author: Heiman, J.

text:
    State of Connecticut v. Anthony Harris
    (11325)
    Daly, O’Connell and Heiman, Js.
    Argued September 14
    decision released October 5, 1993

      Donald D. Dakers, with whom, on the brief, was Christine Perra, special public defenders, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, and Michael D. Glowa, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of accessory to the sale of narcotics in violation of General Statutes §§ 21a-278 (b) and 53a-8, and one count of employing a person under eighteen years of age in the sale of narcotics in violation of General Statutes § 21a-278a (c). The defendant claims that the trial court improperly (1) denied his motion for a new trial based on his claim of jury misconduct and (2) failed to protect his state and federal constitutional rights to due process by failing to instruct the jury properly as to the elements of the crime of employing a person under eighteen years of age in the sale of narcotics. The defendant claims that the trial court improperly instructed the jury by charging that the elements of that crime were the same as those of the crime of being an accessory to the sale of narcotics except for the additional element that the person employed must be under eighteen years of age.

The jury could reasonably have found the following facts. On May 15,1990, the Bristol police department conducted an undercover police operation on Davis Drive. The operation was aimed at arresting drug dealers in the Cambridge Park area of Bristol. The police employed a “cop in a box operation.” On the evening of May 15, 1990, the police used two informants, one as a passenger and the other to drive a pickup truck into the Cambridge Park area with an officer concealed inside a box in the bed of the truck. The defendant, Anthony Harris, flagged down the vehicle. He approached the vehicle and asked the driver what she wanted.

The driver stated that she wanted “rock” or “powder.” The defendant walked away from the vehicle. He returned with his uncle, John Gains. Gains, at the time of this incident, was sixteen years of age and the defendant was twenty. The defendant then instructed Gains to “serve her.” The defendant walked away and Gains produced a Newport cigarette pack from which he removed a small blue bag containing white powder. He handed it to the driver, who handed it to the passenger. The passenger then yelled “two.” Gains produced another bag of white powder and the informants gave Gains $40. The powder later tested positive for cocaine. The police arrested both the defendant and Gains on June 22, 1990.

I

The defendant first asserts that the trial court improperly denied his motion for a new trial based on alleged juror misconduct. The defendant claims that the trial court incorrectly placed the burden on him of proving that extrinsic evidence actually prejudiced the defendant. Further, the defendant claims that the decision by the trial court was clearly erroneous. We are unpersuaded.

The consideration of certain additional facts is necessary for a proper resolution of this issue. The record discloses that on October 18, 1991, the jury found the defendant guilty. On January 3, 1992, the defendant filed a motion for a new trial. The motion claimed that after the verdict alternate juror Eva Michaud approached defense counsel and revealed that she had conducted an “experiment” at home to assess the degree to which a person could see through a quarter size hole in a cardboard box. The motion also claimed that the juror discussed this experiment with other jurors.

The trial court held a full evidentiary hearing on February 6, 1992. At the hearing, defense counsel called several jurors to testify. Michaud testified that she did perform a “cop in a box” type experiment during the trial. She further testified that she did not talk with the other jurors about the experiment. Juror Mer-rimon Hunt testified that a male juror did tell the jury, in the jury room, that he performed a “cop in a box” experiment. Next, juror Nancy Tinker testified that a juror named Sal told the jury that he had performed an experiment outside the jury room regarding the cop in a box theory. Tinker did state, however, that the information did not affect her decision in the case. Juror Saivadore Larosa then testified that he never performed a cop in a box experiment nor did he discuss any experiments with any of the jurors. Juror Joseph Primich also testified that no juror had discussed a cop in a box experiment performed outside the jury room. Juror Robert Tatters testified that no discussions transpired about a cop in a box experiment. After a full hearing, the trial court found that the defense had presented no credible evidence that any demonstration was performed by any of the regular jurors that had “interfered with, or participated in, or aided, or assisted the jury in coming to [its] decision on the merits of the case.” Further, the trial court stated: “The court makes a factual determination that there is no evidence, based on the witnesses that the court heard, that the jury at any time took into consideration any concept of a demonstration of the claimed position by the defendant, that one of the jurors set up a box and sat inside of it and looked out to see what he could see.”

The trial court correctly placed the burden on the defendant to prove actual prejudice. “[T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1369, 6 L. Ed. 2d 751 (1961).” (Internal quotation marks omitted.) State v. Migliaro, 28 Conn. App. 388, 395, 611 A.2d 422 (1992); State v. Davis, 32 Conn. App. 21, 28, 628 A.2d 11 (1993); State v. Leonard, 31 Conn. App. 178, 194, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993). “A necessary component of the right to an impartial jury is the right to have the jury decide the case ‘solely on the basis of the evidence and arguments given them in the adversary arena after proper instruction on the law by the court.’ ” State v. Migliaro, supra, quoting State v. Rodriguez, 210 Conn. 315, 325, 554 A.2d 1080 (1992). Consideration by the jury of extrinsic evidence can violate the constitutional right to a trial by an impartial jury. State v. McCall, 187 Conn. 73, 80, 444 A.2d 896 (1982); State v. Migliaro, supra.

The trial court must conduct a hearing to determine whether jury misconduct occurred. State v. Davis, supra, 28-29; State v. Migliaro, supra. The hearing allows the trial court to assess the credibility of witnesses and the weight to be accorded their testimony. State v. Leonard, supra, 195. Once the trial court finds that consideration of extrinsic evidence occurred, the court must then determine whether the misconduct actually prejudiced the defendant. Asherman v. State, 202 Conn. 429, 442, 521 A.2d 578 (1987); State v. Leonard, supra; State v. Migliaro, supra, 396.

The trial court followed the proper procedure for determining the motion for a new trial based on juror misconduct. It first held a hearing to determine whether juror misconduct occurred. The trial court then found that juror misconduct did not actually prejudice the defendant.

The determination that the misconduct did not actually prejudice the defendant is not clearly erroneous. “[T]he trial court enjoys broad discretion in determining whether jury misconduct occurred, and, if so, whether such misconduct prejudiced the defendant . . . .” State v. Migliaro, supra, 395; State v. McCall, supra, 77. “The trial judge is in the best position and is uniquely qualified to appraise the probable effect of information on the jury, the materiality of the extraneous material, and its prejudicial nature.” (Internal quotation marks omitted.) State v. Leonard, supra. This court will reverse the trial court only if it determines that the factual findings were clearly erroneous. Id. “ ‘A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . .’ ’’(Citationsomitted.) Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993); Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 437-38, 606 A.2d 729 (1992). On the basis of the record, we are unable to conclude that the trial court’s finding of no actual prejudice is clearly erroneous.

II

The defendant next claims that the trial court improperly instructed the jury that the elements of the crime of using or employing a person under the age of eighteen to sell cocaine in violation of § 21a-278a (c) were identical to the elements of being an accessory to the sale of cocaine in violation of §§ 53a-8 and 2 la-278 (b) except for the additional element that the person used or employed must have been under the age of eighteen. The defendant admits that this claim was not properly preserved in the trial court, but contends that it is nonetheless reviewable under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We agree.

“ ‘Our standard of review in cases when the defendant claims that the instructions violate constitutional due process protections is whether the jury instructions were so deficient that it was reasonably possible that the jury was misled.’ ” State v. Allen, 28 Conn. App. 81, 84, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992); State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993); State v. Wolff, 29 Conn. App. 524, 530, 616 A.2d 1143 (1992). A conviction will be reversed only if, considering the charge as a whole, this court determines that there is a “reasonable possibility that the jury was misled in reaching its verdict.” State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); State v. Scognamiglio, 202 Conn. 18, 28, 519 A.2d 607 (1987); State v. Wolff, supra.

Therefore, we must determine if the instructions given by the trial court “were so deficient as to implicate the constitutional right of the defendant to a fair trial. A jury instruction conforms with constitutional requirements if it provides jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. . . . An instruction that fails to satisfy these requirements [violates] the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.” (Citations omitted; internal quotation marks omitted.) State v. Wolff, supra, quoting State v. Avila, 223 Conn. 595, 602-603, 613 A.2d 731 (1992); State v. Plude, 30 Conn. App. 527, 537, 621 A.2d 1342, cert. denied, 225 Conn. 923, 624 A.2d 824 (1993); see also Gemme v. Goldberg, 31 Conn. App. 527, 547-48, 626 A.2d 318 (1993).

“The due process clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” State v. Roque, 190 Conn. 143, 157, 460 A.2d 26 (1983). “If justice is tobe done . . . it is of paramount importance that the court’s instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime. ...” (Citation omitted; internal quotation marks omitted.) State v. Wolff, supra; State v. Salz, 226 Conn. 20, 28, 627 A.2d 862 (1993). In reviewing jury instructions, we must examine the charge as a whole to determine if the jury was adequately guided to a correct verdict. State v. Fleming, 198 Conn. 255, 268-69, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Wolff supra, 531. The instructions “ ‘must be correct in law, adapted to the issues presented in the case and sufficient to guide the jury in reaching a verdict.’ ” State v. Ray, 30 Conn. App. 95, 107, 619 A.2d 469, cert. granted, 225 Conn. 919, 625 A.2d 822 (1993); State v. Wolff, supra. “If injustice was done, ‘[t]he defendant is entitled to a new trial in such circumstances . . . where he can show that prejudice resulted from the court’s actions.’ ” State v. Lee, 32 Conn. App. 84, 105, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), quoting State v. Hernandez, 218 Conn. 458, 465, 590 A.2d 112 (1991).

The trial court instructed the jury that the only difference between General Statutes §§ 21a-278a (c) and 53a-8 is the age of the person used or employed. This instruction creates a reasonable possibility that the jury was misled. The resolution of this issue requires an analysis of the relationship between the two statutes.

“The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them.” Windham First Taxing District v. Windham, 208 Conn. 543, 554, 546 A.2d 226 (1988). In addition, “the court must use common sense in construing statutes and must assume that a reasonable and rational result was intended by the promulgating legislature.” Id., 553; Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 589, 590 A.2d 447 (1991). Further, we must presume that when the legislature uses different language, the legislature intends a different meaning of one statute from the other. See Pierce v. Albanese, 144 Conn. 241, 247, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957). When we interpret penal statutes, they “ ‘are to be construed strictly and not extended by implication to create liability which no language of the act purports to create.’ ” State v. Lubus, 216 Conn. 402, 406, 581 A.2d 1045 (1990), quoting State v. Roque, supra, 151.

The language of the two statutes is different. Section 21a-278a (c) is violated where a defendant “employs, hires, uses, persuades, induces, entices or coerces,” whereas § 53a-8 is violated where a defendant “solicits, requests, commands, importunes or intentionally aids. . . .” It is obvious from the words used that the statutes are not the same.

“ ‘In the absence of ambiguity, statutory language should be given its plain and ordinary meaning.’ ” Vachon v. General Dynamics Corporation, 29 Conn. App. 654, 657, 617 A.2d 476 (1992), cert. denied, 224 Conn. 927, 619 A.2d 852 (1993). “ ‘[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.’ ” Cato v. Cato, 226 Conn. 1, 6, 626 A.2d 734 (1993); Vachon v. General Dynamics Corporation, supra. “Employs, hires, uses, persuades, induces, entices or coerces” requires the accused actually to utilize another person. Alternatively, “solicits, requests, commands, importunes or intentionally aids” requires only an asking or insistence that an act be done. The accused, however, must be “more than a mere inactive companion.” State v. Littles, 31 Conn. App. 47, 53, 623 A.2d 500 (1993); 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) § 5.3. The two statutes are distinct and require the jury to find each element of the two statutes beyond a reasonable doubt.

The instruction by the trial court that the two statutes are the same except for the requirement of age is not a correct statement of the law. The instruction neither provided the jurors with a clear understanding of the elements of the crime charged nor afforded them proper guidance for their determination of whether those elements were present. Thus, the instruction violated the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

The judgment of guilty of violating § 21a-278a (c) is reversed and the case is remanded for a new trial on that count of the information.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance . . . and who is not at the time of such action a drug-dependent person . . . shall be imprisoned . . . .”

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

       General Statutes § 21a-278a (c) provides: “Any person who employs, hires, uses, persuades, induces, entices or coerces a person under eighteen years of age to violate section 21a-277 or 21a-278 shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278.”

       Detective Kevin Hayes of the Bristol police department testified that the “cop in a box operation” consisted of placing an officer in a washing machine box in the back of a pickup truck that had a cap on the back. Two informants would enter the area in the truck to purchase narcotics. The box had holes the approximate size of quarters on all sides. The officer would then observe the drug transaction and identify the suspect for subsequent arrest.

       Detective Kevin Hayes testified that “rock” is a street name for crack cocaine and “powder” is a street name for cocaine.

       Tinker also stated that the jurors, during deliberations, performed experiments by cutting holes in paper the size of a quarter and looking through them. She claimed that these experiments did contribute to her decision.

       “We have previously held that, in eases where the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error. State v. Castonguay, 194 Conn. 416, 435, 481 A.2d 56 (1984); Aillon v. State, [168 Conn. 541, 548, 363 A.2d 49 (1975)]. Those cases are clearly distinguishable from cases like the present, in which the trial court was in no way responsible for the juror misconduct.” Asherman v. State, 202 Conn. 429, 442, 521 A.2d 578 (1987).

       After instructing the jury properly on the first count alleging a violation of General Statutes §§ 53a-8 and 21a-278 (b), the jury charge to the count alleging a violation § 21a-278a (c) was as follows: “Now, you don’t get to the second count of the information, unless and until you come to the conclusion that the state has proven the first count beyond a reasonable doubt. . . . And as I said to you in the beginning, the only difference between the first count, accessory to sale, and the second count of using or employing a person under eighteen years of age, is the age. So, if you come to the conclusion that the defendant was not there or that he was not accessory to the sale of narcotics, then your verdict on the first count would be not guilty and, of necessity, your verdict on the second count would be not guilty. You don’t get to the second count unless and until you come to the conclusion that the state has proved all of the elements in the first count beyond a reasonable doubt. So, if you come to the conclusion that the state has proved all of those elements beyond a reasonable doubt in the first count and find the defendant guilty, then you go to the second count and make the following determination [the judge read General Statutes § 21a-278a (c)]. So use the same thing. The only difference now is age. So, if you get to the second count, then you must consider whether or not the state has proven beyond a reasonable doubt that John Gains was under the age of eighteen at the time of the transaction.”

       “Employ” means “ ‘to make use of the services of; to have or keep at work; to give employment to; to intrust with some duty or behest.’ ” Lutkevicz v. Brennan, 128 Conn. 651, 652, 25 A.2d 66 (1942); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 517, 509 A.2d 552 (1986); see also Black’s Law Dictionary (6th Ed. 1990). “Hire” means “to purchase the temporary use of a thing, or to arrange for the labor or services of another for a stipulated compensation”; “Use” means “to convert to one’s service; to employ; to avail oneself of; to utilize”; “Persuade” means “to induce one by argument, entreaty, or expostulation into a determination, decision, conclusion, belief, or the like; to win over by an appeal to one’s reason and feelings, as into doing or believing something”; “Induce” means “to bring on or about . . . an act or course of conduct”; “Entice” means “to lure, induce, tempt, incite, or persuade a person to do a thing”; “Coerce” means “to compel to compliance . . . .” Black’s Law Dictionary, supra.

       “Solicits” means “ ‘to entreat; importune ... to approach with a request or plea; to seek . . . actively.’ ” Bigelow Co. v. Waselik, 133 Conn. 304, 306, 50 A.2d 769 (1946); see also Black’s Law Dictionary (6th Ed. 1990). “Request” means “to ask for something ... to solicit”; “Command” means “to direct, with authority.” “Importune” means “to press or urge with troublesome persistence.” Webster’s Collegiate Dictionary (10th Ed. 1993). “Aid” means to “support, help, assist or strengthen”; “Intentionally” means to do something purposely . . . .” Black’s Law Dictionary, supra.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Kenneth Little
    (11604)
    Dupont, C. J., Daly and Laveky, Js.
    Argued September 13
    decision released October 4, 1993

      Lisa M. Sosa, certified legal intern, with whom were Brian J. Kornbrath and, on the brief, Christopher Kriesen and Herman Woodard, certified legal interns, for the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to sell a narcotic substance by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b). The defendant claims that the trial court (1) should have instructed the jury concerning the defendant’s drug dependency, and (2) should have excluded evidence concerning the defendant’s arrest in Maryland for possession of cocaine and a firearm. We agree with the defendant’s first claim and, therefore, need not reach the second.

The jury could reasonably have found the following facts. On April 20, 1990, a police video surveillance team was set up across the street from 12 and 20 Arch Street in New Haven in response to numerous complaints about drug activity at that location. Officers Achilles Generoso and Thomas Trocchio of the New Haven police department operated a camera from the bed of a pickup truck that had a plywood cap with several windows. There were three full days of surveillance on April 20, 24, and 28,1990. In addition, other police personnel patrolled the area. Testimony indicated that the defendant appeared in the area approximately thirty times during the course of the surveillance, but he appeared on the video tape only once for five minutes on April 28, 1990. The tape showed him receiving money from Willie Simmons, a coconspirator. The defendant admitted that he was purchasing a bag of marijuana from Simmons at the time of the taping. The police arrested three others on narcotics charges subsequent to searches of 12 and 20 Arch Street. These individuals testified at the defendant’s trial and implicated him in a conspiracy to sell narcotics.

At trial, the court permitted the state to cross-examine the defendant concerning his arrest in Maryland on October 14,1989. When the questioning about the arrest began, the defendant invoked his fifth amendment privilege against self-incrimination. The trial court ruled, however, that the fifth amendment claim was not well taken and ordered him to respond to the state’s questions. He then testified that he and his three passengers were stopped in his motor vehicle in Maryland. The defendant signed a consent form for the search of his vehicle. A search of the trunk of the vehicle revealed a gym bag containing cocaine, a handgun and rounds of ammunition. A small amount of marijuana was found in the passenger compartment and on the defendant’s person. The defendant disavowed any knowledge of the contents of the gym bag.

The defendant also testified that during April, 1990, he had a dependency on marijuana. He had used marijuana two to three times daily for the past eight to nine years. His former wife testified that she had been married to the defendant from November, 1988, until December, 1989, and had maintained close contact with him subsequent to their divorce. She testified that the defendant used marijuana daily while they were married. In April, 1990, she saw him use it at least once a week, and the defendant told her he was using it daily at that time. The defendant requested that the trial court instruct the jury concerning his dependency on marijuana. The trial court denied the request.

I

In a prosecution under General Statutes § 21a-278 (b), the state may initially rely on a presumption that the defendant is not drug-dependent. State v. Januszewski, 182 Conn. 142, 166, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); State v. McNeil, 21 Conn. App. 519, 520, 574 A.2d 1314, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990). That presumption cannot be relied on, however, when the defendant introduces substantial evidence tending to prove his drug dependency. State v. Januszewski, supra, 169; State v. McNeil, supra; State v. Luca, 19 Conn. App. 668, 671, 563 A.2d 752 (1989). It is the trial court, not the jury, that must decide if the defendant has introduced sufficient evidence of drug dependency. State v. Luca, supra, 672.

The defendant argues that he produced substantial evidence to put drug dependency in issue. In McNeil, we held that the trial court, in assessing substantial evidence, is limited to determining whether the defendant has introduced sufficient evidence, if credited by the jury, to raise a reasonable doubt as to the absence of drug dependency. State v. McNeil, supra, 522. “It is the trial court’s duty to weigh all the evidence and to determine whether that evidence, if believed by the jury, would permit a reasonable jury to entertain a reasonable doubt that the defendant was not drug-dependent at the time of the alleged crime.” (Emphasis in original.) State v. Rivera, 23 Conn. App. 592, 600-601, 583 A.2d 931 (1990), cert. denied, 217 Conn. 807, 584 A.2d 1192 (1991).

In McNeil, this court concluded that the defendant’s testimony concerning her long-term use of drugs, which was supported by the testimony of her mother and her physician, constituted substantial evidence of drug dependency. State v. McNeil, supra. Testimony of a medical expert, however, is not required. State v. Jackson, 32 Conn. App. 724, 730-31 n.5, 630 A.2d 164 (1993); State v. Rivera, supra, 601. Rather, “all that is necessary is substantial evidence of drug dependency.” State v. Jackson, supra; see also State v. Rivera, supra. For example, in Jackson we found that testimony elicited from the defendant’s girlfriend that the defendant used drugs daily over a long period of time satisfied the substantial element requirement and sent the issue of drug dependency to the jury. State v. Jackson, supra.

Applying this analysis to the facts in this case, we are satisfied that the defendant introduced substantial evidence to prove that he was a drug-dependent person in April, 1990. The defendant testified concerning his long-term daily use of marijuana. His former wife further supported his claim of drug dependency. The state, in contrast, elected not to offer any evidence on the question of drug dependency, but relied instead on its cross-examination of the defendant’s witnesses. Accordingly, the trial court should have instructed the jury on the issue of the defendant’s drug dependency.

In State v.Hart, 221 Conn. 595, 605 A.2d 1366 (1992), our Supreme Court made two significant holdings. First, in a departure from the burden shifting scenario set out in the earlier cases, the court held that “[General Statutes] § 21a-269 assigns to the defendant the burden of persuading the jury by a preponderance of the evidence that he or she is drug-dependent.” Id., 610-11. The absence of drug dependency is not an element of the offense of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b). Id., 608. Rather, drug dependency is considered an exemption from liability under § 21a-269. State v. Januszewski, supra, 167. Thus, it is not necessary for the state to prove the absence of drug dependency beyond a reasonable doubt, but, rather, the defendant bears the burden of proving by a preponderance of the evidence that he or she is drug-dependent. State v. Hart, supra.

The Hart court further held that “[i]n the future, the trial court should instruct the jury concerning the issue of drug dependency and the defendant’s burden of proof if it determines that there is any foundation in the evidence, no matter how weak or incredible .. . .” (Internal quotation marks omitted.) Id., 613. The Hart decision “significantly lowers the standard of what constitutes sufficient evidence, pro duced by the defendant, to send the issue of drug dependency to the jury.” (Emphasis added.) State v. Jackson, supra, 733. Thus, a defendant no longer bears the burden of introducing substantial evidence of his drug dependency as was required in Januszewski, Luca and McNeil.

We conclude, applying either the preHart or the Hart standard, that the testimony of the defendant and his former wife regarding his asserted drug dependency was clearly sufficient to require the trial court to instruct the jury on the issue of drug dependency. Therefore, we find that the defendant is entitled to a new trial.

II

The defendant next claims that the trial court improperly failed to exclude evidence of the Maryland arrest. Having concluded that the defendant is entitled to a new trial, we need not address this issue because it is unlikely to recur on remand. See, e.g., State v. Hart, supra, 613; State v. Williams, 202 Conn. 349, 365, 521 A.2d 150 (1987).

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

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 21a-278 (b) (formerly § 19-480a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

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

       This court recently indicated that it will apply Hart retroactively. State v. Jackson, 32 Conn. App. 724, 731-32 n.6, 630 A.2d 164 (1993).


author: Dupont, C. J.,

text:
    State of Connecticut v. Robert Ellis
    (11709)
    Dupont, C. J., Daly and Lavery, Js.
    Argued September 13
    decision released October 12, 1993

      Ralph L. Palmesi, with whom, on the brief, was Vito Mazza, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Cornelius P. Kelly, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.,

The defendant, Robert Ellis, appeals from the trial court’s denial of his motion to dismiss the state’s prosecution. The defendant was charged with violating No. 91-3, § 134, of the 1991 Public Acts, June Special Session, now codified at General Statutes § 12-570a, which prohibits the sale of out-of-state lottery tickets. The defendant pleaded nolo contendere under General Statutes § 54-94a, which plea is conditional on his right to appeal from the denial of his motion to dismiss.

The defendant argues that the allegations in the affidavits supporting the arrest warrants do not establish probable cause that the defendant committed the charged offense, and that the trial court improperly failed to find the defendant’s activities to be a “gift enterprise.” The state argues to the contrary on both of those issues, and also claims for the first time on appeal that Practice Book § 816 barred the defendant’s motion to dismiss and thus the trial court correctly denied that motion. We conclude that the trial court committed plain error by permitting the defendant to make his motion to dismiss, and remand this case to the trial court with direction that the defendant be allowed to withdraw his conditional plea of nolo con-tendere.

On February 10, 1992, the defendant was arrested pursuant to three outstanding warrants issued on February 6,1992, and charged with sale of out-of-state lottery tickets under No. 91-3, § 134, of the 1991 Public Acts, June Special Session. The defendant filed a motion to dismiss the prosecution on April 23, 1992, based on the insufficiency of the affidavits relied on to establish probable cause for the issuance of the arrest warrants. The trial court denied the motion on July 20, 1992. The defendant subsequently entered a conditional nolo contendere plea on August 24,1992, reserving the right to appeal the denial of his motion to dismiss. The court accepted his plea and on August 28, 1992, gave him a one year suspended sentence and two years of probation.

Before we can reach the merits of the defendant’s appeal, we must first decide whether he is entitled to appeal the merits of his motion to dismiss. The state argues that the motion to dismiss made by the defendant under Practice Book § 815 was in fact improper, and was appropriately denied by the trial court. Section 815 enumerates the grounds on which a motion to dismiss may be brought. The state correctly asserts that Practice Book § 816 prohibits a defendant who has been arrested pursuant to a warrant from making a motion under paragraphs (5) and (9) of Practice Book § 815. The state argues, and we agree, that the only paragraphs of § 815 that could possibly authorize the defendant’s motion to dismiss are paragraph (5), which allows a challenge to the sufficiency “of evidence or cause to justify the bringing or continuing of such information or indictment or the placing of the defendant on trial,” and paragraph (9), which allows a motion to dismiss based on “[a]ny other grounds.” In this case, the defendant was arrested pursuant to a warrant, and therefore § 816 prohibits him from making a motion to dismiss under either of these paragraphs of § 815.

The defendant claims that Practice Book § 4013 prevents our consideration of this issue because the state first raised it almost six months after the appeal was filed. On September 14, 1992, the day this court received the defendant’s appeal, the defendant filed its preliminary statement of issues pursuant to Practice Book § 4013 (a) (l). The state also complied with that subsection by filing an appellee’s preliminary statement of issues on September 22,1993. Three days before the March 15,1993 deadline for the state’s appellee brief, the state filed another preliminary statement of issues. The defendant argues that this is improper under § 4013 (a) (1). Practice Book § 4013 (b), however, explicitly allows a party to file amendments to the preliminary statement of issues “at any time until that party’s brief is filed.” Thus, the defendant’s assertion that § 4013 prohibits such a filing is incorrect.

The defendant also contends that this court should not consider the state’s Practice Book § 816 argument because the defendant will be prejudiced thereby. The defendant points out that his plea of nolo contendere pursuant to General Statutes § 54-94a was specifically made conditional on his right to appeal the denial of his motion to dismiss. Practice Book § 4185 provides: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.”

We recognize that plain error review should be implemented sparingly. Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983). The doctrine, however, essentially invokes the discretion of the court; State v. Falcon, 26 Conn. App. 259, 263, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 196, 520 A.2d 208 (1987); and has been used where the trial court has failed to apply a clearly relevant statute to the case before it. State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980); see also Cummings & Lockwood v. Gray, 26 Conn. App. 293, 300, 600 A.2d 1040 (1991) (granting of summary judgment on counterclaim when plaintiff had moved only for summary judgment on complaint reversed as plain error). In this case, the court failed to comply with Practice Book § 816, which was clearly relevant and which affected the integrity of the defendant’s plea. See State v. Luca, 19 Conn. App. 668, 671, 563 A.2d 752 (1989). We find this to be plain error.

Since the motion to dismiss must be treated as a nullity, it was improper for the court to accept the defendant’s conditional plea of nolo contendere. To allow the finding of guilty that followed the nolo contendere plea to stand, however, would unfairly deprive the defendant of his opportunity to defend himself.

The judgment is reversed and the case is remanded with direction to allow the defendant to withdraw his conditional plea of nolo contendere.

In this opinion the other judges concurred.

       Public Acts, Spec. Sess., June, 1991, No. 3, § 134, now codified at Genera] Statutes § 12-570a, provides: “(a) A person is guilty of sales of an out-of-state lottery ticket when he sells, delivers, advertises or offers for sale in this state, for a fee, any lottery ticket for any out-of-state lottery game.”

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal will be limited to whether it was proper for the court to have denied . . . the motion to dismiss. A plea of nolo contendere under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       Practice Book § 815 provides in pertinent part: “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the indictment or information:
      “(1) Defects in the institution of the prosecution including any grand jury proceedings . . .
      “(2) Defects in the indictment or information including failure to charge an offense . . .
      “(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or indictment or the placing of the defendant on trial ... or
      “(9) Any other grounds.”

       Practice Book § 816 provides: “No defendant who has been indicted by a grand jury or who has been arrested pursuant to a warrant may make a motion under paragraphs (5) or (9) of Sec. 815.”

       Practice Book § 4013 (a) (1) requires the appellant to provide the appellate clerk with an original and one copy of a “preliminary statement of the issues intended for presentation on appeal.” It then provides: “If any appellee wishes to . . . present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.”


author: Foti, J.

text:
    State of Connecticut v. Bernard K. Sawyer
    (9728)
    Daly, O’Connell, Foti, Landau, Freedman and Cretella, Js.
    Submitted October 6
    decision released October 12, 1993

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

      Harry Weller, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Corinne Klatt, assistant state’s attorney, for the appellee (state).
   Foti, J.

This appeal is a remand from our Supreme Court. State v. Sawyer, 227 Conn. 566, 630 A.2d 1064 (1993). The relevant facts are fully reported in State v. Sawyer, 29 Conn. App. 68, 614 A.2d 471 (1992), reversed, 227 Conn. 566, 630 A.2d 1064 (1993). The sole issue to be determined is the defendant’s unpreserved claim that General Statutes § 53a-55 (a) (3) is unconstitutionally vague as applied.

The defendant was convicted of manslaughter in the first degree under General Statutes § 53a-55 (a) (3). The defendant claims that the elements that distinguish the degrees of manslaughter were not defined meaningfully by the legislature, and that the trial court did not adequately distinguish between manslaughter in the first and second degrees in the jury instructions. He claims that no actual distinction exists between simple reckless conduct, as proscribed by General Statutes § 53a-56 (a) (1), and reckless conduct aggravated by “extreme indifference to human life,” as proscribed by § 53a-55 (a) (3).

The defendant acknowledges that this claim was not preserved at the trial court. The defendant seeks review under Evans-Golding, claiming that he was deprived of a fundamental constitutional right, and as plain error under Practice Book § 4185. The defendant’s failure to raise the constitutionality of § 53a-55 (a) (3) at trial, or to object to the instruction given, leaves the record inadequate for a fair consideration of whether the statute was unconstitutionally vague as applied to him. State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991). Without an adequate record, review is precluded. State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989).

As part of this claim, the defendant alleges that the jury was not instructed properly on the distinction between the two degrees of manslaughter. In the absence of a properly preserved claim, “reversal is warranted only if the charge failed to provide the jury with the essential elements of the offense on which the conviction rests or the case must invoke plain error requiring such result in the interests of justice.” State v. Woods, 23 Conn. App. 615, 623, 583 A.2d 639 (1990). The defendant acknowledges that the essential elements of each lesser included offense were given properly. “[Wjhere the defendant fails to object to an instruction, ‘the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial; State v. Cosby, [6 Conn. App. 164, 172, 504 A.2d 1071 (1986)]; is seriously undercut. See also State v. Kurvin, [186 Conn. 555, 567, 442 A.2d 1327 (1982)].’ State v. Huff, 10 Conn. App. 330, 338, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).” State v. Callahan, 21 Conn. App. 654, 660-61, 575 A.2d 704, cert. denied, 216 Conn. 803, 577 A.2d 716 (1990). Review of the claim on this basis is unwarranted.

Nor is the defendant’s claim reviewable as plain error under Practice Book § 4185. Plain error review “ ‘is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990). The claimed error here is not so egregious or obvious as to merit such review. State v. Gagnon, 18 Conn. App. 694, 712, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-56 (a) provides in pertinent part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

        State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

       Practice Book § 4185 provides: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception, provided that the grounds for such objection or exception and the ruling thereon as previously articulated, remain the same.”


author: Lavery, J.

text:
    Herbert A. Feinberg v. Henry Berglewicz et al.
    (11749)
    Dupont, C. J., Daly and Lavery, Js.
    Argued September 13
    decision released October 12, 1993

      Maureen E. Donahue, for the appellant (plaintiff).

      William A. Conti, with whom, on the brief, was Lynn D. Wittenbrink, for the appellees (defendants).
   Lavery, J.

The plaintiff, Herbert A. Feinberg, appeals from the dismissal of his breach of contract action against the defendants, Henry Berglewicz and Carl Muller, for failing to establish a prima facie case. The central issue on appeal is whether the trial court correctly dismissed the plaintiffs case under Practice Book § 302. The plaintiff claims that he presented evidence that, viewed most favorably to make a prima facie case, established that the defendants (1) failed to use reasonable efforts to satisfy a condition to the contract, (2) breached the contract, (3) acted in bad faith and (4) breached an implied covenant of good faith. The trial court did not agree; neither do we. We affirm the trial court’s judgment.

This appeal arises from a dispute between the parties over the sale of commercial property in Bark-hamsted. The parties are experienced businessmen; the defendants buyers had substantial experience in real estate development; the plaintiff seller had invested in realty previously and was represented by a commercial development realtor. On March 31,1989, the parties signed a one page purchase and sale agreement containing two conditions. The defendants promised to pay the plaintiff $585,000 sixty days from the date of the agreement conditioned (1) on the plaintiff’s taking a second mortgage for $85,000 and (2) on the defendants’ “ obtaining] [a] special exception to permit manufacturing uses in the building.”

During the next two months, the defendants sought tenants for the premises and a special exception from the zoning commission. The property was zoned industrial, but Barkhamsted required a special exception to conduct industrial activity. The town also required that the application specify the proposed type of industrial use. Because the defendants had not found a tenant, they were unable to specify the proposed use. The defendants requested an extension of the agreement period so that they could find a tenant and specify the use; the plaintiff refused. Nonetheless, the defendants filed an application with the zoning commission without specifying a use. It was denied on June 23, 1989.

After the denial, the defendants requested return of their deposit. The plaintiff refused and insisted on performance of the contract. This suit resulted. After presenting evidence for two days, the plaintiff rested. The trial court then granted the defendants’ motion for dismissal for failure to make out a prima facie case pursuant to Practice Book § 302. The trial court ruled that the zoning contingency was a condition precedent to the agreement, which was not met. When the zoning condition was not satisfied, the agreement became unenforceable. The plaintiff alleged that the zoning condition was not met because the defendants did not use their best efforts to secure a mortgage for the purchase.

In considering a motion under Practice Book § 302, a trial court must consider as true all of the plaintiff’s evidence. Hinchliffe v. American Motors Corporation, 184 Conn. 607, 609-10, 440 A.2d 810 (1981); Bolmer v. Kocet, 6 Conn. App. 595, 603, 507 A.2d 129 (1986). Further, a trial court must draw all reasonable inferences in the plaintiffs favor. Pagni v. Corneal, 13 Conn. App. 468, 470, 537 A.2d 520, cert. denied, 207 Conn. 810, 541 A.2d 1239 (1988). “[WJhen the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff,” dismissal is appropriate. Hinchliffe v. American Motors Corporation, supra, 609; Gulycz v. Stop & Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).

On appeal of a dismissal pursuant to Practice Book § 302, the reviewing court considers the trial court’s conclusions in light of the evidence in the record. Bersh-tein, Bershtein & Bershtein v. Nemeth, 221 Conn. 236, 239, 603 A.2d 389 (1992).

The trial court ruled that the zoning special exception contingency was a condition precedent to the agreement. “A condition is an event, not certain to occur, which must occur . . . before performance under a contract becomes due.” 2 Restatement (Second), Contracts § 224 (1981). If the condition is not fulfilled, the right to enforce the contract does not come into existence. K. A. Thompson Electric Co. v. Wesco, Inc., 27 Conn. App. 120, 126, 604 A.2d 828 (1992). In this case, the agreement’s plain, unambiguous language conditioned its validity on the zoning special exception. See 2 Restatement (Second), Contracts § 226 (1981). Because the plaintiff, notwithstanding his business acumen, declined to write a more specific condition, failure of the zoning condition completely invalidated the contract. Thus, the zoning commission’s denial made the agreement void against either party. K. A. Thompson Electric Co. v. Wesco, Inc., supra, 124.

The plaintiff claims that the defendants failed to make reasonable efforts to satisfy the zoning condition. Contingency clauses imply a promise that they will be pursued with reasonable effort. Id., 127; Phillipe v. Thomas, 3 Conn. App. 471, 475, 489 A.2d 1056 (1985). Thus, if the plaintiff established that the defendants failed to make reasonable efforts to obtain the zoning condition, the failure of the condition precedent would not have excused the defendants’ performance. The trial court concluded, however, that the plaintiff did not produce evidence to show that the defendants failed to use their best efforts to obtain the special exception.

Viewing the plaintiff’s evidence as true, the evidence was that the plaintiff allowed the defendants only three months to find a tenant and to satisfy the zoning condition, and that, during that time, the defendants negotiated with at least seven potential tenants. Further evidence was that the defendants consulted a general contractor and a heating contractor about renovating the building. They sought financing from two local banks. They also commissioned a study of alternative uses and an artist’s rendering for marketing purposes. Finally, they applied to the Barkhamsted zoning commission for the required special exception. This evidence, accepted as true, allowed the court to conclude that the plaintiff did not produce evidence to show that the defendants failed to use their best efforts to obtain the zoning special condition. Therefore, we will not disturb the trial court's conclusion that the plaintiff failed to establish a prima facie case.

The plaintiff’s only remaining claim is that the defendants acted in bad faith. “Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992). “Bad faith means more than mere negligence; it involves a dishonest purpose.” Id., 237. Neglect or refusal to fulfill a contractual obligation can be bad faith only if prompted by an interested or sinister motive. Id.

Here again, we hold that the trial court was correct in concluding that the evidence to establish the plaintiff’s cause of action failed to exist. Viewing plaintiff’s evidence as true, the trial court found no evidence of bad faith. The defendants’ reasonable efforts to satisfy the zoning condition belie the claim of bad faith. The defendants attempted honestly to find a tenant. The defendants could not specify the use, as required by the zoning commission, because they had yet to find a tenant. Their request for more time in which to locate a tenant was denied by the plaintiff himself. Even after the zoning commission denied the application, the defendants continued negotiating with potential tenants. They also requested additional time in which to find tenants so they could satisfy the zoning commission’s specific use requirement. That request and additional option offers on the property made by the defendants were denied by the plaintiff. This evidence adduced by the plaintiff and taken as true, establishes that the plaintiff did not show that the defendants failed to use their best efforts to obtain the special exception.

In sum, the evidence, taken as true, was that the defendants made reasonable efforts to satisfy the zoning condition and acted in good faith. The contingent nature of the contract is unambiguous. The plaintiff, experienced in business and realty, missed his opportunity to make the condition more specific. Because the condition was not satisfied, the contract was not binding. Absent a binding contract, there can be no breach. Thus, the plaintiff’s other claims must also fail. The trial court properly dismissed the plaintiff’s case.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 302 provides: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. ...”

       A third contingency permitted the defendants to cancel if unable to secure a mortgage. The defendants waived this condition and we need not address it.

       The trial court’s limited discretion in ruling on a Practice Book § 302 motion contrasts with the trial court’s discretion in ruling on the merits of a case. The constraints imposed under Practice Book § 302 “are removed, of course, when the trial court is passing upon the merits of a case. ‘Once a case is ultimately presented to the factfinder for final decision, an entirely different analysis is applied. Rather than being required to take as true the evidence offered by the plaintiff, the trier of fact can disbelieve any evidence, even if uncontradicted.’ (Citations omitted.)” Strickland v. Vescovi, 3 Conn. App. 10, 15, 484 A.2d 460 (1984), quoting Berchtold v. Maggi, 191 Conn. 266, 272, 464 A.2d 1 (1983).


author: Per Curiam.

text:
    Kimball E. Dooley v. Cinda S. Dooley
    (11969)
    Dupont, C. J., Daly and Foti, Js.
    Submitted on briefs September 24
    decision released October 12, 1993

      Edward Kanowitz filed a brief for the appellant (plaintiff).

      Richard J. Fricke filed a brief for the appellee (defendant).
   Per Curiam.

On September 10,1992, the defendant filed a motion for modification of pendente lite orders that had been entered on July 20,1992. The motion was based on a claim that the plaintiff had been “offered a job at a substantially increased rate of pay which the plaintiff declined for purposes of this suit.” The trial court granted the motion and reduced the alimony that the defendant had been ordered to pay from $250 per week to $100 per week.

Alimony pendente lite may not be modified unless there has been a substantial change in circumstances since the date of the award. The defendant claims that the plaintiff has been offered a job at a substantially increased rate of pay which the plaintiff declined. The record fails to disclose any such evidence. The record does indicate, however, that the plaintiff tried to obtain better employment opportunities. Therefore, there is no basis in the record to establish that there had been a substantial change in the circumstances of the plaintiff.

The judgment is reversed and the case is remanded with direction to deny the motion to modify.


text:
    R and S Landscaping, Inc. v. Tom Barberino
    (11558)
    O’Connell, Foti and Schaller, Js.
    Argued June 7
    decision released August 3, 1993

      David Barberino, for the appellant (defendant).

      Bruce A. Fontanella, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    American National Bank v. William T. Shea et al.
    (12267)
    Lavery, Landau and Freedman, Js.
    Argued September 14
    decision released October 5, 1993

      Michael T. Landino, for the appellants (named defendant et al.).

      Francis P. Barberio, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Sol Vasquez
    (11550)
    Foti, Lavery and Freedman, Js.
    Argued September 20
    decision released October 5, 1993

      Denise Derby, special public defender, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Edward Riceiardi, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Julius C. Pagano, Inc. v. Chase Development Group, Inc., et al. North American Bank and Trust Company v. Chase Development Group, Inc., et al.
    (12151)
    Foti, Freedman and Schaller, Js.
    Argued September 13
    decision released October 5, 1993

      Donald N. Vitale, for the appellant (named plaintiff in the first case, defendant in the second case, Julius C. Pagano, Inc.).

      Richard Bruno, for the appellee (named defendant in the first case, plaintiff in the second case, North American Bank and Trust Company).
   Per Curiam.

The judgment is affirmed.


text:
    Susan B. Adams v. Daniel A. Adams
    (11741)
    Lavery, Freedman and Cretella, Js.
    Argued September 21
    decision released October 12, 1993

      A. A. Washton, for the appellant (plaintiff).

      Raymond L. Baribault, Jr., with whom was Drzislav Coric, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Centerbank v. Fairway Estates II et al.
    (12190)
    Lavery, Freedman and Cretella, Js.
    Argued September 21
    decision released October 12, 1993

      Richard P. Weinstein, with whom, on the brief, was Jennifer C. Jaff for the appellants (named defendant et al.).

      Thomas A. Kaelin, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Investors Mortgage Company, Inc. v. Herbert Smith et al.
    (12252)
    Foti, Landau and Cretella, Js.
    Argued September 22
    decision released October 12, 1993

      Herbert Smith, pro se, with whom, on the brief, was Lois Smith, pro se, the appellants (named defendant et al.).

      Ronald D. Japha, with whom, on the brief, were Abraham I. Gordon and Richard S. Scalo, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Charter Oak Federal Credit Union v. Daniel J. Del Grosso et al.
    (12263)
    Lavery, Freedman and Cretella, Js.
    Argued September 21
    decision released October 12, 1993

      Daniel Del Grosso, pro se, the appellant (named defendant).

      Charles J. Irving, for the appellee (plaintiff).
   Per Curiam.

We have carefully reviewed the issues raised by the named defendant and find them to be without merit.

The judgment is affirmed.


text:
    State of Connecticut v. James R. Davis
    (10631)
    Lavery, Landau and Schaller, Js.
    Argued September 27
    decision released October 19, 1993

      William R. Schipul, assistant public defender, with whom, on the brief, was William Holden, public defender, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    K. W. Dolmar Broadcasting Company et al. v. Paul Matar
    (11670)
    Foti, Heiman and Schaller, Js.
    Argued September 29
    decision released October 19, 1993

      Paul Matar, pro se, the appellant (defendant).

      Joseph P. Secóla, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Lamberto Lucarelli v. Freedom of Information Commission et al.
    (11788)
    O’Connell, Landau and Schaller, Js.
    Argued September 28
    decision released October 19, 1993

      Lamberto Lucarelli, pro se, the appellant (plaintiff).

      Colleen M. Murphy, commission counsel, with whom were Ralph E. Urban, assistant attorney general, and, on the brief, Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Roslyn Daniels Brown v. Wilbert C. Brown
    (11847)
    Lavery, Landau and Schaller, Js.
    Argued September 27
    decision released October 19, 1993

      Bryan L. LeClerc, with whom, on the brief, was Peter J. Ottomano, for the appellant (plaintiff).

      Roy S. Ward, with whom, on the brief, was Douglas Wells, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Donald F. Harris et al. v. City of Hartford
    (12031)
    Dupont, C. J., Foti and Lavery, Js.
    Submitted on briefs September 24
    decision released October 19, 1993

      Donald F. Harris, pro se, and Lisa M. Harris, pro se, the appellants (plaintiffs), filed a brief.

      Joseph M. Lugo and Helen Apostolidis, assistant corporation counsel, filed a brief for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. William A. Allen, Jr.
    (11513)
    Foti, Lavery and Heiman, Js.
    Argued September 28
    decision released October 19, 1993

      Nancy A. Freedman, assistant public defender, with whom, on the brief, was Andrew S. Liskov, assistant public defender, for the appellant (defendant).

      Charles O’Hara, certified legal intern, with whom were Rita M. Shair, assistant state’s attorney, and, on the brief, Donald A. Browne, state’s attorney, and John Blawie, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Gateway Bank v. Richard J. DeSoto et al.
    (12392)
    Foti, Lavery and Freedman, Js.
    Argued September 20
    decision released October 19, 1993

      Paul E. Swenson, for the appellants (named defendant et al.).

      Deborah Monteith Neubert, for the appellee (plaintiff).
   Per Curiam.

The trial court’s judgment of strict foreclosure was improper because no default had ever been entered against two of the defendants and, therefore, the pleadings were not closed.

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


text:
    People’s Bank v. Severina Pandora et al.
    (11989)
    O’Connell, Foti and Schaller, Js.
    Argued October 1
    decision released October 26, 1993

      Laurence V. Parnoff, with whom, on the brief, was Kathryn L. Braun, for the appellants (defendants).

      Thomas V. Battaglia, Jr., for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Gregory Delos Santos
    (12027)
    Dupont, C. J., Foti and Heiman, Js.
    Argued October 5
    decision released October 26, 1993

      Michael R. Hasse, special public defender, for the appellant (defendant).

      David J. Sheldon, assistant state’s attorney, with whom, on the brief were C. Robert Satti, Sr., state’s attorney, and Marcia A. Pillsbury, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Fleet Bank of Connecticut v. Peter Lawler et al.
    (11908)
    Landau, Freedman and Schaller, Js.
    Argued September 30
    decision released October 26, 1993

      Peter J. Sterling, for the appellants (named defendant et al.).

      Ann R. Stravelle-Schmidt, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    John Hychko v. Thomas Didomizio et al.
    (11944)
    Landau, Freedman and Schaller, Js.
    Argued September 30
    decision released October 26, 1993

      F. Herbert Gruendel, for the appellants (defendants).

      Robert P. Hanahan, for the appellee (plaintiff).
   Per Curiam.

We hold, and the parties agree, that there are material issues of fact yet to be decided and, therefore, summary judgment should not have been rendered.

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


author: Freedman, J.

text:
    Amalgamated Transit Union Local 1588 v. Laidlaw Transit, Inc.
    (11913)
    Daly, Landau and Freedman, Js.
    Argued September 14
    decision released October 15, 1993

      Leon M. Rosenblatt, for the appellant (plaintiff).

      Duncan Ross MacKay, with whom, on the brief, was Jean Tomasco, for the appellee (defendant).
   Freedman, J.

The plaintiff, Amalgamated Transit Union Local 1588, appeals from the judgment of the trial court confirming an arbitration award and finding that the defendant, Laidlaw Transit, Inc., had complied with the award. The plaintiff claims that the trial court improperly found that the defendant had complied with the award. In its reply brief and again at oral argument, the plaintiff conceded that during the pendency of this appeal union member June Collins had been reinstated to the position to which she claimed she was entitled as a result of the arbitration award. We hold that the trial court exceeded its authority when it found that the defendant had complied with the award, and that, with respect to the confirmation, the appeal is moot.

The relevant facts are as follows. On February 6, 1991, Collins was terminated by the defendant from her job as a school van driver in South Windsor. Collins took a medical leave of absence on October 8,1990. While Collins was out on leave, the South Windsor school district learned that Collins was undergoing alcohol rehabilitation. The school district notified the defendant that Collins could not drive a South Windsor route when she returned to work. On January 23, 1991, Collins’ physician released Collins to return to work, stating that she could safely perform her duties as a school van driver. Because of the position taken by the South Windsor school district, however, the defendant would not allow Collins to drive in South Windsor. The plaintiff and Collins refused to accept any other assignment.

The plaintiff, on behalf of Collins, filed a grievance against the defendant. When the grievance was not settled, the plaintiff filed for arbitration before the state board of mediation and arbitration. The panel of arbitrators unanimously found for the plaintiff and ordered that Collins “be reinstated to her position, with her seniority and all other rights, and she shall be compensated for all lost earnings, less any other monies she may have earned or any unemployment compensation.” Thereafter, the defendant continued to refuse to return Collins to her previous route in South Windsor but repeatedly offered her routes in other districts.

On June 23, 1992, the plaintiff filed an application with the trial court to confirm the award of the arbitration panel pursuant to General Statutes § 52-417. The trial court confirmed the award, and further found that the defendant had complied with the award by offering Collins substantially similar routes. The plaintiff appeals from the judgment of the trial court.

I

With respect to the trial court’s finding that the defendant had complied with the arbitration award, the trial court exceeded its authority. It engaged in a fact-finding hearing to determine the issue of compliance by the defendant, and then concluded that the defendant had complied.

General Statutes § 52-417 provides that in ruling on an application to confirm an arbitration award “[t]he court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.” (Emphasis added.) The trial court lacks any discretion in confirming the arbitration award unless the award suffers from any of the defects described in General Statutes §§ 52-418 and 52-419. Von Langendorff v. Riordan, 147 Conn. 524, 528-29, 163 A.2d 100 (1960); Hadelman v. Alderman, 4 Conn. App. 577, 578-79, 495 A.2d 739 (1985). Furthermore, if a motion to vacate, modify or correct is not made within the thirty day time limit specified in General Statutes § 52-420, the award may not thereafter be attacked on any of the grounds specified in §§ 52-418 and 52-419. Vail v. American Way Homes, Inc., 181 Conn. 449, 452-53, 435 A.2d 993 (1980); Local 1078 v. Anaconda American Brass Co., 149 Conn. 687, 691, 183 A.2d 623 (1962). In this case, the defendant did not move to vacate, modify or correct the arbitration award. The trial court, therefore, had no choice but to confirm the award. International Brotherhood of Teamsters v. Trudon & Platt Motor Lines, Inc., 146 Conn. 17, 21, 147 A.2d 484 (1958).

In addition to confirming the arbitration award, however, the trial court went further and found that the defendant had complied with the award. The trial court did not have the authority to make such a finding. General Statutes § 52-417 sets forth the authority of the trial court in ruling on an application to confirm an arbitration award. The statute contains no provision for finding facts or resolving additional issues. The court may only confirm the award, unless the award suffered from any of the defects described in General Statutes §§ 52-418 and 52-419.

The defendant argues, however, that in addition to confirming the award pursuant to General Statutes § 52-417, the language of General Statutes § 52-421 (b) also applies. General Statutes § 52-421 (b) allows the trial court, “[w]hen the award requires the performance of any other act than the payment of money . . . [to] direct the enforcement thereof in the manner provided by law for the enforcement of equitable decrees.” The defendant posits that this would allow the trial court to make the finding that the defendant had complied with the award. We disagree. Finding that the defendant complied with the award is not the same as directing the manner of enforcing the award. We conclude, therefore, that the trial court exceeded its authority in finding that the defendant had complied with the award.

II

Having disposed of the only viable issue, we now analyze the confirmation. It is well established that an appeal is moot when there no longer exists an actual controversy between the parties or when the court can no longer grant any relief. Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). Action of the parties themselves may render an appeal moot. Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134, 566 A.2d 703 (1989). Furthermore, where the relief sought by an appellant has already been granted, the appeal is subject to dismissal as moot. Lucarelli v. Freedom of Information Commission, 29 Conn. App. 547, 551, 616 A.2d 816 (1992) , cert. denied, 225 Conn. 901, 621 A.2d 284 (1993).

In this case, because Collins has been reinstated to her previous position of van driver in South Windsor, the appeal is moot as to any issue regarding confirmation of the award and must be dismissed.

The appeal is dismissed in part and the judgment is vacated as to that portion that states that the defendant had complied with the arbitration award.

In this opinion the other judges concurred.

       The plaintiff union is the collective bargaining representative for its union member, June Collins.

       Arbitration was the final step under the grievance procedure set forth in the contract between the plaintiff and the defendant.

       General Statutes § 52-417 provides in pertinent part: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides ... for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       General Statutes § 52-418 (a) provides in pertinent part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-419 (a) provides in pertinent part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.”

       General Statutes § 52-420 (b) provides: “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion."


author: Landau, J.

text:
    Stewart S. Danziger et al. v. Ida J. Shaknaitis
    (12009)
    Landau, Heiman and Schaller, Js.
    Argued September 20
    decision released November 2, 1993

      Albert Carocci, for the appellant (plaintiff Rita Johnson).

      John H. Hanks, for the appellee (defendant).

      Averum J. Sprecher filed a brief as amicus curiae.
   Landau, J.

In this action in negligence, the plaintiff Rita Johnson appeals from the judgment rendered against her following (1) the granting of the defendant’s motion for summary judgment as to Johnson, and (2) the denial of Johnson’s motion for summary judgment. The principal issue on appeal is whether an amended complaint, served after the return date of the original writ of summons attached to the complaint and changing the return date from an improper day to an appropriate day, relates back to the date of original service so as to survive a motion for summary judgment under General Statutes § 52-584.

The following facts are relevant to this appeal. Johnson sustained personal injuries on April 21,1989, while a passenger in a vehicle operated by Danziger. Danziger’s car was involved in a collision with a car operated by the defendant, Ida J. Shaknaitis. The writ of summons and the complaint were personally served on the defendant on April 17,1991, and were returned to the court prior to the return date. The documents were given a return day of Wednesday, May 8, 1991. On May 28, 1991, the defendant filed a timely motion to dismiss the action. claiming that the plaintiffs’ use of a Wednesday for a return day violated General Statutes § 52-48 which requires that the return day be a Tuesday. On May 31,1991, the defendant was served with amended mesne process that was filed with the Superior Court on June 3,1991, together with “Plaintiffs’ Request for Permission to Amend Writ, Summons and Complaint,” and an objection to the defendant’s motion to dismiss. The defendant did not object to the request for permission to amend and filed an answer to the amended complaint together with a special defense alleging that the plaintiffs’ complaint was time barred by the applicable statute of limitations. Johnson, in her reply, denied the special defense, and, by motion dated November 20, 1991, moved for summary judgment with respect to the defendant’s special defense. Johnson’s reply closed the pleadings as to her and the defendant filed a motion for summary judgment on the count applicable to Johnson claiming that the action was time barred. The pleadings remained open as to Danziger at that time.

The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 provides that summary judgment “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.” See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn. App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); “the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ...” (Citations omitted; internal quotation marks omitted.) Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). “The test is whether a party would be entitled to a directed verdict on the same facts. . . . Trotta v. Branford, supra, 410.” (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn. App. 569, 573, 626 A.2d 788 (1993).

The plaintiff argues that General Statutes § 52-72 allows her to amend her process to reflect the correct return date. The defendant, on the other hand, argues that the plaintiff cannot amend her civil process because the return date had already passed at the time the request to amend had been filed in the trial court and, therefore, the court lacked subject matter jurisdiction.

“Statutory limitations . . . for the return of process implement the speedy determination of the issues involved. . . . Such time limitations on the enforcement of a right, created by statute and not existing at common law, [are] a part of the right and must be met in order to provide a court with jurisdiction to hear the cause of action. . . .” (Citations omitted; internal quotation marks omitted.) Bergin v. Bergin, 3 Conn. App. 566, 569, 490 A.2d 543, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985). “[A]n improperly specified return date affects the court’s jurisdiction. . . . [An] incorrect return date should not be viewed lightly. The defect of an improper return day is not a minor defect. Rather ... an improper return day is a defect which could not be corrected at all until [General Statutes] § 52-72 was enacted.” (Citation omitted; internal quotation marks omitted.) Carlson v. Fisher, 18 Conn. App. 488, 495-96, 558 A.2d 1029 (1989). “ ‘[I]t is the actual return of the writ to the court which really puts the action before the court and empowers the court to proceed . . . .’ ” Arpaia v. Corrone, 18 Conn. App. 539, 541, 559 A.2d 719 (1989). Until such time as a proper return is made to the court, it lacks jurisdiction to consider the matter. Even though a defendant in a civil action may consent to the jurisdiction of the court, that court will still not have the power to proceed with the action until a proper return of process is made to the court. Id.

A review of Carlson v. Fisher, supra, appears initially to support the plaintiffs position. The Carlson court, upholding the trial court’s denial of the defendant’s motion to dismiss, recognized that § 52-72 allows for “ ‘a proper amendment to civil process which has been made returnable to the wrong return day . . . .’ ” Id., 495. In Carlson, however, the motion to dismiss was filed before the date for return had passed, and there was no indication whether the amendment was filed before or after the return day had passed. Here, the curative amendment was filed after the return date had passed and Carlson, therefore, is not controlling under the facts of this case.

By contrast, in Arpaia v. Corrone, supra, this court held that when the return of service is not timely, it is a defect that cannot be cured by amendment. The rationale is that once the date for return has passed, there is nothing before the court that can be amended. Id., 540-41. The same rationale applies here. The plaintiff’s summons in this case failed to state a correct return date. Therefore, there was no proceeding before the trial court. The plaintiff’s request to amend the return day was filed after the date for return had passed. The plaintiffs request attempted to amend an action that was not properly before the trial court and must fail. Concept Associates, Ltd. v. Board of Tax Review, 31 Conn. App. 793, 627 A.2d 471, cert. granted, 227 Conn. 913, 632 A.2d 689 (1993).

The trial court’s judgment rendered against Johnson for lack of subject matter jurisdiction was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court’s decision, on January 22,1992, did not address the merits of the plaintiff Rita Johnson’s motion for summary judgment, finding no authority in Practice Book § 379 for a party to move for summary judgment as to a special defense. Without commenting on the trial court’s reasoning, we recognize that the trial court’s decision granting the defendant’s motion for summary judgment based on the claim of statute of limitations effectively denied Johnson’s motion for summary judgment and we will treat it as such. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 487, 280 A.2d 359 (1971). At oral argument, both parties conceded that the trial court’s decision granting the defendant’s motion for summary judgment encompassed a denial of Johnson’s motion for summary judgment.

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       An appearance was filed by the defendant on May 9, 1991.

       General Statutes § 52-48 provides in pertinent part: “(a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the superior court may be made returnable on any Tuesday in any month. . . .” (Emphasis added.)

       Within the defendant’s motion to dismiss she argues that her “Motion to Dismiss should be granted unless plaintiffs amend the return day and reserve the defendant with the amended process.” To the extent that defendant’s argument encompasses a waiver claim, in light of our holding that the issue involves subject matter jurisdiction, that argument is inappropriate. “ ‘Subject matter jurisdiction is the power of the court to hear and determine cases . . . .’” Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764-65, 628 A.2d 1303 (1993). As such, “subject matter jurisdiction cannot be waived by the parties or by the court.” Id., 767, citing Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988).

       See footnote 3.

         On March 13, 1992, the named plaintiff, Stewart S. Danziger, filed a reply to the defendant’s special defenses. Thereafter, the defendant filed a motion for summary judgment against Danziger based on the statute of limitations, and Danziger filed an objection. On June 23,1992, the motion court, Austin, J., denied that motion.

       General Statutes § 52-72 provides in pertinent part: “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.
      “(b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form. . . .”

       The applicability of Carlson and Arpaia, both involving defense motions, is not affected by the fact that this case concerns a plaintiff’s request.