author:
FLYNN, J.
      SCHALLER, J.,

text:
    ZBIGNEIW J. WITCZAK v. MICHAEL GERALD ET AL.
    (AC 20893)
    Schaller, Flynn and Daly, Js.
    Argued September 21, 2001
    officially released April 9, 2002

      Jacques J. Parenteau, for the appellant (plaintiff).

      Paul M. Shapiro, assistant attorney general, with whom were Paul S. McCarthy, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, Gregory T. D’Auria, associate attorney general, and Bernard F. McGovern, Jr., assistant attorney general, for the appellees (defendants).
   Opinion

FLYNN, J.

The plaintiff, Zbigneiw J. Witczak, appeals from the trial court’s judgment dismissing his complaint, which alleged intentional interference with his employment contract and intentional infliction of emotional distress arising from the defendants’ review of the plaintiffs candidacy for tenure status at the University of Connecticut. Each of the defendants, Michael Gerald, Diane Burgess and Alexandras Makriyannis, recommended that the plaintiff be denied tenure. The university’s board of trustees denied the plaintiff tenure and subsequently dismissed him from his employment at the university altogether. The court dismissed the plaintiffs complaint on the ground that the defendants were immune from suit under General Statutes § 4-165, which provides immunity from suit for certain state employees. The trial court concluded that § 4-165 immunized the defendants from suit because the plaintiffs complaint failed to allege conduct that was “wanton, reckless or malicious” and that fell within “the scope of their employment as . . . state employees.” We disagree. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings not inconsistent with this opinion.

We turn first to the proper standard of review. In this appeal, the sole issue is whether the pleadings alleged conduct that falls within an exception to statutory governmental immunity from suit under § 4-165 such that the trial court’s judgment of dismissal should be reversed. At the outset, we observe that the motion before the court, a motion to dismiss for lack of subject matter jurisdiction, was based solely on the allegations of the plaintiffs complaint and was not accompanied by affidavit or testimonial evidence. Under these circumstances, the facts alleged must be construed in the manner most favorable to the plaintiff. Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983). Since the motion to dismiss filed by the state employee defendants “does not seek to introduce facts outside of the record . . . it . . . admits all well pleaded facts .... Brewster v. Brewster, 152 Conn. 228, 233, 206 A.2d 106 (1964).” Duguay v. Hopkins, supra, 227.

As to both the interpretation of the pleadings and the interpretation of § 4-165, our review is plenary. See Davenport v. Quinn, 53 Conn. App. 282, 286-87, 730 A.2d 1184 (1999). “[T]he interpretation of pleadings is always a question [of law] for the court .... The modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded .... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient . . . .” (Internal quotation marks omitted.) Forte v. Citicorp Mortgage, Inc., 66 Conn. App. 475, 484-85, 784 A.2d 1024 (2001). With this standard of review in mind, we turn to the issue raised on appeal.

The following allegations, facts and procedural history are relevant to our disposition of this appeal. In 1996, the plaintiff was employed as an assistant professor in the school of pharmacy at the University of Connecticut, a state owned and operated university. In the fall of 1996, the head of the department of pharmaceutical sciences recommended to the dean of the school of pharmacy, the defendant Gerald, that the plaintiff be awarded tenure. The defendants Makriyannis and Burgess were members of an advisory council which evaluated the plaintiffs candidacy for tenure and ultimately recommended to the dean that the plaintiff be denied tenure. Gerald, as well as the majority of a faculty review board, took this recommendation under advisement and recommended to the chancellor of the university that the plaintiff be denied tenure. The chancellor accepted these recommendations and the board of trustees officially denied the plaintiff tenure in the summer of 1997. The plaintiff subsequently was also dismissed from his employment.

In count one of his complaint, the plaintiff alleged that the defendants “intentionally interfered with [the] plaintiffs employment agreement . . . .” The plaintiff alleged that the defendants refused “to adhere to procedures and protocol of the University of Connecticut during review of [the] plaintiff for tenure and in the creation of a record for tenure review . . . .” The plaintiff further alleged that “[w]ith regard to the handling of plaintiffs tenure case, [the] defendants acted in bad faith, inconsistent with the power they were given and the privilege they enjoyed as members of the Dean’s Advisory Counsel and/or as the Dean.”

Clarifying these allegations, the plaintiff specifically alleged, inter alia, that the defendants Burgess and Makriyannis intentionally and in bad faith destroyed a letter that supported the plaintiffs candidacy for tenure. The plaintiff alleged that Burgess and Makriyannis had themselves solicited the letter, and were required under contractual terms to preserve it in a formal record which was later relied on by all other persons reviewing his candidacy. The plaintiff alleged that this was done “in order to prevent [the plaintiff] from gaining favorable recommendation for tenure.” The plaintiff alleged that Burgess and Makriyannis intentionally underreported to the tenure decision makers both the amount of funding and the number of publications that the plaintiff had achieved. The plaintiff alleged that he had notified Gerald of the inaccuracies after Gerald had also recommended that the plaintiff be denied tenure, but Gerald intentionally refused “to take any steps to forward correct figures” to the persons charged with reviewing his candidacy after that point, despite his contractual duty to do so. The plaintiff alleged that Burgess and Makriyannis intentionally broke “University Laws and By-Laws . . . [by] focus [ing] almost exclusively on the number of . . . publications . . . and on the amount of grant funding” in the first place. Moreover, the plaintiff alleged that each of the defendants stood to gain school resources and enhance then-own standing at the university if their bad faith and intentional misconduct were to lead to the plaintiffs dismissal.

Next, we consider the relevant law of governmental immunity and indemnification under § 4-165. “It is well established that the state or a city is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases. See Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). Thus, in a case where a government is the defendant, courts do not have subject matter jurisdiction unless such jurisdiction is statutorily conferred. The legislature, however, has carved out certain statutory exceptions to the general rule of sovereign immunity and allowed governmental entities to be sued under certain limited circumstances. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979) . . . .” (Citation omitted; internal quotation marks omitted.) Brennan v. Fairfield, 58 Conn. App. 191, 195, 753 A.2d 396 (2000), rev’d on other grounds, 255 Conn. 693, 768 A.2d 433 (2001). “[B]ecause the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.” (Internal quotation marks omitted.) Shay v. Rossi, 253 Conn. 134, 168, 749 A.2d 1147 (2000). Section “4-165 . . . [is] in derogation of sovereign immunity . . . .” Hunte v. Blumenthal, 238 Conn. 146, 152, 680 A.2d 1231 (1996).

Section 4-165 provides in relevant part: “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. . . .” It remains uncontested in this appeal that the plaintiff alleged conduct that was caused in the discharge of the defendants’ duties. Thus, the issue on appeal is restricted to whether the plaintiff has alleged “wanton, reckless, or malicious” conduct by the defendants, such that this action would fall within the statutory exception to the sovereign immunity provisions of § 4-165.

The defendants concede that the plaintiffs complaint alleged intentional misconduct. In fact, in their brief the defendants specifically paraphrase the plaintiffs allegations, in part, as stating that Burgess and Makriyannis “intentionally destroyed a letter in support of the plaintiffs application for tenure” and that “the defendants intentionally interfered with the plaintiffs employment contract ... in creating a record that omitted information relevant to the tenure decision . . . ."

Making specific factual allegations, the plaintiff elucidated these broader allegations of intentional, bad faith interference with contract terms. For example, the plaintiff alleged that when Makriyannis and Burgess intentionally destroyed the letter which supported the plaintiffs candidacy for tenure, they did so “in order to prevent [the] plaintiff from gaining favorable recommendation for tenure.” The plaintiff alleged that they proceeded deliberately to underreport the plaintiffs publications and grant funding while at the same time focusing “almost exclusively” on those incorrect figures in their written recommendation to Gerald. The plaintiff alleged that this incorrect information remained on the record throughout the tenure review process and that each decision to recommend denial or to deny tenure was based on that corrupted record.

With respect to Gerald, the plaintiff alleged that after he informed Gerald of the deficiencies in the record, Gerald was under a contractual duty to correct the record before and after it tainted the next levels of review, yet Gerald intentionally and in bad faith, refused to correct the record. In general, the plaintiff alleged that the defendants “all . . . deliberately destroyed] and omit[ed]” material that they were required to furnish under the plaintiffs employment contract. The plaintiff also alleged the underlying illicit motive for the defendant’s intentional, bad faith interference with his contractual rights and intentional infliction of emotional distress, namely, that the defendants would gain resources at the school of pharmacy. Construed broadly and realistically, the defendants concede, and we agree, that these specific factual allegations describe intentional misconduct. For this reason alone, the trial court’s determination that the plaintiffs allegations invoked nothing beyond “claims of negligence” cannot stand.

The defendants argue, however, that although § 4-165 does not provide immunity for wanton, reckless or malicious damage or injury, it does provide immunity in the instance of intentional misconduct of the kind alleged. This hypothesis is not supported by a fair reading of the statute and recent case law. First, we observe that it would indeed be an incongruous result if § 4-165 protected those who intentionally injure others while holding liable those who do not intend to injure others, but have only disregarded an unjustifiable risk of such injury. Our Penal Code, for instance, generally treats those who intentionally injure others as more culpable than those who recklessly injure.

Second, and more importantly, our Supreme Court’s recent definition of “wanton, reckless and malicious conduct” in Shay v. Rossi, supra, 253 Conn. 181, encompasses the specific allegations of intentional misconduct at issue in this appeal. In Shay, our Supreme Court specifically defined “wanton, reckless or malicious,” as the terms are used in § 4-165, to require a plaintiff to demonstrate “on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one’s acts .... [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. ... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Internal quotation marks omitted.) Id.

The plaintiffs omission of the word “reckless” and use of the words “intentional” and “bad faith” do not render these elements absent. These specific allegations of “intentional” malfeasance and “bad faith” meet the terms of the exception to statutory immunity under § 4-165. The exception delineates conscious disregard for the rights and safety of others as a minimum requisite element and level of egregiousness, which is present in intentional acts such as the plaintiff has alleged, where the actor intends both the causative act and the resulting harm. While legal distinctions exist within these depths of the human psyche, our legislature was not required to chart them to exhaustion. It was sufficient for the legislature to express the policy that if a state employee acts wantonly, recklessly or maliciously, the state will not immunize him from legal action arising from that conduct. Our Supreme Court’s general definition of “wanton, reckless and malicious conduct” in Shay did not specifically state that “intentional” misconduct was included. Nonetheless, we conclude that as a necessary implication of that definition, it is also meant to include the more culpable state of mind characterizing intentional conduct of the kind the plaintiff alleges in his complaint.

Surveying the allegations and facts at play in Shay is illustrative. Although the court did not deal with identical language, the mode of conduct alleged was also deliberate malfeasance. In Shay, the plaintiff alleged that the defendants had maintained intervention measures, which are generally authorized for protecting children from parental child abuse when there were inadequate grounds to do so. Shay v. Rossi, supra, 253 Conn. 182. The allegations and facts were sufficient to establish that the defendants “knew that [their] actions were legally and factually unjustified . . . and that they nonetheless [engaged in those actions] not for the statutory purpose of protecting any of the Shay children, but in order to justify those prior unjustified actions.” (Emphasis added.) Id. Although not explicitly termed as such, these allegations and facts also indicate scienter, asserting “intentional” and “bad faith” misconduct. The court decided that such conduct is “more than negligence or gross negligence.” Id. Such intentional, bad faith behavior “falls within the standard of highly unreasonable conduct” excepted from § 4-165’s immunization. Id.

The legislative history of § 4-165 supports our interpretation that the legislature intended to encompass intentional misconduct in the phrase “wanton, reckless or malicious . . . .” In 1983, the General Assembly enacted a change in the relevant language of § 4-165. See Public Acts 1983, No. 83-464, § 1. Prior to that amendment, the phrase in question read “wanton or wilful,” rather than “wanton, reckless or malicious.” (Emphasis added.) General Statutes (Rev. to 1983) § 4-165. Our Supreme Court defines “wilful misconduct” as “intentional conduct” with “the design to injure either actually entertained or to be implied from the conduct and circumstances. ... Not only the action producing the injury but the resulting injury also must be intentional.” (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). As elaborated previously, the plaintiff alleged deliberate misconduct: that the defendants intended not only to commit the acts in question, but also intended to cause the resulting injury of interference with his contractual rights. Thus, the prior version of § 4-165 also would not have immunized the defendants from this suit. On the day of its adoption, this change in the language of § 4-165 raised the same confusion that the defendants’ argument demonstrates. Moments before enactment of the new language, Representative Robert G. Jaekle queried, “I would like to ask . . . why we are deleting the willful language on line 6. In other words, are we indeed going to be indemnifying state employees and officers for their willful conduct?” 26 H.R. Proc., Pt. 21, 1983 Sess., pp. 7498-99. Representative Richard D. Tulisano responded, “[T]he art of bill drafting in the last year or so has somehow gotten beyond my scope of ability to deal with any longer. I think the artisans who drafted this think, believe, and I believe also that willful is included in the word malicious.” Id., p. 7499. Thus, the present language of “wanton, reckless or malicious” was not intended to bar actions sounding in deliberate misconduct. Rather, the plaintiff’s allegations of deliberate misconduct are necessarily included in the broader language.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion DALY, J., concurred.

SCHALLER, J.,

concurring. Although I agree that the judgment of the trial court must be reversed, I believe that the decision of our Supreme Court in Shay v. Rossi, 253 Conn. 134, 749 A.2d 1147 (2000), is dispositive. In Shay, our Supreme Court defined language identical to that in the present case, and the Shay decision clearly encompasses the allegations of intentional misconduct at issue in this appeal. Id., 180-82. We are bound by our Supreme Court’s definition of the language at issue in this case. See Boretti v. Panacea Co., 67 Conn. App. 223, 231, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002). Accordingly, I would base our holding on the Shay decision alone, omitting the statutory discussion, the attempt to ascertain the intent of the Shay court and the discussion of legislative history. With those provisos, I respectfully concur in the result reached by the majority.

       A “tenured” professor is protected against summary dismissal and may be “discharged only for cause . . . .” Slochower v. Board of Education, 350 U.S. 551, 554, 76 S. Ct. 637, 100 L. Ed. 692 (1956).

       The plaintiff alleged that the terms of his employment contract demand an evaluation of all of his “strengths and weaknesses . . . [rather than] any fixed numerical measuring of accomplishments.”

       In the plaintiffs brief, the only issue treated is whether “the allegations of the plaintiffs complaint [were] sufficient to make out a cause of action for wanton, reckless and malicious conduct.” Thus, the plaintiff does not take issue with the trial court’s statement that “[i]t is not disputed that these three defendants were acting in the scope of their employment as University of Connecticut (state) employees . . . .”

       In their brief, the defendants state: “[T]he plaintiffs allegations of intentional conduct do not rise to the level of wilful, wanton or reckless conduct to remove the bar of immunity of § 4-165 and subject the defendant state employees to liability in their individual capacity.”

       For example, General Statutes § 53a-54a provides in relevant part that a “person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .” The crime of murder is punishable by life imprisonment or, if also a capital felony, by the penalty of death. See General Statutes § 53a-35a (1). General Statutes § 53a-55 (a), on the other hand, generally provides that a person commits a class B felony, punishable by between five years and forty years imprisonment, when “under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death . . . .”


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BRIAN MOORE
    (AC 20364)
    Mihalakos, Dranginis and Hennessy, Js.
    Argued January 15
    officially released April 9, 2002

      Leonard M. Crone, for the appellant (defendant).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence Mariani, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Brian Moore, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), and two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (5). On appeal, the defendant claims that a new trial should be ordered because he was denied due process and a fair trial by a pattern of prosecutorial misconduct that pervaded the trial. In support of this claim, the defendant asserts that a mistrial should have been declared because the prosecutor improperly (1) disclosed prejudicial matters to the jury through his questioning of the defendant in violation of the trial court’s ruling on a motion in limine and (2) introduced facts not in evidence during his closing argument to appeal to the passions of the jury. Although we agree with the defendant that some of the prosecutor’s conduct was improper, we conclude that the misconduct was not so prejudicial as to clearly deprive him of a fair trial. We, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In early 1997, the defendant sold two bulletproof vests, or the components thereof, to the victim, Glaister Gopie. Subsequently, the victim attempted, on many occasions, to return one of the vests for a refund. On the evening of May 18, 1997, the victim and his cousin, Andrew Mitchell, drove to Circular Avenue in Waterbury and parked on the street near a friend’s home. The victim, coincidentally, parked directly outside the home of the defendant’s half-sister, Crystal Bolton. Sometime earlier that day, the defendant and his girlfriend had driven to Circular Avenue to visit Bolton. As the defendant left Bolton’s home and as the victim approached his friend’s home, the two men encountered each other. The victim then confronted the defendant about the desired refund.

From that point, the confrontation escalated into a fistfight, in which the victim was the apparent victor. After the fight ended, the defendant retrieved a loaded .38 caliber revolver from his car. The defendant then shot at the victim twice. The victim ran, fell to the ground shortly thereafter and was found by police lying face down with a single gunshot wound in the middle of his lower back. The victim told an officer that the defendant had shot him. Subsequently, the police arrested the defendant.

Following a jury trial, the defendant was found guilty of two counts of assault in the first degree and one count of attempt to commit murder. As a result, he was sentenced to eighteen years for each count, to run concurrently, for a total effective sentence of eighteen years of incarceration. This appeal followed. Additional facts and procedural history will be provided as relevant.

Our standard of review concerning claims of prosecutorial misconduct is well settled. “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . .

“In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. ... In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial. . . . In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 266-67, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

We also note that “[p]rosecutorial misconduct can occur in the course of closing argument.” Id., 266. “[I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Inherent in this latitude is the freedom to argue reasonable inferences based on the evidence.” (Internal quotation marks omitted.) State v. Conde, 67 Conn. App. 474, 501, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002). Nevertheless, “in fulfilling his duties, the prosecutor must confine the arguments to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony that is not the subject of proper closing argument.” (Internal quotation marks omitted.) Id. Heeding these principles, we are further mindful that “[i]n determining whether this claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor’s remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant.” State v. James, 54 Conn. App. 26, 43-44, 734 A.2d 1012, cert. denied, 251 Conn. 903, 738 A.2d 1092 (1999).

I

The defendant first claims that, in violation of a court order, the prosecutor prejudicially revealed to the jury that the defendant was a convicted felon. We disagree.

The following additional facts and procedural history are relevant to this issue. Before the trial commenced, the defendant filed several motions in limine, one of which sought to bar the state from offering evidence of the defendant’s 1990 conviction of possession of narcotics. Regarding that motion, the court ruled that the state could mention only that “the defendant was convicted of an unspecified crime carrying a penalty of more than one year at a certain place and time . . . .” The court specified, however, that it would “not allow direct evidence or testimony of the fact that it was for a narcotics conviction nine and a half years ago.” On October 19, 1999, the second day of the trial, the court reiterated and clarified its ruling on the motion shortly before the defendant testified.

On cross-examination, the prosecutor asked the defendant, “And you’re a convicted felon, aren’t you?” Upon hearing this question, defense counsel immediately objected, the jury was excused and defense counsel then made an oral motion for a mistrial. Defense counsel argued that the prosecutor’s question blatantly ignored the court’s ruling regarding the admissibility of the defendant’s prior conviction by not conforming to the language specified by the court in its ruling. See footnote 1. The court overruled the objection and denied the motion for a mistrial. The court noted that the intent of the controlling case law and, therefore, the court’s ruling was not meant to protect the defendant from the use of the term “felony” but was instead meant “to keep out narcotics rather than a felony.” The court further stated: “Call it a conviction for more than one year; call it a felony, to me, it’s consistent. I apologize to counsel for making it sound like a quote. I didn’t intend to keep the concept of a felony out, just narcotics and that was the expressed prayer for relief . . . .” When the trial resumed, the prosecutor asked the defendant twice more whether he was a convicted felon, to which the defendant replied in the affirmative. Similarly, in his closing argument, the prosecutor referred to the defendant as a convicted felon four times.

In its initial ruling regarding the introduction of evidence of the conviction and in its later summation of that ruling, the court relied on State v. Geyer, 194 Conn. 1, 480 A.2d 489 (1984). In Geyer, the defendant sought, through a motion in limine, to keep his prior convictions out of evidence because they were highly prejudicial in light of the fact that he was on trial for a narcotics offense identical to one of his prior convictions. Id., 3-4. The trial court denied the motion in large part but noted that it would deal with the scope of the prosecutor’s questions about certain convictions as they arose. Consequently, the defendant testified about his convictions during his direct testimony, and the prosecutor pursued them on cross-examination as well without alerting the court as he had promised. Id., 4-5. Our Supreme Court agreed with the defendant’s claim that the trial court’s ruling was improper and ordered a new trial. In doing so, our Supreme Court noted that “the prudent course for a trial court faced with a decision whether to admit as evidence of credibility prior convictions for crimes that do not directly reflect on credibility is to allow the state to mention that the defendant was convicted of an unspecified crime or crimes carrying a penalty of more than one year, at a certain time and place. The defendant’s character, from which the jury might draw an inference of dishonesty, would thus be sufficiently impugned without the extraordinary prejudice that sometimes follows when the prior crime is specifically named.” Id., 16.

Although the prosecutor in the present case may have appeared initially to skirt the court’s ruling on the defendant’s motion in limine and the language used in Geyer, we conclude that the prosecutor’s question regarding the defendant’s prior conviction and his later references to it were not improper. We first note that the prosecutor did not specifically name the offense underlying the prior conviction, in accordance with the thrust of the court’s ruling on the defendant’s motion in limine. Although the court used the language in Geyer twice as the template that the prosecutor should have employed for his question, the court later explained that its ruling was meant only to prevent the prosecutor from identifying specifically the narcotics offense underlying the prior conviction. The ruling was not intended to shelter the defendant from the use of the term “felony.” Further, the court adequately addressed any potential prejudice to the defendant through its instruction to the jury to use the prior conviction only to weigh the credibility of the defendant’s testimony. See footnote 5.

Moreover, the defendant’s stringent reliance on Geyer is misplaced. In Geyer, our Supreme Court did not rule that the use of the words “felony” or “felonies” was inappropriate when referring to a defendant’s prior convictions for such offenses. In fact, our Supreme Court in Geyer agreed with the defendant’s claim that the trial court “should have permitted the state to mention only that he had been convicted of unspecified felonies on those occasions.” (Emphasis added.) State v. Geyer, supra, 194 Conn. 5. Additionally, in this case the defendant was not threatened by the same kind of prejudice as that overshadowing the defendant in Geyer, who was on trial for the same offense as that underlying one of his prior convictions. Id., 14-15. Instead, the prosecutor here properly challenged the credibility of the defendant by questioning him about his prior conviction, although the prosecutor’s question could have been phrased more prudently in light of the court’s ruling and the language suggested in Geyer. We conclude, therefore, that this aspect of the defendant’s claim of prosecutorial misconduct is unavailing.

II

The defendant also asserts that the prosecutor improperly referred to facts not in evidence during his closing argument to appeal to the passions of the jury and, thereby, prejudiced the jury against the defendant. We agree that the prosecutor’s comments were improper but conclude that the comments did not substantially prejudice the defendant.

The following additional facts and procedural history bear on this claim. First, in an apparent attempt to counteract defense counsel’s closing argument concerning the victim’s trustworthiness, the prosecutor downplayed the victim’s own arrest record in New York by calling it a “minor thing” that “certainly wasn’t a felony.” The court sustained defense counsel’s objections to the prosecutor’s statements on the ground that no evidence had been presented at trial concerning the nature of the charges related to the victim’s arrest in New York.

Finally, the prosecutor referred to the actions of Bolton in the wake of the shooting. The prosecutor stated during his closing argument: “Crystal Bolton held [the victim’s] head as he was lying there bleeding. The defendant’s sister, she knew who shot Glaister Gopie.” The court sustained defense counsel’s objection to these comments as well. Undaunted by the court’s ruling, the prosecutor again stated that Bolton “knew who shot Glaister [Gopie].” Following the conclusion of the prosecutor’s closing argument, defense counsel again made an oral motion for a mistrial based on the prosecutor’s various closing comments. The court denied the motion but indicated that it would give the jury curative instructions related to the comments, which it did accordingly.

Our review of the trial transcript reveals that the defendant asserts correctly that neither the severity of the victim’s New York arrest nor the full extent of Bolton’s actions in relation to the victim were explored. We are mindful, however, that “[scrutiny of a challenged remark made during closing arguments to the jury . . . does not occur in a vacuum; an appellate court examines such remarks in light of the entire trial.” (Internal quotation marks omitted.) State v. Dillard, 66 Conn. App. 238, 248, 784 A.2d 387, cert. denied, 258 Conn. 943, 786 A.2d 431 (2001). Moreover, we recognize that “[i]f every remark made by counsel outside of the testimony were ground for a reversal, comparatively few verdicts would stand, since in the ardor of advocacy, and in the excitement of trial, even the most experienced counsel are occasionally carried away by this temptation.” (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 360, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999).

Examining the prosecutor’s remarks concerning the victim’s arrest under the factors set out in part I of this opinion, we conclude that they were improper but were not substantially prejudicial to the defendant in the context of the trial as a whole. To a certain extent, the prosecutor’s misconduct was invited by defense counsel’s closing argument because defense counsel used the arrest to undermine the victim’s credibility. As such, the severity of the misconduct was diluted, and we note that the remarks concerning the arrest were limited to two comments made at virtually the same point in time. Further, while the victim’s credibility was a critical issue in this case, the court adopted curative measures through its jury instruction strong enough to counter the misconduct appropriately, and we find no indication that the jury disregarded the court’s instruction. See State v. Rivera, 61 Conn. App. 763, 773, 765 A.2d 1240, cert. denied, 256 Conn. 901, 772 A.2d 599 (2001). Further, considering the strength of the state’s case, we cannot conclude that the remarks were substantially prejudicial to the defendant.

Similarly, although we are more disturbed and dismayed by the prosecutor’s remarks concerning Bolton’s actions, we conclude that they were not so prejudicial in the context of the entire trial as to deny the defendant due process and a fair trial. Mitchell testified that Bolton came around a comer and was in some way lying with the victim after the shooting. No testimony was offered, however, to support the prosecutor’s comment that Bolton actually cradled the head of the victim as he lay bleeding on the ground. Because prosecutors, even with the generous latitude afforded to them during closing argument, may not appeal to the passions or prejudices of a jury, the prosecutor’s remarks here were clearly improper. See State v. Conde, supra, 67 Conn. App. 501; State v. Dillard, supra, 66 Conn. App. 247. As a result, we are compelled to remind the prosecutor that “[wjhile the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider. . . . We have cautioned repeatedly that a prosecutor should avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury’s attention from their duty to decide the case on the evidence. . . .

“When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury.” (Internal quotation marks omitted.) State v. Dillard, supra, 66 Conn. App. 247. The prosecutor here appeared ready to shelve this solemn duty in favor of lesser gains. Notwithstanding this criticism, the remarks concerning Bolton’s actions occurred only during closing arguments and were not central to the critical issues in this case. Further, the court gave a curative instruction to the jury, and, again, in light of the strength of the state’s case, we cannot conclude that the remarks infected the trial with such unfairness as to deprive the defendant of due process. The defendant has, therefore, failed to shoulder his burden of proving that the prosecutor’s conduct, while improper, was substantially prejudicial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial transcript reveals the following relevant colloquy concerning the court’s ruling on the motion in limine, which addressed the introduction into evidence of the defendant’s prior conviction:
      “[Defense Counsel]: The only . . . other thing, Judge, is I just want to revisit this so there’s no mistake ... on my part or by the state’s attorney’s part. As I read [State v. Geyer, 194 Conn. 1, 480 A.2d 489 (1984)] and as I understand the court’s ruling on my motion in limine about the defendant’s record, the only question that can be asked about that is, ‘On [June 12, 1990,] in Waterbury, were you convicted of a crime that carried a penalty of one year or more?’
      “The Court: That . . . does seem to be my recollection as to what I ruled. Do you agree, attorney Mariani [assistant state’s attorney]?
      “[Assistant State’s Attorney]: As to that particular conviction. . . .
      * ** *
      “[Assistant State’s Attorney]: Actually, I just want to make sure I understand the court’s ruling [regarding the defendant’s prior conviction]. I can’t name that it’s a narcotics conviction. I understand that. I can name the date, that it’s a felony, and I can say, ‘You were sentenced to jail for fifteen months for that?
      “[Defense Counsel]: No.
      “The Court: No. I think the ruling of the court, and I took the language from a decision, was that . . . the inquiry could be . . . ‘Were you convicted of a crime for which the penalty was for more than one year’ and the date and place of the conviction. That is what I see as my direction from precedent cases and that’s what I would—
      “[Assistant State’s Attorney]: Okay. I understand.
      “The Court:—restrict the inquiry to be. All right.”

       To demonstrate that the victim’s testimony was not trustworthy, defense counsel asserted in his closing argument, among several other alleged discrepancies, that the victim lied about not having been in trouble with the law before he was arrested on certain unrelated charges in Connecticut, which were later nolled by the state. To that end, defense counsel discussed how it was shown during the trial that, in fact, the victim had a prior arrest record in New York.

       Our review of the trial transcripts reveals four main references to Bolton, who did not testify at the trial. First, the police officer who first arrived at the scene of the shooting testified that Bolton was one of two people he interviewed there and that she did not see the shooting. Second, the defendant testified that he was visiting Bolton on the day of the shooting and that Bolton was his half-sister. Third, Mitchell, who was also at the scene of the shooting, testified that following the shooting “a girl, Crystal Bolton, came down and she was like, ‘Oh, Glaister. Glaister,’ and I went over to call [the victim’s] mother.” Mitchell further testified that when the police arrived, “Crystal was lying there with [the victim].” Finally, the victim testified that after he was shot, Bolton “came around the comer and [his friend] came around the comer.”

       The trial transcript reveals in relevant part the substance of the court’s ruling on the defendant’s motion for a mistrial:
      “The Court: While I agree that there were comments that I think were gratuitous and require some curative instruction, I don’t feel that they rose to the level of misconduct that would deprive this defendant of a fair trial and . . . I’m going to deny the motion for a mistrial and while noting that, I’m also going to note that I intend to give some curative instruction to the jury and over the objections of the state who anticipates my remarks, they’re going to be more than just general.
      “One of them is going to focus on the comments that . . . the victim’s arrest in New York was a minor matter because my . . . review of the evidence and testimony in this case indicates there was no indication one way or the other and I think that is one thing that while in some ways might be damaging in its facts, is going to be repeated and focused on. I think it has to be done in fairness to the defendant to remind the jury that their recollection controls, but the record doesn’t indicate that there was any discussion about the nature of those offenses or crimes.
      * * *
      “In my opinion, [the prosecutor’s remarks concerning Bolton] were totally inappropriate remarks .... They imply testimony of a person that never even took the stand and I think they have to be corrected .... I’ve given that serious consideration, and it wouldn’t be the first time that a mistrial was entered in (his court and in this district for this kind of behavior.
      “I just don’t, think [the prosecutor’s] conduct warranted [a mistrial]. I don’t think it was appropriate either, so I’m going to try to do a balancing act here and cure what I consider to be inappropriate comments .... I’m not going to allow those comments to go uncommented on, either. I think that would deprive the defendant of a fair trial. I’m going to try and remedy what I think you did by way of error.”

       The trial transcript discloses the court’s instruction to the jury in relevant part:
      “I’m going to remind you that you were told on an earlier occasion what evidence is. It’s what comes out of this chair through witnesses.
      “And what isn’t evidence . . . are the comments and arguments of the attorneys, and a perfect example of that is what you hear the attorneys say to you in their closing arguments or their summations. That is not evidence. That’s the attorneys’ slant on what they feel the evidence produced or what it showed, and they have a right to summarize, but you have to remember, that’s from their own perspective and to do it appropriately, they have to refer only to the evidence and testimony that [has] been offered through the witnesses.
      “Now, in this particular case, in the closing argument, you may have heard comments that were made which were not testimony of the witnesses, and there were a couple of examples that I want to bring to your attention.
      “There was a closing argument made that the victim had a matter in New York State, a prosecution or an arrest. While you may have heard in closing argument that it wasn’t a major matter, it was a minor matter, the fact is there was no evidence or testimony . . . about that, just the fact of the arrest in New York. That’s all you heard, and if that’s your recollection, that’s what you should recall, regardless of what counsel may have said.
      “There was also a comment made about what a particular person at the scene of the crime may have done or seen, and that is Crystal Bolton. Crystal Bolton is not a witness in this case. There was testimony about what she was seen to do, for example, attend to the victim when he was on the ground, but there was no evidence or testimony about her personal thoughts or her observations or any knowledge that she might have had. It was a very dispatched testimony about what she was seen to be doing, so I want to bring to your attention that there was no testimony by Crystal Bolton in this case.
      “Those are just examples of where the court would normally . . . say, ‘Forget what the attorneys said. Remember what you heard.’ And that’s all I’m trying to do here. What they said, whether it was their opinions or their recollections, that doesn’t control. Your recollections control ....
      ❖ * *
      “The fact that a witness in this case—either state or defendant’s witness— may have admitted that he has been convicted of a crime is only admissible on the question of the credibility of the witness, that is, the weight you will give his testimony. A witness’ criminal record or admission of facts of stealing or lying or cheating bears only on his credibility. It’s your duty to determine whether this witness is to be believed wholly or partly or not at all. You may consider his prior conviction . . . and give such weight to those facts as you decide is fair and reasonable in determining the credibility of this witness.”


text:
    STATE OF CONNECTICUT v. LATONE JAMES
    (AC 21584)
    Lavery, C. J., and Mihalakos and Dupont, Js.

      Argued January 9
    officially released April 9, 2002

      Karen Diebolt, special public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Maureen M. Keegan, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Latone James, was previously convicted, after a jury trial, of robbeiy in the first degree in violation of General Statutes § 53a-134 (a) (2). The juiy was, however, deadlocked as to the remaining counts of felony murder and assault in the first degree. Our Supreme Court affirmed his robbeiy conviction and concluded that the state was not barred from retrying the defendant for felony murder. See State v. James, 247 Conn. 662, 725 A.2d 316 (1999). The defendant was convicted, after a second jury trial, of felony murder in violation of General Statutes § 53a-54c. The defendant now appeals from that judgment of conviction. On appeal, the defendant claims that the trial court improperly (1) permitted the state to amend the information after the defendant had testified, (2) denied the defendant’s motion to dismiss on double jeopardy, collateral estoppel and fundamental fairness grounds, (3) failed to instruct the jury that it had to find that the defendant was a principal and to give the jury a special verdict form, and (4) admitted into evidence a certified copy of the defendant’s robbery conviction. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the issues presented in this appeal. On March 1, 1995, the defendant was charged with the crimes of felony murder in violation of § 53a-54c, robbery in the first degree in violation of § 53a-134 (a) (2), and with two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). The information charged that the defendant was a principal in the commission of all of the crimes. After the defendant’s trial, the court, Fasano, J., accepted the guilty verdict as to the robbery count and declared a mistrial as to the remaining counts. The defendant was committed to the custody of the commissioner of correction for a term of twenty years.

Thereafter, the defendant was charged with felony murder in violation of § 53a-54c pursuant to a revised, substitute long form information dated February 14, 1997. Specifically, the state alleged that “the defendant, acting either alone or with another person committed the crime of robbery, and in the course of and in furtherance of such crime, he or another participant caused the death of Luis Melendez, who was not a participant to the robbery, by means of shooting.” Subsequently, the court, Damiani, J., denied the defendant’s motion to dismiss the substitute information, rejecting the defendant’s argument that the doctrines of double jeopardy and collateral estoppel precluded the state from trying the defendant again for felony murder.

The defendant appealed from the judgment of conviction and, in addition, filed an interlocutory appeal from the court’s denial of his motion to dismiss. Our Supreme Court affirmed both the conviction and the court’s denial of the motion to dismiss. See State v. James, supra, 247 Conn. 666. After a second trial, the defendant was found guilty of felony murder and was committed to the commissioner of correction for a term of fifty years to run concurrent with his sentence for the robbeiy conviction. This appeal followed.

As a preliminary matter, the defendant conceded during oral argument before this court that his first three claims were previously decided by our Supreme Court in State v. James, supra, 247 Conn. 662. “We are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.” (Internal quotation marks omitted.) State v. Thomas, 62 Conn. App. 356, 364, 772 A.2d 611, cert. denied, 256 Conn. 912, 772 A.2d 1125 (2001). It is not within our province to reevaluate or discard our Supreme Court’s decision in State v. James, supra, 662. See State v. Fleming, 36 Conn. App. 556, 573, 651 A.2d 1341, cert. denied, 233 Conn. 913, 659 A.2d 186 (1995).

The defendant’s one remaining claim is that the corut improperly admitted into evidence a certified copy of the judgment of conviction of robbery. Specifically, he argues that the admission of the certified copy of the judgment relieved the state from its burden to prove the underlying offense, namely, that the defendant committed robbery. We are not persuaded.

In his first trial, the defendant testified that he was merely an accessory to the crime of robbery and not the principal. Nevertheless, the jury returned a verdict of guilty of robbery as a principal. The defendant never testified at his second trial for felony murder, but a certified copy of the judgment of conviction of robbery was admitted upon the state’s request. The state also proffered the defendant’s entire testimony from the previous trial as an admission to having participated in the crime. The corut sustained the defendant’s objection to the admission of the prior testimony.

The defendant argues that because he did not testify in the second trial, the second jury could not have found that he was guilty of robbery beyond a reasonable doubt. The defendant has provided no authority, and our research has revealed none, for the proposition that a prior judgment of conviction of the underlying felony is insufficient to prove the commission of that felony in a subsequent trial for felony murder and that the state must prove, for a second time, the element of the felony of robbery.

“[T]o obtain a conviction for felony murder the state must prove, beyond a reasonable doubt, all the elements of the statutorily designated underlying felony, and in addition, that a death was caused in the course of and in furtherance of that felony.” (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 786, 717 A.2d 1140 (1998). If a jury returns a verdict of guilty for the underlying felony, the state has necessarily proven each of those elements beyond a reasonable doubt. See generally State v. Conde, 67 Conn. App. 474, 483-84, 787 A.2d 571 (2001) (jury must find each element of crime proven beyond reasonable doubt), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002). Accordingly, in the present case, the state must prove that a jury previously found the defendant guilty of robbery and that the death was directly related to the commission of the robbery. We conclude that a certified copy of the judgment of conviction of the underlying offense is sufficient to prove that element of felony murder.

“Our Supreme Court has stated that [t]o prove a conviction, it is necessary to show it by the record of a valid, subsisting final judgment.” (Internal quotation marks omitted.) State v. Henton, 50 Conn. App. 521, 532, 720 A.2d 517, cert. denied, 247 Conn. 945, 723 A.2d 322 (1998). Therefore, the admission into evidence of the defendant’s judgment of conviction of robbery proved the elements of the underlying felony as a predicate to felony murder. See id. (certified copy of judgment sufficient to prove prior felony conviction element of persistent dangerous felony offender charge); see also State v. Fullwood, 194 Conn. 573, 589, 484 A.2d 435 (1984).

Because the state had proven the elements of robbery in the defendant’s first trial, its burden of proof in the subsequent trial for felony murder was not lessened. The certified copy of the judgment of conviction was properly admitted to prove the elements of robbery and, therefore, satisfied the state’s burden to prove, beyond a reasonable doubt, the first element of felony murder.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants

       A complete recitation of the facts and procedural history of the underlying offense may be found in State v. James, supra, 247 Conn. 662.

       The state did not pursue the assault charges in the defendant’s second trial.

       “In his interlocutory appeal, the defendant claim[ed] that: (1) a retrial in this case would violate the double jeopardy clause of the fifth amendment to the United States constitution; (2) the state is collaterally estopped from relitigating the robbery count; and (3) given the verdict and the evidence in this case, the state is collaterally estopped from charging the defendant as an accessory to the felony murder.” State v. James, supra, 247 Conn. 666.

       We note that this argument contradicts the defendant’s double jeopardy and collateral estoppel arguments advanced before our Supreme Court and here. We fail to see how the defendant can reconcile his argument that the state is precluded by double jeopardy and collateral estoppel from trying him again for felony murder following a mistrial with his argument that the state cannot proffer a judgment of conviction to satisfy the first element of felony murder, but must try the defendant for robbery once more.


author: DRANGINIS, J.

text:
    MARINA LUSSIER v. ROBERTA SPINNATO ET AL.
    (AC 21372)
    Schaller, Dranginis and Daly, Js.
    Argued November 26, 2001
    officially released April 9, 2002

      Richard M. Franchi, for the appellant (plaintiff).

      Walter C. Bansley, for the appellees (defendants).
   DRANGINIS, J.

The plaintiff, Marina Lussier, appeals from the judgment of the trial court denying her motion to vacate an arbitration award in favor of the defendants. The plaintiff raises seven issues on appeal. We, however, discern only four distinct claims: Whether (1) the court improperly found that two separate agreements constituted the parties’ contract; (2) the parties’ agreement provided for arbitration of disputes arising under the contract; (3) the agreement between the parties complied with the Home Improvement Act (act), General Statutes § 20-418 et seq.; and (4) the court improperly denied the plaintiff a hearing on the issue of arbitrability- We affirm the judgment of the trial court.

The following facts are necessary for our resolution of these claims. In 1994, the plaintiffs single-family home was almost completely destroyed by fire. The plaintiff entered into a contract with the defendants to rebuild and renovate the existing structure into a two-family dwelling. The defendants began work on the premises sometime after September 22, 1994, and were paid $161,000 by the plaintiffs insurance company, but had performed work worth $215,000. The plaintiff failed to make a scheduled payment, and the defendants left the work site in July, 1995. The plaintiff hired another contractor to complete the project and to repair allegedly faulty work performed by the defendants.

In March, 1999, the plaintiff filed a demand for arbitration with the American Arbitration Association. The demand was filed pursuant to a written agreement between the parties dated September 8 and 22, 1994. The plaintiff alleged that the defendants breached the contract by failing to complete the work, that they failed to perform work in a workmanlike manner and that the contract was invalid under the act.

In May, 1999, the plaintiff instituted this civil action. The plaintiff filed a motion to stay the arbitration and filed an amended complaint alleging claims similar to those raised at arbitration and added a claim for a judgment declaring that the contract was null and void because it did not comply with the act. The stay was denied, and the arbitration went forward.

After a full hearing in which neither party objected to arbitration, the arbitrator found in favor of the defendants and awarded damages in the amount of $44,000, plus administrative fees. The plaintiff subsequently filed a motion for summary judgment on the declaratory judgment count, which was denied. The court found the contract valid and enforceable and not in violation of the act and, therefore, found the plaintiffs motion for summary judgment moot. The defendants’ motion to confirm the award was granted and the plaintiffs motion to vacate was denied. This appeal followed. Additional facts and history will be set forth as necessary to resolve the issues on appeal.

I

The first issues raised on appeal concern whether the court properly found that the agreements dated September 8 and 22, 1994, constitute a contract that did not violate the act and contained an agreement to arbitrate. The plaintiff claims that the court improperly “rewrote” the agreement between the parties. We are not persuaded.

The following additional facts are necessary for our resolution of this issue. The September 8 document is a three page document entitled, “Multi-Services Contract.” It provides that the defendants were to board up the plaintiffs premises, to make temporary repairs of utilities, to estimate and replace lost landscaping, and to make “[rjepairs oi7or reconstruction of building(s) . . . specifications will follow based upon agreement with owner(s).” The contract also provides for the payment of the defendants through the plaintiffs insurance carrier. The third page is a “notice of cancellation,” signed by the plaintiff and dated September 8. The September 22 document consists of eighteen pages that contain a schedule for payments totaling $234,000 as work is completed. It is signed and dated by both parties and contains a detailed list of work to be done and materials to be used.

The court, in its memorandum of decision, stated: “The plaintiff claims, disingenuously, that the contract omits many of the requirements of [General Statutes] § 20-429 (a). The contract here consists of more than one document. When the plaintiff suffered a fire at her residence, she signed a ‘multi-services contract’ dated [September 8,1994] with the defendant to board up the premises, do certain temporary repairs to secure the building, and do the following: ‘Repairs of/or reconstruction of building(s) at above address—work specifications will follow based upon agreement with owner(s).’ On the same day, the proper copies and notice of right to cancel were delivered to her. Within days thereafter, the parties agreed on the scope and price of the remaining work and signed an additional construction agreement that included a detailed list of the work to be performed and new components to be added to the structure. The two documents must be read together as the contract into which the parties entered. Together they contain all of the requirements for a valid home improvement contract and, of course, they contain a valid arbitration clause.”

“The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence. ... To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. ... To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. . . . Because the . . . claim involves a finding of fact, we must adhere to the long-standing principle that findings of fact are ordinarily left undisturbed upon judicial review.” (Citation omitted; internal quotation marks omitted.) Cheverie v. Ashcraft & Gerel, 65 Conn. App. 425, 439-40, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001).

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... We cannot retry the facts or pass on the credibility of the witnesses. ... 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.” (Internal quotation marks omitted.) Noble v. White, 66 Conn. App. 54, 60, 783 A.2d 1145 (2001).

“Generally, incorporation by reference of existing documents produces a single contract which includes the contents of the incorporated papers. . . . When parties execute a contract that clearly refers to another document, there is an intent to make the terms and conditions of the other document a part of their agreement, as long as both parties are aware of the terms and conditions of the second document.” (Citation omitted; internal quotation marks omitted.) Morales v. Pentec, Inc., 57 Conn. App. 419, 438, 749 A.2d 47 (2000).

The plaintiff claims that the corn! should not have found an operable agreement between the parties because the plaintiff canceled the contract. The plaintiff argues that cancellation was effectuated by her signature on the “notice of cancellation” dated September 8. We agree with the court’s assessment that this argument is disingenuous.

The “notice of cancellation” provides that the plaintiff “may cancel this transaction without any penalty or obligation, within three business days from the above date [September 8, 1994].” It further provides that “[t]o cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram to: Statewide Renovations ... no later than midnight of [September 13, 1994].” The record reveals that the plaintiff signed this notice the same day she entered into the September 8 contract. While it is not inconceivable that the plaintiff would enter into a contract and cancel it on the same day, only later to enter into a second contract with the defendants on September 22, the record supports the conclusion that the plaintiff did not famish notice of cancellation to the defendants on September 8, 1994. Rather, the plaintiffs signature appears to be an acknowledgement of her right to cancel the contract, and the agreement dated September 22 was an addendum to the September 8 agreement. The plaintiff herself, demanded arbitration based on both agreements and, in her appellate brief, noted that the September 8, 1994 agreement “was amended by another agreement . . . signed ... on September 22, 1994 . . . .” We, therefore, cannot say that the court’s conclusion that the September 8 and 22 agreements constituted a contract was clearly erroneous.

We also conclude that the court properly found that the contract provided for arbitration of disputes arising under the parties’ agreement. “[Arbitration is a creature of contract and there must bean express agreement to arbitrate in order for the arbitrators to have authority and the court to have jurisdiction.” Sawmill Brook Racing Assn., Inc. v. Boston Realty Advisors, Inc., 39 Conn. App. 444, 449-50, 664 A.2d 819 (1995). “Arbitration . . . is designed to avoid litigation and secure prompt settlement of disputes and is favored by the law.” (Internal quotation marks omitted.) Spicer v. Spicer, 33 Conn. App. 152, 159, 634 A.2d 902 (1993), cert. denied, 228 Conn. 920, 636 A.2d 850 (1994). “[A] person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed to do so. ... No one can be forced to arbitrate a contract dispute who has not previously agreed to do so.” (Internal quotation marks omitted.) Green v. Connecticut Disposal Service, Inc., 62 Conn. App. 83, 86-87, 771 A.2d 137, cert. denied, 256 Conn. 912, 772 A.2d 1124 (2001). Therefore, “[t]he authority for arbitration must be derived from the agreement of the parties . . . and the relevant provisions of applicable statutory directives . . . .” (Citations omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 194, 680 A.2d 1243 (1996); see General Statutes § 52-408 et seq.

“Whether a particular dispute is arbitrable is a question for the court .... The manifestation of arbitrability may be by express provision to that effect or the use of broad terms . . . and courts must look to the plain language of the contract and construe the contract as a whole when determining the intent of the parties.” (Citation omitted; internal quotation marks omitted.) Carlin Pozzi Architects, P.C. v. Bethel, 62 Conn. App. 483, 488-89, 767 A.2d 1272 (2001).

In this case, paragraph twenty-two of the September 22,1994 document provides: “ARBITRATION: Any controversy or claim arising out of or relating to this AGREEMENT, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award may be entered in any court having jurisdiction.” We further note that the plaintiff initiated arbitration proceedings and did not object to arbitration until a judgment was awarded in favor of the defendants. The plaintiffs assent to arbitration is clearly demonstrated by her conduct. See Sawmill Brook Racing Assn., Inc. v. Boston Realty Advisors, Inc., supra, 39 Conn. App. 451-52 (signature of party not necessary on contract where that party initiated and proceeded with arbitration). Because the court properly concluded that the parties’ agreement encompassed both the September 8 and 22 documents, that the arbitration clause was unambiguous and that the plaintiff initiated arbitration, we conclude that the court’s finding that the parties had an agreement to submit disputes arising under the contract to arbitration was not clearly erroneous.

We must next consider whether the court properly concluded that the operable agreement complied with the Home Improvement Act and with the Home Solicitation Sales Act, General Statutes § 42-134a et seq., which is incorporated in the Home Improvement Act. The plaintiff argues that the court improperly found that the parties’ contract satisfied the requirements of § 20-429 (a) and, therefore, the defendants could not recover. We disagree.

“To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 122, 788 A.2d 83 (2002).

In this case, the plaintiff claims that neither the September 8, 1994 document nor the September 22, 1994 document contains (1) a start or finish date, (2) the entire agreement between the owner and contractor or (3) a price, as required by § 20-429 (a). The plaintiff additionally argues that the September 22, 1994 document does not contain a notice of cancellation as required by the act. The court found that each of the requirements under the act was satisfied by either the September 8 or 22 document. These factual findings are supported by the record and, therefore, are not clearly erroneous. The court further found that the contract was comprised of both documents. While each document standing alone would not satisfy the statute, because the contract in this case consists of both the September 8 and 22 documents, the court properly concluded, as a matter of law, that the contract satisfied § 20-429 (a).

II

The plaintiffs last claim is that she was deprived of her constitutional due process rights because the court failed to hold a de novo evidentiary hearing on the issue of whether the September 8 and 22 contracts were subject to arbitration. In support of her argument that she is entitled to a de novo hearing, the plaintiff cites Welch Group, Inc. v. Creative Dry wall,, Inc., 215 Conn. 464, 576 A.2d 153 (1990), which stands for the proposition that “arbitrability, absent the parties’ clear agreement to the contrary, is a factual question to be determined by the trial court.” Id., 465. We reject the plaintiffs claim.

First, we note that the plaintiff did not file a request for a de novo hearing in the trial court. See Practice Book § 23-66 (c). Second, the record indicates that the plaintiff was heard on the matter of arbitrability, and the court determined that the parties agreed to arbitration. Although no transcripts were filed in this case to indicate the extent of argument in the trial court, the judgment provides in relevant part that “the parties appeared and were fully heard on [the cross motions to vacate and confirm the award of the arbitrator]. The court, having heard the parties, denies the [motion] of the plaintiff to vacate the arbitration award and grants the [motion] of the defendants to confirm said award, and finds that the award should be accepted and confirmed.” (Emphasis added.) We, therefore, conclude that this claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Roberta Spinnato and Peter Ranciato, doing business as Statewide Renovations.

       The plaintiffs statement of the issues is as follows:
      (1) “Did the court err by improperly rewriting both of the contracts of the parties to make unenforceable contracts valid and to include arbitration in a contract where there was no such agreement by the parties?”
      (2) “Did the court err by ignoring the provisions of its own rewritten contract in order to avoid vacating the arbitration?”
      (3) “Did the court err by refusing to vacate the arbitration award in that the arbitrator prejudiced the rights of [the plaintiff] by refusing to make a factual determination in accordance with the Home Improvement Act and the Home Solicitation [Sales] Act?”
      (4) “Did the court err by refusing to vacate the arbitration award in that there was evident partiality on the part of the arbitrator in that the award was against all evidence not in dispute which showed that the contracts were unenforceable and that no award could be made under the Home Improvement Act?”
      (5) “Did the court err by refusing to vacate the arbitration award in that the arbitrator exceeded its power and/or so imperfectly executed [it] that a mutual, final and definite award upon the subject matter was not made in accordance with the laws of the state of Connecticut?”
      (6) “Did the court err by refusing to vacate the award of the arbitrator in that it was against public policy to award damages under a contract which violates the Home Improvement Act and the Home Solicitation [Sales] Act and gives rise to criminal and civil penalties pursuant to [General Statutes §] 42-141?”
      (7) “Did the court err by not allowing a hearing before it on the issue of whether the contracts were subject to arbitration thereby depriving the plaintiff of her constitutional due process rights?”

       The plaintiff also argues that even if the arbitration clause was part of the parties’ contract, her claim that the contract was unenforceable is not encompassed by the arbitration clause. We find this claim to be entirely without merit.

       General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. ...”

       The plaintiff also claims that the arbitrator’s award violated public policy. She contends that because the parties’ contract violates the act and noncompliance with the act gives rise to criminal penalties, the award was against public policy. Because we conclude that the contract did not violate the act, we need not address this claim.

       The appellant has the burden of providing this court with an adequate record for review. Practice Book § 60-5; see 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60, p. 386.


author: PER CURIAM.

text:
    THOMAS LAMBERT v. KATHLEEN DONAHUE
    (AC 20296)
    Lavery, C. J., and Schaller and Spear, Js.
    Argued February 20
    officially released April 9, 2002

      Maria Chiarelli, with whom, on the brief, was Joseph Chiarelli, for the appellant (plaintiff).

      Lisa A. Faccadio, with whom, on the brief, was Christine S. Dorsey, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Thomas Lambert, appeals from postjudgment orders made in the context of an action for custody of the parties’ minor child. For the reasons stated herein, we dismiss the plaintiffs appeal. We further affirm the court’s judgment with regard to the plaintiffs amended appeal.

The parties are the parents of a child bom on January 1, 1991. The parties were never married. In orders entered on November 12, 1993, the child was placed in the parties’ joint custody with physical custody granted to the defendant, Kathleen Donahue. The court also entered visitation and support orders. Several postjudgment motions were filed by the parties. Hearings on the parties’ motions were held over a number of weeks, concluding on July 16,1999. At the end of the hearings, the court asked the parties to submit written responses to several questions regarding the parents’ schedules, the child’s activities, and facts relating to vacation schedules and plans. The defendant filed her response on August 27,1999, and the plaintiff filed his on October 4, 1999. After receiving the responses, the court issued its decision on October 15, 1999. The court awarded sole custody of the child to the defendant, and changed the visitation arrangements and the child support payments. In addition, the court found the plaintiff in contempt for taking the child out of state without notifying the defendant of the child’s location or telephone number, and it ordered the plaintiff to pay $3000 in counsel fees on behalf of the defendant.

The plaintiff filed a timely appeal on December 2, 1999, contesting the October 15, 1999 order. One of the issues the plaintiff raises on appeal is whether the court improperly relied on the statements that the parties made in response to inquiries from the court, where there had been no opportunity for the parties to conduct cross-examination regarding the contents of the statements. In the same regard, the plaintiff filed a motion on February 29,2000, asking the court to hold an evidentiary hearing regarding the parties’ responses to the court’s questions. The court granted the motion for an evidentiary hearing on April 19, 2000. As of the date of oral argument on the plaintiffs appeal, the evidentiary hearing had not been held.

In Gardner v. Falvey, 45 Conn. App. 699, 697 A.2d 711 (1997), the trial court rendered a final judgment, and a proper appeal was taken. Thereafter, a motion to reargue was filed with the trial court, and the court granted the motion, but the reargument had not actually taken place at the time the appeal was heard by the Appellate Court. The Appellate Court dismissed the appeal, holding that because there was no disposition of the reargument, the controversy was not ripe for the court’s review, and there was no final judgment. Id., 702. We view the present case as analogous to Gardner and, accordingly, dismiss the plaintiffs appeal due to the lack of a final judgment.

We next consider the plaintiffs amended appeal, and, in that context, consider the following additional facts. On November 15, 1999, the defendant filed a motion for counsel fees to defend postjudgment motions and the appeal that she expected the plaintiff to file. The plaintiffs appeal was filed on December 2, 1999, and on May 11, 2000, the court granted the defendant’s motion and ordered the plaintiff to pay $4000 toward the defendant’s expenses in defending the appeal. On October 25, 2000, the plaintiff filed an amended appeal contesting the May 11, 2000 counsel fee order.

With regard to our consideration of the plaintiffs amended appeal, we note that Practice Book § 61-9 provides in relevant part that “the court may order that an amended appeal be briefed or heard separately from the original appeal. . . .” We further note that the order requiring the plaintiff to pay $4000 toward the cost of the defendant’s defense of the appeal was an appealable final judgment. See Benvenuto v. Mahajan, 245 Conn. 495, 504, 715 A.2d 743 (1998).

The plaintiff argues that the court improperly awarded the defendant a payment of $4000 in counsel fees without indicating the basis or reason for the award. The defendant counters that the evidence presented to the court was sufficient to justify the award of attorney’s fees. We agree with the defendant.

General Statutes § 46b-62 provides in relevant part that “[i]n any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and criteria set forth in section 46b-82. . . .” “Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. ... In determining whether to allow counsel fees, the court must consider the statutory criteria set out in [General Statutes] §§ 46b-62 and 46b-82 and the parties’ respective financial abilities. ... An abuse of discretion in granting the counsel fees will be found only if this court determines that the trial court could not reasonably have concluded as it did.” (Internal quotation marks omitted.) Papa v. Papa, 55 Conn. App. 47, 57, 737 A.2d 953 (1999). On the basis of our review of the record, we cannot conclude that the court abused its discretion in ordering the plaintiff to pay $4000 in counsel fees to the defendant to defend the appeal.

The appeal from the October 15, 1999 judgment and the second amended appeal are dismissed; the May 11, 2000 judgment awarding attorney’s fees to the defendant is affirmed.

       We affirm the May 11, 2000 judgment challenged in the plaintiffs amended appeal that was filed on October 25,2000. We dismiss the plaintiffs amended appeal filed December 11, 2000, as untimely and duplicative of the amended appeal filed on October 25, 2000.

       The other issues raised by the plaintiff are whether the court improperly (1) modified child custody, visitation and support without appointing an attorney or guardian ad litem to represent the minor child, (2) modified the judgment by awarding sole legal and physical custody of the unrepresented minor child to the defendant where the defendant did not file a motion to modify custody or visitation alleging a substantial change of circumstances, and the court did not make any finding regarding a change of circumstances and failed to consider the statutory criteria pursuant to General Statutes § 46b-56 concerning custody, (3) found that the plaintiff had “admitted” that the child spends 75 percent to 80 percent of his parenting time with the child’s grandparents and not with the plaintiff when that was not the plaintiff’s testimony, (4) awarded $3000 in counsel fees to the defendant without stating the basis for the award, and (5) failed to rule on the plaintiffs pleading, titled “Motion for Contempt Post-Judgment Vacation.”

       On December 14, 2000, this court granted the plaintiff permission to file a supplemental brief regarding the $4000 award of attorney’s fees.

       On November 21,2000, the court denied the plaintiffs motion for articulation in which the plaintiff requested that the court articulate the basis on which it awarded $4000 in counsel fees to the defendant and the statutory criteria on which it awarded $4000 in counsel fees to the defendant. On the same date, the court also denied the plaintiffs motion to correct posijudgment, and his motions to open and to modify postjudgment.