text:
    Frank De Leonardis v. Subway Sandwich Shops, Inc.
    (12736)
    Heiman, Freedman and Spear, Js.
    Argued May 5
    decision released August 9, 1994

      Brendan T. Canty, with whom was Anastasios T. Savvaides, for the appellant (plaintiff).

      Edward Wood Dunham,, with whom was Lisa G. Bakanas, for the appellee (defendant Doctor’s Associates, Inc.).
   Freedman, J.

The plaintiff, Frank De Leonardis, appeals from the trial court’s acceptance of the report of the attorney trial referee. On appeal, De Leonardis claims that the trial court improperly accepted the referee’s report because (1) the attorney referee should not have granted the motion in limine filed by the defendants, Subway Sandwich Shops, Inc. (Subway), and Doctor’s Associates, Inc. (DAI), precluding De Leonardis from offering evidence about the relationship between Subway and DAI in support of his claim that DAI is the alter ego of Subway and is therefore responsible for Subway’s liabilities, and (2) the attorney referee did not have the authority to rule on the motion in limine. We reverse the judgment of the trial court.

The following facts are undisputed. De Leonardis owned commercial real estate located in Mount Vernon, New York. On September 22,1986, Subway executed a twelve year lease for this property commencing on January 1,1987. A clause in a rider to the lease provided that Subway, or its assignee, if any, “but no other entity” would be responsible for fulfilling the terms and conditions of the lease. Subway never took possession of the premises, nor did it make any rental payments. The property remained vacant until September 1,1991, when it was relet by De Leonardis.

On December 12,1991, De Leonardis commenced a two count action against Subway and DAI seeking damages for unpaid rent. The first count alleged breach of the lease between De Leonardis and Subway. The second count alleged an alter ego claim against DAI based on a claimed unity of interest and ownership between Subway and DAI. DAI filed a special defense alleging, in part, that the rider contained in the lease barred the plaintiff from recovering against DAI.

The trial court assigned this matter to an attorney trial referee for a hearing. Prior to the hearing, Subway and DAI filed a motion in limine that sought to exclude any evidence offered by De Leonardis that DAI was the alter ego of Subway and was, therefore, liable for Subway’s rental obligations under the lease.

On the first day of trial, March 12,1993, the referee heard argument on the motion in limine together with De Leonardis’ testimony. The referee granted the defendants’ motion in limine on March 25,1993. On the second day of trial, May 21, 1993, De Leonardis excepted to the granting of the motion in limine because it was a ruling on an issue in the case, not an evidentiary ruling, and because the referee had granted the motion before hearing any of the evidence excluded by the granting of the motion. De Leonardis then attempted to make an offer of proof by listing the witnesses he would have called and to what they would have testified. This included witnesses to testify to the corporate setup of both Subway and DAI, Subway’s lack of corporate assets, Subway’s lack of employees, the lack of shareholder or director’s meetings, DAI’s alleged dominion and control over Subway, and the absence of and failure to follow corporate formalities.

On June 3,1993, the referee filed his report, in which he found the following: (1) De Leonardis and Subway entered into a lease agreement; (2) Subway breached the agreement by failing to occupy the premises; (3) the rider to the lease contained a provision that stated “irrespective of whether this lease is assigned or the premises sublet, the tenant and the assignee, but no other entity, shall remain responsible for the full performance of all the terms and conditions of the lease”; (4) De Leonardis is entitled to damages in the amount of $209,573.08 for breach of the lease and $10,087.50 in attorney’s fees; and (5) DAI has sustained its burden of proof as to its special defense that the rider barred recovery against DAI. De Leonardis filed a motion for articulation requesting a statement of the law and the reasons for which the attorney referee had granted the motion in limine. The referee responded, stating that he had granted the motion in limine “for the reasons given in the defendants’ memorandum of law dated March 9, 1993, and the exhibit thereto.”

De Leonardis filed a motion to correct the referee’s findings that (1) the lease contained the rider provision, (2) damages were recoverable only against Subway, and (3) DAI had sustained its burden of proof on its special defense. The motion also sought to correct the referee’s ruling granting the motion in limine. The referee denied the motion. De Leonardis then filed objections and exceptions as required by Practice Book §§ 439 and 440. The trial court overruled the objections and exceptions on the grounds that the referee’s findings of fact were all supported by the evidence in the record, and rendered judgment in favor of De Leonardis and against Subway on the first count alleging the breach of the lease and in favor of DAI on the second count. De Leonardis appeals the judgment only with respect to DAI.

In ruling on the motion in limine, the referee interpreted the rider to the lease as prohibiting De Leonardis from collecting from any entity other than Subway. On the basis of this interpretation, the referee determined that any evidence regarding the relationship between Subway and DAI was not relevant because, even if they were one and the same, De Leonardis was still limited to collecting only from Subway by the terms of the rider. We do not agree.

We first must determine whether the referee properly interpreted the language of the rider to the lease. “Where . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. See Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 404, 499 A.2d 64, cert. granted, 198 Conn. 802, 501 A.2d 1213 (1985). In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. See Lavigne v. Lavigne, 3 Conn. App. 423, 428, 488 A.2d 1290 (1985).” Pero Building Co. v. Smith, 6 Conn. App. 180, 184, 504 A.2d 524 (1986). Here, the relevant language provides: “Tenant may assign this lease or sublet the premises to any bona-fide SUBWAY licensee of Doctor’s Associates, Inc. without the prior consent of the Landlord. Such assignment or subletting shall not alter the Tenant’s responsibility to the Landlord under this lease. Landlord agrees to accept rent from the tenant, its assignee or sublessee. Irrespective of whether this lease is assigned or the premises sublet, the tenant and the assignee, but no other entity, shall remain responsible for the full performance of all the terms and conditions of the lease. ” (Emphasis added.)

We agree with the referee and the trial court that the language is clear and that the rider to the lease does provide that De Leonardis can look only to Subway for performance of the terms and conditions of the lease. De Leonardis claims, however, that even though the express language in the rider to the lease limits liability to Subway or its assignee, Subway and DAI are one and the same and that his proffered testimony would have so established that claim.

“[WJhen the corporation is the mere alter ego, or business conduit of a person, it may be disregarded.” 1 W. Fletcher, Cyclopedia of the Law of Private Corporations (1990) § 41.10, citing, inter alia, DeSantis v. Piccadilly Land Corp., 3 Conn. App. 310, 487 A.2d 1110 (1985). “[A] corporation may be the alter ego of another corporation and the distinct corporate entity may be disregarded; the two corporations will be treated as one.” 1 W. Fletcher, supra, § 41.10. The alter ego theory is applicable in contract actions as well as in tort actions. Id., § 41.85. “[OJnce the fact of alter ego is established it furnishes a means for a complainant to reach a second corporation or individual upon a cause of action that otherwise would have existed only against the first corporation.” Id., § 41.28, citing Wright Bros. Corp. v. Colomb, 517 So. 2d 1194 (La. App. 1987); Anderson v. Jasper Federal Savings & Loan, 738 S.W.2d 768 (Tex. App. 1987).

We acknowledge that piercing the corporate veil is difficult and that it is appropriate only under exceptional circumstances. Nonetheless, a party is entitled to attempt to prove its allegations of the existence of an alter ego. Before the attorney trial referee could find facts to determine whether Subway is in fact the alter ego of DAI, he needed to hear evidence. Here, the referee’s granting of the motion in limine precluded De Leonardis from presenting any evidence regarding the relationship between Subway and DAI. This ruling effectively denied DeLeonardis the opportunity to attempt to establish a relationship between the two defendants and effectively disposed of the second count of the complaint.

That De Leonardis, in his testimony, conceded that he knew DAI existed yet did not seek to include it in the lease and that he never intended to hold a party other than Subway liable for the rental obligations under the lease does not affect our conclusion. The lease limits De Leonardis to recovery from Subway. If Subway and DAI are, in fact, one and the same, then recovering from DAI may be the same as recovering from Subway.

We conclude that the trial court improperly overruled De Leonardis’ objections and exceptions because the referee could not properly determine whether DAI was in fact an alter ego of Subway without first hearing evidence. By our holding in this case we do not suggest that Subway is in fact the alter ego of DAI, but only that a party must be afforded the opportunity to attempt to prove such allegations.

The judgment is reversed in part and the case is remanded for a new trial on the second count of the complaint.

In this opinion the other judges concurred.

       Because of our disposition of the plaintiff’s first claim, we need not address this issue.

       “Attorney state trial referees are appointed by the chief justice pursuant to General Statutes § 52-434 (a) (4) for a term not exceeding one year. They have no power to render a judgment. They are procedural cousins to committees appointed by the court under Practice Book § 431, and to factfinders appointed by the judges of the Superior Court under General Statutes § 52-549n and Practice Book §§ 546C and 546E, but with greater authority than such factfinders. While the name, source of appointment and scope of authority of these three adjuncts to the trial bench vary, they share the same function of factfinders ‘whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.’ Seal Audio, Inc. v. Bozak, Inc., [199 Conn. 496, 502, 508 A.2d 415 (1986)]. Practice Book §§ 428 through 445 govern the referral of cases to attorney state trial referees and committees and the prejudgment review of their reports.” E. I. Constructors, Inc. v. Scinto, 12 Conn. App. 348, 351-52, 530 A.2d 1081 (1987).

       “To hold a corporate officer personally liable for wrongdoing, there must be a sufficient factual basis for a court to pierce the corporate veil. Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 561, 447 A.2d 406 (1982); Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927 (1989); Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 73, 492 A.2d 512 (1985). The piercing of the corporate veil is equitable in nature. Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 555. When the statutory privilege of doing business in the corporate form is employed as a cloak for the evasion of obligations, as a mask behind which to do injustice, or invoked to subvert equity, the separate personality of the corporation will be disregarded. . . . (Citation omitted.) Falcone v. Night Watchman, Inc., 11 Conn. App. 218, 220, 526 A.2d 550 (1987), quoting DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 275, 471 A.2d 638 (1984).
      “A court may pierce the corporate veil only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice. SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 230, 585 A.2d 666, cert. denied, 501 U.S. 1223, 111 S. Ct. 2839, 115 L. Ed. 2d 1008 (1991), quoting Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, [187 Conn.] 557. The corporate veil will be pierced when the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor. Saphir v. Neustadt, 177 Conn. 191, 209, 413 A.2d 843 (1979); Falcone v. Night Watchman, Inc., supra [11 Conn. App. 220].” (Internal quotation marks omitted.) United Electrical Contractors, Inc. v. Progress Builders, Inc., 26 Conn. App. 749, 755, 603 A.2d 1190 (1992).


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    State of Connecticut v. Domingo Paredes
    (12346)
    O’Connell, Landau and Heiman, Js.
    Argued May 2
    decision released August 9, 1994

      David A. Leff for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Timothy J. Liston, senior assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of aiding another person in the transportation of narcotics with intent to sell in violation of General Statutes §§ 21a-278 (b) and 53a-8. He claims that the trial court improperly (1) refused to strike the direct testimony of a state’s witness after she invoked her fifth amendment privilege, thereby depriving the defendant of his sixth amendment right to confront and cross-examine the witness as to her bias, motive and veracity, (2) excluded evidence of the defendant’s honesty and reputation for honesty, and (3) denied the defendant’s motion for judgment of acquittal. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 6,1991, Candida Cespedes and two friends met with “Benny” and “Brian” at a Burger King restaurant in Cromwell to discuss the logistics of a drug deal. Unbeknownst to Cespedes or her companions, Brian was an undercover police officer and Benny was an assisting informant. Cespedes agreed to procure one kilogram of cocaine to sell to Brian and Benny at the “going price” of $24,000. Between December 6 and December 9,1991, Cespedes contacted the defendant, who agreed to provide the kilo of cocaine for the sale.

On December 9, 1991, the defendant brought the cocaine in a yellow plastic bag to Cespedes’ residence in New York. Cespedes and the defendant then drove to the Cromwell Burger King, where they met Brian and Benny. Both the drug enforcement agency (DEA) and the Middletown police department were conducting a surveillance of the premises. In the Burger King parking lot, the defendant removed the bag of cocaine from his truck and handed it to Cespedes, who then handed it to Benny. The defendant was arrested at the scene shortly thereafter. After his conviction, this appeal followed.

I

The defendant first claims that the trial court improperly refused to grant his motion to strike the direct testimony of Cespedes after she invoked her fifth amendment privilege. The defendant asserts that the trial court’s refusal deprived him of his sixth amendment right to confront and cross-examine Cespedes as to her bias, motive, and veracity. The state argues that the questions to which Cespedes invoked her fifth amendment rights concerned matters collateral to the issues before the trier of fact. The state also posits that the defendant was permitted ample opportunity to explore Cespedes’ bias, motive, and veracity. For both reasons, the state contends that the trial court correctly denied the motion to strike Cespedes’ direct testimony.

The following additional facts are necessary for the resolution of this issue. At trial, Cespedes testified on direct and redirect examination on behalf of the state for two days. The defendant cross-examined her at length on the same two days with regard to several matters that implicated her bias, motive, and veracity. Initially, Cespedes testified concerning her plea bargain with the state. She was charged originally with two crimes that, upon conviction, subjected her to possible imprisonment for forty years with a five year mandatory minimum. In return for testifying against the defendant, Cespedes was charged with only one crime with a possible fifteen year maximum and no mandatory minimum sentence. Cespedes’ sentencing was postponed until after she testified against the defendant and she acknowledged that the prosecutor would inform the sentencing judge of her assistance in this case. Cespedes also admitted that, having already been in jail for fourteen months and having young children at home, she hoped to receive a more lenient sentence.

The defendant also cross-examined Cespedes with regard to her drug addiction. She testified that at the time of her arrest, she had been addicted to cocaine and was a user of marijuana. Her long-term addiction caused her to use cocaine several times a day and adversely affected her care of her children.

Cespedes also testified that she lied to the police at the time of her arrest as to her use of drugs. Finally, she admitted that she did not tell a probation officer that she was to receive money, as opposed to just drugs, for her part in the December 9 drug deal because she believed that it would appear more favorable to the judge.

When asked on cross-examination whether she had ever dealt with Benny prior to the transaction in question, Cespedes requested to speak with her attorney. The jury was excused and a voir dire conducted. The trial court determined that certain questions could be posed to Cespedes and that, if she invoked her fifth amendment privilege, she must do so in the presence of the jury. Further, the jury would be instructed that it could draw an adverse inference from Cespedes’ refusal to answer.

Cespedes exercised her fifth amendment right in response to questions directed at two general matters: (1) whether she had ever met or dealt with Benny prior to the transaction at issue; and (2) whether she had otherwise ever sold or distributed drugs. Despite the fact that Cespedes was allowed to invoke her privilege with regard to whether she knew or had dealt with Benny prior to the incident in question, the defendant nevertheless established through cross-examination that Cespedes had met Benny in September, 1991.

In closing argument, counsel for the defendant strongly argued the adverse inferences that the jury was permitted to draw from Cespedes’ invocation of her fifth amendment privilege. Specifically, defense counsel detailed the manner in which such inferences could impact on Cespedes’ bias, motive, and veracity.

The trial court’s refusal to strike Cespedes’ direct testimony after she invoked her fifth amendment privilege did not deprive the defendant of his sixth amendment rights. “The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965) . . . .” (Internal quotation marks omitted.) State v. Lee, 229 Conn. 60, 69, 640 A.2d 553 (1994). The sixth amendment is satisfied when the defendant is “permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Castro, 196 Conn. 421, 425, 493 A.2d 223 (1985).

“The confrontation right, however, is not absolute and is subject to reasonable limitation. State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985).” State v. Lewis, 220 Conn. 602, 621, 600 A.2d 1330 (1991); see also State v. Lee, supra, 229 Conn. 70-71. “We have consistently held that when an accused has had the opportunity to elicit evidence of bias, not every limitation of the right to cross-examine is of constitutional dimension. The extent of cross-examination beyond that necessitated by the constitution rests within the discretion of the trial court.” State v. Lewis, supra, 621-22. Therefore, we must determine whether the trial court abused its discretion in this case.

The sixth amendment right of the criminal defendant can conflict with the fifth amendment right of a witness not to answer certain questions posed on cross-examination. “If a defendant’s cross-examination is restricted by the competing fifth amendment right of a witness, it may be necessary to strike the direct testimony of that witness.” Dunbar v. Harris, 612 F.2d 690, 692 (2d Cir. 1979); State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986). “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” State v. Roma, supra, 116.

“The extreme sanction of striking the testimony of a witness should be resorted to only where the invocation of the privilege blocks inquiry into matters directly relating to the crime charged and not those which are merely collateral, such as the subjects of the cross-examination for credibility in this case. State v. Valeriano, 191 Conn. 659, 666-67, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984); United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980) .... Where the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant and, therefore, the witness’ testimony may be used against him. United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, 375 U.S. 822, 84 S. Ct. 60, 11 L. Ed. 2d 55 (1963) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Roma, supra, 199 Conn. 117-18.

A subject of inquiry must serve “to explore more than general credibility” or it is collateral. Dunbar v. Harris, supra, 612 F.2d 693. “The question is whether the defendant’s inability to examine the witness precludes [the] defendant from testing the truth of the witness’ direct testimony . . . or whether the answers solicited might have established untruthfulness with respect to specific events of the crime charged.” (Citations omitted.) Id.

After reviewing the record, we conclude that the defendant was not deprived of any sixth amendment right. Whether Cespedes had been involved in drug transactions other than the December 9 incident was a matter collateral to her testimony on direct examination. Whether she otherwise knew or had dealt with the informant also was collateral. These inquiries were directed at Cespedes’ general credibility as a witness. They were not aimed at eliciting a specific bias, interest, or motive connected or relevant to the crime charged.

Moreover, whatever the relevance of these matters to Cespedes’ credibility as a witness, the issues of credibility, motive, and bias were amply explored. The jury heard Cespedes’ testimony of her plea bargain with the state and her desire to receive a more lenient sentence in return for her testimony in this case. Also, in the jury’s presence, Cespedes recounted how she had lied to police officers and a probation officer in connection with the incident giving rise to this case. She conceded her drug addiction. Further, despite attempts to evade the issue through her fifth amendment privilege, Cespedes testified that she indeed had met with the informant prior to the December 9 incident. Thus, issues relating to Cespedes’ general credibility were adequately explored.

We conclude that under the totality of the circumstances, the trial court did not abuse its discretion in refusing to strike Cespedes’ direct testimony.

II

The defendant next asserts that the trial court improperly excluded evidence of his honesty and reputation for honesty. The defendant testified in his own behalf. He then called Juan Mota as a witness. When the defendant questioned Mota as to the defendant’s reputation for honesty, the state objected on the ground that such reputation was not in issue. The trial court sustained the objection.

The defendant contends that a criminal defendant in this state is entitled to place his honesty and reputation for honesty in issue. He posits that he placed his honesty and reputation for honesty in issue by testifying in his own behalf. Therefore, he concludes, he had a right to offer evidence of his honesty and reputation for honesty. The defendant’s claim and analysis is flawed.

A criminal defendant may introduce “evidence of a trait of character as circumstantial evidence to prove that he acted in conformance with that trait and that it is unlikely he committed the crime charged . . . .” State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). “Evidence of good character, to be relevant and therefore admissible on behalf of an accused, should be restricted to the trait of character involved in the issue and bear some pertinent analogy and reference to it.” State v. Campbell, 93 Conn. 3, 10, 104 A. 653 (1918).

The defendant is precluded from introducing evidence of his honesty because honesty is not a character trait relevant to the crime of transporting narcotics with the intent to sell. Moreover, the defendant did not place his honesty or reputation for honesty in issue merely by taking the stand and testifying. “Normally the character of a defendant is placed in issue only when he calls a witness to testify for that purpose. . . .’’(Citations omitted.) State v. Nardini, 187 Conn. 513, 528, 447 A.2d 396 (1982). A defendant may succeed in placing his good character in issue by testifying in his own behalf, but this requires (1) that the defendant’s testimony had the specific purpose of placing his character in issue, and (2) that the character trait is relevant to the crime charged. See id. Here, the defendant contends that the mere fact that he testified placed his credibility in issue. Not only is this an insupportable argument, but credibility is not a trait relevant to the crime charged. Therefore, the defendant’s claim that this evidence was improperly excluded is without merit.

Ill

The defendant’s final claim is that the trial court improperly denied his motion for judgment of acquittal. He contends that the state could not have proved that he aided Cespedes in a violation of § 21a-278 (b), pursuant to § 53a-8, because the state failed to establish that Cespedes committed that crime. The defendant posits that one cannot be an accessory to a crime for which there is no proven principal. Because the state failed to prove that Cespedes was a guilty principal in the crime charged, the defendant maintains that he cannot be convicted as her accessory. He asserts that the state failed to establish Cespedes’ culpability because it did not prove one of the elements of the crime, that Cespedes was not drug-dependent within the meaning of § 21a-278 (b) at the time of the offense. We are unpersuaded.

The defendant has misconceived the nature of accessorial liability, and misconstrued the applicable statute. His argument assumes a distinction between the crime of transporting narcotics with the intent to sell and the crime of being an accessory to the same. Our law, however, is clear that “[t]here is no such crime as ‘being an accessory’; the defendant was charged with [one] substantive offense .... The accessory statute merely provides alternate means by which a substantive crime may be committed. State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985).” State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985).

Consequently, the defendant’s culpability does not hinge on whether Cespedes or anyone else is proven liable as a principal in the crime charged. To be convicted of the substantive offense under the alternate means of accessorial liability, the defendant must have, “acting with the mental state required for commission of an offense . . . intentionally aids another person to engage in conduct which constitutes an offense . . . .” General Statutes § 53a-8. The statute contains no prerequisite that the state prove that a principal committed the crime. “This state . . . long ago adopted the rule that there is no practical significance in being labeled an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility. See General Statutes (1875 Rev.) tit. XX, c. XIII, part X . . . State v. Hamlin, 47 Conn. 95,118(1879).” (Citation omitted.) State v. Harris, supra, 198 Conn. 164. “Those labels are hollow; the only predicate for charging [the defendant] with violating [the statute] is direct involvement in the crime.” Id., 165. In fact, pursuant to General Statutes § 53a-9, it is not a defense to accessorial liability that the alleged principal in a crime has been acquitted. Thus, whether Cespedes could be found guilty of the crime charged has no bearing on whether the defendant is liable for the same substantive offense.

Even if this was not the case, the defendant wrongly contends that Cespedes could not be found guilty as a principal because the state failed to prove that she was not drug-dependent. Our Supreme Court has held that the absence of drug dependency is not an element of the offense set forth in § 21a-278 (b). State v. Hart, 221 Conn. 595, 608, 605 A.2d 1366 (1992). Rather, it is an exemption from liability under § 21a-269. Id. To fall within the exemption and, consequently, to be subject to a lesser penalty under § 21a-277 (a), a defendant must prove by a preponderance of the evidence that he or she is drug-dependent. Id., 610-11.

The trial court properly denied the defendant’s motion for judgment of acquittal because the state presented sufficient evidence to establish the defendant’s guilt. Our courts utilize a two part analysis when reviewing a challenge to the sufficiency of evidence. State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). “We first review the evidence in the light most favorable to sustaining the guilty verdict.” Id. “We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, whether any rational trier of fact could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” Id. In the review process, the probative force of the evidence is not diminished if it consists, in whole or in part, of evidence that is circumstantial rather than direct. Id., 420-21. Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).

Here, the defendant was charged with intentionally aiding the transportation of narcotics with intent to sell. The jury reasonably could have found that the yellow bag transported in the defendant’s truck contained cocaine, a narcotic substance. The defendant transported the yellow bag from New York to the site of the drug deal and, upon arrival, retrieved the bag and handed it to Cespedes, the alleged seller.

Finally, the state needed to establish intent. Because the defendant was charged with accessorial liability, the requisite intent is twofold: that the defendant intended to aid the principal, and that in so aiding he intended to commit the offense with which he is charged. State v. Boykin, 27 Conn. App. 558, 567-68, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proved by circumstantial evidence . . . and is, except in rare cases, a question of fact. . . . Intention is a mental process which, of necessity, must be proven either by the statements or the actions of the person whose conduct is being examined. . . . Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide. . . . State v. Williams, 202 Conn. 349, 356-57, 521 A.2d 150 (1987).” (Citations omitted; internal quotation marks omitted.) Id., 568.

On the basis of our review of all the evidence presented at trial, we cannot conclude, as a matter of law, that the jury could not have found as it did. There was sufficient evidence for the jury reasonably to have found that the defendant intended to aid Cespedes, and intended to transport the cocaine for the purpose of sale. There was evidence that the defendant not only knew of the contents of the yellow bag, but actually procured the cocaine. Further, evidence was presented indicating that the defendant knew that the cocaine was to be sold to Benny and Brian. We conclude, therefore, that the evidence was sufficient for the jury to have found, beyond a reasonable doubt, that the defendant was guilty of aiding a violation of General Statutes § 21a-278 (b). The trial court’s denial of the defendant’s motion for judgment of acquittal was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in pertinent part: “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 narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years . . . .”

       General Statutes § 53a-8 provides in pertinent part: “(a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       The fifth amendment to the United States constitution provides in pertinent part: “No person shall ... be compelled in any criminal case to be a witness against himself . . . .”
      The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”

       Cespedes exercised her fifth amendment right when asked the following questions on cross-examination: (1) “During the period of 1991, did you sell or distribute drugs to anyone, other than on the occasion of December, 1991?” (2) “Did you receive drugs in 1991, from anyone whom you distributed — at whom you distributed? [sic]” (3) “Okay. Without telling us what the conversations were about, have you ever had a conversation with Benny, before December 5,1991?” (4) “So the first time you spoke to Benny was December 5,1991?” (5) “You already knew Benny, correct?” (6) “And had you had any more communication with Benny after that summertime or September meeting, until the call of December 5, 1991?”

       In this sense, the test to determine whether the scope of cross-examination has been impermissibly restricted is bipartite. Our courts first determine whether the defendant’s cross-examination satisfied the sixth amendment standards as enunciated in Davis v. Alaska, supra, 415 U.S. 318. After this threshold question has been answered in the affirmative, the general rule is that further restrictions on the scope of cross-examination are within the sound discretion of the trial judge. See State v. Castro, supra, 196 Conn. 424-25. “To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial. . . . Once it is established that the trial court’s ruling on the scope of cross-examination is not constitutionally defective, this court will apply [e]very reasonable presumption . . . in. favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Id., 426.

       The propriety of Cespedes’ invocation of the fifth amendment is not at issue in this appeal. The question is whether the trial court’s refusal to strike Cespedes’ testimony after she invoked her fifth amendment right deprived the defendant of his sixth amendment right.

       In this regard, the defendant’s reliance on State v. Colton, 227 Conn. 231, 630 A.2d 577 (1993), is misplaced. In that case, the defendant sought to introduce specific extrinsic evidence as an offer of proof contradicting a key witness’ testimony on subject matter directly relevant and material to an issue in the case apart from its tendency to contradict the witness. Id., 247-48.

       The defendant asked Mota: “Does Mr. Paredes among the people from San Luis and the Dominican Republic have a reputation for honesty or truthfulness?”

       If we were to embrace the defendant’s argument, every defendant could place honesty and reputation for honesty in issue simply by testifying.

       Clearly, proof of the commission of the crime is a condition precedent to conviction as an accessory. See generally State v. Harris, supra, 198 Conn. 163; State v. Haddad, 189 Conn. 383, 400, 456 A.2d 316 (1983).

       General Statutes § 53a-9 provides in pertinent part: “In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person under section 53a-8 it shall not be a defense that ... (2) such other person has not been prosecuted for or convicted of any offense based upon the conduct in question, or has been acquitted thereof, or has legal immunity from prosecution therefor . . . .”

       General Statutes § 21a-269 provides: “In any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, proviso or exemption contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.”

       General Statutes § 21a-277 (a) provides in pertinent part: “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 ... 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 . . . .”

       More important, however, the relevant inquiry is whether the defendant, as opposed to Cespedes, was not drug-dependent at the time of the offense. It is the defendant who is charged with violating § 21a-278 (b). As such, he must qualify for the exemption in order to be subject to a lesser penalty. In that he testified on direct examination that he is not drug-dependent, the defendant does not qualify for the exemption.


author: Heiman, J.

text:
    Jonathan Medley v. Commissioner of Correction
    (12858)
    Lavery, Heiman and Freedman, Js.
    Argued June 7
    decision released August 9, 1994

      Lauren Weisfeld, assistant public defender, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gerard P. Eisenman assistant state’s attorney, for the appellee (respondent).
   Heiman, J.

The petitioner appeals from the judgment of the habeas court dismissing his habeas corpus petition. On appeal, the petitioner claims that the habeas court improperly determined that the sentencing court did not violate Practice Book § 698 when it rejected the plea agreement between the petitioner and the prosecutor. We affirm the judgment of the habeas court.

The habeas court found the following facts. On July 6, 1986, the petitioner appeared before the trial court, S. Freedman, J., and entered guilty pleas to the charges of murder in violation of General Statutes § 53a-54a (a) and manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The parties informed the trial court that a plea agreement existed that called for the petitioner to plead guilty to the two charges in exchange for the prosecutor’s recommendation, at the time of sentencing, of sentences of thirty years incarceration for the murder charge and fifteen years incarceration for the manslaughter charge, the sentences to run concurrently, for a total effective sentence of thirty years. The trial court canvassed the guilty pleas, made the requisite findings and entered findings of guilty. The case was continued for sentencing to July 18, 1986.

On July 18,1986, the petitioner appeared before the sentencing court, Nigro, J. The sentencing court was informed by both the prosecutor and petitioner’s counsel that the agreed recommendation was a total effective sentence of thirty years to serve. Neither party informed the sentencing court that a thirty year sentence on the murder charge and a fifteen year concurrent sentence on the manslaughter charge had been agreed to when the plea was accepted. The sentencing court then imposed a sentence that it believed was “recommended and agreed to” by the parties. The trial court imposed a sentence of thirty years on the murder charge and twenty years on the manslaughter charge, the sentences to run concurrently, for a total effective sentence of thirty years. The sentencing court never recited to the petitioner the information contained in Practice Book § 698. Neither party objected to the sentence and the petitioner never requested permission to withdraw his plea pursuant to Practice Book § 721 (3). The petitioner never appealed.

In 1992, a fellow inmate of the petitioner perused the petitioner’s transcripts from the plea and sentencing hearings and informed the petitioner of the discrepancy between the plea agreement and the sentence imposed. Upon receiving this information, the petitioner filed this habeas petition. The habeas court found that the sentencing court did not reject the plea agreement and, therefore, the trial court was not required to inform the petitioner of his right to withdraw the plea under Practice Book § 698. This appeal followed.

“We have long recognized that plea agreements are an essential and necessary part of the due administration of criminal justice. State v. Nelson, 23 Conn. App. 215, 218, 579 A.2d 1104, cert. denied, 216 Conn. 826, 582 A.2d 204 (1990), cert. denied, 499 U.S. 922, 111 S. Ct. 1315, 113 L. Ed. 2d 248 (1991); see also Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). While plea agreements are an essential part of the disposition of criminal cases, the right, duty and discretion of the trial judge to fashion an appropriate sentence in each case cannot be undermined by a plea agreement entered into between the parties. See State v. Littlejohn, 199 Conn. 631, 644, 508 A.2d 1376 (1986). Thus, while the state may bind itself to make a specific recommendation with respect to a criminal disposition, neither the state nor the defendant, nor a combination thereof, may compel the trial court to accept a suggested disposition arrived at between the parties. Id.” Miller v. Commissioner of Correction, 29 Conn. App. 773, 777, 617 A.2d 933 (1992).

“When a guilty plea is induced by promises arising out of a plea bargaining arrangement, fairness requires that such promises be fulfilled by the state. . . . The same concept of fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea. . . . State v. Niblack, 220 Conn. 270, 283, 596 A.2d 407 (1991); State v. Reid, [204 Conn. 52, 58-59, 526 A.2d 528 (1987)]; see also State v. Schaeffer, 5 Conn. App. 378, 389, 498 A.2d 134 (1985). Our Practice Book § 698 also provides in pertinent part that [i]f the judicial authority rejects the plea agreement, he shall inform the parties of this fact; advise the defendant personally in open court . . . that the court is not bound by the plea agreement; afford the defendant the opportunity then to withdraw his plea, if given; and advise the defendant that if he persists in his guilty plea . . . the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement. Where the word shall is employed in criminal procedural rules, it indicates that the requirements that follow are mandatory rather than directory. State v. Somerville, 214 Conn. 378, 387, 572 A.2d 944 (1990); State v. Cook, 183 Conn. 520, 522-23, 441 A.2d 41 (1981). The failure of the trial court to follow the mandatory provisions of the rules of criminal procedure constitutes plain error. State v. Johnson, 214 Conn. 161, 171 n.10, 571 A.2d 79 (1990); State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981).” (Citations omitted; internal quotation marks omitted.) Miller v. Commissioner of Correction, supra, 29 Conn. App. 778-79.

The key element triggering the requirement that the trial court recite the information contained in Practice Book § 698 is that the judicial authority reject the plea agreement. We have held that a rejection occurs where the judicial authority “fail[s] to follow the recommendation of the parties with regard to the sentence to be imposed . . . .” Id., 780. Here, the judicial authority followed the exact recommendation of the parties. The parties informed the sentencing court that the agreement was that the defendant be sentenced to an effective sentence of thirty years. The parties did not, as they had before the court that accepted the plea, refine the agreement further; thus, the sentencing court imposed the sentence in accordance with the plea agreement as stated to it. Because the judicial authority did not reject the plea agreement, it was not required to recite to the petitioner the information contained in Practice Book § 698.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 698 provides: “If the judicial authority rejects the plea agreement, he shall inform the parties of this fact; advise the defendant personally in open court or, on a showing of good cause, in camera that the court is not bound by the plea agreement; afford the defendant the opportunity then to withdraw his plea, if given; and advise the defendant that if he persists in his guilty plea or plea of nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.”

       General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       Practice Book § 721 provides in pertinent part: “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows . . .
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered . . . .”

       Since we conclude that the sentencing court did not reject the plea agreement, we need not address the respondent’s alternative ground of affirmance that the petitioner has not proven that he had good cause for failing to appeal the claim directly and was prejudiced by the failure to appeal. See Johnson v. Commissioner of Correction, 218 Conn. 403, 589 A.2d 1214 (1991).


author: O’Connell, J.

text:
    M and L Building Corporation v. Housing Authority of the Town of Enfield
    (12448)
    O’Connell, Foti and Landau, Js.
    Argued April 26
    decision released August 9, 1994

      Thomas G. Librizzi, with whom, on the brief, was Brian Preleski, for the appellant (defendant).

      James W. Abrams, for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals from a $60,276.89 judgment entered against it following a trial to the court. The defendant claims that the trial court (1) determined the scope of work to be performed, (2) failed to enforce the provisions of the parties’ agreement whereby decisions of the project architect, the state department of housing and the Enfield housing authority concerning the interpretation of the contract documents would be final, binding and conclusive on the parties, and (3) awarded the plaintiff prejudgment interest contrary to a contract prohibition against such interest. We reverse the judgment of the trial court.

The provenance of this appeal is a contract between the defendant Enfield housing authority and its general contractor, the plaintiff M & L Building Corporation, which was to build an addition to the Mark Twain congregate housing facility in Enfield. A dispute arose concerning whether the plaintiff was required to install a certain water main which was shown on the drawings that accompanied the contract. The defendant’s position is that the construction of the water main was within the scope of the contract, while the plaintiff insisted to the contrary.

The key to this dispute is paragraph 2 (b) of the contract’s supplementary general conditions, which provided that “[a]ll drawings are a working part of these specifications and any questions or disagreements arising as to the true intent of this specification or the drawing, or the kind and quality of the work required thereby, shall be decided by the Architect, local Authority and Department of Housing, whose interpretations thereof shall be final, conclusive and bind to all parties. ” (Emphasis added.)

The three parties designated to resolve such a dispute agreed that the installation of the water main was within the scope of work to be performed by the plaintiff. As a consequence of this decision, the defendant backcharged the plaintiff $60,276.89, the sum it had paid for the installation of the water main.

The trial court held, ipse dixit, that paragraph 2 (b) was unenforceable and undertook a de novo plenary review of the contract. Although the trial court failed to furnish any authority in support of its ruling, the plaintiff nevertheless argues on appeal that the trial court’s action was correct because Connecticut law gives effect to a clause such as paragraph 2 (b) only if the architect is the sole arbiter of disputes. In support of this claim the plaintiff relies on, inter alia, John T. Brady & Co. v. Stamford, 220 Conn. 432, 450, 599 A.2d 370 (1991). Brady is inapposite and, in fact, bolsters the defendant’s case. Brady recognizes that “ ‘[contracting parties are free to impose conditions upon contractual liability. Brauer v. Freccia, 159 Conn. 289, 293-94, 268 A.2d 645 (1970); Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969).’ . . .” Id., 449-50. That is precisely what the parties to this contract did in setting up the tripartite dispute resolution panel.

There is no paucity of Connecticut case law recognizing that “ ‘[frequently, building contracts provide that a third party, an architect or an engineer acting in good faith and in the exercise of his best judgment, shall decide when one of the contracting parties has fulfilled the requirements of the contract. In such circumstances, if the architect or engineer withholds certification, and its decision is not arbitrary or made in bad faith, the court is not authorized to substitute its judgment for that of the designated expert. Maskel Construction Co. v. Glastonbury, 158 Conn. 592, 597, 264 A.2d 557 (1969); Friend v. Green, 146 Conn. 360, 364-65, 151 A.2d 343 (1959); Dahl v. Edwin Moss & Son, Inc., 136 Conn. 147, 153-54, 69 A.2d 562 (1949); Clover Mfg. Co. v. Austin Co., 101 Conn. 208, 213, 125 A. 646 (1924); Chatfield Co. v. O’Neill, 89 Conn. 172, 174, 93 A. 133 (1915).’ Grenier v. Compratt Construction Co., 189 Conn. 144, 148, 454 A.2d 1289 (1983).” John T. Brady & Co. v. Stamford, supra, 220 Conn. 450.

Merely because the parties in Brady and in other cases cited by the plaintiff elected to confer dispute resolution authority solely on the architect does not mean that the parties here were not free to contract to have a tripartite panel arbitrate their disputes. It is fundamental jurisprudence that parties are free to contract for whatever terms they may agree on. Holly Hill Holdings v. Lawman, 226 Conn. 748, 755, 628 A.2d 1298 (1993). Likewise, courts should enforce contracts voluntarily and fairly made between parties, unless the contract is voidable on grounds such as mistake, fraud or unconscionability. Id., 756. “Courts of law must allow parties to make their own contracts.” Connecticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 201, 169 A.2d 646 (1961). In this case, both parties were of equal bargaining power and neither party claims that there were any improprieties in the contract formation process. Accordingly, the contract is to be given effect according to its clear and unambiguous terms. Aetna Casualty & Surey Co. v. CNA Ins. Co., 221 Conn. 779, 786, 606 A.2d 990 (1992).

By the express terms of their contract, the plaintiff and defendant agreed to be bound by the determination made by the tripartite panel and that agreement is binding on them. Grenier v. Compratt Construction Co., supra, 189 Conn. 148. Moreover, paragraph 2 (b) provided that the interpretation of this panel would be final and conclusive. Although words such as final, binding and conclusive resound with a terminal and unconditional tone, the authority of the panel is not without limit. Upon proof of fraud, bad faith, arbitrariness or gross misconduct, the court may step in to void their decision. See Friend v. Green, supra, 146 Conn. 364-65; Dahl v. Edwin Moss & Son, Inc., supra, 136 Conn. 153-54; Clover Mfg. Co. v. Austin Co., supra, 101 Conn. 213-14; Beattie v. McMullen, 82 Conn. 484, 491-92, 74 A. 767 (1909). Here, the plaintiff did not claim fraud, bad faith, arbitrariness or gross misconduct; thus, the court improperly substituted its judgment for that of the panel whom the parties had bargained to settle their disputes.

The plaintiffs additionally argue that even if the panel had authority to settle disputes, its decision in the present case is not binding because it is not an interpretation of the contract but rather an expansion of it. We are not persuaded. Pursuant to the agreement, the plaintiff was required to provide all the necessary “labor, materials, tools and equipment” and thereafter to perform all work in strict accordance with the relevant specifications, plans and drawings associated with the project. In the case of a dispute between the parties, the tripartite panel was given the authority to resolve all disagreements regarding the “true intent of this specification or the drawing, or the kind and quality of work required thereby . . . .” (Emphasis added.) Thus, the plain language of the agreement between the parties permitted the panel to resolve any dispute regarding the scope of the plaintiffs obligations under the contract.

The tripartite panel unanimously agreed that installation of the water main was within the scope of the work performed by the plaintiff. To interpret the panel’s decision as an expansion of the contract would be to render the contract’s dispute resolution clause meaningless. Rather than expanding the contract to include a term not a part of the original agreement, the record reveals that the panel’s conclusion was based upon its interpretation of several contract provisions, the testimony of witnesses and the relevant plans and specifications. Contrary to the plaintiff’s argument, the panel did not rewrite the contract for the parties. Accordingly, the plaintiff’s claim fails.

In view of the foregoing analysis, we do not reach the remainder of the defendant’s claims.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       Incompetence, negligence or even unfairness or unreasonableness have been held insufficient to void such a dispute resolution clause. Chatfield Co. v. O’Neill, supra, 89 Conn. 174.


author: Spear, J.

text:
    Bloomfield Education Association v. Robert A. Frahm et al.
    (12695)
    Lavery, Freedman and Spear, Js.
    Argued May 6
    decision released August 9, 1994

      Ronald Cordilico, for the appellant (plaintiff).

      Colleen M. Murphy, commission counsel, with whom were Ralph G. Elliot and, on the brief Mitchell W. Pearlman, general counsel, for the appellees (defendants).
   Spear, J.

The plaintiff Bloomfield education association (BE A) appeals from the judgment affirming the order of the freedom of information commission (FOIC) requiring the Bloomfield superintendent of schools to provide the defendants Robert A. Frahm and the Hartford Courant with copies of grievances filed under a teachers’ employment contract. The issue on appeal is whether the filing of a grievance under a collective bargaining agreement constitutes a “record, report or statement of strategy or negotiations” and is therefore exempt from disclosure under General Statutes § 1-19 (b) (9). We conclude that such a grievance is not exempt and affirm the judgment of the trial court.

The trial court found the following facts. On December 12,1991, Frahm and the Hartford Courant requested that the Bloomfield superintendent of schools forward copies of the applicable teachers’ employment contract as well as copies of all grievances filed alleging violations of such contract, except those grievances that pertained to teacher performance or evaluation. On December 30,1991, the superintendent provided a copy of the contract but notified the defendants that he would not forward the requested grievances unless the BEA consented.

On January 22,1992, Frahm and the Hartford Courant filed a complaint with the FOIC protesting the superintendent’s denial of access to the requested grievances. An FOIC hearing officer granted the BEA party status and heard the matter as a contested case on July 27,1992. The FOIC adopted the hearing officer’s report and rendered a final decision on November 23, 1992, ordering the superintendent to provide copies of the requested grievances to Frahm and the Hartford Courant. The FOIC found that the BEA had failed to prove that the requested grievances were exempt from disclosure pursuant to General Statutes § 1-19 (b) (9).

The BEA appealed to the trial court, which upheld the FOIC’s determination that the requested grievances contained neither strategy nor negotiations with respect to collective bargaining. This appeal ensued. Judicial review of an appeal from the decision of an administrative agency is governed by the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; “and the scope of that review is very restricted.” New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988).

General Statutes § 4-183 (j) permits modification or reversal of an agency’s decision only if “substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” (Emphasis added.)

In this appeal, we are asked to review the FOIC’s interpretation of the Freedom of Information Act. In accordance with judicial precedent, we will “give great deference to the construction given a statute by the agency charged with its enforcement.” Lieberman v. State Board of Labor Relations, 216 Conn. 253, 263, 579 A.2d 505 (1990); 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, 622 A.2d 1005 (1993); Anderson v. Ludgin, 175 Conn. 545, 555, 400 A.2d 712 (1978); Barent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994).

We have not previously decided whether a grievance is a record, report, or statement of strategy or negotiations under § 1-19 (b) (9). In Lieberman v. State Board of Labor Relations, supra, 216 Conn. 253, our Supreme Court rejected essentially the same argument that the BEA advocates in this case. The court decided in Lieberman that an employee’s personnel file did not constitute a record of strategy or negotiations. The court reasoned that “while the information contained within an employee’s personnel file may be the subject of bargaining, the subject standing alone reveals nothing about the strategy or negotiation involved in the collective bargaining process.” Id., 266-67 n.10.

That reasoning also applies to grievance complaints. Although grievances may be the subject of collective bargaining, the mere filing of a grievance, standing alone, and containing limited information does not reveal any strategy or negotiations involved in the collective bargaining process. Section 1-19 (b) (9) does not exempt every record pertaining to collective bargaining from disclosure, only those that reveal strategy or negotiations.

The BE A cites the FOIC case of Radford v. Trumbull, Docket No. FIC 70-189 (May 20, 1980), for the proposition that documents that are part of the collective bargaining process are exempt from disclosure under § 1-19 (b) (9). In Radford, the FOIC held that preliminary considerations exchanged by the board of education and the teachers union at the onset of negotiations contained strategy and were therefore exempt. The exchange of preliminary considerations is distinguishable from the filing of a grievance. Preliminary considerations embody the negotiating posture of each side at the onset of negotiations, whereas the filing of a grievance is meant to convey only the preliminary information necessary to initiate the resolution process and involves no discussion regarding the proposed settlement of the complaint.

The FOIC decision to exclude the requested grievances from § 1-19 (b) (9) comports with the underlying policy of the Freedom of Information Act. That act “expresses a strong legislative policy in favor of the open conduct of government and free public access to its records.” Lieberman v. State Board of Labor Relations, supra, 216 Conn. 266; Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980). The legislature in passing the Freedom of Information Act and the courts in interpreting the act have recognized that the right to disclosure is not absolute. Specific statutory exemptions have been provided. See Lieberman v. State Board of Labor Relations, supra, 266; Wilson v. Freedom of Information Commission, supra, 328; see also General Statutes § 1-19 (b). The courts have invariably held that these “exceptions must be narrowly construed.” Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188, 470 A.2d 1209 (1984); Wilson v. Freedom of Information Commission, supra, 328.

We conclude that the legislature, by inserting the terms “strategy” and “negotiations,” intended to qualify the § 1-19 (b) (9) exemption. Had the legislature meant to exempt all records, reports, and statements with respect to collective bargaining, then it would not have included the words “strategy” and “negotiations.” “There is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment so that in construing it no part is treated as insignificant and unnecessary.” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 407, 528 A.2d 805 (1987); Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980). If we were to adopt the BEA’s position that all records with respect to collective bargaining are exempt, we would render the words strategy and negotiations superfluous. The trial court engaged in a thorough evaluation of the plain meaning of the words strategy and negotiations. Strategy is defined as “a careful plan or method” and “the art of devising or employing plans or stratagems toward a goal.” Webster’s Third New International Dictionary. From this definition, the trial court properly decided that the filed grievances did not fall within the plain meaning of strategy as they did not convey information regarding tactics to anyone.

Likewise, the trial court concluded that the filed grievances did not fall within the plain meaning of negotiations. The definition of negotiations as expounded in International Plastics Development, Inc. v. Monsanto Co., 433 S.W.2d 291, 296 (Mo. 1968), supports the contention that a filed grievance is not a negotiation. In International Plastics Development, Inc. v. Monsanto Co., supra, 296, the Missouri Supreme Court stated: “Negotiations is a broad term, not in all connotations a term of art, but in general it means the deliberation which takes place between the parties touching a proposed agreement . . . the deliberation, discussion, or conference on the terms of a proposed agreement; a treating with another with a view to coming to terms .... Negotiations look to the future, and are preliminary discussions; the preliminaries of a business transaction.” (Citations omitted; emphasis added; internal quotation marks omitted.)

A key element of negotiations is the existence of an offer of possible settlement. In decisions concerning labor disputes, courts have described negotiations as the “process of submission and consideration of offers until an acceptable offer is made, and accepted . . . .” (Emphasis added.) Gainey v. Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees, 275 F. Sup. 292, 300 (D.C. Pa. 1967); United States v. John McShain, Inc., 258 F.2d 422, 424 (D.C. Cir.), cert. denied, 358 U.S. 832, 79 S. Ct. 52, 3 L. Ed. 2d 70 (1958); Hanover Shoe, Inc. v. United Shoe Mfg. Corp., 245 F. Sup. 258, 288 (D. Pa. 1965); United Consumers Club v. Griffin, 85 Ohio App. 3d 210, 619 N.E.2d 489 (1993). The filing of a grievance merely describes the particulars of the complaint, it does not discuss a proposed settlement and therefore does not contain negotiations. In another labor dispute case, the court held that the making of an oral complaint is not in itself negotiations. See Rutland Railway Corp. v. Brotherhood of Locomotive Engineers, 188 F. Sup. 721, 726 (D. Vt. 1960), rev’d on other grounds, 307 F.2d 21 (1st Cir. 1962), cert. denied, 372 U.S. 954, 83 S. Ct. 949, 9 L. Ed. 2d 978 (1963). These decisions in analogous labor dispute cases support our conclusion that the filing of a grievance does not fall within the generally recognized definition of negotiations.

The plaintiffs construction of § 1-19 (b) (9) is not supported by either the statutory language or the underlying policy of the Freedom of Information Act. We conclude, therefore, that the trial court correctly found that the FOIC properly excluded the requested grievances from exemption and ordered their disclosure.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this action are Robert A. Frahm, the Hartford Courant and the FOIC.

       General Statutes § 1-19 (b) provides in pertinent part: “Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (9) records, reports and statements of strategy or negotiations with respect to collective bargaining

       Grievances dealing with teacher performance or personnel evaluations were not requested as they are protected from disclosure pursuant to General Statutes § 10-151c.

       The trial court stated that the complaint was filed on January 17,1992, however, the FOIC hearing officer found that the complaint was dated January 17, 1992, and filed on January 22, 1992.

       See footnote 2.

       The FOIC found that the grievances sought by the defendant contained the following information: the grievants’ names, the names of the persons against whom the grievances were filed, the nature of the complaints, a reference to the contract sections at issue, and the working conditions, if any, complained of.

       General Statutes § 1-19 (a) provides in pertinent part: “Except as otherwise provided by any federal law or statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. . . .”


text:
    Frederick Maroun v. Richard Tarro et al.
    (12209)
    O’Connell, Landau and Heiman, Js.

      Argued May 2
    decision released August 9, 1994

      Kimball Haines Hunt, with whom, on the brief, was Heidi Cornish, for the appellant (named defendant).

      Barbara E. Gardner, for the appellee (substitute plaintiff).
   O’Connell, J.

The named defendant appeals from a $45,000 jury verdict for the substitute plaintiff in this conversion action. The defendant claims that the trial court (1) improperly denied his motions for a directed verdict and his motion for judgment notwithstanding the verdict, (2) improperly failed to set aside the plaintiffs verdict because the evidence did not support the award of damages, and (3) improperly denied the defendant’s motion in limine to preclude the plaintiff from introducing certain exhibits. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On June 27,1986, the plaintiff purchased a 1969 280 SE Mercedes Benz automobile from Newfield Motors, Inc., for $19,000. The plaintiff paid the purchase price by conveying a used car to Newfield Motors. At the time of the purchase, the Mercedes was in a gutted skeletal condition. It was agreed that Newfield Motors would renovate the Mercedes into a classic show car. The plaintiff paid $8000 for this service with a check payable to the order of Newfield Motors, Inc.

Kathleen Wallack was the president of Newfield Motors and signed all documents pertaining to the transaction. The defendant was Wallack’s friend and spent considerable time at Newfield Motors. The defendant denied being an employee of Newfield Motors but was unable to explain why his name appeared on the bill of sale as the salesman. The restoration originally was to take six months, but complications with the leather for the interior and a cracked windshield caused extended delays.

In late 1987, the plaintiff received a telephone call from a deputy sheriff advising him that Newfield Motors was being closed and suggesting that the plaintiff retrieve his car because vandalism to other vehicles had taken place on the Newfield Motors premises. At that time, the plaintiffs wife spoke to Wallack by telephone and was assured that although Newfield Motors had been closed, the Mercedes was in storage at her residence at 9 Sunny Ridge in New Britain and that work on it was continuing. There was evidence from which the jury could have found that the 9 Sunny Ridge property was owned by the defendant and occupied by the defendant and Wallack.

In early March, 1988, the plaintiff received two parking tickets in the mail, charged to the Mercedes. On March 12, 1988, the plaintiff’s son went to Wallack’s residence to obtain the car. Wallack refused to turn over the car to the plaintiff’s son at that time, but did return it to the plaintiff later that same day when the plaintiff arrived at Wallack’s residence with a New Britain police officer. This return was facilitated when the defendant, at Wallack’s request, took the car keys from his pocket and gave them to the plaintiff. The vehicle, covered with sand and salt, was parked in the driveway of Wallack’s residence. Its odometer registered an increase of nearly 4000 miles over what it showed at the time of purchase. It had a scratch on the passenger side door and the left rear brake made a loud scraping sound for which Wallack gave the plaintiff a brake rotor. The plaintiff’s son drove the car away that night.

Prior to the day on which the plaintiff retrieved his car, the last time the plaintiff or his wife had seen the vehicle was in the middle of 1987 in a showroom at New-field Motors. At that time, neither the leather upholstery nor the carpeting had been installed. The plaintiff’s son saw the car in the Newfield Motors garage about a month prior to the March 12, 1988 retrieval and did not observe any damage to it at that time.

We commence our analysis by noting that this case was tried on one count alleging conversion by the defendant. There was no claim of a breach of bailment by Newfield Motors or by anyone else, nor was there a claim of negligence in the operation of the vehicle by the defendant or by anyone acting as the agent or servant of Newfield Motors. The complaint alleged that subsequent to June 26, 1986, the defendant operated the vehicle on the highways without authority and damaged or caused the vehicle to be damaged while it was in his possession and control.

The defendant moved for a directed verdict at the conclusion of the plaintiffs case and also at the conclusion of all the evidence. Both motions were denied. Following return of the jury’s verdict, the defendant filed a motion to set aside the verdict and for a new trial and a motion for judgment in favor of the defendant notwithstanding the verdict. Practice Book §§ 320 and 321. In each of those motions, the defendant argued that the facts submitted in evidence were insufficient to sustain a verdict for the plaintiff.

“Directed verdicts are not favored. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982). Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). Our review of a trial court’s refusal to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. . . . Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986) .... Iseli Co. v. Connecticut Light & Power Co, 211 Conn. 133, 140, 558 A.2d 966 (1989).” (Internal quotation marks omitted.) John T. Brady & Co. v. Stamford, 220 Conn. 432, 440-41, 599 A.2d 370 (1991).

“The tort of conversion boasts a well established definition which is not disputed by the parties. Conversion occurs when one, without authorization, assumes and exercises the right of ownership over property belonging to another, to the exclusion of the owner’s rights. . . . The seminal case in this state regarding conversion is Coleman v. Francis, 102 Conn. 612, 129 A. 718 (1925) .... Coleman established that there are two general classes of conversion: (1) that in which possession of the allegedly converted goods is wrongful from the outset; and (2) that in which the conversion arises subsequent to an initial rightful possession. Id., 615.” (Citations omitted; internal quotation marks omitted.) Luciani v. Stop & Shop Cos., 15 Conn. App. 407, 409-10, 544 A.2d 1238, cert. denied, 209 Conn. 809, 548 A.2d 437 (1988).

The parties agree that the present case falls into the second conversion class because it involves a claim that rightful possession of a car became conversion when the defendant wrongfully used the car or exercised wrongful dominion over it. The complaint alleges that the vehicle was put into the possession of Newfield Motors. It does not allege that it was put into the defendant’s possession. Thus, absent an allegation and proof that the vehicle was initially put into the defendant’s lawful possession, the plaintiff has not made out a case under the second class of conversion. Even if we disregard the parties agreement that this is conversion under the second class, the plaintiff has not alleged and proved wrongful possession of the car from the outset as required under the first class of conversion.

Moreover, there is no allegation or evidence of when the unauthorized use and damage occurred except that it was some time after the purchase and prior to the return of the vehicle to the plaintiff. There is no evidence, direct or circumstantial, or inferences that can reasonably be drawn from any evidence, that the defendant ever operated or caused the operation of the plaintiff’s Mercedes Benz. Under these circumstances, further discussion of the law of conversion is not warranted.

The plaintiff in the present case may have a cause of action of some type against someone, but the evidence and inferences reasonably drawn therefrom do not show that cause of action to be against this defendant for conversion. Accordingly, “the jury could not reasonably and legally have reached their conclusion”; Bound Brook Assn. v. Norwalk, supra, 198 Conn. 667; and the trial court should have granted the defendant’s motions for a directed verdict or his motion to set aside the verdict and rendered a judgment in his favor notwithstanding the verdict.

The judgment is reversed and the case is remanded with direction to set aside the verdict and to render judgment for the defendant.

In this opinion the other judges concurred.

       The named plaintiff died on October 7,1990, and his administratrix was substituted as a party plaintiff. For simplicity, our references to the “plaintiff’ are to the deceased or his administratrix, whichever is appropriate. The action was withdrawn as to the defendants Kathleen Wallack and New-field Motors, Inc. References in this opinion to the “defendant” are to the named defendant.

       Because our resolution of the defendant’s first claim is dispositive of the appeal, we do not reach the defendant’s second and third claims.

       We note that the testimony of the plaintiff’s son is inconsistent with the evidence that Newfield Motors had been closed since late 1987 and the car had been at Wallack’s New Britain residence from that time forward.

       Other counts against other defendants on other causes of action were removed from the case prior to trial.

       Additional allegations of failure to return the vehicle on demand were not supported by the evidence because the car was returned the same day on which demand for it was made. The trial court did not charge the jury on wrongful detention.


text:
    Palmer D. Marrin v. Donald G. Spearow et al.
    (11812)
    O’Connell, Landau and Heiman, Js.
    Argued May 2
    decision released August 9, 1994

      N. Peter Laskey, for the appellant (plaintiff).

      Donald G. Spearow, pro se, with whom, on the brief, was Lee Anne Spearow, pro se, the appellees (defendants).
   O’Connell, J.

In this action to quiet title, the plaintiff appeals from the judgment quieting title in the defendants. The plaintiff claims that the trial court improperly (1) rendered an inconsistent judgment by finding that the defendants owned the disputed property both by conveyance of record title and by adverse possession, (2) failed to find that the plaintiff owned record title to the land in dispute, (3) located the center line of the right-of-way, (4) found that the plaintiffs statutory easement pursuant to General Statutes § 13a-55 was extinguished by the defendants, (5) found that the road was properly discontinued by the town of Litchfield, and (6) found adverse possession by the defendants of thirty-three feet of land. We reverse the judgment of the trial court.

The following facts are necessary to a disposition of this appeal. The genesis of this action is a dispute over ownership of a road in Litchfield that is alleged to be no longer in use. The plaintiff claimed title to the disputed property or, in the alternative, a statutory easement upon discontinuance of a public highway pursuant to General Statutes § lSa-55. By special defense, the defendants claimed ownership of the property both by title and by adverse possession. They also pleaded that the highway had been abandoned.

Following a trial to the court, the court filed a memorandum of decision finding that the road had been discontinued by the town and that the defendants were the owners of the property by adverse possession. By way of a motion for articulation, the plaintiff sought to have the trial court clarify the record ownership of the property. In response thereto, the trial court articulated that “[t]his court makes no finding as to who had record title to the subject property since 1970. The right, title and interest of that record owner, be it [Vandewater] or Marrin or someone else, is found to have been extinguished by the adverse use claimed by the defendants.”

The Appellate Court granted review of this articulation and ordered the trial court to supplement it, specifically in regard to ownership of the record title. The plaintiffs motion for articulation expressly posed the question: “Did the plaintiffs predecessor in title, George Vandewater, own title to the disputed property prior to being ousted by the defendants.” The trial court tersely replied, “He did not,” and then went on to explain that “Arthur and Elizabeth French were the record owners of a parcel of real estate which abutted the former highway on its northerly side. Upon its discontinuance, they were presumed to be the owners of the northerly one-half, or thirty-three feet of the road, and they commenced to use and possess the area. On April 11,1975, the defendant Spearow took title to the French’s property and continued to use and occupy the disputed property to the present time.”

For the purposes of this appeal, it is not necessary that we review the correctness of the trial court’s application of the rule of law concerning ownership of a discontinued highway. It is clear, however, that in its supplemental articulation, the trial court found that the defendants had succeeded to the title that the grantors acquired by operation of law when the road was discontinued. It is likewise clear that the title thus acquired was in no way dependent on the doctrine of adverse possession. In its initial memorandum of decision and first articulation, the trial court expressly held that the defendants owned the property by adverse possession, but, in its supplemental articulation, the trial court held that the defendants owned the property because legal title thereto passed to them from their grantors.

I

The plaintiff first claims that the memorandum of decision and first articulation are inherently inconsistent and irreconcilable with the supplemental articulation. DeVita v. Esposito, 13 Conn. App. 101, 105, 535 A.2d 364, cert. denied, 207 Conn. 807, 540 A.2d 375 (1988), is directly on point. DeVita recognizes that a party may plead alternative and even inconsistent theories in the same action. See Practice Book §§94 and 137; Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985); DeVita v. Esposito, supra, 105. Thus, the defendants in DeVita and the defendants in the present case properly pleaded the inconsistent theories of record title and adverse possession. In view of its allowance of these inconsistent pleadings, the DeVita defendants argued that the trial court properly ruled that they had record title and also owned the property by adverse possession. DeVita v. Esposito, supra, 105.

In DeVita, the Appellate Court sharply and clearly disabused the defendants of the notion that their argument had any merit. “A duty of construction is placed upon the trial court whenever a party pleads inconsistent theories of recovery. . . . Although a party may plead, in good faith, inconsistent facts and theories, a court may not award a judgment on inconsistent facts and conclusions. A judgment, read in its entirety, must admit of a consistent construction. . . . Where a party is entitled to only a single right to recover, it is the responsibility of the trial court to determine which of the inapposite sets of facts the party has proved, and then to render judgment accordingly.” (Citations omitted.) Id., 107.

“A person who claims title by deed is claiming that he has good record title which entitles him, in an action to quiet title, to a judgment of ownership. Loewenberg v. Wallace, 147 Conn. 689, 698, 166 A.2d 150 (1960). Conversely, a person who claims title by adverse possession is claiming that although he does not have record title, his proof of possession which is adverse, open, notorious and continuous for the entire statutory period entitles him, in an action to quiet title, to a judgment of ownership. Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976); Schlough v. Ruley, 1 Conn. App. 119, 120, 468 A.2d 1272 (1983).” Id., 106. “The trial court must first determine in which party record title lies, and then, if necessary, determine whether adverse possession has divested the record owner of his title.” Id., 108.

In the present case, the trial court expressly declined in its memorandum of decision to find who owned record title and upon being pressed through articulation concluded that record title was in the same party that it had earlier found had acquired title by adverse possession. This could not be done.

The defendant relies on Loewenberg v. Wallace, 151 Conn. 355, 197 A.2d 634 (1964). Loewenberg holds that a claim of adverse possession will not be defeated even though the claimants, in exercising dominion and control over property were motivated by an honest although mistaken belief that the area in question was included in the description of the property conveyed to them. Id., 357-58. In Loewenberg, the claimants clearly did not have record title to the property, but thought that they did. Here, the trial court found that the defendants had record title but also had acquired title to the same property by adverse possession. Loewenberg is inapposite to the present case.

When a trial court has rendered a judgment containing inconsistencies, we must vacate the judgment and remand the case for a new trial. DeVita v. Esposito, supra, 13 Conn. App. 112.

II

Because our analysis of the plaintiffs first claim requires a new trial, we do not reach the other claims except for the issue of whether the road was properly discontinued because that issue raises a question of law that is likely to arise again on retrial.

The plaintiff alleged that the road in question was not properly discontinued, and the defendants by special defense alleged that the road had been abandoned. The trial court found that the road “was properly discontinued in 1973, and that it had not been used as a public highway for many years prior to that date, nor since.”

“Discontinuance” and “abandonment” are not synonymous terms as applied to highways. “A highway may be extinguished by direct action through governmental agencies, in which case it is said to be discontinued; or by nonuser by the public for a long period of time with the intention to abandon, in which case it is said to be abandoned.” Greist v. Amrhyn, 80 Conn. 280, 285, 68 A. 521 (1907). The methods of discontinuing a highway through governmental agencies are prescribed by law and must be strictly followed. Id.

General Statutes § 13a-49 empowers town selectmen to discontinue highways unless the highway was laid out by a court or the general assembly. General Statutes § 13a-50 provides that the Superior Court may discontinue any highway that cannot be discontinued by the selectmen.

On February 21,1973, the town of Litchfield passed a resolution purporting to discontinue the road. The evidence, however, shows that the road was laid out by the Superior Court for Litchfield county in 1865. Accordingly, only the Superior Court had jurisdiction to discontinue it. “[A] municipality is not permitted to discontinue a highway laid out by a court.” General Dynamics Corp. v. Groton, 184 Conn. 483, 486, 440 A.2d 185 (1981). An attempt by a town to discontinue a road that it did not lay out is void. Meriden v. Bennett, 76 Conn. 58, 70, 55 A. 564 (1903); Simmons v. Eastford, 30 Conn. 286, 288-89 (1861); see R. Fuller, 9 Connecticut Practice Series, Land Use Law and Practice (1993) § 49.3. The evidence does not support a conclusion that Litchfield’s February 21,1973 resolution lawfully discontinued the road in question.

Turning now to abandonment, we note that the trial court’s finding was limited to the fact that “it had not been used as a public highway for many years [prior to Litchfield’s discontinuance] nor since.” This is not sufficient. Mere nonuse is not enough. The case law requires an intent to abandon together with the nonuse. See E. Sostman & J. Anderson, “The Highway and the Right of Way: An Analysis of the Decisional Law in Connecticut Concerning Public, Private and Proposed Roads from Establishment to Abandonment,” 61 Conn. B.J. 299-98 (1987).

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

In this opinion the other judges concurred.

       General Statutes § 13a-55 provides: “Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.”

       General Statutes § 52-575 provides: “No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry after-wards; and no such entry shall be sufficient, unless an action is commenced thereupon and prosecuted to effect within one year next after such entry; but, if any person who has such right or title of entry into any lands or tenements is, at the time of the first descending or accruing of such right or title, a minor, non compos mentis or imprisoned, he and his heirs may, notwithstanding the expiration of such fifteen years, bring such action or make such entry at any time within five years next after full age, coming of sound mind or enlargement out of prison, or his heirs shall, within five years after his death, bring such action, or make such entry, and take benefit of the same; provided the limitation herein prescribed shall not begin to run against the right of entry of any owner of a remainder or reversionary interest in real estate, which is in the adverse possession of another, until the expiration of the particular estate preceding such remainder or reversionary estate.”

       Whether the road was properly discontinued, however, will be discussed in part II of this opinion.

       Practice Book § 94 provides: “Persons may be joined as defendants against whom the right to relief is alleged to exist in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other.”
      Practice Book § 137 provides: “The plaintiff may claim alternative relief, based upon an alternative construction of his cause of action.”

       General Statutes § 13a-49 provides in pertinent part: “The selectmen of any town may, subject to approval by a majority vote at any regular or special town meeting, by a writing signed by them, discontinue any highway or private way, or land dedicated as such, in its entirety, or may discontinue any portion thereof or any property right of the town or public therein, except when laid out by a court or the general assembly, and except where such highway is within a city, or within a borough having control of highways within its limits. . . .” (Emphasis added.)

       General Statutes § 13a-50 provides in pertinent part: “The superior court, on the application of any person, may discontinue any highway in the judicial district where it is held, which cannot be discontinued by the selectmen . . . .” (Emphasis added.)