author: FOTI, J.

text:
    CITY OF MILFORD v. ANTHONY ANDRESAKIS ET AL.
    (AC 18333)
    O’Connell, C. X, and Foti and Sullivan, Js.
    Argued January 12
    officially released March 30, 1999

      Cynthia C. Anger, assistant city attorney, for the appellant (plaintiff).

      Thomas W. Bucci, for the appellees (named defendant et al.).
   Opinion

FOTI, J.

The plaintiff appeals from the judgment of the trial court denying its motion for summary judgment on the defendants’ counterclaim. On appeal, the plaintiff claims that the trial court failed to accord res judi-cata and collateral estoppel effect to a judgment of the United States Court of Appeals for the Second Circuit, which the plaintiff claims bars the defendants’ counterclaim alleging negligent misrepresentation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The plaintiff, the city of Milford, filed an action in state court against the defendants Anthony Andresakis and Gloria Andresakis to foreclose liens for unpaid property taxes and for a flood and erosion assessment allegedly owed on the defendants’ property in Milford. The defendants filed an answer, asserting special defenses and a counterclaim.

Prior to and throughout the pendency of this state court litigation, the defendants commenced and maintained an action against the plaintiff in federal court alleging certain contract and tort claims. On February 17, 1995, the parties entered into a stipulation of dismissal with prejudice of the federal action in which the plaintiff agreed to pay the defendants $7700. In exchange, the defendants were to execute a full and final release of all claims arising out of the federal action against the plaintiff.

Thereafter, the plaintiff proceeded with its foreclosure action against the defendants’ property that, at the time of the federal stipulation of dismissal, was still pending in state court. The defendants then moved to restore their federal court case to the federal docket. The defendants claimed that they entered into the stipulation of dismissal with the plaintiff under the mistaken belief that this settlement precluded the plaintiff from further pursuing its foreclosure action against the defendants’ property. The federal District Court denied the defendants’ motion, however, finding that the defendants “did not harbor a mistaken belief as to the consequences that the dismissal of [the federal] case would have on the state foreclosure action.” Finding that the defendants had “not established grounds to set aside the dismissal under rule 60 (b) [of the Federal Rules of Civil Procedure],” the federal court denied the defendants’ motion. That decision was affirmed on appeal by an unpublished summary order of the Court of Appeals for the Second Circuit.

On December 17,1996, the defendants filed a request for leave to amend their single count counterclaim against the plaintiff to include a second and third count. The second of those counts alleged negligent misrepresentation against the plaintiff based on assertions allegedly made by the plaintiff in an effort to secure the defendants’ stipulation to dismiss the federal court action. Specifically, the defendants alleged that the stipulation of dismissal was based on a misrepresentation by the plaintiff concerning the amount of the delinquency that the defendants owed on their municipal liens. The defendants claim that had they known of the misrepresentation, they would not have settled the federal action for $7700.

In response, the plaintiff filed a motion for summary judgment on the grounds of collateral estoppel and res judicata, asserting that the federal courts had already considered the defendants’ claim of negligent misrepresentation and rejected it. In response, the defendants argued that the federal courts had not addressed the issue of negligent misrepresentation in denying their rule 60 (b) motion. The defendants asserted that because “[t]he issue of the accuracy of the plaintiffs representation regarding the delinquent interest had not been fully and fairly litigated in the federal court action,” issue preclusion and claim preclusion could not apply to the defendants’ counterclaim.

The trial court agreed with the defendants and denied the plaintiffs motion for summary judgment. In so doing, it found that “contrary to the [plaintiffs] position, the federal courts did not consider the [defendants’] claim of misrepresentation in its prior rulings. Rather, the courts addressed whether the stipulation of dismissal should be vacated ... by operation of rule 60 (b) because the [defendants] were justifiably mistaken in their belief that the settlement would not terminate the [plaintiff’s] foreclosure action presently before [the state court]. This does not implicate either a claim that has already been decided on the merits (res judicata) or the relitigation of an issue that has been determined in a prior suit (collateral estoppel).” We agree.

“The standard of review for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998); Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5-6, 698 A.2d 795 (1997); see Practice Book § 17-49. In addition, “[bjecause res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment was the appropriate method for resolving a claim of res judicata. Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).” Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).

“ ‘Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.’ ” Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988); Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401-402, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989). “ ‘Res judicata, or claim preclusion, is distinguishable from collateral estoppel, or issue preclusion. Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim. Slattery v. Maykut, 176 Conn. 147, 156-57, 405 A.2d 76 (1978). In contrast, collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991).’ Weiss v. Statewide Grievance Committee, 227 Conn. 802, 818, 633 A.2d 282 (1993).” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (1997).

On appeal, the plaintiffs initially argue that the trial court improperly determined that the defendants’ counterclaim was not barred by the doctrine of collateral estoppel. We disagree.

“Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Citations omitted; emphasis added; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991). Furthermore, “ ‘[t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. [Id., 297].’ Crochiere v. Board of Education, [227 Conn. 333, 345, 630 A.2d 1027 (1993)].” Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 812.

Here, the issue raised in the defendants’ counterclaim is whether the plaintiff misrepresented to the defendants the amount of interest the defendants owed because of delinquency in payment of their real estate taxes and the special assessment imposed by the plaintiff. An examination of the District Court’s decision, as well as the Second Circuit’s summary order affirming that decision, discloses that the issue of whether the plaintiff ever misrepresented to the defendants the amount of the interest the defendants owed was not discussed.

The District Court, in ruling on the defendants’ motion under rule 60 (b), considered whether the defendants entered into the stipulated judgment while operating under “a mistaken belief as to the consequences that the dismissal of [the federal] case would have on the state foreclosure action.” This question concerns the defendants’ belief as to the legal consequences of the stipulated judgment, not whether the defendants executed that stipulation on the basis of misrepresentations made by the plaintiff concerning the terms of that settlement and suffered a pecuniary loss as aresult. See D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 218, 520 A.2d 217 (1987) (one who supplies false information for guidance of others in business transactions subject to liability under theory of negligent misrepresentation for pecuniary loss caused by justifiable reliance on information).

As the defendants correctly argue, therefore, the legal theory that provides the basis for their counterclaim is separate and distinct from the theory on which they proceeded in their motion under rule 60 (b). As a result, the question of whether the defendants could recover under a theory of negligent misrepresentation was not fully and fairly litigated. In short, because the issue of negligent misrepresentation was not before the federal courts, it was not decided. Future litigation of that issue, therefore, is not barred by the doctrine of collateral estoppel.

The plaintiffs alternatively argue that the trial court improperly determined that the defendants’ counterclaim was not barred by the doctrine of res judicata. We do not agree.

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” (Citations omitted; internal quotation marks omitted.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996).

“[W]e recognize that a decision whether to apply the doctrine of res judicata to claims that have not actually been litigated should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of [a party] in the vindication of a just claim.” (Citation omitted.) Id., 591. “The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies. . . . We review the doctrine of res judicata to emphasize that its purposes must inform the decision to foreclose future litigation. . . . [T]he scope of matters precluded necessarily depends on what has occurred in the former adjudication.” (Citation omitted; internal quotation marks omitted.) State v. Ellis, 197 Conn. 436, 466-67, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990).

As we have discussed, the defendants’ claim of negligent misrepresentation was not ruled on by the federal court in denying the defendants’ rule 60 (b) motion and, therefore, was not actually litigated. The only way that this claim could be precluded under the doctrine of res judicata, therefore, is if the defendants could, have litigated their claim in federal court, but failed to do so. Under the doctrine of res judicata “a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim ... [or any claim based on the same operative facts that] might have been made. . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding .... Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 871-72, 675 A.2d 441 (1996).” (Emphasis in original; internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 43-44, 694 A.2d 1246 (1997).

In this regard, the trial court acknowledged in its articulation that were the defendants “attempting in the present action to have the stipulation of dismissal vacated, the fact that the [defendants] could have asserted misrepresentation in the rule 60 (b) proceeding might have preclusive effect.” (Emphasis added.) Under rule 60 (b), a party may be relieved of a judgment because of the “fraud . . . misrepresentation, or other misconduct of an adverse party . . . .” The trial court pointed out, however, that the defendants do not seek in their counterclaim to have the stipulation of dismissal set aside. Instead, they seek “affirmative relief for damages they allegedly sustained as a result of the [plaintiffs] tortious conduct.”

The trial court recognized that the defendants “could not have brought, nor fully and fairly litigated, a cause of action in tort for negligent misrepresentation in the federal proceeding on the motion for relief from judgment.” (Emphasis in original.) We agree and note that we have been presented with no authority that establishes that a party may seek monetary damages for negligent misrepresentation under rule 60 (b). In fact, relief under rule 60 (b) is equitable in nature. See C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1208 (7th Cir. 1984) (relief under rule 60 (b) essentially equitable in nature and to be administered on equitable principles). Since the defendants did not have “an adequate opportunity to litigate the matter in the earlier [rule 60 (b)] proceeding,” their claim of negligent misrepresentation is not barred by the doctrine of res judicata. Connecticut National Bank v. Rytman, supra, 241 Conn. 43-44.

In addition, “because there are significant differences between a tort action [for negligent misrepresentation and a claim of misrepresentation under rule 60 (b)], the maintenance of a separate tort action will not subject the courts and the [plaintiff] to the type of piecemeal litigation that the doctrine was intended to prevent.” Delahunty v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn. 592. The purpose of a tort action “is to redress a legal wrong by an award of damages . . . .” Id. Rule 60 (b), on the other hand, merely “govern[s] post-judgment motions attacking the merits of a district court’s decision . . . [and] enables a court to grant relief from a judgment under the particular circumstances listed in the text of the rule.” Russell v. Delco Remy Division of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). Therefore, despite the fact that the defendants’ motion under rule 60 (b), like their tort claim, could have been based on comparable allegations of the plaintiffs purported misrepresentations, the two actions “lack the duplication that the doctrine of res judicata was aimed at preventing. ” Delahunty v. Massachusetts Mutual Life Ins. Co., supra, 593.

We conclude, therefore, that the trial court properly found that the defendants’ counterclaim alleging negligent misrepresentation was not barred by the doctrine of res judicata.

The judgment is affirmed.

In this opinion the other judges concurred.

       Initially, we note that the plaintiff is appealing from the trial court’s denial of its motion for summary judgment. On May 6, 1998, the defendants filed a motion to dismiss the plaintiff’s appeal for lack of a final judgment. On July 1, 1998, this court denied that motion. The denial of a motion for summary judgment is not ordinarily appealable because it is not a final judgment. See Connecticut National Bank v. Rytman, 241 Conn. 24, 34, 694 A.2d 1246 (1997). We note, however, that the plaintiffs motion for summary judgment is founded on claims of res judicata and collateral estoppel. In Convalescent. Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 544 A.2d 604 (1988), our Supreme Court found that a judgment denying a claim of collateral estoppel was a final judgment “ripe for immediate appellate review” because, like the “denial of a criminal defendant’s colorable double jeopardy claim,” the defense of collateral estoppel “[invokes] the right not to have to go to trial on the merits.” Id., 194-95. Appellate review in this case is therefore appropriate.

       Several other defendants are named in the plaintiff’s complaint and include the South Central Connecticut Regional Water Authority, the United States Small Business Administration, Shawmut Bank Connecticut, National Association and the New England Water Heater Company. These additional defendants were made parties to the action by virtue of their interest in the subject property. None of these parties, however, has appealed. In this opinion, we refer to Anthony Andresalds and Gloria Andresalds as the defendants.

       The federal court treated the defendants’ motion as a motion to vacate the stipulation of dismissal pursuant to rule 60 (b) of the Federal Rules of Civil Procedure, which provides in relevant part that “[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . .” (Emphasis added.)

       The federal court noted that “[a] mistake that justifies relief under rule 60 (b) (1) must be mutual . . . and must result from an erroneous impression of fad or an unexpected and unavoidable occurrence which makes the mistake a matter not of carelessness but of unavoidability. . . . Misapprehension as to the legal impact of a judgment does not state grounds for relief under rule 60 (b). . . .A mistake as to the legal impact of dismissal is not excusable neglect that provides a basis for rule 60 (b) relief.” (Citations omitted.) Recommended Ruling on Pending Motions, Docket No. 93CV00098 (March 22, 1996), approved and adopted by United States District Court,, District of Connecticut (September 26,1996), aff d, Summary Order, Docket No. 96-9467, United States Court of Appeals for the Second Circuit, (July 9, 1997).

       The defendants assert, in their counterclaim that the plaintiff had represented to them that the amount of interest the defendants owed the plaintiff because of the defendants’ “delinquency in payment of their real estate taxes, as well as the special assessment imposed upon them by the plaintiff, did not, exceed” $7700. The defendants assert that the plaintiff should have known that this information was inaccurate. The defendants further assert that, it was in reliance on this information that they “agreed to settle their claim for damages against the plaintiff for the amount of $7,700.” According to the defendants’ affidavit, which they submitted along with their opposition to the plaintiffs motion for summary judgment, they were damaged by this purported misrepresentation because after the defendants agreed to settle their claims against the plaintiff for $7700, the plaintiff demanded from the defendants “delinquent interest payments substantially greater than the $7,700 amount it had originally represented was due and owing it.”

       The plaintiffs motion for summary judgment, which also challenged the first count of the defendants’ counterclaim, was granted as to that first count. The defendants, however, did not appeal the partial granting of the plaintiffs motion for summary judgment. The only issue before this court is the plaintiffs appeal of the trial court’s denial of its motion for summary judgment on the second count of the defendants’ counterclaim.

       The trial court, in denying the plaintiffs motion for summary judgment, appears to have relied on the decisions of both the District Court and the Court of Appeals for the Second Circuit in deciding the possible preclusive effect of the defendants’ claim of mistake. This court has also referenced both decisions in reviewing the trial court’s judgment. We note that, “[a]s a procedural matter, once the Court of Appeals for the Second Circuit made its own assessment of [a party’s] claims and undertook independently to explain its reasoning, which was not identical with that of the District Court, the relevant decision for purposes of issue or claim preclusion necessarily became that of the Second Circuit. Cf. 1 Restatement (Second), Judgments § 27, comment (o), p. 263 (1982).” Connecticut National Bank v. Rytman, 241 Conn. 24, 39-40, 694 A.2d 1246 (1997). This rule appears to stand in contrast to Upjohn Co. v. Planning & Zoning Commission, 224 Conn. 82, 616 A.2d 786 (1992), in which our Supreme Court “relied on the opinions of both the District Court and the Second Circuit in determining that a prior federal court litigation collaterally estopped later state court proceedings.” Connecticut National Bank v. Rytman, supra, 39 n.18.

        Upjohn Co. can be reconciled with the rule announced in Connecticut National Bank, however, in that “Upjohn Co. involved a District Court judgment that was affirmed, per curiam, by the Circuit Court in an opinion that relied ‘substantially [on] the reasons stated’ by the District Court.” Id., 39-40 n.18. Our Supreme Court explained that “]u]nder those circumstances, it W'as necessary to refer to the District Court opinion in order properly to consider the pertinent legal issues.” Id.
      Here, an examination of the Second Circuit’s opinion shows that it did not undertake to conduct any independent analysis of the defendants’ claim and relied “substantially on the reasons stated” by the District Court in affirming that court’s decision. We, therefore, find it “necessary to refer to the District Court opinion in order properly to consider the pertinent legal issues” presently before this court. See id.

       On May 7, 1998, following the trial court’s memorandum of decision, the plaintiff filed a motion for articulation of the trial court’s decision. The trial court denied this motion on the same date. On May 15,1998, the plaintiff filed a motion for review with this court. We granted the plaintiffs motion and ordered the trial court “to articulate its decision on the issue of res judicata.” On October 30, 1998, the trial court issued its articulation.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EUGENE COLEMAN
    (AC 17377)
    Spear, Hennessy and Sullivan, Js.
    Argued November 12, 1998
    officially released March 30, 1999

      Francis L. O’Reilly, special public defender, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kevin Murphy, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Eugene Coleman, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l) and unlawful restraint in the first degree in violation of General Statutes § 53a-95. The defendant claims that (1) there was insufficient evidence to establish beyond a reasonable doubt that he compelled the victim to engage in sexual intercourse by the use of force and (2) the trial court did not fairly and accurately marshall the evidence in its charge to the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 2, 1994, the victim, a thirty-three year old woman, and a friend visited the West Indian Social Club in Hartford where they met the victim’s sister. During the evening, the victim consumed two alcoholic beverages. The victim weighed about 115 pounds and the strong drinks caused her to feel the effects of the alcohol. As she and her sister were about to leave the club, the victim excused herself to use the bathroom because she thought she might become sick.

On her way to the women’s bathroom, the victim saw the defendant looking at her. The defendant, who was employed as a security guard at the club, was big and husky. She recognized the defendant because he had made unwelcome sexual comments to her in the past, which she had ignored.

The defendant confronted the victim as she was leaving a stall in the women’s bathroom, pulling up her shorts and underwear. The defendant told her he wanted to perform cunnilingus on her. The victim told the defendant to leave her alone and to get out of the women’s bathroom. The defendant then attacked the victim. He pulled down the victim’s shorts and underwear, fondled her genital area and performed cunnilingus on her. He then turned the victim around and penetrated her vagina from the rear with his penis, which was painful to the victim.

The victim attempted to fight off the defendant but she was too weak and sick from the alcohol. She told him to stop and to get off of her. She tried to cry out, but, because she felt sick, her voice was not strong and she did not attract anyone’s attention.

The defendant left the women’s bathroom and the victim went into the club to tell her sister that she had been assaulted. She got a ride home from a neighbor, who was also at the club, and on the way home she told the neighbor that she had been raped in the bathroom by the defendant. When they arrived home, the neighbor told the victim’s boyfriend, who then called the police. The police called an ambulance that took the victim to the hospital where a rape kit test was performed.

I

The defendant claims that there was insufficient evidence to establish beyond a reasonable doubt that he compelled the victim to engage in sexual intercourse by the use of force. Specifically, the defendant argues that the evidence was insufficient to show the existence of force because force means “physical force that overcomes earnest resistance or . . . threat of immediate harm to the victim or third party.” The state responds that the evidence was sufficient to show the existence of force because force can be shown by the use of superior physical strength.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. James, 237 Conn. 390, 435, 678 A.2d 1338 (1996).” (Internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 670, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). “The element of ‘use of force’ is a question of fact for the jury.” State v. Robinson, 14 Conn. App. 40, 43, 539 A.2d 606, cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 233 (1988). “We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Internal quotation marks omitted.) State v. Williams, 16 Conn. App. 75, 78, 546 A.2d 943 (1988).

“In order for the defendant to be convicted of sexual assault in the first degree, the state must prove beyond a reasonable doubt that the defendant (1) compelled the victim to engage in sexual intercourse (2) by use of force or threat of force.” State v. Johnson, 26 Conn. App. 433, 436, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992).

“According to General Statutes § 53a-65 (7), ‘use of force,’ as relevant here, means ‘use of actual physical force or violence or superior physical slrenglh against the victim.’ ” (Emphasis added.) State v. Williams, supra, 16 Conn. App. 79. Contrary to the defendant’s assertion that use of force is “physical force that overcomes earnest resistance,” we held in State v. Mackor, 11 Conn. App. 316, 321-22, 527 A.2d 710 (1987), that § 53a-70, “no longer requires that the state prove that physical force overcame earnest resistance .... [T]he state is now required to prove that it was the use of force or its threat which caused the victim to engage in sexual intercourse, and does not by its express language require that resistance be proven.” See also State v. Kulmac, 230 Conn. 43, 75, 644 A.2d 887 (1994) (focus in sexual assault case is not conduct of victim and adequacy of resistance, but conduct of defendant and use of force or threat of use of force).

The state produced the following evidence at trial. The victim was petite and weighed about 115 pounds, whereas the defendant was big and husky. The defendant confronted the victim, who was weak and sick from the effects of alcohol, in the women’s bathroom as she left a stall and, despite her protests, pulled down her shorts and underwear, held her right shoulder, engaged in cunnilingus, turned her around, pushed his body weight against her and inserted his penis into her vagina from behind.

The victim testified that the defendant entered the bathroom and attacked her. She testified that the defendant did not use physical violence against her, but held her right shoulder and pushed his body weight against her. She testified that the defendant used the “[f]orce of his strength. He knew [she] was weak .... He knew [she] was drunk and sick and weak. [She] was telling [the defendant] that [she was] sick and weak, stop this.” She testified that he “braced me off in a way” and his body exerted pressure on her. She also testified that she tried to fight him off, and she told him to stop and get off of her. She also indicated that she yelled, but her voice was not strong because she was weak and sick from the alcohol. She testified that she was raped and that the experience was traumatic.

These facts are similar to those in State v. Robinson, supra, 14 Conn. App. 43, in which we held that there was sufficient evidence of force to uphold the jury’s verdict. In Robinson, the victim testified that the defendant kissed her and she told him to stop, but the defendant pulled up her shirt and put his mouth on her breast and she “froze.” Id., 41. The defendant then removed her pants and forced himself on her despite her pleas to stop and her attempt to push him away. Id. On the basis of the testimony of the victim in the present case, we conclude that the evidence is sufficient for a jury to conclude that the defendant compelled sexual intercourse with the victim by the use of force.

The defendant concedes that he had sexual intercourse with the victim, but he contends that the victim consented and that the evidence presented could support consensual intercourse. “[I]n evaluating evidence that could yield contrary inferences, the [trier of fact] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [trier of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Crespo, supra, 246 Conn. 671. In addition “[i]f such force is proven beyond a reasonable doubt, lack of consent is implicit.” State v. Jackson, 30 Conn. App. 281, 289, 620 A.2d 168, cert. denied, 225 Conn. 916, 623 A.2d 1026 (1993).

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the trier of fact reasonably could have concluded from the facts and the inferences reasonably drawn therefrom that the cumulative effect of the evidence established beyond a reasonable doubt that the defendant compelled the victim to engage in sexual intercourse by the use of force. Therefore, the evidence is sufficient to establish that the defendant was guilty of sexual assault in the first degree in violation of § 53a-70 (a) (1).

II

The defendant next claims that the trial court improperly marshaled the evidence in an unfair and inaccurate manner thereby depriving him of a fair and impartial trial and due process of law.

The defendant failed to raise this claim at trial and now seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “In Golding, [our Supreme Court] held: [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Cole, 50 Conn. App. 312, 318, 718 A.2d 457, cert. granted on other grounds, 247 Conn. 937, 722 A.2d 1217(1998).

In addressing a Golding claim, this court “remain[s] free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992); see also State v. Wideman, 36 Conn. App. 190, 204-205, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995). Because the defendant failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial, his claim fails the third condition of Golding.

Specifically, the defendant argues that the testimony does not support the trial court’s use of the phrases “while holding her shoulder back” and “the defendant strained her by holding on to her shoulders” in describing the evidence of force. “In reviewing a claim that the court improperly commented on the evidence, we first note that [i]t has been established by repeated decisions in this State that a court, in submitting a case to the jury, may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point of evidence in issue in the case, and may comment upon the weight of the evidence, so long as it does not direct or advise the jury how to decide the matter .... The ultimate test of the charge is whether, read in its entirety, it fairly presents the case to the jury so that no injustice is done .... Individual comments are not to be judged in isolation from the charge as a whole . . . and should be examined not in a vacuum, but in the context of the factual issues raised at trial.” (Internal quotation marks omitted.) State v. Ortiz, 47 Conn. App. 333, 346-47, 705 A.2d 554 (1997), cert. denied, 244 Conn. 902, 710 A.2d 175 (1998). “[I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 170-71, 665 A.2d 63 (1995).

We note that the trial court’s statements are supported by the evidence. The victim testified that the defendant held on to her right shoulder and pushed his body weight against her. She also testified that the defendant “braced her off in a way.” While the victim did not specifically state that the defendant “strained her by holding on to her shoulders,” as we have stated, it is the charge as a whole and not individual comments of the judge that should be examined.

After reviewing the entire charge to the jury, we note that the trial court repeatedly informed the jury that it was the sole finder of fact and that it should rely on its own recollection of the evidence. The court also instructed the jury that any commentary by the court is for purposes of illustration, and, if the court’s recollection of the evidence does not agree with that of the jury, the jury should rely on its own recollection.

We conclude that the charge read in its entirety fairly presents the case to the jury. Therefore, we conclude that the trial court’s marshaling of the evidence did not mislead the jury and, thus, did not deprive the defendant of his right to due process. The defendant’s claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       Both the state and the defendant assumed that the trial court meant the word “restrained,” however, neither party filed a motion to rectify the transcript. Therefore, we must assume that the trial court used the word “strained.”

       Specifically, the trial court instructed the jury as follows: “It’s your responsibility to find the facts from the evidence presented, recollect and weigh the evidence and from that, reach your only conclusions as to what the ultimate facts are. . . . The evidence from which you are to decide the facts consists of sworn testimony of the witnesses both from the direct examination and cross-examination regardless of who calls the witness. . . . You must decide this case solely on the evidence submitted to you during this trial. Now, should I make some commentaries of the evidence to better illustrate some rule, these commentaries are not binding upon you. If my recollection of the evidence does not comport with your recollection, then it’s your recollection which must prevail because you are the exclusive trier of the facts.” After marshaling the evidence, the trial court further instructed the jury: “Now, that is the evidence as I best recall it. Clearly, I told you on prior occasions if my recollection of the facts does not comport with your recollection of the facts, then it is your recollection which must prevail because you are the sole trier of the facts. It’s your exclusive province to determine what the facts in this case are.”


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. NORMAN J. BELIVEAU
    (AC 16215)
    Lavery, Landau and Sullivan, Js.
    Argued November 9, 1998
    officially released March 30, 1999

      Louis S. Avitabile, special public defender, with whom, on the brief, was PaulMatasavage, for the appellant (defendant).

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

LAVERY, J.

The defendant, Norman J. Beliveau, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1) and (2), operating a motor vehicle with a suspended operator’s license in violation of General Statutes § 14-215 and reckless driving in violation of General Statutes § 14-222. The state filed a substitute part B information charging the defendant with operating a motor vehicle with a suspended operator’s license in violation of General Statutes § 14-215 (c) and, following a trial to the court, the trial court found the defendant guilty as to that offense. This appeal followed.

On appeal, the defendant claims that the trial court improperly denied his motion to suppress (1) all of the statements he made after his arrest for breach of the peace because the arrest was pretextual as well as the statements he made after the police used deception to elicit incriminating information, (2) two incriminating statements he made while on his porch prior to his arrest for breach of the peace because the police elicited those statements during a custodial interrogation without first advising him of his Miranda rights and (3) incriminating statements he made immediately prior to the administration of several field sobriety tests. We affirm the judgment of the trial court.

The following facts and procedural history are pertinent to a resolution of the issues on appeal. On July 14, 1994, at approximately 5:30 p.m., Richard Stebar observed the defendant driving a white van erratically on Route 8. Stebar followed the van until it stopped in front of 52 Hotchkiss Street in Naugatuck. Stebar watched the defendant exit the van and stagger toward the house. At approximately 6 p.m., Stebar- relayed that information to two police officers from the Naugatuck police department. On the basis of that information, the officers went to the defendant’s home. Officer Jeremiah Scully and the defendant discussed Stebar’s allegations and, when the defendant disregarded Scully’s admonitions to calm down, Scully arrested him for breach of the peace.

The defendant was transported to the police station and, prior to being advised of his Miranda rights, he agreed to perform several field sobriety tests, each of which he failed. After the defendant was advised of his Miranda rights, he agreed to submit to a Breathalyzer test. The Breathalyzer results indicated that at 6:42 p.m., the defendant’s blood alcohol content was 0.175 percent, and at 7:17 p.m. his blood alcohol content was 0.162 percent.

The defendant filed a pretrial motion to suppress the incriminating statements he had made to the police while he was in his kitchen, on his porch, in the police cruiser and at the police station. On April 25 and 26, 1996, the trial court held an evidentiary hearing to decide the defendant’s motion. On April 29, 1996, the trial court denied the defendant’s motion to suppress. The defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor, operating a motor vehicle while his license was under suspension for operating a motor vehicle while under the influence of intoxicating liquor and reckless driving, and this appeal followed.

I

The defendant first claims that the trial court improperly denied his motion to suppress (1) all of the statements he made after his arrest for breach of the peace because this arrest was pretextual and (2) the statements he made after the police utilized deception to elicit incriminating information. Specifically, the defendant first claims that “Officer Scully had no right or reason to wrongfully arrest [him] for breach of [the] peace other than as a pretext or subterfuge to avoid having to leave the property and to be able to continue talking to [him] about Stebar’s claims that [he] was driving in an erratic manner . . . .” Second, he claims that “Scully lied to [him] about the state police having his plate number” and that this deception constituted a “coercive act of subterfuge” that enabled the police to elicit incriminating information. We decline to review either of these claims.

At oral argument, the state questioned whether the defendant had distinctly raised these claims at the suppression hearing. “This court will not review issues of law that are raised for the first time on appeal.” State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” Keating v. Glass Container Corp., 197 Conn. 428, 431, 497 A.2d 763 (1985). “Claims that were not distinctly raised at trial are not reviewable on appeal.” State v. Pickles, 28 Conn. App. 283, 286-87, 610 A.2d 716 (1992).

We conclude that the defendant failed to raise either of these claims distinctly during the suppression hearing. At the suppression hearing, although the defendant questioned “whether or not the breach of peace occurred as a result of an illegal arrest,” he neither cites, nor can we locate in the transcript of the suppression hearing, any reference to his claim that the police used his arrest as a pretext to continue their investigation of Stebar’s allegations. We decline the defendant’s invitation to transform this cryptic reference into the claim now raised on appeal. Additionally, the defendant neither cites, nor can we locate, any reference to his claim that the police used deception to obtain incriminating statements. On appeal, the defendant did not contend that these claims were reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or subject to plain error review. Consequently, we decline to review these claims.

Were we to assume that the defendant distinctly raised both of these claims at the suppression hearing, we would reach the same conclusion. Although the trial court denied the defendant’s motion to suppress, it did not comply with Practice Book § 64-1 (a) because it neither issued a written memorandum of decision nor signed the transcript of its oral decision. See Practice Book § 64-1 (a); State v. Rosedom, 34 Conn. App. 141, 143, 640 A.2d 634 (1994). “While we do not condone the court’s failure to comply with [Practice Book] § 4059 [now § 64-1 (a)], and would decline in most instances to search the transcript to ascertain the factual basis in support of the trial court’s ruling, we would not exalt form over substance if the deficiency were of a technical nature.” State v. Rios, 30 Conn. App. 712, 714, 622 A.2d 618 (1993); see State v. Rosedom, supra, 143.

In the present case, although there is an unsigned transcript of the trial court’s oral decision, it is devoid of any reference to either of the defendant’s claims. “It is the appellant’s duty to take the necessary steps to provide us with an adequate record for appellate review. . . . The defendant could have ensured the adequacy of the record by filing a motion for articulation pursuant to Practice Book § 4051 [now § 66-5] asking the trial court to set forth the basis and reasoning for its decision, or by filing a motion to compel the trial court to file a memorandum of decision pursuant to Practice Book § 4183 [now § 60-2].” (Citations omitted.) State v. Rosedom, supra, 34 Conn. App. 144-45. The defendant elected to do neither. Accordingly, we decline to review these claims.

II

The defendant next claims that the trial court improperly denied his motion to suppress two incriminating statements he made while on his porch prior to his arrest for breach of the peace because the police elicited these statements during a custodial interrogation without first advising him of his Miranda rights. We also decline to review this claim.

“Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 267, 681 A.2d 922 (1996). “Two discrete inquiries are essential to the determination [of custody]: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. . . . The first inquiry ... is factual and will not be overturned unless it is clearly erroneous. . . . The second inquiry . . . requires an application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a mixed question of law and fact qualifying for independent review.” (Citations omitted; internal quotation marks omitted.) State v. Walton, 41 Conn. App. 831, 835-36, 678 A.2d 986 (1996); see State v. Tomasko, supra, 267-69.

In the unsigned transcript of its oral decision, the trial court did not indicate whether the defendant was in custody when, prior to his arrest for breach of the peace, he was standing on his porch and made these two incriminating statements. Of greater significance is that the trial court failed to articulate the factual circumstances surrounding Scully’s questioning of the defendant on his porch. See State v. Walton, supra, 41 Conn. App. 835-36; see also State v. Tomasko, supra, 238 Conn. 269. Without these predicate factual findings, we cannot determine whether the defendant was in custody when he made these incriminating statements and, therefore, entitled to Miranda warnings.

It is the appellant’s duty to take the necessary steps to provide us with an adequate record for appellate review. State v. Rios, supra, 30 Conn. App. 715. As we have stated, the defendant filed neither a motion for articulation nor a motion to compel the trial court to file a memorandum of decision. “When our rules of practice are not followed, and the record is not rectified, we are left to guess or speculate as to the existence of a factual predicate.” State v. Rosedom, supra, 34 Conn. App. 145-46. As it is not the function of this court to find facts, we decline to review the defendant’s claim.

III

In his final claim, the defendant contends that the trial court improperly denied his motion to suppress incriminating statements he made in response to Scully’s request that he perform several physical sobriety tests. Specifically, he claims that those statements are inadmissible because they were elicited in response to custodial interrogation and the police had not yet advised him of his Miranda rights. We disagree.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Citations omitted; internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

Scully testified that, at the police station, he asked the defendant if he would submit to the so-called California physical sobriety tests. The defendant responded that he did not need the tests because he was “half in the bag” and he had consumed a “six-pack or two of beer.” Additionally, the defendant admitted that he was drunk. Defense counsel moved to suppress those statements, but the trial court concluded that they were admissible pursuant to the United States Supreme Court’s decision in Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990).

Although the trial court neither issued a memorandum of decision nor signed the transcript of its oral decision, in this instance its failure to comply with Practice Book § 64-1 (a) constitutes a technical defect because the unsigned transcript of its oral decision sets forth the specific legal basis it relied on in denying the defendant’s motion to suppress the statements. Additionally, there is no dispute that the defendant made the incriminating statements in response to Scully’s request to perform the California sobriety tests. Consequently, this claim is appropriate for review. See Connecticut National Bank v. Browder, 30 Conn. App. 776, 778-79, 622 A.2d 588 (1993); State v. Rivera, 30 Conn. App. 224, 225 n.1, 619 A.2d 1146, cert. denied, 225 Conn. 913, 623 A.2d 1024 (1993).

In Pennsylvania v. Muniz, supra, 496 U.S. 585, prior to advising the defendant of his Miranda rights, the police transported him to the police station. At the station, the police asked the defendant to submit to the “horizontal gaze nystagmus” test, the “walk and turn” test and the “one leg stand” test. Id., 602. The defendant made several incriminating statements while he was attempting to comprehend an officer’s instructions and while he was performing those sobriety tests. Id. Additionally, he made incriminating statements when he was asked to submit to a Breathalyzer test. Id., 604. The defendant claimed that all of those statements were inadmissible because they were elicited before he had been advised of his Miranda rights. Id., 602-605.

The Supreme Court rejected the defendant’s claim, holding that the police officer’s “dialogue with Muniz concerning the physical sobriety tests . . . contained limited and carefully worded inquiries as to whether Muniz understood . . . instructions [about the sobriety tests], but these focused inquiries were necessarily attendant to the police procedure held by the [state] court to be legitimate. Hence, Muniz’s incriminating utterances during this phase of the . . . proceedings were voluntary in the sense that they were not elicited in response to custodial interrogation.” (Internal quotation marks omitted.) Id., 603-604. Additionally, the court held “that Miranda [did] not require suppression of the statements Muniz made when asked [by the police] to submit to a breathalyzer examination. . . [because] Muniz’s statements were not prompted by an interrogation within the meaning of Miranda . . . .” (Citation omitted.) Id., 604-605. The court held that asking the defendant whether he wished to submit to the breathalyzer test was “necessarily attendant to the legitimate police procedure . . . and [was] not likely to be perceived as calling for any incriminating response.” (Citation omitted; internal quotation marks omitted.) Id., 605.

Similarly, in the present case, Scully merely asked the defendant if he would submit to three physical sobriety tests, a question that Muniz establishes was necessarily attendant to a legitimate police procedure and was not likely to be perceived as calling for any incriminating response. Consequently, the decision in Muniz establishes that in the present circumstances the defendant’s statements were properly admissible because they were uninvited or voluntary in the sense that they were not elicited in response to custodial interrogation.

Our conclusion in this case is further reinforced by the United States Supreme Court’s decision in South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983). In Neville, the Supreme Court held: “In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. As we stated in Rhode Island v. Innis, 446 U.S. 291, 301 [100 S. Ct. 1682, 64 L. Ed. 2d 297] (1980), police words or actions ‘normally attendant to arrest and custody’ do not constitute interrogation. The police inquiry here ... is similar to a police request to submit to fingerprinting or photography.” (Emphasis added.) South Dakota v. Neville, supra, 564 n.15; see also United States v. Edmo, 140 F.3d 1289, 1293 (9th Cir. 1998) (request that defendant submit urine sample did not constitute interrogation within meaning of Miranda); Riley v. Dorton, 115 F.3d 1159, 1165 (4th Cir.), cert. denied, 522 U.S. 1030, 118 S. Ct. 631, 139 L. Ed. 2d 611 (1997) (request that defendant sign waiver consenting to DNA testing did not constitute interrogation under Miranda).

We conclude that the trial court properly determined that the statements made by the defendant in response to Scully’s request to perform the physical sobriety tests were properly admissible.

The judgment is affirmed.

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Practice Book § 64-1 (a), formerly § 4059, provides in relevant part: “The court shall state its decision either orally or in writing, in all of the following ... (4) in ruling on motions to suppress under Section 41-12 .... The comet’s decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office. . . .”

       In denying the defendant’s motion to suppress, although the trial court stated that “[t]he defendant was not then in custody, and that those statements are permissible,” it is unclear whether the trial court was referring to “[a]ll of the statements which were made [by the defendant] in the kitchen” or the statements made by the defendant on his porch prior to his arrest for breach of the peace or other statements made by the defendant. “We cannot guess or speculate on the existence of a factual predicate to support a conclusion of law;” Economy Sales & Service Co. v. Family Center Pharmacy, Inc., 33 Conn. App. 822, 823, 639 A.2d 1042 (1994); and “[t]his court will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” (Internal quotation marks omitted.) State v. Arisco, 39 Conn. App. 11, 15, 663 A.2d 442 (1995).
      “Moreover, to the extent that the trial court’s [oral ruling] may be viewed as ambiguous ... we read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment.” (Internal quotation marks omitted.) Id., 16. The defendant did not file a motion for articulation pursuant to Practice Book § 66-5.

       The defendant neither invoked the state constitution, nor provided an independent analysis of his claim under the state constitution; therefore, we limit our analysis of his claim to the protection afforded by the federal constitution. See State v. Wright, 246 Conn. 132, 138, 716 A.2d 870 (1998); State v. Barnes, 232 Conn. 740, 744 n.4, 657 A.2d 611 (1995).

       Scully testified that those physical sobriety tests include the “horizontal gaze nystagmus” test, the “walk and turn” test and the “one leg stand” test. “The ‘horizontal gaze nystagmus’ test measures the extent to which a person’s eyes jerk as they follow an object moving from one side of the person’s field of vision to the other. The testis premised on the understanding that, whereas everyone’s eyes exhibit some jerking while turning to the side, when the subject is intoxicated ‘the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct.’ 1 R. Erwin et ah, Defense of Drunk Driving Cases § 8A.99, pp. 8A-43, 8A-45 (1989). The ‘walk and turn’ test requires the subject to walk heel to toe along a straight line for nine paces, pivot, and then walk back heel to toe along the line for another nine paces. The subject is required to count each pace aloud from one to nine. The ‘one leg stand’ test requires the subject to stand on one leg with the other leg extended in the air for 30 seconds, while counting aloud from 1 to 30.” Pennsylvania v. Muniz, 496 U.S. 582, 585 n.1, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990).

       Our conclusion is limited to the specific facts presented in this case. We express no opinion concerning whether other types of questions that a defendant might be asked prior to or during the administration of field sobriety tests constitute custodial interrogation within the meaning of Miranda. For example, in Pennsylvania v. Muniz, supra, 496 U.S. 603, the Supreme Court noted that the police officer’s “dialogue with Muniz concerning the physical sobriety tests . . . [was] not ‘words or actions’ constituting custodial interrogation, with two narrow exceptions not relevant hei-e.” (Emphasis added.) The “[t]wo exceptions consist of . . . [the police officer’s] requests that Muniz count aloud from 1 to 9 while performing the ‘walk and turn’ test and that he count aloud from 1 to 30 while balancing during the 'one leg test.’ Muniz’s counting at the officer’s request qualifies as a response to custodial interrogation.” Id., 603 n.17.
      In this appeal, the defendant asked us to determine only whether Scully’s request for him to perform the California physical sobriety tests at the police station constituted custodial interrogation within the meaning of Miranda, and whether the incriminating statements he made in response to this question must be suppressed because he was not advised of his Miranda rights. The defendant neither claims, nor does the transcript of the trial court’s oral decision reflect, that he made any incriminating statements in response to a request to count aloud while performing the “walk and turn” test and the “one leg stand” test. Therefore, the issue of whether the two exceptions set forth in Muniz apply to the present case is not before us.


author: SULLIVAN, J.

text:
    ERIC RUMBIN v. EDUARDO BAEZ
    (AC 18105)
    Foti, Landau, and Sullivan, Js.
    Argued January 20
    officially released March 30, 1999

      Norman A. Pattis, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      R. J. Weber III, with whom, on the brief, was Madonna A. Sacco, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The plaintiff, Eric Rumbin, appeals the trial court’s judgment rendered in favor of the defendant after that court granted the defendant’s motion to strike all counts of the plaintiffs complaint. The plaintiff claims that the trial court improperly found that the complaint failed to state a claim for which relief may be granted (1) under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., (2) for breach of contract and (3) for tortious interference. We affirm the judgment of the trial court.

In his substitute complaint, the plaintiff alleges the following relevant facts. In 1988, the plaintiff was a client of the bureau of rehabilitation services (bureau), a division of the state’s department of social services. The bureau referred the plaintiff to the defendant for a psychological evaluation, which the defendant conducted in June and July of 1988. The defendant is a licensed clinical psychologist with a practice in New Haven. On the basis of the results of psychological and neuropsychological tests, the defendant diagnosed the plaintiff as suffering from dependent personality disorder.

The plaintiff further alleges that the defendant was not qualified or competent to perform such tests but falsely represented himself as such for personal pecuniary gain. He claims that, relying on the defendant’s erroneous report, the bureau determined that the plaintiff should be denied certain services that he was seeking, including support for graduate or professional school, because his dependency largely precluded employability and would only be reinforced by the provision of further services.

“Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the defendants’ motions is plenary. . . . [W]e take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.” (Citations omitted; internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 307-308, 709 A.2d 1089 (1998).

I

The plaintiff first claims that the trial court improperly ruled that he failed to state a claim for which relief may be granted for a violation of CUTPA. We disagree.

“Although physicians and other health care providers are subject to CUTPA, only the entrepreneurial or commercial aspects of the profession are covered, just as only the entrepreneurial aspects of the practice of law are covered by CUTPA.” Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997); see also Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 717 A.2d 724 (1998) (professional malpractice not covered by CUTPA). “[T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation.” Haynes v. Yale-New Haven Hospital, supra, 38.

Haynes is controlling precedent in this case. The plaintiff in Haynes alleged that Yale-New Haven Hospital was certified and held itself out as a major trauma center despite the fact that the emergency department was inadequately staffed and the existing staff was inadequately trained for that facility to be a major trauma center. Moreover, Yale-New Haven Hospital’s emergency room procedures fell short of major trauma center standards. The Supreme Court concluded that the hospital’s representation to the public that it met the standards of competency of a major trauma center and its failure to meet those standards constituted grounds for a malpractice claim but did not rise to the level of a CUTPA claim.

The defendant in this case was a licensed clinical psychologist, maintained a clinical psychology practice and held himself out to the public as qualified to practice clinical psychology. The defendant’s failure to meet the standards of that profession would constitute a malpractice claim. The mere fact that the defendant received compensation for services that he was not competent to perform is not different from Yale-New Haven Hospital’s receiving compensation for services that it could not deliver. Therefore, the trial court properly struck the CUTPA count of the substitute complaint.

II

The plaintiff claims that the trial court improperly found that he failed to state a claim for which relief may be granted for breach of contract. We disagree.

An allegation of medical malpractice does not generally give rise to a breach of contract claim. See Barnes v. Schlein, 192 Conn. 732, 735-36, 473 A.2d 1221 (1984); Camposano v. Claiborn, 2 Conn. Cir. Ct. 135, 137, 196 A.2d 129 (1963). A breach of contract claim is a distinct claim that may arise from the same facts and may exist where the physician and patient contract for a specific result. Camposano v. Claiborn, supra, 137.

In DiMaggio v. Makover, 13 Conn. App. 321, 324, 536 A.2d 595 (1988), the plaintiff asserted a breach of contract claim against a psychiatrist who incompetently conducted a psychological evaluation of her at her employer’s request and whose erroneous report resulted in her termination. Because we concluded that her claim sounded in malpractice and failed to disclose any breach of a contractual duty owed to her by the defendant, we affirmed the trial court’s summary judgment against her.

The factual scenario here is similar to that m. DiMaggio. The defendant performed psychological tests on the plaintiff at the behest of the bureau despite his alleged incompetence to do so. As a result of the defendant’s report, the plaintiff did not receive various benefits and services from the bureau. The plaintiffs substitute complaint contains no allegation of a breach of a contractual duty owed to him. There is no allegation that the parties contracted for a specific result. The claim is essentially a medical malpractice claim clothed in the language of contract. Therefore, we conclude that the trial court properly found that the plaintiff failed to state a breach of contract claim.

Ill

The plaintiff finally claims that the trial court improperly found that he failed to state a tortious interference claim for which relief can be granted.

“This court has long recognized a cause of action for tortious interference with contract rights or other business relations. . . . The essential elements of such a claim include, of course, the existence of a contractual or beneficial relationship and that the defendant(s), knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss.” (Citation omitted; internal quotation marks omitted.) Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985).

The facts in the substitute complaint do not support a claim for tortious interference with business expectancies. The beneficial relationship element is missing or is, at best, highly speculative. Nowhere is there an allegation that the defendant knew of that relationship or that he intended to interfere with it. Moreover, the bureau’s denial of funds that the plaintiff was seeking for medical, graduate or professional school does not create any actual loss. Nowhere is it alleged that the defendant had been accepted at such a school or had more than speculative plans to pursue that course. We conclude that the trial court properly struck the plaintiffs complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court also struck the negligence count of the substitute complaint, but the plaintiff has not challenged that decision.


author: PER CURIAM.

text:
    FARMERS AND MECHANICS BANK v. STANLEY M. KRUPA ET AL.
    (AC 18426)
    Foti, Spear and Hennessy, Js.
    Argued January 13
    officially released March 30, 1999

      Stanley M. Krupa, pro se, the appellant (named defendant).

      Theodore V. Raczka, for the appellee (substitute plaintiff).
   Opinion

PER CURIAM.

The named defendant, Stanley M. Krupa, appeals from the judgment of strict foreclosure of a mortgage rendered in favor of the substitute plaintiff, Citizens Bank of Connecticut (Citizens). On appeal, the defendant claims that the trial court improperly (1) found the amount of the debt due and (2) found that the debt due had been properly accelerated. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. The plaintiff, Farmers and Mechanics Bank, commenced this foreclosure action by a complaint alleging that it had loaned the defendant $300,000, which was memorialized by a promissory note dated May 11, 1989, and secured by a mortgage deed encumbering property known as 14 Iron Gate Lane in Cromwell. As a result of the defendant’s failure to pay on the note, the plaintiff accelerated payment of the debt. At the commencement of trial, the parties stipulated to the entry, as full exhibits, of the mortgage note and deed, affidavit of appraisal, appraisal report and demand letter dated December 15, 1995. The sole issue before the trial court was the calculation of debt. At the completion of the trial, the trial court found the total value of the property to be $215,000, and the total debt to be $348,933.19. The trial court rendered a judgment of strict foreclosure and set law days.

Citizens’ primary witness as to the debt was Susan Wasowicz, its operations manager and treasurer, who was in charge of overseeing employees who entered and maintained accounts on the computer system and were responsible for the system’s proper functioning. The trial court determined that Wasowicz’s “duties, experience and personal knowledge of the plaintiff’s computer system fully qualify her as to the amount of debt and the accuracy of the plaintiffs records.”

The basis of the defendant’s claims is that the trial court improperly allowed and accepted the testimony of Wasowicz. “In assessing the credentials of a witness whose testimony is the foundation for the admission of computer generated business records, our Supreme Court has held that ‘[w]hat is crucial is not the witness’ job description but rather his knowledgeability about the basic elements that afford reliability to computer printouts.’ [American Oil Co. v. Valenti, 179 Conn. 349, 360, 426 A.2d 305 (1979)].” SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn. App. 563, 576-77, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998). “Trial courts must have considerable latitude in determining the admissibility of evidence in this area as in others.” American Oil Co. v. Valenti, supra, 360. Computer printouts and adjustment sheets may be properly admitted as evidence of the principal due on a note. Webster Bank v. Flanagan, 51 Conn. App. 733, 743-48, 725 A.2d 975 (1999); SKW Real Estate Ltd. Partnership v. Gallicchio, supra, 577. It is not necessary for the witness through whom business records are entered into evidence to have personal knowledge of the transaction. SKW Real Estale Ltd. Partnership v. Gallicchio, supra, 576. We conclude that the trial court properly admitted the witness’ testimony, as she was competent to testify as to the debt and the accuracy of the plaintiffs records.

The defendant claims that the trial court improperly determined that the debt due the plaintiff had been properly accelerated because there was insufficient evidence as to the validity of the interest rates.

“When a variable interest rate is based on the rate of a failed institution, the trial court must determine whether the substitute rate is reasonable by examining the documents and testimony offered by the plaintiff.” Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575, 578, 662 A.2d 157 (1995). There is no distinction between the predecessor and successor mortgagee after a merger or name change. SKW Real Estate Ltd. Partnership v. Gallicchio, supra, 49 Conn. App. 579.

Wasowicz testified that she was a loan supervisor with the plaintiff and that her duties as a loan supervisor continued after the plaintiff merged with Citizens. Through that testimony, the trial court received evidence, which it obviously accepted, as to the accuracy of the plaintiffs “index” figure, used annually to recalculate the interest rate of the loan. The accuracy of the rate changes on variable rate notes was placed into evidence through the testimony of the witness, based on her own observations, and the results of audits conducted by the plaintiffs in-house audit, and those of the state banking commission and the Federal Deposit Insurance Corporation.

The defendant, through an extensive cross-examination of the witness, sought to discredit her testimony on this point; he never elicited any fact concerning whether the rate changes were inaccurate. “[I]t is axiomatic that this court cannot retry the facts or pass on the credibility of witnesses.” Peters v. Pearl, 37 Conn. App. 153, 156, 655 A.2d 262, cert. denied, 233 Conn. 908, 658 A.2d 980 (1995). The evidence presented through the testimony of Wasowicz, who had personally calculated the debt and the interest rate, was sufficient to establish the variable rate and the reasonableness of the rate used.

Furthermore, when asked on direct examination by Citizens’ counsel, the defendant admitted that he had not made any payments on the note since November, 1995, and that he had not made any payments on the note even after receiving the letter of demand from the plaintiff. The trial court reasonably could have found that the defendant was in default on the promissory note.

We conclude, on the basis of the record before us, that the trial court had before it sufficient evidence to find that the plaintiff properly accelerated the loan due, a condition precedent to the foreclosure, and to determine the debt and the value of the property. We, therefore, conclude that the trial court properly rendered a judgment of strict foreclosure for the Citizens.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

       The defendant mortgagors were Stanley M. Krupa and Patricia A. Krupa. The sole defendant on appeal is Stanley M. Krupa, who appeared pro se. We refer in this opinion to Stanley M. Krupa as the defendant.

       The plaintiff mortgagee is now the Citizens Bank of Connecticut by virtue of a certificate of change of name dated November 6, 1996, and by being substituted as party plaintiff by amended complaint dated March 24, 1997.

       The defendant argues that 1he evidence was insufficient to show the validity of the interest rate and, therefore, the trial court reasonably could not have found that a default existed, allowing acceleration. Specifically, his claim is that improper calculation of the interest rate could have resulted in his paying in excess of that which he was required to pay. There is, however, no evidence indicating that the defendant ever paid more than was required under the terms of the adjustable rate note.


text:
    BERTHA KANE v. AMERICAN INSURANCE COMPANY
    (AC 18210)
    Foti, Schaller and Sullivan, Js.
    Submitted on briefs January 28
    officially released March 30, 1999

      Kevin P. Thornton filed a brief for the appellant (plaintiff).

      Royce L. Vehslage and Jack V. Genovese II filed a brief for the appellee (defendant).
   Opinion

FOTI, J.

At the joint request of the parties, the trial court granted a motion for reservation, pursuant to Practice Book § 73-1, to have this court resolve a question concerning the legal effect of General Statutes § 38a-341 (2).

The following facts are relevant to the resolution of this appeal. The plaintiff, Bertha Kane, sustained serious injuries in an accident on October 13, 1995. Kane alleges that the accident was caused by a hit-and-run vehicle, although the defendant, American Insurance Company, contends that the accident arose from a slip and fall.

Kane had been insured by the defendant, which had issued to her a series of six month insurance policies. Sometime within forty-five days of July 8, 1995, the expiration date of one of those policies, the defendant sent a letter to Kane, along with personal automobile policy summary and declaration sheets and a policy premium billing statement. Kane did not pay the premium by the July 8, 1995 due date, or at any time thereafter. Subsequently, the defendant sent Kane, by regular mail, a final lapse notice on or about July 24, 1995. At no time did the defendant mail Kane a cancellation notice pursuant to General Statutes (Rev. to 1995) § 38a-343.

Kane alleges that pursuant to General Statutes § § 38a-340 and 38a-341 (2), the mailing of the automobile renewal policy by the defendant constituted the issu-anee of a six month renewal policy requiring the defendant to issue a cancellation notice in accordance with the requirements of § 38a-343. The defendant contends that the mailing of the automobile renewal policy did not constitute the issuance of a new six month policy. Instead, the defendant argues that this “packet of documentation” amounted to an offer by the defendant to Kane for automobile insurance. The defendant argues, therefore, that this is simply a case of the nonrenewal of an insurance policy that had expired and, consequently, the cancellation provisions of § 38a-343 do not apply.

The parties agree that, should this court decide that the defendant was required to send Kane a notice of cancellation in accordance with § 38a-343 before terminating her policy, then the policy would have been in effect on October 13, 1995, the date of Kane’s accident. The parties further agree that should this court decide that a policy was in effect at the time of Kane’s accident, they will submit this case to arbitration on the issue of the mechanism of the accident and the extent of Kane’s injuries. The parties maintain, therefore, that the determination of the legal effect of § 38a-341 (2) by this court would be in the interest of judicial economy and would simplify the proceedings.

The question reserved to this court is: “Did §§ 38a-340 and 38a-341 (2) require the defendant, American Insurance Company, to issue a cancellation notice in accordance with the provisions of § 38a-343 before terminating the plaintiff, Bertha Kane’s, automobile insurance coverage?” Our answer to the reserved question is No.

“General Statutes §§ 38a-341 through 38a-344 govern the procedures for the cancellation of an automobile insurance policy by an insurer. Under § 38a-342, an insurer can choose to cancel a policy due to the insured’s failure to pay the premium, or because of the revocation of the insured’s driver’s license or motor vehicle registration or that belonging to any operator living with the insured. Section 38a-343 (a) provides that ‘[n]o notice of cancellation of policy to which section 38a-342 applies may be effective unless sent, by registered or certified mail or by mail evidenced by a certificate of mailing, or delivered by the insurer to the named insured at least forty-five days before the effective date of cancellation, provided where cancellation is for nonpayment of premium at least ten days’ notice of cancellation accompanied by the reason therefor shall be given.’ ” Majernicek v. Hartford Casualty Ins. Co., 240 Conn. 86, 92-93, 688 A.2d 1330 (1997). Prior to determining whether a written notice of cancellation was required pursuant to § 38a-343, we must determine whether, under the facts as stipulated and the exhibits as furnished, there was a renewal of the contract of insurance.

A policy of insurance is a contract between the parties; a renewal of the original policy is a separate and distinct contract providing coverage for a specific term or period. See Stenson v. Northland Ins. Co., 42 Conn. App. 177, 185, 678 A.2d 1000 (1996). In this case, the contract between the parties, i.e., the underlying policy of insurance, expired on July 8,1995. Prior to that expiration date, the defendant sent Kane a letter, along with a personal automobile policy summary, declaration sheets and a policy premium billing statement. We have examined those exhibits and conclude that, absent an automatic renewal clause in the contract of insurance, what Kane received from the defendant was an offer to renew the contract of insurance, which was to be automatically terminated on July 8, 1995, unless Kane paid the required premium.

The premium statement, in a separate paragraph and in capital letters, set forth the following: “IMPORTANT NOTICE: THE MINIMUM PREMIUM SHOWN MUST BE RECEIVED IN OUR OFFICE BY THE DUE DATE. IF YOUR PREMIUM IS NOT RECEIVED BY THAT DATE, COVERAGE UNDER YOUR POLICY SHALL AUTOMATICALLY TERMINATE ON THE RENEWAL DATE WITHOUT FURTHER NOTICE.” This offer to enter into a renewal of the contract of insurance was not accepted by Kane, acceptance being conditioned on payment of the premium on or before July 8, 1995. Thereafter, the defendant informed Kane by a final lapse notice, again in capital letters: “IMPORTANT NOTICE: AS STATED IN YOUR PREVIOUS BILLING NOTICE, COVERAGE UNDER YOUR POLICY TERMINATED ON THE RENEWAL DATE FOR NONPAYMENT OF PREMIUM. IF PAYMENT IS RECEIVED IN OUR OFFICE BY THE DATE SHOWN, YOUR COVERAGE WILL BE REINSTATED.” The due date for the premium payment that would have reinstated Kane’s policy was July 24, 1995.

The purpose of § 38a-343 “is to assure that before an automobile insurance policy is cancelled the insured has a clear and unambiguous notice of the cancellation.” Johnston v. American Employers Ins. Co., 25 Conn. App. 95, 97-98, 592 A.2d 975 (1991). Kane relies on Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 472 A.2d 356 (1984), to argue that under this set of facts, the correspondence that she received from the defendant operated as a renewal of her insurance policy that could not be canceled without following the applicable cancellation requirements of § 38a-343. Under the particular facts in Travelers Ins. Co. v. Hendrickson, supra, 410, however, a partial payment was accepted by the insurer and credited toward the total premium due. There, the court indicated that “the [insurer] sent a premium notice to the [insured] which indicated that the [insured’s partial] payment would be applied as a credit to the total premium due. This notice was of special importance because it could have reasonably led the [insured] to believe that the policy was in effect as of that date.” Id., 413.

In the present case, no such situation exists. Kane never sent the defendant a payment, partial or otherwise. Therefore, since Kane’s contract of insurance terminated on July 8, 1995, and since she did not accept the defendant’s offer of renewal by paying the premium, the defendant was not required to cancel the policy. In other words, because no renewal was in effect, no written notice of cancellation was required.

To the reserved question—“Did §§ 38a-340 and 38a-341 (2) require the defendant, American Insurance Company, to issue a cancellation notice in accordance with the provisions of § 38a-343 before terminating the plaintiff, Bertha Kane’s, automobile insurance coverage?”— our answer is No.

In this opinion the other judges concurred.

No costs will be taxed to either party.

       Practice Book § 73-1 provides in relevant part: “(a) Any reservation shall be taken ... to the appellate court from those cases in which an appeal could have been taken directly ... to the appellate court . . . had judgment been rendered ....
      “(b) All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
      * sfc *
      “(e) The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. . . .”

       General Statutes § 38a-341 provides in relevant part: “Cancellation of motor vehicle liability policy: Definitions. As used in sections 38a-341 to 38a-346, inclusive ... (2) ‘Renewal’ or ‘to renew’ means the issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of the policy beyond its policy period or term. Any policy with a policy period or term of less than six months shall, for the purpose of sections 38a-341 to 38a-346, inclusive, be considered as if written for a policy period or term of six months and any policy written for a term longer than one year or any policy with no fixed expiration date, shall for the purpose of said sections, be considered as if written for successive policy periods or terms of one year. Such a policy may be terminated at the expiration of any annual period upon giving thirty days’ notice of cancellation prior to the anniversary date, and such cancellation shall not be subject to any other provisions of said sections . . . .”

       These facts axe taken exclusively from the plaintiffs brief. The defendant, in its brief, did not “dispute or add to the statement of facts submitted by the plaintiff.”

       General Statutes (Rev. to 1995) § 38a-343 (a) provides: “No notice of cancellation of policy to which section 38a-342 applies may be effective unless sent, by registered or certified mail or by mail evidenced by a certificate of mailing, or delivered by the insurer to the named insured at least forty-five days before the effective date of cancellation, provided where cancellation is for nonpayment of premium at least ten days’ notice of cancellation accompanied by the reason therefor shall be given. No notice of cancellation of a policy which has been in effect for less than sixty days may be effective unless mailed or delivered by the insurer at least forty-five days before the effective date of cancellation, provided that at least ten days’ notice shall be given where cancellation is for nonpayment of premium or material misrepresentation. The notice of cancellation shall state or be accompanied by a statement specifying the reason for such cancellation.”