text:
    Ronald Tutsky v. YMCA of Greenwich et al.
    (9934)
    Dupont, C. J., Foti and Landau, Js.
    Argued May 7
    decision released August 11, 1992

      Lawrence E. Larson, for the appellant (plaintiff).

      Thomas A. Mulligan, with whom, on the brief, was Thomas J. Hickey, for the appellees (defendants).
   Foti, J.

The plaintiff appeals from the January 17, 1991, decision of the workers’ compensation review division, dismissing his appeal from the commissioner’s July 31,1989, denial of a “motion to reopen” compensation proceedings. The plaintiff claims that the review division improperly (1) failed to find that an insurer that is not paying the claimant temporary total disability benefits is obligated to disclose to the commissioner information from the claimant’s treating physician indicating that the claimant is unable to work, (2) failed to find that the commissioner should have granted the claimant’s motion to open the compensation proceedings upon receipt of information from the claimant’s treating physician that the claimant is unable to work, and (3) found that certain correspondence between the insurer and the treating physician was immaterial to the motion to open the proceedings. We affirm the decision of the compensation review division.

The following facts are pertinent to this appeal. The plaintiff injured his back on February 27,1980, while working at the YMCA of Greenwich. The plaintiff, the YMCA, and its insurer, Royal Insurance Company (Royal), entered a voluntary agreement acknowledging compensability on April 29, 1981. The agreement was approved by the commissioner, and the plaintiff began receiving temporary total disability benefits. On March 17,1980, shortly after the work related accident, the plaintiff suffered a back injury that was not work related when he slipped on some waxed stairs at the Greenwich YMCA, where he also lived. He later filed a common law action against the YMCA.

As part of Royal’s ongoing investigation of the compensation claim, the plaintiff was examined on April 15, 1983, by Arthur Brovender, an orthopedic surgeon. During the examination, the plaintiff allegedly suffered additional back injury, for which he later brought a malpractice action against Brovender.

On May 14,1984, Royal requested that the plaintiff submit to a second independent medical examination. The plaintiff agreed to undergo the exam, but advised Royal that, pursuant to General Statutes § 31-305, he wanted his treating physician, James D. Prokop, to be present. While arrangements were being made for the exam, Royal stopped paying benefits and filed a “Notice to Compensation Commissioner and Employee of Intention to Discontinue Payments” (form 36). The reason for termination stated on the form 36 was the plaintiff’s refusal to undergo an independent medical examination. The commissioner issued a conditional form 36 approval and suspended benefits on July 9, 1984. The plaintiff has received no further temporary total disability benefits since July 3, 1984. The exam was eventually performed on August 1, 1984.

The plaintiff contested the form 36 on July 13,1984. Thereafter, the commissioner held a series of seven hearings between December 1984 and August 1986, at which the plaintiff submitted medical information from both his treating physician and chiropractor. On December 26,1986, the commissioner issued a finding and dismissal of the plaintiff’s claim. The decision was based on the commissioner’s findings that the plaintiff’s March 1980 and April 1983 injuries were intervening causes of his disability, and that the plaintiff had failed to relate his current condition causally to the compensable event of February 27, 1980.

The plaintiff appealed the commissioner’s dismissal, the compensation review division affirmed the commissioner, and this court affirmed the review division. Tutsky v. YMCA, 6 Conn. Workers’ Comp. Rev. Op. 167 (1989), affd, 21 Conn. App. 806, 572 A.2d 391, cert. denied, 214 Conn. 809, 573 A.2d 321 (1990). Following the dismissal, the plaintiff made three motions to open his case, in order to introduce additional medical information. The first two motions were denied by the commissioner, and, after each denial, the plaintiff appealed to the review division, which affirmed the denials. In his third motion, the plaintiff sought to introduce some newly discovered correspondence consisting of four letters between Vincent Afasano of Royal and Prokop, the plaintiff’s physician, which he claimed were material to his case. The letters were discovered by the plaintiff’s attorney during a review of Prokop’s records, preparatory to trial of the malpractice action against Brovender. This third motion was denied after the commissioner determined that the four letters were not material to the claim, in that they did not causally connect the claimant’s condition to the February 1980 injury. On January 17,1991, the compensation review division dismissed the plaintiffs appeal from the denial of this third motion. The plaintiff then filed the present appeal.

The plaintiff first claims that the review division improperly found that Royal did not have a duty to disclose to the commissioner the four letters between Royal and Prokop at the time this correspondence was exchanged. He bases this claim on General Statutes (Rev. to 1987) § 31-290b, which was in effect at that time and which provided: “Any person who knowingly makes a false statement or representation or fails to disclose a material fact in order to obtain, increase, prevent or decrease any benefit or payment under this chapter shall be guilty of a class A misdemeanor.” The thrust of the plaintiffs claim is that these letters contained “material facts” relevant to his compensation claim, and that because Royal failed to disclose them when they were written, the commissioner, exercising his equitable powers, should have permitted their introduction when they were later discovered.

As we will discuss more fully below, the commissioner reviewed the four letters between Royal and Prokop, and found that, although they refer to the plaintiffs injury, the letters shed no light on the critical issue affecting liability in this case: whether the plaintiffs current condition is causally related to his February 1980 work related accident. The commissioner concluded that none of the letters specifically addressed the issue. While this evidence may have been new, in that the plaintiff did not have these particular letters in hand at the time his case was originally before the commissioner, the letters contained no new information about the plaintiff’s condition; they merely reiterated the medical data already submitted and would not have affected or materially changed the commissioner’s decision. General Statutes § 31-290b addresses only the consequences of a failure to disclose “material” facts. Since the commissioner found that the information in these letters was not “material,” Royal’s failure to disclose them could have no bearing on the outcome of the plaintiff’s case.

The plaintiff’s second and third claims challenge the review division’s affirmance of the commissioner’s determination that the plaintiff was not entitled to an opening of his compensation claim because of the newly discovered correspondence between Royal and Prokop. The commissioner held that this evidence was cumulative and not likely to change the outcome of the case, and the review division affirmed this decision. We agree.

A workers’ compensation award is, by nature, an interlocutory decree. Fair v. Hartford Rubber Works Co., 95 Conn. 350, 356, 111 A. 193 (1920). As such, it is “always limited to a claimant’s current condition and always subject to later modification upon the request of either party during the entire period of compensation if the complainant’s condition changes.” Besade v. Interstate Security Services, 212 Conn. 441, 444-45, 562 A.2d 1086 (1989). General Statutes § 31-315, which provides statutory authority for opening an award when the disability changes, also permits modification when “changed conditions of fact have arisen which necessitate a change of such agreement or award in order to properly carry out the spirit of [the workers’ compensation laws].” (Emphasis added.) See Adzima v. UAC/Nordm Division, 177 Conn. 107, 116, 411 A.2d 924 (1979).

While a workers’ compensation award may, under the appropriate circumstances, be opened, the decision to do so and to modify the award is within the sound discretion of the commissioner. Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 645, 186 A. 641 (1936). The commissioner must “deny the motion [to open] unless further hearing would produce evidence of such character and force that it would be likely to cause a different result.” Metall v. Aluminum Co. of America, 154 Conn. 48, 53, 221 A.2d 260 (1966); accord Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 273-74, 57 A.2d 138 (1948); Olivieri v. Bridgeport, 126 Conn. 265, 270, 10 A.2d 770 (1940). In Meadow v. Winchester Repeating Arms Co., supra, the court stated that “ ‘[a] party to a compensation case is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing. . . . Where an issue has been fairly litigated, with proof offered by both parties, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result. . . .’ ” (Citation omitted.)

The test by which the commissioner determines whether to open a claim is “whether the new evidence [is] sufficient to show that an injustice had been done by his award and that a different result would probably be reached on a new hearing.” Meadow v. Winchester Repeating Arms Co., supra, 275-76. As our Supreme Court pointed out in Meadow, “the action of a compensation commissioner upon a motion to open his award for the purpose of hearing further evidence is like that of a court upon a motion for a new trial.” Id., 273. In Besade v. Interstate Security Services, supra, 452, the court specifically held that a claimant seeking to open a workers’ compensation proceeding must establish the following by a preponderance of the evidence: “(1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” Just as the decision whether to grant a new trial rests within the discretion of the trial court; Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987); the decision whether to open a compensation hearing and to admit additional evidence rests “very largely within the discretion of the commissioner.” Meadow v. Winchester Repeating Arms Co., supra, 274. Importantly, it is the claimant who bears the burden of showing that there is new evidence that is likely to produce a “different result.” Besade v. Interstate Security Services, supra, 453; Metall v. Aluminum Co. of America, supra; Meadow v. Winchester Repeating Arms Co., supra, 275.

In the present case, the plaintiff did not meet this burden. The commissioner specifically found that the additional evidence that the plaintiff sought to introduce in connection with the motion to open the award did not establish the requisite causal connection between his current condition and the February 1980 work related injury. “This conclusion, that a causal connection was not proven, is essentially one of fact to be determined in view of all of the relevant circumstances, and it must stand unless it is one which could not reasonably or logically be reached on the subordinate facts. It must be tested by the subordinate facts and must stand unless it resulted from an incorrect application of law to them or because of an inference illogically or unreasonably drawn from them.” Metall v. Aluminum Co. of America, supra, 52; Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988).

In this case, the commissioner’s finding was not unreasonable, nor was it unsupported by subordinate facts. Until the time the plaintiff filed the third motion to open his claim, he had failed repeatedly to establish a causal connection between the February 1980 accident and his existing disability. Between 1984 and 1986, a series of seven evidentiary hearings were held during which the plaintiff had ample opportunity to make this necessary connection. “To be entitled to workers’] compensation, the plaintiff has the burden of proving that his injuries were sustained in the course of his employment and that they arose out of that employment.” Dombach v. Olkon Corporation, 163 Conn. 216, 221, 302 A.2d 270 (1972). In his December 26, 1986 finding and dismissal, which was later affirmed by the review division and this court, the commissioner plainly states that none of the medical evidence made available on the plaintiffs behalf satisfied the requisite “quantum of proof,” in that none of the evidence “causally relatefd] the claimant’s problems at the time of these hearings to a compensable event based upon reasonable medical probability.” Thus, the primary basis for this initial dismissal was the plaintiff’s failure to establish the requisite causal nexus.

Nor was this nexus established in the plaintiff’s first two motions to open the proceedings. The first motion to open was denied because the commissioner concluded that the medical information the plaintiff sought to introduce “was or should have been available at the time of the Formal Hearings, since the hearings revolved about the respondent’s claims, among others, that the claimant’s disability was attributable to incidents other than the compensable accident of February 27, 1980. . . .”

Similarly, the plaintiff’s second motion to open was denied on the basis that the three additional medical reports he sought to introduce “contain[ed] findings which verified] a back injury, however none of them distinguish[ed] the reason for the claimant’s disability as being attributable to his concededly compensable injury of February 27,1980, a subsequent alleged injury on April 15,1983 during the course of an independent medical examination by the insurance company’s physician, or a fall down stairs on March 17, 1980.”

The plaintiffs repeated inability to link his condition to the February 1980 accident, as well as the content of the newly discovered letters themselves, fully support the commissioner’s denial of the third motion to open the compensation proceedings. As we noted earlier, the commissioner examined the letters between Royal and Prokop and found that, while referring to the plaintiff’s injury, none of the letters squarely resolved the causality question. The letters merely restated the medical data already before the commission and would not affect or materially change the decision. Lucarelli v. Earle C. Dodds, Inc., supra. As such, they presented no changed “conditions of fact” that necessitated opening the claim. The compensation review division agreed, stating that it was “unlikely the evidence claimant proffers would change the ultimate result as it is not material to the causation of claimant’s disability.”

The commissioner’s determination that the proffered letters were cumulative and not material to the causality question, being one of fact, was committed to his discretion. Fair v. People’s Savings Bank, supra, 541 (the question whether an injury arose out of the employment is factual in nature and is committed to the commissioner’s discretion); see also Besade v. Interstate Security Services, supra, 448; Adzima v. UAC/Norden Division, supra, 117-18. “[T]he discretion of a commissioner in a matter of this kind should not be lightly disturbed.” Furlani v. Avery, 112 Conn. 333, 339, 152 A. 158 (1930).

Where the decision of the commissioner was neither arbitrary nor capricious nor an abuse of discretion, the review division was bound by the commissioner’s conclusion. Besade v. Interstate Security Services, supra; Fair v. People’s Savings Bank, supra. The review division’s “hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obliged to hear the appeal on the record and not ‘retry the facts.’ . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citations omitted.) Fair v. People’s Savings Bank, supra, 538-39.

We have reviewed the record and the proffered letters and find nothing to warrant disturbing the commissioner’s factual conclusion or the review division’s affirmance. The August 18 and September 4,1987 letters from Royal to Prokop requesting medical information about the plaintiff do refer briefly to the February 27, 1980 work related injury. But neither these letters nor Prokop’s August 26 and September 9, 1987 replies address or resolve the crucial issue affecting liability: whether the plaintiff’s current condition is causally related to that particular injury.

Finally, the plaintiff urges that he has been denied procedural due process by the commissioner’s failure to hold a hearing on his motion to open. In his brief, he states that denial of the motion “without the statutory notice and hearing is further evidence of the failure of the commissioner to give the plaintiff due process and to deal with this case equitably, in a humanitarian way, as intended by the legislation. The commissioner has abused his discretion in denying this motion and is required to give notice and hearing as required by statute.” We find this due process argument to be without merit.

The plaintiff contends that because the correspondence between Royal and Prokop was “material,” the commission was obligated, under General Statutes § 31-315, to provide him with notice and a hearing before ruling on the motion to open. In his brief, he states that General Statutes § 31-315 provides “for notice and hearing on any application under this section” (Emphasis added.) The plaintiff has misread the statute.

Section 31-315 provides for modification of an award “whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award . . . .” These notice and hearing requirements, however, which are prerequisites to the commissioner’s modification of an award, come into play only after a threshold determination has been made that “conditions of fact have arisen which necessitate a change”; in other words, after the commissioner has determined that the new evidence is “material” and warrants opening the claim. Besade v. Interstate Security Services, supra, 452; Meadow v. Winchester Repeating Arms Co., supra.

In this case, the commissioner, in his discretion, determined that no new conditions of fact had arisen that necessitated a change; the proffered evidence was “merely cumulative.” There was, therefore, no reason to proceed to the “notice and hearing” stage.

The decision is affirmed.

In this opinion the other judges concurred.

       The plaintiff moved to “reopen and modify” the compensation proceedings. Unless a decision has been opened previously, however, the appropriate term is a motion to open. See National Iron Bank v. Gelormino, 28 Conn. App. 7, 8 n.1, 609 A.2d 666 (1992). We will therefore treat the motion as a motion to open.

       The statute was repealed in 1990. Public Acts 1990, No. 90-244, § 2.

       General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”

       It is noteworthy that the plaintiff merely alluded to this claim in the proceedings below and in his appellate brief. In response to questioning by this court at oral argument, however, the plaintiff pursued this argument more forcefully.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Dwayne Murray
    (10364)
    Dupont, C. J., Daly and Norcott, Js.
    Argued June 2
    decision released August 11, 1992

      Matthew J. Collins, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and James E. Thomas, senior assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). The defendant claims that (1) General Statutes § 54-56d, the competency statute, is unconstitutional on its face and as applied to him, (2) the trial court abused its discretion by failing to hold a hearing on the defendant’s competency, (3) the prosecutor made improper remarks during closing argument, which deprived the defendant of his right to an impartial jury and a fair trial, and (4) the evidence presented at trial was insufficient to justify a conviction of burglary in the first degree. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury could reasonably have found certain relevant facts. The defendant and the victim were acquaintances who belonged to the same church. The defendant was amorously attracted to the victim but the attraction was not mutual. The defendant frequently annoyed the victim by means of letters, telephone calls and face-to-face remarks. Although, at the request of the victim, church officials spoke to the defendant about his behavior, the defendant persisted in trying to establish an amorous relationship with her.

In the early hours of May 24, 1990, the defendant entered the victim’s apartment through a window and waited for her to return. He claimed, in a statement to the police, that he entered the apartment to discuss his relationship with the victim. Upon her return, however, the defendant did not speak to the victim but hid until she went to bed and had fallen asleep. Shortly thereafter, the victim woke to find the defendant on top of her in her bed. The victim screamed and scratched at the defendant. The defendant then held a pillow to the victim’s face, stuffed a cloth into her mouth and began to hit the victim in the head several times with a hammer he had found in the attic of the victim’s apartment. The defendant then ran from the victim’s apartment. The victim’s head wound was twenty inches long and required many stitches.

I

The defendant’s first two claims involve General Statutes § 54-56d. He first claims that § 54-56d is unconstitutional because facially it violates both state and federal guarantees of due process. Specifically, his claims of a lack of due process are that (1) the procedural aspects of the statute, namely the presumption of competency and the placing of the burden of proving incompetency on the defendant, undermine the goal of the statute, and (2) the statute gives unfettered discretion to the trial judge to determine whether a hearing on the issue of competency should be held. The defendant also claims that the trial court abused its discretion by failing to hold a hearing on his competency. We disagree with these claims.

Additional facts are relevant to our resolution of these claims. On March 11,1991, during jury selection, the defendant filed a pro se motion for the dismissal of his counsel. The court denied the motion. The following day, out of the presence of any jurors, the defendant, dressed in prison garb and shackles, lay on the floor of the courtroom, refusing to communicate with anyone. Defense counsel made a motion to have the defendant evaluated for competency pursuant to § 54-56d, claiming that the defendant did not understand all of the charges against him and was unable to assist in his defense. The trial judge responded that no evidence had been submitted to indicate that a competency hearing under § 54-56d was warranted. The trial judge then stepped down from the bench and personally addressed the defendant, who was still lying on the courtroom floor. After initially not responding to several questions from the trial judge, the defendant agreed to cooperate with his counsel and conduct himself with proper decorum. The defendant then requested more time to prepare his case with his counsel. The court granted his request. The trial resumed five days later, and the defendant made no further mention of his motion for a competency hearing either during the trial or after conviction. The motion for evaluation was never acted upon, nor did the defendant ever request a ruling from the court.

A

The challenge to the constitutionality of this statute is being raised for the first time on appeal. In considering the defendant’s claim, we must first determine whether his claim can be reviewed by this court. Generally, an issue must be raised in the trial court in order to preserve the issue for appeal, including a challenge to the constitutionality of a statute. McLaughlin v. Bronson, 206 Conn. 267, 276, 537 A.2d 1004 (1988); State v. Banta, 15 Conn. App. 161, 182, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988). In the rare instances where review of the constitutionality of a statute has been granted, without constitutionality having been raised at trial, it has been under the exceptions of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and only when the constitutional challenge involves vagueness of the statute, the defendant’s fundamental right to a fair warning of the conduct embraced by the statute is implicated, and the record is adequate to facilitate review. See State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988); State v. Lang, 23 Conn. App. 272, 275, 580 A.2d 71 (1990).

The defendant did not challenge the constitutionality of the competency statute at trial, and, on appeal, has not requested Evans-Golding review. Furthermore, his challenges do not meet all of the requirements of Evans-Golding because the record is inadequate to review whether the statute was unconstitutionally applied to him. The trial court never ruled on the defendant’s motion for a competency hearing and, therefore, § 54-56d was never applied to the defendant. Without a hearing on the motion, and without findings or rulings of the trial court, there is no record to review.

B

To convict an accused person while he is legally incompetent violates state and federal due process. Gold v. Warden, 222 Conn. 312, 313 n.3, 610 A.2d 1153 (1992); State v. Johnson, 22 Conn. App. 477, 488, 578 A.2d 1085, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990). A competency hearing, however, is not available on demand. State v. Lloyd, 199 Conn. 359, 366, 507 A.2d 992 (1986); State v. Johnson, supra, 489; State v. Janice, 20 Conn. App. 212, 214, 565 A.2d 553, cert. denied, 213 Conn. 811, 568 A.2d 795 (1989). Rather, “the decision to grant a hearing requires the exercise of sound judicial discretion.” State v. Lloyd, supra. In exercising this discretion, a trial court is required to examine all of the information it possesses and weigh the need for a hearing in each case. Id. The defendant here did not pursue his motion for a competency hearing, and his claim, therefore, relates to the court’s failure to require an inquiry into his competency to stand trial either on its own motion or because the defendant had, during the voir dire stage of the trial, moved for a competency hearing.

The trial court properly exercised its discretion. The trial court’s decision not to order a competency hearing was based on personal observations and conversations with the defendant. The court found that “on the basis of what I saw yesterday, he is lucid . . . intelligent . . . articulate, he [has] prepared several well constructed motions for discovery . . . and [has] made argument that the court found . . . comprehensible and constructive.” The court further commented that the defendant had not submitted any evidence to the court that would warrant a competency hearing.

The trial judge is in a particularly advantageous position to observe a defendant’s conduct during a trial and has a unique opportunity to assess a defendant’s competency. A trial court’s opinion, therefore, of the competency of a defendant is highly significant. Gold v. Warden, supra, 320. The defendant’s behavior in lying on the floor of the courtroom was viewed not as an act of incompetency but rather as a maneuver to attempt to dismiss his counsel and delay the trial. See State v. Sharkey, 821 S.W.2d 544, 546 (Mo. App. 1991). The defendant’s actions were partially successful. Although the court did not dismiss the defendant’s counsel, the defendant did get a five day continuance. The defendant’s actions, in their totality, were insufficient to require the court to order a competency hearing. Thus, the trial court did not abuse its discretion or violate the defendant’s right to due process by not ordering a competency hearing and proceeding with the trial after a five day continuance.

II

The defendant next claims that during closing argument the prosecutor made improper remarks that deprived the defendant of a fundamental constitutional right and a fair trial. We disagree.

Since the defendant did not object to the prosecutor’s comments at trial and thereby failed to preserve properly this claim, the defendant relies on the “exceptional circumstances” doctrine of State v. Evans, supra, 70, and State v. Golding, supra, 239-40, to obtain review. Such review, however, is unavailable where the record does not show misconduct that was blatantly egregious and “merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated through the trial.” State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990); State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987).

The defendant claims that the prosecutor’s remarks in his closing argument were not isolated and brief episodes. Rather, he contends that the prosecutor’s closing argument was a mixture of the prosecutor’s opinion, facts not in evidence, emotional appeals to the jury, and improper and prejudicial comments on the guilt, the credibility and the silence of the defendant. The record, however, does not support the defendant’s claim. The record clearly shows that the prosecutor’s comments, to which the defendant objects, were either responses to the defendant’s closing remarks or sentences taken out of context. The prosecutor’s comments did not clearly deprive the defendant of a fair trial, and the defendant cannot prevail under the third element of Golding.

Ill

In his final claim, the defendant asserts that the evidence presented at trial was insufficient to support a conviction of burglary in the first degree. Specifically, the defendant claims that the jury could not reasonably have concluded, on the basis of the evidence, that the defendant had the necessary intent required by the statute. We disagree.

The conviction for which the defendant challenges the sufficiency of the evidence is burglary in the first degree. Upon the close of the state’s evidence at trial, the defendant made a motion for judgment of acquittal on three of the five counts with which he was charged. The defendant introduced no evidence, and did not testify in his own behalf. The burglary charge, which is the subject of the defendant’s final claim, was not one of the three counts for which the defendant sought a judgment of acquittal. If a defendant fails to move for a judgment of acquittal, he has not raised his claim of insufficiency of the evidence at trial; State v. Brown, 198 Conn. 348, 351-52, 503 A.2d 566 (1986) (claim of insufficiency of evidence properly preserved by making timely motion for acquittal); making appellate review possible only under State v. Golding. The defendant here has not preserved his claim that there was insufficient evidence to support a guilty verdict as to the crime of burglary in the first degree because he did not seek a judgment of acquittal as to it.

The defendant contends that on the basis of his testimony, the victim’s testimony and his acquittal of the sexual assault charges, the jury could not reasonably have found that the defendant had the intent to commit a crime when he entered the victim’s apartment. For the state to prove burglary in the first degree, the state must establish that the defendant intended to commit a crime when he entered the victim’s apartment. See General Statutes § 53a-101 (a) (2). The evidence presented at trial showed that the defendant illegally entered the victim's apartment that night. Upon the victim’s return home, the defendant hid and waited until she went to bed. He then climbed on top of her and stuffed a towel into her mouth. The towel did not belong to the victim nor was it in her apartment before the attack on her. The evidence also showed that prior to the attack that night the defendant had obtained the victim’s keys and told her that he could have “gotten into [her] apartment and done something to [her].” The evidence allowed the reasonable inference that the defendant brought the towel with him with the intent to commit a crime when he entered the victim’s apartment. State v. Montanez, 219 Conn. 16, 21, 592 A.2d 149 (1991); State v. Dunn, 26 Conn. App. 114, 124, 598 A.2d 658 (1991). Construing this evidence in a light most favorable to sustaining the jury’s verdict, the jury reasonably found that the defendant had the necessary intent for burglary in the first degree and was guilty beyond a reasonable doubt.

We conclude that although the defendant’s claim is of constitutional magnitude, and there is a record adequate for review, the record does not meet all the required conditions under Golding because the record adequately shows that the alleged constitutional violation clearly does not exist and that the defendant was not clearly deprived of a fair trial. See State v. Golding, supra, 240.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) (2) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 54-56d provides in pertinent part: “(a) competency required, definition. A defendant shall not be tried, convicted or sentenced while he is not competent. ... A defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.
      “(b) presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue.
      “(c) request FOR examination. If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.”

       In Medina v. California, 505 U.S. , 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992), the United States Supreme Court held that state competency statutes that presume competency and require a defendant to prove incompetency do not violate federal guarantees of due process of law.

       The defendant was acquitted of two charges: attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70, and sexual assault in the third degree in violation of General Statutes § 53a-72 (a) (1) (A).

       The relevant colloquy is as follows:
      “[The Defendant]: I’ve got to plead my case as the case go along.
      “[The Court]: You should have the opportunity to assist Mr. Cosgrove in the defense of your case.
      “[The Defendant]: Going on when. Today is just nothing. . . .
      “[The Court]: I’ll give you a continuance of almost a week. Is that all right? “[The Defendant]: Yes. I just need some time, you know.
      “[The Court]: You are satisfied with that. All right.”

       The defendant made motions for judgment of acquittal on the charges of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70, sexual assault in the third degree in violation of General Statutes § 53a-72 (a) (1) (A), and attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a. The defendant’s motions were denied.

       The defendant was not charged with the “remains unlawfully” portion of the statute.


author: Freedman, J.

text:
    R. Zemper and Associates v. Thomas J. Scozzafava, Jr.
    (10814)
    Foti, Landau and Freedman, Js.

      Argued June 8
    decision released August 11, 1992

      Joseph M. Brophy, with whom, on the brief, was Marylouise S. Black, for the appellant (plaintiff).

      Jackie Chan, for the appellee (defendant).
   Freedman, J.

The plaintiff appeals from the judgment of the trial court rendered in favor of the defendant. The plaintiff brought this action for breach of contract and quantum meruit for fees due it because it proffered a ready, willing and able buyer to the defendant, who then refused to complete the transaction. The plaintiff claims that the trial court improperly found that the plaintiff failed to meet its burden of proof that the purchaser was financially able to complete the proposed transaction. We disagree and affirm the judgment of the trial court.

The trial court found the following facts. On July 31, 1986, after some discussion with the plaintiffs agent, Joseph Mahoney, the defendant entered into a listing agreement with the plaintiff granting to the plaintiff the sole and exclusive right to sell his dry cleaning business, known as Newtown Cleaners. The business was placed on the market for sale at $185,000, to be paid in the following manner: $90,000 in cash and a $95,000 five year note, amortized over twenty years, with a balloon payment at the end of five years. Additionally, the agreement provided that the plaintiff would receive 10 percent of the purchase price if it presented to the seller a buyer who was ready, willing and able to purchase the business on the terms and conditions set forth by the buyer. The agreement was limited in term to either the sale of the business or October 31,1986, whichever occurred first.

During the month of August, 1986, the plaintiffs agents showed the defendant’s business to several prospective buyers. On September 3, 1986, Richard Fonte, principal owner of F and M Associates, offered, through the plaintiff, to purchase the defendant’s business. The offer provided that Fonte was to provide $90,000 of his own funds to complete the transaction, and that the remaining $95,000 of the purchase price would consist of a five year note given by Fonte to the defendant. This offer essentially matched the terms set forth by the defendant in the listing agreement. On that date, Ronald Zemper telephoned the defendant to advise him of the offer to purchase. Thereafter, the defendant went to the plaintiff’s Danbury office and advised Zemper that he rejected the offer because he no longer wanted to sell the business.

The plaintiff commenced this action to collect the $18,500 commission for the services rendered pursuant to the contract with the defendant. After a trial to the court, the trial court rendered judgment in favor of the defendant. The trial court determined that the plaintiff had failed to sustain its burden of proving that it had produced a buyer who was financially able to purchase the defendant’s business. In its memorandum of decision, the trial court stated: “While it is clear from the evidence that Richard E. Fonte, principal of F & M Associates, owned two other dry cleaning stores at the time he offered to purchase the defendant’s [business] and that he purchased three more stores sometime after his offer was rejected, such is not proof of his ability to raise the $89,000 balance necessary to purchase the defendant’s business. . . . The court heard no testimony regarding Mr. Fonte’s finances or his potential to raise or borrow the necessary funds so as to be able to close the sale/purchase as required. See William T. Beazley Co. v. Streeto, 20 Conn. App. 718, 570 A.2d 233 (1990), and Steiner v. Bran Park Associates, 216 Conn. 419, 423, 428, 582 A.2d 173 (1990), concerning the requirement that a broker prove the buyer’s financial ability to make the purchase to be entitled to judgment.”

“ ‘To recover a commission, a broker must ordinarily show . . . that he has produced a customer ready, willing and able to buy on terms acceptable to the seller . . . .’ (Citations omitted.) Howland v. Schweir, 7 Conn. App. 709, 713, 510 A.2d 215 (1986); see McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 519, 590 A.2d 438 (1991).” Ditchkus Real Estate Co. v. Storm, 25 Conn. App. 51, 54, 592 A.2d 959, cert. denied, 220 Conn. 905, 593 A.2d 971 (1991). The plaintiff must show by a preponderance of the evidence that the buyer it produced was ready, willing and financially able to purchase the business. William T. Beazley Co. v. Streeto, supra, 721. The determination of whether a buyer was ready, willing and able to purchase the business is a question of fact. Parkway Trailer Sales, Inc. v. Wooldridge Bros., Inc., 148 Conn. 21, 26, 166 A.2d 710 (1960); Romaniello v. Pensiero, 21 Conn. App. 57, 60, 571 A.2d 145 (1990).

“When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Cupina v. Bernklau, 17 Conn. App. 159, 161, 551 A.2d 37 (1989). “The trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” Cupina v. Bernklau, supra, 162. “On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. . . . This court cannot find fact or draw conclusions from primary facts found, but can only review such findings to determine whether they could have legally, logically and reasonably been found by the trier. ...” (Citations omitted.) Robertson v. Nationwide Mutual Ins. Co., 20 Conn. App. 635, 637, 569 A.2d 565 (1990).

The trial court concluded that the plaintiff presented “no evidence” to support a finding that Fonte was financially able to purchase the defendant’s business. The plaintiff claims that this conclusion is clearly erroneous. He directs our attention to several pieces of testimony that, he suggests, adequately support a finding that Fonte was financially able to purchase the business.

He points to the following examples. Fonte’s testimony includes his affirmative answer to the following question by the plaintiff’s attorney: “Mr. Fonte — you were ready, willing and able to purchase this business in accordance with the offer that you presented which is plaintiff’s exhibit B?” Exhibit B was Fonte’s written offer to purchase, in which he indicated that he would pay the purchase price under the terms specified in the listing agreement, including the $90,000 up front payment. The plaintiff also adduced the testimony of Zemper, who testified that he prequalified all potential business buyers before showing them any businesses for sale. Additionally, the plaintiff adduced testimony from Fonte that at the time of his offer to the defendant, he owned two other cleaners in the area, and that he purchased three more stores sometime after the defendant rejected his offer.

Despite this testimony, the trial court could reasonably and logically have concluded that it was not established by a preponderance of the evidence that Fonte had the requisite $89,000 available to complete the transaction. There was no evidence presented as to how much and under what circumstances Fonte paid for the other cleaners, or how soon after his offer to purchase the defendant’s business those other purchases were made. Further, there was no evidence presented as to how much money Fonte earned from or had available to him from the other cleaners that he owned. As for Zemper’s testimony that he prequalified all prospective purchasers, there was no testimony given that this meant that Fonte had the necessary funds available for the closing. Furthermore, “[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. Season-All Industries, Inc. v. R.J. Grosso, Inc., 213 Conn. 486, 498, 569 A.2d 32 (1990).” K.A. Thompson Electric Co. v. Wesco, Inc., 27 Conn. App. 120, 126, 604 A.2d 828 (1992).

“ ‘As a reviewing court, we cannot sift and weigh evidence; for to do so would usurp the role of the trial court. State v. Cofield, 220 Conn. 38, 49, 595 A.2d 1349 (1991); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984).’ Catania v. Catania, [26 Conn. App. 359, 365, 597 A.2d 1285 (1992)].” Lester v. Resort Camplands International, Inc., 27 Conn. App. 59, 66, 605 A.2d 550 (1992). We conclude that the trial court’s finding that the plaintiff failed to sustain its burden of proving that it had produced a buyer who was financially able to purchase the defendant’s business was not clearly erroneous.

The plaintiff also claims that the trial court incorrectly held him to a higher standard of proof, namely, proof by clear and convincing evidence. There is nothing in the record to support this claim. “The correctness of a judgment of a court of general jurisdiction is presumed in the absence of evidence to the contrary. We do not presume error. The burden is on the appellant to prove harmful error.” Carothers v. Capozziello, 215 Conn. 82, 105, 574 A.2d 1268 (1990). Absent such an indication in the record, “it would be sheer speculation for this court to assume that the trial court applied the incorrect legal standard.” Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       The sum of $1000 had already been paid by Fonte at the time of the offer to purchase.


author: Lavery, J.

text:
    Real Estate Auctions, Inc., et al. v. Susan A. Senie et al.
    (9567)
    (10517)
    Norcott, Lavery and Cretella, Js.

      Argued May 6
    decision released August 11, 1992

      Margaret M. Dorsey, for the appellants-appellees (plaintiffs).

      Creighton M. English, for the appellees-appellants (defendants).
   Lavery, J.

The plaintiffs, Real Estate Auctions, Inc. and Mortimer and Mortimer, seeking to recover a real estate commission from the defendants, appeal from the trial court’s decision rendering summary judgment in favor of the defendants, Susan A. Senie and Leonard Rosenthal. On appeal, the plaintiffs claim that the trial court improperly granted the defendants’ motion for summary judgment because (1) the defendants should have been precluded from raising defenses based on the listing agreement under the doctrine of equitable estoppel, (2) the listing agreement was not defective because all of the documents, considered together, satisfied the requirements of General Statutes § 20-325a, (3) the plaintiffs asserted a quantum meruit claim, (4) judicial admissions should have precluded summary-judgment, and (5) the trial court incorrectly ruled that the plaintiffs could not prevail on their Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; claim due to their noncompliance with General Statutes § 20-325a. Additionally, the plaintiffs appeal from the trial court’s denial of their motion to open the judgment and amend their complaint. In appeal no. 9567, the defendants challenge the trial court’s prejudgment attachment order. These cases were presented together at oral argument and will be considered together in this opinion. Because we affirm the judgment of the trial court in granting the defendants’ motion for summary judgment in appeal no. 10517, we need not reach the merits of the defendants’ appeal because the prejudgment attachment must be dissolved upon the entry of final judgment for the defendants.

The following facts were presented to the trial court by way of the pleadings and documents accompanying the motion for summary judgment. On October 13, 1989, the plaintiff Real Estate Auctions, Inc., a real estate auctioneer and licensed real estate broker, entered into an “exclusive real estate auction agreement” with the defendants. The parties agreed that the Real Estate Auctions, Inc., in conjunction with a “cooperating realtor” would find a buyer for property located at 57 Maple Avenue, Greenwich. The defendants were record owners of the property, and were licensed real estate brokers doing business as Maple Avenue Associates. The defendants promised to pay Real Estate Auctions, Inc., a commission of 7 percent if the property were sold with the help of a cooperating realtor. On November 19,1989, the property was sold at auction for $625,000, resulting in an alleged commission due of $43,750. The defendants refused to pay the commission, claiming they had been cheated out of a reasonable price for the property by the actions of the plaintiffs during the auction. The defendants testified that during frenzied bidding the plaintiffs pressured them to auction the property “without reservation,” meaning that the defendants would be required to accept the highest bid, regardless of its amount. The defendants agreed to do so. Closing took place on April 23,1990, at which time the defendants refused to pay the commission to the plaintiffs.

On July 5,1990, the plaintiffs filed an application for a prejudgment remedy in Superior Court. After a two day hearing, the trial court ordered that the plaintiffs could attach $48,000 of real estate owned by the defendants. The defendants subsequently appealed the attachment order to this court in appeal no. 9567.

The parties closed the pleadings, and the defendants filed a motion for summary judgment. The motion for summary judgment was granted on May 24,1991. The plaintiffs thereafter filed a motion to open the judgment in order to amend their complaint to include counts of fraud and misrepresentation. That motion was denied by the trial court, and the plaintiffs filed appeal no. 10517.

Summary judgment must be rendered if “the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384; Cummings & Lockwood v. Gray, 26 Conn. App. 293, 296-97, 600 A.2d 1040 (1991). “[T]he party opposing the motion [for summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . The mere presence of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. . . . Rather, the [nonmoving party] must recite specific facts . . . which contradict those stated in the [moving party’s] affidavits and documents. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .’’(Internal quotation marks omitted.) Farmington v. Dowling, 26 Conn. App. 545, 549, 602 A.2d 1047, cert. granted on other grounds, 221 Conn. 921, 608 A.2d 687 (1992).

Despite the plaintiffs’ multiple claims as to why the trial court improperly granted the defendants’ motion for summary judgment, this case turns on the issue of whether the listing agreement complied with General Statutes § 20-325a (b), which sets out the requirements for maintaining a cause of action to recover a real estate commission. We conclude that our Supreme Court’s recent holding in McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 590 A.2d 438 (1991), which rested upon similar facts, is controlling in the present case.

In their motion for summary judgment in this case, the defendants asserted a special defense that the listing agreement was invalid because it failed to state the “names and addresses of all the parties,” and because it was not signed by one of the owners, Leonard Rosenthal.

“It is well established that the requirements of § 20-325a (b) are mandatory rather than permissive and that the statute is to be strictly construed. New England Land Co. v. DeMarkey, [213 Conn. 612, 569 A.2d 1098 (1990)] (listing agreement must include sale price of property); Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 54, 453 A.2d 771 (1983) (listing agreement lacking addresses of both parties unenforceable); Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230-31, 439 A.2d 946 (1981) (brokerage contract signed by owner’s agent unenforceable under statute as then worded); Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979) (failure to include broker’s address fatal to listing agreement); Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 305-307, 552 A.2d 827 (1989) (omission of rate of broker’s commission fatal); Howland v. Schweir, 7 Conn. App. 709, 713-15, 510 A.2d 215 (1986) (commission not recoverable where broker could not prove he produced a buyer during effective term of listing agreement); Arruda Realty, Inc. v. Doyon, 35 Conn. Sup. 617, 620, 401 A.2d 625, cert. denied, 176 Conn. 763, 394 A.2d 201 (1978) (owner’s address requirement not satisfied even though the listing agreement included the address of the subject property, which was the same as the owner’s address).” McCutcheon & Burr, Inc. v. Berman, supra, 520. “A broker who does not follow the mandate of [§ 20-325a (b)] does so at his peril.” Thornton Real Estate, Inc. v. Lobdell, supra, 230-31.

In the present case, the name of the seller on the listing agreement is Maple Avenue Associates. The record indicates that the defendants, record owners of the property, conducted business as Maple Avenue Associates. The sellers’ address is listed as “do the Kerschner Companies, 5 Eversley Avenue, Norwalk, CT 06851.” Testimony indicated that the Kerschner Companies’ address may have been used as a matter of convenience, because Senie and Rosenthal had a business relationship with Steven Kerschner, and because the auctioneer was located in the same building. The record also shows, however, that the address of Maple Avenue Associates is 125 Main Street, Westport, the address of Susan Senie is Harbor Road, Westport, and the address of Leonard Rosenthal is in Bridgeport. The address “5 Eversley Avenue, Norwalk,” was not the address of either owner. Recently, our Supreme Court held that for the purposes of § 20-325a (b) “ ‘owner’ . . . means the record owner or owners as displayed in the land records.” McCutcheon & Burr, Inc. v. Berman, supra, 522. The court added that “[although we might reach a different result if title to the property had been held in the name of the partnership ... we cannot apply the general provisions of § 34-47 when the legislature has specifically addressed in § 20-325a (b) the conditions under which an agent will be allowed to sign a listing agreement on behalf of an owner.” Id. The trial court correctly concluded that the listing agreement was invalid due to the plaintiffs’ failure to comply with General Statutes § 20-325a (b).

The plaintiffs assert that the defendants should be precluded from raising defenses based on the listing agreement under the doctrine of equitable estoppel. The plaintiffs argue that they relied upon information supplied by the defendants, including the names and addresses of the defendants, to their detriment. They also point out that the agreement is replete with provisions requiring the seller to give accurate information, and claim that they have no duty under the contract to investigate the accuracy of information supplied by the seller. As previously discussed, § 20-325a is to be strictly construed. There is no provision in the statute allowing for the language of the listing agreement to free the broker from using due diligence to ensure that the information included in the listing is accurate.

In Currie v. Marano, 13 Conn. App. 527, 537 A.2d 1036, cert. denied, 207 Conn. 809, 541 A.2d 123 (1988), the plaintiff broker sought to estop the defendant seller from asserting the defense of noncompliance with § 20-325a. The broker had produced a buyer after the expiration of the written listing agreement, and claimed that the seller benefited from that service. This court held that the plaintiff could not maintain a cause of action because of his failure to comply with the requirement of § 20-325a that the brokerage services be rendered “pursuant to a contract or authorization from the person for whom such acts were done or services rendered.” The plaintiffs assert that Currie is inapplicable to the present case because that case involved expiration of the written agreement. We disagree. In Currie, the plaintiff did not comply with the statutory requirement that brokerage services be performed in accordance with a valid written agreement. General Statutes § 20-325a (b) (1). Under § 20-325a, there is no distinction between an agreement that is invalid because it has expired and one that is invalid because it contains incorrect information.

The plaintiffs also assert that all of the documents read together fulfill the requirements of § 20-325a. In Boline v. Albert, 23 Conn. App. 688, 583 A.2d 945 (1991), the plaintiff claimed she fulfilled the requirements of § 20-325a through the creation of a second agreement. In that case, two contracts referring to the same piece of property were deemed not to satisfy the statutory requirements because neither contract referred to the other. Id., 691. “ ‘[Sjeparate documents will be deemed to constitute a valid contract under § 20-325a (b) if they collectively satisfy the statutory requirements and relate to the same agreement, [Good v. Paine Furniture Co., 35 Conn. Sup. 24, 27, 391 A.2d 741 (1978)]. It is not within the power of the courts to create new and different agreements. Collins v. Sears Roebuck & Co., 164 Conn. 369, 375, 321 A.2d 444 (1973).’ ...” (Citations omitted; emphasis in original.) Boline v. Albert, supra. In Boline, although the documents referred to the same piece of property, they did not point unquestionably to each other so as to create a consistent contract. Id. Here, the plaintiff seeks to create a consistent contract through introduction of the real estate sales contract, checks drawn on the Maple Avenue Associates account and signed by the defendants, and a title report that listed the defendants as record owners of the property. We conclude that because our legislature and courts have consistently chosen to require strict accuracy in the listing agreement itself, the trial court was correct in deciding that the combination of documents in this case failed to satisfy the requirements of § 20-325a.

The plaintiffs next claim that summary judgment was improper because they could have recovered in quantum meruit. The plaintiff concedes, however, that “[i]f the listing agreement should prove faulty, such as not being in compliance with § 20-325a, the broker is precluded from recovering in quantum meruit ... or from seeking equitable relief . . . .” Goldblatt Associates v. Panza, 24 Conn. App. 250, 253, 587 A.2d 433 (1991). In an effort to show that the present case lies outside the scope of Goldblatt and the requirements of § 20-325a, plaintiffs argue that the real estate auction agreement at issue in this case is governed by the statute of frauds, rather than by § 20-325a. We disagree. The plaintiffs are licensed real estate brokers and are trying to recover a commission allegedly earned as the result of a real estate transaction. Section 20-325a applies to all actions to recover real estate commissions. To categorize auction agreements such as the one in the present case as outside the scope of § 20-325a would be contrary to the legislative intent as expressed by the plain language of the statute.

The plaintiffs next claim summary judgment should not have been granted on account of judicial admissions. “A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it. It may take the shape of a formal stipulation, or may be informal, as where a party upon the witness stand unequivocally concedes a fact for the purpose of the trial.” King v. Spencer, 115 Conn. 201, 204, 161 A. 103 (1932).

The plaintiffs rely upon a portion of the transcript from the prejudgment remedy hearing to demonstrate that when Rosenthal signed some of the auction agreements on October 13,1989, he did not believe they were listing agreements. Whether Rosenthal knew that the documents were listing agreements is irrelevant. All actions to recover real estate commissions are governed by § 20-325a, and the statute requires specific behavior. The plaintiffs’ noncompliance with § 20-325a is not cured by Rosenthal’s admitted ignorance of the law.

The plaintiffs also claim that the trial court incorrectly ruled that they could not prevail on their CUTPA claim on account of their noncompliance with § 20-325a. Our Supreme Court recently ruled that noncompliance with § 20-325a will bar a CUTPA claim if the cause of action arises from the listing agreement. “Because the listing agreement did not comply with § 20-325a (b), the defendants were legally entitled to refuse to pay a commission and their reliance on the statute cannot translate into a CUTPA claim.” McCutcheon & Burr, Inc. v. Berman, supra, 530. In the present case, from the moment the listing agreement was executed, it was flawed due to its noncompliance with § 20-325a (b), and the defendant was under no obligation to pay the commission. As in McCutcheon, “the plaintiff’s CUTPA claim simply states an alternative means for attempting to collect the commission provided for in the listing agreement.” Id., 529.

The plaintiffs’ further assert that the trial court should not have dismissed their CUTPA claim simply because they did not allege fraud and misrepresentation in their complaint. The plaintiffs’ complaint alleged that “[t]he aforementioned acts of the Defendants in engaging the Plaintiffs and then refusing to pay constitute unfair trade practices within the purview of § 42-110b et seq., in that their actions were unethical, immoral, oppressive and unscrupulous.” As previously discussed, the defendants’ refusal to pay the commission was permitted in light of the plaintiffs’ noncompliance with § 20-325a.

The plaintiffs’ final claim is that the trial court improperly dismissed their motion to open the judgment. There is nothing to indicate that the trial court abused its wide discretion in the area of motions to open by denying the motion in this case. “The ruling of a trial court on a motion to open or set aside the verdict will not be overturned on appeal unless the trial court acted in clear abuse of its discretion.” Northeast Enterprises v. Water Pollution Control Authority, 26 Conn. App. 540, 545, 601 A.2d 563 (1992).

In light of our conclusion that the trial court correctly granted the defendants’ motion for summary judgment, we need not address the defendants’ appeal from the denial of their motion to dissolve the prejudgment remedy. McCutcheon & Burr, Inc. v. Berman, supra, 530.

On the plaintiffs’ appeal (10517), the judgment is affirmed; the defendants’ appeal (9567) is dismissed and the case is remanded with direction to order the release of the plaintiffs’ prejudgment attachment.

In this opinion the other judges concurred.

       Mortimer and Mortimer is the cooperating realtor called for in the agreement between Real Estate Auctions, Inc., and the defendants.

       General Statutes § 20-325a provides in relevant part: “actions to RECOVER COMMISSIONS ARISING OUT OF REAL ESTATE TRANSACTIONS. ... (b) No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1,1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.”

       General Statutes § 34-47 governs actions of partners, and codifies the rule that each partner is an agent for the partnership for business purposes of the partnership.

       The plaintiffs’ brief quotes the following exchange that occurred during direct examination of Leonard Rosenthal by the plaintiffs’ attorney on September 24, 1990:
      “Q: Mr. Rosenthal. Let me ask you this. Do you think that there is a distinction between a broker selling a piece of real estate during the normal course and a broker selling a piece of real estate through the auction process.
      “A: You are asking me my opinion now or then?
      “Q: Now.
      “A: Yes. No difference.
      “Q: There is no difference?
      “A: Well let me tell you that I was so oveiwhelmed with the kind of problems we were in, financial problems, and the possible negative aspects of what they were proposing we should do, that is to say, let it go at any price no matter what anybody paid, that I didn’t give much thought to whether it was a listing or not a listing. I know it said auction agreement. As far as I was concerned it meant that some guy was going to stand there with a hammer. When he sold the property he got a percentage of whatever the sale price was because he sold it at an auction.
      “Q: Did you agree to pay that percentage?
      “A: As an auctioneer, yes.
      “Q: I believe you indicated earlier that you didn’t think that Plaintiffs exhibit A was a valid listing—
      “The Court: Am I missing something right now? I think the witness said he agreed to pay a percentage to the auctioneer when the hammer came down and the sale was concluded.
      “[Plaintiffs’ Counsel]: That’s what he said.
      “[Defendant’s Counsel]: He did say that Your Honor.
      “The Court: And it came down, was concluded and the auctioneer didn’t get paid a percentage?”


author: Heiman, J.

text:
    State of Connecticut v. Francisco Cruz
    (10761)
    Foti, Heiman and Freedman, Js.
    Argued June 2
    decision released August 11, 1992

      Brian M. O’Connell, for the appellant (defendant).

      James A. Kitten, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Bernadette Conway, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, rendered after a trial to the court, of possession of less than four ounces of marihuana in violation of General Statutes § 21a-279 (c) and possession of drug paraphernalia in violation of General Statutes § 2 la-267 (a). He claims that the evidence was insufficient to sustain his convictions. The trial court found the following facts. On February 28, 1990, Trooper Louis A. Ward was assigned to patrol Route 91 in the general area between the towns of Middletown and Cromwell, At approximately 2 a.m., Ward observed a red Camaro occupied by two individuals, neither of whom was wearing a seat belt. He followed the vehicle and observed it change lanes without signaling. Ward activated his emergency lights and stopped the Camaro without incident.

Ward exited his vehicle and approached the Camaro from the passenger’s side. Trooper Raoul Palen also arrived and approached the Camaro from the driver’s side. The defendant, the operator of the vehicle, was asked to produce his operator’s license and the vehicle’s registration. The defendant produced his license but failed to produce the vehicle’s registration.

Both Ward and Palen found the defendant to be cooperative. In response to questions by the officers, the defendant stated that the vehicle belonged to a friend and that he was traveling from the Bronx, New York, to Willimantic. While speaking with the defendant, neither officer noted any odor of marihuana emanating from either the defendant’s person or from the interior of the car. The defendant did not appear to be under the influence of alcohol or drugs.

Sergeant Gerald Pennington of the state police, the shift supervisor, arrived at the scene to observe his officers’ use of investigative techniques, which had been the subject of recent training. Pennington approached the Camaro from the right rear. Using a 30,000 candlepower flashlight, he observed a marihuana seed in a pleat in the right rear seat cushion. The defendant was asked to exit the vehicle and to disclose the origin and destination of his trip. He repeated his explanation to Pennington. When asked about the ownership of the car, however, the defendant told Pennington that the Camaro was his, thus contradicting his previous statement that the vehicle belonged to a friend.

A search of the defendant’s person revealed neither drugs nor weapons, but $1039.63. When asked about the presence of the marihuana seed, the defendant disclaimed any knowledge of it. The defendant admitted that he occasionally used marihuana, but asserted that he had not used any that night. The defendant consented to a search of the vehicle, which failed to disclose the presence of other marihuana, seeds or residue. While searching the vehicle, the officers found, in the center console of the vehicle, a package of “E-Z Wider” cigarette rolling papers.

The passenger, Abilio Garcia, also was asked to exit the vehicle. A search of his person revealed a paper towel containing a quantity of heroin in the front waist band of his trousers. Subsequent investigation demonstrated that the seed was capable of germination and that the seized heroin weighed approximately nine-tenths of an ounce.

At the completion of the state’s case-in-chief, the trial court granted the defendant’s motion for judgment of acquittal with respect to that count of the information charging him with aiding and abetting the possession of a narcotic substance with the intent to sell. It denied the motion with respect to the other two counts, and the defendant rested without presenting evidence. The trial court entered findings of guilty with respect to the two remaining counts of the information and sentenced the defendant in accordance with his conviction. This appeal followed.

The sole claim raised on appeal is that the trial court improperly denied the defendant’s motion for judgment of acquittal on the charges of possession of marihuana and possession of drug paraphernalia because the evidence produced by the state was insufficient as a matter of law to support the findings of guilty. We agree.

To determine the sufficiency of the evidence to justify a conviction, we apply a two-fold test. State v. Uribe, 14 Conn. App. 388, 392-93, 540 A.2d 1081 (1988). First, we construe the evidence in the light most favorable to sustaining the trial court’s verdict. State v. Haddad, 189 Conn. 383, 385, 456 A.2d 316 (1983); State v. Uribe, supra, 393. We then determine whether, “from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” State v. Uribe, supra.

The test for determining whether the evidence is sufficient to sustain a verdict is “whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) State v. Haddad, supra, 387. When applying this test, the court must ensure that “[e]ach essential element of the crime charged must be established by proof beyond a reasonable doubt, and although it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. . . . Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot constitutionally stand, as it is violative of due process under the fourteenth amendment. . . . [T]he burden rested upon the prosecution to prove the guilt of the accused, i.e., to prove each material element of the offense charged beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) Id., 387-88.

To prove either actual or constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it. State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990); State v. Parent, 8 Conn. App. 469, 473, 513 A.2d 725 (1986). Our courts have declined to find actual possession where the narcotics were accessible to others and were found in areas that were occupied by others. See, e.g., State v. Alfonso, 195 Conn. 624, 634-35, 490 A.2d 75 (1985) (drugs found in common area of an apartment were not possessed by the defendant); State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989) (drugs found in a vehicle occupied by more than one person were not possessed by defendant). When the defendant is not in exclusive control of the area where the contraband is found, “it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) State v. Alfonso, supra, 633. “[T]he presence of the defendant near the contraband without more is insufficient to support an inference of possession.” State v. Brunori, supra, 436.

The state relies on evidence that the defendant informed a police officer that the vehicle belonged to a friend, but later told another officer that the vehicle belonged to him. Other than these statements, the record is devoid of proof of ownership of the vehicle in which the seed was found. Nothing in the record indicates how long the defendant had possessed the vehicle nor the circumstances under which he had obtained it. The state also relies on the defendant’s statement in which he admitted having smoked marihuana in the past. The state failed, however, to produce any additional evidence that the defendant had smoked marihuana or had transported the substance in the vehicle. The defendant’s statements involving nonspecific past marihuana use are minimally probative of the issue of dominion and control of the seed.

The state must prove beyond a reasonable doubt that the defendant knew of the character of the drug and its presence, and exercised dominion and control of it. Id., 435-36. The evidence, however, equally supported a conclusion that the defendant was unaware of the presence of either the seed or the rolling papers and did not exercise dominion and control over them. “The trier may not reach a conclusion of guilt where the facts, established by the evidence, including those reasonably and logically inferred from the other proven facts, are rationally consistent with the innocence of an accused. A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984).

The evidence in this case fell short of proof beyond a reasonable doubt. The state has failed to offer supporting evidence that the defendant possessed either the rolling papers or the marihuana seed. See State v. Alfonso, supra, 634.

The judgment is reversed and the case is remanded with direction to render judgment of acquittal on the two counts on which the defendant had been found guilty.

In this opinion the other judges concurred.

       General Statutes § 21a-279 (c) provides in pertinent part: “Any person who possesses or has under his control . . . less than four ounces of a cannabis-type substance, except as authorized in this chapter ...” may be fined or imprisoned or both.
      General Statutes § 21a-240 (29) provides in pertinent part: “ ‘Marihuana’ means all parts of any plant, or species of the genus cannabis . . . whether growing or not; the seeds thereof . . . .”

       General Statutes § 21a-267 (a) provides in pertinent part: “No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240 ... to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance
      General Statutes § 21a-240 (20) (A) provides in pertinent part: “ ‘Drug paraphernalia’ refers to . . . products and materials of any kind which are used, intended for use or designed for use in . . . injecting, ingesting, inhaling or otherwise introducing into the human body, any controlled substance contrary to the provisions of this chapter including, but not limited to . . . (10) objects used, intended for use or designed for use in ingesting, inhaling, or otherwise introducing marihuana . . . into the human body, such as: Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with screens, permanent screens, hashish heads or punctured metal bowls; water pipes . . . .”
      The defendant was acquitted of the charge of possession of heroin with intent to sell in violation of General Statutes §§ 21a-278 (b) and 53a-8.

       Garcia was arrested and charged, but failed to appear for trial. A warrant seeking his rearrest was issued.

       We note that “rolling paper” is not listed in the examples of drug paraphernalia set forth in General Statutes § 21a-240 (20). In light of our resolution of this case, we need not address the question as to whether rolling papers constitute drug paraphernalia as defined by the statute.