author: LAVINE, J.

text:
    REID AND RIEGE, P.C. v. BARRY L. BULAKITES
    (AC 32497)
    Lavine, Bear and Schaller, Js.
    Argued September 16
    officially released November 22, 2011

      John Q. Gale, with whom was Derek G. Poirier, for the appellant (defendant).

      Paul E. Pollock, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The issue in this case is whether an oral agreement placed on the record in open court that concludes the dispute between the parties must comply with the statute of frauds, General Statutes § 52-550 (a). Our appellate courts have noted that an agreement that settles the dispute between parties and is placed on the record in open court is enforceable although the agreement has not been reduced to a writing signed by the parties. See Sparaco v. Tenney, 175 Conn. 436, 437, 399 A.2d 1261 (1978) (stipulated judgment); see also Arseniadis v. Arseniadis, 2 Conn. App. 239, 244, 477 A.2d 152 (1984) (settlement agreement). We therefore affirm the judgment of the trial court.

The defendant, Barry L. Bulakites, appeals from the judgment of the trial court, Hon. Jerry Wagner, judge trial referee, claiming that the court incorrectly applied § 52-550 (a) (5), by granting the motion to enforce the settlement filed by the plaintiff, Reid & Riege, P.C. We disagree.

The following facts are relevant to this appeal. By writ of summons and complaint, on July 17, 2006, the plaintiff commenced a collection action against the defendant for legal services rendered. The complaint alleged that the defendant owed the plaintiff legal fees in excess of $169,000 for representing him in a federal action between March 30, 2003, and March 3, 2005. The then self-represented defendant denied the pertinent allegations of the complaint, asserted several special defenses and alleged, in a counterclaim, that the plaintiff engaged in fraudulent billing practices, violated various Connecticut consumer protection laws, refused to engage in arbitration, violated the rules of professional responsibility and breached the professional duty owed to the defendant. The plaintiff denied the special defenses and the allegations of the counterclaim.

On March 4, 2009, the parties attended a pretrial conference at which they agreed to participate in court-annexed mediation before Judge Wagner. As a result of the mediation, the parties reached an agreement. Counsel for the parties appeared before the court, Elgo, J., on July 8, 2009, at which time the plaintiffs counsel stated the agreement for the record. In his brief to this

The defendant claims that Judge Wagner did not correctly apply § 52-550 (a) (5). Section 52-550 (a) provides in relevant part: “No civil action may be maintained in the following cases unless the agreement ... is made in writing and signed by the party, or the agent of the party, to be charged ... (5) upon any agreement that is not to be performed within one year from the making thereof . . . .” Resolution of the defendant’s claim requires us to construe the statute.

This claim is a matter of statutory construction, which “is a question of law to which the plenary standard of review applies.” Friends of Animals, Inc. v. United Illuminating Co., 124 Conn. App. 823, 854, 6 A.3d 1180 (2010). “Statutes must be interpreted to give meaning to their plain language and to provide a unified body of law.” (Internal quotation marks omitted.) Id. “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes.” (Internal quotation marks omitted.) In re A.R., 123 Conn. App. 336, 339, 1 A.3d 1184 (2010).

We conclude that the first six words of § 52-550 (a), providing that “no civil action may be maintained,” are clear and unambiguous. Our review of the record demonstrates that the present action was commenced to collect legal fees allegedly owed by the defendant pursuant to a retainer agreement for the services rendered by the plaintiff. The plaintiff did not seek to maintain a new action by filing a motion to enforce the settlement. Notably, the plaintiff did not use the procedures set forth in General Statutes § 52-45a in filing the motion to enforce the settlement. See, e.g., Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554-55, 944 A. 2d 329 (2008) (both § 52-45a and Practice Book § 8-1 [a] require signed writ to commence civil action); compare Investment Associates v. Summit Associates, Inc., 132 Conn. App. 192, 204, 31 A.3d 820 (2011) (motion to revive did not begin new action). Moreover, the stipulation placed on the record here demonstrates that the agreement was entered into by the parties to avoid trial in the underlying litigation. See footnote 3 of this opinion. That fact brings this case within the holding of Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993).

In Audubon Parking Associates Ltd. Partnership, the plaintiff commenced an action for breach of a commercial lease. Id., 805. “During jury selection, the parties represented on the record, in open court before the trial judge . . . that they had agreed to settle the entire matter . . . .” Id., 806. After the settlement agreement had been placed on the record and agreed to by the parties, the court required the parties to withdraw the complaint and counterclaim immediately for administrative purposes. Id., and n.3. “The court then stated that ‘[s]hould this matter unravel and the parties choose not to proceed on the settlement ... I will allow the matter to be reinstated ....’” Id., 806. The defendants, however, failed to abide by the settlement and the plaintiff filed a motion to open, which was granted by the court. Id., 806-807. Thereafter, “the plaintiff filed a motion for judgment in accordance with and enforcement of the settlement contract . . . .” Id., 807. The court rendered judgment against the defendants in accordance with the settlement agreement, concluding that “the parties had intended to enter into a binding settlement . . . .” Id. The defendants appealed.

Our Supreme Court stated, “the gravamen of the defendants’ claim is that the plaintiff, once it filed a motion to open the judgment, had elected to pursue its claim under the lease and was therefore precluded from seeking enforcement of the settlement contract.” Id., 808. Our Supreme Court disagreed with the defendants.

“An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor’s existing duty. Performance of the accord discharges the original duty. ... If there is a breach of the accord, the obligee has the option of either seeking enforcement of the original duty or seeking enforcement of any obligation under the accord.” (Citations omitted; internal quotation marks omitted.) Id., 809. Here, it is significant that the defendant does not dispute the terms of the settlement agreement placed on the record before Judge Elgo.

“A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous. . . . Agreements that end lawsuits are contracts, sometimes enforceable in a subsequent suit, but in many situations enforceable by entry of a judgment in the original suit. A court’s authority to enforce a settlement by entry of judgment in the underlying action is especially clear where the settlement is reported to the court during the course of a trial or other significant courtroom proceedings.” (Citations omitted; internal quotation marks omitted.) Id., 811.

In upholding the judgment rendered by the trial court in Audubon Parking Associates Ltd. Partnership, our Supreme Court quoted from Janus Films, Inc. v. Miller, 801 F.2d 578, 583 (2d Cir. 1986). “Due regard for the proper use of judicial resources requires that a trial judge proceed with entry of a settlement judgment after affording the parties an opportunity to be heard as to the precise content and wording of the judgment, rather than resume the trial and precipitate an additional lawsuit for breach of a settlement agreement. This authority should normally be exercised whenever settlements are announced in the midst of a trial.” (Internal quotation marks omitted.) Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 812.

Our Supreme Court thereafter held that “a trial court may summarily enforce a settlement agreement within the framework of the original lawsuit as a matter of law when the parties do not dispute the terms of the agreement.” Id. Although that holding was rendered in the context of a defendant’s right to a jury trial on the settlement accord, with respect to the case before us, it is a distinction without a difference. The key element with regard to the settlement agreement in Audubon Parking Associates Ltd. Partnership and this case is that there is no factual dispute as to the terms of the accord. “Generally, [a] trial court has the inherent power to enforce summarily a settlement agreement as a matter of law [only] when the terms of the agreement are clear and unambiguous . . . and when the parties do not dispute the terms of the agreement.” (Citation omitted; internal quotation marks omitted.) DAP Financial Management Co. v. Mor-Fam Electric, Inc., 59 Conn. App. 92, 95, 755 A.2d 925 (2000).

“The primary purpose of the statute of frauds is to provide reliable evidence of the existence and the terms of the contract . . . .” (Internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn. App. 294, 302, 912 A.2d 1117 (2007). “A stipulated judgment made in open court is not within the [s]tatute of [frauds, and therefore it was not error for the trial court to act upon an oral stipulation even though its subject matter was real property.” Sparaco v. Tenney, supra, 175 Conn. 437. Similarly, an oral settlement agreement placed on the record in open court by counsel for the parties is not within the statute of frauds although the agreement cannot be completed within one year. “Oral stipulations recorded in open court are just as binding, obligatory and conclusive as if in writing and executed with every legal formality . . . .” Arseniadis v Arseniadis, supra, 2 Conn. App. 244. We conclude therefore that the oral settlement agreement placed on the record before Judge Elgo and assented to by counsel for the parties is binding, as if the agreement were in writing and signed by the party to be charged.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims that (1) our appellate courts have not specifically held that an oral agreement made on the record in open court satisfies the statute of frauds and (2) at a minimum, safeguards should be put in place if our courts are to enforce agreements that cannot be completed within one year of their making and are made on the record in open court but are never reduced to writing. We need not address these claims to resolve the defendant’s appeal.

       Although the pleading in the record is entitled a cross claim, it technically is a counterclaim. See JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn. App. 125, 131, 952 A.2d 56 (2008). court, the defendant states that he was not canvassed by the court but concedes that he was present at the time the agreement was entered into the record. Thereafter, as Judge Elgo had ordered, the plaintiffs counsel reduced the agreement to writing and forwarded it to counsel for the defendant. The defendant never signed the agreement and made no payments to the plaintiff. On September 21, 2009, the plaintiff filed a motion to enforce the settlement. The defendant filed an objection to the motion to enforce the settlement, arguing that the terms of the agreement could not be completed within a year of its making and therefore needed to be reduced to writing and signed by the parties. The plaintiff replied to the objection by asserting that the statute of frauds does not void an oral agreement placed into the court record. On July 6,2010, Judge Wagner granted the plaintiffs motion to enforce the settlement. The defendant appealed.

       The July 8, 2009 transcript contains the following colloquy:
      “The Court: And counsel, we’ve had an opportunity to meet in chambers. Would one of you like to present the agreement on the record, please.
      “[The Plaintiffs Counsel]: Yes, Your Honor. The parties have agreed to settle the above matter on the following terms: The defendant will pay the plaintiff $30,000 within sixty days or before September 8, 2009. Thereafter, beginning October 8,2009, the . . . defendant will pay the plaintiff $7083.33 each month beginning October 8, 2009, and every month thereafter until September 8, 2009, on the eighth day of each month. If no payment . . .
      “The Court: That’s September 8 . . .
      “[The Plaintiffs Counsel]: of 2010.
      “The Court: 2010. Okay.
      “[The Plaintiffs Counsel]: If no payment is made by the defendant on the date required or within ten days for the monthly payments, the plaintiff will obtain a judgment in the amount of $115,000 reduced by whatever payments have been made by the defendant. As Your Honor had indicated, we have discussed the trial date in January and we had requested that the trial be canceled because we have reached an agreement.

      “The plaintiff has agreed that as of June 15, 2010, the above matter will be withdrawn unless previous thereto we receive a judgment because of failure of the defendant to make payment. It is understood and the plaintiffs agree to withdraw the case and forgo any trial based upon this agreement and it is understood that after June 15, if the payments aren’t made that are due on July 8, August 8, or September 8, those payments aren’t made within the ten days as designated, the plaintiff will reopen the withdrawal, open the suit and obtain a judgment again in the amount of $115,000 reduced by all payments that have been made up to that time.
      “Your Honor kindly pointed out to us the Audubon [Parking Associates] case .... Both myself and defense counsel have read that and our agreement concerning the withdrawal on June 15 and our right to reopen that withdrawal if there’s a default in the agreement is premised on the language and legal authority designated or indicated in the Audubon case.
      “The Court: Okay.
      “[The Plaintiff’s Counsel]: And it is, Your Honor had requested and we’ve agreed to reduce this agreement to writing, signed by the attorneys and the parties and to have it to the court. That’s probably within a couple of weeks because the defendant is out of state so it may take some time.
      “The Court: Okay.
      “[The Plaintiffs Counsel]: I think I’ve covered everything.
      “The Court: All right. [The defendant’s counsel.]
      “[The Defendant’s Counsel]: I’ve listened very carefully to [the plaintiffs counsel] as he’s put our agreement on the record, and I agree that that’s our agreement.
      “The Court: Okay. And you can represent on behalf of your client that your client understands the terms of this agreement and is in agreement with it?
      “[The Plaintiffs Counsel]: Yes, I think that’s the case.
      “[The Defendant’s Counsel]: Yes, ma’am, it is.” (Emphasis added.)

       This court reversed the judgment of the trial court, holding that the defendants were entitled to a jury trial on the plaintiffs underlying claim or on the settlement agreement. Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 26 Conn. App. 181, 183-85, 599 A.2d 395 (1991), rev’d in part, 225 Conn. 804, 814, 626 A.2d 729 (1993).

       The defendants also claimed that they were entitled to a jury trial. Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 809. Our Supreme Court disagreed; id.; but that issue is not relevant to the facts and claim in this appeal.

       In DAP Financial Management Co. v. Mor-Fam Electric, Inc., supra, 59 Conn. App. 93, this court affirmed the judgment of the trial court that found that “there was a binding agreement between the parties by finding that . . . counsel had agreed to the settlement . . . .”

       “[A] stipulated judgment is not a judicial determination of any litigated right. ... It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement.” (Internal quotation marks omitted.) Ahmadi v. Ahmadi, 294 Conn. 384, 389-90, 985 A.2d 319 (2009).

       Where a settlement agreement is placed on the record in court “the fact that an oral agreement was later to be memorialized in writing does not make it any less enforceable.” (Internal quotation marks omitted.) Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 529, 4 A.3d 288 (2010).


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    HAYES FAMILY LIMITED PARTNERSHIP ET AL. v. TOWN OF GLASTONBURY
    (AC 32697)
    Gruendel, Alvord and Bishop, Js.
    Argued September 15
    officially released November 22, 2011

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellants (plaintiffs).

      Beth Bryan Critton, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiffs, Hayes Family Limited Partnership, Richard P. Hayes, Jr., and Manchester/ Hebron Avenue, LLC, appeal from the judgment of the trial court granting the motion to dismiss their complaint for lack of subject matter jurisdiction filed by the defendant, the town of Glastonbury. On appeal, the plaintiffs assert that the court improperly granted the motion to dismiss. The plaintiffs argue, in the alternative, that the court was required to hold an evidentiary hearing before deciding the motion to dismiss. We agree that the court should have held an evidentiary hearing before deciding the motion to dismiss and, accordingly, reverse the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiffs own a 2.4 acre parcel of land located at 1199 Manchester Road in Glastonbury. The property is comprised of a ledge, which rises steeply from the edges of the southwesterly comer of the intersection of Hebron Avenue and Manchester Road to a heavily wooded plateau abutting an established single-family neighborhood in a rural residential zone. On June 27, 2005, the plaintiffs filed a special permit application with the Glastonbury planning and zoning commission (commission). The plaintiffs proposed to build a 13,013 square foot, thirty-two foot high building with seventy parking spaces and a drive-through window on the property. On November 29, 2005, the commission denied the plaintiffs’ application, citing the project’s scale and intensity in relation to the size and topography of the parcel, its impact on and lack of compatibility with the existing neighborhood and the inadequacy of the proposed landscaping.

On October 5, 2009, the plaintiffs filed a complaint alleging that the defendant took the plaintiffs’ property without just compensation under article first, § 11, of the constitution of Connecticut, and the fourteenth amendment to the United States constitution. The complaint alleges that there was no reasonable business use that could be made of the property without implicating the same problems cited in the commission’s denial. On November 23, 2009, the defendant moved to dismiss the plaintiffs’ complaint, arguing that the facts pleaded in the complaint were insufficient to establish the finality required to entitle the plaintiffs to judicial review, and the court therefore lacked subject matter jurisdiction. On January 15, 2010, the plaintiffs filed an objection to the motion to dismiss, accompanied by three affidavits, arguing, inter alia, that the court was required to hold an evidentiary hearing before deciding the motion to dismiss.

On August 4, 2010, the court granted the defendant’s motion to dismiss and overruled the plaintiffs’ objection. In its memorandum of decision, the court determined that the “plaintiffs are not entitled to judicial review of the merits of their regulatory takings claim until they meet the requirement of establishing that the commission will not allow any reasonable use of the property.” On August 19, 2010, the plaintiffs filed a motion for reargument and reconsideration, claiming that disputed issues of material fact were addressed by the court in its memorandum of decision and resolved in favor of the defendant without the benefit of an evidentiary hearing. The court denied the motion. On September 16, 2010, the plaintiffs appealed from the judgment granting the defendant’s motion to dismiss.

We begin by setting out the applicable legal principles and standard of review. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 64 Conn. App. 134, 137, 779 A.2d 817 (2001), appeal dismissed, 260 Conn. 180, 799 A.2d 294 (2002). “Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn. App. 791, 795, 3 A.3d 183 (2010).

“When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Bagg v. Thompson, 114 Conn. App. 30, 37-38, 968 A.2d 468 (2009). “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999).

“Trial courts addressing motions to dismiss for lack of subject matter jurisdiction . . . may encounter different situations, depending on the status of the record in the case. As summarized by a federal court discussing motions brought pursuant to the analogous federal rule, ‘[l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’ Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.” Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).

“[Wjhere a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.” (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 348, 977 A.2d 636 (2009). “When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” Lampasona v. Jacobs, 7 Conn. App. 639, 642-43, 509 A.2d 1089 (1986).

In the present case, the plaintiffs were required to establish the finality of the commission’s determination to confer subject matter jurisdiction on the court. See Gil v. Inland Wetlands & Watercourses Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991). “To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property.” Id. On the basis of the complaint and the affidavits submitted by both parties, the court determined that the plaintiffs could not prove finality because the plaintiffs only submitted one special permit application for a particularly intensive development.

Viewing the pleadings in the light most favorable to the plaintiffs, we conclude that there was a critical factual dispute that the court resolved without the benefit of an evidentiary hearing. The plaintiffs assert that, in light of the criteria established by the commission with respect to the development of the property as set forth in its single denial of the plaintiffs’ special permit application, there is no alternative use for the property. The plaintiffs submitted three affidavits, which reach the consensus that any development of this particular property would have ramifications identical to the proposed development, and, therefore, the hypothetical developments would be denied for the same reasons. The defendant offered evidence in the form of an affidavit of a staff liaison to the commission. In the affidavit, the liaison testified that neither the defendant nor the commission has taken the position that the property cannot be used for commercial purposes and that nothing in the defendant’s zoning regulations would prohibit the submission of an application for a less intensive use of the property. Nevertheless, whether there are viable alternative uses for the land that would not present the same problems posed by the initial special permit application, in light of the findings made by the commission in response to that application, cannot be resolved only by reference to the pleadings. This question, rather, presents an issue of fact, on which the plaintiffs are entitled to present evidence in response to the defendant’s motion to dismiss.

“[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute . . . [a]n evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.” (Citations omitted; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 652-54. Here, the court resolved a critical fact on the basis of the complaint and the affidavits, both of which contained controverted facts. See Fennelly v. Norton, 103 Conn. App. 125, 139 n.11, 931 A.2d 269 (noting that evidentiary hearing “is warranted ... in instances in which a motion to dismiss is accompanied by documentation, such as an affidavit, that raises a disputed issue of fact”), cert. denied, 284 Conn. 918, 931 A.2d 936 (2007). Given that the plaintiffs’ allegations should have been read favorably to them, the proper course was not to dismiss the complaint but to set the matter down for an evidentiary hearing on that factual issue. Accordingly, we conclude that the court improperly granted the defendant’s motion to dismiss without an evidentiary hearing.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Pursuant to General Statutes § 8-8, the plaintiffs appealed the commission’s decision to the Superior Court. The court dismissed the appeal, finding that the commission’s decision was supported by the record, and the plaintiffs were granted certification to appeal to this court. We affirmed the decision of the Superior Court. Hayes Family Ltd. Partnership v. Town Plan & Zoning Commission, 115 Conn. App. 655, 657, 974 A.2d 61 (2009).


author: BISHOP, J.

text:
    MATTHEW P. JAMIESON v. STATE OF CONNECTICUT MILITARY DEPARTMENT ET AL.
    (AC 32424)
    DiPentima, C. J., and Robinson and Bishop, Js.

      Argued September 20
    officially released November 22, 2011

      Lawrence G. Widen, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellant (named defendant).

      James M. Quinn, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant state military department appeals from the judgment of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner for the first district (commissioner) concluding that the plaintiff, Matthew P. Jamieson, was entitled to benefits pursuant to General Statutes § 5-145a. On appeal, the defendant claims that the board incorrectly (1) affirmed the commissioner’s determination of the date of the plaintiffs injury and, consequently, ordered it to pay workers’ compensation benefits that should have been attributed to the plaintiffs federal employer and (2) rejected its claim that the plaintiff was a lent federal employee as of the date of the claimed injury. We disagree and, accordingly, affirm the decision of the board.

The record reflects the following facts, as found by the commissioner, and procedural history. In September, 2006, the plaintiff was employed as a firefighter by the defendant where he worked an average of forty hours per week. As a condition of his employment with the defendant, the plaintiff also was a firefighter with the Connecticut Air National Guard. For the Connecticut Air National Guard, the plaintiff reported for duty one weekend per month and for an annual two week deployment. In both capacities, the plaintiff reported to the same supervisor, Chief Robert Cross, at Bradley International Airport.

On September 5, 2006, the plaintiff was directed by Cross to undergo a physical examination. During that examination, George W. Moore, a physician, detected that the plaintiffs heartbeat was irregular and diagnosed the plaintiff with atrial fibrillation. Following this examination, the plaintiff returned to work. He testified that he informed Cross of Moore’s diagnosis and that, as a result, Cross sent him home.

On the next day, September 6, 2006, on the advice of Moore, the plaintiff was seen by his primary care physician, Mark A. Robbin. Robbin referred the plaintiff to Steven E. Lane, a cardiologist, who examined the plaintiff on September 7, 2006. Like Moore, Lane also opined that the plaintiff was suffering from atrial fibrillation.

The plaintiff reported for his monthly active duty with the Connecticut Air National Guard on the weekend of September 9 and 10, 2006. On September 10, 2006, the plaintiff was engaged in a fire equipment training drill when he exhibited shortness of breath and fatigue, which were determined to be a result of atrial fibrillation. The plaintiff did not at any time thereafter resume his firefighter duties with either the defendant or the Connecticut Air National Guard.

On January 18, 2007, the plaintiff’s union representative filed a notice of claim for compensation on behalf of the plaintiff. The form listed the defendant as the plaintiff’s employer and September 10, 2006, as the date of injury. In describing the injuiy, the notice indicated that the plaintiff “was engaged in a structural firefighting training evolution when he experienced chest pain. He was transported to . . . [the hospital] for treatment of an irregular heartbeat.” The defendant filed a notice that it contested the plaintiff’s claim on the ground that the plaintiff was not working for the defendant on September 10, 2006, but, rather, “was participating with the [Connecticut] Air National Guard when he sustained heat exhaustion.” On June 29, 2007, the plaintiffs attorney filed another claim for compensation on behalf of the plaintiff, also listing the defendant as the employer and September 10,2006, as the date of injury, but elaborating that the plaintiff “was diagnosed with atrial fibrillation and atrial flutter in a physician’s exam [on] 9/4/ 06. This is a claim under ... § 5-145a.”

Prior to the formal hearing before the commissioner, the parties stipulated that, as a firefighter employed by the defendant, the plaintiff came within the class of hazardous duty employees eligible for benefits pursuant to § 5-145a, which provides benefits for disability relating to hypertension or heart disease for certain state employees. The defendant, nevertheless, argued that September 10, 2006, was the date of the plaintiffs injury and that, because the plaintiff was performing duties in his capacity as a member of the Connecticut Air National Guard on that date, the federal government was responsible for compensating the plaintiff for his injury. The parties stipulated that the plaintiff submitted to a physical examination prior to being employed by the defendant and that that examination did not reveal any irregularities with his heart and that, if it had, he would not have been hired.

Following an evidentiary hearing and the submission of briefs and proposed findings by the parties, the commissioner found that the plaintiff was diagnosed with atrial fibrillation on September 5, 2006, that he did not have heart disease prior to his employment with the defendant and, therefore, that his heart disease was presumed to be a compensable work injury pursuant to § 5-145a. In addition, the commissioner found that the plaintiff “did not suffer a work injuiy as it is described in ... § 5-145a on September 10, 2006,” but that he was temporarily totally disabled after his September 5, 2006 diagnosis. The commissioner found that the defendant’s claim that the date of injury was September 10, 2006, a date on which he was working for the Connecticut Air National Guard, did not rebut the statutory presumption that the plaintiffs injury, atrial fibrillation, developed in the course of his employment with the defendant. The commissioner concluded that the plaintiff had sustained a compensable injury while employed by the defendant and awarded the plaintiff temporary total and temporary partial benefits, in addition to benefits based on a 30 percent permanent partial disability of the heart. The board affirmed the commissioner’s decision, and this appeal followed.

“The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board.” (Citations omitted; internal quotation marks omitted.) Tracy v. Scherwitzky Gutter Co., 279 Conn. 265, 272, 901 A.2d 1176 (2006). With these principles in mind, we turn to the defendant’s claims on appeal.

I

The defendant first claims that the commissioner improperly determined the date of the plaintiffs injury and, consequently, ordered it to pay the federal employer’s share of the plaintiffs workers’ compensation benefits. The defendant claims that the evidence presented before the commissioner would support only an award for an injury sustained on September 10, 2006, a day on which the plaintiff was working for the Connecticut Air National Guard as a federal employee. On that basis, the defendant argues, the court improperly ordered it to pay benefits that were the responsibility of the federal government. We disagree.

It is well settled that “[§] 5-145a provides a benefit for the heart disease of those employees who work in designated categories of employment legislatively determined to be especially stressful and who had a physical examination at the time employment commenced showing no evidence of heart disease. If these preconditions are met, their combined effect is to create a presumption that subsequent heart disease has been suffered in the performance of his duty.” (Internal quotation marks omitted.) Salmeri v. Dept. of Public Safety, 70 Conn. App. 321, 336-37, 798 A.2d 481, cert. denied, 261 Conn. 919, 806 A.2d 1055 (2002).

It is undisputed that the plaintiff was working for the Connecticut Air National Guard on September 10, 2006, and that he was forced to seek medical attention on that date for symptoms related to his heart condition. The board concluded, however, that the record supported the commissioner’s conclusion that the plaintiffs cardiac disease was a progressive ailment sustained during the course of his employment with the defendant and that he had received a diagnosis of that disease prior to September 10, 2006. As the board noted, “the commissioner found that the events of September 10, 2006, were not a ‘work injury’ as defined in § 5-145a . . . and were only a manifestation of the [plaintiffs] previously diagnosed atrial fibrillation.” This finding is supported by medical evidence submitted by the plaintiff, all of which supports the commissioner’s determination that the plaintiff developed his cardiac condition or, in other words, sustained his work related injury, prior to September 10, 2006. The board therefore concluded that the September 10, 2006 date was immaterial and that the commissioner had jurisdiction over the plaintiffs claim. On the basis of the foregoing, we conclude that the board properly affirmed the commissioner’s determination that September 5, 2006, was the date of the plaintiffs injury.

II

The defendant also claims that the board improperly rejected its claim that the plaintiff was a lent employee within the ambit of General Statutes § 31-292. As such, the defendant argues, the plaintiff must pursue his claim for benefits in a federal forum. Section 31-292 provides: “When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another. ” Because the defendant failed to introduce any evidence of the relationship between the defendant and the Connecticut Air National Guard, we, like the board, are unable to assess the merits of this claim.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       GAB Robins North America, Inc., the workers’ compensation administrator for the state of Connecticut, also is a defendant in this case but has not participated in this appeal. In the interest of simplicity, we refer to the state military department as the defendant throughout this opinion.

       General Statutes § 5-145a provides in relevant part: “Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death ... to any state employee designated as a hazardous duty employee pursuant to an applicable collective bargaining agreement who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have been suffered in the performance of his duty and shall be compensable in accordance with the provisions of chapter 568, except that for the first three months of compensability the employee shall continue to receive the full salary which he was receiving at the time of injury in the manner provided by the provisions of section 5-142. . . .”

       Presumably in furtherance of its claim that the plaintiff was a federal employee on the date of his injury, the defendant attempted to elicit testimony from Cross that the plaintiff was a federal employee. Cross indicated that he, himself, is a federal employee, but he reports to the governor of the state of Connecticut. Because we conclude that the commissioner properly determined the date of the plaintiffs injury, we need not assess whether the plaintiff was a federal employee when serving in the Connecticut Air National Guard.

       The commissioner also found that the date of injury listed on the two notice of claim forms submitted by the plaintiff constituted a “defect or inaccuracy” of the notices, as contemplated by General Statutes § 31-294c (c), and that the plaintiff gave “frequent and adequate” notice to the defendant of the date under which he was proceeding. The board affirmed that finding. The defendant has not challenged that factual finding on appeal.

       The defendant argues that this is a dual employment case. The commissioner, however, specifically determined that the plaintiff suffered his injury in the course of his employment as a firefighter with the defendant. The commissioner found, and the record supports, that the plaintiff worked an average of forty hours per week for the defendant and only one weekend per month and an annual two week deployment for the Connecticut Air National Guard. On that basis, the commissioner concluded that the plaintiff was not entitled to any federal workers’ compensation benefits. The board affirmed the commissioner’s finding that the plaintiff spent the “vast majority” of his employment with the defendant. The record supports that finding, and the defendant does not challenge that factual finding on appeal. The defendant, nevertheless, contends that the Connecticut Air National Guard, as a federal employer, must bear the entire responsibility for the plaintiffs injury. The defendant has not, however, provided any support for this argument.

       To the extent that the defendant challenges the commissioner’s factual finding that the plaintiff timely disclosed his ailment to his supervisor, such a finding may only be reversed if it is not supported by the record. Because the plaintiff testified that he informed Cross of his diagnosis on the same day that he learned of it, we cannot conclude that the commissioner’s finding was clearly erroneous.

       The defendant asserts that the plaintiffs claims are preempted by virtue of his federal employment with the Connecticut Air National Guard. The defendant, however, provides no support for this claim. To the extent that the defendant claims that the commissioner did not have jurisdiction to order the defendant to pay the federal government’s share of benefits owed to the plaintiff, our review of the record reveals that the commissioner did not make such an order.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. GERALL GUTIERREZ
    (AC 32372)
    DiPentima, C. X, and Beach and Peters, Js.

      Argued September 12
    officially released November 22, 2011

      Thomas G. Wolff, for the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Deborah Mabbett, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Gerall Gutierrez, appeals from the judgment of the trial court revoking his probation. On appeal, the defendant claims that the court erred by (1) sustaining an objection to a question about the perpetrators’ accents, (2) relying on witness statements that were not in evidence and (3) finding that he had engaged in conduct that violated his probation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. On September 25, 2009, the defendant pleaded guilty to two counts of possession of marijuana in violation of General Statutes § 2 la-279 (c). The court, Reynolds, J., sentenced him to a total of two years incarceration, execution suspended, and two years probation.

Two days later, on September 27, 2009, the defendant was arrested and charged with assault in the third degree, robbery in the second degree, larceny in the second degree and breach of the peace in the second degree. The arrest stemmed from the following events, as testified to in the subsequent hearing. On September 26, 2009, Leonidas Gualan left his home at about 11 o’clock in the evening to eat at Kennedy Fried Chicken in Danbury. He stayed there between one and one-half to two hours. As he left the restaurant, two men approached him and hit him, kicked him and threw him to the ground. The men told Gualan that if he did not give them all of his money, they were going to kill him. Andres Mogrovejo, who was leaving another restaurant, saw Gualan getting hit and kicked. The assailants took approximately $700 from Gualan’s wallet and ran. Mogrovejo approached Gualan and asked him what happened, to which Gualan replied: “They robbed me.” Mogrovejo then observed the men trying to hide in a nearby parking lot, then run off. A woman who was nearby found Gualan’s wallet and then called the police. Mogrovejo, a friend and other persons began following the men. One of the attackers, later identified as the defendant, stopped running. The police arrived shortly thereafter and arrested him.

On November 13, 2009, the defendant was charged with violation of probation pursuant to General Statutes § 53a-32 because of his alleged criminal activity. A violation of probation hearing was held on April 28 and 29, and May 21 and 27, 2010. Following the presentation of evidence, the court found that the defendant had violated his probation and sentenced him to two years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion when it excluded certain testimony of Gualan pertaining to the perpetrators’ accents. Specifically, the defendant argues that a proper foundation was laid for admission of testimony that Gualan could recognize the perpetrators’ accents as Caribbean or Dominican. We disagree with the defendant’s claim.

The following additional facts are relevant. At the defendant’s violation of probation hearing, Gualan, a witness for the state, testified, through an interpreter, on cross-examination that he did not speak English and was bom in Ecuador. He further testified that there were many Spanish speakers at Kennedy Fried Chicken on the evening of September 26, 2009, and that there were various dialects and accents being spoken. After Gualan testified that his attackers demanded all of his money and threatened to kill him, defense counsel asked Gualan whether he could recognize their accents. Gualan replied: “Forgive me. When — when you are just with friends, it’s — it’s easier to — to recognize accents, but when you’re in the middle of a fight, it’s really difficult for someone to just recognize that.” Defense counsel then inquired whether Gualan “recognize[d] whether the accent might have sounded like an accent from the Caribbean, like the Dominican.” The state objected on the ground that the question had been asked and answered. The court sustained the objection, reasoning that Gualan “doesn’t know, and ... to ask him is impossible.” Defense counsel responded that his question was not about what was possible but about whether the accent sounded Caribbean or Dominican. The court repeated its ruling that the objection was sustained.

The defendant argues that the state’s objection should not have been sustained and that he should have been allowed to pursue the issue of accents because he laid a proper foundation and the testimony would have been permissible lay opinion. Our review of the record leads us to reject the defendant’s claim. The defendant argues that he laid a proper foundation to inquire into Gualan’s ability to recognize accents and that the subject is proper lay opinion. The court apparently held that a proper foundation had not been laid because under the circumstances, Gualan had not been able to discriminate among accents.

The state objected expressly on the ground that the question whether Gualan recognized the accents had been asked and answered; Gualan already had indicated that it was difficult to identify accents while being attacked. It appears from the context that the court believed that Gualan had indicated that he could not discriminate among accents reliably in the context of an attack. It was reasonable for the court to conclude that defense counsel’s subsequent question about specific types of accents was repetitious because the witness had previously indicated that he did not know. A second question was therefore redundant, and the court did not abuse its discretion by sustaining the objection. “[T]he trial court is vested with wide and liberal discretion in determining the admissibility of evidence claimed to be repetitious, remote or irrelevant.” State v. Reddick, 33 Conn. App. 311, 318, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994); see also State v. Quinones, 92 Conn. App. 389, 392, 885 A.2d 227 (2005) (rules of evidence do not strictly apply to probation hearings), cert. denied, 277 Conn. 904, 891 A.2d 4 (2006); State v. Young, 63 Conn. App. 794, 800, 778 A.2d 1015 (“[t]he process ... is not so flexible as to be completely unrestrained; there must be some indication that the information presented to the court . . . has some minimal indicia of reliability”), cert. denied, 258 Conn. 903,782 A.2d 140 (2001). Accordingly, we conclude that the court did not abuse its discretion by sustaining the state’s objection to the defendant’s question.

II

The defendant next claims that the court erred by relying on witness statements that were not in evidence. We disagree.

The following additional facts are relevant. At the conclusion of the violation of probation hearing, the court found that the state had satisfied its burden of proving that the defendant violated the conditions of his probation. In its oral ruling, the court stated: “Mr. Gualan identified the defendant and indicated what the defendant had done .... The court further finds credible the testimony of Mr. Mogrovejo in that, again, the defendant was the individual who participated in the assault, robbery, and larceny against the victim, Mr. Gualan. Both parties indicated that they immediately identified the defendant. They identified him at the scene. . . . Those witnesses identified the defendant at the scene. They identified him with accuracy and in detail; that they identified him on a statement that was given thereafter. They identified him in court without hesitation and both offered those identifications.” The defendant claims that because the court referred to “a statement that was given thereafter” and because no witness statements were admitted into evidence, the trial court erred.

“A trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Hill, 256 Conn. 412, 425-26, 773 A.2d 931 (2001).

The evidence supports a finding that a written statement was given to police, though the actual statement was not introduced into evidence, and that a separate oral description also was made. Gualan provided an oral description of his attackers to police the day after the incident. He also identified the defendant in the courtroom and testified that he recognized the defendant as soon as he saw him in the courtroom. Upon being asked whether there was any doubt as to whether the person he had identified in court was the person who assaulted him, Gualan responded: “No, I don’t have any doubts.” Further, Mogrovejo testified that he provided the police with a description of the assailants. He provided a written statement to the police about one and one-half months later. He also identified the defendant in the courtroom as the man who robbed and kicked Gualan and asserted that he was 100 percent sure. Police did not show Gualan or Mogrovejo any type of lineup.

The court perhaps may not have been precisely accurate in stating that the witnesses “identified [the defendant] on a statement . . . .” There was testimony, however, that Mogrovejo gave a written statement and Gualan gave an oral description of the culprit; the thrust of the court’s recitation that the identifications were repeated and consistent was therefore justified by the evidence. The fact that one written statement was not in evidence is not precisely inconsistent with the court’s summation and, in any event, even if the recitation is deemed to be slightly inaccurate, the inaccuracy was clearly harmless. The court found both witnesses’ testimony credible, and “the trial court is the sole arbiter of witness credibility . . . .” Blum v. Blum, 109 Conn. App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008). Accordingly, we conclude that the court did not erroneously rely on statements that were not in evidence.

Ill

The defendant finally claims that the court’s finding that he violated his probation by committing assault, robbery and larceny was clearly erroneous. Specifically, the defendant claims that he lacked a motive to commit the crime, that the victim’s and eyewitness’ identifications of the defendant were unreliable and that the court failed to consider the entire record. We disagree.

“A trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Hill, supra, 256 Conn. 425-26.

A

The defendant’s reliance on the presence or absence of a motive to commit the robbery, larceny and assault is misplaced. As the defendant asserts in his brief, “[i]t is not essential that the state prove a motive for a crime.” State v. Hoyeson, 154 Conn. 302, 307, 224 A.2d 735 (1966). In support of his claim that he had no motive to commit the crime, the defendant relies on his receipt of unemployment benefits of $191 per week, the $278.51 balance in his bank account, his high grade point average at Porter & Chester School and the temporal proximity of this crime to his guilty plea to the disposition of marijuana charges. We cannot conclude in the present case that a lack of motive, even if true, would compel a “definite and firm conviction that a mistake has been committed”; (internal quotation marks omitted) State v. Hill, supra, 256 Conn. 425; such that a finding of fact would be clearly erroneous. The factors pertaining to the claim of a lack of motive raised by the defendant in his appeal were before the court, and presumably it considered them in its factual credibility determinations. Accordingly, we cannot conclude that the court erred.

B

The defendant also argues that Gualan’s and Mogrovejo’s identifications of him were unreliable. We disagree.

The defendant challenges both the in-court and out-of-court identifications by Gualan. He claims that Gualan’s in-court identification of the defendant was unnecessarily suggestive on the basis of the prosecutor’s questioning. After Gualan answered that the person who assaulted him was present in the courtroom, the following exchange occurred:

“[The Prosecutor]: Could you point him out for us?
“[The Witness]: Yes, he — he’s the guy that was attacking me out there in front.
“[The Prosecutor]: And, that’s the man you just pointed to, who’s at the defense table?
“[Defense Counsel]: Well, I object, Your Honor. He didn’t point to anybody.
“[The Prosecutor]: He — he went like this.
“[Defense Counsel]: He did not.
“[The Prosecutor]: Could you point to this—
“The Court: All right. Let’s start — -you know what? If there’s an objection, I, of course where I am, I cannot see it. So, I’m sustaining the objection. You can ask your next question.
“[The Prosecutor]: Okay. This person who assaulted you outside the chicken place; is he in the courtroom today? Could you point to him, please, if he is?
“[The Witness]: Yes, the gentleman that’s over there. He’s the one that beat me.”

The court noted for the record that Gualan identified the defendant.

The defendant claims that the prosecutor’s question: “And, that’s the man you just pointed to, who’s at the defense table?” was unnecessarily suggestive and contributes to a definite and firm conviction that the court mistakenly found that the defendant committed the charged crimes. We disagree. At the time of the prosecutor’s question, Gualan had already testified that one assailant was present in the courtroom. It at first was disputed whether Gualan had pointed to the defendant. After the court indicated that it had not seen an identification, Gualan clearly did identify the defendant. Gualan testified that he recognized the defendant as soon as he saw him in the courtroom. Upon being asked whether there was any doubt as to whether the person he had identified in court was the person who assaulted him, Gualan responded: “No, I don’t have any doubts.” Further, the defendant had the full opportunity to cross-examine Gualan about his identification. See State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986) (“The defendant’s protection against the obvious suggestiveness in any courtroom identification confrontation is his right to cross-examination. . . . The innate weakness in any in-court testimonial identification is grounds for assailing its weight rather than its admissibility.” [Citations omitted.]).

Further, the defendant challenges the reliability of Guaian’s out-of-court identification to the police shortly after the attack. He advances several reasons, including Guaian’s lack of ability to perceive his assailants, Guaian’s level of certainty and the suggestivity arising from Mogrovejo’s pointing out the defendant to Gualan as the man who robbed him. The defendant also challenges the reliability of Mogrovejo’s out-of-court identification. The court carefully weighed the testimony of each witness and found credible the testimony of Mogrovejo and Gualan. It further weighed a possible discrepancy in Mogrovejo’s testimony about whether he ever lost sight of the defendant and explicitly found that it did not significantly detract from the reliability of the identification. “[T]he trial court is the sole arbiter of witness credibility . . . .” Blum v. Blum, supra, 109 Conn. App. 329; see also State v. Mitchell, 127 Conn. App. 526, 533, 16 A.3d 730 (admission of identifications is factbound determination trial courts better equipped than appellate courts to make), cert. denied, 301 Conn. 929, 23 A. 3d 724 (2011). Accordingly, we do not have a “definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) State v. Hill, supra, 256 Conn. 425.

C

Finally, the defendant claims that the court failed to consider the entire record in making its determinations regarding his credibility and whether he violated his probation. He relies on the absence of references to his testimony and credibility in the court’s findings of facts. We disagree. That the court did not explicitly mention these items does not reasonably imply that they were not considered. Rather, by finding credible the other witnesses’ testimony, much of which was inconsistent with the defendant’s testimony, the court implicitly indicated its assessment of the defendant’s credibility. Our review requires us to make “every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id., 425-26. Construing the evidence in the light most favorable to sustaining the factual findings, we cannot conclude that the court failed to consider the defendant’s evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       On August 26,2011, the state moved to dismiss the appeal on the ground that the defendant appeared to be a fugitive and has forfeited his right to appeal. According to the state’s motion, following the defendant’s sentencing on May 27, 2010, the court granted his motion for posttrial release on July 19, 2010. He posted bond and was released. Between July, 2010, and April, 2011, the defendant appeared in court for other criminal cases pending against him. On April 13, 2011, he failed to appear in court in those cases, and the court ordered the defendant’s rearrest. Relying on an e-mail from a bondsman to the state, the state filed its motion, claiming that the defendant had left the state, to which defense counsel asserted that he was prepared to stipulate.
      We decline to decide the state’s motion. The e-mail from the bail bondsman attached to the state’s motion is not part of the record in this case. There is no finding that the defendant’s appeal bond has been revoked, and he has not failed to appear in any proceeding connected to this appeal, so far as the record shows. The issue is not jurisdictional in nature. See State v. Brabham, 301 Conn. 376, 21 A.3d 800 (2011). Accordingly, we choose not to reach the merits of the state’s motion but affirm the revocation of probation on other grounds.


author: PER CURIAM.

text:
    DEVORE ASSOCIATES, LLC v. ALAN M. SORKIN
    (AC 31943)
    DiPentima, C. L, and Espinosa and Pellegrino, Js.

      Argued September 22
    officially released November 22, 2011

      Anthony B. Corleto, with whom, on the brief, was Christopher Antoci, for the appellant (defendant).

      Bruce L. Elstein, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The principal issue in this appeal is whether the trial court properly denied the motion of the defendant, Alan M. Sorkin, to open the judgment granting the application to compel arbitration filed by the plaintiff, Devore Associates, LLC, and defaulting the defendant for his failure to appear at the scheduled hearing on that application. We affirm the judgment of the trial court.

The trial court set forth the following facts and procedural history, which are relevant to this appeal in ruling on the defendant’s motion. “[The plaintiffs] application to compel arbitration . . . claims that on August 31, 2005, the plaintiff entered into a written agreement to perform landscape architectural services for the defendant for a fee. The agreement contained an arbitration clause: ‘If a claim, dispute, or other matters in question between the parties to this agreement arise out of or relate to this agreement [or] the breach thereof, the parties agree to endeavor to obtain settlement in an amicable manner by recourse to mediation or arbitration under the applicable rules of the American Arbitration Association [the arbitration association], or by other mutually agreed to means. If arbitration becomes necessary, the award rendered by the arbitrators shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.’ Thereafter, a fee dispute developed between the parties. On May 9, 2008, the plaintiff initiated an arbitration proceeding with the arbitration association. The defendant submitted a response on May 27, 2008, in which he admitted to the execution of the agreement between them and filed a counterclaim for damages. The parties agreed to attempt to settle the matter by mediation. On October 10, 2008, the parties attended a mediation session but failed to settle. On that same date, the plaintiff attempted to obtain a date for the arbitration hearing. The arbitration association assigned an arbitrator, who endeavored to conduct a prehearing conference to set the discovery and hearing schedule. The defendant refused to participate in that hearing. . . .

“On February 2,2009, the plaintiff filed an application for an order by the court to compel arbitration. . . . On March 2,2009, that application to compel arbitration was granted and a default judgment was rendered against the defendant by the court.

“On May 18, 2009, the defendant filed a motion to open the judgment on the ground that, pursuant to General Statutes § 52-59b (a), the long arm statute, the court did not have personal jurisdiction over him when it granted the default judgment on the plaintiffs application to compel arbitration.” Following a hearing on the defendant’s motion, the court found that the defendant was aware of the March 2, 2009 hearing date. The court concluded: “The defendant’s decision not to enter an appearance and respond because he decided that he was not subject to the Connecticut court’s jurisdiction over him was the result of a deliberate decision to disregard the hearing and cannot be deemed to be a reasonable cause for his nonappearance. Simply put, the defendant was not prevented from interposing his defense because of mistake, accident or other reasonable cause.” This appeal followed.

Our standard of review is well settled. “[I]n granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion.” (Internal quotation marks omitted.) Triton Associates v. Six New Corp., 14 Conn. App. 172, 175, 540 A.2d 95, cert. denied, 208 Conn. 806, 545 A.2d 1104 (1988). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Ins. Co. of Pennsylvania v. Waterfield, 102 Conn. App. 277, 284, 925 A.2d 451 (2007).

General Statutes § 52-212 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.” See also Practice Book § 17-43. In other words, “[tjhere must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented from making that defense because of mistake, accident or other reasonable cause.” (Internal quotation marks omitted.) Triton Associates v. Six New Corp., supra, 14 Conn. App. 175.

In regard to the first prong, the defendant timely argued to the court, and reiterates on appeal, that the court should have opened the March 2, 2009 judgment on the basis that the court lacked personal jurisdiction over him under § 52-59b (a). Even assuming that this argument constitutes a meritorious defense, the defendant cannot prevail because of the court’s conclusion that he failed to satisfy the second prong of § 52-212 (a), which requires a showing that the defendant was prevented from offering that defense because of mistake, accident or other reasonable cause. The court found that the defendant’s explanations were inadequate for that purpose. We cannot conclude that that determination was improper.

The defendant argued, both before this court and the trial court, that his absence from the country sufficiently satisfied the second prong of § 52-212 (a), and claimed, in addition, that he was entitled to a statutory three month continuance under General Statutes § 52-87 (b). The defendant’s reliance on § 52-87 (b), however, is misplaced because it rests on a generous reading of selected text in disregard of the broader statutory context. Section 52-87 (d), for example, crucially provides that “[a] continuance or postponement under this section shall not be granted or, if granted, shall terminate if actual notice is shown in accordance with section 52-88.” To that end, General Statutes § 52-88 provides in relevant part: “A continuance, postponement or adjournment, prescribed in section 52-87 or this section, shall not be granted or, if granted, shall terminate whenever the court finds that the absent or nonresident defendant, or his authorized agent or attorney, has received actual notice of the pendency of the case at least twelve days prior to such finding, and thereupon, unless some special reason is shown for further delay, the cause may be brought to trial.” Because the court found that the defendant was given actual notice of the hearing date,* § 52-87 (b) does not apply, and the defendant was therefore not entitled to a continuance.

The defendant claims in the alternative that if § 52-212 bears him no relief, the court’s absence of personal jurisdiction nonetheless, and by itself, renders the March 2, 2009 judgment subject to collateral attack. “Although [General Statutes] §§ 52-212 [opening a judgment upon default] and 52-212a [opening a civil judgment] normally limit the authority [of the trial court] to open judgments to a four month period, these statutes do not preclude the opening of a default judgment that is rendered without jurisdiction over a defendant. The prefatory words of § 52-212a establish that the four month limitation only operates [u]nless otherwise provided by law .... As a matter of law, in the absence of jurisdiction over the parties, a judgment is void ab initio and is subject to both direct and collateral attack.” (Internal quotation marks omitted.) Wilkinson v. Boats Unlimited, Inc., 236 Conn. 78, 83-84, 670 A.2d 1296 (1996). “Atrial court’s authority to open such judgments does not arise from ... § 52-212 (a) or Practice Book § 326 [now § 17-43] but from its inherent power to open a judgment rendered without jurisdiction.” General Motors Acceptance Carp. v. Pumphrey, 13 Conn. App. 223, 228, 535 A.2d 396 (1988). In other words, a court always has the inherent authority to open a default judgment, irrespective of the four month rule and the valid defense and good cause requirement in Practice Book § 17-43 and General Statutes § 52-212 (a), if the judgment was rendered without “jurisdiction of the parties or of the subject matter.” Id.

Nevertheless, our case law directs that the availability of a viable jurisdictional defense does not relieve the defendant of his burden to show reasonable cause for his failure to appear and to defend. See Trichilo v. Trichilo, 190 Conn. 774, 782-83, 462 A.2d 1048 (1983) (court saw “no reason to exempt the failure to raise seasonably jurisdictional issues of fact from [the statutory reasonable cause] requirement” despite conclusion that “facts claimed in [the defendant’s] affidavit, if true, would defeat the action both for lack of jurisdiction and on the merits”).

The judgment is affirmed.

       The defendant thereafter filed an appearance on April 7, 2009.

       Practice Book §17-43 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. . . .”

       The defendant also offers as a defense under § 52-212 (a) that New York General Business Law § 399-e prevents arbitration in this instance. We do not reach the merits of that defense because the defendant’s failure to appear and to defend under § 52-212 (a) is the dispositive issue bearing on this appeal.

       General Statutes § 52-87 (b) provides in relevant part: “If the defendant is not an inhabitant or a resident of this state at the commencement of the action and does not appear therein, the court shall continue or postpone it for three months and may, if it deems further notice advisable, direct such further notice of the pendency of the action to be given to the defendant by publication in some newspaper, or otherwise, as it deems expedient, or may authorize any person empowered to serve process by the laws of the foreign jurisdiction in which the defendant resides to serve upon the defendant a copy of the summons and complaint and of the order of notice. . . .”

       The defendant does not challenge on appeal the court’s finding that he had notice of the scheduled hearing.

       See also Practice Book § 17-43.

       Relying on General Motors Acceptance Corp., the defendant argues that lack of personal jurisdiction requires the opening of a judgment despite noncompliance with the reasonable cause requirement of § 52-212 (a). General Motors Acceptance Corp. is distinguishable, however, because, in that case, the defendant did not have notice of the commencement of the action. Unlike the present matter, where the defendant was given actual notice of the hearing date, the third party defendant in General Motors Acceptance Corp., was never served with a writ of summons and, therefore, had no opportunity to appear and to offer its defense. General Motors Acceptance Corp. v. Pumphrey, supra, 13 Conn. App. 227.


text:
    STATE OF CONNECTICUT v. ANTWON BROWN
    (AC 32397)
    DiPentima, C. J., and Gruendel and Lavine, Js.

      Argued September 23
    officially released November 22, 2011

      Joseph A. Jaumann, special public defender, with whom, on the brief, was John C. Drapp III, special public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, and Jonathan M. Sousa, certified legal intern, with whom, on the brief, were John A. Connelly, former state’s attorney, and Patrick Griffin, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Antwon Brown, appeals from the judgments of conviction of the trial court, rendered after a jury trial, of two counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2). On appeal, the defendant claims that the trial court violated his federal constitutional right against double jeopardy when it determined that the two counts of conspiracy to commit robbery in the first degree were separate offenses rather than a single conspiracy. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts from the evidence presented. On November 11, 2008, the defendant received a cell phone call from his friend, Lonnie Cross, who told the defendant he was coming to pick him up. Cross then picked up the defendant at his home. Adam Mines, another friend, was riding in the front seat. Thereafter, Cross drove to Store 40, a convenience store located at 1276 Meriden Road in Waterbury. Cross informed Mines and the defendant that he was going to rob the store. Mines and the defendant waited in the car while Cross entered the convenience store.

A few moments later, Cross returned to the vehicle and told Mines and the defendant that “everything was good.” Cross then drove to Ideal Package Store, a liquor store located at 408 Hill Street in Waterbury. Cross parked the car on a nearby side street and informed Mines and the defendant that he was going to rob the liquor store. Mines agreed to accompany Cross. They told the defendant to wait in the driver’s seat and keep the engine running, which he did. Cross and Mines exited the store a few minutes later, and the defendant drove away from the store as soon as his accomplices were in the car.

The three men were apprehended later that night, and the defendant was taken to the police station for questioning. The defendant provided a voluntary statement detailing his involvement in the two robberies. Immediately thereafter, the defendant was placed under arrest.

After the court granted a motion to consolidate filed by the state, the state filed a single substitute information on October 8,2009. The first count of the substitute information alleged that on November 11, 2008, at approximately 7:54 p.m., the defendant, with the intent to rob Store 40 at 1276 Meriden Road in Waterbury, “agreed with one or more persons, to wit: Lonnie Cross and Adam Mines, to engage in and cause the performance of such conduct, and any one of them committed an overt act in pursuance of such conspiracy.” The second count of the substitute information alleged that on November 11, 2008, at approximately 8:15 p.m., the defendant, with the intent to rob Ideal Package Store at 408 Hill Street in Waterbury, “agreed with one or more persons, to wit: Lonnie Cross and Adam Mines, to engage in and cause the performance of such conduct, and any one of them committed an overt act in pursuance of such conspiracy.” Following the presentation of evidence, the jury found the defendant guilty on both counts.

On February 9, 2010, the court, sua sponte, ordered the parties to address at sentencing whether the two conspiracy convictions should be merged. On March 26, 2010, after hearing argument from the parties, the court declined to merge the defendant’s two conspiracy convictions, concluding that there was “no evidence from the [defendant’s] confession that the parties . . . agreed at the same time to rob both stores.” The court sentenced the defendant to two concurrent terms of ten years in prison followed by ten years of special parole. This appeal followed.

The defendant claims that his convictions of two counts of conspiracy to commit robbery violate the prohibition against double jeopardy contained in the fifth amendment to the United States constitution. He argues, based on State v. Ellison, 79 Conn. App. 591, 599, 830 A.2d 812, cert. denied, 267 Conn. 901, 838 A.2d 211 (2003), that because of the identical nature of the charges, the participation of the same three individuals, the proximity of the robberies in time and location, the similarity of the crimes and other factors, the two robberies were a single conspiracy. We disagree.

“The standard of review to determine whether the defendant’s constitutional right against double jeopardy was violated is de novo because it is a question of law. . . . The factual findings of the court that [determine] that issue, however, will stand unless they are clearly erroneous.” (Citation omitted.) Id., 598.

“The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. This clause prohibits not only multiple trials for the same offense but also multiple punishment for the same offense. . . . Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Citations omitted; internal quotation marks omitted.) State v. Morris, 49 Conn. App. 409, 417-18, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998). “The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact.” State v. Snook, 210 Conn. 244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924,109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989).

“Some of the factors to consider in the context of whether multiple prosecutions are permitted for multiple conspiracies are the participants, the time period, similarity of the crimes, and the existence of common acts, objectives and a common location. See United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985).” State v. Ellison, supra, 79 Conn. App. 599. In Ellison, this court also considered as evidence of multiple agreements that there were separate discussions. Id., 599-600.

After reviewing the record, we conclude that the court’s factual finding that there were two separate agreements was not clearly erroneous. As the court noted at sentencing, “[t]he theory of the case is that because of the confession, it’s clear the defendant agreed to rob the second store and by inference, there was an agreement to rob the first store, Store 40 . . . suggesting a separate agreement.” There is no evidence to indicate exactly when the defendant, Cross and Mines formed an agreement to rob the first store, but the defendant’s statement indicates that Cross drove to the first store, informed the defendant and Mines that he was going to rob the store, and the defendant and Mines waited in the car. The statement further indicates that the three men then formed an agreement to rob the second store after the successful completion of the first robbery. There was no evidence presented to suggest that the coconspirators reached a single agreement to rob both stores. Therefore, the court’s factual finding that these acts constituted two separate agreements is not clearly erroneous. The defendant’s convictions of two separate conspiracies not arising from the same act or transaction did not violate the defendant’s constitutional right to be free of double jeopardy. Accordingly, we conclude that the defendant failed to satisfy his burden of proving that the prosecutions were for the same offense. See State v. Snook, supra, 210 Conn. 264.

The judgments are affirmed.

In this opinion the other judges concurred.

       Although there was a substitute information with two counts of conspiracy to commit robbery in the first degree, the record contains a separate judgment file for each count. The defendant has appealed from both judgments.

       Although the court sentenced the defendant to concurrent sentences, the defendant argues that the additional conviction subjects him to the adverse consequences that result from more than one judgment of conviction. See State v. Napoleon, 12 Conn. App. 274, 280, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987).

       Although the defendant claims that this double jeopardy claim is grounded in the Connecticut constitution as well, “he has failed to provide us with an independent analysis of his Connecticut constitutional claim. This court, as well as our Supreme Court, has consistently declined to consider criminal state constitutional claims when we have not been provided with an independent analysis of the particular state constitutional provision raised.” State v. Russell, 25 Conn. App. 243, 249, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991). We therefore consider his claim under the federal constitution alone.

       We note that the defendant is not challenging the sufficiency of the evidence for either conviction. Rather, he is only claiming that his constitutional rights were violated by the court’s failure to merge the conspiracy convictions.


author: MIHALAKOS, J.

text:
    LAURA LOSO v. RAYMOND LOSO
    (AC 33040)
    Gruendel, Lavine and Mihalakos, Js.

      Argued September 12
    officially released November 29, 2011

      John J. Bennett, for the appellant (defendant).

      John J. Mager, with whom was Rachel J. Topham, for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

The defendant, Raymond Loso, appeals from the trial court’s ruling on the postjudgment motion for contempt filed by the plaintiff, Laura Loso. On appeal, the defendant claims that the court improperly interpreted a clause in the parties’ modified separation agreement. We conclude that the trial court’s interpretation of that agreement was proper and, therefore, affirm the judgment of the court.

On April 21, 2004, the marriage of the plaintiff and the defendant was dissolved by the court, which incorporated into the judgment the terms of a separation agreement that included, inter alia, an educational support order. See General Statutes § 46b-56c. On November 6, 2006, the court subsequently approved a modification to that agreement concerning the defendant’s obligation to pay a portion of the college educational expenses of their daughter, Sarah. The relevant portion of that modified agreement states that the defendant is “to pay for one-half the cost of Sarah’s college educational expenses for a four year degree net of scholarships or grants subject to the limitation that said cost shall not exceed the tuition for a full-time residential student at UCONN-Storrs.” The agreement further provides that that “provision shall be non-modifiable.”

On July 30, 2010, the plaintiff filed a postjudgment motion for contempt alleging that the defendant failed to pay his portion of Sarah’s educational expenses in accordance with the modified agreement. According to the court, the plaintiff contended that the defendant was obligated to pay $8697 for the fall 2010 semester: one half of the total semiannual cost (meal plan, health insurance, recreation and athletic fees, housing fee and full-time tuition fee, less scholarships and grants) at Sacred Heart University where Sarah had matriculated. The court also stated that the defendant thought he was obligated to pay only $5314 for that period of time: one half of Sarah’s semiannual tuition at Sacred Heart University (less scholarships and grants). In interpreting the modified agreement, the court found that the defendant’s obligation was capped at $4032 for the semester: the full amount of tuition per semester at UCONN-Storrs. The court also concluded that the defendant was not in contempt regarding educational expenses because the modified agreement “was ambiguous, needed clarification; and . . . the defendant made reasonable efforts to contact the plaintiff to discuss the disputed amount and make payment arrangements.”

The defendant now appeals on the basis that the court erred in its determination of his obligation under the cap amount. He contends that he is obligated to pay only one half of the amount of the cap determined by the court, i.e., one half of the full amount of tuition for a full-time residential student per semester at UCONN-Storrs.

We begin our analysis by setting forth the applicable standard of review and principles of law. It is well established that a separation agreement, incorporated by reference into a judgment, “is to be regarded and construed as a contract.” Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). Accordingly, our review of a trial court’s interpretation of a separation agreement “is guided by the general principles governing the construction of contracts.” (Internal quotation marks omitted.) Id. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” (Internal quotation marks omitted.) Id. If a contract is unambiguous within its four comers, “the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Id. “When the language of a contract is ambiguous, [however] the determination of the parties’ intent is a question of fact, and the trial court’s interpretation is subject to reversal on appeal only if it is clearly erroneous.” (Internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 698, 711, 980 A.2d 880 (2009).

Accordingly, to determine our standard of review, we first must ascertain whether the modified agreement is ambiguous. This is a question of law over which our review is plenary. See, e.g., Isham v. Isham, 292 Conn. 170, 181, 972 A.2d 228 (2009). “Contract language is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion . . . .” (Internal quotation marks omitted.) Id. In contrast, an agreement is ambiguous when its language “is reasonably susceptible of more than one interpretation.” Id. Nevertheless, “the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) Id.

Contrary to the characterization by the court, we conclude that the language in the modified agreement pertaining to the apportionment of Sarah’s college educational expenses between the parties is clear and unambiguous. Because one half the cost of educational expenses at Sacred Heart University is greater than the tuition for a full-time residential student at UCONN-Storrs, there is no doubt that the cap amount applies. Nor is there any doubt that the cap amount is the cost of tuition for a full-time residential student at UCONN-Storrs. The first clause of the provision pertaining to the payment of educational expenses — “[t]he defendant agrees to pay for one-half the cost of Sarah’s college educational expenses for a four year degree net of scholarships or grants” — expressly indicates that the defendant is obligated to pay one half of Sarah’s educational expenses less scholarships and grants. The second clause of that provision, which is the source of the parties’ disagreement, provides that that arrangement is “subject to the limitation that said cost shall not exceed the tuition for a full-time residential student at UCONN-Storrs.” The defendant’s payment obligation is therefore capped at the full amount of tuition for a full-time residential student at UCONN-Storrs.

Yet, the defendant argues that the adjective “one-half’ that modifies the noun “cost” in the first clause of the sentence, which determines his obligation when the cap does not apply, simultaneously modifies the noun “tuition” in the second clause of the sentence in which his payment obligation is capped. In this sense, the defendant implicitly asks us to change long settled rules of construction in order to effectuate the modification of a noun by an adjective in an entirely separate clause of the provision. Not even the most generous interpretation of the modified agreement supports the defendant’s contention that his obligation to pay his daughter’s college expenses is capped at one half of the tuition of a full-time residential student at UCONN-Storrs.

The judgment is affirmed.

In this opinion the other judges concurred.

       The University of Connecticut at Storrs is referred to in this opinion as UCONN-Storrs.

       The plaintiff also alleged that the defendant failed to comply with the court’s order by wilfully procuring new health insurance coverage for Sarah with a higher deductible and failing to provide automobile insurance for the benefit of Sarah; however, these issues are not challenged on appeal.

       In its ruling on the posfjudgment motion for contempt, the court originally stated that the defendant was obligated to pay $10,628 toward Sarah’s college educational expenses for the fall 2010 semester. However, as it indicated in its corrected, revised and clarified ruling, that figure was based on the court’s erroneous finding that the tuition for a full-time residential student at UCONN-Storrs was $16,128 per semester, hi its corrected ruling, and further articulation, the court clarified that the tuition for a full-time residential student at UCONN-Storrs was actually $8064 per year and that the defendant’s semiannual obligation — capped at the full amount of tuition per semester at UCONN-Storrs — was therefore $4032.