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conn/1018421.json

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+"{\"id\": \"1018421\", \"name\": \"MADISON HILLS LIMITED PARTNERSHIP v. TOWN OF MADISON ET AL.\", \"name_abbreviation\": \"Madison Hills Ltd. Partnership v. Town of Madison\", \"decision_date\": \"1996-02-20\", \"docket_number\": \"14081\", \"first_page\": \"404\", \"last_page\": \"409\", \"citations\": \"40 Conn. App. 404\", \"volume\": \"40\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T19:19:35.343580+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MADISON HILLS LIMITED PARTNERSHIP v. TOWN OF MADISON ET AL.\", \"head_matter\": \"MADISON HILLS LIMITED PARTNERSHIP v. TOWN OF MADISON ET AL.\\n(14081)\\nDupont, C. J., and Foti and Daly, Js.\\nArgued December 11, 1995\\ndecision released February 20, 1996\\nBernard Green, with whom, on the brief, was Mami Smith Katz, for the appellant (plaintiff).\\nSteven R. Dernbo, with whom was Andre E. Becker, for the appellees (TEPA Associates et al.).\", \"word_count\": \"1789\", \"char_count\": \"10673\", \"text\": \"FOTI, J.\\nThis is an appeal taken by the plaintiff Madison Hills Limited Partnership from the granting of a motion to set aside or open a default quiet title judgment. The plaintiff alleges that, pursuant to General Statutes \\u00a7 52-212, the trial court, lacked jurisdiction to open the judgment. We affirm the decision of the trial court.\\nThe following facts are relevant to the resolution of this appeal. In December, 1988, the plaintiff filed a one count complaint seeking a declaratory judgment to quiet title to property located in the town of Madison. Named as defendants were the town of Madison and all unknown persons having an interest in the property. In compliance with the trial court's orders, the plaintiff published notice of the action in the New Haven Register on December 26 through December 28, 1988. Fol lowing defaults against the town for failure to plead, and against all other defendants for failure to appear, the trial court rendered judgment on May 8,1989, ordering that the plaintiff had clear title to the parcel in question.\\nOn March 10, 1992, TEPA Associates (TEPA) and Candlewood Development Company (Candlewood) moved to set aside or open the judgment, claiming title to a seventeen acre tract of land located within the 600 acre parcel that is the subject of the judgment. The trial court conducted a hearing over several days during which the parties presented evidence. The trial court granted the motion to open the judgment on September 19, 1994.\\nThe sole issue on appeal is whether the trial court lacked jurisdiction to open the judgment. Specifically, the plaintiff claims that TEPA and Candlewood are non-party entities that lack standing. The plaintiff argues that TEPA and Candlewood do not have standing to file the motion to set aside or open the judgment because they are not parties to the proceeding, they have failed to file a motion for permission to be made parties to the proceeding and they have failed to present evidence from which the court could find that they had an interest in the subject real property. All of these factors, the plaintiff maintains, deprived the court of jurisdiction to set aside the default judgment. We do not agree.\\n\\\"[The] plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion [requiring] . . . some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.\\\" (Internal quotation marks omitted.) Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991).\\nThe question to be answered is whether the interest sought to be protected by the complaint is arguably within the zone of interests to be protected by the statute in question, and whether the party has alleged a colorable claim of injury to that interest. See United Cable Television Service Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 345, 663 A.2d 1011 (1995). We examine the parties, not the merits of the action. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 64, 441 A.2d 68 (1981).\\n\\\" 'Standing requires no more than a colorable claim of injury; a plaintiff ordinarily establishes his standing by allegations of injury. Similarly, standing exists to attempt to vindicate \\\"arguably\\\" protected interests.' \\\" (Emphasis in original.) Residential Capitol Corp. v. Reale, 231 Conn. 500, 505, 652 A.2d 489 (1994), quoting Maloney v. Pac, 183 Conn. 313, 321 n.6, 439 A.2d 349 (1981).\\n\\\"[T]he standing doctrine requires a plaintiff to demonstrate two facts. First, the complaining party must be a'proper party to request adjudication of the issues.'. . . Second, the person or persons who prosecute the claim on behalf of the complaining party must have authority to represent the party.\\\" (Citation omitted.) Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 571, 651 A.2d 1246 (1995). A showing that one is a \\\"proper party\\\" can ordinarily be done by making a colorable claim that alleges a direct injury suffered or likely to be suffered in an individual or representative capacity. Id., 572.\\nThe allegations of TEPA and Candlewood are sufficient to establish a colorable claim of a direct injury to their ownership interest in land located within the property that is the subject of the plaintiffs quiet title action. Among other things, they allege under oath that they \\\"own a parcel of property consisting of seventeen plus or minus acres known as The Pond Lot within the area claimed by [the] Plaintiff . . . [that they] have a deed to this property and a continuous chain of title which can be established . . . [and that their] property is located within the property to which [the] Plaintiff is seeking to quiet title.\\\" (Emphasis added.) We conclude that the allegations are sufficient to establish TEPA and Candlewood as \\\"proper parties\\\" to request adjudication of the issues.\\nThe granting of the motion to open is affirmed.\\nIn this opinion the other judges concurred.\\nGeneral Statutes \\u00a7 52-212 provides in pertinent part: \\\"(a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reins) ated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed ai the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.\\\"\\nThe complaint set forth in part, \\\"and all unknown persons, claiming or who may claim any rights, title, interest or estate in or lien or encumbrance upon the real property described in this complaint, adverse to the plaintiff, whether such claim or possible claim be vested or contingent . . . .\\\"\\nGeneral Statutes \\u00a7 47-31 provides in pertinent part: \\\"(b) The complaint in such action shall describe Ihe property in question and state the plaintiffs claim, interest, or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest. In any such action the plaintiff may join as defendant any unknown person or persons who claim or may claim any rights, title, estate or interest in or lien or encumbrance on the property described in the complaint, adverse to that of the plaintiff, whether the claim or possible claim be vested or contingent. If in the complaint, the plaintiff alleges that there are or that there may be persons who have or may have some right, title, estate or interest in or lien or encumbrance on the real or personal property but the persons cannot be located or are unknown to the plaintiff, or both, and describes the actual or possible estate or interest of such person or persons, and how derived, so far as may be known to him from a reasonable search of Ihe available land records or otherwise, he may join as defendants all unknown persons who may have made any such claim by stating in the summons, after setting forth the names of known claimants, the words, 'and all unknown persons, claiming or who may claim any rights, title, interest or estate in or lien or encumbrance upon the real property described in this complaint, adverse to the plaintiff, whether such claim or possible claim be vested or contingent', and it shall not be necessary to set forth therein any further description of the unknown person or persons. If, there are no known claimants, or possible claimants, to the property described in the complaint, the action shall be deemed to be maintained against all unknown persons claiming or who may claim any rights, title, estate, or interest, or lien or encumbrance upon the real or personal property described in the complaint, adverse to that of the plaintiff, whether the claim be vested or contingent, and the action may be prosecuted to judgment in the same manner and with like effect as though there had been known claimants or possible claimants designated as party defendants.\\n\\\"(c) If the plaintiff or his attorney annexes to the complaint in any such action an affidavit setting forth such facts and in addition sets forth the efforts which were made to ascertain the names and addresses as well as the interest or estates of the unknown persons, the court to which the action is brought or a judge thereof may make such order relative to the notice which shall be given in such cause as the court or judge deems reasonable. That notice having been given according to the order and duly proven shall be sufficient to confer jurisdiction of all such unknown persons and the court may proceed to a hearing of the cause at any time that it deems proper. The court shall not be required to appoint any guardian or other person to represent such unknown persons under any legal disabilities and all such persons shall be concluded by any decree or judgment in respect to the real or personal property involved in the action. . . .\\\"\\nIn granting the motion, the trial court found that the plaintiffs affidavit for service of notice was insufficient, \\\"completely lacking of any statement showing that the plaintiff undertook any efforts to locate the \\\"unknown persons' . . . and did not comply with the requirement of General Statutes \\u00a7 47-31 (c).\\\" The court concluded that \\\"the insufficiency of the affidavit makes the order for publication and the default judgment void.\\\" A request for articulation was not filed.\\nThe issue as stated in the plaintiffs amended preliminary statement of issues provides: \\\"Did the court, on September 19, 1994, under the circumstances of this case, lack jurisdiction necessary to open the judgment of May 8, 1989?\\\"\\nThe moving parties attached an affidavit to their motion signed by one of the partners of TEPA, who is also one of the shareholders of Candlewood.\\nIn addition to the written allegations, TEPA and Candlewood also claim that a colorable claim of direct injury was shown by evidence presented to the court through the testimony of both lay and expert witnesses.\"}"

conn/1063658.json

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+"{\"id\": \"1063658\", \"name\": \"TOWN OF STRATFORD v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO, LOCAL 998\", \"name_abbreviation\": \"Town of Stratford v. International Ass'n of Firefighters, AFL-CIO, Local 998\", \"decision_date\": \"1998-06-02\", \"docket_number\": \"AC 16764\", \"first_page\": \"849\", \"last_page\": \"864\", \"citations\": \"48 Conn. App. 849\", \"volume\": \"48\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T00:27:51.686090+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TOWN OF STRATFORD v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO, LOCAL 998\", \"head_matter\": \"TOWN OF STRATFORD v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO, LOCAL 998\\n(AC 16764)\\nLavery, Schaller and Hennessy, Js.\\nArgued December 1, 1997\\nofficially released June 2, 1998\\nJ. William Gagne, Jr., for the appellant (defendant).\\nRichard J. Buturla, for the appellee (plaintiff).\", \"word_count\": \"4732\", \"char_count\": \"29471\", \"text\": \"Opinion\\nSCHALLER, J.\\nThe defendant, the International Association of Firefighters, AFL-CIO, Local 998 (union), appeals from the judgment of the trial court vacating an arbitration award. The principal issue in this appeal is whether the trial court improperly vacated the arbitration award on the ground that the arbitration panel failed to apply the doctrine of collateral estoppel with respect to a prior arbitration award on the same issue. We reverse the judgment of the trial court.\\nThe following facts are relevant to the disposition of this appeal. The plaintiff, town of Stratford, and the union at all relevant times were parties to a collective bargaining agreement (agreement) that contained an arbitration clause. Under the arbitration clause, the parties agreed to submit unresolved grievances to the state board of mediation and arbitration (board). The parties further agreed that an arbitration decision by the board would be final.\\nOn December 12, 1991, the date on which the grievances involved in this appeal were filed, article I of the agreement provided that \\\"the positions of assistant fire prevention chief, assistant fire chief, deputy fire chief and chief are not members of the union bargaining unit.\\\" Section one of article XXII of the agreement, however, provided that \\\" all promotions in the Fire Department shall be made from eligibility lists for each promotional classification, which lists shall be established through competitive merit examinations . . . .\\\" (Emphasis in original.) The agreement also provided that when a vacancy occurred, it was to be filled by one of the three highest ranking candidates and that subsequent appointments were to be generated in the order of standing on the list. Moreover, the agreement provided that when an eligibility list expired, a new list had to be established within ninety days.\\nIn 1991, the eligibility lists for the positions of assistant fire chief and lieutenant in the fire prevention bureau expired, and replacement lists were not created within ninety days. On December 12, 1991, the union filed a class action grievance against the town, no. 91-04, on behalf of the firefighters seeking positions in the fire prevention bureau. The grievance alleged that the town had violated the agreement because it had failed to establish new examinations and eligibility lists for the positions of assistant fire chief and lieutenant for the fire prevention bureau.\\nOn December 12, 1991, the union also filed grievance no. 91-03, which was submitted to the board to determine if it was arbitrable. As did grievance no. 91-04, which was filed on the same day, no. 91-03 alleged that the town had violated article XXII, \\u00a7 1, of the agreement. This grievance concerned the following events, which had occurred earlier in 1991. In April, 1991, the town administered a promotional examination for the position of assistant fire chief in the fire suppression division. On May 30, 1991, the results of the examination were posted and a list was established with eight individuals, ranked one through eight, with the candidate receiving the highest score ranked as number one. On or about June 3, 1991, the town interviewed the first three candidates on the eligibility list for a vacancy for the position of assistant fire chief in the fire suppression division. This vacancy was filled by the candidate who was ranked first. On or about December 11, 1991, the town interviewed the candidates ranked two through four for the assistant fire chief position, and the town selected the third ranked candidate over the second ranked candidate. On or about January 4, 1993, the town interviewed the remaining candidates for the assistant fire chief position for two additional vacancies in the fire suppression division. The town again selected lower ranked candidates over individuals with higher ranks. The union's ground for grievance no. 91-03 was that the town had failed to promote employees on the eligibility list to assistant fire chief vacancies in the fire suppression division in the manner in which firefighters are to be selected from such lists as provided by \\u00a7 1 of article XXII.\\nOn December 28, 1993, a panel of arbitrators of the board issued an award in grievance no. 91-04, holding that article XXII of the agreement did not apply. The board found that the grievance was not arbitrable because the promotions clause of the agreement did not apply to promotions to jobs outside of the bargaining unit, including promotions to the position of assistant fire prevention chief. A unanimous panel rejected the union's contention that the parties had agreed orally in the 1987 negotiations to continue to apply article XXII to the assistant fire chief position.\\nOn March 17, 1994, a different panel of arbitrators issued an award holding that grievance no. 91-03 was arbitrable, which was inconsistent with the earlier decision. This second panel also decided that the issue to be decided was whether article XXII applies to employee promotions to the assistant fire chief position. The subject matter of this grievance thereafter proceeded on the merits before a third panel of arbitrators.\\nOn May 25, 1995, the third panel of arbitrators addressed the merits of no. 91-03 and issued an award holding that article XXII, \\u00a7 1, did apply to promotions to the position of assistant fire chief and that the town had violated this provision. The two panels of arbitrators deciding aspects of grievance no. 91-03, therefore, reached conclusions on the issue of arbitrability that were at odds with the prior arbitration award, namely, that article XXII applies to promotions to the assistant fire chief position.\\nOn February 22, 1996, the town filed an application to vacate the May 25, 1995 arbitration award in grievance no. 91-03 pursuant to General Statutes \\u00a7 52-418 (a) (4). The town argued that the arbitrators in no. 91-OS had incorrectly decided the award by failing to apply the doctrine of collateral estoppel to preclude relitigation of the interpretation of the agreement. The town argued that the decision of the panel in no. 91-04 controlled the contractual interpretation issue regarding the applicability of article XXII, \\u00a7 1. A hearing was held on August 19,1996, and on August 27,1996, the Superior Court vacated the May 25, 1995 arbitration award in case no. 91-03. The union filed this appeal challenging the trial court's decision to vacate the arbitration award in case no. 91-03.\\nThe union claims that the trial court improperly vacated the award in case no. 91-03 on two grounds. The union contends that because the submission of the parties pertaining to grievance no. 91-03 was unrestricted, the award in that case was final and binding and cannot be reviewed for errors of law or fact. The union contends, moreover, that even if the submission of an unrestricted arbitration award is reviewable for errors of law or fact, arbitrators in general are not bound by the decisions of other arbitrators. In this respect, the union argues that the trial court improperly applied the doctrine of collateral estoppel to vacate the award in case no. 91-03. The town claims that the trial court correctly vacated the arbitration award because the arbitrators exceeded their powers under \\u00a7 52-418 (a) (4) and because the award violates clear public policy in that the arbitration board did not apply the doctrine of collateral estoppel.\\n\\\"At the outset, we note that as a reviewing court we afford great deference to arbitrators' decisions . . . .\\\" Greater Bridgeport Transit District v. Amalgamated Transit Union, Local 1336, 28 Conn. App. 337, 341, 610 A.2d 1324 (1992), citing Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985), and Board of Education v. Hartford Federation of School Secretaries, 26 Conn. App. 351, 352, 600 A.2d 1053 (1992). The reason for this deference is that the scope of our review is expressly limited by \\u00a7 52-418 and by the terms of the parties' agreement. Metropolitan District Commission v. AFSCME, Council 4, Local 184, 237 Conn. 114, 118, 676 A.2d 825 (1996). It is well settled law in Connecticut that \\\"[a]ny challenge to an award on the ground that the arbitrator exceeded his powers is . . . properly limited to a comparison of the award with the submission.\\\" (Internal quotation marks omitted.) Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). \\\"Where the submission is unrestricted, 'the award is . . . final and binding and cannot be reviewed for errors of law or fact.' Milford Employees Assn. v. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980).\\\" Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 19, 453 A.2d 1158 (1983). \\\"Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved.\\\" (Internal quotation marks omitted.) Caldor, Inc. v. Thornton, supra, 340-41. \\\"Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.\\\" Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992).\\nIn the present case, the parties concede that both of the awards, the \\\"first grievance decided\\\" and the \\\"second grievance decided,\\\" arose out of unrestricted submissions. Even though both grievances were unrestricted and our review is limited accordingly, \\\"we have . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute . (2) the award violates clear public policy . or (3) the award contravenes one or more of the statutory proscriptions of \\u00a7 52-418.\\\" (Citations omitted.) Id., 6. The town challenges the award on the basis of the latter two grounds.\\n\\\"In spite of the general rule that challenges to an arbitrator's authority are limited to a comparison of the award to the submission, an additional challenge exists . . . when the award rendered is claimed to be in contravention of public policy. . . . This challenge is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . When a challenge to the arbitrator's authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator's decision, but with the lawfulness of enforcing the award. . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court's refusal to enforce an arbitrator's interpretation of [a collective bargaining agreement] is limited to situations where the contract as intepreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. . . . The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.\\\" (Citations omitted; internal quotation marks omitted.) Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339-40, 555 A.2d 406 (1989). Therefore, given the narrow scope of the public policy limitation on arbitrators' authority, the trial court's determination to vacate the award will stand only if the town can demonstrate that the board's award clearly violates an established public policy mandate.\\n\\\"We have historically construed narrowly the two common law grounds for vacating an arbitration award. We denominate the constitutionality and public policy exceptions as common law grounds although we have, on occasion, implied that the basis for these grounds is to be found within the statutory scheme of \\u00a7 52-418 (a) (4). . It is more appropriate to recognize that the power to determine the constitutionality of a statute and the power to strike an arbitration ruling as violative of public policy exist apart from any particular grant of authority from the legislative branch. Because of the multiple sources authorizing judicial review of arbitration awards, we therefore deem inaccurate the implication in these earlier cases that \\u00a7 52-418 (a) (4) is the sole source of the court's power of review.\\\" (Citations omitted; emphasis in original.) Garrity v. McCaskey, supra, 223 Conn. 6.\\nThe town acknowledges that in deciding whether arbitrators have exceeded their powers under \\u00a7 52-418 (a) (4), courts have generally compared the award with the submission to determine if the award exceeds the scope of the submission. New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988); Board of Education v. AFSCME, supra, 195 Conn. 271. The town argues, however, that this general analysis is not appropriate to determine whether the doctrine of collateral estoppel should be applied to preclude the arbitrator from deciding the same issue of contractual interpretation again. We are not per suaded. In this case, the town and the union submitted to the arbitrator the question of whether the grievance was arbitrable. The award was issued stating that \\\"[t]he matter is arbitrable and the employees are entitled to know whether or not article XXII will be operative should an employee choose to aspire to the position of Assistant Fire Chief.\\\" Therefore, in comparing the award with the submission, the arbitrators did not exceed their powers under \\u00a7 52-418 (a) (4).\\nIn addition, the town argues that although the submission in this case was unrestricted, courts have the authority to vacate an award pursuant to \\u00a7 52-418 (a) (4) when it violates clear public policy. The town maintains that the second arbitration board failed to apply the doctrine of collateral estoppel and, therefore, did not adhere to the public policy consideration that requires giving collateral estoppel effect to prior arbitration awards in subsequent arbitrations. The town argues that \\\" [conflicting contractual interpretation awards are repugnant to the fundamental policy underlying the doctrines of res judicata and collateral estoppel that a multiplicity of the same disputes should be avoided.\\\" The town asserts, therefore, that the trial court was justified in vacating the arbitration award at issue.\\nWe acknowledge that the doctrine of collateral estop-pel is based and enforced on the ground of public policy. Brady v. Anderson, 110 Conn. 432, 435, 148 A. 365 (1930). \\\"To prevent a multiplicity of actions, equity will enjoin further litigation of a cause of action which has already been adjudicated. A final judgment on the merits is conclusive on the parties in an action and their privies as to the cause of action involved. If the same cause of action is again sued on, the judgment is conclusive with respect to any claims relating to the cause of action which were actually made or might have been made. . . . Collateral estoppel is that aspect of res judicata which is concerned with the effect of a final judgment on the subsequent litigation of a different cause of action involving some of the issues determined in a former action between the parties.\\\" (Citations omitted.) Corey v. Avco-Lycoming Division, 163 Conn. 309, 316-17, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973). As stated previously, the narrow exception that allows an award involving an unrestricted submission to be vacated by a court is premised on the fact that the parties cannot expect an arbitration award approving conduct that is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.\\nAlthough it can be said that collateral estoppel is a public policy notion in a general sense by virtue of its being well established in the law, we conclude that the failure of an arbitration board to apply this doctrine does not violate a well defined and dominant public policy in the sense that gives rise to the narrow excep tion. In the few cases where courts have vacated arbitration awards on public policy grounds, those awards contravened a well defined public policy mandate. See Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979). Other cases have held similarly. In State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 290, 508 A.2d 806 (1986), awards were set aside pursuant to \\u00a7 52-418 (a) (4) because they were found to be in direct conflict with the policy of the state and the legislative intent that was clearly expressed in provisions of a state statute. In International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 148, 483 A.2d 626 (1984), an arbitration award that upheld the disciplining of a police officer for refusing to falsify an arrest warrant was set aside. Another example where a court vacated an arbitration award that contravened a well defined and specific public policy occurred in Avco Corp. v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961). In Avco, the court held that the arbitration board exceeded its authority when the award was found to contravene public policy because it called for the reinstatement of an employee who had been convicted under a state statute for gambling on his employer's premises. Id., 477-81. We conclude that rendering two inconsistent opinions in the context of arbitration proceedings is not a violation of a well defined and dominant public policy, and does not warrant court-ordered application of collateral estoppel.\\nAccordingly, we conclude that the trial court improperly interpreted the public policy exception as a basis for vacating the arbitration award as to grievance no. 91-03.\\nThe judgment is reversed and the case is remanded with direction to render judgment denying the application to vacate the arbitration award.\\nIn this opinion HENNESSY, J., concurred.\\nAlthough the trial court employed the term \\\"res judicata\\\" in its memorandum of decision, it is undisputed that issue preclusion rather than claim preclusion is involved and, therefore, collateral estoppel is the appropriate doctrine.\\nGeneral Statutes \\u00a7 52-418 (a) provides in relevant part: \\\"Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.\\\"\\nThe union also claims that the trial court improperly vacated the award because arbitration awards do not have the same stare decisis effect as court judgments, and the fact that inconsistencies exist between prior arbitration awards in itself is not a basis to vacate an award. Furthermore, the union claims that the trial court improperly relied on Corey v. Avco-Lycoming Division, 163 Conn. 309, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973), which is inapposite to this case. Finally, the union claims that the trial court cannot vacate an arbitration award that draws its essence from the collective bargaining agreement. We need not address these claims in view of our determination on the inapplicability of collateral estoppel.\\nAn unrestricted submission has been characterized as follows: \\\"The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584-85, 440 A.2d 774 (1981); Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106-107, 438 A.2d 1171 (1981).\\\" Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d 742 (1992).\\nThe town also claims that the doctrines of res judicata and collateral estoppel apply to arbitration awards. See Corey v. Avco-Lycoming Division, 163 Conn. 309, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903,34 L. Ed. 2d 699 (1973). The town argues that the trial court was correct in vacating the second arbitration panel's award because under the doctrine of collateral estoppel, the issue had already been decided in a previous proceeding. Furthermore, the town claims that the trial court properly considered Corey to be analogous and on point. We find the decision in Corey to be distinguishable. In Corey, the court determined the question of whether the decision of an arbitration panel precluded a hearing tribunal or another agency from deciding the same issue. Upon reviewing the same grievance the arbitration panel had already decided, the hearing tribunal reached a different result. In reaching its decision, the court in Corey held that a prior arbitration award was binding and conclusive on the hearing tribunal under the doctrines of collateral estoppel and res judicata. In the present case, however, the conflicting decisions involve two arbitration panels acting on an unrestricted submission.\\nThe dissent fails to address the unrestricted nature of the submissions and the consequent limitations on our review.\\nIn support of its argument, the town cites International Assn. of Firefighters v. Las Vegas, 107 Nev. 906, 823 P.2d 877 (1991). Furthermore, the town rests this claim on the doctrine that an award interpreting a collective bargaining agreement becomes a binding part of the agreement. Fournelle v. National Labor Relations Board, 670 F.2d 331, 344 (D.C. Cir. 1982) citing F. Elkouri & E. Elkouri, How Arbitration Works (1973) p. 377. While that doctrine is cited in Fournette and Elkouri, no Connecticut authority is cited nor have we found any such case. Moreover, the doctrine appears to relate principally to the filling in of gaps \\\"by reference to the practices of the particular industry and of the various shops covered by the [collective bargaining] agreement.\\\" United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960).\\nAlthough the dissent purports to extend our Supreme Court's decision in Corey to cover the situation presented in the case at hand, we have previously noted in footnote five that Corey is factually distinguishable from the present case.\\nCiting a Nevada case, International Assn. of Firefighters v. Las Vegas, 107 Nev. 906, 823 P.2d 877 (1991), the dissent relies on the proposition that an arbitrator's interpretation of the collective bargaining agreement becomes part of the contract and binds both parties. That proposition has not been adopted in Connecticut.\"}"

conn/1158485.json

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+"{\"id\": \"1158485\", \"name\": \"ALICE RAYNOR v. HICKOCK REALTY CORPORATION\", \"name_abbreviation\": \"Raynor v. Hickock Realty Corp.\", \"decision_date\": \"2000-12-26\", \"docket_number\": \"AC 19578\", \"first_page\": \"234\", \"last_page\": \"244\", \"citations\": \"61 Conn. App. 234\", \"volume\": \"61\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T17:13:44.127586+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALICE RAYNOR v. HICKOCK REALTY CORPORATION\", \"head_matter\": \"ALICE RAYNOR v. HICKOCK REALTY CORPORATION\\n(AC 19578)\\nLandau, Spear and Daly, Js.\\nArgued October 26\\nofficially released December 26, 2000\\nKevin F. Nelligan, for the appellant (plaintiff).\\nJ. Michael Sconyers, for the appellee (defendant).\", \"word_count\": \"3098\", \"char_count\": \"19013\", \"text\": \"Opinion\\nLANDAU, J.\\nThe plaintiff, Alice Raynor, appeals from the trial court's judgment rendered upon the granting of the motion for summary judgment filed by the defendant, Hickock Realty Corporation, because the plaintiff did not commence her personal injury action before the applicable statute of limitations expired. On appeal, the plaintiff claims that the court improperly concluded that (1) she failed to commence her action within the time permitted by the applicable statute of limitations and (2) the statute of limitations was not tolled when the defendant was served with prejudgment remedy documents. We disagree and affirm the judgment of the trial court.\\nThe applicable facts and procedural history of the action are undisputed. The plaintiff alleged that she was injured when she fell on June 19, 1995, on premises in Salisbury that she leased from the defendant. She first sought a prejudgment remedy by way of attachment of the defendant's real property, utilizing an order of notice permitting out-of-state service by mail. See General Statutes \\u00a7 52-278a through 52-278d. The plaintiff obtained a prejudgment order dated May 6,1997, and a notice for a hearing on her application for prejudgment remedy to be held on May 27, 1997. A deputy sheriff served the order, along with the prejudgment remedy documents, via the postal service.\\nThe plaintiff filed an application for a subsequent order of notice because the defendant failed to appear, and the plaintiff did not know whether the defendant had received actual notice. The court granted her application for a subsequent order of notice and signed it on June 6,1997. A deputy sheriff served the defendant's officers via mail.\\nThe court held a hearing on the plaintiffs application for prejudgment remedy on August 28,1997. Following receipt of the parties' briefs, the court, Pickett, J., granted the plaintiffs application to attach the defendant's real property. In February, 1998, the plaintiff served signed copies of the writ of summons and complaint on the defendant's officers. In February, 1999, the defendant moved for summary judgment on the basis of the plaintiffs failure to commence her action within two years of the date of injury, as required by General Statutes \\u00a7 52-584.\\nThe plaintiff raised a twofold argument in her objection to the motion for summary judgment. First, she claimed that she had instituted her action within the two year statute of limitations; second, if the court determined that service was untimely, Connecticut should adopt a rule that service of the prejudgment remedy documents tolls the statute of limitations. The court, DiPentima, J., agreeing with the defendant that the plaintiff failed to bring her action within two years of the date of injury, concluded that prejudgment remedy documents are not the equivalent of a writ of summons and complaint, and do not commence an action. We agree with the trial court.\\n\\\"The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book [\\u00a7 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [\\u00a7 17-46], . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). Summary judgment may be granted where the claim is barred by the statute of limitations. See Daily v. New Britain Machine Co., 200 Conn. 562, 566-70, 512 A.2d 893 (1986); Burns v. Hartford Hospital, 192 Conn. 451, 472 A.2d 1257 (1984). . . . Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996).\\\" (Internal quotation marks omitted.) Altfeter v. Naugatuck, 53 Conn. App. 791, 800-801, 732 A.2d 207 (1999). Where the trial court is presented with undisputed facts, as it was here, our review of its conclusions is plenary, as \\\"we must determine whether the court's conclusions are legally and logically correct . . . .\\\" (Internal quotation marks omitted.) Dept. of Social Services v. Saunders, 247 Conn. 686, 697, 724 A.2d 1093 (1999).\\nI\\nThe plaintiffs first claim is that the court improperly relied on Howard v. Robertson, 27 Conn. App. 621, 608 A.2d 711 (1992), and granted the defendant's motion for summary judgment because service of the prejudgment remedy documents tolled the statute of limitations. We disagree because Howard is controlling authority for the summary judgment motion before the court.\\nIn Howard, the plaintiff filed an application for a prejudgment remedy prior to serving a petition for a new trial. After the action was commenced, the defendant filed a motion for summary judgment, arguing that there was no genuine issue of material fact as to whether the action was commenced within the statute of limitations. The parties did not dispute the dates at issue. The plaintiff claimed, however, that the defendant had notice of her claim because he had been served with prejudgment remedy documents.\\nIn affirming the trial court's judgment, this court stated: \\\"It is well settled that an action is brought on the date on which the writ is served on a defendant. Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991); Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990); Seaboard Burner Corporation v. DeLong, 145 Conn. 300, 303, 141 A.2d 642 (1958); Consolidated Motor Lines, Inc. v. M & M Transportation Co., [128 Conn. 107, 109, 20 A.2d 621 (1941)].\\\" Howard v. Robertson, supra, 27 Conn. App. 625. \\\"[A] writ of summons is a statutory prerequisite to the commencement of a civil action. . . . [I]t is an essential element to the validity of the jurisdiction of the court. . . . Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiffs complaint must contain the basic information and direction normally included in a writ of summons. . . . Hillman v. Greenwich, supra, 526. A writ must contain a direction to a proper officer for service and a command to summon the defendant to appear in court. General Motors Acceptance Corporation v. Pumphrey, 13 Conn. App. 223, 228, 535 A.2d 396 (1988).\\\" (Internal quotation marks omitted.) Howard v. Robertson, supra, 626. This court concluded in Howard that although prejudgment remedy documents give a party sufficient notice of a prejudgment remedy hearing, they are not the equivalent of a writ necessary to toll the statute of limitations. Id.\\nHere, the plaintiff attempts to distinguish Howard by noting the factual distinctions between the documents served on the defendant in that case and the documents served on the defendant in this case. They are, however, factual distinctions without a difference with respect to whether an action has been commenced. First, the plaintiff notes that Howard concerned only the statutory prejudgment remedy documents, which do not contain any of the elements needed to commence an action. More specifically, the plaintiff argues that this court held that the defendant in Howard had not been notified that an action had been commenced because the statutory prejudgment remedy application states that the plaintiff \\\"is about to commence an action.\\\" The plaintiff further asserts that her prejudgment remedy documents provided notice of not only the prejudgment remedy application, but of \\\"the institution of this action\\\" because they included the proposed writ of summons and complaint, albeit unsigned. The plaintiff notes that she also served the defendant with an application for order of notice and an order of notice signed by the court.\\nA\\nThe plaintiff is mistaken as to her first contention that service of the prejudgment remedy documents tolls the running of the statute of limitations in \\u00a7 52-584 because they contain the words \\\"the institution of this action,\\\" and include the proposed writ of summons and complaint. She clothes her argument in the ill-suited raiment of notice, whereas the issue in this appeal is whether the service of an unsigned writ of summons and complaint has the effect of commencing a civil action. A summons is not synonymous with notice. See Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 339, 170 A.2d 732 (1961). The plaintiffs failure to sign the writ of summons and complaint is fatal to her claim.\\nB\\nThe plaintiff asks this court to overlook the fact that the summons and complaint accompanying the prejudgment remedy documents were not signed. We cannot ignore an omission of that nature. Process \\\"in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiffs complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable. . . .\\\" (Emphasis added.) Practice Book \\u00a7 8-1 (a); see also General Statutes \\u00a7 52-45a; Stewart-Brownstein v. Casey, 53 Conn. App. 84, 87, 728 A.2d 1130 (1999). \\\"The writ in order to be 'due process of law' must be signed by . . . a . . . commissioner of the Superior Court . . . or a . . . clerk of the court to which it is returnable.\\\" (Internal quotation marks omitted.) Brunswick v. Inland Wetlands Commission, 25 Conn. App. 543, 547, 596 A.2d 463 (1991), rev'd on other grounds, 222 Conn. 541, 610 A.2d 1260 (1992).\\nThe leading case concerning the necessity of a writ's being signed is Hillman v. Greenwich, supra, 217 Conn. 520, in which our Supreme Court stated: \\\"A summons is part of a citation. The citation . is a command to a duly authorized officer to summon the [defendant] . to appear in court on a specific day to answer the [complaint]. Village Creek Homeowners Assn. v. Public Utilities Commission, [supra, 148 Conn. 338-39].\\\" (Internal quotation marks omitted.) Hillman v. Greenwich, supra, 524-25. \\\"The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. . . . Without it, the officer would be little more than a delivery man.\\\" (Citations omitted; emphasis added.) Village Creek Homeowners Assn. v. Public Utilities Commission, supra, 339. A writ of summons is a \\\"statutory prerequisite\\\" to the commencement of an action, and \\\"it is an essential element to the validity of the jurisdiction of the court.\\\" Hillman v. Greenwich, supra, 526.\\n\\\"A complaint is a pleading. Practice Book [\\u00a7 10-20]; see also Practice Book [\\u00a7 10-6]; General Statutes \\u00a7 52-91; 1 Stephenson, Conn. Civ. Proc. (2d Ed.) \\u00a7 18 (b). A pleading must 'be signed by at least one attorney of record in his individual name.' Practice Book [\\u00a7 4-2]; see also General Statutes [\\u00a7 52-45b]. A pleading shall not be filed in couit unless it is signed by counsel. Practice Book [\\u00a7 7-6].\\\" Housing Authority v. Collins, 38 Conn. Sup. 389, 390, 449 A.2d 189 (1982). Although there is authority that an unsigned complaint may be amended; see General Statutes \\u00a7 52-128; Practice Book \\u00a7 10-59; Shokite v. Perez, 19 Conn. App. 203, 206-207, 561 A.2d 461 (1989); the plaintiff never amended the unsigned complaint that was served with the prejudg ment remedy documents to include the necessary signature.\\nC\\nMoreover, the prejudgment remedy documents lacked a return date. The plaintiff claims that the court clerk caused that omission by marking out the return date that was provided. The absence of a return date on the writ, whether the fault of a plaintiff or a court clerk, is unforgivable. The prejudgment remedy papers served in Howard v. Robertson, supra, 27 Conn. App. 626, also did not specify a return date by which the defendant in that case would have had to file an appearance. The return date \\\"is a necessary component of a writ by which a civil action is commenced. General Statutes \\u00a7 52-45a.\\\" Howard v. Robertson, supra, 626. \\\"Both the time within which process must be served after its issuance and the time within which the writ must be filed with the court after service are determined by reference to the 'return day.' \\\" R. Bollier, N. Cioffi, K. Emmett, J. Kavanewsky, L. Murphy, Stephenson's Connecticut Civil Procedure (3d Ed. 1997) \\u00a7 16 a, p. 31.\\nThe prejudgment remedy documents lacked a signed writ of summons and complaint. Therefore, the action was not \\\"commenced\\\" within the meaning of \\u00a7 52-45a or the rule enunciated in Hillman v. Greenwich, supra, 217 Conn. 520, until February, 1998, long after the expiration of the limitation period set forth in \\u00a7 52-584.\\nII\\nIn her second claim, the plaintiff asserts that this court should adopt the rule that the statute of limita tions is tolled when the prejudgment remedy documents are served. Specifically, she encourages this court to adopt such a rule because it will promote judicial economy without prejudice to the defendant and will conform with statutoiy authority. In support of her position, the plaintiff cites Grimes v. Housing Authority, 242 Conn. 236, 698 A.2d 302 (1997), as she did in the trial court. Grimes is not relevant to the facts here because it concerns the tolling of the statute of limitations in class actions, which involve multiple plaintiffs.\\nAlthough the plaintiff concedes that Grimes is limited to class actions, she argues that it is relevant because she would otherwise have an incentive to file two separate actions, one for a prejudgment remedy and one for personal injury, resulting in a multiplicity of litigation. The plaintiff attempts to bootstrap the Grimes rationale to remedy her failure to commence timely her action against the defendant. The court properly refused to apply to a common personal injury action a rationale appropriate to the procedural complexities of class actions.\\nFurthermore, pursuant to our statutory prejudgment remedy scheme, there was no need for the plaintiff to institute two actions. She simply could have availed herself of the provisions of General Statutes \\u00a7 52-278h by bringing her action within the statute of limitations together with an application for a prejudgment remedy.\\nThe plaintiff asks this court to create an exception to the statute of limitations in \\u00a7 52-584. Our discussion of the plaintiffs claims demonstrates that \\u00a7 52-584 applies to bar her action. We discern no basis for reaching another result.\\nThe judgment is affirmed.\\nIn this opinion the other judges concurred.\\nIn this opinion, the prejudgment remedy documents to which we refer are those documents included in the deputy sheriffs return of June 7,1997, specifically, the notice of application for prejudgment remedy/claim for hearing to contest application or claim exemption, the application for prejudgment, remedy, the schedule A, the affidavit of the plaintiff, the application for subsequent order of notice, the subsequent order of notice, the order, the summons, the order for prejudgment remedy, the writ of summons and direction of attachment, and the complaint and ad damnum.\\nGeneral Statutes \\u00a7 52-584 provides in relevant part: \\\"No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . .\\nThe defendant in Howard had constructed a house for the plaintiff, who refused to pay the full contract price because of unworkmanlike construction. Howard v. Robertson, supra, 27 Conn. App. 623. The defendant first brought an action against the plaintiff, who then filed a counterclaim. On February 3,1986, the trial court rendered judgment awarding damages to the defendant. Id. The plaintiff subsequently discovered previously undetectable defects in the house and informed the defendant in June, 1988, that she intended to petition for a new trial. Id. The plaintiff then served the defendant with an application for a prejudgment remedy on January 30, 1989. Id. The plaintiff served the defendant with a writ of summons and complaint on April 10, 1989. Id., 624. The statute of limitations at issue was General Statutes \\u00a7 52-582, which contains a three year limitation period. Howard v. Robertson, supra, 624-25.\\n\\\"All process involves a reasonable attempt to give notice to the defendant of the pendency of an action against him or his property. But notice alone is not enough.\\\" R. Bollier, N. Cioffi, K. Emmett, J. Kavanewsky, L. Murphy, Stephenson's Connecticut Civil Procedure (3d Ed. 1997) \\u00a7 11 b, p. 21.\\nThe absence of a return date is not the sole reason the plaintiff failed to commence her cause of action within the time permitted by \\u00a7 52-584. We therefore decline to address whether the clerk was at fault for striking out the return date that the plaintiff inserted or whether the clerk's striking out of the date was necessitated by the fact that the court had set the date by which the defendant was to be summoned to the prejudgment remedy hearing and the date of that hearing.\\nIn Grimes, our Supreme Court adopted the rule in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974), that \\\" 'the commencement o\\u00ed a class action suspends the applicable statute of limitations as to all asserted, members of the class who would have been parties had the suit been permitted to continue as a class action.' \\\" (Emphasis in original.) Grimes v. Housing Authority, supra, 242 Conn. 243. Practice Book \\u00a7 9-7 and 9-8, \\\"like rule 23 [of the Federal Rules of Civil Procedure], are designed to increase efficiencies in civil litigation by encouraging multiple plaintiffs to join in one. lawsuit.\\\" Grimes v. Housing Authority, supra, 244.\\nGeneral Statutes \\u00a7 52-278h provides: \\\"The provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly.\\\"\"}"

conn/12123723.json

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+"{\"id\": \"12123723\", \"name\": \"Tuttle and Holt against Clark\", \"name_abbreviation\": \"Tuttle v. Clark\", \"decision_date\": \"1822-06\", \"docket_number\": \"\", \"first_page\": \"153\", \"last_page\": \"157\", \"citations\": \"4 Conn. 153\", \"volume\": \"4\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T23:07:37.366037+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Judges were of the same opinion.\", \"parties\": \"Tuttle and Holt against Clark.\", \"head_matter\": \"Tuttle and Holt against Clark.\\nA sheriff having demanded payment of an execution in his hands against the defendant, which was neatly out, the defendant made his promissory note payable to the order of a third person, and by him indorsed in blank, and delivered it to the sheriff, contracting with him, that if the defendant should not pay the execution in ten days, it might be sold in market, or otherwise disposed of, and the avails applied in payment of the execution. After the expiration of the ten days, the execution remaining unpaid, the sheriff delivered the note, in the state in which he received it, to the plaintiffs, on their advancing to him a sum of money less than the face of the note, by more than the legal interest for the time the note had to run. Held, that the note so received by the sheriff, was in security of the execution; that he had an interest in it, coupled with a power to sell; and that consequently, it was an effective instrument in his hands, and not being usurious in its original concoction, it did not become so, by the subsequent sale to the plaintiffs.\\nThis was an action on a promissory note, made by the defendant, for 150 dollars, dated the 10th of August, 1819, payable to the order of Chester Whittlesey, at the Eagle bank, 90 days after date. The defendant pleaded non-assumpsit, with notice of usury.\\nThe cause was tried at Hartford, September term, 1821, before Hosmer, Ch. J.\\nNoah A. Phelps, Esq. sheriff of Hartford county, having in his hands for collection an execution against the defendant, demanded payment thereof; whereupon the defendant, on the 3d of September, 1819, delivered to him this note, on the terms specified in the following writing: \\u201cWhereas Noah A. Phelps, sheriff of Hartford county, has an execution to collect against me, in favour of the Eagle bank, for 129 dollars, 84 cents, debt, and cost of execution, dated the 6th day of July, 1819, and signed Roger S. Skinner, clerk of New-Haven city court; and whereas I have, this day, left with said Phelps my note, dated August 10th, 1819, payable at the Eagle bank, 90 days after date, to the order of Chester Whittlesey, for 150 dollars, and indorsed by said Whittlesey, and also by Roger Whittlesey; now, in case I shall not well and truly pay said Phelps the whole amount of said execution, and his fees thereon, within ten days from this date, I hereby agree, that said Phelps may sell said note in market, or otherwise dispose of it, and apply the avails thereof in payment of said execution, and the fees thereon, and the balance of the avails of said note, if any, to retain in his hands until called for. Hartford city, September 3d, 1819. Alphin Clark.\\u201d After the expiration of the ten days mentioned in this writing, Phelps delivered the note to the plaintiffs, indorsed as above stated, without indorsing it himself, and received of them therefor the sum of 139 dollars only; the plaintiffs having retained 11 dollars, for the advancement of the money. In answer to the plaintiff\\u2019s enquiry, he informed them, at the time of the delivery, that he could not say, that the maker of the note was a responsible man, but the indorsers were responsible. It did not appear, that the plaintiffs had any knowledge of the terms on which the note had been put into Phelps's hands. Phelps applied so much of the money received of the plaintiffs on the execution as was sufficient to pay it, with his fees, being about 137 dollars; and the balance he paid to the defendant. The questions between the parties were, whether the note was sold to the plaintiffs bona fide, or the money was loaned on a usurious reservation; whether the note was made merely to be disposed of by Phelps, without his being interested in it; and whether the ignorance of the plaintiffs concerning the terms on which the note was received by Phelps, made any difference in the case. The Judge instructed the jury, That as the defence made was usury, to sustain it, there must appear to have been a corrupt agreement for the loan of money, and the reservation of more than six per cent per ann. for the forbearance; and in this enquiry, the cover, if there was any, must be stripped off, and the transaction viewed in its genuine colours: That the question was, whether the plaintiffs bought the note bona fide, which legally they might do, or loaned their money, taking for the use of it a sum beyond what the law permitted: That on the legal construction of the writing recited, the note was not received by Phelps, in payment of the execution, it being put into his hands to sell or dispose of, as the agent of the defendant, if the execution were not paid in ten days: That the note first became an effective instrument on the delivery of it to the plaintiffs: And that the ignorance of the plaintiffs concerning the contract between Phelps and the defendant, made no difference in the case; but if the money was loaned for usury, it was at the peril of the plaintiffs, and they were liable to the consequences. Under this direction, the jury returned a verdict for the defendant; and the plaintiffs moved for a new trial, for a misdirection.\\nHartford,\\nJune, 1822.\\nN. Smith and Johnson, in support of the motion,\\ncontended, 1. That a note may be sold at a discount exceeding the legal interest, without usury. 1 Swift's Dig. 313. Lloyd v. Keach, 2 Conn. Rep. 175. Musgrove, q. t. v. Gibbs, 1 Dall. 217. Wycoff v. Longhead, 2 Dall. 92, Churchill v. Suter, 4 Mass. Rep. 156. 162.\\n2. That on the legal construction of the writing, given by the defendant, to Phelps, the note was received by him as security for the execution, with a conditional power to sell. The note, therefore, first became effective when delivered to Phelps. He had an interest in it. The defendant could not take back the note, before it was sold; nor could he revoke Phelps's authority to sell it, as he clearly might have done, had not that authority been coupled with an interest. Suppose bank stock had been pledged to Phelps, for the same purpose; would he, in that case, have been a mere agent to sell? Would the power to sell deprive him of his interest in the pledge?\\n3. That if this note was not an effective instrument until it came into the hands of the plaintiffs, their ignorance of that fact exempted them from the imputation of usury, and was proper to be considered by the jury. It was material to shew, that the plaintiffs meant to purchase a note, and not to loan money. They could not commit usury against their will.\\nT. S. Williams, contra,\\nadmitting, as the judge in his charge had admitted, that the bona fide purchase of a note at a greater discount than the legal interest, is not usury, contended, 1. That the note in question did not become effective until the plaintiffs took it. Neither of the indorsers ever owned it, or had any interest in it. For what purpose was it left with Phelps? Merely to raise money to pay the execution in his hands. He had a power to make it effective; and this is all the interest he had in it. Suppose the defendant had left with Phelps a blank note, having on it a blank indorsement, with power to fill it up, and negotiate it; would he not, in that case, have had the same interest as in this? And yet no one would claim, that such a note would be effective in that condition. If this was Phelps's note, what need was there of a from the defendant to sell it? He was, evidently, the mere agent of the defendant, to raise money, by means of this note, to satisfy the execution in his hands. If this point is established, it makes an end of the case: the plaintiffs cannot recover. Munn v. The Commission Company, 15 Johns. Rep. 44. 55.\\n2. That ignorance of the plaintiffs in relation to the previous history of the note, was properly excluded from the consideration of the jury. Jones v. Hake, cited 3 Johns. Ca. 68. reported 2 Johns. Ca. 60. Whether the transaction between Phelps and the plaintiffs amounted to a sale of the note, depended upon the facts, and not upon the plaintiffs\\u2019 knowledge or ignorance of them.\", \"word_count\": \"2063\", \"char_count\": \"11520\", \"text\": \"Hosmer, Ch. J.\\nWhether the charge to the jury, that the note declared on first became an effective instrument on the delivery of it to the plaintiffs, is the only point on which I shall express an opinion. The resolution of this question entirely depends on the construction of the receipt, given by sheriff Phelps, on the reception of the note. From this it appears, that he had in possession an execution for 129 dollars, 84 cents, against the defendant, in favour of the Eagle bank, to secure the payment of which, Clark made his note for 150 dollars, payable at the Eagle bank, in 90 days, to the order of Chester Whittelsey, and procured the said Whittelsey and Roger Whittelsey to indorse it. In this condition, the defendant delivered the note to the sheriff, at the same time contracting, if he should not pay the whole amount of the above execution, and the fees thereon, in ten days, that it might be sold in market, or otherwise be disposed of, and the avails be applied in payment of the execution: If a balance should remain, it was to be retained in the hands of the sheriff, until the defendant should call for it.\\nWithout adhering too tenaciously to the words of the contract, it is very obvious, that the note was made and delivered in security of the execution; and to attain this object, the construction should be favourable; and if necessary, most strongly against the defendant. Any exposition of the agreement, which would have a manifest tendency to defeat the in tended security, cannot be in accordance with the intention of the parties. The opinion expressed in the charge to the jury, was of this description: If the note was not an effective instrument, in the hands of the sheriff, anterior to the sale of it, during this period, it was no security to him; and the death of the maker, the impossibility of selling the note, or other similar causes, would frustrate the principal object of the negociation. On the other hand, there exists no good reason to deny, in behalf of the sheriff, who unquestionably had an interest in the note, the usual construction, resulting from the delivery of the instrument to him; more especially, when this, in no respects, is opposed to the defendant's interest, but is necessary to effectuate the security intended. For much stress has been put on on the express authority given to sell the note in the market; as if this were incompatible with the idea, that it was intended to be effective in the sheriff's hands. Although the note existed, when in his possession, in full force; yet, out of abundant caution, it was a point of prudence, to take an agreement from the defendant, which should preclude all future controversy relative to the loss, which might arise, from a forced sale of the instrument.\\nOn the whole, I am of opinion, that the note was an effective instrument in the hands of the sheriff, with the superadded power of disposal, should it be necessary, even at a loss, on the responsibility of the maker. In this view of the subject, the note was not usurious in its original concoction, or made with an usurious intent; but it was perfect and available in the sheriff's hands, and he could have maintained an action upon it against the maker. Munn v. Commission Company, 15 Johns. Rep. 44. 55. By necessary legal consequence, this note, free from the taint of usury, in its origin, he had a right to sell at a discount.\\nThe other Judges were of the same opinion.\\nNew trial to be granted.\"}"

conn/12254815.json

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+"{\"id\": \"12254815\", \"name\": \"Robin Mae Neder v. Thomas Wildrick\", \"name_abbreviation\": \"Neder v. Wildrick\", \"decision_date\": \"1985-12-03\", \"docket_number\": \"3660\", \"first_page\": \"551\", \"last_page\": \"551\", \"citations\": \"5 Conn. App. 551\", \"volume\": \"5\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T00:56:06.912770+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robin Mae Neder v. Thomas Wildrick\", \"head_matter\": \"Robin Mae Neder v. Thomas Wildrick\\n(3660)\\nHull, Daly and Bieluch, Js.\\nArgued November 14\\ndecision released December 3, 1985\\nCharles K. Thompson, for the appellant (defendant).\\nDouglas B. Sherman, assistant attorney general, with whom were Eugene C. Cushman and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (plaintiff).\", \"word_count\": \"58\", \"char_count\": \"376\", \"text\": \"Per Curiam.\\nThere is no error.\"}"

conn/1237188.json

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+"{\"id\": \"1237188\", \"name\": \"HENRY KUDLACZ v. LINDBERG HEAT TREATING COMPANY ET AL.\", \"name_abbreviation\": \"Kudlacz v. Lindberg Heat Treating Co.\", \"decision_date\": \"1999-09-14\", \"docket_number\": \"SC 15994\", \"first_page\": \"581\", \"last_page\": \"591\", \"citations\": \"250 Conn. 581\", \"volume\": \"250\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T21:40:55.753979+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HENRY KUDLACZ v. LINDBERG HEAT TREATING COMPANY ET AL.\", \"head_matter\": \"HENRY KUDLACZ v. LINDBERG HEAT TREATING COMPANY ET AL.\\n(SC 15994)\\nCallahan, C. J., and Borden, Berdon, Katz and Palmer, Js.\\nArgued April 20\\nofficially released September 14, 1999\\nJacek I. Smigelski, for the appellant (plaintiff).\\nRichard S. Bartlett, for the appellees (named defendant et al.).\", \"word_count\": \"3498\", \"char_count\": \"21330\", \"text\": \"Opinion\\nPALMER, J.\\nUnder General Statutes \\u00a7 31-301 (a), a party aggrieved by a decision of a workers' compensation commissioner (commissioner) has ten days within which to appeal that decision to the compensation review board (board). This certified appeal requires us to decide whether that ten day appeal period is tolled when the aggrieved party fails to file his appeal within the ten day period because, through no fault of his own, he does not receive notice of the commissioner's decision prior to the expiration of that ten day period. The Appellate Court concluded that the appeal period is not tolled in such circumstances. We disagree and, consequently, reverse the judgment of the Appellate Court.\\nThe opinion of the Appellate Court sets forth the following undisputed facts. The plaintiff, Henry Kudlacz, \\\"claimed to be injured on May 29, 1992, in the course of his employment as a delivery driver, and on June 4, 1992, in the course of his employment as a package sorter handler. In considering the evidence and testimony presented, the . . . commissioner . . . concluded that the plaintiff was not credible and that he was not injured at either [employment] as he alleged and, to the extent [that] he may have had a repetitive trauma injury to his back at [the second employment], there was no resulting permanent disability and no compensable period of temporary disability since the [plaintiff] continued to work after the injury . The commissioner vacated a voluntary agreement issued by the first employer and its insurance carrier based on mutual mistake of fact, and dismissed all claims for compensation and medical treatment presented by the plaintiff.\\\" (Internal quotation marks omitted.) Kudlacz v. Lindberg Heat Treating Co., 49 Conn. App. 1, 2-3, 712 A.2d 973 (1998).\\nThe commissioner sent notice of his decision via certified mail to all parties, including the plaintiff, on August 8, 1996. The plaintiff filed his petition for review of the commissioner's decision with the board on August 21,1996. The named defendant and its insurance carrier, also a defendant in this case, moved to dismiss the petition for lack of subject matter jurisdiction. Specifically, they claimed that the plaintiff had failed to file his petition within the ten day appeal period prescribed by \\u00a7 31-301 (a) because, under controlling precedent, \\\"the ten day period begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner's decision.\\\" (Emphasis added.) Conaci v. Hartford Hospital, 36 Conn. App. 298, 303, 650 A.2d 613 (1994). In response, the plaintiff acknowledged that he had not filed the petition within ten days of August 8, 1996, the date on which the commissioner had sent notice to him. The plaintiff claimed, however, that, through no fault of his own, he did not receive such notice until after the expiration of the ten day period. Under such circumstances, the plaintiff asserts, the limitation period was tolled, and the petition was timely because it was filed within ten days of the date that he received notice of the commissioner's decision. The board rejected the plaintiffs claim, stating that, under binding Appellate Court precedent, \\\"the date of receipt of notice is not the issue . [Rather,] it is the date meaningful notice of the [commissioner's] decision is sent, by [the commissioner].\\\" (Emphasis in original.) Kudlacz v. Lindberg Heat Treating Co., 3407 CRB 8-96-8 (June 6,1997). The board concluded, therefore, that it had \\\"no choice but to dismiss the [plaintiffs] appeal for failure to timely file under \\u00a7 31-301 (a).\\\" Id.\\nThe plaintiff appealed from the decision of the board to the Appellate Court, claiming that the board improperly determined that his petition was untimely under \\u00a7 31-301 (a). The Appellate Court, with one judge dissenting, affirmed the board's decision dismissing the plaintiffs petition for lack of subject matter jurisdiction. Kudlacz v. Lindberg Heat Treating Co., supra, 49 Conn. App. 6. In rejecting the plaintiffs claim, the Appellate Court reaffirmed its prior precedent, holding that the ten day appeal period of \\u00a7 31-301 (a) commences on the date meaningful notice of the commissioner's decision is sent to the party wanting to appeal. Id., 3-5. The court declined to make an exception for cases in which the aggrieved party can prove receipt of such notice after ten days from the date notice is sent. Id., 5-6. The court stated that to conclude that the ten day \\\"appeal period [set forth in \\u00a7 31-301 (a)] commences when notice of the appealable decision is received would create undue delay and difficulties in proving receipt by the party wanting to appeal. Conaci v. Hartford Hospital, supra, 36 Conn. App. 303. In determining when the appeal period commences, we rely, rather, on the records of the commission as to when notice is sent. Id., 304. As we recently stated, [t]his court must construe [\\u00a7 31-301 (a)] as it finds it without reference to whether we feel that the law might be improved . [We] cannot rewrite a statute to accomplish a particular result. That is the function of the legislature. . . . Vega v. Waltsco, Inc., [46 Conn. App. 298, 304, 699 A.2d 247 (1997)].\\\" (Internal quotation marks omitted.) Kudlacz v. Lindberg Heat Treating Co., supra, 5-6.\\nWe granted the plaintiff's petition for certification limited to the following issue: \\\"Did the Appellate Court properly affirm the decision of the compensation review board that it lacked subject matter jurisdiction over the plaintiffs appeal because it was untimely, pursuant to General Statutes \\u00a7 31-301 (a)?\\\" Kudlacz v. Lindberg Heat Treating Co., 247 Conn. 909, 719 A.2d 903 (1998). On appeal to this court, the plaintiff seeks reversal of the Appellate Court judgment on the ground that, under the circumstances of this case, we must construe the ten day appeal period of \\u00a7 31-301 (a) as having been tolled until the plaintiff received notice of the commissioner's decision. The plaintiff contends that it would be fundamentally unfair to deprive him of his statutory right to appeal the commissioner's decision because, through no fault of his own, he did not receive notice of the commissioner's decision until the ten day period for filing his petition already had expired. The plaintiff maintains that, in such circumstances, the legislature reasonably could not have intended the result reached by the Appellate Court. We agree with the statutory construction advocated by the plaintiff.\\n\\\"[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature. . As with any issue of statutory interpretation, our initial guide is the language of the statute itself. . . . Furthermore, we interpret statutory language in light of the puxpose and policy behind the enactment.\\\" (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). Finally, in seeking to ascertain the intent of the legislature regarding the proper construction of \\u00a7 31-301 (a), we are guided by \\\"the golden rule of statutory interpretation . . . that the legislature is presumed to have intended a reasonable, just and constitutional result.\\\" (Internal quotation marks omitted.) Hudson House Condominium Assn., Inc. v. Brooks, 223 Conn. 610, 615, 611 A.2d 862 (1992).\\nConstrued literally, \\u00a7 31-301 (a) mandates that a party who wishes to appeal from an adverse ruling of the commissioner do so within ten days after the commissioner renders his or her decision. We previously have eschewed a literal interpretation of the ten day limitation period of \\u00a7 31-301 (a), however, concluding that the legislature \\\"[undoubtedly . . . intended this provision to mean ten days after notice to the party of the entry of such finding-, otherwise, in the event of the failure of the commissioner to notify the party of his finding and award within the ten-day period, the taking of the appeal would be fruitless.\\\" (Emphasis added.) Murphy v. Elms Hotel, 104 Conn. 351, 352, 133 A. 106 (1926) (interpreting General Statutes [1918 Rev.] \\u00a7 5366, as amended by Public Acts 1919, c. 142, \\u00a7 14, predecessor to \\u00a7 31-301). \\\"Fundamental rights to procedural due process mandate such a construction.\\\" Trinkley v. Ella Grasso Regional Center, 220 Conn. 739, 743, 601 A.2d 515 (1992).\\nWe reach a similar conclusion with respect to the issue of statutory interpretation presented by this appeal. In light of the obvious unfairness inherent in depriving an aggrieved party of the right to appeal the commissioner's decision solely because of a failure of notice beyond that party's control, we will not lightly presume that the legislature intended such a result. See id.; Kron v. Thelen, 178 Conn. 189, 193, 197, 423 A.2d 857 (1979); Murphy v. Elms Hotel, supra, 104 Conn. 352.\\nAlthough the short appeal period contained in \\u00a7 31-301 (a) reflects the \\\"intention of the framers of the [Workers' Compensation Act (act)] . to establish a speedy, effective and inexpensive method for determining claims for compensation\\\"; Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 653, 363 A.2d 1085 (1975); there is nothing in the act to suggest that the quick resolution of compensation claims trumps all other considerations, including the right of an aggrieved party to obtain meaningful review of a commissioner's decision. On the contrary, the availability of such review is an integral part of the statutory scheme because, under the act, both the employer and employee surrender important rights otherwise available to them at common law. See, e.g., Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 446, 705 A.2d 1012 (1997) (\\\"The purpose of the [act] . . . is to provide compensation for injuries arising out of and in the course of employment, regardless of fault. . . . Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer's liability to the statutory amount. . In return, the employee is compensated for his or her losses without having to prove liability.\\\" [Internal quotation marks omitted.]). To bar an appeal by a party who, through no fault of his own, has not received notice of the commissioner's adverse decision, would be inconsistent with the right to appellate review expressly granted to an aggrieved party under \\u00a7 31-301 (a). It is one thing to conclude that an aggrieved party has forfeited the right to such review by failing to take appropriate steps to perfect that right; it is another matter entirely, however, to deprive a party of the right to appeal solely because of a failure of notice for which that party bears no responsibility.\\nThe defendants contend that the construction of \\u00a7 31-301 (a) urged by the plaintiff will further tax our already burdened workers' compensation system. Allowing an aggrieved party the opportunity to rebut the presumption of timely notice, the defendants maintain, is bound to spawn time-consuming litigation concerning when the aggrieved party actually received notice of the commissioner's decision, and whether that party bears any responsibility for the late notice. We are not persuaded by the defendants' argument. It will be the rare case in which notice sent to the parties by the commissioner via certified mail fails to arrive at an aggrieved party's address within ten days of the date that it was sent. In light of the significant interests at stake, our workers' compensation system must be prepared to bear whatever slight burden may result from the need to resolve the unusual case in which a claim of lack of notice is raised.\\nWe recognize that the statutory interpretation we adopt today may give rise to some inequities. For example, as the Appellate Court observed in Conaci v. Hartford Hospital, supra, 36 Conn. App. 304, a party receiving notice of a decision nine days after it has been sent by the commissioner has only one day within which to appeal, whereas a party who receives notice on the eleventh day has ten days within which to do so. Nevertheless, we agree with the observation of Judge Spear that \\\"[tjhere is no logic to the notion that the plaintiff, who received no notice during the ten day period, should lose his right to appeal because of the possibility that a case may arise in the future in which notice is received so late in the ten day period that the time to appeal is severely compressed. Such a case can be addressed if and when it arises.\\\" Kudlacz v. Lindberg Heat Treating Co., supra, 49 Conn. App. 12 (Spear, J., dissenting).\\nAccordingly, we conclude that the ten day appeal period of \\u00a7 31-301 (a) is tolled when the aggrieved party establishes that, through no fault of his own, he did not receive notice of the commissioner's decision within ten days of the date that it was sent. On remand, therefore, the plaintiff shall be afforded the opportunity to show that he did not receive notice of the commissioner's decision until August 20, 1996, as he has asserted; see footnote 7 of this opinion; and, furthermore, that he failed to receive such notice through no fault of his own.\\nThe judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the board for further proceedings according to law.\\nIn this opinion CALLAHAN, C. J., and BORDEN and KATZ, Js., concurred.\\nGeneral Statutes \\u00a7 31-301 (a) provides in relevant part: \\\"At any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. . . .\\\"\\nWhen we refer throughout this opinion to a party receiving notice of a commissioner's decision, including the plaintiff, we are referring to the receipt of notice by that party's counsel, to the extent that the party is represented by counsel. In Schreck v. Stamford, 250 Conn. 592, 600-601, 737 A.2d 916 (1999), also decided today, we held that when aplaintiff wishing to appeal an adverse decision of a commissioner is represented by counsel in that appeal, the ten day appeal period prescribed by \\u00a7 31-301 (a) begins to run on the date that the commissioner sends notice to the party's counsel, rather than to the party. As in Schreck, the plaintiff in this case was represented by counsel.\\n\\\"The plaintiff claims that the first injury was to his head and neck, and the second was to his back. The plaintiff sought [workers' compensation] benefits from his employers, the defendants Lindberg Heat Treating Company and United Parcel Service, Inc., and their respective insurance carriers, the defendants Crawford and Company and liberty Mutual Insurance Company.\\\" Kudlacz v. Lindberg Heat Treating Co., 49 Conn. App. 1, 2 n.3, 712 A.2d 973 (1998).\\nGeneral Statutes \\u00a7 31-321, which prescribes the manner of serving notice for purposes of this state's Workers' Compensation Act, provides in relevant part: \\\"Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under [the Workers' Compensation Act] to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business. . . .\\\" See also Kudlacz v. Lindberg Heat Treating Co., 3407 CRB 8-96-8 (June 6, 1997) (\\\"[i]n order to facilitate a determination of when notice of a decision is sent . all commissioners [must] send out notices of their decisions via certified mail\\\").\\nNotice of the commissioner's decision was sent to the plaintiffs attorney, whose mailing address at that time was a post office box.\\nThe Appellate Court consistently has reaffirmed this interpretation of \\u00a731-301 (a). See, e.g., Vega v. Waltsco, Inc., 46 Conn. App. 298, 301, 699 A.2d 247 (1997); Cyr v. Domino's Pizza, 45 Conn. App. 199, 203-204 n.5, 695 A.2d 29 (1997); Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720, 667 A.2d 76 (1995). As we have concluded today in Kulig v. Crown Supermarket, 250 Conn. 603, 610, 738 A.2d 613 (1999), we agree with this construction of \\u00a7 31-301 (a).\\nThe plaintiffs attorney represented that he received a facsimile copy of the decision on August 20, 1996, and an original copy on August 22, 1996.\\nThe plaintiff does not challenge the board's determination that it lacks subject matter jurisdiction over a petition for review that has not been filed within the period prescribed by \\u00a7 31-301 (a). See, e.g., Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 648, 363 A.2d 1085 (1975); Freeman v. Hull Dye & Print, Inc,., 39 Conn. App. 717, 720, 667 A.2d 76 (1995).\\nIn dissent, Judge Spear agreed with the plaintiff that principles of fundamental fairness precluded the construction of \\u00a7 31-301 (a) adopted by the majority. Kudlacz v. Lindberg Heat Treating Co., supra, 49 Conn. App. 6 (Spear, J., dissenting). Judge Spear addressed the rationale underlying the majority's decision as follows: \\\"Finally, the majority correctly states that we must construe \\u00a7 31-301 as we find it without regard to whether the law might be improved. The construction that I advocate does not change \\u00a7 31-301 in any way. It simply requires that the applicable time period be construed in a manner that is consistent with constitutional due process. It is a fundamental rule that, if its language permits, a statute will be construed so as to render it constitutionally valid. Grega v. Warden, 178 Conn. 207, 210, 423 A.2d 873 (1979). [The Connecticut] Supreme Court, in reliance on Gi-ega, later stated that a court is justified in holding that a statute was intended to be subject to constitutional requirements, and that those requirements are to be considered as embodied in the statute, if its terms do not exclude such requirements. . . . Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985). I see nothing in \\u00a7 31-301 that would preclude us from construing it so that the plaintiff, who acted promptly after receiving notice, is not barred from pursuing his appeal. I conclude that the appeal was timely filed.\\\" (Internal quotation marks omitted.) Kudlacz v. Lindberg Heat Treating Co., supra, 12 (Spear, J., dissenting).\\nThe plaintiff relies primarily on Kron v. Thelen, 178 Conn. 189, 423 A.2d 857 (1979), in which we stated that \\\"[t]he right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue. Until the prospective appellant has either actual or constructive no\\u00fcce that a decision has been reached, the right of appeal is meaningless.\\\" (Internal quotation marks omitted.) Id., 193.\\nWe note that neither party has presented us with any legislative history relative to the issue we decide today, and we are aware of none.\\nOf course, if an aggrieved party, either by action or inaction, thwarts reasonable efforts at notification, then that party reasonably cannot claim any unfairness if those efforts prove to be unavailing. Moreover, as this court has noted, a party's \\\"own inaction in response to actual notice cannot be made the basis of a claim that he was not afforded due process.\\\" Rogers v. Commission of Human Rights & Opportunities, 195 Conn. 543, 548, 489 A.2d 368 (1985).\\nSee footnote 4 of this opinion.\\nOf course, the party also must establish that the appeal was filed within ten days from the date that he actually received notice of the commissioner's decision. It does not appear, however, that that fact is disputed in this case.\\nThe plaintiff claims that the board made a factual finding that he did not receive notice within the ten day appeal period and, consequently, that no further proceedings on that issue are necessary. We disagree with the plaintiff's characterization of the board's decision. Although the board did state that \\\"[o]nly the [plaintiff] failed to receive notice within the ten-day appeal period\\\"; Kudlacz v. Lindberg Heat Treating Co., 3407 CRB 8-96-8 (June 6, 1997); that statement was made in connection with the board's discussion of the argument that the plaintiffs attorney had made in support of the plaintiff's claim that his petition for review should not be dismissed. There is nothing in the record to indicate that the board actually made a finding that the plaintiff had not received notice within the ten day period.\"}"

conn/12489159.json

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+"{\"id\": \"12489159\", \"name\": \"Donald GIBSON v. COMMISSIONER OF CORRECTION\", \"name_abbreviation\": \"Gibson v. Comm'r of Corr.\", \"decision_date\": \"2016-11-16\", \"docket_number\": \"No. 37505\", \"first_page\": \"330\", \"last_page\": \"330\", \"citations\": \"155 A.3d 330\", \"volume\": \"155\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-27T20:57:14.012355+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Donald GIBSON\\nv.\\nCOMMISSIONER OF CORRECTION\", \"head_matter\": \"Donald GIBSON\\nv.\\nCOMMISSIONER OF CORRECTION\\nNo. 37505\\nAppellate Court of Connecticut.\\nSubmitted on briefs November 16, 2016\\nOfficially released December 13, 2016\", \"word_count\": \"29\", \"char_count\": \"199\", \"text\": \"Per Curiam.\\nThe appeal is dismissed.\"}"

conn/12509247.json

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+"{\"id\": \"12509247\", \"name\": \"STATE of Connecticut v. EUCLIDES L.\", \"name_abbreviation\": \"State v. Euclides L.\", \"decision_date\": \"2019-04-09\", \"docket_number\": \"AC 40032\", \"first_page\": \"93\", \"last_page\": \"100\", \"citations\": \"207 A.3d 93\", \"volume\": \"207\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-27T20:57:49.725062+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Connecticut\\nv.\\nEUCLIDES L.\", \"head_matter\": \"STATE of Connecticut\\nv.\\nEUCLIDES L.\\nAC 40032\\nAppellate Court of Connecticut.\\nArgued January 15, 2019\\nOfficially released April 9, 2019\\nRobert L. O'Brien, assigned counsel, with whom, on the brief, was William A. Adsit, assigned counsel, for the appellant (defendant).\\nNancy L. Walker, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, senior assistant state's attorney, for the appellee (state).\\nAlvord, Prescott and Eveleigh, Js.\\nIn accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes \\u00a7 54-86e.\", \"word_count\": \"3898\", \"char_count\": \"22845\", \"text\": \"EVELEIGH, J.\\nThe defendant, Euclides L., appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to a child in violation of General Statutes \\u00a7 53-21 (a) (1). On appeal, the defendant claims that the trial court violated his constitutional rights by failing to instruct the jury that it should acquit the defendant if it concluded that his use of force in caring for his daughter, V, was an accident. We disagree and, accordingly, affirm the judgment of the trial court.\\nThe jury reasonably could have found the following facts. The defendant and J have one child together, V. From October, 2014, to January 9, 2015, the defendant, J and V lived together in an apartment in Vernon. During this time, the defendant and J were V's primary caregivers.\\nOn January 9, 2015, V, who was four months old at the time, was fussy because she was suffering from a cold and had received vaccinations two days earlier. At approximately 9:30 p.m., the defendant and J took V upstairs to put her to bed. While the defendant prepared V for bed, J was downstairs, although she periodically came upstairs to check on the defendant and the child. At approximately 11:10 p.m., after V\\nfell asleep, the defendant joined J downstairs.\\nAfter spending \\\"about a minute [downstairs] . [the defendant] asked J if [he] should wake [V] up and feed her because she didn't eat before bed.\\\" After J agreed that they should try to feed V, the defendant \\\"grabbed [V's] bottle and went upstairs and [woke] her up.\\\" When the defendant woke V, the child began to cry hysterically. Because V was congested and \\\"mucous was coming out of her nose in bubbles,\\\" the defendant tried to suction mucous out of her nose using a plastic bulb syringe. V wiggled and resisted the defendant so the defendant \\\"grabbed her face.\\\" This episode lasted approximately a minute to a minute and a half.\\nJ, who was downstairs while the defendant attempted to suction V's nose, heard V crying and went upstairs to check on the defendant and the child. As J approached the room in which the defendant was tending to V, she heard a muffled cry. When J entered the room, she saw that there was blood around V's nose and that the child's skin was blue in color. J believed that V needed oxygen and feared that this was a side effect of the vaccinations V had received two days earlier.\\nJ and the defendant immediately drove V to Rockville General Hospital (hospital). They arrived at the hospital at approximately 11:30 p.m. While the defendant parked the car, J ran into the hospital carrying V in her arms. J told the hospital staff that V was turning blue and needed oxygen V was crying when she arrived, butstopped after being comforted by hospital staff.\\nDanielle Mailloux, a physician employed at the hospital, attended to V. Mailloux observed a red mark under the child's nose and a purple round mark that was approximately two centimeters in diameter on her left cheek. During the first two hours that V was at the hospital, this mark grew in size and two additional marks developed on the right side of the child's face. Mailloux believed that the marks on V's face were bruises.\\nMailloux inquired as to V's medical history and concluded that the injuries could not be accounted for by any preexisting medical condition, including the vaccines V had received two days earlier. Mailloux asked V's parents how the child acquired the injuries, but neither the defendant nor J was able to provide Mailloux with an explanation. Because the unexplained bruising on V suggested abuse, Mailloux determined that she would need to file a report with the Department of Children and Families (department).\\nMailloux recommended that V be transferred to Connecticut Children's Medical Center in Hartford for inpatient treatment. Mailloux informed the defendant and J that after V was transferred, the department was going to become involved. At this point, the defendant became upset and said he would not sign the paperwork to have V transferred to Connecticut Children's Medical Center.\\nDespite the defendant's protestations, on January 10, 2015, V was transferred to Connecticut Children's Medical Center. Once V arrived, the police interviewed the defendant and J separately. During the interviews, neither the defendant nor J was able to explain how V had sustained her injuries. On January 12, 2015, William Olsen, an employee of the department, interviewed the defendant and J. Both the defendant and J indicated that they did not hurt V but again failed to provide an explanation for the child's injuries.\\nAlso on January 12, 2015, Nina Livingston, a physician and the director of the Suspected Child Abuse and Neglect team at Connecticut Children's Medical Center, evaluated V. Livingston noted that V had \\\"facial bruising in a wraparound distribution [from] ear to ear....\\\" Specifically, V had bruises on her forehead, left eyelid, cheeks, temples, jawline, both ears, and above and below her left eye. Additionally, V had abrasions below her right nostril, right ear, and left temple, as well as subconjunctival hemorrhages in both eyes. Because the injuries could not be accounted for by alternative medical causes and V could not yet roll over, Livingston concluded that V's injuries had been caused by someone else. On the basis of Olsen's and Livingston's findings, the department invoked a 96 hour administrative hold on behalf of V.\\nOn January 19, 2015, a week after the department invoked the 96 hour hold, the defendant revealed to J that he had caused V's bruises by holding her face while trying to suction mucous from her nose. J encouraged the defendant to disclose this information to the police. The defendant agreed to speak with the police, and J drove him to the police station, where, in a recorded video statement, the defendant admitted that he was responsible for V's bruises.\\nThe defendant also provided the police with a written statement in which he stated the following in regard to his attempts to suction V's nose: \\\"I was almost taking my anger out on [V]. It was almost like we were having a conversation and she was not letting me do it and I was going to do it. I was holding her face hard to keep her head still, I would say it was a 10 on a scale from 1 to 10. She was fighting me and flailing her face back and forth. I was holding [her] harder than I should hold a baby.... I am devastated . that I had to put my daughter through this because I couldn't control myself.... It was just the frustration of what I was going through and I lost control.\\\"\\nIn February, 2015, the defendant was arrested in relation to V's injuries. On June 28, 2016, the state charged the defendant with one count of risk of injury to a child in violation of \\u00a7 53-21 (a) (1). The defendant entered a not guilty plea and elected to be tried by a jury.\\nOn September 29, 2016, following a trial before a jury, the defendant was convicted of one court of risk of injury to a child in violation of \\u00a7 53-52 (a) (1). The defendant then filed the present appeal in which he argues that the trial court violated his constitutional rights by failing to instruct the jury that his use of force in caring for V was an accident. The state argues that the defendant's claim fails because (1) he waived his appellate claim by abandoning the precise language of his request to charge on accident, (2) the trial court's instruction on general intent was legally correct and gave ample guidance to the jury on the issue of accident, and (3) any error in failing to instruct the jury more fully on accident was harmless. Even if we assume, without deciding, that the defendant did not waive his appellate claim by abandoning the precise language of his request to charge, we conclude that his claim fails on the merits because the court's charge was legally correct.\\nThe following facts are necessary for the resolution of this issue. On August 31, 2016, the defendant submitted the following request to charge: \\\"For you to find the defendant guilty of risk of injury, you must find beyond a reasonable doubt that the defendant intentionally squeezed [V's] face too hard. If you find that the defendant accidentally used excessive force, i.e., he did not know that he was squeezing [V's] face too hard, then you must find him not guilty. The evidence to which this charge applies is the testimony of the defendant and [J] that the defendant held [V's] head while suctioning her nose.\\\"\\nOn September 2, 2016, the state argued, with respect to the defendant's proposed charge: \\\"I would also take issue with the claim of accident, when this is a . general intent . crime and all the state must prove is that the defendant intended to do the act.... [In a risk of injury charge] the state need only prove [the defendant] intended to do the act, not inflict the injury . [A]n accident defense isn't relevant to this kind of charge. The defendant isn't claiming he accidentally grabbed the child's face. He's claiming he accidentally inflicted the injury.... [T]here is no accident defense in this case because . by [the defendant's] own admissions . he purposely grabbed the child's face, but thereafter used excessive force and inflicted the injury.\\\" The defendant did not respond to the state's objection to his request to charge.\\nOn September 28, 2016, the court provided counsel with a draft of the proposed charge. This version of the charge provided: \\\"Intent relates to the condition of mind of the person who commits the act, his purpose in doing it. I instruct you now as to general intent because it applies to the charge of risk of injury. General intent is the intent to engage in conduct. As to the charge of risk of injury, it is not necessary for the state to prove that the defendant specifically intended to endanger [V's] physical well-being. Rather, the state is required to prove that the defendant intentionally and not inadvertently or accidentally engaged in his actions which did constitute blatant physical abuse. In other words, the state must prove that the defendant's actions in forcefully covering her face with his hands were intentional, voluntary and knowing rather than unintentional, involuntary and unknowing.\\\"\\nIn discussing the second draft of the charge with counsel, the court explained: \\\"This [instruction] touches upon the issue of intent to engage in conduct as opposed to inadvertently or accidentally engaging in actions. This is the only part in the charge where some conjugation of the word accident is going to occur. I mention that . because of [the] prior request [of counsel for the defendant]. I also think it's consistent with State v. Martin [189 Conn. 1, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S.Ct. 2098, 77 L.Ed.2d 306 (1983) ].\\\" The court then asked if counsel had any problems with the instruction. The defendant did not reply to the court's inquiry. The court thereafter informed counsel that it would give charges on unanimity and parental justification and that accident was \\\"subsumed under general intent.\\\" The following day, on September 29, 2016, the court suggested minor changes to the charge and asked whether counsel wanted to add anything before the jury was brought out for closing argument. Both counsel indicated that they had nothing to add.\\nDuring closing argument, defense counsel stated: \\\"This is a case about a father trying to help his daughter, not hurt her. She had a cold that he suctioned her nose with a bulb syringe to get the mucous out, caused the bruises, but he did that in order to treat her cold, to treat her stuffy nose and he held her head too hard, but he didn't do that on purpose. He did it accidentally. He is not the kind of father that would do that. He's calm. He's patient. He's gentle.\\\" In response, the state argued: \\\"The defendant wants you to consider the fact that this was an accident and you're not going to hear that as a defense, when the judge instructs you on the law. The judge is going to indicate to you that the state must prove that the defendant's actions in forcefully covering the face of a child with his hands were intentional, voluntary and knowing . rather than unintentional, involuntary and unknowing. So, the state must prove that the defendant intentionally and forcefully cover[ed] the child's face, but . need not prove the defendant desired the ultimate outcome or intended the ultimate outcome. So, he may not have meant to cause the bruising on the child, he may not have thought in advance that that is what's going to happen. That doesn't matter. That doesn't make [it] an accident that relieves him of his criminal responsibility for his actions.\\\"\\nFollowing closing argument, the court charged the jury with the following general intent instruction: \\\"Intent relates to the condition of mind of the person who commits the act, his purpose in doing it. I instruct you now as to general intent because it applies to the charge of risk of injury. General intent is the intent to engage in conduct. As to the charge of risk of injury, it is not necessary for the state to prove that the defendant specifically intended to endanger [V's] physical well-being. Rather, the state is required to prove that the defendant intentionally and not inadvertently or accidentally engaged in his actions. In other words, the state must prove that the defendant's actions in forcefully covering her face with his hand were intentional, voluntary, and knowing rather than unintentional, involuntary and unknowing.\\\"\\nThe court further instructed the jury on the elements of the risk of injury to a child pursuant to \\u00a7 53-21, stating: \\\"The first element is that the defendant did an act that was likely to impair the health of the child. Please recall my earlier instruction on general intent. To be likely to impair the health of a minor, the statute requires that the defendant committed blatant physical abuse that endangered the child's physical well-being.\\\" Furthermore, the court instructed that \\\"the state must prove beyond a reasonable doubt that . the defendant did an act of blatant physical abuse that endangered the child's physical well-being and was likely to impair the health of the child .\\\"\\nThe court also instructed the jury on the defense of justification, stating: \\\"The evidence in this case raises the issue that the defendant, as a parent, was justified in the use of physical force upon [V] because he was promoting her welfare by suctioning her nose. After you have considered all of the evidence in this case, if you find that the state has proved each element of risk of injury, you must go on to consider whether or not the defendant was justified in his use of force. When, as in this case, evidence of justification was introduced at trial, the state must not only prove beyond a reasonable doubt all the elements of the crime charged but must also disprove beyond a reasonable doubt that the defendant was justified in his use of force.\\\"\\nWith these facts in mind, we set forth the relevant standard of review and legal principles that guide our analysis. \\\"Our review of the defendant's claim requires that we examine the [trial] court's entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction.... While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request . If a requested charge is in substance given, the [trial] court's failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . we will not view the instructions as improper.\\\" (Internal quotation marks omitted.) State v. Boyd , 176 Conn. App. 437, 449, 169 A.3d 842, cert. denied, 327 Conn. 972, 174 A.3d 192 (2017). A court, however, \\\"is under no obligation to give a requested jury instruction that does not constitute an accurate statement of the law.\\\" (Internal quotation marks omitted.) State v. Harper , 184 Conn. App. 24, 40, 194 A.3d 846, cert. denied, 330 Conn. 936, 195 A.3d 386 (2018).\\nSection 53-21 (a) provides: \\\"Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . shall be guilty of a class C felony .\\\"\\n\\\"Specific intent is not an element of the crime defined in [ \\u00a7 53-21 (a) (1) ].... A general intent to do the proscribed act is required, however, as it is ordinarily for crimes of commission rather than omission.\\\" (Citation omitted; internal quotation marks omitted.) State v. Martin , supra, 189 Conn. at 12-13, 454 A.2d 256. Put another way, to support a conviction under \\u00a7 53-21 (a) (1), the jury need not \\\"find any intent to injure the child or impair its health. All that [is] required [is] the general intent on the part of the defendant to perform the act which resulted in the injury, that is, that the bodily movement [that] resulted in the injury was volitional.\\\" (Emphasis omitted.) State v. McClary , 207 Conn. 233, 240, 541 A.2d 96 (1988).\\n\\\"Accident is not a justification for a crime . it negates only one element of the crime, namely, intent.... A claim of accident, pursuant to which the defendant asserts that the state failed to prove the intent element of a criminal offense, does not require a separate jury instruction because the court's instruction on the intent required to commit the underlying crime is sufficient in such circumstances.\\\" (Citation omitted; internal quotation marks omitted.) State v. Moye , 119 Conn. App. 143, 153-54, 986 A.2d 1134, cert. denied, 297 Conn. 907, 995 A.2d 638 (2010).\\nThe defendant argues that pursuant to our Supreme Court's decision in State v. Martin , supra, 189 Conn. 1, 454 A.2d 256, the trial court erred in failing to adequately instruct the jury on accident. The defendant's case, however, is distinguishable from Martin , in which the facts were uniquely suited to an accident instruction. In Martin , the defendant testified that he injured a child when he fell and reflexively put his hands out to prevent his fall, thereby pushing the child against a nearby table. Id., at 10-11, 454 A.2d 256. Specifically, the defendant in Martin stated that \\\"someone grabbed him from behind. He spun around, his plastic kneecap locked and he fell . He did not know whether he had touched [the child] as he fell . but he admitted that his reflex action in swinging out his arms to prevent his fall might have caused the child to be pushed against a table.\\\" Id., at 11, 454 A.2d 256. Whereas the resulting injury in Martin was \\\"wholly accidental\\\" and reflexive, the injury in the present case was a result of the defendant intentionally holding V's head in his effort to suction mucous from her nose. The defendant in the present case maintains that he inadvertently used too much force in holding V's face, thereby accidentally causing the child's injuries. This, however, confuses an intentional act that causes an accidental outcome with a reflexive, involuntary act like that in Martin . Unlike in Martin , where the defendant placed his hands out as a reflexive reaction to external forces, in the present case, the defendant intentionally held his child's face.\\nMoreover, unlike in Martin , where the court entirely failed to mention accident in its charge, the court in the present case mentioned accident in its instruction on general intent. Our Supreme Court in Martin stated: \\\"The failure of the court even to allude to this defense as one which the state had to disprove was a serious deficiency in the charge.\\\" Id., at 13, 454 A.2d 256. Furthermore, our Supreme Court in Martin went on to state that \\\"a curative instruction should have been given discussing the general intent requirement in the context of the defense of accident which had been raised.\\\" Id., at 14, 454 A.2d 256. In the present case, the court did more than allude to accident. In fact, it expressly mentioned accident in the context of the general intent requirement, stating: \\\"[T]he state is required to prove that the defendant intentionally and not inadvertently or accidentally engaged in his actions.\\\" Although the court in the present case did not provide the jury with a separate accident charge, a separate charge was not required under the law. See State v. Singleton , 292 Conn. 734, 752, 974 A.2d 679 (2009).\\nOn the basis of the foregoing, we conclude that the court's charge was legally correct and adequately instructed the jury on the issue of accident.\\nThe judgment is affirmed.\\nIn this opinion the other judges concurred.\\nGeneral Statutes \\u00a7 53-21 (a) provides in relevant part: \\\"Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . shall be guilty of . a class C felony .\\\" Although \\u00a7 53-21 had been amended in 2015, those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute.\\nJ, who is a trained respiratory therapist, told the police that she took V to the hospital because she believed the child might have been suffering from encephalitis.\\nBecause we conclude that the charge was legally correct and affirm the decision on that basis, we do not address the state's argument that the court's failure to instruct the jury more fully on accident was harmless error.\"}"

conn/1312729.json

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+"{\"id\": \"1312729\", \"name\": \"ULYSSES J. BURRIDGE, ET AL vs. JOSEPH FIELD\", \"name_abbreviation\": \"Burridge v. Field\", \"decision_date\": \"1935-03-19\", \"docket_number\": \"File #10609\", \"first_page\": \"108\", \"last_page\": \"109\", \"citations\": \"1 Conn. Supp. 108\", \"volume\": \"1\", \"reporter\": \"Connecticut Supplement\", \"court\": \"Connecticut Superior Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T18:19:11.792207+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ULYSSES J. BURRIDGE, ET AL vs. JOSEPH FIELD\", \"head_matter\": \"ULYSSES J. BURRIDGE, ET AL vs. JOSEPH FIELD\\nSuperior Court New London County\\nFile #10609\\nPresent: Hon. ALLYN L. BROWN, Judge.\\nJohn Gallagher, Attorney for the Plaintiff.\\nSamuel Gruskin, Attorney for the Defendant.\\nMEMORANDUM FILED MARCH 19, 1935.\", \"word_count\": \"496\", \"char_count\": \"2965\", \"text\": \"BROWN, J.\\nUnder their-prayers for relief in this action, the plaintiffs seek (1) to be repossessed of real estate in Mystic including the building thereon, heretofore used as a laundry, and certain enumerated personal property used in connection therewith, and (2) $3,000. damages. It is undis puted upon the evidence that on May 27, 1933, the plaintiffs, as owners of said property, delivered possession thereof, pur' suant to the instrument \\\"Exhibit B\\\" annexed to the complaint, which is \\\"Exhibit C\\\" in evidence, and that in July, 1934, \\\"Joseph G. Geisler & Co.\\\" to whom possession was so given, defaulted in the performance of the agreement.\\nI find that Joseph G. Geisler in negotiating this agreement with the plaintiffs, was acting for himself and the defendant as partners, his participation as it affected the latter being an' alogous to that of an agent for an undisclosed principal. I further find that the defendant had full knowledge of the terms of the transaction both when it was consummated and when he subsequently acquired Geisler's interest. So far as the issues of this case are concerned therefore, the defendant is a \\\"vendee of the personal property in question under #4699 of the General Statutes, and he is bound by the pro' visions of the conditional sale evidenced by Exhibit C.\\nWhile Exhibit C affords a splendid example of the unwisdom of the parties' failure to employ a competent scrivenor to give expression to their agreement, in the light of its terms and all of the circumstances, I find that the agreement was, that a default of three days upon the part of the vendees to perform, should result in a forfeiture of their interest in the property at the vendors' election and entitle' the latter to forthwith resume possession thereof, the monthly payments of $100. up to such time constitute liquidated damages. By Exhibit D in evidence the plaintiffs on August 10, 1934, exer' cised such election.\\nThe monthly payments due from the vendees under the contract were made until July 1, 1934. Of the $100. then due, but $58 was paid. Of the $100 due August 1, 1934, nothing was paid. Upon receiving notice of the plaintiffs' election by Exhibit D above referred to, the defendant wrongfully refused to surrender possession of the property to the plaintiffs. I find $75. per month to be the reasonable value of the use thereof. Under their claim for damages, the plaintiffs are entitled to recover $158. as liqui' dated damages, and $425. for the seven months during which the defendant has wrongfully kept the plaintiffs out of pos' session.\\nJudgment may be entered for the plaintiffs for (1) posses' sion of the premises and personal property, and (2) $583. damages, plus costs of suit.\"}"

conn/1313417.json

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+"{\"id\": \"1313417\", \"name\": \"JOHN P. CURRY vs. CIVIL SERVICE COMMISSION OF THE CITY OF BRIDGEPORT\", \"name_abbreviation\": \"Curry v. Civil Service Commission\", \"decision_date\": \"1938-02-28\", \"docket_number\": \"File #53879\", \"first_page\": \"505\", \"last_page\": \"506\", \"citations\": \"5 Conn. Supp. 505\", \"volume\": \"5\", \"reporter\": \"Connecticut Supplement\", \"court\": \"Connecticut Superior Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T19:26:06.842952+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN P. CURRY vs. CIVIL SERVICE COMMISSION OF THE CITY OF BRIDGEPORT\", \"head_matter\": \"JOHN P. CURRY vs. CIVIL SERVICE COMMISSION OF THE CITY OF BRIDGEPORT\\nSuperior Court Fairfield County\\nFile #53879\\nPresent: Hon. KENNETH WYNNE, Judge.\\nShannon & Wilder, Attorneys for the Plaintiff.\\nJohn V. Donnelly, Attorney for the Defendant\\nMEMORANDUM FILED FEBRUARY 28, 1938.\", \"word_count\": \"206\", \"char_count\": \"1261\", \"text\": \"WYNNE, J.\\nMemorandum on motion to expunge and motion to make more specific. The very nature of the present appeal is a sufficient answer to the pending motion. A review of the acts of the Civil Service Commission can come only before a judge of the Superior Court. The proceeding is not judicial but rather one where a judge is designated as the reviewing authority over an administrative municipal commission. In such capacity everything that is here raised, time as well as circumstance, should be before the judge. It would seem that the appellee is in the position of asking to have expunged matter that is directly pertinent to what he seeks in the other motion to make more specific. A judge can be expected to conform to the philosophy underlying enactments seeking municipal reform and at the same time protect the individual from a too rigid interpretation that through jealousness might conflict with the very things that civil service contemplates.\\nThe motions are denied.\"}"

conn/1324013.json

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+"{\"id\": \"1324013\", \"name\": \"Anna Doherty v. Town of Winchester et al.\", \"name_abbreviation\": \"Doherty v. Town of Winchester\", \"decision_date\": \"1954-02-09\", \"docket_number\": \"File No. 13994\", \"first_page\": \"475\", \"last_page\": \"479\", \"citations\": \"18 Conn. Supp. 475\", \"volume\": \"18\", \"reporter\": \"Connecticut Supplement\", \"court\": \"Connecticut Superior Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T00:06:49.829315+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anna Doherty v. Town of Winchester et al.\", \"head_matter\": \"Anna Doherty v. Town of Winchester et al.\\nSuperior Court Litchfield County\\nFile No. 13994\\nMemorandum filed February 9, 1954.\\nHowd, Pruyn & Lavieri, of Winsted, for the Plaintiff.\\nJames L. Glynn, of Winsted, and Carmody & Torrance, of Waterbury, for the Defendants.\", \"word_count\": \"1246\", \"char_count\": \"7209\", \"text\": \"House, J.\\nThis is an action against the town of Winchester and The Connecticut Light and Power Company, hereinafter referred to as the defendant, in which the plaintiff seeks damages from both defendants as the result of a fall alleged to have occurred on the public sidewalk \\\"in front of the property belonging to the defendant, The Connecticut Light and Power Company.\\\" The complaint claims that the fall was due to a defective and dangerous condition of broken concrete in the sidewalk \\\"adjacent to\\\" the property of the defendant and that the surface of the sidewalk was covered with snow and ice.\\nThe first count alleges that the defendant town of Winchester is charged with the duty of proper care and maintenance of the streets in the town, had notice of the defective condition, and neglected to remedy it, as a result of which the plaintiff was injured. The second count alleges the same structural defects and ice and snow condition, that the defendant company owned the abutting property and the ordinances of the town of Winchester and city of Winsted require abutting owners to remove ice and snow from public sidewalks, which the defendant neglected to do, resulting in plaintiff's fall and injuries. The third count alleges that the defendant so maintained its abutting property that it caused a public nuisance on the sidewalk. The fourth count repeats the alleged structural defects and ice and snow accumulation and that the defendant company was negligent \\\"in that it allowed said sidewalk to remain in said defective condition.\\\"\\nThe defendant company has demurred to both the second and fourth counts on the grounds, as to each count, that there is no allegation that any duty owing to the plaintiff has been breached by the defendant.\\nIt is essential to a cause of action based on negligence that the breach of some legal duty to the plaintiff be alleged, for negligence is, by definition, the breach of a duty. Collins v. City National Bank & Trust Co., 131 Conn. 167, 170. Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so. Dean v. Hershowits, 119 Conn. 398, 407; Earley v. Hall, 89 Conn. 606, 613. Negligence cannot be predicated upon a state of facts which does not impose a legal duty. Swentusky v. Prudential Ins. Co., 116 Conn. 526, 532. It is essential that the complaint allege facts showing wherein the defendant failed to perform a duty. O'Keefe v. National Folding Box & Paper Co., 66 Conn. 38, 44. Furthermore, the duty which must be alleged must be a duty owed to the plaintiff. Actionable negligence cannot be based on a breach of duty unless the injured person is within the class of persons to whom the duty is owed. McDowell v. Federal Tea Co., 128 Conn. 437, 440. \\\" 'The rule which is applicable to actions for negligence based upon the violation of a statutory duty is to all intents and purposes the same as the rale applicable to actions for negligence based upon a violation of a common-law duty. Where there is no duty, there can be no negligence. The statutory duty must be owing to the person injured, and not to some one else, in order that a violation thereof shall constitute actionable negligence.' Anthony v. Connecticut Co., 88 Conn. 700, 707, 92 Atl. 672; see also Longstean v. McCaffrey's Sons, 95 Conn. 486, 494, 111 Atl. 836; Black v. Hunt, 96 Conn. 663, 666, 115 Atl. 429; Gonchar v. Kelson, 114 Conn. 262, 264, 158 Atl. 545.\\\" Hassett v. Palmer, 126 Conn. 468, 472.\\nIn the second count the alleged negligence of the defendant company is failure to remove snow and ice from a public sidewalk as required by a local ordinance, and in the fourth count the alleged negligence is neglect to remedy a defective condition on the public sidewalk.\\nIt is not without significance that in the first paragraph of the first count the plaintiff alleges that the defendant town of Winchester \\\"is charged with the proper care and maintenance of the streets within the limits of said town.\\\" The law as to the relative duties of municipalities and owners of property abutting a public sidewalk is well summarized in the headnote to Willoughby v. New Haven, 123 Conn. 446: \\\"At common law there is no liability upon an abutting property owner for injuries resulting from the effects of natural causes upon streets or sidewalks, such as the accumulation of snow or ice. Primarily it is the sole duty of the municipality to keep its streets in reasonably safe condition for travel, and not the duty of private persons. Therefore if the liability is or can be shifted from the municipality to the individual it must be accomplished by statutory or charter provision or by ordinance adequately authorized by such provision, and, being the creature of statute or such ordinance it can be no greater than that specifically imposed thereby. Imposition upon abutting owners of a duty to clear walks of snow and ice, with a provision of a penalty by fine and costs for failure to do so or for clearing the same by municipality and collection of the cost from the abutting owner, is not sufficient to render the individual, instead of the city, liable for injuries sustained by reason of snow or ice thereon.\\\"\\nThe mere allegation that the defendant is the owner of premises abutting a public sidewalk and that a local ordinance provides that the abutting owner shall remove snow and ice, or that the sidewalk was defective and the abutting owner did not repair it, is not sufficient against a demurrer which properly claims that the complaint sets forth no breach of a legal duty owed to the plaintiff.\\nThe plaintiff particularly asserts that these demurrers are general and not special, as is required by \\u00a7 7814. The fine line between what is special and general in a particular ease may be a difficult one to draw.\\n\\\"A demurrer is not a mere procedural nicety, but is a precise instrument for the final determination on the merits of justiciability under pertinent rules of law of an asserted cause of action or defense. It is the formal mode of disputing the sufficiency in law of the pleading to which it pertains.\\\" 71 C.J.S. 426. A demurrer is general when no particular ground for the demurrer is alleged and an attack is made on the sufficiency of the pleading as a whole. It is special when the particular imperfection is pointed out. Id., 419, 421. It is basic that a complaint in such an action as this must state facts showing the jurisdiction of the court, a duty owed by the defendant to the plaintiff, a breach of that duty and injury to the plaintiff caused thereby. The absence of any one of these makes the complaint defective. The demurrer is sufficiently special when it points out the particular defect in the complaint attacked, in this case the absence of any allegation that any duty owing to the plaintiff has been breached by the defendant.\\nDefendant's demurrer to both the second and fourth counts are therefore sustained.\"}"

conn/1336598.json

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+"{\"id\": \"1336598\", \"name\": \"FINTON MORTON, ADMR. vs. BERNARD WEST, ET AL.\", \"name_abbreviation\": \"Morton v. West\", \"decision_date\": \"1936-01-23\", \"docket_number\": \"File #11530\", \"first_page\": \"251\", \"last_page\": \"252\", \"citations\": \"3 Conn. Supp. 251\", \"volume\": \"3\", \"reporter\": \"Connecticut Supplement\", \"court\": \"Connecticut Superior Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T21:47:40.681232+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FINTON MORTON, ADMR. vs. BERNARD WEST, ET AL.\", \"head_matter\": \"FINTON MORTON, ADMR. vs. BERNARD WEST, ET AL.\\nSuperior Court New Haven County (At Waterbury)\\nFile #11530\\nPresent: Hon. FREDERICK M. PEASLEY, Judge.\\nMartin L. Caine, Attorney for the Plaintiff.\\nWoodhouse 6? Scofield, D. L. O\\u2019Neill, Attorneys for the Defendants.\\nMEMORANDUM FILED JANUARY 23, 1936.\", \"word_count\": \"443\", \"char_count\": \"2547\", \"text\": \"PEASLEY, J.\\nThis is an action for recovery, under the statute, for the death of the plaintiff's decedent as a result of the defendant's negligence. The acts complained of are alleged to have occurred on August 25, 1934 and the writ in this action is dated August 26, 1935. The reason alleged in support of the demurrer is that the action was not commenced within the year limited by the statute.\\nThe plaintiff relies upon Blackman vs. Nearing, 43 Conn. 56 and Austin Nichols & Co., Inc. vs. Gilman, 100 Conn. 81 to exclude, in determining the last day upon which an action could be started, the day on which the acts complained of were committed. By doing this, which is entirely proper, the last day of the time limited by statute fell upon August 25, 1935, which was Sunday. Again relying upon Austin Nichols & Co., Inc. vs. Gilman, supra, the plaintiff claimed that he had all of the following day\\u2014August 26th, the day on which the writ was served to bring his action. But it was there held that when the last day of a period within which an act may be done (in the instant case the commencement of a civil action) falls on Sunday, the act, unless lawful on Sunday, may be performed on the following day. But under our statute it was not unlawful on Sunday, either before sunrise m the morning, or after sunset at night, to serve the writ.\\nThe plaintiff further claims that even if it were permissible to serve the process on Sunday, the fact that administration was not taken out 'till Monday, August 26, 1935 excused him from bringing his action within the year limited by the statute. But in Radesky, et al., Admrs. vs. Sargent & Co., 77 Conn. 110, it was held that the fact that no administrator upon the estate of the decedent was appointed until after the time prescribed for suit had expired does not extend the statutory period, nor validate a suit thereafter begun.\\nWith these defenses of the plaintiff against this defendant's demurrer thus disposed of, the action of this Court on the demurrer is governed by DeMartino, Admrx. vs. Siemon, which held that it must be alleged in the complaint that the injury which resulted in death occurred within one year next before the commencement of the action.\\nThe demurrer is therefore sustained.\"}"

conn/1336634.json

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+"{\"id\": \"1336634\", \"name\": \"JOHN F. HARDING vs. W. NORMAN SCRANTON\", \"name_abbreviation\": \"Harding v. Scranton\", \"decision_date\": \"1935-12-09\", \"docket_number\": \"File #47984\", \"first_page\": \"173\", \"last_page\": \"174\", \"citations\": \"3 Conn. Supp. 173\", \"volume\": \"3\", \"reporter\": \"Connecticut Supplement\", \"court\": \"Connecticut Superior Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T21:47:40.681232+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN F. HARDING vs. W. NORMAN SCRANTON\", \"head_matter\": \"JOHN F. HARDING vs. W. NORMAN SCRANTON\\nSuperior Court New Haven County\\nFile #47984\\nPresent: Hon. JOHN A. CORNELL, Judge.\\nL. H. Stapleton, Attorney for the Plaintiff.\\nS. H. Platcow, Joseph T. Shrebnik, Attorneys for the Defendant.\\nMEMORANDUM FILED DECEMBER 9, 1935.\", \"word_count\": \"462\", \"char_count\": \"2726\", \"text\": \"CORNELL, J.\\nIt is found that when defendant came upon the plaintiff, the latter, who weighs about two hundred ninety pounds was bending over the former's son who at the time was less than nine years old and weighed sixty pounds and was then prone upon the ground\\u2014and had hold of his wrist or arm.\\nUnder these and the other attending circymstances, defendant was justified in entertaining an apprehension that his son was in danger of bodily injury and to use such force to rescue him from such conceived peril as was reasonably necessary for the purpose.\\nThis he did by grabbing plaintiff and pushing him so hard that the latter fell to the ground. While the defendant was generous in the expenditure of muscular energy used in the operation, it cannot be said that he exceeded his right or that his action was such as to make him from that point the aggressor.\\nPlaintiff, himself, however, on arising from the ground where he had reclined but an instant when interrupted in his assumed task of \\\"arresting\\\" the boy became the aggressor when he pursued defendant and punched him on the side of the face.\\nDefendant was thereupon justified in using sufficient force to repel this assault upon his countenance and others which he might then have reasonably apprehended to impend. The blow which he struck plaintiff must be .found to have collided with the latter in the exercise of that right.\\nAs to the issues formed on the complaint and answer, judgment may be entered for defendant.\\nOn the issues formed by the allegations of the counterclaim and \\\"reply\\\", these, also, are found for the defendant.\\nThe blow struck defendant by plaintiff produced no injury other than that purely theoretical one that the law conceives under such circumstances. As to the boy, the lens fell out of his glasses the next day, but whether from anything that happened while he was at grips with his two hundred ninety pound opponent or from some other cause does not appear. Neither is the cost of repair in evidence.\\nThe boy suffered no actual injury physically. Judging from his attitude on the witness stand, he rather enjoyed getting his father at fisticuffs with his neighbor, although apparently unimpressed with the cold aftermath of judicial inquiry following the more hectic scene ensuing upon his \\\"misdirected\\\" sling shot \\\"pebbles\\\".\\nOnly nominal damages may be allowed.\\nJudgment may enter for the defendant on his counter-claim to recover of the plaintiff the sum of $2.00.\"}"

conn/1341616.json

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+"{\"id\": \"1341616\", \"name\": \"MILDRED ALLER, EXTRX. ET AL. (Estate of Samuel M. Aller) vs. MARY ISABEL ALJOE ET AL.\", \"name_abbreviation\": \"Aller v. Aljoe\", \"decision_date\": \"1940-12-19\", \"docket_number\": \"File No. 60704\", \"first_page\": \"39\", \"last_page\": \"40\", \"citations\": \"9 Conn. Supp. 39\", \"volume\": \"9\", \"reporter\": \"Connecticut Supplement\", \"court\": \"Connecticut Superior Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T22:49:33.455987+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MILDRED ALLER, EXTRX. ET AL. (Estate of Samuel M. Aller) vs. MARY ISABEL ALJOE ET AL.\", \"head_matter\": \"MILDRED ALLER, EXTRX. ET AL. (Estate of Samuel M. Aller) vs. MARY ISABEL ALJOE ET AL.\\nSuperior Court Fairfield County\\nFile No. 60704\\nMEMORANDUM FILED DECEMBER 19, 1940.\\nLeslie Davis, of Norwalk, for the Plaintiffs.\\nFrederick, W. Lovejoy, Jr., of South Norwalk, pro se as guardian ad litem.\\nLeo Davis, of Norwalk, for the Defendants.\", \"word_count\": \"341\", \"char_count\": \"1978\", \"text\": \"WYNNE, J.\\nIt seems clear to the court that the testator intended nothing other than the not uncommon indication that his property was to go to his own flesh and blood. It is a strained construction that he was creating technical estates and setting up trusts. Interpreting the will as a whole, it is only reasonable to conclude that paragraph six was the expression of his idea of future contingencies rather than an attempt, even a clumsy one, to place legal restrictions upon provisions made for his own daughters. He had in mind, undoubtedly, that informal notion that is so frequently expressed in what the law terms precatory words rather than any intent to tie up his estate in any way. The very words he made use of, \\\"the part remaining\\\", indicate as strongly as words can in their common connotation that he was thinking in terms of what he would like to have done in the future rather than of a present intention to create trusts. Crediting him with the latter intent, it is a simple conclusion, it seems to the court, that his mind would work in a different way than to set forth a completed purpose in paragraph four. It is reasonable only to conclude that paragraph six is a layman's notion of informal remote control rather than a continuing supervision of testamentary trusts with their uncertainties, vexations and expense. He did not retain control in the will he drew. To say he did would do violence to the fatherly instincts which seem so apparent in this simple instrument.\\nThe court therefore holds that the said Mildred Aller and Mary Isabel Aljoe take absolute estates under paragraph four of the will under construction.\"}"

conn/1366818.json

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+"{\"id\": \"1366818\", \"name\": \"BEST FRIENDS PET CARE, INC. v. DESIGN LEARNED, INC., ET AL.\", \"name_abbreviation\": \"Best Friends Pet Care, Inc. v. Design Learned, Inc.\", \"decision_date\": \"2003-06-03\", \"docket_number\": \"AC 23330\", \"first_page\": \"167\", \"last_page\": \"185\", \"citations\": \"77 Conn. App. 167\", \"volume\": \"77\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T00:45:58.082764+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BEST FRIENDS PET CARE, INC. v. DESIGN LEARNED, INC., ET AL.\", \"head_matter\": \"BEST FRIENDS PET CARE, INC. v. DESIGN LEARNED, INC., ET AL.\\n(AC 23330)\\nLavery, C. J., and Bishop and Peters, Js.\\nArgued February 24\\nofficially released June 3, 2003\\nStuart G. Blackburn, with whom, on the brief, was Margaret Ralphs, for the appellant (plaintiff).\\nBarbara A. Frederick, with whom, on the brief, were Donald W. Doeg and John B. Kennedy, for the appellee (named defendant).\", \"word_count\": \"5164\", \"char_count\": \"32709\", \"text\": \"Opinion\\nBISHOP, J.\\nThis is an appeal from the summary judgment rendered by the trial court in favor of the defendant Design Learned, Inc. (Design Learned), in an action for negligence. The plaintiff, Best Friends Pet Care, Inc. (Best Friends), raises several claims on appeal, all of which concern the applicability of a waiver of subrogation clause in a construction contract. We affirm in part and reverse in part the judgment of the trial court.\\nFrom the pleadings and materials filed in conjunction with the motion for summary judgment, the following undisputed facts emerge. Best Friends was the owner and operator of a chain of pet care facilities, including one that was under construction in Rocky Hill. The project in Rocky Hill was undertaken pursuant to a construction management agreement (contract) between Best Friends and the construction manager, Highland Management Associates, Inc. (Highland). The contract, which was a standard American Institute of Architects (AIA) contract, contained a waiver of subrogation clause stating in relevant part that Best Friends and Highland \\\"waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by property insurance . . . .\\\" Design Learned had been retained by Highland as a consultant pursuant to an agreement between itself and Highland, whereby Design Learned would provide design consulting services for the Best Friends project.\\nOn January 12, 1998, while still under construction, the Rocky Hill facility was consumed by fire and destroyed. Best Friends alleges that the fire started because the boiler was not installed with the proper clearance from the flooring, which ignited. The Hartford Insurance Company (the Hartford), which was the insurer of Best Friends, reimbursed Best Friends for the loss, which included $1,049,000 for damage to the building, $446,739 for loss of income resulting from loss of use of the building and $77,714.30 for damage to personal property.\\nBest Friends brought this subrogation action against several of Highland's contractors and consultants, including the defendants American Standard Companies, Inc., a contractor, and Design Learned. Those defendants filed motions for summary judgment on the theory that the contract between Best Friends and Highland contained a valid waiver of subrogation clause that foreclosed the possibility of Best Friends' instituting a subrogation action against either contractors or consultants. Best Friends argued that General Statutes (Rev. to 1997) \\u00a7 52-572k made void waiver of subrogation provisions in construction contracts. It also argued that the waiver would be inapplicable to Design Learned in any event because, inter alia, Highland had failed to obtain a similar waiver from Design Learned in their agreement.\\nThe court granted the motions for summary judgment in favor of both defendants. Best Friends challenges only the granting of the motion in favor of Design Learned. It makes the following claims: (1) that the waiver of subrogation clause is void pursuant to \\u00a7 52-572k; (2) that the allegedly negligent conduct by Design Learned predated and was outside the scope of the contract; (3) that Design Learned forfeited the protection of the contract by not including a waiver of subrogation provision in its own agreement with Highland; and (4) that neither personal property loss nor loss of use are within the scope of the waiver. We affirm the judgment of the trial court on all but the last claim.\\nI\\nThe threshold question and a question of first impression for this court concerns the effect of \\u00a7 52-572k (statute) on the waiver of subrogation provision in this standard AIA contract. We note that \\\"[i]n general, whether conduct falls within a statute's province is a matter of statutory construction, and presents a question of law warranting plenary review.\\\" Sandella v. Dick Corp., 53 Conn. App. 213, 226, 729 A.2d 813, cert. denied, 249 Conn. 926, 733 A.2d 849 (1999).\\nIn essence, the question we must answer to dispose of the first claim is whether the waiver of subrogation clause is, effectively, a hold harmless or indemnification provision, as those terms are used by the statute. A closer examination of the AIA contract and the statute is required for that discussion.\\nWe begin with a look at the AIA contract, AIA Document B801/CMa, which explicitly incorporates AIA Document A201/CMa. Section 10.4 of B801/CMa, entitled \\\"Waivers of Subrogation,\\\" states in relevant part that \\\"[t]he Owner and Construction Manager waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by property insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201/ CMa . . . .\\\" The property insurance provision, \\u00a7 11.3, of A201/CMa requires that the owner purchase property insurance \\\"for the entire Work at the site on a replacement cost basis . . . .\\\" Section 11.1.1 of B801/CMa requires the construction manager to purchase insurance, inter alia, to cover all workers compensation and other claims for personal injury at the site.\\nGeneral Statutes (Rev. to 1997) \\u00a7 52-572k (a) provides in relevant part: \\\"Any . . . agreement . . . entered into in connection with or collateral to a contract or agreement relative to the construction . of any building, structure or appurtenances thereto . . . that purports to indemnify or hold harmless the promisee against liability for . . . damage to property caused by or resulting from the sole negligence of such promisee, his agents or employees, is against public policy and void, provided this section shall not affect the validity of any insurance contract, workers' compensation agreement or other agreement issued by a licensed insurer.\\\"\\nThe first question for our consideration is whether the previously described provisions of the contract fall within the contours of the statute. In interpreting the statute, \\\"we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity.\\\" (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc).\\nFrom the language of the statute, it is unclear whether the waiver of subrogation in the AIA contract reasonably can be viewed as a provision to hold harmless or to indemnify, as those terms are used in the statute. Similarly, our review of the legislative history of the statute provides us with no guidance on whether waivers such as the type just described are within the scope of the statute.\\nAlthough this court has never addressed the question of the applicability of the statute to an AIA contract waiver of subrogation clause, because the AIA contract is used nationally, and other states have enacted statutes (or follow common law) similar to \\u00a7 52-572k, the question has been addressed elsewhere. In the absence of a pointed legislative history, we find useful a review of those decisions from other jurisdictions construing similar statutes and assessing their applicability to the standard AIA waiver of subrogation provision.\\nOf particular note is Ralph Korte Construction Co. v. Springfield Mechanical Co., 54 Ill. App. 3d 445, 369 N.E.2d 561 (1977), in which the Illinois Appellate Court interpreted an Illinois statute that was nearly identical to \\u00a7 52-572k as it related to a waiver of subrogation clause in a construction contract. There, the court found that the purpose of the statute was to protect workers and the public from injury, and to keep \\\" 'persons having charge of the work' id., 446; from avoiding liability or shunting it onto contractors or subcontractors. The court concluded that \\\"the parties had agreed, in effect, to assume the risk of loss as between themselves due to fire or other perils, to the extent each party was covered by insurance. . . . Both sides benefit from the arrangement and such benefit . . . does not come at the expense of a third party.\\\" Id., 447.\\nNew York courts, interpreting a sindlarly worded statute, also have held that waiver of subrogation provisions are not within its purview. In Board of Education v. Valden Associates, Inc., 46 N.Y.2d 653, 389 N.E.2d 798, 416 N.Y.S.2d 202 (1979), the New York Court of Appeals weighed the effect of \\u00a7 5-323 of New York's General Obligations Law, which proscribed contractual exemptions for liability in construction contracts, on contractual provisions that waived all rights to recovery to the extent of insurance coverage. The court found that \\\"[a] distinction must be drawn between contractual provisions which seek to exempt a party from liability to persons who have been injured . . . and contractual provisions . . . which in effect simply require one of the parties to the contract to provide insurance for all of the parties.\\\" Id., 657; see also Trump-Equitable Fifth Avenue Co. v. H.R.H. Construction Corp., 106 App. Div. 2d 242, 485 N.Y.S.2d 65, aff'd, 66 N.Y.2d 779, 488 N.E.2d 115, 497 N.Y.S.2d 369 (1985).\\nUltimately, we find persuasive, as did the trial court, the distinction made by the New Hampshire Supreme Court in Chadwick v. CSI, Ltd., 137 N.H. 515, 629 A.2d 820 (1993). In Chadwick, the court distinguished between exculpatory provisions, which were forbidden by New Hampshire common law, and allocation of risk provisions, such as the kind found in the AIA contract. Id., 523. \\\"These [AIA provisions] do not present the same concerns as naked exculpatory provisions. As opposed to exculpatory provisions . . . the insurance provisions of the standard AIA contract are not designed to unilaterally relieve one party from the effects of its future negligence, thereby foreclosing another party's avenue of recovery. Instead, they work to ensure that injuries or damage incurred during the construction project are covered by the appropriate types and limits of insurance, and that the costs of that coverage are appropriately allocated among the parties.\\\" (Citations omitted.) Id.; see also Behr v. Hook, 173 Vt. 122, 128, 787 A.2d 499 (2001) (upholding waiver of subrogation provision in AIA contract).\\nWe agree that this arrangement embedded in the AIA contract to share the risks and the obligation of insuring the persons and property at the site does not fit the description of an agreement to hold harmless or to indemnify. Having concluded that the statute does not render as void a waiver of subrogation provision when coupled with agreements to allocate the cost and responsibility of insurance, as is the case with this stan dard AIA contract, we further conclude that the plaintiffs first claim is without merit.\\nII\\nThe resolution of the remainder of the claims depends on a closer examination of the contract. We note the standard of review. If contract language is definitive of the parties' intent, then the interpretation of the language becomes a question of law for the court. B & D Associates, Inc. v. Russell, 73 Conn. App. 66, 71, 807 A.2d 1001 (2002). Additionally, a presumption that the language is definitive arises when, as here, the contract is between sophisticated parties and commercial in nature. Id. Our review, in such a case, is plenary. Id.\\nIf, however, the language is not clear, then the intention of the parties as represented in the contract becomes a question of fact. Id. If the fact in question is genuinely material to the resolution of the issue, then it is not the proper subject of summary judgment. In considering a motion for summary judgment, the function of the court is to determine whether any material fact is in dispute, not to make factual findings. See Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518, 522-23, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001). \\\"On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.\\\" (Internal quotation marks omitted.) Tarnowsky v. Socci, 75 Conn. App. 560, 564, 816 A.2d 728 (2003). In the determination of whether summary judgment was properly granted, our review is, again, plenary. Id.\\nA\\nBest Friends claims that the allegedly negligent conduct by Design Learned predated the signing of the contract between Highland and Best Friends, was outside the scope of the contract and, therefore, should not receive the benefit of the waiver of subrogation clause found in the contract. Unfortunately for Best Friends, the waiver of subrogation provision on which Design Learned relies, and that we have found to be applicable, makes no reference to the timing of the work, or the timing of the hiring, or anything but the status of Design Learned as consultant. Specifically, the contract states that \\\"[t]he Owner and Construction Manager waive all rights against each other and against . . . consultants . for damages . . . .\\\"\\nDesign Learned was hired by Highland prior to the signing of the contract between Highland and Best Friends, and engaged in work as a consultant for Highland from that time on. The only agreement that Design Learned had, relative to the project, was with Highland. The court determined that the dispositive question in that regard, therefore, was whether the contract between Highland and Best Friends engaged Highland to do the work for which Best Friends was claiming Design Learned was negligent. Best Friends claims that some of the services that Design Learned provided for Highland, in particular the consultation on prototype facilities, should be severable from those services for which the contract, with its waiver of subrogation provision, constituted the agreement.\\nThe plain language of the agreement, however, provides little room for that result: The contract is broadly inclusive of the labor for which Highland was hired. \\\"The Contract represents the entire and integrated agreement between the parties hereto and supercedes prior negotiations, representations or agreements, either written or oral.\\\" As defined by the contract, \\\" '[w]ork' means the construction and services required by the [c]ontract . . . whether completed or partially completed, and includes all other labor, materials, equipment and services provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or part of the Project.\\\" Further, \\\"[t]he Project is the total construction of which the Work performed under the [c]ontract . . . may be the whole or apart . . . .\\\" Finally, \\\"drawings\\\" are defined as \\\"the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued . . . .\\\" (Emphasis added.)\\n\\\"In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning. . A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.\\\" (Internal quotation marks omitted.) B & D Associates, Inc. v. Russell, supra, 73 Conn. App. 71.\\nWe agree with the court that the work provided by Design Learned for Highland, which is the subject of this action, was \\\"clearly within the construction manager's obligations under the [contract].\\\" We conclude, there fore, that the court properly found from the unambiguous language of the contract that Design Learned was a consultant, subject to the waiver of subrogation provision.\\nB\\nBest Friends next claims that Design Learned cannot enjoy the benefits of the waiver of subrogation provision because no waiver of subrogation provision was included in the agreement between itself and Highland, as required by the contract. It is uncontested that the agreement between Design Learned and Highland contained no such waiver.\\nThe disposition of Best Friends' claim revolves around a determination of the parties' intent as to the purpose of the waiver of subrogation provision. The waiver of subrogation provision in the contract is comprised of two sentences. The first provides in relevant part that \\\"[t]he Owner and Construction Manager waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by property insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in [the contract documents] . . . .\\\" The second sentence provides, in relevant part, that \\\"[t]he Owner and Construction Manager shall each require similar waivers from their Contractors, Architect, consultants, agents, and persons or entities awarded separate contracts . . . .\\\"\\nAs previously discussed, the court determined, and we agree, that the purpose of the waiver of subrogation provision was, in conjunction with the other contractual provisions, to allocate risks and costs among the parties to the contract. The first sentence of the waiver evinces the clear intent that the parties waive all rights against each other and their consultants, but only to the extent covered by property insurance, except such rights as they may have to the proceeds of the insurance. Here, the principle expressio unius est exclusio alterius is of some assistance. Had the parties wanted to make the waiver referenced in the first sentence contingent on the parties' obtaining waivers from their consultants, then the proper place for that requirement would have been alongside the conditionals in the first sentence.\\nExamining the purpose of the waiver of subrogation, we further note that the failure of Highland to obtain a waiver of subrogation provision from Design Learned does not thwart the intent of the parties to the contract. The court found that the clearly expressed intent of the contract was that parties to the contract waive all subrogation claims against each other and their consultants. Additionally, it found that the absence of a similar agreement between Highland and Design Learned does not obscure that clarity, nor does its absence \\\"affect the validity of the waiver provision in the [contract] between Best Friends and Highland.\\\" We agree with the court.\\nC\\nBest Friends' final claim is, essentially, that the definition of property insurance, as used in the waiver of subrogation provision, does not include insurance either for personal property or for loss of use. After the fire that destroyed the facility, the Hartford paid Best Friends for the loss pursuant to its insurance policy. Specifically, the Hartford paid $1,049,000 for damage to the building, $446,739 for loss of income resulting from damage to the building and $77,714.30 for damage to personal property.\\nAgain, we turn to the language of the contract. The relevant language in the waiver of subrogation clause provides that \\\"[t]he Owner and Construction Manager waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by property insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in the edition of ALA. Document A201/Cma . . . .\\\" (Emphasis added.) Although property insurance is not explicitly defined in B801/CMa, reference to A201/CMa is helpful. Indeed, A210/CMa dedicates an entire section to the topic of property insurance.\\nSection 11.3.1 of A201/CMa requires the owner to purchase property insurance \\\"for the entire [w]ork at the site on a replacement cost basis . . . .\\\" Section 11.3.1.1 states in relevantpart: \\\"Property insurance shall be on an 'all-risk' policy form and shall insure against the perils of fire and extended coverage and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, falsework, temporary buildings and debris removal including demolition . . . .\\\" Section 11.3.1.4 states that \\\"this property insurance shall cover portions of the [w]ork stored off the site . . . and also portions of the [work] in transit.\\\"\\nThe term property insurance, then, is meant to protect property that can be moved, stored off-site and stolen. Those mobile attributes axe most typically the features of tangible, personal property. In \\u00a7 11.3.1.5, an exception is made for personal property such as machinery, tools and equipment owned or rented by the contractor: Such personal property is not to be covered by the property insurance as it is defined in the contract. If the parties intended that no personal property was to be covered by the property insurance, then that provision would be redundant.\\nOur policy is to interpret contract language in accordance with a fair and reasonable construction of the written words given their common, natural and ordinary meaning when we can sensibly do so. Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 725-26, 805 A.2d 76 (2002). Here, we can do so, and we conclude, as did the court, that the term property insurance, as used in the contract, embraces insurance for both real and personal property.\\nOur final inquiry is whether the same language described previously also is meant to include insurance for loss of use of the personal and real property. We believe that it does not. By the same lights that we have concluded that the term property insurance includes tangible personal property, we find no indication that it is meant to include intangible property such as reimbursement for loss of use. That distinction was drawn in B & D Associates, Inc. v. Russell, supra, 73 Conn. App. 74, in which this court concluded that property that could be \\\" 'stored, used, maintained or kept on the . . . premises' \\\" necessarily was tangible property. \\\"Economic loss, including lost business profits, is intangible, speculative in nature and certainly cannot be stored, used, maintained or kept on any premises.\\\" Id. We find no indication that the term property insurance was intended to encompass intangibles; to the contrary, the contract language refers specifically to \\\"physical loss.\\\"\\nFurthermore, the contract expressly addresses the matter of loss of use insurance. Section 11.3.3 of A210/ CMa, entitled Loss of Use Insurance, states in relevant part that \\\"[t]he owner, at the [o]wner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. The Owner waives all rights of action against the Contractor for loss of use of the Owner's property, including consequential losses due to fire or other hazards however caused.\\\" (Emphasis added.)\\nIn contrast to the waiver of subrogation provision \\u00a7 10.4 in B801/CMa, in which the parties to the contract waive all rights against each other and the \\\"Contractors, Architect, consultants, agents and employees of any of them\\\" to the extent covered by property insurance, the loss of use provision is far more restrictive. Here, solely for rights of action for loss of use, the owner waives its rights only against \\\"the Contractor.\\\"\\nWe find it instructive to our analysis that the term \\\"contractor\\\" is used differentially within the contract. The contractor, in the singular, is defined as the contractor identified as such in the contract. As the contract in question is between the owner and construction manager, no specific contractor is identified. Contractors, in the plural, are defined in A201/CMa as \\\"persons or entities who perform construction under Conditions of the Contract.\\\" (Emphasis added.) Significantly, subcontractors are defined differently as persons or entities that have \\\"a direct contract with the Contractor to perform a portion of the work at the site.\\\" (Emphasis added.) Sub-subcontractors also are separately defined. No definition is provided for consultants.\\nPlainly, the terms consultant and contractor are not used interchangeably in the contract. Given the broad reach of language of the principal waiver of subrogation clause, if the parties had intended the provision regarding loss of use to pertain to an equally broad spectrum of actors, the parties readily could have formulated language to accomplish that goal.\\nWe note, also, that in the complaint, Best Friends alleged that Design Learned \\\"was engaged in the business of . . . engineering consulting and design consulting.\\\" In Design Learned's memorandum of law in support of its motion for summary judgment, it asserts that it \\\"provided consulting services to Highland on the [Best Friends] project pursuant to the agreement between [Design Learned] and Highland. . . .''It appears undisputed, therefore, that the parties herein and the contracting entities considered Design Learned to be a consultant and not a contractor.\\nThe court found that the waiver of subrogation in the contract precluded Best Friends from maintaining its action against Design Learned as a matter of law. While we agree that the action is foreclosed as to recovery for lost property to the extent covered by property insurance, we disagree that, as a matter of law, an action for recovery for loss of use of the property similarly is foreclosed.\\nThe judgment is reversed only as it relates to the claim that Design Learned negligently caused Best Friends to lose business profits and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.\\nIn this opinion the other judges concurred.\\nThe trial court also rendered summary judgment in favor of the defendant American Standard Companies, Inc. The plaintiff does not appeal from that portion of the judgment.\\nWe note that Best Friends, as the plaintiff, is acting on behalf of the real party in interest, the Hartford Insurance Company, who is the subrogee in this action.\\nGeneral Statutes (Rev. to 1997) \\u00a7 52-572k (a) provides: \\\"Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto including moving, demolition and excavating connected therewith, that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of such promisee, his agents or employees, is against public policy and void, provided this section shall not affect the validity of any insurance contract, workers' compensation agreement or other agreement issued by a licensed insurer.\\\"\\nThe full title of the main contract is \\\"AIA Document B801/CMa Standard Form of Agreement Between Owner and Construction Manager, 1992 Edition.\\\" It incorporates on page one the 1992 editions of AIA Documents B141/ CMa, A101/CMa and A201/CMa.\\nThe entire clause states: \\\"Waivers of Subrogation. The Owner and Construction Manager waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by properly insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201/CMa, General Conditions of the Contract for Construction, Construction Manager-Adviser Edition, current as of the date of this Agreement. The Owner and Construction Manager each shall require similar waivers from their Contractors, Architect, consultants, agents, and persons or entities awarded separate contracts administered under the Owner's own forces.\\\"\\nBut see Maryland Casualty Co. v. Trane Co., 46 Conn. Sup. 172, 742 A.2d 444 (1999), in which the court found a waiver of subrogation provision in a construction contract to be valid against the insurance company subrogee. The court did not address the impact of General Statutes \\u00a7 52-572k on the waiver provision.\\nThe Illinois statute provides in relevant part: \\\"With respect to contracts or agreements, either public or private, for the construction . of a building . . every covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence is void against public policy and wholly unenforceable.\\\" Ill. Rev. Stat. 1975, c. 29, para. 61, now 740 Ill. Comp. Stat. Ann. 35/1, \\u00a7 1 (West 2001).\\nTo the extent that Design Learned's allegedly negligently prepared drawings could be used (or have been used) in the construction of other facilities, Best Friends has made no such showing, nor has it made any showing of a secondary agreement between Best Friends and Highland that might encompass Design Learned's work. As Design Learned points out in its brief, the complaint \\\"is explicitly predicated on the proposition that the design work that [Design Learned] performed for Highland not only was incorporated into the facility, but also was the cause of the fire that destroyed the facility.\\\" Any other work that Design Learned might have done for Highland, in short, is irrelevant.\\nAs this court has stated: \\\"There cannot be any broader classification than the word all.\\\" (Internal quotation marks omitted.) Burkle v. Car & Truck Leasing Co., 1 Conn. App. 54, 56, 467 A.2d 1255 (1983).\\nWe note that Design Learned is not a party to the contract.\\nThe expression of one thing is the exclusion of another.\\nThe court in Behr v. Hook, supra, 173 Vt. 130, came to the same conclusion in interpreting the AIA waiver of subrogation provision. \\\"[T]he contract does not make obtaining the waivers from subcontractors a condition precedent to application of the waiver of subrogation provision.\\\" Id.\\nIn the hypothetical situation that it could have bearing, the proper action would be for breach of contract, and, as noted, Design Learned is not a party to the contract in question. See Behr v. Hook, supra, 173 Vt. 130.\\nBest Friends, as subrogor, also claims that because the waiver of subrogation applies only \\\"to the extent covered by property insurance,\\\" Best Friends can recover the $5000 deductible it was not paid. We note that recovery for the deductible was not specifically pleaded, nor is there any evidence in the record why the Hartford should recover for the deductible paid by Best Friends, i.e., ostensibly more than the Hartford itself actually paid. Accordingly, we decline to address that claim. \\\"[W]e are not required to review claims that are inadequately briefed. . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.\\\" (Internal quotation marks omitted.) State v. Davila, 75 Conn. App. 432, 441 n.6, 816 A.2d 673 (2003).\\nAs we already have stated, B801/CMa explicitly incorporates A201/CMa. Additionally, \\u00a7 10.2 of B801/CMa provides that the \\\"[t]erms in this [agreement shall have the same meaning as those in . . . A201/CMa . . .\\nIn fact, personal property is defined as \\\"[m]oney, goods, and movable chattels.\\\" BaHentine's Law Dictionary (3d Ed. 1969).\\nIn the waiver of subrogation provision of \\u00a7 11.3.7 in A210/CMa, the list additionally includes the construction manager, the owner's other contractors, subcont ractors and sub-subcontractors.\\nBy those definitions, Design Learned could not be considered a contractor, as it has not performed construction. Although, arguably, it could be considered a subcontractor, we need not reach that question.\"}"

conn/1531460.json

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+"{\"id\": \"1531460\", \"name\": \"Margaurite Fry vs. Michael Taylor et al.\", \"name_abbreviation\": \"Fry v. Taylor\", \"decision_date\": \"1927-06-28\", \"docket_number\": \"\", \"first_page\": \"387\", \"last_page\": \"390\", \"citations\": \"106 Conn. 387\", \"volume\": \"106\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T21:54:18.747714+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Margaurite Fry vs. Michael Taylor et al.\", \"head_matter\": \"Margaurite Fry vs. Michael Taylor et al.\\nThird Judicial District, New Haven,\\nJune Term, 1927.\\nWheeler, C. J., Maltbie, Haines, Hinman and Banks, Js.\\nArgued June 7th\\n\\u2014decided June 28th, 1927.\\nDominic A. Roina, for the appellant (plaintiff).\\nCarl Foster, with whom was James R. Mead, for the appellees (defendants).\", \"word_count\": \"701\", \"char_count\": \"4075\", \"text\": \"Wheeler, C. J.\\nThe trial court has found these facts: Mrs. Fannie Taylor, wife of the defendant Michael Taylor, owned and leased to plaintiff a dwelling-house in Greenwich. By reason of the breach of the lease by the plaintiff, Mrs. Taylor procured a judgment in an action of summary process against the plaintiff in the Borough Court of Greenwich, and that court issued an execution upon the judgment to the sheriff of the county of Fairfield, or his deputy, commanding them, without delay, to cause Mrs. Taylor to have possession of the leased premises by putting Mrs. Fry and all persons holding under her out of possession thereof. The execution was placed in the hands of defendant Bitch for service and execution; he was at the time a deputy sheriff of the county of Fairfield. Sheriff Bitch called at the residence of the plaintiff, but she denied him admission to the house; he then attempted to talk with her on several occasions, but she would not talk to him. Thereupon Bitch called to his aid defendant Michael Taylor, the husband of Mrs. Taylor. They went to the premises, knocked for admission and, receiving no answer, Taylor, under instruction of Bitch, forced open a locked door of the house, using no more force than was necessary, and they entered the house. Bitch then called in suitable and skilled furniture movers whom he had employed, to enter the house and remove the personal property of the plaintiff. This they did, packing and loading it on furniture vans with reasonable care, and then took it to, and carefully stored it in, a suitable warehouse in the name of the plaintiff. All of the personal property was moved carefully and properly. The bonds and money which plaintiff claimed upon the trial were in the house did not come into the custody or possession of either defendant and were not taken by them. They did not lose any of the personal property which was in the house at the time defendants entered it, nor were they negligent or careless in handling the personal property, but all they did was done with care.\\nAll of the acts of Ritch were done in pursuance of his authority as a deputy sheriff of the county of Fair-field and under the execution in his hand. All of the acts of Taylor were done as the assistant and agent of Sheriff Ritch.\\nThese are the facts which the trial court has found, although the plaintiff offered evidence tending to prove the loss of two $1,000 bonds, with coupons attached, $600 in money, and certain articles of personal property, and also that defendants damaged and ruined sundry articles of furniture.\\nThere can be no difference of opinion as to the rule of law. A deputy sheriff is liable for all damages one may sustain by reason of his neglect or wrongdoing. General Statutes, \\u00a7 217; Jordan v. Gallup, 16 Conn. 536; Baker v. Baldwin, 48 Conn. 131; 1 Swift's Digest (Rev. Ed.) p. 551. If Sheriff Ritch and his aid had done the acts the plaintiff charges them with having done, their liability would inevitably follow. The difficulty with the plaintiff's position is that the trial court has found the facts contrary to her claims. Since that finding was made on conflicting evidence and is reasonable, it cannot be held to have been made without evidence to support it. Concededly, the plaintiff sought to maintain possession of the dwelling, from which the judgment of a competent court had dispossessed her, in defiance of that judgment. In that course of conduct she was a wrongdoer. The record indicates that the sheriff and his aid not only kept within the bounds of their legal duty, but conducted their unpleasant duty with commendable restraint and a very considerable degree of consideration for the plaintiff.\\nThere is no error.\\nIn this opinion the other judges concurred.\"}"

conn/1531504.json

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+"{\"id\": \"1531504\", \"name\": \"Bert Lebas vs. The Patriotic Assurance Company\", \"name_abbreviation\": \"Lebas v. Patriotic Assurance Co.\", \"decision_date\": \"1927-05-07\", \"docket_number\": \"\", \"first_page\": \"119\", \"last_page\": \"127\", \"citations\": \"106 Conn. 119\", \"volume\": \"106\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T21:54:18.747714+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bert Lebas vs. The Patriotic Assurance Company.\", \"head_matter\": \"Bert Lebas vs. The Patriotic Assurance Company.\\nThird Judicial District, New Haven,\\nJanuary Term, 1927.\\nWheeler, C. J., Curtis, Maltbie, Haines and Hinman, Js.\\nArgued January 18th\\n\\u2014decided May 7th, 1927.\\nPhilo C. Calhoun, for the appellant (defendant).\\nJames C. Shannon, with whom was Henry E. Shannon, for the appellee (plaintiff).\", \"word_count\": \"2234\", \"char_count\": \"12473\", \"text\": \"Haines, J.\\nEvidence was offered for the plaintiff that Lebas, on February 20th, 1922, sold an automo bile to Frank G. Howe by conditional bill of sale, for $2,800; that $1,500 was paid at the time and the balance by thirteen notes of $100 each with interest, the first due March 20th, 1922, and the others in successive monthly periods thereafter; that the bill of sale provided the title to the car should remain in Lebas till all the notes were paid; that February 25th, 1922, the defendant issued a policy of insurance to \\\"Frank G. Howe or Bert Lebas as their interest may appear,\\\" covering the theft of this1 car; that the interest which Lebas then had in the car was the title, and the amount of the interest was the total of the unpaid notes with interest; that about April 5th, 1922, in anticipation of payment of the notes, Lebas indorsed twelve of them \\\"Paid April 5, 1922. Bert Lebas,\\\" and the other note, being in the hands of a third party as security for a loan, was not indorsed; that the notes were not in fact then or thereafter paid as anticipated; that the car was stolen April 28th, 1922, at which time it was worth $2,500 to $3,000; that Charles G. Kirby, Incorporated, was the duly-authorized agent of the defendant to adjust all losses under the policy, and was also the agent for fourteen other companies, and had been engaged in that kind of work for more than twenty years; that a few days before June 28th, 1922, Lebas, at the request of Kirby, the agent and representative of Charles G. Kirby, Jr., Incorporated, and in his presence, executed and delivered a proof of loss which had been prepared for him by the Kirby company; and further, that an unconditional bill of sale, dated July-1st, 1922, to which the name of Lebas was attached, and which was put in evidence by the defendant, was not in fact signed by Lebas. It was conceded that defendant paid Lebas nothing, under the policy.\\nThe appeal rests upon five general grounds, all re lating to claimed insufficiencies and inaccuracies in the charge, touching (1) improper remarks of Lebas' counsel before the jury, (2) the proof of loss, (3) the credibility of Howe, (4) the insurable interest of Lebas, and (5) the title to the car. The seventh reason of appeal claims error in the charge as a whole. We have repeatedly pointed out that an assignment in that form is improper and does not merit consideration by this court.\\nCounsel for Lebas referred to Howe in argument as \\\"a low perjurer\\\" and \\\"a low scoundrel.\\\" No objection was interposed at the time by counsel for the defendant, and no motion was made to declare a mistrial. On the motion to set aside the verdict, defendant claimed these statements were improper and unwarranted by the evidence and calculated to unduly excite the prejudice, passion and bias of the jury against the defendant and thereby to influence the verdict. Such matters are to be weighed and decided by the trial judge. He has the \\\"means of discerning the wiser course, which cannot well be spread upon a record,\\\" and he has a large discretion in that regard. \\\"We should hesitate in any case to review his decision, without strong reason.\\\" Cunningham v. Fair Haven & W. R. Co., 72 Conn. 244, 252, 43 Atl. 1047. We do not discover such reason in this case. It is the general rule, moreover, that objection must be made during the trial, so the court may have an opportunity to prevent or correct any wrong impression. State v. Laudano, 74 Conn. 638, 644, 645, 51 Atl. 860; State v. Washelsky, 81 Conn. 22, 28, 70 Atl. 62; Hennessy v. Metropolitan Life Ins. Co., 74 Conn. 699, 710, 52 Atl. 490; State v. Cabaudo, 83 Conn. 160, 166, 76 Atl. 42.\\nCounsel further said to the jury that there were good and bad companies and that the latter hire adjusters to minimize their losses, and these adjusters, by trickery and the use of technicalities, try to get the companies out of paying their just obligations as cheaply as possible, and added, \\\"that the defendant company fits in the latter class of insurance companies, I must leave to you.\\\" This, too, was improper argument. It was seasonably objected to and the court at once said it recalled no evidence of such practice among insurance companies. Thereafter the court apparently felt that no serious harm could have been done to the defendant's cause, under the circumstances; we cannot hold as a matter of law that the court's discretion was abused. An assertion of this character, however, without any evidence to support it, was improper and indefensible, and merited a rebuke by the court. Such methods of argument are not to be sanctioned, but we do not disturb the conclusions of the trial court unless it is apparent to us that harm has been done. Worden v. Gore-Meenam Co., 83 Conn. 642, 652, 78 Atl. 422.\\nIn referring to the proof of loss which Lebas claimed he had seasonably filed, the court recalled to the jury the testimony of Lebas to the effect that he visited the defendant's adjuster, Kirby, and executed a paper prepared and put before him for that purpose by Kirby who claimed it was a proof of loss and so spoke of it, and told him that sixty days more must elapse before the loss could be paid. The court then said: \\\"Of course, if that story of Mr. Lebas is true, why it would warrant the jury, probably, in finding that the proof of claim was duly filed.\\\" It was the duty of the court to definitely instruct the jury as to the legal result of their findings, and we construe the statement that the jury might \\\"probably\\\" find a fact as equivalent to saying that they might find it. Defendant claims error in the court's statement and in the failure of the court . to tell the jury that there was no evidence that the .proof of loss was sworn to by Lebas, and in not calling their attention to the terms of the policy requiring the \\u2022 oath.\\n. ; The jury had the policy before them as Exhibit \\u2022A, and the requirement of an oath is- there plainly stated.\\nIf they believed the statement of Lebas, as they apparently did, that the paper was prepared by the au.thorized representative of the defendant and executed at his request and in his presence and that Kirby said it was the proof of loss, they were entitled to assume it was properly prepared, and properly executed under the agent's direction, especially when, as appears from the record, no question was asked of Lebas upon the stand as to whether he made oath to it as a necessary part \\\" of the execution, and no direct evidence upon this point was produced by the defendant. Further, ,the defendant did not request a charge concerning the requirement of the policy that the proof of loss should be sworn to. Under these circumstances we could not hold it error that the court failed to say whether or not there was evidence on this point or to charge that if the jury found the proof of loss had not been sworn to, they must find in favor of the defendant. Not only so, but if the statement of Lebas was true, the defendant was estopped to claim the proof of loss was not duly .filed because not sworn to.\\n\\\" In Cupo v. Royal Ins. Co., 101 Conn. 586, 126 Atl. 844, the defendant denied that the plaintiff had complied with the requirements of the policy in rendering a proof, of loss \\\"signed and sworn to by the assured -.; within sixty days after such loss.\\\" The plaintiff testified that a man claiming to act as agent, asked him to fill out a proof of loss, and upon plaintiff giving him the necessary facts, this man filled out a paper which he said was a proof of loss, and plaintiff signed it and delivered it to the agent. Upon the trial, and after proper evidence of the fact that this man was an agent of the defendant, the question was presented of the effect of.the failure of the plaintiff to swear to the paper which he signed. We there said (p. 593): \\\"The plaintiffs, reasonably believing that an authorized agent of the defendant had procured from Salvatore [one of the plaintiffs] such a proof of loss as was satisfactory to it, rested content under such belief and made no further proof of loss signed and sworn to by them within the specified period. The jury found that the claimed agent was in fact the agent of the defendant, and that the defendant received such proof of loss as it required. The fact that its agent did not require Salvatore to swear to the proof of loss that it prepared, could not be urged by it in good conscience as a fatal defect in such proof of loss. By its conduct as found proved by the jury, it was estopped from making such claim. Such conduct creates an estoppel in pais. Such an estoppel can be proved without being pleaded.\\\"\\nWhen the action was begun, Lebas and Howe were joint plaintiffs, and all the pleadings were so entitled on both sides. Sometime after issue joined, Howe was dropped as a plaintiff, and he appeared at the trial as a witness for the defendant. One of the vital issues of fact was whether Lebas had received payment of the notes from Howe, and given the latter an unconditional bill of sale, Howe asserting and Lebas denying these claims upon the stand. Thus the question of credibility was brought sharply to the front.\\nThe plaintiff offered evidence of the conviction of Howe for concealing an automobile sold on a conditional bill of sale, and the serving of sixty days in jail as a penalty; of the divorce obtained from him by Mrs. Howe on the ground of adultery, and of his conviction for nonsupport of his children, followed by his escape from the State. The defendant made no objection to this evidence, but now, for the first time, attempts to deny its admissibility to affect the credibility of Howe; nor does it appear that any motion was made to strike it out or any request made to charge the jury upon the point. If the defendant felt the evidence was improper, it should, by appropriate and timely action, have given the trial court an opportunity to pass upon the question. The court told the jury Howe's record could be considered by them in making up their minds as to how far his word could be trusted. Under the circumstances, this was permissible. The evidence \\\"came before the jury without objection, limitation or criticism, and, consequently, for any and all purposes; . . . Having come in without objection, it was available for whatever it was worth upon its face.\\\" State v. Segar, 96 Conn. 428, 437, 114 Atl. 389; Poliner v. Fazzino, 105 Conn. 350, 353, 135 Atl. 289; 4 Chamberlayne on Evidence, \\u00a7 2701.\\nThe defendant now claims Lebas did not have an insurable interest in the car, and in any event did not have an unconditional title within the meaning of that term as used in the policy. It is too late for the defendant to contest its liability on these grounds. These claims are not directly pleaded, they did not appear in the issues put before the jury, and the attention of the trial court was not brought to them by requests to charge or otherwise. Fidelity & Casualty Co. v. Palmer, 91 Conn. 410, 418, 99 Atl. 1052.\\nA careful reading of the entire evidence satisfies us we would not be justified in finding error in the refusal of the trial court to set aside the verdict. There were two vital issues of fact before the jury\\u2014whether the notes were paid and the unconditional bill of sale given by Lebas, and whether the latter seasonably executed a proper proof of loss. The evidence on these issues was contradictory, but the jury found for Lebas upon both of them. It was their right to do so, and upon the record before us we cannot say they acted unreasonably. The action of the trial court in denying the motion to set aside the verdict was not erroneous.\\nSome of the testimony was obviously untrue. Without attempting to fix the responsibility for this, we may add that the outcome of the case does not appear, in any event, to be unjust to the defendant.\\nDefendant, by paying $200 to Howe, tacitly admitted a liability caused by theft of the car, which was worth $2,500 to $3,000. The amount of the present verdict, added to what has already been paid Howe, is nearly $675 less than the apparent minimum value of the car.\\nThere is no error.\\nIn this opinion the other judges concurred.\"}"

conn/1536919.json

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+"{\"id\": \"1536919\", \"name\": \"Murray Reich, Administrator, vs. George Fatool\", \"name_abbreviation\": \"Reich v. Fatool\", \"decision_date\": \"1929-06-13\", \"docket_number\": \"\", \"first_page\": \"734\", \"last_page\": \"735\", \"citations\": \"109 Conn. 734\", \"volume\": \"109\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T18:46:51.731736+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wheeler, C. J., Maltbie, Haines, Hinman and- Banks, Js.\", \"parties\": \"Murray Reich, Administrator, vs. George Fatool.\", \"head_matter\": \"Murray Reich, Administrator, vs. George Fatool.\\nThird Judicial District, Bridgeport,\\nApril Term, 1929.\\nWheeler, C. J., Maltbie, Haines, Hinman and- Banks, Js.\\nArgued April 17th\\ndecided June 13th, 1929.\\nPhilip Reich, with whom, on the brief, was Samuel Reich, for the appellant (plaintiff).\\nHenry C. Wilson, for the appellee (defendant).\", \"word_count\": \"114\", \"char_count\": \"720\", \"text\": \"Per Curiam.\\nAn examination and comparison of the evidence has satisfied us that the trial court was correct in its conclusion that there was no sufficient evidence before the jury from which the plaintiff's freedom from contributory negligence could have been found and that we cannot hold that the ruling setting aside the verdict was erroneous as matter of law.\\nThere is no error.\"}"

conn/1545481.json

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+"{\"id\": \"1545481\", \"name\": \"The Riverside Coal Company vs. The Elman Coal Company\", \"name_abbreviation\": \"Riverside Coal Co. v. Elman Coal Co.\", \"decision_date\": \"1932-03-08\", \"docket_number\": \"\", \"first_page\": \"492\", \"last_page\": \"496\", \"citations\": \"114 Conn. 492\", \"volume\": \"114\", \"reporter\": \"Connecticut Reports\", \"court\": \"Supreme Court of Errors of the State of Connecticut\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T18:22:24.791242+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Riverside Coal Company vs. The Elman Coal Company.\", \"head_matter\": \"The Riverside Coal Company vs. The Elman Coal Company.\\nMaltbie, C. J., Haines, Hinman, Banks and Avery, Js.\\nSubmitted on briefs January 8th\\ndecided March 8th, 1932.\\nNathan A. Schatz and Louis M. Schatz, for the appellant (defendant).\\nTheodore V. Meyer, for the appellee (plaintiff).\", \"word_count\": \"1047\", \"char_count\": \"6143\", \"text\": \"Avert, J.\\nFrom the finding, it appears that the plaintiff is a wholesale dealer and importer of coal and other fuels, with its principal place of business in Worcester, Massachusetts; the defendant a retail dealer in coal, with a place of business in Hartford, Connecticut. January 29th, 1926, the plaintiff's salesman called on the defendant at Hartford, and took from the defendant an oral order for two cars of Scotch coke. At that time, a strike in the anthracite coal fields of national proportions was in force, and it was not then known when the strike would be settled. It did, in fact, terminate about February 15th of that year.\\n. The salesman entered the order on a slip, and immediately transmitted it to the plaintiff at Worcester. The order slip stated that two cars of Scotch coke from boat New Haven were to be shipped to defendant at Hartford; price $12 a net ton, f.o.b. ears Belle Dock. No time of delivery was stated. At the time of receiving the order, the salesman represented that the coke would arrive at New Haven about February 15th, 1926. January 30th, 1926, plaintiff sent the defendant by mail a confirmation of the order, which was received in due course by the defendant. The confirmation stated that the order was subject to no cancellation by either party, and that the coke was to be \\\"shipped from boat to be named later due about Feb. 20th\\\" and that the shipment was subject to car supply, labor trouble, embargo and conditions beyond the control of the seller. Thereafter, there was no communication between the parties in regard to the transaction until February 18th, 1926, after the strike had terminated, when defendant telephoned and wrote the plaintiff that unless the coke was delivered by February 25th, he would consider the order canceled. Defendant's order was to be filled by delivery of coke by the Steamship Graigwen, the charter party for which was dated February 1st, 1926. Four days were spent in loading the steamship, and it sailed from Scotland February 12th, 1926. The running time in normal weather from Glasgow to New Haven for the vessel was about twelve days. Due to exceptionally stormy weather, the voyage consumed twenty-two days and seventeen hours, and the Graigwen arrived at New Haven March 7th, 1926. March 8th, the unloading of the vessel was started, and March 11th, two cars of coke were loaded and shipped to the defendant. They reached the defendant at Hartford March 16th, and were rejected by him. The delay in the arrival of the vessel at New Haven was due wholly to causes beyond the plaintiff's control.\\nUpon these facts, the trial court concluded that the contract between the parties was stated in the confirmation, and that the plaintiff had fully performed its obligations under the contract with all reasonable dispatch, and was entitled to recover the contract price for the coke.\\nThe appellant claims that the court erred in reaching these conclusions and also claims certain corrections of the finding. An examination of the evidence, however, satisfies us that the defendant is entitled to no correction of the finding by which his position will be advantaged. The order in this case was verbal and was taken by the plaintiff's salesman. It nowhere appears in the finding that the authority of the salesman was otherwise than to receive orders. Unless his authority to make contracts is shown, no contract came into existence until the order was accepted by the principal. 1 Williston, Contracts, \\u00a790, p. 155; Bauman v. McManus, 75 Kan. 106, 89 Pac. 15, 10 L. R. A. (N. S.) 1138, 1140. The confirmation contained provisions not embodied in the order and was, in effect, a counter-proposal. Lloyd & Elliott, Inc. v. Parke, 114 Conn. 12, 13, 157 Atl. 272. That this confirmation was accepted by the buyer as stating the terms of the contract appears from the defendant's letters of February 24th and March 1st, 1926, respectively, in the first of which the defendant stated that when the order was given to the plaintiff's salesman, the latter stated that the coke would arrive at New Haven about February 15th, but when the plaintiff \\\"confirmed this order, the arrival date was about February 20th. We have allowed you five days and if this shipment arrives by then, we will accept same;\\\" and from the letter of March 1st, it appears that the five days additional allowed by the defendant meant that they would accept it if delivered by the 25th.\\nIt is admitted in the pleadings that at the time the contract was made, both parties understood that the coke was to be shipped by steamer from Scotland, to arrive via Belle Dock, New Haven. By the terms of the confirmation, the coke was to be loaded on cars at New Haven about February 20th, the sale being \\\"subject to conditions beyond our control.\\\" The arrival date of the vessel at New Haven, stated in the confirmation \\\"about February 20th,\\\" cannot be construed as requiring that it should arrive on or before that date, but would be met if it arrived within a time after that date reasonable in view of all the circumstances. Loomis v. Norman Printers Supply Co., 81 Conn. 343, 346, 71 Atl. 358. And in determining what would be a reasonable time thereafter, the ordinary delays and uncertainties of transportation of a vessel at that time of the year would be proper considerations. Sanders v. Munson, 74 Fed. 649, 651; The Alert, 61 Fed. 504, 505; Bowman & Bull Co. v. Linn, 279 Ill. 397, 117 N. E. 61, 62. The further provision, that the sale was \\\"subject to conditions beyond our control,\\\" must be construed as intended to include the unusual conditions which were encountered by the vessel transporting the coal, the exceptionally stormy weather that prolonged the voyage from one usually taking twelve days to one which took almost twenty-three days.\\nThere is no error.\\nIn this opinion the other judges concurred.\"}"

conn/1568943.json

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+"{\"id\": \"1568943\", \"name\": \"Orlando Gionfriddo et al. v. Town of Windsor et al.\", \"name_abbreviation\": \"Gionfriddo v. Town of Windsor\", \"decision_date\": \"1951-05-22\", \"docket_number\": \"\", \"first_page\": \"701\", \"last_page\": \"707\", \"citations\": \"137 Conn. 701\", \"volume\": \"137\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T02:25:19.888655+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Orlando Gionfriddo et al. v. Town of Windsor et al.\", \"head_matter\": \"Orlando Gionfriddo et al. v. Town of Windsor et al.\\nBrown, C. J., Jennings, Baldwin, Inglis and Troland, Js.\\nArgued April 4\\ndecided May 22, 1951\\nFrank A. Francis, with whom were John J. Devine and Edward J. Turbert, Jr., for the plaintiff.\\nHenry P. Bakewell, with whom, on the brief, was Hugh M. Alcorn, Jr., for the defendant.\", \"word_count\": \"1761\", \"char_count\": \"10159\", \"text\": \"Jennings, J.\\nThe stipulated facts determinative of the issue stated above are as follows: The plaintiff Michelina Gionfriddo is the owner of premises in a business zone in Windsor which are used by the plaintiff Orlando Gionfriddo, lessee, for the sale and display of used cars. The defendants are the town of Windsor and its zoning commission. Building zone regulations were adopted by the commission on July 3, 1931, pursuant to the authority of a special act. 21 Spec. Laws 275, No. 305. Under \\u00a7 15(7) of the regulations, the board of zoning appeals may in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, \\\"Permit in a Business Zone the construction, extension, alteration or conversion of a building intended for the storage or repair of motor vehicles, or for a motor vehicle or gas filling station, but no new garage, motor vehicle repair station, shall be permitted within a distance of 200 feet of an entrance or exit of a public or private school, playground, public library, hospital, children's home or church.\\\" On September 15, 1939, the commission duly adopted an amendment to \\u00a7 6 of the regulations as follows: \\\"Under no circumstances shall a permit be issued for the sale or display of new or used motor vehicles in any open lot or portion thereof, or for the business of a motor vehicle junk yard, in any zone.\\\" In 1946, Orlando applied for and was granted permission to erect a gasoline station and store. In 1947 he applied for permission to convert and use the filling station for the sale and repair of motor vehicles. This application was granted subject to the condition of the amendment to \\u00a7 6 quoted above. No appeal was taken. As a result of the restriction so imposed, the plaintiffs have, since August 24, 1948, been prohibited from displaying on their premises new or used cars for sale, under the penalties set forth in the special act. 21 Spec. Laws 279, \\u00a7 10.\\nThe advice of this court is asked on eight questions. They may be summarized as follows: (1) Is the amendment unconstitutional as violative of the due process provisions of \\u00a7 1 and 12 of article first of the constitution of Connecticut and \\u00a7 1 of the fourteenth amendment to the federal constitution? (2) Are the plaintiffs proper parties under the circumstances disclosed by the stipulated facts?\\nThe plaintiffs are proper parties. The fact that Orlando sought a permit under the ordinance does not preclude his attack thereon in an independent proceeding. Strain v. Zoning Board of Appeals, 137 Conn. 36, 40, 74 A. 2d 462; National Transportation Co. v. Toquet, 123 Conn. 468, 478, 196 A. 344. Michelinas interest is obvious. If a violation of the ordinance occurred on her property, she was liable to a fine and possibly to imprisonment. Windsor Building Zone Regs. \\u00a7 18; 21 Spec. Laws 279, \\u00a7 10. In declaratory judgment actions, all persons who have an interest in the subject matter should be made parties. Practice Book 8 250(d). The answer to the second question is \\\"Yes.\\\"\\nThere probably was a time when the statement, found in many cases, that any citizen has the right to engage in any ordinary lawful business was true. State v. Conlon, 65 Conn. 478, 486, 33 A. 519; State v. Feingold, 77 Conn. 326, 330, 59 A. 211; Perdue v. Zoning Board of Appeals, 118 Conn. 174, 179, 171 A. 26. Recent decisions reflect the increasing interference by the state with private rights under the guise of regulation in the public interest. Be that as it may, it is to be noted that the ordinance under examination is not regulatory but prohibitory.\\nLaws which prohibit activities obviously dangerous or detrimental to public welfare, safety, health or morals are universally sustained. State v. Heller, 123 Conn. 492, 495, 196 A. 337; Seaboard Air Line Ry. v. North Carolina, 245 U. S. 298, 304, 38 S. Ct. 96, 62 L. Ed. 299. Activities which may reasonably be expected to have that effect may also be prohibited. Murphy, Inc. v. Westport, 131 Conn. 292, 40 A. 2d 177. The case last cited is very similar to that at bar. An ordinance of Westport prohibited billboards in its business districts unless the billboards referred to business conducted on the property on which they stood. The trial court found tire ordinance unconstitutional. The subject was examined exhaustively in this court, and the conclusion was reached that since billboards might prove dangerous to travelers through insecure construction or obstruction to view and might increase fire hazards or serve as places of concealment for criminals the ordinance prohibiting them could not be held unconstitutional on the stipulated facts. The case was sent back for a new trial to develop further findings.\\nThe case at bar also suffers from a lack of facts. If the ordinance merely forbade automobile junk yards, it could probably not be found unconstitutional on the stipulated facts, because the detrimental effects of such installations are so well known as to be the subject of judicial notice. See State v. Kievman, 116 Conn. 458, 465, 165 A. 601. Judicial notice was the basis of the decision in Murphy, Inc. v. Westport, supra, 295. The ordinance in question prohibited the display for sale of even one new car on the lot. It is not apparent how such an act could affect property values or the health, safety, morals or even the esthetic sensibilities of the people of Windsor. If the last statement is questioned, the answer is that in Connecticut esthetic conditions alone are insufficient to support the invocation of the police power. Murphy, Inc. v. Westport, supra, 296, 300.\\nIt is true that it is our duty, \\\"in the exercise of great care and caution, to make every presumption and intendment in favor of the validity of the statute, and to sustain it unless its invalidity is beyond a reasonable doubt.\\\" State v. Heller, 123 Conn. 492, 498, 196 A. 337. The state and federal constitutional provisions involved have been held to be substantially synonymous. New Haven Metal & Heating Supply Co. v. Danaher, 128 Conn. 213, 219, 21 A. 2d 383. They require that regulations such as that in question must bear \\\"a rational relation to the subjects which fall fairly within the police power.\\\" State v. Hillman, 110 Conn. 92, 105, 147 A. 294. The application of this principle to various states of fact has been fully discussed in many recent Connecticut cases, most of which are reviewed in Murphy, Inc. v. Westport, supra.\\nThe law under which the Windsor zoning commission acted in passing the amendment to \\u00a7 6 is very broad. It authorizes the commission to specify \\\"the uses that shall be excluded\\\" in the several zones and provides that in imposing such restrictions the commissioner's \\\"regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such town.\\\" 21 Spec. Laws 276. Very similar provisions were considered in State v. Hillman, supra. It is apparent from the discussion in the latter case that the only possible claim which could be made for the constitutionality of the ordinance in question would be under that feature of the police power which permits restrictions on the use of property for the purpose of promoting the economic welfare of the community by stabilizing real estate values. It is not reasonable to assume that the absolute prohibition of the display of any new or used automobiles in an open lot in any zone is necessary to protect these values. It follows that such an all-inclusive prohibition is not reasonably related to the exercise of that factor of the police power under which it alone could be justified.\\nIn accordance with the cogent reasoning of Judge Beach in State v. Porter, 94 Conn. 639, 642, 110 A. 59, we are constrained to hold that the ordinance in question in its present form is an \\\"unwarranted and arbitary interference with the constitutional rights to carry on a lawful business.\\\" Dobbins v. Los Angeles, 195 U. S. 223, 236, 25 S. Ct. 18, 49 L. Ed. 169. The last is a comparatively early case but has been cited with approval in Burns Baking Co. v. Bryan, 264 U. S. 504, 513, 44 S. Ct. 412, 68 L. Ed. 813, and Nashville C. & St. L. Ry. Co. v. Walters, 294 U. S. 405, 415, 55 S. Ct. 486, 79 L. Ed. 949, and has not been overruled. The burden of proof was on the plaintiffs; Murphy, Inc. v. Westport, supra, 302; but the terms of this ordinance itself are sufficient to sustain that burden. The ordinance is too broad.\\nThe defendants claim that, even if the amendment to \\u00a7 6 is unconstitutional, the order issued by the board was valid under \\u00a7 15(7) of the building zone regulations, quoted above. The plaintiffs were not seeking a permit to store and sell automobiles in the open when they applied under \\u00a7 15(7). They were asking for a permit to convert a building for the sale and repair of motor vehicles. This section had nothing to do with the storage or sale of cars in the open. It did not in itself authorize the imposition of any restrictions on storage or sale outside of the building. The only authority which the board could possibly have had for the imposition of the restriction lay in \\u00a7 6. This is evident from the terms of the notice sent Orlando. Our decision is confined to the issues made by the stipulation for reservation.\\nNo sufficient purpose would be served by giving specific answers to the questions in the reservation. We advise that the plaintiffs are proper parties, that they are entitled to relief by declaratory judgment and that the amendment of September 15, 1939, to \\u00a7 6 of the Windsor building zone regulations is unconstitutional and void.\\nNo costs will be taxed in this court to any party.\\nIn this opinion the other judges concurred.\"}"

conn/1578181.json

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+"{\"id\": \"1578181\", \"name\": \"J. Stewart Thorne et al. v. Zoning Board of Appeals of the City of Stamford et al.\", \"name_abbreviation\": \"Thorne v. Zoning Board of Appeals\", \"decision_date\": \"1967-02-21\", \"docket_number\": \"\", \"first_page\": \"745\", \"last_page\": \"745\", \"citations\": \"154 Conn. 745\", \"volume\": \"154\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T02:25:19.886357+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. Stewart Thorne et al. v. Zoning Board of Appeals of the City of Stamford et al.\", \"head_matter\": \"J. Stewart Thorne et al. v. Zoning Board of Appeals of the City of Stamford et al.\\nFrancis J. McNamara, Jr., on the motion.\\nSubmitted January 28\\ndecided February 21, 1967\", \"word_count\": \"64\", \"char_count\": \"357\", \"text\": \"The motion by the plaintiffs for a review of the decision concerning the correction of the record in the appeal from the Court of Common Pleas in Fairfield County at Stamford is denied.\"}"

conn/1581799.json

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+"{\"id\": \"1581799\", \"name\": \"National Folding Box Company, Inc. v. City of New Haven (two cases)\", \"name_abbreviation\": \"National Folding Box Co. v. City of New Haven\", \"decision_date\": \"1959-06-30\", \"docket_number\": \"\", \"first_page\": \"578\", \"last_page\": \"588\", \"citations\": \"146 Conn. 578\", \"volume\": \"146\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T02:25:17.274377+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"National Folding Box Company, Inc. v. City of New Haven (two cases)\", \"head_matter\": \"National Folding Box Company, Inc. v. City of New Haven (two cases)\\nDaly, C. J., Baldwin, King, Murphy and Mellitz, Js.\\nArgued June 2\\ndecided June 30, 1959\\nGeorge W. Crawford, with whom, on the brief, was Harold M. Mulvey, for the appellant (defendant) in each case.\\nFrank E. Callahan, with whom was John E. Ecklund, for the appellee (plaintiff) in each ease.\", \"word_count\": \"2903\", \"char_count\": \"16829\", \"text\": \"Baldwin, J.\\nThese are appeals by the defendant from judgments entered on a report of a committee appointed on appeal to the Court of Common Pleas from the action of the board of tax review of the defendant in fixing the valuation for the purpose of levying real estate taxes on the lists of 1954 and 1955 on the land and buildings of the plaintiff's manufacturing plant. The appeals, one for each of the two years, have been combined under Practice Book \\u00a7 382.\\nThe assessment date in New Haven is June 1 in each year. As of June 1, 1954, the city assessors valued the plaintiff's lands, of which there were eleven parcels, at $327,195, and the buildings, of which there were twenty-four, at $3,527,410, a total of $3,854,605. As of June 1, 1955, they valued the land as in 1954, and the buildings at $3,134,050, a total of $3,461,245. The change in the valuation of the buildings was due in part to a reduction in the value of one and the listing of a new office and warehouse. On the appeals to the board of tax review, it reduced the valuation on the buildings on the list of 1954 to $2,997,970 but otherwise made no change.\\nA committee of three appointed by the court conducted an extensive hearing and viewed the plaintiff's premises. The report of the committee, as corrected in response to the defendant's motion to correct, discloses the following facts: The plaintiff's property is in the northeastern section of New Haven. The eleven parcels of land are irregular in shape and size and are traversed by several streets. On the west, some of the land borders the Mill River, a nonnavigable stream. Portions of the land are low and subject to flooding. Most of the buildings are constructed on piles which are not holding up well. The buildings are of varying size, shape and construction. While they are in a fair state of repair, as a whole, they present an antiquated and inefficient manufacturing plant and one which would not be reproduced. Six of the buildings were constructed in 1906 and one in 1915. Five of these are multistoried, old and outmoded. These seven buildings contain 406,236 square feet of floor space out of a total of 673,108 in all of the buildings. There is a great deal of waste space in them. The valuation made by the assessors on the list of 1953 was $88,955 on the land and $1,138,800 on the buildings, a total of $1,227,755. In 1954 the assessors were engaged in the revaluation of real estate required every ten years. Rev. 1958, \\u00a7 12-62. There had been no revaluation of the plaintiff's properties since 1938 because of the war and an extension of the statutory requirement. Cum. Sup. 1955, \\u00a7 1046d. The values on the lists of 1954 and 1955 were the result of the 1954 revaluation.\\nThe committee report contains a valuation for each of the plaintiff's twenty-five buildings and for each of the eleven parcels of land. The committee found that the fair market value of the land, on the list of 1954, was $190,000, and of the buildings, $975,000, a total of $1,165,000; on the list of 1955, $190,000 for the land, and $1,050,000 for the buildings, a total of $1,240,000. The difference between the values placed on the buildings on the two lists is due to the addition on the 1955 list of the new office and warehouse building. The committee specifically found: \\\"[T]he highest and best use of the subject property [is] for lease or sale to investors who are attracted by the possibility of renting as separate buildings or spaces in buildings to manufacturers requiring relatively smaller areas. The fair market value is principally determined by sales of other industrial plants. These sale prices are regulated largely by the potential net income which an investor expects to realize from multitenant operation.\\\"\\nThe defendant by motion sought extensive corrections in the finding, some of which were made by the committee. Those made included additional facts which have been incorporated in the summary above, a statement of the defendant's claims before the committee, and rulings on evidence which were challenged by the defendant. As the defendant in its brief in this court has abandoned its challenge to the rulings on evidence, they need not be considered further. After the committee had ruled upon the motion to correct, the defendant filed exceptions to the acceptance of the report as corrected and a motion that the report be rejected. The court overruled the exceptions, denied the motion and accepted the report. It is unnecessary to detail the exceptions taken to the report and passed upon by the court because they are fully comprehended in the claims which were made before us and which we discuss below.\\nThe defendant now claims that the report of the committee does not conform to the statutes and rules of procedure because the subordinate facts contained in it are not sufficient to support the ultimate facts found by the committee or to enable the trial court properly to adjudicate the legal issues involved. Rev. 1958, \\u00a7 52-425; Practice Book \\u00a7 174-177. Section 168 of the Practice Book provides that the report of a committee should ordinarily state only the ultimate facts found and the conclusions reached. See Cohn v. Hartford, 130 Conn. 699, 706, 37 A.2d 237; Hollister v. Cox, 131 Conn. 523, 525, 41 A.2d 93; Maltbie, Conn. App. Proc. p. 271. A party may, however, request a finding of subordinate facts and the rulings made by the committee. Practice Book \\u00a7 168; State v. Giant's Neck Land & Improvement Co., 118 Conn. 350, 355, 172 A. 861. Obviously, the facts found and the conclusions reached in the report must be adequate to support the judgment rendered. Rice v. Rice, 134 Conn. 440, 445, 58 A.2d 523. The crucial question on a motion to correct and on exceptions to a committee's report is whether the facts found and the conclusions reached are adequate for the consideration of the claims of law made by the parties. The report of the present committee meets this test. Furthermore, we have examined with care the extensive excerpts from the evidence contained in the appendices to the briefs of the parties, as well as the exhibits referred to, in order to gain a complete comprehension of the legal issues raised. See Independent Methodist Episcopal Church v. Davis, 137 Conn. 1, 11, 74 A.2d 203.\\nAfter the defendant had filed its motion to correct, the plaintiff filed a memorandum on that motion. The defendant claims that the memorandum was improperly filed and was improperly considered by the committee. It is true that the rules do not require the filing of any such document. They do, however, permit both parties to ask for corrections in the report. Practice Book \\u00a7 171. If a party desires to assist the committee in considering a motion to correct filed by the opposing party, there seems no logical reason why he should be denied the opportunity to do so. It is within his right to support a report in his favor, as well as to suggest, by way of a motion to correct, amendments which he believes would improve it. There is no merit in this claim.\\nThe defendant claims further that an expert witness who was produced by the plaintiff and who testified at length concerning the replacement cost of the plaintiff's buildings omitted from his calculations fixtures worth many thousands of dollars. These fixtures, such as humidifying systems, fans, cranes, boilers, stokers, water tanks, and artesian wells, were not listed or described by the assessors as items which entered into any of the values fixed by them. The committee viewed the premises, as had the chairman of the board of assessors, and it is fair to assume that the fixtures, as integral parts of the buildings, entered into the estimates of value which were made. If it is conceded that the failure of the witness to include these items was improper, it was harmless because the committee did not adopt the method of valuation advanced by him.\\nThe defendant's motion to correct and the exceptions to the report challenge facts contained in it. These facts are supported by competent evidence, and the conclusions are logically drawn from the facts. The court did not err in accepting the report and ordering judgment entered upon it, unless the committee made some error of law. Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641; Hartford-Con necticut Trust Co. v. Putnam Phalanx, 138 Conn. 695, 698, 88 A.2d 393; Housing Authority v. Pezenik, 137 Conn. 442, 445, 78 A.2d 546.\\nThe liability of real property in this state to taxation is fixed by statute \\\"at a uniform percentage of its present true and actual valuation, not exceeding one hundred percent of such valuation, to be determined by the assessors.\\\" Rev. 1958, \\u00a7 12-64. The \\\"present true and actual value\\\" of taxable property is defined by statute to be \\\"the fair market value thereof and not its value at a forced or auction sale.\\\" Rev. 1958, \\u00a7 12-63. \\\"The expressions 'actual valuation,' 'actual value,' 'market value,' 'market price' and . . . 'fair value' are synonymous.\\\" Sibley v. Middlefield, 143 Conn. 100, 106, 120 A.2d 77, citing Sanford v. Peck, 63 Conn. 486, 493, 27 A. 1057. \\\"Usually, these expressions mean the figure fixed by sales in ordinary business transactions, and they are established when other property of the same kind in the same or a comparable location has been bought and sold in so many instances that a value may reasonably be inferred. Underwood Typewriter Co. v. Hartford, 99 Conn. 329, 334, 122 A. 91. In other words, the best test is ordinarily that of market sales. Campbell v. New Haven, 101 Conn. 173, 185, 125 A. 650; New Haven Trust Co. v. Doherty, 74 Conn. 468, 472, 51 A. 130.\\\" Sibley v. Middlefield, supra.\\nStressing this statement, the defendant claims that prices realized from sales of comparable property in a normal market furnish the primary test of fair market value and that this test is exclusive when it is applicable, as it was in the instant case. If we assume it to be true, as claimed by the defendant, that the assessors arrived at their valuation by the method of comparable sales, the plaintiff has, never theless, by its appeals from the board of tax review, raised the question whether the valuations so arrived at represent the fair market value of its property or, instead, are excessive, disproportionate and unlawful. The statute provides for such an appeal and for reference to a committee, and gives the court the power \\\"to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable.\\\" Rev. 1958, \\u00a7 12-118. The court must determine judicially whether the appellant has been aggrieved by such action on the part of the board as would result in the imposition of an unjust tax. If it determines that he has, it must proceed to exercise a broad discretionary power to grant relief. Sibley v. Middlefield, supra, 105, and cases cited. That we did not mean to imply in Sibley v. Middlefield that any particular method of valuation, including the method stressed by the present defendant, must be followed, even where it is applicable, is apparent from a further reading of that opinion. After discussing other means of ascertaining present true and actual value, we said (p. 107): \\\"No one method is controlling; consideration should be given to them all, if they have been utilized, in arriving at the value of the property. [Citing Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 231, 188 A. 433.] All of the evidence, both that of sales and that of experts testifying on other methods of fixing valuation, is to aid the trier in arriving at a conclusion . . . .\\\" That conclusion, from the very nature of the problem, must of necessity be a matter of opinion, based, as in the instant case, on all the evidence, including the testimony of experts and a view of the premises, and on the knowledge and experience of the members of the committee. Bridgeport Hydraulic Co. v. Strat ford, 139 Conn. 388, 397, 94 A.2d 1; Cohn v. Hartford, 130 Conn. 699, 705, 37 A.2d 237; Lomas & Nettleton Co. v. Waterbury, supra, 233; Appeal of Cohen, 117 Conn. 75, 85, 166 A. 747. The process, at best, is one of approximation. Bridgeport Brass Co. v. Drew, 102 Conn. 206, 212, 128 A. 413. Furthermore, whether sales of other property are in fact comparable is a matter of judicial discretion. Cohn v. Hartford, supra, 704, and cases cited.\\nThe defendant argues that the committee relied upon the plaintiff's experts, who rejected the test of fair market value and adopted the approach of reproduction cost less depreciation, and capitalization of income. The defendant, further, challenges the qualifications of these experts and urges the superior qualifications of its own. As to the latter claim, the acceptance or rejection of an opinion of a qualified expert is a matter for the trier of fact unless the opinion is so unreasonable as to be unacceptable to a rational mind. Sibley v. Middlefield, supra, 108; Greenberg v. Electric Boat Co., 142 Conn. 404, 408, 114 A.2d 850; Ball v. Branford, 142 Conn. 13, 17, 110 A.2d 459; Thaw v. Fairfield, 132 Conn. 173, 179, 43 A.2d 65; Burdick v. United States Finishing Co., 130 Conn. 455, 458, 35 A.2d 405. Then too, a trier may accept part of the testimony of an expert and reject other parts; Northeastern Gas Transmission Co. v. Tersana Acres, Inc., 144 Conn. 509, 512, 134 A.2d 253; at least if the part accepted is not dependent on the parts rejected. Snyder v. Pantaleo, 143 Conn. 290, 295, 122 A.2d 21. The trier can accept the testimony of the experts offered by one party and reject that of the experts offered by the other. Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641. The committee found that the plaintiff was aggrieved by action of the board of tax review which would result in the levy of an excessive, and therefore an illegal, tax. The committee then proceeded, as the law requires, to determine the value of the plaintiff's property, and reported it to the court. The committee stated in the report the method employed to determine value. The committee found that the highest and best use of the plaintiff's property would be its use as separate buildings or spaces in buildings by manufacturers who required relatively small areas; that fair market value is determined principally by sales of other industrial plants; and that sale prices are regulated largely by the net income which an investor would expect to realize \\u2014 in the present case, net income from a multitenant operation. This finding is based upon competent evidence. It appeals to reason. From all the testimony in the case as well as from common experience, it would appear that the possibility of selling the plaintiff's property to a purchaser who proposed to use it as a single manufacturing plant would be extremely remote, while a sale for the purposes stated presents a logical probability.\\nIn Underwood Typewriter Co. v. Hartford, 99 Conn. 329, 122 A. 91, we said (p. 336) that the words \\\"market value\\\" meant \\\"a value in a market, in a place or in conditions in which there are . . . willing sellers and able and ready buyers of property like that to be assessed, and in which sales are or have been made, or may fairly be expected, in the usual and natural way of business.\\\" In the case at bar, the committee could reasonably conclude that the prospect of a sale, in such a market, of the plaintiff's manufacturing plant as a whole, for a single manufacturing operation, was extremely remote and that there were no comparable sales to use as a measuring stick. Therefore the committee had to resort to some other method of determining value. See Somers v. Meriden, 119 Conn. 5, 8, 174 A. 184; 51 Am. Jur. 654, \\u00a7 703. The method chosen, which was in effect the determination of what the market value of the property would be if it were occupied by several tenants who, engaged in manufacturing, required relatively small spaces for their operations, is a justifiable one. It is altogether reasonable to believe that there would be a demand for such use and occupancy. Fixing the value of real property for taxation purposes cannot be accomplished by any single method applicable in all situations. It is largely a question of fact for the trier, using such means as are suggested by the evidence, if those means in reason and logic appear to accomplish a just result and one consonant with the trier's own unbiased judgment.\\nThere is no error in either case.\\nIn this opinion the other judges concurred.\"}"

conn/1604195.json

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+"{\"id\": \"1604195\", \"name\": \"Walter J. Kosinski vs. Genevieve Kosinski\", \"name_abbreviation\": \"Kosinski v. Kosinski\", \"decision_date\": \"1934-06-05\", \"docket_number\": \"\", \"first_page\": \"701\", \"last_page\": \"702\", \"citations\": \"118 Conn. 701\", \"volume\": \"118\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T22:36:41.422808+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Walter J. Kosinski vs. Genevieve Kosinski.\", \"head_matter\": \"Walter J. Kosinski vs. Genevieve Kosinski.\\nMaltbie, C. J., Haines, Hinman, Banks and Avery, Js.\\nArgued May 2d\\ndecided June 5th, 1934.\\nThomas C. Flood, for the appellant (defendant).\\nLeonard O. Ryan, for the appellee (plaintiff).\", \"word_count\": \"440\", \"char_count\": \"2426\", \"text\": \"Per Curiam.\\nThe jury might reasonably have found the following facts: The plaintiff on the morning of November 29th, 1932, went with the defendant, his daughter, to the garage to help her start her car. He told her to put it in high gear and then while she sat in it he pushed it out of the garage. After he had succeeded in pushing it to a point where the rear end was six or seven feet outside of the garage, the engine caught and he stepped back. Then suddenly the car backed and pinned him between the right rear corner of the car and the door of the garage. The defendant did not testify, and no evidence was in any way produced to dispute the plaintiff's testimony. From the fact that the plaintiff had been able unaided to push the car out of the garage while in gear, the jury might reasonably have inferred that the surface of the ground in front of the garage did not slope markedly toward it. With that in mind, taken together with the fact that, when the car backed, it did so suddenly, the jury were entitled to infer that the cause of the backing was that the defendant put the car in reverse and did not have it under proper control. They might reasonably have concluded that the defendant was guilty of negligence. The plaintiff testified that when the car started to back, he was only five or six feet behind it and it came so quickly that he could not get out of the way. Confronted as he was by an emergency, the jury might well have found that he was not guilty of contributory negligence.\\nThe plaintiff was a storekeeper and he testified that he was compelled on account of his injuries to hire his son, who was about twenty-one years old, to carry on the business for him for seven weeks, agreeing to pay him $25 a week, and also to perform certain services for eight weeks thereafter, for which he agreed to pay $4 or $5 a week. The jury might reasonably have accepted this testimony. Taking into consideration the expenses thereby incurred by the plaintiff, certain other special damages he proved and the personal injuries he suffered, the trial court might reasonably conclude that the jury was justified in returning a verdict in the amount they did.\\nThere is no error.\"}"

conn/1604239.json

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+"{\"id\": \"1604239\", \"name\": \"Willard H. Eldredge, Administrator (Estate of Louis Eldredge) et al. vs. F. Wells Geer et als.\", \"name_abbreviation\": \"Eldredge v. Geer\", \"decision_date\": \"1934-06-05\", \"docket_number\": \"\", \"first_page\": \"458\", \"last_page\": \"462\", \"citations\": \"118 Conn. 458\", \"volume\": \"118\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T22:36:41.422808+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Willard H. Eldredge, Administrator (Estate of Louis Eldredge) et al. vs. F. Wells Geer et als.\", \"head_matter\": \"Willard H. Eldredge, Administrator (Estate of Louis Eldredge) et al. vs. F. Wells Geer et als.\\nMaltbie, C. J., Haines, Hinman, Banks and Avert, Js.\\nArgued May 1st\\ndecided June 5th, 1934.\\nArthur T. Keefe, for the appellants (defendants).\\nPerry J. Hollandersky, with whom was Charles V. James, and, on the brief, Foster K. Sistare, for the appellees (plaintiffs).\", \"word_count\": \"1286\", \"char_count\": \"7426\", \"text\": \"Banks, J.\\nPlaintiff's decedent was struck and killed on December 22d, 1930, by a truck operated by the named defendant. This action was brought to recover damages for his death, in which also it was sought to have set aside a transfer of certain personal property from the named defendant to the defendant The Southern New England Contractors' Supply Company, hereinafter referred to as the Supply Company, alleged to have been made with intent to defraud the plaintiff of his right to recover such damages. Upon motion of the Supply Company it was granted a separate trial of the issues involving the transfer to it. The plaintiff recovered a verdict and judgment of $10,000 against Geer, and, upon a subsequent trial, the court entered a decree setting aside the transfer, from which judgment this appeal was taken. The parties filed stipulations as to facts which the court might find proven, and also stipulated that the court might consider the evidence given by certain witnesses in the jury trial in which the award of damages was made to the plaintiff.\\nFrom the stipulations, without the necessity of considering the requested corrections in the finding, the following facts, sufficient for the decision of the case, appear: For several years prior to January 1st, 1931, Geer was engaged in the business of excavating and selling sand and gravel obtained from a bank on property leased by hjm from Charles B. Palmer, which lease expired on January 1st, 1931. L. E. McLaughlin, Inc., was engaged in the contracting business and purchased sand and gravel from Geer. On November 29th, 1930, Geer was indebted to Palmer in the sum of $3000 for sand and gravel excavated from the latter's land, which debt he was unable to pay. Palmer agreed to accept $2000 in satisfaction of the debt, a note for $1000 of which was given Palmer by Geer, and the other $1000 was paid to Palmer by L. E. McLaughlin, Inc., in return for which Geer gave the latter his demand note for $1500. As security for this note, Geer gave L. E. McLaughlin, Inc., a bill of sale of two Mack trucks and at the same time took from it a conditional bill of sale of the same. The delivery of the trucks to L. E. McLaughlin, Inc., was colorable merely and they were shortly redelivered to Geer and remained in his possession until January 2d, 1931. The bill of sale of the trucks was recorded December 23d, 1930 (the day after plaintiff's decedent received his injuries); the conditional bill of sale was never recorded. On December 1st, 1930, L. E. McLaughlin, Inc., loaned Geer $600 to enable him to pay certain bills which he owed, and took his note for that amount, to secure which it took a bill of sale of a third Mack truck, giving back to Geer a conditional bill of sale of the same. The delivery of this truck was also colorable merely, the bill of sale was also recorded on December 23d, 1930, and the conditional bill of sale was never recorded.\\nOn December 23d, 1930, a certificate of incorporation of The Southern New England Contractors' Supply Company was executed, and on January 2d, 1931, the certificate of organization of that company was filed. Eleven thousand dollars was paid in in cash, and one hundred and ten shares issued, of which one hundred and eight shares were issued to L. E. McLaughlin, who is president, treasurer and general manager of the company. On January 2d, 1931, Geer transferred to the Supply Company the three Mack trucks, together with all the machinery, tools and equipment constituting his sand and gravel plant. In return for this transfer, the Supply Company issued to Geer seventy shares of its capital stock of the par value of $100 each, the certificate for which was immediately delivered by him to L. E. McLaughlin as collateral security for his note for $2100 given to McLaughlin, personally, in substitution for his obliga tions totalling that amount to L. E. McLaughlin, Inc. This stock had no market value, Geer's only other asset was an automobile valued at $100, and after the plaintiff obtained the $10,000 judgment against him he was and still is insolvent. The fair market value of the trucks conveyed by Geer to the Supply Company was $4000, and that of the other property so conveyed was in excess of $3000. The trial court found that these transactions were all in pursuance of an intention and design on the part of Geer and of L. E. McLaughlin as an officer of the Supply Company to remove all of Geer's property from availability to satisfy any judgment that might be obtained by the plaintiff, and that they constituted a fraud upon him, and, as against him, were null and void.\\nThe defendants strenuously contend that the subordinate facts found, which for the most part were stipulated by the parties, do not justify a finding of intent to defraud, but that the acts of the defendants detailed in the finding were motivated solely by the intention to give McLaughlin security for the loans which he or his company had made to Geer. These loans aggregated $2100, and, prior to December 22d, 1930, the three trucks valued at $4000 had apparently been considered ample security for this indebtedness. On that day occurred the accident in which plaintiff's decedent lost his life. The three trucks were then in Geer's possession and subject to attachment by his creditors as well as the equipment constituting his sand and gravel plant. On the following day the transactions detailed in the finding were initiated, the result of which was to place these assets beyond the reach of process in the cause of action which had then arisen in favor of the estate of plaintiff's decedent. The sequence of events and all the circumstances are strongly indicative of an intention on the part of Geer and McLaughlin to produce that result rather than that their sole object was to furnish to McLaughlin security for Geer's debt to him beyond that which had been accepted as satisfactory prior to the date of the accident. At any rate, the question of the intention of the parties was one of fact to be determined by the trial court upon such inferences as it was justified in drawing from the conduct of the parties and all the circumstances of the transaction.\\nThe trial court has found that these transactions were had with the knowledge and active participation of McLaughlin, the managing executive and principal stockholder of the Supply Company. Since the Supply Company thus participated in the fraudulent transfer of his property by Geer, the transfer may be held void as against it even though it paid full value for the property transferred. Trumbull v. Hewitt, 65 Conn. 60, 73, 31 Atl. 492; Mathews v. Converse, 83 Conn. 511, 513, 77 Atl. 961. The plaintiff, who, at the time of the transfer, had a cause of action in tort against Geer, may avoid the transfer if made to defeat a recovery in such action. White v. Amenta, 110 Conn. 314, 318, 148 Atl. 345. The court did not err in setting aside the transfer, and holding it null and void as against the plaintiff.\\nThere is no error.\\nIn this opinion the other judges concurred.\"}"

conn/1614833.json

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+"{\"id\": \"1614833\", \"name\": \"Anna Marley v. The New England Transportation Company\", \"name_abbreviation\": \"Marley v. New England Transportation Co.\", \"decision_date\": \"1947-05-01\", \"docket_number\": \"\", \"first_page\": \"586\", \"last_page\": \"592\", \"citations\": \"133 Conn. 586\", \"volume\": \"133\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T02:44:43.868412+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anna Marley v. The New England Transportation Company\", \"head_matter\": \"Anna Marley v. The New England Transportation Company\\nMaltbie, C. J., Bbown, Jennings, Ells and Dickenson, Js.\\nArgued April 9\\u2014\\ndecided May 1, 1947\\nEdwin H. Hall, with whom was Thomas J. O\\u2019Sullivan, for the appellant (defendant).\\nMorton E. Cole and George C. Lessner, with whom, on the brief, was Cyril Cole, for the appellee (plaintiff).\", \"word_count\": \"1439\", \"char_count\": \"8091\", \"text\": \"Ells, J.\\nThe defendant, a common carrier of passengers, operates a bus line between Torrington and Hartford. As the plaintiff, a passenger, attempted to get off at a terminal she slipped and fell on an icy bus step and was injured. Tbe jury returned a verdict for her, and the defendant has appealed from the court's refusal to set it aside and from the judgment.\\nThe defendant does not contend that it was not negligent but claims principally that the plaintiff was guilty of contributory negligence as a matter of law in attempting to get off the bus by means of a step which she knew was in a dangerous condition from snow and ice. She testified that when she changed busses at Canton she observed that the step of the one that she was about to enter was three-quarters covered with ice and snow and was slippery and dangerous, but that she was careful and had no trouble boarding the bus. \\\"When the vehicle stopped at her destination in Hartford she looked at the step and saw that it was still slippery and in a dangerous condition. In attempting to alight she held onto the door casing or framework with her left hand to safeguard herself. She carried a purse in her right hand. While her left foot was on the floor of the bus her right foot slipped on the icy step and she fell to the highway.\\nAdditional facts which the jury reasonably could have found are these: The exit step used by the plaintiff was the only one available to her and to the other passengers; there were no handrails or other adequate safeguards alongside or reasonably near the step; she was following directly behind about twelve other passengers who had alighted in safety; she wore rubbers; the accident occurred after dark, and the bus was lighted; the bus came to a stop in the roadway, about eight feet from the curb, to discharge passengers, and the highway at that point was dark and was icy and slippery.\\nThe defendant claims that there were courses of safe conduct open to the plaintiff: she could have stepped on that part of the step which was not slippery, or she could have asked the driver or another passenger to assist her. To these choices we add another: she could have refused to get off the bus until the dangerous condition had been remedied. The applicable law is that \\\"One who is put in a perilous position by the negligence of another, cannot be regarded as gnilty of contributory negligence if he takes such steps to protect himself as a reasonably prudent person would take, even though he might have avoided the injury by the use of better judgment and by taking a course other than the one he adopted.\\\" Burk v. Corrado, 116 Conn. 511, 515, 165 A. 682, and cases cited; Ballou v. Jewett City Savings Bank, 128 Conn. 527, 532, 24 A. 2d 260. It was for the jury to find what the present plaintiff's conduct was and then decide whether she took such steps to protect herself as a reasonably prudent person would have taken in view of the known danger. Congdon v. Norwich, 37 Conn. 414, 420. We cannot hold that the plaintiff was guilty of contributory negligence as a matter of law.\\nThe defendant assigns various alleged errors in the charge. A principal claim relates to the instructions as to the burden of proof on the issue of contributory negligence. The court began its charge on the subject by reading the applicable statute, General Statutes, Sup. 1939, \\u00a7 1399e, the first sentence of which provides that \\\"In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be presumed that such person . . . who was injured . . . was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care.\\\" The contention is that by reading this sentence the court told the jury that the plaintiff was presumed to be in the exercise of due care and thus gave probative effect to the presumption; that the jury could only get the idea that there is something in addition to the evidence from which they should decide the question of contributory negligence. The defendant overlooks the fact that the court went on to explain the meaning of the statute, at length, and to state the applicable law exactly as the defendant claims it to be. It is not contended that the court stated the law incorrectly. The reading of the sentence in question, followed as it was by an adequate explanation of our law, could not have misled the jury. We point out, however, that every purpose of the statute is served if, in a case where it applies, the court does not read it to the jury but merely charges them that the burden of proving contributory negligence is upon the defendant and that, if the defendant offers no evidence upon that issue or if the evidence he does offer fails to prove that the plaintiff was negligent by a fair preponderance of the evidence, the plaintiff is entitled to prevail upon the issue. LeCount v. Farrand, 118 Conn. 210, 212, 171 A. 623; Voronelis v. White Line Bus Corporation, 123 Conn. 25, 28, 192 A. 265; and see Balchunas v. Palmer, 151 F. 2d 842, 844. It would make for simplicity in the charge and remove any possibility of confusing the jury if this practice were followed.\\nThe defendant requested the trial court to charge that the plaintiff's conduct in attempting to get off the bus when she knew that it was slippery and dangerous, without asking the bus driver to assist her or to correct the condition of the step, constituted contributory negligence. The court correctly refused so to charge, for the reasons we have already given. We test the motion to set aside the verdict by the evidence and the charge by the finding, but in this case there is no essential difference between them.\\nThe defendant claims that the plaintiff did not offer evidence to prove that the exit-way had no railings or other adequate safeguards for the use of passengers. There was a pole inside the exit-way running from the floor of the bus to the roof which the defendant claimed was for the use and assistance of passengers who were about to get off. The jury could have found that it was too far inside the bus to be of use for this purpose.\\nOne of the claims of proof of the plaintiff was that she was exercising due care while attempting to alight. The defendant claims that this was a conclusion of law and has no proper place in the finding. Strictly speaking, a conclusion of negligence is ordinarily one of mixed law and fact, involving the determination of the standard of care required and its application to the facts of the particular case. Davis v. Margolis, 107 Conn. 417, 420, 140 A. 823. It becomes a conclusion of law only when the mind of a fair and reasonable man could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as matter of fact. Johnson v. Pulidy, 116 Conn. 443, 445, 165 A. 355. The present case falls within the last category, and the inclusion in the plaintiff's claims of proof of the statement attacked was proper.\\nThe defendant claims error in a statement in the charge that in determining whether the plaintiff was negligent the jury should bear in mind that everyone is entitled to assume that another will exercise reasonable care. The ground of attack is that as the plaintiff knew the step to be slippery and dangerous there could be in her case no such assumption. Granted that this be so, we cannot, in view of the substantially undisputed fact that the plaintiff did know the step to be slippery, see how the defendant suffered harm from the trial court's inadvertent statement. Kulinski v. Savin, 125 Conn. 512, 514, 7 A. 2d 436.\\nThere is no error.\\nIn this opinion the other judges concurred.\"}"

conn/1614957.json

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+"{\"id\": \"1614957\", \"name\": \"Walter P. Smith v. The L. & S. Corporation\", \"name_abbreviation\": \"Smith v. L. & S. Corp.\", \"decision_date\": \"1946-07-09\", \"docket_number\": \"\", \"first_page\": \"105\", \"last_page\": \"108\", \"citations\": \"133 Conn. 105\", \"volume\": \"133\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T02:44:43.868412+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Walter P. Smith v. The L. & S. Corporation\", \"head_matter\": \"Walter P. Smith v. The L. & S. Corporation\\nMaltbie, C. J., Bkown, Jennings, Ells and Dickenson, Js.\\nArgued June 7\\u2014\\ndecided July 9, 1946\\nM. J. Blumenfeld, for the appellant (defendant).\\nDennis P. O\\u2019Connor, with whom were John W. Joy and, on the brief, James N. Egan, for the appellee (plaintiff).\", \"word_count\": \"719\", \"char_count\": \"3962\", \"text\": \"Jennings, J.\\nThe plaintiff fell over a dolly in a garage and was injured. The defendant appeals from the denial of its motion to set aside the verdict on the grounds that the plaintiff was not an invitee and that he was guilty of contributory negligence as a matter.of law.\\nThe jury reasonably could have found the following facts: The plaintiff's car was not running right and he took it to the defendant's garage for repairs. The job took some time and after standing around for about three-quarters of an hour the plaintiff, wishing to find out how long it would be before his car was ready, started to walk between two parked cars towards a workbench at which there was a light and toward which he had seen the mechanic who was working on his car go. The evidence discloses no other means by which he could have obtained that information. The space between the cars was about six feet wide. The garage was rather dark and the cars cast shadows. As he passed the first car he stumbled over a dolly which projected about ten inches beyond its side, fell and was injured. A dolly or creeper is a carrier on rollers two or three feet long and eighteen inches wide, used by mechanics to slide under cars when it is necessary to work on the underbody. Dollies are customarily used by mechanics in garages and this fact was known to the plaintiff. The dolly in question was of light maple and the plaintiff would have seen it had he been alert.\\nThe plaintiff was clearly entitled to drive his car into the garage and in so doing was an invitee as a matter of law. The question on this phase of the case is: Did he exceed his rights as such ? The answer is \\\"No,\\\" if his use of the premises was such as might reasonably have been contemplated by the defendant. Guilford v. Yale University, 128 Conn. 449, 454, 23 A.2d 917. The jury could have found that he was expecting to wait until repairs were made, that no other place was provided and that there was nothing to indicate that he could not move around while he was waiting. The charge is not printed and is presumed to have been correct. Schroeder v. Hartford, 104 Conn. 334, 336, 132 A. 901. The issue was one of fact. Guilford v. Yale University, supra; Girard v. Kabatznick, 128 Conn. 520, 525, 24 A.2d 257. The defendant was under a duty to use reasonable care to keep its premises reasonably safe for the plaintiff, provided the jury found, as they must have, that he had not exceeded the limits of his invitation. Id., p. 524. The same case (p. 525) is authority for the familiar proposition that contributory negligence is ordinarily a question of fact. See also Flynn v. West Hartford, 98 Conn. 83, 86, 118 A. 517; Zoccali v. Carfi, 128 Conn. 168, 20 A.2d 728. In the few recent Connecticut cases where the plaintiff has been held guilty of contributory negligence as a matter of law, the cir cumstances were very different. See, for example, Seabridge v. Poli, 98 Conn. 297, 301, 119 A. 214, where the plaintiff stumbled over a large weighing machine, and Martin v. Stamford Gas & Electric Co., 118 Conn. 319, 321, 172 A. 218, where the plaintiff fell into an open, guarded manhole in plain sight. \\\"While the plaintiff testified that he could have seen the dolly had he been alert, there was no evidence that the floor of the garage was in a condition that required him to be alert, i.e., \\\"vigilant.\\\" Webster's New International Dictionary (2d Ed.); Smith v. Kresge Co., 116 Conn. 706, 707, 164 A. 206. It cannot be held as a matter of law that the plaintiff was negligent in not seeing the dolly, in view of its position and the lack of light.\\nThere is no error.\\nIn this opinion the other judges concurred.\"}"

conn/1616862.json

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+"{\"id\": \"1616862\", \"name\": \"Michael W. Delaney et al. v. Zoning Board of Appeals of the City of Hartford et al.\", \"name_abbreviation\": \"Delaney v. Zoning Board of Appeals\", \"decision_date\": \"1947-12-03\", \"docket_number\": \"\", \"first_page\": \"240\", \"last_page\": \"245\", \"citations\": \"134 Conn. 240\", \"volume\": \"134\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T19:17:48.541834+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Michael W. Delaney et al. v. Zoning Board of Appeals of the City of Hartford et al.\", \"head_matter\": \"Michael W. Delaney et al. v. Zoning Board of Appeals of the City of Hartford et al.\\nMaltbie, C. J., Brown, Jennings, Ells and Dickenson, Js.\\nArgued November 13\\ndecided December 3, 1947\\nJulius B. Schats said Joseph P. Kenny, with whom, on the brief, was Arthur D. Weinstein, for the appellant (defendant Triton Restaurant, Inc.); and, on the same brief, Samuel II. Aron and Thomas J. Hag-arty, for the appellant (named defendant).\\nA. A. Bibicoff, for the appellee (named plaintiff), with whom, on the brief, was Harry Schwolsky, for the appellees (plaintiffs Schultz).\", \"word_count\": \"1424\", \"char_count\": \"8586\", \"text\": \"Brown, J.\\nOn July 23,1946, the defendant zoning board of appeals granted the application of the defendant Triton Restaurant, Inc., for a permit to use its premises for the sale of all kinds of alcoholic liquor, in connection with a restaurant it operates, at variance with a provision of the zoning ordinance requiring an interval of 1500 feet between liquor outlets of the nature specified. The plaintiffs, neighboring property owners, appealed to the Court of Common Pleas, which sustained their appeal. From that judgment the restaurant corporation and the board have appealed to this court. The trial court decided the appeal upon the record of the hearings before the board and its action thereon, and accordingly made no additional finding of facts. Biz v. Liquor Control Commission, 133 Conn. 556, 557, 53 A. 2d 655. The question now is whether upon that record the court was warranted in concluding that the board \\\"exceeded its powers, acted unlawfully, arbitrarily and in abuse of its legal discretion,\\\" and therefore in sustaining the plaintiffs' appeal.\\nThe undisputed facts material to the determinative issue may be summarized as follows: The defendant restaurant corporation at 306 Farmington Avenue, Hartford, is within a business zone, under the zoning ordinance which is chapter 20 of the Municipal Code of Hartford, amended by an ordinance approved October 8,1945, and which contains the following applicable provisions. Article II, \\u00a7 7, subsection 5, provides: \\\"A. No building or premises shall be used, . . . which is arranged, intended or designed to be used: (a) for a restaurant . . . serving alcoholic liquor . if any part of said building or premises is situated on any part of a lot within fifteen hundred feet radius in any direction of any lot upon which is located a building or premises used for the purpose of a restaurant, grill or tavern, serving alcoholic liquor.\\\" Within 1500 feet of the defendant restaurant are three such establishments dispensing alcoholic liquor\\u2014a restaurant at 450 feet, a grill at 300 feet and another restaurant at 1490 feet. Article V, \\u00a7 5, subsection 5, provides: \\\"The Board of Appeals may . . . determine and vary the application of the regulations . in harmony with their general purpose and intent, and grant permits in the specific cases hereinafter listed. Said power shall be exercised only if there shall be difficulty or unreasonable hardship in carrying out the strict letter of the ordinance and so that the spirit of the ordinance shall be observed, public welfare and safety secured and substantial justice done.\\\" One of the \\\"specific cases . . . listed\\\" is thus designated by subparagraph (n): \\\"In business . . . zones the requirements of Article II, Section 7, Subsection 5, may be waived and permits given to restaurants . . . which sell or serve alcoholic liquors.\\\" The memorandum of decision of the court indicates that in the hearing before it the defendants relied upon subparagraph (n) as giving the defendant board a broad discretion to vary which was not subject to the limitations prescribed by the provisions of subsection 5. This contention is patently untenable and the defendants make no such claim before us. Whether the trial court's conclusion was justified depends upon whether the board's action constituted an abuse of the discretion conferred upon it by subparagraph (n), construed in connection with the first and second sentences of subsection 5.\\nThe only evidence of \\\"difficulty or unreasonable hardship\\\" upon the restaurant corporation from \\\"carrying out the strict letter of the ordinance\\\" was restricted to the effect upon its financial situation, the gist of which was that an operating loss could be changed to an operating profit if the variance was granted. This of itself constituted no sufficient reason for granting' the application. The board was \\\" 'bound to take a broader view than the apparent monetary distress of the owner. Otherwise, there would be no occasion for any zoning law.' \\\" Thayer v. Board of Appeals, 114 Conn. 15, 22, 157 A. 273; Devaney v. Zoning Board of Appeals, 132 Conn. 537, 542, 45 A. 2d 828; Benson v. Zoning Board of Appeals, 129 Conn. 280, 283, 27 A. 2d 389. The only basis for the action of the board which the record even suggests is the statement of one member in moving that the variation be granted. In addition to a reference to unreasonable hardship on the ground just discussed, he said that granting the variance would relieve traffic in more congested areas and meet an essential need for the type of restaurant proposed. As the court well observed, \\\"the evidence on these questions was so speculative and indefinite that it could not reasonably support such a conclusion.\\\"\\nWe have recently declared the test determinative of the right of a zoning board of appeals to grant such a variance as here requested, by this statement: \\\"In Devaney v. Board of Zoning Appeals, 132 Conn. 537, 541, 45 A. 2d 828, we pointed out that the words 'practical difficulties' in the phrase 'practical difficulties or unnecessary hardships' are in themselves insufficient to afford a guide to determine whether a variation should be granted, and that the phrase is to be construed as a whole; that the requirement that any variation shall be in harmony with the general purpose and intent of the ordinance is of prime significance; and that 'unnecessary' qualifying the word 'hardships' means hardships which would not follow as the ordinary results of the adoption of the zoning plan as a whole. To justify a variation under such a provision in a zoning ordinance, it must appear that the change will not substantially affect the comprehensive plan of zoning in the municipality and that adherence to the strict letter of the ordinance will cause difficulties and hardships the imposition of which upon the petitioner is unnecessary in order to carry out the general purpose of the plan.\\\" Stavola v. Bulkeley, 134 Conn. 188, 190, 56 A. 2d 645. Not only is resort to this test requisite to the application of the provisions of the zoning ordinance but it is essential under \\u00a7 428 of the General Statutes and \\u00a7 128 and 129 of chapter 12 of the revised charter of the city of Hartford. 23 Spec. Laws 1243, 1244; see Kamerman v. LeRoy, 133 Conn. 232, 235, 50 A. 2d 175.\\nThe requirement of the zoning ordinance that places for the sale of alcoholic liquor shall not be closer than 1500 feet to each other represents a definite policy on the part of the city as represented by its common council. Existing places at closer intervals will continue as nonconforming uses, but as such uses cease, for any reason, the restriction will be more closely approximated. To grant a permit for the use of a restaurant for the sale of liquor where there are already three such places within 1500 feet flies directly in the face of the declared policy embodied in the ordinance. The facts disclose no basis upon which it could reasonably be held that such action would be in harmony with the general purpose and intent of the zoning regulations or would accord with the spirit of the ordinance. Indeed, it would be a rare ease where the facts would permit a variation in this particular regulation.\\nWhen the statement of the member of the board that to grant the variance would best serve the general welfare of the community and be in conformity with the spirit and intent of the zoning ordinance is considered in the light of this test, it suffices to say that upon the evidence before the board it could not reasonably reach such a conclusion. In granting the defendant restaurant's application, the board indulged in an attempt at \\\"spot zoning,\\\" so-called, a course which, if permitted, must often involve unfair and unreasonable discrimination and necessarily defeat, in large measure, the beneficial results of zoning regulation. The trial court could not do other than grant the plaintiffs relief from the board's unwarranted action.\\nThere is no error.\\nIn this opinion the other judges concurred.\"}"

conn/1616906.json

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+"{\"id\": \"1616906\", \"name\": \"Charles E. Moore et al. v. Town of Stamford et al.\", \"name_abbreviation\": \"Moore v. Town of Stamford\", \"decision_date\": \"1947-07-16\", \"docket_number\": \"\", \"first_page\": \"65\", \"last_page\": \"71\", \"citations\": \"134 Conn. 65\", \"volume\": \"134\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T19:17:48.541834+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles E. Moore et al. v. Town of Stamford et al.\", \"head_matter\": \"Charles E. Moore et al. v. Town of Stamford et al.\\nMaltbie, C. J., Brown, Jennings, Ells and Dickenson, Js.\\nArgued June 10\\ndecided July 16, 1947\\nFrank Rick, for the appellants (plaintiffs).\\nGeorge Wise, for the appellees (defendants).\", \"word_count\": \"1886\", \"char_count\": \"11019\", \"text\": \"Jennings, J.\\nThe question to be determined is whether property located within the limits of the city of Stamford, a municipal corporation contained within the territorial limits of the town of Stamford but not coterminous therewith, is subject to town taxes levied to meet the expense of services performed in the town outside of the territorial limits of the city. The plaintiffs do not pursue in their brief assignments of error attacking findings of fact. They rely on their claim that the facts found do not support the conclusions reached and set forth both among the findings of fact and specifically as conclusions.\\nIn 1830 an area in the southerly part of the town of Stamford was incorporated as a borough. The charter of the borough has been amended from time to time by adding territory to be included within its limits and by increasing its corporate powers. This process culminated in the incorporation of the city of Stamford in 1893. 11 Spec. Laws 797. It and the town function as independent political entities. The charter of the city grants to it exclusive jurisdiction over various activities within its territorial limits. The town continues to perform the following functions within the city limits: education; care of poor and incompetent persons; conduct of town elections and making of voters; fence disputes and other town duties prescribed by statute; appropriation of funds recommended by the board of finance of the town. It shares the cost of the city court with the city and pays six ten-thousandths of its total grand list to the city for the care and maintenance of roads and bridges within the city. The assessment and collection of taxes are also a joint affair and are described in detail in State ex rel. Schenck v. Barrett, 121 Conn. 237, 244, 184 A. 379.\\nIn addition to the functions of the town performed within the city limits it conducts certain activities which serve only that portion of its territory outside of the eity limits and which do not benefit taxpayers like the plaintiffs who own property within those limits. These activities are as follows: The town appoints and pays or maintains a tree warden, health officer, zoning commission and zoning board of appeals, planning commission, public works department and police department; it maintains and pays for highways and a public dump and contributes substantial funds to a number of volunteer fire departments. The inconsistent finding that the city benefits from some of these activities is disregarded.\\nThe town grand list is $162,648,508; of this amount, properties assessed at $112,315,136 are within the city limits. The net city budget for 1945-1946 was $1,705,369.09 and that of the town $2,867,-056.14; $255,970.50 was appropriated by the town to pay for its activities carried on outside the city limits as described above. All residents of the town, including those within the city limits, pay a town tax which includes a levy to cover the expenses last mentioned, and have done so ever since the city existed. Property located in the town outside of the city limits is not charged wdth a city tax.\\nThe right of voters residing within the city limits to vote in town meetings is equal in all respects to the right of voters residing outside of those limits but within the town.\\nThe trial court concluded that the town was required by law to levy taxes on all of the property within its limits, including property within the city limits, sufficient to pay its estimated expenditures, and that it had no power to separate any item from its budget and levy separate taxes for it.\\nThe grand list of a town is made up in accordance with the directions contained in General Statutes, chapter 62, as amended. When completed, it covers all of the property subject to taxation by the town. A tax is laid \\\"on such list\\\" sufficient to cover the expenditures as estimated for the ensuing year. Cum. Sup. 1935, \\u00a7 87c. The property of the plain tiffs is in the town of Stamford, is included in the grand list of the town and, in accordance with the foregoing statutes, must be taxed by the town. Cornstock v. Waterford, 85 Conn. 6, 9, 81 A. 1059. The conclusion of the trial court must stand unless the plaintiffs can establish that their particular situation brings them within a recognized exception to this general principle.\\nThe underlying basis of the plaintiffs' principal claim is that property not benefited should not be taxed. The plaintiffs state this as follows: \\\"Property within the city limits should not be taxed for those matters which are for the sole and exclusive' benefit of the town outside of the city, and from which the taxpayers in the city derive no benefit.\\\" This claim, that property not benefited cannot be taxed, has been frequently made and almost uniformly denied. It is true that most of the cases involve complaints by owners of outlying property that they have no benefit from city improvements rather than the reverse, as here. The principle remains the same. Absence of special benefit does not prevent taxation for public purposes authorized by law. Bailey v. Manasquan, 53 N.J.L. 162, 20 A. 772; Kelly v. Pittsburgh, 85 Pa. 170, aff'd, 104 U. S. 78, 26 L. Ed. 658; Atherton v. Essex Junction, 83 Vt. 218, 223, 74 A. 1118, 27 L.R.A. (N.S.) 695. The rule was formerly otherwise in Kentucky, Utah and Nebraska, but those states have now joined the majority. Hughes v. Carl, 106 Ky. 533, 50 S.W. 852; Kimball v. Grantsville City, 19 Utah 368, 386, 57 P. 1; Turner v. Althaus, 6 Neb. 54. Iowa only stands out. Durant v. Kauffman, 34 Iowa 194; Taylor v. Waverly, 94 Iowa 661, 63 N.W. 347; McKeon v. Council Bluffs, 206 Iowa 556, 560, 221 N.W. 351. Courts cannot properly inquire into the \\\"expediency, wisdom or justice of [such] legislation.\\\" Kimball v. Grantsville City, supra. It is not unconstitutional. Ferguson v. Snohomish, 8 Wash. 668, 673, 36 P. 969. Unless the General Assembly has violated constitutional limitations, recourse must be had to it rather than to the courts. McLaughlin v. Estate of Cooper, 128 Conn. 557, 562, 24 A. 2d 502.\\nThe two cases relied on by the plaintiffs are not controlling. In Chamberlain v. Bridgeport, 88 Conn. 480, 490, 91 A. 380, two taxing districts, each with limited taxing authority, were consolidated. The decision turned on the wording of the consolidating act. It was held that that act continued the limitations on the power to tax to which the districts, before consolidation, were subject. The question in the case at bar was specifically excluded from the discussion. Id., 493. The Stamford charter contains no such limitation. In Williams Bros. Mfg. Co. v. Naubuc Fire District, 92 Conn. 672, 677, 104 A. 245, there is a statement that a construction which imposes taxes with no possibility of benefits should be avoided. The statement was made to support the construction of the charter then under consideration and falls far short of saying that the fact that no benefits can be received from specific services is a ground in law for holding taxes laid to pay for those services invalid.\\nNo case has been cited or found which holds that a smaller municipal unit may not be taxed for services properly performed by a larger unit in which it is included on the ground that the services do not directly benefit the smaller unit. See State ex rel. Brush v. Sixth Taxing District. 104 Conn. 192, 203, 132 A. 561.\\nA portion of the plaintiffs' brief discusses certain activities of the town, including the appointment of a tree warden and a health officer and making contributions to volunteer fire departments, as unauthorized by statute. The complaint raises no such issue but is restricted to the underlying claim just discussed. The memorandum of decision makes it clear that the case was tried and decided on that issue. It is unnecessary to decide whether a taxpayer could have an injunction against an unauthorized estimate or appropriation. As has been stated above, when the estimates are complete and the appropriations made, it is the duty of the board of finance to fix a tax rate sufficient to cover the appropriation. The complaint states no case for relief against \\\"levying and collecting a tax for the purposes above mentioned\\\" on the ground that the activities were not authorized by statute.\\nThe plaintiffs' final contention relates to the town police department and zoning commission. Their basic claim appears to be the proposition stated in the preceding paragraph. As regards zoning, their specific claim is that two zoning authorities cannot operate in the same territory. The city charter, 21 Spec. Laws 1239, provides for a zoning commission with jurisdiction in the city only. The town zoning commission has jurisdiction only in that portion of the town outside the limits of the city. 23 Spec. Laws 316. There is no conflict here. The fact that police officers of the town can serve warrants in any part of the town (23 Spec. Laws 367, \\u00a7 8), including the city, does not present an unusual situation or one which sustains the plaintiffs' claim. Their own police officers, that is those of the city, are given jurisdiction throughout the town in criminal matters with all the powers of constables. 21 Spec. Laws 1205, \\u00a7 52. Such mutual co-operation serves a useful and, perhaps, necessary purpose. Compare, for example, the right of the state police to make arrests in any municipality in the state. General Statutes \\u00a7 2295.\\nThis opinion follows the briefs, but practical considerations lead to the same result. The organization of subsidiary taxing districts, by whatever name called, for the purpose of securing additional revenue from those specially benefited by special services is complicated but customary and seems to work out fairly well. The Stamford solution has been in effect for over one hundred years. In order to accomplish the result sought by the plaintiffs, such a special district consisting of town property outside of the city limits would be necessary. This might be done but only by specific legislative authority. No such authority has been granted. The judgment was correct.\\nThere is no error.\\nIn this opinion the other judges concurred.\\nSee also State ex rel. Kellett v. Johnson, 330 Mo. 452, 455, 50 S.W. 2d 121; Frace v. Tacoma, 16 Wash. 69, 47 P. 219; Morgan's L. & T. R. R. & S. S. Co. v. White, 136 La. 1074, 1077, 68 So. 130; St. Louis & S. W. R. Co. v. Nattin, 277 U.S. 157, 159, 48 S. Ct. 438, 72 L. Ed. 830; Dixon v. Mayes, 72 Cal. 166, 168, 13 P. 471; Carey v. Pekin, 88 Ill. 154; Mendenhall v. Burton, 42 Kan. 570, 576, 22 P. 558; Mitchell v. Negaunee, 113 Mich. 359, 361, 71 N.W. 646; Norris v. Waco, 57 Tex. 635, 640; Davis v. Pt. Pleasant, 32 W. Va. 289, 295, 9 S.E. 228; 6 McQuillin, Municipal Corporations (2d Ed. Rev.) \\u00a7 2549, 2558.\"}"

conn/1636769.json

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+"{\"id\": \"1636769\", \"name\": \"Jennie Winestine et al. vs. The Rose Cloak and Suit Company et als.\", \"name_abbreviation\": \"Winestine v. Rose Cloak & Suit Co.\", \"decision_date\": \"1919-07-16\", \"docket_number\": \"\", \"first_page\": \"633\", \"last_page\": \"639\", \"citations\": \"93 Conn. 633\", \"volume\": \"93\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T17:00:59.220987+00:00\", \"provenance\": \"CAP\", \"judges\": \"Prentice, C. J., Roraback, Wheeler, Beach and Gager, Js.\", \"parties\": \"Jennie Winestine et al. vs. The Rose Cloak and Suit Company et als.\", \"head_matter\": \"Jennie Winestine et al. vs. The Rose Cloak and Suit Company et als.\\nThird Judicial District, New Haven,\\nJune Term, 1919.\\nPrentice, C. J., Roraback, Wheeler, Beach and Gager, Js.\\nA correction of the finding, which, if made, would not affect the judgment rendered, will be refused.\\nThe motive with which an act is done may often be inferred from proof of facts and circumstances connected with the transaction.\\nIn the present case it appeared that the plaintiffs were sublessees of the defendant corporation in a part of a building leased by it, and that if the corporation renewed its lease for five years, as it had the right to do, the plaintiffs would be entitled to a sublease of their portion of the building for the renewal period, if they so elected. The original lease was renewed, but in the name of the president of the corporation instead of in the corporate name, and the plaintiffs elected to renew their sublease, which the corporation and its president refused to grant. The trial court found that the renewal of the principal lease in the individual name of the president of the corporation instead of in its own name, was for the fraudulent purpose of having it appear not to be a renewal, and so, if possible, to deprive the sublessees of the continuation of their lease; and that such renewal was, in effect, a renewal of the corporate lease and was so intended by the parties. Held that the evidence in the case warranted these conclusions of the-trial court.\\nThat rents have greatly increased within a few years is, it seems, a matter of which courts may take judicial notice.\\nThe legal remedy must be complete and adequate, in order to preclude a litigant from resorting to a court of equity.\\nArgued June 4th\\ndecided July 16th, 1919.\\nSuit to secure the continuance .of a sublease pursuant to an alleged agreement between the parties, for an injunction, and for other equitable relief, brought to and tried by the District Court of Waterbury, Peasely, J.; facts found and judgment rendered for the plaintiff Jennie Winestine, and appeal by the defendant Pauline Rosengarten.\\nNo error.\\nIt is conceded that in September, 1915, the defendants Levys leased to the Rose Cloak and Suit Company two entire buildings, located on South Main Street in Waterbury, for a monthly rental of $300 payable in advance. The term of the lease extended to March 1st, 1918. This lease was renewable for the further term of five years, provided the lessee gave the lessors six months\\u2019 notice of its desire to exercise the privilege of renewal. The lessee gave this notice and thereby became entitled to a renewal of the lease in case it desired such renewal.\\nIn August, 1916, the Rose Cloak and Suit Company leased a portion of these premises to the plaintiff Jennie Winestine for $85 a month, the lease to expire on March 1st, 1918. This lease provides that \\u201cprivilege is hereby given to continue this lease for a further period of five years under the same terms as herein mentioned, in the event the said The Rose Cloak and Suit Company exercises its privilege of renewing its lease made with David E. and Herman H. Levy with reference to said premises.\\u201d\\nIt also appears that Pauline Rosengarten has commenced summary process proceedings to gain possession of the premises, which proceedings have not terminnated in a judgment owing to the commencement of the present action and the issuance of an injunction in connection therewith.\\nThe plaintiffs have alleged, as the trial court has found, that the defendant Rose Cloak and Suit Company did in fact exercise its privilege of renewing this lease with David E. and Herman H. Levy for the further term of five years from March 1st, 1918; that the name of Pauline Rosengarten as lessee, instead of the name of the Rose Cloak and Suit Company, was used in the renewal lease with David E. and Herman Levy, for the purpose of making it appear that it was not a renewal of the lease and, if possible, to deprive the plaintiff Jennie Winestine of the continuation of her lease for five years from March 1st, 1918; that this lease was made for and in behalf of the Rose Cloak and Suit Company, and was intended to be and was a renewal of its lease of the premises described therein, being the same premises described in the lease of the Levys to the Rose Cloak and Suit Company.\\nWilliam E. Thoms, for the appellant (defendant Pauline Rosengarten).\\nCharles G. Root, for the appellees (plaintiffs).\", \"word_count\": \"1799\", \"char_count\": \"10352\", \"text\": \"Roraback, J.\\nThe defendant Rosengarten claims that the court erred in finding as it did in respect to a large number of matters, and in failing to find as re quested as to other matters, and we are asked to correct the finding in those particulars. It is unnecessary to pursue these assignments of error, as it appears from the evidence that no correction of, or addition to, the finding, could properly be made which would affect the judgment that was rendered in the plaintiffs' behalf.\\nThis case turns upon the question whether the evidence was sufficient to warrant the conclusion of the trial court as to the purpose and effect of the renewal of the lease originally made to the Rose'Cloak and'Suit Company by the defendants Levys.\\nThe motive with which an act is done may be, and often is, ascertained and determined by inference from the proof of facts and circumstances connected with the transaction and the parties to it. Sallies v. Johnson, 85 Conn. 77, 81, 81 Atl. 974. So in this case, it appears that the new lease of the premises in question, made by the Levys to Pauline Rosengarten, is like the old one made to the Rose Cloak and Suit Company, except that the - name Pauline Rosengarten is substituted in the place of the Rose Cloak and Suit Company; that Pauline Rosengarten was the president of the Suit Company; that she owned twenty-seven of the thirty shares of the capital stock of the Suit Company; that of the three remaining shares two were owned by members of Pauline Rosengarten's family; that the rent to be paid under the new lease was the same that was paid under the old lease made with the Suit Company; and that the management and control of the business of the Suit Company was not changed after the defendant Rosengarten claims that she obtained a lease in her own name from the Levys. The motive for the defendant Rosengarten's attempt to get rid of the plaintiff's privilege to renew, can be found in the fact that prices for rents had greatly increased during the term of the Suit Company's original lease. Of this fact undoubtedly the trial court took judicial notice.\\nThese facts, in the absence of any satisfactory explanation, which was not given, warranted the court below in reaching the conclusions just referred to. It heard the parties, had the benefit of their presence and appearance, and after considering all the circumstances reached the conclusion that the lease from the Levys to Pauline Rosengarten was not made in good faith. An examination of the record does not disclose that this conclusion is without sufficient evidence to support it.\\nThe defendant Rosengarten now contends that the finding does not show that the Suit Company was entitled to renew its lease with the Levys. A complete answer to this proposition is to be found in the fact that it appears that the defendant Rosengarten in her brief concedes that the Suit Company gave the notice required by its lease with the Levys and \\\" thereby became entitled to a renewal of the lease in case it desired such renewal.\\\"\\nAs we have just stated, it appears that the defendant Rosengarten conceded that the Suit Company gave notice to the Levys of its intention to renew, and that it had the right to renewal if it wished to exercise that right. The trial court has found that such right was exercised by the Suit Company; that such renewal was made with the intention that it should be a renewal of the original lease of the Suit Company with the Levys. The fact that Pauline Rosengarten took the lease in her name did not relieve the Suit Company from its obligation to fulfil its contract with the plaintiff Jennie Winestine. The only way the Suit Company could avoid this obligation was by the abandonment of its right to renew. Cunningham v. Pattee, 99 Mass. 248, 253; Nutmeg Park Driving Corporation v. Fisk, 81 Conn. 463, 465, 466, 71 Atl. 499.\\nThe record discloses that the only objection properly made by the defendant Rosengarten in the court below as to the relief claimed by the plaintiffs in their complaint, and the relief granted by the trial court in its judgment rendered, was that the defendant Rosengarten should not be enjoined from proceeding with her action of summary process, \\u2014 for, if the lease from the corporation has been actually renewed, that is a good legal defense.\\nUndoubtedly it is the rule that when a party has a remedy at law, he cannot come into equity, unless from circumstances not within his control he could not avail himself of his legal remedy. Before refusing its aid upon this ground, however, it must appear to the court that the legal remedy is complete and adequate to afford the complainant full redress.\\nIn this case the evidence shows, as the court has found, that the plaintiff Jennie Winestine, acting under the privilege given by her lease from the Suit Company, after taking possession of the premises, expended more than $1,000 in making permanent improvements of the store which she had leased. There is a class of cases holding that one having the right to declare a forfeiture, who does not declare it when he is entitled to do so, waives his right. This proposition rests upon the ground of estoppel. In such cases the lessee has usually made large expenditures or made valuable improvements believing that the right of forfeiture would not be asserted. O'Connor v. Timmermann, 85 Neb. 422-425, 123 N. W. 443, 24 L. R. A. (N. S.) 1062-1066.\\nThis is such a case, and, further than this, it also appears that the plaintiff Jennie Winestine has faithfully kept and is faithfully keeping all the terms and conditions of the lease, and that she has taken the necessary steps to exercise her privilege of continuing the lease fer five years, as provided therein. Under these circumstances, it is apparent that the plaintiffs are entitled to an injunction to protect their rights. There is no error.\\nIn this opinion the other judges concurred.\"}"

conn/1664914.json

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+"{\"id\": \"1664914\", \"name\": \"State of Connecticut v. Anonymous (1980-5)\", \"name_abbreviation\": \"State v. Anonymous (1980-5)\", \"decision_date\": \"1979\", \"docket_number\": \"\", \"first_page\": \"527\", \"last_page\": \"532\", \"citations\": \"36 Conn. Supp. 527\", \"volume\": \"36\", \"reporter\": \"Connecticut Supplement\", \"court\": \"Connecticut Superior Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T01:01:31.454437+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Connecticut v. Anonymous (1980-5)\", \"head_matter\": \"State of Connecticut v. Anonymous (1980-5)\\nAppellate Session of the Superior Court\\nThus entitled, in view of General Statutes \\u00a7 54-142a.\", \"word_count\": \"1427\", \"char_count\": \"8818\", \"text\": \"David M. Shea, J.\\nAfter entering a plea of nolo contendere the defendant was found guilty of operating a motor vehicle under the influence of intoxicating liquor in violation of General Statutes \\u00a7 14-227a and the penalty of a fine was imposed. He has appealed from that judgment, claiming error in the denial, for lack of jurisdiction, of his motion for pretrial accelerated rehabilitation under General Statutes \\u00a7 54-76p.\\nThe record indicates that the trial court denied the defendant's motion upon the ground that the offense of operating a motor vehicle under the influence does not constitute a \\\"crime\\\" and, therefore, that the defendant did not qualify for accelerated rehabilitation which is available under \\u00a7 54-76p only to \\\"persons accused of a crime, not of a serious nature.\\\" The validity of this conclusion is the only issue raised in this appeal.\\nOperating under the influence of liquor, or \\\"drunken driving\\\" in ordinary parlance, has been commonly regarded as a \\\"crime\\\" in the general sense of that term. It is punishable under \\u00a7 14-227a (e) by a fine or imprisonment or both for a first offense, and subsequent convictions carry mandatory jail terms. In our cases it has been consistently referred to as a crime. State v. Englehart, 158 Conn. 117, 119, 256 A.2d 231 (1969); State v. DeCoster, 147 Conn. 502, 503, 162 A.2d 704 (1960); State v. McDonough, 129 Conn. 483, 484, 29 A.2d 582 (1942).\\nThe state contends that operating under the influence is not a crime because it falls within the exception to the definition of \\\"offense\\\" in General Stat utes \\u00a7 53a-24, a provision of the penal code. The word \\\"offense\\\" is defined there to mean \\\"any crime or violation which constitutes a breach of any law of this state . . . for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed tobe an infraction(Emphasis added.) The term \\\"motor vehicle violation\\\" is not defined by any statute. The argument of the state necessarily assumes that any breach of law involving the use of a motor vehicle constitutes a \\\"motor vehicle violation\\\" and would therefore fall within the exception. The thrust of this argument would seem to apply to a number of other statutes prohibiting certain acts with a motor vehicle which have usually been regarded as criminal, such as misconduct with a motor vehicle in violation of General Statutes \\u00a7 53a-57 or negligent homicide with a motor vehicle in violation of General Statutes \\u00a7 53a-58a. Section 14-227a, which prohibits operating under the influence, is found in chapter 248 of the statutes, entitled \\\"Vehicle Highway Use,\\\" rather than in chapter 952, entitled \\\"Penal Code: Offenses.\\\" We hesitate to attribute much signifi canee to this circumstance, however, since it is expressly provided that the felony, misdemeanor, and violation classifications of the penal code apply also to charges based upon sections of the General Statutes not included in the code. General Statutes \\u00a753a~25 (c), 53a-26 (c), 53a-27 (b). The broad exclusion of all breaches of law involving motor vehicles is also contrary to the intention of the draftsmen of the penal code, who apparently intended that only motor vehicle infractions should be excepted from the definition of \\\"offense.\\\"\\nAlthough the phrase \\\"motor vehicle violation\\\" is undefined, a \\\"violation\\\" is defined as \\\"[a]n offense, for which the only sentence authorized is a fine . . . unless expressly designated an infraction.\\\" General Statutes \\u00a7 53a-27 (a). Operating under the influence would not qualify as a violation under this definition because it is punishable by imprisonment as well as by a fine. It would be an unclassified misdemeanor because the punishment provided falls within the parameters of General Statutes \\u00a7 53a-26 (a). If it comes within that classification it is a \\\"crime\\\" because that term, as used in the penal code, \\\"comprises felonies and misdemeanors.\\\" General Statutes \\u00a7 53a-24 (a).\\nWe have concluded that the term \\\"motor vehicle violations,\\\" not being otherwise defined, incorporates the definition of \\\"violation\\\" contained in \\u00a7 53a-27 (a) as an offense punishable only by a fine. The comment of the draftsmen of the penal code upon \\u00a7 53a-24 (a) states that \\\" '[violation,' which must be read in connection with section 53a-27, means an offense calling only for a fine for breach thereof.\\\" 27A Connecticut General Statutes, Annotated (West Ed.), commission comment (1971). Our view is consistent with this comment. The exception of \\\"motor vehicle violations\\\" from the definition of \\\"offense\\\" is limited to breaches of statutes involving motor vehicles when the only penalty which can be imposed is a fine. Operating under the influence as prohibited by \\u00a7 14-227a does not fall within the exception because it is not punishable as a \\\"violation\\\" defined by \\u00a7 53a-27, but as an \\\"unclassified misdemeanor\\\" under \\u00a7 53a-26 (c). Since it is a misdemeanor, it is also a \\\"crime\\\" as defined by \\u00a7 53a-24 (a).\\nBecause we have concluded that operating under the influence falls within the definition of \\\"crime\\\" contained in the penal code, we have no occasion to consider whether in the accelerated rehabilitation statute, \\u00a7 54-76p, the word may have a broader import. We leave this question to another time.\\nWe find error in the conclusion of the trial court that accelerated rehabilitation is jurisdictionally unavailable to persons charged with operating under the influence in violation of \\u00a7 14-227a. It is clear from \\u00a7 54-76p, however, that the invocation of a program of accelerated rehabilitation is discretionary with the court and that such discretion must be exercised not only in reviewing the qualifications of the offender but also in considering the nature of the particular offense and the circumstances of its commission. In order to enable the trial court to exercise such discretion the judgment is vacated and the case is remanded for further proceedings.\\nParskey and Bieluch, Js., concurred in this opinion.\\nInvocation of the accelerated rehabilitation program is in the discretion of the trial court. On successful completion of the program, and on application by the defendant, the trial court \\\"shall dismiss\\\" the charges against him. General Statutes \\u00a7 54-76p.\\n\\\"[General Statutes] Sec. 53a-24. offense defined, application OF SENTENCING PROVISIONS TO MOTOR VEHICLE AND DRUG SELLING violators. (a) The term 'offense' means any crime or violation which constitutes a breach of any law of this state or of any other state or of federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term 'crime' comprises felonies and misdemeanors. Every offense which is not a 'crime' is a 'violation.' Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.\\n\\\"(b) Notwithstanding the provisions of subsection (a), the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations. Said provisions shall apply to convictions under section 19-480a except that the execution of any mandatory minimum sentence imposed under the provisions of said section may not be suspended.\\\"\\nThe comment of the commission, to revise the penal code upon General Statutes \\u00a7 53a-24(b) is partly as follows: \\\"The definition of 'offense' in subsection (a) makes clear that it does not include motor vehicle infractions. The purpose of this provision is to except from the operation of the Code, except as provided in subsection (b), motor vehicle infractions.\\\" 27A Connecticut General Statutes, Annotated (West Ed.), commission comment (1971).\\nSince we are dealing with a question of legislative interpretation, we have not considered the effect of Practice Book, 1978, \\u00a7 1021 which defines the terms \\\"offense,\\\" \\\"crime,\\\" \\\"felony,\\\" \\\"misdemeanor,\\\" \\\"violation,\\\" and \\\"infraction.\\\" Our analysis of the statutes, however, is consistent with these definitions. Practice Book, 1978, $ 1021(5) defines \\\"offense\\\" to include trafile offenses; subsection (6) defines \\\"crime\\\" to be a felony or a misdemeanor; subsections (8) and (9) define \\\"felony\\\" and \\\"misdemeanor\\\" to be \\\"offenses\\\" for which a person may be sentenced to a term of imprisonment; and subsection (7) defines \\\"violation\\\" to bo an \\\"offense\\\" for which the only sentence authorized is a fine. Because a breach of General Statutes \\u00a7 14-227a may result in a penalty of imprisonment, it would fall within the definition of \\\"crime\\\" in Practice Book, 1978, \\u00a7 1021.\"}"

conn/1757854.json

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+"{\"id\": \"1757854\", \"name\": \"Pamela Korn v. Marion R. Rennison\", \"name_abbreviation\": \"Korn v. Rennison\", \"decision_date\": \"1959-11-12\", \"docket_number\": \"File No. 90257\", \"first_page\": \"400\", \"last_page\": \"404\", \"citations\": \"21 Conn. Supp. 400\", \"volume\": \"21\", \"reporter\": \"Connecticut Supplement\", \"court\": \"Connecticut Superior Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T01:01:37.768038+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pamela Korn v. Marion R. Rennison\", \"head_matter\": \"Pamela Korn v. Marion R. Rennison\\nSuperior Court New Haven County\\nFile No. 90257\\nMemorandum filed November 12, 1959\\nBenjamin M. Chapnick, of New Haven, for the plaintiff.\\nFrancis R. Danaher, of Meriden, for defendant Marion E. Eennison.\\nWiggin & Dana, of New Haven, for defendant Eegister Publishing Co.\\nEmanuelson & Wynne, of New Haven, for defendant E. W. Malley Co.\", \"word_count\": \"1136\", \"char_count\": \"6808\", \"text\": \"Alcorn, J.\\nThe plaintiff, a minor, brings this action by her mother to recover damages. The substance of the complaint is that, through an arrangement and agreement between the three defendants, a photograph of the plaintiff was published for advertising purposes in the defendant newspaper with out the knowledge, consent or permission of the plaintiff and in violation of her personal liberties and private rights, as a result of which the defendants received pecuniary and monetary benefits and advantages while the plaintiff received none and was subjected to ridicule, embarrassment, vexation and humiliation.\\nThe defendants demur upon three grounds: that the complaint fails to state a cause of action recognized in Connecticut; that the facts alleged do not constitute a cause of action; and that reference to the publication, which is made a part of the complaint, demonstrates that the plaintiff suffered no damage.\\nThe first ground of demurrer presents the question as to whether or not, in this state, a tort action will lie for an invasion of the right of privacy. The question has never been decided. The subject was referred to in Urban v. Hartford Gas Co., 139 Conn. 301, where the court said (p. 309), \\\"Even if we were to hold that the right of privacy exists in Connecticut, the facts alleged in the complaint are inadequate to establish a violation of that right.\\\" In O'Connell v. Hartford Times, Inc., 15 Conn. Sup. 85, 86, an action for violation of the right of privacy was discussed but there again the decision turned upon the fact that even if such a right of action existed the complaint was insufficient to allege it.\\nThe defendants argue that such a right of action was not recognized at common law and therefore, in the absence of statute, it cannot exist in Connecticut today. When Samuel D. Warren and Louis D. Brand\\u00e9is first gave form and substance to the right to privacy in 1890, it was one objective of their discussion in 4 Harvard Law Review 193 to demonstrate that the right found support in common-law principles. Underlying their reasoning is the prem ise that the common law is not static and its protecting arm does not become immobilized from lack of precedent.\\nIn the years intervening since the right was thus defined, a constantly increasing number of jurisdictions have recognized its independent existence. Press, photography, radio and television represent elements in constantly changing conditions which impinge upon individual privacy. With the environmental changes of modem living has grown the need that man's inner nature and feelings as well as his body and possessions receive the protection of the law. Hence, the right to privacy has become established in nearly half the states.\\nNice distinctions between the traditional fields of law and equity are not always made in the reported cases, and in a few states the problem has been met by statute. The line to be drawn between reasonable demands of individual privacy and the public interest in legitimate news is not always easy to define, but the boundary is more readily perceived in the case of commercial advertising. A leading case supporting the right as it relates to the use of a picture in advertising is Pavesich v. New England Life Ins. Co., 122 Ga. 190, 69 L.R.A. 101, 106. To set forth here a detailed discussion of the basis for and limitations upon the right would amount only to repetition of fully developed reasoning in decisions readily at hand. An able and full analysis with which this court finds no ground for disagreement, again relating to the -unauthorized publication of a photograph in advertising, is found in Eick v. Perk Dog Food Co., 347 Ill. App. 293. The decision in that case defines the nature and limitations of the right and catalogues authorities in detail. Decisions and legal articles are also abundantly cited in Pallas v. Crowley, Milner & Co., 322 Mich. 411, and in the footnote to Hazlitt v. Fawcett Publications, Inc., 116 F. Sup. 538, 542. No case decided within the last fifteen years has been found in which the existence of a right of privacy has been denied. Decisions which originally denied the right have, with apparently a single exception, since been overruled, modified or altered by statute. Rhode Island appears to stand alone as an unqualified precedent for denying a recovery in damages for an invasion of the right of privacy. Henry v. Cherry & Webb, 30 R.I. 13, 43.\\nThe right of privacy, as developed, finds expression in the Restatement, 4 Torts \\u00a7 867, as follows: \\\"A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.\\\" The statement of the rule emphasizes the importance of the facts of the individual case presented. The recognition of the right as a basis for a tort action in jurisdictions faced with the question unaided by statute, and the practical unanimity of recent opinion, place the right within the purview of the common law. The first ground of demurrer is overruled.\\nThe second ground of demurrer is that the facts alleged do not state a cause of action. From the facts alleged, including the advertisement in issue filed as an exhibit and made part of the complaint by reference, the pitfalls ahead for the plaintiff are readily apparent. Those obstacles, however, lie in the proof which must be offered. The issue now is whether or not the allegations made are adequate to permit the offer of the essential proof. Liability for a violation of the right of privacy exists if the defendant's conduct was such that he should have realized that it would be offensive to persons of ordinary sensibilities. Eestatement, 4 Torts \\u00a7 867, comment d. The complaint, in addition to alleging publication without the plaintiff's consent, states that by reason of it she was \\\"subjected to ridicule, embarrassment, vexation, and humiliation.\\\" This is a sufficient statement of a cause of action, and the second ground of demurrer is overruled.\\nThe third ground of demurrer in substance would have the court as a matter of law exercise the province of the jury. In addition to other allegations of damage the plaintiff alleges that her \\\"private life and property was invaded, trespassed and encroached upon.\\\" Any evaluation of damages for trespass to property rights, at least, must await proof.\\nThe demurrer is overruled on all grounds.\"}"

conn/1958828.json

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+"{\"id\": \"1958828\", \"name\": \"Deborah LaPila v. Louis LaPila\", \"name_abbreviation\": \"LaPila v. LaPila\", \"decision_date\": \"1986-04-15\", \"docket_number\": \"3916\", \"first_page\": \"26\", \"last_page\": \"27\", \"citations\": \"7 Conn. App. 26\", \"volume\": \"7\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T22:12:20.769380+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Deborah LaPila v. Louis LaPila\", \"head_matter\": \"Deborah LaPila v. Louis LaPila\\n(3916)\\nDupont, C. J., Daly and Bieluch, Js.\\nArgued March 18 \\u2014\\ndecision released April 15, 1986\\nJohn J. Bunce, Jr., for the appellant (defendant).\\nEric Onore, with whom, on the brief, was Albert J. McGrail, for the appellee (plaintiff).\", \"word_count\": \"50\", \"char_count\": \"298\", \"text\": \"Per Curiam.\\nThere is no error.\"}"

conn/1971934.json

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+"{\"id\": \"1971934\", \"name\": \"Shirley B. Everett v. James L. Pabilonia et al.\", \"name_abbreviation\": \"Everett v. Pabilonia\", \"decision_date\": \"1987-06-02\", \"docket_number\": \"3623\", \"first_page\": \"171\", \"last_page\": \"179\", \"citations\": \"11 Conn. App. 171\", \"volume\": \"11\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T22:27:13.823901+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Shirley B. Everett v. James L. Pabilonia et al.\", \"head_matter\": \"Shirley B. Everett v. James L. Pabilonia et al.\\n(3623)\\nSpallone, Bieluch and Berdon, Js.\\nArgued March 10\\ndecision released June 2, 1987\\nMary E. Holzworth, with whom, on the brief, was Allyn L. Brown, Jr., for the appellant (plaintiff).\\nJames J. Murphy, Jr., with whom, on the brief, was Dawn E. Currier, for the appellees (defendants).\", \"word_count\": \"2462\", \"char_count\": \"14583\", \"text\": \"Spallone, J.\\nThe plaintiff is appealing from the judgment of the trial court denying her a right-of-way by deed and granting her a more limited right-of-way by prescription.\\nThe following facts are not in dispute. In 1948, Francis and Josephine Czainski, the plaintiffs predecessors in title, purchased property in the town of Windham at a foreclosure sale. At the time of purchase, the lot contained a house and a garage that were three-quarters finished. The Czainskis completed work on those structures and added a second garage in 1962. On November 25, 1968, the Czainskis conveyed the property to the plaintiff by deed, which deed, in addition to a metes and bounds description, described the property as \\\"[b]eing Lot #101 as shown on a plan entitled 'Modern Life Homes Corporation, Hitchcock Park, Willimantic, Conn., Partial Layout of Plots, drawn by F.H. Hamilton August 1946 Scale 1\\\" = 3',' which plan is on file in the office of the Town Clerk of the Town of Windham.\\\" A road depicted as Cod Colony Road is clearly shown on the aforementioned plan as abutting the plaintiffs property. Neither Cod Colony Road nor any of the other residences shown on the aforementioned map, however, was ever completed. Both the plaintiff and the Czainskis, however, had used a dirt path to reach the two garages on the plaintiffs property, and this path was located in the general area where Cod Colony Road was to have been located. The defendants are the present owners of the land adjoining the plaintiff's property, including the dirt path by which the plaintiffs reached their garages.\\nIn 1981, the defendants began to interfere with the plaintiff's use of the dirt path. Thereafter, the plaintiff brought the present action in two counts, the first count claiming a right-of-way by deed and the second count claiming an easement by prescription. After a trial, the court found that the plaintiff had failed to offer evidence to establish a right-of-way by deed, but that the plaintiff had established a prescriptive easement. The court also found that the plaintiff had not established that she was entitled to exemplary damages. The court therefore rendered judgment granting the plaintiff a right-of-way \\\"extending from the southerly boundary of the plaintiff's property to the southerly tire path of the dirt road as it presently exists.\\\" The plaintiff appealed from this judgment on October 12, 1984.\\nOn October 29, 1984, the plaintiff filed a motion to open and modify the judgment and a motion seeking further articulation of the court's judgment. These motions were argued on November 11, 1985. On December 24, 1985, the court rendered its decision articulating its decision and denying the motion to open and modify. The plaintiff thereafter amended her appeal to include the denial of her motion to open and modify the judgment.\\nThe plaintiff claims the trial court erred (1) in denying the plaintiff's motion to open and modify the judgment, when, as a matter of law, she had a right-of-way by deed because the deed made reference to a recorded plan depicting Cod Colony Road, (2) in limiting the plaintiff's right-of-way acquired by prescription, (3) in refusing to award exemplary damages, and (4) in refusing to grant injunctive relief restraining the defendants from interfering with her right-of-way. We find no error.\\nIn her first claim of error, the plaintiff asserts that the court erred in denying her motion to open and modify because, as a matter of law, her deed established that she had a right-of-way over Cod Colony Road. The plaintiff relies on Whitton v. Clark, 112 Conn. 28, 151 A. 305 (1930), and later related cases. See Lake Garda Co. v. D'Arche, 135 Conn. 449, 66 A.2d 120 (1949) (right-of-way can be created even where roadways are not developed); Merino v. Fish, Inc., 112 Conn. 557, 153 A. 301 (1931); Tuccio v. Lincoln Development Corporation, 27 Conn. Sup. 373, 239 A.2d 69 (1967); Hackert v. Edwards, 22 Conn. Sup 499, 175 A.2d 381 (1961). In Whitton v. Clark, supra, 32, our Supreme Court stated: \\\"[T]he law is well settled that where an owner of land causes a map to be made of it upon which are delineated separate lots and streets and highways by which access may be had to them, and then sells the lots, referring in his conveyances to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands.\\\" (Citations omitted.) The plaintiff claims that because her deed clearly makes reference to a recorded map that shows Cod Colony Road as abutting her property, and because she would benefit from the use of at least part of Cod Colony Road, the court erred by failing to hold that she had established a right-of-way over the proposed Cod Colony Road.\\nInitially, we note that the plaintiff raised this argument for the first time in a memorandum of law submitted on November 5, 1985, in connection with her motion to open and modify and her motion for articu lation. This claim was never made at trial; nor was it made in either the motion to open and modify or the motion for further articulation, both of which were filed on October 29,1984, over a year before the issue was raised in the memorandum. If it is assumed arguendo that the court had jurisdiction to consider this claim, our review of the trial court's decision is limited to determining whether the trial court abused its discretion. Acheson v. White, 195 Conn. 211, 215, 487 A.2d 197 (1985). In making this determination, we must make every reasonable presumption in favor of its action. Id.\\nWe find that the trial court did not abuse its discretion in refusing to open the judgment in order to hold that the plaintiff had established an easement over the proposed Cod Colony Road. The authority relied on by the plaintiff, Whitton v. Clark, supra, and its progeny, were recently clarified by our Supreme Court in Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 464 A.2d 26 (1983). In Stankiewicz, the court held that while a grantor may convey an implied easement for the use of streets by making reference in a deed to a map that delineates such streets, an easement over these streets will be created only if the conveyor in fact owns the streets. Id., 170. The court reasoned that since a grantor cannot convey a greater title than he possesses, a grantor cannot create an easement, express or implied, over land in which he has no interest. If this reasoning is applied to the present case, the plaintiff would be able to establish an implied easement over Cod Colony Road only if she demonstrated that at the time the deed in her chain of title first referred to the map delineating Cod Colony Road, the grantor conveying this deed in fact owned the street. The plaintiff, however, has failed to demonstrate that she established, or even raised, this point at trial. Thus, even if we assume that the trial court had jurisdiction to consider this claim, we would be unable to find that the court abused its discretion in failing to open the judgment in order to hold that the plaintiff had established an implied easement over Cod Colony Road.\\nIn her second claim of error, the plaintiff claims that the trial court erred by defining too narrowly the scope of her prescriptive easement. The trial court found that the plaintiff had established a prescriptive easement over the dirt path located adjacent to the southern border of her property. The plaintiff claims that, in addition to an easement over the dirt path, the court should have found that she had established an easement over a grass portion along the path because this portion was necessary for her to be able to back her vehicles out of her driveway.\\nThe determination of the scope of a prescriptive easement is a question of fact. See Reynolds v. Soffer, 190 Conn. 184, 190, 459 A.2d 1027 (1980). Our review of the factual findings of the trial court is limited to the determination of whether, in view of the evidence and pleadings in the whole record, these findings are clearly erroneous. Practice Book \\u00a7 4061. A factual finding of the trial court is clearly erroneous if it is unsupported by the evidence or if, in view of the evidence and pleadings in the whole record, this court is left \\\" 'with the definite and firm conviction that a mistake has been committed.' \\\" Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987). In the present case, while the testimony was uncontradicted that the plaintiff and her predecessor had customarily backed out of the driveway and traveled over the dirt path to reach the main street, the testimony was unclear as to whether the plaintiff and her predecessor used the grassy area next to the path when backing her vehicle from her driveway. While there was testimony that the grassy area was used for other purposes, the testimony did not clearly establish that it was used as part of the right-of-way. Without such evidence, we cannot find that the trial court's findings as to the scope of the easement were clearly erroneous.\\nIn her third claim of error, the plaintiff contends that the trial court erred in refusing to award her exemplary damages. The court concluded that although the defendants had inconvenienced the plaintiff by blocking access to the proposed Cod Colony Road, the defendants had not caused the plaintiff any real dam age. In addition, the court found that the defendants could not be charged with reckless indifference or malicious intent toward the plaintiff since the defendants had made a good faith effort to satisfy the plaintiffs claim. The plaintiff claims that the court ignored certain evidence she introduced concerning her damages and that there was sufficient evidence to find that the defendant acted with reckless disregard of her rights.\\n\\\" '[PJunitive damages' and 'exemplary damages' are merely alternate labels for the same remedy, a remedy awarded only when the evidence shows reckless, intentional or wanton violation of the rights of others.\\\" Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 289 n.7, 472 A.2d 306 (1984); see also Alaimo v. Royer, 188 Conn. 36, 42-43, 448 A.2d 207 (1982). The trial court's findings regarding the alleged reckless indifference or malicious intent of the plaintiff are factual findings subject to review under the clearly erroneous standard. Practice Book \\u00a7 4061; see Leabo v. Leninski, 2 Conn. App. 715, 724, 484 A.2d 239 (1984). After reviewing the record and briefs, we cannot say that the court's conclusion on this issue was clearly erroneous.\\nFinally, the plaintiff claims that the trial court erred in failing to grant her injunctive relief restraining the defendants from interfering with her use of the right-of-way. An injunction is a harsh remedy and our courts have consistently held that its issuance is only proper in order to prevent irreparable injury. Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981); Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222 (1971); Bendell v. Johnson, 153 Conn. 48, 51, 212 A.2d 199 (1965). The granting of an injunction is not mandatory but is within the sound discretion of the trial court. Berin v. Olson, supra; Jones v. Foote, 165 Conn. 516, 521, 338 A.2d 467 (1973); Koepper v. Emanuele, 164 Conn. 175, 178, 319 A.2d 411 (1972); Lichteig v. Churinetz, 9 Conn. App. 406, 412, 519 A.2d 99 (1986). We note that the plaintiff did not establish a legally enforceable right-of-way over the gravel path until judgment was rendered in her favor in these proceedings. There is no reason to believe that the defendants will violate the judgment of the court. On the contrary, the court found that the defendants, after being advised by their attorney, agreed that the plaintiff had a right to use the right-of-way by prescription. We therefore find no abuse of discretion in the trial court's failure to grant injunctive relief.\\nThere is no error.\\nIn this opinion the other judges concurred.\\nAlthough the plaintiff in the first count of her complaint claimed a right-of-way by deed over the defendant's land, the plaintiff did not claim that the right-of-way was established under the Whitton doctrine because of the map reference in her deed. Instead, the plaintiff claimed a right-of-way by deed in apparent reliance on language that appears to have been contained in the defendant's deed. In her complaint, the plaintiff claimed that the portion of the defendant's land subject to such right-of-way was as follows: \\\"A right-of-way from Cod Colony Road to the land of Pakorvich to be kept open adjacent to the southerly boundary of lot #101 Hitchcock Park (so-called). The above land and right-of-way shown on a plan entitled Modern-Life Homes Corporation, Hitchcock Park, Willimantic, Conn. Proposed lay out of Plats, Drawn by F.H. Hamilton August 1946 filed with City Clerk, Willimantic, Conn. Oct. 22,1946.\\\" In addition, in both her motion to open and modify and her motion for articulation, the plaintiff requested the court to describe the plaintiffs right-of-way in accordance with this language, and made no reference to her present claim. As the trial court later found and the plaintiff admitted in oral argument, however, this description referred to a wholly different location than the Cod Colony Road area that the plaintiff now claims was established by virtue of the map reference in her deed.\\nUnder General Statutes \\u00a7 52-212a and Practice Book \\u00a7 326, a motion to open judgment must be filed within four months from the date it was rendered. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 465, 440 A.2d 159 (1981). Absent certain exceptions not relevant here, a trial court has no jurisdiction to hear a motion filed beyond this four month period. Id., 465-66. Although the plaintiff filed her motion to open and modify within four months of judgment, the motion specifically requested that the judgment be modified only in three respects, none of which were related to the present claim of implied easement under the Whitton doctrine. The present claim was not raised until over a year after the trial court rendered judgment.\"}"

conn/237073.json

@@ -0,0 +1 @@
+"{\"id\": \"237073\", \"name\": \"FJK ASSOCIATES v. MAIDA KARKOSKI\", \"name_abbreviation\": \"FJK Associates v. Karkoski\", \"decision_date\": \"1999-03-02\", \"docket_number\": \"AC 17794\", \"first_page\": \"66\", \"last_page\": \"69\", \"citations\": \"52 Conn. App. 66\", \"volume\": \"52\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T22:56:58.605962+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FJK ASSOCIATES v. MAIDA KARKOSKI\", \"head_matter\": \"FJK ASSOCIATES v. MAIDA KARKOSKI\\n(AC 17794)\\nO\\u2019Connell, C. J., and Sullivan and Daly, Js.\\nArgued November 5, 1998\\nofficially released March 2, 1999\\nRaymond J. Lemley, for the appellant (defendant).\\nDavid E. Crow, Jr., for the appellee (plaintiff).\", \"word_count\": \"1011\", \"char_count\": \"5980\", \"text\": \"Opinion\\nSULLIVAN, J.\\nThe defendant tenant appeals from a judgment for the plaintiff landlord in a summary process action seeking possession of the subject premises for nonpayment of rent and lapse of time. The dispositive issue on appeal is whether the trial court improperly found that the plaintiff sustained its burden of proof on its lapse of time claim. We affirm the judgment of the trial court.\\nThe parties entered into a written lease agreement for one year on or about December 12,1994. The written lease terminated on December 31, 1995, by its terms. After January 1, 1996, the defendant paid rent monthly to the plaintiff until May and June, 1997. On June 19, 1997, the plaintiff served the defendant a notice to quit possession on or before June 30, 1997. Because the defendant remained in possession after June 30, 1997, the plaintiff brought a summary process action against her, alleging that the tenancy had terminated by lapse of time and because of nonpayment of rent for the months of May and June, 1997. The defendant denied the allegations and filed two special defenses. The first special defense was that the subject premises contained numerous housing code violations. That defense was abandoned by the defendant at oral argument before this court. The second special defense alleged that the subject premises lacked a certificate of occupancy.\\nThe trial court found that the plaintiff sustained its burden of proof on both lapse of time and nonpayment of rent. The trial court also found that the defendant did not sustain her burden of proof on either of her special defenses. This appeal followed.\\nThe defendant first claims that the trial court incorrectly held that lapse of time was a proper basis for termination of this tenancy. We find no merit to this claim. The trial court correctly held that lapse of time was an adequate ground for termination under the facts of this case.\\nAfter the written lease expired by its terms, the plaintiff continued to accept the defendant's monthly rent payment, creating a month-to-month tenancy. See General Statutes \\u00a7 47a-3b; Williams v. Apothecaries Hall Co., 80 Conn. 503, 507, 69 A. 12 (1908). A periodic tenancy may be terminated unilaterally by either landlord or tenant. Hour Publishing Co. v. Gorez, 5 Conn. Cir. Ct. 419, 421, 254 A.2d 919 (1968). \\\"In the case of a rental on a month-to-month basis the tenancy is not regarded as a continuous one. The tenancy for each month is one separate from that of every other month.\\\" Welk v. Bidwell, 136 Conn. 603, 606-607, 73 A.2d 295 (1950). The renewal of a month-to-month tenancy requires the payment of rent by the tenant and the acceptance of payment by the landlord or \\\"other circumstances showing an agreement to continue the lease.\\\" Webb v. Ambler, 125 Conn. 543, 551, 7 A.2d 228 (1939). The mere act of holding over does not create a new tenancy. General Statutes \\u00a7 47a-3d; Webb v. Ambler, supra, 551. Instead, the holdover tenant becomes a tenant at sufferance with no legal right to possession. Corthouts v. Connecticut Fire Safety Services Corp., 2 Conn. Cir. Ct. 34, 36-37, 193 A.2d 909 (1963). A landlord may properly remove such a tenant at sufferance through a summary process action for lapse of time. General Statutes \\u00a7 47a-23 (a); Webb v. Ambler, supra, 551.\\nThe defendant here did not pay rent after May, 1997, and the plaintiff did not accept rent after that date. Absent any other circumstances indicating an agreement to continue the lease after May, 1997, the lease terminated at that time. The defendant remained on the premises and continues to remain as of the hearing on this appeal. As we have noted, however, holding over by a lessee is not evidence of a new lease. The plaintiff provided the defendant with a notice to quit that gave the defendant more than ten days to quit possession of the premises. Therefore, we conclude that the trial court properly concluded that the plaintiff was entitled to possession because of lapse of time. Because this issue is dispositive, we need not consider the other issues raised on appeal.\\nThe judgment is affirmed.\\nIn this opinion the other judges concurred.\\nGeneral Statutes \\u00a7 47a-23 (a) provides in pertinent part: \\\"When the owner or lessor, or his legal representative, or his attorney-at-law, or in-fact, desires to obtain possession or occupancy of any land or building, any apartment in any building, any dwelling unit, any trailer, or any land upon which a trailer is used or stands, and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time . . . (D) nonpayment of rent within the grace period provided for residential property in section 47a-15a. or 21-83 . . . such owner or lessor, or his legal representative, or his attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least five days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.\\nGeneral Statutes \\u00a7 47a-3b provides: \\\"Unless the rental agreement fixes a definite term, the tenancy is month to month, except in the case of a tenant who pays weekly rent, then the tenancy is week to week.\\\"\\nGeneral Statutes \\u00a7 47a-3d provides: \\\"Holding over by any lessee, after the expiration of the term of his lease, shall not be evidence of any agreement for a further lease. Parol leases of lands or tenements reserving a monthly rent and in which the time of their termination is not agreed upon shall be construed to be leases for one month only.\\\"\\nSee footnote 1.\"}"

conn/247030.json

@@ -0,0 +1 @@
+"{\"id\": \"247030\", \"name\": \"STATE OF CONNECTICUT v. BUCKLEY OTTO\", \"name_abbreviation\": \"State v. Otto\", \"decision_date\": \"1998-10-22\", \"docket_number\": \"\", \"first_page\": \"927\", \"last_page\": \"928\", \"citations\": \"247 Conn. 927\", \"volume\": \"247\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T19:50:55.890653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF CONNECTICUT v. BUCKLEY OTTO\", \"head_matter\": \"STATE OF CONNECTICUT v. BUCKLEY OTTO\", \"word_count\": \"59\", \"char_count\": \"391\", \"text\": \"The defendant's petition for certification for appeal from the Appellate Court, 50 Conn. App. 1 (AC 16180), is denied.\\nPALMER, J., did not participate in the consideration or decision of this petition.\\nNeal Cone, assistant public defender, in support of the petition.\\nMichaelE. O'Hare, assistant state's attorney, in opposition.\\nDecided October 22, 1998\"}"

conn/300359.json

@@ -0,0 +1 @@
+"{\"id\": \"300359\", \"name\": \"RALPH ABED v. COMMISSIONER OF CORRECTION\", \"name_abbreviation\": \"Abed v. Commissioner of Correction\", \"decision_date\": \"1996-10-29\", \"docket_number\": \"\", \"first_page\": \"937\", \"last_page\": \"938\", \"citations\": \"239 Conn. 937\", \"volume\": \"239\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T00:26:17.768946+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"RALPH ABED v. COMMISSIONER OF CORRECTION\", \"head_matter\": \"RALPH ABED v. COMMISSIONER OF CORRECTION\", \"word_count\": \"47\", \"char_count\": \"309\", \"text\": \"The petitioner Ralph Abed's petition for certification for appeal from the Appellate Court, 43 Conn. App. 176 (AC 14782), is denied.\\nDecided October 29, 1996\\nWilliam Emmett Dwyer, in support of the petition.\\nSteven R. Strom, assistant attorney general, in opposition.\"}"

conn/3145661.json

@@ -0,0 +1 @@
+"{\"id\": \"3145661\", \"name\": \"CHARLES COLEMAN v. COMMISSIONER OF CORRECTION\", \"name_abbreviation\": \"Coleman v. Commissioner of Correction\", \"decision_date\": \"2005-07-12\", \"docket_number\": \"SC 17390\", \"first_page\": \"422\", \"last_page\": \"426\", \"citations\": \"274 Conn. 422\", \"volume\": \"274\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T23:27:39.908135+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHARLES COLEMAN v. COMMISSIONER OF CORRECTION\", \"head_matter\": \"CHARLES COLEMAN v. COMMISSIONER OF CORRECTION\\n(SC 17390)\\nSullivan, C. J., and Borden, Norcott, Palmer and VertefeuiUe, Js.\\nArgued May 18\\nofficially released July 12, 2005\\nLisa J. Steele, special public defender, for the appellant (petitioner).\\nJames A. Killen, senior assistant state\\u2019s attorney, with whom, on the brief, were Michael Dearington, state\\u2019s attorney, and Linda N. Howe, senior assistant state\\u2019s attorney, for the appellee (respondent).\", \"word_count\": \"1078\", \"char_count\": \"6663\", \"text\": \"Opinion\\nPER CURIAM.\\nThe petitioner, Charles Coleman, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claims on appeal that the habeas court: (1) abused its discretion in denying his petition for certification to appeal; and (2) abused its discretion in granting the motion of the petitioner's counsel to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We dismiss the petitioner's appeal.\\nThe following facts and procedural history are relevant to this appeal. The petitioner \\\"was convicted after a jury trial of burglary in the first degree in violation of General Statutes \\u00a7 53a-101 (a) (2), burglary in the second degree in violation of General Statutes \\u00a7 53a-102 (a), sexual assault in the first degree in violation of General Statutes (Rev. to 1985) \\u00a7 53a-70 (a), and unlawful restraint in the first degree in violation of General Statutes (Rev. to 1985) \\u00a7 53a-95 (a).\\\" State v. Coleman, 241 Conn. 784, 785, 699 A.2d 91 (1997). The convictions arose out of an incident that occurred on July 7, 1986, in which an assailant broke into a New Haven residence and sexually assaulted a woman. Id., 787. Upon investigation, the police \\\"found seven latent fingerprints on the windowsills of the window of entry and the victim's bedroom window. Fingerprint number seven, showing the right middle and right ring fingers of the defendant with the fingers pointing inward, was taken from the exterior of the bedroom windowsill, which was not the window of entiy. A positive identification of the defendant was made from fingerprint number seven.\\\" State v. Coleman, 42 Conn. App. 78, 81, 679 A.2d 950 (1996), rev'd, 241 Conn. 784, 699 A.2d 91 (1997).\\nThe petitioner appealed from the judgment of conviction to the Appellate Court, which reversed the judgment of conviction and ordered a new trial on the ground that the trial court improperly had admitted certain evidence at trial. State v. Coleman, supra, 241 Conn. 786-87. We granted the state's petition for certification to appeal, reversed the judgment of the Appellate Court and remanded the case to that court for consideration of the petitioner's remaining claims on appeal. Id., 792. On remand, the Appellate Court vacated the petitioner's conviction of burglary in the second degree after the state conceded that the conviction was improper and affirmed his other convictions. State v. Coleman, 48 Conn. App. 260, 274, 709 A.2d 590 (1998). This court then granted the petitioner's petition for certification to appeal and affirmed the judgment of the Appellate Court. See State v. Coleman, 251 Conn. 249, 251, 741 A.2d 1 (1999), cert. denied, 529 U.S. 1061, 120 S. Ct. 1570, 146 L. Ed. 2d 473 (2000).\\nOn December 15, 1997, while these direct appeals were pending, the petitioner filed a pro se petition for a writ of habeas corpus in the Superior Court for the judicial district of Tolland. In support of the petition, the petitioner argued, inter alia, ineffective assistance of counsel. Specifically, he argued that his trial counsel, Thomas E. Farver and Mark Rademacher, inadequately had investigated the fingerprint evidence presented at trial. The habeas court appointed Kathleen O'Reilly Berry as the petitioner's special public defender in the habeas proceeding. Thereafter, Berry filed a motion to withdraw from the case pursuant to Anders v. California, supra, 386 U.S. 744, on the ground that there were no nonfrivolous grounds for the petition. In support of her motion, Berry represented to the court that she believed that Farver and Rademacher had investigated the fingerprint evidence adequately and had represented the petitioner effectively at trial. The habeas court, Levine, J., granted the motion to withdraw but did not dismiss the habeas petition. Thereafter, the petitioner filed two written motions for appointed counsel and made one oral motion for appointed counsel, all of which were denied. After a two day evidentiary hearing, the habeas court, White, J., dismissed the petition for writ of habeas corpus. The court determined that the petitioner's trial counsel had investigated adequately the fingerprint evidence introduced at trial and had provided competent and effective representation. The court subsequently denied the petitioner's petition for certification to appeal. This appeal followed.\\nThe petitioner claims on appeal that the habeas court, White, J., abused its discretion in denying his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus because he was denied his constitutional right to counsel at the habeas proceeding when Berry was allowed to withdraw. He further claims that the habeas court, Levine, J., abused its discretion in granting the motion to withdraw.\\nAfter a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues he has raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). Accordingly, the appeal should be dismissed as frivolous. Simms v. Warden, supra, 616.\\nThe appeal is dismissed.\\nThe petitioner appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes \\u00a7 51-199 (c) and Practice Book \\u00a7 65-1.\\nGeneral Statutes \\u00a7 52-470 (b) provides: \\\"No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person's release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.\\\"\"}"

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+"{\"id\": \"3593681\", \"name\": \"CHIJIAN ZHANG ET AL. v. OMNIPOINT COMMUNICATIONS ENTERPRISES, INC., ET AL.\", \"name_abbreviation\": \"Chijian Zhang v. Omnipoint Communications Enterprises, Inc.\", \"decision_date\": \"2005-02-01\", \"docket_number\": \"SC 16959\", \"first_page\": \"627\", \"last_page\": \"646\", \"citations\": \"272 Conn. 627\", \"volume\": \"272\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T23:42:14.580595+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHIJIAN ZHANG ET AL. v. OMNIPOINT COMMUNICATIONS ENTERPRISES, INC., ET AL.\", \"head_matter\": \"CHIJIAN ZHANG ET AL. v. OMNIPOINT COMMUNICATIONS ENTERPRISES, INC., ET AL.\\n(SC 16959)\\nNorcott, Katz, Palmer, Zarella and Levine, Js.\\nArgued October 21, 2004\\n\\u2014officially released February 1, 2005\\nNathalie Feola-Guerrieri, with whom, on the brief, was Daniel Shepro, for the appellants (plaintiffs).\\nStephen J. Humes, with whom were Charles D. Ray and, on the brief, Dennis F. Kerrigan, Jr., and Michael Menapace, for the appellee (defendant Omnipoint Communications, Inc.).\\nRobert J. Bourne and Vincent P. Pace filed a brief for the Connecticut Light and Power Company as amicus curiae.\", \"word_count\": \"6120\", \"char_count\": \"38823\", \"text\": \"Opinion\\nKATZ, J.\\nThe plaintiffs, Chijian Zhang and Yuzhi Hu, brought this action alleging that the defendant, Omnipoint Communications, Inc., also known as Voice-stream Wireless, had trespassed on their property by placing wireless telecommunications equipment on and near a tower installed by the Connecticut Light and Power Company (power company), which has easement rights over the plaintiffs' property. The trial court rendered summary judgment in favor of the defendant on the grounds that the power company's easement rights for \\\"telephone purposes\\\" encompass use for wireless telecommunications and that the power company could partially assign its easement rights to the defendant. The plaintiffs now appeal from the trial court's judgment, claiming that the court improperly: (1) construed the easement to include wireless telecommunications; (2) concluded that the defendant had obtained a valid partial assignment of the power com pany's rights under the easement; and (3) declined to consider whether the defendant's use had overburdened the easement. We conclude that the easement encompasses the use of the property for wireless telecommunications, but that the trial court improperly rendered summary judgment in favor of the defendant because there were material issues of fact as to whether the defendant had obtained easement rights from the power company and whether the defendant's use had overburdened the easement. Accordingly, we reverse the trial court's judgment and remand the case for further proceedings.\\nThe record reveals the following facts and procedural history. The plaintiffs own real property located at 280 Morehouse Drive in Fairfield. In 1923, the plaintiffs' predecessor in title conveyed by deed to the power company, \\\"an easement . for poles, towers and wires for the transmission of electric current . . . .\\\" The deed conveyed, inter alia, the right to \\\"enter upon said land and erect, inspect, operate, replace, repair and patrol, and permanently maintain on said right of way, poles and towers, with necessary conductors, wires . . . and other usual fixtures and appurtenances used or adapted for the transmission of electric current for light, heat, power or any other purpose, and used or adapted for telephone purposes . . . .\\\" The deed was duly recorded. On March 1, 2000, the plaintiffs acquired title to the subject property by quitclaim deed.\\nPrior to the plaintiffs acquiring title, certain equipment had been installed in the area subject to the easement. The power company had installed a steel lattice tower structure, which rested on a cement pad, to support electric wires. A wood stockade fence surrounded the structure. Sprint, another wireless telecommunications company, had installed a monopole that supported telecommunications antennas, which ran through the middle of the power company's lattice tower, and an equipment cabinet on the cement pad.\\nThe defendant is licensed by the Federal Communications Commission to hold a \\\"Wideband PCS\\\" license for personal communication services covering an area that includes the entire state of Connecticut. The defendant provides wireless service in the form of voice-data telephone systems, offering its customers \\\"state-of-the-art communications service with privacy to users, and the convenience of a pager, answering machine, and modem in one phone.\\\" The defendant determined that it needed an antenna on the tower situated on the plaintiffs' property to allow it to achieve cellular coverage on the Merritt Parkway and thereby establish a link to other sites for more contiguous coverage. Pursuant to a request by the defendant, on June 28, 2000, the power company issued a letter regarding \\\"[s]ite [p] emitting [a]uthorization\\\" (authorization letter), granting the defendant permission to obtain any permits necessary to construct and maintain a wireless communications system and antenna site on the plaintiffs' property over which the power company had easement rights. On September 1,2000, the Connecticut siting council issued a letter to the defendant notifying it that the siting council had approved the defendant's petition to modify the power company's existing electric transmission facility. In December, 2000, the defendant entered onto the plaintiffs' property and installed its antenna under the existing antennas on the monopole.\\nBy way of a complaint dated February 2, 2001, the plaintiffs commenced this trespass action, seeking damages and injunctive relief. On March 7, 2001, the defendant filed a motion for summary judgment, claiming that the deed granting the easement authorizes it to undertake the actions challenged by the plaintiffs. Specifically, the defendant contended that the power company has easement rights for \\\"telephone purposes,\\\" which includes wireless telephone equipment, and the deed permits the power company to assign to the defendant the authority to install such equipment. The plaintiffs opposed the defendant's motion for summary judgment on the grounds that: (1) the deed does not grant easement rights for wireless telecommunications, but, rather, only for the transmission of electric current; (2) the defendant did not obtain a valid assignment of the power company's easement rights because the deed does not permit a partial assignment and there was no evidence of an assignment; and (3) in the alternative, that the defendant's use overburdened the easement. With respect to their overburdening claim, the plaintiffs attested that the defendant recently had expanded a gravel driveway to reach a stone wall on the plaintiffs' property and had installed, inter alia, a wood utility pole with a transformer and electrical cabinets both inside and outside the wood fence surrounding the lattice tower structure. On May 17, 2001, the plaintiffs filed a cross motion for summary judgment.\\nAfter hearing argument on the motions, the trial court rendered summary judgment in favor of the defendant. In its memorandum of decision, the trial court rejected the plaintiffs' construction of the deed limiting the power company's easement rights solely for the transmission of electric current. The trial court concluded that the deed had granted easement rights for both \\\"the transmission of electric current\\\" and \\\"telephone purposes.\\\" The court further concluded that, under this court's decision in Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 717 A.2d 1232 (1998), courts should construe easements to allow beneficiaries to incorporate technological advances into their use. It therefore construed \\\"telephone purposes\\\" to encompass wireless telecommunications. With respect to the validity of the defendant's assignment of rights from the power company, the trial court noted that the claim raised an issue of first impression and turned to case law from other jurisdictions, under which the dispositive issue is whether the deed grants an exclusive or nonexclusive easement. The trial court found that the power company had obtained an exclusive easement and, accordingly, it was entitled to make a partial assignment of its rights to the defendant. Finally, the trial court refused to address the plaintiffs' overburdening claim on the ground that they had not pleaded overburdening, which the court concluded was a separate cause of action from the plaintiffs' trespass action. Accordingly, the trial court granted the defendant's motion for summary judgment and denied the plaintiffs' cross motion for summary judgment. This appeal followed.\\nBefore turning to the merits of the plaintiffs' claims, we note the well established standards that guide our inquiry. \\\"Practice Book [\\u00a7 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.\\\" (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 83, 856 A.2d 372 (2004). \\\"Our review of the trial court's decision to grant [a] motion for summary judgment is plenary.\\\" (Internal quotation marks omit ted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004).\\nIn addition, to determine whether the trial court properly concluded that the defendant had the right, pursuant to the power company's easement, to use the plaintiffs' property for wireless telecommunications, our paramount consideration is the intent of the parties to the deed creating the interest. Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 831. We look to the intent as expressed in the deed, considering all of its relevant provisions and reading it in the light of the surrounding circumstances. Lago v. Guerrette, 219 Conn. 262, 267-68, 592 A.2d 939 (1991). We give the language of the easement its ordinary import when nothing in the situation or surrounding circumstances indicates a contrary intent. Id., 268; American Brass Co. v. Serra, 104 Conn. 139, 142, 132 A. 565 (1926). Although in most contexts the issue of intent is a factual question over which our scope of review is limited, the construction of a deed, considered in the light of all the surrounding circumstances, presents a question of law over which we exercise plenary review. Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992); Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982). With these principles in mind, we turn to the plaintiffs' claims.\\nI\\nThe plaintiffs first claim that the trial court improperly construed the deed to grant easement rights for wireless telecommunications. The plaintiffs contend that the deed grants easement rights only for the transmission of electric current, which can be used for several \\\"purposes\\\"\\u2014heating, light, power and telephone. Because wireless telecommunications provide telephone service through the transmission of radio waves, not electric current, the plaintiffs assert that such use is not permitted under the easement. Therefore, they contend that the trial court improperly applied this court's decision in Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 815, to construe \\\"telephone purposes\\\" to include wireless telecommunications because the deed evinces a clear intent to the contrary. The plaintiffs further contend that the defendant cannot prevail under Heublein because they presented sufficient evidence that the defendant's use of the easement for wireless telecommunications had caused unreasonable damage to their property.\\nThe defendant disagrees that the deed evinces a clear intent to preclude wireless telecommunications. It contends, therefore, that the trial court properly concluded that wireless telephone is merely an advance in telephone technology, and thus the easement for \\\"telephone purposes\\\" should be construed to include wireless telecommunications. We agree generally with the defendant, but conclude that the trial court improperly applied Heublein in part because it had failed to consider whether the defendant's use of the easement for wireless telephone purposes would cause unreasonable damage to the plaintiffs' property.\\nOur analysis is guided by our decision in Heublein. In Heublein, the substantive issue on appeal was whether an easement of access could extend to adjacent property acquired by the easement holder after the easement had been conveyed. Id., 817. Although we reversed the trial court's judgment on procedural grounds, we provided guidance to the trial court for the remand on the substantive issue. Id., 827. Significantly, we adopted the position set forth in certain provisions of the Restatement (Third) of Property that recently had been approved. Id., 829-32; see 1 Restatement (Third), Property, Servitudes \\u00a7 4.1 and 4.10 (2000). We noted that \\\"\\u00a7 4.1 of the Restatement (Third) [supra] makes the intentions or the reasonable expectations of the parties the overarching consideration in the construction of a servitude. Only if the rules of \\u00a7 4.1 are not fully applicable do supplemental principles, set forth in [\\u00a7 4.10 of the Restatement (Third), supra], provide additional guidance. Subject to the proviso that the servitude beneficiary is not entitled to cause unreasonable damages to the servient estate, or interfere unreasonably with its enjoyment, \\u00a7 4.10 permits the beneficiary of an easement to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose. The manner, frequency, and intensity of the beneficiary's use of the servient estate may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude.\\\" (Internal quotation marks omitted.) Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 831.\\nAlthough the factual context in Heublein differed substantively from that in the present case, because it did not involve technological developments affecting the manner and use of the easement, one of the Restatement (Third) provisions we adopted therein does address the situation here. Notably, one illustration given in the Restatement (Third) is directly on point. \\\"Telephone Company holds easements acquired in the 1940s to maintain poles and lines for telephone purposes. In the absence of other facts or circumstances, it would be proper to conclude that Telephone Company may mount transmitters on its poles for cellular telephone transmissions unless the transmitters or transmissions would unreasonably interfere with enjoyment of the servient estate.\\\" 1 Restatement (Third), supra, \\u00a7 4.10, illustration 13, p. 598. This illustration demonstrates that an easement holder can take advantage of developments in technology unless the parties creating the interest evinced a contrary intent or the proposed use would interfere unduly with the rights of the owner of the servient estate.\\nApplying the principles set forth in Heublein and the Restatement (Third) to the present case, the threshold issue is whether, at the time the easement was created, the parties intended for the easement to be used solely for the transmission of electric current, as the plaintiffs claim, or whether they also intended for the easement to be used for telephone purposes irrespective of whether those services were provided by the transmission of electric current. The sole evidence proffered by the plaintiffs on this issue was the deed itself. Accordingly, we turn to that instrument.\\nThe deed provides for the right to operate and maintain various equipment \\\"used or adapted for the transmission of electric current for light, heat, power or any other purpose, and used or adapted for telephone purposes . . . .\\\" (Emphasis added.) The fact that the phrase \\\"used or adapted for\\\" is used twice, preceding both \\\"the transmission of electric current\\\" and \\\"telephone purposes,\\\" strongly suggests that the parties intended for the easement to extend to both uses. Compare Edgcomb v. Lower Valley Power & Light, Inc., 922 P.2d 850, 853-858 (Wyo. 1996) (easement granting right to operate and maintain \\\"electric transmission and/or distribution line or system\\\" and to permit use of line by third parties \\\"for electrification or telephone purposes\\\" construed to permit defendant utility company to replace static telephone line with fiber optic cable). Had the parties necessarily intended for the easement to be used for telephone purposes only if provided by the transmission of electric current, there would have been no need for the catch-all phrase \\\"or any other purpose . . . .\\\" See United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 674, 791 A.2d 546 (2002) (\\\"[t]he law of contract inteipretation militates against interpreting a contract in a way that renders a provision superfluous\\\"). Although we recognize that the introductory paragraph of the deed references only an easement for the transmission of electric current, that fact does not overcome strong evidence of a contrary intent in the more specific provision setting forth the permissible uses of the easement. Cf. Galvin v. Freedom of Information Commission, 201 Conn. 448, 456, 518 A.2d 64 (1986) (\\\"[wjhere statutes contain specific and general references covering the same subject matter, the specific references prevail over the general\\\"). Therefore, we conclude, on the basis of the language of the deed, that the trial court properly construed the deed to grant an easement both for \\\"telephone purposes\\\" and for the transmission of electric current.\\nTurning to the application of Heublein to an easement for telephone purposes, we note that the plaintiffs do not contend that Heublein cannot be applied to permit the use of the easement in the present case for wireless telephone because it is not an advancement in 1923 telephone technology. Rather, they claim that Heublein does not permit such use because the intent of the original parties to the deed was to limit telephone purposes to that provided by electric current. This claim, however, is founded on the same premise that we already have rejected. Accordingly, the trial court's determination that the parties to the deed did not intend to limit use of the easement for telephone purposes necessarily triggered the presumption under Heublein that wireless telecommunications was a permissible use of the easement as a development in telephone technology.\\nHeublein recognized, however, a limitation on the easement holder's right to take advantage of developments in technology. The easement holder may not, in the course of using new technologies, \\\"cause unreasonable damages to the servient estate, or interfere unreasonably with its enjoyment . . . .\\\" Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 831; 1 Restatement (Third), supra, \\u00a7 4.10. In other words, the new technology cannot overburden the servient estate. The defendant proffered no evidence on this issue, but the plaintiffs attested to several facts in opposition to the defendant's motion for summary judgment evidencing that the defendant's use may have caused unreasonable harm and unreasonably interfered with their enjoyment of the property. Because the trial court failed to examine this issue, it improperly granted summary judgment in favor of the defendant.\\nII\\nThe plaintiffs' second claim is that the trial court improperly concluded that the defendant had obtained a valid easement. Although our conclusion in part I of this opinion requires that we reverse the judgment of the trial court, we reach this claim because it raises both legal and factual issues likely to arise on remand and some guidance to the trial court may be helpful. See State v. Ceballos, 266 Conn. 364, 367, 832 A.2d 14 (2003).\\nThe plaintiffs concede that the power company was entitled, under the deed, to assign its easement rights in their entirety, but contend that it could not partially assign the easement rights to a third party. They further contend that there was no evidence before the trial court to prove that the power company had conveyed to the defendant any legal rights with respect to the easement. We disagree that the power company could not assign in part its easement rights, but we agree that there was no evidence before the trial court that the power company in fact had conferred such rights on the defendant.\\nA\\nThe issue of whether the power company could partially assign its easement rights raises, as the trial court recognized, an issue of first impression in this court.\\n\\\"Courts have generally concluded [however] that an easement in gross is capable of division when the instrument of creation so indicates or when the existence of an 'exclusive' easement gives rise to an inference that the servitude is apportionable.\\\" J. Bruce & J. Ely, Jr., The Law of Easements and Licenses in Land (2001) \\u00a7 9:9, pp. 9-15 through 9-16; accord 4 R. Powell, Real Property (2000) \\u00a7 34.16. In this context, \\\"exclusive\\\" means that the \\\"easement holder has the sole right to engage in the type of use authorized by the servitude.\\\" J. Bruce & J. Ely, Jr., supra, p. 9-16. In other words, the grantor does not retain common rights with the easement holder to engage in the same activity for which the easement is granted. See Hoffman v. Capitol Cablevision Systems, Inc., 52 App. Div. 2d 313, 315, 383 N.Y.S.2d 674 (1976) (finding easement exclusive because grantor never had attempted to engage in distribution of electricity). This common versus exclusive rights distinction is predicated on the notion that \\\"one who grants to another the right to use the grantor's land in a particular manner for a specified purpose but who retains no interest in exercising a similar right himself, sustains no loss if, within the specifications expressed in the grant, the use is shared by the grantee with others. On the other hand, if the grantor intends to participate in the use or privilege granted, then his retained right may be diminished if the grantee shares his right with others.\\\" Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825, 827-28 (Mo. App. 1985); accord 2 Restatement (Third), supra, \\u00a7 5.9, comment (b). We agree that the grant of an exclusive easement implicitly confers the authority to apportion those easement rights to third parties.\\nIn light of these principles, we turn to the case at hand. Following the deed provision setting forth the power company's easement rights, the grantor set forth only one limitation: \\\"Reserving, however, to myself and to my heirs and assigns, the right to cultivate the ground between said poles and towers and beneath said wires, provided that such use shall not interfere with or obstruct the rights herein granted.\\\" Although such a reservation is not construed as limiting the rights of the servient owner to only those rights expressly reserved, the reservation reasonably suggests the parties' intent to convey an exclusive easement to the power company for the purposes set forth in the deed. See Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 441-42, 440 A.2d 935 (1984) (\\\"By granting an easement, a grantor conveys to the grantee only that which is specifically expressed in the document, and retains all use of the land not inconsistent with the grantee's use and enjoyment of the easement. . A reservation clause does not operate to preclude other uses by the grantor not specifically reserved unless such intent is clearly expressed.\\\" [Citations omitted.]); cf. Centel Cable Television Co. of Ohio, Inc. v. Cook, 58 Ohio St. 3d 8,10, 567 N.E.2d 1010 (1991) (concluding that easement was exclusive and apportionable when granting instrument prohibited grantor from doing anything inconsistent with terms of easement or from constructing buildings or other structures within limits of easement). In addition to the fact that the grantor reserved the right to engage in an activity bearing no relationship to the purposes for which the easement was granted, there is no evidence that the servient owners ever have attempted to use their property since 1923 for the provision of heat, light, power or telephone services. The trial court, therefore, properly determined that the deed conveyed an exclusive easement to the power company and, accordingly, the power company had the right to authorize the defendant to use the easement to the extent that the defendant's use was consistent with the purpose for which the easement was granted.\\nB\\nThe fact that the power company could, as a matter of law, make a partial assignment does not, as the trial court implicitly seemed to conclude, inexorably lead to the conclusion that it in fact had made such an assignment. The plaintiffs contend that there was no evidence before the trial court that the power company had assigned easement rights to the defendant. The defendant expressly conceded at oral argument before the trial court that there was an issue of fact as to whether the power company had assigned its easement rights. Our review of the record before the trial court in deciding the motions for summary judgment clearly supports the plaintiffs' contention that there was no evidence of such an assignment or any other legal enti tlement for the defendant to use the easement. Moreover, it is clear that the defendant bore the burden of proving such an entitlement in order to prevail on summary judgment.\\n\\\"It is an elementary rule that whenever the existence of any fact is necessary in order that a party may make out his case or establish his defense, the burden is on such party to show the existence of such fact.\\\" (Internal quotation marks omitted.) Nikitiuk v. Pishtey, 153 Conn. 545,552,219 A.2d 225 (1966); see C. Tart, Connecticut Evidence (3d Ed. 2001) \\u00a7 3.3.1, p. 136 (\\\"[wjhoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense\\\"). Therefore, as the proponent of the defense that it was entitled to enter and use the plaintiffs' property pursuant to easement rights it had obtained from the power company, the defendant had the burden of proof as to that fact. See Branch v. Occhionero, 239 Conn. 199, 205, 681 A.2d 306 (1996) (defendant asserting right-of-way as special defense to plaintiffs quiet title action had burden of proving all facts necessary to prove defense).\\nIn the absence of such evidence, the trial court improperly found that the defendant had a valid assignment of easement rights from the power company. See Frillici v. Westport, 264 Conn. 266, 277, 823 A.2d 1172 (2003) (\\\"finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed\\\" [internal quotation marks omitted]). Accordingly, the trial court improperly concluded that there was no material issue of fact and that the defendant was entitled to summary judgment as a matter of law.\\nThe judgment is reversed and the case is remanded for further proceedings.\\nIn this opinion the other justices concurred.\\nThe plaintiffs originally brought this action against Omnipoint Communications Enterprises, Inc., and Omnipoint Communications, Inc. Prior to the trial court's ruling on the defendants' motion for summary judgment, the plaintiffs withdrew their complaint against Omnipoint Communications Enterprises, Inc. Therefore, we refer to Omnipoint Communications, Inc., as the defendant in this opinion.\\nThe plaintiffs appealed from the trial court's judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book \\u00a7 65-1 and General Statutes \\u00a7 51-199 (c).\\nThe plaintiffs' statement of issues on appeal sets forth six claims. We conclude that the plaintiffs' first and second issues are subsumed under the broader question of whether the trial court properly construed the scope of the easement to include wireless telecommunications. The plaintiffs' third and fourth issues are subsumed under the broader question of whether the trial court properly concluded that the defendant had obtained a valid partial assignment of easement rights from the power company. The plaintiffs' fifth issue pertains to the overburdening claim. The sixth issue asserted by the plaintiffs\\u2014whether the trial court erred in interpreting public policy issues inconsistently with the unambiguous language of the easement\\u2014was not addressed by the trial court and therefore we need not address it.\\nOur rules of construction regarding reading ambiguities in favor of a particular party potentially are in conflict in the present case. One rule provides that \\\"[a]ny ambiguity in the instrument creating an easement, in a case of reasonable doubt, [is] construed in favor of the grantee.\\\" (Internal quotation marks omitted.) Lago v. Guerrette, supra, 219 Conn. 268. That rule would favor the power company and, hence, the defendant. Another fundamental rule provides, however, that an ambiguity is construed against the party that drafted the instrument. Goldberg v. Hartford Fire Ins. Co., 269 Conn. 550, 562, 849 A.2d 368 (2004). Although it is not clear which party drafted the deed of conveyance at issue here, we note its remarkable similarity to standard deed forms drafted by the power company that have been presented to this court previously. See Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 438-39 and n.1, 440 A.2d 935 (1981). Therefore, we decline to apply either default rule.\\nIn Heublein, we relied on the Tentative Draft of the Restatement (Third) of Servitudes that recently had been adopted by the American Law Institute. See Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 830 n.20. In 2000, the official Restatement (Third) was published with editorial modifications. References and cites herein to the Restatement (Third) are to the 2000 edition.\\nSection 4.1 of the Restatement (Third), supra, provides: \\\"Interpretation of Servitudes\\n\\\"(1) A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.\\n\\\"(2) Unless the purpose for which the servitude is created violates public policy, and unless contrary to the intent of the parties, a servitude should be interpreted to avoid violating public policy. Among reasonable interpretations, that which is more consonant with public policy should be preferred.\\\"\\nSection 4.10 of the Restatement (Third), supra, provides: \\\"Use Rights Conferred by Easements and Profits\\n\\\"Except as limited by the terms of the servitude determined under \\u00a7 4.1, the holder of an easement or profit as defined in \\u00a7 1.2 is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude. The manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude. Unless authorized by the terms of the servitude, the holder is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment.\\\"\\nAt oral argument in the trial court, the defendant conceded that, in 1923, the parties could not have envisioned the advent of wireless telephone and, therefore, did not offer any extrinsic evidence of the original parties' intent to create an easement specifically to include wireless telecommunications.\\nNeither the Restatement (Third), supra, nor case law addressing the use of easements through new technology indicates whether the easement holder or the owner of the servient estate has the burden of proof with respect to the reasonableness of the use. Typically, the owner of the servient estate has the burden of proving overburdening because the servient owner has asserted overburdening as a cause of action or as a reply to a special defense of an easement when the purpose of the easement is not in dispute. See, e.g., Abington Ltd. Partnership v. Heublein, 257 Conn. 570, 577, 778 A.2d 885 (2001) (asserting overburdening as cause of action). When the easement holder is seeking to take advantage o\\u00ed Heublein and extend easement rights to a different technology, however, the easement holder knows best how it will implement this new technology, especially when these facts may be unknown to the servient owner until well after the easement is altered to accommodate the new technology. Therefore, we conclude that, under such circumstances, the party seeking to extend the easement should bear the burden of producing some evidence to demonstrate that its intended use of the easement will not unreasonably burden the servient estate. Cf. Somers v. LeVasseur, 230 Conn. 560, 567, 645 A.2d 993 (1994) (concluding that defendant seeking to extend right-of-way obtained by prescriptive easement beyond prior use had \\\"burden to persuade the court that installation of the electrical utility lines [1] was reasonably necessary for the continued epjoyment of the right-of-way, and [2] would not unreasonably burden the plaintiffs' property\\\"). The servient owner is, of course, free to proffer evidence on that issue as well, as it may view the nature of the burden or what is reasonable through a very different lens than that of the easement holder.\\nIn light of this conclusion, we need not reach the plaintiffs' claim that the trial court improperly failed to consider independently their claim of overburdening, as the trial court will need to consider the plaintiffs' evidence on that issue on remand.\\nThe plaintiffs rely on our decision in Mellon v. Century Cable Management Corp., 247 Conn. 790, 725 A.2d 943 (1999). That case is inapposite. In Mellon, the defendant installed cable lines on the plaintiffs property, claiming that it had obtained a license to do so pursuant to the power company's easement over the plaintiffs property. Id., 793-94. Significantly, the defendant conceded that the power company had not obtained easement rights pursuant to a written instrument, and this court rejected the defendant's only other easement theory\\u2014easement by estoppel. Id., 794-97. Accordingly, the power company lacked authority to convey a license. Id., 793. Here, as the plaintiffs concede, the power company obtained an easement pursuant to a deed, and that deed grants the power company the authority to assign in full its rights.\\nIn light of this conclusion, we need not reach the argument asserted in the amicus brief that a partial assignment is permitted per se under General Statutes \\u00a7 47-42, even in the absence of a grant of such rights pursuant to the instrument creating the interest. This statute was amended in 1995 to permit partial assignments by pubhc utility companies, weh after the deed in the present case was executed in 1923. Pubhc Acts 1995, No. 95-217, \\u00a7 5. Accordingly, we decline to address unnecessarily an issue that implicates the constitutional question of impairment of contractual obligations. We note, however, that our conclusion with respect to exclusive easements and the concomitant right to partially assign is consistent with \\u00a7 47-42.\\nMany courts, after addressing whether the particular easement rights may be apportioned, have proceeded to analyze whether the apportionment will overburden the servitude. See J. Bruce & J. Ely, Jr., supra, \\u00a7 9:9, pp. 9-16 through 9-17. We conclude that such a factual inquiry is unnecessary in the present case, however, in light of our conclusion in part I of this opinion that overburdening must be considered on remand and in light of our conclusion in part n B of this opinion that the defendant failed to prove that the power company had conveyed any legal rights to the defendant.\\nIn response to the plaintiffs' argument to the trial court, inter alia, that there was no evidence of an assignment, counsel for the defendant stated: \\\"The question of the assignment, I think, is not before you today. I would . . . also ask the court to note that there is no information about that in the plaintiffs' pleadings. There are no affidavits to that point. [The power company] has obviously not challenged the assignment, and I question whether the plaintiffs [have] standing to raise that issue at all. But in any event, it is not before the court today. It would be an issue of fact.\\\"\\nThe only evidence before the trial court on this issue was the authorization letter sent by the power company to the defendant. In that letter, however, the power company merely authorized the defendant to apply for permits necessary for the defendant to operate and maintain a wireless telecommunications system on its easement over the plaintiffs' property. Most significantly, the authorization letter clearly provides in relevant part: \\\"This authorization shall not be deemed or construed to grant or transfer to [the defendant] any interest in the property, whatsoever, and shall not in any respect obligate or require [the power company] to sell, lease or license the [pjroperty to [the defendant] or otherwise allow [the defendant] to use or occupy the property for any purpose, regardless of whether any licenses, permits and approvals applied for by [the defendant] for the property are granted. . . .\\\"\\nThe defendant initially asserted a general denial to the plaintiffs' claim that it had trespassed by entering onto the plaintiffs' property without their permission. The defendant then asserted for the first time in its motion for summary judgment that the plaintiffs could not prevail on their trespass action because it had obtained an easement. As a fact that was consistent with the plaintiffs' allegation of lack of permission, but that nonetheless showed that the plaintiffs had no cause of action, the defendant should have pleaded its claim of easement as a special defense. See Coughlin v. Anderson, 270 Conn. 487, 502, 853 A.2d 460 (2004) (\\\"[U]nder a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact. . If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the new matter must be affirmatively pleaded as a special defense.\\\" [Internal quotation marks omitted.]); see also Practice Book \\u00a7 10-50. Nonetheless, the plaintiffs may be deemed to have waived their right to contest that procedural defect by failing to object to the introduction of evidence on the issue. Damora, v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981); Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 318, 757 A.2d 608 (noting that this principle is equally applicable in context of summary judgment as it is in context of trial), cert. denied, 254 Conn. 947, 762 A.2d 903 (2000).\"}"

conn/3594428.json

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+"{\"id\": \"3594428\", \"name\": \"AFSCME, COUNCIL 4, LOCAL 704 v. DEPARTMENT OF PUBLIC HEALTH\", \"name_abbreviation\": \"AFSCME, Council 4, Local 704 v. Department of Public Health\", \"decision_date\": \"2005-02-01\", \"docket_number\": \"SC 17120\", \"first_page\": \"617\", \"last_page\": \"626\", \"citations\": \"272 Conn. 617\", \"volume\": \"272\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T23:42:14.580595+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"AFSCME, COUNCIL 4, LOCAL 704 v. DEPARTMENT OF PUBLIC HEALTH\", \"head_matter\": \"AFSCME, COUNCIL 4, LOCAL 704 v. DEPARTMENT OF PUBLIC HEALTH\\n(SC 17120)\\nBorden, Norcott, Katz, Verlefeuille and Zarella, Js.\\nArgued November 29, 2004\\n\\u2014officially released February 1, 2005\\nThomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant).\\nJ. William Gagne, Jr., with whom, on the brief, was P. Jo Anne Burgh, for the appellee (plaintiff).\", \"word_count\": \"2923\", \"char_count\": \"18411\", \"text\": \"Opinion\\nKATZ, J.\\nThe principal issue in this certified appeal is whether the plaintiff, American Federation of State, County and Municipal Employees, Council 4, Local 704, waived the right to challenge an unfavorable arbitration award as untimely when it expressly granted the arbitrator's request for a time extension to render his decision, while the defendant, the department of public health, remained silent with respect to the arbitrator's request. The defendant appeals from the Appellate Court's reversal of the judgment of the trial court, which had denied the plaintiffs application to vacate the award and granted the defendant's cross application to confirm the award. AFSCME, Council 4, Local 704 v. Dept. of Public Health, 80 Conn. App. 1,14, 832 A.2d 106 (2003). Specifically, the defendant claims that the Appellate Court improperly concluded that the plaintiffs unilateral grant of the time extension had been ineffective in the absence of the defendant's consent and, therefore, could not constitute a waiver of the right to challenge the untimeliness of the award. We agree with the defendant and, accordingly, we reverse the judgment of the Appellate Court.\\nThe Appellate Court's opinion sets forth the following relevant facts and procedural history as provided in the trial court's memorandum of decision. \\\"The [plaintiff] requested arbitration of a grievance against the defendant . . . pursuant to \\u00a7 9 (c) of the collective bargaining agreement (agreement) between the [plaintiff] and the state of Connecticut. That section provides in relevant part: 'The Arbitrator shall render his/her decision in writing no later than thirty (30) calendar days after the conclusion of the hearing unless the parties mutually agree otherwise.'\\n\\\"The arbitrator conducted hearings from May 5 through August 29,2000, and the parties submitted post-hearing briefs on unspecified dates thereafter. . . . [T]he arbitrator was informed by a letter [dated January 3,2001, and] signed by both parties that the agreement's thirty day time restriction for an award had passed and that his services in the matter were therefore terminated. The arbitrator's January 5, 2001 letter of response addressed both parties and requested an extension from each, stating: T have never had the parties refuse to extend a deadline for an award to be due. [I will issue the award upon the request of either party.]'\\n\\\"On January 16, 2001, the [plaintiff] sent a letter to the arbitrator and granted his request for an extension. The arbitrator rendered his award on the same day, January 16, 2001, finding against the [plaintiffs] position. The [defendant] did not respond to the arbitrator's request for an extension before he rendered the award. The [plaintiff] then sought to vacate the award by application to the [trial] court dated February 7, 2001, pursuant to General Statutes \\u00a7 52-418, arguing that the arbitrator had exceeded his authority by issuing an award after the contractual deadline had passed in the absence of a mutual agreement for an extension from the parties. On November 6, 2001, the [defendant] filed a motion to confirm the arbitration award.\\n\\\"In its memorandum of decision, filed April 11, 2002, the [trial] court denied the [plaintiffs] application to vacate, concluding that the parties had waived the agreement's deadline by failing to inform the arbitrator of its existence. The court also determined that the [plaintiffs] January 16, 2001 letter operated as a waiver of its right to challenge the timeliness of the award. The [plaintiff] then asked the court to clarify whether the April 11, 2002 decision controlled with respect to the [defendant's] motion to confirm the arbitration award. On May 1, 2002, the [trial] court rendered judgment in accordance with the arbitration award pursuant to the April 11, 2002 decision.\\\" AFSCME, Council 4, Local 704 v. Dept. of Public Health, supra, 80 Conn. App. 3-4.\\nThe plaintiff subsequently appealed to the Appellate Court, which reversed the trial court's judgment. The Appellate Court concluded that the trial court's factual finding that the parties had waived the thirty day deadline by failing to notify the arbitrator of the deadline was clearly erroneous in light of their joint letter of January 3, 2001, terminating the arbitrator's services for failure to deliver a timely decision. Id., 6,11. Specifically, the Appellate Court stated that the plaintiffs subsequent grant of the arbitrator's request for a time extension \\\"did not change the fact that the deadline had passed or the fact that the arbitrator already had been discharged by both parties for that reason.\\\" Id., 10. The court further reasoned that the defendant's silence upon receipt of the plaintiffs letter did not amount to consent or mutual agreement. Id., 12-13. Finally, the court determined that, although the plaintiffs hands were \\\"not entirely clean in this matter\\\"; id., 14; its unilateral grant of the arbitrator's request could not constitute a waiver because the agreement required mutual consent for the extension to be effective. Id., 13-14. Accordingly, the Appellate Court concluded that, because the arbitrator had exceeded his powers by issuing a late award without mutual agreement by the parties to extend the deadline, the award must be vacated pursuant to \\u00a7 52-418. This certified appeal followed.\\nOn appeal, the defendant claims that the Appellate Court improperly concluded that the plaintiffs grant of the arbitrator's request for a time extension did not constitute a waiver of the plaintiffs right to challenge the award as untimely. Specifically, the defendant contends that: (1) the Appellate Court's conclusion is in conflict with the established waiver doctrine; and (2) basic principles of equity and fairness should bar the plaintiff from contesting the award as untimely given its conduct preceding the issuance of the award. In response, the plaintiff contends that its conduct could not constitute a waiver of its right to challenge the award as untimely because its unilateral grant of a time extension was ineffective without the defendant's consent. We agree with the defendant.\\nBefore addressing the merits of the defendant's claim, we set forth the standard for our review. Waiver is a question of fact. New York Annual Conference of the United Methodist Church v. Fisher, 182 Conn. 272, 300, 438 A.2d 62 (1980). \\\"[W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.\\\" Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Therefore, the trial court's conclusions \\\"must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.\\\" Laske v. Hartford, 172 Conn. 515, 518, 375 A.2d 996 (1977).\\n\\\"Waiver is the intentional relinquishment or abandonment of a known right or privilege. . . . [V]arious statutory and contract rights may be waived. For example, statutory time limits may be waived.\\\" (Citations omitted; internal quotation marks omitted.) New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 385-86, 677 A.2d 1350 (1996). \\\"Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced.\\\" Coombs v. Larson, 112 Conn. 236, 247, 152 A. 297 (1930). \\\"Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . .\\\" (Internal quotation marks omitted.) Boyce v. Allstate Ins. Co., 236 Conn. 375, 383-84, 673 A.2d 77 (1996). \\\"Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. . In other words, waiver may be inferred from the circumstances if it is reasonable to do so.\\\" (Citation omitted; internal quotation marks omitted.) Hensley v. Commissioner of Transportation, 211 Conn. 173, 179, 558 A.2d 971 (1989).\\nThis court previously has applied the principles of waiver and estoppel to an arbitration proceeding, concluding that a party to the proceeding implicitly waived its right to vacate an arbitration award under \\u00a7 52-418 (a) by its affirmative conduct. New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra, 237 Conn. 384. In that case, the plaintiff city sought to vacate an arbitration award rendered in connection with a grievance filed by the defendant union on behalf of a city employee. Id., 380. The city claimed that the state mediation and arbitration board had committed misconduct in refusing to grant the city's attorney a continuance after he suddenly became ill. Id., 381. The trial court agreed with the city, but found that its attorney had waived the misconduct claim by continuing to negotiate after the request for a continuance was denied. Id., 381-82. The Appellate Court subsequently reversed the trial court's judgment, concluding that, once a finding of misconduct had been made, the trial court was required to vacate the award under \\u00a7 52-418. Id., 383. In reversing the Appellate Court's judgment; id., 390; we emphasized the importance of the conduct of the parties in determining whether a waiver had occurred. Id., 388. We noted that, although the city's attorney had not waived the misconduct expressly, the trial court explicitly had found that he continued the negotiations \\\"freely and voluntarily . . . .''Id., 389. After a thorough review of the record, we concluded that this finding was not clearly erroneous. Id.\\nSimilarly, in the present case, the trial court's finding that the plaintiff waived its right to challenge the timeliness of the award by virtue of its conduct expressly granting the arbitrator's request for a time extension is supported by the record. The plaintiff sent a letter to the arbitrator stating that, \\\"it is the [plaintiffs] position that you were not notified we were going to enforce the thirty day response time issue . Therefore, your request for an extension is granted.\\\" Moreover, although the language in the agreement requiring mutual consent to extend the deadline signifies that one party's unilateral consent to a time extension would be ineffective as a waiver of the nonconsenting party's right to challenge a subsequent award as untimely, this language does not similarly suggest that a party's unilateral consent cannot operate as a waiver with respect to its own right to challenge the award as untimely. Indeed, we have recognized such unilateral waivers in other contexts. See Waterman v. United Caribbean, Inc., 215 Conn. 688, 693,577 A.2d 1047 (1990) (recognizing that waiver may validate a court judgment otherwise voidable when \\\"the losing party has promptly sought to set aside an unfavorable judgment, only to be met by the winning party's claim of waiver by virtue of the losing party's prejudgment conduct\\\"); id., 692 (rejecting argument that statute providing that parties may waive time limitation \\\"invariably requires the prior consent of both parties in order to waive the time limits the statute imposes\\\"); Hurlbutt v. Hatheway, 139 Conn. 258, 263, 93 A.2d 161 (1952) (recognizing principle that party's conduct may waive tardiness of judgment but finding no waiver); Whitaker v. Cannon Mills Co., 132 Conn. 434,438-39,45 A.2d 120 (1945) (recognizing same principle and finding waiver). Thus, we conclude there is sufficient evidence in the record to support the trial court's finding with respect to the plaintiffs waiver of the time limitation.\\nIn reaching this conclusion, we are mindful of the strong public policy favoring arbitration and, therefore, the enforcement of arbitration awards. New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra, 237 Conn. 386-87. It would not serve those interests to allow a party to an arbitration proceeding to grant expressly the arbitrator's request for a time extension, presumably with the expectation of a favorable award, and then permit that party to invoke that untimeliness as a basis for vacating an unfavorable award. See Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967) (waiver doctrine precludes parties from anticipating favorable decision while reserving right to impeach it or set it aside if it comes out against them for cause known well in advance of issuance of unfavorable decision). Fittingly, in the present case, the doctrine of waiver and estoppel should bar the plaintiff from contesting the untimeliness of an unfavorable award in light of its conduct. See Boyce v. Allstate Ins. Co., supra, 236 Conn. 384 (noting that equitable estoppel \\\" 'show[s] what equity and good conscience require, under the particular circumstances of the case' \\\"). Accordingly, we conclude that the Appellate Court improperly concluded that the plaintiffs unilateral grant of the arbitrator's request for an extension was ineffective in the absence of the defendant's consent, and therefore could not amount to a waiver of the plaintiffs right to challenge the untimeliness of the award.\\nThe judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.\\nIn this opinion the other justices concurred.\\nWe granted the defendant's petition for certification to appeal limited to the following issues: Did the Appellate Court properly reverse the judgment of the trial court, which found that (1) the parties to the arbitration jointly had waived, by conduct or agreement, the deadline for rendering a decision, and (2) the plaintiff had waived its right to claim the award was untimely? AFSCME, Council 4, Local 704 v. Dept. of Public Health, 267 Conn. 908, 840 A.2d 1170 (2003). Because our resolution of the second issue is dispositive, we need not decide the first issue.\\nThe joint letter signed by the parties provided in relevant part \\\"As you have failed to comply with the contractual requirement to render a decision within thirty (30) days, any decision you render will be void. You have failed to request an extension. Please be advised that since you have not completed the assignment, please do not invoice either party.\\\"\\nThe plaintiffs letter provided in relevant part: \\\"[I]t is [our] position that you were not notified we were going to enforce the thirty day response time issue. A review of [the] notes and the exhibits reflect that it was not brought to your attention either during the hearings or the subsequent briefs ofthe respective parties. Therefore, yourrequestforanextensionis granted. Please submit the award forthwith. We will forward payment for [our] portion of your bill upon receipt of the award.\\\" (Emphasis added.)\\nGeneral Statutes \\u00a7 52-418 (a) provides in relevant part: \\\"[T]he superior court . . . shall make an order vacating the award . (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.\\\"\\nIn its brief to this court, the defendant also claims that the Appellate Court improperly concluded that the parties had not jointly waived the award deadline. As we previously noted; see footnote 1 of this opinion; we need not reach this issue. The defendant also contends that the plaintiff cannot assert that it was harmed by the arbitrator's untimely award because the plaintiff had waived its objection to the lapsed deadline and it cannot vicariously assert the defendant's lack of consent for its own benefit. For the reasons set forth in this opinion, we need not address this assertion as an independent claim.\\nAs indicated by the first certified question, the plaintiffs letter to the arbitrator, dated January 16,2001, also raises the issue of whether the parties had an obligation under the agreement to notify the arbitrator of the deadline before either party may invoke it as a basis for terminating the award. See Middletown v. Police Local, No. 1361, 187 Conn. 228, 231-32, 445 A.2d 322 (1982) (concluding that when parties imposed no deadline for rendering award, decision is valid if rendered within reasonable time). If that were the case, the award may have been rendered timely irrespective of any extension by the parties. Indeed, the plaintiff essentially recognized the parties' obligation to inform the arbitrator of the deadline. In the present case, however, we need not decide whether such an admission also could preclude the plaintiff from thereafter asserting a contrary interpretation of the agreement.\\nAlthough the plaintiff cites Waterman v. United Caribbean, Inc., supra, 215 Conn. 688, in support of its position, that case is factually distinguishable. In Waterman, the parties concurrently asserted contrary positions in response to the trial court's request for a time extension to issue its decision, and thereafter the prevailing but previously objecting defendants attempted to consent retroactively to the time extension. Id., 690; see id., 694 (\\\"The defendants argue that because the consent of the parties may confer personal jurisdiction upon a court, their execution of a consent following the trial judge's issuance of the late, yet favorable, judgment was sufficient to cure any defect therein. That argument would be persuasive if the defendants had remained silent prior to the late rendering of the judgment. In such a situation, the court would have continued to have had personal jurisdiction to enter a voidable judgment, and the defendants' subsequent consent would have cured the defect in the judgment.\\\"). In the present case, however, the defendant remained silent as to the arbitrator's request for an extension of time.\"}"

conn/3885340.json

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+"{\"id\": \"3885340\", \"name\": \"VICTORIA SQUARE, LLC, ET AL. v. THE GLASTONBURY CITIZEN ET AL.\", \"name_abbreviation\": \"Victoria Square, LLC v. Glastonbury Citizen\", \"decision_date\": \"2006-01-17\", \"docket_number\": \"Me No. CV-04-0100718S\", \"first_page\": \"452\", \"last_page\": \"456\", \"citations\": \"49 Conn. Supp. 452\", \"volume\": \"49\", \"reporter\": \"Connecticut Supplement\", \"court\": \"Connecticut Superior Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T01:35:13.605063+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"VICTORIA SQUARE, LLC, ET AL. v. THE GLASTONBURY CITIZEN ET AL.\", \"head_matter\": \"VICTORIA SQUARE, LLC, ET AL. v. THE GLASTONBURY CITIZEN ET AL.\\nSuperior Court, Judicial District of Hartford\\nMe No. CV-04-0100718S\\nMemorandum filed January 17, 2006\\nTrendowski Law Offices, for the plaintiffs.\\nAlter & Sherwood, for the defendants.\", \"word_count\": \"1239\", \"char_count\": \"7667\", \"text\": \"MILLER, J.\\nPlaintiff John Alan Sakon is the owner of the plaintiff Victoria Square, LLC (Victoria Square), a company formed to acquire and develop commercial property in Glastonbury. The plaintiffs' planned development of a shopping center generated considerable controversy, notoriety and publicity in and around Glastonbury.\\nThe defendant The Glastonbury Citizen (Citizen) is a weekly newspaper published in Glastonbury. Defendant James Hallas is the owner and publisher of the Citizen, and defendant Kathleen Stack is its editor. On April 1, 2004, the newspaper published an \\\"April Fools' Day\\\" edition. This edition of the Citizen was clearly a parody of the newspaper's usual content. \\\"April Fools' \\\" is prominently displayed across the running head of the paper and the word \\\"NOT\\\" appears in large bold letters so that it partially obscures the name of the paper on its front page, the page on which the article in question is located.\\nThe article is entitled, \\\"Sakon to Build Hooters, WalMart,\\\" and states that the plaintiffs planned to build a 250,000 square foot Wal-Mart store and the state's largest Hooters restaurant. The complex to be built would also, supposedly, include a helicopter launching pad. The parties agree that the alleged facts set forth in the article are false. The article appeared on the same page as articles announcing that a Glastonbury student had won a Nobel prize, the discovery of a \\\"black hole\\\" at a local school and other improbable \\\"news\\\" stories.\\nThe plaintiffs demanded a retraction of the story and filed suit when none was published. Their operative complaint is the second revised complaint dated February 28, 2005. This complaint states claims in six counts sounding in defamation, invasion of privacy by false light and violation of the Connecticut Unfair Trade Practices Act, General Statutes \\u00a7 42-110a et seq. The defendants have moved for summary judgment on all six counts of the complaint.\\nIt is unnecessary, to decide this matter, to address all of the arguments advanced by the defendants in support of their motion because the court finds that the article in question was not defamatory. Our Supreme Court has held: \\\"To prevail on a common-law defamation claim . . . the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion.\\\" (Citation omitted.) Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999). \\\"This distinction between fact and opinion cannot be made in a vacuum, however, for although an opinion may appear to be in the form of a factual statement, it remains all opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated.\\\" (Emphasis in original; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111, 438 A.2d 1317 (1982).\\nIn Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 48, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988), the magazine published a \\\"parody\\\" that \\\"portrays [the] respondent and his mother as drunk and immoral, and suggests that [the] respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, 'ad parody \\u2014 not to be taken seriously.' The magazine's table of contents also lists the ad as 'Fiction; Ad and Personality Parody.' \\\" The Supreme Court found that the parody was not defamatory, noting: \\\"The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of . . . public figures who are 'intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.' \\\" Id., 51. In a later decision, the court observed that the line of cases including Hustler Magazine, Inc. v. Falwell, supra, 46, \\\"provides protection for statements that cannot 'reasonably [be] interpreted as stating actual facts' about an individual. . . . This provides assurance that public debate will not suffer for lack of 'imaginative expression' or the 'rhetorical hyperbole' which has traditionally added much to the discourse of our Nation.\\\" (Citation omitted.) Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990).\\nDefamation is, by its nature, mutually exclusive of parody. By definition, defamation requires a false statement of fact; parody, to the degree that it is perceived as parody by its intended audience, conveys the message that it is not the original and, therefore, cannot constitute a false statement of fact. \\\"If a parody could be actionable because, while recognizable as a joke, it conveyed an unfavorable impression, very few journalistic parodies could survive.\\\" San Francisco Bay Guardian, Inc. v. Superior Court, 17 Cal. App. 4th 655, 662, 21 Cal. Rptr. 2d 464, review denied, 1993 Cal. LEXIS 5847 (November 10, 1993). \\\"The butt of the parody is chosen for some recognizable characteristic or viewpoint which is then exaggerated. It is not for the court to evaluate the parody as to whether it went too far. As long as it is recognizable to the average reader as a joke, it must be protected or . . . parody . . . must cease to exist.\\\" (Internal quotation marks omitted.) Buttons v. National Broadcasting Co., 858 F. Sup. 1025, 1028 (C.D. Ca. 1994). Parodies should be protected when they appear as such to the reasonable reader. Moreover, \\\"the hypothetical reasonable person . is no dullard. He or she does not represent the lowest common denominator, but reasonable intelligence and learning. He or she can tell the difference between satire and sincerity.\\\" (Internal quotation marks omitted.) New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004).\\nNo such reasonable reader could construe the article in question as anything other than a parody. The defendants took considerable care to make it clear that the page where this article appeared did \\\"NOT\\\" contain genuine news stories. The article is surrounded by other mock articles that any reasonable reader would quickly determine to be both false and humorous. Finally, the article itself described development plans that were so extreme as to be obviously preposterous. The plaintiffs were, supposedly, planning to build a 250,000 square foot Wal-Mart store on the property; this would have been substantially larger than the building the plaintiffs wanted to construct. A helicopter launching pad in a shopping center in Glastonbury is equally ridiculous to contemplate. If none of this put the readers on notice that they were reading a parody, the statement that the Hooters logo would be positioned so as to face a local church and an elementary school would almost certainly get the point across.\\nThe average reader of this article would, as a matter of law, find it to be a parody. A false statement that is published as a parody cannot be defamatory. The defendants' motion for summary judgment is, therefore, granted.\\nThe defendants have also moved for summary judgment on the plaintiffs' invasion of privacy and unfair trade practices claims. The plaintiffs, in their respective briefs, have asserted absolutely no opposition to summary judgment on any claims other than the defamation counts; the motion, therefore, is granted as to all six counts of the complaint.\"}"

conn/389466.json

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+"{\"id\": \"389466\", \"name\": \"Christopher Augat vs. Johanna Tetmeyer\", \"name_abbreviation\": \"Augat v. Tetmeyer\", \"decision_date\": \"1919-12-22\", \"docket_number\": \"\", \"first_page\": \"256\", \"last_page\": \"257\", \"citations\": \"94 Conn. 256\", \"volume\": \"94\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T23:49:47.184391+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Christopher Augat vs. Johanna Tetmeyer.\", \"head_matter\": \"Christopher Augat vs. Johanna Tetmeyer.\\nThird Judicial District, Bridgeport,\\nOctober Term, 1919.\\nWheeler, Beach, Gager, Case and Curtis, Js.\\nThe maxim de minimis non curat lex is applicable to the alleged erroneous allowance of an item of interest of $4 or thereabouts in a judgment for $152, and an appeal to'this court solely upon such ground is not justified.\\nArgued November 5th\\ndecided December 22d, 1919.\\nAction by the payee against the maker of a promissory note for $150, brought to and tried by the Court of Common Pleas in Fairfield County, Booth, J.; facts found and judgment rendered for the plaintiff for the amount of the note with interest, less the sum of $11.50 allowed the defendant upon her counterclaim, from which she appealed.\\nNo error.\\nAlbert McC. Mathewson, for the appellant (defendant).\\nJoseph G. Shapiro and Charles H. Shapiro, for the appellee (plaintiff).\", \"word_count\": \"229\", \"char_count\": \"1395\", \"text\": \"Per Curiam.\\nCertain items of the defendant's counterclaim were allowed in reduction of the amount claimed by the plaintiff; others were disallowed. The finding conclusively settled every matter in dispute, save an item of interest amounting to something over $4, which it is claimed the court erroneously allowed. This did not justify an appeal, and our disposition of the case is manifestly controlled by Neville v. Frary, 88 Conn. 50, 89 Atl. 882, and the earlier cases there referred to.\\nThere is no error.\"}"

conn/396324.json

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+"{\"id\": \"396324\", \"name\": \"The State of Connecticut vs. Tihon Sinchuk et al.\", \"name_abbreviation\": \"State v. Sinchuk\", \"decision_date\": \"1921-08-04\", \"docket_number\": \"\", \"first_page\": \"605\", \"last_page\": \"626\", \"citations\": \"96 Conn. 605\", \"volume\": \"96\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T17:10:00.607844+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Connecticut vs. Tihon Sinchuk et al.\", \"head_matter\": \"The State of Connecticut vs. Tihon Sinchuk et al.\\nThird Judicial District, New Haven,\\nJune Term, 1921.\\nWheeler, C. J., Beach, Gager, Curtis and Burpee, Js.\\nChapter 312 of the Public Acts of 1919, entitled \\u201cAn Act concerning Sedition,\\u201d prescribes a fine and imprisonment for \\u201cany person, who shall speak, or write, print and publicly exhibit or distribute, or who shall publicly exhibit, post up or advertise any disloyal, scurrilous or abusive matter, concerning the form of government of the United States, its military forces, flag or uniforms, or any matter which is intended to bring them into contempt or which creates or fosters opposition to organized government.\\u201d In a prosecution under this Act the accused, who were aliens, attacked its constitutionality. Held:\\u2014\\n1. That the statute was not fairly open to the objection that it fixed no ascertainable standard of guilt, inasmuch as the principles of the common law governing the publication of defamatory matter, furnished all the analogies necessary to define the nature and cause of this branch of the accusation.\\n2. That the Act itself was a declaration by the legislature that the publication of the prohibited forms of expression did endanger the public peace and safety; and that this declaration was within the province of the General Assembly, unless the court could see that it was plainly unfounded \\u2014 a conclusion untenable in the present case.\\n3. That the accused, being aliens, clearly had no constitutional right to share in the privilege and responsibility of attempting to change our laws or forms of government (Constitution of Connecticut, Bill of Rights, \\u00a7\\u00a7 2, 5, 6, 16), and therefore no right, under the pretense of being so employed, to engage in scurrilous or anarchistic propaganda which the legislature had declared to be dangerous to the public welfare.\\nNo one can challenge a statute as unconstitutional, unless he can show that its enforcement against him has violated, or will violate, his constitutional rights; and the application of this rule or principle obviously cannot deprive one of the equal protection of the laws.\\nPrima facie, publications which have been forbidden by the legislature because dangerous to the public welfare, are abuses of the privilege of free speech.\\nArgued June 7th\\ndecided August 4th, 1921.\\nInformation charging the accused with violation of Chapter 312 of the Public Acts of 1919, entitled An Act concerning Sedition, brought to and reserved by the Superior Court in Fairfield County (M\\u00e1ltbie, J.) for the advice of this court, on the issues of law raised by a demurrer to the information.\\nSuperior Court advised to overrule the demurrer and to enter judgment pursuant to the stipulation.\\nThe information charges \\u201cthat on the. 14th day of March, 1921, at Bridgeport in said County, Tihon Sinchuk and Alexander Yavsk, not being citizens of the United States or of the State of Connecticut, and residing in said Bridgeport, with force and arms did publicly exhibit or advertise certain disloyal, scurrilous or abusive matter concerning the form of government of the United States and of its flag and certain matter which was intended to bring them into contempt, or which creates or fosters opposition to organized government, against the peace and contrary to the statute in such case made and provided.\\u201d The offenses are charged in the exact language of the statute, but no excerpts from the matter complained of are included in the information, and no statement of the facts in the case is contained in the record.\\nTo this information the accused demurred: (1) because the information is insufficient in law; (2) because it does not state facts constituting an offense; and (3) because the statute is unconstitutional and void in that it violates \\u00a7\\u00a7 2, 5, 6, 9 and 16 of Article First of the Constitution of Connecticut, \\u00a7 9 of Article I of the Federal Constitution, and also the Sixth and Fourteenth Amendments thereof. The stipulation reserving the issues of law, raised by the demurrer of the accused to the information, recites that the cause is ready for plea and final judgment, and it is further stipulated that no question shall be raised by the defendants based upon any informality in the information, or upon any defects therein, because of the failure to incorporate in the information specific quotations from the matter complained of. The only questions discussed in argument or on the briefs were those relating to the constitutionality of the statute.\\nWalter Nelles of New York City, with whom, on the brief, were Isaac Shoor of New York City, and Abe S. Geduldig, for the accused.\\nHomer S. Cummings, State\\u2019s Attorney, with whom, on the brief, were Galen A. Carter, Assistant State\\u2019s Attorney, and Warren F. Cressy, for the State.\", \"word_count\": \"6878\", \"char_count\": \"40520\", \"text\": \"Beach, J.\\nThe statute in question is entitled \\\"An Act concerning Sedition\\\"; and on its face it appears to penalize three classes of publications: (1) disloyal, scurrilous or abusive matter, concerning the form of .government of the United States, its military forces, flag or uniforms; (2) any matter intended to bring them into contempt; (3) or which creates or fosters opposition to organized government. The demurrer, and the stipulation accompanying the reservation, waive all defenses except the unconstitutionality of the statute.\\nThe brief for the accused presents this defense in three aspects, which are described as to some extent overlapping: first, because it fixes no ascertainable standard of guilt and amounts to delegation to courts and juries of the legislative function of defining statutory offenses; second, because it oversteps the police power and deprives of liberty without due process of law, in penalizing expression for its character regardless of relation to harmful consequence; third, because it contravenes specific limitations on the police power, namely, the free-speech sections, the right of the people to adapt their form of government in accordance with their opinion, and the right of remonstrance.\\nIn support of the first of these propositions the defendants rely mainly on United States v. Cohen Grocery Co., 255 U. S. 81, 41 Sup. Ct. 298, holding that \\u00a7 4 of the Lever Act (41 U. S. Stat. at Large, 298), penalizing the making of \\\"any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,\\\" was unconstitutional because it did not fix any ascertainable standard of guilt, and did not inform persons accused of violation thereof of the nature and cause of the accusation against them. To the same effect are International Harvester Co. v. Kentucky, 234 U. S. 216, 34 Sup. Ct. 853; Collins v. Kentucky, 234 U. S. 634, 34 Sup. Ct. 924; American Seeding Machine Co. v. Kentucky, 236 U. S. 660, 35 Sup. Ct. 456. These last cases arose under statutes forbidding combinations to fix a price greater or less than the \\\"real value \\\" of the article dealt in; and the attempt was to determine criminality by asking the court or jury to say what the real value of the article would have been had the combination not existed. On the other hand, a criminal statute is not unconstitutional merely because it throws upon men the risk of rightly estimating the effect of their conduct upon a condition of fact; e. g., what is \\\"undue restraint \\\" of trade, Nash v. United States, 229 U. S. 373, 33 Sup. Ct. 780; whether their conduct is \\\"reasonably calculated\\\" to restrain trade, Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 29 Sup. Ct. 220; whether their language tends to encourage or advocate an actual breach of the law, Fox v. Washington, 236 U. S. 273, 35 Sup. Ct. 383; or whether a newspaper is \\\"principally made up of criminal news \\\", State v. McKee, 73 Conn. 18, 46 Atl. 409. And coming closer to the point, we have upheld a statute which penalized the publication of \\\"any offensive, indecent, or abusive matter, concerning any person.\\\" State v. Pape, 90 Conn. 98, 96 Atl. 313. Of this statute, we said that it must be construed consistently with the principles of the common law governing the publication of all defamatory matter, and with the constitutional provision that in all actions of libel the truth shall be a defense.\\nApplying the principles underlying these authorities to the present case, we think the statute is not fairly open to the objection that it fixes no ascertainable standard of guilt. The phrase \\\"disloyal, scurrilous or abusive matter,\\\" is confined specifically to the form of government of the United States, its military forces, flag or uniforms, and the principles of the common law governing the publication of defamatory matter, in so far as they are applicable, furnish all the analogies necessary to define the nature and cause of this branch of the accusation. Whether the publication in question was with intent to bring the form of government of the United States and its flag into contempt, is an issue of fact such as is presented in most criminal prosecutions. Whether the publication creates or fosters opposition to organized government, is also an issue of fact no more uncertain than the question whether a publication is obscene.\\nThe second objection is that the Act penalizes expression for its character regardless of relation or harmful consequence. This objection, both in its form and in the mode in which it was presented in argument and on the brief, stands by itself and does not involve the third objection above stated. It deals not with the alleged violation of any specific limitation on the exercise of the police power, but with the reasonableness of the prohibition as measures for the public peace and safety. It may be admitted that the publication of matter concerning the form of the Federal\\nGovernment, which is merely scurrilous or abusive, is not necessarily a direct incitement of disobedience to any other law, but it is not necessary to look outside of the statute itself to find a legal basis for criminality, because the Act itself is the declaration of the General Assembly that the publication of the prohibited forms of expression does endanger the public peace and safety. This declaration it has power to make unless the court can see that it is plainly unfounded. State v. McKee, 73 Conn. 18, 24, 46 Atl. 409. We have no doubt that a sufficient probability of danger to the public peace and safety arises from publications concerning the government of the United States and of its flag, which would come within the common-law definition of defamatory matter, to justify the statute so far as its first two clauses are concerned. Defamatory publications seem as dangerous to the public welfare when addressed to the national government as when addressed to an individual. State v. Pape, 90 Conn. 98, 96 Atl. 313. As to the final clause of the statute, it is idle to say that anarchistic propaganda are harmless in the law.\\nWe come now to the question, which also underlies the objections already discussed, whether the statute contravenes any specific provision of the Bill of Rights, or of the Federal Constitution. Section 2 of the Bill of Rights in the Constitution of this State, provides \\\"that all political power is inherent in the people and all free governments are founded on their authority, and instituted for their benefit; and that they have at all times an undeniable and indefeasible right to alter their form of government in such manner as they may think expedient.\\\" This section is plainly inapplicable to the defendants. The information alleges, and the demurrer admits, that the defendants are not \\\"citizens of the United States or of the State of Connecticut.\\\" The right affirmed by this section is the right of the people to alter \\\"their form of government.\\\" It is because it is their own, and instituted by themselves for their own benefit, that they have the right to alter it. The proposition that aliens have an undeniable and indefeasible right to alter our form of government will hardly bear statement.\\nSection 16 provides: \\\"The citizens have a right, in a peaceable manner, to assemble for their common good, and apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance.\\\" This section is also inapplicable. No right of peaceable assembly is invaded by the statute, and there is nothing to show that the publications in question were addressed, for any purpose whatever, to those invested with the powers of government. The allegations of the information and the admissions of the demurrer do not indicate that such was the fact, and the inference to be drawn from the admission that the publications were of the character described in the statute, would lead to another conclusion.\\nSections 5 and 6 of the Bill of Rights are as follows:\\u2014 \\\"5. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege. 6. No law shall ever be passed to curtail or restrain the liberty of speech or of the press.\\\" If we are right so far, the next question is whether matter of the kind described in the statute and information is of such a constitutionally privileged character that its publication by the defendants may not be punished, although dangerous to the public welfare. The defendants attempt to maintain that their publications are so privileged, and are a legitimate exercise of the right of free speech, by what is, in practical effect, an appeal to \\u00a7 2 of the Bill of Rights. They quote from State v. McKee, 73 Conn, 18, 28, 46 Atl. 409: \\\"The right to discuss public matters stands in part on the necessity of that right to the operation of a government by the people ' \\u2014 and they say: \\\"There is a public necessity, however, that public matters should be freely discussed. . Is it not the law that such discussion, even though potentially harmful, may not be punished \\u2014 is not an 'abuse' of free speech\\u2014 so long as it does not amount to direct and positive incitation of harm? \\\" The distinction thus attempted is in principle a familiar one between harmful utterances intended to incite resistance or disobedience to law, and the same harmful utterances intended only to secure a change in the law; the latter, though dangerous, being justified by the inalienable and indefeasible right of the people to alter their political institutions. 21 Columbia Law Review, 526. The question, then, recurs, whether the defendants, being aliens, possess that right. We discuss that question, and then the question whether the denial of that right to aliens violates the requirement of the Fourteenth Amendment, that \\\"no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.\\\"\\nThe defendants' brief does not argue the question whether \\u00a7 2 of the Bill of Rights applies to aliens. It simply assumes that aliens are included in the term \\\"the people,\\\" and then uses the assumption that the defendants are exercising the constitutional right of altering their form of goverment as a plea of privilege for the publication of matter which the legislature has declared to be dangerous to the public peace and safety. Prima facie, publications which have been forbidden by the legislature, because dangerous to the public welfare, are abuses of the privilege of free speech. Unless, the defendants can successfully claim the right of unlimited political discussion, they cannot say that the statute deprives them of any constitutional privilege.\\nThe question whether aliens are entitled to the benefit of the reservations of personal liberty guaranteed to citizens and to the people in our Bill of Rights, is not altogether a new question in this State. In Jackson v. Bulloch, 12 Conn. 38, the question arose, in a writ of habeas corpus, whether a slave could be held in servitude in Connecticut by her owner who had brought her here with a view to a temporary residence. The petitioner relied both upon the Constitution and upon the slavery statutes then in force. On the latter ground she prevailed, but in discussing the constitutional question we said, p. 42: \\\"The Bill of Rights, in its first section, declares that all men, when they form a social compact, are equal in rights; and that no man, or set of men, are entitled to exclusive public emoluments or privileges from the community. The language is certainly broad; but not as broad as that of the Bill of Rights in Massachusetts, to which it has been compared. It seems evidently to be limited to those who are parties to the social compact thus formed. Slaves cannot be said to be parties to that compact, or to be represented in it.\\\" And of \\u00a7 8 of the Bill of Rights, we said: \\\"The eighth section of the Bill of Rights has also been pressed upon us: that 'the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches or seizures.' This is almost a transcript of the Fourth Article of the Amendments of the Constitution of the United States. And the fact that this Amendment was adopted at all, and that amidst all the conflict of opinions upon the subject of slavery, this clause has never been claimed to affect that subject, shows very strongly, that it was not intended to apply to that description of persons. When the preamble to the Constitution of the United States speaks of 'we, the people \\u2014 to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution/ it cannot be seriously contended, that it included that class of people called slaves; and the term 'people ' in the Bill of Rights, must have been used in a similar sense.\\\"\\nThe principle underlying this portion of the decision applies to the present case with added force, for the second section of the Bill of Rights, declaring that all political power is inherent in the people, cannot refer to aliens, who have no political power; nor can the declaration that the people have at all times an undeniable and indefeasible right to alter their form of government, refer to aliens, who have no part nor lot in the government.\\nTurning back to the free-speech sections, \\u00a7 5 declares that \\\"every citizen \\\" may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty. This privilege is on its face confined to citizens. And \\u00a7 6, that no law shall ever be passed to curtail or restrain the liberty of speech or of the press, plainly refers to the liberty of speech and of the press conferred by \\u00a7 5 on citizens.\\nWe do not mean to say that aliens have no right of free speech. If the General Assembly should undertake to declare a comprehensive consorship of the press, and an alien newsdealer should be prosecuted for selling a book or a newspaper which had not been passed by the censor, the statute could not be enforced against him. And for the reason that the business of news-dealing is a matter of private concern, and is a business in which aliens, who are duly admitted to the United States under our immigration laws, have an inherent right to engage, and having that right, they are entitled to the equal protection of the laws in the conduct of that business. Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064; Truax v. Raich, 239 U. S. 33, 36 Sup. Ct. 7. We do, however, lay it down as a self- evident proposition, supported in principle by Jackson v. Bulloch, 12 Conn. 38, that aliens have no constitutional right to share in the privilege and responsibility of attempting to change our laws or forms of government, and hence that they have no right, under cover of being engaged in good faith to accomplish those ends, to engage in scurrilous or anarchistic propaganda which has been declared by the General Assembly to be dangerous to the public welfare. It follows that, so far as aliens are concerned, the General Assembly has a right to pass a statute forbidding or penalizing the publication of such propaganda. And as it is a principle of constitutional law that no one has a right to attack a statute as unconstitutional unless he can show that its enforcement against him has violated or will violate his constitutional rights, the defense of unconstitutionality is not open to the 'defendants in this action. Tyler v. Judges of the Court of Registration, 179 U. S. 405, 21 Sup. Ct. 206; 6 R. C. L. p. 89, and numerous cases cited in the note to \\u00a7 87.\\nThe remaining question is whether this conclusion deprives the defendants of the equal protection of the laws. Evidently not, for the question whether the statute is enforceable against citizens is not before us. We simply hold that the defendants, being aliens, do not possess the right of attempting to alter our form of government, and for that reason are not qualified to plead the privilege of unlimited political discussion, on which their defense, that the statute violates the second, fifth and sixth sections of the Bill of Rights, is founded.\\nWe may add that if this defense had been pleaded by a citizen, it would have been by no means clear that the statute might not be construed so as to avert most, if not all, of the criticism directed against it. State v. McKee, 73 Conn. 18, 46 Atl. 409; State v. Pape, 90 Conn. 98, 96 Atl. 313.\\nWe have already indicated that the first and second clauses of the statute are to be construed in the light of the principles of the common law governing the publication of defamatory matter. And while the construction of the statute as a whole is not required or permitted by this record, it is a fair question\\u2014 Professor Freund to the contrary notwithstanding\\u2014 whether the second section of the Bill of Rights justifies the publication of anarchistic propaganda.\\nThe Superior Court is advised to overrule the demurrer and to enter judgment pursuant to the stipulation.\\nIn this opinion Gager, Curtis and Burpee, Js., concurred.\"}"

conn/3963450.json

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+"{\"id\": \"3963450\", \"name\": \"STATE OF CONNECTICUT v. YOMAR FANA\", \"name_abbreviation\": \"State v. Fana\", \"decision_date\": \"2008-10-03\", \"docket_number\": \"\", \"first_page\": \"936\", \"last_page\": \"936\", \"citations\": \"289 Conn. 936\", \"volume\": \"289\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T18:01:25.897118+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF CONNECTICUT v. YOMAR FANA\", \"head_matter\": \"STATE OF CONNECTICUT v. YOMAR FANA\\nDecided October 3, 2008\\nCharles F. Willson, special public defender, in support of the petition.\\nLeon F. Dalbec, Jr., senior assistant state\\u2019s attorney, in opposition.\", \"word_count\": \"50\", \"char_count\": \"325\", \"text\": \"The defendant's petition for certification for appeal from the Appellate Court, 109 Conn. App. 797 (AC 27642), is denied.\"}"

conn/4003479.json

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+"{\"id\": \"4003479\", \"name\": \"RUSSO ROOFING, INC. v. NAOMI ROTTMAN\", \"name_abbreviation\": \"Russo Roofing, Inc. v. Rottman\", \"decision_date\": \"2005-01-11\", \"docket_number\": \"AC 24044\", \"first_page\": \"767\", \"last_page\": \"777\", \"citations\": \"86 Conn. App. 767\", \"volume\": \"86\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T21:03:54.488973+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"RUSSO ROOFING, INC. v. NAOMI ROTTMAN\", \"head_matter\": \"RUSSO ROOFING, INC. v. NAOMI ROTTMAN\\n(AC 24044)\\nLaveiy, C. J., and McLachlan and Berdon, Js.\\nArgued April 28, 2004\\nofficially released January 11, 2005\\nGregory P. Lynch, with whom, on the brief, was J. Kevin Golger, for the appellant-appellee (defendant).\\nBernard Pellegrino, for the appellee-appellant (plaintiff).\", \"word_count\": \"2795\", \"char_count\": \"17167\", \"text\": \"Opinion\\nBERDON, J.\\nThese appeals stem from the trial court's judgment of strict foreclosure of a mechanic's hen, which the plaintiff, Russo Roofing, Inc., filed on the property of the defendant, Naomi Rottman. On appeal, the defendant claims that the court failed to award her (1) compensation on her counterclaim for damage to the interior of her home and (2) attorney's fees. On cross appeal, the plaintiff claims that the court improperly denied its claim for attorney's fees pursuant to General Statutes \\u00a7 52-249. We agree with the claims raised by both parties and reverse the judgment of the trial court in part.\\nThe court found the following facts. On September 11, 2000, the parties entered into a written contract in which the plaintiff agreed to replace the roofs on the defendant's house and garage for the sum of $18,000. While the work was in progress, the defendant orally agreed to pay the plaintiff an additional $1040 for the replacement of additional underlying plywood. When the work was completed, the defendant gave the plaintiff a check for $18,000. The defendant withheld $1040 to ensure payment to her neighbor for the ice and water shields the plaintiff borrowed to complete the work on her roofs. Rain fell the day after the roofs were completed. Due to the improper installation of the roof, a substantial amount of water entered the defendant's house. The defendant stopped payment on the check that she had given to the plaintiff.\\nThe plaintiff subsequently filed a mechanic's lien on the defendant's property, seeking the $19,040 it claims to be the value of the materials and labor it furnished. The plaintiff then brought this action, seeking to foreclose the mechanic's lien. The defendant filed an answer, special defenses and a two count counterclaim, alleging that she was harmed because (1) the plaintiffs work was improperly performed and (2) as a result of the faulty work, the interior of her house was damaged. The parties agreed to have the court first decide the issues of liability and damages. The court would then decide the issues of attorney's fees and foreclosure.\\nIn the first of two memoranda of decision, the court initially found that the contract price of $18,000, along with the oral agreement between the parties for an additional $1040, was the maximum that the plaintiff could recover under the mechanic's lien. The court then found that the repair work that needed to be done on the defendant's roofs was due to the \\\"unworkmanlike manner in which the plaintiff replaced the roof.\\\" On the basis of the testimony of the defendant's expert witness, the court found that the reasonable cost to repair or replace the roof was $15,974. The court awarded a net sum of $3066 to the plaintiff, which represented the difference between $19,040, the amount that the defendant agreed to pay the plaintiff for replacing the roof, and $15,974, the cost to repair the plaintiffs work. The court did not award the defendant any compensation for the damage to the interior of her house because it ruled that her claim was pleaded improperly in the counterclaim.\\nAt the bifurcated trial, the plaintiff claimed that it was entitled to attorney's fees pursuant to \\u00a7 52-249 and that if the defendant was awarded attorney's fees, such an award would be governed by General Statutes \\u00a7 42-150bb. The defendant agreed that the amount of her attorney's fees should be governed by \\u00a7 42-150bb. The defendant, however, claimed that \\u00a7 52-249 did not apply to the plaintiff and that an award of attorney's fees to the plaintiff should be governed by General Statutes \\u00a7 42-150aa.**\\nIn its second memorandum of decision, the court ruled that \\u00a7 42-150aa controlled the plaintiffs recovery of attorney's fees and awarded the plaintiff $459.90. The court then determined that \\u00a7 42-150bb controlled the defendant's recovery of attorney's fees, but because the defendant had failed to prosecute her counterclaim successfully, she was not entitled to any recovery. These appeals followed.\\nI\\nThe defendant first claims that the court improperly failed to award her compensation on her counterclaim for the damage to the interior of her house because such damage was not alleged in her counterclaim. We agree.\\nThe court, while acknowledging that the plaintiff did not object to the introduction of the evidence concerning the damage to the interior of the defendant's house, ruled that it was not awarding the defendant compensation for the damage because \\\"[n]owhere in the defendant's answer, special defenses or counterclaims has any interior damage to the structure been pleaded.\\\" Therefore, the court concluded that the plaintiff was not on notice that the defendant was claiming that the water that entered her house had damaged the interior of the house.\\nIt is clear that the defendant's counterclaim sought compensation for the damage to the interior of her house. Therefore, the court improperly found that the defendant's counterclaim did not put the plaintiff on notice that she was seeking compensation for the damage to the interior of her house.\\n\\\"[T]he inteipretation of pleadings is always a question of law for the court . . . .\\\" (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 265 Conn. 79, 104, 828 A.2d 31 (2003). Therefore, our review of the trial court's inteipretation of the pleadings is plenary. Id.\\n\\\"The modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988), and cases cited therein. Although essential allegations may not be supplied by conjecture or remote implication; Cahill v. Board of Education, [198 Conn. 229, 236, 502 A.2d 410 (1985)] the [counterclaim] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. Price v. Bouteiller, 79 Conn. 255, 257, 64 A. 227 (1906). As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the [counterclaim] is insufficient to allow recovery.\\\" (Internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002).\\nThe court found that although the defendant pleaded that water entered her house, \\\"the counterclaims only provide that [a]s a result of the aforesaid, the defendant has been required to procure the services of other workmen to temporarily repair the roof, and will be required in the future to further repair and/or replace the work performed by [the] plaintiff. As a result of the aforesaid, [the] defendant has been damaged.\\\" The court, therefore, found that the pleading did not allege damage to the interior of the defendant's house. That reading of the defendant's counterclaim is unduly narrow.\\nIn construing the allegations liberally, as we must, a broad and realistic interpretation of the defendant's counterclaim, read in its entirety, put the plaintiff on notice that the defendant was seeking compensation for the damage to the interior of her house. Paragraph six of the second count of the defendant's counterclaim states: \\\"At that time, [the] defendant discovered water cascading down the first floor center stairway (of a three-story house), and upon further inspection discovered other areas where water was flowing into the house.\\\" Paragraph seven states: \\\"The infiltration of water into the house would not have occurred if [the] plaintiff had properly installed the new roof.\\\" Finally, paragraph nine of the second count of the defendant's counterclaim states: \\\"As a result of the aforesaid, [the] defendant has been damaged.\\\" Reading paragraphs six, seven and nine of the second count of the counterclaim together, we conclude that the counterclaim clearly alleged that the defendant was seeking compensation for the damage to the interior of her house. Therefore, the plaintiff was on notice of the defendant's claim of compensation for the damage to the interior of her house. Accordingly, because the defendant's counterclaim, when read as a whole, cannot be said to have caused the plaintiff surprise or prejudice, the court's decision not to address the counterclaim was improper. On remand, the court should calculate the additional amount of damages owed to the defendant.\\nII\\nThe defendant next claims that the court failed to award her attorney's fees on her counterclaim. We agree.\\nThe defendant sought to recover attorney's fees pursuant to \\u00a7 42-150bb. The court found that the defendant was not entitled to any attorney's fees under \\u00a7 42-150bb because \\\"the defendant did not successfully prosecute her counterclaim or defend an action based upon the contract.\\\" The court's ruling was based on its earlier ruling that the defendant owed the plaintiff $3066 under the contract.\\n\\\"The common law rule in Connecticut, also known as the American Rule, is that attorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.\\\" (Internal quotation marks omitted.) Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 532, 839 A.2d 1250 (2004). Section 42-150bb, however, provides in relevant part that whenever a contract \\\"to which a consumer is a party, provides for the attorney's fee of the commercial party to be paid by the consumer, an attorney's fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim . . . .\\\" (Emphasis added.) The defendant successfully prosecuted her counterclaim, and the court awarded her damages in the amount of $15,974. The court, therefore, improperly failed to award the defendant attorney's fees under \\u00a7 42-150bb based on her counterclaim.\\nIll\\nIn its cross appeal, the plaintiff claims that the court improperly denied its claim for attorney's fees pursuant to \\u00a7 52-249. We agree.\\nThe court rejected the plaintiffs claim that it was entitled to attorney's fees pursuant to \\u00a7 52-249. The court stated that because the contract provided for the payment of attorney's fees, it did not have to address the applicability of \\u00a7 52-249. Thereafter, relying on our Supreme Court's decision in Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 689 A.2d 1097 (1997), the trial court awarded the plaintiff, pursuant to \\u00a7 42-150aa (b), $459.90 in attorney's fees, 15 percent of the amount the defendant owed the plaintiff.\\n\\\"The question of whether a particular statute . . . applies to a given state of facts is a question of statutory interpretation . Statutoiy interpretation presents a question of law for the court. . . . Our review is, therefore, plenary.\\\" (Citation omitted; internal quotation marks omitted.) Original Grasso Construction Co. v. Shepherd, 70 Conn. App. 404, 418, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002).\\nSection 42-150aa (b), which applies to attorney's fees in actions based on consumer contracts, provides in relevant part: \\\"If a lawsuit in which money damages are claimed is commenced by an attorney who is not a salaried employee of the holder of a contract . . . such holder may receive or collect attorney's fees, if not otherwise prohibited by law, of not more than fifteen per cent of the amount of any judgment which is entered.\\\" (Emphasis added.) In this case, the plaintiffs attorney, who was not a salaried employee, initiated the underlying proceedings. Accordingly, under \\u00a7 42-150aa (b), the plaintiffs recovery of attorney's fees was limited to 15 percent of the amount of the judgment entered.\\nSection 52-249 (a), however, which applies to an action of foreclosure of a lien, \\\"mandates that the plaintiff in a foreclosure action shall be allowed reasonable attorney's fees when there has been a hearing as to the form of judgment during the foreclosure action.\\\" (Internal quotation marks omitted.) Id., 419. Accordingly, under \\u00a7 52-249 (a), the plaintiff was entitled to reasonable attorney's fees on the foreclosure action.\\nA literal interpretation of \\u00a7 42-150aa and 52-249 would award the plaintiff duplicate attorney's fees. That, however, is not this case. Attorney's fees under \\u00a7 42-150aa would be for the contract aspects of the action, and attorney's fees under \\u00a7 52-249 would be for the foreclosure aspects of the action. \\\"[A] foreclosure action constitutes an equitable proceeding. . In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done.\\\" (Internal quotation marks omitted.) Moasser v. Becker, 78 Conn. App. 305, 324, 828 A.2d 116, cert. denied, 266 Conn. 910, 832 A.2d 70 (2003). On remand, therefore, the court should take into account the attorney's fees that it awards the plaintiff under \\u00a7 42-150aa in fashioning its award of attorney's fees under \\u00a7 52-249.\\nThe judgment is reversed only as to the limitation on the defendant's damages and the award of attorney's fees, and the case is remanded for further proceedings consistent with this opinion.\\nIn this opinion the other judges concurred.\\nSee footnote 3.\\nGeneral Statutes \\u00a7 49-36 (a) provides: \\\"No mechanic's lien may attach to any building or its appurtenances, or to the land on which the same stands, or any lot, or any plot of land, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for the building and its appurtenances or the development of any such lot, or the development of any such plot of land.\\\"\\nGeneral Statutes \\u00a7 52-249 (a) provides in relevant part: \\\"The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorney's fee, as if there had been a hearing on an issue of fact. . . .\\\"\\nGeneral Statutes \\u00a7 42-150bb provides in relevant part: \\\"Whenever any contract . . . entered into on or after October 1,1979, to which a consumer is a party, provides for the attorney's fee of the commercial party to be paid by the consumer, an attorney's fees shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract . Except as herein provided, the size of the attorney's fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. . . . The provisions of this section shall apply only to contracts . in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.\\\"\\nGeneral Statutes \\u00a7 42-150aa (b) provides: \\\"If a lawsuit in which money damages are claimed is commenced by an attorney who is not a salaried employee of the holder of a contract or lease subject to the provisions of this section, such holder may receive or collect attorney's fees, if not otherwise prohibited by law, of not more than fifteen per cent of the amount of any judgment which is entered.\\\"\\nFurthermore, the plaintiffs failure to object to the offer of evidence by the defendant also would be dispositive of the defendant's claim. As the court noted in its memorandum of decision, the plaintiff never objected during the trial as to the adequacy of the defendant's counterclaim or the admissibility of the evidence regarding the damage to the interior of the defendant's house because it was not properly pleaded. \\\"[T]he proper way to attack a variance between pleadings and proof is by objection at the trial to the admissibility of that evidence which varies from the pleadings, and failure to do so at the trial constitutes a waiver of any objection to such variance.\\\" (Internal quotation marks omitted.) Tedesco v. Stamford, 215 Conn. 450, 461, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev'd, 222 Conn. 233, 610 A.2d 574 (1992). Because the plaintiff never raised an objection as to a variance between the pleadings and the evidence, any insufficiency in the pleading was waived, and the court should have addressed the defendant's counterclaim.\\nUnder the terms of the contract, the defendant agreed to \\\"pay all accrued interest, collection costs and reasonable attorney fees in the event of nonpayment of this contract.\\\" (Emphasis added.)\\nIn Rizzo Pool Co. v. Del Grosso, supra, 240 Conn. 77 n.18, our Supreme Court stated: \\\"[WJhenever there is an attorney's fees clause in the commercial party's contract, that clause is subject to [General Statutes] \\u00a7 42-150aa, and the contract must be read as incorporating that provision's 15 percent limitation.\\\"\"}"

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+"{\"id\": \"4035343\", \"name\": \"BERNHARD-THOMAS BUILDING SYSTEMS, LLC v. CHET DUNICAN ET AL.\", \"name_abbreviation\": \"Bernhard-Thomas Building Systems, LLC v. Dunican\", \"decision_date\": \"2007-03-20\", \"docket_number\": \"AC 27465\", \"first_page\": \"63\", \"last_page\": \"80\", \"citations\": \"100 Conn. App. 63\", \"volume\": \"100\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T00:37:12.002899+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BERNHARD-THOMAS BUILDING SYSTEMS, LLC v. CHET DUNICAN ET AL.\", \"head_matter\": \"BERNHARD-THOMAS BUILDING SYSTEMS, LLC v. CHET DUNICAN ET AL.\\n(AC 27465)\\nSchaller, Gruendel and Mihalakos, Js.\\nArgued November 16, 2006\\nofficially released March 20, 2007\\nAlan R. Spirer, for the appellant (plaintiff).\\nRichard A. Roberts, with whom was Jennifer J. Cavalier, for the appellee (defendant Jacques J. Parenteau).\", \"word_count\": \"5613\", \"char_count\": \"34564\", \"text\": \"Opinion\\nSCHALLER, J.\\nThe plaintiff, Bemhard-Thomas Building Systems, LLC, appeals from the judgment of the trial court rendered in favor of the defendant Jacques J. Parenteau. On appeal, the plaintiff claims that the court improperly struck four counts of its complaint. We affirm the judgment of the trial court.\\nIn its operative complaint, the plaintiff alleged the following facts that are relevant to the issues on appeal. The plaintiff employed Chet Dunican from April, 2002, until February, 2004, as an at-will employee. On December 19, 2003, the defendant, an attorney licensed to practice in Connecticut, filed an application for a prejudgment remedy on behalf of Dunican against the plaintiff in the amount of $3.5 million. The court, Leuba, J., held a hearing over the course of several days and on March 10, 2004, denied the application. Specifically, the court stated that it had applied the probable cause standard and concluded that Dunican had failed to sustain his burden with respect to any of his claims. Following the denial of the application for a prejudgment remedy, Dunican withdrew his claims against the plaintiff.\\nThe plaintiff commenced the present action and alleged that it had expended substantial attorney's fees in response to Dunican's application. The plaintiff filed a nine count complaint against both Dunican and the defendant. Counts five and six of the complaint alleged that the defendant had violated General Statutes \\u00a7 52-568 (1) and (2). Count seven set forth a cause of action for common-law vexatious litigation. Count eight alleged an abuse of process by the defendant. These counts were based on the defendant's filing of the application for a prejudgment remedy and sending a copy of the application to the Weitz Company, the plaintiffs largest client, in order \\\"to vex and trouble the [p]laintiff ' and \\\"to attempt to pressure the [p]laintiff to pay money\\\" to Dunican. The plaintiff further alleged that the defendant and Dunican indicated that if it refused to pay Dunican money, Dunican would reveal embarrassing information regarding \\\"members\\\" of the plaintiff and their families.\\nThe defendant moved to strike the counts against him by a motion filed August 24, 2005. On January 18, 2006, the court, Hon. David W. Skolnick, judge trial referee, granted the motion and struck the counts against the defendant. With respect to the claims of statutory and common-law vexatious litigation, the court concluded that an application for a prejudgment remedy did not constitute a civil action that terminated in favor of the plaintiff, a necessary element to the tort of vexatious litigation. With respect to the cause of action for abuse of process, the court stated that the allegations contained in the complaint failed to establish that the defendant's actions \\\"were in furtherance of a primary purpose other than to secure aprejudgment remedy. Rather, these allegations merely show that an ulterior motive existed.\\\"\\nPursuant to Practice Book \\u00a7 10-44, the defendant, on February 7, 2006, moved for judgment on the stricken counts against him. The court granted this motion, without objection, on February 27, 2006. This appeal followed. Additional facts will be set forth as necessaiy.\\nAs an initial matter, we identify the appropriate standard of review. \\\"Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the [defendants' motion] is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.\\\" (Internal quotation marks omitted.) Violano v. Fernandez, 88 Conn. App. 1, 4-5, 868 A.2d 69 (2005), aff'd, 280 Conn. 310, 907 A.2d 1188 (2006); see also Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006); Heim v. California Federal Bank, 78 Conn. App. 351, 358-59, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). We will address each of the stricken counts in turn.\\nI\\nThe plaintiff first claims that the court improperly struck counts five, six and seven of its operative complaint. Specifically, the plaintiff argues that the court improperly concluded that the application filed by the defendant on behalf of Dunican for a prejudgment remedy did not constitute a \\\"prior civil action,\\\" which is an element of vexatious litigation. We disagree.\\nWe begin our discussion by setting forth the elements of the common-law tort of vexatious litigation. Our Supreme Court has stated: \\\"In a malicious prosecution or vexatious litigation action, it is necessary to prove want of probable cause, malice and a termination of [the] suit in the plaintiffs' favor. . . . [.Establishing] a cause of action for vexatious suit requires proof that a civil action has been prosecuted not only without probable cause but also with malice. . It must also appear that the litigation claimed to be vexatious terminated in some way favorable to the defendant therein.\\\" (Citations omitted; emphasis added; internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 361, 773 A.2d 906 (2001); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 538, 457 A.2d 656 (1983); Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978); D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) \\u00a7 162, p. 432.\\nWe now identify the elements of statutory vexatious litigation. Section 52-568 provides: \\\"Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.\\\" This court has stated that \\\"[t]he elements of a common-law or statutory cause of action for vexatious litigation are identical.\\\" Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 596, 715 A.2d 807 (1998); see also Frisbie v. Morris, 75 Conn. 637, 639, 55 A. 9 (1903); Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn. App. 762, 766-67, 886 A.2d 1248 (2005); Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 89 Conn. App. 459, 467, 874 A.2d 266 (2005), aff'd, 281 Conn. 84, 912 A.2d 1019 (2007); Shurman v. Duncan, 14 Conn. Sup. 293, 294 (1946). The question, therefore, is whether the court properly concluded that a prejudg ment remedy is not a civil action for purposes of vexatious litigation.\\nAt the outset of our analysis, we note that this appears to be a question of first impression for the appellate courts of our state. We note, however, that prior cases, although not precisely on point with the present issue, provide us with guidance. For example, in Howard v. Robertson, 27 Conn. App. 621, 623, 608 A.2d 711 (1992), the plaintiff had refused to pay a balance owed to the defendant, who had constructed a house for her. The defendant filed a counterclaim and was awarded damages on February 3, 1986. Id. On January 10, 1989, the plaintiff filed an application for a prejudgment remedy and intended to file a petition for a new trial on the basis of her discovery of previously undetectable defects in her home. Id. Following a hearing, the court denied the application for a prejudgment remedy. Id. The plaintiff did not file the petition for a new trial until April 17, 1989, more than three years after the conclusion of the original trial. Id., 124.\\nThe defendant successfully moved for summary judgment on the ground that the petition for a new trial was filed outside of the applicable three year statute of limitations. Id. We affirmed the judgment. \\\"[A] writ of summons is a statutory prerequisite to the commencement of a civil action. . . . [I\\\\t is an essential element to the validity of the jurisdiction of the court. . . . Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiffs complaint must contain the basic information and direction normally included in a writ of summons. . A writ must contain a direction to a proper officer for service and a command to summon the defendant to appear in court. . . .\\n\\\"[T]he writ accompanying the prejudgment remedy documents did not specify a return date by which the defendant would have to file an appearance. This is a necessary component of a writ by which a civil action is commenced. General Statutes \\u00a7 52-45a. Although the documents served on the defendant were sufficient to give notice of a prejudgment remedy hearing, they were insufficient to serve as the basis for a petition for new trial. Contrary to the plaintiff s assertions, the prejudgment remedy documents are not the equivalent of the writ necessary pursuant to General Statutes \\u00a7 52-45a, and does not satisfy the requirements of General Statutes \\u00a7 52-582. Further, the language of General Statutes [\\u00a7 52-278c] (b) that the plaintiff is about to commence an action plainly indicates that the application for prejudgment remedy, together with the documents that accompany it, do not commence an action.\\\" (Citations omitted; emphasis added; internal quotation marks omitted.) Howard v. Robertson, supra, 27 Conn. App. 626-27.\\nWe subsequently applied the reasoning of Howard in Raynor v. Hickock Realty Corp., 61 Conn. App. 234, 763 A.2d 54 (2000). In that case, the plaintiff alleged that she was injured when she fell on property owned by the defendant. Id., 235. She initially sought and obtained a prejudgment remedy attaching the defendant's property. Id., 235-36. The plaintiff, however, did not file her civil action until February, 1998, more than two years after sustaining her injuries. The defendant successfully moved for summary judgment on the basis of the plaintiffs failure to commence her action within the statute of limitations. Id., 236. In affirming the decision of the trial court, we rejected the plaintiffs claim that Howard, was distinguishable. Id., 237-38. We noted the importance of a signed summons and complaint and stated that \\\"[t]he writ in order to be 'due process of law' must be signed by . . . a . . . commissioner of the Superior Court . . . or a . . . clerk of the court to which it is returnable.\\\" (Internal quotation marks omitted.) Id., 240; see also General Statutes \\u00a7 52-45a; Practice Book \\u00a7 8-1. We further concluded: \\\"The prejudgment remedy documents lacked a signed writ of summons and complaint. Therefore, the action was not 'commenced' within the meaning of \\u00a7 52-45a . . . .\\\" Raynor v. Hickock Realty Corp., supra, 242.\\nWe are further guided by precedent from our Supreme Court. In Feldmann v. Sebastian, 261 Conn. 721, 805 A.2d 713 (2002), the plaintiffs estate sought to recover damages on its claim for wrongful death and loss of consortium from two defendants who were members of the Mashantucket Pequot Tribal Nation (tribe). Id., 723. The defendants received tribal incentive payments, which were discretionary payments from the tribe to its members. Id. The plaintiff sought to attach those payments and have them turned over to a receiver. Id., 723-24. Our Supreme Court concluded that the type of prejudgment remedy sought by the plaintiff was not authorized by General Statutes \\u00a7 52-278a (d). Feldmann v. Sebastian, supra, 727-28. The court also rejected the plaintiffs argument that such a remedy was authorized by General Statutes \\u00a7 52-504, which provides in relevant part: \\\"When any action is brought to or pending in the superior court in which an application is made for the appointment of a receiver, any judge of the superior court, when such court is not in session, after due notice given, may make such order in the action as the exigencies of the case may require, and may, from time to time, rescind and modify any such order. . . .\\\" Our Supreme Court concluded that applying for a prejudgment remedy did not commence an action, and therefore, \\u00a7 52-504 was inapplicable. Feldmann v. Sebastian, supra, 729-30. \\\"It is well settled that a civil action is brought on the date on which the writ of summons is served on the defendant. . . . An application for a prejudgment remedy, which is not equivalent to a writ of summons and complaint, does not commence an action. \\\" (Citations omitted; emphasis added; internal quotation marks omitted.) Id.; see also Hillman v. Greenwich, 217 Conn. 520, 524-25, 587 A.2d 99 (1991) (noting importance of signed writ of summons to commence civil action).\\nWe find further support for our conclusion in the text of the prejudgment remedy statutes, \\u00a7 52-278a et seq. For example, \\u00a7 52-278c (b), which sets forth the form that the application for a prejudgment remedy should take, provides in relevant part that the plaintiff \\\"is about to commence an action against\\\" the defendant. This language indicates that the prejudgment remedy application is something that precedes, and, therefore; is not the equivalent of, the commencement of a civil action. See, e.g., Cahaly v. Benislar Property Exchange Trust Co., 268 Conn. 264, 272-73, 842 A.2d 1113 (2004) (under clear language of \\u00a7 52-278c [b], application for prejudgment remedy is not stand-alone pleading); E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628, 356 A.2d 893 (1975) (prejudgment remedy auxiliary to cause of action alleged); Howard v. Robertson, supra, 27 Conn. App. 626-27; see also 2 E. Stephenson, Connecticut Civil Procedure (3d Ed. 2002) \\u00a7 104, p. 2 (\\\"[pjrejudgment remedies are ancillary to the main action for damages and cannot exist without such action\\\").\\nMoreover, if a subsequent civil action is not commenced within thirty days of a successful application for a prejudgment remedy, then \\\"the court shall dismiss the prejudgment remedy.\\\" General Statutes \\u00a7 52-278j (a). This indicates that the failure to commence the civil action is a process separate and distinct from the initial step of obtaining a prejudgment remedy. Additionally, subsection (c) of \\u00a7 52-278j provides that \\\"[a]n application for a prejudgment remedy or a prejudgment remedy which is granted but not served may be withdrawn in the same manner as a civil cause of action.\\\" (Emphasis added.) We conclude, therefore, that the text of these statutory subsections indicate a difference between an application for a prejudgment remedy and a civil action.\\nApplying these principles to the present situation, we conclude that the defendant's application for a prejudgment remedy did not commence a civil action and, therefore, could not form the basis for the plaintiffs claim of vexatious litigation. In reviewing the application for a prejudgment remedy filed by the defendant on behalf of Dunican, we note that there was an affidavit in support of the application, an order of notice and hearing, a summons to appear in court regarding the prejudgment application, order, writ of garnishment and attachment, an unsigned three count complaint, an unsigned statement of the amount in demand, and a recognizance and motion for disclosure. These documents complied with \\u00a7 52-278c. Our examination reveals, however, that although the defendant's actions satisfy the requirements of a proper request for a prejudgment remedy, the necessary steps to commence a civil action are absent. Notably, there was no service of a signed writ of summons and complaint, and, therefore, a civil action was not commenced in the underlying proceedings. Accordingly, the court properly struck counts five through seven of the plaintiffs complaint because they failed to allege an element of the tort of vexatious litigation.\\nII\\nThe plaintiff next claims that the court improperly struck the eighth count of its amended complaint. Specifically, it argues that the court improperly concluded that the claims for abuse of process were not predicated on \\\"specific misconduct intended to cause specific injuiy outside the normal contemplation of private litigation.\\\" We disagree.\\nIn its complaint, the plaintiff alleged that the defendant and Dunican sent a copy of the prejudgment remedy application to the Weitz Company, the plaintiffs largest client, and threatened to disclose publicly embarrassing information about the members of the plaintiff and their families. The plaintiff further claimed that these actions were done to induce the plaintiff to pay money to both Dunican and the defendant.\\n\\\"An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed. . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, \\u00a7 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . Comment b to \\u00a7 682 explains that the addition of [the word] primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant. See also 1 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) \\u00a7 4.9; R. Mallen & V. Levit, Legal Malpractice (2d Ed. 1981) \\u00a7 61; W. Prosser & W. Keeton, Torts (5th Ed. 1984) \\u00a7 121.\\\" (Emphasis in original; internal quotation marks omitted.) Wilson v. Jefferson, 98 Conn. App. 147, 164-65, 908 A.2d 13 (2006); see also Larobina v. McDonald, 274 Conn. 394, 403-404, 876 A.2d 522 (2005); Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987).\\nIn Mozzochi, our Supreme Court established a specific test to determine the scope of potential liability of an attorney for abuse of process arising out of his or her professional representation of the interest of his or her clients. The court noted that this cause of action competed against the policy of ensuring unfettered access to the courts. Mozzochi v. Beck, supra, 204 Conn. 494-95. In an effort to avoid adoption of \\\"rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues\\\"; (internal quotation marks omitted) id., 495; our Supreme Court concluded that \\\"although attorneys have a duty to their clients and to the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise to a third party action for abuse of process unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation. Any other rule would ineluctably interfere with the attorney's primary duty of robust representation of the interests of his or her client.\\\" Id., 497. The court concluded that the plaintiffs general allegation to \\\"inflict injury on the plaintiff and to enrich themselves and their said client\\\" failed to \\\"satisfy the requirement of showing the use of legal process primarily to accomplish a purpose for which it is not designed . . . .\\\" (Emphasis in original; internal quotation marks omitted.) Id.\\nThe operative complaint filed in the present case failed to allege that the defendant used legal process, the application for a prejudgment remedy, primarily to accomplish a purpose for which it is not designed. \\\"The purpose of the prejudgment remedy of attachment is security for the satisfaction of the plaintiffs judgment, should he obtain one. . It is primarily designed to forestall any dissipation of assets by the defendant and to bring [those assets] into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover . . . .\\\" (Emphasis in original; internal quotation marks omitted.) Morris v. Cee Dee, LLC, 90 Conn. App. 403, 412, 877 A.2d 899, cert. granted on other grounds, 275 Conn. 929, 883 A.2d 1245 (2005) (appeal withdrawn March 13, 2006); see also Gagne v. Vaccaro, 80 Conn. App. 436, 452, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A. 2d 881 (2004). The complaint contains no allegation that the application for a prejudgment remedy was used to alert the Weitz Company to the plaintiffs conduct with respect to Dunican or Dunican's potential claims against the plaintiff. Moreover, the complaint does not allege that the prejudgment remedy was used so that Dunican would be able to reveal embarrassing information. See Lewis Truck & Trailer, Inc. v. Jandreau, 11 Conn. App. 168, 170-71, 526 A.2d 532 (1987). These allegations, if proven, might show an ulterior, perhaps even malicious, motive associated with an application for a prejudgment remedy. The complaint, however, failed to allege that the primary or ultimate purpose of filing the application was to effectuate these actions. We agree with the trial court's conclusion that the allegations that the defendant \\\"sent notice of the prejudgment remedy application to the Weitz Company and threatened to disclose embarrassing information, when viewed in [their] most favorable light, do not establish that [the defendant's] actions were in furtherance of a primary purpose other than to secure a prejudgment remedy. Rather, these allegations merely show that an ulterior motive existed [and therefore were insufficient] to constitute a cause of action for abuse of process.\\\" (Internal quotation marks omitted.) Accordingly, we conclude that the court properly struck count eight of the plaintiff's amended complaint.\\nThe judgment is affirmed.\\nIn this opinion the other judges concurred.\\nThe named defendant in this action, Chet Dunican, is not a party to this appeal. We therefore refer to Parenteau as the defendant in this opinion.\\nThe plaintiff commenced this action on November 23, 2004. In response to a request to revise, the plaintiff filed an amended complaint on February 8, 2005, and a \\\"partial revision of complaint\\\" on August 11, 2005.\\nThe operative complaint contained nine counts. The first four counts were directed against Dunican, and the last five counts were directed against the defendant. The ninth count of the operative complaint alleged that the defendant had violated the Connecticut Unfair Trade Practices Act, General Statutes \\u00a7 42-110a et seq. The court struck that count, and the plaintiff has not challenged that decision on appeal.\\n\\\"A judgment that disposes of only a part of a complaint is not a final judgment. . . . Our rules of practice, however, set forth certain circumstances under which a party may appeal from a judgment disposing of less than all of the counts of a complaint. Thus, a party may appeal if the partial judgment disposes of all causes of action against a particular party or parties; see Practice Book \\u00a7 61-3 . . . .\\\" (Internal quotation marks omitted.) Rino Gnesi Co. v. Sbriglio, 98 Conn. App. 1, 7-8, 908 A.2d 1, cert. denied, 280 Conn. 945, 912 A.2d 480 (2006); see also McCoy v. New Haven, 92 Conn. App. 558, 560 n.1, 886 A.2d 489 (2005). Here, there is a final judgment because all of the causes of action against the defendant were disposed of.\\n\\\"Practice Book \\u00a7 10-44 provides in relevant part that [w]ithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . As a general rule, [t]he filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading. . . . Accordingly, a party has two mutually exclusive options: A party may file either an amended pleading, thereby waiving the right to challenge the striking of the initial complaint; or a party may appeal from the judgment rendered regarding the initial stricken complaint.....The choice is left to the plaintiff, but once he files an amended pleading the ruling on the [original motion to strike] ceases to be an issue. The rule is a sound one, as it serves to prevent the prolongation of litigation.\\\" (Citations omitted; internal quotation marks omitted.) Parker v. Ginsburg Development CT, LLC, 85 Conn. App. 777, 780, 859 A.2d 46 (2004); see also Bross v. Hillside Acres, Inc., 92 Conn. App. 773, 777-78, 887 A.2d 420 (2006).\\nThe plaintiff argues that even if we were to conclude that an application for a prejudgment remedy is not a civil action in the context of the tort of common-law vexatious litigation, the language of General Statutes \\u00a7 52-568 requires a different result for statutory vexatious litigation. Section 52-568 is applicable to \\\"[a]ny person who commences and prosecutes any civil action or complaint against another . . . .\\\" (Emphasis added.) The plaintiff contends that the inclusion of the phrase \\\"or complaint against another\\\" evidences a legislative intent to enlarge the scope of the statutory cause of action when compared to the common-law action. In support, the plaintiff refers to the tenet of statutory construction that the legislature does not enact meaningless provisions. See Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 216-17, 901 A.2d 673 (2006); Blasko v. Commissioner of Revenue Services, 98 Conn. App. 439, 453, 910 A.2d 219 (2006).\\nThe plaintiff, however, has failed to demonstrate why the phrase \\\"or complaint, against another\\\" applies to an application for a prejudgment remedy. As this court recently noted, \\\"[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.\\\" (Internal quotation marks omitted.) State v. Diaz, 94 Conn. App. 582, 593, 893 A.2d 495, cert. denied, 280 Conn. 901, 907 A.2d 91 (2006). In other words, the plaintiff has not included the necessary analysis connecting the general legal principle, that every word in a statute has some meaning, to its conclusion that a prejudgment remedy hearing \\\"should, at the very least, be characterized as a 'complaint against another' within the meaning of \\u00a7 52-568.\\\" This missing analysis, therefore, constitutes inadequate briefing. As a result, we decline to review this claim. \\\"[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.\\\" (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 452, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006); see also Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004).\\nGeneral Statutes \\u00a7 52-278a (d) defines a prejudgment remedy as \\\"any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order.\\\" See also Feldmann v. Sebastian, 261 Conn. 721, 726-27, 805 A.2d 713 (2002); Rhode Island Hospital Trust National Bank v. Trust, 25 Conn. App. 28, 30-31, 592 A.2d 417, cert. granted on other grounds, 220 Conn. 904, 593 A.2d 970 (1991) (appeal withdrawn July 10, 1992).\\nWe have stated that the \\\"adjudication made by the court on the application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiffs cause of action. It is independent of and collateral thereto and primarily designed to forestall any dissipation of assets by the defendant. . . . [Pjrejudgment remedy proceedings . . . are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication.\\\" (Internal quotation marks omitted.) Orsini v. Tarro, 80 Conn. App. 268, 272-73, 834 A.2d 776 (2003); see also Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 230, 901 A.2d 1164 (2006); Tyler v. Schnabel, 34 Conn. App. 216, 219, 641 A.2d 388 (1994); Cahaly v. Benistar Property Exchange Trust Co., 73 Conn. App. 267, 274, 812 A.2d 1 (2002) (\\\"purpose of the prejudgment remedy of attachment is security for the satisfaction of the plaintiffs judgment, should he obtain one\\\" [emphasis in original; internal quotation marks omitted]), rev'd on other grounds, 268 Conn. 264, 842 A.2d 1113 (2004).\\nIn Board of Education v. Tavares Pediatric Center, 276 Conn. 544, 888 A.2d 65 (2006), our Supreme Court explained that \\\"the term civil action . . . has been defined in the broader . . . context of title 52 of the General Statutes. General Statutes \\u00a7 52-91 provides in relevant part that [t]here shall be one form of civil action. The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought. . . . Another provision of title 52 correspondingly defines a civil action, without equivocation, as 'be[ing] commenced by legal process . . . .' General Statutes \\u00a7 52-45a. . We correspondingly have concluded that a proceeding is not a civil action when it is neither commenced by service of process nor controlled by rules of pleading.\\\" (Emphasis added; internal quotation marks omitted.) Id., 557-58.\\nThe Superior Court has held on several occasions that the denial of a prejudgment remedy application does not constitute the termination of a prior civil action upon which a lawsuit for vexatious litigation may be based. See Savitt v. Condon & Olderman Realty, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-01-073254-S (October 31,2002) (33 Conn. L. Rptr. 325); Wisnioski v. Ladizki, Superior Court, judicial district of Hartford, Docket No. CV-00-0597336-S (October 4, 2001) (30 Conn. L. Rptr. 474); Delugan v. Allen, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-96-0563950-S (April 3, 1997); Knickerbocker v. Village Apartments Properties, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-92-0058389 (September 23,1992) (7 Conn. L. Rptr. 414); Dinnis v. Roberts, Superior Court, judicial district of New Haven, Docket No. CV-90-296974-S (January 3, 1991) (3 Conn. L. Rptr. 638); see also Boyko v. UST Bank/Connecticut, Superior Court, judicial district of Fairfield, Docket No. CV-95-327711-S (March 11, 1996) (court struck offer of judgment served with application for prejudgment remedy because such application does not commence action nor is considered civil action for purposes of General Statutes \\u00a7 52-192a [a]); see 52 Am. Jur. 2d 153, Malicious Prosecution \\u00a7 20 (2000).\\nOur Supreme Court has recognized the significance of the signing of a complaint. \\\"The subject of signing and issuing process in civil actions is one of consequence. Such signing is one of the processes of law by which a man may be deprived of his liberty and property. It is carefully guarded. It is not to be done indiscriminately. . . . The signing of a writ by a person as a commissioner of the Superior Court is not a mere ministerial act. . . . The canons of professional ethics require that a lawyer decline to institute an action if he is convinced that it is intended to harass or ipjure the opposite party or work an oppression or wrong.\\\" (Citations omitted.) Sharkiewicz v. Smith, 142 Conn. 410, 412-13, 114 A.2d 691 (1955); see Practice Book \\u00a7 4-2 (b).\\nGeneral Statutes \\u00a7 52-45a provides that \\\"[c]ivii actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiffs complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.\\\" (Emphasis added.)\\nPractice Book \\u00a7 8-1 (a) provides in relevant part: \\\"Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiffs complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable. . . .\\\"\\nIt appears unclear whether the acts alleged in the complaint, i.e., sending a copy of the complaint to the Weitz Company and Dunican's threats to reveal embarrassing information even constitute the use of a legal process. See, e.g., Larobina v. McDonald, supra, 274 Conn. 404-407. Although the defendant discussed this issue at oral argument, he failed to brief this claim. We therefore decline to afford it consideration. See Legnos v. Legnos, 70 Conn. App. 349, 350 n.1, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002); see also State v. Webb, 238 Conn. 389, 468 n.56, 680 A.2d 147 (1996), aff'd after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000).\"}"

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+"{\"id\": \"4057527\", \"name\": \"STATE OF CONNECTICUT v. ANTWON W.\", \"name_abbreviation\": \"State v. Antwon W.\", \"decision_date\": \"2009-12-01\", \"docket_number\": \"AC 28150\", \"first_page\": \"180\", \"last_page\": \"202\", \"citations\": \"118 Conn. App. 180\", \"volume\": \"118\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T01:00:20.859908+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF CONNECTICUT v. ANTWON W.\", \"head_matter\": \"STATE OF CONNECTICUT v. ANTWON W.\\n(AC 28150)\\nFlynn, C. J., and Harper and Hennessy, Js.\\nArgued September 10\\nofficially released December 1, 2009\\nNeal Cone, senior assistant public defender, for the appellant (defendant).\\nMichele C. Lukban, senior assistant state\\u2019s attorney, with whom, on the brief, were John A. Connelly, state\\u2019s attorney, and Patrick J. Griffin, senior assistant state\\u2019s attorney, for the appellee (state).\\nIn accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim\\u2019s identify may be ascertained. See General Statutes \\u00a7 54-86e.\", \"word_count\": \"7060\", \"char_count\": \"42054\", \"text\": \"Opinion\\nFLYNN, C. J.\\nThe defendant, Antwon W., appeals from the judgment of conviction, rendered following a jury trial, of one count of sexual assault in the third degree in violation of General Statutes \\u00a7 53a-72a (a) (1) (A), three counts of sexual assault in the first degree in violation of General Statutes \\u00a7 53a-70 (a) (1), three counts of sexual assault in the first degree in violation of General Statutes \\u00a7 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes (Rev. to 2001) \\u00a7 53-21 (a) (2), as amended by Public Acts 2002, No. 02-138, \\u00a7 4. On appeal, the defendant claims that (1) his conviction of sexual assault in the first degree and risk of injury to a child constituted double jeopardy, (2) the trial court improperly allowed to be admitted constancy of accusation testimony, (3) the court improperly charged the jury with regard to constancy of accusation testimony, (4) the court improperly allowed to be admitted expert testimony and (5) the court improperly charged the jury with respect to the testimony of the state's expert witness in child sexual abuse. We affirm the judgment of the trial court.\\nThe jury reasonably could have found the following facts. In December, 2002, the victim, who was twelve years old, and her mother moved into a house occupied by the victim's uncle, aunt and cousins. At this time, the defendant, an eighteen year old son of the victim's uncle and aunt, did not reside at the house, but he visited frequently and spent time in the basement, where he played video games. About two weeks after the victim and her mother moved in, the victim was doing laundry in the basement when the defendant came downstairs (first incident). The defendant said to the victim: \\\"Do you do things like this?\\\" Subsequently, he pulled down his sweatpants, revealing his penis. The defendant, who stood between the victim and the stairway, then told the victim that he would not let her leave until she touched his penis. Scared and wanting to leave the area, the victim touched the defendant's penis briefly and then ran upstairs. The victim did not report the incident to anyone else immediately because she was scared and in shock.\\nApproximately one week later, the victim went downstairs to the basement and again encountered the defendant (second incident). The defendant grabbed the victim's collar and ordered her to bend over, indicating that he would not allow her to leave until she complied. The victim bent over, and the defendant pulled her pants down and penetrated her vagina with his penis, causing the victim to feel \\\"shocking pain\\\" and pressure. Although the victim did not scream or fight the defendant because she was scared, she did try \\\"tightening\\\" herself up to prevent the defendant's penetration. When the defendant had finished, the victim felt wetness and coldness on her vagina. The victim left the basement and proceeded upstairs to her bedroom. She did not reveal the incident to anyone light away because she was scared about what people might think of her and worried that the assault somehow was her fault.\\nBy the summer of 2003, the victim and her mother had moved out of the house belonging to the victim's uncle and aunt. However, the victim and her mother periodically returned to visit. On one of these visits in the summer of 2003, the victim was playing with her cousins in the swimming pool in the backyard. The victim became ill with a headache, and one of her cousins told her to go lie down in another cousin's room, which was located in the basement (third incident). The defendant entered the room and asked the victim: \\\"Which one?\\\" The victim asked what the defendant meant, and the defendant repeated the statement, pointing to the victim's vagina, anus and mouth. The victim understood the defendant to be asking either for her to \\\"touch him\\\" or to have the defendant \\\"put his penis inside\\\" her. Attempting to avoid the pain of penetration, the victim chose to touch the defendant, and the defendant lowered his pants. After the victim had touched the defendant's penis, the defendant turned the victim over onto her stomach and penetrated her vagina. The victim tensed up in an attempt to prevent the penetration, but she felt the same pain and pressure as she had experienced during the previous incident. When the defendant had finished, the victim felt the same wet feeling in her vaginal area. Following the assault, the defendant left the room, and the victim went to sleep. The victim again did not report the assault immediately, as she felt scared and thought no one would believe that the defendant, her cousin, would do such a thing.\\nOn another occasion during the summer of 2003, the victim was in an upstairs bedroom playing a game with one of her cousins (fourth incident). When the cousin left to go downstairs, the defendant entered the room and said to the victim, \\\"I'll pay you $13 if you suck my dick,\\\" and he showed the victim the money. The victim refused and said she would scream. The defendant replied that he would break her jaw. This threat scared the victim, and she placed her mouth on the defendant's penis. The defendant stood before the victim, who was seated on the bed, and placed his hands on her head, applying pressure and pushing her head up and down. The incident ended when the defendant heard someone coming up the stairs, and he put his penis back in his pants and sat down as if nothing had happened. Following the incident, the victim was scared and did not report it to anyone immediately.\\nIn January, 2004, the victim revealed the defendant's abuse to her cousin, T, her aunt, B, and her mother, S. S took the victim to the police department where she spoke with police officers and provided a statement. Thereafter, by way of a substitute long form information, the state charged the defendant with one count of sexual assault in the third degree in violation of \\u00a7 53a-72a (a) (1) (A), three counts of sexual assault in the first degree in violation of \\u00a7 53a-70 (a) (l), three counts of sexual assault in the first degree in violation of \\u00a7 53a-70 (a) (2) and one count of risk of injuiy to a child in violation of \\u00a7 53-21 (a) (2). Following trial, the jury found the defendant guilty of all counts. The court subsequently rendered a judgment of conviction and sentenced the defendant to an effective term of fifteen years incarceration and fifteen years of special parole. This appeal followed. Additional facts will be supplied where necessary.\\nI\\nDOUBLE JEOPARDY CLAIM\\nThe defendant first claims that his conviction of three counts of sexual assault in the first degree in violation of \\u00a7 53a-70 (a) (2) and one count of risk of injuiy to a child in violation of \\u00a7 53-21 (a) (2) constituted a violation of his constitutional right not to be placed in double jeopardy. Specifically, he argues that both statutes require that the defendant be more than two years older than the victim and that both statutes require proof that the defendant committed an act \\\"in a sexual and indecent manner likely to impair the morals\\\" of the victim.\\nThe defendant did not raise this claim before the trial court. He seeks review, therefore, pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Although the record is adequate for our review and the claim is of constitutional magnitude, the defendant cannot demonstrate that a constitutional violation clearly exists, and so his claim must fail. See id.\\nAs a preliminary matter, we set forth the standard of review and principles of law underlying the defendant's claim. A defendant's claim that a conviction violated his constitutional right against double jeopardy raises an issue of law; our review of such a claim is plenary. State v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009). The United States constitution contains the guarantee that \\\"[n]o person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb . . . .\\\" U.S. Const., amend. V. The fifth amendment's prohibition of double jeopardy applies to state prosecutions through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The double jeopardy clause protects against a second prosecution for the same offense following acquittal, a second prosecution for the same offense after conviction and multiple punishments for the same offense. State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007). It is the final protection that is implicated in the present case.\\nIn determining whether two offenses are the same offense for double jeopardy purposes, we apply a two part test. First, we must determine whether the offenses arose out of the same act or transaction. See State v. Alvaro F., 291 Conn. 1, 6, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009). Second, we must determine whether the charged crimes constitute the same offense. See id. Multiple punishments are a constitutional violation only where both conditions are met. Id.\\nTo determine whether the offenses in question arose out of the same acts or transactions, we examine the language of the information. See State v. Edwards, 100 Conn. App. 565, 593, 918 A.2d 1008, cert. denied, 282 Conn. 928, 929, 926 A.2d 666, 667 (2007). The substitute long form information charged the defendant in counts three, five and seven with sexual assault in the first degree in violation of \\u00a7 53a-70 (a) (2). In count three, the information alleged that \\\"between the dates of approximately December 2002 and February 2003, at or near the basement\\\" of the house of the victim's uncle and aunt, the defendant engaged in vaginal intercourse with the victim, who was under the age of thirteen, and the defendant was more than two years older than the victim at the time. Count three thus pertained to the second incident. Count five contained the same allegation as count three but specified that the act charged occurred \\\"on or about the summer of 2003, at or near the basement\\\" of the house of the victim's uncle and aunt. The act described by count five, therefore, was the third incident. The information alleged in count seven that the defendant, \\\"on or about the summer of 2003,\\\" engaged in sexual intercourse, namely, fellatio, at the house of the victim's uncle and aunt. Count seven also charged that the victim at the time was under thirteen and that the defendant was more than two years older than the victim. That count described the fourth incident between the victim and the defendant.\\nCount eight of the information alleged a violation of \\u00a7 53-21 (a) (2), specifying that \\\"on or about dates between approximately December 2002 and the summer of 2003, at or near [the house of the victim's uncle and aunt], the [defendant] did an act likely to impair the morals of a child, [the victim]: he had contact with the intimate parts of a child under the age of sixteen years of age and subjected a child under sixteen years of age to contact with his intimate parts, in a sexual and indecent manner likely to impair the morals of such child.\\\" Count eight thus pertained to the second, third and fourth incidents. The acts underlying the charges of sexual assault in the first degree in counts three, five and seven are the same acts underlying the charge of risk of injury to a child contained in count eight. The offenses in counts three, five, seven and eight, therefore, arose out of the same acts or transactions.\\nWe move thus to the second step in our double jeopardy analysis in which we must determine whether the charged crimes constitute the same offense. To make this determination, we apply the test enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Under Blockburger, \\\"where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.\\\" Id., 304. This technical test requires the court to examine only the statutes, charging instruments and bill of particulars rather than any of the evidence presented at trial. State v. Bletsch, supra, 281 Conn. 27-28.\\nTo convict the defendant of sexual assault in the first degree under \\u00a7 53a-70 (a) (2), the state must prove that (1) the defendant engaged in sexual intercourse with the victim, (2) the victim was under thirteen years old, and (3) the defendant was more than two years older than the victim. To convict the defendant of risk of injury to a child under \\u00a7 53-21 (a) (2), the state must prove that (1) the defendant had contact with the intimate parts of, or subjected to contact with his intimate parts, (2) a child under the age of sixteen, (3) in a sexual and indecent manner likely to impair the health or morals of the child. Our review of these statutes leads us to conclude that each statute requires proof of a fact that the other does not.\\nSection 53a-70 (a) (2) requires proof that the defendant engaged in sexual intercourse with the victim. Section 53-21 (a) (2) does not require such proof. See State v. Rivera, 84 Conn. App. 245, 249-50, 853 A.2d 554 (sexual assault in second degree in violation of General Statutes \\u00a7 53a-71 [a] [1] requires proof of sexual intercourse while risk of injury to child under \\u00a7 53-21 does not), cert. denied, 271 Conn. 934, 861 A.2d 511 (2004). Although the crime of risk of injury to a child requires that the defendant have contact with the victim's intimate parts, or subject the victim to contact with his intimate parts, it does not require the defendant to have sexual intercourse with the victim.\\nThe statutory crimes also contain different elements with regard to the age of the victim. Section 53a-70 (a) (2) requires proof that the victim was under age thirteen; \\u00a7 53-21 (a) (2) requires proof that the victim was under age sixteen. See State v. Morris, 49 Conn. App. 409, 419-20, 716 A.2d 897 (concluding victim age requirements of \\u00a7 53-21 and General Statutes \\u00a7 53a-73a [a] [1] [A] [under fifteen years of age] require proof of different facts for purposes of Blockburger), cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).\\nFurthermore, a conviction of risk of injury to a child under \\u00a7 53-21 (a) (2) requires proof that the contact be \\\"in a sexual and indecent manner likely to impair the health or morals\\\" of the victim. The state need not prove such an element to obtain a conviction of sexual assault in the first degree under \\u00a7 53a-70 (a) (2). See State v. Ellison, 79 Conn. App. 591, 601-602, 830 A.2d 812 (comparing \\u00a7 53-21 with \\u00a7 53a-71), cert. denied, 267 Conn. 901, 838 A.2d 211 (2003).\\nThe defendant's arguments that sexual assault in the first degree and risk of injury to a child constitute the same offense are unavailing. Contrary to the defendant's assertion, \\u00a7 53-21 (a) (2) does not contain a requirement that the defendant be two years older than the victim. In State v. Jason B., 248 Conn. 543, 565, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999), our Supreme Court addressed this issue, concluding that \\\"[t]he express language of \\u00a7 53-21 . . . does not require any consideration of the age of the defendant for the purposes of determining criminal liability.\\\" The court further noted it could discern no legislative intention to include such an age requirement for the defendant. Id. The defendant's argument that \\u00a7 53a-70 (a) (2) contains a requirement that the act in question be committed in a manner likely to impair the health or morals of the victim also is without merit. A plain reading of the statutory language reveals no such provision in the statute. Furthermore, our Supreme Court has stated that the requirement of \\u00a7 53-21 of a \\\"likelihood of impairment of the morals or health of a child, is not a necessary corollary of sexual intercourse.\\\" State v. McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982). This court has also determined that sexual assault in the second degree in violation of \\u00a7 53a-71 (a) (I) does not require proof that the contact was made in a sexual and indecent manner likely to impair the health or morals of the child. State v. Rivera, supra, 84 Conn. App. 249. Although the statute in question is different here, the analysis of Rivera applies to sexual assault in the first degree under \\u00a7 53a-70 (a) (2). On the basis of the foregoing analysis, we conclude that sexual assault in the first degree under \\u00a7 53a-70 (a) (2) and risk of injury to a child under \\u00a7 53-21 (a) (2) do not constitute the same offense, as each crime requires proof of a fact not required by the other. See Blockburger v. United States, supra, 284 U.S. 304.\\nFinally, our double jeopardy analysis concludes not with a comparison of the offenses but, instead, with consideration of legislative intent. Because the Blockburger test is a rule of statutory construction, it cannot control in the face of a clear indication of contrary legislative intent. State v. Alvaro F., supra, 291 Conn. 12. However, \\\"[w]hen the conclusion reached under Blockburger is that the two crimes do not constitute the same offense, the burden remains on the defendant to demonstrate a clear legislative intent to the contrary.\\\" Id., 12-13. The defendant has not met this burden, as his brief contains no analysis to demonstrate that the legislature did not intend the crimes described by \\u00a7 53a-70 (a) (2) and 53-21 (a) (2) to be separate offenses.\\nWe conclude that the defendant's claim fails under the third prong of Golding because the constitutional violation he alleges does not clearly exist. See State v. Golding, supra, 213 Conn. 240.\\nII\\nEVIDENTIARY CLAIMS\\nThe defendant next claims that the court improperly allowed to be admitted constancy of accusation and expert witness testimony. He argues that the admission of such testimony violated his right to a fair trial under the due process provisions of the fourteenth amendment to the United States constitution and article first, \\u00a7 8, of the constitution of Connecticut. We disagree.\\nA\\nThe following additional facts and procedural history are required for our review of the defendant's claim pertaining to constancy of accusation testimony. In January, 2004, the victim was speaking with her cousin, T, on the telephone. The victim told T, without providing further details, that the defendant had sexually assaulted her and told T that the information must remain a secret. T initiated a three way telephone conversation with the victim's aunt, B, and told the victim to tell her aunt what had happened. The victim complied, telling B what she had told T. The following day, the victim told her mother, S, about the assaults, explaining that the defendant had raped her. S took the victim to the police department, where the victim spoke with police officers and gave a statement.\\nPrior to trial, the defendant filed a motion in limine seeking to preclude any evidence of constancy of accusation, and defense counsel argued the motion prior to the state's offer of constancy of accusation witnesses. Defense counsel maintained that, in light of our Supreme Court's decisions in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), and State v. Samuels, 273 Conn. 541, 871 A.2d 1005 (2005), the theory behind the constancy of accusation doctrine was one that \\\"no longer really bears any weight as far as the real world is concerned.\\\" Defense counsel argued that allowing constancy of accusation testimony under the circumstances of the case would deny the defendant his right to a fair trial by placing an unfair burden on him because the lack of physical evidence rendered the trial a classic case of \\\" 'he said, she said' . . . .\\\" He asked the court, therefore, to prohibit all such testimony whatsoever.\\nThe court denied the defendant's motion, holding that the evidence was proper pursuant to State v. Troupe, supra, 237 Conn. 284, and \\u00a7 6-11 (c) of the Connecticut Code of Evidence. The court asked the prosecutor to identify beforehand any witness who was to provide constancy of accusation testimony and detailed the limiting instruction that it would give to the jury prior to any such testimony.\\nT, the victim's cousin, testified that she had a telephone conversation with the victim in either January, 2004, or 2005 during which the victim revealed that the defendant had raped her in the house belonging to the victim's uncle. T stated that the victim seemed reluctant and scared to tell T what had happened to her. T testified further that after the victim told her of the abuse, T called B, their aunt, thereby initiating a three way telephone conversation. B testified that she had spoken by telephone with the victim and T in a three way conversation in which the victim related that she had something to tell B, but that she was hesitant to do so. B testified that the victim eventually said that \\\"something had happened between her and [the defendant]\\\" and that she had been holding the information inside for a couple of months. B testified further that the victim told her that the defendant had \\\"taken her down [to] the basement and made her do some things to him\\\" that were sexual in nature and that this had occurred approximately four times. The victim's mother, S, testified that in January, 2004, the victim had told her that the defendant sexually assaulted her on three or four occasions in the house of the victim's uncle and aunt. Prior to each of these witnesses, the court instructed the jury as to the manner in which it could use the constancy of accusation testimony. Following S's testimony, the court again reviewed its limiting instruction with the jury.\\nThe defendant claims that the court improperly allowed to be admitted the testimony of the constancy of accusation witnesses. Adopting and reasserting the argument of trial defense counsel, the defendant maintains that admission of this testimony violated his right to a fair trial under both the federal and state constitutions. The introduction of constancy of accusation testimony for the purposes of corroborating the fact of a victim's complaint does not violate the constitutional fair trial rights of defendants in sexual assault cases. State v. Troupe, supra, 237 Conn. 305. The defendant's claim, therefore, is evidentiary in nature.\\nThe defendant preserved this claim for appeal by way of his motion in limine, argued outside the presence of the jury prior to the testimony of the first constancy of accusation witness, in which he distinctly raised the issue. See Practice Book \\u00a7 60-5. Our standard of review of an evidentiary claim depends on the function that the trial court is performing in issuing the challenged ruling. State v. Saucier, 283 Conn. 207, 219, 926 A.2d 633 (2007). When the admission of evidence is based on the court's interpretation of a rule of evidence, the question raised is a legal one and our review is plenary. Id., 218. \\\"For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review.\\\" Id. A court's decision to admit evidence premised on an accurate view of the law, however, we review for an abuse of discretion. Id., 218-19. The defendant here does not challenge the court's characterization of the testimony of T, B and S as constancy of accusation testimony. Rather, the defendant in effect argues that under the facts and circumstances of the present case, the court improperly allowed constancy of accusation testimony to be admitted. The claim, therefore, implicates the discretion of the court, and we review the defendant's claim to determine whether the court abused that discretion.\\nThe constancy of accusation doctrine traces its roots to the common-law concept of \\\"hue and cry\\\" whereby victims of violent crime were \\\"expected to cry out immediately and alert their neighbors that they had been violently assaulted.\\\" (Internal quotation marks omitted.) State v. Troupe, supra, 237 Conn. 294. In the context of sexual assault, evidence of a victim's \\\"hue and ciy\\\" was \\\"a necessary prerequisite for a court to hear a rape case\\\" such that a woman who had not so complained could not have her case prosecuted. Id. Until 1974 in Connecticut, the state was required to offer evidence corroborating a victim's claims to obtain a conviction for sexual assault. See, e.g., General Statutes (Rev. to 1969) \\u00a7 53a-68, which concerned certain sexual offenses and provided in relevant part: \\\"A person shall not be convicted of any offense under this part, or of an attempt to commit such offense, solely on the uncorroborated testimony of the alleged victim, except as hereinafter provided. Corroboration may be circumstantial. . . .\\\" The General Assembly repealed this requirement of corroboration in Public Acts 1974, No. 74-131. Despite the repeal of the corroboration requirement, in cases such as the present one, the state often seeks to offer evidence corroborating the victim's complaint of sexual abuse.\\nIn State v. Troupe, supra, 237 Conn. 293-306, our Supreme Court reviewed the state of the constancy of accusation doctrine from the common law to the present, reaffirming its basic elements. The court acknowledged that the necessity of the doctrine is to counter the \\\"unwarranted, but nonetheless persistent, view that a sexual assault victim who does not report the crime cannot be trusted to testify truthfully about the incident.\\\" Id., 303. The court detailed the rule, concluding that \\\"a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim's complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim's complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. . . . Thus, such evidence is admissible only to corroborate the victim's testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported.\\\" Id., 304-305; see also Conn. Code Evid. \\u00a7 6-11 (c).\\nTurning now to the facts of the present case, we do not conclude that the court abused its discretion in allowing the constancy of accusation testimony to be admitted. The testimony of T, B and S was preceded by the victim's testimony covering the facts of the assaults and the persons to whom she had reported them. The constancy witnesses' testimony regarding the victim's out-of-court statements properly was limited to the fact that the victim had complained, the timing of each complaint and necessary details connecting the complaints to the assaults. Importantly, the testimony contained no extraneous details of the assaults, and it pertained only to the approximate time and place the assaults had occurred and the defendant's identity as the perpetrator. Such testimony is squarely within the parameters set forth in Troupe.\\nThe defendant's arguments at trial and in his appellate brief contain considerable discussion attacking the constancy of accusation doctrine. At oral argument before this court, however, the defendant clarified that his claim was directed at the doctrine only as applied. Our Supreme Court has upheld the constancy of accusation doctrine as stated in Troupe in a number of recent cases. See, e.g., State v. Burney, 288 Conn. 548, 954 A.2d 793 (2008); State v. Arroyo, 284 Conn. 597, 935 A.2d 975 (2007); State v. McKenzie-Adams, 281 Conn. 486, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). Our review of the present case leads us to conclude that the challenged testimony did not exceed the limits of the doctrine as it presently exists. Therefore, the court did not abuse its discretion in allowing it to be admitted.\\nB\\nThe defendant also challenges the court's decision to allow expert testimony. The state called to testify Diane Edell, a licensed clinical social worker experienced in forensic interviewing of victims of sexual abuse. Edell testified as to factors common in cases of sexual abuse, including delayed disclosure of the abuse by the victim.\\nThe defendant offered no objection at trial to Edell's testimony, which renders this claim unpreserved. He seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40, or to prevail pursuant to the plain error doctrine. See Practice Book \\u00a7 60-5. Our Supreme Court has stated that \\\"[a] claim that the trial court improperly admitted the testimony of an expert is an evidentiary impropriety [and] not constitutional in nature . . . .\\\" (Internal quotation marks omitted.) State v. Iban C., 275 Conn. 624, 640, 881 A.2d 1005 (2005). The defendant's claim fails to satisfy Golding's second prong, therefore, as it is not of constitutional magnitude.\\nFurthermore, we do not consider the court to have committed plain error in allowing the testimony to be admitted. The plain error doctrine, which provides a rule of reversibility, rather than reviewability, \\\"is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.\\\" (Internal quotation marks omitted.) State v. Cutler, 293 Conn. 303, 326, 977 A.2d 209 (2009). Our review of the record does not convince us that admission of Edell's testimony either compromised the fairness or integrity of the defendant's trial or that it would diminish public confidence in our judicial proceedings.\\nIll\\nINSTRUCTIONAL CLAIMS\\nThe defendant also raises claims regarding the court's jury instructions. He argues specifically that the court improperly instructed the jury concerning constancy of accusation and expert witness testimony. We address the defendant's claims in turn.\\nA\\nPrior to the testimony of each constancy of accusation witness, the court provided the jury a limiting instruction describing the purpose for which the jury could consider the testimony. Following the close of evidence, the court charged the jury as follows: \\\"Constancy of accusation. The complainant testified here in court before you. Her testimony in court you may use as evidence and proof of the facts asserted in that testimony and give it the weight you find is reasonable. The state offered evidence of out-of-court statements made by the complainant to other persons that the defendant sexually assaulted her. This court's recollection of those persons to whom the alleged victim made such statements are [T], [B] and [S], Each of these people testified as to the statements the complainant made to each of them regarding the defendant's alleged sexual assaulting of her. This evidence by each of these witnesses is admitted solely to corroborate or not corroborate the complainant's testimony in court. It is to be considered by you only in determining the weight and credibility you will give to the complainant's testimony given here in court.\\n\\\"This evidence of out-of-court statements by the complainant of a sexual assault against her by the defendant is not to be considered by you to prove the truth of the matter asserted, the truth of what is said, in those out-of-court statements, but it is presented for you to consider in assessing the credibility you will give to the complainant's in-court testimony.\\n\\\"In determining whether these out-of-court statements are corroborative or not corroborative of the complainant's testimony in court, you should consider all the circumstances under which these out-of-court statements were made and to whom and whether the statements made to those persons were or were not consistent with the complainant's testimony in court.\\n\\\"To the extent you find what she said outside the courtroom is consistent with her testimony in court, you may find the complainant's testimony in court to be corroborated or supported. To the extent you find what the complainant has said outside the courtroom is inconsistent with her testimony in court, you may consider the degree of inconsistency which you may find, and you may consider the reasons you may find for the inconsistency in evaluating her testimony given here in court.\\\"\\nThe defendant argues on appeal that the foregoing instruction encouraged the jury to use the constancy of accusation testimony improperly, thereby compromising his right to a fair trial. He specifically objects to the language stating that the constancy of accusation witnesses' testimony \\\"is admitted solely to corroborate or not corroborate the complainant's testimony in court. It is to be considered by you only in determining the weight and credibility you will give to the complainant's testimony given here in court.\\\" The defendant also takes issue with the instruction that \\\"[t]o the extent you find what she said outside the courtroom is consistent with her testimony in court, you may find the complainant's testimony in court to be corroborated or supported.\\\" He maintains that these portions of the charge led the jury to consider the testimony as bolstering the victim's substantive testimony regarding the assaults, rather than in the proper, limited manner of corroborating only the fact and timing of the victim's complaint. The state, in opposition, argues first that the defendant's claim, being unpreserved, is unreviewable. It further contends that the language of the instruction properly stated the law with regard to the constancy of accusation doctrine as set forth in Troupe.\\nAlthough the defendant raises a substantial question with this claim, review of the issue must wait for another day. The defendant failed to preserve this claim at trial, as he neither submitted a request to charge the jury on the issue, nor objected to the court's instructions. See Practice Book \\u00a7 16-20 (\\\"[a]n appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered\\\"). Review pursuant to Golding is inappropriate. Not every claim of instructional error is constitutional in nature. State v. LaBrec, 270 Conn. 548, 557, 854 A.2d 1 (2004). Our Supreme Court repeatedly has noted that it has recognized instructional claims as raising constitutional issues only in matters relating to the elements of an offense, burden of proof and the presumption of innocence. Id.; see also State v. Schiappa, 248 Conn. 132, 165, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999); State v. Dash, 242 Conn. 143, 151-52, 698 A.2d 297 (1997); State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993). The defendant's claim does not pertain to the elements of the offenses in question, the state's burden of proof or the presumption of innocence, nor does the defendant make such an argument. Accordingly, it does not merit Golding review. See State v. Golding, supra, 213 Conn. 239-40.\\nThe defendant also cannot prevail on his claim pursuant to the plain error doctrine. Although the issue raised is important, upon our review of the entire record, we cannot conclude that the present case presents one of the truly extraordinary situations in which the existence of the claimed error is so obvious that it affects the fairness and integrity of, and public confidence in, the judicial proceedings. See State v. Cutler, supra, 293 Conn. 326.\\nB\\nThe defendant also challenges the court's instruction regarding expert witness testimony. He argues that the charge improperly failed to include an instruction that Edell's testimony was not intended to address the ultimate question of whether the victim's allegations were true. Having failed to submit a request to charge the jury or to object to the court's instruction, the defendant did not preserve this claim for review. We will not review the claim under Golding, as it is not of constitutional magnitude. See State v. LaBrec, supra, 270 Conn. 557. We further find nothing in the record to convince us that the issue merits reversal for plain error.\\nThe judgment is affirmed.\\nIn this opinion the other judges concurred.\\nGeneral Statutes \\u00a7 53a-72a (a) provides in relevant part: \\\"A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . .\\\"\\nGeneral Statutes \\u00a7 53a-70 provides in relevant part: \\\"(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .\\nGeneral Statutes \\u00a7 53a-70 (a) provides in relevant part: \\\"A person is guilty of sexual assault in the first degree when such person . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .\\\"\\nGeneral Statutes (Rev. to 2001) \\u00a7 53-21 (a), as amended by Public Acts 2002, No. 02-138, \\u00a7 4, provides in relevant part: \\\"Any person who . (2) has contact wilh the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects' a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of . a class B felony for a violation of subdivision (2) of this subsection.\\\"\\nPursuant to State v. Golding, supra, 213 Conn. 239-40, a defendant may prevail on an unpreserved claim of error only if: \\\"(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.\\\"\\nThe defendant in Jason B. had argued that in amending General Statutes (Rev. to 1993) \\u00a7 53a-71 (a) (1) to include \\\"an exemption from criminal liability for those persons engaging in consensual sexual intercourse with persons not more than two years their junior,\\\" the legislature also implicitly modified \\u00a7 53-21 to include a similar age requirement for the defendant charged under the latter statute. State v. Jason B., supra, 248 Conn. 564.\\nA conviction of sexual assault in the second degree under \\u00a7 53a-71 (a) (1) requires proof that (1) the defendant engaged in sexual intercourse (2) with another person who was thirteen years of age or older but under sixteen years of age and (3) the defendant was more than two years older than such person.\\nSection 6-11 (c) of the Connecticut Code of Evidence provides: \\\"Constancy of accusation by a sexual assault victim. A person to whom a sexual assault victim has reported the alleged assault may testify that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall be limited to those details necessary to associate the victim's allegations with the pending charge. The testimony of the witness is admissible only to corroborate the victim's testimony and not for substantive purposes.\\\"\\nFor example, before the prosecutor began his examination of T, the court instructed the jury: \\\"Ladies and gentlemen, before this testimony begins, I want to explain a couple of things to you. There are times when evidence is admitted for a limited purpose. You can use it for one purpose, but you can't use it for another purpose. The testimony here is going to be one of those situations. So, I want to tell you at this point the purpose for which you can use the testimony that [T] is about to give. The evidence by this witness is admitted solely to corroborate or not corroborate the complainant's testimony in court. It is to be considered by you only in determining the weight and credibility you will give to the complainant's testimony given here in court. This evidence of out-of-court statement by the complainant of an alleged sexual assault against her, that is, the complainant, by the defendant, is not to be considered by you to prove the truth of the matter asserted, that is, the proof of what is said in those out-of-court statements, but it is to be presented for you to consider in assessing the credibility for you to give to the complainant's in-court testimony.\\\" The court gave substantially the same instruction prior to the testimony of B and S and also repeated a similar instruction following S's testimony.\"}"

conn/4058413.json

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+"{\"id\": \"4058413\", \"name\": \"IN RE PATRICIA I\", \"name_abbreviation\": \"In re Patricia I.\", \"decision_date\": \"2008-10-14\", \"docket_number\": \"AC 29038\", \"first_page\": \"901\", \"last_page\": \"901\", \"citations\": \"110 Conn. App. 901\", \"volume\": \"110\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T00:59:46.897934+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IN RE PATRICIA I.\", \"head_matter\": \"IN RE PATRICIA I.\\n(AC 29038)\\nDiPentima, Harper and Lavery, Js.\\nArgued September 10\\nofficially released October 14, 2008\", \"word_count\": \"42\", \"char_count\": \"276\", \"text\": \"Per Curiam.\\nThe judgment is affirmed. Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 633 A.2d 305 (1993).\"}"

conn/4059999.json

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+"{\"id\": \"4059999\", \"name\": \"JOSEPH EREMITA v. SALVATORE MORELLO\", \"name_abbreviation\": \"Eremita v. Morello\", \"decision_date\": \"2008-11-04\", \"docket_number\": \"AC 29341\", \"first_page\": \"103\", \"last_page\": \"108\", \"citations\": \"111 Conn. App. 103\", \"volume\": \"111\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T18:52:06.335225+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOSEPH EREMITA v. SALVATORE MORELLO\", \"head_matter\": \"JOSEPH EREMITA v. SALVATORE MORELLO\\n(AC 29341)\\nFlynn, C. J., and DiPentima and Robinson, Js.\\nSubmitted on briefs September 12\\nofficially released November 4, 2008\\nC. Scott Schwefel filed a brief for the appellant (plaintiff).\\nMargaret Fogerty Rattigan filed a brief for the appellee (defendant).\", \"word_count\": \"1313\", \"char_count\": \"7728\", \"text\": \"Opinion\\nROBINSON, J.\\nThe plaintiff, Joseph Eremita, appeals following the denial of his motion to open the judgment dismissing his breach of contract claim against the defendant, Salvatore Morello. On appeal, the plaintiff claims that the trial court improperly denied his motion to open the judgment on the basis of mistake or accident. We affirm the judgment of the trial court.\\nThe following facts and procedural history are relevant to our resolution of the plaintiff's appeal. On May 20, 2004, the plaintiff filed a complaint alleging breach of contract by the defendant. The dispute pertained to an unpaid sum on a promissory note executed by the defendant on July 30, 1998. The court rendered a judgment of dismissal against the plaintiff for failure to make a prima facie case on September 11, 2007, after the plaintiff, who was the only witness scheduled to testify on his behalf, failed to appear at the trial. The plaintiff later filed a motion to open the judgment of dismissal on October 1, 2007, which was denied by the court on November 6, 2007. From that judgment, the plaintiff appeals.\\nThe plaintiff claims that the court abused its discretion in refusing to open the judgment of dismissal because his absence at trial was the result of inadvertence. We decline to reach the merits of the plaintiffs claim due to an inadequate record.\\nThe plaintiff represented in his motion to open the judgment that a trial management conference was held on September 7, 2007, four days before the court trial was scheduled to begin. At that time, the plaintiffs counsel informed the court that he had been unable to contact the plaintiff \\\"despite diligent efforts . . . .\\\" When counsel still was unable to contact the plaintiff on September 10, 2007, he sent a motion for a continuance by facsimile, which was date stamped the next day, September 11, the day of the trial. On that day, the court, Graham, J., denied the motion, and counsel appeared before the court, Tanzer, J., for trial. The plaintiffs counsel informed the court that he still had not been able to contact the plaintiff. As the plaintiff was expected to be the sole testimonial witness to prove his cause of action, there were no witnesses to testify on his behalf in the plaintiffs absence, and the plaintiff s attorney presented no evidence before resting his case. The defendant's attorney immediately moved for dismissal, pursuant to Practice Book \\u00a7 15-8, for failure of the plaintiff to make out a prima facie case, and the court rendered a judgment of dismissal. The plaintiff filed a motion to open the judgment under General Statutes \\u00a7 52-212a and Practice Book \\u00a7 17-4, which motion was denied by the court.\\n\\\"Our review of a court's denial of a motion to open . is well settled. We do not undertake a plenary review of the merits of a decision of the trial court . . . to deny a motion to open a judgment. . In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.\\\" (Internal quotation marks omitted.) In re Ilyssa G., 105 Conn. App. 41, 45, 936 A.2d 674 (2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008).\\nIn determining whether a judgment should be opened, this court has stated clearly that \\\"the [negligence of a party or his counsel is insufficient for purposes of \\u00a7 52-212 to set aside a default judgment.\\\" (Internal quotation marks omitted.) Rino Gnesi Co. v. Sbriglio, 83 Conn. App. 707, 712, 850 A.2d 1118 (2004); see also Woodruff v. Riley, 78 Conn. App. 466, 469-70, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003). In particular, where a party negligently failed to attend trial, this court, as well as our Supreme Court, has held repeatedly that this was not sufficient grounds for opening the judgment. See Munch v. Willametz, 156 Conn. 6, 11, 238 A.2d 424 (1968); In re Ilyssa G., supra, 105 Conn. App. 49 (\\\"[r]egardless of whether it was intentional or the result of negligence, the respondent's failure to keep the court, the department [of children and famihes] and his attorney informed of his whereabouts does not qualify for purposes of opening a default judgment as a mistake, accident or other reasonable cause that prevented the respondent from presenting a defense\\\"); Moore v. Brancard, 89 Conn. App. 129, 133, 872 A.2d 909 (2005) (\\\"the court reasonably could have concluded that the plaintiffs failure to appear was due to mere inattention\\\"). Indeed, \\\"[w]hile it is true that a judgment may be opened on the grounds of lack of notice or accidental failure to appear . it does not follow that such circumstances mandate the opening of a judgment.\\\" (Citations omitted.) Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 711, 462 A.2d 1037 (1983).\\nThe record in this matter is inadequate for this court to review the plaintiffs claim. It does not contain a memorandum of decision regarding the motion to open the judgment of dismissal. The court's reason for denying the motion to open is not a part of the record. The record merely contains a copy of the plaintiffs motion, on which the court indicated that the motion was denied. Additionally, there was no hearing on the motion. Furthermore, the plaintiff did not file a motion for articulation to ascertain the basis for the court's decision. \\\"Appellants bear the burden of affording this court an adequate record for review.\\\" American Honda Finance Corp. v. Johnson, 80 Conn. App. 164, 168, 834 A.2d 59 (2003). In view of the inadequate record, we cannot ascertain why the court denied the motion to open the judgment, and, therefore, we decline to review this claim. See State v. Ritz Realty Corp., 63 Conn. App. 544, 549, 776 A.2d 1195 (2001).\\nThe judgment is affirmed.\\nIn this opinion the other judges concurred.\\nThe plaintiffs attorney sent a motion for a continuance by facsimile on September 10, 2007, one day before the trial was to begin, which the court denied. The stated reason for the request for a continuance was that the plaintiff was not available.\\nThe plaintiff states in his motion to open the judgment that on the date of trial, he was out of state and was inaccessible by telephone or facsimile. The September 11, 2007 trial date had been scheduled on November 30, 2006, nearly ten months prior.\\nPractice Book \\u00a7 15-8 provides in part: \\\"If . . . the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. . . .\\\"\\nThe plaintiff in fact attempts to use the lack of a written memorandum of decision as the basis of his argument, noting in his brief that because the court did not draft a memorandum of decision it is unknown whether the court analyzed the question of whether the plaintiff had been prevented by mistake, accident or other reasonable cause from prosecuting the action. This argument ignores the fact that \\\"[a]n appellant may seek to remedy any ambiguities or deficiencies in a trial court's decision by filing a motion for articulation as provided in Practice Book \\u00a7 66-5.\\\" American Honda Finance Corp. v. Johnson, 80 Conn. App. 164, 168, 834 A.2d 59 (2003).\"}"

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+"{\"id\": \"4071817\", \"name\": \"STATE OF CONNECTICUT v. MATTHEW BOUTILIER\", \"name_abbreviation\": \"State v. Boutilier\", \"decision_date\": \"2012-02-14\", \"docket_number\": \"AC 32207\", \"first_page\": \"493\", \"last_page\": \"514\", \"citations\": \"133 Conn. App. 493\", \"volume\": \"133\", \"reporter\": \"Connecticut Appellate Reports\", \"court\": \"Connecticut Appellate Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-10T20:47:45.801000+00:00\", \"provenance\": \"CAP\", \"judges\": \"Robinson, Bear and Dupont, Js.\", \"parties\": \"STATE OF CONNECTICUT v. MATTHEW BOUTILIER\", \"head_matter\": \"STATE OF CONNECTICUT v. MATTHEW BOUTILIER\\n(AC 32207)\\nRobinson, Bear and Dupont, Js.\\nArgued October 20, 2011\\nofficially released February 14, 2012\\nJodi Zils Gagne, special public defender, for the appellant (defendant).\\nRaheem L. Mullins, assistant state\\u2019s attorney, with whom, on the brief, were Gail P. Hardy, state\\u2019s attorney, and Anne Mahoney, senior assistant state\\u2019s attorney, for the appellee (state).\", \"word_count\": \"6619\", \"char_count\": \"40126\", \"text\": \"Opinion\\nDUPONT, J.\\nThe defendant, Matthew Boutilier, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes \\u00a7 53a-59 (a) (5) and criminal possession of a firearm in violation of General Statutes \\u00a7 53a-217 (a) (1). On appeal, the defendant claims that (1) the trial court's denial of two motions, which requested the court to \\\"direct the [commissioner of the department of correction] to deliver the defendant into the supervised custody of his attorney,\\\" violated the defendant's constitutional rights, (2) the trial court abused its discretion in denying the defendant's motion to allow the jury to view the crime scene and (3) prosecutorial impropriety deprived the defendant of his right to a fair trial. We affirm the judgment of the trial court.\\nThe following evidence was elicited at trial. In January, 2008, the defendant and his girlfriend, Katie Krantz, lived together in a house in Hartford. On the evening of January 11, 2008, Krantz and her friends, Becky Ramos and Yajaira Aponte, went to the home of a neighbor where the women drank alcohol. Ramos and Krantz also smoked marijuana and took ecstasy pills. At approximately 1 a.m., after returning home from a bar, the defendant went to the neighbor's house to retrieve Krantz. Krantz invited Ramos and Aponte to come to the house she shared with the defendant and their three children, who were not at home that night. Ramos and Aponte arrived at the house, and, subsequently, the three women decided to go out to purchase snacks and cigars. Krantz and Ramos intended to hollow out the cigars and fill them with marijuana so that they could continue to smoke marijuana. Krantz told the defendant of their plans to go out to purchase the cigars, and the defendant became angry, telling Krantz that he did not want her to leave the house. The defendant yelled at Krantz and said that, if she left the house, she should not come back. Krantz left with Ramos and Aponte, leaving her keys to the house on a table.\\nAs the three women walked away from the house, the defendant threw some of Krantz' clothes outside onto the driveway. Ramos returned to the house to confront the defendant for his behavior. The defendant, who had gone inside and locked the door, unlocked the door and let Ramos into the house. Ramos and the defendant began arguing. Krantz and Aponte returned to the house and went inside. The argument between Ramos and the defendant became physical, and the two struggled in the kitchen in front of a door that led to a basement staircase. The defendant retrieved a .357 caliber revolver from a nearby shelf and shot Ramos in the head, killing her. Aponte ran across the kitchen, toward a telephone on the wall, and the defendant shot her in the chest. Aponte tried to escape through the back door of the house but, finding it locked, ran back toward the kitchen. The defendant met Aponte in the hallway and shot her a second time, at close range. Aponte survived her injuries. At trial, the defendant admitted to shooting Ramos and Aponte, but claimed that he believed they were going to harm him and that he had acted in self-defense.\\nThe defendant was found guilty by a jury of one count of assault in the first degree in violation of \\u00a7 53a-59 (a) (5) and one count of criminal possession of a firearm in violation of \\u00a7 53a-217 (a) (1), and was sentenced to a total effective term of twenty-seven years of incarceration. This appeal followed. Additional facts will be set forth as they become necessary.\\nI\\nMOTIONS FOR RELEASE FROM CUSTODY\\nThe first portion of the defendant's appeal concerns the court's denial of two motions requesting the defendant's temporary release from the custody of the department of correction so that he could (1) visit the crime scene with his attorney and (2) participate in a mock jury preparation session. The defendant claims that the court's denial of these motions violated his constitutional rights. We affirm the judgment of the court.\\nThe following additional facts are relevant to our resolution of the defendant's claim. The defendant was held on a $2 million bond following his arrest. Thereafter, he remained in the custody of the department of correction. On August 31, 2009, the defendant made two oral motions to the court. The first motion sought permission for his temporary release from the custody of the department of correction into the supervised custody of defense counsel so that the defendant could visit the crime scene with his attorney. The second motion sought the defendant's temporary release for the purpose of attending a mock jury preparation session to be arranged and orchestrated by his attorney. The court reserved judgment on the motions, instructing the defendant to submit them in writing. On September 9, 2009, prior to the start of trial, the defendant filed a \\\"Motion for Nontestimonial Evidence\\\" wherein he moved the court to \\\"direct the [commissioner of the department of correction] to deliver the defendant into the supervised custody of his attorney\\\" so that he could \\\"assist his attorney in his defense by inspecting and photographing the premises of the alleged crime . . . .\\\" On September 10, 2009, the court denied both of the defendant's motions. The court noted that defense counsel, \\\"by way of oral amendment,\\\" had incorporated the defendant's request to attend the mock jury preparation session into the defendant's written \\\"Motion for Nontestimonial Evidence.\\\"\\nOn appeal, the defendant claims that the court's ruling violated his sixth amendment rights to the effective assistance of counsel, to present a defense and to confront witnesses against him. The defendant argues that his claim presents a mixed question of law and fact and that our review should therefore be plenary. The state urges us to review the trial court's decision under the abuse of discretion standard.\\nIt is axiomatic that, as an appellate court, the function performed by the trial court in issuing its ruling will dictate the scope of our review. State v. Saucier, 283 Conn. 207, 219, 926 A.2d 633 (2007) (en banc). The scope of appellate review depends on a proper characterization of rulings made by the trial court. If the court has made findings of fact, appellate review concerns whether those findings were clearly erroneous. If the court has made conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct and supported by the facts in the record. Beneduci v. Valadares, 73 Conn. App. 795, 801, 812 A.2d 41 (2002). The trial court in the present case never reached the question of whether a denial of the defendant's motions would effectuate a violation of his constitutional rights, but based its denial on security concerns attendant to his release from custody.\\nThe \\\"Motion for Nontestimonial Evidence\\\" at issue is not the usual motion for evidence made by a party to litigation to view premises involved therein. Rather, it is a motion made by an incarcerated defendant to temporarily be released from the custody of the department of correction in order to view a crime scene with his attorney and participate in a mock jury preparation session while in the supervised custody of his attorney, without the existence of any pertinent rule or regulation of the department of correction governing the situation.\\nThe defendant argues that the court's denial of his motions effectuated a violation of his constitutional rights. However, he has failed to identify any constitutionally protected right directly implicated by the court's ruling. In its oral decision, the court did not discuss or conclude that any constitutional right or rights of the defendant were involved in its denial of his motions. Furthermore, the defendant has not challenged any regulation of the department of correction as being unconstitutional. The defendant argues that his claim on appeal raises an issue of first impression before the appellate courts of Connecticut. He maintains that his claim is analogous \\\"to the arguments made in many habeas cases . . . that prison officials are impeding on prisoners' constitutional rights under the guise of safety concerns\\\" and cites Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), in support of his argument. Turner is not analogous to the present case, nor does it control our resolution of the defendant's claim. In contrast to Turner, the defendant's appeal does not involve a challenge to any rulings, regulations or procedure set forth by the department of correction. Indeed, the department of correction's view, if any, on the defendant's motions for temporary release from its custody was not made known to the court.\\nThe court did not review any regulation or statute in denying the defendant's motions, and no argument was made to the court citing any regulation or statute. The court did not draw any conclusions of law requiring a plenary review; see Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998); and we do not conclude that the denial of the defendant's motions interfered with a basic constitutional right. There is no legal conclusion of the court at issue. Accordingly, there exists no \\\"mixed question of law and fact\\\" to be reviewed on appeal. If an incarcerated individual had been accused of committing a crime in subzero weather, his inability to replicate the condition of temperature, via a desired visit to the North Pole in January, could not change a motion for such a visit into a constitutional claim. Without a direct link to a constitutional right, a defendant's claim is not transformed into a right of constitutional magnitude. In re Lukas K., 120 Conn. App. 465, 472, 992 A.2d 1142 (2010), aff'd, 300 Conn. 463, 14 A.3d 990 (2011); see also State v. Claudio C., 125 Conn. App. 588, 598, 11 A.3d 1086 (2010) (\\\"[t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right\\\" [internal quotation marks omitted]), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011).\\nThe function of the trial court in this case was to determine whether the defendant's temporary release from the custody of the department of correction was warranted, absent any rule or regulation of the department of correction, or statute or Practice Book section governing release for the purpose of allowing an incarcerated defendant to prepare a defense with the help of a mock jury or a visit to the crime scene. The trial court in this case made no ultimate constitutional conclusion, basing its denial of the defendant's motions on security, rather than an analysis of any rule, regulation or statute. We conclude that the function performed by the court was a discretionary matter and should, therefore, be reviewed under the abuse of discretion standard. State v. Saucier, supra, 283 Conn. 219.\\n\\\"In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.\\\" (Internal quotation marks omitted.) State v. Ortiz, 280 Conn. 686, 703, 911 A.2d 1055 (2006). \\\"In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.\\\" (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 186, 842 A.2d 567 (2004).\\nIn the present case, the court heard argument that addressed the severity of the crimes charged against the defendant, the risk of flight by the defendant and the logistical difficulties attendant to transporting and supervising the defendant if he were temporarily released from custody. The court also considered the fact that the defendant grew up in the home where the shootings took place, lived there at the time of the shootings, and was intimately familiar with the physical characteristics of the crime scene and the neighborhood, and that the defendant's attorney had ongoing access to the crime scene.\\nThe court explained that its decision to deny the defendant's motions was made on the basis of numerous security concerns, stating: \\\"[T]his boils down . . . to an issue of security. . . . Based on defense counsel's own rendition of the allegations, the defense does not contest that the defendant was armed with a deadly weapon and caused the death of Ms. Ramos and caused injury to Ms. Aponte by the discharge of a firearm, and it's notable that the defendant was a convicted felon at the time. . . . The nature of the charges are such, combined with the defendant's criminal history, that the primary concern of this court is one of security. The court can contemplate a number of scenarios that would amount to a breach of security that are reasonably foreseeable in the event the court accedes [to] the defense request.\\\" We conclude that the court did not abuse its discretion in denying the defendant's motions requesting temporary release from the custody of the department of correction.\\nn\\nMOTION FOR JURY TO VIEW THE CRIME SCENE\\nThe defendant's next claim on appeal is that the court abused its discretion in denying his motion to allow the jury to view the crime scene. The defendant argues that it was necessary for the jury to view the crime scene to understand his claim of self-defense; specifically, that he feared for his life as he was attacked by Ramos and Aponte in the small kitchen. We are not persuaded.\\n\\\"Pursuant to Practice Book [\\u00a7 42-6] , a trial court may permit a viewing of the scene of the crime if it is of the opinion that a viewing would be helpful to the jury in determining some material factual issue in the case. . . . The determination as to whether to permit the jury to view the scene of a crime is within the sound discretion of the trial court. . . . Thus, unless the action of the trial court in denying the motion constitutes an abuse of discretion, the decision of the trial court must stand. . In deciding a motion to view the scene [t]he court should consider whether viewing the scene is necessary or important so that the jury may clearly understand the issues and properly apply the evidence. . . . Although discretionary, the power to authorize a view of the scene should be invoked only after the court is satisfied that the present conditions at the site are the same as those that existed on the date of the underlying incident, and that such a personal inspection is fair to both parties and reasonably necessary to do justice.\\\" (Citations omitted; internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 116, 665 A.2d 95 (1995).\\nIn the present case, the jury had access to photographs of the crime scene and a dimensional drawing of the kitchen where the first two shootings took place. The jury heard testimony by the defendant, Krantz and Aponte, during which they described the physical characteristics of the kitchen. The court found that there was nothing \\\"so unique about the premises that it would require a viewing.\\\" Given the instructional exhibits and witness testimony on the size and layout of the kitchen, we cannot conclude that a view of the crime scene was necessary for the jury to understand the defendant's claim of self-defense or for it to properly apply the evidence. Accordingly, we conclude that the court did not abuse its discretion when it denied the defendant's motion to allow the jury to view the crime scene.\\nIll\\nPROSECUTORIAL IMPROPRIETY\\nThe defendant's final claim on appeal is that the court improperly denied his motions for a mistrial on the ground of prosecutorial impropriety. The defendant claims that the prosecutor improperly made statements that (1) undermined the defendant's credibility and were prejudicial to his defense, (2) appealed to the emotions of the jury and (3) expressed her personal opinion, thereby prejudicing his ability to receive a fair trial. We disagree.\\n\\\"The standard for review of an action upon a motion for a mistrial is well established. While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.\\\" (Internal quotation marks omitted.) State v. Ortiz, supra, 280 Conn. 702. \\\"In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial.\\\" (Internal quotation marks omitted.) State v. Gibson, 302 Conn. 653, 659, 31 A.3d 346 (2011).\\nIn the interest of adjudicating the defendant's claim with facility, we rearticulate and divide the defendant's arguments into two categories: statements that are alleged to be improper because they (1) expressed the prosecutor's personal opinion and (2) appealed unreasonably to the emotions, passions and prejudices of the jury. \\\"We . . . address each [of the defendant's claims] in turn to determine whether the particular conduct was improper before determining whether the impropriety, if any, deprived the defendant of a fair trial.\\\" State v. Singh, 259 Conn. 693, 702, 793 A.2d 226 (2002).\\nA\\nPersonal Opinion\\n\\\"It is well established that [a] prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . It is not, however, improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . .\\\" (Internal quotation marks omitted.) State v. Gibson, supra, 302 Conn. 660. \\\"While a prosecutor cannot express his opinion as to the credibility of witnesses, he is permitted to explain that a witness either has or does not have a motive to lie. . . . We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state's favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand. The state's attorney should not be put in the rhetorical straitjacket of always using the passive voice, or continually emphasizing that he is simply saying I submit to you that this is what the evidence shows, or the like. . . . [C]ounsel is entitled to considerable leeway in deciding how best to highlight or to underscore the facts, and the reasonable inferences to be drawn therefrom, for which there is adequate support in the record. We therefore never have categorically barred counsel's use of such rhetorical devices . as long as there is no reasonable likelihood that the particular device employed will confuse the jury or otherwise prejudice the opposing party.\\\" (Citations omitted; internal quotation marks omitted.) State v. Bermudez, 274 Conn. 581, 590-91, 876 A.2d 1162 (2005); see also State v. Gibson, supra, 660-61.\\nThe defendant challenges the following statements, made by the prosecutor during her closing argument: \\\"In order for you to find the defendant guilty, you have to find proven beyond a reasonable doubt with regard to the murder of Becky Ramos that the defendant intended to kill her and that he caused her death. You have the witnesses, both Yajaira Aponte and Katie [Krantz], who told you that the defendant shot [Ramos] in the head. You have the medical examiner's autopsy report [saying] that [Ramos] was shot by a gunshot wound and [that this was] the cause of her death, and you have the testimony of the defendant, himself, that he shot her in the head. Now, [the defendant] says he didn't intend to kill her. You ask yourselves whether or not it's reasonable to shoot somebody in the head at close range with a gun and ask me to believe that. The state submits that the evidence shows you should not and that you should find the defendant guilty of this [charge] based upon the evidence before you.\\\" (Emphasis added.)\\nThe defendant argues that the prosecutor thereby expressed her personal opinion that the defendant was not to be believed. We disagree. The challenged statements were made during the prosecutor's initial comments to the jury concerning the standard of proof and the elements of the crimes charged. They are couched in terms of the jurors' obligation to determine, on the basis of the evidence presented at trial, whether they believed the defendant's claims that he had shot Ramos in self-defense and that he did not intend to kill her. It was not improper for the prosecutor to comment on the evidence presented at trial and to argue the inferences that the jurors may, or may not, have drawn therefrom. See State v. Gibson, supra, 302 Conn. 659.\\nThe defendant next challenges the prosecutor's statement, \\\"[tjhat's what you want this jury to believe,\\\" made during her cross-examination of the defendant. The defendant argues that this statement was akin to the prosecutor's vouching to the jury that the defendant was not being truthful. We disagree. A statement identifying the fact that the defendant was testifying to an alternate theory of events does not rise to the level of prosecutorial impropriety.\\nThe defendant next challenges the propriety of the prosecutor's argument that, because the defendant had played pickup basketball games without a referee, he should have been able to defend himself against Ramos and Aponte. During her closing argument, the prosecutor stated: \\\"So, you're going to be asked to look first at what the defendant subjectively believed and then at what an objective or reasonable person would have believed under the circumstances and that's why all the basketball questions because the state submits to you that a guy who plays pickup basketball all the time against bigger and heavier guys wasn't really afraid of either [Ramos] or [Aponte] that night, and he was more capable of avoiding them and not having to use deadly physical force. The defendant did not believe either one of these women was going to injure him or cause great bodily injury or use deadly force against him.\\\"\\nThe prosecutor references her cross-examination of the defendant, wherein she questioned his claimed belief that he had to defend himself against Ramos and Aponte by using deadly force. We find no impropriety in this argument, which was made during the prosecutor's discussion of the elements of self-defense and relates directly to the state's challenge of the defendant's claims that he had feared for his life and had acted in self-defense when he shot Ramos and Aponte.\\nFinally, the defendant challenges the propriety of remarks made by the prosecutor during her rebuttal argument. The prosecutor stated: \\\"The defendant never tells [Aponte] to leave [the house] because she's not involved in the argument. There was much made by the defense attorney about [Aponte's] movements after [Ramos] gets shot. [Aponte's] not involved in the argument, she's not asked to leave, she's simply standing by because she's waiting for [Ramos] so that they can all go. Women sometimes travel in groups. We travel in groups to the bathroom, we travel in groups when we're going someplace, we wait for each other. That's how women behave, isn't it? Isn't that what your common sense and your life experience tells you? So, [Aponte is] simply waiting for [Ramos]. . . . [Aponte's] saying nothing to the defendant. She's got nothing in her hands. She's not involved at all. [Ramos] gets shot. She reaches toward the phone. She's not going toward the defendant. She's going toward the phone . . . .\\\" (Emphasis added.)\\nThe defendant argues that the prosecutor thereby \\\"vouched for the conduct of the women who were attacking the defendant on the night of the incident, explaining to the jury why they did what they did even though she was not there and has no knowledge of their actions.\\\" The defendant argues that the prosecutor \\\"basically told [the jury] that the defendant should not be trusted and explained to [the jury] why the women acted the way they did,\\\" which precluded the defendant from succeeding in his claim of self-defense. We disagree.\\n\\\"In determining whether [prosecutorial impropriety] has occurred [in the course of closing arguments], the reviewing court must give due deference to the fact that [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case.\\\" (Internal quotation marks omitted.) State v. Gibson, supra, 302 Conn. 659.\\nIn the present case, the challenged statements were made as the prosecutor set forth the state's theory of the case, which questioned the defendant's version of events. The prosecutor's argument, which included an explanation of where Ramos, Aponte and Krantz were located prior to and at the time of the shootings, was based on the facts in evidence and inferences fairly drawn therefrom. We conclude that there was no reasonable likelihood that these statements confused the jury or otherwise prejudiced the defendant.\\nB\\nAppeal to Jury's Emotions\\n\\\"A prosecutor may not appeal to the emotions, passions and prejudices of the [jury]. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant facts [that] are likely to skew that appraisal.\\\" (Citations omitted; internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 719. Accordingly, \\\"a prosecutor should avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury's attention from [its] duty to decide the case on the evidence.\\\" State v. Carr, 172 Conn. 458, 470, 374 A.2d 1107 (1977). \\\"An appeal to emotions may arise directly, or indirectly from the use of personal and degrading epithets to describe the defendant.\\\" State v. Williams, 204 Conn. 523, 545, 529 A.2d 653 (1987).\\nThe defendant claims that, during closing argument, the prosecutor improperly \\\"tried to argue that the defendant was a jealous control freak who did not want Krantz to leave the house . . . .\\\" The prosecutor stated: \\\"The defendant unlocks that door [to the house] because he wants this argument to come on. He knows where the gun is in the house, and he's luring [Ramos] in because he knows if [Ramos] comes in, [Krantz is] coming in. He'll be able to control [Krantz] once again because he's going to win this argument because he has the ultimate power. He's an individual who feels devalued by the fact that [Krantz] is leaving with other people again and instead of finding some way to up his own personal value he reaches for a weapon, a power tool to control [Krantz].\\\"\\nWe disagree with the defendant's claim of impropriety. The prosecutor was entitled to argue the state's case forcefully, provided that her argument was fair. See State v. Gibson, supra, 302 Conn. 659. We conclude that the prosecutor permissibly \\\"was attempting to persuade the jury to draw [an] inference from the circumstantial evidence of intent that [the prosecutor] had just recited, and was not giving improper unsworn testimony or attempting to insinuate that [she] had secret knowledge of the defendant's guilt.\\\" Id., 661.\\nThe defendant next challenges the propriety of the prosecutor's statements and tone of voice during her cross-examination of the defendant, and an incident wherein the defendant alleges that the prosecutor \\\"threw down her notebook in disgust at the defendant's answer.\\\" The defendant claims that the prosecutor's actions were unduly argumentative and were designed improperly to appeal to the jury's emotions. We disagree.\\nAt trial, the court overruled the defendant's objection to the prosecutor's statements and tone of voice, stating: \\\"I don't see a problem with the ['you claim'] questions or comments [made by the prosecutor], but it's not just the word because I don't disagree with you that any testimony a person gives from the witness stand they want the jury to believe that, but I think there's a tone. I'm going to agree with \\u2014 it may not be inappropriate under certain circumstances. It may be inappropriate under others, and I think the tone with what was given at least on the one occasion that I picked up on it, was kind of a disbelief that wants to be communicated to the jury. That's my sense. I'm not saying that's your intent. So, I am going to make a comment that, as far as ['that's what you want the jury to believe'], it's the manner in which it was delivered, I think, that conveys a message that the questioner finds that difficult to believe. And that's the sense that I got\\u2014 I received from it.\\\"\\nWith respect to the incident wherein the prosecutor is claimed to have thrown her notebook down \\\"in disgust at [the defendant's] answers,\\\" the court denied the defendant's motion for a mistrial. Apart from the defendant's own argument, there exists nothing in the record to support his claims that the prosecutor threw her notebook, that it made \\\"a thud audible throughout the courtroom\\\" or that the jury saw, heard or was aware that the event alleged had taken place.\\nWe conclude that the record does not support a finding of the claimed improprieties. In so doing, we note that \\\"the trial court was in the best position to assess the possible prejudice, if any, that may have resulted from counsel's comments, and to fashion an appropriate remedy from a range of possible alternatives.\\\" Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 687, 657 A.2d 1087 (1995). We conclude that the defendant has failed to demonstrate that the court abused its discretion in denying his motions for a mistrial.\\nIV\\nCONCLUSION\\nWe conclude that the court properly denied the defendant's motions (1) for temporary release from the custody of the department of correction, (2) to allow the jury to view the crime scene and (3) for a mistrial on the ground of prosecutorial impropriety.\\nThe judgment is affirmed.\\nIn this opinion the other judges concurred.\\nThe defendant also was charged with one count of murder in violation of General Statutes \\u00a7 53a-54a (a) and one count of attempt to commit murder in violation of General Statutes \\u00a7 53a-54a (a) and 53a-49 (a) (2). The jury was unable to reach a unanimous verdict as to the murder and attempted murder charges, and the court declared a mistrial as to those charges. The defendant's subsequent conviction of manslaughter in the first degree in violation of General Statutes \\u00a7 53a-55, following a retrial for the shooting death of Ramos, has been appealed by the defendant to our Supreme Court. At oral argument, the defendant stated that the present appeal concerns only the assault and criminal possession of a firearm conviction.\\nThe defendant brought his motions before the trial court in the form of a \\\"Motion for Nontestimonial Evidence,\\\" which requested the defendant's temporary release from the custody of the department of correction \\\"pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, Article First, \\u00a7 8 of the Connecticut Constitution, and Practice Book \\u00a7 40-32 [through 40-38].\\\" On appeal, the defendant makes no argument with respect to the state constitution.\\nWe note that the defendant's written motion for temporary release from the custody of the department of correction made pursuant to Practice Book \\u00a7 40-32 through 40-38, is labeled by him as a motion for \\\"Nontestimonial Evidence.\\\" Section 40-38 states, in relevant part: \\\"Upon motion of a defendant who has been arrested . . . the judicial authority by order may direct the prosecuting authority to arrange for the defendant's participation in one or more of the procedures specified in Sections 40-32 through 40-39, if the judicial authority finds that the evidence sought could contribute to an adequate defense. . . .\\\" The forms of participation requested by the defendant \\u2014 to visit the crime scene with his attorney and to participate in a mock jury preparation session \\u2014 do not, however, comport with any of the procedures for obtaining nontestimonial evidence set forth in \\u00a7 40-32 through 40-39, nor does the defendant direct our attention to any particular procedure therein.\\nThe defendant claims that the court's ruling impliedly violated his rights to effective assistance of counsel, to present a defense and to confront witnesses against him. However, he has failed to articulate the manner in which the court's denial of his motions for a temporary release from the custody of the department of correction violated those rights as guaranteed by the sixth amendment to the United States constitution. When the court denied the defendant's motions, the defendant was incarcerated due to his failure or inability to post bail. A defendant's lawful incarceration necessarily results in the restriction of liberty and \\\"the necessary withdrawal or limitation of many privileges and rights . . . .\\\" (Internal quotation marks omitted.) Bell v. Wolfish, 441 U.S. 520, 546, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); see also id., 533-34; id., 546 (\\\"This principle applies equally to pretrial detainees and convicted prisoners. A [pretrial] detainee simply does not possess the full range of freedoms of an unincarcerated individual.\\\"). The defendant made no challenge to the amount or conditions of his bail, nor did he move for a modification. The defendant's claim is not, therefore, reviewable by a petition for review pursuant to General Statutes \\u00a7 54-63g. The court's decision to deny the defendant's motions for temporary release from custody imposed no new or additional restrictions on him. Furthermore, the denial of his motions cannot convert the defendant's appellate arguments into a claim that the amount or conditions of his bail were unconstitutional. See State v. Payne, 121 Conn. App. 308, 31-4-15 and 315 n.3, 996 A.2d 302, cert. denied, 297 Conn. 919, 996 A.2d 1193 (2010).\\nAs noted in part K of this opinion, the defendant resided in the home in which the crimes took place, and the defendant and his lawyer had access to drawings and photographs of the crime scene, obviating the need to actually go to the scene together in order to prepare a defense.\\nDuring trial, the defendant made an oral motion for the jury to be allowed to view the crime scene, which was denied by the court.\\nPractice Book \\u00a7 42-6, \\\"View by Jury of Place or Thing Involved in Case,\\\" provides in relevant part: \\\"When the judicial authority is of the opinion that a viewing by the jury of the place where the offense being tried was committed . . . will be helpful to the jury in determining any material factual issue, it may in its discretion . . . order that the jury be conducted to such place . . . .\\\"\\nThe jury did not find the defendant guilty of murder or attempted murder; see footnote 1 of this opinion; it is therefore unlikely that the jury was unduly influenced by the prosecutor's statements.\\nThe challenged statement was made during the following colloquy:\\n\\\"[The Prosecutor]: You wanted [Krantz] to come back in the house. Right?\\n\\\"[The Defendant]: No. . . .\\n\\\"[The Prosecutor]: No. You told her you wanted her to stay. Right?\\n\\\"[The Defendant]: Yes. That was prior to her leaving.\\n\\\"[The Prosecutor]: Uh-huh. But once she left, you threw her clothes out onto the driveway not to get her attention to come back?\\n\\\"[The Defendant]: No.\\n\\\"[The Prosecutor]: That's what you want this jury to believe. Now, you were asked . . . .\\\" (Emphasis added.)\\nThe defendant does not provide a citation to the transcript in support of his claim. We assume that his argument is made in reference to the portion of the transcript quoted in this opinion.\\nThe defendant does not provide a citation to the transcript in support of his claim. We assume that his argument is made in reference to the portion of the transcript quoted in this opinion.\\nDefense counsel argued: \\\"I would ask that the court . . . admonish the state that questions are questions, not opportunities to inject extraneous comments such as, that's what you want this jury to believe, or sneering asides, you claim, you claim, you claim. The state's here to ask questions. . . . She is lacing her questions with, you claim, you claim, you claim. . . . Those are argumentative. They're not questions. . . . You know, when she says, you claim, in a sneering tone of voice . . . .\\\" Defense counsel did not request that any curative instruction be given to the jury, and we note that none was given.\\nThe following colloquy took place out of the jury's presence and after the prosecutor had concluded her cross-examination of the defendant:\\n\\\"[Defense Counsel]: I'll raise, Judge, my second motion for a mistrial. This based on a claim of prosecutorial misconduct. We just endured something. Okay. Cross-examination of sorts that ended with an exclamation point in the form of the state's attorney dramatically throwing her notebook to the table creating athud audible throughout the courtroom. This combined with her castaway remarks like, that's what you want this jury to believe, may have a place in a bad production of 'Perry Mason,' but it has no place in this courtroom. So, I would move for a mistrial. In the alternative, I would ask that the state . be admonished and that the jury be instructed to disregard such stunts.\\\"\\n\\\"The Court: Do you want to be heard?\\n\\\"[The Prosecutor]: No.\\n\\\"The Court: All right. I don't think this certainly arises to the level to declaring a mistrial. I have no reason to believe that this gentleman can't get a fair trial, and the court made every effort to guarantee that he's accorded a fair trial. So, the motion is denied. Under the circumstances, I don't think it's necessary for any kind of admonition.\\\"\\nThe defendant's allegation is not made nor is it addressed in any other portion of the trial transcript.\"}"

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+"{\"id\": \"4143615\", \"name\": \"CHRISTOPHER COLEMAN v. COMMISSIONER OF CORRECTION\", \"name_abbreviation\": \"Coleman v. Commissioner of Correction\", \"decision_date\": \"2009-01-07\", \"docket_number\": \"\", \"first_page\": \"905\", \"last_page\": \"906\", \"citations\": \"290 Conn. 905\", \"volume\": \"290\", \"reporter\": \"Connecticut Reports\", \"court\": \"Connecticut Supreme Court\", \"jurisdiction\": \"Connecticut\", \"last_updated\": \"2021-08-11T00:38:18.484109+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHRISTOPHER COLEMAN v. COMMISSIONER OF CORRECTION\", \"head_matter\": \"CHRISTOPHER COLEMAN v. COMMISSIONER OF CORRECTION\", \"word_count\": \"40\", \"char_count\": \"274\", \"text\": \"The petitioner Christopher Coleman's petition for certification for appeal from the Appellate Court, 111 Conn. App. 138 (AC 28720), is denied.\\nDecided January 7, 2009\\nChristopher Coleman, pro se, in support of the petition.\"}"