text:
    Joseph Meyer v. John T. Barnes
    (2419)
    Dannehy, C.P.J., Dopont and Borden, Js.
    Argued June 7
    decision released September 4, 1984

      Brian M. Gildea, with whom, on the brief, was Michael P. Foley, for the appellant (defendant).

      Steven J. Errante, for the appellee (plaintiff).
   Per Curiam.

This appeal was taken by the defendant from the judgment rendered on the jury’s verdict in a negligence action arising out of a collision between the parties’ motor vehicles. The plaintiff alleged in his complaint that the defendant’s negligence was the proximate cause of the accident. The defendant denied the plaintiff’s allegations of negligence and interposed two special defenses to the plaintiff’s complaint. One of the special defenses was that the plaintiff’s negligence was the proximate cause of the accident and the other alleged that the accident was unavoidable.

On appeal, the defendant contends that the trial court erred in denying his motion for a directed verdict and his motion to set aside the verdict. He claims that the evidence introduced was insufficient as a matter of law to support a finding that the defendant was negligent.

In reviewing a jury verdict on a claim of insufficiency of the evidence, “ ‘the evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.’ ” Kalleher v. Orr, 183 Conn. 125, 126-27, 438 A.2d 843 (1981); Rapuano v. Oder, 181 Conn. 515, 517, 436 A.2d 21 (1980); Sauro v. Arena Co., 171 Conn. 168, 169, 368 A.2d 58 (1976).

From the evidence presented, the jury could have reasonably found the following facts: On January 25,1978, at approximately 6:15 a.m., the plaintiff, owner and operator of a 1976 Dodge Aspen, was traveling in a westerly direction on Interstate 95 in the town of Bran-ford and in the vicinity of exit 53. The defendant, owner and operator of a tractor trailer, was also traveling in a westerly direction in the same place and at the same time. The roads in the center of Branford at approximately 5:45 a.m. were icy, and Interstate 95 was icy at the time of the accident. The plaintiff, while entering onto the interstate, determined that he had to travel at a slow speed; he saw accidents ahead and cars pulled off onto the right shoulder. The plaintiff, after traveling less than a quarter of a mile in two or three minutes, turned on his flashers and pulled off to the right shoulder of the highway. As the plaintiff was coming to a stop or had stopped, the defendant’s vehicle collided with his vehicle. The impact, which was of great force, was to the left rear of the plaintiff’s vehicle. The impact drove the plaintiff into the dashboard of his car. The left rear and the right front of the plaintiff’s vehicle were damaged. The damage to the right front was from the impact of the collision, which caused the right front of the plaintiff’s vehicle to strike a guardrail. The defendant’s tractor trailer had jackknifed and the tractor was pointing in an easterly direction after the accident. The plaintiff then approached the defendant and said “You hit me.” The defendant replied, “I got to get my load to New York.”

The plaintiff alleges in his complaint that the defendant was negligent in one or more of five ways. One of the allegations concerned the.defendant’s failure to keep his vehicle under proper control and another concerned the defendant’s operating his vehicle at too high a rate of speed, having due regard for the traffic, weather, width and use of the highway.

“The test with reference to speed is that rate of movement which is reasonable under all the circumstances and is that speed at which a reasonably prudent person would operate under similar or like conditions.” Madow v. Muzio, 176 Conn. 374, 379, 407 A.2d 997 (1978). Solely circumstantial evidence, without expert testimony, can prove unreasonable speed. Id.; Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318, 240 A.2d 881 (1968). The jury can, given appropriate circumstances, infer from the physical damage to a vehicle that a party was traveling at an unreasonable speed. Terminal Taxi Co. v. Flynn, supra. Those circumstances are presented here.

The jury could also consider the defendant’s response to the plaintiff’s statement to the defendant which was made immediately after the accident. Although capable of more than one construction, the jury could reasonably have construed it as an indication that the defendant was in a hurry and was travelling at an unreasonable speed, given the prevailing conditions. Further, the jury could consider that the plaintiffs vehicle was struck while on the right shoulder of the road and was propelled into the guardrail.

On the issue of proper control, the jury was aware that the plaintiff was able to enter Interstate 95 and control his vehicle under the same weather conditions. They knew that the defendant’s vehicle jackknifed and ended up facing the opposite direction. Further, there was evidence from which the jury could infer that the defendant was cognizant of the hazardous road conditions prior to reaching this point on the road. The plaintiff testified that the road conditions in Branford, more than one half hour before the accident, were icy and that when he entered Interstate 95 he observed accidents ahead and cars pulled off to the side.

There was sufficient evidence on either or both of these two allegations for the jury to conclude that the defendant was negligent. The verdict was a general one and the jury could have found the defendant negligent in any one of the ways as alleged in the plaintiffs complaint. Preisner v. Illman, 1 Conn. App. 264, 266, 470 A.2d 1237 (1984). Where a jury could have reasonably reached its conclusion, its verdict should not be disturbed. Id., 267.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The case cited by the defendant, Toomey v. Danaher, 161 Conn. 204, 286 A.2d 293 (1971), is distinguishable on its facts. Toomey involved a one car accident on a limited access highway where the car hit a guardrail. The weather conditions at the time of the accident were not mentioned, but apparently were immaterial to the decision. Further, the vehicle in that case had a fiberglass body. From those circumstances, the court determined that a much higher reasonable speed was applicable than the reasonable speed applicable in Terminal Taxi Co. v. Flynn, 156 Conn. 313, 240 A.2d 881 (1968). Accordingly, it found that the nature and extent of the physical damage to the vehicle alone could not establish unreasonable speed.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Coastal Suburban Builders, Inc., et al. v. Planning and Zoning Commission of the Town of East Haven
    (2374)
    Dannehy, C.P.J., Borden and Spallone, Js.
    Argued June 12
    decision released September 4, 1984

      Roger J. Frechette, for the appellants (plaintiffs).

      Michael A. Albis, with whom was Hugh F. Keefe, for the appellee (defendant).
   Spallone, J.

This is an appeal from the denial of the plaintiffs’ petition for a writ of mandamus.

On June 14, 1980, the plaintiffs filed an application with the defendant planning and zoning commission to rezone a parcel of real estate, located in the town of East Haven, from an R-4 zone to a DRA-1 zone. They also applied, on that date, for a special exception for a multi-family use which would permit them to construct a sixty unit condominium complex on the property. The change of zone from R-4 to DRA-1 was a condition precedent to the granting of the application for a special exception.

On September 17,1980, the defendant held a public hearing on both of the applications. On November 5, 1980, the defendant denied the plaintiffs’ application for a change of zone from R-4 to DRA-1. The plaintiffs appealed from that decision alleging that the defendant acted illegally, arbitrarily and in abuse of its discretion in denying their application for a change of zone, and they petitioned for a writ of mandamus directing the defendant to grant the special exception on the basis that no public hearing had been held within the sixty-five day period set forth in the East Haven zoning regulations.

The zoning appeal and the mandamus action were consolidated for trial and, on May 13,1982, judgment was rendered dismissing the administrative appeal and denying the application for a writ of mandamus. The plaintiff has appealed from the trial court’s decision denying the writ of mandamus.

While conceding that the special exception they sought is not available in an R-4 zone, the plaintiffs argue that the application for the zone change, as well as for the special exception, should be automatically granted under General Statutes § 8-3 (g) because the defendant failed to take any action within the time provided by the zoning regulations and by General Statutes § 8-7d (b). We find no support in the statutes, the zoning regulations or case law for this position.

When formulating zoning regulations, including the establishment of particular zones and the designation thereof, a local zoning authority is acting in its legislative capacity. Parks v. Planning & Zoning Commission, 178 Conn. 657, 660, 425 A.2d 100 (1979). It does so when it amends as well as enacts its regulations. Id.; Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 158, 292 A.2d 893 (1972); Malafronte v. Planning & Zoning Board, 155 Conn. 205, 208-209, 230 A.2d 606 (1967); Pierrepont v. Zoning Commission, 154 Conn. 463, 468, 226 A.2d 659 (1967). The discretion of a zoning commission is broad; Malafronte v. Planning & Zoning Board, supra, 209; and courts can grant relief on appeal only when the local authority has acted arbitrarily or illegally and has thus abused the discretion vested in it. Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 470, 442 A.2d 65 (1982); Summ v. Zoning Commission, 150 Conn. 79, 89, 186 A.2d 160 (1962).

Because a change of zone falls within the scope of the defendant’s legislative function and requires the use of its discretion, any time requirement imposed upon it must be directory rather than mandatory. Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967). Decisions of a zoning commission are valid where they are concerned with applications for changes of zone and amendments to zoning regulations even where decisions have not been made in accordance with the strict statutory timetable. Morningside Assn. v. Planning & Zoning Board, supra, 157; Chesson v. Zoning Commission, 157 Conn. 520, 527, 254 A.2d 864 (1969); Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956).

The cases relied on by the plaintiff all deal with site plans and not with zone changes. In both Shapero v. Zoning Board, 192 Conn. 367, 472 A.2d 345 (1984), and Vartuli v. Sotire, 192 Conn. 353, 472 A.2d 336 (1984), which dealt with the approval of site plans under the Coastal Management Act, the court found automatic approval only because the local boards were acting in their administrative, rather than in their legislative, capacity.

Where the board is engaging in an administrative function and need only determine whether the applicant has met the specific standards set forth in the regulations, the imposition of automatic approval upon the board’s failure to act within the statutorily determined time is reasonable and rational. Where the board is acting in its legislative capacity and lawfully exercising its broad discretion, however, an automatic approval of an application for newly proposed legislation, merely because of the passage of time, would constitute an unwarranted diminution of the board’s ability to function as a legislative body. For these reasons, we cannot say that the trial court erred in holding that the plaintiffs were not entitled to an automatic change of zone.

Because the application for a zone change was never granted, either by the board or by operation of law, this court will not find error in the trial court’s denial of the writ of mandamus. The special exception which the plaintiffs sought was not allowed in an R-4 zone. If the exception had been granted, the defendant would have clearly abused its discretion. We cannot compel the performance of an unlawful act. Stolberg v. Caldwell, 175 Conn. 586, 612, 402 A.2d 763 (1978).

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Under § 23.5 of the zoning regulations of the town of East Haven, only single family dwellings may be constructed in an R-4 zone. Multi-family residences are allowed in DRA-1 zones under § 23.9 of those regulations.

       Section 32.8 of the zoning regulations of the town of East Haven provides in pertinent part: “The Commission shall act within 65 days of receipt of complete Detailed Plans. . . . Failure of the Commission to so act within the 65 day period or any extension thereof shall be considered as an approval . . . .”

       General Statutes § 8-3 (g) provides in pertinent part: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d.”

       See footnote 3, supra.

       General Statutes § 8-7d (b) provides in pertinent part: “Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for a proposed building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan.”

       General Statutes § 22a-90 et seq.


author: Per Curiam.

text:
    Mary Rybinski v. Supermarkets General Corporation
    (2453)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued June 14
    decision released September 4, 1984

      Kevin T. Nixon, for the appellant (plaintiff).

      Thomas L. Brayton, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from a judgment rendered for the defendant on a general jury verdict, after the trial court denied the plaintiff’s motion to set aside the verdict. The issues are (1) whether a deposition may be used to cross-examine a party without offering the deposition in evidence and (2) whether the plaintiff’s counsel could properly comment during final argument on the failure of the defendant to produce “appropriate witnesses.”

The plaintiff alleged in her complaint that she was injured when she exited, after shopping in the defendant’s store, through an open, manually operated door which was adjacent to an automatic sliding door. She claims to have been struck on the shoulder and arm by the automatic door. On direct examination, she testified that the assistant manager of the defendant’s store had stated on the day of the accident that the manually operated door was left open whenever stock was brought into the store. On cross-examination, the plaintiff’s deposition was marked as an exhibit for identification but was never offered or introduced into evidence as a full exhibit by the defendant. The defendant’s counsel called the plaintiff’s attention to certain specific pages of her deposition relating to the lack of reference by her to the manager’s statement about the door. The defendant’s counsel then read several questions and answers from the plaintiff’s deposition which made no mention of any such statement.

A deposition is “ ‘the written testimony of a witness given in the course of a judicial proceeding’ ” and may be used at trial “to test the credibility of the deponent as he testifies.” Bruneau v. Quick, 187 Conn. 617, 625-26, 447 A.2d 742 (1982). It may also be used in order to refresh the recollection of a witness. Schenck v. Pelkey, 176 Conn. 245, 250, 405 A.2d 665 (1978). It is for the trial court, in the exercise of its discretion, to determine whether there was such a need. Id. A deposition is testimony which remains in the custody of the clerk of the court and is not an exhibit unless offered into evidence. Gordon v. Indusco Management Corporation, 164 Conn. 262, 271, 320 A.2d 811 (1973). Under the facts of the present case, the trial court did not err in allowing several questions and answers from the plaintiff’s deposition which was not an exhibit to be read to her during the course of cross-examination.

The plaintiff did not request a charge concerning the drawing of an adverse inference because of the failure of the defendant to call certain witnesses. The plaintiff had not, prior to her attempt during closing argument to comment on the failure of the defendant to produce “appropriate witnesses,” claimed the benefit of the rule enunciated in Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). Without any showing that she had any entitlement to an adverse inference because of the failure of the defendant to call any particular witness, it was not error to sustain the defendant’s objection to the statement made during the plaintiff’s closing argument. See Nichols v. Coppola Motors, Inc., 178 Conn. 335, 341, 422 A.2d 260 (1979); Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167, 173, 477 A.2d 685 (1984).

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiff claims that the trial court erred in eight specified ways. Only two of these claimed errors merit any discussion. Errors claimed regarding the introduction of evidence relating to damages need not be discussed since the jury returned a general verdict in favor of the defendant. McKiernan v. Caldor, Inc., 183 Conn. 164, 166, 438 A.2d 865 (1981).

       The plaintiff’s counsel objected to the questioning by the defendant of the plaintiff regarding the questions and answers given by the plaintiff at the taking of her deposition on the ground that no foundation had been laid for such an inquiry. The defendant’s counsel claimed that the inquiry was permissible on the ground that he was refreshing the plaintiffs recollection. The trial court, thereafter, overruled the objection and the plaintiff excepted. The record does not indicate that the plaintiff’s recollection of the event had been exhausted prior to the inquiry. Whether the trial court, however, improperly admitted the evidence on the proffered ground is of no consequence if the ruling on the evidence is correct. Saporiti v. Austin A. Chambers Co., 134 Conn. 476, 478-79, 58 A.2d 387 (1948); Witek v. Southbury, 132 Conn. 104, 110, 42 A.2d 843 (1945); Chany v. Hotchkiss, 79 Conn. 104, 106, 63 A. 947 (1906); Zitomer v. Palmer, 38 Conn. Sup. 341, 347, 446 A.2d 1084 (1982); Maltbie, Conn. App. Proc. § 36. In this case, the use of the deposition on cross-examination tested the credibility of the deponent.


author: Hull, J.

text:
    Charles DeMartin v. John R. Manson, Commissioner of Correction
    (2478)
    (2479)
    Dannehy, C.P.J., Hull and Dupont, Js.

      Argued May 2
    decision released September 4, 1984

      David M. Reilly, for the appellant (plaintiff).

      Robert J. Devlin, Jr., assistant state’s attorney, with whom was Arnold Markle, state’s attorney, for the appellee (defendant).
   Hull, J.

The principal issue presented by this appeal is whether the court erred in finding that it could not infer that a witness, who invoked the fifth amendment privilege against self-incrimination when he was recalled to the stand, had waived the right to claim the privilege by virtue of his prior testimony. We find no error.

On February 20,1980, a jury convicted the plaintiff, Charles DeMartin, on all counts of a five count substitute information charging criminal attempt to commit assault in the first degree, conspiracy to commit assault in the first degree, reckless endangerment in the first degree, possession of weapons in a motor vehicle, and possession of a shotgun in a motor vehicle. The plaintiff was sentenced to imprisonment for an effective term of not less than six nor more than twelve years. His conviction was upheld by the Supreme Court on August 17, 1982. State v. Altrui, 188 Conn. 161, 448 A.2d 837 (1982). Thereafter, on November 22, 1982, the plaintiff filed two applications for writs of habeas corpus in the Superior Court for the judicial district of Hartford-New Britain. The defendant filed a motion to quash the first petition. This motion was granted by the court. The court then held a hearing on the second petition. After the hearing, the plaintiffs petition was denied and the trial judge, N. O’Neill, J., certified the case for appeal to this court. The detailed facts of this case are set forth in State v. Altrui, supra.

The plaintiff claims on appeal that he was denied his right to due process and the right to confront witnesses against him in violation of the fifth, sixth and fourteenth amendments to the constitution of the United States when the trial court permitted a witness, the victim, Michael Solevo, to invoke the privilege against self-incrimination.

The facts pertinent to this appeal are as follows: Michael Solevo, the victim of the shooting incident in the underlying case, identified DeMartin as one of the perpetrators of the crimes. At trial, Solevo was called as a witness for the state. He gave extensive testimony regarding DeMartin’s involvement in the crimes charged during direct examination on December 6 and 7,1979, and on cross-examination on December 11,12 and 13. On January 17, 1980, Solevo was called as a witness by DeMartin’s codefendant, Frank Altrui. During direct examination, Solevo exercised his fifth amendment privilege in response to twelve specific inquiries by defense counsel.

In the habeas corpus proceedings, the court heard extensive evidence concerning the circumstances surrounding this chain of events. On January 1, 1980, DeMartin’s attorney contacted the state’s attorney and claimed that Solevo wished to talk to the attorneys in the case because of an alleged desire to recant his prior story. The state’s attorney promptly contacted Solevo by telephone in order to discover Solevo’s intentions regarding his testimony. That conversation was recorded. In that telephone conversation, Solevo told the prosecutor, “I gotta live in this town . . . you know I’d like to make amends to everybody and live in this town, and work and run my business without bothering anybody, not have to worry about carrying a gun going home at night . . . OK. There’s nobody that can be with me as many hours of the day that there is.”

The habeas court also considered testimony concerning a conversation Solevo had on January 2,1980, with assistant state’s attorney John Durham and inspector Bruce Piggott. The court found that this conversation, as well as the conversation of January 1, indicated that Solevo was extremely upset and was afraid that he and his family would suffer repercussions as a result of his testimony. On January 11,1980, DeMartin moved for acquittal. During the hearing on the motion, no mention was made of the possibility that Solevo had recanted or desired to recant. On January 16, DeMartin rested his case, again without any mention of Solevo’s alleged desire to recant earlier testimony. On January 17,1980, Solevo was called as a witness by Altrui, at which time Solevo invoked the privilege against self-incrimination in response to questions concerning his prior testimony and the conversations of January 1 and 2. Solevo was not offered immunity by the state and the trial judge did not order him to testify. DeMartin thereafter moved for a mistrial. Again, he offered no evidence that Solevo wished to recant. Furthermore, DeMartin did not move to strike Solevo’s prior testimony from the record. The motion for a mistrial was denied.

On January 18, 1980, Altrui called Kent Kelsey as a witness. Kelsey testified that Solevo had indicated to him that he was confused and was not sure about the events which occurred during the shooting incident and that he did not think DeMartin was involved. The habeas court found that Kelsey’s testimony was “unbelievable” and that “apparently the jury thought so.” The habeas court concluded that there was no evidence of any bribery of Solevo or that Solevo had recanted or wished to. The court found “that Solevo was in fear before and during the trial and infers coercion from that fear.” The court’s inference was based not only on the fact that Solevo had already been shot at with a shotgun, but also upon what transpired during the two conversations between Solevo and members of the prosecutor’s office.

The Supreme Court stated in State v. Altrui, supra, 176, that it could not “conclude that under the peculiar circumstances of this case permitting Solevo to exercise his fifth amendment privilege left the jury with a distorted view of the truth,” but went on to say in footnote four; id., 176 n.4; that this conclusion did not foreclose DeMartin from demonstrating in a habeas corpus proceeding the factual foundation for an application of the remedy which permits a court to find a waiver of the privilege under certain circumstances.

The test for determining whether a court may infer a testimonial waiver of the privilege against self-incrimination is set forth in Klein v. Harris, 667 F.2d 274, 287 (2d Cir. 1981). A testimonial waiver is not to be inferred lightly. Smith v. United States, 337 U.S. 137, 150, 69 S. Ct. 1000, 93 L. Ed. 2d 1264 (1949); State v. Altrui, supra, 169. It should be inferred only under the most compelling circumstances. Klein v. Harris, supra, 288; State v. Altrui, supra. The two-prong test set forth in Klein v. Harris, supra, 287, states: “[A] court should only infer a waiver of the fifth amendment’s privilege against self-incrimination from a witness’ prior statements if (1) the witness’ prior statements have created a significant likelihood that the finder of fact will be left with and prone to rely on a distorted view of the truth, and (2) the witness had reason to know that his prior statements would be interpreted as a waiver of the [privilege] . . . The second prong of the Klein test requires a two-fold analysis.

The requisite “reason to know” that a waiver might be inferred should be found only if the witness’ prior statements were (a) testimonial, meaning that they were voluntarily made under oath in the context of the same judicial proceeding, and (b) incriminating, meaning they did not merely deal with matters collateral to the events surrounding the commission of the crime, but directly inculpated the witness on the charges at issue. Klein v. Harris, supra, 288.

Both prongs of this test must be satisfied in order for the court to be able to infer a testimonial waiver. The habeas court found, as did the Supreme Court in State v. Altrui, supra, 176, that the first prong of the test was not satisfied because permitting Solevo to invoke the privilege did not leave the jury with a distorted view of the truth. In this regard, the habeas court stated: “In examining the entire record of the original trial, and all the exhibits and after an exhaustive trial in this court, it cannot be found that Solevo’s statements on direct and cross-examination created a significant likelihood that the jury would be left with and prone to rely on a distorted view of the truth. In particular, in the trial in this court, it became abundantly clear that Solevo’s statements in his original testimony and cross-examination were the truth as they were convincingly supported by his mother’s testimony which the court found accurate and credible. The court neither heard nor saw any believable evidence contradicting Solevo or his mother.”

As concerns the second prong of the test, the habeas court found that Solevo’s prior statements were both testimonial and incriminating. The court found that the statements were incriminating because they directly inculpated the witness on the charges at issue and found that the charges at issue were either giving false testimony or committing perjury in the event the statements were untrue. We disagree. The statements were not “incriminating” as this term is defined for the purposes of applying the Klein test. We construe “directly inculpated the witness on the charges at issue” to mean those charges which stem from and are directly related to the “events surrounding commission of the crime.” See Klein v. Harris, supra, 288. Solevo’s prior testimony concerned the events surrounding the commission of the crime, but clearly there was nothing self-incriminating to Solevo in that testimony as to his involvement in the crimes charged. See United States v. James, 609 F.2d 36, 45 (2d Cir. 1979); State v. Valeriano, 191 Conn. 659, 667, 468 A.2d 936 (1983).

In any event, the first prong of the test was not found to be satisfied and, therefore, a testimonial waiver could not be inferred. Any erroneous interpretation of the term “incriminating,” therefore, was harmless error. The court correctly found that a testimonial waiver could not be inferred under the circumstances of this case. The factual basis for applying the Klein remedy has been exhaustively explored. The requisite “significant danger of distortion”; Klein v. Harris, supra, 288; and necessary compelling circumstances for finding a testimonial waiver are absent here.

The plaintiff also claims that he was denied his right to confrontation by virtue of the trial court’s decision to permit Solevo to invoke the privilege. As the Supreme Court succinctly stated in State v. Altrui, supra, 176, in the absence of any direct testimony, there is nothing to test through cross-examination. By refusing to answer, there was no direct testimony. The petitioner had ample opportunity to cross-examine the witness at the time of his original testimony and to call Solevo as his own witness at trial. See United States v. Calvente, 722 F.2d 1019, 1024 (2d Cir. 1983). Furthermore, it is clear that where there is a direct conflict between the accused’s right to compel testimony and a witness’ privilege against self-incrimination, “the accused’s right to compel testimony must give way to the witness’ privilege against self-incrimination . . . .” State v. Simms, 170 Conn. 206, 209, 365 A.2d 821 (1976); see Kastigar v. United States, 406 U.S. 441, 444-45, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).

There is no error on the plaintiff’s appeal No. 2479.

As to the plaintiff’s appeal from the judgment granting the motion to quash the first petition, the issues, claims and allegations presented in the second petition substantially incorporated and, therefore, duplicated those presented in the first petition. That appeal is now moot in light of the full consideration given to the second petition.

Appeal No. 2478 is dismissed for mootness.

In this opinion the other judges concurred.

       Prank Altrui was a codefendant in the trial.

       The plaintiff first sought a writ of habeas corpus in the United States District Court which dismissed the application, refusing to retain jurisdiction where the petitioner had not exhausted available remedies in state court. The United States Court of Appeals for the Second Circuit affirmed that decision.

       The plaintiff also filed an appeal, appeal No. 2478, from the granting of the motion to quash. The motion to join the two appeals was granted by the court.

       A verbatim recitation of the direct examination and the witness’ response is printed in State v. Altrui, 188 Conn. 161, 167-69 n.2, 448 A.2d 837 (1982).

       The Supreme Court included a detailed account of the recorded telephone conversation of January 1,1980, in State v. Altrui, 188 Conn. 161, 172, 448 A.2d 837 (1982).

       The text of the conversation as printed in the memorandum of decision is as follows: “JD: Well, the unfortunate part at this point is that there is, you know, there’s no easy way out. I mean, you’re jammed up either way, uh, you know, you gave the police a truthful statement, you testified in court under direct and cross-examination and told the truth. So, you know, to think that now, uh, you’re gonna be able, that DeMartin, Altrui and uh, Taddei and that crew is gonna get off your back and everything is going to be roses if all you [do] is go in and uh, recant and perjure yourself is, that’s not the way it is. Because they can do it, I mean from my perspective, if they can do it to you, they can do it to the next little store owner that they’re trying to shake down, and the next little restaurant owner and anybody else they want to shake down. All they’ve gotta do is put the pressure on and continue to do exactly what they’re doing.
      “Now, I’d sit down, if I were you, I would sit down with my attorney, tell him what you know, tell him what the truth is, tell him what it is that you suspect they want you to say, tell him you testified to the court and gave the statement to the police and ask him, ask him where you stand.
      “MS: He said, I uh, I asked him all that and he says you’d probably be arrested for perjury. And perjury’s five years, Right?
      “JD: Perjury’s a felony in Connecticut, yeah.
      “MS: He said, you know, you’ll end up in court yourself and there’s no way in saying that somebody’s gonna believe you, you’ll probably both end up in jail together.
      “JD: Well, that’s largely a decision for you and your attorney, all I’m saying is that I know that you told the cops the truth, I know you told the jury the truth, and uh—
      “MS: Oh, boy, you know. Who’s gonna be with me in seven, six, seven years when these characters are out on the street. You know what I mean? Now, what if, if there, if it wasn’t meant for me, they were drinking wine all day—
      “JD: I know, you know, I would suspect ....
      “MS: If I probably didn’t walk out of there, he probably would have got in this car and drove away again.
      “ JD: Maybe. But you did walk out and he did shoot at you. That’s against the law and he could have killed you. And then where would your wife and kids and your family be?
      “MS: My mother, I didn't know this until today, my mother had a meeting all set up with Charlie, to straighten this all out, and my brother made her cancel out, he said, No, don’t you dare get involved again.
      “BP: Who’s that?
      “MS: Franny.
      “BP: Franny.
      “MS: [inaudible] My mother had a meeting with, through somebody else, she said something [inaudible]. But, I definitely would get arrested for perjury, huh?
      “JD: I don’t mean, I don’t know, I don’t want to tell you what to do. Talk to your attorney. Tell LaSala what the situation is. I mean, LaSala’s not going to make you testify, if uh, if you tell him that what you testified to before was the truth and now you’re just jammed up on all this stuff. Tell him the truth.
      “MS: Well, he was supposed to come in the restaurant at 12:00 today and talk to me, then he called up and said he couldn’t make it. He wanted me to go to his office at 5:30. I said I can’t come out there. I don’t even have a car. I took my mother’s car down here. I parked in the parking lot, by the way that’s good?
      “JD: Where’s your attorney’s office?
      “MS: Temple Street. It’s up the street from the Sheraton Park Plaza.
      “JD: Do you want to call him, see if you can get a hold of him, or do you want to just, uh, I mean, it’s up to you, whatever, uh, whatever you and your attorney think.
      “MS: Well, he’s sorta advised me to, uh, not to, uh, not to, not to do that. He said, you’re opening yourself up for an arrest, and [inaudible]—Can’t get a goddam gun permit. I don’t, you know, I’m gonna be open. I’m a sitting duck behind a [deletion] bar with two windows, door window, and uh, and I gotta put up with clowns trying to make a name for themselves now, you know what I mean? You know what I mean? You know, just the nobody’s that, that, maybe when they were 18, 19 years old, they were strong guys, now they drink, they got fat [deletion] bellies.—Well, isn’t it almost over, this case now?
      “ JD: That’s why, that’s why, that’s why they’re putting the pressure on. Because they know they’ve got problems. I mean, we’ve got the guns, the Motion to Supress the guns was denied, uh, we went through a full day’s hearing on Chain of Custody on the guns, they know, as a matter of fact, the guns came in today, you know. They’ve got problems, it’s getting down to the nitty-gritty, it’s positive identification, you know them, we get the car a short time later with DeMartin and Altrui, we got the guns, we got the shotgun wad.
      “MS: You know, if I got on that stand, who would, the jury wouldn’t believe me anyway. They’ll probably get sentenced anyway and I’d get arrested for perjury. I don’t know what [deletion] to do, John, I tell you. . . .
      “JD: Were they any of Taddei’s construction union people?
      “MS: No, no, he has his own construction company. And I’m not, I’m not the type of guy that gets scared. I’m scared, not for me, I’m scared 'for my wife, my kids and the poor [deletion] people sitting in the restaurant.—Well, what can I tell LaSala?
      “BP: The truth.
      “MS: I’m scared? I want to, I want to change my mind.
      “BP: The truth. . . .
      “MS: They’ll be on the street in a year and a half, two years and poor Mike will be in big trouble. There’s too many of them, they’re too deep, John. You, or I, or Bruce, no matter what we say or do.
      “JD: Well, what are you going to do. Take it day by day, all right.
      “MS: All right.”

       The Supreme Court indicated in State v. Altrui, 188 Conn. 161, 166, 175, 448 A.2d 837 (1982), that Kelsey had known the defendants for lengthy periods of time and that “Solevo’s sudden change of heart after being visited by Kelsey can hardly be attributed to coincidence.”


text:
    Allied Plywood, Inc. v. Planning and Zoning Commission of the Town of South Windsor Savin Brothers, Inc. v. Planning and Zoning Commission of the Town of South Windsor
    (2978)
    (2828)
    Dannehy, C.P.J., Hull and Spallone, Js.

      Argued June 13
    decision released September 4, 1984

      Yolanda Sefcik, for the appellants (plaintiff in each case).

      Richard M. Rittenband, for the appellee (defendant in both cases).
   Spallone, J.

These are combined appeals. Allied Plywood, Inc. (Allied) appeals from the dismissal of its administrative appeal from the decision of the defendant planning and zoning commission of the town of South Windsor (commission), denying Allied’s site plan application. Savin Brothers, Inc. (Savin) appeals from the denial of an application for a writ of mandamus ordering the commission to approve the site plan application.

The administrative appeal and the petition for a writ of mandamus were consolidated and tried together. The record and proceedings before the commission were the bases for the trial court’s decision in both cases.

Allied entered into an agreement to purchase from Savin certain property known as Lot No. 6, Parkcentre, in the town of South Windsor. The agreement was conditioned upon Allied’s obtaining site plan approval for its planned warehousing operation. Lot No. 6 is located in a zone in which warehousing is a permitted use. In accordance with the South Windsor zoning regulations, Allied submitted its site plan of development to the commission for approval. The commission denied the application, and Allied appealed to the trial court on November 13, 1981. The trial court dismissed the appeal stating that the commission’s reasons for rejecting the application were supported in the record and were concerns properly before it. Allied appeals from that dismissal claiming that the court erred (1) in determining that the reasons for denying the application were supported in the record and were concerns properly before the commission, when the application complied with all applicable zoning regulations, and (2) in considering facts and issues beyond the scope of the commission’s formally stated reasons.

On November 13, 1981, the date on which Allied appealed from the commission’s decision, there was no statutory right to bring such an appeal. Jajer v. Zoning Commission, 38 Conn. Sup. 492, 494-95, 452 A.2d 122 (1982). It is well settled that appeals to courts from administrative officers or boards exist only under statutory authority and that unless a statute provides for such appeals, the courts are without jurisdiction to hear them. Kosinski v. Lawlor, 177 Conn. 420, 425, 418 A.2d 66 (1979); Bardes v. Zoning Board, 141 Conn. 317, 318, 106 A.2d 160 (1954). The trial court had no jurisdiction to hear this appeal. We therefore hold that the trial court’s dismissal of the plaintiff’s appeal was proper, but for the wrong reason.

Where the trial court reaches a correct decision but on mistaken grounds, the trial court’s action will be sustained if proper grounds exist to support it. Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978); DiMaggio v. Cannon, 165 Conn. 19, 24, 327 A.2d 561 (1973). The present case is within that principle of law. We find no error in Allied Plywood, Inc. v. Planning & Zoning Commission.

Since we have concluded that Allied had no statutory right of appeal, we have negated the court’s reason for denying Savin’s petition for a writ of mandamus, i.e., that Savin had an adequate remedy at law, to wit, the administrative appeal. In denying the petition for a writ of mandamus, the trial court expressly referred to its memorandum of decision in Allied’s appeal. Therefore, Savin claims that the court erred not only in finding that it had an adequate remedy at law, but also in finding that the commission had the discretion to reject the site plan. In order to address that issue, we must look to the record to determine if the trial court would have been justified in denying mandamus on any other grounds.

Pursuant to the town zoning regulations, Allied presented its preliminary plans to the engineering department of the town of South Windsor and thereafter submitted its final plans to the commission. After a public hearing at which exhibits were entered and testimony taken, the application was denied on October 27, 1981.

The commission’s stated reason for denying the application was that “the construction of the proposed building would infringe on nearby residential property owners and their basic rights due to the size and height of the building.” The record reveals that the proposed building, in fact, met every requirement of the applicable zoning regulations. Although some concern about the adequacy of the proposed buffer zone was voiced at the public hearing, the plans provided a 70 foot wide buffer where the regulations required one of only 25 feet. The commission’s reason for denying the application is as vague and unsatisfactory as the reason given in Kosinski v. Lawlor, supra, 422. In Kosinski, the planning section of the planning and zoning commission of Hamden found that a site plan complied with the applicable regulations, but withheld approval of the plan on the ground that it constituted a “poor use of the site.” Id. The Supreme Court sustained the trial court’s conclusion that this reason was “vague, uncertain in meaning and provided no real guidance to the plaintiff as to the manner in which the plan failed to comply with the requirements of the regulations.” Id., 423. The court held that since the plan, as submitted, complied with all the applicable regulations and the applicant had no adequate remedy at law, mandamus would lie.

In this case, the commission’s reason for denying the site plan application makes no reference to whether the applicant complied with the regulations. It merely comments upon the size and height of the building. The trial court, however, stated that in the present case “it is clear that the commission did not conclude that the site plan met zoning requirements. It concluded that, given the nature and size of the operation, there was insufficient buffer to satisfy Section 4.8.4.3 of the South Windsor zoning regulations. Admittedly, the Commission did not use the explicit language of this opinion, but there was ample evidence as to the nature of their concern.”

As we have noted above, the commission’s sole reason for denying the site plan was that the size and height of the proposed building would somehow infringe upon the basic rights of residential property owners in the neighboring area. No mention of the buffer zone was made. Thus, we find that the memorandum of decision in this case discloses that the trial court looked behind the formal vote and the reasons stated by the commission for its action and inferred that the commission found the plan deficient in respects other than those reasons stated. This was clearly erroneous. “[Wjhere a zoning commission has formally stated the reasons for its decision the court should not go behind that official collective statement of the commission. It should not attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission’s final collective decision.” DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970).

Connecticut General Statutes § 8-3 (g) provides in pertinent part that “[a] site plan may be modified or denied only if it fails to comply with the requirements already set forth in the regulations. ... A decision to deny or modify a site plan shall set forth the reasons for such denial or modification.” Neither the stated reason for the denial nor a thorough and meticulous search of the record discloses to this court any evidence that the applicant failed to conform to each and every applicable requirement of the regulations governing site plan approval. In ruling upon a site plan application, the planning commission acts in its ministerial capacity, rather than in its quasi-judicial or legislative capacity. It is given no independent discretion beyond determining whether the plan complies with the applicable regulations. Kosinski v. Lawlor, supra, 426-27. The board is under a mandate to apply the requirements of the regulations as written. “If the plan submitted conforms to these regulations, the council has no discretion or choice but to approve it.” RK Development Corporation v. Norwalk, 156 Conn. 369, 375-76, 242 A.2d 781 (1968); Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674-75, 236 A.2d 917 (1967). Every property owner is entitled to rely on the local zoning regulations and to use his property accordingly. See Helbig v. Zoning Commission, 185 Conn. 294, 308, 440 A.2d 940 (1981); Lebanon v. Woods, 153 Conn. 182, 191, 215 A.2d 112 (1965); Leveille v. Zoning Board of Appeals, 145 Conn. 468, 473, 144 A.2d 45 (1958). We conclude that there was no basis in the record for the trial court’s finding that the plaintiff failed in any manner to conform to the requirements of the town zoning regulations.

A writ of mandamus is the proper remedy under the circumstances of this case. Mandamus will issue only if the plaintiff can establish: (1) that the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to the performance of that duty; and (3) that the plaintiff has no adequate remedy at law. Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984). Since these requirements have been met, we conclude that the court should have granted the plaintiff’s petition.

In Allied Plywood, Inc. v. Planning & Zoning Commission, there is no error. In Savin Bros., Inc. v. Planning & Zoning Commission, there is error, the judgment is set aside and the case is remanded with direction to render judgment ordering the commission to approve the site plan.

In this opinion the other judges concurred.

       The plaintiff Allied’s petition for certification to appeal to this court was granted on January 13, 1984.

       The complaint, memorandum of decision and judgment file in each action designates the property as Lot No. 5, Parkcentre. The site plan application included in the record of proceedings before the commission, however, reveals that the property in question was, in fact, Lot No. 6, Parkcentre.

       General Statutes § 8-9 provides that appeals from planning and zoning commissions may be taken to the Superior Court in the manner provided in § 8-8. Pursuant to § 8-8, such appeals must be taken “within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7 .. . .” The statute authorizing the submission of site plans to the zoning commission or other municipal agency is General Statutes § 8-3 (g). When this action was brought, there was no requirement in § 8-3 that the commission publish notice of its decision. Because appeals pursuant to § 8-8 are contingent upon publication of notice, and since there was no such requirement here, it follows that Allied had no right of appeal. Jajer v. Zoning Commission, 38 Conn. Sup. 492, 494-95, 452 A.2d 122 (1982).
      Section 8-3 (g) has since been amended to require publication of notice of approval of site plans. Public Acts 1982, No. 82-90.

       The town engineer, the town planner and other experts testified that the site plan submitted by Allied fully complied with all local zoning reglations as well as with municipal provisions governing storm drainage, sewage disposal, water, fire protection and the preservation of the natural features on the lot.


text:
    State of Connecticut v. Calvin Piland
    (2793)
    Dupont, Borden and Spallone, Js.
    Argued June 13
    decision released September 11, 1984

      Raymond J. Quinn, Jr., public defender, for the appellant (defendant).

      Catherine J. Capuano, special assistant state’s attorney, with whom, on the brief, was Walter H. Scanlon, acting state’s attorney, for the appellee (state).
   Per Curiam.

The defendant was convicted of the crime of knowingly attempting to deliver a noncontrolled substance upon the express representation that such substance was a controlled substance, in violation of then General Statutes (Rev. to 1981) § 19-473, as amended by Public Acts 1981, No. 81-199, now General Statutes § 21a-268. His appeal presents no issues of merit requiring extensive discussion.

The defendant’s claim that the court erred in denying his oral motion to dismiss, filed pursuant to the ruling of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), is without merit. Franks requires, as one of the preconditions to an evidentiary hearing attacking a warrant, that “[ajffidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Id., 171. The defendant’s oral motion falls far short of those requirements. Moreover, after the court denied his motion without an evidentiary hearing, it permitted him to put on evidence in support of his claim, as a kind of evidentiary offer of proof. Our review of this evidence indicates that the court was correct in denying the motion, because the evidence falls far short of establishing “deliberate falsehood or . . . reckless disregard for the truth . . .” in the affidavit upon which the warrant for his arrest was based. See id.

The defendant’s claim that he was entitled to a charge on entrapment fails, because his testimony was a denial of an essential element of the crime charged, namely, that he expressly represented that the substance which he sold was cocaine; and because there was no evidence of inducement by the police. State v. Rosado, 178 Conn. 704, 707-08, 425 A.2d 108 (1979); State v. Hawkins, 173 Conn. 431, 436, 378 A.2d 534 (1977).

There is no error.

       The information simply referred to General Statutes (Rev. to 1981) § 19-473. That statute, as amended by Public Acts 1981, No. 81-199, also embraces subsection (a) (2), which prohibits such an attempted delivery “under circumstances which would lead a reasonable person to believe that such substance is a controlled substance . . . .’’The state’s bill of particulars, however, narrowed the charge to the “express representation” prohibited by subsection (a) (1), and the court charged the jury accordingly.

       At oral argument in this court the defendant abandoned one of his three claims of error.


text:
    Town of Greenwich et al. v. Lawrence E. Kristoff
    (2383)
    Dannehy, C.P.J., Hull and Spallone, Js.

      Argued June 5
    decision released September 11, 1984

      Rocco R. P. Perna, for the appellant (defendant).

      Eugene F. McLaughlin, Jr., for the appellees (plaintiffs).
   Hull, J.

In November, 1974, the plaintiffs, the town of Greenwich and Maurice F. Roddy, the town’s zoning enforcement officer, brought an action seeking to enjoin the defendant, Lawrence E. Kristoff, from using his premises as a rooming house on the ground that such use violated the zoning regulations of the town of Greenwich. The defendant alleged as a special defense that his use of the premises constituted a valid, nonconforming use. After a trial, the court refused to resolve the issue of whether an injunction should be issued, in order to permit the defendant to apply for a change of use. The court also refused to consider whether the defendant had a valid nonconforming use. The plaintiffs appealed from that judgment and the Supreme Court, in Greenwich v. Kristoff, 180 Conn. 575, 430 A.2d 1294 (1980), remanded the case for the narrowly focused purpose of determining whether the plaintiffs were entitled to the injunctive relief sought. On remand, the court found that the plaintiffs were entitled to injunctive relief and ordered the defendant to cease and desist from any further unlawful use of the premises in violation of the town zoning regulations. The defendant appeals from that judgment. We find no error.

In 1966, the defendant purchased a three-story building at 225 Mill Street in Greenwich. At that time, the second and third stories each consisted of two apartments, two furnished rooms and a bathroom. Subsequently, the defendant altered these two floors so that, as a result, there were nine furnished rooms, three common bathrooms and a common kitchen on each floor. The eighteen rooms were separately leased. The defendant never obtained the necessary certificate of occupancy from the zoning enforcement officer for such a change of use. Furthermore, from 1966 until September 15,1976, the premises in question were located in what was known as a B-C zone. Since September 15, 1976, the zone in which the premises are located has been designated as an LBR zone. Under either zone classification, use of the premises for rooming house purposes is in violation of the town zoning regulations.

On September 6,1974, the zoning enforcement officer for the town of Greenwich issued an order to the defendant to cease and desist the unlawful use of the premises as a rooming house. The defendant did not comply with this order, nor did he appeal the order to the zoning board of appeals. The plaintiffs thereafter sought injunctive relief in Superior Court.

After the trial, the plaintiffs appealed to the Supreme Court which held that while the court properly refused to determine whether the defendant had a valid nonconforming use because such a determination must be addressed in the first instance by the proper administrative authority, the court “erred in refusing to resolve the issues raised by the plaintiffs in their attempt to obtain injunctive relief.” Greenwich v. Kristoff, supra, 578-79. The Supreme Court, therefore, set aside the judgment and remanded the case for further proceedings in accordance with the opinion of that court, to determine whether the plaintiffs were entitled to injunctive relief. Id., 579.

On remand, the court not only considered both the findings of the original court and the conclusions and directive of the Supreme Court, but also heard additional evidence and made additional findings of fact relating to the type of use made of the premises at the time of the hearing upon remand. The court found that both the second and third floors of the premises in question each had nine furnished rooms, three bathrooms and one kitchen; that each room was supplied with both maid and linen service; that the kitchen areas were, in addition to normal kitchen use, utilized by the tenants as social or “common” rooms; that none of the tenants was a member of the defendant’s family; that all tenants paid rent to the defendant; that the defendant and his family did not reside on the premises; that there had been no substantial change in the use of the premises since the original hearing; and that the defendant had not, to that date, complied with the cease and desist order or secured a certificate of occupancy from the proper authorities.

The court found that the town was entitled to injunctive relief and, therefore, in rendering judgment for the plaintiff on June 23, 1982, the court ordered and enjoined the defendant to cease and desist from the unlawful use of the premises and to comply with the September 6,1974 order issued by the plaintiffs or, in the alternative, to bring the premises into conformity with existing zoning regulations on or before September 30, 1982.

From that judgment, the defendant appeals claiming that the court erred (1) in concluding that the premises were being unlawfully used as a rooming house, (2) in granting the injunction because the plaintiffs failed to establish irreparable harm and a lack of an adequate remedy at law, and (3) in refusing to find that the town was estopped from enforcing the zoning regulations applicable to the defendant’s premises.

I

The issue of whether there was a valid nonconforming use was one which should have been raised by way of an appeal to the zoning board of appeals. Greenwich v. Kristoff, 180 Conn. 575, 578, 430 A.2d 1294 (1980). Such an avenue for relief was available to the defendant, yet he chose not to pursue it. Where such relief is available, it is axiomatic in the area of zoning law that a party must exhaust that remedy before appealing to a court of law. Conto v. Zoning Commission, 186 Conn. 106, 114, 439 A.2d 441 (1982); Astarita v. Liquor Control Commission, 165 Conn. 185, 190, 332 A.2d 106 (1973); Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 186, 286 A.2d 299 (1971); Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963); see General Statutes § 8-6. There are exceptions, most notably where the available administrative relief is inadequate or would prove futile or where local procedures cannot effectively, conveniently or directly determine whether the plaintiff is entitled to the relief claimed. Conto v. Zoning Commission, supra, 115. These exceptions are not applicable in this case, nor have they been claimed by the defendant.

Upon remand, the judgment of the trial court was based upon a conclusion that the use was not a lawful use and that the court was foreclosed from determining whether the use was a valid nonconforming use because the defendant had not appealed to the town zoning board of appeals. The court, therefore, properly limited itself to determining whether the use was unlawful at the time of the hearing upon remand.

The defendant claims that the premises did not constitute a dwelling and did not, therefore, come within the purview of the pertinent town regulation which defines a rooming house. The defendant claims that the regulation only applies where the proprietor lives on the premises and, furthermore, he asserts that the premises constituted a hotel, not a rooming house.

The pertinent section of the town zoning regulations provides: “Rooming House shall mean a dwelling in which rooms for living purposes are rented for compensation to five or more persons other than the members of the family of the proprietor.” Building and Zoning Regulations for the Town of Greenwich § 6-5 (c) (43). There is nothing that even remotely suggests that the building must be occupied by the proprietor in order to constitute a rooming house. The premises in question clearly fits within the definition of a dwelling which is a “building or construction used for residence.” Scribner v. O’Brien, Inc., 169 Conn. 389, 398, 363 A.2d 160 (1975). Furthermore, the court found that the premises were used as and came within the definition of a rooming house and not a hotel. We agree.

The trial court found that the use of the premises as a rooming house was not permitted in either the former B-C zone or in the present LBR zone. The court found that the premises were being used as a rooming house and that, during the time of such use, they were located within one of these zones. The court therefore con-eluded that the use violated the zoning regulations. This conclusion must stand unless it is legally and logically inconsistent with the facts found. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983); Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983). The facts in this case clearly support the court’s conclusion.

II

The defendant asserts that it was error to grant the injunctive relief issued pursuant to General Statutes § 8-12 since the plaintiffs failed to show that they had suffered or would suffer irreparable harm or that they had no adequate remedy at law. This issue was directly addressed by this court in Johnson v. Murzyn, 1 Conn. App. 176, 469 A.2d 1227 (1984), a decision in which this court adopted the following rule: “[Wjhere a statute authorizes a municipality or public entity to seek an injunction in order to enforce compliance with a local zoning ordinance, but says nothing about the injury caused, the municipality is not required to show irreparable harm or unavailability of an adequate remedy at law before obtaining an injunction; rather, all that must be shown is a violation of the ordinance.” Johnson v. Murzyn, supra, 180; Crabtree v. Van Hise, 39 Conn. Sup. 334, 337-38, 464 A.2d 865 (1983). The Supreme Court recently cited this rule with approval. Conservation Commission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984). The court in this case, therefore, did not err in failing to make an initial determination that the town would suffer irreparable harm and that it had no adequate remedy at law.

III

The defendant further claims that the town was estopped from enforcing the zoning regulations applicable to the premises in question due to the acts and representations of its officers and agents. The defendant claims that the town building inspector and assistant building inspector both represented to him that his use of the premises after he had altered it to eighteen rooms was proper and legal.

A municipality cannot be estopped by the unauthorized acts of its officers or agents. Zoning Commission v. Lescynski, 188 Conn. 724, 733, 453 A.2d 1144 (1982); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 352, 365 A.2d 1093 (1976); Carini v. Zoning Board of Appeals, 164 Conn. 169, 174, 318 A.2d 390 (1972), cert. denied, 414 U.S. 831, 94 S. Ct 64, 38 L. Ed. 2d 66 (1973); Hebb v. Zoning Board of Appeals, 150 Conn. 539, 542, 192 A.2d 206 (1963). An exception to the steadfast rule which states that estoppel may not be invoked against a public agency in the exercise of its governmental functions may arise where the party claiming estoppel would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents. Zoning Commission v. Lescynski, supra, 731. Estoppel against a municipality in such an instance, however, may be invoked only in limited instances and with great caution. Id., 732. It may be invoked only when the resulting violation has been unjustifiably induced by an agent having authority in such matters and when special circumstances make it highly inequitable or oppressive to enforce the regulations. Id.

In addition, to assert a claim of estoppel against a municipality in a zoning matter such as in the present case, the person claiming the estoppel has the burden of proving that he exercised due diligence in ascertaining the legality of the proposed or new use of the premises and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge. Zoning Commission v. Lescynski, supra, 732-33; Dupuis v. Submarine Base Credit Union, Inc., supra, 353. The defendant in this case is an attorney who therefore knew or should have known of the existence of the zoning regulations. It cannot be said, under the present circumstances, that he lacked both knowledge of the true state of things and a convenient way to ascertain it.

The trial court found that estoppel could not be invoked in this case. The court did not find that the zoning enforcement officials had made any misrepresentations or that they had encouraged or approved explicitly or implicitly the use. In fact, the court held that even if the court were satisfied that such representations had been made by the officials, the town could not be estopped by the unauthorized acts of its officers or agents from seeking injunctive relief. Beyond the fact that the trial court did not find sufficient evidence that the town officials had made representations which encouraged or implicitly approved the use, we find from our examination of the entire record that even if those acts had occurred and the agents were authorized to make such representations or to render such approval, under the particular circumstances of this case, estoppel could not be asserted against the town because the record does not indicate that the enforcement of the zoning regulations would be highly inequitable or oppressive or that the violation of the ordinance had been unjustifiably induced by town officials. The court did not err in refusing to allow the defense of estoppel in this matter.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       As one claim on appeal, the defendant claims that the court erred by limiting itself to the findings of the original court. This claim is without merit.


author: Dannehy, C.P.J.

text:
    John Balboni v. William Stonick
    (2454)
    Dannehy, C.P.J., Hull and Dupont, Js.

      Argued June 14
    decision released September 11, 1984

      James O. Shea, for the appellant (defendant).

      John T. Grillo, with whom, on the brief, were Albert R. Annunziata and Louis M. Pacelli, for the appellee (plaintiff).
   Dannehy, C.P.J.

This is an action for damages resulting from injuries sustained by the plaintiff in an automobile collision between his automobile and an automobile driven by the defendant. The intersection where the collision took place was governed by a traffic signal light which both opposing parties contended was green in their favor. After trial, the jury returned a general verdict for the defendant, but the trial court granted a motion to set it aside, from which action this appeal was taken.

There appears to have been no substantial dispute as to certain circumstances preliminary to the collision. The collision occurred at the intersection of Forbes and Woodward Avenues in New Haven. Upon the trial it appeared that the defendant was driving his automobile westerly along Forbes Avenue and that his automobile entered Woodward Avenue and, after it was almost completely across the intersection, was struck by that of the plaintiff. Beyond these, the facts were definitely in dispute; and it was for the jury to determine what the true facts were, insofar as the jury found them proved.

The primary factual dispute was whether the traffic signal was green for the plaintiff or for the defendant at the time of the collision. The defendant testified that he was familiar with the intersection where the collision took place; that at about 6 a.m. on October 11, 1974, he was driving his automobile westerly along Forbes Avenue behind a truck proceeding in the same direction; that as he approached Woodward Avenue he observed the traffic signal and it was green; that from Forbes Avenue, at a point five feet east of Woodward Avenue, the truck made a right hand turn into a driveway; that he observed then that the traffic light was still green; that he drove slowly left to pass the truck; that as he passed the truck and entered the intersection, he was unable to see the traffic light; and that he had driven his automobile three-quarters of the way through the intersection when the front end of the plaintiffs southbound car collided with the right rear fender of his automobile.

The court instructed the jury as to what constituted negligence and contributory negligence under the circumstances, but, although the plaintiff previously argued that the court’s charge was deficient in several respects, most notably because the court failed to furnish the jury with the statutory definition of intersection; General Statutes § 14-1 (18); no error is assigned in the instructions on this phase of the case. The jurors returned a verdict for the defendant and their answer to an interrogatory submitted by the court of its own motion unequivocally established that the plaintiff failed to prove that the defendant was negligent in even one of the ways specified in the complaint. The trial court was of the opinion that the jury could not reasonably have found otherwise than that there was negligence on the part of the defendant. On the plaintiff’s motion, the court set aside the verdict of the jury as against the evidence.

The pivotal issue in this appeal is how far a trial court may go in setting aside the verdict of a jury as against the evidence. A trial court in passing upon a motion to set aside a verdict and this court in reviewing its action thereon are limited by established legal principles. Our rule is plain and unchanged, although it has been stated in a variety of ways. “If, on the evidence as presented and under the pleadings, the jury could have reasonably found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence.” Goodman v. Norwalk Jewish Center, Inc., 145 Conn. 146, 154, 139 A.2d 812 (1958); see also Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940).

It is the duty of the trial court in its relation to the jury to protect the parties by setting aside a verdict where its manifest injustice is so plain as clearly to indicate that the jury has disregarded the rules of law applicable to the case; Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980); or was influenced by prejudice, corruption or partiality in reaching a decision. Kalleher v. Orr, 183 Conn. 125, 126, 438 A.2d 843 (1983); Preisner v. Illman, 1 Conn. App. 264, 268, 470 A.2d 1237 (1984). In setting aside the verdict, the trial court acts in the exercise of a broad legal discretion which, in the absence of a clear abuse, will not be disturbed; and in reviewing the exercise of that discretion every reasonable presumption should be indulged in favor of its correctness. Jacobs v. Goodspeed, supra, 416.

One obvious and immovable limitation on the legal discretion of the court in setting aside a verdict is the constitutional right of trial by jury. To protect the right of a litigant to have disputed issues of fact determined by a jury, the court’s action cannot be reviewed in a vacuum. The evidence upon which the verdict was based must be examined. Id., 416-17. “Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fairminded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached.” Horvath v. Tontini, supra. The question before this court is whether there was room for such a reasonable difference of opinion with respect to the issue of the defendant’s negligence. If so, the trial court erred in setting aside the verdict.

“Ordinarily a conclusion of negligence or of freedom from it is one of fact. The reason is that ‘the law itself furnishes no certain, specific, sufficient standard of conduct, and, of necessity, leaves the trier to determine, both what the conduct is, and whether it comes up to the standard, as such standard exists in the mind of the trier. . . . In every such case the trier, for the time being, adopts his own opinion, limited only by the general rule, of what the man of ordinary prudence would or would not do under the circumstances, and makes such opinion the measure or standard of the conduct in question.’ Farrell v. Waterbury Horse R. Co., 60 Conn. 239, 250, 21 Atl. 675, 22 [Atl.] 544 [1891].” Skovronski v. Genovese, 124 Conn. 482, 483-84, 200 A. 575 (1938).

The trial court found that in a written and appropriately exhibited statement the defendant admitted that “he went through the red light.” The court, in its memorandum of decision accompanying the order setting aside the verdict of the jury, concluded that in none of his testimony did the defendant explain, deny or contradict the statement he made admitting that “he went through the red light” and that the jury could not have come to any conclusion other than that the defendant did in fact go through the red light. We disagree.

In this case the first question for the jury to decide was whether the traffic signal was green for the plaintiff or for the defendant. The issue of liability turned upon the resolution of this factual dispute. Although we may give due weight to the opinion of the trial court, the parties have the right to have the issues decided by the jury, if they are such issues as fairminded men might reasonably differ upon, and not by the court. Horvath v. Tontini, supra. Were it otherwise, the right to a jury trial in a civil case would be reduced to a mere sham.

The trial court accented the extrajudicial statement of the defendant “that he went through the red light” as the factor compelling the granting of the motion to set aside the verdict. The transcript, however, reveals that the defendant, in open court, denied that he did so. The defendant’s written statement was obtained by the plaintiff through disclosure. A response to an interrogatory is not a judicial admission in the same sense as admissions in the pleadings or in open court, and will not prevail over evidence offered at the trial. Hirsch v. Thrall, 148 Conn. 202, 207, 169 A.2d 271 (1961). “These restrictions on the effect of an interrogatory response are consistent with General Statutes § 52-200, which states that a disclosure on oath shall not be deemed conclusive but may be contradicted like any other testimony.” Piantedosi v. Floridia, 186 Conn. 275, 278, 440 A.2d 977 (1982). Contradiction and confusion in the testimony of witnesses is precisely the type of factual conflict that Anglo-American jurisprudence has traditionally entrusted to the jury. State v. Bember, 183 Conn. 394, 398, 439 A.2d 387 (1981). It is the province of the jury to determine the credibility of the witnesses and the weight to be accorded their testimony. Trzcinski v. Richey, 190 Conn. 285, 298, 460 A.2d 1269 (1983). Accordingly, the evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict. Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983). While the ruling of the trial court on a motion to set aside a verdict is entitled to great weight because of the court’s familiarity with the facts and circumstances of the case; Nielson v. D’Angelo, 1 Conn. App. 239, 244, 471 A.2d 965 (1984); the parties are entitled to have issues upon which fairminded persons may differ decided by the jury.

The record discloses a substantial dispute as to the material facts attending the collision. Whether the defendant was negligent depended upon whether he exercised reasonable care under all the circumstances of the case. A careful study of the evidence in the case before us fails to satisfy us that the jury could not reasonably have believed the evidence given by the defendant and have held him free from negligence in entering the intersection under the circumstances disclosed by that evidence, especially since he was entitled to assume that the plaintiff would proceed with reasonable care as to speed, control, and lookout at an intersection. Accordingly, the trial court abused its discretion in setting aside the jury’s verdict.

There is error, the judgment is set aside and the case remanded with direction to render judgment for the defendant upon the verdict.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c). Subsequent to the filing of this appeal, the defendant died. Pursuant to General Statutes § 52-599, Shirley Stoniek, his executrix, was substituted as a party on April 6, 1984.

       The plaintiff alleged, inter alia, that the defendant failed to grant the right of way and that “he violated the laws of the State of Connecticut in that he failed to obey the vehicle traffic control signal, which commanded him to stop, in violation of Section 14-299 of the Connecticut General Statutes.” General Statutes § 14-299 (b) (3) provides in part that: “Vehicular traffic facing a steady red signal alone shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and remain standing until the next indication is shown . . . .”

       The interrogatories included the following: “Question 1: Did the plaintiff John Balboni prove the defendant William Stonick was negligent in one or more ways specified in the complaint? Answer: Yes—No. (If the answer to the above question is yes, go on to Answer 2; if the answer to the question is no, go no further and return a general verdict in favor of the defendant William Stonick).” The jury answered question 1 “No.”

       On direct examination by the plaintiff’s counsel, the defendant testified as follows:
      “Q: Now, Mr. Stoniek, isn’t it a fact, sir, that as you swung to the left to pass the truck that was making a righthand turn into the garage driveway, you looked at the light and you saw it had turned to red—
      “A: No.
      “Q:—and then you took your eye off it? Isn’t that a fact?
      “A: No.
      “Q: It’s not. Isn’t it a fact that as the light turned to red and you took your eye off it, you then proceeded through the intersection, Mr. Stoniek?
      “A: No.”


author: Borden, J.

text:
    James W. Barrett, Administrator (Estate of Patricia J. Barrett) v. Central Vermont Railway, Inc., et al.
    (2375)
    Dannehy, C.P.J., Hull and Borden, Js.

      Argued April 12
    decision released September 11, 1984

      Edmund W. O’Brien, for the appellants (defendants).

      DaleP. Faulkner, with whom were Thomas W. Boyce and Thomas B. Wilson, for the appellee (plaintiff).
   Borden, J.

The plaintiff administrator of the estate of the decedent, Patricia J. Barrett, brought this action against the defendant railway company and the defendant engineer of one of its freight trains to recover damages for the wrongful death of the decedent resulting from a collision between the defendants’ train and the decedent’s automobile at a railroad crossing. After a jury trial, a verdict was returned for the plaintiff. This appeal followed the denial by the trial court of the defendants’ motion to set aside the verdict and motion for judgment notwithstanding the verdict.

The jury could have reasonably found the following facts. On March 2, 1977, at approximately 4:30 p.m., the decedent was driving her automobile in a westerly direction on a public highway in the town of Franklin known as Murphy’s Crossing Road, a secondary road between state highway route 32 and route 87. Murphy’s Crossing Road crosses the defendant’s track and is about sixteen feet wide at the crossing. The train, which consisted of two engines, six boxcars, three hopper cars and a caboose, was preceeding south. The decedent’s view of the north, the direction from which the train was coming, was obstructed by a hill. The day was clear, and the sun was bright and low on the horizon. Anyone traveling west on Murphy’s Crossing Road at that time of that day would be driving directly into the sun, which almost completely obliterated the visibility of the only warning device, a railroad sign with flashing lights located at the crossing. There was no bell on this sign and the train was not equipped with a rotating flashing strobe light at the time of the accident. There were no pavement markings on the road to warn of the crossing.

The engineer of the train was sitting on the right hand side of the train and did not see the decedent’s automobile as it approached from his left. The fireman was seated on the left hand side of the train. When he saw the decedent’s automobile he yelled to stop the train, and the engineer applied the emergency brake. The engineer felt the impact of the train hitting the automobile but he did not see the automobile or know, at the time, what he had hit. As a result of the impact the decedent sustained a compound fracture of the skull with a laceration of the brain which caused her death within minutes.

The defendants first argue that the court erred in falling to grant their postverdict motions. The trial court’s ruling on a motion to set aside a verdict is entitled to great weight; Nielson v. D’Angelo, 1 Conn. App. 239, 244, 471 A.2d 965 (1984); and our review of its refusal to set aside a jury verdict is limited; Kalleher v. Orr, 183 Conn. 125, 126, 438 A.2d 843 (1981); because “[t]he trial judge can sense the atmosphere of a trial and has an excellent vantage point for evaluating the factors that may have brought the jury to its verdict.” Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982).

The defendants claim in effect that there was no evidence to prove any of the specifications of negligence alleged in the complaint or to prove that any of their acts or omissions was the proximate cause of the decedent’s death. We disagree.

It is axiomatic that to recover in negligence for a wrongful death the plaintiff must establish a causal connection between the decedent’s death and the defendants’ breach of a duty of care; see id., 4; Angier v. Barton, 160 Conn. 204, 209, 276 A.2d 782 (1970); and that breach of such duty was the proximate cause of the decedent’s death. Hearl v. Waterbury YMCA, supra, 4. The test for proximate cause is whether the defendants’ conduct was a substantial factor in bringing about the decedent’s death. Id.

The defendants owed a duty of using reasonable care to avoid injury to those using the crossing. Ulrich v. New York, N.H. & H. R. Co., 98 Conn. 567, 568-69, 119 A. 890 (1923). The amount of care required must be “proportionate to the danger to be reasonably anticipated” and be “reasonably adequate under the circumstances to prevent injury” to those rightfully using the crossing. Pomponio v. New York, N.H. & H. R. Co., 66 Conn. 528, 541, 34 A. 491 (1895); Ulrich v. New York, N.H. & H. R. Co., supra, 569.

The question of whether the defendants were negligent depends upon many facts. Among those specifications of negligence which the jury could have used to reach its conclusion was the unreasonableness of the defendants’ speed at the crossing. Id. This specification presents a classic question of fact for the jury. Id.

The railway company had itself set a speed limit of twenty-five miles per hour at that particular crossing. There was evidence, based on a reenactment of the collision requested following the accident, by the investigating police officer, that the speed of the train was thirty miles per hour as it approached the crossing. There was also expert testimony that a reasonable train speed at that crossing should not have exceeded fifteen miles per hour; that the train was traveling at thirty-one miles per hour; and that this speed was the proximate cause of the decedent’s death because her injuries would have been less had the train been going slower.

The defendants had a duty to exercise reasonable care to avoid injury to persons they knew or should have known were to come on the track and that duty included, considering all the circumstances, reducing the speed of the train accordingly. Marchand v. New York, N.H. & H. R. Co., 146 Conn. 599, 603-605, 153 A.2d 438 (1959). Viewing the evidence in the light most favorable to sustaining the jury’s verdict; Puro v. Henry, 188 Conn. 301, 311, 449 A.2d 176 (1982); we conclude that there was sufficient evidence for the jury to find that the train was traveling at an unreasonable speed, and that this negligence was the proximate cause of the decedent’s death.

The plaintiff was only required to prove any one of his specifications of negligence. Duley v. Plourde, 170 Conn. 482, 485, 365 A.2d 1148 (1976); Sacks v. Connecticut Co., 109 Conn. 221, 236-37, 146 A. 494 (1929). Since we conclude that he produced enough evidence to establish liability under the specification of unreasonable speed, we need not consider the defendants’ argument that the plaintiff failed to establish his other specifications of negligence.

The defendants claim, in their next four assignments of error, that the court erred in its instructions to the jury; in admitting into evidence a certain exhibit of the plaintiff; in permitting an amendment to the complaint; and in refusing to declare a mistrial. The plaintiff responds, first, that these claims are not properly before us because the defendants did not include them in their preliminary statement of issues under Practice Book § 3012 (a).

Ordinarily, we are not inclined to review claims of error unless they are included in the appellant’s preliminary statement of issues. See Wadsworth v. Zahariades, 1 Conn. App. 373, 375 n.4, 472 A.2d 29 (1984). The Supreirie Court also appears to follow this general policy. See Verrastro v. Sivertsen, 188 Conn. 213, 218, 448 A.2d 1344 (1982); Presutti v. Presutti, 181 Conn. 622, 626, 436 A.2d 299 (1980). We are aware, however, that the Supreme Court has on occasion reviewed claims notwithstanding an appellant’s failure to comply with Practice Book § 3012 (a). Those occasions appear to fall into two categories: (1) where the claim is of constitutional dimension or may involve plain error; see, e.g., State v. Martin, 189 Conn. 1, 2 n.1, 454 A.2d 256 (1983); State v. Miller, 186 Conn. 654, 657 n.2, 443 A.2d 906 (1982); or (2) where both parties briefed the claim, there was no indication of an objection by the appellee to review and it was in the interests of justice to consider the claim. See, e.g., State v. Ouellette, 190 Conn. 84, 101 n.13, 459 A.2d 1005 (1983); State v. Cannon, 185 Conn. 260, 265-66 n.9, 440 A.2d 927 (1981); Scott v. General Iron & Welding Co., 171 Conn. 132, 139, 368 A.2d 111 (1976).

Here there are no constitutional issues involved, none of the claims appears to rise to the level of plain error or miscarriage of justice and the appellee urges compliance with the rule. Under the circumstances, we agree with the appellee and decline to consider these claims.

Practice Book § 3012 (a) requires that the appellant submit “a preliminary statement of issues intended for presentation on appeal.” The twin purposes of this requirement are to apprise the appellee, who has only thirty days from the filing of the appellants’ brief to file his brief; see Practice Book § 3060N; of the issues on appeal before receipt of the appellant’s brief and to define for the record the parameters of those issues. Larson v. Norkunas, 37 Conn. Sup. 869, 870 n.1, 441 A.2d 205 (1982). Although the plaintiff has, after urging adherence to Practice Book § 3012 (a) in his brief, gone on to address the merits of the defendants’ claims, he should not be penalized for his caution in doing so. He is entitled, as is this court, to insist on compliance with such a basic and useful rule of appellate practice.

Furthermore, the defendants filed their preliminary statement of issues approximately three weeks after the ruling on their motion. This suggests to us that the issues presented to the trial court on their post verdict motions were those claimed in their preliminary-statement of issues; see footnote 3, supra; rather than those claimed on appeal, and we are unable to find anything in this record contrary to this suggestion. Thus, the trial court may well have been deprived of “a full opportunity to redress any errors which may have occurred at trial before the appellate process [was] begun”; Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 63 (1981); and we may have been deprived of a ruling on those claims by the trial court, made after the heat of trial dissipated, which could have been “helpful to the appellate court, particularly with respect to evaluating the effect of [the] ruling[s] upon [the] verdict.” Id. In any event, the defendants did not take the opportunity to define precisely what the issues were on appeal or to amend their preliminary statement of issues, which they could have done as a matter of right before their brief was filed or by permission of this court after their brief was filed. Practice book § 3012 (d); State v. Cannon, supra.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       As grounds for the motion to set aside the verdict and motion for judgment notwithstanding the verdict, the defendants alleged that the verdict was contrary to the law, against the evidence and excessive.

       The defendants’ preliminary statement of issues is confined to claims of insufficiency of evidence of negligence and excessiveness of the verdict.

       We note that in Wadsworth v. Zahariades, 1 Conn. App. 373, 375 n.4, 472 A.2d 29 (1984), we declined to consider a constitutional claim which was not included in the preliminary statement of issues.

       The only one of the four claims which the interests of justice might suggest for consideration is the defendants’ claim with respect to the court’s charge to the jury. The defendants argue that the court erred in its instructions to the jury in that it permitted the jury to find the defendants negligent under the plaintiff’s general specification that the defendants “failed to exercise reasonable care under all the circumstances.” The defendants contend that under such an instruction, the jury could consider acts of negligence other than those specified in the complaint. Our review of the charge to the jury discloses that the court only mentioned this general allegation of negligence once, when it read the complaint to the jury. Moreover, the court did not mention it when it later explained the specific acts of negligence alleged by the plaintiff. We are unable to see what elements of negligence this general allegation could refer to, other than those specified in the complaint, nor have the defendants called our attention to any. Under the circumstances, if there was any error in the charge, it was harmless. See Buonanno v. Cameron, 131 Conn. 513, 516, 41 A.2d 107 (1945).

       In contrast, the appellant has forty-five days from delivery of the transcript to file his brief. Practice Book § 3060N.