author: Glass, J.

text:
    Craig M. Davis v. Emanuel Margolis
    (13695)
    Peters, C. J., Shea, Glass, Covello and F. X. Hennessy, Js.
    Argued April 11
    decision released June 19, 1990

      John R. Williams, with whom, on the brief, was David B. Bachman, for the appellant (plaintiff).

      Joseph F. Shelley, with whom was Alan Wein, for the appellee (defendant).
   Glass, J.

The principal issue in this appeal is what qualifications are necessary for an expert witness to testify in a legal malpractice case. The plaintiff, Craig M. Davis, brought a legal malpractice action against the defendant, attorney Emanuel Margolis, alleging, inter alia, that the defendant violated professional duties owed to him as a result of his consultation with the defendant. The trial began on October 18,1988, in the Superior Court in Hartford, and ended on October 27, 1988, when the court granted the defendant’s motion for a directed verdict. The trial court based its decision on the ground that the plaintiff failed to present any expert testimony which, as the plaintiff concedes, was necessary for establishing a prima facie case in his malpractice action. The plaintiff now argues on appeal that the trial court erred: (1) in refusing to permit attorney Jon L. Schoenhorn to testify as an expert witness; and (2) in refusing to allow Schoenhorn to testify as to his experience in the practice of criminal law. We conclude that, in determining whether Schoenhorn was qualified as an expert witness, the trial court should have fully considered his practical experience as it pertained to his knowledge of the standard of care applicable to the defendant’s actions in this case.

The jury could reasonably have found the following facts. On June 3, 1981, the plaintiff consulted the defendant with the hope of securing his representation in connection with serious criminal charges that were then pending against him. Although the plaintiff was represented by another attorney at the time, he was dissatisfied with the progress of his case, and thus decided to contact the defendant. The plaintiff’s father arranged for an interview at the defendant’s office, which both the plaintiff and his father attended. At the time of his interview with the plaintiff, the defendant knew of rumors that the plaintiff was considered a suspect in the murder of James W. Hafner, in which he represented the defendant, Gordon Andrew Burge. The defendant discussed this with the plaintiff, and told him that he would be unable to represent him if he discovered that he was involved in the Hafner murder. The plaintiff assured the defendant that he was not involved in that crime. Despite these assurances, during a fifteen minute period when the plaintiffs father had left the room, the defendant grilled the plaintiff about his whereabouts on the day of the Hafner murder.

At the end of the meeting, the defendant offered to represent the plaintiff for a fee of $10,000, that would have covered representation up to, but not including, trial. The plaintiff could not afford to pay that fee, and therefore declined the offer. The plaintiff then continued to be represented by his original attorney, and ultimately pleaded nolo contendere to charges of sexual assault in the first degree, kidnapping in the second degree and robbery in the third degree, for which he received a sentence of ten to twenty years imprisonment.

After the interview with the plaintiff, in the course of the trial of his client Burge, the defendant attempted to introduce evidence that he claimed would have shown that the plaintiff might actually have committed the Hafner murder. Arguing for the admission of the evidence, the defendant stated to the court that he had everything “but a smoking gun” to show that the plaintiff had committed the Hafner murder. The trial court, however, excluded the proffered evidence, and Burge was convicted. The defendant appealed Burge’s conviction to this court, and again argued that he had evidence that proved that the plaintiff might have committed the crime of which his client had been convicted. This court thereafter overturned Burge’s conviction; State v. Burge, 195 Conn. 232, 487 A.2d 532 (1985); in part, because of the trial court’s exclusion of evidence allegedly inculpating the plaintiff. Id., 252.

After the plaintiff learned of the defendant’s remarks in the Burge trial, he filed a grievance with the grievance committee for the Stamford-Norwalk judicial district. The grievance committee found that the defendant should have refused to interview the plaintiff, and reprimanded him for having done so. Furthermore, the plaintiff brought this action for legal malpractice, asserting that the defendant’s remarks caused him to be subjected to harassment and physical and psychological harm while he was in prison. The plaintiff’s complaint alleged that the defendant breached a series of duties owed by an attorney to his client. In particular, the complaint alleged that the defendant breached his duty of loyalty to the plaintiff, and breached his duty to avoid conflicts of interest.

At trial, both sides agreed that, in order to prevail, the plaintiff needed to present expert testimony that the defendant’s actions violated an applicable standard of care. In an attempt to satisfy this expert testimony requirement, the plaintiff offered the testimony of Schoenhorn. In his disclosure of expert witness memorandum, the plaintiff stated: “Attorney Schoenhorn will testify to the prevailing standard of care of attorneys in [the defendant’s] specialty in the prevailing legal community. He will further testify that [the defendant] by having a confidential discussion protected by the attorney/client relationship with the plaintiff and thereafter representing Mr. Burge in the manner set forth in the complaint failed to exercise the degree of skill and diligence [that] other attorneys in his legal community possess and practice. Attorney Schoenhorn’s opinion will be based on his training and experience and the practice of law in general and in particular in his practice of criminal law.” Moreover, the plaintiff disclosed that Schoenhorn’s testimony would be based, in part, on his review of certain files and documents relevant to the case.

Schoenhorn testified that he had extensive experience as a criminal lawyer in Connecticut, and that he had previously testified as an expert witness in a case involving the effectiveness of representation provided by a criminal defense lawyer. In addition, he testified that he had studied legal ethics while in law school and in preparation for the bar examination. The trial court, however, sustained objections to the following questions that the plaintiff’s attorney posed to Schoenhorn in an effort to demonstrate Schoenhorn’s knowledge of the applicable standard of care: (1) “And can you tell us approximately how many criminal cases you have tried to verdict as of today?”; and (2) “Can you tell us approximately how many [appeals you have argued]?” The plaintiff’s attorney argued that the plaintiff was entitled to show Schoenhorn’s background in an effort to qualify him as an expert. The trial court held that he could do so only “in regard to the ethical questions.” The trial court stated: “What’s [Schoenhorn’s] background that gives him an expertise in establishing what the standard of care is in the state of Connecticut for lawyers who are consulted by clients, what’s their standard of care of loyalty to that client.”

The plaintiff’s attorney then once again attempted to introduce Schoenhorn’s appellate experience to qualify him as an expert. The plaintiff’s attorney argued that Schoenhorn had argued many appeals, and stated further: “I’m willing to show that one or more of those appeals dealt with conflict of interest questions in the criminal context. In fact, further, that in the case of State versus Buckley, one of the issues in that appeal which he argued and briefed had to do with whether a lawyer in the State’s Attorney’s office who had previously represented Mr. Buckley how he could not have in any way have any part in the prosecution of the matter because of a conflict of interest. And further, the issue arose as to whether the entire office of the State’s Attorney would have to be disqualified because of this prior representation. That’s what we have here is a case of prior representation. What is the duty owed by a lawyer to somebody who[m] he previously represented in this case, represented for purposes of a consultation and the hiring or maintaining that lawyer to deal with a specific criminal case. [Those are] the additional grounds for bringing out [Schoenhom’s] appellate experience in this matter, your Honor.”

In its further colloquy with counsel, the court stated: “Now an expert in my view is a fellow who has more experience than the run-of-the-mill people. He knows a little better than just any lawyer in off the street. He’s got some particular expertise in this field of legal ethics. Like in a case we had some years ago, Professor Hazard was brought here . . . to testify in regard to ethics. Well, there’s a fellow that’s got a background from here to China in ethics, he’s taught it, studied it, researched it, testified. What have we got from Mr. Schoenhorn that’s not comparable to that, but of that kind? Did he teach law school ethics? Did he have particular training, go to special seminars in ethics? They have them. What did he do that makes him special in this area .... I don’t care about his background in criminal law. There’s a lot of criminal lawyers who are not experts in ethics, there’s a lot I’m sure who are. But criminal does not make ethical, per se, just like a lot of lawyers practice criminal law which is heavily involved with the United States Constitution and they don’t pay a lot of attention to the United States Constitution in their practice, unfortunately. But just being a criminal lawyer doesn’t make you a constitutional lawyer. Being a constitutional lawyer doesn’t make you a criminal lawyer. Being a criminal lawyer doesn’t make you an ethical expert.”

The plaintiff’s attorney countered: “And I can identify that—particularize that further, because I think it’s important what kind of criminal work he’s done. And I’ve indicated that several cases in which he has . . . .” The court then interjected: “But I don’t care about that. You see, I care about his training, his background and his education in ethics. The fact that he was in a lot of criminal cases does not mean that he’s an ethical expert.” The plaintiff’s attorney then stated: “Well, that’s all that I have on his questions of qualifications as an expert.” The plaintiff’s attorney then moved to have Schoenhorn qualified as an expert witness. The defendant objected, and the court sustained his objection. The defendant moved for a directed verdict, and the court granted his motion and ordered the members of the jury to return a defendant’s verdict, which they did.

The plaintiff argues that the trial court erred both in refusing to permit Schoenhorn to testify as an expert witness and in refusing to allow Schoenhorn to testify as to his experience in the practice of criminal law. We conclude that the trial court should have fully considered Schoenhorn’s practical experience as it pertained to his knowledge of the standard of care applicable to the defendant’s actions in this case.

The allegations in the plaintiff’s complaint take the form of a classic malpractice action. We have noted: “Malpractice is commonly defined as ‘the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . .’ Webster, Third New International Dictionary; Black’s Law Dictionary (5th Ed. 1979).” Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984). As a general rule, for a plaintiff to prevail in a legal malpractice case in Connecticut, he must present expert testimony to establish the standard of proper professional skill or care. Dunham v. Dunham, 204 Conn. 303, 317, 528 A.2d 1123 (1987); Pearl v. Nelson, 13 Conn. App. 170, 173, 534 A.2d 1257 (1988); Bent v. Green, 39 Conn. Sup. 416, 420, 466 A.2d 322 (1983). The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard. Fitzmaurice v. Flynn, 167 Conn. 609, 617, 356 A.2d 887 (1975); Decho v. Shutkin, 144 Conn. 102, 106, 127 A.2d 618 (1956); Bent v. Green, supra.

The general standard for admissibility of expert testimony in Connecticut is simply that the expert must demonstrate “a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.” Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); see State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). In malpractice cases, the expert’s testimony must be evaluated in terms of its helpfulness to the trier of fact on the specific issues of the standard of care and the alleged breach of that standard. Fitzmaurice v. Flynn, supra, 616-18. We have held that an expert must show more than a “casual familiarity” with the standards of the specialty in question. Id., 618. In that regard, however, it makes no difference whether the witness’ familiarity results from practical or academic experience. Id.; Bryan v. Branford, 50 Conn. 246, 248 (1882); see 2 R. Mallen & J. Smith, Legal Malpractice (3d Ed. 1989) § 27.17, p. 682. Once the threshold question of usefulness to the jury has been satisfied, any other questions regarding the expert’s qualifications properly go to the weight, and not to the admissibility, of his testimony. Sanderson v. Bob’s Coaster Corporation, 133 Conn. 677, 682, 54 A.2d 270 (1947).

In the present case, we conclude that, in order for Schoenhorn to be qualified as an expert witness, he must be found to possess special knowledge beyond that exhibited by every attorney simply as a result of membership in the legal profession. Rather, Schoenhorn must possess special knowledge, that, as properly applied, would be helpful in the determination of the question of whether the defendant’s actions were in accordance with the standard of care applicable to attorneys under comparable circumstances. Moreover, Schoenhorn’s special knowledge may emanate from a myriad of sources, such as teaching, scholarly writings, study or practical experience.

Thus, while the question of whether a witness is qualified to testify as an expert is largely a matter within the trial judge’s discretion; Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964); we hold that the trial court abused its discretion by refusing to allow the plaintiff to present fully Schoenhorn’s practical experience, and in particular, his appellate experience concerning cases that the plaintiff claimed had a bearing on the issue presented in this case. We do not, however, pass judgment on the question of whether Schoenhorn was actually qualified as an expert witness. Rather, we simply conclude that the plaintiff should have been allowed ample opportunity to display Schoenhorn’s practical experience in an attempt to show that Schoenhorn possessed special knowledge that would have been helpful to the determination of the question of whether the defendant’s actions were in accordance with the standard of care applicable to attorneys under comparable circumstances.

The judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       The plaintiff was charged with sexual assault in the first degree, unlawful restraint in the third degree and robbery in the third degree.

       An additional claim, alleging a violation of the duty of confidentiality, was withdrawn at trial.

       See Dunham v. Dunham, 204 Conn. 303, 317, 528 A.2d 1123 (1987); Pearl v. Nelson, 13 Conn. App. 170, 173, 534 A.2d 1257 (1988); Bent v. Green, 39 Conn. Sup. 416, 420, 466 A.2d 322 (1983).

       Geoffrey C. Hazard, Jr., is a Sterling Professor of Law at Yale University.

       The defendant argues that the plaintiffs claims of error should not be addressed because they were not distinctly raised below. We disagree. First, when the court sustained the defendant’s attorney’s objections to the plaintiffs attorney’s questions regarding Sehoenhom’s criminal trial and appellate experience, the plaintiff’s attorney clearly noted his exceptions. In addition, when the court sustained the defendant’s attorney’s objection to Schoenhorn’s being qualified as an expert witness, the following colloquy transpired:
      “[The Plaintiffs Attorney]: I would move to have Attorney Schoenhorn qualified as an expert witness.
      “[The Defendant’s Attorney]: I would object, your Honor. There’s an objection.

        “The Court: Objection sustained.
      “[The Plaintiffs Attorney]: Well, in light of that I have no further questions for Attorney Schoenhorn.
      “The Court: Thank-you, Mr. Schoenhorn.
      “The Witness: Thank-you.
      “The Court: Next witness please.
      “[The Plaintiff s Attorney]: I don’t have any more witnesses, your Honor. I rest.
      “The Court: The plaintiff rests.
      “[The Plaintiffs Attorney]: Your Honor, I take an exception to your ruling on his qualifications as an expert.
      “The Court: Too late.”
      This court has indicated that the rules requiring that ah exception be distinctly raised at trial “are not simply formalities.” State v. Rogers, 199 Conn. 453, 461, 508 A.2d 11 (1986); see Practice Book §§ 288, 4185. “They serve to alert the trial court to potential error while there is still time for the court to act. State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984); State v. Jackson, 3 Conn. App. 132, 135, 485 A.2d 934 (1985). Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the judge and the opposing party to trial by ambush. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982).” State v. Rogers, supra.
      Given that the plaintiff’s attorney noted his exception immediately after he rested, it would be difficult to conclude that our addressing these issues would amount to ambushing the trial court and opposing counsel. We are persuaded that the plaintiffs contentions were sufficiently preserved to warrant consideration of his claims before this court.

       “The only exception to this rule is where there is present such an obvious and gross want of care and skill that the neglect is clear even to a layperson.” Bent v. Green, 39 Conn. Sup. 416, 420, 466 A.2d 322 (1983).


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    James L. Wheway, Jr. v. Warden, State Prison John Anthony Graham v. Warden, State Prison
    (13623)
    (13624)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued April 12
    decision released June 19, 1990

      L. D. McCollum, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellant-appellee in the first case, appellee in the second case (respondent in both cases).

      Louis S. Avitdbile, special public defender, with whom, on the brief, was Denise Dishongh, special public defender, for the appellee-appellant in the first case, appellant in the second case (petitioners).
   Covello, J.

These consolidated appeals involve two out-of-state parolees who, after transferring to Connecticut for parole supervision pursuant to the Uniform Act for Out-of-State Parolee Supervision, General Statutes §§ 54-132 through 54-138 (Uniform Act), subsequently committed crimes in Connecticut. They were convicted and sentenced for those crimes and, thereupon, filed petitions for writs of habeas corpus challenging pending parole violation detainers lodged against them by the states from which they were transferred. The principal issues raised are: (1) whether the trial court has the authority to dismiss or otherwise amend an out-of-state parole violation warrant lodged against a sentenced prisoner; (2) whether the Uniform Act requires an immediate parole revocation hearing and creates the right to serve the remaining portion of an out-of-state sentence in Connecticut; (3) whether a parolee has a liberty interest in programs requiring decreased security that are affected by an oüt-of-state parole violation detainer; (4) whether liberty interests are violated when a parolee is classified as a maximum security prisoner solely on the basis of a parole violation detainer; (5) whether a parole violation detainer is a true and valid detainer that must be afforded comity; and (6) whether the parole revocation hearing must await the conclusion of the prisoner’s Connecticut sentence.

In the first case, the petitioner, James L. Wheway, Jr., was convicted of robbery in Mississippi. On October 23, 1980, he was sentenced to twelve years imprisonment with execution suspended after seven years to be followed by five years probation. On April 19, 1982, Mississippi authorities granted parole and transferred Wheway’s parole supervision to Connecticut pursuant to the Uniform Act and Mississippi Code Annotated § 47-7-71.* On June 5,1984, police arrested Wheway in Wallingford and charged him with robbery. On October 19, 1984, Mississippi authorities lodged a violation of parole detainer against Wheway with the Connecticut authorities. On November 30, 1984, the trial court sentenced Wheway to twenty years imprisonment with execution suspended after twelve years for the robbery in Wallingford and five lesser, concurrent sentences.

Because of his Mississippi parole violation detainer, Wheway is classified as a maximum security prisoner for the duration of his Connecticut sentence. Thus classified, he is ineligible by reason of the prison’s rules for any early release programs, including furloughs, work release or home release. If the out-of-state parole violation detainer were not pending, Wheway would have been eligible for work release and home release in April, 1989, but as a maximum security prisoner he will not be eligible for release until April 19, 1991.

Wheway attempted to have either a parole hearing in Mississippi or a parole hearing in Connecticut, pursuant to General Statutes § 54-136.* * Mississippi authorities took the position that they will not act on the parole violation detainer until Wheway completes his Connecticut sentence.

On November 13,1987, Wheway filed a petition for a writ of habeas corpus. Wheway alleged, inter alia, that he had a right to an immediate parole revocation hearing on the Mississippi parole violation detainer because his liberty interest in the conditions and length of his confinement would otherwise be violated.

On October 3, 1988, the trial court, Axelrod, J., granted Wheway’s petition and entered an order quashing the parole violation detainer unless, within ninety days, Mississippi authorities afforded Wheway a parole revocation hearing in Connecticut. The respondent warden thereupon appealed to the Appellate Court, and Wheway cross appealed.

In the second case, the petitioner, John A. Graham, was convicted and imprisoned in Ohio. In February, 1982, Ohio authorities granted him parole and in August, 1982, transferred Graham’s parole supervision to Connecticut pursuant to the Uniform Act. See footnote 1, supra. On February 14, 1983, police arrested Graham and charged him with crimes in Connecticut. On March 4, 1983, Ohio authorities declared the petitioner to be a parole violator and issued a warrant for his arrest that remains lodged against him as a detainer. On November 19, 1983, Graham was sentenced to thirty years imprisonment based upon his convictions for the Connecticut crimes. Without disposing of the alleged parole violation, he is unable to qualify for prison programs involving reduced levels of security.

On October 27, 1986, Graham filed a petition for a writ of habeas corpus. The petition alleged, inter alia, the right to an immediate parole revocation hearing either in Connecticut or Ohio. On February 4,1988, the habeas court, Santos, J., denied Graham’s petition. Graham appealed to the Appellate Court where the matter was consolidated with the Wheway appeal. We thereafter transferred both matters to ourselves pursuant to Practice Book § 4023.

I

In Wheway, the warden first claims that the trial court is without authority to quash, dismiss, strike or otherwise issue an order with respect to an out-of-state parole violation warrant lodged as a detainer against a sentenced prisoner. We agree.

With respect to this issue, the habeas court concluded “that it has the authority to dismiss the detainer lodged if it appears that the detainer itself is subject to dismissal in Mississippi or if it violates the Due Process Clause of the United States Constitution.” The habeas court relied upon this court’s decision in Remick v. Lopes, 203 Conn. 494, 525 A.2d 502 (1987), in reaching its conclusion. Remick involved the Interstate Agreement on Detainers (IAD), Connecticut General Statutes § 54-186. In Remick we noted that the purpose of the IAD was “ ‘to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints . . . . ’ (Emphasis added.)” (Additional emphasis added.) Remick v. Lopes, supra, 500.

The IAD also provides that failure to comply with the agreement’s speedy trial provisions can nullify the effect of the detainer: “If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided . . . the appropriate court of jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.” (Emphasis added.) Connecticut General Statutes § 54-186, Art. V(c).

The United States Supreme Court, however, in Carchman v. Nash, 473 U.S. 716, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985), concluded that detainers based upon probation or parole violation warrants are not based on “untried indictments, informations or complaints”; Remick v. Lopes, supra, 500; and therefore are not subject to disposition under the IAD. “Adoption of the [IAD] was motivated in part by a practice of filing detainers based on untried criminal charges that had little basis. These detainers often would be withdrawn shortly before the prisoner was released. Even though unsubstantiated, the detainers would have a detrimental effect on the prisoner’s treatment. Article III enables a prisoner to require the state lodging the detainer either to drop the charge and resulting detainer or to bring the prisoner to trial. In this way, the prisoner can clear his record of unsubstantiated charges.

“A probation-violation detainer, however, generally . . . will be based on the prisoner’s commission of the crimes that resulted in his conviction and incarceration in the sending State. Because the convictions conclusively establish the probation-violation, see Morrisey v. Brewer, 408 U.S. [471, 490, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)] (parole revocation hearing), the probation-violation charge will not be unsubstantiated. Thus, the abuses that in part motivated the adoption of the [IAD] generally do not occur in the context of probation-violation detainers.” Carchman v. Nash, supra, 730-31. We find the Carchman rationale persuasive and conclude, therefore, that neither Remick, •the IAD, nor the Uniform Act serves as a basis for the habeas court’s order conditionally quashing the Mississippi detainer and that it was therefore without authority to do so.

Even apart from the habeas court’s ultimate conclusion, the warden challenges the court’s predicate conclusion that General Statutes §§ 54-133 and 54-136 “create a liberty interest in having a Mississippi parole revocation hearing held in Connecticut and serving the remaining Mississippi parole sentence in Connecticut.” We agree with the warden.

Section 54-136 provides: “All persons confined . . . pursuant to the provisions of sections 54-132 to 54-138, inclusive, shall be treated in a reasonable and humane manner. The fact of incarceration or reincarceration in a receiving state shall not deprive any person so incarcerated or reincarcerated of any rights which such person would have had if incarcerated or reincarcerated in an appropriate institution of the sending state . . . [and] the hearing or hearings, if any, to which a parolee or probationer may be entitled, prior to incarceration or reincarceration, by the laws of the sending state may be had before the appropriate judicial or administrative officers of the receiving state. In this event, said judicial and administrative officers shall act as agents of the sending state after consultation with appropriate officers of the sending state.” (Emphasis added.)

The petitioner’s claim that he has a statutory right to an immediate parole revocation hearing under the foregoing statute overlooks that fact that he is not a person “confined . . . pursuant to the provisions of sections 54-132 to 54-138, inclusive. ” (Emphasis added.) The petitioner has been convicted of a crime committed in Connecticut. He is confined under a commitment mittimus pursuant to General Statutes § 54-97 and is not “confined . .-. pursuant to the provisions of sections 54-132 to 54-138, inclusive. ” (Emphasis added.) Therefore, the provisions of § 54-136 do not presently apply to him and cannot furnish a basis for a claim to an immediate parole violation hearing.

In response to the petitioner’s claim that he is entitled to serve the balance of the Mississippi sentence in Connecticut and in further response to his claim to an immediate parole revocation hearing, we observe that § 54-133 addresses both issues. It provides: “[I]f, at the time when a state shall seek to retake a probationer or parolee, there shall be pending against him within the receiving state any criminal charge, or he shall be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense.” (Emphasis added.) General Statutes § 54-133 (a) (3). This language clearly contemplates: (1) a return to the sending state; and (2) parole revocation proceedings that shall be subsequent to any “imprisonment for such offense.” Thus, contrary to the petitioner’s assertion and the habeas court’s conclusion, we find that a detained parole violator is neither entitled to an immediate parole revocation hearing while incarcerated for subsequent Connecticut convictions nor entitled to serve the balance of any out-of-state prison terms in Connecticut.

II

In his cross appeal, Wheway first argues that the habeas court erred in failing to conclude that his constitutionally protected liberty interests in his conditions of confinement were violated by his classification as a maximum security prisoner solely on the basis of the parole violation detainer. We do not agree.

The habeas court found that at the Connecticut Correctional Institution at Somers, conditions of confinement involving the granting of furloughs, work release, home release, education release, home visits, etc., are governed by the Inmate Handbook of Regulations and Programs. The granting or denial of the various types of furloughs is entirely discretionary with prison authorities.

In Moody v. Daggett, 429 U.S. 78, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976), a federal parolee who was imprisoned for federal crimes committed while he was on parole filed a petition for a writ of habeas corpus. He claimed a violation of his constitutionally protected liberty interest by reason of his being denied a prompt hearing on his pending parole revocation. The court concluded that the due process clause of the fourteenth amendment did not mandate an immediate parole revocation hearing. Id., 86. The Moody v. Daggett rationale was thereafter extended to circumstances similar to those found here, i.e., to parole violation warrants lodged as detainers by one state with prison authorities of another state. See Heath v. United States Parole Commission, 788 F.2d 85 (2d Cir. 1986).

The Moody court established the further proposition that not every state action that carries adverse consequences for prison inmates automatically implicates or effectuates a due process right. Prison classification and eligibility for various rehabilitation programs, wherein prison officials have full discretion to control those conditions of confinement, do not create a statutory or constitutional entitlement sufficient to invoke due process. Moody v. Daggett, supra, 88-89 n.9; see also Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451, reh. denied, 429 U.S. 24, 97 S. Ct. 191, 50 L. Ed. 2d 191 (1976). In order for Wheway’s conditions of confinement to qualify as a constitutionally protected “liberty,” the interest must be one that is assured by either statute, judicial decree or regulation. See Wolff v. McDonald, 418 U.S. 539, 557-59, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Wheway must demonstrate that the conditions of confinement in question are not matters that prison officials have full discretion to control. Moody v. Daggett, supra; Meachum v. Fano, supra, 228.

Because the prison authorities have full discretion to grant or deny the early release programs that would relieve Wheway from his confinement, he does not have a legitimate statutory or constitutional entitlement sufficient to invoke due process considerations. Moody v. Daggett, supra, 88 n.9. We have recently so held under similar circumstances in Asherman v. Meachum, 213 Conn. 38, 48-49, 566 A.2d 663 (1989).

Wheway finally claims that his parole violation detainer is not a “true” detainer, is not entitled to comity, and therefore should be stricken from his record. Specifically, he claims that since the Mississippi authorities have neither taken custody of him nor revoked his parole, the request for comity “has been totally abused by Mississippi.” Wheway furnishes no authority for this unique claim nor does our research disclose any legal basis for such a claim. Accordingly, we find it to be without merit. See Moody v. Daggett, supra, 80 n.2; see also Carchman v. Nash, supra, 719.

Ill

In Graham, the petitioner argues on appeal that the trial court erred: (1) in following Moody v. Daggett, supra, and holding that he had no right to a parole revocation hearing until his Connecticut sentence was con-eluded; and (2) in concluding that it did not have the authority to strike the detainer from his record. We disagree.

Ohio Administrative Code § 5120:1-1-19 provides in pertinent part: “(2) The hearing for a releasee who has been convicted in a state other than the State of Ohio, and is being returned as a violator, shall be held within a reasonable period of time after his return to confinement within the boundaries of the state of Ohio.” (Emphasis added.) Connecticut General Statutes § 54-133 (a) (3) provides that “if, at the time when a state shall seek to retake a probationer or parolee, there shall be pending against him within the receiving state any criminal charge, or he shall be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense. ” (Emphasis added.) The language of Ohio’s corresponding statute is virtually identical. See Ohio Rev. Code Ann. § 5149.17.

It is clear that Ohio, like Mississippi and Connecticut, follows Moody. Ohio authorities delay the final revocation hearing until the intervening sentence is completed and the parolee is returned to Ohio. Here, the Ohio authorities, like their Mississippi counterparts in Wheway, have not requested the return of the parole violator before the expiration of his Connecticut sentence. Also, as in Wheway, Connecticut authorities have not given and do not currently plan to consent to the parole violator’s return to the receiving state until his term of imprisonment in Connecticut expires. Ohio authorities, like their Mississippi counterparts in Wheway, ask only that the necessary arrangements be made for the transfer of the parole violator when Connecticut is willing to release him from its custody.

Graham also argues, as did Wheway, that the Uniform Act specifically provides that he cannot be deprived of any rights that would be reserved to him in the sending state by reason of his incarceration in Connecticut. We find Graham’s claim no more persuasive then we did Wheway’s. Ohio Administrative Code § 5120:1-1-19 (2) does not grant Graham any right to return to Ohio during the pendency of his Connecticut imprisonment for the purpose of a disposition of his parole violation warrant. As in Wheway, any dispute over when the parole violator may be entitled to a final parole revocation hearing can only be resolved when the parole violator is returned to the sending state at the conclusion of his Connecticut sentence.

Like Wheway, Graham also argues that he has an absolute right to have his out-of-state sentence run concurrently with his Connecticut sentence. We are equally unpersuaded. Ohio Revised Code Annotated § 2967.15 provides that “[a] convict who has been conditionally pardoned or a prisoner who has been paroled, who in the judgment of the adult parole authority, has violated the conditions of his pardon or parole shall be declared a violator. In such case, the time from the date of the declared violation of his pardon or parole to the date he becomes available for return to the institution shall not be counted as a part of time or sentence served. ” (Emphasis added.) “As has been pointed out many times, the period during which one is at large as a parole violator is not credited on one’s sentence. Cline v. Haskins, (1964), 175 Ohio St. 480, [196 N.E.2d 440,] 26 O.O. 2d 91; Smouse v. Perini, (1968), 16 Ohio St. (2d) 13, [242 N.E.2d 340,] 45 O.O. (2d) 261.” Hignite v. Cardwell, 22 Ohio St. 2d 146, 147, 258 N.E.2d 443 (1970). “A parole violator, in Ohio, does not begin to serve the continuation of his sentence until he is returned to a penal institution under order of the parole board.” Stepp v. Lutz, 348 F.2d 466, 467 (6th Cir. 1965). “Under the law of Ohio, the time required for the petitioner to serve his sentence ... is extended by the amount of time lost on parole when he [is] not available to be returned to the Ohio authorities.” Cox v. Maxwell, 366 F.2d 765, 766-67 (6th Cir. 1966).

Graham’s last claim is that the trial court has the authority to and should strike the detainer from his record. We examined and rejected this same claim in Wheway, supra, and for the reasons discussed therein we again conclude that the trial court is without such authority.

In the first case, the judgment is reversed as to the issues on the appeal and the case is remanded to the trial court with direction to deny the petition; the judgment is affirmed as to the issues on the cross appeal.

In the second case, the judgment is affirmed.

In this opinion the other justices concurred.

       “[Connecticut General Statutes] Sec. 54-132. definitions. As used in sections 54-133 to 54-138, inclusive, the term ‘receiving state’ means any state, other than the sending state, in which a parolee or probationer may be found, provided such state is a party to said sections, and the term ‘state’ means any one of the several states and the Commonwealth of Puerto Rico, the Virgin Islands and the District of Columbia.
      “Sec. 54-133. interstate compact for parolee supervision, (a) The governor is authorized and directed to execute a compact on behalf of the state of Connecticut with any of the United States legally joining therein in the form substantially as follows: A compact entered into by and among the contracting states, signatories hereto, with the consent of the Congress of the United States of America, granted by an act entitled ‘An act granting the consent of Congress to any two or more states to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and for other purposes.’ The contracting states solemnly agree: (1) That it shall be competent for the duly constituted judicial and administrative authorities of a state party to this compact (herein called ‘sending state’), to permit any person convicted of an offense within such state and placed on probation or released on parole to reside in any other state party to this compact (herein called ‘receiving state'), while on probation or parole, if (a) such person is in fact a resident of, or has his family residing within, and is able to obtain employment within, the receiving state; (b) though such person is not a resident of the receiving state and has no family residing therein, the receiving state consents to allow him to reside therein; provided, before such permission shall be granted, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person; a resident of the receiving state, within the meaning of this section, being construed to be one who has been an actual inhabitant of such state continuously for more than one year prior to his coming to the sending state and who has not resided within the sending state more than six continuous months immediately preceding the commission of the offense for which he has been convicted; (2) that each receiving state shall assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of such duties will be governed by the same standards that prevail for its own probationers and parolees; (3) that duly accredited officers of a sending state may, at all times, enter a receiving state and there apprehend and retake any person on probation or parole, and for that purpose no formalities shall be required other than establishing the authority of the officer and the identity of the person to be retaken; all legal requirements to obtain extradition of fugitives from justice are being expressly waived on the part of the states party hereto, as to such persons and the decision of the sending state to retake a person on probation or parole to be conclusive upon and not reviewable within the receiving state; provided, if, at the time when a state shall seek to retake a probationer or parolee, there shall be pending against him within the receiving state any criminal charge, or he shall be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense; (4) that the duly accredited officers of the sending state shall be permitted to transport prisoners being retaken through any and all states parties to this compact, without interference; (5) that the governor or each contracting state may designate an officer who, acting jointly with like officers of other contracting states, if and when appointed, shall promulgate such rules and regulations as may be deemed necessary to more effectively carry out the terms of this compact; (6) that this compact shall become operative immediately upon its execution by any state as between it and any other state or states so executing and, when executed, it shall have the full force and effect of law within such state, the form of execution to be in accordance with the laws of the executing state; (7) that this compact shall continue in force and remain binding upon each executing state until renounced by it, that the duties and obligations hereunder of a renouncing state shall continue as to parolees or probationers residing therein at the time of withdrawal until they shall be retaken or finally discharged by the sending state and that renunciation of this compact shall be by the same authority which executed it, by the sending of six months’ notice in writing of its intention to withdraw from the compact to each other state party hereto. Whenever the duly constituted judicial and administrative authorities in a sending state shall determine that incarceration of a probationer or reincarceration of a parolee is necessary or desirable, said officials may direct that the incarceration or reincarceration be in a prison or other correctional institution within the territory of the receiving state, such receiving state to act in that regard solely as agent for the sending state.
      “(b) If any section, sentence, subdivision or clause of this section is for any reason held invalid or to be unconstitutional, such decision shall not affect the validity of the remaining portions of this section.
      “(c) Sections 54-132 to 54-138, inclusive, may be cited as the Uniform Act for Out-of-State Parolee Supervision.
      “Sec. 54-134. DESIGNATION OF ‘compact INSTITUTIONS.’ Every state which adopts sections 54-132 to 54-138, inclusive, shall designate at least one of its correctional institutions as a ‘Compact Institution’ and shall incarcerate persons therein as provided in section 54-133 unless the sending and receiving states in question make specific contractual arrangements to the contrary. All states party to sections 54-132 to 54-138, inclusive, shall have access to ‘Compact Institutions’ at all reasonable hours for the purpose of inspecting the facilities thereof and for the purpose of visiting such of said state’s prisoners as may be confined in the institution.
      “Sec. 54-135. transfers to other correctional institutions. Persons confined in ‘Compact Institutions’ pursuant to the terms of this compact shall at all times be subject to the jurisdiction of the sending state and may at any time be removed from said ‘Compact Institution’ for transfer to a prison or other correctional institution within the sending state, for return to probation or parole, for discharge," or for any other purpose permitted by the laws of the sending state.
      “Sec. 54-136. incarceration in receiving state not to affect rights in sending state. All persons confined in a ‘Compact Institution’ pursuant to the provisions of sections 54-132 to 54-138, inclusive, shall be treated in a reasonable and humane manner. The fact of incarceration or reincarceration in a receiving state shall not deprive any person so incarcerated or reincarcerated of any rights which such person would have had if incarcerated or reincarcerated in an appropriate institution of the sending state; nor shall any agreement to submit to incarceration or reincarceration pursuant to the terms of said sections be construed as a waiver of any rights which the prisoner would have had if he had been incarcerated or reincarcerated in an appropriate institution of the sending state, except that the hearing or hearings, if any, to which a parolee or probationer may be entitled, prior to incarceration or reincarceration, by the laws of the sending state may be had before the appropriate judicial or administrative officers of the receiving state. In this event, said judicial and administrative officers shall act as agents of the sending state after consultation with appropriate officers of the sending state.
      “Sec. 54-137. reimbursement for expenses. Any receiving state incurring costs or other expenses under sections 54-132 to 54-138, inclusive, shall be reimbursed in the amount of such costs or other expenses by the sending state unless the states concerned specifically otherwise agree. Any two or more states party to said sections may enter into supplementary agreements determining a different allocation of costs as among themselves.
      “Sec. 54-138. ratification, regulations. Sections 54-132 to 54-138, inclusive, shall take effect when ratified by any two or more states party to the compact and shall be effective as to those states which have specifically ratified said sections. Rules and regulations necessary to effectuate the terms of said sections may be promulgated by the appropriate officers of those states which have ratified said sections.”

       “[Mississippi Code Annotated] § 47-7-71. uniform act for out-of-state PAROLEE SUPERVISION.
      “I. The governor of this state is hereby authorized and directed to execute a compact on behalf of the state of Mississippi with any of the United States legally joining therein in the form substantially as follows:
      A Compact
      “Entered into by and among the contracting states, signatories hereto, with the consent of the congress of the United States of America, granted by an act entitled ‘An act granting the consent of Congress to any two
      (2) or more states to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and for other purposes.’
      “The contracting states solemnly agree:
      “(1) That it shall be competent for the duly constituted judicial and administrative authorities of a state party to this compact (herein called ‘sending state’), to permit any person convicted of an offense within such state and placed on probation or released on parole to reside in any other state party to this compact (herein called ‘receiving state’), while on probation or parole, if
      “(a) Such person is in fact a resident of or has his family residing within the receiving state and can obtain employment there;

        “(b) Though not a resident of the receiving state and not having his family residing there, the receiving state consents to such person being sent there.
      “Before granting such permission, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person.
      “A resident of the receiving state, within the meaning of this section, is one who has been an actual inhabitant of such state continuously for more than one (1) year prior to his coming to the sending state and has not resided within the sending state more than six (6) continuous months immediately preceding the commission of the offense for which he has been convicted.
      “(2) That each receiving state will assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees.
      “(3) That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state: Provided, however, that if at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense.
      “(4) That the duly accredited officers of the sending state will be permitted to transport prisoners being retaken through any and all states parties to this compact, without interference.
      “(5) That the governor of each state may designate an officer who, acting jointly with like officers of other contracting states, if and when appointed, shall promulgate such rules and regulations as may be deemed necessary to more effectively carry out the terms of this compact.
      “(6) That this compact shall become operative immediately upon its execution by any state as between it and any other state or states so executing. When executed it shall have the full force and effect of law within such state, the form of execution to be in accordance with the laws of the executing state.
      “(7) That this compact shall continue in force and remain binding upon each executing state until renounced by it. The duties and obligations hereunder of a renouncing state shall continue as to parolees or probationers residing therein at the time of withdrawal until retaken or finally discharged by the sending state. Renunciation of this compact shall be by the same authority which executed it, by sending six (6) months’ notice in writing of its intention to withdraw from the compact to the other state party hereto.
      “II. This section may be cited as the uniform act for out-of-state parolee supervision.”

       See footnote 1, supra.

       “[Connecticut General Statutes] Sec. 54-97. mittimus required, exception. No person may be committed to the Connecticut Correctional Institution, Somers, or a community correctional center without a mittimus signed by the judge or clerk of the court which committed him, declaring the cause of commitment and requiring the warden or community correctional center administrator to receive and keep him in the Correctional Institution, Somers, or the community correctional center, as the case may be, for the period fixed by the judgment of said court or until he is legally discharged; and such mittimus shall be sufficient authority to the officer to commit such person, and to the warden or community correctional center administrator to receive and hold him in custody, except that any community correctional center may receive any person as provided in section 7-135 without such mittimus.”


author: Per Curiam:.

text:
    Robert B. Kupstis v. Andre L. Michaud, Jr., et al.
    (13892)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued May 30
    decision released June 26, 1990

      Michael A. DAmico, for the appellant (plaintiff).

      Robert J. Crean, for the appellees (defendants).
   Per Curiam:.

The issue in this case is whether a disappointed litigant may object to an attorney trial referee’s report because of unconscionable delay between the close of the proceedings before the referee and the filing of his report. The plaintiff, Robert B. Kupstis, sought specific performance of a contract for the sale of real estate from the defendants Andre and Gilberte Michaud. With the consent of the parties, the case was referred to an attorney trial referee who held hearings on October 7 and 16, 1987. Despite the fact that the referee’s report was not filed until November 1,1988, the trial court overruled the plaintiff’s objection to the report and rendered judgment for the defendants in accordance with the recommendation of the report. The Appellate Court thereafter affirmed the judgment rendered; Kupstis v. Michaud, 20 Conn. App. 425, 567 A.2d 1253 (1990); and we granted certification to consider whether applicable statutory, procedural or constitutional provisions could afford relief to the plaintiff.

We do not condone the delay that occurred in this case and urge a change in the appropriate provisions of the Practice Book. After examining the record on appeal and considering the briefs and the arguments of the parties, we have, nonetheless, concluded that the appeal should be dismissed on the ground that certification was improvidently granted. Under existing legal principles, the governing law precludes the plaintiffs recovery for the reasons fully explained in the comprehensive opinion of the Appellate Court. The problem illuminated by this litigation calls for a change in the rules of practice that this court cannot enact.

The appeal is dismissed.

       We granted the plaintiffs petition for certification; Kupstis v. Michaud, 214 Conn. 801, 569 A.2d 550 (1990); limited to the following question: “Did the attorney referee’s delay in issuing his report violate (a) General Statutes § 51-183b; (b) applicable provisions of the Practice Book; or (c) the due process rights of the plaintiff under the United States Constitution or Article first, § 10, of the Connecticut Constitution?”


author: Peters, C. J.

text:
    Joseph A. Alemany v. Commissioner of Transportation
    (13901)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued April 4
    decision released June 26, 1990

      Frank W. Murphy, for the appellant (plaintiff).

      Robert T. Morrin, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Peters, C. J.

The principal issue in this condemnation case is the availability of severance damages for the risk of losses that may arise from future use of a highway easement but which have not yet occurred at the time of the taking. The defendant, the commissioner of transportation, condemned an easement interest in a portion of the plaintiff’s land in connection with the widening of United States Route 7. The defendant assessed damages in the amount of $7200, and filed a notice of condemnation with the Superior Court. The plaintiff, Joseph A. Alemany, brought an appeal for reassessment of damages in accordance with General Statutes § 13a-76. After a hearing, the Hon. Joseph J. Chernauskas, state trial referee, exercising the powers of the Superior Court, awarded the plaintiff an additional $2400 in compensation, plus interest and $4650 for appraisal fees. The plaintiff appealed to the Appellate Court, and we transferred the case to ourselves pursuant to Practice Book § 4023. We reverse that portion of the judgment dealing with the assessment of damages.

The trial court found the following relevant facts, which are undisputed in this appeal. The plaintiffs property is located in Wilton at the intersection of Holleyhock Road and Route 7, known also as Danbury Road. The plaintiffs lot, which is nearly level and at street grade, contains approximately 8700 square feet. The lot has 80.53 feet of frontage on Danbury Road and 104.57 feet of frontage on Holleyhock Road. Also located on the premises is the plaintiff’s two story wood frame commercial office building, which currently houses three offices. The plaintiff has twice renovated the structure since building it in 1973, and the court found it to be in good condition, with a remaining economic life of thirty years. Site improvements include a paved parking area, an illuminated sign, spotlights, fencing and landscaping. The property is served by public water and sewer systems, and is located near three major highways and a railroad.

Under the Wilton zoning regulations, the property, which is surrounded by strip commercial development, is located in a designated enterprise district, known as a DE-5 zone. Professional offices are a permissible use in a DE-5 zone, although the plaintiff’s property conforms to neither the minimum five acre lot size nor the prohibition on front yard parking. Because the plaintiff’s use of the property predated the DE-5 restrictions, however, the town approved a site plan for the current use with variances for both lot size and front yard parking. The approved site plan includes a landscaped buffer area separating the parking area from the highway.

The defendant condemned an easement “for highway purposes and its appurtenances” running along the entire length of the plaintiffs frontage on Route 7. The easement measures 84 feet in length on the easterly side and 80.53 feet on the westerly side, and varies in width from seven to nine feet. In total, the easement contains .02 acres, which represents 6.75 percent of the plaintiffs total usable land area. The current highway improvement project for which the easement was taken did not extend the travel portion of the highway to the easement area. The easement does cover the plaintiffs landscaped buffer area, however, and the Wilton town planner has opined that, in the event that the buffer is ever removed to facilitate the defendant’s use of the easement, “the Town of Wilton would require that the 10-foot landscaped island be replaced on the property adjacent to the easement area.” Replacing the buffer area in the plaintiff’s adjacent property would, in turn, encroach upon the front yard parking area. Although neither the buffer area nor the sign had been moved by the time of trial, the defendant had requested the plaintiff to move the sign.

After hearing the testimony of the appraisers for both parties, the trial court found that the property was functioning in its highest and best use as professional office space, and that the property was developed to its maximum under the applicable land use regulations. With regard to the assessment of damages for the taking, the trial court rejected as unreliable the testimony of the plaintiff’s expert witness, and instead adopted the approach of Arnold S. Tesh, an appraiser presented by the defendant. The court found, in accordance with Tesh’s testimony, that the fair market value of the plaintiff’s property, excluding the building, was $130,700 prior to the taking and $121,100 after the taking. Accordingly, the court ordered the defendant to pay damages in the amount of $9600. The court also ordered that the defendant pay interest on the damages, and $4650 for the plaintiff’s appraisal fees. The court rejected, however, the plaintiff’s request for reimbursement of the $750 fee charged by his appraiser for testifying in court.

The plaintiff challenges three aspects of the trial court’s judgment. First, the plaintiff contends that the trial court’s assessment of damages was inadequate due to its allegedly mistaken conclusion that the defendant condemned an easement, rather than a fee simple interest, in the subject property. Second, he challenges the trial court’s determination that he was not entitled to severance damages because the current highway improvement project did not have a direct impact on the property outside of the easement area. Finally, the plaintiff contends that the trial court should have awarded him reimbursement for the $750 fee charged by his appraiser for testifying in court.

I

The plaintiff first contends that the trial court mistakenly concluded that the defendant condemned only an easement interest in his property. Emphasizing that the language of the notice of condemnation affords the defendant broad rights for the use of the property and contains no restriction on the duration of those rights, the plaintiff argues that the defendant actually acquired full fee simple title to the subject premises. Accordingly, the plaintiff contends, the trial court’s assessment of damages must be revised to compensate for the forfeiture of the additional rights associated with fee simple title. We disagree.

An instrument conveying an interest in land conveys only that which is specifically expressed in the document. Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 441, 440 A.2d 935 (1981). The language of the notice of condemnation in this case is unambiguous in its description of the property at issue as an easement. As a general matter, the notice characterizes the property as “an easement for highway purposes and its appurtenances.” In its more specific provisions, the notice states that the property is needed for “the layout, alteration, extension, widening, change of grade and improvement” of Route 7. Since the condemnation, by its terms, is limited to use of the property for highway purposes, the defendant can exercise no more rights over the property than those consistent with an easement. Peterson v. Oxford, 189 Conn. 740, 745, 459. A.2d 100 (1983). We have also previously held that, when the commissioner of transportation condemns property pursuant to the statute authorizing takings for highway improvements, the property acquired is an easement. Arborio v. Hartford Electric Light Co., 130 Conn. 592, 595, 36 A.2d 384 (1944); Kratochvil v. Cox, 129 Conn. 246, 249, 27 A.2d 382 (1942).

Moreover, the plaintiff has retained substantial beneficial rights to the property. Since the current highway improvement project has not extended the travel portion of the highway over the easement area, the plaintiff can make full usé of the easement area for his own purposes, provided that those uses are not inconsistent with the defendant’s easement. American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 74, 574 A.2d 796 (1990); Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 464, 352 A.2d 304 (1974). The plaintiff could, for example, maintain his existing landscaped buffer area within the easement in order to ensure continuing compliance with the conditions of his zoning variances. The plaintiff also enjoys the prospect of reacquiring full and unencumbered title to the property in the event that the state abandons the highway. Ventres v. Farmington, 192 Conn. 663, 668-69 n.3, 473 A.2d 1216 (1984); Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 356, 114 A.2d 216 (1955).

We are also not persuaded that the absence of a limitation on the duration of the defendant’s rights to use the property serves to create a fee simple interest. The plaintiff correctly states that the proper focus in determining the nature of the easement should not be the scope of the current highway improvement project, but rather the rights, both present and future, that the defendant has acquired. The fact that the notice of condemnation contains no temporal limitation on the defendant’s rights does not, however, overcome the express limitation on the scope of the defendant’s ability to use the property. We therefore conclude that the trial court correctly determined that the defendant condemned only an easement for highway purposes and that title to the fee simple interest remains in the plaintiff.

II

The plaintiff next challenges the trial court’s refusal to grant severance damages for the taking. The plaintiff contends that, in assessing damages, the trial court mistakenly focused on the area within the designated easement and on the physical improvements associated with the current project. In doing so, the plaintiff contends, the trial court excluded from consideration the impact of more intensive future uses of the easement on the plaintiff’s property outside of the easement area. We agree.

The function of the trial court in condemnation cases is to determine as nearly as possible the fair equivalent in money for the property taken. Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 410, 270 A.2d 549 (1970). Although the market value of the taken property is ordinarily the most appropriate measure of fair compensation; DelVecchio v. New Haven Redevelopment Agency, 147 Conn. 362, 363-64, 161 A.2d 190 (1960); we have long held that other measures may be appropriate when the fair market value measure of damages does not fully compensate the owner. Colaluca v. Ives, 150 Conn. 521, 530, 191 A.2d 340 (1963); Winchester v. Cox, 129 Conn. 106, 114-15, 26 A.2d 592 (1942); State v. Suffield & Thompsonville Bridge Co., 82 Conn. 460, 467-68, 74 A. 775 (1909). “[T]he question of what is just compensation is an equitable one rather than a strictly legal or technical one. The paramount law intends that the condemnee shall be put in as good condition pecuniarily by just compensation as he would have been in had the property not been taken.” Colaluca v. Ives, supra.

We have consistently departed from the fair market value measure of damages in cases of partial takings. When only a portion of a party’s property is taken, the landowner is entitled not only to compensation for the value of the property taken, but also to severance damages for the diminution in the value of the landowner’s remaining property that the severance of a portion of the property causes. D’Addario v. Commissioner of Transportation, 180 Conn 355, 363, 429 A.2d 890 (1980); Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 298, 426 A.2d 280 (1979); 7A P. Nichols, Eminent Domain (3d Ed. 1990) § 12.02 [1], p. 12-2. To ensure that severance damages are included in the trial court’s assessment, damages should be calculated by the “before and after rule,” under which “[t]he proper measure of damages is the difference between the market value of ‘the whole tract’ as it lay before the taking and the market value of what remained of it thereafter.” Northeastern Gas Transmission Co. v. Ehrhorn, 145 Conn. 83, 86, 139 A.2d 53 (1958); Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 36, 428 A.2d 789 (1980); Meriden v. Ives, 165 Conn. 768, 770, 345 A.2d 13 (1974).

We have also established, in highway easement cases, that the landowner is entitled to compensation for severance damages that might result from prospective uses of the easement as well as the damages immediately flowing from the presently contemplated highway improvement project for which the land was taken. Bowen v. Ives, 171 Conn. 231, 238, 368 A.2d 82 (1976); Meriden v. Ives, supra, 771; Andrews v. Cox, 127 Conn. 455, 459, 17 A.2d 507 (1941). As we stated in Munson v. MacDonald, 113 Conn. 651, 659, 155 A. 910 (1931), it is proper to consider “such use of the land taken as would in any reasonable anticipation be most disadvantageous to the landowner.” Andrews v. Cox, supra; Healey v. New Haven, 47 Conn. 305, 314 (1879). In calculating severance losses, the trial court must “[take] into consideration the changes contemplated in the improvement and those which are so possible of occurence in the future that they may reasonably be held to affect market value.” Lefebvre v. Cox, 129 Conn. 262, 265, 28 A.2d 5 (1942); Wakeman v. Commissioner of Transportation, 177 Conn. 432, 435, 418 A.2d 78 (1979); D’Addario v. Commissioner of Transportation, 172 Conn. 182, 184-85, 374 A.2d 163 (1976). Moreover, the landowner need not demonstrate that a more detrimental future use is likely to occur; all possibilities that would affect market value are relevant. Andrews v. Cox, supra, 462.

The trial court explicitly adopted the “before and after” test in its effort to determine the damages that the plaintiff had suffered. In applying the before and after test, however, the court unduly restricted the factors to be considered in establishing the after-taking value of the property. The trial court reasoned that severance damages were not available because “[tjhere are no unusual circumstances in being or even remotely possible where the basement acquisition would adversely affect the existing building and the site improvements not within the taking.” The court focused solely on the effects of the current highway improvement project, while excluding the potential impact of future, more intensive uses of the easement on the value of the plaintiffs remaining property. Since the easement affords the state the right to use the easement area more intensively than is contemplated in the current widening project, such as by extending the travel portion of the highway over the easement area, we conclude that the trial court adopted an unduly narrow approach to the assessment of damages.

The court’s unduly restrictive approach led it to overlook several elements of severance damages that might reasonably affect the price that a buyer would be willing to pay for the plaintiff’s property. First, the trial court failed to consider the impact of the prospect that the illuminated sign will have to be moved on the after-taking value of the property. The trial court rejected this as an element of damage on the ground that the sign had not yet been moved. That a potential consequence of a taking has not been manifested at the time of trial does not, however, preclude recovery. Slavitt v. Ives, 163 Conn. 198, 206, 303 A.2d 13 (1972). The trial court should have considered the possibility thát the sign will eventually be moved, a prospect that seems quite likely in light of the fact that the defendant has already made such a request of the plaintiff.

In addition to the sign removal, the trial court should also have considered the plaintiff’s evidence concerning the possibility that future use of the highway easement could necessitate removal of the landscaped buffer area and reestablishment of the buffer area on the plaintiff’s adjacent property, with the concomitant loss of the space available for parking. In concluding that this potential loss was not compensable, the trial court noted that the plaintiff, as an existing nonconforming user, might not have to replace the buffer area if the current one is eliminated. This conclusion ignores the fact, however, that the plaintiff is operating under an approved site plan showing a buffer area between the highway and the parking area. While the plaintiff might be able to obtain a variance from the obligation to maintain a buffer area, a potential buyer of the plaintiffs property would be likely to discount its value because of the risk that such a proceeding would be costly or indeed might not succeed. The trial court should have taken this factor into account. Wakeman v. Commissioner of Transportation, supra, 435; Appeal of Phillips, 113 Conn. 40, 43-44, 154 A. 238 (1931).

The trial court’s failure to consider these important elements of the plaintiff’s severance damages necessitates a remand for the purpose of reassessing damages. On remand, the trial court should consider the value of the plaintiff’s property in light of the current highway project and any other changes that are so likely to occur in the future that they may reasonably be held to affect present value. For the assessment of prospective severance damages, the proper test is not the cost of future remedial action, but the present impairment of the value of the plaintiff’s property that results from those potential losses. Wakeman v. Commissioner of Transportation, supra, 435-36; Bowen v. Ives, supra, 236-37; Andrews v. Cox, supra, 460. The determination of the after-taking value of the plaintiff’s property depends, in turn, upon the court’s assessment of the likelihood that future uses of the easement will actually cause such damages. Andrews v. Cox, supra; cf. Petriello v. Kalman, 215 Conn. 377, 396-97, 576 A.2d 474 (1990).

Ill

The plaintiff’s third and final contention on appeal is that the trial court should have reimbursed him for the $750 fee charged by his appraiser for testifying in court. The plaintiff argues that he is entitled to reimbursement for this fee, notwithstanding the absence of any statutory provision explicitly requiring such reimbursement, because the appraiser’s testimony was a necessary foundation for the admissibility of the appraiser’s report. Given the centrality of proof of damages to his case, he contends that the court’s refusal to award reimbursement for the fee violated his constitutional right to just compensation. We are not persuaded.

The authority for a landowner’s recovery of appraisal fees in highway condemnation cases is found in General Statutes § 13a-76. This statute provides that, whenever the court determines that the commissioner’s assessment of damages was inadequate, the court “shall award to such property owner such appraisal fees as [the court] determines to be reasonable.” The question of what constitutes a reasonable amount of appraisal fees is an issue of fact for the trial court; French v. Clinton, 215 Conn. 197, 205, 575 A.2d 686 (1990); and we will not overturn that finding unless it is clearly erroneous. Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 219-22, 435 A.2d 24 (1980).

The trial court awarded the plaintiff a total of $4650 in appraisal fees, the full amount of the appraiser’s original bill. In light of the fact that the defendant challenged the reasonableness of the appraiser’s fee, we conclude that the trial court could plausibly have determined that a reasonable fee for the services of the plaintiff’s appraiser, taken as a whole, should not exceed $4650. Furthermore, we conclude that the court’s award of what it has determined to be a reasonable amount for the appraiser’s services fully satisfies the constitutional requirement that the plaintiff receive just compensation for the taking.

The judgment is reversed in part and the case is remanded for further proceedings to reassess damages in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 13a-76 provides in pertinent part: “appeal to superior COURT. REASSESSMENT OF DAMAGES OR BENEFITS BY TRIAL REFEREE. Any person claiming to be aggrieved by the assessment of such special damages or such special benefits by the commissioner may, at any time within six months after the same has been so filed, apply to the superior court for the judicial district within which such land is situated or, if said court is not in session, to any judge thereof for a reassessment of such damages or such benefits so far as the same affect such applicant.”

       At trial, the plaintiff also alleged that, because the taking reduced even further the size of his already undersized lot, he should recover compensation for the resulting increase in nonconformity with the Wilton land use regulations. The trial court did not find this contention persuasive, however, and the plaintiff has not challenged this finding on appeal.

      . Our earlier decisions on this subject involved the predecessor statute to General Statutes § 13a-73 (b), the provision under which the defendant had authority to condemn the property in this case.

       We note that the defendant has conceded that his appraiser, whose appraisal the trial court adopted in toto, did not include any amount for severance losses in his estimate of damages.

       The defendant contends that the cost of moving the sign should not be considered an element of damages in this action since the sign is personalty, rather than realty, and since the plaintiff would be able to recover the expense of moving under the Uniform Relocation Assistance Act, General Statutes § 8-266 et seq. This argument is without merit. We have consistently held that the expense of moving such personalty as heavy machinery is a proper element of severance damages. Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 102, 230 A.2d 9 (1967); DelVecchio v. New Haven Redevlopment Agency, 147 Conn. 362, 364-65, 161 A.2d 190 (1960); Harvey Textile Co. v. Hill, 135 Conn. 686, 689, 67 A.2d 851 (1949). Furthermore, it is apparent from the statute’s statement of purpose that the Uniform Relocation Assistance Act is intended as a mechanism for reimbursement for moving expenses of persons displaced by condemnation; see General Statutes § 8-266; rather than for the reimbursement of severance damages. In any event, nothing in the statute suggests that it is intended as the exclusive remedy.

       Although the defendant’s appraiser did testify that he included in his estimate of damages the amount of $200 for the loss of the landscaped buffer area, that figure represented the value of the landscaping itself, and did not include an amount reflecting the diminution in value of the remainder of the property that might be expected from the prospect of reestablishing the buffer area on the plaintiff’s adjacent property.

       The plaintiff also contends that he should receive compensation for the loss of one of his tenants and his inability to lease the vacant office for an extended period of time. The trial court did not find, however, that the condemnation caused the plaintiffs difficulty in leasing the office, and the plaintiff has not shown that the trial court was clearly erroneous in failing to make such a finding. Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 219-22, 435 A.2d 24 (1980).

       We note, however, that our holding does not preclude the trial court from exercising its discretion to award additional appraisal fees if it deems such fees appropriate for additional services rendered in connection with the reassessment of damages on remand.