author: Heiman, J.

text:
    State of Connecticut v. Mircela Nita
    (9820)
    Landau, Heiman and Cretella, Js.

      Argued January 8
    decision released March 17, 1992

      D. Kirk Westfall, special public defender, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Newman, supervisory assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of interfering with an officer in violation of General Statutes § 53a-167a and breach of the peace in violation of General Statutes § 53a-181 (a) (6). The defendant was found not guilty of assault of a peace officer in violation of General Statutes § 53a-167c. She claims that the trial court improperly (1) refused to instruct the jury, as requested, on her first amendment right to free speech, (2) failed to instruct the jury that intent is an element of interfering with an officer, (3) imposed multiple punishments for her convictions of both interfering with an officer and breach of the peace and (4) denied her motion for a bill of particulars. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. July 2, 1989, was one of the busiest days of the summer at Hammonasset Beach state park, and the park roads had heavy motor vehicle, bicycle and pedestrian traffic. In an attempt to slow some of the park traffic, officers of the department of environmental protection conducted a radar operation on one of the park’s roads. An officer operated a radar unit from a patrol vehicle on the median divider, and radioed descriptions of the vehicles to be stopped for exceeding the twenty mile per hour speed limit to officers stationed about one quarter of a mile ahead.

At about 5:30 p.m., the defendant was a passenger in a yellow sports car driven by her former husband, Constantin Nita. After the radar operator clocked the vehicle at forty miles per hour, he radioed its speed and description to the officers ahead. After receiving the call, Officer Kristen Morehouse stepped into the roadway and directed the car to pull onto the shoulder of the road. Morehouse then approached the vehicle and asked Constantin Nita for his driver’s license, registration and insurance card.

Constantin Nita exited his car and retrieved his license from the back of it. When Officer Sean Dautrich saw Constantin Nita exit the vehicle, he moved to assist Morehouse. The defendant, holding the vehicle’s registration certificate, exited the passenger side of the car and walked around to the driver’s side, which was adjacent to the roadway. When Dautrich requested that she give him the certificate of registration, she refused to do so, and instead told the officers that they were not real police officers and that stopping the vehicle was ridiculous because other cars traveling faster were not stopped. When Morehouse explained that a radar unit set up down the road had indicated that the car had exceeded the speed limit, the defendant angrily declared that she would not show the registration to Dautrich unless she was shown proof of the radar reading. Dautrich then requested that the defendant get back into the car for her own safety and that of the officers. Dautrich also told her that there was no reason for her to be outside the car because the stop involved only the vehicle’s driver.

The defendant refused to get into the car and began shouting at the officers. She then obtained a pen from the vehicle’s interior and demanded the officers’ names and badge numbers, ostensibly for the purpose of filing a complaint against them. The defendant positioned her face inches from Dautrich’s while jumping up and down and screaming at him. Next, she held the pen in a knife grip and jabbed it at him, forcing him to retreat into the path of moving traffic. The defendant screamed profanities at the officers throughout the altercation. After observing the defendant force Dautrich into the road, Officer Brian Heavren proceeded into the road’s right lane and directed traffic into the left lane. At Heavren’s request, Officer Christopher Brindisi positioned himself about 100 yards from the altercation and blocked the right lane of traffic in an attempt to protect his fellow officers.

Dautrich and Morehouse attempted to place the defendant under arrest. She continued to scream obscenities at them, kicked at them in an attempt to prevent them from restraining her, kicked Dautrich in the groin, attempted to bite Officer Christopher McWil-liams, another officer assisting in the arrest, and refused to enter the officers’ cruiser. Eventually, the officers handcuffed her, picked her up and placed her in the cruiser. The incident, from the initial stop to the defendant’s arrest, lasted somewhere between ten and fifteen minutes, and attracted a crowd consisting of between twenty and fifty persons.

The defendant was sentenced, after a jury trial, to one year incarceration, execution suspended after thirty days, for interfering with an officer and received a $250 fine for breach of peace.

I

The defendant first asserts that the trial court improperly refused to charge the jury, as requested, regarding the extent to which the first amendment to the United States constitution prohibited the state from convicting her of the offenses charged. We disagree.

We first examine the extent to which the first amendment restricts the scope of the interfering with an officer statute. On its face, the statute proscribes obstructing, resisting, hindering or endangering any peace officer in the performance of his duties. General Statutes § 53a-167a. Intent to cause the prohibited result is an essential element of the offense. State v. Peruta, 24 Conn. App. 598, 603, 591 A.2d 140, cert.denied, 219 Conn. 912, 593 A.2d 137 (1991); State v. Flynn, 14 Conn. App. 10, 18, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). While the statute prohibits some acts of verbal resistance as well as physical resistance, “[t]he statute’s requirement of intent limits its application to verbal conduct intended to interfere with a police officer and excludes situations in which a defendant merely questions a police officer’s authority or protests his or her action.” State v. Williams, 205 Conn. 456, 471-72, 534 A.2d 230 (1987).

The defendant does not dispute the sufficiency of the state’s evidence to convict her of interfering with an officer. Rather, she claims that the trial court’s failure to instruct the jury regarding the extent to which the first amendment protects her activities created a reasonable possibility that the jury convicted her on the basis of protected speech. “A theory of defense instruction is appropriate, upon proper request; State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985); only when evidence supporting a ‘legally recognized defense’ is placed before the jury. State v. Cassino, 188 Conn. 237, 243, 449 A.2d 154 (1982); State v. Rosado, [178 Conn. 704, 707, 425 A.2d 108 (1979)]; see State v. Harris, 189 Conn. 268, 274, 455 A.2d 342 (1983).” State v. Silveira, 198 Conn. 454, 462, 503 A.2d 599 (1986). “A general ‘claim of innocence or a denial of participation in the crime charged is not a legally recognized defense and does not entitle a defendant to a theory of defense charge.’ [State v. Rosado, supra.]” State v. Silveira, supra. While couched in the language of the first amendment, the requests to charge constituted nothing more than a proposed instruction that the defendant did not possess the requisite intent if she merely questioned the officer’s authority or protested his action. See State v. Williams, supra. Because the first amendment defense represented an intrinsically factual claim that she did not commit an element of the offense, the trial court was not required to deliver a separate jury instruction on it. See State v. Silveira, supra.

The defendant also claims that the trial court improperly refused to instruct the jury, as requested, regarding the extent to which the first amendment prohibited the state from convicting her of breach of the peace. A request to charge must be adapted to the evidence in the case or to the issues before the jury. State v. Maturo, 188 Conn. 591, 600, 452 A.2d 642 (1982); State v. Timmons, 7 Conn. App. 457, 467, 509 A.2d 64 (1986) appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987). A trial court properly may refuse to deliver a requested instruction that raises an issue not supported by the pleadings or the evidence, particularly where such a charge might influence the jury unfairly. See State v. Timmons, supra.

The defendant claims that she was entitled to the requested instruction because the first amendment prohibited her conviction of breach of peace on the basis of merely expressive activity. This instruction was unnecessary because the relevant statutory language, the charging documents and the trial court’s instructions stated that the defendant was charged with breach of peace based on her conduct, not her speech. General Statutes § 53a-181 (a) (6), the statutory subdivision that the defendant was charged with violating, proscribes certain acts that create a “public, hazardous or physically offensive condition.” Compare General Statutes § 53a-181 (a) (5) (explicitly prohibiting speech). The long form information substantially mirrors the statutory language, and accuses the defendant of violating the statute by performing an “act” that forced peace officers into a lane of traffic and required other officers to stop traffic. Finally, the trial court’s instructions on breach of the peace repeatedly referred to prohibited acts and conduct, not speech. Thus, the charging documents and the trial court’s instructions uniformly stated that the defendant was charged with breach of the peace based on her conduct, not her speech. The fact that she may have uttered protected speech during the course of prohibited conduct is irrelevant. As a result, the defendant’s requested instruction on the first amendment was not adapted to the evidence or the issues before the jury. The mere invocation of the first amendment, unsupported by a factual predicate, does not entitle a defendant to a jury instruction on the scope of protected speech. The trial court properly refused to deliver this instruction.

II

The defendant next asserts that the trial court failed to instruct the jury that intent is an essential element of interfering with an officer. We disagree.

The trial court read the interfering with an officer statute to the jurors. It then instructed them as follows: “There are two essential elements to the crime of interfering with an officer. First, that the defendant obstructed, resisted, hindered or endangered a peace officer; and, secondly, that the conduct of the defendant occurred while the peace officer was in the performance of her duty .... Now, from the evidence you have heard, you should consider whether the defendant obstructed, hindered or endangered a peace officer; and in addition, you must consider whether this defendant intended to interfere with the performance of the officer’s duty. Accidental or inadvertent interference is not enough . . . . ” In its instructions pertaining to the assault of a peace officer charge, the trial court read the statutory definition of “intentionally”; see General Statutes § 53a-3 (11); to the jurors and told them “I believe intent may be referred to in the other two charges, and I will tell you to keep that in mind.” Although the defendant acknowledges that the trial court instructed the jury that it could not find the defendant guilty unless she possessed the requisite intent, she claims that the trial court’s failure to state specifically that intent was an essential element of the crime constituted reversible error.

Although it does not appear in statutory language, intent is an element of the crime of interfering with an officer. State v. Peruta, supra; State v. Flynn, supra. “It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). “When reviewing a claim of error involving jury instructions that implicates a defendant’s constitutional right, ‘ “[t]he applicable test requires the state to prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled.” ’ State v. Townsend, 206 Conn. 621, 626, 539 A.2d 114 (1988), quoting State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985).” State v. Wilson, 17 Conn. App. 104, 106, 550 A.2d 643, cert. denied, 210 Conn. 803, 553 A.2d 616 (1988).

We rejected an identical claim—that the trial court must state specifically that intent is one of the three elements of interfering with an officer—in State v. Wilson, supra. While it would have been preferable to list intent as one of the three elements of interfering with an officer, we conclude, as we did in State v. Wilson, supra, 108, that the state has proven beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled to believe that intent was not an element of the crime. See State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982).

Ill

The defendant asserts that her sentence for interfering with an officer and fíne for breach of the peace violated the constitutional prohibition against double jeopardy. We disagree.

“ ‘The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905,110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Anderson, 212 Conn. 31, 35, 561 A.2d 897 (1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).’ State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 (1990).” State v. Fernandez, 27 Conn. App. 73, 94-95, 604 A.2d 1308 (1992).

In deciding whether the crimes arose out the same act or transaction, we analyze the language of the information. State v. Flynn, supra, 16. The information accused the defendant of interfering with an officer “in violation of 53a-167a and charge[d] that at the Town of Madison, on or about the 2nd of July, 1989, the said Mircela Nita interfered with Officer Kristy Morehouse and Officer Sean Dautrich in that she resisted, hindered and endangered both peace officers and that her conduct occurred while both officers were acting in the performance of their duties, in violation of the statute.” The information further accused the defendant of breach of the peace “in violation of 53a-181 (a) (6) and charge[d] that at the Town of Madison on or about July 2, 1990, at approximately 6:00 p.m., the said Mircela Nita with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, she created a public, hazardous, and physically offensive condition by an act which she was not licensed or privileged to do while on the outbound lane of traffic on Beach Road at Hammonasset Beach State Park, in Madison. That as a result of her behavior, Peace Officers Brian Heavren and Chris Brindisi had to stop traffic as other officers were being forced into a lane of traffic as a result of the confrontation with, and the behavior of Mircela Nita in violation of the statute.” Although the information states that the two charges were based on acts performed on or about July 2, 1990, in Madison, it does not state whether both acts occurred in Hammonasset Beach state park at approximately 6 p.m. The information is also unclear as to whether the alleged acts were directed against different peace officers. Indeed, both charges could fairly be construed to rest on an accusation that the defendant forced More-house and Dautrich into the road, requiring that Heavren and Brindisi stop traffic. Because the information charges the defendant with violating the two statutes by performing acts in the same town on the same day, but fails to state the nature of the alleged acts with sufficient particularity to determine whether they are in fact the same act or transaction, we construe the ambiguity in favor of the defendant and conclude that the charges arise out of the same act or transaction for double jeopardy purposes. See State v. Goldson, 178 Conn. 422, 425, 423 A.2d 114 (1979); State v. Flynn, supra, 17.

Our next inquiry is whether the two offenses are the same for double jeopardy purposes. “ ‘ “The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).” State v. Chicano, 216 Conn. 699, 706-707, 584 A.2d 425 (1990). Under the Block-burger test, “a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.” State v. Vass, 191 Conn. 604, 615, 469 A.2d 767 (1983); see State v. Greco, [supra, 291]. We determine whether each crime contains an element not found in the other by examining only the relevant statute, the information and the bill of particulars, and not the evidence presented at trial. State v. Greco, supra.’ State v. Tweedy, 219 Conn. 489, 495, 594 A.2d 906 (1991); see also State v. Mezrioui, 26 Conn. App. 395, 403, 602 A.2d 29 (1992).” State v. Fernandez, supra, 95.

The crimes of interfering with an officer and breach of peace, as charged, each contain an element that the other does not. In order to convict the defendant of interfering with an officer, the state was required to prove that she hindered Morehouse and Dautrich in the performance of their duties. It was not required to prove that she created a public condition. In order to prove the defendant guilty of breach of peace as charged, the state was required to show that she created a public and physically offensive condition, but was not required to show that she hindered officers Dautrich and Morehouse in the performance of their duties. As a result, the charges are not the same for double jeopardy purposes. See id.

“Our analysis does not end here, however. The Block-burger test is a rule of statutory construction rather than a conclusive presumption. State v. Russell, 25 Conn. App. 243, 251, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991). As such, a presumption under Blockburger that there are two crimes which may warrant two punishments may be rebutted by showing a clear legislative intent that the two statutes be treated as one for double jeopardy purposes. State v. Russell, supra; see State v. Gilchrist, 24 Conn. App. 624, 628, 591 A.2d 131 (1991). The language, structure and legislative history of a statute can provide evidence of this intent. State v. Greco, supra, 293.” (Internal quotation marks omitted.) State v. Fernandez, supra. The defendant has provided us with no analysis of the legislature’s intent and has failed to rebut the Blockburger presumption. ■

The defendant’s punishments for interfering with an officer and breach of peace did not violate the constitutional prohibition on multiple punishments for the same offense.

IV

The defendant next claims that the trial court’s denial of her motion for a bill of particulars, coupled with the lack of specificity contained in the state’s information, deprived her of her right to reasonable notice of the charges against her in violation of the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. She posits that defense counsel was unable to prepare a defense adequately and to avoid prejudicial surprise. She also claims that because of the information’s lack of specificity, she is unable to plead her convictions in bar to a subsequent prosecution based on the same offense. We disagree.

“ ‘The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature and cause of the charges against [her] with sufficient precision to enable [her] to meet them at trial.’ State v. Laracuente, 205 Conn. 515, 518, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). ‘ “When the state’s pleadings have ‘informed the defendant of the charge against [her] with sufficient precision to enable [her] to prepare [her] defense and to avoid prejudicial surprise, and were definite enough to enable [her] to plead [her] acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.’ State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979).” State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984).’ State v. Morrill, 197 Conn. 507, 551, 498 A.2d 76 (1985); State v. Killenger, 193 Conn. 48, 55, 475 A.2d 276 (1984) . . . .” State v. Spigarolo, 210 Conn. 359, 381-82, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). The constitutional mandate is fulfilled where the state has set forth the statutory designation of the crime, leaving to the defendant the burden of moving for a bill of particulars where she wishes greater detail regarding the manner in which she committed it. State v. Vincent, supra; State v. Spigarolo, supra, 382; see Practice Book §§ 618 and 830 through 833.

The trial court has broad discretion in ruling on a motion for a bill of particulars. State v. Flanders, 214 Conn. 493, 503, 572 A.2d 983, cert. denied, U.S. , 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990). Its ruling will be overturned “ ‘only upon a clear showing of prejudice to the defendant. State v. Brown, 173 Conn. 254, 257, 377 A.2d 268 (1977).’ State v. Frazier, [194 Conn. 233, 236, 478 A.2d 1013 (1984)]. ‘To establish prejudice, the defendant must show that the information was necessary to [her] defense, and not merely that the preparation of [her] defense was made more burdensome or difficult by the failure to provide the information.’ A. Spinella, Connecticut Criminal Procedure, p. 438; State v. Stepney, 191 Conn. 233, 242, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).” State v. Spigarolo, supra, 385. The defendant bears the burden of establishing why additional particulars were necessary to the proper preparation of her defense. State v. DiBella, 157 Conn. 330, 339, 254 A.2d 477 (1968); State v. Curtis, 146 Conn. 365, 367, 151 A.2d 336 (1959).

The defendant has failed to persuade us that she was prejudiced by the trial court’s denial of her motion for a bill of particulars as to the interfering with an officer charge. The information stated that the acts that formed the bases for both the assault of a peace officer and breach of the peace charges occurred at approximately 6 p.m. in Madison. It further specified that the breach of the peace occurred on Beach Road in Ham-monasset Beach state park. The information further stated that both the assault of a peace officer and the interfering with an officer charges were based on acts directed against Dautrich. The information, read as a whole, clearly notified the defendant of the alleged incident that formed the basis of the interfering with an officer charge. See State v. Spigarolo, supra, 384. The fact that the information specified neither the precise act that formed the basis for liability nor whether the charge was based on prearrest or postarrest conduct does not constitute an ambiguity of such magnitude as to deprive her of the constitutionally required notice. See id., 383-84.

Further, the defendant’s defense to all of the charges was that she did no more than peaceably request Dautrich’s name and badge number. Thus, the issue at trial was the witness’ credibility. The defendant cannot show that she clearly was prejudiced by the trial court’s denial of her motion for a bill of particulars. See State v. Flanders, supra; State v. DiBella, supra; State v. Curtis, supra, 368.

The defendant’s claim that the information failed to provide her with the constitutionally required notice regarding the alleged act that formed the basis of the breach of the peace charge is wholly without merit. The information explicitly stated the date, time and place, including the street in Hammonasset Beach state park, on which the alleged act occurred. It further stated that she forced peace officers into the road, requiring Heavren and Brindisi to stop traffic. Further detail was not necessary for the preparation or presentation of her defense. See State v. Flanders, supra; State v. Step-ney, supra.

The defendant finally claims that she was prejudiced by the trial court’s denial of her motion for a bill of particulars because the ambiguity contained in the information renders her incapable of pleading her convictions in bar to any further prosecutions. See Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990); Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Lonergan, supra. In addition to prohibiting the imposition of multiple punishments for the same offense, the double jeopardy clause prohibits successive prosecutions for the same offense after either an acquittal or a conviction. North-Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Lonergan, supra, 79. In successive prosecution cases, the double jeopardy clause protects the defendant’s interest in not having to “run the gauntlet” twice. State v. Lonergan, supra, 91. In determining whether a successive prosecution is barred, “‘the general test . . . is therefore a more flexible and pragmatic one, which focuses not on the formal elements of the two offenses but rather on the proof actually utilized to establish them.’ United States v. Ragins, [840 F.2d 1184, 1188 (4th Cir. 1988)].” Id.

This claim is premature, as the state has not instituted any further proceedings against the defendant based on the conduct at issue in the first prosecution. Indeed, it is impossible for us to determine whether “the same evidence offered to prove a violation of the offense charged in the first prosecution is the sole evidence offered to prove an element of the offense charged in the second prosecution”; State v. Lonergan, 16 Conn. App. 358, 368, 548 A.2d 718, aff’d, State v. Lonergan, supra, 213 Conn. 74; unless we are able to analyze the charges involved in the second prosecution. This is a matter properly decided, if at all, on another day.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-167a provides in pertinent part: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer ... in the performance of his duties.”

       General Statutes § 53a-181 provides in pertinent part: “(a) A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . (6) creates a public, hazardous or physically offensive condition by any act which he is not licensed or privileged to do.”

       The defendant filed a request to charge asking the trial court to instruct the jury as follows with respect to the breach of peace charge: “[Wjords, however inflammatory they may be, cannot be punished unless, by their very utterance they inflict injury or tend to incite an immediate breach of peace by others. In order to convict the defendant you must find sufficient evidence to prove beyond a reasonable doubt that Ms. Nita’s language was sufficiently inflammatory to arouse retaliatory violence by a police officer. However, policemen are held to a higher standard of behavior than ordinary citizens. They are under a duty to remain calm and controlled under circumstances that might provoke violent reactions in others. Where such words simply question a police officer’s conduct, or seek to ascertain officer’s names and/or badge numbers, they are protected under our First Amendment constitutional guarantee of free speech. In this respect, Ms. Nita’s conduct would have been privileged, or licensed, if her intent was solely to ascertain the officer’s names and/or badge numbers.”
      The defendant further requested the trial court to instruct the jury: “Ms. Nita claims that she was arrested and assaulted by Mr. Dautrich and Ms. Morehouse when she questioned the officers about their names and badge numbers, and that Dautrich’s actions were taken in retaliation for her exercising her right to free speech, as guaranteed by the First Amendment to the United States Constitution. It is not a crime for a citizen to question the authority of a police officer. Every citizen has a right to criticize public officials, and police officers are public officials.”
      The defendant also requested the trial court to instruct the jury concerning the charge of interfering with an officer: “Mere disagreeable conduct, disagreement or arguing with, or yelling at police officers, is not interfering with an officer. The mere fact that the police officers may have been annoyed by that conduct or disagreement, moreover, still is not sufficient to justify a conviction of the defendant for interfering with the officers.”

       See footnote 1, supra.

       General Statutes § 53a-3 (11) provides: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .”

       In her statement of issues, the defendant claims that the trial court’s actions also constituted a violation of rights guaranteed to her by article first, §§ 4 and 8, of the Connecticut constitution. The defendant does not brief her state constitutional claim. Accordingly, this claim is abandoned, and we will not review it. See State v. Anthony, 24 Conn. App. 195, 210, 588 A.2d 214, cert. dismissed, 218 Conn. 911, 591 A.2d 813, cert. denied, U.S. , 112 S. Ct. 312, 116 L. Ed. 2d 254 (1991).

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . .” The defendant has failed to provide any independent analysis of her claim under the Connecticut constitution. Thus, we will treat this claim under only the federal constitution analysis. State v. Pinnock, 220 Conn. 765, 776 n.3, 601 A.2d 521 (1991); State v. McMurray, 217 Conn. 243, 248 n.6, 585 A.2d 677 (1991).


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    K. A. Thompson Electric Company, Inc. v. Wesco, Inc.
    (9927)
    Foti, Landau and Cretella, Js.

      Argued January 9
    decision released March 17, 1992

      Kerry M. Wisser, with whom was Jennifer Jaff, for the appellant (plaintiff).

      Duncan Ross MacKay, with whom was Rhonda J. Tobin, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment rendered by the trial court for the defendant on the plaintiffs complaint for breach of contract. The plaintiff claims that the trial court improperly (1) found a condition precedent to the contract, (2) found that the defendant had made reasonable efforts to secure required approval, (3) found the contract not binding, and (4) failed to apply General Statutes §§ 42a-2-315 and 42a-2-712. We affirm the judgment.

The plaintiff, a subcontractor, commenced this action for breach of contract, alleging that the defendant supplier had failed to submit shop drawings and to deliver pumps acceptable to engineers of a project in accordance with the provisions of a contract between the parties. The defendant filed a counterclaim seeking to recover the price of certain equipment sold to the plaintiff. The plaintiff and the defendant claimed setoffs in the complaint and counterclaim, respectively.

The court found the following facts. In 1986, the plaintiff, an electrical contracting company, submitted a bid to the general contractor, Associated Construction Company (Associated), to supply pumps and the pumping control system for a water pollution abatement project in New Haven. Associated’s specifications for the four raw wastewater pumps, § 16910, subsections 2.01 and 2.02, required 400 horsepower motors, having adjustable speed power drives with current source converters and power factor correction capacitors. In August, 1986, the defendant circulated its quote for the adjustable speed drives and process control panels to the plaintiff and other electrical contractors bidding on the project. The quote stated that the drives were controlled by its Accutron 300 controllers, which were specified as being adjustable voltage, rather than current source converters, and did not have power correction capacitors.

After obtaining quotes from other suppliers, including some in the range of $300,000 to $400,000, the plaintiff used the defendant’s quote in making its bid to Associated. Associated used the bid in its quote and was awarded a contract. Thereafter, the plaintiff and Associated entered into a contract in March, 1987. On May 13,1987, the defendant made a firm quote to the plaintiff for four 400 horsepower drives and one process control panel, “per 16910, §§ 2.01 and 2.02,” for $196,500, but in the technical comments of the quote noted that it was “quoting adjustable voltage controller in lieu of current controller. Power correction capacitors are not required in voltage controller design.”

The plaintiffs president, Keith Thompson, met several times with the defendant’s representatives and was assured that the defendant’s pumps would meet the intent and the performance requirements of the specifications of the project. Relying on these representations, the plaintiff submitted a purchase order for the pumps and control panel to the defendant at the price quoted. Thereafter, the defendant signed a purchase order on its own form to the same effect. Both orders provided that the defendant agreed to be bound by all of the terms and conditions imposed on the plaintiff by the project specifications. Both orders also included the following language, which was drafted by the plaintiff: “This order is contingent upon the [defendant’s] providing all shop drawings and other engineering details required by said Section [16910] and their acceptance by the architects, engineers, planners and construction supervisors on the above job, CE Maguire, Inc., One Court Street, New Britain, CT.”

Over the next several months, the defendant submitted a series of shop drawings of the equipment referred to in the purchase order, all of which were rejected by CE Maguire, Inc. Conferences were held in an attempt to convince CE Maguire that the defendant’s Accutron 300 with adjustable voltage controller and without power capacitors could perform as well as or better than the pumps required by the project specifications. The defendant never provided backup technical information and empirical data to substantiate its claim that the voltage source drives would comply with the efficiency standards required in the specifications. The efficiency rating of the drives was crucial; if the drives used excess electricity, the utility company supplying the electricity to operate the pollution abatement machinery would assess the city of New Haven an additional charge and penalties.

After the final rejection, Associated demanded that the plaintiff supply the equipment required by the specifications or Associated would hold the plaintiff in breach of contract. Under that threat, the plaintiff contracted with another manufacturer to supply the proper equipment for $304,475. The plaintiff then brought this breach of contract action against the defendant, seeking damages of $107,975, the difference between the subsequent contract price of $304,475 and the defendant's quoted price of $196,500.

In rendering judgment for the defendant, the court found that the contract between the parties was contingent on the performance of a condition precedent that required approval of the proposed equipment by the project engineers, and that because that condition precedent was not fulfilled, the contract never became binding on the parties. The court further found that the defendant had made reasonable efforts to fulfill the condition precedent.

The plaintiff first claims that the terms of the contract did not constitute a condition precedent, but rather defined the terms and standard for performance. “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. . . . A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence. Whether a provision in a contract is a condition the non-fulfillment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract.” (Citations omitted.) Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951). In searching for the intent of the parties as expressed in a contract, the court must consider all relevant provisions of the contract together; Bialowans v. Minor, 209 Conn. 212, 217, 550 A.2d 637 (1988); the contract should be read in light of the circumstances surrounding the execution of the instrument. Christophersen v. Blount, 216 Conn. 509, 512, 582 A.2d 460 (1990). A contract is to be given effect according to its terms where the language is clear and unambiguous. F & W Welding Service, Inc. v. ADL Contracting Corporation, 217 Conn. 507, 517, 587 A.2d 92 (1991).

The trial court found a condition precedent from the language of the contract itself, the circumstances surrounding the execution of the contract, as well as the intent of the parties. The court gave particular emphasis to the words “This order is contingent upon” to conclude as it did. The court further examined the circumstances surrounding the purchase order. The court specifically found that the “ [defendant had clearly stated in its first communication in August 1986, referring specifically to Section 16910 . . . that its Accu-tron 300 was an adjustable voltage controller and did not have the power correction capacitors. In these two particulars, the Accutron 300 deviated from the specifications. Both the plaintiff and the defendant knew this. The plaintiff did not want to be bound to purchase defendant’s drives unless they were acceptable to the project engineer. Similarly, the defendant knew it had no sale of its drives if they were not so acceptable. Thus, the contingency clause served the interests and expressed the intent of both parties: if the drives were not approved by the project engineers, there was no purchase order and neither party was bound.” It was also clear to both parties that the defendant would be providing an alternative to the specifications, and the contingency clause allowed for the risk to be shared by both parties.

The court recognized that it was the plaintiff who had drafted the contingency clause, and had accepted the defendant’s quote because it was almost half the amount of the other bids. Further, the plaintiff knew that it was an alternate design proposal and that at least one other bid would meet the specifications exactly.

The trial court reasonably concluded that this clause was an unfulfilled condition precedent, which made the contract not binding on either party. The court based its conclusion on the terms of the contract, the factual determination as to the intent of the parties and the surrounding circumstances. We find no legal basis for disturbing the court’s conclusion, which is based on a mixed question of fact and law. A factual finding, or one of mixed fact and law, may be rejected by this court only if it is clearly erroneous. Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153-54, 527 A.2d 679 (1987). In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. Season-All Industries, Inc. s. R. J. Grosso, Inc., 213 Conn. 486, 498, 569 A.2d 32 (1990). We must defer to the trial court’s factfinding, and such a determination will not be disturbed on appeal if there is sufficient evidence to support the finding. Campisano v. Nardi, 212 Conn. 282, 286, 562 A.2d 1 (1989).

The plaintiff next challenges the court’s finding that the defendant had made a reasonable effort to secure approval, a requirement implied by the contingency clause. The plaintiff argues that the applicable standard should be a good faith standard rather than the reasonable efforts standard employed by the court, and that neither standard is factually supported by the evidence. We do not agree.

The difference between the good faith and reasonable efforts standards is the difference between a subjective and an objective standard. Good faith is a subjective standard involving a determination of the intent or state of mind of the party concerned, taking into account the actual knowledge of the person as well as that person’s motives. Funding Consultants, Inc. v. Aetna Casualty & Surety Co., 187 Conn. 637, 642-44, 447 A.2d 1163 (1982). “Reasonableness, on the other hand, is an objective standard, involving an analysis of what a person with ordinary prudence would do given the circumstances, without accounting for any particular knowledge or skill.” Phillipe v. Thomas, 3 Conn. App. 471, 475, 489 A.2d 1056 (1985).

The test in contracts, as in tort cases, is external not subjective; it asks how a person of ordinary prudence in such a situation would have behaved, not how the defendant in fact did behave. Murphy v. Soracco, 174 Conn. 165, 168, 383 A.2d 1350 (1978). Whether the plaintiff’s actions constituted reasonable efforts to satisfy the contractual condition is a factual determination for the trial court. Lach v. Cahill, supra, 422.

We agree that the contingency clause implied that the defendant would make reasonable efforts to secure the approval of the project engineers. See Webb v. Moeller, 87 Conn. 138, 141, 87 A. 277 (1913). We conclude that there was sufficient evidence presented that could form a factual determination of the reasonableness of the defendant’s efforts.

The plaintiff next alleges that the trial court improperly held that the defendant’s failure to obtain acceptance by the project engineers made the contract not binding on either party. The plaintiff claims that the condition on performance was not a condition precedent and that the good faith rejection of the plans as submitted does not make the contract not binding. As noted, we do not agree.

As previously discussed, because approval was a condition precedent to the contract, the failure to approve prevented the contract from coming into existence, and made the terms of that document nonbinding on either party. The rejection, whether it be a good faith failure to approve or otherwise, relieves the parties of their contractual obligations.

Finally, the plaintiff alleges that the court improperly refused to apply the Uniform Commercial Code, specifically §§ 42a-2-315 and 42a-2-712. In order for these sections of the Uniform Commercial Code to be applicable, there must first be an enforceable contract. Because the condition precedent to the contract was not fulfilled, no contract existed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also rendered judgment for the defendant on its counterclaim awarding it $49,066.01. The appeal is taken from the judgment rendered for the defendant on the plaintiff’s claim.

       In this case, whether the contract contained an unfulfilled precedent, based on the terms of the agreement and the parties’ intent, was a mixed question of fact and law. In D’Addario v. D’Addario, 26 Conn. App. 795, 603 A.2d 1199 (1992), whether a deed contained a condition precedent was a question of law.


author: E. Y. O’Connell, J.

text:
    State of Connecticut v. Raynor Hunter
    (10001)
    O’Connell, Lavery and Novack, Js.
    Argued September 25, 1991
    decision released March 17, 1992

      Christopher G. James, assistant public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, with whom, on the brief, were John T. Red-way, state’s attorney, and Bernadette Conway, assistant state’s attorney, for the appellee (state).
   E. Y. O’Connell, J.

The defendant appeals from the judgment of conviction of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). Following the denial of his motion to suppress evidence, the defendant entered a conditional plea of nolo contendere pursuant to General Statutes § 54-94a.

The defendant claims* ** that (1) the trial court improperly denied his motion to suppress because the police informant lacked a sufficient basis of knowledge to establish probable cause to arrest him, (2) the facts fail to provide sufficient indicia of the informant’s veracity to support the trial court’s finding of probable cause, and (3) the trial court’s findings improperly included certain factual and material conclusions that were inconsistent with the evidence. We affirm the judgment of the trial court.

The trial court relied on the following facts. On January 24, 1990, Officer James Klick of the Middletown police department was a member of the uniform patrol division. During his seventeen and one-half years as a police officer, Klick had been involved in dozens of narcotics investigations. On January 24, 1990, his assignment was a walking patrol in the north end of Middletown. While in uniform, patrolling this area, he was approached by an unnamed informant 6who told him that the defendant was dealing drugs on the corner of Main and Ferry Streets. The informant also told Klick that (1) she had seen the defendant dealing drugs earlier that day, (2) she had seen two people supply the defendant with cocaine in the past, (3) the defendant could be seen that day at the corner of Main and Ferry Streets talking to various individuals after which he would move out of sight, (4) on that day, she had seen the two persons who had supplied the defendant with drugs at one of three apartments on the third level of the Green Court Apartments, and (5) she was relating this information to Klick because she was “sick and tired of what was going on in the North End.”

Prior to the informant’s approaching him, Klick was aware of the defendant’s reputation as a street level drug dealer. In an effort to confirm the informant’s information, Klick commenced surveillance of the defendant for one to one and one-half hours during each of his 4 p.m. to 12 midnight shifts on January 24 and 25. During the period of this surveillance, at least ten persons approached the defendant at the comer of Main and Ferry Streets. Those who approached the defendant conversed with him briefly and would then enter a building or an alleyway with him, or, in some instances, go with him as far as a block away and around the comer. This conduct corroborated the information furnished by the informant and, on the basis of Klick’s training and experience, he recognized it as the way street drug transactions are made.

On January 26,1990, Klick was again approached by the same informant who stated that the defendant was, at that moment, selling drugs on the corner of Main and Ferry Streets. The informant further stated that, when the defendant ran out of drugs, he would go to one of the three apartments on the third level of the Green Court Apartments to resupply. The informant told Klick that she knew the defendant would go to that apartment because she had been present there on an earlier occasion when two persons supplied the defendant with drugs to sell on the street. Klick knew that these two individuals were currently tinder surveillance by police officers from the street crime unit because they were believed to be supplying drugs to the defendant and other dealers.

Klick, accompanied by a fellow officer, commenced surveillance of the Green Court Apartments. At 11 p.m., the officers observed the defendant walk to the third level of Green Court and enter through the third door. Approximately five minutes later, they saw the defendant leave the building and walk up Ferry Street toward Main Street. The officers intercepted the defendant and instructed him to remain where they could see him and to put his hands against a nearby van. The defendant complied and was searched. From the defendant’s left front pocket, the officers seized six packets of a white substance, later determined by toxicological analysis to contain cocaine.

The defendant filed a motion to suppress, in which he claimed that the search and seizure of his person violated his rights under the fourth, fifth and fourteenth amendments to the United States constitution and article first, §§ 7, 8 and 9, of our state constitution. At the suppression hearing, the court ruled that Kick had probable cause to arrest the defendant and to conduct a search incident thereto. The defendant entered a plea of nolo contendere, conditioned on his right to take an appeal.

We begin our analysis by noting that after the trial court’s suppression hearing and before the argument on this appeal our Supreme Court decided State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991), which adopted the reasoning of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Barton expressly overruled State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), effectively easing the probable cause requirements. Barton has been applied retroactively to cases pending at the time it was decided. See State v. Johnson, 219 Conn. 557, 594 A.2d 933 (1991).

Prior to Barton, the Connecticut Supreme Court held to the rigid Aguilar-Spinelli test that the sufficiency of an informant’s information depended on the state’s establishing (1) the informant’s “basis of knowledge” about the information he furnished and (2) the underlying facts establishing his veracity. State v. Kimbro, supra, 224-25. In adopting the Gates “totality of the circumstances” analysis for determining the existence of probable cause, our Supreme Court now allows the court to look beyond the two prongs of the Aguilar-Spinelli test and to examine the “totality of circumstances” involved. State v. Barton, supra, 544.

In addressing the defendant’s claim that there was insufficient evidence to support the trial court’s finding that Klick had probable cause to make a warrant-less arrest and to conduct a search incident thereto, we first note that “[i]t is an established rule that a properly conducted warrantless search incident to lawful arrest is not illegal. ... In order for the search to be legal, however, the arrest itself must be valid.” (Citations omitted.) State v. Velez, 215 Conn. 667, 672, 577 A.2d 1043 (1990). General Statutes § 54-If (b) permits a police officer to make a warrantless arrest of “ ‘ “any person who such officer has reasonable grounds to believe has committed or is committing a felony.” “Reasonable grounds” is to be equated with probable cause. . . . Probable cause means more than mere suspicion. There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed.’ ...” (Citations omitted.) Id.

Whether the arrest or the search came first is not relevant because “[a] formal arrest need not always chronologically precede the search in order for the search to be valid. Where there is probable cause to arrest, a search before an arrest is reasonable under the fourth amendment as long as the arrest and search and seizure are substantially contemporaneous, and are integral parts of the same incident. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); State v. Federici, 179 Conn. 46, 54-55, 425 A.2d 916 (1979).” State v. Kaplan, 20 Conn. App. 183, 188, 565 A.2d 11 (1989).

The informant was not previously known to Klick. If Klick, without more, had gone forth and arrested the defendant, he would have been acting without probable cause. The defendant relies on the following quotation from State v. Kimbro, supra, 233. “In this case, given the complete lack of any independent police investigation or information tending to corroborate the informant’s information, we conclude that the trial court’s finding that probable cause was not demonstrated is supported in this record.” That quotation is wholly inapplicable to the present case. Here, there was substantial independent police investigation which corroborated a large portion of the informant’s tip. Corroboration of an informant’s tip by independent police information has long been considered critical in determining probable cause. McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967); Draper v. United States, 357 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959).

Gates and Barton do not abandon the “basis of knowledge” and “veracity” or “reliability” tests and still consider them highly relevant and “ ‘closely intertwined issues that may usefully illuminate the common sense, practical question’ of the existence of probable cause to believe that contraband or evidence is located in a particular place.” State v. Barton, supra, 537, quoting Illinois v. Gates, supra, 230.

The state argues that even under the stringent Aguilar-Spinelli test, Klick had probable cause to make a warrantless arrest of the defendant. We do not reach that argument, however, because, under the totality of the circumstances, including the substantial independent police corroboration, Klick had probable cause to believe that the defendant had committed or was at that moment committing a felony. See General Statutes § 54-If (b). The defendant’s arrest was valid and, thus, he was lawfully searched incident to that arrest.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in pertinent part: “Any person who . . . possesses with the intent to sell or dispense ... to another person any controlled substance which is a hallucinogenic substance other then marihuana . . . for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       The transcript indicates a plea of guilty and not a plea of nolo contendere. It is clear from the context that a nolo contendere plea was intended. It was treated as such by the trial court and the parties and we will do likewise.

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . . .”

       Because the defendant’s brief was filed before our Supreme Court decided State v. Barton, 219 Conn. 529, 594 A. 2d 917 (1991), he has framed his issues in accordance with the probable cause analysis adopted in State v. Kimbro, 197 Conn. 219, 496 A. 2d 498 (1985).

       Because the informant’s gender was not revealed at trial, the pronoun she will be used throughout this opinion so as to avoid repeated use of the term he/she.
      Klick’s testimony revealed that he used the term “anonymous source” only to indicate that he would not provide the court with the informant’s identity. Further, Klick’s testimony revealed that he had never used this informant on any prior occasions, nor did he have knowledge of any other officer using the individual as an informant. Klick also did not know if this informant had a criminal record.

       See footnote 3, supra.

        Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).


author: HEIMAN, J.

text:
    Lawrence Donahue v. State of Connecticut
    (10283)
    Landau, Heiman and Freedman, Js.
    Argued January 14
    decision released March 24, 1992

      Arnold J. Bai, with whom was Andrew S. Turret, for the appellant (defendant).

      Frank J. Forgione, with whom, on the brief, was Robert T. Harrington, for the appellee (plaintiff).
   HEIMAN, J.

The defendant appeals from the trial court’s judgment setting aside a verdict awarding the plaintiff $866 in damages. The trial court, after concluding that the award was inadequate, ordered that the verdict be set aside and a new trial conducted on the issue of damages unless the defendant filed an additur of $10,634. See General Statutes § 52-228b. After the time limited by the court for filing the additur expired, the plaintiff successfully moved to set the verdict aside and for a new trial limited to the issue of damages. This appeal followed.

The defendant claims that the trial court improperly set the verdict aside and ordered a new trial. It further claims that even if the trial court properly set the verdict aside, it improperly limited the retrial to the issue of damages. Because we conclude that the trial court improperly set the verdict aside, we need not address whether it properly limited the scope of the retrial.

In reviewing the trial court’s action in setting a verdict aside, we examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion. Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980). At trial, the plaintiff offered evidence to support the following. At approximately 9 a.m. on February 23, 1987, the plaintiff, Lawrence Donahue, was driving north on Main Street in Glastonbury, near the intersection with South Mill Drive. Snow was falling and Main Street, although plowed, was slushy. Marvin Brion, an employee of the defendant state of Connecticut, was driving south on Main Street near the same intersection in a vehicle owned by the defendant. As the cars neared one another, the defendant’s vehicle spun across the center line of the highway and collided with the left side of the plaintiff’s vehicle. After the plaintiff’s vehicle came to rest in a snowbank, the plaintiff emerged and directed traffic until Officer Wayne Martin of the Glastonbury police department arrived at the scene. After Martin arrived, the plaintiff returned to his car and pulled a fender, which had been bent as a result of the accident, from one of the car’s tires. After Martin finished his investigation of the accident, the plaintiff drove his car to work.

After working only a portion of the day, the plaintiff began to experience pain and numbness and returned home. Later that evening, the plaintiff’s wife drove him to the emergency room at Yale-New Haven Hospital. At the emergency room, the plaintiff complained of numbness in the fourth and fifth fingers of his left hand and pain in his neck and left shoulder. He described the pain as similar to pain that he developed after falling from an eighteen foot platform in 1969. An X-ray of the cervical spine revealed degenerative changes but no fracture. After receiving a cervical collar and pain medication, the plaintiff was discharged from the emergency room. He returned to the emergency room on March 6, 1987, for additional X-rays. About a month after the accident, the plaintiff consulted Hubert Bradburn, an orthopedic surgeon, who diagnosed his condition as a sprain-type injury to the cervical spine.

The plaintiff further claimed that the medical bills generated by the treatment he received for the injuries he sustained in the automobile accident approximated $1700. As a result of the accident, he suffered a 5 percent partial permanent disability of the cervical spine and continued to suffer pain in his neck, back and left arm. The plaintiff offered no evidence of lost wages.

The defendant produced evidence that the plaintiff’s 1969 fall had occurred as he was standing on an eighteen foot high platform cutting overhead power lines. As the plaintiff attempted to loosen a turnbuckle, he was knocked off the platform and fell to the ground, breaking his lower back and his right wrist and chipping his left elbow. As a result of the fall, he suffered a 15 percent permanent disability to his back. Although Bradburn treated the plaintiff for the injuries he sustained in 1969, Bradburn had no records of the treatment as of the trial date and testified from memory. At the time of the trial of this case, the plaintiff continued to suffer back pain from the 1969 accident.

The defendant also produced evidence that the symptoms that the plaintiff complained about after the 1987 accident were consistent with osteoarthritis, a degenerative joint disease commonly associated with the aging process. X-rays taken after the automobile accident indicated that the plaintiff suffered from preexisting osteoarthritis.

At the trial’s conclusion, the jury returned a verdict awarding the plaintiff $866. On April 17, 1991, the plaintiff filed a motion for additur asking the trial court to increase the damages award “to a sum deemed by the court to be fair, just and reasonable in light of all of the evidence presented at trial.” It also filed a motion requesting the trial court to set the verdict aside and to order a retrial limited to the issue of damages. The defendant objected to both motions. On May 13,1991, the trial court filed its memorandum of decision, stating that the amount of the verdict “shocks the conscience of the court and leads the court to the conclusion that the jury failed to follow its instructions as to the elements of damage which they were to consider. Moreover, the verdict rendered appears to be the result of bias and prejudice and is manifestly inadequate.” The trial court then ordered an additur of $10,634, which, if accepted, would have raised the amount of the award to $11,500. It further ordered that if the defendant did not file the additur within two weeks, a new trial limited to the issue of damages would be conducted. When the defendant failed to file an additur within the two week period, the trial court granted the plaintiff’s motion to set the verdict aside and ordered the case returned to the jury trial list.

“A court should be especially hesitant to set aside a jury’s award of damages.” Shaham v. Capparelli, 23 Conn. App. 468, 478, 581 A.2d 1065 (1990). The trial court’s decision to set a verdict aside, however, involves the exercise of a broad legal discretion. O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981). The trial judge “had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidenee.” Palomba v. Gray, 208 Conn. 21, 24-25, 543 A.2d 1331 (1988). The trial judge also had the opportunity to “gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . .” Id., 25. As a result, we afford the trial court’s ruling in setting aside the verdict great deference and indulge every reasonable presumption in favor of its correctness. Id., 24. We will disturb the trial court’s decision only if we conclude that the trial court abused its broad discretion. Labatt v. Grunewald, 182 Conn. 236, 240, 438 A.2d 85 (1980).

We are also mindful of the unavoidable tension between our deferential standard of appellate review and the litigants’ constitutional rights to have issues of fact resolved by a jury. See Palomba v. Gray, supra, 25; Geryk v. Atlantic Richfield Co., 19 Conn. App. 585, 586, 563 A.2d 324, cert. denied, 212 Conn. 820, 565 A.2d 539 (1989). “The right to a jury trial is fundamental in our judicial system, and . . . the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded [persons] passed upon by the jury and not by the court.” Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970).

Because by setting the verdict aside the trial court infringed on the parties’ rights to have factual issues resolved by a jury, we examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion. Jacobs v. Goodspeed, supra; see also Palomba v. Gray, supra. “In reviewing the evidence ... we must give it the most favorable construction in support of the verdict of which it is reasonably capable.” Healy v. White, 173 Conn. 438, 442, 378 A.2d 540 (1977). Where, as here, the sufficiency of the damages award is at issue, we seek to determine whether the award fell within the “necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). If the verdict “so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption,” we must affirm the trial court’s ruling setting the verdict aside. Id. Here, because the jury’s award fell squarely within the “necessarily uncertain limits of fair and reasonable compensation”; id.; the trial court should not have set the verdict aside.

The evidence regarding the damages attributable to the car accident was dubious. Bradburn testified that the plaintiff suffered a sprain-type injury that resulted in a 5 percent permanent partial disability to the cervical spine. He also testified, however, that the plaintiff suffered a fall in 1969 that resulted in a broken back, a broken right wrist, a chipped left elbow and a 15 percent permanent disability of the back. He produced no records to substantiate either the 1969 injuries or his treatment of them. He also testified that X-rays taken after the automobile accident revealed osteoarthritis in the plaintiff’s neck which could produce symptoms similar to those about which the plaintiff complained after the car accident. The plaintiff himself testified that he still suffered pain as a result of the fall. He further testified that he returned to work two days after the car accident, and except for two visits to the hospital emergency room, he did not consult a physician until about one month after the car accident.

The amount of damages that a plaintiff is entitled to receive is based on his ability to establish a causal relationship between his injuries and the physical condition that he claims resulted from the accident. Bud- ney v. Zalot, 168 Conn. 388, 362 A.2d 861 (1975). This connection must rest on more than surmise and conjecture. Id. Further, the jury is the arbiter of the credibility of witnesses. Dulski v. Appel, 172 Conn. 187, 191, 374 A.2d 177 (1976). It is not obliged to accept the opinions of expert witnesses and may reject those opinions on the ground that they were based on subordinate facts that were not proven. Vetre v. Keene, 181 Conn. 136, 140, 434 A.2d 327 (1980). Here, the jury could reasonably have concluded that the plaintiff had not proven that his injuries and corresponding medical treatment were not attributable in part to the 1969 fall and the preexisting osteoarthritis, and apportioned its damages award accordingly.

Our review of the evidence convinces us that the trial court’s interference with the parties’ constitutional rights to have the issues of fact resolved by the jury was unjustified; see Jacobs v. Goodspeed, supra; and that the trial court abused its discretion in setting the verdict aside.

The judgment is reversed and the case is remanded with direction to render judgment on the verdict.

In this opinion the other judges concurred.

       General Statutes § 52-228b provides in pertinent part: “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 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.”


author: Foti, J. Geen, J.,

text:
    Judith A. Cato v. Herbert J. Cato, Jr.
    (10156)
    Nokcott, Foti and Geen, Js.

      Argued November 6, 1991
    decision released March 24, 1992

      William H. Meanix, Jr., for the appellant (defendant).

      JohnK. Currie, with whom, on the brief, was Courtney B. Bourns, for the appellee (plaintiff).
   Foti, J.

The defendant appeals from the judgment dissolving the parties’ marriage. He claims that the trial court improperly determined that the process and service of process were sufficient, and that the court had personal jurisdiction over him. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. The parties were married in Amsterdam, New York, on November 12, 1965. In 1970, they purchased a home in Bloomfield and were domiciled there until their separation in March, 1989. After the separation, the defendant resided in Texas where he was personally served with divorce papers in-hand by a sheriff of that state on January 3, 1990. The defendant continued to own property in Connecticut. He appeared specially to contest personal jurisdiction, and, on January 22, 1991, the court, Barall, J., denied his motions to dismiss. Thereafter the court, Steinberg, J., rendered judgment dissolving the parties’ marriage and ordered the defendant to pay periodic alimony to the plaintiff in the amount of $630 per week. The court also ordered that the defendant maintain $250,000 in life insurance coverage and name the plaintiff as an irrevocable beneficiary, convey his interest in the marital home to the plaintiff, and pay certain counsel fees.

The defendant claims that the court lacked jurisdiction over the complaint as well as personal jurisdiction over the defendant. We do not agree. Mere notice of an action is not sufficient to confer personal jurisdiction over a nonresident defendant. Robertson v. Robertson, 164 Conn. 140, 144, 318 A.2d 106 (1972). “Such jurisdiction over a nonresident requires statutory authorization.” Goldstein v. Fischer, 200 Conn. 197, 201, 510 A.2d 184 (1986). Such personal jurisdiction may be allowed pursuant to General Statutes § 46b-46 (b), the domestic relations long-arm statute. Jones v. Jones, 199 Conn. 287, 290-91, 507 A.2d 188 (1986).

The defendant correctly asserts that a statutory basis for jurisdiction is mandatory, and that the concept of due process cannot take the place of statutory compliance. We do not agree with the defendant’s claim, however, that, under the circumstances of this case, General Statutes § 46b-46 (a) mandates service of process only by an order of notice and does not permit in-hand service outside of Connecticut on the defendant who is subject to personal jurisdiction under § 46b-46 (b).* * The defendant concedes that he knew of the existence of the complaint; he does not claim that he did not have the opportunity to defend. We conclude that General Statutes § 52-57a allows for in-hand service outside of Connecticut on a resident of another state if all of the other requirements of § 46b-46 (b) have been satisfied.

Section 46b-46 (b) allows a court to “exercise personal jurisdiction over the nonresident party as [to] matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section . . . .” (Emphasis added). 6Subsection (a) confers jurisdiction on a court to entertain complaints for dissolution when the defendant is a nonresident or his whereabouts are unknown. Jones v. Jones, supra, 290-91. It also describes methods to be followed to give a “nonresident party actual notice of the pending proceedings, and authorizes the court to hear the complaint either if the nonresident party has received such notice or if a reasonable effort to afford him notice has been made.” Id.

Our Supreme Court in Jones addressed the applicability of § 46b-46 to postjudgment modification proceedings in Connecticut dealing with a Connecticut divorce judgment. The court stated that the enactment of a domestic relations long-arm statute respecting family matters demonstrates an intent by our legislature to “exercise its full constitutional power, limited only by the constraints of due process, over nonresidents being sued for nonsupport of their children”; id., 292; as well as those being sued for alimony.

We cannot agree with the defendant that § 46b-46 (b) should be construed narrowly. Statutes that provide for parental support and maintenance of minor children are to be construed broadly. Id., 291.

“The purpose of an order of notice is, of course, to give notice to the party being sued. It is not a mere perfunctory act in order to satisfy the technicalities of a statute, but has, as its basis, constitutional dimensions. ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pen-dency of the action and afford them an opportunity to present their objections.’ Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950).” Bank Mart v. Langley, 39 Conn. Sup. 198, 199-200, 474 A.2d 491 (1984).

It would be both illogical and unreasonable to construe our domestic relations long-arm statute in such a narrow manner as to ignore its very purpose. The defendant agrees that § 46b-46 is permissive and not mandatory but argues that our legislature intended that actual notice by service in-hand should be unacceptable unless a condition precedent occurs, that is, the obtaining of permission of the court by an order of notice. We recognize that in-hand service on a defendant is always the best and highest type of service and should be used, if possible. Smith v. Smith, 150 Conn. 15, 22-23, 183 A.2d 848 (1962). “The concept of jurisdiction over the person encompasses two separate ideas: a basis for jurisdiction, and, more importantly, fair notice to the defendant.” Anderson v. Schibi, 33 Conn. Sup. 562, 565, 364 A.2d 853 (1976); D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 172, 455 A.2d 833 (1983). The defendant neither challenges the fact that there was a basis for the trial court’s jurisdiction over him under the long-arm statute, nor claims that the actual method used here for giving notice, in-hand service, did not satisfy the constitutional requirement of due process. The process in this matter was correctly served in a prescribed manner, giving the court personal jurisdiction over the defendant, a nonresident, in an action brought under the long-arm statute § 46b-46 (b). The court properly found jurisdiction.

The judgment is affirmed.

In this opinion Norcott, J., concurred.

Geen, J.,

dissenting. The defendant appeals on two grounds from the judgment in this case, which ordered alimony, attorney’s fees, and the disposition of real estate and other personal property. The first ground is insufficiency of process; the second is lack of personal jurisdiction.

The parties jointly own a house and resided there for nineteen years as husband and wife until April, 1989. In 1988, the defendant obtained new employment in Texas. The defendant considered Connecticut his residence and domicile until he determined that his wife no longer wanted to live with him. Between 1988 and April, 1989, he lived alone in Texas making trips back home. In April, 1989, after his trip home in March, he changed his residence to Bay City, Texas.

Around Labor Day, 1989, he came back to Connecticut to see if his wife would change her mind and go to Texas with him. As a result of that final refusal, in October, 1989, the defendant instituted a divorce action in Texas in which the plaintiff did not appear.

On December 11, 1989, the plaintiff filed a complaint, returnable January 16, 1990, to the Superior Court in the Judicial District of Hartford-New Britain at Hartford. The summons gave the defendant’s address as 1208 Avenue G, Bay City, Texas. The plaintiff’s attorney sent the summons and complaint to the sheriff of Matagorda County, Texas. The return states that on January 3, 1990, at 7 p.m., the deputy sheriff delivered to the defendant in person “a true copy of this notice with a true and correct copy of the show cause order attached thereto.” It must be noted that no show cause order could be attached to the complaint as none had been sought in the Connecticut court. It is impossible to know, on the basis of the foregoing quote from the sheriffs return, what was served on this defendant. Obviously, the service is insufficient on its face.

The defendant, on January 2, 1991, filed two motions claiming that the plaintiff failed to follow General Statutes § 46b-46 (a) and (b). Counsel for the defendant filed a limited appearance for the purpose of contesting only in personam jurisdiction and lack of sufficient service.

The court, Bar all, J., denied the motions holding (1) that the parties had separated in March, 1989, and that the Connecticut long-arm statute was applicable because in March, 1989, the parties had been domiciled in Connecticut, (2) that § 46b-46 (a) is permissive, and (3) that the defendant had actual notice of the pendency of the action.

Dissolution actions involve legal and equitable relief. The process by which persons are brought to court and the decision the court makes affect the basic structure of society, the family.

Our civil process statutes are intended to provide fairness. General Statutes § 52-57 (a) provides that individuals shall be served by leaving a true and attested copy of the complaint with the defendant or at his usual place of abode in this state.

Section 52-57a allows service on a person domiciled or subject to the jurisdiction of the courts of this state outside this state by a person authorized to make service and in the manner prescribed by the law within that particular jurisdiction.

In this particular action, the Texas return fails to describe what was served on this defendant other than a show cause order that does not exist. We can not assume what was delivered.

The court found that both parties were domiciled in Connecticut in March, 1989. The trial court also found as a fact that the defendant established residence in Texas in April, 1989. Accordingly, the marriage being a Connecticut based marriage with the plaintiff still resident and domiciled here, subject matter jurisdiction is not an issue. Personal jurisdiction over the defendant, however, is an issue.

The trial court’s decision does not state where the defendant was domiciled in January, 1990. Because, as the trial court found, the defendant had become a Texas resident in April, 1989, Connecticut did not have jurisdiction over him as a resident in January, 1990. Nor did the court find that the defendant had resumed his residence in Connecticut. We are therefore compelled to conclude that his domicile was in Texas in January, 1990. Because the defendant was a nonresident domiciled in a foreign jurisdiction, General Statutes § 52-57a clearly cannot be applied to him.

Because dissolution proceedings involve the breakup of a family, child custody, visitation, child support, alimony, and the division of assets and liabilities, they are not usual civil cases. Historically, only the legislature had the power to grant a divorce. The proceeding is purely statutory. The Superior Court is authorized by statute to grant both legal and equitable relief that did not exist at common law. Steele v. Steele, 35 Conn. 48, 53-54 (1868). Thus, all of Chapter 815J must be carefully studied and followed.

Too little attention is paid to civil procedure. Emphasis is placed on the substantive law. Procedure, however, provides the frame work in which substantive law is conducted, giving it needed resiliency but protecting it from falling into disarray from the tugs and pulls of competing interests. In other words, the playing field must be level and the rules of practice and procedure observed where they affect the most basic principle of civilization, the family.

In Cikora v. Cikora, 133 Conn. 456, 460, 52 A.2d 310 (1947), the Supreme Court noted that, provided due process of law is observed, each state has the power to alter the marriage status of its domiciliaries. See Williams v. North Carolina, 325 U.S. 226, 229, 65 S. Ct. 1092, 89 L. Ed. 1577 (1944). In Cikora, the court approved service on the nondomiciled defendant spouse by an order of notice requiring notice by publication in a newspaper.

As held in Carter v. Carter, 147 Conn. 238, 241, 159 A.2d 173 (1960), an order directing payment of alimony or support by a defendant in a divorce action is a judgment in personam. Without personal service, there is no jurisdiction over the person unless he appears voluntarily. That court went on to say, “ [constructive service of process on a nonresident defendant is not sufficient to furnish a basis for a judgment in personam, even though it may be shown that the defendant had actual notice of the pending action.” The court held that as to real property Connecticut has in rem jurisdiction, but that the attachment of real property requires that the defendant be afforded a reasonable opportunity to be heard before any order based on the attachment is made. Id., 242.

There was no order of notice pursuant to General Statutes § 52-278a et seq. in this case. In fact, on January 2, 1991, prior to the hearing on the defendant’s motions to dismiss, the court issued a restraining order directing this nonresident defendant, who had not appeared in the action, not to dispose of any account proceeds in Connecticut banks. Notice of that order was served on certain specific banks.

Of interest is that the plaintiff in her December 21, 1990 motion for the above restraining order refers to the Texas divorce proceeding in which the defendant acknowledged that the Texas court had no personal jurisdiction over this Connecticut plaintiff.

Yet, the trial court here in Connecticut went ahead and exercised in personam jurisdiction as to this nonresident, nondomiciliary defendant placing a prior restraint on the alienation in Connecticut of his personal assets without notice or a chance to be heard, which would have been required in any prejudgment remedy application.

This is contrary to the determination in Williams v. North Carolina, supra, Pinsky v. Duncan, 898 F.2d 852, modified, 907 F.2d 17 (2d Cir. 1990), aff’d sub nom. Connecticut v. Doehr, 501 U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), Carter v. Carter, supra, and Cikora v. Cikora, supra.

The plaintiff asserts that General Statutes § 46b-46 is permissive, not mandatory. For that proposition she cites Smith v. Smith, 150 Conn. 15, 183 A.2d 848 (1962). That case held that the defendant was a resident of this state at the time of the institution of the divorce action. Therefore, no order of notice under General Statutes (Rev. to 1958) § 46-17 (predecessor of § 46b-46) was required. As stated in that case, “this is true even though the defendant, at the moment of service, may be temporarily outside the state.” Smith v. Smith, supra, 21.

This court agrees that § 46b-46 (a) gives the court discretion in ordering an order of notice. That is to provide latitude and flexibility to a judge to fit the order to the particular case or to decide that one may not be needed at all. For example, a defendant may be a resident who has been sent to California by his employer for three weeks to complete a particular function for the employer. No order of notice would be required. Furthermore, an employer may send a defendant to Germany for a year to start up a plant and the defendant would be considered a resident domiciled in Connecticut. There, however, an order of notice would be required to ensure that the defendant has notice of the action. Many other situations can be envisioned concerning actual nonresidents, not only of this state (as in this case) but of the United States.

Should such decisions be left to attorneys and pro se litigants (who are becoming ever more numerous in family cases), or is it not more in keeping with fairness and justice for the Superior Court to keep control of such matters. It is that court to which the legislature delegated those powers, not to the general public.

As to § 46b-46 (b), it is clear that without an appropriate order of notice under paragraph (a), no personal jurisdiction may be had over the nonresident defendant in matters of support and alimony. That paragraph is mandatory, not permissive.

In this particular case, the principles discussed in Goldstein v. Fischer, 200 Conn. 197, 510 A.2d 184 (1986), and Jones v. Jones, 199 Conn. 287, 507 A.2d 188 (1986), cited in the majority opinion, entirely support the reasoning of this dissent.

For all the foregoing reasons, I would find both an insufficiency of process and lack of in personam jurisdiction of the defendant. The plaintiff should be required to begin anew.

       The defendant filed two motions entitled “Motion to Dismiss for Insufficiency of Process and Insufficiency of Service of Process,” and “Motion to Dismiss for Lack of Personal Jurisdiction over Defendant.”

       General Statutes § 46b-46 (a) provides: “On a complaint for dissolution, annulment or legal separation, if the defendant resides out of or is absent from the state or the whereabouts of the defendant is unknown to the plaintiff, any judge or clerk of the supreme court or of the superior court may make such order of notice as he deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending. If it does not appear that the defendant has had such notice, the court may hear the case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with.”

       General Statutes § 46b-46 (b) provides: “The court may exercise personal jurisdiction over the nonresident party as matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony or support of children meets the residency requirement of section 46b-44; and (3) this state was the domicile of both parties immediately prior to or at the time of their separation.”

       General Statutes § 52-57a provides: “A person domiciled in or subject to the jurisdiction of the courts of this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.”

       The defendant does not challenge the satisfaction of the other two conditions: (1) that the plaintiff met the residency requirements of § 46b-44, and (2) that Connecticut was the domicile of both parties immediately prior to or at the time of their separation.

       While a long-arm statute may allow Connecticut courts to assert personal jurisdiction over a nonresident, such assertion of jurisdiction must still comply with federal constitutional requirements of due process. Gaudio v. Gaudio, 23 Conn. App. 287, 298, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). All assertions of state court jurisdiction must be evaluated according to a minimum contacts test. Standard, Tallow Corporation v. Jowdy, 190 Conn. 48, 51, 459 A.2d 503 (1983). The defendant does not contest this requirement nor does he claim that his due process rights have been violated.

       General Statutes § 52-57a provides: “service of process without STATE UPON PERSONS DOMICILED OR SUBJECT TO JURISDICTION OF COURTS IN state. A person domiciled in or subject to the jurisdiction of the courts of this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.”