the first degree: class d felony, (a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.
      “(b) Unlawful restraint in the first degree is a class D felony.”
      General Statutes § 53a-91 (1) defines “restrain”: “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in a place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (a) deception and (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.”

       “[General Statutes] Sec. 53a-181. breach of peace: class b misdemeanor: (a) A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or his property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public, hazardous or physically offensive condition by any act which he is not licensed or privileged to do.
      “(b) Breach of peace is a class B misdemeanor.”

       A more detailed rendition of the factual circumstances of this case is reported in State v. Nguyen, 17 Conn. App. 234, 552 A.2d 823 (1988). The defendant and Viet Nguyen were tried together for violations stemming from the same incident, but the two filed separate appeals.

       The trial court made the following finding with respect to the essential elements of unlawful restraint: “Mr. Le is the one who presents the greatest amount of difficulty for me. The only reason that I could find him guilty of the unlawful restraint in the first degree is because of the fact that there are people, at least two people, who testified of a headlock.
      “All the statute requires is a restraint in a situation where he’s exposed to danger or with substantial risk of physical injury. And a headlock when you have eight or ten people on you which would immobilize you and give them the opportunity to continue their assaults to me would be exposing that person who’s being in the headlock to serious physical injury or substantial risk of serious — physical injury. I don’t want to put in the word serious because it’s not required. And a physical injury could be a black eye or a punch in the nose or almost anything.
      “I’m not sure what his intentions were. But we have a situation here under the penal code where we have a section that doesn’t call for intent. He might have been acting with the best of intentions but he created a situation that fits right within the purview of the statute.”

       We emphasize that invocation of our supervisory authority to notice plain error is the exception and not the rule. This exception is not designed to “protect defendants or their counsel who, ‘through neglect or inattention as a trial strategy refrain from making [a] proper objection or raising in the trial court any available constitutional defenses, confident that if the outcome of the trial proves unsatisfactory . . . they may still prevail by assigning error ... for the first time on appeal.’ ” State v. Cosby, 6 Conn. App. 164, 172-73, 504 A.2d 1071 (1988), quoting State v. Evans, 165 Conn. 61, 67, 327 A.2d 576 (1973).

       We note that the trial court’s written memorandum of decision, filed one year later at the request of this court, is not inconsistent with its oral finding.

       “[General Statutes] Sec. 53a-5. criminal liability; mental state required. When the commission of an offense defined in this title, or some element of an offense, requires a particular mental state, such mental state, is ordinarily designated in the statute defining the offense by use of the terms ‘intentionally,’ ‘knowingly,’ ‘recklessly’ or ‘criminal negligence,’ or by use of terms, such as ‘with intent to defraud’ and ‘knowing it to be false,’ describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.”

       It is evident from the language of the trial court’s oral decision; see footnote 5, supra; that it had difficulty determining the defendant’s guilt in this case. We therefore cannot find this error harmless. See State v. Brown, 187 Conn. 602, 613, 447 A.2d 734 (1982).


author: Daly, J.

text:
    Cabinet Realty, Inc. v. Planning and Zoning Commission of the Town of Mansfield et al.
    (6461)
    Spallone, Daly and Foti, Js.

      Argued November 7, 1988
    decision released January 17, 1989

      Steven R. Humphrey, with whom, on the brief, was Ann D. Dexter, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom, on the brief, was Maureen Sullivan Dinnan, for the appellee (named defendant et ah).

      James J. Szerejko, with whom, on the brief, was John B. Farley, for the appellees (Linwood A. Walters et ah).
   Daly, J.

The plaintiff appeals from the judgment rendered, after a jury trial, in favor of the defendants on its substituted complaint. The plaintiff claims that the trial court erred (1) in denying its motion to reinstate the first count of its revised complaint, (2) in allowing certain testimony into evidence, (3) in refusing to charge the jury that the commission lacked certain authority to act as it did, and (4) in its instructions to the jury. We find no error.

The following facts are pertinent to this appeal. The plaintiff was the developer of a 240 unit condominium project in Mansfield known as Freedom Greene. The plaintiff planned to build the project in five phases. The site plan approved by the defendant commission applied to all 240 units of the project, although construction was to proceed in different phases. As the development proceeded from phase to phase, there would be no need for the plaintiff to obtain further approval from the defendant commission as long as construction proceeded in accordance with the approved site plan. Any modification, however, required the commission’s approval. The first phase, known as Patriots Square, was constructed during 1981 and 1982. When construction was finished, the defendant Carl Panciera, the deputy building inspector and zoning enforcement officer for the town, issued certificates of zoning compliance. The Patriots Square units were subsequently sold and occupied.

The plans for the second phase, known as Constitution Square, envisioned units that would be 10 percent smaller than those in Patriots Square. The town planner advised the plaintiff that the planned reduction would not require site plan approval. In 1983, the plaintiff began construction of Constitution Square. When the seventeen units were nearly completed, Panciera issued certificates of zoning compliance for three units, which were then sold and occupied.

In late October, 1983, the defendant commission members made a field inspection trip to Freedom Greene because of community concerns that Constitution Square was substantially different from Patriots Square. The inspection revealed variations between the actual construction and the approved site plan. On November 2,1983, the defendant commission notified the plaintiff by letter that, due to the concerns of noncompliance raised by their visit, the commission had placed the issue of Constitution Square on its November 7, 1983 agenda and would take appropriate action at such time. At that meeting, which the plaintiff did not attend, the commission directed Panciera to prevent the occupancy of the remaining Constitution Square units by recording a notice of the commission’s conclusions on the town land records. This action was taken pursuant to the advice of Thomas Byrne, an attorney specializing in the area of zoning law. The variations from the site plan were listed in the notice, which was recorded on the Mansfield land records on November 8, 1983.

The plaintiff then filed this action and also sought and obtained a preliminary injunction ordering the defendant commission to remove the notice from the land records. At that time, however, the court refused to order the town to issue certificates of occupancy. Instead, the court directed the plaintiff to appeal to the Mansfield zoning board of appeals. The board of appeals upheld the withholding of the certificates of occupancy, and the plaintiff then appealed to the Superior Court. That appeal was settled in early 1985, whereby the plaintiff agreed to make certain modifications to the building and the defendant commission agreed to issue the certificates of occupancy as the changes were completed.

This case came to trial in July, 1987, on a three count substituted complaint that alleged tortious interference with business relations, unjust taking without compensation and slander of title. This appeal ensued after a judgment for the defendants.

I

The plaintiff’s first claim is that the trial court erred in refusing to reinstate a count of its complaint. In November, 1984, the plaintiff filed an eight count revised complaint. The first count of that complaint alleged a violation of 42 U.S.C. § 1983. The plaintiff specifically alleged that the actions of the defendant commission and its agents were taken under color of state law and deprived the plaintiff of an interest in its property in violation of its right to due process under the fifth and fourteenth amendments to the United States constitution.

In October, 1985, the trial court granted the defendants’ motion to strike the first count on the ground that a single incident did not constitute an official policy. In July, 1987, the plaintiff filed a motion to reinstate the first count based on intervening federal court decisions. That motion was denied by the trial court.

“A trial court has wide discretion in granting or denying amendments to the pleadings and rarely will this court overturn the decision of the trial court.” Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985). “Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.” Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-303, 460 A.2d 488 (1983).

The motion to reinstate was filed on the brink of trial. Moreover, the federal cases relied on by the plaintiff were decided sixteen and eight months, respectively, prior to plaintiff’s filing of the motion to reinstate. Under these circumstances, we cannot say the trial court abused its discretion in denying the motion to reinstate.

II

The plaintiff next challenges the trial court’s decision to allow certain testimony into evidence. On July 14, 1987, the trial court granted the plaintiff’s motion in limine. That motion directed the defendants to refrain from making any references in the jury’s presence to the plaintiff’s withdrawal of its administrative appeal against the Mansfield zoning board of appeals, to any negotiations or correspondence involved in the settlement of the appeal, or to any construction, repairs or alterations performed by the plaintiff in connection with the agreement to withdraw the appeal.

One of the plaintiff’s witnesses was Raymond Schneider, a principal of Cabinet Realty. During direct examination, Schneider testified about the final issuance in January, 1985, of the certificates of occupancy for Constitution Square and that, on behalf of Cabinet Realty, he had taken an appeal to the town zoning board of appeals. On cross-examination, the trial court permitted the defendants to inquire, over the plaintiff’s objections, about the changes which the plaintiff made to Constitution Square in order to obtain the certificate of occupancy.

The plaintiff has characterized this claim of error as a midtrial ruling that reversed the court’s earlier ruling on the motion in limine, and thereby prejudiced the plaintiff. We do not agree.

Cross-examination is permitted to explain any of a witness’s direct testimony. State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). A party who initiates discussion of an issue, whether on direct or cross-examination, is said to have “opened the door” to inquiry by the opposing party, and cannot later object when the opposing party so questions the witness. State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986).

The trial court did not err in permitting the challenged line of inquiry during the cross-examination of Schneider because the plaintiff “opened the door” by eliciting the testimony that it had taken an appeal to the zoning board of appeals. Moreover, the plaintiff was not prejudiced in any way by the introduction of the testimony. The plaintiff was free, on redirect examination, to rehabilitate its witness and elicit testimony as to why the plaintiff made the changes it did. This claim is meritless.

Ill

The plaintiffs next claim concerns the trial court’s failure to charge the jury, despite its request, that the commission exceeded its statutory authority by recording the notice of noncompliance on the land records. The trial court charged the jury on the provisions of General Statutes § 8-12, which sets forth the procedures to be used by a zoning commission when its regulations have been violated. The statute states that remedies for zoning violations include starting an action or proceeding to prevent the occupancy of the structure in addition to other remedies. General Statutes § 8-12. (Emphasis added.)

The use of land records has been recognized as a device that municipality can use to enforce its zoning regulations. See T. Tondro, Connecticut Land Use Regulation (1979) p. 212. The purpose of the recording system is to alert prospective purchasers to the status of the property and to provide security in land transactions. Sadd v. Heim, 143 Conn. 582, 585, 124 A.2d 522 (1956). Although the statutes do not define “other remedies,” as set forth in § 8-12, we can turn to the common usage of the words for guidance as to the meaning. See General Statutes § 1-1 (a). “Remedy” is defined as “something that corrects or counteracts an evil”; “the relief that may be given by a court for a wrong”; and “to give legal redress to.” Webster, Third New International Dictionary. We conclude that a municipality may, under the authority of § 8-12, direct its zoning enforcement officer to record a notice on the land records as a means by which to enforce compliance with its zoning regulations. Such a notice on the land records will alert prospective purchasers to zoning problems affecting the property and may discourage purchasers from buying property when a builder has not complied with the zoning regulations. Recording a notice on the land records is a legitimate remedy under § 8-12 available to a municipality as an enforcement mechanism for its zoning regulations. We conclude, therefore, that the trial court did not err in refusing to charge the jury that the zoning commission lacked authority to record the notice of noncompliance.

IV

The plaintiff raises several claims of error relative to the trial court’s instruction to the jury. Our standard of review applies with equal force to each claim. “ ‘ “To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. ... In considering the charge as a whole we eschew critical dissection . . . thereby not passing upon the instructions attacked in ‘artificial isolation’ from the whole charge.” ’ ” (Citations omitted.) State v. Reddick, 15 Conn. App. 342, 351, 545 A.2d 1109 (1988), quoting State v. Marshall, 3 Conn. App. 126, 129, 485 A.2d 930 (1985). “Jury instructions need ‘not be exhaustive, perfect or technically accurate,’ as long as they are ‘correct in law, adapted to the issues and sufficient for the guidance of the jury.’ ” (Citation omitted.) State v. Green, 11 Conn. App. 575, 580, 528 A.2d 855, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987). Our review of the transcript indicates that the court’s charge, read as a whole, was sufficient to guide the jury to correct a verdict.

There is no error.

In this opinion the other judges concurred.

       The defendants include (1) individual members of the Mansfield planning and zoning commission as of November, 1983, (2) the town of Mansfield and the planning and zoning commission, and (3) the town’s zoning enforcement officer and zoning agent.

       See Pembauer v. Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986); Sullivan v. Salem, 805 F.2d 81 (2d Cir. 1986).

       General Statutes § 8-12 provides in pertinent part: “If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. ...”

       Other methods of enforcement include certificates of occupancy, building and zoning permits and performance bonds. T. Tondro, Connecticut Land Use Regulation (1979) p. 213.

       We find it persuasive that General Statutes § 8-26c authorizes a planning commission to file on the land records a notice of the date after which its approval of a subdivision plan automatically expires unless all work is completed. The statute’s purpose is to enforce the land use regulations of the municipality. See T. Tondro, Connecticut Land Use Regulation (1979) p. 213 n.4.


author: Per Curiam.

text:
    Robinson Leech v. Zbigniew Rozbicki
    (6459)
    Spallone, Stoughton and Norcott, Js.
    Submitted on briefs December 8,1988
    decision released January 17, 1989

      Edward J. Daly and Francis J. MacGregor filed a brief for the appellant (defendant).

      Alfred B. Mencuccini and Stephanie M. Weaver filed a brief for the appellee (plaintiff).
   Per Curiam.

This is an appeal from a judgment rendered for the plaintiff upon a jury verdict. By revised complaint, the plaintiff, a real estate agent, claimed that the defendant tortiously interfered with a contractual relationship by inducing the plaintiffs customer, Helen Huybrechts, to breach her contract with the plaintiff.

The defendant claims that the trial court erred (1) in denying his motions for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict, which were predicated on insufficiency of the evidence, (2) in allowing an amendment of the complaint late in the trial, (3) in refusing to submit requested interrogatories to the jury, and (4) in admitting a mortgage application into evidence.

On appeal, rulings on such matters will be disturbed only upon a showing of a clear abuse of discretion. See State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); Wassell v. Hamblin, 196 Conn. 463, 466, 493 A.2d 870 (1985); Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982); Hartford v. Anderson Fairoaks, Inc., 7 Conn. App. 591, 595, 510 A.2d 200 (1986).

Our review of the record indicates that there was sufficient evidence to support the jury’s verdict and therefore to support the court’s denial of the defendant’s motions. It indicates that the court acted within its broad discretion in allowing an amendment to the complaint under Practice Book § 178. We also conclude that the court did not abuse its discretion in refusing to submit the requested interrogatories on issues that were either covered by the court’s jury instructions or that had become moot with the amendment of the complaint, or in admitting the mortgage application under the business records exception to the hearsay rule.

There is no error.


text:
    Stephen Hirsch v. Nunzio Squillante et al.
    (6526)
    Dupont, C. J., Daly and Norcott, Js.
    Argued November 17, 1988
    decision released January 24, 1989

      Patrick Tomasiewicz, for the appellant (plaintiff).

      Ralph G. Eddy, for the appellees (defendants).
   Norcott, J.

On appeal from a judgment rendered for the defendants in a negligence action, the plaintiff claims that the trial court erred in granting the defendants’ motion for a directed verdict and in denying the plaintiffs motions for a continuance, for a mistrial, and for a polling of the jury, and his motion to set aside the verdict. We find error.

The facts in this case are not in dispute. The plaintiff alleged that the defendants, Nunzio Squillante and the Admiral Trucking Company, Inc., were responsible for injuries and losses he suffered when he was struck by a vehicle owned by the corporation and operated by Squillante. On the last day of the jury trial, October 22, 1987, the plaintiffs treating orthopedic surgeon, Kevin Dowling, appearing voluntarily, testified that the accident was the proximate cause of the plaintiffs injuries. Dowling’s testimony was the only evidence at trial that linked the plaintiff’s injuries to the accident. Before the plaintiff had completed the direct examination of Dowling, the trial court ordered a luncheon recess. Dowling then abruptly and adamantly refused to return after the recess, claiming a conflict between the demands of his medical practice and the time taken by his testimony in many court cases.

Following the luncheon recess, the defendants moved for a mistrial claiming that they were prejudiced by their inability to cross-examine Dowling. The plaintiff, in turn, moved for a continuance and a polling of the jurors to ascertain whether they would extend service beyond their normal term which was to end the next day, Friday, October 23, 1987. In the alternative, the plaintiff moved for a mistrial because of the extraordinary circumstances that had developed. The trial court treated the motions for mistrial as a “joined” motion and denied all motions of both parties. The court then struck Dowling’s uncompleted direct testimony and, upon motion by the defendants, ordered a directed verdict in their favor, reasoning that there was no other proof that the plaintiffs injuries were caused by the accident. The plaintiff then moved to set aside the verdict. The trial court denied the plaintiffs motion and this appeal followed.

The plaintiff first claims that the trial court erred in denying his motion for a continuance. He argues that the court’s denial of his request for time to subpoena Dowling after his abrupt departure unjustly prejudiced him.

“A motion for continuance is addressed to the discretion of the trial court and its ruling will not be overturned absent a showing of clear abuse of that discretion.” Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011 (1984), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1985); Atkins v. Atkins, 13 Conn. App. 114, 117, 534 A.2d 909 (1987). In our review of the trial court’s ruling on a motion for continuance, “[e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980). The record indicates that the trial court based its denial of the plaintiff’s request for a continuance on the following determinations: (1) the jurors would have been unwarrantedly inconvenienced by service beyond their normal term; (2) the defendant Squillante would be unavailable the following week because of previously scheduled appointments for a serious medical condition; and (3) the plaintiffs predicament was of Ms own making in that he had failed to subpoena Dowling initially. The court concluded that, given the circumstances before it, a continuance was “not permissible.” On the basis of the standards governing the trial court’s discretion on a motion for continuance, we cannot say that the trial court clearly abused its discretion in denying the continuance. See State v. McKnight, 191 Conn. 564, 576-77, 469 A.2d 397 (1983); State v. Chapman, 16 Conn. App. 38, 546 A.2d 929 (1988).

The plaintiff next claims that the trial court erred in denying his motion for mistrial. We first note that it was the defendants who, recognizing the bizarre turn taken by the trial, first moved for a mistrial on the basis that they were prejudiced by not having an opportunity to cross-examine Dowling. The court considered the plaintiff’s motion for mistrial as joined with that of the defendants, and concluded that, notwithstanding Dowling’s conduct, a fair trial was still possible if proper jury instructions were given. In fact, no jury instructions were given, because the court thereafter ordered the jury to return a verdict in the defendants’ favor.

“ ‘ “The general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial and whole proceedings are vitiated.” Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433 [1947]. The granting of such a motion rests largely in the discretion of the trial court. State v. Williamson, 134 Conn. 203, 204, 56 A.2d 460 [1947].’ "Dreier v. Upjohn Co., 196 Conn. 242, 251, 492 A.2d 164 (1985). “[H]owever, discretion should be exercised so as to accomplish the ends of substantial justice.” Atkins v. Atkins, supra, citing State v. Battle, 170 Conn. 469, 476, 365 A.2d 1100 (1976). In this case, there is no dispute that the court and both parties were confronted with an extraordinary situation when Dowling unexpectedly left the courtroom. We are unpersuaded by the argument, for which the defendants cite no support, that the plaintiff should suffer the fatal consequence of a directed verdict because he failed to subpoena a voluntary witness who unexpectedly leaves the court in midtestimony.

“Some witnesses, not parties to the cause, come to court willingly. Others, for many reasons, from unwillingness to employer’s demands, can only become available because they are ordered to appear under subpoena.” B. Holden & J. Daly, Connecticut Evidence (1988) § 122b. Although our Supreme Court has held that, in failing to subpoena a necessary witness who does not appear at trial, a party has acted at its own peril; State v. Bennett, 171 Conn. 47, 58, 368 A.2d 184 (1976); Teitelman v. Bloomstein, 155 Conn. 653, 662, 236 A.2d 900 (1967); this is not such a case. Dowling appeared at the trial voluntarily, began his testimony and gave no warning that he would not complete it.

We conclude that the plaintiff’s failure to subpoena the witness, in reliance on assurances that he would testify voluntarily, should not have resulted in a directed verdict. The granting of a mistrial would have recognized the unusual procedural situation in this case and would have placed the parties in the same position they were in before the trial began. Under the unique circumstances of this case, we conclude that the denial of the joined motions for mistrial and the granting of the defendant’s motion for directed verdict was error.

There is error, the judgment is set aside and the case is remanded with direction to grant the motion for mistrial.

In this opinion the other judges concurred.

       The city of Hartford was a named defendant in the action but, although the record before us does not so indicate, counsel for all parties agree that the plaintiff withdrew the action as to the city prior to trial.

       A review of the record reveals that the plaintiff filed a motion to set aside the verdict more than five days after judgment in violation of Practice Book § 320. The defendant, however, failed to raise the issue of the untimeliness with the trial court. Accordingly, the defendant’s argument that we may only extend plain error review to this appeal is without merit. See Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 108 n.3, 544 A.2d 170 (1988).

       Given this decision, we need not reach the plaintiff’s claim that the trial court erred in refusing to poll the jury.