author: Norcott, J.

text:
    Francis Daley et al. v. Woodrow W. Gaitor et al. Francis Daley et al. v. City of Hartford
    (5932)
    Borden, Daly and Norcott, Js.
    Argued May 11
    decision released September 27, 1988

      Ronald E. Cassidento, with whom, on the brief, was Eric Carlson, for the appellants (plaintiffs).

      Richard M. Cosgrove, deputy corporation counsel, with whom, on the brief, were Richard H. Goldstein, former corporation counsel, and if. Maria Cone, assistant corporation counsel, for the appellees (defendants in the first case, defendant in the second case).
   Norcott, J.

The plaintiffs bring a joint appeal from the trial court’s judgments in their actions for injunctive relief and breach of contract. The trial court denied the injunction in the first case and directed the verdict for the defendant city in the second case. On appeal from the second case, the plaintiffs aver that the trial court erred (1) in directing a verdict for the city and rendering judgment thereon in lieu of granting the plaintiffs’ motion to strike the city’s special defense, and (2) in refusing to render judgment for the plaintiffs. We find error.

This litigation arises out of the 1981 promotional process for the position of lieutenant in the Hartford police department. In 1981, a written promotional announcement was circulated apprising prospective candidates of several openings for the position of police lieutenant. The promotional announcement provided that the position was open to all persons who had attained the rank of police sergeant. The announcement further provided that the applicants were to take a written examination and that at least 50 percent of those who took the written examination would be allowed to move to the second stage, an oral examination.

After the written examination was given in this case, it was determined that only those officers who had attained a score of 76 percent or better would be allowed to take the oral examination. In tabulating the test results, however, the city personnel director found that the results did not conform to the federal Uniform Guidelines on Employee Selection, 29 C.F.R. § 1067 et seq., since there was an adverse impact on the minority applicants. Thereafter, the city personnel director took steps to alleviate the adverse impact of the examination. In conjunction with the city manager, he allowed any sergeant who took the written examination to take the oral examination as well. Thereafter, all persons who took the examination were rated.

As a result, three individuals who had not attained a score of 76 percent on the written examination were ultimately promoted to the rank of lieutenant in lieu of the plaintiffs. The plaintiffs brought suit alleging a breach of contract. After a trial to the jury, the court directed the jury to return a verdict for the defendants.

We note as a threshold matter that the plaintiffs did not move to set aside the verdict against them. Practice Book § 4000 requires a party who wishes to appeal from a directed verdict to file a timely motion to set aside the verdict pursuant to Practice Book § 320. See also General Statutes § 52-228b. A party may then appeal from the denial of that motion to set aside the verdict. “We have stated repeatedly that such a motion is indispensable to ensure full appellate review of claims of error in civil jury cases. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 195, 520 A.2d 208 (1987); Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986); Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981); Gordon v. Feldman, 164 Conn. 554, 557, 325 A.2d 247 (1973) .... In the absence of a motion to set aside the verdict, we consider the plaintiffjs’] claims under the plain error doctrine, which provides that the Supreme and Appellate Courts ‘may in the interests of justice notice plain error not brought to the attention of the trial court.’ Practice Book § 4185; Pietrorazio v. Santopietro, supra, 514-15.” Dunham v. Dunham, 204 Conn. 303, 311-12, 528 A.2d 1123 (1987).

Although generally “plain error” review is limited to instances involving confidence in the fairness and integrity of the adjudicative process; Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223 (1987); the doctrine essentially invokes the discretion of the court. Finley v. Aetna Life & Casualty Co., supra, 196. One standard for this appellate discretion is whether the issue is of importance to the development of the law of the state, is vital to the proper resolution of the case, and was sufficiently presented to the trial court initially, albeit not by way of a motion to set aside the verdict, so that appellate consideration of it does not amount to ambuscade of the trial court. Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 402-403, 499 A.2d 64 (1985), rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987). It is this latter branch of the plain error doctrine which we invoke here.

The plaintiffs first claim that the trial court erred in directing a verdict for the city and in failing to strike the city’s special defense. For the purposes of review, we will treat these claims independently. We first discuss the propriety of the directed verdict.

“The general rule in Connecticut is that a ‘trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion.’ Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). In our review of the trial court’s directed verdict in favor of the defendant, we must consider the evidence in the light most favorable to the plaintiffs. Pinto v. Spigner, 163 Conn. 191, 193, 302 A.2d 266 (1972).” Meizoso v. Bajoros, 12 Conn. App. 516, 518, 531 A.2d 943 (1987). In this case, we conclude that the trial court committed plain error in directing a verdict for the city.

The plaintiffs’ principal claim at trial was for breach of contract. In accordance with this claim, the plaintiffs introduced evidence that they were members of the International Brotherhood of Police Officers (IBPO). They produced further evidence that the IBPO had entered into a contract with the city of Hartford which provided that all promotions were to be in accordance with the personnel rules and regulations of the city of Hartford. Rule VI, § 3, of the personnel rules provides in pertinent part that “[s]ound measurement techniques and procedures shall be used in rating the results of tests and determining the relative ranking of the candidates. In all examinations the minimum rating by which eligibility may be achieved shall be established by the Director of Personnel. Such minimum rating shall also apply to the ratings of any part of the test. Candidates shall be required to attain at least a minimum rating on each part of the test in order to receive a passing grade or to be rated on the remaining parts of the test. The final earned rating of the competitor shall be determined by averaging the earned rating on each part of the examination in accordance with the weights established for each part prior to the date of the examination.”

The city contended, however, in its special defense that regardless of the existence of any contract between it and the plaintiffs its actions were justified because they were done only so that the test results would conform to federal antidiscrimination laws. The city contended that compliance with federal antidiscrimination laws supersedes any contractual rights the plaintiffs may have had.

In addressing this claim, we first note that discrimination continues to be a problem in the American workplace. Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987); Connecticut v. Teal, 457 U.S. 440, 102 S. Ct. 2525, 73 L. Ed. 2d 130 (1982). This is true despite the myriad of laws designed to protect against such discrimination. U.S. Const., amend. XIV; Civil Rights Act of 1964 §§ 701-718, 42 U.S.C. §§ 2000e-2000e17; 42 U.S.C. § 1981; Conn. Const., amend. XXI; General Statutes §§ 46a-60, 46a-61 and 46a-69 through 46a-70. In this case, the city took steps to correct what it perceived to be a discriminatory promotional process.

The city’s conclusion that the promotional process used in this case was discriminatory was based on title VII and the federal Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. Under the provisions of the guidelines, evidence that the selection rate for any race, sex or ethnic group eligible for promotion is less than four-fifths of the rate for the group with the highest rate will be generally regarded as evidence of adverse impact. 29 C.F.R. § 1607.4D. Courts have held that the evidence that the selection rate for any group is less than four-fifths of the selection rate of any other group constitutes prima facie evidence of discrimination. Bushey v. New York State Civil Service Commission, 733 F.2d 220, 224-25 (2d Cir. 1984), and cases cited therein. In this case, the rate of minorities who scored in the top 50 percent of those taking the written exam was less than four-fifths of the rate of white applicants who attained such a score.

Accordingly, the city voluntarily took steps to alleviate the adverse impact of the written examination by allowing all persons who took the written examination to take the oral examination as well. This action was taken in accordance with the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1067.66 (2), which provides that any promotional process in which there is an adverse impact on the promotional opportunities of any ethnic group, race or sex is considered discriminatory unless the process has been validated or another method is used to “modify the procedure to eliminate the adverse impact.”

The United States Supreme Court has long recognized that voluntary compliance is the preferred means of achieving the objectives of title VII. Alexander v. Gardiner-Denver Co., 415 U.S. 36, 44, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974); Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975). “ ‘The principle of nondiscrimination in employment because of race, color, religion, sex or national origin, and the principle that each person subject to Title VII should take voluntary action to correct the effects of past discrimination and to prevent present and future discrimination without awaiting litigation, are mutually consistent and interdependent methods of addressing social and economic conditions which precipitated the enactment of Title VII. Voluntary affirmative action to improve opportunities for minorities and women must be encouraged and protected in order to carry out the Congressional intent embodied in Title VII.’ [29 C.F.R.] § 1608.1 (c) (footnote omitted).” International Assn, of Firefighters v. Cleveland, 478 U.S. 501, 516, 106 S. Ct. 3063, 92 L. Ed. 2d 405 (1986).

In W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983), however, the United States Supreme Court upheld an arbitrator’s decision that a company which had voluntarily complied with title VII by entering into a conciliation agreement with the Equal Employment Opportunity Commission was liable for back pay damages caused by its breach of the collective bargaining agreement. In so holding, the court noted that upholding such an award did not inappropriately affect the policy of voluntary compliance with title VII because “[a]bsent a judicial determination, the [Equal Opportunity Employment] Commission, not to mention the Company, cannot alter the collective-bargaining agreement without the Union’s consent.” Id., 771. We find the rationale expressed in W. R. Grace & Co. to be controlling in this case. Accordingly, we find that the city’s actions in complying with title VII, while commendable, do not necessarily relieve the city of any contractual obligations it might have had under the collective bargaining agreement with the plaintiffs.

We still must determine whether the plaintiffs had any contractual rights under the collective bargaining agreement to have the testing done in a certain manner.

As the Second Circuit of Appeals held in Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117, 1127 (2d Cir. 1983), absent a specific provision in the collective bargaining agreement mandating certain testing procedures, “[n]on-minorities do not have a legally protected interest in the mere expectation of appointments which could only be made pursuant to presumptively discriminatory employment practices. . . . Accordingly, the legal rights of non-minorities generally are not adversely affected by reasonable and lawful race-conscious hiring or promotional remedies, whether such remedies are imposed by court order following litigation on the merits or are created by voluntary agreement between the parties.” (Emphasis in original; citations omitted.) Id., 1126.

In this case, whether the collective bargaining agreement mandated certain testing procedures was a question of fact for the jury to determine. The plaintiffs produced evidence tending to show that the setting of a cutoff score on the written examination was mandatory. Other evidence was produced, however, which tended to show that the setting of a cutoff score was not mandatory. What is required then is an interpretation of the terms of the collective bargaining agreement. We have long held that “ ‘[t]he interpretation of . . . contracts, is principally a question of the intention of the parties, a question of fact to be determined by the trier of facts.’ Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, 183 Conn. 348, 351, 439 A.2d 362 (1981).” Rodziewicz v. Giguere, 5 Conn. App. 293, 295-96, 497 A.2d 1025 (1985). Accordingly, we find that the trial court committed plain error in taking this case from the jury’s consideration.

The plaintiffs next claim that in lieu of granting a directed verdict for the city the trial court should have granted their motion to strike the city’s special defense. We disagree.

The record reveals that the plaintiffs filed their reply to the city’s special defense on February 3, 1987. Seven days later, the plaintiffs filed a motion to strike the special defense. Practice Book § 112, which provides for the order of pleadings after the complaint has been filed, specifically provides that the plaintiff’s motion to strike a defendant’s answer shall be filed before the plaintiff’s reply to any special defenses. A party which files the pleadings in the inverse order is deemed to have waived the filing of the motion to strike. Practice Book § 113. We do not find that the court committed plain error with respect to this claim.

The plaintiffs finally claim that they are entitled to judgment in this case because the city never pleaded or introduced evidence that it could not legally comply with its contractual obligations to the appellant. We disagree.

As we noted above, there is an issue of fact left to be determined by the jury. That issue is whether the city has any contractual obligations to the plaintiffs at all. Until that question is resolved, judgment cannot be rendered for either side.

There is error, the judgment is set aside in the second case and the case is remanded for a new trial. The appeal as to the first case is dismissed as moot.

In this opinion the other judges concurred.

       The plaintiffs are present and former police sergeants in the Hartford police department who applied for the position of police lieutenant in 1981.

       The two cases were consolidated for trial. In the first case, the plaintiffs sought an injunction to restrain the city officials from administering an oral examination to any police officers who had not scored in the top 50 percent of those who had taken a written examination. The case was tried to the court, O’Neill, J., which rendered judgment for the defendants. The plaintiffs also appealed from that judgment.
      At oral argument of that appeal, however, counsel for the plaintiffs conceded that, since the injunction had been denied on February 11, 1987, and the promotions had long since been effected, no practical relief could be given to the plaintiffs by way of injunctive relief even if this court should conclude that the trial court was in error in denying injunctive relief. “It is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Waterbury Hospital v. Connecticut Health Care Associates, [186 Conn. 247, 249, 440 A.2d 310 (1982)].” Platt v. Newman, 13 Conn. App. 205, 208, 534 A.2d 1259 (1988). Accordingly, we dismiss the appeal as to the first case as moot.

       Practice Book § 4000 provides: “right of appeal
      “If a party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, that party may appeal from the final judgment of the court or of such judge, or from a decision setting aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in General Statutes §§ 8-8, 8-9, 8-28 and 8-30.”

       Practice Book § 320 provides: “ — motions in arrest of judgment, to set aside verdict or for new trial
      “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk’s office is not open; provided that for good cause the court may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”

       General Statutes § 52-228b provides: “setting aside of verdict in action claiming money damages. No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       The plaintiffs also claim that a contract was created by virtue of the promotional pronouncement which provided that “at least 50 percent” of all persons who take the written examination will be allowed to take the oral examination. The plaintiffs contend that this pronouncement established a contract between the city and the potential test takers that prevented the city from allowing all who took the written examination to take the oral examination. We disagree. First, we note that the plaintiffs claim is belied by the express words of the pronouncement which provided that “at least” 50 percent of the people who took the written examination could be allowed to take the oral examination. The words “at least” indicate that more than 50 percent of the examination takers would move on to take the oral examination. Second, we note that even if the pronouncement had represented that the number of people who could take the oral examination would be limited, such representations would not have been sufficiently definite or promissory to support contractual liability. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 214-15, 520 A.2d 217 (1987).

       In reaching this decision, we in no way intend to discourage voluntary compliance with title VII. Voluntary compliance continues to be the preferred means of enforcing title VII. Perhaps, in the future, situations such as this can be avoided if employers consult with unions before undertaking race conscious remedies.

       Practice Book § 112 provides: “The order of pleading shall be as follows:
      “(1) The plaintiffs complaint.
      “(2) The defendant’s motion to dismiss the complaint.
      “(3) The defendant’s request to revise the complaint.
      “(4) The defendant’s motion to strike the complaint.
      “(5) The defendant’s answer (including special defenses) to the complaint.
      “(6) The plaintiff’s request to revise the defendant’s answer.
      “(7) The plaintiff’s motion to strike the defendant’s answer.
      “(8) The plaintiff’s reply to any special defenses.”

       Practice Book § 113 provides: “In all cases, when the court does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Leonard Green
    (5828)
    Dupont, C. J., Norcott and Foti, Js.
    Argued May 31
    decision released September 27, 1988

      Stephen M. Feinstein, with whom, on the brief, was Lionel DeSilva, legal intern, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, was Bruce Hudock, assistant state’s attorney for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (2). The defendant claims (1) that the trial court erred in admitting as substantive evidence the prior inconsistent written statement of a witness who testified at the trial, and (2) that the evidence produced at trial was insufficient to support the jury’s verdict. We find no reversible error.

From the evidence presented at trial, the jury could reasonably have found the following facts. On December 27, 1985, at approximately 2:30 a.m., George Peristides was working at the J & J Texaco gas station located on West Avenue in Norwalk. Peristides was sitting in the office at the gas station when he was suddenly struck with a blunt object by someone who had broken through the large glass window of the office. Peristides was rendered unconscious by the blow, which fractured his skull. The man who broke through the window then proceeded to inflict approximately forty cuts on Peristide’s neck, to stab him five times and to take over $700 from the cash register before fleeing.

A customer later found Peristides lying in a pool of blood on the floor of the office around 2:50 a.m. According to medical testimony adduced at trial, the victim had been cut and stabbed with a knife at least four inches long. One knife slash had severed the victim’s windpipe and pierced his thyroid gland. As a result of the attack, he suffered disfigurement of the neck and permanent deafness in the left ear.

At trial, Stephen Papadopolous, the father of the owner of the gas station, testified that he had seen a man whom he identified as the defendant hanging around the station prior to the robbery. The defendant was not a regular customer, and he was not pumping gas.

On the morning of the robbery between 2 and 2:30 a.m., Theresa Gerachi, a prostitute who was working in the area, saw the defendant, whom she had known for one year prior to the robbery, about two blocks from the gas station. Later, Gerachi was walking toward the gas station when she observed the defendant, known to her as “Bo,” walking in the opposite direction. Gerachi also observed another man on the opposite side of the street running in the same direction as the defendant. Gerachi did not know the other man but heard him call to the defendant, “Bo, come on.” Gerachi described the defendant as wearing beige khaki pants and a brown fur collared jacket.

At 7:20 on the morning of the robbery, police officers stopped the defendant to talk with him about the robbery. The defendant was wearing khaki pants. Thereafter, the defendant accompanied detectives Julian Lee and Gary Whetmore to the police station, where they interviewed him. During the course of the interview, the defendant maintained his innocence and claimed, as an alibi, that he had been at home sleeping continuously since 9 p.m. the previous evening.

The detectives testified that during the interview they noticed two stains on the defendant’s pant leg. The defendant maintained that the stains were “fish sauce.” The detectives then asked the defendant if they could make an impression of his boot, whereupon the defendant became “fidgety” and attempted surreptitiously to scrape some brown spots off of his left boot. Thereafter, the defendant consented to the detectives taking his clothing and boots for testing. Scientific testing later revealed that the stains on the defendant’s pants and boots were human blood of the same type as that of the victim.

I

The defendant’s first claim of error is that the trial court erred in admitting as substantive evidence the prior written out-of-court statement of a witness, David Fagan.

The facts relevant to this claim are as follows. When first interviewed by the Norwalk police and at trial, the defendant maintained an alibi defense, claiming that he had been at home asleep during the time of the robbery. This defense was at odds with a statement given to the police by Fagan, who had known the defendant for fifteen years.

On January 19, 1986, while at the Norwalk police station on an unrelated matter, Fagan was questioned about the Texaco gas station robbery. In a written, signed and sworn statement given to the police that day, Fagan stated that he had seen the defendant and Oliver Fornay at Sneider’s Pool Hall in Norwalk in the early morning hours of December 27, 1985. Fagan stated that the two men were discussing the purchase of drugs and that “the defendant pulled out a lot of money and said if he knew it was this easy, he would have done it a long time ago.” In his statement, Fagan also indicated that the defendant “said it was easy to get into the place because all he had to do was kick the window in” and that the defendant “was saying this while he had the money in his hand and I was able to tell that he meant that he stole the money.” As to Fornay, Fagan stated that Fornay advised the defendant to “keep it hush-hush,” but the defendant kept talking about what he had done. The statement also included Fagan’s assertion that the defendant never said he “did a robbery” but just that “he kicked the window in.”

During its case-in-chief, the state called Fagan as a witness. Fagan testified that he had seen the defendant and Fornay at the pool hall around “four o’clock” on the day of the robbery, but he repudiated the statements he previously attributed to the defendant and Fornay even after the state attempted to refresh his recollection by showing him his prior written statement. Fagan admitted that he had signed the statement, but he denied having initialed two corrections on the statement. Fagan claimed at trial that he had not read the statement before signing it, and that he had only signed it because the police threatened to withhold his personal belongings in his impounded car if he did not sign.

Thereafter, the state offered the written statement for substantive purposes as a prior inconsistent statement, arguing that our Supreme Court’s decision in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), rendered the statement admissible as substantive evidence. The defendant responded that the statement did not meet the Whelan guidelines because Fagan’s testimony had raised the possibility of coercion and because Fagan did not have personal knowledge of the robbery and assault.

The trial court admitted the statement without reference to the Whelan decision, noting that “the evidence is already in.” The court also declined to give an immediate limiting instruction to the jury regarding the use of the statement for impeachment purposes only, and refused similarly to charge the jury as requested by the defendant.

We begin our analysis of this claim by noting that prior to the adoption of the Whelan rule, this state followed the more orthodox view that a prior inconsistent statement of a non-party witness is inadmissible hearsay if offered to prove the truth of the matters asserted therein, and, therefore, is admissible only for impeachment purposes. State v. Villafane, 171 Conn. 644, 672, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977); State v. Raffone, 161 Conn. 117, 124, 285 A.2d 323 (1971); Sears v. Curtis, 147 Conn. 311, 315-17, 160 A.2d 742 (1960); C. Tait & J. LaPlante, Connecticut Evidence § 7.24. “The logic of this orthodox rule [was] that the prior inconsistent statement of a witness [was] too unreliable to be admitted as substantive evidence because the declarant was not (1) under oath and subject to punishment for perjury, (2) in the presence of the trier of fact, or (3) subject to cross-examination.” State v. Whelan, supra, 749.

In Whelan, however, our Supreme Court noted that the orthodox view is the subject of much criticism. Many legal commentators argue that “the oath is not as strong as a guaranty of trustworthiness as it once may have been, and that the requirements that the jury observe the declarant and that the defendant have the opportunity to cross-examine are met where the declarant takes the stand and is subject to cross-examination. See, e.g., McCormick, Evidence (3d Ed. 1984) § 251; 3A Wigmore, Evidence (Chadbourn Rev. 1970) § 1018; Graham, ‘Employing Inconsistent Statements for Impeachment and as Substantive Evidence,’ 75 Mich. L. Rev. 1565 (1977).” State v. Whelan, supra, 749-50. In short, these commentators suggest that some prior inconsistent statements should be admissible for substantive purposes.

There appears to be a split, however, as to which prior inconsistent statements should be admissible. Some commentators suggest that any prior inconsistent statement should be admitted for substantive purposes if the witness can be subject to effective cross-examination. Comment, “Prior Inconsistent Statements as Substantive Evidence: Illinois Takes the Sting out of the Turncoat Witness,” 19 J. Marshall L. Rev. 69, 88 (1985). Other commentators suggest, however, that only those prior inconsistent statements whose reliability is attested to by the circumstances surrounding the making of the statement should be admitted for substantive purposes. M. Graham, supra, 1584-85; see also C. McCormick, “The Turncoat Witness: Previous Statements as Substantive Evidence,” 25 Tex. L. Rev. 573, 588 (1947).

Connecticut has chosen to align itself with those commentators who suggest that prior inconsistent statements only be made admissible for substantive purposes if the circumstances suggest that they are reliable. As our Supreme Court noted in State v. Whelan, supra, 752, “[although we are impressed by the logic of the modern view favoring substantive admissibility for all prior inconsistent statements where the defendant is in court and subject to cross-examination, we are unwilling to abrogate, without adequate precautions, the traditional view prohibiting their substantive use.” The substantive use of a prior inconsistent statement is only allowed if (1) the statement is written and is signed by the declarant, (2) the declarant has personal knowledge of the facts stated, and (3) the declarant testifies at trial and is subject to cross-examination. Id., 753.

In this case, Fagan’s prior inconsistent statement was written and signed. Fagan testified at trial and was subject to cross-examination by the defendant about the contents of the statement. We find, however, that Fagan did not have personal knowledge of all of the facts in the statement and that, therefore, those portions of the statement of which he had no personal knowledge were inadmissible for substantive purposes.

As we noted in the statement of facts relating to this issue, Fagan’s prior statement which the state sought to introduce at trial was a mixed bag. Included within the statement were a number of personal observations by Fagan. These observations were clearly admissible under the Whelan rule. Also included in the statement, however, were several statements which the defendant allegedly made to Fagan implicating the defendant in the robbery. With regard to these statements, it is clear that Fagan did not have personal knowledge of the facts underlying them. Fagan was not at the scene of the crime and did not personally know whether the defendant participated in the robbery in any capacity.

The state contends, however, that the statements should be admissible substantively because although Fagan did not have personal knowledge of the facts underlying the defendant’s statements, he did have personal knowledge of the fact that the defendant made them. We disagree.

We begin our analysis of this argument by noting that our Supreme Court did not expound on the personal knowledge requirement in State v. Whelan, supra. The legal commentary surrounding the personal knowledge requirement, however, indicates that in order for a prior inconsistent statement to be admissible the declarant must have personal knowledge of the facts underlying third party statements and not just of the fact that the third party made those statements. Professor Graham noted that the personal knowledge requirement “excludes from evidence all prior statements of a witness that merely narrate a third person’s declaration unless the witness also has personal knowledge of the facts underlying the third person’s statement. Thus a witness’ prior statement that he had heard a criminal defendant make an incriminating admission would be inadmissible as substantive evidence unless the witness had personal knowledge of the incriminating conduct itself.” M. Graham, supra, 1584-85. Other commentators who have considered the personal knowledge requirement have reached the same conclusion. See C. McCormick, 25 Tex. L. Rev., supra, 588; comment, supra, 86.

Requiring the declarant to have personal knowledge of the incriminating conduct itself is consistent with the purpose behind the personal knowledge requirement. As acknowledged previously, the personal knowledge requirement was imposed to ensure the reliability of any prior inconsistent statement that is sought to be admitted as substantive evidence. A “double hearsay” statement, typified by the admission-confession of a criminal defendant to a third person who conveys that information to someone else, is the kind of evidence that courts have tended to view as unreliable. United States v. Briggs, 457 F.2d 908, 910 n.3 (2d Cir.), cert. denied, 409 U.S. 986, 93 S. Ct. 337, 34 L. Ed. 2d 251 (1972); M. Graham, supra, 1586. “[T]he risk of fabrication and distortion is significantly increased when a witness purports merely to repeat another’s out-of-court declaration. It is always easier to say that X said something than to report personal observations of the event. Even if X did in fact tell the witness something, it would not be unusual for the person asserting to have overheard the out-of-court declaration to inject, intentionally or otherwise, additional or different statements into the conversation. Unfortunately, these fabricated or distorted statements will often be highly damaging admissions or confessions not easily discounted by the jury.” Id., 1586-87 n.60.

Further, we would note that the witness could not be cross-examined concerning the facts underlying the admissions because he had no personal knowledge of those facts. He could only be cross-examined as to whether he heard the statements and that cross-examination would be fruitless because the witness would already have denied hearing the admission. Accordingly, we find that in order for a prior inconsistent statement containing statements of a third party to be admissible as substantive evidence the declarant must have personal knowledge of the facts underlying the statement and not just personal knowledge that the statement was made.

The state next contends that the statement should have been admitted under the catchall exception to the hearsay rule.

“ ‘[H]earsay [otherwise inadmissible] may be admitted if there is a sufficient probability that the statement is reliable and trustworthy, if the evidence contained in the statement is necessary to resolution of the case, and if the trial court concludes that admitting the statement is in the interests of justice. 5 Wigmore, Evidence (Chadbourn Rev. 1974) § 1422, pp. 253-54.’ ” State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985), quoting State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). As we noted in this case, however, the type of evidence sought to be introduced was the type which is inherently unreliable. There are no facts which would render this evidence so reliable as to warrant its admission into evidence.

Next we must determine whether the substantive admission of the statement into evidence constituted harmless error. We begin our harmless error analysis by noting that the error claimed in this case is not of constitutional dimension. State v. Ruiz, 202 Conn. 316, 329, 521 A.2d 1025 (1987). “When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980); State v. L’Heureux, [166 Conn. 312, 323, 348 A.2d 578 (1974)]. The defendant must show that it is more probable than not that the erroneous action of the court affected the result. State v. Ruth, supra; State v. L’Heureux, supra, 323-24.” State v. Artieri, 206 Conn. 81, 88, 536 A.2d 567 (1988). In the present case, we conclude that the defendant has not met this burden.

The inadmissible statement contained what was tantamount to an admission of the defendant’s participation in the crime. The remaining evidence against the defendant which the state produced at trial, while primarily circumstantial, was abundant. That evidence put the defendant in the vicinity of the gas station at or near the time when the crime was committed. The evidence also was in direct contradiction to the defendant’s alibi defense that he was at home asleep during the time immediately after the robbery. The remaining evidence also demonstrated that the defendant was seen flashing a large amount of money a short while after the crime was committed and at the time he claimed to be sleeping. Further, the evidence demonstrated that the defendant had blood stains on his pants and on his boot which matched the victim’s blood type and that he had ground glass in his boot.

We find that the state’s case against the defendant is “sufficiently strong to overcome the probability that [the erroneously admitted statement], when added to the state’s other evidence, [was] a decisive factor in the result.” Id., 89-90. The erroneous admission of the prior inconsistent statement for substantive use was not likely to have affected the result in this case, and, accordingly, we find the error to be harmless.

II

The defendant’s final claim is based on the insufficiency of the evidence to support the verdict. The relevant inquiry, when a claim on appeal challenges the sufficiency of the evidence, is whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983). As we noted in part I, the evidence which was properly admitted in this case was sufficient to sustain the jury’s verdict.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) (3) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . uses or threatens the use of a dangerous instrument . . . .”

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person.”

       As part of this claim, the defendant also asserts that the court erred in refusing to instruct the jury that they use the statement for impeachment purposes only.


author: Borden, J.

text:
    State of Connecticut v. Raymond Flinter
    (4850)
    Borden, Norcott and Foti, Js.
    Argued June 1
    decision released September 27, 1988

      Timothy C. Moynahan, with whom, on the brief, was Brian J. Kornbrath, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief was Arnold Markle, former state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), larceny in the first degree in violation of General Statutes § 53a-122 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2), and larceny in the first degree in violation of General Statutes §§ 53a-119 (8) and 53a-122 (a) (3). The defendant claims (1) that the trial court erred in instructing the jury regarding the drawing of inferences from circumstantial evidence, and (2) that the prosecutor’s comments made during closing argument deprived the defendant of his constitutional right to a fair trial. We find no reversible error.

The jury could reasonably have found the following facts. Two men wearing ski masks and gloves robbed a branch office of the Jefferson Federal Savings Bank located at the Bella Vista apartment complex in New Haven. At the time of the robbery, three bank tellers and several customers were inside the bank. The tellers were able to describe the two robbers. One of the robbers was described as a tall, thin man with mustache hairs protruding through his mask, wearing a green jump suit and blue and white high-topped sneakers. The other robber was described as a shorter, heavier man with fair skin, very light eyes, and a harsh voice, wearing old bell-bottomed blue jeans, a checked tweed coat over a dark sweatshirt, and grey suede shoes.

Both of the robbers were armed with handguns. They emptied the contents of the cash drawers and a vault drawer into a green duffel bag and a pillowcase. Among the stolen contents was bait money, which contained exploding red dye packets.

Maintenance personnel had seen two masked men get out of a green Thunderbird automobile, which was parked in the bank driveway with its motor running, and enter the bank. A building superintendent got into the Thunderbird and started to drive it away from the bank. When the robbers came out of the bank, they chased after the automobile, banged on it, and then fired several shots. At that time, the dye packets in the bait money exploded, discharging a red dye into the air. The robbers were then observed fleeing across the street and into a bushy area near a building diagonally across from the bank. Eyewitnesses to the robbers’ flight said that they were the only individuals who pursued the Thunderbird and entered the bushes.

After the superintendent told a security guard to call the police, he and another superintendent saw William McNellis, who was breathing heavily and perspiring, with a leaf stuck to his cheek, emerge from the bushy area at the top of the embankment. Behind McNellis was a taller man, later identified as the defendant. Only the defendant and McNellis were seen emerging from the bushes. The defendant, who was wearing white and blue high-topped sneakers, started walking rapidly toward another building. He was immediately apprehended by a police officer responding to the robbery alarm. In the bushes, the police found a green jump suit, a black and white coat, two semi-automatic pistols, a green duffle bag containing dye-stained money, two ski masks and two pairs of gloves.

I

The defendant first claims that the court’s instructions regarding inferences drawn from circumstantial evidence diluted the constitutional requirement that the state prove guilt beyond a reasonable doubt. The court’s instructions included the all too familiar language that inferences of fact may be made from circumstantial evidence “if the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt, and the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.” (Emphasis added.) The defendant argues that this charge constituted reversible error because the state relied heavily on circumstantial evidence to prove the defendant’s participation in the charged offenses. We disagree.

We first note that, despite the defendant’s failure to except to the court’s jury charge, his claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. McDonough, 205 Conn. 352, 354, 533 A.2d 857 (1987). Moreover, it is well established that such an instruction is erroneous. Id., 355-56; see State v. Hufford, 205 Conn. 386, 407, 533 A.2d 866 (1987); State v. Coleman, 14 Conn. App. 657, 663, 544 A.2d 194 (1988). The only question, then, is whether the error is reversible in this case. State v. Coleman, supra. We conclude that it is not.

“In considering the harmfulness of an erroneous instruction on circumstantial evidence, we have distinguished between cases where circumstantial evidence is the primary proof of an element of the crime and those where direct testimony plays the major role.” State v. McDonough, supra, 358. “Unlike intent, [which is typically proven by circumstantial evidence,] such issues as identity and whether the crime charged has occurred, are ordinarily proved by direct testimony with circumstantial evidence playing a subordinate role.” Id. In these cases, we review the charge as a whole to determine whether there is a reasonable possibility that the jury was misled by the erroneous instruction. Id. This instruction does not have “constitutional significance where there is sufficient direct evidence, not implicated by the error, to establish all of the essential elements of the crime charged. In similar cases, where the principal issue at trial was the credibility of the victim, where there was substantial direct evidence of the crimes charged, and where intent was not seriously disputed, we have held erroneous instructions suggesting the probability standard for drawing inferences from circumstantial evidence to be harmless error.” Id., 360.

The central issue at trial was identity, that is, whether the defendant was in fact one of the individuals who robbed the bank. The defendant correctly points out that no single witness provided direct testimony identifying him as one of the robbers. Since the robbers were masked during the crime, each eyewitness could provide only a description of them in terms of their race, gender, height, weight and dress.

This testimony, if believed by the jury, established an unbroken chain of eyewitness observations of two individuals who drove to the Jefferson Federal Savings Bank, robbed the bank, left the bank, chased the green Thunderbird, entered nearby bushes, emerged from those bushes, and were arrested by the police. The testimony of the witnesses was functionally and legally the same as if one person had been able continuously to observe a masked individual in the commission of the crime from its start to the individual’s apprehension. Taken together, then, the testimony of the several witnesses in this case amounted to direct eyewitness testimony on the issue of identification. Under these circumstances, the conclusion that the defendant was one of the bank robbers required no drawing of inferences from circumstantial evidence, the critical inquiry where this type of error is claimed in a jury instruction. State v. McDonough, 358-60. Instead, the unbroken chain of identification evidence simply presented the jury with a credibility question regarding this direct eyewitness testimony. Thus, the erroneous instruction did not have constitutional significance because there was sufficient direct evidence, not implicated by the error, to establish all of the essential elements of the crime charged. Id., 360. “Under these circumstances, having reviewed the court’s instructions as a whole, we conclude that it is not reasonably possible that the erroneous instruction misled the jury in rendering its verdict.” State v. Coleman, supra, 664.

II

The defendant next claims that the state’s attorney’s comments made during closing argument deprived the defendant of his constitutional right to a fair trial under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We disagree.

The defendant’s argument is based on two separate claims of prosecutorial misconduct. We address these claims of misconduct seriatim.

A

During his rebuttal argument to the jury, the state’s attorney commented on the evidence tending to establish guilt and on a series of questions which defense counsel had failed to ask a witness. This line of argument culminated in the following remark: “[Defense counsel] didn’t talk to you about that because he knows they’re guilty. I mean, he’s got to know they’re guilty, there is nothing else.” The state concedes on appeal that the remark was improper because it created the risk that the jury’s attention would be diverted away from its own appraisal of the evidence and toward the state’s attorney’s and defense counsel’s personal views. See State v. Williams, 204 Conn. 523, 541, 529 A.2d 653 (1987).

Defense counsel immediately objected to the improper remark and said: “I don’t know they’re guilty.” Thereupon, the court sustained the objection. At the conclusion of the arguments to the jury and before the court began its charge to the jury, the defendant requested a mistrial based on the state’s attorney’s remarks. The request was denied by the court. The defendant argues that the court erred in failing to declare a mistrial.

A mistrial is appropriate only where it is apparent to the court that as a result of some occurrence during the trial a party has been deprived of an opportunity for a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982); State v. Floyd, 10 Conn. App. 361, 364, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). When a mistrial is sought on the ground that a prosecutor’s improper remarks violated the defendant’s constitutional right to due process of law, the same standard applies. State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982). “When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial. ‘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.’ ” State v. Floyd, supra, quoting State v. Binet, 192 Conn. 618, 628, 478 A.2d 1200 (1984).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, [our Supreme 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; State v. Fullwood, [194 Conn. 573, 585, 484 A.2d 435 (1984)]; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981); the frequency of the misconduct; State v. Couture [194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985)]; see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, [196 Conn. 157, 163, 491 A.2d 1075 (1985)]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A. 2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Módica, supra; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, supra; and the strength of the state’s case. See United States v. Modica, supra; State v. Couture, supra, 564; State v. Glenn, [194 Conn. 483, 492, 481 A.2d 741 (1984)].” State v. Williams, supra, 540.

Our review of the entire trial convinces us that the state’s attorney’s remark, although improper, did not deprive the defendant of a fair trial. The improper comment was isolated and confined to two consecutive sentences in the state’s rebuttal argument. Compare State v. Falcone, supra (prosecutor’s remarks small part of argument and point not emphasized), with State v. Williams, supra (repeated and strident pattern of misconduct); see also United States v. Modica, supra, 1181 (remarks were minor aberrations in a prolonged trial). The severity of the misconduct here was undercut by defense counsel’s immediate and emphatic denial of the factual basis of the state’s attorney’s improper comment. Additionally, the court’s instructions given in its charge to the jury, to the effect that the jury’s verdict should be based only on the evidence, that the statements of counsel during closing argument and during the entire trial did not constitute evidence, and that any beliefs that counsel have are not evidence, further served to diminish any impact which the improper remark may have had on the jury. Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). These instructions focused the jury’s attention on the evidence and away from any consideration of the personal views of counsel. Finally, the case against the defendant was sufficiently strong “that the jury in all probability would have found him guilty even absent the improper remarks.” United States v. Modica, supra, 1182.

B

The defendant also claims that the state’s attorney, during rebuttal argument, improperly appealed to the emotions of the jurors by repeatedly equating the defendant with a wolf. The defendant, in his closing argument, related a tale to the jury in which the character of the wolf referred to the culpable party. Thereafter, the state’s attorney incorporated the wolf reference several times in his rebuttal argument in a manner similar to the defendant’s.

The state argues that the defendant’s claim is not reviewable because it has not been properly preserved for appellate review. We agree.

“The defendant ‘took none of the appropriate measures to alert the trial court to a potential problem . . . .’ State v. Williams, [supra, 535]. At trial, the defendant did not object to the remarks now complained of nor did he move for a mistrial on the basis of these remarks. The defendant concedes that this claim was not properly preserved for appeal, but nonetheless seeks review of this issue under the ‘exceptional circumstances’ doctrine of State v. Evans, [supra, 70], or the ‘plain error’ rule of Practice Book § 4185.” State v. Rodgers, 207 Conn. 646, 653, 542 A.2d 1136 (1988).

“The record in this case does not adequately support a claim of a clear deprivation of the right to a fair trial. The challenged remarks did not rise to the level of character assassination and vitriolic personal attacks that we have held to constitute a denial of the constitutional due process right to a fair trial. We conclude, therefore, that the remarks of the prosecutor as set forth in the record do not constitute the ‘exceptional circumstance’ contemplated in State v. Evans to warrant review of these unpreserved claims. For similar reasons, we conclude that these remarks do not warrant review as plain error.” Id., 654.

There is no error.

In this opinion the other judges concurred.

       This case arises out of the same criminal conduct described in State v. McNellis, 15 Conn. App. 416, 546 A.2d 292 (1988). The defendant and McNellis, his accomplice, were tried separately.

       We note, however, that at least two members of our Supreme Court now apparently conclude that such an instruction is not necessarily erroneous. See State v. McDonough, 205 Conn. 352, 362-64, 533 A.2d 857 (1987) (Callahan and Covello, Js., concurring).

       Although the defendant relies on both the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state constitutional claims. We decline to undertake such analysis. See State v. Foshay, 12 Conn. App. 1, 14 n.10, 530 A.2d 611 (1987).

       We note that the defendant requested that the court give the following curative instruction to the jury: “[Defense counsel] surely believe[s] that the defendant is [not] guilty.” The requested instruction would have been as improper as the prosecutor’s comment because it would have focused the jury on the personal opinion of counsel. For this reason, the court’s denial of the requested instruction was proper.

       The tale that defense counsel related to the jury, in order to illustrate his point that the jury’s initial impression of the evidence might prove misleading, may be summarized as follows: An individual returns home after hunting and is greeted by his dog who appears downcast. Upon entering his child’s room, he finds blood all over an overturned bed. The child does not respond to his father’s call. After concluding that the dog harmed the child, the individual kills the dog. He then hears the cry of his child and sees a wolf standing nearby. The individual realizes that it was the wolf, not his dog, that threatened his child; he slays the wolf. Thus, in the tale, the result of the individual’s rush to judgment is that the wolf, the true culprit, initially escapes detection while the dog, the innocent party, suffers.


author: Bieluch, J.

text:
    Linda Miller v. Hugh Miller
    (5975)
    Bieluch, Stoüghton and Nokcott, Js.
    Argued April 20
    decision released September 27, 1988

      John E. Lee, for the appellant-appellee (defendant).

      William F. Gallagher, with whom, on the brief, was Gerald H. Kahn, for the appellee-appellant (plaintiff).
   Bieluch, J.

The defendant appeals from a postjudgment ruling of the trial court in this dissolution action on a motion for clarification filed by the plaintiff. The plaintiff has filed a cross appeal from that same ruling. The defendant has also filed an amended appeal from the court’s order that he pay the plaintiff attorney’s fees on the appeal and cross appeal.

The issue which is dispositive of the defendant’s appeal is his claim that the trial court acted without jurisdiction in substantively modifying a lump sum alimony award. The sole issue raised by the defendant in his amended appeal is his claim that the court erred in ordering him to pay $16,100.38 to the plaintiff for attorney’s fees in connection with the appeal and cross appeal in this matter. We find merit in both of these claims raised by the defendant and, accordingly, find error on the appeal and amended appeal. This conclusion renders consideration of the plaintiff’s cross appeal unnecessary.

The following facts are relevant to the issues on appeal. On January 29, 1987, the trial court rendered judgment dissolving the marriage of the parties, and awarding them joint custody of their minor child, Jonathan Miller. The court made no award of periodic alimony to either party. The court did, however, in addition to directing the defendant to transfer to the plaintiff his interest in the jointly owned marital home and in a jointly owned automobile, award the plaintiff lump sum alimony of $500,000. In compliance with the court’s alimony award, the defendant transferred to the plaintiff, as of February 19, 1987, 6191 shares of stock in Cummins Engine Company, Inc., the market value of which was $499,923.25. The defendant paid the balance of $76.75 to the plaintiff by check.

On February 19,1987, the plaintiff filed a motion for clarification of the court’s judgment, alleging that certain ambiguities appeared in the court’s memorandum of decision. The plaintiff’s motion inquired: “With regard to the lump sum alimony payment of $500,000, what limitations, if any, are there on the defendant’s right to transfer to the plaintiff securities that are low in basis, low in dividend yield, and/or not likely to appreciate?” The defendant filed an objection to this motion on February 25, 1987, stating that the judgment was clear, not ambiguous, that it had become final, and was “not subject to an effort by [the] plaintiff to reargue or alter those portions of it which may not be to [the] plaintiff’s liking.”

On March 13, 1987, the trial court held a hearing on the motion for clarification, and also on a motion for contempt filed by the plaintiff on March 6, 1987. The court filed a memorandum of decision on these motions on March 17, 1987. This memorandum states: “The defendant has transferred to the plaintiff a large number of shares of stock of the Cummins Engine Company with some cash claiming that the value of these assets total approximately $500,000 to meet the court’s order on alimony. This order awarded the plaintiff lump sum alimony of $500,000 which can be invested and earn the plaintiff about $50,000 a year. This $50,000 plus the $15,000 support ordered for Jonathan will be adequate to take care of the reasonable financial needs of the plaintiff and Jonathan.

“While the market value of the stock transferred to the plaintiff is substantial, the dividends paid on this stock are small and will be less than one-third of the $50,000 the plaintiff needs towards her and Jonathan’s expenses. The transfer of this stock, therefore, does not comply with the court’s order. It is, however, a partial satisfaction of that order and so the court does not find the defendant in contempt.”

The defendant thereafter appealed from this ruling, and the plaintiff cross appealed. The defendant subsequently filed an amended appeal following the court’s order of March 16, 1988, that he pay the plaintiff counsel fees of $16,100.38 in connection with the pending appeal and cross appeal.

We first address the issue that is dispositive of the defendant’s appeal. The defendant does not challenge the power of a trial court to clarify its judgment in the face of a perceived ambiguity. Rather, it is the defendant’s contention that the court’s ruling on the plaintiffs postjudgment motion for clarification was erroneous because it substantively modified an award of lump sum alimony. We agree.

“Whether an award of alimony is subject to modification depends upon its nature. ‘Alimony consisting of a specific portion of an estate or of a specific sum of money . . . is a final judgment which the court cannot modify even should there be a change of circumstance.’ Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976).” Turgeon v. Turgeon, 190 Conn. 269, 282, 460 A.2d 1260 (1983); see General Statutes §§ 46b-81, 46b-86.

The dissolution decree ordered that the defendant pay to the plaintiff lump sum alimony in the amount of $500,000, and provided that this order “may be satisfied by the defendant transferring securities to the plaintiff.” Thereafter, the defendant transferred to the plaintiff 6191 shares of stock of Cummins Engine Company, Inc., with a small amount of cash which, as the court found, “awarded the plaintiff lump sum alimony of $500,000.” Like any other money judgment, this award of lump sum alimony, once entered, “may be subject to attack on appeal, it may be opened in a limited set of circumstances or it may be vacated by motion or petition for a new trial; it may not, however, be modified.” Turgeon v. Turgeon, supra.

In this case, the plaintiff neither appealed nor moved to open or vacate the judgment of the trial court. In its ruling on the plaintiff’s motion for clarification, the court substantively modified the award of lump sum alimony. In effect, the court’s ruling (1) amended the judgment to require that any securities transferred to the plaintiff pay dividends of $50,000 per year, (2) increased the lump sum award by ordering the defendant to transfer additional assets, in excess of the original stock and cash valued at the time of transfer at $500,000, to the plaintiff until the assets transferred paid dividends, which we judicially notice fluctuate with market conditions, of $50,000 per year, and (3) converted the lump sum alimony award into a hybrid lump sum and periodic alimony award by imposing on the defendant an obligation to guarantee an annual rate of return of $50,000 to the plaintiff on the amount of the lump sum payment.

We note that the value of the shares of stock transferred to the plaintiff has greatly decreased since the date on which the transfer was made. The trial court cannot, however, modify an award of lump sum alimony, even where the award was satisfied by a transfer of securities that have subsequently lost their original value. Similarly, any increment in market value or dividend payments would be beyond the scope of review of the trial and appellate courts. Fluctuations in the value and dividends of stock awarded as lump sum alimony payments, subsequent to judgment, are immaterial to the court. The trial court’s order on the plaintiff’s postjudgment motion for clarification cannot stand.

The defendant’s claim on his amended appeal is that the court erred in ordering him to pay $16,100.38 to the plaintiff for counsel fees in connection with the appeals in this case. The defendant claims that the court’s order was an abuse of discretion in view of the plaintiff’s extensive assets, and was unreasonably excessive, and erroneously included fees incurred by the plaintiff prior to the defendant’s appeal on April 1, 1987. We agree.

The decision to award counsel fees in a dissolution case is clearly a matter within the trial court’s discretion. Holley v. Holley, 194 Conn. 25, 33-34, 478 A.2d 1000 (1984); Voloshin v. Voloshin, 12 Conn. App. 626, 631, 533 A.2d 573 (1987); Costa v. Costa, 11 Conn. App. 74, 77, 526 A.2d 4 (1987). “While the decision as to the liability for payment of such fees can be made ‘in the absence of any evidence of the cost of the work performed’; Kenny v. Civil Service Commission, 197 Conn. 270, 278, 496 A.2d 956 (1985); the dollar amount of such an award must be determined to be reasonable after an appropriate evidentiary showing. Barco Auto Leasing Corporation v. House, 202 Conn. 106, 120-21, 520 A.2d 162 (1987).” (Emphasis in original.) Costa v. Costa, supra, 77-78.

The court abused its discretion in holding that the defendant should pay counsel fees of the plaintiff on appeal. “In determining whether to award counsel fees, the trial court must consider the total financial resources of the parties in light of the statutory criteria. General Statutes §§ 46b-62 and 46b-82; Turgeon v. Turgeon [supra, 280].” Voloshin v. Voloshin, supra, 631-32. The statutory criteria are to be applied in light of the following three broad principles: “First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third, where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified.” Turgeon v. Turgeon, supra, 280; Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980); Tirado v. Tirado, 7 Conn. App. 41, 45, 507 A.2d 470 (1986). If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees. Fitzgerald v. Fitzgerald, 190 Conn. 26, 32-34, 459 A.2d 498 (1983); Tirado v. Tirado, supra.

An examination of the court’s order that the defendant pay the plaintiff counsel fees in light of these principles, and the relevant statutory criteria; see Venuti v. Venuti, 185 Conn. 156, 163, 440 A.2d 878 (1981); leads us to the inescapable conclusion that the court’s award of counsel fees was an abuse of discretion. The court’s complete memorandum of decision on the plaintiff’s motion for allowance to prosecute the appeal states:' “These fees concern the time the plaintiff’s attorney has devoted to the appeals in the above matter. Counsel gave the court a statement detailing his time and the hourly rate therefor. The time involved and the hourly rate charged do not appear excessive. The court finds that the bill of $16,100.38 is not unreasonable and orders the defendant to pay it.”

It is apparent from the court’s memorandum that it did not consider the respective assets of the parties and the statutory criteria of General Statutes §§ 46b-62 and 46b-82. Its sole consideration was a review of counsel’s statement detailing his fees and expenses and whether the charges appeared excessive. Finding that the fees and expenses in the amount of $16,100.38 were “not unreasonable,” it ordered that the defendant make such payment. The required criteria of §§ 46b-62 and 46b-82 were admittedly not applied in making this award. Such an award is manifestly an abuse of discretion.

Additionally, the award of counsel fees was an abuse of discretion because the bill upon which the court predicated its order on its face included considerable charges for services rendered to the plaintiff prior to the appeal filed by the defendant on April 1, 1987, and the cross appeal filed by her on April 9, 1987. Therefore, the order that the defendant pay the plaintiffs bill in the amount of $16,100.38 was also unreasonable and excessive.

There is error, the judgment modifying the award of lump sum alimony and the order for payment to the plaintiff of counsel fees on appeal are set aside and the case is remanded with direction to deny the plaintiffs motion to modify and for further proceedings as to counsel fees in accordance with this opinion.

In this opinion the other judges concurred.

       The defendant also claims in his appeal that the court erred in ruling on the plaintiffs motion for clarification because the judgment was not ambiguous, and erred in its construction of that judgment. Additionally, the defendant claims that in reaching its conclusion, the court acted prematurely and without a proper factual foundation.

       The issue the plaintiff raises in her cross appeal is whether the court erred in refusing to allow her to present certain evidence at the hearing on her motion for clarification. A second issue also raised by the plaintiff in her cross appeal was withdrawn at oral argument.

       The pertinent portion of the court’s memorandum of decision specifies: “The plaintiff is awarded lump sum alimony of $500,000. This can be invested and earn the plaintiff about 10% a year. According to the defendant, the historical return in the stock market is 9.6%. That return plus the $15,000 support for Jonathan will be adequate to take care of the reasonable financial needs of the plaintiff and Jonathan. This order concerning the amount of lump sum alimony may be satisfied by the defendant transferring securities to the plaintiff.”

       The plaintiff's motion to hold the defendant in contempt alleged that the defendant’s transfer of stock, purportedly in satisfaction of the defendant’s obligation to pay lump sum alimony to the plaintiff in the amount of $500,000, failed in various respects to conform to the court order; that the defendant failed to pay the educational costs of the parties’ minor child; and that the defendant did not comply with the court’s order that he pay 80 percent of outstanding fees and expenses for the plaintiff’s attorney.

       General Statutes § 46b-62 provides in pertinent part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.”
      General Statutes § 46b-82 provides in pertinent part: “In determining whether alimony shall be awarded . . . the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”


author: Foti, J.

text:
    Sidney J. Horton et al. v. Hydra Systems International, Inc.
    (6108)
    Borden, Norcott and Foti, Js.
    Argued June 1
    decision released September 27, 1988

      David M. Reilly, for the appellants (plaintiffs).

      Willard R. Carter filed a brief for the appellee (defendant).
   Foti, J.

The plaintiffs appeal from the judgment of the trial court dismissing the first count of their complaint and denying part of the relief sought by their second count. The plaintiffs entered into an agreement to act as promoters for the defendant corporation, which had been formed in 1982 for the purpose of manufacturing and marketing a laser sighting device for guns. The plaintiffs incurred significant debt as a result of their efforts to raise money for the corporation. Nevertheless, by March, 1986, the corporation was insolvent. This action was then initiated in two counts: the first count sought the appointment of a receiver for the corporation; the second count sought an order compelling the corporation to recognize the plaintiffs’ rights to hold and vote stock and to compel the issuance of such shares to the plaintiffs, along with an order compelling the chairman of the board of directors to hold a stockholders meeting.

After an evidentiary hearing on the plaintiffs’ application for the appointment of a temporary receiver pursuant to General Statutes § 52-504, the trial court, Mulcahy, J., denied the defendant’s motion to dismiss for lack of standing which alleged that the plaintiffs were not shareholders of the defendant corporation. The trial court concluded that the plaintiffs had demonstrated a colorable claim, the minimal requirements of standing for the purpose of the court’s subject matter jurisdiction. The court also denied the plaintiffs’ application for the appointment of a temporary receiver.

After a hearing on the merits, the trial court, Fracasse, J., dismissed the first count of the complaint concluding that the plaintiffs lacked standing, and granted, in part, the relief sought under the second count, ordering the corporation to issue 1800 shares of nonvoting stock to the plaintiffs as trustees for future purchasers of stock. The plaintiffs claim that the court erred (1) by concluding that the plaintiffs lacked standing to seek the appointment of a receiver for the corporation because they were merely trustees of 1800 shares of stock, (2) in failing to find that a receiver should have been appointed, (3) by finding that the plaintiffs had given no consideration for shares in the corporation, and (4) in dismissing the first count of the complaint pursuant to Practice Book § 302 for failure to establish a prima facie case. Our conclusion that the plaintiffs’ first claim of error is meritorious is dispositive of this appeal.

The following facts are relevant to this appeal. The defendant is a stock corporation organized under the laws of the state of Delaware, the certificate of incorporation having been filed with the secretary of state of the state of Connecticut on or about March 16, 1982. The corporation’s principal place of business and office have always been located at 375 Howard Avenue in Bridgeport, Connecticut. The officers at the inception of the corporation were: Frederick Stevens, president and chief executive officer; Theodore G. Booth, vice president; and Sidney J. Horton, secretary. Stevens also served as chairman of the board of directors. The authorized number of shares of common stock was 10,000, with a par value of $1 per share. Horton and Booth are the plaintiffs in this action.

Stevens, who had obtained the exclusive rights to manufacture, lease and sell a laser sighting device from its inventor and patent holder, prepared and circulated a document outlining his proposal to manufacture and market the device in order to attract investors. As a result, Horton and Booth became interested and, on May 24, 1982, the three men entered into a written agreement that provided in part: (1) “Horton/Booth shall receive in trust for future investors 55% of the stock and Stevens shall receive 45% of the stock in Hydra [the defendant herein] upon execution of this agreement, at which time all original notes totalling $70,000 from Stevens to Horton/Booth shall be returned marked ‘Cancelled.’ ”; (2) the plaintiffs would raise capital of up to $750,000 in eight months and, if funds in excess of that amount were needed, they would be obtained through bank loans; (3) all corporate records and documents would be delivered to the secretary or the corporate attorney; and (4) Stevens would assign to Hydra the exclusive rights to the laser sighting device that he held and that the corporation would assume all of Stevens’ responsibilities and obligations under the agreement by which he obtained the rights to manufacture and market the device. Forty-five hundred shares of Hydra stock were issued to Stevens; the remaining shares were not issued directly to Horton and Booth, but were issued to subsequent purchasers as sales were made.

Through the sale of 3700 shares of stock, capital in excess of $700,000 was raised for the corporation by Horton and Booth. Two demand notes amounting to $275,000 were executed by Hydra, and were personally guaranteed by Horton, Booth and Stevens. At the time of trial, an action was pending in the Superior Court for default on both of these notes.

After problems developed in almost every aspect of the business, the plaintiffs gave notice of a directors meeting on November 11, 1985, to be held at the office of the corporation. At Stevens’ direction, the plaintiffs were denied admission to the corporate headquarters. The plaintiffs, in accordance with the terms of the notice, adjourned to the Race Brook Country Club and conducted the meeting there. The plaintiffs, two of the three directors, using blank certificates because the stock book was in the possession of Stevens, voted to issue stock certificates number three and number four to themselves, each certificate representing 900 shares. Stevens later refused to recognize these 1800 shares as validly issued and maintained that although 10,000 shares were authorized, only 8200 shares had been issued. He claimed controlling interest in the corporation as the owner of 4500 shares. The plaintiffs argued, by contrast, that they and the remaining shareholders exercised majority control with 55 percent of the 10,000 shares and that it was the intent of the May 24, 1982 agreement to keep control from Stevens.

On or about December 2, 1985, a shareholders meeting was held at the office. At that time, the board of directors was increased from three to five members, with two members to be selected by Stevens and the remaining three by the shareholders. After two of the five directors resigned late in December, 1985, the plaintiffs demanded, in writing, that a meeting of stockholders be held to fill those vacancies or to elect a new board of directors. A directors meeting was subsequently called and, pursuant to the bylaws, two new directors were appointed by the remaining directors. On December 26, 1985, other shareholders made a written demand for a special shareholders meeting for the election of a new board. Stevens, who controlled the board, refused to honor this demand.

At the time of trial, substantially all of the defendant’s employees had resigned or had been terminated, the defendant had ceased the manufacture and the distribution of the laser device, and federal liens had been placed against it for failure to properly pay withholding and social security taxes. The defendant had unpaid long term obligations in the amount of $458,750, and there had not been a stockholders meeting since December 2, 1985, even though the bylaws required stockholders meetings every thirteen months.

The plaintiffs’ principal claim of error, and the claim we find dispositive, is that the court erred in concluding that the plaintiffs were not shareholders and thus lacked standing to petition the court for the appointment of a receiver for the corporation. In reaching that conclusion, the court relied in part on the fact that there was “no evidence that Horton and Booth [had] purchased stock” and in part on its conclusion that, as holders in trust of 1800 shares of stock for future investors, the plaintiffs were not entitled to vote the shares and, therefore, were not shareholders. The court also relied on the fact that the May 24, 1982 agreement was silent regarding the plaintiffs’ status.

“ ‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.’ Hiland v. Ives, 28 Conn. Sup. 243, 245, 257 A.2d 822 (1966).” Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 74 (1983). “Standing . . . is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981).

We begin our review of the issue of standing with an analysis of the language of the May 24, 1982 contract which determined the responsibilities of the parties and outlined the benefits they were to receive. “Where rights, duties and obligations are fully stated in a written contract between the parties, the court is obligated to determine the intention of the parties from the language used interpreted in light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.” Kronholm v. Kronholm, 16 Conn. App. 124, 130, 547 A.2d 61 (1988). Contracts are to be construed as a unified whole, giving all relevant provisions due consideration. Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 123, 492 A.2d 536 (1985); Fletcher-Terry Co. v. Grzeika, 1 Conn. App. 422, 431, 473 A.2d 1227 (1984).

Paragraph one of the May 24, 1982 agreement provides in part that “Horton/Booth shall receive in trust for future investors 55% of the stock and Stevens shall receive 45% of the stock in Hydra upon execution of this Agreement.” A total of 10,000 shares were authorized, of these 4500 shares, 45 percent, were issued to Stevens. The remaining 5500 shares, 55 percent, were not expressly issued to the plaintiffs. Rather than issue the shares in the plaintiffs’ names, the shares were issued directly to subsequent purchasers. Following this procedure, the plaintiffs sold 3700 shares to investors in their efforts to raise capital for the corporation pursuant to the agreement. Thus, at the time of trial, there were 1800 authorized shares that had not been technically issued. The trial court concluded, and we agree, that as of the date the agreement was executed, the plaintiffs were entitled to the 1800 shares as trustees for future purchasers. This interpretation of the agreement was not contested by the defendant at trial.

Thus, the remaining question is whether, in their capacity as trustees, the plaintiffs had standing to petition for the appointment of a receiver. Again, we turn to the language of the agreement to determine whether the parties expressed any intent as to the status of the plaintiffs. Paragraph four provides in part: “The parties shall enter into a stockholder’s agreement providing for the right of first refusal by the corporation and then the other shareholders for the stock of any shareholder wishing to sell his stock, and also providing for a board of directors of 3 members, who shall be STEVENS, HORTON and BOOTH.” As Stevens, Horton and Booth were the only parties to the agreement it is self evident that this provision expresses the signers’ understanding that each was a shareholder. Thus, the trial court’s conclusion that the agreement was silent as to the plaintiffs’ status is clearly erroneous. We note that there is no provision in the agreement that limits the scope of the plaintiffs’ status as shareholders.

We conclude, that as trustees for future purchasers of the shares, the plaintiffs were fiduciaries and, as such, had standing to petition the court for the appointment of a receiver. A trustee is “[t]hat person in a trust relationship who holds legal title to the property subject to the trust, for the benefit of the beneficiary . . . with certain powers and subject to certain duties imposed by the terms of the trust.” Ballentine’s Law Dictionary (3d Ed.). As trustees, therefore, the plaintiffs were fiduciaries. See Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745 n.15, 44 A.2d 196 (1982) (fiduciary includes such relationships as executor, administrator, trustee and guardian); Zuch v. Connecticut Bank & Trust Co., 5 Conn. App. 457, 462, 500 A.2d 565 (1985) (trustee stands in fiduciary relationship with beneficiary of trust).

Our statutes governing the voting rights of shareholders provide that each outstanding share is entitled to vote unless otherwise provided by the certificate of incorporation; General Statutes § 33-324 (a); and, “[u]nless the instrument appointing a fiduciary or creating a fiduciary relationship otherwise provides, a fiduciary has full voting powers with respect to the securities held by him,.” (Emphasis added.) General Statutes § 33-311a (d). Delaware law similarly provides that a “[p]erson holding stock in a fiduciary capacity shall be entitled to vote the shares so held.” Del. Code Ann. tit. 8, § 217. The May 24, 1982 agreement did not place any limitation on the scope of the plaintiffs’ trusteeship. Absent such a limitation, General Statutes § 33-311a (d) makes the conclusive presumption that fiduciaries have the right to vote. As fiduciaries, the plaintiffs had the statutory right and the common law duty to vote the 1800 shares to “protect the trust beneficiaries’ interests in the corporation.” Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 541, 506 A.2d 1054, cert. denied, 200 Conn. 807, 512 A.2d 230 (1986).

We note that paragraph two of the May 24, 1982 agreement provides that if the plaintiffs failed to meet the schedule for raising capital established by paragraph one of the agreement, then the plaintiffs would “retain the stock which they have already received. Additionally, after [such] default Stevens shall have the option to purchase, at original cost, the shares held by Horton/Booth and/or their nominees.” The “stock which they have already received” refers to the original 55 percent of the stock which was issued to them as trustees for future investors. The express language of this provision supports our conclusion that the plaintiffs were shareholders as it manifests the parties’ understanding that the plaintiffs owned, in trust, 55 percent of the shares and that they would become the beneficial owners of these shares if they failed to meet the schedule established for raising capital. Thus, the plaintiffs stood as both legal owners of the 1800 shares and as potential beneficial owners of these shares, and, as such, the plaintiffs’ interest in preventing waste was grounded in both of these capacities.

We conclude that there is no basis for the trial court’s conclusion that the plaintiffs were not shareholders and, therefore, lacked standing to petition the court for the appointment of a receiver for the corporation. To the contrary, as trustees of the remaining 1800 shares, the plaintiffs had a fiduciary duty to seek appointment of a receiver to prevent waste of the corporate assets. See generally 5 W. Fletcher, Cyclopedia of Corporations (Perm. Ed. 1976) § 2035.

We next consider whether a Connecticut court has jurisdiction to appoint a receiver for a foreign corporation. We note at the outset that the plaintiffs did not petition the court for the dissolution of the corporation; General Statutes § 33-381; or for the winding up of the corporation; General Statutes § 33-382; nor were they seeking appointment of a receiver under the court’s statutory authority; General Statutes § 33-383; as these provisions are limited to corporations incorporated in this state and, therefore, do not reach foreign corporations. See Low v. Pressed Metal Co., 91 Conn. 91, 95, 99 A. 1 (1916).

Rather, the plaintiffs rely on the equitable jurisdiction of the court. It has long been the law in this state that “courts do have jurisdiction over the subject-matter of winding up the local business of foreign corporations in receivership proceedings, whether in a stockholders’ suit or upon a creditor’s bill. It would be an intolerable proposition to assert that any local business was beyond the original equity jurisdiction of our courts merely because it was conducted by a foreign corporation.” Id., 95-96; Stolman v. Boston Furniture Co., 120 Conn. 235, 243, 180 A. 507 (1935). “The principle that courts will not interfere in what are vaguely called the internal affairs of a foreign corporation, must yield to the larger and more important principle that all who choose to engage in business within the State . . . necessarily subject such business to the jurisdiction of the courts as fully as if it were conducted by our own citizens or corporations”; Low v. Pressed Metal Co., supra, 96; “and it follows that, so far as this injunction is reasonably necessary to protect the property and property rights of the plaintiffs in this State, it is a proper exercise of jurisdiction, although it incidentally controls, to that extent, the conduct of some of the officers of a foreign corporation.” White v. Greene, 96 Conn. 265, 272, 114 A. 112 (1921).

A receiver of a corporation will be appointed by a court of equity “as a measure ancillary to the enforcement of some recognized equitable right.” Barber v. International Co. of Mexico, 73 Conn. 587, 593, 48 A. 758 (1901). “ ‘The determinative inquiry is whether, considering all the circumstances, the affairs of the corporation should continue to be managed and wound up by those in control of it or, instead, it appears that those in control are so using their power that the property of the corporation should be taken over and administered under the direction of the court. . . . Cogswell v. Second National Bank, [76 Conn. 252, 262, 56 A. 574 (1903)]. The application for a receiver is addressed to the sound legal discretion of the court, to be exercised with due regard to the relevant statutes and rules, and such exercise is not to be disturbed lightly nor unless abuse of discretion or other material error appears.’ Chatfield Co. v. Coffey Laundries, Inc., 111 Conn. 497, 501, 150 A. 511 [1930].” Masterton v. Lenox Realty Co., 127 Conn. 25, 33, 15 A.2d 11 (1940).

“A receiver is properly appointed when there are such dissensions in the governing body of a corporation . . . that the corporation ceases to function in the manner provided for by its own by-laws and in accordance with the statutes relating to corporations.” Krall v. Krall, 141 Conn. 325, 335, 106 A.2d 165 (1954).

In this case, the corporation had ceased to function as a viable economic enterprise. At the time of trial, substantially all of its employees had been discharged or had resigned. It had ceased meeting its financial obligations and at least one action is pending in Superior Court for foreclosure on notes executed by the plaintiffs and the corporation. Stevens had not called a stockholders meeting as required by the corporation bylaws, and had refused to hold elections for two directorships. Thus, it would be well within the equitable authority of the Superior Court to appoint a receiver for the corporation in this case.

We conclude that the plaintiffs did not lack standing, and our resolution of this claimed error is dispositive of this appeal. Although the plaintiffs have raised other claims, it is not clear that those errors will recur in the new trial. Therefore, we decline to review them.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Theodore G. Booth is the other plaintiff in this appeal.

       General Statutes § 52-504 provides: “When any action is brought to or pending in the superior court in which an application is made for the appointment of a receiver, any judge of the superior court, when such court is not in session, after due notice given, may make such order in the action as the exigencies of the case may require, and may, from time to time, rescind and modify any such order. The judge shall cause his proceedings to be certified to the court in which the action may be pending, at its next session.”

       The dismissal of the first count of the complaint was not pursuant to Practice Book § 302, but pursuant to Practice Book § 145, which provides: “Any claim of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”

       Paragraph one of the agreement provides in full: “HORTON/BOOTH shall receive in trust for future investors 55% of the stock and STEVENS shall receive 45% of the stock in Hydra upon execution of this Agreement at which time all original notes totalling $70,000.00 from STEVENS to HORTON/BOOTH shall be returned marked ‘Cancelled.’ Hydra will execute demand notes for $70,000.00 to HORTON. HORTON/BOOTH shall raise up to $750,000.00 within 8 months as the need is demonstrated. Of that amount, $25,000.00 has been received from ALPHONSE MASSARI as payment for his interest in Hydra stock to be delivered by HORTON/BOOTH. If funds in excess of $750,000.00 are required, they will be obtained by bank loans or prorata from the stockholders.”

       After the defendant conceded that the plaintiffs were entitled to the disputed 1800 shares, the court ruled in favor of the plaintiffs on the second count of their complaint and ordered the defendant to deliver a stock certificate representing the 1800 shares to the plaintiffs. The court’s ruling on the second count of the complaint has not been appealed by the defendant.
      The defendant does not expressly contest any of the plaintiffs’ arguments on appeal. In fact, the defendant’s brief consists of a one page recitation of the facts and an argument comprised of two sentences. Although we need not rule on whether such a brief technically complies with the requirements set forth in Practice Book § 4066, it clearly does not comply with its spirit. The failure to respond to the appellant’s arguments necessarily places an appellee at a disadvantage and places an unwelcome burden on this court.

       General Statutes § 33-324 (a) provides: “Each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to shareholders for action, unless, and except to the extent that, voting rights of shares of any class are increased, limited or denied by the certificate of incorporation.”

       General Statutes § 33-311a (d) provides in full: “Unless the instrument appointing a fiduciary or creating a fiduciary relationship otherwise provides, a fiduciary has full voting powers with respect to securities held by him. If securities stand of record in the name of the fiduciary, the corporation may treat such fiduciary as entitled to vote the same unless the secretary of the corporation is given written notice that the fiduciary is not so authorized and is furnished a copy of the instrument or order appointing the fiduciary or creating the fiduciary relationship wherein it is so provided. ’ ’

       See footnote 4, supra.