text:
    State of Connecticut v. Derrick Murrell
    (2729)
    Dupont, C. J., Borden and Bieluch, Js.

      Argued January 8 —
    decision released April 15, 1986

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

      Randy L. Cohen, special assistant state’s attorney, with whom, on the brief, were James G. Clark, deputy assistant state’s attorney, and Dennis O’Connor, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the third degree, in violation of General Statutes § 53a-103 (a), larceny in the fifth degree, in violation of General Statutes § 53a-125a (a), and criminal mischief in the third degree, in violation of General Statutes § 53a-117 (a) (1) (A). The sole issue in this appeal involves the admission into evidence during the state’s case-in-chief of the defendant’s prior misconduct as substantive proof of identity and a common scheme to commit the charged offenses. We find no reversible error.

The jury reasonably could have found the following facts: On May 18,1983, Richard Perretta, a Hartford police officer, was employed on private duty as a guard in a downtown parking garage in Hartford. While patrolling an underground level of the garage during the noon hour in his vehicle, Perretta observed a man who was holding car stereo speakers in the vicinity of a 1979 Saab automobile which appeared to have been burglarized. The individual, who was within approximately thirty feet of Perretta, saw him and began to flee. Perretta got out of his car and chased the individual up a stairway whereupon the individual threw the speakers at him and dropped a car stereo radio. Perretta was able to see the individual’s face several times during the chase from a distance of approximately ten feet. After a street chase, Perretta lost sight of the individual a block away. Perretta stopped a passing police cruiser and radioed a description of the suspect. The individual was described as a black male, about five feet six inches tall, wearing a striped rugby-type shirt, blue jeans and a dark blue or black waist-length jacket. Perretta and the other police officer returned to the parking garage to contact the owner of the burglarized car and to make a report of the incident. The front driver’s side window of the car had been smashed and a radio, later identified to be a Blaupunkt AM/PM stereo radio and cassette tape deck, had been ripped out of the dashboard.

Officer Peter Matarangas, who was on patrol in the downtown area, received the radio bulletin at approximately 1 p.m. Shortly thereafter, he observed an individual, who fit the description of the suspect, exiting a nearby parking garage. The individual was wearing the same type and color of clothing as described by Perretta, and was carrying a black jacket. Matarangas and two other police officers apprehended the defendant and, upon patting down the jacket, they found two black radio knobs inside a pocket. The defendant was transported to the first parking garage where Perretta identified him as the perpetrator. Perretta placed the knobs on the Blaupunkt radio and found that they fit. The defendant was then placed under arrest.

Prior to trial, the defendant filed a motion in limine requesting the exclusion from evidence of any and all prior felony or misdemeanor convictions which the state might seek to offer for impeachment purposes. The defendant had been previously convicted of larceny in the third degree, of being a persistent larceny offender, and of escape from custody. During a preliminary hearing, the state disclosed its intention to introduce evidence of the defendant’s prior involvement in a similar unrelated burglary of a car parked in a downtown parking garage. This evidence was also the factual basis for the defendant’s prior larceny conviction. The trial court granted the motion in limine in part, thereby excluding from evidence the conviction of escape from custody, and deferred ruling on the motion regarding the larceny convictions and the evidence of the prior misconduct until the state’s proffer.

At trial, the state sought to offer the testimony of Hartford police detective Richard Klaus as evidence of the defendant’s prior misconduct. Out of the presence of the jury, Klaus testified that on March 27, 1982, while assigned to patrol the downtown Hartford area and parking facilities, he observed an individual, later identified as the defendant, exiting a parking garage. Klaus stopped the defendant and noticed that he was partially concealing a car radio. The defendant thereupon dropped the radio and fled. Upon being apprehended, the defendant agreed to show Klaus where he obtained the radio and they proceeded to a lower level of the parking garage where the defendant pointed out a late model Chevrolet. The window of the driver’s side front door was broken and the dashboard was damaged by the forcible removal of the radio. Klaus identified the radio as a Blaupunkt make. This incident occurred in the early evening in a parking garage located approximately one hundred yards from the parking garage involved in the present case.

The state limited the offer of this evidence to proof of identity and a common scheme, and stipulated that there would be no offer of the felony convictions for impeachment purposes if the defendant chose to testify. The trial court ruled that the prior misconduct evidence was admissible for the purposes offered and accordingly denied the defendant’s motion in limine as to that evidence. In the presence of the jury, Klaus testified as set forth above. Upon the conclusion of his testimony, the trial court cautioned the jury that the evidence was admitted for the limited purpose of proving identity and a common scheme to commit such a crime. On appeal, the defendant claims that the trial court erred in admitting this evidence. We agree.

“Evidence of similar but unconnected crimes is excluded because it violates the rule of policy which forbids the state initially to attack the character of the accused and also the rule of policy that bad character may not be proved by particular acts.” State v. Esposito, 192 Conn. 166, 169, 471 A.2d 949 (1984). “It is not because other crimes evidence offered to prove criminal proclivity lacks any probative value that it is ordinarily rejected, however, but because it is commonly regarded as having too much. McCormick, Evidence (2d Ed. 1972) § 190; 1 Wigmore, Evidence (3d Ed. 1940) § 194.” State v. Esposito, supra, 181 (Shea, J., dissenting). Notwithstanding these general principles, “ ‘[s]uch evidence [may be] admissible . . . when it is particularly probative in showing such things as intent, an element in the crime, identity, malice, motive or a system of criminal activity . . . .’ ” State v. Gilnite, 4 Conn. App. 676, 680, 496 A.2d 525 (1984).

Where the state’s offer of evidence of a defendant’s prior misconduct is directed to the proof of one or more of those commonly recognized items, the question of admissibility lies in the trial court’s discretion. State v. Gilnite, supra. The principles underlying the general rule of exclusion, however, continue to apply. See State v. Onofrio, 179 Conn. 23, 28-30, 425 A.2d 560 (1979); State v. Gilligan, 92 Conn. 526, 530-33, 103 A. 649 (1918). “When assessing the admissibility of ‘other crimes’ evidence, the application of a mechanical test determining that the proffered evidence fits within some class of exception to the rule of nonadmissibility, may obscure sight of the underlying policy of protecting the accused against unfair prejudice. That policy ought not to evaporate through the interstices of the classification. The problem is thus one of balancing the actual relevancy of the ‘other crimes’ evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” State v. Onofrio, supra, 29. With these general principles in mind, we turn to the specific grounds upon which the evidence of the defendant’s prior misconduct was admitted.

I

Identity

“It is the state’s burden to prove every element of the crime, including [identity.]” State v. Perry, 195 Conn. 505, 521,488 A.2d 1256 (1985). “The first threshold for the use of evidence of other crimes or misconduct on the issue of identity is that the methods used be ‘sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other.’ [State v. Ibraimov, 187 Conn. 348, 354, 446 A.2d 382 (1982)]. If this initial criterion is satisfied, the trial court must then balance the probative value of the evidence against its prejudicial effect and, before admitting it, must find that the former outweighs the latter. State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983).” State v. Crosby, 196 Conn. 185, 190, 491 A.2d 1092 (1985).

The state argues that the similarities between the incidents outweigh the dissimilarities and that there are no particularly distinctive dissimilarities. This argument fails for two reasons.

First, it misstates the applicable legal standard. As previously indicated, the law requires not only a high degree of similarity between the events and circumstances of the past and present incidents, it imposes the additional requirement that those common features be “sufficiently unique”; State v. Ibraimov, supra; to warrant the desired inference. The standard is not, as the state suggests, that the similarities outweigh the dissimilarities and that those dissimilarities be unique or distinctive.

Second, although the state has pointed out several similarities between the defendant’s prior misconduct and the present charges, the state has not demonstrated that those commonalities share any sufficiently unique features to warrant the desired inference. Id. Although both incidents involved cars parked in enclosed parking garages in the downtown Hartford area, there is nothing particularly unique about that fact. In addition, the proximity of these garages in a congested downtown area adds little by which to identify this defendant.

There is also nothing particularly distinctive about breaking a window to gain access to the interior of a parked car. Although this means of entry is admittedly “unsophisticated”; see State v. Crosby, supra, 191; unlike the burglary of a jewelry store, the degree of sophistication employed in the burglary of a car to acquire a radio is a factor of minimal significance. Similarly, the fact that the radio in each instance was forcibly removed from the car dashboard cannot be considered to be of such significance as to create the inference that this defendant committed both burglaries. It is reasonable to assume that many car burglars would be concerned with a quick and forceful removal of the desired objects rather than take the time to extract the items carefully. Nor is there any marked significance in a suspect dropping such objects and fleeing upon being spotted.

Although there is some distinctiveness in the fact that both incidents involved the theft of the same brand of car stereo, this fact alone does not rise to the level of uniqueness required by law. Where the state seeks to introduce in its case-in-chief evidence of a defendant’s prior misconduct as substantive proof of identity, “ ‘much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.’ McCormick, supra, p. 449.” State v. Shindell, 195 Conn. 128, 135, 486 A.2d 637 (1985). We are not persuaded that these facts and circumstances meet this threshold criterion for admissibility. Therefore, we find that the trial court erred in admitting this evidence on the issue of identity.

II

Common Scheme

We next consider whether the trial court properly admitted the evidence to prove a common scheme to commit these offenses.

Where, as here, evidence of prior misconduct does not possess sufficient relevance on the issue of identity, but is offered into evidence to prove a common scheme, the trial court is presented with a thorny problem. On the one hand, “the courts have not always perceived that there are in truth these two distinct tests for such evidence.” 2 Wigmore, Evidence (Chadbourn Rev. 1979) § 304, p. 251; see State v. Ibraimov, supra (error to admit prior misconduct to prove identity; dissent would admit to prove common scheme). On the other hand, any distinction between the tests is clouded by the fact that such evidence, when admitted as proof of a common scheme, also tends to prove identity. See McCormick, supra, pp. 448-49; 2 Weinstein & Berger, Weinstein’s Evidence § 404 [16]; Slough & Knightly, “Other Vices, Other Crimes,” 41 Iowa L. Rev. 325, 330 (1956).

These difficulties are further compounded by the fact that there is some discrepancy in the cases as to the factors governing the admissibility determination when evidence of prior misconduct is offered to prove a common scheme. Compare State v. Shindell, supra, 134 (similarity factor not pertinent when the theory of admissibility is common scheme as opposed to identity), and State v. Esposito, supra, 172 (shared marks of similarity is a significant factor when theory of admissibility is common scheme). Furthermore, even where specific factors have been identified and applied, the danger remains that evidence of prior misconduct, offered to prove a common scheme, will, in fact, serve “merely to show an evil disposition on the part of the accused.” State v. Williams, 190 Conn. 104, 108, 459 A.2d 510 (1983); see also State v. Esposito, supra, 181 (Shea, J., dissenting).

We recognize, therefore, that the case law on the common scheme or system of criminal activity exception has not always provided precise boundaries to that exception. A careful examination of that case law, however, does disclose that the common scheme or system of criminal activity exception is woven of several separate but related strands, and that the identification of those strands aids in the disposition of the issue presented in this appeal.

One strand exists where the nature of the criminal conduct with which the defendant is charged itself involves an ongoing criminal scheme or course of conduct, and the uncharged misconduct evidence can be seen as part of that ongoing criminal scheme or course of conduct. Thus, in State v. Carrione, 188 Conn. 681, 690-93, 453 A.2d 1137 (1981), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983), the defendant was charged with larceny by virtue of a scheme to defraud, and the court suggested that testimony about several later, uncharged episodes “might well have been admitted by the trial court to show a common scheme to defraud the victims by inducing them to reinvest the returns she paid them along with additional sums of money.” Id., 692. See also State v. Nardini, 187 Conn. 513, 518-19, 447 A.2d 396 (1982), in which the defendant was charged with conspiracy to commit arson on a building which he owned, and the court found no error in admitting evidence that he had solicited others at different times to set fire to that building and other buildings which he owned. See generally State v. Johnson, 190 Conn. 541, 549, 461 A.2d 981 (1983) (state has burden to prove that defendant acted pursuant to a scheme to defraud).

Another strand exists where, although the charged misconduct does not itself involve an ongoing system of criminal activity, nevertheless the prior uncharged misconduct evidence, taken together with other connecting evidence, permits the inference that the prior misconduct evidence itself forms part of an overall predetermined plan, scheme or design of which the charged offense is a part. Thus, in State v. Shindell, supra, 135-36, the defendant was charged, in part, with two counts of arson of a particular building, and the court found no error in admitting evidence that the defendant and his agents had within the previous year attempted to burn and collect insurance on other buildings in which the defendant had a financial interest similar to the financial interest held by him in the building that he was accused of burning. The Supreme Court held that “the trial court could reasonably conclude that the other crimes evidence was relevant and material to show ‘a larger continuing plan, scheme, or conspiracy, of which the present crime[s] on trial [were] a part.’ McCormick, supra, p. 448.” Id., 136. A footnote in State v. Shindell, supra, further “illustrates the larger plan or scheme exception to the general prohibition against evidence of other crimes or misconduct: ‘In the prosecution of D for arson of building A, evidence that D had wrongfully burned building B would be relevant, if coupled with other evidence to show that D had a plan (scheme or design) to destroy these buildings in order to collect insurance proceeds.’ (Emphasis in original.)” Id., 134 n.5, quoting Lilly, An Introduction to the Law of Evidence § 45, p. 133.

A third strand exists where the crime charged is sexual in nature, and the uncharged misconduct is also sexual and is close in time, similar to the crime charged and involves a person similar to the prosecuting witness. Thus, in State v. Hauck, 172 Conn. 140, 374 A.2d 150 (1976), the defendant, a teacher, was charged with sexually touching and with photographing a student, inducing her participation with the promise of a passing grade. The court found no error in the admission of testimony that during the same school year the defendant had sexually touched another student, inducing her consent by the promise of a passing grade. The court cited with approval several “decisions in other jurisdictions indicating] a greater liberality in admitting evidence of other criminal acts to show a common scheme, pattern or design in sex-related crimes.” Id., 145. This strand was further articulated in State v. Esposito, supra, 169-70, where the court held that “evidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan where the prior offenses: (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness.” Under this view, the requirement that the prior misconduct be “similar to the offense charged” means that “the prior offense was sufficiently similar to the offense charged to show a pattern or common design . . . . ” Id., 170.

A fourth strand exists where the uncharged misconduct evidence is admitted to disprove a defense raised by the defendant, and the nature of the defense is such that the uncharged misconduct evidence is relevant to the issue raised by that defense. Thus, in State v. Carter, 198 Conn. 386, 393, 503 A.2d 576 (1986), the defendant raised the defense of insanity to the charge of murder. The court found no error in the admission of evidence of a prior murder conviction, ruling that “[w]here insanity has been raised as a defense to a crime, other misconduct bearing upon that issue is similarly admitted as an exception to the general prohibition against such evidence. Once the insanity defense is asserted by a defendant the state is entitled to use relevant evidence of prior crimes to rebut it.” Id.

A fifth strand exists where, because of the nature of the charged offense, the inherent difficulties of obtaining direct evidence bearing on one or more elements of that offense mandate a more relaxed standard in the admission of uncharged misconduct evidence. Thus, in State v. Tucker, 181 Conn. 406, 435 A.2d 986 (1980), the defendant was charged with the murder of and risk of injury to an infant. The court found no error in the admission of evidence of prior acts of physical abuse by the defendant on the victim as relevant to establish “a pattern of behavior and an attitude toward the child that is indicative of the defendant’s state of mind.” Id., 415.

Yet a sixth strand exists where the defendant elicited testimony which opened the door to the admission of evidence of uncharged misconduct which might otherwise not be admissible. Thus, in State v. Bowman, 3 Conn. App. 148, 485 A.2d 1343 (1985), the defendant was charged with sexual assault. He elicited testimony that he was a family friend of the victim and was thus unlikely to assault her. This testimony opened the door to rebuttal evidence that he had sexually assaulted the victim’s younger sister two years earlier.

We do not suggest that these strands are all of the twisted threads that tie into the gordian knot of the common scheme exception. The availability of such a categorization, however, aids in both identifying the various factors governing the determination of admissibility and in the application of our precedents by analogy to the facts and circumstances of this case. Thus, the combined approach of analyzing the component factors and analogizing them to the precedential categories should serve to minimize the evidentiary risks which inhere in an otherwise mechanical test of admissibility. See State v. Onofrio, supra.

Generally, the determination of whether the uncharged misconduct evidence is relevant as proof of a common scheme or system of criminal activity depends on a number of factors. Those factors include: (1) the degree of general similarity between the uncharged and charged misconduct; (2) the frequency of the uncharged misconduct; and (3) the remoteness or closeness in time between the uncharged and charged misconduct. The various precedents indicate that these factors derive from the common sense psychological insight that when one engages in an overall system of criminal activity, he tends to do so by engaging in generally similar conduct, with some frequency, over a relatively confined period of time. See State v. Esposito, supra, 171.

Where evidence of prior misconduct is sufficiently similar to the facts and circumstances of the charged offense to be admissible for the purpose of proving that the same individual committed both crimes, i.e., to be admissible under the identity exception, then there is some likelihood that the evidence is also relevant and admissible for the purpose of proving a common scheme or system of criminal activity. See State v. Braman, 191 Conn. 670, 678-81, 469 A.2d 760 (1983). Where, however, that evidence is not sufficiently similar to the charged offense to be admissible for the purpose of proving identity, but is offered into evidence in the state’s case-in-chief for the purpose of proving a common scheme, then the similarity factor alone logically cannot be determinative, particularly where, as in this case, identity is the principal element in dispute. This conclusion follows from the observation that evidence of a common scheme also tends to prove identity. See McCormick, supra, pp. 448-49; 2 Weinstein & Berger, supra, § 404 [16]; Slough & Knightly, supra, 330. To conclude otherwise would necessitate our adoption of the inherently contradictory position that the same evidence, which is not sufficiently similar to the charged misconduct to be admissible for the purpose of proving identity, may nevertheless be sufficiently similar for the purpose of proving a common scheme or system of criminal activity, and, therefore, admissible under that theory to prove the principal factual element of the charged crimes in dispute, namely, identity.

Thus, in this case, although there are a number of similarities between the past and present incidents of misconduct, because of the particular facts of this case the determination of whether the prior misconduct evidence is relevant to prove a common scheme to commit these offenses requires a finding of more than “a high degree of similarity in the modus operandi of their commission.” State v. Shindell, supra, 135. There must be “a substantial number of other factors”; id.; which serve to connect the prior incident of misconduct to the charged crimes. Only then can this evidence legitimately be found to have sufficient relevance, apart from its potential relevance to identity, to be admissible for the independent purpose of proving a common scheme or system of criminal activity.

An examination of the record reveals that there is an insufficient number of factors which would serve to connect the prior incident of misconduct to the charged crimes. The evidence in question was separated by a period of fourteen months from the date of the offense. Nevertheless, this factor is not decisive because, as the state has properly noted, the defendant was incarcerated for most of this time. See State v. Howard, 187 Conn. 681, 686 n.3, 447 A.2d 1167 (1982). Thus, the evidence cannot be considered remote. Id.

In terms of additional factors, derived from the precedents, which might bolster the admissibility of this evidence, the following distinctions are pertinent. The evidence was offered during the state’s case-in-chief. Cf. State v. Bowman, supra. There was no indication that the nature of the charged misconduct or any inherent difficulties in obtaining proof should be deemed to have an effect upon the admissibility of this evidence. Cf. State v. Tucker, supra. The offenses charged in the present case are not sex-related crimes; cf. State v. Esposito, supra; State v. Hauck, supra; and there is no indication that the nature of the charged conduct itself involves an ongoing criminal scheme or course of conduct. Cf. State v. Johnson, supra; State v. Carrione, supra; State v. Nardini, supra. Nor was any additional evidence admitted with which the evidence of uncharged misconduct might be combined in order to create the inference that these incidents were, in fact, parts of an overall plan, scheme or design. Cf. State v. Shindell, supra. The nature of the defense; State v. Carter, supra; is also not a pertinent factor in this factual context. See State v. Howard, supra, 688-89 (Shea, J., concurring).

We conclude, therefore, that the evidence of the defendant’s prior misconduct did not have sufficient independent relevance as proof of a common scheme or system of criminal activity to be admissible under these facts and circumstances. To conclude otherwise would be equivalent to allowing the common scheme exception to serve as a pretext for the admission of otherwise inadmissible identity evidence.

Ill

Harmless Error

The state argues that any error in the admission of the defendant’s prior misconduct was harmless. We agree.

Whether this error is harmful or harmless depends upon “whether the admission of [Klaus’] testimony prejudicially affected the jury’s verdict.” State v. Conroy, 194 Conn. 623, 626-27, 484 A.2d 448 (1984). “Because the defendant did not claim at trial that the error deprived him of a constitutional right, he bears the burden of proving its harmfulness.” Id., 627. “If the record discloses that the [ruling] could not reasonably have affected the verdict, [it was] not harmful and hence not reversible error.” State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147 (1969), cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970); State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986). In this case, the defendant has not met his burden of establishing harmfulness.

The testimony of Klaus was merely one aspect of an otherwise substantial case upon which the jury could conclude that the defendant was the perpetrator of these offenses. That case included the testimony of Perretta who was able to see the defendant’s face several times at close range before and during the chase and who positively identified him at the trial. Because of his training as a police officer and his employment in this situation as a guard, Perretta “was not a casual or passing observer, as is so often the case with eyewitness identification.” Manson v. Brathwaite, 432 U.S. 98, 115, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). In this regard, “he could be expected to pay scrupulous attention to detail . . . . ” Id. The record indicates that he did, in fact, pay close attention to detail in his description of the perpetrator’s features and clothing as indicated by the bulletin that he issued over the radio. Furthermore, the evidence that the knobs from the stolen radio were found in the defendant’s jacket pocket is particularly incriminating. In short, because of the strength of the other evidence against the defendant, he has not persuaded us that it is likely that the erroneously admitted evidence affected the verdict.

There is no error.

In this opinion the other judges concurred.

       Although the written motion in limine was technically limited to exclude evidence of the defendant’s prior convictions, the record clearly reveals the theory upon which the proof of prior misconduct was offered by the state and admitted by the court; cf. Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 411 n.3, 472 A.2d 356 (1984); and both parties have briefed this issue as the sole issue on appeal.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Gloria Duhl v. Paulo Duhl
    (3638)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 4 —
    decision released April 15, 1986

      Daniel V. Presnick, for the appellant (plaintiff).

      Ralph C. Crozier, with whom, on the brief, was Norman K. Chase, for the appellee (defendant).
   Daly, J.

The plaintiff appeals from the judgment of the trial court terminating her right to periodic alimony payments as provided by General Statutes § 46b-86 (b). The plaintiff concedes that the trial court’s finding that the plaintiff was “living with another person” was not clearly erroneous, but alleges that there was insufficient evidence to demonstrate a change in her financial circumstances warranting the termination of alimony.

The parties were married for eleven years before their marriage was dissolved on December 4,1974. As part of the dissolution, the defendant was ordered to pay the plaintiff $125 per week as periodic alimony. This amount was modified twice and reduced to $50 per week on November 27, 1979.

The defendant filed a motion for the termination of alimony dated August 20, 1984, “due to the fact that the plaintiff is now cohabitating [sic] and due to a substantial change of circumstances.” It is clear from the record and from oral argument in this court that this claim invoked the provisions of General Statutes § 46b-86 (b). A hearing was held on the issues pursuant to § 46b-86 (b) and, on October 1,1984, the trial court ordered that the periodic alimony payments be terminated.

General Statutes § 46b-86 (b) grants to the Superior Court discretion to “terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the . . . termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.” The trial court supported its finding of a change in financial circumstances by noting that the plaintiff was living with a male who had been paying the plaintiff $400 in rent per month for an unspecified amount of time, although at the time of trial he was no longer making such payments. The plaintiff also admitted taking trips with this person to Israel, Florida, California, Las Vegas, Montreal and the Carribean. Clearly, these findings provided sufficient evidence of a change in the plaintiff’s financial circumstances.

The plaintiff argues, however, that § 46b-86 (b) requires a substantial change in circumstances and some finding by the court that the relationship will endure before a court may terminate alimony. The plaintiff summarized this claim during oral argument before this court by stating that the trial court must find a substantial change in financial circumstances, namely the financial interdependence such as is found in a common law marriage, before it may order the termination of alimony payments. No such requirement is to be found in the statute nor do we feel that such a requirement is necessary to fulfill its purpose. Section 46b-86 (b) was enacted “to ‘correct the injustice of making a party pay alimony when his or her ex-spouse is living with a person of the opposite sex, without marrying, to prevent the loss of support.’ H.B. No. 6174, 1977 Sess. (Statement of Purpose).” Connolly v. Connolly, 191 Conn. 468, 473-74, 464 A.2d 837 (1983). To further this purpose, the statute provides the Superior Court with a broad basis upon which to modify, suspend or terminate periodic alimony payments. “We note that the General Assembly chose the broader language of ‘living with another person’ rather than ‘cohabitation’ and that this provision requires only a ‘change’ of circumstances, not a ‘substantial change’ as required by § 46b-86 (a).” (Footnote omitted.) Kaplan v. Kaplan, 185 Conn. 42, 45-46, 440 A.2d 252 (1981). Once these two factors are found, the termination, suspension or modification of alimony becomes a matter for the discretion of the trial court.

The trial court’s finding that the plaintiff had experienced a change in financial circumstances can only be rejected by this court if it is clearly erroneous. See Practice Book § 3060D. The record in this case indicates that this finding was supported by evidence demonstrating that the plaintiff received rent from her male companion as well as evidence of the extensive trips they took together. “It cannot be said, therefore, that the finding was as a matter of law unsupported by the record, incorrect, or otherwise mistaken. See Pandolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 222, 435 A.2d 24 (1980)]. This court may not substitute its own opinion as to the living arrangements of the defendant for the factual finding of the trial court.” Kaplan v. Kaplan, 186 Conn. 387, 392, 441 A.2d 629 (1982). While the termination of alimony may be a harsh result, the trial court’s findings were not clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       The issue presented in this appeal arose from this hearing on the questions presented under General Statutes § 46b-86 (b). A hearing on the issue of a change of circumstances under General Statutes § 46b-86 (a) was subsequently held but is not part of this appeal by agreement of the parties at oral argument.

       The plaintiff expressly stated at oral argument before this court that her only challenge on appeal concerned the factual findings of the trial court, which she claimed were inadequate to justify the order of termination. She expressly waived any claim that the trial court abused its discretion in ordering termination as opposed to suspension or modification.


author: Dupont, C. J.

text:
    State of Connecticut v. Douglas Wiggins
    (4022)
    Dupont, C. J., Daly and Bieluch, Js.

      Argued February 18 —
    decision released April 15, 1986

      Margaret P. Levy, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Thomas Miaño, former assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

After a trial to a jury, the defendant was convicted of robbery in the first degree in violation of General Statutes (Rev. to 1979) § 53a-134 (a) (2), and assault in the second degree in violation of General Statutes (Rev. to 1979) § 53a-60 (a) (2). The defendant appeals from the judgment rendered thereafter, claiming that the trial court erred: (1) in denying the defendant due process of law by allowing an in-court identification which was tainted by a prior impermissibly suggestive photographic identification; (2) in granting the state’s motion for joinder and denying the defendant’s motions for severance; and (3) in denying the defendant the right to a trial by jury by failing to disqualify a juror for allegedly sleeping during the trial.

The jury could have reasonably found the following facts based upon the evidence presented. On November 22, 1980, Delroy Llewellyn was working alone as the night manager of a gasoline station located on Albany Avenue in Hartford. Llewellyn was carrying a gun and the station’s cash receipts in his shirt pocket. At approximately 3:45 a.m., a male, whom Llewellyn recognized as having been at the gasoline station on previous occasions, came into the waiting room and asked Llewellyn for change for a dollar. As Llewellyn counted out the change, the man stepped behind him, drew a handgun and pinned Llewellyn’s arms behind him. At this time, a second male, whom Llewellyn also recognized as a prior customer, entered the waiting room with a gun, raised it to Llewellyn’s jaw, and fired. His jaw was shattered as a result of the gunshot. After the second male took Llewellyn’s gun and the station’s cash receipts, both perpetrators fled the scene with a third man who was outside of the waiting room. The victim later identified the second robber as the defendant in this case.

After being released from the hospital, Llewellyn went to police headquarters on November 25,1980, to view a photographic array. At this time, the victim selected a photograph of the first perpetrator who had held Llewellyn while he was being shot. Subsequently, in May or June, 1981, Llewellyn, by chance, saw the second perpetrator standing outside a building and was able to observe him in daylight for approximately one minute. Llewellyn reported this sighting to the police. The defendant later stipulated that his mother lived at the address where the victim saw the perpetrator, at the time the crimes were committed.

On May 11, 1982, Llewellyn selected a color photograph of the defendant from a stack of ten photographs given to him by a police officer investigating the case. After Llewellyn verified that the photograph pictured the assailant who shot him, the police officer showed Llewellyn a second photograph of the defendant, this time with a different facial expression, in order to confirm the victim’s identification of his assailant. Llewellyn told the police officer that the second photograph pictured the same man he had previously identified as his assailant.

At a hearing held prior to trial, the defendant moved to suppress the identification evidence in this case. In denying the motion, the trial court found that the photographic array shown to Llewellyn was not impermissibly suggestive and that, even if it were, the identification made by the victim was nevertheless reliable.

In a separate incident, the defendant was arrested on the evening of April 20,1982, and charged with two counts of carrying a weapon in a motor vehicle in violation of General Statutes § 29-38. The defendant was one of five males arrested after a chase of their vehicle by police. A search of their car revealed one gun, which had been fired. Another loaded gun was found near the location where the car carrying the defendant was finally stopped.

On May 19, 1983, the state filed a motion for consolidation, pursuant to Practice Book § 829, requesting that the two cases involving the defendant be tried together. This motion was granted and the defendant’s motion to sever the cases was denied. The motion to sever was renewed at trial and was again denied by the court. At the conclusion of the trial, the jury returned a verdict of guilty to the charges of robbery in the first degree and assault in the second degree arising out of the robbery at the gasoline station in 1980, and a verdict of not guilty to the charges of carrying weapons in a motor vehicle arising out of the 1982 incident.

The defendant’s first claim is that the trial court denied the defendant due process by allowing an ineourt identification by the victim of the gasoline station robbery, an identification which the defendant alleges was tainted by a prior impermissibly suggestive photographic identification. It is well established that a defendant who attempts to suppress identification evidence has the burden of proving that the identification resulted from an unconstitutional procedure. See State v. Aversa, 197 Conn. 685, 693, 501 A.2d 370 (1985); State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984); State v. McKnight, 191 Conn. 564, 570, 469 A.2d 397 (1983); State v. Frazier, 7 Conn. App. 27, 34, 507 A.2d 509 (1986); State v. Anderson, 6 Conn. App. 15, 21 n.4, 502 A.2d 446 (1986). More specifically, our Supreme Court has repeatedly held that a conviction based on an in-court identification which follows an out-of-court photographic identification will be set aside only “ ‘if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ”State v. Davis, 198 Conn. 680, 684, 504 A.2d 1372 (1986), quoting State v. Fullwood, supra, 243-44; State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Vass, 191 Conn. 604, 609, 469 A.2d 767 (1983); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983); see also Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

In order to decide whether the identification procedures violated the defendant’s right to due process, it must be determined (1) whether the identification procedures were impermissibly and unnecessarily suggestive, and, if so, (2) whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances. See State v. Findlay, 198 Conn. 328, 336-37, 502 A.2d 921 (1986); State v. Amarillo, 198 Conn. 285, 291, 503 A.2d 146 (1986); State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Frazier, supra, 34.

A review of the record in this case indicates that the identification procedures employed by the police were not so impermissibly suggestive as to constitute error. The defendant’s claim that the failure to preserve the original photographic array intact makes it impossible to know whether the identification procedures were improperly suggestive is unpersuasive for several reasons. First, counsel for the defendant had the opportunity to view the complete photographic array and did take notes on it prior to its partial loss. Thus, the defendant had the opportunity to argue at trial that specific photographs seen by defense counsel were impermissibly suggestive, rather than claim on appeal that it was impossible to determine whether any of the photographs were impermissibly suggestive. Second, the failure to preserve the original photographic array does not preclude a finding that the identification procedures were not impermissibly suggestive. State v. Miles, 195 Conn. 552, 555, 489 A.2d 373 (1985); State v. Doolittle, supra, 199. The preservation of the array is not a condition precedent to an in-court identification. State v. McKnight, supra, 570 n.5.

The manner in which the victim was shown the photographs was not impermissibly suggestive. It is generally recognized that the presentation of several photographs, including that of the suspect, to a witness is by itself not impermissibly suggestive. State v. Fullwood, supra, 244-45. We conclude that the trial court was correct in denying the defendant’s motion to suppress the identification evidence.

The defendant’s second claim is that the trial court erred in granting the state’s motion for joinder and in denying the defendant’s motions for severance. The decision of whether the cases should have been tried separately or together was within the discretion of the trial court and that decision cannot be disturbed unless the trial court manifestly abused its discretion. State v. Rodgers, 198 Conn. 53, 63, 502 A.2d 360 (1985); State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982); State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); State v. Frazier, supra, 38.

The state presented its evidence to the jury in two separate segments, first introducing evidence as to the robbery and assault charges, and then introducing evidence as to the weapons charges. At the conclusion of the evidence as to the first incident, the court told the jury that the second phase of the trial was about to begin, that is, a consideration of the second incident. Thus, the possibility that the jury would be confused or that the jury would consider the evidence in a cumulative fashion was minimized. See State v. King, supra, 302; State v. Frazier, supra, 38. Furthermore, the trial court, in its charge to the jury, clearly instructed the jurors to consider each incident and each crime separately. There is no indication that the jury was confused by the presentation of the evidence or that the jury was unable to consider the evidence as to each incident separately and distinctly. State v. Rodgers, supra, 63; State v. Bell, supra, 411; State v. King, supra, 301-302. In fact, the jury returned a verdict of guilty as to the first incident, and a verdict of not guilty as to the second incident, negating any indication of confusion in its consideration of the combined charges.

The defendant’s final claim is that the trial court denied the defendant his right to a jury trial by failing to disqualify a juror for allegedly sleeping through a portion of the trial. Both parties agree that the issue of discharging a juror who allegedly was sleeping during a portion of the trial is a question of first impression in this jurisdiction.

A review of the decisions in other jurisdictions, both at the state and federal levels, indicates that the decision of whether a juror who may have been sleeping during part of a trial should be disqualified lies within the sound discretion of the trial court and that reversal is required only where that discretion has been clearly abused. See, e.g., United States v. Key, 717 F.2d 1206, 1209 (8th Cir. 1983); United States v. Holder, 652 F.2d 449, 451 (5th Cir. 1981); United States v. Cameron, 464 F.2d 333, 334-35 (3d Cir. 1972); Hanes v. People, 198 Colo. 31, 34, 598 P.2d 131 (1979); State v. Kimmel, 202 Kan. 303, 305, 448 P.2d 19 (1968); Commonwealth v. Jones, 314 Pa. Super. 497, 499, 461 A.2d 267 (1983); State v. Chestnut, 643 S.W.2d 343, 346-47 (Tenn. Crim. App. 1982); Zamora v. State, 647 S.W.2d 90, 94 (Tex. Crim. App. 1983); see also note, "Inattention of Juror From Sleepiness or Other Cause as Ground for Reversal or New Trial,” 88 A.L.R.2d 1275. Such a rule recognizes that the trial court is in the best position to evaluate and, if necessary, to resolve a claim of inattention or misconduct by a juror, without diminishing the requirement that a juror give the highest possible degree of attention to the proceedings in order to guarantee the defendant’s right to a jury trial.

In this case, it was never conclusively established that the juror in question was actually asleep at any point in the trial. Differing opinions were offered by those present as to whether the juror was asleep and, if so, for how long. Given this lack of conclusive evidence, the trial court, taking into consideration all of the circumstances, including the availability of only one alternate, the approach of a three day holiday weekend and the possibility that another juror might have to be replaced, was correct in denying the defendant’s motion to disqualify. Furthermore, the trial court advised the jury as a whole to remain alert throughout the course of the trial, rather than take the irreversible, and perhaps premature, step of disqualifying the juror. The defendant did not ask the court to examine the juror about her degree of attentiveness and failed to renew the motion to disqualify the juror after the conclusion of the three day hiatus, although the court had made it clear that it might take future action if necessary. The court, when ruling on the motion, stated that it was denying the defendant’s motion “at this time,” and that it did not believe “at this time” it needed to act.

At no time thereafter did the defendant voice concern about the juror’s attentiveness. The alternate juror was still in attendance after the three day weekend and the defendant could have renewed his motion. The defendant cannot, after his lullaby tune to the trial court — his failing to renew his motion to disqualify the juror — claim on appeal that the possible sleepiness of that juror denied him his right to a trial by jury. The court did not abuse its discretion under the circumstances.

There is no error.

In this opinion the other judges concurred.

       The date of the sighting is uncertain. It may have been as early as the end of December, 1980, according to the police officer assigned to the case, or in May or June of 1981, according to the victim.

       The original array shown to Llewellyn was not maintained intact. The police were able to reconstruct approximately seven of the ten photographs, including the original picture of the defendant. Prior to its loss, however, counsel for the defendant asked to view the original photo array shown to the victim. The array was shown to defense counsel, who took notes on the photographs.

       Even if we were to assume, arguendo, that the identification procedures in this case were impermissibly suggestive, the identification was nevertheless reliable under the totality of the circumstances. See State v. Davis, 198 Conn. 680, 683-84, 504 A.2d 1372 (1986); State v. Perez, 198 Conn. 68, 75, 502 A.2d 368 (1985). Here, the victim had the opportunity to view his assailant at very close range and in bright lighting. Furthermore, the victim demonstrated a high degree of attention while observing his assailant and exhibited a strong level of certainty regarding his identification.

       In its charge on this issue, the trial court instructed the jury as follows: “First, as you know, the accused in this case is being charged with four separate crimes alleged to have occurred during two separate incidents. In a robbery alleged to have occurred at Rupert’s Exxon Station in November of 1980, Mr. Wiggins is charged with the crime of robbery in the first degree and assault in the second degree. In a separate and distinct incident, involving the arrest of a number of young men in a car on Barbour Street in the City of Hartford in April, 1982, Mr. Wiggins is charged with two separate violations of weapons in a motor vehicle. In considering the evidence and the testimony which he has presented, you must be certain to consider each separate incident and each separate crime charged.”

       While the general qualifications of jurors are governed by General Statutes § 51-217, the specific issue of disqualification of a juror for sleeping during a trial is not addressed.

       The initial discussion regarding the juror was as follows:
      “The Court: Yesterday, the sheriff brought to my attention that he felt that the lady — the elderly lady who sat in the front row, was asleep. Now, I noticed her head down, but I have never been sure — I’m not quite sure as to whether the other day — we had a case here, and I was quite sure one of the jurors was asleep, and he wasn’t. It was his way of listening, as it turned out, and he had his head down. Now, the sheriff had a feeling she was asleep. I noticed [defense counsel] nodding her head, as if she felt that she was asleep.
      “[Defense Counsel] No. I directed — I’m nodding my head as to the fact that that’s a problem. I frankly hadn’t noticed it. My discussion with [the prosecutor] — he can speak for himself — was that neither of us—
      “The Court: I don’t think it’s sure that she was asleep, and I don’t think I’m in any position to do anything about it at this point, but I think we should all sort of observe it, and I think perhaps the best we all can do is to be sure she doesn’t fall asleep at this stage. If anybody should see — if it should become obvious, then perhaps the Court could take some action, but I really don’t know whether she was asleep or not. The Sheriff seemed to feel that she was. He was a little closer than I was. These things are difficult to be sure of, so let’s be aware of that at this point.”

       The trial court’s remarks to the jury were as follows:
      ‘ ‘The Court: Ladies and gentlemen, I’m just going to make a brief statement that might be of assistance to some of you. During the course of these trials, sometimes, of course, you’re required to sit for rather lengthy periods of time, and occasionally some people become tired, and I’ve even heard of some people becoming sleepy. There’s been a little fear spread with respect to this trial, that there are those among the jurors who have on occasion yesterday and again today, either fallen asleep or begun to fall asleep. It’s extremely important, of course, that the jurors be fully aware of everything that goes on in the courtroom at all times. If the person should miss anything, it’s not fair to the accused, it’s not fair to the state, it’s not fair to either party. I’m going to ask that you all cooperate with each other. If anybody feels sleepy, kindly, if necessary, ask for a recess. If anybody sees anybody who acts as if they are dozing, kindly have — help them out by giving them a little poke or something of that nature. Make it a cooperative effort. But please, don’t anybody fall asleep or don’t anybody come close to that. If there’s anybody who feels that the situation is getting beyond their control, then of course you could let me know, and we would probably disqualify an individual, or excuse, rather, an individual.
      “So, with this, ladies and gentlemen, I’m just asking that you all cooperate to keep each other alert and fully aware of all that’s going on at all times.”


author: Bieluch, J.

text:
    Chester D’Agostino et al. v. City of New Britain et al. Anthony Raia v. City of New Britain et al.
    (2769)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 4, 1985 —
    decision released April 15, 1986

      Joseph E. Shelly, Jr., for the appellants-appellees (defendants).

      Harold J. Geragosian and Henry S. Zembho, Jr., for the appellees-appellants (plaintiffs).
   Bieluch, J.

This appeal arises out of two consolidated actions wherein the plaintiffs sought and obtained writs of mandamus compelling the defendant city of New Britain to promote each of the three plaintiffs to the position of lieutenant in its fire department. The defendants have appealed from the judgment, alleging numerous errors in the trial court's decision. The plaintiffs have cross appealed, alleging that the court could also have granted the writs of mandamus on an additional ground. Because we find no error on the defendants' appeal, we conclude that the cross appeal is moot.

The trial court found the following facts. On August IB, 1980, the defendant civil service commission issued a promotional list of seventeen firefighters, in order of rating, who had passed promotional examination P-651 and who could therefore be promoted to fill vacancies in the New Britain fire department with the rank of lieutenant. The promotional list was, by operation of chapter 3, § 372, of the New Britain charter, effective for one year only.

During the year in which this list was effective, the first thirteen firefighters thereon were promoted to the rank of lieutenant. The fourteenth firefighter on the list, Kevin Smith, was promoted to the rank of lieutenant after the list expired as the result of a negotiated settlement in a grievance proceeding filed by Smith through the firefighters’ union. Smith had claimed that a vacancy existed at the rank of lieutenant when the list expired, and, therefore, that he should have been promoted to fill that vacancy. The plaintiffs, who were the remaining three firemen on the promotional list, also filed a similar grievance, but, in addition, they brought the present actions.

Nearly two years after these actions were instituted, the city of New Britain moved for their dismissal on the ground that the plaintiffs had not exhausted their administrative remedies prior to bringing suit, thus depriving the trial court of jurisdiction. The court noted that the written motions were not timely, and that similar motions, made orally on August 14, 1981, shortly after the actions commenced, had been denied. Nonetheless, the court reviewed the merits of the claim and concluded, in a thorough memorandum of decision, that the subject matter of the actions was not “within the purview of the collective bargaining agreement” and, therefore, could not be dealt with in a grievance. The court therefore concluded that the plaintiffs had not failed to exhaust their administrative remedies and denied the motions to dismiss.

After a trial, the court found that there were at least three vacancies in the position of lieutenant in the New Britain fire department on and before the expiration of the promotional list on August 13,1981, which were improperly held by persons with provisional appointments as acting lieutenants. The plaintiffs should have been appointed to these vacancies from the promotional list. On the basis of that finding, the court issued a writ of mandamus in each case. The court, however, rejected the plaintiffs’ alternative claim that several positions in upper echelons above the rank of lieutenant had not been filled, except by provisional assignments, and that the failure to fill those positions by promotion from the lower ranks denied the plaintiffs openings in the ranks of lieutenant for their promotion before August 13, 1981. This argument, called the “domino theory” by the plaintiffs, was rejected by the court because the plaintiffs had “no standing to raise the issue in court because none [was], nor could have been, [a candidate] for any of the [upper echelon] positions.”

In their appeals, the defendants claim that the court erred (1) in denying their motions to dismiss the complaint on the ground that the plaintiffs had failed to exhaust their administrative remedies, and (2) in concluding that four additional vacancies existed at the rank of lieutenant during the existence of and on expiration of the promotional list. This latter claim of error is made in three separate arguments in their brief. The plaintiffs’ cross appeal claims as error (1) the court’s failure to accept their “domino theory,” (2) its conclusion that the list automatically expired at the end of one year, (3) its conclusion that the defendant acting personnel director for the city was not required to take affirmative steps to cancel or terminate the promotional list, and (4) its failure to deny the defendants’ motions to dismiss the actions on the additional ground that the grievance procedure was not an adequate remedy to secure the desired result.

Turning to the first claim of error raised by the defendants’ appeal, we find that the trial court rightly held that this dispute was not a proper subject for collective bargaining. The court correctly concluded, therefore, that the grievance procedure was inappropriate and that the plaintiffs had not failed to exhaust their administrative remedies.

General Statutes (Rev. to 1979) § 7-474 (g) provides: “The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining.” (Emphasis added.) This case squarely presents a dispute involving a promotional appointment from such a merit list. Consequently, collective bargaining, and the grievance procedures imposed thereby, cannot apply here. While it is clear that employees must ordinarily exhaust their grievance procedures prior to resorting to our courts; McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 73 S. Ct. 336, 97 L. Ed. 704 (1953); where the subject of the dispute is not within the scope of the collective bargaining agreement, grievance procedures established by collective bargaining agreements do not apply. Section 13:1 of the collective bargaining agreement between the city of New Britain and its firefighters specifically provides that the term grievance means “disputes over the interpretation or application of any written section or sections of this Agreement.” Since § 7-474 (g) expressly precludes the dispute here from being governed by collective bargaining, the grievance procedure cannot apply. Consequently, the trial court was correct in denying the defendants’ motions to dismiss the complaints against them.

The defendants’ remaining claims relate to the court's conclusion that four vacant lieutenancies existed in the fire department during the existence of and on termination of the promotional list. This conclusion, according to the defendants, was unsupported by the evidence and was based on an erroneous finding that the four provisional appointments of privates to the rank of lieutenant were improper.

We have reviewed the record, and we conclude that the trial court’s conclusion was amply supported by the evidence. The defendant, Walter McCusker, who was acting personnel director for the city of New Britain during the time the list was in effect, testified that there were thirty-one active lieutenancies listed on the city personnel records at all relevant times. He further testified that there were only twenty-six or twenty-seven lieutenants in the ranks as of August 13, 1981. Salvatore M. DeAngelis, then acting clerk of the fire board, testified, however, that thirty-three people were receiving lieutenant’s pay at the time. In addition, there was evidence that three firefighters, Privates Richard Dzwonkowski, Donald Janelle, Jr., and Salvatore M. DeAngelis, had each held provisional lieutenant positions in excess of two years at the time of trial, and that all of these appointments had originally been made during the time when the promotional list in issue was effective. This evidence clearly permitted the reasonable inference that at least three, and possibly four, vacancies in the roll of lieutenants existed at that time which were being filled by provisional or temporary appointees.

The defendants’ further argument is that these provisional appointees were, in fact, “acting” appointees as provided for by § 10:2 of the collective bargaining agreement. That provision, however, does not create an “acting” class of employees. Rather, it merely provides that if a firefighter serves for at least one full day or more in a higher employment capacity, then that employee must be paid the minimum wages of the higher rank for that position while temporarily performing the duties thereof in an acting capacity. This clause in the collective bargaining agreement is found in article ten, entitled “Wages.” It does not deal with the appointment process, and is consistent with the provisional appointment provision of § 375 of the charter of the city of New Britain. Section 375, however, expressly limits provisional appointments to a maximum of three months. In the present case, Dzwonkowski, Janelle and DeAngelis had been serving as provisional lieutenants for periods in excess of that maximum. Under these circumstances, we conclude that the court did not err in characterizing the defendants’ promotional practices as “an intentional, flagrant and substantive violation of the Merit Act.”

Finally, the defendants assert that the court’s “creation” of four openings in the ranks of lieutenant usurped the exclusive power of the city to create such positions in violation of the separation of powers doctrine. This argument is premised on the factual assumption that the court did, in fact, "create” those positions. Our conclusion that the court correctly found that those positions existed, but were illegally filled to the exclusion of proper promotees, makes it unnecessary to discuss this argument any further.

With regard to the plaintiffs’ cross appeals, since no further practical relief could follow from a review of the issues presented therein, the cross appeals are moot. Bridgeport Jai Alai, Inc. v. Gaming Policy Board, 3 Conn. App. 254, 256, 487 A.2d 208 (1985).

There is no error on the appeal and the cross appeals are dismissed.

In this opinion the other judges concurred.

       In addition to the -city of New Britain, the city’s board of fire commissioners, civil service commission, and acting personnel director were also named as defendants.

       On November 3,1981, this limitation on promotional lists was removed from the charter by New Britain’s electorate.

       Although the plaintiffs Chester D’Agostino and Joseph Piatek filed one action, and the plaintiff Anthony Raia filed another, these actions were consolidated for trial, and a single appeal was taken by the defendants.

       Chapter 3, § 375, of the charter of the city of New Britain provides for provisional appointments to be made until the establishment of a promotional list. In no case may such an appointment exceed three months in duration, nor may any person receive more than one such appointment in any fiscal year.

       General Statutes § 7-474 (g) was amended by Public Acts 1982, No. 82-212, § 1, to provide: “Nothing herein shall diminish the authority and power of any municipal civil service commission, personnel board, personnel agency or its agents established by statute, charter or special act to conduct and grade merit examinations and to rate candidates in the order of their relative excellence from which appointments or promotions may be made to positions in the competitive division of the classified service of the municipal employer served by such civil service commission or personnel board. The conduct and the grading of merit examinations, the rating of candidates and the establishment of lists from such examinations and the initial appointments from such lists and any provision of any municipal charter concerning political activity of municipal employees shall not be subject to collective bargaining, provided once the procedures for the promotional process have been established by the municipality, any changes to the process proposed by the municipality concerning the following issues shall be subject to collective bargaining: (1) The necessary qualifications for taking a promotional examination; (&) the relative weight to be attached to each method of examination; and (S) the use and determination of monitors for written, oral and performance examinations. In no event shall the content of any promotional examination be subject to collective bargaining.” (Emphasis added.) The emphasized portion was added by the 1982 amendment.


author: Per Curiam.

text:
    Gaye Carpenter v. Peter Carpenter
    (3452)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 7 —
    decision released April 15, 1986

      James F. McKenna, with whom, on the brief, was John P. Febbroriello, for the appellant (defendant).

      Jess H. Smith, with whom, on the brief, was George B. Simoncelli, Jr., for the appellee (plaintiff).
   Per Curiam.

In this appeal from a judgment dissolving the marriage of the parties, the defendant husband claims an abuse of discretion by a state trial referee, acting as the trial court. The defendant claims that the court abused its discretion (1) in making its financial awards, and (2) in ordering that visitation by the defendant with the minor child of the parties be under the control of the plaintiff wife. The second issue is not considered because it is moot.

The parties were married in 1962. During their marriage, they had three children, one of whom was still a minor at the time of the final dissolution hearing.

The trial court found that “[t]he breakdown of the marriage was due to [the] unreasonable and arbitrary attitude of the defendant.” The trial court ordered the defendant to maintain medical insurance for the minor child and life insurance for the plaintiff and the minor child, in addition to ordering child support in the amount of $45 per week and alimony in the amount of $1 each year. The plaintiff was ordered to convey her interest in the family home to the defendant, who was ordered either to pay the sum of $15,000 in cash to the plaintiff and give her a mortgage for $15,000, payable in ten annual installments of $1500 at ten percent interest, or to sell the home within sixty days with the plaintiff receiving the first $30,000 of the proceeds and the remaining proceeds to be divided evenly between the parties.

The defendant claims that the trial court’s determination of the financial awards constitutes error under our decision in Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 479 A.2d 826 (1984), requiring this court to conclude that the judgment of the trial court is without foundation and thus constitutes an abuse of discretion. See Trubowitz v. Trubowitz, 5 Conn. App. 681, 684, 502 A.2d 940 (1985).

In order to conclude that the trial court abused its discretion in making its financial awards, we must find that the court either incorrectly applied the law or could not have reasonably concluded as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984); Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982). The Ehrenkranz case involved an erroneous calculation of the valuations of the assets allocated by the trial court which, therefore, led to an erroneous financial award.

Here, the defendant simply disagrees with the extent of the financial burden imposed on him, and argues, basically, that there was no evidence to support a valuation of the marital home in excess of $66,500. The fact that one party disagrees with the financial orders in a dissolution case does not mean that the trial court has abused its discretion. A trial court has wide latitude to transfer substantially all of the marital assets to one party. See Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983). If the defendant sold the house, a permissible option under the trial court’s order, his financial situation would not be as acute as he claims.

Evidence was presented at trial concerning the disputed value of the family home. This value ranged from $90,000, as valued by the plaintiff, to $66,500, as appraised by the defendant’s expert witness. Thus, there was evidence to support a value in excess of $66,500 and no error of the Ehrenkranz type is involved.

There is no error.

       On March 25, 1985, the defendant filed an amended appeal with the trial court, pursuant to Practice Book § 3062, in order to include certain postjudgment rulings by the trial court. On June 28, 1985, the defendant filed with this court a supplemental brief which stated that the defendant would “not file a supplemental brief in regard to the ruling[s] subsequent to the filing of the present appeal and will adopt his initial brief as his supplemental brief since the issues are all identical.” Thus, our review is limited to the issues raised in the defendant’s original appeal.

       On August 15, 1985, the defendant filed a “motion to set visitation.” On September 13, 1985, the court, Pickett, J., ordered “that the defendant have rights of visitation in accordance with the agreement between the parties dated and filed this date.” The agreement provided that the defendant would have one week of visitation during the summer, that there would be weekend telephone contact between the defendant and the minor child, and that the parties would meet during the summer of 1986, for the purpose of renegotiating a visitation plan for the following year. The agreement stated that it was effective until September, 1986, and placed the matter of visitation under the jurisdiction of the family relations office. Since the original order of the court awarding custody of the minor child to the wife, “subject to such reasonable rights of visitation in the husband as the wife may deem appropriate,” is no longer in effect, having been superseded by the subsequent order of September 13, 1985, any claimed error in the original order has become moot.


author: Borden, J.

text:
    Gordon Hoyt Associates, Inc. v. Statewide Insurance Corporation
    (3866)
    Dupont, C. J., Borden and Spallone, Js.
    Argued February 5 —
    decision released April 15, 1986

      M. Frances Reese, with whom, on the brief, was James M. S. Ullman, for the appellant (defendant).

      Lawrence J. Kendzior, for the appellee (plaintiff).
   Borden, J.

The defendant appeals from the judgment of the trial court rendered upon a finding of facts filed by a factfinder pursuant to Practice Book § 546G. The dispositive issue involves the effect of the failure of the defendant to file an objection to the acceptance of the finding of facts pursuant to Practice Book § 546H. We find no error.

The plaintiff, an insurance underwriter, sued the defendant, an insurance broker, for unpaid insurance premiums pursuant to an implied agreement. The case was referred to a factfinder pursuant to Practice Book § 546D. Compare Ruhl v. Fairfield, 5 Conn. App. 104, 496 A.2d 994 (1985) (referral to attorney trial referee). The factfinder filed his finding of facts, resolving the factual issues in favor of the plaintiff and awarding damages to it. The defendant did not file an objection to the finding of facts. The court rendered judgment on that finding, from which the defendant appeals.

The sole claims raised by the defendant on appeal can be reduced to the argument that the factfinder erred in relying on evidence offered by the plaintiff regarding a certain custom and usage of the insurance industry. It is clear that these claims attack the propriety of the finding of facts on the ground of evidentiary insufficiency.

Practice Book § 546H provides as follows: “A party may file objections to the acceptance of a finding of facts on the ground that conclusions of facts stated in it were not properly reached on the basis of the subordinate facts found, or that the factfinder erred in rulings on evidence or in other rulings, or that there are other reasons why the finding of facts should not be accepted. Objections must be filed within fourteen days after the filing of the finding of facts.”

Practice Book § 546J provides in pertinent part that “jajfter review of the finding of facts and hearing on any objections thereto, the court may” take any of six actions, including “rendering] judgment in accordance with the finding of facts . . . . ”

Reading these two provisions together, we conclude that where a party seeks to avoid a judgment to be rendered pursuant to a factfinder’s finding of facts on the ground that the evidence upon which those facts found is insufficient, he must timely file a written objection pursuant to Practice Book § 546H. Absent such a timely objection, the court is warranted in rendering judgment on the finding of facts. The purpose of Practice Book § 546H is to provide the adverse party and the court with adequate advance notice of the basis of the objection to the finding, so that an informed decision may be made. To permit a party to challenge the factual underpinning of a finding of facts after a judgment has been rendered, where that party has not first objected to the finding, would render Practice Book § 546H precatory and would undercut its purpose. Because the defendant in this case filed no such written objection, the court was fully justified in rendering judgment on the finding of facts.

We do not suggest, however, that the absence of a timely written objection to the finding of facts compels a court to render judgment thereon. Since the act of rendering judgment is that of the court, and not that of the factfinder, the court is free, upon “review of the finding of facts”; Practice Book § 546J; to take any of the other five actions listed in that section which it deems appropriate, where there is a clear indication in the record before it that judgment is inappropriate. We hold only that, in the absence of any clear indication to the contrary in the record, when no timely written objection has been filed pursuant to Practice Book § 546H, the trial court’s decision to render judgment will not be disturbed. There is no such clear indication in this record.

There is no error.

In this opinion the other judges concurred.


text:
    State of Connecticut v. Christopher Taft
    (3468)
    Hull, Spallone and Bieluch, Js.
    Argued April 3 —
    decision released April 22, 1986

      John R. Williams, with whom, on the brief, was Bruce A. Sturman, public defender, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, was Mary Galvin, assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Joyce Ann Douglas v. Lynn Earl Douglas
    (4162)
    Dupont, C. J., Hull and Borden, Js.
    Submitted on briefs March 27 —
    decision released April 22, 1986

      Nicholas L. Marien filed a brief for the appellant (defendant).

      Neil F. Murphy, Jr., filed a brief for the appellee (plaintiff).
   Per Curiam.

The defendant husband in this dissolution case appeals from the judgment of the trial court assigning his interest in the family dwelling to the plaintiff wife and awarding her $40 per week alimony for life or until her remarriage. He particularly stresses his claim that the trial court failed to consider the financial contributions he made toward the purchase and repair of that house. According to the defendant, the court’s omission violated the clear mandates of General Statutes § 46b-81 (c), which requires the court, when assigning real estate pursuant to a dissolution, to consider “the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

The defendant’s argument is unavailing. While the defendant asserts strenuously that he contributed approximately $20,000 to repair the house, and that the trial court erred by not considering this amount when making its award, the trial court never found that the defendant made such a contribution. Nor did the defendant make a motion requesting that the trial court articulate its decision to include such a finding. Accordingly, he has not met his burden of providing a record adequate to show that the trial court erred. Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983).

We note that even if we were to credit fully the defendant’s claims, we would not disturb the trial court’s decision. Given the trial court’s findings that the plaintiff inherited a 50 percent interest in the house, that she made only about 50 percent of the amount the defendant earned, and that her ability to acquire capital assets in the future was less than that of the defendant, we could not say that the court acted unreasonably in concluding as it did. Basile v. Basile, 185 Conn. 141, 144, 440 A.2d 876 (1981).

After a careful examination of the record and of the court’s factual findings, we conclude that the trial court’s division of the property was well within the necessarily broad discretion it enjoys in such a case. Barnes v. Barnes, 190 Conn. 491, 495, 460 A.2d 1302 (1983); Bratz v. Bratz, 4 Conn. App. 504, 507, 495 A.2d 292 (1985); Vaiuso v. Vaiuso, 2 Conn. App. 141, 147, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984).

There is no error.


text:
    Maretz-Franford, Inc. v. Arnold Kramer et al.
    (3674)
    Dupont, C. J., Borden and Bieluch, Js.

      Argued January 8 —
    decision released April 22, 1986

      William F. Gallagher, with whom, on the brief, was Robert P. Borquez, for the appellants (defendants).

      Richard L. Goldblatt, for the appellee (plaintiff).
   Bieluch, J.

The plaintiff sued the defendants, Arnold Kramer and Cheryl Kramer, seeking to recover a broker’s commission for the sale of the defendants’ commercial real estate under an exclusive listing agreement. Judgment was rendered for the plaintiff in the amount of $50,000. The defendants have appealed from that judgment claiming that the court erred: (1) in holding that the real estate listing agreement sued upon by the plaintiff complied with General Statutes § 20-325a (b); (2) in holding that the real estate listing agreement was severable, and as severable, complied with § 20-325a (b); (3) in refusing to hold that the sale of the restaurant business together with the real estate was a condition precedent in the listing agreement, and that, since the plaintiff failed to sell the business with the realty, the agreement was unenforceable; and (4) in rendering judgment for the plaintiff when the same was clearly contrary to the evidence presented at trial.

The trial court found the following relevant facts. The named defendant owned all of the capital stock of Adakram, Inc., which owned a restaurant business, known as the Sanford Barn, located at 135-136 Sanford Street, Hamden, on real estate owned by the two defendants jointly. In 1977, the defendants executed an exclusive listing agreement with the plaintiff through its agent, Steven Press, a close personal friend of the Kramers, for the sale, lease or exchange of the realty and business. The agreement was renewed several times, the last renewal occurring on September 22, 1980. During the term of the various listing agreements, the property was widely advertised for sale by the plaintiff, and Press produced over the years many prospective purchasers to whom he showed the premises and business.

The listing agreement of September 22,1980, upon which this action is based, purported to be between Arnold Kramer, Cheryl Kramer and Adakram, Inc., as owners, and the plaintiff, as agent. It was executed on behalf of the real estate owners only by Arnold Kramer and Cheryl Kramer individually. The agreement was not signed by or on behalf of Adakram, Inc., and the corporation is not a defendant in this action. Titled “Standard Multiple Listing Agreement — Exclusive Right To Sell,” the agreement appointed the plaintiff as exclusive agent and granted it the “sole and exclusive right to SELL/LE ASE/EXCHANGE the property and business known as Sanford Barn — business, furniture, fixtures, equipment & real estate at 135-136 Sanford St., Hamden, Ct.” for a period of six months terminating on March 22,1981. The owners authorized the agent “to quote” a sale price of $950,000 plus food and liquor inventory. Paragraph seven of the agreement stipulated that “whenever during the term of this agreement said property shall have been SOLD/ LEASED/EXCHANGED or a customer procured, ready, able and willing to BUY/LE ASE/EXCHANGE the property for the price [of $950,000], or for any other price or upon such terms as may be agreed to by the OWNER[S], the OWNER[S] will pay the AGENT a commission of ten percent (10%).” Also relevant here is paragraph three, which provided that the owners agreed “to refer to AGENT all inquiries about, or offers for, the property.”

In late January or early February, 1981, while the plaintiffs exclusive listing agreement was in effect, the defendants were introduced to Demetrius Traggis as a prospective purchaser by another broker named Diane Massato. This introduction took place at the restaurant on the subject property. As a result of the meeting, Traggis agreed, in February, 1981, to purchase the real property for $500,000 and the business for $100,000. This was done surreptitiously without the knowledge of the plaintiff, notwithstanding the defendant’s undertaking in their listing agreement to refer to the plaintiff all inquiries about, or offers for, the property. Subsequently, on May 15, 1981, less than eight weeks after the expiration of the plaintiffs exclusive listing agreement, the purchase of the real estate by Traggis was concluded for the price of $500,000. Contemporaneously with the transfer closing, the defendants and Traggis executed a buy-and-sell agreement which purported to document, for the first time, the terms and conditions of the real estate sale and to put the sale beyond the reach of the plaintiff’s exclusive listing agreement, although the defendants and their attorney were in constant communication with Traggis from February through the date of the closing. There were continued and unbroken negotiations between Traggis and the defendants over these three months, but neither the defendants nor their attorney referred the buyer to, or notified, the plaintiff. At the time of the real estate agreement, the corporation also contracted to sell the restaurant business of Adakram, Inc., to Traggis for $100,000. These two sale agreements confirmed in writing the oral agreements reached by the defendants and Traggis earlier in February. The sale of the business was never completed under this agreement, however, because Adakram, Inc., filed for bankruptcy under Chapter XI of the Federal Bankruptcy Act. It then ceased doing business and its assets were later sold at auction by the trustee in bankruptcy.

As a result of the defendants’ refusal to pay a commission on the sale of the real estate, the plaintiff brought the present action. After trial, the court reached the following conclusions: That the listing agreement met the statutory requirements of General Statutes § 20-235a (b) and granted the plaintiff the exclusive right to sell the real estate for six months from September 22,1980, for a commission of 10 percent of the gross selling price; that the defendants sold the real estate on or before May 28, 1981, for a gross sale price of $500,000; that the sale was made to a buyer after the purchaser had entered into negotiation for the purchase during the term of the exclusive listing agreement which made the plaintiff “the only medium through which a purchaser can be procured during its life”; that the purchaser was ready, willing and able to purchase the property on terms and conditions which were acceptable, and were in fact ultimately accepted, by the defendants, during the life of the exclusive listing agreement; that the plaintiff was clearly entitled to its commission whether the purchase agreement at the time was specifically enforceable or not; that the defendants breached their listing agreement with the plaintiff; and that the listing agreement was severable regarding the real estate, since the clear intention of the defendants was to sell their real estate without regard to whether the corporation sold its restaurant business.

The defendants’ first two claims of error relate to the trial court’s conclusion that the listing agreement signed by the parties satisfied the requirements of General Statutes § 20-325a (b). They first argue that since Adakram was not a signatory to the agreement and since its corporate address was not contained therein, the agreement violated § 20-325a (b). This argument presupposes, however, that Adakram was, in fact, a necessary party to the listing agreement for the sale of the real estate. The trial court correctly found that Adakram was not an owner of the real estate and that the defendants “were the only ones required by law to have signed the Listing Agreement as a condition of suit, and that Adakram, Inc., did not sign an agreement is irrelevant to these defendants.”

The court reasoned that the claim involved a commission for the sale of real estate and the listing agreement was complete as to the parties involved in that sale. Any other claimed deficiency as to matters outside the sale of the real estate and this suit related to surplusage contained in the listing agreement, the presence of which did not violate the letter or the intent of § 20-325a (b). The statute sets forth minimum requirements, but does not prohibit the inclusion of any other matters or writing in a legal agreement. Adakram, Inc., was not an owner of the real estate sold. Contracts for the payment of a commission on the sale of personal property are not governed by General Statutes, chapter 392, “Real Estate Brokers and Salesmen,” §§ 20-311 through 20-329bb.

The defendants also claim that the court erred in finding that the listing agreement for the sale of the real estate was severable from the agreement regarding the sale of the business. This claim is based on the defendants’ argument that the parties did not intend to create a severable agreement. To support their position they refer to the subject of the listing agreement, “the property and business known as Sanford Barn,” and the authorization to the agent to quote a combined “price of $950,000.”

The trial court found otherwise, citing law and fact. On the issue of intent, the court stated: “The determination of the parties’ intention includes a question of the intention of the parties and fair inferences of fact. John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 78 [480 A.2d 499 (1984)].” Epina Realty was an action to recover commissions in connection with the sale or lease of certain real estate and with the sale of a restaurant business, the realty and personalty having been under separate ownership. The case is relevant to the present issue and we quote further from it: “The intention of the parties to a contract is to be determined by a fair and reasonable construction of the language used interpreted in light of the situation of the parties, the circumstances connected with the transaction, the motives of the parties and the purposes which they sought to accomplish. . . . In the context of this case, the determination of what the parties intended in their listing agreements ‘is a question of the intention of the parties, and an inference of fact. As an inference of fact, it is not reversible unless the trial court could not reasonably have arrived at the conclusion it reached.’ ” (Citations omitted.) Id., 77-78.

The trial court here concluded that “[t]he clear intention of the defendants in the present case, was to sell their real estate without regard to whether or not the corporation sold the business.” This conclusion was based on the following facts found by the court: As the owners of the real estate, the defendants held a separate interest from that of the corporation which owned the personal property. The defendants had obtained an appraisal of the value of their real estate separate and apart from that of the restaurant. The real estate was financed separately from the business. Only one of the defendants owned stock in the restaurant corporation. Under paragraph seven of the listing agreement, the defendants specifically reserved for themselves, the conditional right to sell their property “for any other price or upon such terms as may be agreed to by [them, provided they] will pay the AGENT a commission of ten percent (10%).” There was no provision in the listing agreement excluding the obligation to pay a commission in the event that the defendants agreed to sell the real estate and the corporation did not agree to sell the restaurant. As the trial court observed, “[t]o the contrary, their agreement is unequivocal to pay a commission upon any sale on terms agreeable to them and upon that occurrence their obligation to pay a commission is clear.” The defendants reserved a right to act independently of the restaurant corporation, and did so act, and thereby “should not be allowed to escape their obligation to pay the commission.”

At trial and on appeal, the defendants cite Cone v. Pederson, 131 Conn. 374, 40 A.2d 274 (1944), in support of their claim that the listing agreement for the sale of the real estate and the restaurant was inseparable. In Cone, the defendant, on April 7,1943, gave the plaintiff an exclusive listing and the sole and exclusive right to sell his farm for $48,000, including stock and tools, “for the period of 60 days from this date, and thereafter until notified by me in writing.” Id., 376. The defendant’s farm consisted of 182 acres and his homestead. On July 19,1943, the defendant privately sold forty acres of these premises, with the buildings thereon. This sale was consummated a week later. A letter purporting to cancel the exclusive listing was mailed to the plaintiff on July 22, 1943, but was received two days after the completion of the transfer. No mention of the sale was ever made by the defendant to the plaintiff. Subsequently, suit was brought for a commission, the claim was disallowed, and the Supreme Court affirmed, stating briefly: “The agreement of the parties not only contains no provision for compensation to the plaintiff for the sale of other than the farm but by its context, including the statement, ‘Price $48,000.00,’ and repeated reference to ‘said real estate,’ makes clear that it is an entire and not a severable contract.” Id., 379-80.

The trial court here distinguished Cone for the reasons that the listing agreement in that case contained no provision for a sale of less than the defendant’s entire farm, and the defendant was the individual owner of all of the real estate and the business, consisting only of stock and tools, offered for sale. On the other hand, the defendants here were the owners of the real property only, which they sold independently of the personalty. The restaurant business was owned separately by Adakram, Inc., and was operated wholly and independently as a separate entity. Adakram’s subsequent bankruptcy had no effect on the defendants’ ownership of the real estate or its sale. When Adakram, Inc., first filed for bankruptcy protection under Chapter XI of the Federal Bankruptcy Act in February of 1981, the defendants did not withdraw their real property from the market, nor did they attempt to cancel their listing agreement. To the contrary, they allowed the plaintiff, with their knowledge, thereafter to continue in its active efforts to sell the real estate.

The monetary consideration in the listing agreement under review is the commission payable to the plaintiff, and it is apportionable as to the sale of the real estate by the defendants because that sale is severable from the corporate sale of the restaurant. The claim of nonseverability of the real estate listing agreement constitutes an attempt to retry the facts, which we will not do. Practice Book § 3060D.

The defendants’ third claim is that the court erred in failing to find that the sale of the business together with the real estate was a condition precedent to the plaintiff’s right to a commission. In support of this claim of error, the defendants cite here, as they did in the trial court, the case of Lach v. Cahill, 138 Conn. 418, 85 A.2d 481 (1951). That case does not support the defendant’s position. Lack was a suit for the return of a deposit on a house given under a purchase agreement “ ‘contingent upon buyer being able to obtain mortgage in the sum of $12,000.00 ....’” Id. The buyer was unable to secure such financing. The principal issue there was whether the ability of the buyer to secure such a mortgage was a condition precedent to the purchase of the home. In affirming the refund, the Supreme Court held: “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. . . . Whether a provision in a contract is a condition the non-fulfillment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract.” Id., 421. The trial court in this case found that the defendants failed to support their position with meaningful facts. It also found that the terms of the listing agreement controlled, and there was no provision in that listing for payment of a commission only in the event of a sale of both the corporate business and the real estate.

In their brief, the defendants claim that the listing agreement demonstrates “an intention to make the sale of both the real estate and the business a condition precedent to the owners’ duty to pay a commission.” To support this alleged expression of intent they note (1) that “the language in the contract linked the words ‘property’ and ‘business’ together,” (2) that the quoted sale price of both properties was combined into one figure, and (3) that only one commission was to be paid. We respond to these contentions by holding that the listing agreement clearly shows, as the trial court concluded, that there was no intention that the sale of both the real estate and the business jointly was a “condition precedent to the plaintiff’s entitlement to a commission.”

Finally, the defendants argue that the trial court’s decision was contrary to the evidence presented at trial. After carefully reviewing the record, we disagree with this claim of error.

There is no error.

In this opinion the other judges concurrred.

       Two additional issues raised in the defendants’ preliminary statement of issues were not briefed and are therefore considered abandoned. Fullerton v. McGowan, 6 Conn. App. 624, 625 n.1, 507 A.2d 473 (1986).

       Such an open ended exclusive listing provision is now outlawed. General Statutes § 20-320 (6) provides for the suspension or revocation of the license of a real estate broker or real estate salesman for “entering into an exclusive listing contract which contains a fixed termination date if such contract also provides for an automatic continuation of the period of such listing beyond such date.”