author: Borden, J. Bieluch, J.,

text:
    The Fidelity Trust Company v. Betty Irick et al.
    (4742)
    Borden, Daly and Bieluch, Js.

      Argued January 6
    decision released May 19, 1987

      Robert A. Nagy, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (state).

      James Dalton Murphy, for the appellee (plaintiff).
   Borden, J.

The state of Connecticut, a defendant in this foreclosure action, appeals from the judgment of strict foreclosure rendered by the trial court. The state claims that the court abused its discretion by refusing to order a foreclosure by sale. We find no error.

The following facts are undisputed. The plaintiff commenced this action to foreclose its first mortgage on residential real estate owned by the named defendant, Betty Irick. The amount of the plaintiffs mortgage debt, including costs and fees, was approximately $74,600. The state was named as a defendant by virtue of its second mortgage held by the state department of income maintenance to secure grants of public assistance. The amount of the state’s mortgage debt was approximately $25,000. The plaintiff also named itself as a defendant by virtue of an attachment in the amount of $12,000 which it had filed against the subject property arising from another debt due to it from the named defendant. This attachment was subsequent in right to the second mortgage held by the state. In addition, there were unpaid real estate taxes on the property in the approximate amount of $5000. The total amount of the liens against the property, therefore, was approximately $116,600.

After all of the defendants were defaulted, the plaintiff moved for judgment, and the state moved for a foreclosure by sale. At the hearing, the plaintiffs appraiser valued the property at $96,750. The state does not challenge that valuation. The expenses estimated for a foreclosure by sale were $7000. The court denied the state’s motion for foreclosure by sale and rendered a judgment of strict foreclosure. The state thereafter moved to open the judgment, again seeking a foreclosure by sale. The court denied the state’s motion. This appeal followed.

The state claims that the court abused its discretion in denying the motions for foreclosure by sale. The gist of the state’s argument is that, regardless of whether the total liens and estimated expenses of a sale exceed the value of the property, it is manifestly unjust for a first mortgagor to acquire property by strict foreclosure where the value of the property substantially exceeds the amount of the first mortgage debt, and where a sale is sought by a subsequent lienor who would realize something towards its debt from a sale. We disagree.

“In Connecticut, the law is well settled that whether a mortgage is to be foreclosed by sale or by strict foreclosure is a matter within the sound discretion of the trial court. General Statutes § 49-24; City Savings Bank v. Lawler, 163 Conn. 149, 155, 302 A.2d 252 (1972); Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966). ‘The foreclosure of a mortgage by sale is not a matter of right, but rests in the discretion of the court before which the foreclosure proceedings are pending.’ Bradford Realty Corporation v. Beetz, 108 Conn. 26, 31, 142 A. 395 (1928).” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 184, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985).

In this case, the total amount of the liens against the property exceeded its value by approximately $19,850. An additional $7000 in sale expenses, moreover, was likely to be incurred. The court was clearly entitled to consider the entire picture, including the anticipated sale expenses, in exercising its discretion, and to render a judgment of strict foreclosure in order to avoid what in this case would amount to the economic waste of a foreclosure by sale. See American Bank of Connecticut v. Eagle Construction Co., 10 Conn. App. 251, 255, 522 A.2d 835 (1987); Spera v. Audiotape Corporation, 1 Conn App. 629, 633, 474 A.2d 481 (1984). “Having determined the fair market value of the property] and the amount of the [liens], the trial court concluded that strict foreclosure was necessary. There was no abuse of discretion.” Hartford Federal Savings & Loan Assn. v. Tucker, supra.

The state’s argument, and that of the dissent, would convert the discretionary determination of the trial court into a right of a subsequent lienor to require a foreclosure by sale, as long as the lienor could establish that a sale was likely to yield more than the debt underlying the mortgage being foreclosed. This would be contrary to our well settled law. Id. Indeed, if this case constituted an abuse of discretion, we would be hard pressed to envisage another in which the trial court would be justified in declining to order a foreclosure by sale requested by a second mortgagee.

The state’s argument also runs directly counter to General Statutes § 49-31 which provides: “In any action to foreclose a mortgage or lien on any land in which the state, or any officer or agent thereof, claims to have an interest subordinate to that of the party seeking the foreclosure, the state, or such officer or agent, as the case may be, may be made a party defendant, and such interest may be foreclosed in the same manner and with the same effect as if such interest were held by an individual, except that no judgment may be rendered against the state or any officer or agent for money or costs of suit.” (Emphasis added.) Although at oral argument in this court the state specifically disclaimed any special status, in effect it seeks precisely such a status by its reliance, in the trial court and in its brief in this court, on the claim that it cannot redeem under a strict foreclosure because the legislature has not appropriated funds for such a purpose. This reliance simply ignores the purpose of General Statutes § 49-31.

Unlike the clear policy of General Statutes § 49-31, which is to treat the state no better or worse than an individual lienor, federal law mandates that, when the United States government has a lien on property being foreclosed, absent its consent the lien cannot be extinguished by a strict foreclosure. 28 U.S.C. § 2410 (c); City Savings Bank v. Lawler, supra, 154. In contrast, our law denies such special status to the state. To accept the state’s argument in this case would be to thwart the policy expressed by General Statutes § 49-31. The state’s remedy, if any, is to alter its own legislatively declared public policy; it is not for the judiciary to do so.

Implicit in the argument of the state, and of the dissent, is the notion that if a subsequent lienor does not have the ability, even by its own choice, to arrange financing in order to exercise its right to redeem pursuant to a judgment of strict foreclosure, it is entitled to a foreclosure by sale. We know of no such legal principle giving rights to impecunious or noncreditworthy lienors greater than to those who may be able to exercise their redemption rights. Nor do the loose dicta of the cases on which the state relies; City Savings Bank v. Lawler, supra, 158; New Haven Bank v. Jackson, 119 Conn. 451, 455, 177 A. 387 (1935); Staples v. Hendrick, 89 Conn. 100, 106, 93 A. 5 (1915); support the establishment of such a principle.

There is no error.

In this opinion Daly, J., concurred.

Bieluch, J.,

dissenting. I dissent. The majority opinion supports its conclusion by totaling the gross sum of all liens against the property, without consideration of the respective priorities of the lienholders and the amount of payment that would be available to them upon sale after satisfaction of the first mortgage being foreclosed. “Foreclosure is peculiarly an equitable action . . . .” Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966). The state’s entitlement to equitable relief is not correctly determined by the sum total of all liens, both prior and subsequent, against the property. It is properly measured by the funds which would be available to the state after payment of the prior mortgage being foreclosed in the event of a sale, and that amount in this case would be a considerable recoupment on its security.

The named defendant was defaulted for failure to appear. After the remaining defendants failed to disclose a defense, the plaintiff moved for judgment. The state, however, moved for judgment of foreclosure by sale.

On October 15, 1985, the trial court held a hearing on the parties’ motions for judgment. After testimony by an appraiser, the court found the value of the land and buildings to be $96,750. The court found the first mortgage debt to be $71,996.70, and allowed attorney's fees of $1662.50 and appraisal fees of $650. In addition, costs were taxed at $294.60. The total of such indebtedness was $74,603.80. Accrued taxes were estimated to be approximately $5000. By these findings, the equity for subsequent encumbrancers was in excess of $17,000. The plaintiff argued at trial that in a foreclosure by sale, the committee fees and sale expenses would reduce the equity to $10,000, which the state indicated that it “would gladly take” as the next encumbrancer in order of priority. The state maintained that a strict foreclosure would allow the plaintiff to recover in full its first mortgage indebtedness and, in addition, in excess of the third encumbrance, its attachment, at that time converted to a judgment lien, to the complete exclusion of the state as a prior second encumbrancer. A foreclosure by sale, however, would allow it to recover a substantial portion of its secured indebtedness. In effect, strict foreclosure would give the plaintiff a large windfall by boxing in the state.

The court expressed its view that a judgment of strict foreclosure would not bar the state from recovering any portion of its claim. It asserted that the state had “the right to redeem if you think that it’s worth $95,000 and you can sell it for that.” The court denied the state’s motion for judgment of foreclosure by sale and rendered judgment of strict foreclosure.

The state filed a motion to open the judgment of strict foreclosure to permit reargument of the court’s denial of its motion for foreclosure by sale. At the hearing on this motion, the state argued that it could not redeem, as suggested earlier by the court, because the state has no money allocated for such purposes. The court responded that it was of no consequence that as a practical matter the state does not redeem. The court stated that it did not “see why the State should be treated any differently than anyone else just because they are the State.” The court thereafter concluded: “It would be a waste of everyone’s time and money to have a foreclosure by sale. So, the motion to reopen is denied.”

The state claims on appeal that the court erred in ordering strict foreclosure where the value of the subject property exceeded the plaintiff’s debt, including accrued interest, attorney’s fees and taxable costs by approximately $22,000 (actually $17,000 after accrued taxes) and where a significant portion of the debt owed to the state could be paid out of the proceeds of a sale even after deduction for further costs of a committee sale.

The state acknowledges that an order of foreclosure by sale is not a matter of right, but rests within the sound discretion of the trial court. See General Statutes § 49-24; Constitution Bank & Trust Co. v. Robinson, 179 Conn. 232, 238, 425 A.2d 1268 (1979); Bradford Realty Corporation v. Beetz, 108 Conn. 26, 31, 142 A. 395 (1928). It argues, however, that the judgment of the court results in a windfall to the plaintiff. It further argues that a foreclosure by sale would not jeopardize the plaintiff’s position which is protected by its priority and the considerable equity in the property over and above the first mortgage debt owed to the plaintiff.

The state contends further that it should not be penalized through the legislatively unavailable expense of redeeming the prior mortgage of the plaintiff in order to realize on its security interest. “[A] foreclosure by sale [gives] the owner of a relatively [smaller] subsequent incumbrance the chance of realizing on his security without first redeeming the [larger] mortgage or lien sought to be foreclosed.” Staples v. Hendrick, 89 Conn. 100, 106, 93 A. 5 (1915). The state argues that while it has the right as a subsequent lienholder to redeem in strict foreclosure, it does not have the legal power to do so. To this extent, the state claims that its position is similar to that of the federal government whose rights may only be foreclosed by a judgment of foreclosure by sale. See 28 U.S.C. § 2410 (c); City Savings Bank v. Lawler, 163 Conn. 149, 155-59, 302 A.2d 252 (1972).

In denying the state’s motion for foreclosure by sale, the court made no finding that there would be no equity left by a sale to pay any portion of the state’s claim after satisfaction of the plaintiff’s first mortgage debt. The court merely summarily concluded that “[i]t would be a waste of everyone’s time and money to have a foreclosure by sale.” This was not the exercise of sound discretion. Such a conclusion bore no relationship to the equities of the parties before the court, or their opportunity to realize on their respective security interests, the raison d’etre of foreclosure proceedings.

The record indicates that the property was appraised at $96,750. It also demonstrates that the plaintiff’s first mortgage, including costs and attorney’s fees, totaled $74,603.80. It further appears that approximately $5000 in taxes was also owing on the property. This leaves a balance in excess of $17,000 in equity, minus accrued interest and further expenses in the event of a foreclosure by sale, available to the payment of the state’s second mortgage. In argument on the state’s motion for foreclosure by sale, even the plaintiff’s counsel admitted that a sale of the property for $95,000 in a foreclosure by sale would leave a net equity of at least $10,000 available for the state’s second mortgage. The court confirmed that this is the amount the state “would get on a foreclosure by sale.” To this, the state responded: “Which we would gladly take, your Honor.”

“Foreclosure is peculiarly an equitable action . . . .” Hartford Federal Savings & Loan Assn. v. Lenczyk, supra, 463; First New Haven National Bank v. Rowan, 2 Conn. App. 114, 118, 476 A.2d 1079 (1984). “The theory of strict foreclosure is that any defendant given a law day may, if he so chooses, redeem the property subject to liens superior to his own. The procedure is designed to insure that a junior lienor will not lose his security interest in the liened property when the worth of the property exceeds the value of the senior liens. Thus, in theory as well as practice, strict foreclosure is equitable only where the junior lienor has the power to redeem. ” (Emphasis added.) City Savings Bank v. Lawler, supra, 158.

In this case, it is undisputed that the state did not have the legal power to redeem the subject property for lack of legislative budget authority. The trial court erred in finding this inability of no consequence in making its decision to order strict foreclosure. The ability of any party to redeem is a significant factor which the court should consider when deciding to order strict foreclosure. For this reason, the court was incorrect in presumably relying upon General Statutes § 49-31, which provides: “In any action to foreclose a mortgage or lien on any land in which the state, or any officer or agent thereof, claims to have an interest subordinate to that of the party seeking the foreclosure, the state, or such officer or agent, as the case may be, may be made a party defendant, and such interest may be foreclosed in the same manner and with the same effect as if such interest were held by an individual . . . .’’This provision does not preclude foreclosure by sale where it would be equitable to allow the state to realize on its security interest.

Had the appellant in this case been a private mortgagee, and not the state, my conclusion would be the same. The equity in the property available to a movant for foreclosure by sale is a factor in measuring the soundness of the court’s discretion in allowing a foreclosure by sale. See Bradford Realty Corporation v. Beetz, supra. The trial court in the exercise of its equitable powers must ensure that the security of a subsequent encumbrancer is realized where possible. “The remedy of the second mortgagee in such a case as this, if he cannot or does not wish to redeem, is by application for an order of sale under the statutes; General Statutes [§ 49-24] et seq.; and we have suggested that one purpose of this statutory remedy was to meet just such a situation as is here present. Staples v. Hendrick, supra. It is true that the grant of such an application rests in the sound discretion of the court; Bradford Realty Corporation v. Beetz, [supra]; but if there is need of a sale to protect the just rights of the parties, we have little fear that the court will not order it. ” (Emphasis added.) New Haven Bank v. Jackson, 119 Conn. 451, 455, 177 A. 387 (1935). The “little fear” that the court will not order a sale to protect the just rights of the parties has been disproven by the trial court’s refusal to grant the state’s motion for a foreclosure by sale and thereby failing to protect the right of the state to realize a considerable sum on its security interest.

For these reasons, I dissent from the majority opinion and would find that the trial court erred in denying the state’s motion for judgment of foreclosure by sale.

       The state does not dispute the reasonableness of this appraisal. At oral argument on appeal, counsel informed this court that the property was sold to a third party on September 18, 1986, for $100,000.
      While this appeal was pending, the plaintiff filed a motion in the trial court requesting that it be permitted to sell the property at private sale for $100,000 free and clear of all encumbrances and that the proceeds of the sale be used to pay its mortgage debt, taxable costs and outstanding taxes, with the balance to be held in escrow by the plaintiff for later distribution to the state or to it pursuant to the decision of this court on the correctness of the trial court’s judgment of strict foreclosure. The state filed a similar motion. The trial court ordered the private sale on those terms and that a copy of its order be recorded on the land records with the statutory certificate of foreclosure.
      In view of the subsequent private sale of the property for $100,000, the actual equity available to the state is in excess of $20,250.

       That the plaintiff’s argument that there was no equity in the property was circuitous is evident in the following portion of the hearing transcript:
      “Mr. Murphy: Your Honor, if you add those three items that you just approved together it comes to $74,603.80 and the per diem by the end of next week it will be close to $75,000. The State is owed $25,000 which makes it $100,000. Taxes run roughly around $5,000, which brings it to $105,000. If a sale were to occur, your Honor, a committee fee must be paid to take priority. Even at five percent it would be—
      “The Court: There’s no equity, is there?
      “Mr. Murphy: There isn’t any equity, your Honor.
      “Mr. Nagy: If your Honor pleases, what Mr. Murphy neglects to leave out is that the encumbrance directly after the State of Connecticut is the plaintiff. So, if the Court grants a strict foreclosure the bank will be made whole, more or less, and the State of Connecticut will be out a whole lot of money. The State’s claim is $20,000. We have no objection to the attorney’s fees, to the committee fees, as long as the State of Connecticut as a subsequent encumbrancer realizes a portion, at least, of its encumbrance. It is $25,000. But the difference between the appraisal fee and the debt— the appraisal and the debt is $20,000, your Honor. I think that there is enough there for purposes of protecting subsequent encumbrancers to allow a foreclosure by sale. We have a motion in the file—we have pressed that motion for foreclosure by sale in this matter.
      “The Court: In other words, if there’s a strict foreclosure you would be out.
      “Mr. Nagy: If there’s a strict foreclosure we’ll be out and the bank will get the first mortgage and they will be covered for the second mortgage that is directly behind the State of Connecticut. That’s the important factor here, your Honor. The only other real creditor in this case, subsequent encumbrancer, is the State of Connecticut.
      “The Court: You’re in the same bank—first and behind the State?
      “Mr. Murphy: Your Honor, I don’t agree with Mr. Nagy’s analysis. If I may be heard on that. Your Honor and I just worked through and got to $110,000 which brings us through to the end of the State’s lien.
      “The Court: Well, let’s say that this thing sold for $95,000. You would get your $74,000 and—
      "Mr. Murphy: The committee would—let’s say five—so that would be $79,000—let’s call it $80,000 because we are at $74,600 as it is. The appraisers—soup to nuts with the sign and so forth would be another $2,000 which brings us to $82,000—and we sold it for $95,000 leaving $10,000—
      “Mr. Nagy: Which we would gladly take, your Honor.
      “The Court: WTiich they would get on a foreclosure by sale.
      “Mr. Murphy: However, that’s not what the law says because the actual encumbrances are $110,000 plus this bank, plaintiff bank, is also a defendant third encumbrancer. So, the encumbrances here are another $12,000. It is $122,000 in encumbrances on an appraisal value of $96,000. The difficulty the State has, your Honor, is that they do not redeem, as a matter of policy. They want to thrust the burden of all of this administrative stuff on the plaintiff so that they can collect a portion of their debt.

        “Mr. Nagy: The burden for which the plaintiff is being compensated for out of the proceeds of the sale.
      “The Court: If you were not the State of Connecticut there’s no question there would be no foreclosure by sale.
      “Mr. Nagy: I’m not so sure, your Honor. What you would be doing would be taking away, at least potentially, $10,000 on a sale that would go to a subsequent encumbrancer and giving it to the bank.
      “The Court: But he would have the right to bid in, wouldn’t he?
      “Mr. Nagy: Well, sure he would have the right to bid, but he is a subsequent encumbrancer himself.
      “The Court: But, that’s how it always works on a strict foreclosure.
      “Mr. Murphy: There’s no difference here, your Honor, just because it is the State.
      “The Court: The State isn’t like the Federal Government.
      “Mr. Murphy: In fact, they have the wherewithal to come in.
      “The Court: I mean, the Federal Government I would have to order a foreclosure by sale.
      “Mr. Murphy: There’s no statute on this which is why we are here to argue it.
      “The Court: And here with the State I don’t. So why should the State be treated differently than anyone else?
      “Mr. Nagy: Because if there is a sale, your Honor,—the duty of this Court, I believe, is to protect subsequent encumbrances, subsequent creditors. There may be $10,000—
      “The Court: But the way they protect themselves is they have the right to bid in. I mean, that’s how the strict foreclosure works.
      “Mr. Murphy: The Court protects those who protect themselves. Here, in essence what the State is saying, your Honor, is we would like to be protected but we don’t want to do anything to accomplish that. We don’t want to redeem. I would be delighted if the State were saying, yes, let’s go strict and we’ll redeem and get what we can. The State is making no guarantees. In fact, they have indicated—
      “The Court: You have the right to redeem if you think that it’s worth the $95,000 and you can sell it for that.
      “Mr. Nagy: But we believe that a strict foreclosure ... by sale (sic) is strictly to the bank’s benefit as first encumbrancer and third encumbrancer.
      “The Court: But, you see, I have to take the names the way—just because the bank is third and because you are second shouldn’t make any difference. It should be the same as anyone else.
      “Mr. Nagy: Well, so the bank is using the leverage they have as third.
      “Mr. Murphy: Your Honor, we are not going to recover on the third anyway.
      “The Court: I’m going to deny your motion for foreclosure by sale. Strict foreclosure.”

       “Attorney Satti: It was the State’s understanding that one of the bases that the Judge used in deciding whether or not a strict foreclosure should enter was that the State would be able to redeem—they are in the position like any other creditor and they could redeem in order to retrieve their money.
      “The Court: But we know the State doesn’t redeem.
      “Attorney Satti: They do redeem. It’s not in the budget. There’s no money there.
      “The Court: But they could redeem.
      “Attorney Satti: I guess if the legislature took it upon themselves to meet and appropriate the funds.
      “The Court: I mean, I know as a practical matter the State does not redeem but that doesn’t really change anything.
      “Attorney Satti: Well, the thing is, your Honor, in the event there is a strict foreclosure the bank will receive their money as first mortgagee and as the third priority, a judgment lien, they will also receive that money.
      “The Court: All right.
      “Attorney Satti: There isn’t enough money for the State to obtain any of its money.
      “The Court: But you do what any other creditor would do. You have the rights of any other creditor.
      “Attorney Satti: But it’s not as easy for the State as it would be for another creditor.
      “The Court: I went through this once before. I think I heard this same argument, didn’t I?
      “Attorney Satti: Well, he didn’t mention that there is no money in the budget to redeem.
      “The Court: I don’t care.
      “Attorney Satti: If the Judge wants to take—
      “The Court: I don’t see why the State should be treated any differently than anyone else just because they are the State.
      “Attorney Murphy: Your Honor, it is my recollection that Mr. Nagy, who was handling the matter for the State at the time, did advise the Court that the State would not be redeeming.
      “The Court: I know they never redeem.
      “Attorney Murphy: And you Honor’s conclusion was just the same as it appears to be at the moment.
      “The Court: Yes.”

       In making this argument, the state points out that the plaintiff has a judgment lien based on a former attachment in the amount of $12,000 against the subject property. This encumbrance is third or next in priority to the second mortgage held by the state.
      In actuality, the plaintiff would receive full payment of its third encumbrance and the balance of all equity available above it.

       “A judgment or decree in such action or suit shall have the same effect respecting the discharge of the property from the mortgage or other lien held by the United States as may be provided with respect to such matters by the local law of the place where the court is situated. However, an action to foreclose a mortgage or other lien, naming the United States as a party under this section, must seek judicial sale.” 28 U.S.C. § 2410 (c).

       The plaintiff’s counsel incorrectly computed this balance available to the state in the event of a foreclosure by sale at $10,000. By his own calculations, a sale at $95,000, less gross payments and expenses of $82,000, would leave a net balance available to the state for realization of its security interest of $13,000, and not $10,000, to which he apparently rounded off the net figure. See footnote 2, supra.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Bird Electron Beam Corporation v. David Gamage
    (4908)
    Dupont, C. J., Borden and Daly, Js.
    Submitted on briefs March 2
    decision released May 26, 1987

      Louis R. Pepe filed a brief for the appellant (plaintiff).

      Bruce D. Tyler filed a brief for the appellee (defendant).
   Dupont, C. J.

The plaintiff claims that the trial court erred (1) in concluding that the defendant is not disclosing or using confidential information in his new employment, (2) in failing to rule at all on its claim of law that the new employer was a “conflicting organization” within the terms of the agreement and that, therefore, the employment was per se a breach of the agreement, and (3) in admitting hearsay evidence.

The trial court, in a lengthy opinion, found a number of facts which it had carefully sifted from the evidence. The plaintiff corporation is a “job shop,” a service business which makes electron beam welding applications to products manufactured by others; the plaintiffs customers include the present employer of the defendant; the plaintiffs welding schedules are confidential; the defendant had access to the plaintiffs welding schedules; the defendant is using the welding schedules of his new employer in its in-house welding jobs; the new employer cannot successfully compete with job shops; the defendant is performing the techniques of his new employer and not the techniques of the plaintiff; the defendant is a production welder in his new job and does not work on jobs similar to that of the plaintiff.

From those facts, the court concluded that the defendant was not disclosing or using confidential information learned from the plaintiff in his new employment. This conclusion is supported by the facts found which were, in turn, based on the evidence presented. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The plaintiff’s major argument centers about his claim that the court did not specifically find whether the new employer of the defendant was a “conflicting organization.” See footnote 1, supra. The plaintiff contends that since the court found the agreement to be enforceable, the failure to address the question of whether the defendant had breached the agreement by employment with a “conflicting organization” was reversible error, requiring a new trial. The plaintiff claims that if the second employer were a “conflicting organization,” the defendant’s employment would be, per se, a violation of the agreement even if he was not disclosing confidential information learned from his employment with the plaintiff. The alleged failure to rule on this issue is a failure, according to the plaintiff, to rule on each claim of law raised by it, a violation of Practice Book § 4059 (formerly § 3060B). The plaintiff argues that the consequence of a lack of a decision on its claim mandates reversal by this court of the trial court’s judgment.

The plaintiff’s argument assumes that the trial court did not rule on the defendant’s claim that the present employer is a “conflicting organization” and did not rule on whether the defendant had breached his agreement by virtue of his present employment. The plaintiff reads the trial court’s memorandum as deciding only that the defendant had not breached his agreement by disclosing confidential information.

The court, in addressing the defendant’s special defense that the agreement violated the Connecticut Anti-Trust Act; General Statutes §§ 35-24 through 35-45; concluded that the purpose of the agreement was the protection of the confidentiality of the plaintiff’s welding schedules. As such, the court found that the agreement’s restraint on subsequent employment for a particular time and within a particular area was not illegal per se. It further concluded that the defendant’s new employment would have been a breach of the agreement if the defendant were disclosing confidential information. Thus, the court apparently viewed the provisions of the agreement relating to prohibitions against disclosure and against subsequent employment as being intertwined. In the plaintiff’s view, however, the contractual prohibition against disclosure is independent of its claim that the defendant was per se prohibited from working for a “conflicting organization.”

The plaintiff’s latter claim was clearly raised by the plaintiff and was not specifically ruled on by the court. The court, however, may have impliedly found that the second employer was not a “conflicting organization” since it found that the employer was not engaged in work similar to that of the plaintiff, that the defendant was not using techniques of the plaintiff, that the defendant was a production welder who did not work on jobs similar to those performed by the plaintiff and that the second employer could not successfully compete with the plaintiff. On the basis of the court’s apparent reading of the contract, namely that the provisions against disclosure and against subsequent employment were intertwined, the court may have, in effect, found facts sufficient to support a conclusion on the issue raised without, however, actually making the conclusion.

Practice Book § 4059 (formerly § 3060B) provides in pertinent part: “[T]he court shall . . . state its decision on the issues in the case .... The court shall include in its decision its conclusion as to each claim of law raised by the parties.” The purpose of the section is to enable this court as well as the parties to understand the basis of a trial court’s decision. Rompe v. King, 185 Conn. 426, 433 n.2, 441 A.2d 114 (1981). If the trial court fails to articulate that basis sufficiently, this cotut may remand the case for further articulation under Practice Book § 4051 (formerly § 3082).

The problem here is that even if it can be assumed that the memorandum of decision makes it clear that the court sub silentio ruled that the defendant was not working for a “conflicting organization,” it remains unclear whether the court considered that conclusion irrelevant to its decision. The corut stated as its final statement, before the rescript, “that the NonDisclosure Agreement was effective to preclude the defendant from working for [the second employer] if the defendant had been engaged in disclosing confidential information of the plaintiff as alleged by the complaint.” This statement might mean that as long as the defendant did not disclose confidential information he could work for a “conflicting organization” without breaching the agreement.

Even if it is assumed that the court, without specifically saying so, found that the second employer, was not a “conflicting organization,” it also appears to have concluded that the fact was irrelevant because there could be no breach of the agreement unless the defendant disclosed confidential information to that employer. The plaintiffs claim is that, if the new employer were a “conflicting organization,” the defendant breached his agreement. The court’s decision on this claim was ambiguous. We deem it necessary, therefore, for a proper disposition of the cause, because of the ambiguity of the decision, to remand the case for an articulation by the trial court as to whether the defendant’s present employer is a “conflicting organization” and how that fact, if found, impacts on its conclusion as to whether the defendant breached the agreement because of his new employment. See Practice Book § 4061 (formerly 3060D); State v. Garrison, 199 Conn. 383, 388, 507 A.2d 467 (1986); Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); Bencivenga v. Milford, 183 Conn. 168, 176, 438 A.2d 1174 (1981).

The plaintiff also claims that the trial court erred in allowing into evidence a letter of the defendant’s present employer to the defendant, stating that the employer had no intention of knowingly receiving the trade secrets of another. The court admitted the letter, not for the purpose of showing the truth of its allegations, but to indicate that the defendant acknowledged that to be the policy of his new employer. The plaintiff argues that, although the court stated its reasons for the introduction as being outside the hearsay rule, it, in fact, relied on the letter for the truth of its contents in its memorandum of decision. The court did use the letter beyond the purpose recited. It used the exhibit to find that the present employer “has a firm policy against raiding employees from other companies.” Although the use of the letter for the truth of that fact was error, the error was harmless. The issues of this case were whether the agreement of the parties was enforceable and whether the defendant had violated the agreement either by disclosing confidential information to another employer or by working for the other employer. The policy of the second employer was not relevant to the basic issues.

The case is remanded to the trial court with direction to file a memorandum of decision in further articulation in accordance with this opinion.

In this opinion the other judges concurred.

       The pertinent provisions of the agreement are as follows:
      “l.b. ‘Confidential Information’ means information disclosed to the Employee or known by the Employee as a consequence of or through his employment by the Company, not generally known in the industry in which the Company is or may become engaged, about Company’s products, processes, and services, or the products, processes and services of Company’s customers, including, but not limited to, information relating to research, development, inventions, manufacture, purchasing, accounting, engineering, marketing, merchandising, and selling, whether, or not such information is included in a patent or trademark or copyright. . . .
      “l.d. ‘Conflicting organization’ means any person or organization engaged in or about to become engaged in research on, or development, production, marketing or selling of a Conflicting Product.
      “l.e. ‘Conflicting Product’ means any product, process, or service of any person or organization other than the Company, in existence or under development, which resembles or competes with a product, process, or service upon or with which the Employee works or has worked during the three (3) years prior to the termination of his employment with the Company or about which the Employee requires Confidential Information.
      “l.f. ‘Conflicting Organization’ means any person or organization or any person or organization controlled by, controlling or under common control with such person or organization, who or which is engaged in, or is about to become engaged in, research on or development, production, marketing or selling of a Conflicting Product.
      “6. Except as required in the Employee’s duties to the Company, he will never, directly or otherwise, use, disseminate, disclose, lecture upon or publish articles concerning any Confidential Information.
      “9. While he is employed by the Company, and for a period of two (2) years after termination of his employment with the Company, the Employee shall not render services, directly or indirectly, to any conflicting organization, having an office or place of business within Hartford County in the state of Connecticut or in Hampden or Middlesex Counties in the Commonwealth of Massachusetts, except that the Employee may accept employment with a Conflicting Organization whose business is diversified, and which, as part of its business, is not a Conflicting Organization, provided however, that the Company, prior to the Employee accepting such employment, shall receive separate written assurances satisfactory to the Company from such Conflicting Organization and from the Employee that the Employee will not render services directly or indirectly in connection with any Conflicting Product.”

       See footnote 1, supra, for the definitions of “conflicting organization’ and “conflicting product.”

       Although the plaintiff has characterized its claim regarding the meaning of the contract as a claim of law, it is more properly viewed as a question of fact. In the absence of definitive contract language, the determination “ ‘of what the parties intended to encompass in their contractual commitments’ ” is a question of fact. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); see also Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987); Bolmer v. Kocet, 6 Conn. App. 595, 608, 507 A.2d 129 (1986).


author: Spallone, J.

text:
    Loretta Rose Costa v. Anthony Costa
    (4871)
    (5270)
    Dupont, C. J., Hull and Spallone, Js.

      Submitted on briefs April 27
    decision released May 26, 1987

      Teresa R. Karutz filed a brief for the appellantappellee (defendant).

      Gerald T. Weiner and Richard Emanuel filed a brief for the appellee-appellant (plaintiff).
   Spallone, J.

After a contested hearing, the trial court dissolved the marriage of the parties and entered the following financial awards: (1) the plaintiff will retain the family home; (2) the plaintiff will quitclaim to the defendant her one-sixth interest in certain Vermont property; (3) the defendant will pay to the plaintiff $15,000 to be used for repairs to the house and $1500 to be used to pay off the mortgage; (4) the defendant will pay to the plaintiff a lump sum of $20,000 as at least part of her share in the total assets of the parties; (5) the defendant shall provide noncancelable life insurance with his wife as beneficiary in the amount of $90,000 so long as it is available to him from his company; (6) the defendant shall also provide health and medical insurance including psychiatric care and dental care for the plaintiff to become effective when his company’s policy ceases to cover the plaintiff; (7) the defendant will pay the plaintiff the sum of $350 per week as periodic alimony, and (8) the defendant will pay one-third of the plaintiff’s counsel fees.

In appeal 4871, the defendant has appealed, stating as his sole claim of error that the trial court abused its discretion in making certain of the financial awards incident to the decree of dissolution. He attacks that portion of the judgment which requires him to pay lump sum alimony of $20,000, to provide health and medical insurance, to pay periodic alimony, and to pay one-third of the plaintiff’s counsel fees. In appeal 5270, the plaintiff has appealed claiming that the trial court abused its discretion in denying the plaintiff’s posttrial motion for an allowance to defend this appeal.

The trial court expressly found that the parties had total assets of $450,000 of which $280,000 was in the defendant’s name, with $170,000 standing in the plaintiff’s name. The court also found that the defendant, including his salary, bonuses and income from rental property, had an income of $1123.50 weekly. The court also found that the plaintiff needed treatment for deep depression and had no immediate prospect of being able to work.

The defendant argues that the award of lump sum alimony, in addition to the award of the marital home, was inequitable and, therefore, an abuse of the court’s discretion. A trial court “has broad discretion in determining the type, duration, and amount of alimony which is proper . . . ." Sands v. Sands, 188 Conn. 98, 101, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). The court did not abuse its discretion in awarding the plaintiff lump sum and periodic alimony in the particular amounts found by the court to be proper. Barnes v. Barnes, 190 Conn. 491, 496, 460 A.2d 1302 (1983).

The defendant also argues that because the judgment file does not include the court’s order for health and medical insurance the order is void. The trial court’s memorandum of decision clearly required the defendant to provide such insurance. The defendant cites Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 5, 513 A.2d 1218 (1986), in support of his argument. That case, however, concerns the use of a judgment file for a determination of the date on which a judgment was rendered, and is inapposite to this case. Although a judgment file is presumed to be correct, the presumption may be overcome if there is evidence to the contrary. Here, the defendant does not dispute the fact that the court intended to, and did, require the defendant to provide health and medical insurance. It is a simple matter to correct the judgment file to conform to the judgment. The court’s order concerning insurance on the facts of this case is not void.

The defendant’s last argument is that the court’s order that the defendant pay one-third of the plaintiff’s counsel fees is void because no particular amount is specified. Plaintiff’s counsel indicated in oral argument to the trial court that the amount of $6000 was sought. A bill of the plaintiff’s attorney with some dollar figures, but without a total figure, was marked as an exhibit for identification, but was never made a full exhibit. Thus, there was no evidence of the actual costs incurred.

The decision to award counsel fees in a dissolution case is clearly within the trial court’s discretion. Holly v. Holly, 194 Conn. 25, 33-34, 478 A.2d 1000 (1984). While the decision as to the liability for payment of such fees can be made “in the absence of any evidence of the cost of the work performed”; Kenny v. Civil Service Commission, 197 Conn. 270, 278, 496 A.2d 956 (1985); the dollar amount of such an award must be determined to be reasonable after an appropriate evidentiary showing. Barco Auto Leasing Corporation v. House, 202 Conn. 106, 120-21, 520 A.2d 162 (1987). In this case, the trial court found the defendant liable for paying a fixed portion of the plaintiff’s counsel fees. We can find no abuse of discretion in such a ruling. The trial court, however, failed to determine the total amount of compensation from which the defendant’s percentage of liability was to be drawn. The proper remedy, therefore, is that the case be remanded to the trial court for a hearing to determine the amount of attorney’s fees awarded.

The claim of error raised by the plaintiff, that the trial court erred in not awarding her funds to defend the appeal, has no merit. “An abuse of discretion in denying an award of counsel fees will only be found if this court determines that the trial court could not have reasonably concluded as it did.” Fitzgerald v. Fitzgerald, 190 Conn. 26, 34, 459 A.2d 498 (1983). Having fully examined the record, we cannot so hold.

There is error in part on the defendant’s appeal (4871), the judgment is set aside as to the award of attorney’s fees and the case is remanded for further proceedings on that issue.

There is no error on the plaintiff’s appeal (5270).

In this opinion the other judges concurred.


author: Per Curiam.

text:
    Public Works Supply Company, Inc. v. Eveready Machinery Company
    (4924)
    Dupont, C. J., Hull and Spallone, Js.
    Submitted on briefs April 27
    decision released May 26, 1987

      Gregory J. Pepe filed a brief for the appellant (defendant).

      Peter J. Zagorsky filed a brief for the appellee (plaintiff).
   Per Curiam.

In this case, the defendant is attacking the factual findings of the trial court and the legal conclusions drawn from those facts. The defendant is asking us to retry this case. We cannot. On appeal, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous or whether the decision is otherwise erroneous in law. Practice Book § 4061 (formerly § 3060D); Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Ram Roofing & Sheet Metal Co. v. A.B.C. Plumbing & Heating, Inc., 2 Conn. App. 54, 56, 475 A.2d 341 (1984). It is the province of the trial court to pass upon the credibility of witnesses and the weight to be accorded the evidence. Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984); Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976). This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984).

Our review of the record and the briefs, with particular attention to the trial court’s exhaustive and carefully drawn memorandum of decision, indicates that the factual findings of the court are fully supported by the evidence and its legal conclusions are legally and logically sound.

There is no error.


author: Borden, J.

text:
    State of Connecticut v. Samuel Sullivan
    (3013)
    Borden, Daly and Bieluch, Js.

      Argued January 8
    decision released May 26, 1987

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and JaneBrandfonEmons, assistant state’s attorney, for the appellee (state).
   Borden, J.

After a jury trial, the defendant was convicted of risk of injury to a minor in violation of General Statutes § 53-21. On appeal from the judgment of conviction, he claims that the trial court erred (1) in violating its sequestration order by allowing a mother, who was to be a witness, to be present during the testimony of her minor daughter, (2) in permitting the state to amend its information to charge an additional or different offense, (3) in enlarging the offense charged in the information by its jury instructions, (4) in erroneously charging on circumstantial evidence, and (5) in denying the defendant’s motion to poll the jury. We find no reversible error.

The jury could reasonably have found the following facts. In July, 1982, Shirley McGill was in the process of moving her family into a second floor apartment in New Haven. She was accompanied by her nine year old daughter, Kim, and her friend, Beverly Raney. At around 2:30 p.m., Kim looked out the kitchen window and saw the defendant, a young man and the victim, a four year old boy. According to her testimony, the defendant was lying on his back, with his hands behind his head. The victim had a small stick and was moving it in front of the defendant’s eyes. The defendant then pulled down his pants to his knees, and the victim touched the defendant’s exposed penis with the stick and moved it back and forth. Kim told the victim and the defendant to get out of the alley and then called her mother, who was working in another room. McGill testified that she came into the kitchen, looked out the window, and saw the defendant lying on the ground with the victim sitting between his legs. She testified that the defendant was holding the victim’s hand on the defendant’s erect penis. McGill yelled at the victim and the defendant to get out and called her friend, Raney, to look out the window. Raney testified that she observed the defendant with one hand behind his head and one hand on top of the victim’s hand which was stroking his erect penis.

The victim’s mother was at work during this incident and, upon her return, McGill told her what had happened. She confronted the defendant and asked him what he did to her son. The defendant responded: “I am mentally retarded. They can’t do anything to me.” He laughed at her and also said, “If that f’n lady wasn’t looking out of the window . ” Thereafter, the police were contacted and the defendant was arrested.

The defendant did not testify at trial nor did he present any witnesses or evidence.

I

The defendant first claims that the trial court erred when it violated its witness’ sequestration order by allowing McGill to be present during the testimony of her daughter, since both were to be witnesses at trial. Prior to trial, the defendant moved to sequester all potential witnesses during any hearings and at trial. The state made no objection to the motion and it was granted by the court. Thereafter, the state indicated that it intended to call McGill and her daughter at trial, and that it wanted the mother present during her daughter’s testimony. The state also expressed its preference in having the daughter testify first. The defendant objected on the ground that the mother would hear her daughter’s testimony and might fashion her own testimony to correspond more closely to it. The court nonetheless amended the sequestration order to permit the daughter to testify first, in the presence of her mother. The defendant claims that the trial court’s amendment to the sequestration order constitutes reversible error because it led to the tainting of McGill’s testimony. More specifically, the defendant claims that McGill was given the opportunity to reshape her testimony to conform more closely with her daughter’s. We disagree.

The state concedes, as it must in light of State v. Stovall, 199 Conn. 62, 505 A.2d 708 (1986), and Practice Book § 876, that the trial court erred in violating the sequestration order and allowing McGill to be present during the testimony of her daughter. Practice Book § 876 provides in relevant part that “[t]he judicial authority upon motion . . . of the defendant shall cause any witness to be sequestered during the hearing on any issue or motion or during any part of the trial in which he is not testifying.” (Emphasis added.) See also General Statutes § 54-85a. In State v. Stovall, supra, our Supreme Court, after taking note of Practice Book § 876 and General Statutes § 54-85a, held that a trial court commits error when it violates a sequestration order. In that case, the trial court refused to excuse a witness in response to the defendant’s motion, during a colloquy between the defense counsel and the court over an alleged inconsistency in the testimony of the witness. While the court found error in this ruling, it could not conclude that the failure to sequester the witness was “probably harmful to the defendant.” Id., 68. We hold, also, that the failure of the trial court in this case to observe the sequestration order was error. Our finding of error does not end the discussion, however. As the court in State v. Stovall, supra, 69, pointed out, “[t]he burden is on the defendant to show prejudice in the trial court’s failure to observe its sequestration order . . . .” Id., 69. This standard applies when nonconstitutional error is involved. State v. Silveira, 198 Conn. 454, 479, 503 A.2d 599 (1986). The defendant has failed to carry this burden.

“The purpose of a sequestration order is to prevent a witness from fashioning his testimony to correspond to the statements of others in the courtroom . . . .” State v. Stovall, supra, 67-68. This purpose was not thwarted under the facts of this case. McGill testified at a pretrial motion to dismiss, untainted by exposure to her daughter’s testimony. Thus, the defendant had an opportunity to hear her version of events uncolored by the subsequent testimony of her daughter. Any fashioning of her testimony at trial to correspond to that of her daughter at trial could have been exposed by the defendant on cross-examination. A review of McGill’s cross-examination fails to disclose any attempt by the defendant either to expose inconsistencies between her pretrial testimony and her testimony at trial, or to demonstrate consistencies between her daughter’s testimony and her testimony attributable to the fact that she had already heard her daughter’s testimony. This is not surprising since a review of McGill’s pretrial and trial testimony, and of her daughter’s trial testimony, fails to disclose any such material inconsistencies or consistencies. The inconsistencies between McGill’s pretrial testimony and her testimony at trial were “marginal in the extreme” and with “little or no impeachment value”; State v. Stovall, supra, 69; and the degree of consistency between her daughter’s testimony and her testimony at trial was wholly explainable by reference to factors other than the order of their testimony. We therefore hold that any error flowing from the trial court’s failure to observe the sequestration order was harmless.

We point out further that the defendant’s failure to impeach McGill with her pretrial testimony undermines the defendant’s claim that prejudice flowed from the violation of the sequestration order. Trial counsel was, of course, aware of the potential taint that could flow from McGill’s exposure to her daughter’s testimony, having argued it in opposition to the amendment of the sequestration order. Additionally, the trial court, in response to trial counsel’s concerns, pointed out that defense counsel could expose any inconsistencies between the pretrial testimony and trial testimony on cross-examination. The failure of trial counsel to attempt, on cross-examination of McGill, to show any harm that may have flowed from the violation of the sequestration order is strong evidence that he did not deem it to be prejudicial. Defense counsel’s silence at trial is a powerful signal that he did not consider the court’s action to constitute the harmful error which he now presses on appeal. State v. Huff, 10 Conn. App. 330, 338, 523 A.2d 906 (1987). “Under the circumstances, it appears that trial counsel chose not to pursue the question[s] because he concluded, as have we, that any purported inconsistency between the witness’ testimony on the motion and her testimony at trial was marginal in the extreme.” State v. Stovall, supra, 68-69.

II

The defendant next claims that the trial court erred by allowing the state to amend its information, after trial had begun, to charge an additional or different offense. We disagree.

The defendant was charged by a long form information with risk of injury to a minor in violation of General Statutes § 53-21. The original information alleged that the defendant “did unlawfully or wilfully cause or permit the morals of a four year old child ... to be impaired, inter alia by dropping his pants, exposing his penis and compelling and encouraging the young child to touch his penis, all in violation of Section 53-21 of the Connecticut General Statutes.” After voir dire had begun, the state sought permission to amend the risk of injury count to read, in part: “[The defendant] did unlawfully or wilfully cause or permit the morals of a four year old child ... to be impaired, or did an act likely to impair the morals of [the minor victim] . . . ."(Emphasis added.) The stated objective of the amendment was to charge both parts of the risk of injury statute. Over the defendant’s objection, the trial court permitted the amendment. The defendant claims on appeal that this amendment was in direct contravention of Practice Book § 624.

Practice Book § 624 applies to amendments after trial has begun. We recently held that for purposes of Practice Book § 624 a trial begins with the voir dire of prospective jurors. State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 752 (1986). Practice Book § 624 provides in relevant part that “[ajfter commencement of the trial for good cause shown, the judicial authority-may permit the prosecuting authority to amend the information . . . at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced.” (Emphasis added.) This rule serves to implement the defendant’s right to fair notice of the charges against him. “The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial of the charges against which he must defend himself. See U.S. Const., amend. VI; Conn. Const., art. I § 8.” State v. Jacobowitz, 182 Conn. 585, 591, 194 A.2d 408 (1981). Under Practice Book § 624, unless the original and the amended information charge the defendant with the same crime, an amendment is permissible only to charge a lesser included offense. See State v. Cole, supra, 552. An amendment which charges a new offense, but not a lesser included offense, is a substantive alteration of the information which is prohibited by Practice Book § 624. State v. Cole, supra.

The original and the amended informations both charged the defendant with the same crime; State v. Jacobowitz, supra; namely risk of injury to a minor in violation of General Statutes § 53-21. Therefore, the amendment was not a substantive alteration of the information, but merely charged two methods of committing the same crime. This case is analogous to State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980). In Wallace, the defendant was originally charged with robbery in the first degree, in violation of General Statutes § 53a-134 (a) (2), which requires proof that the defendant was armed with a deadly weapon. During the trial the court permitted the state to amend the information to charge a violation of subsection (a) (4) of the same statute, which requires proof that the defendant displayed or threatened the use of what he represented by his conduct to be a pistol, revolver, rifle or other firearm. Our Supreme Court held, in the face of a claim that Practice Book § 624 had been violated, that “[t]he amended information did not charge an additional or different offense. Both the original and the amended informations charged the defendant with the same crime of robbery in the first degree.” (Emphasis added.) State v. Wallace, supra, 239; see also State v. Scognamiglio, 202 Conn. 18, 24, 519 A.2d 607 (1987) (General Statutes § 53a-54c dirides crime of felony murder into two methods of committing same crime, not into two crimes); State v. Kitt, 8 Conn. App. 478, 513 A.2d 731 (1986), cert. denied, 202 Conn. 801, 518 A.2d 648 (1987); compare State v. Jacobowitz, supra, 590-93 (impermissible under Practice Book § 624 to amend original information charging the crime of attempted murder, in violation of General Statutes §§ 53a-49 [a] [2] and 53a-54a [a], to charge the crime of threatening, in violation of General Statutes § 53a-62 [a] [1]), with State v. Cole, supra (impermissible under Practice Book § 624 to permit the state to amend an information, charging assault in the third degree, to a charge of attempted assault in the first degree). Because both the original and amended informations charged the defendant with the same crime, namely, impairing the morals of a minor in violation of General Statutes § 53-21, the amendment was properly permitted.

The defendant’s claim that General Statutes § 53-21 is “separable” under State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65 (1963), does not change our holding. In State v. Dennis, supra, our Supreme Court held that “[t]he use of the disjunctive ‘or’ between the two parts of [General Statutes § 53-21] indicates a clear legislative intent of separability.” The purpose of the statute “in combining the two parts in a single section was to proscribe two general types of behavior likely to . . . impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiesence in, or the creation of situations inimical to the minor’s moral . . . welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral . . . well-being.” (Citation omitted.) Id., 250.The defendant urges us to apply a test of separability when determining whether an additional or different offense has been charged by an amendment. He cites no support for this notion, and our reading of State v. Jacobowitz, supra, State v. Wallace, supra, and the later cases convinces us that when an amendment charges the defendant with the same crime, as it did in the present case, it is permissible.

Ill

The defendant next claims that the trial court unconstitutionally enlarged the crime charged in the information by its instructions to the jury. He claims, once again, that this violated his constitutional right to fair notice. He concedes that he neither took an exception to the charge nor raised this claim at trial. He contends, however, that his claim is reviewable under the second exception created by State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because the “record adequately supports a claim that [he] has clearly been deprived of a fimdamental constitutional right and a fair trial.” We apply the recently clarified Evans formulation; State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891 (1987); and conclude that while the defendant has raised an issue, which by its terms, implicates a constitutional right; State v. Scognamiglio, supra; State v. Franko, 199 Conn. 481, 508 A.2d 22 (1986); State v. Newton, 8 Conn. App. 528, 513 A.2d 1261 (1986); the record does not adequately support it. See, e.g., State v. Huff, supra.

The second count of the information charged, inter alia, that the defendant “did unlawfully or wilfully cause or permit the morals of a four year old child to be impaired.” In its charge to the jury, the court instructed that the defendant could be found guilty if the child was placed in a situation where its morals were likely to be impaired. This charge reflects the language of General Statutes § 53-21, which forbids any person to place a child “in such a situation that ... its morals [are] likely to be impaired.” (Emphasis added.) See footnote 7, supra.

The defendant claims that the information charged actual impairment of morals as the theory of criminal liability, and that the court’s instructions enlarged the offense to charge an alternate theory of liability, namely, conduct likely to impair morals. From this, the defendant claims that the trial court went beyond the offense of risk of injury to a minor as charged in the information, thereby improperly enlarging the crime charged and, concomitantly, allowing the defendant to be convicted on an uncharged theory of liability, of which he had no notice.

The gist of General Statutes § 53-21 is not conduct which results in the actual impairment of morals. See State v. Apostle, 8 Conn. App. 216, 243, 512 A.2d 947 (1986) (injury not an element of the offense). Rather, the gist is conduct which is likely to impair the morals of a child under the age of sixteen. “ ‘ [T]he creation of a prohibited situation is sufficient.’ State v. Perruccio, 192 Conn. 154, 160, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984).” State v. Newton, supra, 536. We conclude that, because the information as fairly read, and understood at trial by the court, the state and the defendant, charged the defendant in accordance with these principles, the defendant’s claim of lack of notice by unconstitutional enlargement is not supported by the record and therefore not entitled to further review under Evans. See State v. Thurman, supra.

The information in this case accused the defendant “of risk of injury to a minor child [in that the defendant] . . . did unlawfully or wilfully cause or permit the morals of a four year old child . . . to be impaired, inter alia by dropping his pants, exposing his penis and compelling and encouraging the young child to touch his penis, all in violation of section 53-21 of the Connecticut General Statutes.” Thus, although the information did not contain the word “likely,” its reference to the statute gave clear notice to the defendant that he was charged with conduct which violated a statute, the gist of which was the likely impairment of the morals of a young child. The information, fairly read, did not purport to charge the defendant with actually impairing the morals of the victim, a theory of liability which is not within the proscription of General Statutes § 53-21. Rather, it charged him with conduct, namely, compelling and encouraging the victim to touch his exposed penis, which was likely to impair the morals of the four year old victim, a theory of liability which is within the proscription of the statute.

It is clear, moreover, that at trial the defendant, as well as the court and the state, understood the inartfully worded information to charge the defendant with engaging in conduct likely to impair the victim’s morals, rather than actually impairing his morals. The defendant took no procedural steps to challenge the information on the basis that it charged a theory of liability which was not within the statute it involved. Before the presentation of evidence, the court delivered preliminary instructions to the jury that the defendant was accused of conduct “likely to impair the minor’s morals . . . .” The defendant did not except to the court’s instruction in this regard. Indeed, as part of these preliminary instructions the court erroneously did include a reference to an uncharged part of the statute, namely, conduct likely to impair the minor’s “physical welfare,” a reference to the “health” portion of the statute. See footnote 7, supra. When the defendant properly brought this to the court’s attention, the court instructed the jury, without exception by the defendant, that the applicable portion of the statute involved conduct “likely to impair the morals” of the victim. Similarly, when the court instructed the jury at the end of the case, it again charged the jury, without exception by the defendant, that the defendant was charged with conduct likely to impair the victim’s morals.

The clear and overwhelming message of this record, therefore, is that despite the wording of the information the defendant had full notice of the contours and the details of the charge against him. His claim to the contrary, therefore, lacks support in the record and does not warrant further review. See State v. Stevenson, 198 Conn. 560, 572, 504 A.2d 1029 (1986).

IV

The defendant’s fourth claim of error is that the trial court’s charge on circumstantial evidence impermissibly diluted the standard of proof for conviction. The defendant argues that the trial court’s instructions concerning the right of the jury to draw inferences from circumstantial evidence relieved the state of the burden of proving all elements of the crime beyond a reasonable doubt. Because he failed to object to the instructions, the defendant presents his claim under State v. Evans, supra. This court has recently granted Evans review to numerous similar claims; see State v. Dullivan, 10 Conn. App. 474, 523 A.2d 1353 (1987); State v. Perez, 10 Conn. App. 279, 523 A.2d 508 (1987); State v. Hoeplinger, 9 Conn. App. 147, 517 A.2d 632 (1986), cert. granted, 202 Conn. 805, 520 A.2d 1286 (1987); and will do so again.

The trial court instructed the jury as follows: “Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of this rule [of circumstantial evidence are] satisfied. One is that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt and, two, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.” This instruction is almost identical to the jury instruction that resulted in reversible error in two recent Supreme Court cases; State v. Whelan, 200 Conn. 743, 755-58, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Rodgers, 198 Conn. 53, 56-59, 502 A.2d 360 (1985); and a recent Appellate Court case; State v. Dullivan, supra. In numerous other Supreme Court and Appellate Court cases, however, this instruction has been held not to constitute reversible error. State v. Mullings, 202 Conn. 1, 11-14, 519 A.2d 58 (1987); State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Hoeplinger, supra, 158-60; State v. Farrar, 7 Conn. App. 149, 156, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).

In Whelan, our Supreme Court adopted the reasoning of this court in State v. Farrar, supra. In Farrar, we held that “[wjhere the principal factual issue is intent, which is characteristically proven by circumstantial evidence; see State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); the court’s instructions regarding the use of the circumstantial evidence as proof of this essential element are subject to close scrutiny. See State v. Rodgers, supra, 58. Where . . . the principal factual issue is identity, which is not classically dependent upon circumstantial evidence for its proof, the trial court’s instructions may be read as a whole to determine whether it is reasonably possible that the jury was misled by an erroneous explanation regarding the use of circumstantial evidence. See State v. Reddick, supra, 133.” State v. Farrar, supra, 155-56; see also State v. Whelan, supra, 757.

The defendant claims that this case is akin to the Rodgers-Whelan line of analysis because it involves a factual issue which is classically dependent on circumstantial evidence. The defendant argues that the jury was required to infer, from the evidence of his conduct with the victim, that his conduct was likely to impair the morals of the victim. Thus, he argues, Rodgers and Whelan apply, and the court’s charge constituted reversible error.

We agree with the defendant that the jury must have used the process of inference drawing in order to find that the defendant’s conduct was likely to impair the victim’s morals. We disagree, however, that the critical inference which the jury was required to draw, namely, that the defendant’s conduct was likely to impair the morals of the victim, was drawn from circumstantial evidence, namely, the evidence of the defendant’s conduct. In this case, the jurors were required to draw that inference, or to reach that conclusion, not from the defendant’s conduct, but from their own knowledge, experience and common sense as adults. To put it another way, once the jury was convinced that the defendant did perform the sexual conduct with the victim as described by the state’s witnesses, General Statutes § 53-21 required that the jury decide whether that conduct was conduct which was likely to impair the morals of a four year old boy, regardless of whether the defendant’s conduct in fact did impair the morals of this particular four year old boy. Thus, the critical inference was required to be drawn by the jury, not from the evidence of the defendant’s conduct, but from the jury’s pooled experience and knowledge.

A

We first consider whether the error which led to reversal in Whelan and Rodgers is limited to the factual issue of intent, or whether it extends to another issue which is proven by the process of inference from circumstantial evidence, as the defendant claims occurred in this case. We see no reason to confine that analysis to the issue of intent. The root of the error identified in Whelan and Rodgers is that the jury charge dilutes the state’s burden to prove guilt beyond a reasonable doubt on an essential element of the crime charged. State v. Whelan, supra, 756; State v. Rodgers, supra, 57. Since the state has that burden on all such elements, that claim should apply to an erroneous charge which taints the jury’s deliberative process on any disputed element of the crime charged which is primarily dependent on circumstantial evidence for its proof.

We can find no indication in this record that either the intent or the identity of the defendant was in dispute in this case. Although the final arguments of the state and the defendant were not recorded, we can glean from the defendant’s cross-examination of the witnesses that his principal theory of defense was that the state’s witnesses were inaccurate in their description of his conduct. In short, at issue in this case were two sets of facts: (1) Did the defendant engage in the sexual conduct with the victim as described by the witnesses? and (2) was that conduct likely to impair the morals of the victim?

Proof of a fact by the use of circumstantial evidence usually involves a two-step process. A fact is first established by direct evidence, which is ordinarily eyewitness or other direct testimony. That direct evidence can serve as a basis from which the jury infers another fact. Thus, the direct evidence may operate as circumstantial evidence from which a fact is inferred by the jury. State v. Rome, 64 Conn. 329, 334, 30 A. 57 (1894); 1A J. Wigmore, Evidence (Tillers Rev. 1983) § 25, p. 955.

In this case, the first set of facts to be proved by the state, namely the defendant’s conduct with respect to the victim, was not dependent in any way on circumstantial evidence. It was established through the eyewitness testimony of the witnesses. That eyewitness testimony was direct evidence from which the jury could find the first set of facts at issue, namely, the nature of the defendant’s conduct with regard to the victim.

We reject the defendant’s argument, however, that the direct evidence was itself circumstantial evidence of the second fact to be proven by the state, namely, that the defendant’s conduct was likely to impair the morals of the victim. The jury was required to decide, first, whether on the basis of the witnesses’ eyewitness testimony the defendant engaged in the alleged sexual conduct with the victim, and, second, whether, based on their own knowledge and experience, that conduct was likely to impair the morals of the victim. Although this second decision of the jury could only have been arrived at by the process of inference, that inference was not drawn from the evidence of the defendant’s conduct, but from the collective knowledge and experience of the jurors as to what kind of conduct is likely to impair the morals of a four year old victim.

B

“General Statutes § 53-21 proscribes ‘two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare; see State v. Smith, 149 Conn. 487, 181 A.2d 446 [1962]; and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being. See State v. Coulombe, 143 Conn. 604, 124 A.2d 518 [1956]; State v. Silver, 139 Conn. 234, 93 A.2d 154 [1952].’ State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); State v. Apostle, 8 Conn. App. 216, 242, 512 A.2d 947 (1986).” State v. Newton, 8 Conn. App. 528, 532-33, 513 A.2d 1261 (1986). “In both instances, the focus of the statute is on the behavior of the defendant, not on the character, history or experience of the victim.” State v. Apostle, supra. “The relevant inquiry [is] whether the defendant did any act . . . which was likely to impair the ... morals of the victim. ” (Emphasis added.) Id. Lack of an actual injury to either the physical health or morals of the victim is irrelevant; id., 243; actual “injury is not an element of the offense.” Id. “[T]he creation of a prohibited situation is sufficient.” State v. Perrucio, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). Under the second category of conduct prohibited by General Statutes § 53-21, noted above, “the state must prove (1) an act (2) likely to impair the morals or health (3) of a child under the age of sixteen.” (Emphasis added.) State v. McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982). “The second element [involves] likelihood of impairment of the morals or health of a child . . . .” (Emphasis added.) Id. In enacting General Statutes § 53-21, “[t]he legislature undoubtedly had in mind acts of such a nature that a general criminal intent could be inferred from them.” State v. Dennis, supra.

From these precedents and principles, it is clear that the jury’s decision-making process under General Statutes § 53-21, as charged in this case, was first to decide whether the defendant engaged in the sexual conduct with the victim, as described by the state’s witnesses. If so, it thus had to decide, not whether there was any actual harm or impairment of the victim’s morals resulting from that conduct, but whether that conduct rose to the level of conduct which was likely to have impaired the morals of a victim four years of age. That decision, we believe, involved an inference or conclusion drawn, not from the evidence of the defendant’s conduct, but from the individual experience of the jurors as men and women living in contemporary society. In reaching its conclusion, the jury drew on its knowledge, common sense and experience as to the kind of conduct which is likely to impair the morals of young children. This inference drawing process has been approved by our Supreme Court in an analogous situation, where the following jury charge was approved: “ ‘This is the type of activity that Connecticut General Statutes [§] 53-21 seeks to protect children from. And, that is the type of activity which is likely, if it did take place, to impair . . . the morals of a child.’ ” State v. Storlazzi, 191 Conn. 453, 467, 464 A.2d 829 (1983).

This analysis leads us to conclude that the trial court’s instruction, although erroneous, did not amount to reversible error. While it gave the jury an erroneous burden of proof for the process of drawing inferences from circumstantial evidence, it was not reasonably possible that the jury was misled by it because the jury did not in this case draw the critical inference from circumstantial evidence.

V

The defendant’s final claim of error is that the trial court erred in refusing to grant his request to poll the jury for the basis of its verdict. Since the defendant had been charged with both alternate modes of violating General Statutes § 53-21, he claims that the failure to poll may have deprived him of his constitutional right to a unanimous jury verdict.

In requesting that the jury be polled, the defendant stated the following as the legal basis:

“[Defense Counsel]: Your Honor, I think that the court, any time that the jury comes back with a verdict, can ask for a special verdict, and I would ask for a special verdict on either alternate of the charge of risk of injury.

“I wasn’t the one who chose the charges here. I think it puts counsel in a dilemma in terms of an appeal into reciting what lesser included might be which I have requested, and it has been denied whether there is a double jeopardy of inconsistent verdict or whether there have been two verdicts in violation of double jeopardy, which may be more appropriate to one subsection of risk of injury than the other. I think that if we don’t find that out, it takes away certain appellate issues that I have that I am unable to ascertain.” (Emphasis added.)

The defendant is required to raise a claim distinctly at trial. Practice Book § 4185 (formerly § 3063). Exceptions to a trial court’s ruling must be distinct and specific to preserve the claim. See State v. Barrett, 197 Conn. 50, 53 n.2, 495 A.2d 1044 (1985), rev’d, 479 U.S. 523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987). “The requirement that the claim be raised ‘distinctly’ means that it must be ‘so stated as to bring to the attention of the court the precise matter on which its decision is being asked.’ (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903).” State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986). It is entirely unclear what claim the defendant was raising by his exception. While the defendant mentioned double jeopardy and inconsistent verdicts, he failed to raise the unanimity claim. We hold that the defendant failed to raise his claim distinctly at trial, and, therefore, did not adequately alert the trial court to the claimed error so that the court might have an opportunity to correct it. State v. Carter, supra. Further, since the defendant has failed to seek review under State v. Evans, supra, in this court, we decline to address this claim.

There is no error.

In this opinion the other judges concurred.

       The defendant had also been charged with sexual assault in the fourth degree in violation of General Statutes § 53a-73a. He was acquitted of this charge.

       In the transcript, Shirley McGill is also referred to as Shirley McGillis. For the purposes of this opinion, we will refer to her as “McGill.”

       Although direct evidence of the defendant’s age was not introduced into evidence, testimony in the absence of the jury indicated that he was eighteen years old. Thus, the jury could infer from his appearance the general difference in age between the defendant and the victim.

       The defendant had agreed to an amendment of the sequestration order if McGill testified first and then was present during her daughter’s testimony. We note that this would have foreclosed any possible taint. The state, however, expressed a preference in having the child testify first since this would be consistent with the chronology of events. The trial court rendered its decision in accordance with the state’s preference.

       General Statutes § 54-85a provides: “In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.”

       The defendant claims, as an example of taint of McGill’s testimony, the facts that at the pretrial hearing McGill testified that the defendant’s thighs were not exposed; that at trial, her daughter testified that the thighs were exposed; and that at trial, McGill added the detail that the victim was sitting side saddle across the defendant’s thighs, but did not indicate whether or not the defendant’s thighs were exposed. We make three observations. First, this testimony reflects the fact that the two witnesses, mother and daughter, did not observe the defendant simultaneously. Thus, there was little danger that McGill’s testimony might be fashioned to correspond to her daughter’s, when it is apparent that they witnessed the event at different times. Second, McGill’s failure to testify that the defendant’s thighs were not exposed is attributable more to the absence of a direct question on the subject rather than an inconsistency in her testimony. Third, we note that McGill did, in fact, testify during the pretrial hearing that the victim was sitting side saddle across the defendant’s legs.

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The trial court, believing that voir dire did not commence trial, permitted the amendment under Practice Book § 623, which authorizes the state to add counts to an information if trial has not commenced and no substantive rights of the defendant would be prejudiced. The subsequent decision in State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 752 (1986), makes it clear that voir dire does commence trial.

       The defendant actually requested a special verdict, but both the defendant and the state have chosen to treat the request as a request to poll.