State v. Miselis

• Decision Date: 22 November 1972
• Citation: 318 A.2d 102,164 Conn. 110
• Parties: STATE of Connecticut v. Frank J. MISELIS et al.
• Court: Connecticut Supreme Court

Page 102

318 A.2d 102

164 Conn. 110

STATE of Connecticut v. Frank J. MISELIS et al.

Supreme Court of Connecticut.

Nov. 22, 1972.

James W. Sherman, Somers, for appellants (defendants).

Brian F. O'Neill, Asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for appellee (state).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

SHAPIRO, Associate Justice.

The state claims ownership of certain land in the town of Salem and bounded by Gardner Lake. Its complaint alleges that the defendants are unlawfully maintaining a concrete wall on its land and have erected a pier extending into the lake waters so as to deprive it of the lawful use and enjoyment of those waters for recreational purposes. The state sought an injunction restraining the defendants from maintaining the wall and the pier and from interfering with its use of the lake.

The defendants' substituted answer denied the allegations of the complaint and filed a counterclaim in five counts, seeking in the first count to quiet title as to a portion of the land claimed by the state; in the second count, an injunction against the state's use of the disputed portion of land; in the third count, to restrain the state from interfering with their use and enjoyment of the portion of land in dispute and the lake waters as well as to recover damages; in the fourth count, claiming damages and injunctive relief and alleging a deprivation of their constitutional rights regarding their use of the land and lake waters; and in the fifth count, claiming that the state together with others conspired wrongfully to deprive the defendants of their property and their land and water interests. The trial court (Armentano, J.) ordered that the complaint and counts one, three and four of the counterclaim be referred to a state referee for a hearing and judgment, should the defendants fail to proceed with counts two and five of the counterclaim then those counts were to be dismissed.

The referee, acting as the court, found the issues in favor of the state on its complaint and also found for the state on counts one, three and four of the defendants' substituted counterclaim. From a judgment rendered thereon the defendants have appealed. ¹

The finding of fact from which the court reached its conclusions is set forth in fifty-seven paragraphs. In their assignments of error, the defendants have attacked thirty-four of these paragraphs on the ground that they were found without evidence or are in language of doubtful meaning. In addition, the defendants have assigned error in the refusal of the court to find facts as set forth in thirty-eight paragraphs of their draft finding, which facts they claim are material and were admitted or undisputed. Moreover, the defendants have assigned error directed to the eight conclusions reached by the court on the claim that seven of them were factually unsupported.

In a court trial of a case which presents primarily an issue of fact, it may be expected that the party appealing will attack the finding in several respects. See Wesley v. DeFonce Contracting Corporation, 153 Conn. 400, 402, 216 A.2d 811. But although an extensive challenge to the sufficiency of evidence supporting the finding may be justified in certain cases, it is readily apparent here that the defendants have substituted random target practice for deliberate aims in their assignments of error. They have not sought to delineate the issues so such as to obscure than and they have not endeavored to demonstrate unsupported findings of fact so much as to add argumentative and immaterial matters to the finding. Of the seventy-nine assignments of error, many seek to strike, on the grounds that they were found without evidence, findings which in fact were generously supported, as the appendix to the state's brief indicates. Many of the defendants' attacks contain misleading verbiage, several merely seek to substitute language of their draft finding for paragraphs of the referee's finding, some assignments of error have not been pursued on appeal, and others are palpably incompetent to raise any issue whatsoever on appeal. Under § 622 of the Practice Book, errors in the finding are to be assigned (a) in finding without evidence a material fact, (b) in refusing to find a material fact which was admitted or undisputed or (c) in finding a fact in language of doubtful meaning, so that its real significance may not clearly appear. On appeal, the defendants may not demand that paragraphs of their draft finding replace or be added to a court's finding of facts where there is no claim that the facts contained in these paragraphs were material and admitted or undisputed. Dargie v. Hartford, 150 Conn. 261, 263, 188 A.2d 491. Had the defendants deemed the finding of a court deficient in respects not covered by § 622 of the Practice Book, their remedy lay in proceedings to rectify the appeal under § 675 of the Practice Book.

As a preliminary comment on the method of attack which the defendants have pursued here, we have not deemed it necessary expressly to prescribe in our rules the requirements of clarity, organization and conciseness--elements which ordinarily do not accompany a wholesale attack on the finding. After our repeated comments in such cases as Branford Sewer Authority v. Williams, 159 Conn. 421, 424, 270 A.2d 546, and Franks v. Lockwood, 146 Conn. 273, 275, 150 A.2d 215, counsel should understand that such a diffuse and confusing method of attack as is pursued here--a battery of challenges to almost every paragraph of the finding--tends to could the real issue and cast doubt on the merits of the defendants' claims. Branford Sewer Authority v. Williams, supra.

After a painstaking examination of the record, briefs and appendices, we conclude that the defendant is not entitled to any of the corrections...