author: Landau, J.

text:
    Joan Erisoty v. Merrow Machine Company et al.
    (12341)
    Landau, Heiman and Spear, Js.
    Argued February 14
    decision released June 21, 1994

      Leon M. Rosenblatt, for the appellant (plaintiff).

      Richard A. Mills, with whom, on the brief, was Gregory T. D’Auria, for the appellees (defendants).
   Landau, J.

The plaintiff, Joan Erisoty, appeals from the decision of the workers’ compensation commissioner dismissing the discrimination claim she filed against her employer, the defendant Merrow Machine Company (Merrow), claiming that the termination of her employment violated General Statutes § 31-290a. The plaintiff claims that the commissioner improperly (1) allocated the burden of proof in her discrimination claim, and (2) held that the parties’ stipulated agreement barred this claim.

The following facts are relevant to this appeal. Erisoty worked for approximately twenty years as a pieceworker at Merrow, an industrial sewing machine manufacturer. On June 16, 1986, Erisoty suffered a work related injury known as carpal tunnel syndrome. Her injury was followed by extensive physical therapy and surgery. On January 13,1987, the parties entered into a voluntary agreement in full and final satisfaction of all workers’ compensation claims. Merrow accommodated Erisoty’s injury by finding her light duty work until September 28,1988, when Erisoty was diagnosed as totally disabled and ceased working on the advice of her physician. Her disability treatment continued until July 21, 1989, when her physician allowed her to return to work with some restrictions. In July, 1989, Merrow terminated Erisoty’s employment claiming that the department in which she had worked did not have sufficient suitable light duty work to keep her busy.

The plaintiff filed this discrimination claim pursuant to § 31-290a alleging that the defendant had terminated her employment because she had filed a claim for workers’ compensation benefits. On January 29, 1993, the workers’ compensation commissioner found that the plaintiff would “never be able, due to her physical disability and her medical restrictions, to return to her regular job at Merrow Machine.” The commissioner further found that the plaintiff was unable “to perform all job duties within her [light work] classification,” and that Merrow had made numerous good faith attempts to accommodate her work related restrictions. He then concluded that the plaintiff had not met the burden of proof necessary to establish a prima facie case of discrimination under § 31-290a, and dismissed the claim. This appeal followed.

The plaintiff claims that the commissioner failed to apply the analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), to her discrimination case. She argues that the commissioner’s factual findings indicate that the formula that shifts the burden of proof was not applied or was misapplied. She also argues that the commissioner ignored relevant evidence and misapplied the facts. We disagree.

Our Supreme Court has set forth the allocation of burdens of proof and order of presentation of proof in discrimination cases brought pursuant to § 31-290a in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 578 A.2d 1054 (1990). “The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. [McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802]. In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas Corporation v. Green, supra [802]. ‘If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.’ Texas Department of Community Affairs v. Burdine, supra, 255. The plaintiff then must satisfy her burden of persuading the fact-finder that she was the victim of discrimination ‘either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ Id., 256; see McDonnell Douglas Corporation v. Green, supra, 804-805.” Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 53-54.

Section 31-290a was designed to protect employees who file for workers’ compensation benefits. Chiaia v. Pepperidge Farm, Inc., 24 Conn. App. 362, 365-66, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991). The burden shifting formula presented in Ford required the plaintiff here to establish a prima facie case under § 31-290a, i.e., she bore the initial burden of demonstrating discrimination by a preponderance of the evidence. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 216 Conn. 53. “The plaintiffs must, present some evidence from which a trier of fact could infer that the employer discharged or discriminated against the employees because they had exercised their rights under the Workers’ Compensation Act. Id., 53-54. Without some proof of an improper motive, [a plaintiff’s] case must fail. See id.” Chiaia v. Pepperidge Farm, Inc., supra, 366.

The plaintiff’s arguments that the commissioner misapplied the law in this area revolve around the commissioner’s fact-finding responsibilities. She advances that the following facts, presented to the commissioner, established Merrow’s intent to discriminate against her for having filed a workers’ compensation claim: she was a member of a protected class; she applied for and was qualified for jobs Merrow was seeking to fill; she was rejected for available work at Merrow; and positions at Merrow remained available for which Merrow sought applicants. The commissioner found, however, that, although Merrow had attempted to place her in positions to accommodate her medical restrictions, her injuries were aggravated by all the job duties within her department. He found that, following her release to return to work, there was no long-term work suitable for the plaintiff at Merrow that was within her work restrictions, i.e., she was not qualified for jobs that Merrow sought to fill.

“The workers’ compensation commissioner has the power and the duty to determine the facts, and we will not review facts reasonably found by the commissioner. The commissioner’s conclusions that are drawn from those facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Besade v. Interstate Security Services, 212 Conn. 441, 448, 562 A.2d 1086 (1989); Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).” Chiaia v. Pepperidge Farm, Inc., supra, 24 Conn. App. 364. The commissioner heard the evidence and determined that the facts did not support even the initial burden of producing evidence from which it could be inferred that Merrow had a discriminatory motive in terminating her employment. We conclude that the facts found were reasonable, and that the conclusions drawn by the commissioner did not result either from an incorrect application of the law, or from an illegal or unreasonable inference drawn from the facts.

Section 31-290a “does not require an employer to retain an employee unable to perform his or her work simply because that inability resulted from a work related injury or illness. See, e.g., Hines v. United Parcel Service, Inc., 736 F. Sup. 675, 678 (D.S.C. 1990); Fergerstrom v. Datapoint Corporation, 680 F. Sup. 1456 (D. Hawaii 1988); Smith v. Electrical System Division of Bristol Corporation, 557 N.E.2d 711 (Ind. App. 1990); Rowland v. Val Agri, Inc., 13 Kan. App. 2d 149, 766 P.2d 819 (1988); Mitchell v. St. Louis County, 575 S.W.2d 813 (Mo. App. 1978); Galante v. Sandoz, Inc., 192 N.J. Super. 403, 410, 470 A.2d 45 (1983), aff'd, 196 N. J. Super. 568, 483 A.2d 829 (1984); Duncan v. New York State Developmental Center, 63 N.Y.2d 128, 470 N.E.2d 820 (1984). Businesses would suffer significant losses if they were prevented from filling employment vacancies after the lapse of a reasonable period of time. See Duncan v. New York State Developmental Center, supra, 135.” Chiaia v. Pepperidge Farm, Inc., supra, 24 Conn. App. 366-67.

In order to meet the initial burden of proof in a claim arising under § 31-290a, the plaintiff would have had to present some evidence to infer that Merrow had a discriminatory intent when it terminated her employment. Because the plaintiff was discharged solely as a result of Merrow’s inability further to accommodate the plaintiff’s medical condition, we agree with the commissioner that there was no contravention of § 31-290a.

The order of the commissioner dismissing the plaintiff’s claim is affirmed.

In this opinion the other judges concurred.

         The Aetna Life and Casualty Company, Merrow’s workers’ compensation insurer, was also named as a defendant.

       General Statutes § 31-290a (a) provides: “No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.”

       The parties have briefed a third claim that this appeal should be dismissed as untimely. On June 23, 1993, the defendants’ motion to dismiss for untimeliness was denied without prejudice by a motions panel of this court. We see no reason to depart from that decision.

       The commissioner also found that the plaintiff’s signing of a full and final stipulation in May or June, 1989, released any claim she may have had under General Statutes § 31-290a. Because we affirm the commissioner’s dismissal on the basis of proof, we do not reach this issue.

       General Statutes § 31-290a (b) provides two alternative procedures under which an employee may commence a claim of wrongful discharge or discrimination. The employee may either bring an action in the Superior Court or file a complaint with the workers’ compensation commission with the right to direct appeal to this court. The plaintiff chose the second option and her appeal is before this court directly from the commissioner.

       If proven, these facts would establish a prima facie case for the initial burden of production in establishing a discrimination claim pursuant to General Statutes § 31-290a. See McDonnell Douglas Corp. v. Green, supra, 311 U.S. 802.


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    T.P. Brewer Construction Company v. F and G Associates et al.
    (12627)
    O’Connell, Foti and Schaller, Js.
    Argued March 22
    decision released June 21, 1994

      Martin A. Clayman, for the appellants (defendants).

      Stephen J. Sinatro, for the appellees (plaintiff and third party defendant).
   Schaller, J.

The defendants, F and G Associates (F & G), Morton Fine, Philip Fine and J. Scott Guilmartin, appeal from the judgment of the trial court rendered in favor of the plaintiff. The action, which was based on theories of breach of contract and quantum meruit relating to the performance of site work at an office park in East Granby, was brought against F & G, a partnership, Philip Fine and Morton Fine, two of the three partners in F & G, and J. Scott Guilmartin. The third F & G partner, J. Scott Corporation, was not made a party to the action. F & G asserted a counterclaim against the plaintiff as well as a third party complaint against Terrence P. Brewer, the president of the plaintiff corporation.

After a trial, the court rendered judgment on the complaint in favor of the plaintiff against Philip Fine, Morton Fine and J. Scott Guilmartin on the theory of quantum meruit, and on the counterclaim in favor of the plaintiff. Judgment was rendered in favor of Brewer on the third party complaint. No disposition of the complaint was made with respect to F & G. In response to the plaintiffs motion for articulation with respect to the written memorandum of decision, the trial court stated that “judgment [was] entered against those F & G Associates who signed the contract, i.e., Guilmartin, Morton Fine and Philip Fine only.” Again, there was no disposition noted as to F & G.

The lack of a final judgment is a jurisdictional defect that implicates the authority of this court to hear the appeal. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985). “The finality requirement underlying our appellate review represents a clear and firm policy against piecemeal appeals. State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982). The test of a final judgment is if the rights of the parties are concluded so that further proceedings cannot affect them. . . . Monroe v. Monroe, 177 Conn. 173, 176, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979).” (Internal quotation marks omitted.) Goodson v. State, 228 Conn. 106, 111-12, 635 A.2d 285 (1993).

If one of the parties seeks to have the trial court render judgment for or against F & G in this matter, such further proceedings may affect the rights of the three remaining defendants, namely, Morton Fine, Philip Fine and J. Scott Guilmartin. If the court renders judgment against F & G, then F & G will be partially liable for the debt. A judgment against F & G, therefore, could impact on the nature and amount of liability incurred by the three individual defendants.

Because this court lacks jurisdiction to hear the appeal, we must dismiss the appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       We note that General Statutes § 34-53 provides: “All partners are liable: (a) Jointly and severally for everything chargeable to the partnership under sections 34-51 and 34-52; (b) jointly for all other debts and obligations of the partnership; but any partner may enter into a separate obligation to perform a partnership contract.” If the trial court renders judgment against F & G, then J. Scott Corporation, Morton Fine and Philip Fine would be jointly liable for the debt of F & G. J. Scott Guilmartin is not the sole stockholder in J. Scott Corporation; rather, the principal stockholders of J. Scott Corporation are J. Scott Guilmartin and Terrence Brewer, each holding a fifty percent share of the stock. Although J. Scott Guilmartin was named as a defendant in this case, J. Scott Corporation was not so named; thus, it incurred no liability. If the trial court were to render judgment against F & G, then J. Scott Corporation, not previously involved in the disposition of the case, would incur some liability, causing the judgment to impact on the nature and/or amount of liability already incurred by J. Scott Guilmartin, Morton Fine and Philip Fine.


text:
    State of Connecticut v. Omar Lopez
    (11458)
    O’Connell, Landau and Schaller, Js.
    Argued March 1
    decision released June 21, 1994

      Neal Cone, assistant public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and James Bernardi, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the trial court’s judgment of conviction, rendered after a jury trial, of eighteen counts of illegal sale of narcotics in violation of General Statutes § 21a-277 (a). The defendant claims that the trial judge improperly (1) failed to be present in the courtroom during the voir dire process, (2) denied his motion for judgment of acquittal on three counts of accessory liability on the ground that the evidence was insufficient to sustain the verdict, and (3) instructed the jury as to reasonable doubt and the presumption of innocence. We reverse the judgment of the trial court because the trial judge’s absence from the courtroom during voir dire in this criminal trial is improper. We address the defendant’s second claim for reasons stated herein.

The facts of this case are as follows. In October, 1990, the statewide narcotics task force and the Stamford police department began an undercover investigation of the defendant, who was suspected of the illegal sale of narcotics in the city of Stamford. On several occasions, Detective Carlos Cotto, wearing a body microphone, posed undercover as a drug purchaser. Over a six month period, the investigation team recorded eighteen separate transactions between Cotto and the defendant. When possible, a surveillance team videotaped the drug transactions between the defendant and Cotto.

The defendant elected to be tried by a jury. During the voir dire, the trial judge was not present in the courtroom and permitted jury selection to be conducted in his absence. On April 2, 1992, a jury convicted the defendant of eighteen counts of the sale of narcotics. The defendant appeals his convictions.

The defendant first claims that the trial judge improperly absented himself from the jury selection process. He claims that the judge is required to be present during voir dire as a matter of public policy, the state constitution, the General Statutes, the Practice Book and the federal constitution. Relying on State v. Patterson, 31 Conn. App. 278, 624 A.2d 1146, cert. granted, 227 Conn. 901, 630 A.2d 72 (1993), the defendant claims that the trial judge’s absence from the courtroom during voir dire in his criminal trial was a per se violation of his right to an impartial jury, and, thus, reversible error. The state urges this court to limit our holding in Patterson to Batson claims only. Alternatively, the state requests that this court reconsider its holding in Patterson, and reassess (1) whether the judge’s absence from the jury selection process is per se reversible error, and (2) whether the judge’s absence constitutes an error that cannot be waived or be held harmless.

This court, having fully addressed the issues presented by this appeal in State v. Patterson, supra, 31 Conn. App. 278, refuses to revisit them. “[T]he trial judge’s absence from the courtroom during voir dire in a criminal trial is per se reversible error.” Id., 303; State v. Paul, 33 Conn. App. 509, 636 A.2d 413 (1994). This case is controlled by our decision in Patterson. The judgment is reversed.

Despite our conclusion that a reversal is required, this court must review the defendant’s second claim as to sufficiency of the evidence to determine the appropriate remand. The defendant’s second claim is that there was insufficient evidence to support his convictions on three counts of accessory liability. He challenges the convictions involving drug transactions on November 6 and November 15, 1990, and January 3, 1991.

Some additional facts are necessary for the resolution of this issue. On November 6, 1990, Cotto telephoned the defendant’s beeper number, as the defendant had instructed him. Cotto waited for the defendant’s return call, but that call came from a female whose voice Cotto did not recognize. When Cotto asked to speak with the defendant, the woman informed him that the defendant was not available. Cotto then asked to purchase two eighths of an ounce of cocaine. The woman told him to go to the Paint Products Company parking lot in ten to fifteen minutes. Cotto asked if she was the same woman who had delivered drugs to him previously at the Paint Products Company parking lot and she said that she was. At the Paint Products Company parking lot, Cotto met the woman as planned, got into her car, and asked for her name. She identified herself as Martha, and told Cotto that when he calls the defendant’s beeper, the defendant calls her, and she makes the delivery. Cotto gave Martha $360 and received from her two eighths of an ounce of cocaine. A tape recording of the conversation between Cotto and Martha during this transaction was admitted as evidence.

On November 15, 1990, Cotto again called the defendant’s beeper number. A female returned his call and Cotto recognized Martha’s voice. Cotto requested two eighths of an ounce of cocaine, and was told to go to the “usual place” in thirty to forty minutes. Cotto went to the Paint Products Company parking lot and waited. When Martha arrived, Cotto got into her car, where they exchanged $360 for the drugs and had a brief conversation. Video and audio recordings of this transaction were admitted into evidence.

On January 3, 1991, Cotto telephoned the defendant’s beeper number. He then entered the number of eighths of an ounce of cocaine he was interested in purchasing. The defendant had instructed Cotto to use this procedure in order to avoid discussing quantities over the telephone. Since the November 21, 1990 transaction, Cotto had been using this method of ordering. The defendant called back and instructed Cotto to go to the Paint Products Company parking lot. A Hispanic female, not Martha but the same woman who had delivered the cocaine on the previous transaction, arrived at the lot. Cotto gave her $360 and received two eighths of an ounce of cocaine. Both a videotape and an audiotape of the transaction were admitted at trial.

The defendant claims that the evidence of these three transactions did not constitute a sufficient connection to the defendant to support a finding of guilty beyond a reasonable doubt. We disagree.

“ ‘When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).’ State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Emphasis in original.) State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564.” (Emphasis added.) State v. Hamilton, 30 Conn. App. 68, 71-72, 618 A.2d 1372 (1993), aff’d, 228 Conn. 234, 636 A.2d 760 (1994).

The three transactions at issue exhibited no departure from the pattern that had been established for conducting business between the defendant and Cotto. The beeper number that Cotto called each time had been given to him by the defendant. On all three occasions, the same beeper number was used, the same persons had delivered for the defendant, and the same place for delivery was used. There is nothing in the record to indicate that Martha was acting on her own in conducting the drug transactions with Cotto on either November 6 or November 15. In fact, she identified herself as the defendant’s delivery messenger when she explained that when Cotto called the defendant’s beeper number, the defendant called her and she made the delivery. The Hispanic woman who arrived on January 3 had also made a prior delivery for the defendant. The pattern established for purchasing drugs over a six month period did not deviate. We are persuaded on the basis of these facts that the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.

The judgment of the trial court is reversed and the case is remanded for a new trial on all counts.

In this opinion the other judges concurred.

       The defendant was found guilty of eighteen counts of the sale of narcotics in violation of General Statutes § 21a-277 (a), one count as a principal and the remaining counts as an accessory pursuant to General Statutes § 53a-8.

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be •both fined and imprisoned.”

       Because the resolution of the defendant’s first two claims is dispositive of the appeal, it is unnecessary to reach the defendant’s third claim.

       The facts necessary for the resolution of the defendant’s second claim will be set out in the discussion of that claim.

        Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (error to exercise discriminatorily peremptory challenge to exclude black venireperson from jury).

       The state also urges the court to withhold opinion on this issue until our Supreme Court has the opportunity to review it, and then to order supplemental briefs from both parties consistent with the holding of the Supreme Court. We decline to do so.

       During the trial judge’s absence, one venireperson was excused by agreement between the state and defense counsel without any questioning, or, apparently, even without setting foot in the courtroom merely because she wore a hearing aid. In addition, a dispute involving a challenge for cause could not be resolved immediately because, according to staff, the judge was not available. We are aware of the burden of the judges of the trial courts, and yet must recognize the problems deriving from the trial judge’s absence.

       If the state has failed to present sufficient evidence on the three counts, then the defendant is entitled to an acquittal as to those counts. If the evidence presented is sufficient to sustain the verdict, the state may retry the case upon remand without the threat of a double jeopardy claim. See State v. Dunn, 26 Conn. App. 114, 124, 598 A.2d 658 (1991).

       Cotto purchased drugs using basically the same modus operandi on five other occasions between the November 15,1990 and January 3,1991 transactions: November 20, November 27, December 5, December 13, and December 21, 1990.


author: Per Curiam.

text:
    Matka Corporation v. Automated Material Handling, Inc.
    (13539)
    Dupont, C. J., Lavery, Schaller and Spear, Js.
    Considered May 25
    decision released June 2, 1994

      Paul A. Keily, in favor of the motion.

      Wendy J. Davies, in opposition to the motion.
   Per Curiam.

The plaintiff in this breach of contract action has filed a motion to dismiss the defendant’s appeal as untimely. The dispositive issue in this appeal is whether the filing of a motion for articulation extends the appeal period pursuant to Practice Book § 4009. We conclude that it does not and therefore, grant the motion to dismiss.

The facts of this case are not in dispute. In April, 1992, the plaintiff brought an action against the defendant for breach of an alleged contract concerning computer consulting work. An attorney fact finder found for the plaintiff. On March 28,1994, the trial court rendered judgment in accordance with the findings of the fact finder. The defendant filed a motion for articulation requesting that the court articulate the basis for its decision. That motion was denied on April 13,1994. The defendant appealed on April 22, 1994, from the judgment rendered in accordance with the findings of the fact finder and the denial of its motion for articulation.

Pursuant to Practice Book § 4009, a party appealing shall file an appeal within twenty days from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken. “[B]ut if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective . . . the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion . . . (Emphasis added.)

The plaintiff moves to dismiss the appeal as untimely because it was not filed within twenty days from the issuance of notice of judgment for the plaintiff. The defendant, on the other hand, contends that the appeal was timely because it was filed within twenty days of the order denying its motion for articulation.

“The purpose of ... a motion [for articulation] is to clarify an ambiguity or incompleteness in the decision of the trial court.” State v. Holloway, 22 Conn. App. 265, 274, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990). “ ‘[It] is not an opportunity for a trial court to substitute a new decision [or] to change the reasoning or basis of a prior decision.’ ” Miller v. Kirshner, 225 Conn. 185, 208, 621 A.2d 1326 (1993), quoting Koper v. Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989). Because the purpose of an articulation is to clarify and not to change a decision substantively, a decision granting the defendant’s motion for articulation would not “render the judgment or decision ineffective.” Practice Book § 4009. Therefore, a motion for articulation is not included among those motions that extend the appeal period pursuant to Practice Book § 4009. The plaintiff’s motion to dismiss is granted.

The appeal is dismissed.

       It is not proper appellate procedure for a defendant to seek review of the denial of a motion for articulation by way of an appeal. A motion for review may be filed with this court pursuant to Practice Book § 4054 after taking a timely appeal, provided the motion for articulation was filed after the appeal was taken. See Practice Book § 4051; Stamford Apartments Co. v. Stamford, 203 Conn. 586, 590 n.1, 525 A.2d 1327 (1987); Marcus v. DuPerry, 25 Conn. App. 293, 294 n.1, 593 A.2d 163 (1991), rev’d in part on other grounds, 223 Conn. 484, 611 A.2d 859 (1992).


author: Lavery, J.

text:
    Gus Pelarinos v. Genevieve Henderson et al.
    (12218)
    Lavery, Heiman and Schaller, Js.
    Argued March 24
    decision released June 21, 1994

      William F. Gallagher, with whom, on the brief, was Mark R. Leder, for the appellants (defendants).

      Eliot B. Gersten, with whom, on the brief, was Andrea A. Hewitt, for the appellee (plaintiff).
   Lavery, J.

The sole issue in this appeal from a suit to enforce two promissory notes is whether the trial court properly excluded the deposition testimony of the defendant Donald Henderson, husband of the defendant Genevieve Henderson. The defendants assert that the trial court abused its discretion when it refused to admit the deposition pursuant to Practice Book § 248 (1) (d). We agree.

The defendants purchased commercial property from the plaintiff, Gus Pelarinos, in 1988. The defendants executed two promissory notes in favor of the plaintiff totaling $230,000. In addition to the defendants’ personal obligation, the notes were secured by the commercial property. After the defendants defaulted on the notes in the fall of 1989, the plaintiff commenced suit for breach of contract.

The defendants filed a special defense, claiming fraudulent misrepresentation. The defendants alleged that they had been induced to sign the notes by the plaintiff’s oral promise that, if they defaulted, he would seek satisfaction solely from the secured commercial property, not their personal guarantee. The plaintiff denied the allegation.

At trial, Genevieve Henderson testified to the facts contained in the special defense. She also testified that Donald Henderson was incarcerated in federal prison in Pennsylvania. The plaintiff’s testimony contradicted Genevieve Henderson’s assertions and was corroborated by the testimony of an attorney who represented the defendants in the transaction. Although Genevieve Henderson had testified that her daughter and another former attorney could corroborate her claims, the defendants called neither as a witness. The adverse inference permitted to be drawn from these missing witnesses also strengthened the plaintiff’s case. See Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).

On the basis of the uncontroverted evidence that Donald Henderson was in prison, the defendants offered his testimony recorded at a deposition noticed and taken by the plaintiff, pursuant to Practice Book § 248 (1) (d). The plaintiff objected that the defendants had not demonstrated sufficient attempts to obtain Donald Henderson’s presence at trial. Further, the plaintiff complained that he had not been notified of the defendants’ intention to offer the deposition until two days before trial. The trial court excluded the deposition testimony on these grounds. Subsequently, the jury returned a verdict for the plaintiff.

Practice Book § 248 (1) (d) (3) permits a party to offer a deposition into evidence if the court finds that the deponent is unable to attend or testify because of imprisonment. Once this requirement is satisfied, the deposition is admissible to the same extent as if the deponent were present and testifying. Practice Book § 248 (1). Admission of a deposition under this rule does not preclude the opponent from objecting to the deposition or any part thereof on grounds that would require the exclusion of the evidence if the deponent testified in court. Practice Book § 248 (2); Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 582-83, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986).

“The admissibility of a deposition into evidence under Practice Book § 248 is permissive in nature, leaving the ultimate determination to the trial judge. ... On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference . . . [and] will be disturbed only upon a showing of clear abuse of discretion. . . . The party making the claim of error has the burden of showing that the court clearly abused its discretion.” (Citations omitted; internal quotation marks omitted.) Cahn v. Cahn, 225 Conn. 666, 678, 626 A.2d 296 (1993).

The trial court had evidence before it that Donald Henderson was incarcerated in Pennsylvania. The plaintiff did not contest that Henderson was incarcerated. Notwithstanding this uncontroverted evidence, the trial court refused to receive the deposition under § 248 (1) (d).

The trial court found that the defendants had not satisfied the requirements of § 248. The court required the defendants to show that they had attempted to obtain Donald Henderson’s presence at trial. Section 248 requires no such showing. The rule simply states that if the court finds that the witness is unable to attend the trial because of imprisonment, then any party may use the deposition for any purpose. The plaintiff suggests that the text requires the court to find, first, that the witness is imprisoned and, second, that the witness is unable to attend the trial. Such a reading imposes on the offering party a duty to demonstrate good faith efforts to obtain the witness’ presence. We cannot read such a requirement in the phrase “unable to attend.”

Where the rules of practice intend that good faith efforts be made before a deposition can be admitted, they expressly require such a showing. Thus, a deposition of an absent witness is admissible in a criminal trial if the proponent of the deposition “has been unable to procure [the witness’] attendance by subpoena or by other reasonable means.” Practice Book § 803; see also Practice Book § 793; State v. Sanchez, 25 Conn. App. 21, 24, 592 A.2d 413 (1991).

Section 248 (1) (d) (3) of our Practice Book is almost identical to rule 32 (a) (3) of the Federal Rules of Civil Procedure. Where a state rule is similar to a federal rule we review the federal case law to assist our interpretation of our rule. Arduini v. Automobile Ins. Co. of Hartford, 23 Conn. App. 585, 589, 583 A.2d 152 (1990). In this instance, our review of federal cases supports our conclusion. In In re Moore, 39 B.R. 571, 572 (M.D. Fla. 1984), the defendant argued that “in addition to showing the undisputed fact of the witness’ imprisonment at the time of the trial, the defendant must show unavailability on account of imprisonment, i.e., that he tried and failed to produce the witness through use of a habeas corpus proceeding . . . .’’The court characterized this argument as frivolous. Id. “There is some theoretical means by which virtually any living witness, however restricted in movement, might, with sufficient effort and expense, attend a trial. There is no basis for a belief that the rule requires extraordinary effort to establish unavailability.” Id.; see also United States v. M/V Christy Lee, 640 F. Sup. 667, 668 (S.D. Fla. 1986) (noting that imprisonment makes deposition admissible without reference to good faith attempts to obtain witness’ presence). Likewise, we conclude that § 248 (1) (d) (3) does not require a showing of good faith efforts to obtain the witness’ presence.

Similarly, § 248 (1) (d) has no notice requirement. To the extent that the trial court based its ruling on Genevieve Henderson’s tardy notice, it imposed a condition not inherent in, or envisioned by, the rule. Thus, the trial court’s ruling contravened the only evidence before it and was based on two conditions not required by the rule. We conclude, therefore, that the trial court abused its discretion when it excluded Donald Henderson’s deposition testimony.

“We have often stated [however] that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling ‘would likely affect the result. . . . The determination of that question lies in the record.’ ” Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990).

The defendants had the burden of proving their special defense of fraudulent misrepresentation by clear and convincing evidence. Genevieve Henderson testified that the plaintiff had induced the defendants to sign the notes by promising that he would seek satisfaction of the notes solely from the commercial property. Conversely, the plaintiff denied making any such representations. The plaintiff’s testimony was corroborated by testimony of the defendants’ attorney, and the adverse inference permitted to be drawn from the defendants’ failure to produce two potentially corroborating witnesses. Thus, by preventing Donald Henderson from testifying, the trial court prevented the jury from hearing corroborating testimony from one of only three potential sources. In light of these facts, we conclude that the trial court’s exclusion of the deposition was likely to affect the result.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Practice Book § 248 (1) (d) provides in pertinent part: “The deposition of a witness . . . whether or not a party, may be used by any party for any purpose if the court finds ... 3. that the witness is unable to attend or testify because of . . . imprisonment . . . .”

       Rule 32 (a) (3) of the Federal Rules of Civil Procedure provides in part: “The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds . . . (C) that the witness is unable to attend or testify because of . . . imprisonment . . . .”


author: Freedman, J.

text:
    Richard Rogozinski v. American Food Service Equipment Corporation et al.
    (12396)
    Lavery, Landau and Freedman, Js.
    Argued April 5
    decision released June 21, 1994

      William C. Turney, with whom, on the brief, was Herbert Watstein, for the appellant (plaintiff).

      James E. Kernan, for the appellee (defendant Henry M. Osowiecki and Sons, Inc.).

      Robert H. Hall, for the appellee (defendant Connecticut Light and Power Company).

      Joseph A. LaBella, for the appellee (defendant Regional Reporting Services of New England, Inc.).

      Randolph E. Richardson II, with whom was Elizabeth A. Bozzuto, for the appellees (defendant American Food Service Equipment Corporation et al.).
   Freedman, J.

The plaintiff, Richard Rogozinski, appeals from the trial court’s judgment rendered following the granting of the defendants’ motions for summary judgment. On appeal, the plaintiff claims the trial court improperly (1) held that the plaintiff’s action was barred by the statute of limitations, and (2) set aside the default for failure to plead against the defendant Connecticut Light and Power Company (CL&P). We affirm the judgment of the trial court.

The trial court found the following facts. In 1982, the plaintiff hired the defendant Henry M. Osowiecki and Sons, Inc. (Osowiecki) and other contractors to renovate, construct and install a kitchen, designed by the defendant American Food Service Equipment Corporation (American Food) in the plaintiffs restaurant. Soon after the restaurant opened, it was severely-damaged by a fire in the kitchen. The plaintiffs insurer, Transit Casualty Insurance Company (Transit), paid the plaintiff pursuant to his insurance policy. The plaintiff and Transit initially filed a suit against Osowiecki, American Food, Willis A. Holmes, Jr., Marcel Dionne Regional Reporting Services of New England, Inc., and CL&P.

In this initial action, the plaintiff and Transit alleged that the fire had been caused by the placement of an oven too close to an insufficiently fireproofed wall. This action was dismissed on August 3, 1987, because the plaintiff failed to comply with a request to revise the complaint. On March 23, 1988, the plaintiff and Transit refiled the action, pursuant to General Statutes § 52-592, the accidental failure of suit statute. This second action was dismissed on June 14, 1988, for late return of process.

On July 14,1988, the action was again refiled. This time, however, the plaintiff and Transit alleged breach of contract as well as the negligence alleged in the previous actions. This third action was dismissed on December 8,1989, for failure to prosecute with due diligence pursuant to Practice Book § 251. The plaintiff, this time without Transit, again refiled the breach of contract action on October 26, 1990 (fourth action).

The complaint in the plaintiffs fourth action alleged that the defendants had breached their contracts in that they breached implied warranties and failed to perform their work in a skillful and workmanlike manner. On December 31,1991, Osowiecki filed a motion for summary judgment. The trial court, Meadow, J., in a written memorandum of decision, granted the motion for summary judgment. The other defendants filed subsequent motions for summary judgment which were granted without an opinion by the trial court, Parker, J. On April 23,1993, the plaintiff filed a motion for articulation of the trial court’s granting of the defendants’ motions for summary judgment. The trial court denied the motion for articulation. The plaintiff appeals from the judgment granting all the motions for summary judgment.

I

The plaintiff first claims that the trial court improperly held that his action was barred by the statute of limitations. Specifically, the plaintiff claims that the trial court improperly held that the term “original action” in General Statutes § 52-592 (a) refers to the first action brought by the plaintiff, sounding in negligence, and not the subsequent action sounding in contract. We do not agree.

Before we begin our analysis, it is helpful to point out what is presently at issue before us. The question is not whether the plaintiff, after timely filing a negligence action that is dismissed without resolution on the merits, may later timely file an action based on the same factual scenario but sounding in contract. The question is whether a plaintiff may take advantage of the accidental failure of suit statute, General Statutes § 52-592 (a), where the factual basis of the initial action is the same as a subsequent action, but the initial action sounds in tort and the subsequent action sounds in contract.

Section 52-592 (a) provides: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . for any matter of form . . . the plaintiff . . . may commence a new action ... for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.” (Emphasis added.)

The plaintiff argues that the plain meaning of the language of § 52-592 (a) provides that if any action, commenced within the statute of limitations, has been defeated for any matter of form, then he may bring a new action for that same cause under the statute. He further argues that because he filed the contract action for the first time, on July 14,1988, within the six year statute of limitations, and then commenced the action presently before us within one year of the dismissal of the contract action for a matter of form, the contract action is saved by the statute. At first glance, this argument is appealing. On closer inspection, however, the argument is not persuasive.

In order to take advantage of § 52-592 (a), the plaintiff must satisfy all the requirements therein. Here, the contract action (the third action) was commenced within the time limited by law, and it has not been tried on its merits due to its dismissal for a matter of form. The question that remains is whether the fourth action was filed within one year after the determination of the “original action.” Resolution of this matter, therefore, turns on the meaning of the term “original action” for the purpose of § 52-592 (a).

In Pintavalle v. Valkanos, 216 Conn. 412, 416, 581 A.2d 1050 (1990), our Supreme Court, citing Marangio v. Shop Rite Supermarkets, Inc., 11 Conn. App. 156, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987), held that the term “original action” in § 52-592 (a) refers to the first action brought within the applicable statute of limitations. Section 52-592 (a), therefore, may be used only in the situation where a plaintiff files a subsequent action within one year of the dismissal, for the reasons provided in the statute, of the first action. We, therefore, must determine which action, the negligence action or the contract action, was the first action for the purpose of § 52-592 (a).

It is well settled that “[a] cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778 [1952]; Veits v. Hartford, 134 Conn. 428, 434, 58 A.2d 389 [1948]. ‘A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action.’ Pavelka v. St. Albert Society, 82 Conn. 146, 147, 72 A. 725 [1909].” Gallo v. G. Fox & Co., 148 Conn. 327, 330, 170 A.2d 724 (1961). “Even though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action. [Bridgeport Hydraulic Co. v. Pearson, supra, 197].” Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 365, 511 A.2d 333 (1986).

Here, the group of facts from which the contract action arises is identical to the group of facts from which the negligence action arises. Both actions, therefore, are the same “cause of action.” Because there is only one “cause of action,” the first action must be the original negligence action dismissed on August 3, 1987. In order for § 52-592 (a) to apply, a subsequent action must have been filed within one year of August 3,1987. The action filed October 26, 1990, was filed well after the expiration of the one year period, and therefore, cannot be saved by § 52-592 (a).

The trial court properly found that the plaintiffs action was barred by the statute of limitations.

II

The plaintiff next claims that the trial court improperly set aside the default for failure to plead against CL&P. We do not agree.

On April 3, 1992, the plaintiff filed a motion for default for failure to plead against CL&P. The trial court granted this motion on April 13, 1992. On October 5,1992, the plaintiff filed a claim for the civil trial list for a hearing in damages. On October 8, 1992, CL&P filed a motion to set aside the default pursuant to Practice Book § 363A. The trial court granted this motion on November 9, 1992.

Practice Book § 363A provides in part: “If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the court, the clerk shall set aside the default. If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the court.” Here, a claim for a hearing in damages was filed on October 5,1992, and therefore, the default may have been set aside only by the court.

The plaintiff argues that because § 363A does not provide any guidelines for the trial court to follow when determining whether to set aside a default, the trial court should turn to Practice Book § 376 for such guidelines. We are not persuaded.

Section 363A is entitled “Where Defendant is in Default for Failure to Plead.” It, therefore, specifically applies to situations where a defendant is in default for failure to plead, while § 376 refers to motions to set aside a default as long as judgment has not been entered. Additionally, the language of § 376 specifically refers to § 363A and the fact that certain defaults may be set aside by the clerk. We conclude that because there is a specific rule of practice concerning motions to set aside a default for failure to plead we should rely on that particular rule in this case, and not look to the standards of a different rule.

In the past this court has reviewed a trial court ruling on a motion to set aside a default for failure to plead pursuant to § 363A under the abuse of discretion standard. Tolland Bank v. Larson, 28 Conn. App. 332, 610 A.2d 720 (1992). Here, the attorney for CL&P submitted an affidavit attesting that there was a good defense, that a motion for summary judgment had been granted in the case with respect to a codefendant, that he intended to file a motion for summary judgment similar to that filed by the codefendant, and that he was not aware of the change in the rules of practice requiring an opening of a default by the court once a claim for a hearing in damages had been filed. He, therefore, thought that he would be able to file an answer as a matter of right. Our review of the record reveals that the trial court did not abuse its discretion in granting the motion to set aside the default for failure to plead.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants include Henry M. Osowiecki and Sons, Inc., American Food Service Equipment Corporation doing business as Waterbury Store Fixture Company, Willis A. Holmes, Jr., Marcel Dionne doing business as Dionne and Sons, Regional Reporting Services of New England, Ine., doing business as Regional Reporting Service, Inc., and Connecticut Light and Power Company.

       The plaintiff also claims that the trial court improperly extended the time in which CL&P could file its notice of defenses. Our review of the trial court file reveals that the trial court never granted CL&P an extension of time in which to file a notice of defenses. Such action would, in any event, have been unnecessary in light of the fact that the default was set aside and an answer and special defenses were filed.

       General Statutes § 52-592 (a) provides: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       In November, 1990, Transit filed its own breach of contract action in the federal district court. The suit in federal court was dismissed on July 1, 1991, because it was filed after the expiration of the statute of limitations.

       It is not clear from the motion itself whether the plaintiff was requesting an articulation of only the trial court’s decision granting the motion for summary judgment of CL&P, or whether the plaintiff was requesting an articulation of all the trial court’s decisions granting the motions for summary judgment of all the defendants other than Osowiecki. Resolution of this question, however, is not necessary for the disposition of this appeal because the trial court denied the plaintiff’s motion for articulation, and the plaintiff failed to file a motion for review with this court. Thus, with respect to all the defendants except Osowiecki, there is no signed transcript or memorandum of the trial court’s decision before this court. The plaintiff, therefore, has failed in his duty under our rules of practice to provide us with an adequate record to review his claims with respect to all the defendants except Osowiecki, and thus, those claims must fail. Holmes v. Holmes, 32 Conn. App. 317, 323, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993).

       General Statutes § 52-576 (a) provides: "No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.”

       See footnote 6.

       Dismissal for failure to prosecute with due diligence is considered a dismissal for a matter of form. Lacasse v. Burns, 214 Conn. 464, 572 A.2d 357 (1990); Skibeck v. Avon, 24 Conn. App. 239, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991). Additionally, all of the previous actions were dismissed without resolutions on the merits. The first action was dismissed for failure to comply with a request to revise. The second action was dismissed for late return of process. The action in federal district court was dismissed because it was filed after the expiration of the statute of limitations.

       The procedural situations addressed in Pintavalle v. Valkanos, 216 Conn. 412, 581 A.2d 1050 (1990), and Marangio v. Shop Rite Supermarkets, Inc., 11 Conn. App. 156, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987), differ somewhat from the situation presently before us. In both Pintavalle and Marangio, the plaintiff had filed an action within the applicable statute of limitations. That action was dismissed for a matter of form, and the plaintiff filed a subsequent identical action within one year, under General Statutes § 52-592 (a). This second action was also dismissed for a matter of form, and the plaintiff filed a third identical action within one year after dismissal of the second action, again relying on § 52-592 (a). In both cases our courts held that to allow a party repeatedly to utilize § 52-592 (a) was contrary to the plain language of the statute and it further defeated “the basic purpose of statutes of limitation, namely, promoting finality in the litigation process.” Pintavalle v. Valkanos, supra, 417; see also Marangio v. Shop Rite Supermarkets, Inc., supra, 160-61. Nonetheless, we conclude that even though the factual scenarios may differ, the same reasoning applies in this case. “[Section § 52-592 (a)] was passed to avoid the hardships arising from an unbending enforcement of limitation statutes. The extension of time provided by it applies to all cases where a suit, seasonably begun, has failed for one or more of the causes stated. . . . It is remedial and is to be liberally interpreted. . . . When a suit has been started seasonably, the statute extends the Statute of Limitations for a period of one year after the determination of the original action.” (Citations omitted; internal quotation marks omitted.) Ross Realty Corp. v. Surkis, 163 Conn. 388, 392-93, 311 A.2d 74 (1972). Here, the fire occurred twelve years ago and this is the fourth action started in state court to resolve the dispute. All of the previous dismissals were due to some failure to act on the part of the plaintiff. Thus, it is clear that this is not the situation that § 52-592 was intended to remedy.

       Practice Book § 376 provides: “A motion to set aside a default where no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose. As part of its order the court may extend the time for filing pleadings or disclosure in favor of a party who has not been negligent. Certain defaults may be set aside by the clerk pursuant to Secs. 352 and 363A.”

       On October 1,1992, Practice Book § 363A was amended to include the last sentence which provides that “[i]f a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the court.” Prior to October 1, 1992, where a judgment on the default had not been rendered by the court, the clerk was required to set aside the default on the filing of an answer by the defendant. Here, the plaintiff’s claim to the trial list for a hearing in damages was filed on October 5, 1992, and CL&P’s motion to set aside the default was filed October 8,1992.


author: Heiman, J.

text:
    State of Connecticut v. Susan Defrancesco
    (12700)
    Dupont, C. J., Heiman and Schaller, Js.

      Argued April 5
    decision released June 1, 1994

      Norton P. Feinstein, with whom was Joseph Cicala, certified legal intern, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Gerard Esposito, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of three counts of possession of a potentially dangerous animal in violation of General Statutes § 26-40a. On appeal, the defendant asserts that the trial court improperly rendered the judgment of conviction because (1) the defendant is exempt from the prohibition of possession as set forth in General Statutes § 26-40a, and (2) the possession of a bengal cat, jungle cat and hybrid bobcat is not specifically prohibited by General Statutes § 26-40a, and, in the alternative, General Statutes § 26-40a is void for vagueness. We reverse in part.

The following facts are necessary for a proper resolution of this appeal. On January 27, 1992, Jan Puzas, an employee of the United States Department of Agriculture, regulatory enforcement animal care division (USDA), went to 15 Bryson Avenue in Seymour to perform a prelicensing inspection in response to the defendant’s application for an exhibitor’s license for one rabbit. Puzas observed that the defendant kept one jungle cat, one bengal cat and one bobcat surrounded by a stockade fence at the back of her yard. Puzas played with the animals and took pictures of them. She later gave the pictures to Sergeant Rick Lewis and Detective Jim Williams, officers of the Connecticut department of environmental protection (DEP). On March 10, 1992, the defendant received a class three license for the rabbit from the USDA under the Animal Welfare Act. 7 U.S.C. § 2133 (1993); 9 C.F.R. §§2.1 through 2.11 (1993). The defendant has never been found to be exempt from General Statutes § 26-40a by the DEP.

On February 16, 1992, the DEP, under the authority of a warrant secured after the defendant attempted to sell the three cats, removed the animals from the defendant’s premises and placed them in the care of Elaine Burk, an expert in the field of felidae and the head of Future Promise, a facility where rescued wild animals are cared for. The DEP also issued a misdemeanor complaint to the defendant charging her with a violation of General Statutes § 26-40a. Burk testified that these animals have a genetic propensity to be potentially dangerous. Burk further testified that bobcats weigh from twenty to forty-five pounds and hunt deer in Massachusetts during the winter; jungle cats weigh from fifteen to thirty pounds and a bengal cat is a cross between an Asian leopard cat and a domestic cat. Burk also testified as to the behavior of each of these animals while in her care. The bobcat bit both her and her husband and used her hind claws to cause lacerations. The jungle cat uses her claws routinely and caused a two and one-half inch bruise on Burk’s thigh. The bengal fought with the bobcat and, when Burk tried to separate the animals, the bengal attacked Burk, causing a laceration completely around her wrist and perforating her forearm four times.

The trial court found that the defendant possessed potentially dangerous animals in violation of General Statutes § 26-40a. Specifically, the trial court found that the state proved beyond a reasonable doubt that (1) the defendant possessed a bobcat, a jungle cat and a bengal cat, (2) the defendant did not qualify for an exemption from General Statutes § 26-40a, (3) the list in General Statutes § 26-40a is nonexclusive and serves only as an example of dangerous felidae, (4) the bobcat, whether hybrid or not, is specifically included on the list, (5) the jungle cat and the bengal cat are included on the list as they are of a type similar to those set forth in the list, (6) General Statutes § 26-40a is not void for vagueness, and (7) the license for the rabbit given under the Animal Welfare Act to the defendant by the USD A does not preempt General Statutes § 26-40a. Thus, the trial court found the defendant guilty on all three counts and fined her $25.00 on each count. This appeal followed.

I

We must first consider the merits of the defendant’s nonconstitutional claim that the trial court acted improperly in rendering judgment against the defendant. See Perry v. Perry, 222 Conn. 799, 805, 611 A.2d 400 (1992). Therefore, we must consider the defendant’s claim that she is exempt from the prohibition enunciated in General Statutes § 26-40a. The defendant asserts that she was exempt from the statute because she was operating a zoo and because she legally possessed other potentially dangerous animals prior to May 23, 1983.

The defendant argues that the definition of “zoo” should be “any park, building, cage, enclosure, or other structure or premise in which a live animal or animals are kept for public exhibition or viewing, regardless of compensation.” See 9 C.F.R. § 1.1 (1993). The dictionary definition of “zoo” is “a collection of living animals usually for display.” Webster’s Third New International Dictionary. The one element common to both definitions is that the animals are kept for public exhibition. The trial court found that “there was no indication that the defendant’s use or care or possession of these animals remotely resembled that particular use.”

We review this finding of fact to determine whether the trial court’s determination was clearly erroneous. State v. Zarick, 227 Conn. 207, 228, 630 A.2d 565, cert. denied, U.S. , 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State v. Pierog, 33 Conn. App. 107, 114-15, 634 A.2d 301 (1993), cert. denied, 228 Conn. 920, 636 A.2d 851 (1994). The evidence included the fact that the defendant attempted to sell and breed the animals and that she attempted to procure an exhibitor’s license from the USDA for her rabbit but not for her cats. Further, the defendant failed to provide any evidence that she possessed the cats for public exhibition. On the basis of all the evidence, the finding of fact that the defendant did not possess the cats for public exhibition is not clearly erroneous. Thus, the trial court did not improperly conclude that the defendant was not operating a zoo.

The defendant also claims that she is exempt from the statute because she legally possessed other animals prior to May 23,1983. The only evidence as to this matter was the defendant’s testimony, which the trial court did not believe. State v. Robinson, 213 Conn. 243, 256-57, 567 A.2d 1173 (1989). The defendant had the burden to prove that she was exempted. State v. Tinsley, 181 Conn. 388, 403, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); State v. Anonymous, 179 Conn. 516, 521, 427 A.2d 403 (1980). She did not meet this burden.

II

The defendant next claims that the trial court improperly rendered the judgment of conviction against her because the animals are not specifically listed in the statute or, in the alternative, the statute is unconstitutionally vague as applied in this case.

A careful reading of the statute provides a number of possible interpretations. First, the statute can be interpreted to consider all felidae potentially dangerous and the list of species of felidae in the statute provides examples of the type of felidae considered potentially dangerous. Second, the statute can be interpreted to prohibit the possession of only the species specifically listed. Third, the statute can be interpreted to prohibit the possession of those felidae found on the list and all other felidae found by the trial court to be potentially dangerous. Contra Pinto v. Dept. of Environmental Protection, United States District Court, District of Connecticut, Docket No. B-87-523 (March 24, 1988).

In all cases, the statute clearly prohibits the possession of a purebred bobcat. The defendant argues that her bobcat is not included in the statute because the animal is a hybrid bobcat. The statute is ambiguous as to whether the term “bobcat” includes hybrid bobcats. “When the language of the statute is plain and unambiguous, we need to look no further than the words themselves because we assume that the language expresses the legislature’s intent. . . .If, however, the language is unclear, we must ascertain the intent of the legislature by examining the language of the statute, its legislative history and the purpose the statute is to serve.” State v. White, 204 Conn. 410, 421-22, 528 A.2d 811 (1987); Beizer v. Goepfert, 28 Conn. App. 693, 698, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, U.S. , 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993). Neither our case law nor the legislative history of this statute addresses the intended meaning of the list. See 26 H.R. Proc., Pt. 9,1983 Sess., pp. 3481-86; 26 S. Proc., Pt. 5,1983 Sess., pp. 1508-11; 12 H.R. Proc., Pt. 6, 1967 Sess., pp. 2552-53; 12 S. Proc., Pt. 3, 1967 Sess., p. 1512. When we interpret statutes, however, we accord great deference to the construction given to a statute by the agency charged with its enforcement. Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993); Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 300, 602 A.2d 1005 (1993); Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994). The DEP’s regulations created for the enforcement of General Statutes § 26-55 has determined that an animal that results from the crossbreeding of any species listed in General Statutes § 26-40a shall be considered the wild animal of that species. Thus, the DEP considers the crossbreed of a bobcat and a domestic cat to be a bobcat. Regs., Conn. State Agencies § 26-55-2. We see no reason to depart from that interpretation by the DEP. Thus, we conclude that the possession of a hybrid bobcat is prohibited by the statute.

Further, the statute is not unconstitutionally vague as applied to the hybrid bobcat. “A claim of unconstitutional vagueness normally ‘implicates the fundamental due process right to fair warning and the record is adequate to facilitate review.’ State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988). ‘The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standard-less law enforcement. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975).’ State v. Shriver, supra, 459-60. ‘In order to surmount a vagueness challenge, “a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.” McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1948).’ State v. Schriver, supra, 460.” State v. Battista, 31 Conn. App. 497, 504, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993).

“ ‘As a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue. . . . To do otherwise, absent the appearance that the statute in question intrudes on fundamental constitutional guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of complex legislation.’ (Citations omitted.) State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980).” State v. Battista, supra, 31 Conn. App. 505.

As applied to the possession of a hybrid bobcat, the statute gives the defendant fair warning that the statute prohibits such possession. Because the statute specifically prohibits bobcats, a person of ordinary intelligence has a reasonable opportunity to know that the possession of a hybrid bobcat is prohibited. The statute also provides a standard for law enforcement. Because the statute states that bobcats are, as a matter of law, potentially dangerous, law enforcement officers know that they must determine that the animal is a bobcat before a possessor of an animal can be determined to have violated the statute. Thus, the statute is not unconstitutionally vague as applied to the hybrid bobcat.

The statute does not specifically state that the jungle cat and the bengal cat are potentially dangerous animals as a matter of law. Our courts have determined that the word “include” may be considered a word of limitation as well as a word of enlargement. Mahoney v. Lensink, 213 Conn. 548, 569, 569 A.2d 518 (1990); State v. White, supra, 204 Conn. 422-23; see also Maciejewski v. West Hartford, 194 Conn. 139, 147, 480 A.2d 519 (1984); Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 150, 285 A.2d 352 (1971). As in White, we cannot conclude whether the word “including” is used as a word of limitation or a word of enlargement.

When we find the legislative intent unclear from the language of the statute, we must look to the legislative history to determine the legislative intent. State v. White, supra, 204 Conn. 421-22; Beizer v. Goepfert, supra, 28 Conn. App. 698. The legislative history indicates that the statute was passed to control the possession of wild animals. The legislative history also indicates that the statute was intended to control, at the very least, the animals specifically listed. The legislative history fails, however, to provide guidance as to whether the statutory prohibition applies to the listed felidae only, to the listed felidae and all other potentially dangerous felidae species, or to the listed felidae and all other potentially dangerous felidae regardless of species.

On the basis of the language in the statute and the silence of the legislative history, the possessors of jungle cats and bengal cats have no warning as to whether their possession of such cats is violative of the statute. These possessors have no guidance as to whether the prohibition exists as to the specific animal’s behavior, or to the animal’s species. Further, a possessor cannot know whether the statute prohibits the possession of an animal that does not belong to a species listed in the statute. See State v. Battista, supra, 31 Conn. App. 504. Thus, the statute does not provide guidance for a person of ordinary intelligence to know what is prohibited. See id. Further, the statute provides no guidance to enforcement agencies as to its breadth. Specifically, the statute does not instruct whether to determine the dangerousness of the species or of the behavior of the specific animal to enforce the prohibition. Therefore, the statute is unconstitutionally vague as applied to the jungle cat and the bengal cat. Contra Pinto v. Dept. of Environmental Protection, supra.

The judgment of conviction pertaining to the jungle cat and the bengal cat is reversed and the case is remanded with direction to render judgment of not guilty as to each of those counts. The judgment of conviction relating to the hybrid bobcat is affirmed.

In this opinion the other judges concurred.

       General Statutes § 26-40a provides: “For the purposes of this section, the following shall be considered as potentially dangerous animals: The felidae, including the lion, leopard, cheetah, jaguar, ocelot, jaguarundi cat, puma, lynx and bobcat; the canidae, including the wolf and coyote; and the ursidae, including the black bear, grizzly bear and brown bear. No person shall possess a potentially dangerous animal. Any such animal illegally possessed may be ordered seized and may be disposed of as determined by the commissioner of environmental protection. Any person who violates any provision of this section shall be fined not more than one hundred dollars for each offense. The provisions of this section shall not apply to municipal parks, zoos and nature centers, or museums, laboratories and research facilities maintained by scientific or educational institutions or to persons possessing animals legally on or before May 23, 1983.”

       Burk testified that felidae is the family of the felines that includes all members of the cat family.

       Burk testified that, in her opinion, this bobcat is a full-blooded bobcat. The defendant contends that the bobcat is a hybrid, a cross between a bobcat and a domestic cat.

       The defendant introduced evidence rebutting the state’s evidence of the potentially dangerous tendencies of the animals.

       The defendant has the burden to prove by a preponderance of the evidence exceptions to the statute. The ownership of other such animals is not a descriptive negative defining the corpus delicti but is an exception, and does not form any essential element of the crime charged. State v. Tinsley, supra, 181 Conn. 403; State v. Anonymous, supra, 179 Conn. 521.

       A hybrid bobcat is the offspring of a bobcat and a domestic cat. The trial court did not specifically find that the bobcat was a hybrid bobcat or a purebred bobcat. Instead, it determined that this fact was irrelevant to the outcome of the case. Since there is no doubt that a purebred bobcat is prohibited by the statute, we will analyze the statute on the basis that the bobcat in this case is a hybrid bobcat.