author: FREEDMAN, J. DUPONT, C. J.,

text:
    STATE OF CONNECTICUT v. RAFAEL DELGADO
    (14296)
    Dupont, C. J., and Lavery and Freedman, Js.

      Argued January 11
    decision released July 30, 1996

      Francis J. DiScala and Fra,neis J. DiScala, Jr., with whom, on the brief, was John Thygerson, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   FREEDMAN, J.

The defendant appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) allowed joinder of the manslaughter and risk of injury counts, (2) excluded the testimony of a defense expert witness due to an alleged violation of a sequestration order, (3) admitted evidence of prior injuries to the victim, and (4) allowed into evidence a videotape of the victim and her mother, a codefendant. The defendant also argues that the verdict was against the weight of the evidence and that the court’s charge to the jury was misleading and confusing, resulting in the dilution of the state’s burden of proof. We conclude that the evidence was sufficient to establish the defendant’s guilt of the crimes charged. We agree, however, with the defendant with regard to the joinder of the manslaughter and risk of injury counts. Accordingly, we reverse the judgment and remand the case for a new trial.

The jury reasonably could have found the following facts. The victim was a sixteen month old baby with Down’s Syndrome who, at the time of her death on December 14, 1992, resided with her mother, Devilyn Bruno, and her mother’s boyfriend, the defendant Rafael Delgado, in an apartment in Bridgeport. In the spring of 1992, the victim was taken by her aunt to live with her grandmother in Florida. The victim was returned to Connecticut in September or October of 1992. After the victim’s return to Connecticut, the defendant inquired of the aunt when she was taking the victim back to Florida.

On November 16, 1992, the victim was seen at the St. Joseph’s Family Medical Center in Stamford for her fifteen month checkup. The nurse on duty noticed that the victim had three bruises on her face, one on each temple area and one on the right cheek. When the nurse questioned Bruno about the bruises, Bruno responded that the victim had sustained the bruises when she fell out of a bouncing chair approximately three or four days earlier.

On the same day, Tammy Vargas, a family practice physician at St. Joseph’s Family Medical Center, examined the victim. Vargas had previously examined the victim in April, 1992, at which time she did not notice any bruises on the victim or problems with the victim’s arms or legs. During the examination on November 16, 1992, which was videotaped, Vargas noticed some bruises on the victim’s forehead and ordered blood work to rule out any bleeding abnormality. Bruno told Vargas that all of the victim’s bruises were caused when the victim fell off of a bouncing chair. Bruno also told Vargas that the victim sometimes put her fingers in her nose causing nosebleeds. Vargas found no indication that the victim tended to bang her head or had a sleep disorder, and no indication that the victim had a broken right leg. Vargas had a “slight suspicion” of child abuse.

On December 8,1992, Bruno had a conversation with Vargas in which she indicated that the victim had a swelling in her thigh. Bruno told Vargas that she thought the swelling was on the same side where the victim had received a shot. Vargas could not recall on what part of the body the shots were given, but according to the medical records, the victim did receive shots on November 16, 1992. Since Vargas did not see the victim after November 16, 1992, she did not know the cause of the swelling.

Regina Featherston, a nutritionist for Women, Infants and Children (WIC), a federally funded nutrition program for children and pregnant women, first saw the victim on February 26, 1992. On that date, Featherston did not notice any bruises on the victim and the victim allowed Featherston to pick her up and to hold her. Featherston next saw the victim on November 17,1992. At that time, Featherston noticed bruises around the victim’s forehead and on her cheeks. She also noticed a pattern of tiny cuts around the victim’s eyes and black and blue marks on both sides of the victim’s chin. Featherston asked Bruno about the victim’s injuries and Bruno told her that the victim had fallen out of a rocking chair. When Featherston attempted to pick the victim up, the victim screamed and tried to get away from her. The victim had the same reaction when Bruno went to pick her up. Bruno explained to Featherston that the victim had behaved like that since she received shots at the hospital the day before.

Because Featherston suspected that something was wrong, she asked Bruno when the victim had last seen a physician. Bruno told Featherston that the victim had seen Vargas the day before, November 16, 1992. After Bruno and the victim left her office, Featherston called Vargas and made notes to herself of the visit with the victim because she was “very suspicious of what happened to her.”

Pauline Barnes and her husband Benjamin Barnes lived in an apartment in Bridgeport below an apartment occupied by a Spanish man, a Caucasian woman and a baby. In the early morning hours of December 14,1992, they were asleep in their apartment when they were awakened by heavy footsteps in the apartment upstairs. Pauline Barnes recognized the footsteps as belonging to the man upstairs and remembered hearing a loud noise that “sounded like someone fell on the floor hard” or like “someone was being thrown to the floor.” After approximately ten minutes, she saw the defendant and the woman leave.

At approximately 4 a.m. on December 14,1992, Benjamin Barnes was awakened by “real heavy walking” followed by a loud noise that shook the whole house. He then heard footsteps going downstairs and out the front door. Ten minutes later, Benjamin Barnes heard the front door open and footsteps going upstairs. Shortly thereafter, he heard “the[m] come right back to the same spot that [he] hear[d] the noise before and . . . then they tum[ed] around and [went] back outside.”

At approximately 4 a.m. on December 14, 1992, Michael Fusaro, an emergency medical technician for the Bridgeport Ambulance Service, was driving an ambulance in Bridgeport with his partner, John Corris, when they were stopped by a man and a woman holding a baby, the victim. Fusaro called the dispatcher to let them know what was going on and then proceeded to assist Corris, who had initiated care to the victim. They then transported the victim to the hospital. The woman sat in the front seat of the ambulance and explained that they had decided to run to the hospital, which was only two or three blocks away, because the victim was crying and having trouble breathing.

Corris knew the condition of the victim was poor because of her limp state and because her face was blue, indicating that the victim was not breathing. After removing the victim’s snowsuit, Corris noticed that the victim had no pulse. Corris also noticed that “the eyes were . . . discolored like bruises around the orbits of the eyes,” which he called a “clinical sign of injury,” usually indicative of head trauma. Corris put a tube into the victim’s lungs, put her on a heart monitor, and gave her some medication. They also performed CPE on the victim. The victim was placed on a board for the drive to the hospital.

The victim was treated in the emergency room of Bridgeport Hospital by Deborah Spaight, a pediatric resident. Spaight noticed that the victim was not breathing on her own and was not moving. Spaight also noticed that the victim had some bruising over both eyes, her cheek, the left side of her neck and on her chest. Spaight saw a cut that appeared to be healing on the left part of the victim’s upper lip. In Spaight’s opinion, the bruises were more than twelve hours old. A physical examination revealed that the victim had some bleeding behind the eyes, which is usually associated with a severe head injury. The victim had a CAT scan of her head which showed evidence of a skull fracture with associated bleeding inside her brain. The victim was removed from life support at 5 p.m. on December 14, 1992, and died shortly thereafter.

As a result of her examination of the victim, Spaight filed a report of suspected child abuse with the state department of social services. She did this on the basis of the severity of the head injury, the evidence of old bruises and the fact that the story from Bruno did not appear to be consistent with the victim’s injuries. In Spaight’s opinion, the defendant’s statement also was inconsistent with the victim’s injuries and the cause of the victim’s death, which was cardiopulmonary arrest caused by the head injury. A post mortem X ray of the victim taken by Maika Shah revealed a healing fracture of the victim’s right upper leg that would have been caused by a “tremendous amount of force.” In Shah’s opinion, the fracture was a minimum of two weeks old, and probably occurred after the victim’s videotaped examination on November 16, 1992.

The defendant testified that the victim slept on a mattress in the kitchen, that there were stuffed animals around the mattress to prevent the victim from hitting the wall, and that the victim would often roll off the mattress during the night and lie on the floor. According to the defendant, the victim had the habit of banging her head on the floor. The defendant testified that when the victim returned from the hospital after receiving shots on November 16, she would not let anybody touch her. This behavior lasted for approximately a week and a half. He also testified that the victim’s leg had been very swollen.

With regard to the victim’s death in the early morning hours of December 14, 1992, the defendant testified as follows. He stayed up until approximately 2 a.m. watching television in his bedroom. Between 3:30 and 4 a.m., the defendant was awakened by the victim’s crying, and he went to the kitchen and saw the victim lying on the floor. He gave her a pacifier and a toy and then went back to the bedroom. About five minutes later, the victim started crying again, and when the defendant went back to the kitchen, he saw the victim lying on her back and thought that she was choking on something. He dropped to his knees, grabbed the back of the victim’s neck, squeezed her cheeks and attempted to perform mouth-to-mouth resuscitation. He then put the victim under cold water in the sink. When he realized that none of his efforts were working, he woke up Bruno, and together they tried to revive the victim. Eventually, they got dressed and started running to the hospital. En route, they flagged down an ambulance, which then took Bruno and the victim to the hospital. The defendant testified that he was not aware, when the victim went to the hospital, that she had a head injury.

I

The defendant first argues that the verdict was against the weight of the evidence. Specifically, the defendant argues that the state presented no evidence indicating that the defendant ever harmed the victim. We conclude, however, that the evidence was sufficient for the jury to have concluded that the defendant was guilty of both the manslaughter and risk of injury counts.

“We employ a two part analysis when reviewing sufficiency of the evidence claims. First, we construe the evidence in a light most favorable to sustaining the verdict. Next, we determine whether, from the evidence and all the reasonable inferences which it engenders, a jury could rationally have concluded that the defendant was guilty beyond a reasonable doubt. ... In this process of review, the probative force of the evidence is not diminished by the fact that the evidence may be circumstantial rather than direct.” (Citation omitted.) State v. Cruz, 40 Conn. App. 515, 519, 672 A.2d 502, cert. denied, 237 Conn. 909, 675 A.2d 457 (1996). “In viewing evidence that could yield contrary inferences, the fact finder is not required to draw only those inferences consistent with innocence, but may draw whatever inferences from the evidence it deems to be reasonable and logical.” State v. Bruno, 236 Conn. 514, 539, 673 A.2d 1117 (1996).

With regard to the manslaughter count, the jury was presented with conflicting evidence regarding the cause of the victim’s death. The defendant presented medical testimony to support the theory that while the victim was sleeping on her mattress, she suffered a seizure, causing her to fall onto the kitchen floor and repeatedly strike her head, resulting in the skull fracture on the night in question. The state disputed this theory at trial. Kieve Berkwits, board certified in pediatrics and pediatric cardiology, testified that he examined the victim approximately two hours after she was brought to the emergency room of Bridgeport Hospital. In his opinion, even assuming that the victim had fallen off the mattress and had a seizure, that would not have caused the injuries sustained by the victim because “the severity of the trauma to the head would be more than would be inflicted even by the child thrashing on the floor.”

The state presented medical testimony to establish that the victim died as a result of a skull fracture caused by a fall from height of fifteen or twenty feet, or a “significant degree of blunt force that maybe consistent with either falling from a significant height . . . striking a wall or a hard floor with significant force.” The medical testimony presented by the state is consistent with the testimony of the defendant’s downstairs neighbors, who were awakened by a loud noise that shook the house. The defendant testified that only he initially attended to the victim on the night in question, and that the victim’s mother did not participate until he woke her up and told her that something was wrong. Finally, the jury heard the testimony of Michele Bruno, the victim’s aunt, indicating a possible motive for the crime. Michele Bruno testified that after the victim returned to Connecticut from Florida in September or October of 1992, the defendant would ask her when she was coming to get the victim. Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded that the defendant was guilty of manslaughter beyond a reasonable doubt.

With regard to the risk of injury count, the defendant was charged under General Statutes § 53-21, which provides that “[a]ny person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired” shall be punished. This statute proscribes “deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . .” (Citations omitted; internal quotation marks omitted.) State v. George, 37 Conn. App. 388, 391, 656 A.2d 232 (1995). The jury in the present case heard testimony indicating that the victim lived in the same apartment as the defendant during the period of time that she sustained various injuries to her body, including a fractured leg. The evidence was sufficient for the jury to conclude that the defendant permitted and acquiesced in the living arrangements, which created a situation in which the victim’s health was likely to be impaired. We conclude, therefore, that the evidence was sufficient for the jury to have concluded that the defendant was guilty of risk of injury to a child beyond a reasonable doubt.

II

The defendant next argues that the trial court abused its discretion in allowing joinder of the risk of injury and manslaughter counts. He argues that such joinder resulted in substantial prejudice and violated his right to a fair trial. We agree.

The information in this case charged that the defendant, on December 14,1992, committed manslaughter in the first degree. The information further charged that the defendant committed risk of injury to a child by wilfully and unlawfully causing and permitting the victim to be placed in a situation in which her health was likely to be impaired. The date specified for the risk of injury count was “approximately November 1, 1992, to December 14, 1992.” Prior to the commencement of jury selection, the trial court heard argument on the defendant’s motion to sever the manslaughter and risk of injury counts. The trial court denied the motion. According to the defendant, the evidence presented by the state on the manslaughter count was bolstered and shored up by the risk of injury count, thereby resulting in substantial prejudice to the defendant.

“In a joint trial ... an omnipresent risk is that ‘although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all.’ United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622, 59 S. Ct. 793, 83 L. Ed. 1500 (1939).” State v. Boscarino, 204 Conn. 714, 721-22, 529 A.2d 1260 (1987). Our Supreme Court has stated “that severance may be necessary to prevent undue prejudice resulting from consolidation of two or more charges for trial when: (1) the cases do not involve discrete, easily distinguishable factual scenarios; (2) one or more of the counts alleges brutal or shocking conduct by the accused; or (3) the trial is one of long duration or very complex. State v. Boscarino, supra, 722-24 .... Whether to grant a severance, however, is a decision committed to the sound discretion of the trial court, the exercise of which will not be disturbed on appeal absent manifest abuse. . . . Finally, ‘[i]t is the defendant’s burden on appeal to show that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.’ . . . State v. Boscarino, supra, 721.” (Citations omitted.) State v. Chance, 236 Conn. 31, 42, 671 A.2d 323 (1996).

“Substantial prejudice does not necessarily result from a denial of severance even where evidence of one offense would not have been admissible at a separate trial involving the second offense. A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly.” (Internal quotation marks omitted.)States v. Jones, 37 Conn. App. 437, 446, 656 A.2d 696, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995).

In the present case, we initially conclude that the two counts do not involve discrete, easily distinguishable factual scenarios. In addition, the evidence relating to the risk of injury count and the manslaughter count was presented at the same time and culminated with the evidence of the death of the victim on December 14, 1992. Although the risk of injury count charged that the defendant acquiesced in the physical abuse of the victim not inflicted by the defendant, and the manslaughter count charged that the defendant caused the victim’s death, both counts involve allegations of physical abuse inflicted on the victim over a continuous period of time.*

We further agree with the defendant that the evidence presented against him on the manslaughter count consisted primarily of the noises heard by the defendant’s downstairs neighbors, and the testimony of Bruno’s sister that the defendant wanted her to “come and get the baby.” There was also conflicting evidence from medical experts as to what caused the victim’s injuries. Considering the nature of this evidence, and the evidence admitted on the risk of injury count that the victim had suffered physical abuse in the autumn of 1992, the defendant was exposed to the potential prejudice that the jury would decide, cumulatively, that the defendant was predisposed to commit violence upon the victim.

With regard to the second Boscarino factor, we conclude that the manslaughter count alleged “brutal or shocking conduct by the accused.” As stated previously, the state alleged on the manslaughter count that the victim suffered her fatal injuries by a severe degree of blunt force, consistent with either falling from a significant height or striking a wall or hard floor with significant force. Such abuse perpetrated on a sixteen month old child afflicted with Down’s Syndrome certainly falls within the category of “brutal or shocking conduct by the accused.”

“Having established the scope and extent of the prejudice to which the defendant was exposed, we must next determine whether the jury instruction at the conclusion of trial was adequate to mitigate that prejudice.” State v. Horne, 215 Conn. 538, 551, 577 A.2d 694 (1990). In State v. Horne, 19 Conn. App. 111, 562 A.2d 43 (1989), rev’d, 215 Conn. 538, 577 A.2d 694 (1990), we recognized the potential prejudice involved in the consolidation of four cases for trial, yet we affirmed the trial court’s consolidation of the cases on the ground that the trial court’s jury instruction cured the potential prejudice. We stated in that case that “[t]he court’s instructions were particularly thorough and extensive. The court referred to the ‘four separate and distinct alleged incidents or transactions,’ and repeatedly instructed the jury that it must consider each incident separately from the others, stressing that to do so was of the ‘utmost importance,’ and ‘most important.’ The court further cautioned the jury that it ‘must not mix the evidence of one incident with the evidence of another,’ and that its judgment on one must not affect its judgment on another. The court emphasized that the cases were consolidated by the court for ‘judicial efficiency and nothing more,’ and that the jury must not draw any inference from the consolidation. Further, the court directly addressed the ‘natural tendency to conclude that a person must be guilty of one or more of the consolidated matters because there are so many,’ and warned that ‘[i]f you think this way you have merged the offenses and have [fallen] prey to exactly what you must not do.’ The court instructed the jury that the state’s case ‘is only as good as the evidence which underlies each specific and singular incident,’ and that to judge the cases ‘without analyzing each incident separately is not in accord with our system of government.’

“Later in its charge, the court reminded the jury that although the same law of robbery applied to each of the incidents, ‘you must apply it separately in each of the four incidents and not . . . run them together because we have tried them together.’ Finally, at the end of its instructions the court reminded the juiy ‘to treat [each] incident separately,’ and to put the state to its burden of proof separately on each incident.” Id., 121-23. After granting certification, our Supreme Court held, however, that the charge did not mitigate the prejudice and reversed our decision. State v. Horne, supra, 215 Conn. 545-46.

The jury charge in the present case falls far short of the charge that was deemed inadequate in Home. Prior to commencing voir dire, the trial court stated that “[e]ach count is a separate crime and must be proved by the state individually beyond a reasonable doubt” and “there are three separate charges against this defendant in this information.” At the commencement of its final charge, the trial court briefly instructed that “[e]ach count is a separate crime and you must consider them separately in your deliberations.” The only other reference in the final charge to the separate counts was when the court later reiterated that “each and every count is a charge of a separate crime and must be proved individually and separately beyond a reasonable doubt.” Finally, the trial court instructed that the jury’s verdict “must be unanimous on each count.” We conclude that the trial court’s brief charge to keep the counts separate from one another was not sufficient to overcome the prejudice caused by the j oinder of the risk of injury and manslaughter counts. “The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds. . . .” (Citations omitted; internal quotation marks omitted.) Id., 553. This is especially true in the present case where the essence of the risk of injury charge related to acts committed by another in which the defendant allegedly acquiesced, not in acts committed by the defendant himself.

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

In this opinion LAVERY, J., concurred.

DUPONT, C. J.,

dissenting. I disagree with the majority’s conclusion that the trial court abused its discretion in allowing the risk of injury and manslaughter counts to be tried together and that such joinder resulted in substantial prejudice and violated the defendant’s right to a fair trial. I conclude, for a number of reasons, that the trial court did not abuse its discretion in denying the defendant’s motion to sever.

The leading case of State v. Chance, 236 Conn. 31, 671 A.2d 323 (1996), reiterates the teachings of State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987). The factors discussed in Boscarino to determine whether severance of charges should be had are whether the charges involve distinguishable, discrete events, whether at least one of the counts involves brutal or shocking conduct whereas other counts do not, and whether the trial is of long duration or complex. Id., 722-23. In this case, the information for the manslaughter charge alleged that the crime occurred on December 14, 1992, whereas the dates of the risk of injury charge were November 1 to December 14, 1992. The manslaughter and risk of injury were discrete crimes, with different dates and injuries. Both crimes are shocking and evidence as to one was not likely to inflame the jury to find guilt of the other. Furthermore, the trial was not complex or lengthy.

It can never be certain before an actual attempt to introduce evidence is made and, in the event of an objection, the ruling thereon, whether particular evidence will be admissible. Here, however, it is likely that some of the injuries relating to the risk of injury charge, would likely be admissible in the manslaughter case, had that charge been tried separately. Proof of prior crimes or proof of conduct is admissible if it is relevant to some other issue material to the case, such as intent, opportunity, state of mind, common scheme or is relevant to the absence of mistake or accident. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.3.2. Such evidence is admissible whether the crimes or conduct resulted in an arrest or a conviction. Id. Thus, the defendant’s right to have a jury independently consider the evidence of each crime was not significantly impaired due to the fact that the cases were tried together.

There is a clear presumption in favor of the consolidation of charges and against severance. State v. Chance, supra, 236 Conn. 38. Many cases involve joinder of charges of both risk of injury and manslaughter or murder. See State v. DeJesus, 236 Conn. 189, 672 A.2d 488 (1996); State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State v. Alford, 37 Conn. App. 180, 655 A.2d 782, cert. denied, 234 Conn. 914, 660 A.2d 357 (1995); State v. Migliaro, 28 Conn. App. 388, 611 A.2d 422 (1992).

In State v. Chicano, supra, 216 Conn. 699, the defendant was convicted of three counts of felony murder, three counts of manslaughter in the first degree, one count of risk of injury to a child and one count of burglary in the second degree; in State v. DeJesus, supra, 236 Conn. 189, the defendant was charged with one count of murder, two counts of risk of injury to a child and one count of carrying a dangerous weapon. Although these cases were tried to three judge panels, it would be hard to imagine more shocking or complicated criminal cases.

In State v. Migliaro, supra, 28 Conn. App. 388, the defendant was tried before a jury on the charges of manslaughter and risk of injury to a child. The defendant claimed that he found the victim, the defendant’s twelve week old daughter, lying on the floor at the bottom of a set of stairs and that she was not breathing. Id., 389-90. The defendant claimed that he had no idea how the victim had gotten there. Id., 390. The victim was transported by ambulance to a hospital where she died shortly thereafter. The state produced expert medical testimony that the victim died as a result of shaken baby syndrome. Id., 391. The jury found the defendant guilty of the lesser included offense of criminally negligent homicide and of risk of injury to a child. Id., 389.

In State v. Alford, supra, 37 Conn. App. 180, the defendant was also tried before a jury and charged with counts of manslaughter in the first degree, assault in the first degree and risk of injury to a child. The injuries involved in the risk of injury charges were at least as appalling than those involved in the risk of injury charges in the present case and were even more entwined with the manslaughter charge.

On the basis of on the guidelines established in our appellate cases, I do not believe that the charges in the present case had to be severed for trial and I would not grant a new trial on that basis.

Accordingly, I respectfully dissent.

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person. . . .”

       General Statutes § 63-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       We address the defendant’s claim regarding sufficiency of the evidence first since the defendant would be entitled to an acquittal if the evidence were, in fact, insufficient In light of our conclusion that the trial court improperly consolidated the manslaughter and risk of injury counts, however, we need not address all of the defendant’s remaining claims. See State v. Coleman, 41 Conn. App. 255, 257 n.6, 675 A.2d 887 (1996).

       The videotape was played for the jury.

       On cross-examination, Shah, admitted that it was possible that the fracture was four months old. This is consistent with the testimony of the defense experts, who opined that the fracture occurred between three and four months prior to the victim’s death.

       A portion of Michele Bruno’s written statement, admitted into evidence pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), was read to the jury. It stated: “Q. Did [the defendant] ever talk to you about the baby?
      “A. Yeah. When I was on the phone with my sister I could hear him in the background. He was saying, ask her when she is coming for the baby. He would say that I could take the baby for good. He would say, come soon. He was always, well, comments like that.”

       As stated above, the parties dispute when the victim actually sustained the fractured leg.

       The parties have not raised the question of whether a defendant must have any relationship or legal duty to a victim in order to be charged with risk of injury to a child by wilfully or unlawfully causing or permitting the victim to be placed “in such a situation that its life or limb is endangered, or its health is likely to be injured or its morals likely to be impaired.” The statute itself contains no stated requirement or element that there be any legal relationship or duty between the victim and the defendant. The defendant makes no claim that the evidence is insufficient due to a failure of the state to prove a particular relationship or legal duty to the victim. We therefore do not address this issue.

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.” See also Practice Book § 829.

       As the state argued in opposition to the motion to sever, “we have the same victim involved in all three counts. We have the same location involved in all three counts. We have the same victim but also roughly the same time period involved in all three counts. While the first two counts specifically focus on December 14 of 1992, which is the date that the victim in this particular case, the state believes, suffered the head injury—the fractured skull which thereby led to her death, the risk of injury covers the time before that—November 1 to December 14. So we basically have the same time period involved. As part of that, the state intends to produce evidence of the child’s condition when seen by medical personnel in November, 1992, which goes to the risk of injury charge.
      * * *
      “I would also note the state believes the witnesses will be the same for both in this case—the two charges. It just doesn’t make any sense when

        the evidence is basically the same and the risk of injury charge necessarily involves what happened on the night of December 14 including his conduct on that particular evening.” (Emphasis added.)

       In addition to relying on States. Chance, supra, 236 Conn. 31,1he dissent also relies on several other cases as examples of where the court has allowed joinder of both risk of injury and manslaughter or murder counts. We note initially that none of these cases raises on appeal the issue of whether the different counts were properly joined at trial. We further note that the factual scenarios of those cases are easily distinguishable from the present case, because in each of these cases, with regard to the risk of ipjury count, the defendant committed some act of violence, whether on the victim or a third party, whereas in the present case, the defendant was charged with having acquiesced in the physical abuse of the victim not inflicted by the defendant. See State v. DeJesus, 236 Conn. 189, 672 A.2d 488 (1996) (defendant killed his estranged girlfriend with machete while her two children were playing nearby); State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991) (defendant killed minor victim by strangulation and killed his mother and her boyfriend with a crowbar); State v. Alford, 37 Conn. App. 180, 655 A.2d 782, cert. denied, 234 Conn. 914, 660 A.2d 357 (1995) (defendant struck and beat two year old victim on numerous occasions); State v. Migliaro, 28 Conn. App. 388, 611 A.2d 422 (1992) (state presented evidence that minor victim died as the result of head injury caused by abuse, or shaken baby syndrome, inflicted by defendant, who was convicted of criminally negligent homicide and risk of injury to a child).

       Our conclusion is further supported by State v. Chance, supra, 236 Conn. 31. Unlike the trial court in the present case, the trial court in Chance ordered a bifurcation of the evidentiary portion of the trial after granting the state’s motion to consolidate arson and assault counts against the defendant. The trial court required the state and the defendant first to present all of their evidence on the arson charge, followed by the evidence on the assault charge.
      The Supreme Court, affirming the trial court’s decision, noted that the two charges arose from two discrete incidents, the conduct involved was not “brutal and shocking,” the issues were simple and straightforward, the evidence was uncomplicated, and the trial lasted only five days. The Supreme Court further noted that the trial court, unlike the trial court in the present case, correctly instructed the jury as follows: “ ‘As I have already made clear throughout this proceeding, the defendant is charged with two separate offenses, even though those cases were consolidated into a single trial. In one information, the state has charged Mr. Chance with arson in the first degree and in the other information (he state has charged the defendant with assault on a department of correction employee. You must consider each alleged incident separately and distinctly from the other. You must keep them both separate in your evaluation of the facts and separate in your minds in the determination of your verdict. The evidence from one alleged incident must not be considered by you or affect your verdict in the other alleged incident. Also, by virtue of the fact that there are two separate informations pending against the defendant, you must not hold that against the defendant in any way. The court has consolidated these two alleged incidents for the purpose of judicial expediency. The court is attempting to see to it that the introduction of evidence was conducted in an orderly fashion first with respect to the first incident and then with respect to the second. The purpose of this order was to assist you in keeping these two alleged incidents separate and distinct. You cannot merge the two incidents in any way. For that reason you should deliberate on each charge separately. Remember, the state must prove each element of the offense beyond a reasonable doubt before you return a guilty verdict on a charge. The fact that there are two separate charges here does not mean that the state has a lesser standard or burden of proof with respect to either charge.’ ” Id., 41-42 n.14.
      The trial court in Chance later restated, “ ‘Again I will remind you that you are dealing with two separate cases here. You are to consider them separate and apart from one another . . . .’ ” Id.


source: Caselaw Access Project

author: HEIMAN, J.

license: Public Domain

text:
    DOUGLAS DORTENZIO v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (14837)
    (15037)
    Foti, Heiman and Spear, Js.
    Argued May 29
    officially released July 30, 1996

      Victor R. Perpetua, commission counsel, with whom, on the brief, were Catherine Wassel-Nasto, commission counsel, and Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Maureen M. Murphy, for the appellant (defendant Douglas J. Fairchild).

      Janis M. Small, town attorney, for the appellee (plaintiff).
   HEIMAN, J.

The defendants, freedom of information commission (FOIC) and Douglas Fairchild, appeal from the judgment of the trial court sustaining the plaintiffs administrative appeal from the decision of the FOIC. The FOIC claims that the trial court improperly (1) substituted its judgment for that of the FOIC and (2) concluded that the predisciplinary conference at issue was not a “meeting” pursuant to General Statutes § l-18a (b). Fairchild asserts that the trial court improperly (1) concluded that the predisciplinary conference at issue was not a meeting pursuant to § l-18a (b) and (2) relied on a provision in the collective bargaining agreement between the town and the police union local. We agree with the FOIC’s first claim and, on that basis, reverse the judgment of the trial court and remand the case for further proceedings.

The following facts are relevant to our disposition of this appeal. In July, 1993, and for a period of time prior thereto, Fairchild was a Wallingford police sergeant and the plaintiff was the Wallingford chief of police. On July 30, 1993, the plaintiff, by a written memorandum, ordered Fairchild to appear at a “predisciplinaiy conference” to take place before the plaintiff on August 24, 1993, in the plaintiffs conference room. The memorandum indicated that Fairchild’s work performance was to be the subject of the conference. After he received the memorandum, Fairchild requested that the conference be open to the public and that he be allowed to tape-record the proceedings. The plaintiff denied Fair-child’s requests, and the conference was held in private. Only the plaintiff was allowed to tape-record the conference. Fairchild attended the conference accompanied by union representatives. Subsequent to the conference, the plaintiff disciplined Fairchild.

On September 2, 1993, Fairchild filed a complaint with the FOIC, claiming that the plaintiff violated the Freedom of Information Act when he denied Fairchild’s requests to open the conference to the public and to tape-record the conference. A hearing was held before an FOIC commissioner on November 18, 1993. At the hearing, Fairchild claimed that the conference was a meeting pursuant to § l-18a (b) and that, consequently, he should have been permitted to tape-record the conference and to have it open to the public pursuant to General Statutes §§ 1-21 (a) and l-21a (a). Fairchild asserted that, pursuant to § l-18a (b), the conference met the definition of a meeting because it was a “hearing or other proceeding of a public agency ... to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. . . .” Fairchild indicated that the conference may have been an “executive session,” a type of meeting from which the public may be excluded, however, he argued that the executive session exception did not apply. Fair-child requested that the August 24, 1993 conference be declared “null and void” and that future predisciplinary conferences before the plaintiff be considered meetings under § l-18a (b).

In response to Fairchild’s contentions, the plaintiff claimed that the predisciplinary conference was not a meeting under § l-18a (b). The plaintiff asserted that under § l-18a (b), the conference was excepted from being a meeting because it was “an administrative or staff meeting of a single-member public agency.” The plaintiff raised no other reason why the conference should not be considered a meeting under § l-18a (b).

The commissioner issued a final decision that was adopted by the FOIC. The FOIC determined that the plaintiff had violated §§ 1-21 (a) and l-21a (a). The FOIC rejected the plaintiffs claim that the predisciplinary conference was an administrative or staff meeting of a single-member public agency under § l-18a (b). The FOIC agreed with Fairchild and found that the conference was a meeting pursuant to § l-18a (b) because it was a “proceeding” of a public agency, namely, the Wallingford police department. The FOIC did not declare the August 24, 1993 conference to be null and void, but rather, it ordered the plaintiff to comply with §§ 1-21 (a) and l-21a (a) in the future.

The plaintiff appealed from the FOIC’s decision to the trial court. The trial court sustained the plaintiffs appeal, finding that the FOIC improperly determined that the predisciplinary conference should have been open to the public. In its memorandum of decision, the court stated: “The court has reviewed the whole record and the arguments of counsel and concludes that the conference was part of the grievance procedure established by the collective bargaining agreement between the town and the police union. That being so, the conference was not a ‘meeting’ as that term is defined in § 1-18a (b) and was not subject to the requirement of § 1-21 that ‘meetings’ be held in public.” It is clear from the memorandum of decision that the trial court was persuaded by the plaintiffs argument that the conference was not a meeting pursuant to § l-18a (b) because it was “strategy or negotiations with respect to collective bargaining.” This argument, however, was never raised before the FOIC and was raised for the first time on appeal to the trial court.*

We address the FOIC’s first claim, namely, that the trial court improperly substituted its judgment for that of the FOIC. The gravamen of the FOIC’s claim is that the trial court, in determining that the predisciplinary conference was not a meeting pursuant to § l-18a (b) because it fell under the exception of being “strategy or negotiations with respect to collective bargaining,” failed to confine its review of the FOIC’s decision to the issues raised and the findings in the administrative record. We agree. Because our resolution of this claim is dispositive of the defendants’ appeal, we do not reach the remaining issues raised by the defendants.

“Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189), and the scope of that review is very restricted. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988). Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . [Id., 774.] Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); see also New Haven v. Freedom of Information Commission, supra, 773-74; Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980). . . . Perkins v. Freedom of Information Commission, [228 Conn. 158, 164-65, 635 A.2d 783 (1993)]. . . . Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 39, 657 A.2d 630 (1995).” (Internal quotation marks omitted.) Hartford v. Freedom of Information Commission, 41 Conn. App. 67, 72-73, 674 A.2d 462 (1996).

The administrative record reveals that the FOIC determined, on the basis of the evidence before it, that there was no support for the plaintiffs refusal to allow the predisciplinary conference to be open to the public or to be tape-recorded by Fairchild. See id., 73. The FOIC’s decision “met the factual situation as presented”; id.; namely, whether the predisciplinary conference was a meeting subject to public exposure or an administrative or staff meeting of a single-member public agency that would be exempt from public exposure. This was the sole issue presented to the FOIC for analysis under § l-18a (b).

The trial court “needlessly enlarged the issue on appeal”; id.; by examining the question of whether the predisciplinary conference consisted of “strategy or negotiations with respect to collective bargaining” under § l-18a (b), an argument not found in the administrative record. See id. Such an argument was neither raised before nor addressed by the FOIC. “Although the trial court might well have reached a conclusion different from that reached by the [FOIC], the limited scope of review set forth in § 4-183 (j), and expressed by our appellate courts, does not allow that result. Here, the trial court improperly traveled a different path rather than determining whether the [FOIC] properly trod on the stepping stones of the path it took.” Id., 74. We therefore conclude that the trial court improperly substituted its judgment for that of the FOIC. On remand, the trial court must apply the proper scope of review in examining the FOIC’s decision.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The defendants appealed separately from the judgment of the trial court. The appeals are consolidated here.

       General Statutes § l-18a (b) provides: “ ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include: Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof. ‘Caucus’ means a convening or assembly of the enrolled members of a single political party who are members of a public agency within the state or a political subdivision.”

       General Statutes § 1-15 et seq.

         General Statutes § 1-21 (a) provides in pertinent part: “The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public. ...” (Emphasis added.)

       General Statutes § l-21a (a) provides in pertinent part: “At any meeting of a public agency which is open to the public, pursuant to the provisions of section 1-21, proceedings of such public agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting, by any person or by any newspaper, radio broadcasting company or television broadcasting company. . . .” (Emphasis added.)

       See General Statutes § l-18a (e).

       See footnote 2.

       See footnotes 4 and 5.

       The FOIC’s findings were, in pertinent part, as follows: “The [plaintiff] claims that the subject conference was not a meeting of a public agency within the meaning of § l-18a (b) . . . but rather was an administrative or staff meeting of a single-member public agency to which § 1-21 (a) . . . is not applicable. ... It is found that the town of Wallingford has no independent police commission charged with disciplining its police officers. . . . It is found that with respect to the conference, the [plaintiff] police chief did not act merely in a supervisory capacity to the [defendant Fairchild]; rather he acted as the individual authorized to render discipline on behalf of the police department. . . . It is accordingly concluded that the subject conference was a proceeding of the Wallingford police department, and accordingly constituted a meeting within the meaning of § I-18a (b). . . . It is concluded that the [plaintiff] violated the provisions of § § 1-21 (a) and l-21a (a) . . . under the facts of this case.”

       See footnote 2.

       Subsequent to the defendants’ filing of their appeals to this court, the plaintiff filed a motion for articulation; see Practice Book § 4051; requesting that the trial court address the plaintiffs contention that the predisciplinary conference was “an administrative or staff meeting of a single-member public agency.” The trial court denied the motion. Subsequently, the plaintiff filed in this court a motion for review of the trial court’s denial of the motion for articulation. See Practice Book § 4054. In his motion for review, the plaintiff requested that we order the trial court to elaborate on its decision in the manner requested by the plaintiff in his motion for articulation. We granted the motion for review but denied the relief requested. “An articulation is not an opportunity for a trial court to substitute a new decision nor to change the reasoning or basis of a prior decision.” (Internal quotation marks omitted.) Sawmill Brook Racing Assn., Inc. v. Boston Realty Advisors, Inc., 39 Conn. App. 444, 449, 664 A.2d 819 (1995). “An articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification." Statev. Wilson, 199 Conn. 417, 435, 507 A.2d 1367 (1986). An articulation may be required where the trial court has stated no basis for its decision or where the basis is unclear. Id., 434. The trial court’s decision contained no ambiguity and the basis for its decision was entirely clear on its face. Presently, it is our task to determine whether the trial court reached its decision improperly.

       The FOIC record contains excerpts from the town of Wallingford charter and the agreement between the town of Wallingford and the Wallingford police union local. The excerpts concern the powers and duties of the police chief regarding the discipline of police employees. There is no indication in the record that the plaintiff submitted these excerpts for any reason other than to assist in explaining the disciplinary process.


text:
    MACHELLE J. NEIDITZ ET AL. v. HOUSING AUTHORITY OF THE CITY OF HARTFORD
    (14654)
    Lavery, Landau and Heiman, Js.
    Argued March 29
    officially released July 30, 1996

      Jerome E. Caplan, with whom was Mark A. Rosenblum, for the appellants (plaintiffs).

      Raul A. Rodriguez, with whom, on the brief, was Rudolph P. Arnold, for the appellee (defendant).
   HEIMAN, J.

The plaintiffs, Machelle Neiditz, Herman L. Neiditz and Janice L. Neiditz, appeal from the trial court’s judgment denying their motion for supplemental judgment seeking appellate attorney’s fees. The trial court found that it lacked jurisdiction to consider the plaintiffs’ motion for supplemental judgment because the motion was filed more than four months after the original trial court judgment was rendered, and thus was untimely under General Statutes § 52-212a and Practice Book § 326. The plaintiffs assert that because the motion for supplemental judgment sought appellate attorney’s fees, it was not a motion to open or set aside the judgment, and thus the motion was not time barred by § 52-212a and § 326. Consequently, the plaintiffs claim that the trial court did have jurisdiction to consider the motion. We agree and reverse the judgment of the trial court.

The facts of the underlying action for breach of a written lease are fully set out in the trial court’s memorandum of decision. See Neiditz v. Housing Authority, 43 Conn. Sup. 283, 654 A.2d 812 (1994). The trial court found that the defendant had unjustifiably terminated the lease and awarded the plaintiffs $187,664 in damages and $28,000 in attorney’s fees. The defendant appealed, and on January 10, 1995, the Supreme Court affirmed the trial court’s judgment. Neiditz v. Housing Authority, 231 Conn. 598, 651 A.2d 1295 (1995). On January 23,1995, the plaintiffs filed a motion for supplemental judgment, seeking an award of attorney’s fees for successfully defending the appeal. The trial court dismissed the motion for supplemental judgment. This appeal follows.

The plaintiffs claim that their motion for supplemental judgment was timely because their request for appellate attorney’s fees was not a motion to open or set aside the judgment, and thus was not governed by the four month filing rule. Moreover, the plaintiffs posit that they would not have been entitled to seek attorney’s fees for the successful defense of the appeal until they had prevailed in the Supreme Court. We agree.

It is well established by both the United States Supreme Court and Connecticut precedents that a request for attorney’s fees is not a motion to open, set aside, alter, or modify a judgment, but rather “raises legal issues collateral to the main cause of action . . . .” White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 451, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982). The United States Supreme Court held in White that, “[r]egardless of when attorney’s fees are requested, the court’s decision of entitlement to fees . . . require [s] an inquiry separate from the decision on the merits—an inquiry that cannot even commence until one party has ‘prevailed.’ ” Id., 451-52. In Oakley v. Commission on Human Rights & Opportunities, 38 Conn. App. 506, 662 A.2d 137 (1995), aff'd, 237 Conn. 28, 675 A.2d 851 (1996), we followed White and characterized a request for attorney’s fees as an inquiry separate from the decision on the merits, which “does not open, modify, or in any way affect the judgment.” Id., 517.

The plaintiffs’ motion for appellate attorney’s fees did not constitute a motion to open or set aside the judgment, and thus was not subject to the four month filing rale of § 52-212a and § 326. White v. New Hampshire Dept. of Employment Security, supra, 455 U.S. 451-52; Oakley v. Commission on Human Rights & Opportunities, supra, 38 Conn. App. 506. Because the plaintiffs’ motion was not governed by § 52-212a or § 326, and because the defendant did not claim that the motion was otherwise time barred, the trial court incorrectly concluded that it was without jurisdiction to determine the plaintiffs’ claim for appellate attorney’s fees.

The trial court based its dismissal of the plaintiffs’ motion for supplemental judgment on two cases, Varley v. Varley, 181 Conn. 58, 434 A.2d 312 (1980), and O’Leary v. Industrial Park Corp., 211 Conn. 648, 560 A.2d 968 (1989). The trial court’s reliance on Varley and O’Leary was misplaced. Varley involved a request for a new trial, rather than a motion for supplemental judgment. Varley v. Varley, supra, 58. O’Leary involved a claim for punitive damages that, as a matter of law, cannot include a right to recover for defending an appeal. O’Leary v. Industrial Park Corp., supra, 651-52.

Here, the trial court did have authority to award appellate attorney’s fees. In Connecticut, a prevailing party may recover attorney’s fees if such an award is authorized by either statute or contract. Gionfriddo v. Avis Rent-A-Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984). The underlying lease agreement provides that “[i]n the event of any action or proceeding brought by either party against the other under this Lease the prevailing party shall be entitled to recover all costs and expenses including the fees of its attorneys in such action or proceeding in such amounts as the court may adjudge reasonable.” The language “the prevailing party in any action or proceeding” includes a prevailing party on appeal. Schnabel v. Tyler, 32 Conn. App. 704, 723A-23B, 630 A.2d 1361 (1993), aff'd, 230 Conn. 735, 646 A.2d 152 (1994); Torres v. Waterbury, 30 Conn. App. 620, 626, 621 A.2d 764 (1993). The decision to award appellate attorney’s fees, however, “is discretionary and a matter appropriately determined by the trial court.” Torres v. Waterbury, supra, 627.

The judgment is reversed and the case is remanded for a determination of whether an award of appellate attorney’s fees is appropriate and, if so, the amount of the award.

In this opinion the other judges concurred.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .”

       Practice Book § 326 provides in relevantpart: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. ...”


author: DUPONT, C. J.

text:
    UNION TRUST COMPANY v. LIONEL JACKSON, SR., ET AL.
    (14750)
    Dupont, C. J., and Landau and Heiman, Js.

      Argued May 28
    officially released July 30, 1996

      Robert J. Cooney, with whom was Michael C. Deakin, for the appellants (defendants).

      Paul E. Bums, with whom were Kristi M. Agniel and, on the brief, Michael A. Pignatella, for the appellee (plaintiff).
   DUPONT, C. J.

The defendants appeal from the granting of a summary judgment in favor of the plaintiff in an action to collect a loan evidenced by an unsecured promissory note payable on demand. The defendants claim on appeal that the trial court improperly granted the plaintiffs motion for summary judgment because genuine issues of material fact exist that would preclude judgment for the plaintiff as amatter of law. The dispositive issue is whether there is a genuine issue of material fact as to whether there was an oral agreement by the parties to modify the terms of the promissory note, and, if so, whether partial performance of the alleged oral agreement satisfied the statute of frauds. General Statutes § 52-550 (a) (6).

It is undisputed that in April, 1989, the defendants, Lionel Jackson and Patricia Jackson, executed and delivered a loan agreement with the plaintiff, Union Trust Company (Union Trust). Union Trust loaned the defendants $452,000 pursuant to the terms of the note, which provided that starting on June 1,1989, the defendants were to pay the interest due on the loan on a monthly basis. The note also permitted the bank to request additional collateral and also to require the defendants to pay the principal in full on demand.

The defendants allege that in June, 1991, their attorney went to Union Trust and explained that the defendants were no longer in a financial position to pay the loan on demand should Union Trust require it. The defendants allege in one of their special defenses that during this meeting the defendants’ attorney and the plaintiff entered into an oral modification of the agreement, which provided that the defendants would pay Union Trust $5000 per month plus interest, provided that the bank did not demand the full payment of the loan. The plaintiff denies that such an oral agreement existed.

It is undisputed that on both June 30 and July 30, 1991, the defendants made payments to Union Trust of $5000 plus interest. The plaintiff does not dispute that the payments were made, but does dispute that they were made as part of any oral agreement. The defendants failed to comply with Union Trust’s request for additional collateral on the loan, and they failed to repay the balance of the loan as requested by the plaintiff on August 2, 1991.

The plaintiffs complaint, in two counts, alleges causes of action in breach of contract and unjust enrichment. The trial court rendered summary judgment on the complaint. The defendants asserted five special defenses. The defenses were modification, novation, waiver, accord and satisfaction, and bad faith in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The plaintiff moved to strike these special defenses for legal insufficiency, and the trial court, Katz, J., granted the motion, whereupon the defendants repleaded.

The defendants raise two issues on appeal. They claim that the trial court improperly rendered summary judgment because genuine issues of material fact exist as to whether (1) there was an oral agreement, and if so, whether there was consideration for it, and (2) the two monthly payments of $5000 constituted part performance of that oral agreement. We agree with the defendants and conclude that the summary judgment rendered by the trial court should be reversed.

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 384 provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The trial court must “ ‘view the evidence in the light most favorable to the nonmoving party.’ ” Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 664, 646 A.2d 143 (1994). “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... it [is] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.” (Citations omitted; internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 247, 618 A.2d 506 (1992); Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990). The mere presence of an adverse claim will not in itself defeat the motion. Wadia Enterprises, Inc. v. Hirschfeld, supra, 247.

The plaintiff claims that a summary judgment is proper because all of the special defenses are legally insufficient. Only one of the defendants’ defenses needs to be valid in order to overcome the motion for summary judgment. “[S]ince a single valid defense may defeat recovery, claimant’s motion for summary judgment should be denied when any defense presents significant fact issues that should be tried.” 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure (2d Ed. 1983) § 2734. The case of Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985), follows this authority.

We do not agree with the plaintiff that the defense of modification is legally insufficient. Whether this defense is valid depends on an issue of material fact, namely, whether the parties agreed to a valid oral modification of the prior written agreement, and whether the defendants partially performed that modification. In its memorandum of decision striking the special defenses, the trial court emphasized that the defense of modification was improper because the defendants could show neither mutual assent nor new consideration for their subsequent oral agreement. Whether there was mutual assent, however, is, in and of itself, a question of fact that goes to whether the parties actually agreed to the modification. Assuming that they did agree to such an arrangement, a trier of fact would then need to answer the question of whether there was new consideration on the basis of the defendants’ alleged agreement to pay the plaintiff $60,000 a year plus interest in exchange for the plaintiffs promise not to demand the entire loan at once.

The defendants claim that the dispute over whether there was an oral agreement and whether the two payments constituted part performance of that agreement are genuine issues of material fact. The trial court found that the existence of the oral contract did not create an issue of material fact because “the payments can be naturally and reasonably accounted for by the existence of the written agreement.” The trial court relied on the standard established in Ubysz v. DiPietro, 185 Conn. 47, 440 A.2d 830 (1981). “ ‘The acts also must be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute ....’” Id., 54. We agree that the Ubysz standard is applicable here, but, even after the application of that standard, a factual issue still exists as to whether the two $5000 payments were made pursuant to the original agreement or pursuant to the alleged modification.

A material fact is one that makes a difference in the outcome of a case. Catz v. Rubenstein, 201 Conn. 39, 48, 513 A.2d 98 (1986). In granting summary judgment, the court relies on the same criteria it would in determining whether a party would be entitled to a directed verdict on the same facts. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 375, 260 A.2d 596 (1969); accord Connell v. Colwell, supra, 214 Conn. 247.

A modification of a written agreement must be in writing to satisfy the statute of frauds. General Statutes § 52-550 (a) (6). Since the defendants do not deny that their alleged modification was not in writing, any modification is governed by the statute of frauds. The question of whether the parties had an oral contract is material, if, and only if, a trier of fact were to find that there was an oral agreement for which there was consideration, and that the defendants had partly performed that agreement.

“[A] contract is enforceable, despite the statute [of frauds], when, subsequent to the making of the contract, there has been conduct that amounts to part performance.” Heyman v. CBS, Inc., 178 Conn. 215, 222, 423 A.2d 887 (1979). In other words, a trier of fact would need to determine whether there was a modification of the original agreement and the terms of that modification, in order to determine whether there was part performance by the defendants on that modification. The combination of these questions would affect the outcome of the case, because partial performance by the defendants, if proven, would take their oral modification out of the statute of frauds.

The defendants have provided sufficient documentation to create an issue of material fact. Generally, issues involving motive and intent are not properly resolved on a motion for summary judgment. Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 250; Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 376. There is such an issue here, namely, what the parties intended by the payment and the acceptance of the two $5000 payments.

Even with respect to questions of motive and intent, however, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact. Wadia Enterprises, Inc. v. Hirschfeld, supra, 24 Conn. 250. The plaintiff, in support of its motion for summary judgment, presented two affidavits from bank officers to prove its position, as well as the original loan agreement. The factual matters the defendants have put forth are in the deposition of the attorney who they allege negotiated the modification for them. This is enough of a factual predicate to create an issue of material fact.

The defendants’ special defense of modification involves genuine issues of material fact, which could preclude a judgment for the plaintiff as a matter of law. We conclude, therefore, that the trial court improperly granted summary judgment.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       General Statutes §52-550 provides in relevant part: “Statute of frauds; Written agreement or memorandum, (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars. ...”

       The trial court’s memorandum of decision discusses only the action in breach of contract. The court, therefore, did not need to address the plaintiffs alternative cause of action of unjust enrichment. The judgment file indicates judgment was rendered on the complaint and therefore there is a final judgment.

       In view of our conclusion, we do not address the merits of the plaintiffs claims as to the other special defenses.

         See footnote 1.

       The attorney’s deposition gives an account of his meeting with bank employees where the alleged modification took place.


author: LANDAU, J.

text:
    DAVID L. BREWER, JR., ET AL. v. ANTONIO GUTIERREZ TEC TRON COMPUTERS, INC., ET AL. v. DAVID L. BREWER, JR.
    (13919)
    Foti, Landau and Ilennessy, Js.
    Argued January 18
    officially released August 6, 1996

      Ann R. Stravalle-Schmidt, for the appellant (named defendant in the first case, plaintiff in the second case).

      Donald R. Holtman, for the appellees (plaintiffs in the first case and named defendant in the second case).
   LANDAU, J.

This is Antonio Gutierrez’ consolidated appeal from the judgments rendered in two underlying actions. The first action (Brewer action) was commenced by David Brewer and his wife, Georgette Katin, against Gutierrez. In the second action (Tec Tron action), Tec Tron Computers, Inc., Antonio Gutierrez and Maryann Gutierrez brought suit solely against David Brewer. In that action, David Brewer filed a counterclaim against Antonio Gutierrez and Maryann Gutierrez. In both cases, the parties seek damages and other relief for actions allegedly taken by Brewer and Antonio Gutierrez relative to corporate assets of Tec Tron.

The trial court rendered judgment for Brewer against Gutierrez and awarded compensatory damages in the amount of $38,360 interest and punitive damages, attorney’s fees and costs in the amount of $21,484.32. The judgment, however, is silent as to Katin, a plaintiff in the first case. In the Tec Tron action, the trial court “[found] the issues for . . . Mr. Brewer Jr., on the complaint and counterclaim” and rendered judgment on behalf of Brewer against “Mr. Gutierrez.” The judgment is silent as to Maryann Gutierrez, a plaintiff in the second case against whom the counterclaim was also directed.

“The lack of a final judgment is a jurisdictional defect that implicates the authority of this court to hear the appeal. Stoiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985). The finality requirement underlying our appellate review represents a clear and firm policy against piecemeal appeals. State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982). The test of a final judgment is if the rights of the parties are concluded so that further proceedings cannot affect them. . . . Monroe v. Monroe, 177 Conn. 173, 176, 413 A.2d 819, appeal dismissed, 444 U. S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). . . . Goodson v. State, 228 Conn. 106, 111-12, 635 A.2d 285 (1993).” (Internal quotation marks omitted.) T. P. Brewer Construction Co. v. F & G Associates, 34 Conn. App. 714, 715-16, 643 A.2d 308 (1994).

I

The appeal from the judgment in the Brewer action must be addressed first. The issue is whether the appeal is subject to dismissal on the ground that no judgment was rendered as to Katin. Alternatively, we must decide whether there was an implied judgment in favor of Katin and, thus, consider the merits of that part of the appeal.

“The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The judgment should admit of a consistent construction as a whole.” (Citations omitted; internal quotation marks omitted.) Lashgari v. Lashgari, 197 Conn. 189, 196-97, 496 A.2d 491 (1985).

While we have, in the past, concluded that trial courts have rendered judgments by implication; see, e.g., id., 197-98; Glinski v. Glinski, 26 Conn. App. 617, 621, 602 A.2d 1070 (1992); we cannot do so here. An implication is defined as an inference of something not directly declared, but arises from what is admitted or expressed; it is used where the intention in regard to the subject matter is not manifested by explicit and direct words, but is gathered by implication or necessary deduction from the circumstances, the general language, or the conduct of the parties. Black’s Law Dictionary (5th Ed. 1979).

A reading of the transcript reveals no mention of any disposition of the action as to Katin and it is worth noting that Gutierrez himself regards the judgment as solely one for Brewer, and not for Katin. We can deduce nothing from the circumstances surrounding the judgment that would lead to a conclusion that an implied judgment existed. To the contrary, the clear language of the judgment permits us to conclude only that the there is alack of any judgment as to Katin. The language of a judgment must be given its ordinary meaning unless a technical or special meaning is clearly intended. See Scoville v. Scoville, 179 Conn. 277, 282, 426 A.2d 271 (1979) (Healey, J., dissenting).

In the absence of a judgment as to Katin, this court lacks jurisdiction to hear the Brewer action and we must, therefore, dismiss that part of the appeal. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Here, neither Curcio prong is satisfied. See C & P Excavating Contractors, Inc. v. Ardmare Construction Co., 37 Conn. App. 222, 227, 655 A.2d 278 (1995).

II

The next issue to be resolved in this appeal is the status of the Tec Tron action. In that action, the trial court found for Brewer on the complaint and the counterclaim, but was silent as to Katin and Maryanne Gutierrez on the counterclaim. A review to the pleadings is helpful.

Katin is not named as a defendant in the Tec Tron complaint. In the counterclaim addressed to that complaint, however, there are inconsistencies. Although Katin is not named as a party in the counterclaim, the allegations begin with language that implies that Katin is a party, i.e., the “Defendant and his wife,” and the prayer for relief is expressed in the plural, i.e., “Wherefore, the Defendants claim.” Furthermore, the pleading is signed by an attorney representing the “Defendants.”

Thus, in the Tec Tron action, we are faced with a counterclaim in an action in which Katin was never pleaded as a defendant and never moved to be made a defendant despite the fact that the pleading was signed by an attorney purporting to represent her. Practice Book § 116 provides that “[i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . .” (Emphasis added.) Because Katin was not a party named in the Tec Tron complaint, the trial court’s judgment in favor of Brewer on the complaint and counterclaim in that action disposes of any issues as to Katin. This ruling, however, does not implicate the issues involving Maryanne Gutierrez. In its judgment as to the counterclaim, the trial court failed to make any findings as to Maryanne Gutierrez; the judgment is silent as to her. Under these circumstances, we will not conclude that the trial court rendered a judgment by implication as to Maryanne Gutierrez. Lashgari v. Lashgari, supra, 197 Conn. 196-97. In the absence of any judgment as to Maryanne Gutierrez, the counterclaim has not been entirely resolved. Where Practice Book § 4002 does not apply, a judgment on a complaint is not an appealable final judgment when the issues in the complaint and the counterclaim are intertwined and the counterclaim remains unresolved. Southington v. Pierce, 29 Conn. App. 716, 722, 617 A.2d 929 (1992). Accordingly, we do not have jurisdiction to hear this appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       In the two underlying actions, the parties David L. Brewer, Jr., and Antonio Gutierrez are both plaintiffs and defendants. In this opinion, to avoid confusion, we will refer to them by their names.

       In the Brewer action, Brewer and Katin allege, inter alia, that they are 50 percent shareholders of Tec Tron and that the Gutierrezes are the owners of the remaining shares of Tec Tron.

       The final judgment issue does not implicate Practice Book § 4002. See C & P Excavating Contractors, Inc. v. Ardmare Construction Co., supra, 37 Conn. 225-26.

       In the judgment on the counterclaim, the trial court also made no findings as to Katin. Such findings, however, are not necessary in light of the fact that she was not made a party in the action.

       See footnote 3.

       Although we do not reach the merits of the claims presented in tills appeal, our review of the record and briefs reveals that there may be fundamental considerations concerning the trial court proceedings. First, while it is undisputed that Gutierrez, Maryanne Gutierrez, Brewer and Katin were each one-quarter shareholders in Tec Tron, it is beyond question that the trial court inappropriately lumped together the legal and financial interests of the husbands and wives. Second, assuming arguendo that a derivative cause of action was pleaded in the Tec Tron counterclaim, there is a single award of damages in favor of Brewer, an individual shareholder, and an absence of any language in the judgment to indicate that he holds the award on behalf of the corporation.