text:
    Barbara Coscina v. William A. Coscina
    (9175)
    Daly, Foti and Lavery, Js.
    Argued January 8
    decision released March 5, 1991

      Nicholas E. DeNigris, for the appellant (defendant).

      John R. Logan, for the appellee (plaintiff).
   Daly, J.

The defendant appeals from a judgment rendered in favor of the plaintiff declaring that the defendant was obligated to pay certain medical insurance premiums on behalf of the plaintiff and awarding monetary damages to compensate her for prior medical insurance premiums paid. The defendant claims that the court improperly found the parties’ separation agreement to be ambiguous and incorrectly construed it as warranting the defendant to pay basic medical insurance premiums for the plaintiff’s coverage. The defendant also claims that the court should have found that the plaintiff’s complaint was barred by the doctrine of laches. We disagree and affirm the judgment of the trial court.

In brief, the trial court relied on the following facts. The parties were married in 1952. The plaintiff did not work outside the home except for providing some services to her husband in his private dental practice. Two children were born from this union, both are now adults. The plaintiff suffered from mental health problems during the marriage and thereafter. The defendant and plaintiff signed a marital distribution agreement on May 3,1976, that was stipulated as part of a subsequent divorce decree obtained in Haiti.

The plaintiff brought an action for a declaratory judgment on August 25,1988, wherein she sought an interpretation of paragraph three of the marital distribution agreement. The plaintiff argued and the trial court concurred that the agreement was ambiguous and that the evidence supported the conclusion that the parties intended the defendant to provide the plaintiff with basic medical insurance. This appeal followed.

A plaintiff may seek a declaratory judgment from the court, pursuant to Practice Book § 390 (b), when there is “an issue in dispute or an uncertainty of legal relations . . . between the parties. . . . [TJhere must appear a sufficient practical need for [a] determination . . . in the light of the particular circumstances involved in each case.” Bania v. New Hartford, 138 Conn. 172, 175, 83 A.2d 165 (1951). Practice Book § 390 (c) “ ‘allows the trial court wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete.’ ” Progressive Casualty Ins. Co. v. DiGangi, 4 Conn. App. 137, 140, 492 A.2d 548 (1985) rev’d on other grounds sub nom. Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 523 A.2d 477 (1987). “Subject matter jurisdiction over actions for declaratory judgment exists despite the availability or adequacy of other legal remedies.” Progressive Casualty Ins. Co. v. DiGangi, supra, 139.

In prior cases where a plaintiff was seeking to clarify a marital dissolution agreement, a motion for clarification of judgment was employed with approval. See Holcombe v. Holcombe, 22 Conn. App. 363, 366, 576 A.2d 1317 (1990), and cases cited therein. The trial court here accepted the plaintiff’s complaint for a declaratory judgment coupled with a request for monetary damages. Although an alternative form of action was available, namely the motion for clarification of judgment, we do not disapprove of the trial court’s proceeding as it did.

The trial court correctly determined that the paragraph in dispute was ambiguous and in need of determination in order to settle the legal obligations between the plaintiff and the defendant. Practice Book § 390. Furthermore, under Practice Book § 391 (d), a plaintiff may request other relief, in this case monetary damages, in conjunction with an action for a declaratory judgment. Cf. SantaMaria v. Manship, 7 Conn. App. 537, 510 A.2d 194 (1986). Although a motion for clarification of judgment was an option, it would not have been speedy and convenient for the trial court to request a change of the pleadings. The plaintiffs request for a declaratory judgment clearly afforded her an appropriate and complete remedy. See Progressive Casualty Ins. Co. v. DiGangi, supra. Thus, the trial court did not abuse its discretion by proceeding as it did.

The paragraph contested in this case reads as follows: “The husband shall pay all MEDICAL, HOSPITAL and DENTAL expenses in excess of Blue Cross and CMS expenses, excluding mental illness, incurred by the wife until such time as she shall remarry. The wife agrees to execute any and all necessary insurance forms for the collection of any sums due covered by Medical Insurance maintained by the husband. The husband shall maintain for the wife automobile insurance; said insurance shall be at least the minimum standard required by the laws of the State of Connecticut.”

The trial court found that this paragraph was ambiguous regarding the basic medical insurance, Blue Cross and CMS, to be maintained by the husband. Although the first sentence clearly mandates that the husband pay expenses in excess of basic medical coverage, excluding mental illness, the second sentence is problematic. The phrase “medical insurance maintained by the husband” could refer to any medical insurance the husband chose to maintain, or, refer to the medical insurance coverage he was then maintaining at the time the agreement was executed. Thus, we agree with the trial court’s conclusion that paragraph three of the agreement is ambiguous.

Once the trial court determined that the paragraph in question was ambiguous, it was left with the task of ascertaining the parties’ intent. Marsico v. Marsico, 195 Conn. 491, 493, 488 A.2d 1248 (1985); Kaplan v. Kaplan, 8 Conn. App. 114, 118, 510 A.2d 1024 (1986). The trial court’s thorough memorandum of decision articulates the facts relied on to determine the parties’ intent at the time the agreement was negotiated. The trial court concluded that the husband was obligated to maintain basic medical coverage for the plaintiff as he had been doing throughout the marriage, and for some time after the divorce. This court finds ample evidence in the record to support the trial court’s factual determination.

The burden of proof is on the party alleging laches to establish that defense. Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 1230 (1987). In order to establish this defense, the defendant must prove that the plaintiff unreasonably and inexcusably delayed bringing suit, and that the defendant suffered prejudice as a result of the delay. Id. The defendant cannot be said to have suffered prejudice merely by the passage of time and the nonpayment of money due from him. Brock v. Cavanaugh, 1 Conn. App. 138, 140, 468 A.2d 1242 (1984); see Bozzi v.Bozzi, 177 Conn. 232, 239-41, 413 A.2d 834 (1979).

Here, the plaintiff suffered from a mental illness that occasioned her delay in contesting the agreement. The plaintiff also made demands on the defendant for the payment of her basic medical coverage during the time in question, but was not successful. Although the defendant is now in circumstances that may make it difficult to provide the plaintiff with basic medical coverage, this factor is relevant to mitigation of payment orders, not to prejudice. Therefore, the defendant has failed to establish sufficient proof to support the defense of laches.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Eric Anthony
    (8969)
    Dupont, C. J., O’Connell and Landau, Js.

      Argued November 5, 1990
    decision released February 22, 1991

      Eric Anthony, pro se, the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom were John O’Reilly, assistant state’s attorney, and, on the brief, John Bailey, state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant was found guilty, after a court trial, of one count of creating a public disturbance in violation of General Statutes § 53a-181a and one count of simple trespass in violation of General Statutes § 53a-110a. Both statutory violations are infractions. The defendant was originally charged with criminal trespass in violation of General Statutes § 53a-107 and interfering with a police officer in violation of General Statutes § 53a-167a (a), both of which are misdemeanors.

The defendant raises five claims on appeal. The defendant contends that the court, Norko, J., improperly found probable cause for his warrantless arrest. He further asserts that the court, Smith, J., (1) lacked personal and subject matter jurisdiction, (2) denied the defendant his right to discovery, (3) abused its discretion in refusing to consider a brief on the defenses of necessity and justification, and (4) abused its discretion throughout the course of the trial so that the defendant was deprived of his right to a fair trial.

The trial court could have found reasonably certain facts. On June 17, 1989, the defendant was involved in a demonstration that occurred in a private shopping center parking lot in West Hartford. The demonstration’s purpose was to prevent the performance of abortions. During the course of the protest, Officer Steven Looby saw the defendant break through a police barricade and rush toward a bus, which was about to leave the parking lot to transport demonstrators who had been arrested to police headquarters. The defendant then crawled underneath the bus to prevent it from moving and had to be pulled out from under it by Looby. Two days later, after the defendant’s arrest, he was arraigned along with approximately 260 other demonstrators who had also been arrested. The court found probable cause for criminal trespass and interfering with a police officer, but the record is unclear as to whether the defendant pleaded to these criminal charges. Approximately one week later, the defendant posted the bond set by the court and was released from custody.

About a month before the trial was to begin, the state filed a substitute information reducing the charges against the defendant to infractions. The defendant claimed that the substituted charges of simple trespass and creating a public disturbance were ridiculous and refused to enter a plea. The court entered not guilty pleas for the defendant. The case proceeded to trial, and the court found the defendant guilty of both infractions.

I

The defendant first argues that his convictions should be reversed because the court improperly found probable cause. The defendant claims that he was deprived of his right to a separate and independent judicial determination of probable cause pursuant to the constitution of Connecticut, article first, § 9, and Practice Book § 650 because he was arraigned with approximately 260 other people. He further claims that he was prejudiced by the court’s finding of probable cause because he could not credit the time that he spent in jail before he made the bail against his punishment, the fines that were imposed for the infraction violations. The state contends that the court properly found probable cause for the defendant’s arrest and that the defendant’s argument concerning his inability to credit time served against the fine imposed is moot because no court can, after the serving of jail time, provide any practical relief.

The defendant is correct in asserting that he was entitled to an independent, judicial determination of probable cause in a nonadversary proceeding pursuant to Practice Book § 650 because he was arrested without a warrant and was not released from custody at the time of the arraignment. Under the precepts of State v. Fleming, 198 Conn. 255, 263, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), however, even if the defendant did not receive the rights enumerated in Practice Book § 650 and article first, § 9, of the Connecticut constitution, the judgment of the trial court must stand.

“Where the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction.” State v. Fleming, supra. The fairness of a subsequent prosecution is impaired where evidence, obtained as a direct consequence of an illegal arrest, is admitted against the defendant at trial. State v. Ostroski, 201 Conn. 534, 555, 518 A.2d 915 (1986); State v. Ryerson, 201 Conn. 333, 338, 514 A.2d 337 (1986).

Here, the defendant does not claim that his trial was tainted by evidence obtained as a direct consequence of his allegedly illegal arrest and detention. Furthermore, no illegally obtained evidence was introduced at trial. The record reveals that the defendant received a fair trial.

In an attempt to circumvent Fleming and its progeny, the defendant argues that State v. Mitchell, 200 Conn. 323, 512 A.2d 140 (1986), controls. Mitchell, however, is distinguishable. Unlike the defendant here, the defendant in Mitchell was entitled to an adversarial probable cause hearing as mandated by the Connecticut constitution. The Mitchell court held that an adversarial probable cause hearing is a critical stage of the prosecution of those charged with crimes punishable by death or life imprisonment, and that under our state constitution, such a hearing is a jurisdictional prerequisite to continuing a prosecution. State v. Mitchell, supra, 332. As a result, the court concluded, “an invalid finding of probable cause at such a hearing undermines the court’s power to hear the case at trial.” Id. The holding in Mitchell, therefore, is that there can be appellate review of a probable cause finding in crimes punishable by death or life imprisonment because of the unique nature of the express constitutional guarantee in such cases.

In the present case, the defendant was not entitled to an adversarial probable cause hearing because he was not charged with a crime punishable by death or life imprisonment. Even if the trial court improperly found that probable cause existed, the subsequent judgments of conviction of the defendant would not be void. State v. Fleming, supra.

The defendant next claims that he was prejudiced because he spent time in jail that he was unable to credit against the fines eventually imposed for punishment. We agree with the state that this claim is moot because no practical relief can be afforded to the defendant. Connecticut Resources Recovery Authority v. Freedom of Information Commission, 19 Conn. 489, 493-94, 562 A.2d 1145 (1989).

II

The defendant next contends that the court lacked subject matter jurisdiction over the infractions because the infraction prosecution here was initiated by an assistant state’s attorney rather than by the local or the state police. Thus, the conviction, he argues, is null and void ab initio as an ultra vires act of the court. He relies on General Statutes § 51-164o for this proposition. He claims, as well, that the court also lacked jurisdiction in personam because he never pleaded to the infractions. We disagree with the defendant’s jurisdictional challenges.

The authority of a court to decide the cause of action presented to it involves its jurisdiction. LaReau v. Reincke, 158 Conn. 486, 492, 264 A.2d 576 (1969). There are three requirements that must be satisfied for a court to have jurisdiction. First, the case at issue must belong to the general class of cases over which the court has cognizance. Second, the parties must have been properly served and brought before the court. Third, the issue to be decided must be alleged in the complaint. Telesco v. Telesco, 187 Conn. 715, 719-20, 447 A.2d 752 (1982). Only the first two requirements are at issue here. We find that both have been satisfied.

The defendant concedes that General Statutes § 51-164s confers original jurisdiction upon the Superior Court to hear all causes of action except those causes of action over which the Probate Court has jurisdiction. The defendant, however, argues that the court was stripped of its original jurisdiction to hear the infractions because the allegedly exclusive procedure for the initiation of infraction prosecutions established in General Statutes § 51-164o was not followed. The defendant’s reliance on this statute is misplaced.

General Statutes § 51-164o does not affect or address the subject matter jurisdiction of the Superior Court. It does not, expressly or impliedly, provide that prosecutions for infractions may not be initiated by a prosecuting authority. It allows the police to initiate such prosecutions but does not prohibit such prosecutions by a state prosecutor.

The state is not required by the constitution to use a particular type of charging document when prosecuting a crime. State v. Weisser, 9 Conn. App. 255, 258 n.1, 518 A.2d 655 (1986), cert. denied, 202 Conn. 803, 519 A.2d 1207 (1987) (Spallone, J., concurring). Misdemeanors, violations and infractions may be prosecuted by either information or complaint. Practice Book § 616; State v. Weisser, supra, 258-59 n.1.

In Weisser, this court stated that the purpose of establishing the infraction of creating a public disturbance that replicated in part the existing offense of disorderly conduct, a class C misdemeanor, was to give the police, in addition to the prosecuting authorities, the discretion to charge a person with an infraction where deemed appropriate. State v. Weisser, supra, 257, citing 26 S. Proc., Pt. 8, 1983 Sess., p. 2535.

Similarly, the infraction of simple trespass, which was also created by Public Acts 1983, No. 83-276, the same act that created the infraction of creating a public disturbance, duplicates in part the language used in General Statutes § 53a-109, criminal trespass in the third degree, a class C misdemeanor. It follows that the purpose of replicating the language of that offense in the infraction of simple trespass was to enable both the police and prosecuting authorities to bring charges of simple trespass against a person. See State v. Weisser, supra; see also 26 S. Proc., Pt. 8, 1983 Sess., p. 2535.

In the present case, the defendant was charged with the infractions of creating a public disturbance and simple trespass brought in a substitute information by an assistant state’s attorney. It was within the prosecuting authority’s discretion to bring these charges in an information. See State v. Weisser, supra. It did not matter, therefore, whether the charges were brought by a prosecuting authority or by the state or local police. The defendant cannot complain that the prosecutor proceeded with the infraction violations that imposed lesser punishments, rather than choosing to proceed with the more serious criminal charges. See State v. Steinman, 20 Conn. App. 599, 608, 569 A.2d 557, cert. denied, 214 Conn. 806, 573 A.2d 319 (1990). We conclude, therefore, that the charges were properly brought and that the court had Subject matter jurisdiction.

The defendant also argues that the court lacked personal jurisdiction because he did not plead to the infraction violations that were brought in the substitute information and was not originally arrested for the infraction violations. The defendant does not claim that he was prevented from pleading guilty or obtaining a court trial. Compare State v. Piskorski, 177 Conn. 677, 748, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

Personal jurisdiction may be acquired either by consent of the accused or by waiver unless an objection is properly preserved. State v. Baez, 194 Conn. 612, 616, 484 A.2d 236 (1984); State v. Brown, 8 Conn. App. 248, 253, 512 A.2d 965 (1986). An accused waives his objection to personal jurisdiction by pleading not guilty and by going to trial. State v. Baez, supra; State v. Brown, supra.

In this case, the defendant waived any objection to personal jurisdiction. Although the defendant argues that he did not plead to the infraction violations, the record reveals otherwise. By pleading not guilty and by proceeding to trial, the defendant waived the objection to personal jurisdiction. Furthermore, one cannot avoid prosecution for a crime by the simple tactic of refusing to plead to the crime.

We find, therefore, that the court had both subject matter and personal jurisdiction and, thus, that the defendant’s challenges to jurisdiction must fail.

Ill

The defendant next claims that the court effectively and repeatedly denied him his right to discovery thereby depriving him of a fair trial.

Additional facts are germane to the disposition of this issue. The defendant filed a motion for discovery requesting the disclosure of any exculpatory material and requesting, among other things, “all photographs of the defendant which the state intends to introduce as evidence at trial . . . any and all . . . video tape recordings obtained by either law enforcement agents or cooperating individuals which involve this defendant . . . and which relate to any of the allegations set forth in the information . . . .” The defendant also requested a statement of the essential facts. The court granted both the discovery motion and the request for a statement of the essential facts.

On the eve of the trial, the defendant complained that the state had not complied with the court’s discovery order and moved to dismiss the case pursuant to General Statutes § 54-56 claiming that the state’s failure to comply with the discovery order had prevented him from preparing his defense. On appeal, the defendant contends that if the state had complied with his discovery motion, he would have been able to discover other witnesses whose testimony might have differed from the testimony of Looby, the state’s chief witness, and thus the defendant might have been able to exculpate himself or to impeach the credibility of Looby. The defendant admits that he received a statement of the essential facts. Practice Book § 625.

The defendant should have moved for sanctions pursuant to Practice Book § 747, rather than moving for a dismissal pursuant to General Statutes § 54-56. Section 747 sets forth the sanctions available when a prosecuting authority fails to comply with a discovery order. The court, nonetheless, treated the defendant’s motion as if it had been made pursuant to Practice Book § 747. Finding that the state had complied with the court’s discovery order, the court proceeded with the trial. Later in the trial, the court expressly informed the defendant that it had denied his motion to dismiss.

Although, pursuant to Practice Book § 747, the trial court has broad discretion in applying sanctions for failure to comply with discovery orders; State v. Festo, 181 Conn. 254, 264, 435 A.2d 38 (1980); State v. Fraenza, 9 Conn. App. 228, 237, 518 A.2d 649 (1986), cert. denied, 202 Conn. 803, 519 A.2d 1206 (1987); in this case the court, having determined that the state had complied with the discovery ordered, refused to apply any sanctions.

The defendant argues that the state did not comply with the discovery order and, further, that the failure to comply is a per se violation of the order requiring dismissal of the charges.

“The purpose of criminal discovery is to prevent surprise and to afford the parties a reasonable opportunity to prepare for trial.” State v. Festo, supra, 265. After inquiring of both the defendant and the state, the court found that (1) the defendant had received a statement of the essential facts, (2) the defendant was not surprised that the state was ready to proceed, (3) the state intended to prove its case based entirely on in-court testimony, that is, none of the items that were requested by the defendant, namely the photograph of him when he was arrested at the demonstration and the videotape of the event, were to be used in the prosecution’s case-in-chief, and (4) the state did not have any exculpatory material in its possession. In light of these findings, the court denied the defendant’s motion to dismiss.

The state relied solely on oral testimony to prove its case. Looby, the state’s chief witness, testified that a videotape of the area existed but that he was not certain that the particular area in which it was alleged that the defendant had crawled under the bus was shown in that video. Looby also testified that there were photographs of some of the other protesters, as well as a photograph of the defendant. The state did not use any photographs or the videotape as evidence. The court concluded that it had not been shown by the defendant that either the photographs or the videotape was exculpatory.

The thrust of the defendant’s defense was that his behavior was warranted because of his belief that human life was endangered. The photographs and videotape are relevant, if at all, to the behavior of the defendant and are not relevant to his defense. We conclude that the videotape and photographs were not exculpatory within a Brady or statutory context. General Statutes § 54-86c; Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); see State v. Crumble, 24 Conn. App. 57, 585 A.2d 1245 (1991). The dismissal of criminal charges as a sanction against the state for failing to comply with a discovery order is an extreme remedy. See State v. Cosgrove, 186 Conn. 476, 486, 442 A.2d 1320 (1982); State v. Brown, 8 Conn. App. 248, 251, 512 A.2d 965 (1986). We conclude in this case that the court did not abuse its discretion in refusing to dismiss the charges against the defendant as a sanction for the failure to comply with the discovery order.

IV

The defendant next argues that the court abused its discretion in refusing to permit the defendant to assert the defenses of necessity and justification, thereby depriving him of his fundamental due process right to present a defense. We do not agree.

“Where an offer of proof is made with respect to a defense and it is clear from the offer of proof that the defense is insufficient as a matter of law, the trial court may properly refuse to permit evidence of the defense to be submitted to the jury.” State v. Drummy, 18 Conn. App. 303, 309-10, 557 A.2d 574 (1989); see also State v. Woods, 23 Conn. App. 615, 583 A.2d 639 (1990). The defendant briefly argued the applicability of the defense of necessity but was not allowed to submit a brief on it. The court did not abuse its discretion in failing to consider the defendant’s brief because the defendant’s argument, even if believed and assumed to be supported by evidence, was insufficient as a matter of law to establish a defense of necessity. See State v. Drummy, supra, 310.

This court has recently adopted a definition of the common law defense of necessity that requires a showing by the defendant: “ ‘(a) that there [was] no . . . legal alternative available, (b) that the harm to be prevented [was] imminent, and (c) that a direct causal relationship [may] be reasonably anticipated to exist between defendant’s action and the avoidance of harm.’ United States v. Seward, 687 F.2d 1270, 1275 (10th Cir. 1982), cert. denied, 459 U.S. 1147, 103 S. Ct. 789, 74 L. Ed. 2d 995 (1983); State v. Marley, 54 Haw. 450, 472, 509 P.2d 1095 (1973).” State v. Drummy, supra, 309.

In this case, the trial court determined that the harm to be prevented as alleged by the defendant is not recognized as an injury under law. Public Acts 1990, No. 90-113; Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Since this defense was insufficient as a matter of law, the court properly refused to allow the defendant to raise it.

The defendant claims that the trial court refused to allow him to make the statutory defense of justification. The court never ruled one way or the other on the applicability of this defense. The defendant’s brief on appeal on this issue contains no more than the bare assertion that he was entitled to raise this defense and was entitled to submit a brief to the trial court. The defendant has abandoned the claim because he has failed to brief it. See Practice Book § 4065; Liscio v. Liscio, 204 Conn. 502, 507, 528 A.2d 1143 (1987). Furthermore, even if we were to rely on the trial court brief, which is almost equally bare of argument, justification is not a defense to an infraction. General Statutes §§ 53a-16 through 53a-24.

V

The defendant advances a claim of judicial misconduct. He contends that the sarcastic comments of the court resulted in “a repeated pattern of bullying, shouting [at] and insulting” the defendant, thereby depriving him of his right to a fair trial. The state argues that this claim is not reviewable because it was not preserved at trial or, in the alternative, that the defendant did receive a fair trial.

We first note that the defendant did not preserve this claim at trial because he did not object to the court’s remarks, move for a mistrial, or move to disqualify the judge. See State v. Cazimovski, 20 Conn. App. 190, 565 A.2d 254 (1989). “Claims of improper judicial commentary .| . . have been held to be appropriate subjects for appellate review under Evans”-, State v. Jenkins, 8 Conn. App. 35, 41, 510 A.2d 1370 (1986); or under the doctrine of plain error. Cameron v. Cameron, 187 Conn. 163, 444 A.2d 915 (1982); Tatro v. Tatro, 24 Conn. App. 180, 189, 587 A.2d 154 (1991).

We must determine whether any of the court’s statements about which the defendant complains deviated from the impartiality required of the court to such an extent that they clearly deprived the defendant of his right to a fair trial. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); see State v. Jenkins, supra.

We first note that comments of a trial court that are characterized as “ ‘bullying and sarcastic’ . . . are difficult to substantiate since a reviewing court is limited to an examination of a printed record and lacks the benefit of observing the exchanges between the participants involved in the conduct of the trial.” State v. Jenkins, supra, 42.

“The judge took no position of advocacy regarding the outcome of the case, and made no improper comments on the significance of the evidence presented. . . . Further, neither the judge’s comments nor his questions impugned the defendant’s credibility.” State v. Siller, 12 Conn. App. 395, 400, 530 A.2d 1106, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). In sum, the court’s allegedly improper remarks did not affect the defendant’s ability to defend himself. Id. On the basis of the cold transcript alone, we conclude that there was no impropriety in the court’s comments and, thus, that no constitutional violation clearly existed. The defendant cannot prevail on this claim of constitutional error that he did not preserve at trial because he has not met all of the conditions of State v. Golding, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       On the date of the oral argument of this case, a motion to consolidate it with two other cases, State v. Jennifer Clarke, A.C. 9151, and State v.
        John Grant, A.C. 9571, was filed. The motion sought, in the alternative, consolidation of the Clarke and Grant cases. On November 16, 1990, the motion to consolidate was denied.

       The constitution of Connecticut, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
      Practice Book § 650 provides: “If a defendant has been arrested without a warrant and has not been released from custody by the time of the arraignment or is not released at the arraignment pursuant to Sec. 658, the judicial authority shall, unless waived by the defendant, make an independent determination as to whether there is probable cause for believing that the offense charged has been committed by the defendant. Such determination shall be made in a nonadversary proceeding, which may be ex parte, at which affidavits or testimony under oath shall be received. If no such probable cause is found, the judicial authority shall discharge the defendant.”

       Amendment XVII to the Connecticut constitution amended article first, § 8, to provide in relevant part: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.” (Emphasis added.)

       General Statutes § 51-164s provides in part that “[t]he superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute.”

       General Statutes § 51-164o provides in relevant part: “[A] nonresident of the state, if summoned for allegedly having committed an infraction, shall be required to post a cash bond or a guaranteed bail bond certificate, as provided in section 14-140a, with the local or state police issuing the summons and shall not be permitted to plead or pay by mail as provided in section 51-164n.” The state and the defendant agree that there is no other section involving the issuance of a summons for infractions to residents. The defendant’s argument assumes that the statute requires that all infractions must be instituted by summons of the local or state police whether the summons relates to residents or nonresidents.
      The statute has since been amended by Public Acts 1990, No. 90-213. The amendment made no change in the language herein quoted.

       The following colloquy discloses that although the defendant claimed that he was not entering a plea, what he said was tantamount to not guilty pleas:
      “Mr. Anthony: I want to fight this, Your Honor.
      “The Court: It’s not called fighting it. It’s called, you want your trial.
      “Mr. Anthony: All right, I want to make a special challenge to the charge here.
      “The Court: Go ahead.
      “Mr. Anthony: The special challenge is the charges are ridiculous.
      “The Court: Okay, that’s noted . . . .”
      The defendant then said that he was not entering a plea; the court responded that his pleas had already been entered in light of the above dialogue. The assistant state’s attorney asked the court to note pro forma not guilty pleas, and the court did so.

       General Statutes § 54-56 provides in part that a court may, upon a motion of the defendant, “dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”

       In his brief, the defendant also mentions that a bill of particulars, though requested, was never filed. He, however, neglected to brief the issue of how this failure to file a bill of particulars prejudiced him. Since this claim was not adequately briefed, we decline to address it. See Practice Book § 4065; Liscio v. Liscio, 204 Conn. 502, 507, 528 A.2d 1143 (1987).

       The state submitted the following statement of essential facts on September 15, 1989: “On or about June 17, 1989, at or near the Summit Women’s Center, 345 North Main Street, West Hartford, Conn., the defendant, Eric Anthony, knowing that he was not licensed or privileged to do so, entered and remained on premises after an order to leave or not to enter was personally communicated to him by the owner of the premises or other authorized person, and obstructed, resisted, hindered or endangered a police officer in the performance of his duties.” Although the state filed this statement with respect to the criminal charges with which the defendant was initially charged, the facts cited therein also form the basis for the infraction violations of which the defendant was ultimately found guilty. Thus, the defendant was not prejudiced because the substituted counts arose out of the same factual matrix as the original counts. See State v. Huff, 10 Conn. App. 330, 346, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).

       Practice Book § 747 provides: “If the prosecuting authority fails to comply with Sec. 740, the judicial authority may, on motion of the defendant or on his own motion, grant appropriate relief, which may include one or more of the following:
      “(1) Requiring the prosecuting authority to comply;
      “(2) Granting the defendant additional time or a continuance;
      “(3) Relieving the defendant from making a disclosure required by Sec. 756, prohibiting the prosecuting authority from introducing specified evidence, or dismissing the charges; or
      “(4) Entering such other order as he deems proper.”

       We are not aware of any reported decision in this jurisdiction in which a trial court has dismissed charges pending against a defendant on the basis of the state’s failure to comply with a discovery order. State v. Brown, 8 Conn. App. 248, 251 n.3, 512 A.2d 965 (1986), citing A. Spinella, Connecticut Criminal Procedure c. 7, pp. 509-10.

       The defendant’s brief that had been prepared for submission to the trial court is part of the Appellate Court record.

       General Statutes §§ 53-29 through 53-31b had made abortion a crime. Even though these statutes were not repealed until 1990; Public Acts 1990, No. 90-113; they were unenforceable since 1973 in light of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Although Public Act No. 90-113 was not in effect at the time of the demonstration, it evinces the legislature’s intent to adopt a policy in favor of legalized abortion. Such a policy had already been in effect in the state even before the legislature acted. See, e.g., State v. Orsini, 187 Conn. 264, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982).


author: Heiman, J.

text:
    Ralph M. Steinberg et al. v. Frederick Scott Reding, Executor (Estate of Corrine I. Reding)
    (9050)
    Spallone, O’Connell and Heiman, Js.
    Argued January 16
    decision released March 12, 1991

      Lawrence M. Lapine, with whom, on the brief, was Christopher R. Bello, for the appellant-appellee (defendant).

      Jack D. Garamella, with whom, on the brief, was Paula Flanagan, for the appellees-appellants (plaintiffs).
   Heiman, J.

The defendant appeals and the plaintiffs cross appeal from a judgment rendered in favor of the plaintiffs, whereby the trial court awarded the plaintiffs specific performance of a purported contract to sell real estate, or, in the alternative, should the plaintiffs no longer want to purchase that real estate within 120 days of the final judgment, it ordered the defendant to return the plaintiffs’ deposit in the amount of $29,000. In his appeal, the defendant challenges only the court’s award of specific performance. We reverse the judgment in part.

The dispositive issue in this case is whether the evidence established the existence of a contract that is susceptible to specific performance. We conclude that the court improperly found the existence of a contract.

The facts necessary to a resolution of this case may be briefly summarized as follows. The plaintiffs and the defendant’s decedent began negotiations for the purchase of land that is owned by the defendant and abuts the plaintiffs’ existing property. Although both parties agree that such a negotiation took place, they are at issue over what the resulting contract encompassed. The plaintiffs claim that the contract was for the purchase of 8.003 acres of land, together with a right-of-way, for a purchase price of $90,000. The defendant, on the other hand, claims that the contract was for the sale of 8.003 acres of land without any right-of-way. In their suit, the plaintiffs sought specific performance of the contract that they claimed existed to convey 8.003 acres together with a right-of-way.

The court concluded that a contract existed, but not the one for which the plaintiffs’ sought specific performance. The judgment effectively orders the specific performance of a contract that the plaintiffs claim does not exist.

The confusion as to the terms of the contract is borne out by the fact that the judgment of specific performanee in favor of the plaintiffs orders specific performance of a contract that the plaintiffs never sought to enforce in their complaint.

In order to form a binding and enforceable contract, there must exist an offer and an acceptance based on a mutual understanding by the parties. Cavallo v. Lewis, 1 Conn. App. 519, 520, 473 A.2d 338 (1984). The mutual understanding must manifest itself by a mutual assent between the parties. Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981). Further, the contract must be definite and certain as to its terms and requirements. Augeri v. C. F. Wooding Co., 173 Conn. 426, 429-30, 378 A.2d 538 (1977).

Here, the trial court ordered specific performance of a contract that was not the contract claimed by the plaintiffs to be the one that existed between the parties. Thus, the relief granted was not the relief sought. It is not within the province of the court to create new and different agreements. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 282, 492 A.2d 180 (1985); Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 55, 453 A.2d 771 (1983).

Our review of the record, transcripts and briefs leads us to conclude as a matter of law, that the court improperly held that a valid contract for the sale of land existed between the parties.

On the defendant’s appeal, the judgment is reversed as to the order of specific performance only. On the plaintiffs’ cross appeal, the judgment is affirmed. The case is remanded with direction to render judgment in favor of the plaintiffs ordering the defendant to return to the plaintiffs their deposit in the amount of $29,000 without interest.

In this opinion the other judges concurred.

       The plaintiffs in this action are Ralph M. Steinberg and Suzanne Stein-berg, husband and wife.


author: Foti, J.

text:
    Na-Mor, Inc. v. Ralph Roballey et al.
    (9129)
    Daly, O’Connell and Foti, Js.
    Argued January 7
    decision released March 12, 1991

      Thomas J. Rosati, for the appellants (defendants).

      Brian McCormick, for the appellee (plaintiff).
   Foti, J.

The defendants appeal from the granting of the plaintiff’s motion for summary judgment. The defendants claim that the court improperly found that no genuine issue of material fact existed to preclude the granting of the motion for summary judgment for the plaintiff on its complaint and against the defendants on their counterclaim. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. In September, 1989, the plaintiff, holder of a $200,000 purchase money second mortgage on real estate consisting of four residential apartment buildings, which it sold to the defendants on September 10, 1987, for $965,000, began foreclosure proceedings. The mortgage note signed by the defendants called for a maturity date of two years. The foreclosure complaint alleged that the defendants defaulted in failing to pay the mortgage upon maturity. The defendants filed a disclosure of defense and a counterclaim that alleged that the plaintiff had breached the terms of the original sale contract by reducing the term of the mortgage note from three to two years and then coerced the defendants into purchasing the property with that two year maturity date, and that the plaintiff had misrepresented the terms on which it would grant the defendants an extension of the purchase money mortgage note.

The pleadings were closed and on April 5,1990, the plaintiff filed its motion for summary judgment supported by an affidavit by the plaintiffs president and fifteen exhibits, along with its memorandum of law.

On the morning of the hearing, the defendants filed their counteraffidavit and memorandum of law. The court, without memorandum, granted the motion in the plaintiff’s favor on both the complaint and the counterclaim. Neither party requested an articulation.

“ ‘Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” ’ ” Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1990). “The test is whether a party would be entitled to a directed verdict on the same facts.” Connelly v. Housing Authority, 213 Conn. 354, 364, 567 A.2d 1212 (1990); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969).

“A ‘material’ fact has been defined adequately and simply as a fact which will make a difference in the result of the case.” United Oil Co. v. Urban Redevelopment Commission, supra, 379; Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990); Catz v. Rubenstein, 201 Conn. 39, 48, 513 A.2d 98 (1986). “Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.” Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). It is not enough, however, merely to assert the existence of such a disputed issue; id.; the genuine issue aspect requires the party “ ‘to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.’ ” (Emphasis added.) Sheridan v. Board of Education, 20 Conn. App. 231, 239, 565 A.2d 882 (1989), quoting United Oil Co. v. Urban Redevelopment Commission, supra, 378-79; note, 48 Colum. L. Rev. 780, 781. “[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” Connell v. Colwell, supra.

The defendants rely solely on their disclosure of defense and counterclaim, and on their affidavit to support their contentions. The relevant portion of their affidavit, signed by the named defendant, neither alleges nor shows coercion by the plaintiff in forcing a closing. After being told that the term would not be three years, the affiant objected to the change, was told that the term would not be negotiated and “[a]t that point I had already incurred considerable expense preparing for closing and it was not economically feasible to cancel the transaction. I was told by [plaintiffs president] that if I encountered difficulty after the closing she would consider an extension of the terms.”

The affidavit further states that an extension, subsequent to the closing, was offered by the plaintiff but evidently rejected by the named defendant because “[u]pon receipt of the plaintiffs letter of August 30, 1989,1 was shocked to see that the term[s] of the extension as prepared were entirely unreasonable.”

There is no substantial evidence, or any evidentiary facts outside the pleadings from which “the material facts alleged in the pleadings [could] warrantably be inferred”; Sheridan v. Board of Education, supra. While the allegations, if substantiated, would raise an issue of material fact, the trial court properly granted the plaintiff’s motion for summary judgment as it could not find that there was a genuine issue of any material fact; no such fact was substantiated.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants bringing this appeal are Ralph Roballey and Wallace Denzel. It was against these two defendants that the court rendered summary judgment. A third defendant, The Connecticut Bank and Trust Company, N.A., filed a disclosure of defense indicating that it is an owner and holder of a mortgage recorded prior to the mortgage being foreclosed, and is not affected by this action.

       The plaintiff alleges that since the court did not file a memorandum of decision, its granting of the plaintiff’s motion for summary judgment may be upheld because of the defendants’ failure to follow the rules of practice; Practice Book § 380; by failing to file an opposing affidavit or memorandum of law until the morning of the hearing. Although this may have been a sufficient basis for granting the plaintiff’s motion, the court accepted the affidavit and it is clear from the judgment file, which was signed by the judge, that the court found “that there is no genuine issue as to any material fact on the complaint or the counterclaim and that the plaintiff ... is entitled to judgment as a matter of law.”


text:
    Mary Ellen Trella v. Donald Trella
    (9144)
    Spallone, Cretella and Heiman, Js.
    Argued January 16
    decision released March 12, 1991

      Robert M. Casale, with whom, on the brief, was Frank Iannotti, for the appellant (defendant).

      Hugh F. Keefe, with whom, on the brief, were Mary B. Schairer, Richard W. Lynch and Charles Tiernan, for the appellee (plaintiff).
   Heiman, J.

In this dissolution action, the defendant claims that the judgment is flawed because the trial court abused its discretion (1) in awarding permanent unallocated alimony and support on the basis of its conclusion that a disability suffered by the plaintiff precluded her from seeking gainful employment when that conclusion is not supported by the evidence, (2) in awarding approximately $20,000 in counsel fees without evidence as to the reasonableness of the fees and despite the defendant’s inability to pay, and (3) in ordering the defendant to pay the plaintiff approximately $26,000 to reimburse financial losses that were allegedly suffered by the plaintiffs father as a result of the separation of the parties, i.e., for moneys he advanced to the plaintiff during the pendency of this action, and in lost rental income. Because our decision regarding the third claim is dispositive, we do not address the defendant’s other two claims.

The facts relevant to our resolution of this matter may be briefly summarized as follows. The parties married on July 30, 1982, and had one minor child at the time of the judgment. The defendant holds B.S. and M.S. degrees. He is and has been employed as a supermarket manager for a number of years. Prior to the birth of the minor child, the plaintiff was employed as a secretary-typist. Since the birth of the child she has not been steadily employed. The court also concluded that the plaintiff was disabled as of February 5,1990. At the time of trial, the defendant was earning $44,260 from his employment and the plaintiff had no earned income.

This action was returnable on November 10, 1987. On October 20, 1987, the plaintiff filed a motion for support pendente lite and a motion for custody of the minor child. On January 29,1988, the plaintiff also filed a motion for alimony pendente lite. On February 19, 1988, the trial court ordered the defendant to pay to the plaintiff $400 weekly as unallocated alimony and support pendente lite, and awarded custody pendente lite to the plaintiff. The marriage was ordered dissolved on May 9,1990. The defendant appeals from the financial orders that accompanied this dissolution.

It is during the period of the pendente lite orders that a majority of the plaintiff’s alleged debt to her father was incurred. She claims that she owes her father $14,147 in unpaid rent and $13,000 as a result of cash outlays made for her benefit. In addition, the defendant was also ordered to pay for an automobile that the plaintiffs father purchased for her for $7000. The trial court further found an arrearage on the pendente lite order in the amount of $11,699. During the pendency of the action, the defendant made pendente lite payments totaling approximately $31,000.

In our view, the trial court abused its discretion when it ordered payment by the defendant to the plaintiff for the amounts claimed to have been incurred by the father during the existence of the pendente lite order. By requiring the defendant to make these payments in addition to those required by the pendente lite orders, the trial court, in effect, modified the pendente lite orders retroactively.

The authority of the trial court to make orders concerning alimony and support pendente lite is found in the statutes. General Statutes § 46b-83. The power of the trial court to modify orders of support and alimony is also a creature of statute. General Statutes § 46b-86. Nothing in our statute regarding modification of alimony and support can be construed as authorizing retroactive modification. Such a construction has been expressly disavowed by our Supreme Court. Sanchione v. Sanchione, 173 Conn. 397, 405, 378 A.2d 522 (1977); Litvaitis v. Litvaitis, 162 Conn. 540, 549, 295 A.2d 519 (1972). Despite a number of legislative sessions since the decisions in Sanchione and Litvaitis, the legislature has not amended the modification statute to provide for retroactive modification, although other changes have been enacted concerning modification orders. It is a generally accepted principle of statutory construction that the legislature is aware of the court’s interpretation of a statute. J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 373, 528 A.2d 786 (1987). Further, “ ‘[w]e presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.’. . .” (Citations omitted.) McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119, 527 A.2d 664 (1987); see also Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987).

The function of an order for alimony and support pendente lite is to provide support for a spouse who the court determines requires financial assistance, and for any dependent children, until the court makes a final determination of the issues. Fitzgerald v. Fitzgerald, 169 Conn. 147, 151, 362 A.2d 889 (1975); Weinstein v. Weinstein, 18 Conn. App. 622, 639-40, 561 A.2d 443 (1989). “Pendente lite orders necessarily cease to exist once a final judgment in the dispute has been rendered because their purpose is extinguished at that time.” Connolly v. Connolly, 191 Conn. 468, 480, 464 A.2d 837 (1983).

Following the reasoning of the Supreme Court in Sanchione v. Sanchione, supra, and Darak v. Darak, 210 Conn. 462, 556 A.2d 145 (1989), and the express holding of this court in Weinstein v. Weinstein, supra, 642, we conclude that, in the absence of express legislative authorization for retroactive modification of unallocated alimony and support pendente lite, the trial court has no authority to order such modification. General Statutes § 46b-86 contains no such express authorization.

The trial court’s order that the defendant reimburse the plaintiff for sums her father had advanced to her while this action was pending, in addition to its finding an arrearage in payments required by the pendente lite orders, the order improperly retroactively modified the pendente lite order.

It is the function of a pendente lite order to establish what the paying spouse can afford as alimony and support pendente lite. Casanova v. Casanova, 166 Conn. 304, 348 A.2d 668 (1974). The action of the trial court negated that function of a pendente lite order and was, therefore, not justified under our law.

Having concluded that the action of the trial court in its resolution of one portion of its financial orders was improper, we conclude that we are required to reverse all of the financial orders that were made by the trial court and remand the matter for a new trial with respect to all financial issues. In our view, attempting to limit the remand in this case to the issue of the retroactive modification of the pendente lite orders would “impede the trial court’s ability to weigh the statutory criteria for financial orders to achieve an equitable result. The issues involving financial orders are entirely interwoven. ‘The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.’ ” Sunbury v. Sunbury, 210 Conn. 170, 174-75, 553 A.2d 612 (1989).

The judgment of the trial court is reversed and the case is remanded for a new trial on all financial issues.

In this opinion the other judges concurred.


text:
    Katherine A. Shaw et al. v. L.A. Socci, Inc.
    (8915)
    Dupont, C. J., Foti and Lavery, Js.

      Argued September 24, 1990
    decision released March 12, 1991

      John V. Bologna, with whom, on the brief, was Dannel Malloy, for the appellant (defendant).

      Gary D. Rafsky, for the appellees (plaintiffs).
   Foti, J.

The defendant appeals from the judgment rendered in favor of the plaintiffs. By their complaint, the plaintiffs sought reimbursement for the cost of a swimming pool cover, and for additional amounts required to complete or repair work either not performed by the defendant, or done in a deficient manner. The defendant, by its counterclaim, sought an unpaid balance due, including claimed additional options, in the amount of $6095.51. The defendant alleges that the court improperly (1) held that General Statutes § 20-429 (a) (6) is a special defense to its counterclaim, and (2) failed to consider adequately the defendant’s objections to the factual findings. We reverse the trial court’s judgment in part.

This action was referred to an attorney factfinder. A hearing was conducted by the factfinder, and findings of fact were Issued on December 13, 1989. The factfinder found that on October 6,1986, the plaintiffs, Katherine A. Shaw and Marian B. Keegan, entered into a contract with the defendant, L.A. Socci, Inc. This contract provided that the defendant would remodel the plaintiffs’ swimming pool according to certain specifications for the sum of $14,950. It was further found that the plaintiffs had paid the full contract price, which included handwritten extras for a total of $20,000, and had also expended $2409.27 to complete work unfinished by the defendant and to repair work of deficient quality that the defendant had performed. The plaintiffs paid $3500 for additional options and also spent $1662 for a new pool cover that was to have been furnished by the defendant. The factfinder recommended that judgment be rendered for the plaintiffs in the amount of $4071.57. He also recommended that the court deny the defendant’s counterclaim because the plaintiffs had asserted a valid special defense under the Home Improvement Act, General Statutes § 20-429 (a) (6). The trial court accepted these recommendations and rendered judgment accordingly.

The defendant claims, the plaintiffs concede, and we agree that the plaintiffs were not entitled to the statutory special defense recommended by the factfinder and accepted by the trial court. General Statutes § 20-429 (a) (6) was enacted in 1988 as part of Public Acts 1988, No. 88-269, § 9. It was not part of the Home Improvement Act as it existed in 1986 when this contract was formed. Therefore, it cannot be a valid special defense to the defendant’s counterclaim.

The plaintiffs argue, however, that we should affirm the trial court’s judgment in their favor on the defendant’s counterclaim because, although the grounds relied on by the trial court were improper, the court’s decision was supported by other proper grounds. The plaintiffs argue that General Statutes § 20-429 (a) barred the counterclaim even as it existed in October, 1986. The provision, now codified as General Statutes § 20-429 (a) (3), requires a home improvement contract to contain the entirety of the parties’ agreement. The plaintiffs argue that because the written contract did not reduce the parties’ entire agreement to writing, the contract cannot be enforced by the defendant through his counterclaim.

It is not clear whether the written contract of October 6,1986, which indisputedly amounted to $20,000, is the entire agreement of the parties. Also, it is not clear what is meant by “additional options” and “additional work” under the “terms of the written contract” as is claimed by the defendant’s counterclaim. The record is, therefore, inadequate to allow us to determine whether there is the requisite factual basis to determine the ultimate question necessary for the alternate ground, namely, whether the parties’ entire agreement was reduced to writing.

We would affirm the judgment even if based on erroneous grounds “if the same result is required by law.” A&H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); see also East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 646-47, 539 A.2d 125 (1988); Golab v. New Britain, 205 Conn. 17, 27, 529 A.2d 1297 (1987); Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274, 513 A.2d 1211 (1986). We cannot, however, affirm the decision based on the statute cited by the plaintiff. The record shows that this statute was never considered by the factfinder, and both the factfinder’s report and the court’s memorandum of decision are devoid of factual support for the plaintiffs’ position. Therefore, we cannot determine whether the trial court would have been forced to conclude that the parties’ entire agreement was not reduced to writing. Although “this court is authorized to rely upon alternative grounds supported by the record to sustain a judgment”; Henderson v. Department of Motor Vehicles, 202 Conn. 453, 461, 521 A.2d 1040 (1987); in this case, the record is insufficient to permit us to employ the alternative ground and does not supply justification to affirm. The judgment for the plaintiffs on the defendant’s counterclaim must, therefore, be set aside, and a new hearing held regarding it on remand.

The defendant next claims that the court did not properly “attend to its objections” to the factual findings. The defendants filed objections to two of the factual findings pursuant to Practice Book § 546H. The defendant objected to the finding that a new pool cover was included in the contract price, and the finding that a new contractor was hired to remedy defective work. The bases of these objections was the defendant’s contention that the findings were conclusory and not supported by the evidence, and that the trial court had not adequately reviewed the findings of the factfinder.

The trial court addressed the defendant’s objections in the memorandum of decision: “The defendant has filed objections to the acceptance of the factfinder’s recommendation. Two of the objections in essence ask that the court substitute its own findings of fact for those of the factfinder. This request must be denied in the light of the very recent decision in Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990).” The court relied on the language from Wilcox that “[i]n a contract action findings of fact should be overturned only when they are clearly erroneous.”

It is not our function to review the findings of the factfinder initially to determine whether those findings were properly reached on the basis of subordinate facts found. That initial review is the duty of the trial court. Nothing in the record indicates that the trial court did not fulfill its duty. In Wilcox, the factfinder filed his findings and memorandum, and the plaintiff filed an objection stating that the setoff, claimed by the defendant and recommended by the factfinder, was not supported by the evidence. After the court reviewed those portions of the transcript supporting the findings on the setoff, it sustained the objections to the factfinder’s report, upholding the defendant’s setoff and rendered judgment for the plaintiff for the full amount. It was clear, therefore, that the court reviewed the record and determined that the factfinder’s recommendations were not supported by the evidence.

While the record here does not, directly or implicitly, demonstrate that the court reviewed the record to determine whether the findings of fact to which the defendant objected were supported by the evidence, the defendant cannot show that such a review was not made. We must allow every reasonable presumption to be made in favor of the correctness of the actions of the trial court. Cookson v. Cookson, 201 Conn. 229, 244, 514 A.2d 323 (1986); Perry v. Hospital of St. Raphael, 17 Conn. App. 121, 124, 550 A.2d 645 (1988). The defendant asks that we presume that the court did not act to review; we presume that the court acted and did so correctly.

The judgment on the defendant’s counterclaim is reversed and the case is remanded for a new trial on the counterclaim; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Factfinders are limited to hearing contract actions “based upon an express or implied promise” in which only “money damages . . . less than fifteen thousand dollars” are claimed. General Statutes § 52-549n; Practice Book § 546D.

       General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it: . . . (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740.”

       We have recently reviewed the function of both attorney trial referees and factfinders; Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 297-300, 552 A.2d 827 (1989); and determined that neither may render judgment. Both are simply finders of fact and their conclusions of law are not binding on the trial court. See also Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989).

       General Statutes § 20-429 was amended in 1988 to include the subsection in question. Although the plaintiffs originally utilized General Statutes § 20-429 (a) (6) as a special defense in their pleading of May 1, 1989, which was entitled “Plaintiffs’ Response to Counterclaim and Special Defenses,” they broadly employed General Statutes § 20-429 as a special defense in their May 5,1989 response to the defendant’s amended answer and counterclaim dated May 4, 1989.

       On October 6,1986, General Statutes § 20-429 (a) provided: “No home improvement contract shall be valid unless it is in writing and unless it contains the entire agreement between the owner and the contractor.”

       By way of counterclaim the defendant alleges:
      “5. Subsequent to the parties entering into said contract, additional options were elected by the plaintiffs and additional work was performed by the defendant, thereby increasing the total price to Thirty-Three Thousand Ninety-Five Dollars and fifty-one cents ($33,095.51).
      “6. That defendant performed all the work and conditions on its part to be performed under the terms of the written contract, and plaintiffs accepted performance in full.
      “7. That there remains an outstanding balance due and owing the defendant in the amount of Six-Thousand Ninety-Five Dollars and fifty-one cents ($6,095.51) . . . .”

       The plaintiffs filed neither an objection to the factfinder’s improper reliance on General Statutes § 20-429 (a) (6) nor a motion to correct any findings made.

       On remand for the limited purposes of hearing the counterclaim, the trial court may if it deems it proper, exercise its discretion to allow, if requested, the filing of a special defense by the plaintiffs specifying General Statutes § 20-429 (a), in effect on October 6, 1986, in the event that the plaintiffs’ present special defenses that refer to “Connecticut General Statutes § 20-429” are deemed to be insufficient to raise this question presented for the first time on appeal.

       Practice Book § 546H provides: “A party may file objections to the acceptance of a finding of facts on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the fact-finder erred in rulings on evidence or in other rulings, or that there are other reasons why the finding of facts should not be accepted.
      “Objections must be filed within fourteen days after the filing of the finding of facts.”


text:
    Scarsdale National Bank and Trust Company v. Robert A. Schmitz et al.
    (8849)
    Norcott, Poti and Cretella, Js.
    Argued December 3, 1990
    decision released March 12, 1991

      Robert A. Schmitz, pro se, and Marion B. Schmitz, pro se, the appellants (defendants).

      Ellery E. Plotkin, for the appellee (plaintiff).
   Foti, J.

Robert and Marion Schmitz appeal the trial court’s ruling on their motion to open the judgment of foreclosure by sale and to extend the sale date, and on a codefendant’s motion for a stay of execution. The Schmitzes claim that the trial court improperly (1) opened the judgment of foreclosure and extended the sale date for only four weeks, and (2) refused to grant a codefendant’s motion for a stay of execution. We find that these issues are not properly before this court and dismiss the appeal.

The trial court found the following facts. The plaintiff brought this foreclosure action by writ, summons and complaint dated September 10, 1987. The complaint was comprised of two counts. The first count addressed the foreclosure of the plaintiff’s first mortgage, and the second count addressed the foreclosure of a second mortgage. On May 1,1989, the trial court granted the plaintiff’s motion for summary judgment as to the first count. The second count is still pending and has no bearing on this appeal. The court rendered a judgment of foreclosure by sale on May 15,1989, and set the original sale date of September 23, 1989. The parcel of real property that secures the plaintiff’s mortgages is also the subject of another lawsuit involving the enforcement of a restrictive covenant.

Since the original decision on May 15, 1989, the Schmitzes have filed three motions to open the judgment and to extend the sale date. The trial court granted all three of these motions. The last of these motions was heard on January 9, 1990. The record shows that the Schmitzes themselves requested and were granted a four week extension of the sale date. The Schmitzes now challenge this order, arguing that the trial court should have extended the sale date further than February 10, 1990.

The trial court also denied the defendant Deutsche Bank Luxembourgh’s motion for stay of execution on January 9,1990. The Schmitzes appeal the trial court’s denial of their codefendant’s motion, and argue that execution of the judgment should be stayed until the other litigation involving the subject property has concluded.

The Schmitzes allege that the trial court’s decision to open the judgment and to extend the sale date from January 13,1990, to February 10,1990, constituted an abuse of discretion. They argue that the sale date should have been extended until the other litigation involving the property has been concluded.

“A threshold inquiry of this court upon every appeal presented to it is the question of appellate jurisdiction.” Kulmacz v. Kulmacz, 177 Conn. 410, 412, 418 A.2d 76 (1979); see Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 497, 522 A.2d 264 (1987). “A requisite element of appealability is that the party claiming error in the decision of the trial court be aggrieved . . . .” Kulmacz v. Kulmacz, supra.

A party cannot be aggrieved by a decision that grants the very relief sought. See Wedig v. Brinster, 1 Conn. App. 123, 135, 469 A.2d 783 (1983), cert. denied, 192 Conn. 803, 472 A.2d 1284 (1984). In this case, the Schmitzes received the four week extension of the sale date that they requested. They cannot attack this order on appeal because they have not established that they were aggrieved by it.

The Schmitzes also challenge the trial court’s decision to deny their codefendant’s motion for a stay of execution. We will not address this issue. Issues in this appeal pertaining to the denial of this stay were ordered stricken by this court, sua sponte, on March 28,1990. Although the Schmitzes have raised this issue in their briefs in contravention of the March 28, 1990 order, we will not address this issue because it is not properly before this court.

The appeal is dismissed.

The case is remanded with direction to set a new sale date.

In this opinion the other judges concurred.

       The Schmitzes are the defendant landowners in this foreclosure action. Their codefendants, trustee Christopher Clausen and intervenor Deutsche Bank Luxembourgh, S.A., do not join in this appeal.

       See Grady v. Schmitz, 21 Conn. App. 111, 572 A.2d 71, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990).

       The Schmitzes argue that the appeal in Grady v. Schmitz, 21 Conn. App. 111, 572 A.2d 71, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990), should have stayed proceedings in this case. It is well settled that the filing of an appeal in a foreclosure action acts as a stay of further proceedings. Practice Book § 4046; Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 347, 579 A.2d 1054 (1990); Zinman v. Maislen, 89 Conn. 413, 94 A. 285 (1915). There is, however, no authority for the proposition that an appeal of a decision concerning real property automatically operates as a stay of foreclosure proceedings involving that piece of realty. The Schmitzes, therefore, would not have prevailed on their argument even if this issue had been properly raised.

       The following order was issued on March 28, 1990, pursuant to this court’s own motion. “The Appellate Court, sua sponte, hereby orders that the issues in the above-captioned appeal [Scarsdale National Bank & Trust Co. v. Schmitz] pertaining to the stay are stricken.”

       Issues regarding a stay of execution cannot be raised on direct appeal. “The sole remedy of any party desiring . . . [review of] ... an order concerning a stay of execution shall be by motion for review under Sec. 4053.” Practice Book § 4049. In this case, neither the Schmitzes, nor their codefendants, filed such a motion. Therefore, this issue is not properly before this court.


author: Daly, J.

text:
    Giovanna Tufaro v. Pepperidge Farm, Inc.
    (9257)
    Dupont, C. J., Daly and Norcott, Js.
    Submitted on briefs January 11
    decision released March 12, 1991

      George N. Nichols and Christopher M. Hodgson filed a brief for the appellant (defendant).

      Robert R. Sheldon filed a brief for the appellee (plaintiff).
   Daly, J.

The issue presented in this appeal is whether the defendant employer is obligated to continue the group benefits plan insurance coverage for the plaintiff’s dependents while the plaintiff continues to receive workers’ compensation benefits under General Statutes § 31-275 et seq.

The facts underlying this claim are not in dispute. On or about June 26, 1984, the plaintiff injured her hand and wrist in a conveyor belt accident at the defendant’s Norwalk plant. While the plaintiff was on medical leave, the defendant continued to provide group hospital, major medical and dental insurance coverage for her and her dependents. In March of 1986, the plaintiff’s physician notified the defendant that the plaintiff would probably be unable to return to her job and recommended light work. The defendant could not provide a light work position for the plaintiff and notified her that unless she returned to work by April 13, 1986, her employment would terminate and her dependents’ benefits would cease. The dependents’ benefits were terminated on April 15, 1986, and the plaintiff subsequently filed a complaint, seeking insurance coverage for hospital, major medical and dental expenses for herself, her husband and her children until they were to become ineligible by virtue of age or loss of full-time student status. At the time of the complaint, the plaintiff was receiving workers’ compensation benefits.

After conducting a formal hearing, the commissioner relied on General Statutes § 31-284b in making his findings and ordered the defendant to provide the plaintiff and her dependents with group benefits and to reimburse her for certain medical costs incurred. Thereafter, the defendant filed its petition for review and a motion for correction of finding with the compensation review division. The compensation review division upheld the determination of the commissioner. This appeal followed.

The defendant claims that General Statutes § 31-284b is constitutionally infirm because it has been preempted by the federal Employee Retirement Income Security Act of 1974 (ERISA), but, if valid, General Statutes § 31-284b applies only to the plaintiff and not to her dependents. Both the commissioner and the compensation review division refused the defendant’s request to decide the issue of preemption and ruled that the dependents’ benefits are part of a worker’s income that is to be maintained by the employer, pursuant to General Statutes § 31-284b. We disagree with the defendant and affirm the ruling of the compensation review division.

The commissioner and the compensation review division expressly declined to address the issue of preemption because their quasijudicial power did not empower them to decide such a question. “The powers and duties of workers’ compensation commissioners are conferred upon them for the purposes of carrying out the stated provisions of the Workers’ Compensation Act. General Statutes § 31-278.” Adams v. New Haven, 39 Conn. Sup. 321, 324, 464 A.2d 70 (1983). “Such a tribunal . . . is not a court.” Powers v. Hotel Bond Co., 89 Conn. 143, 149, 93 A. 245 (1915). It is well settled that the commissioner’s jurisdiction is confined by the workers’ compensation act and limited by its provisions. Gagnon v. United Aircraft Corporation, 159 Conn. 302, 305, 268 A.2d 660 (1970). It is the duty of the judiciary, however, to determine the constitutionality of a state statute. Caldor, Inc. v. Thornton, 191 Conn. 336, 342-44, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). Thus, neither the commissioner nor the compensation review division has been granted authority to consider constitutional issues, specifically the constitutionality of General Statutes § 31-284b.

Moreover, the question of preemption is one of federal law, arising under the supremacy clause of article sixth of the United States constitution. Times Mirror Co. v. Division of Public Utility Control, 192 Conn. 506, 510, 473 A.2d 768 (1984). Recently, the Second Circuit Court of Appeals affirmed the district court’s holding that General Statutes § 31-284b is not preempted by ERISA because it falls within an exception to preemption provided for by 29 U.S.C. § 1003 (b) (3). R.R. Donnelley & Sons Co. v. Prevost, 915 F.2d 787, 791-94 (2d Cir. 1990). Therefore, the defendant’s question of preemption is now settled.

We now reach the defendant’s second claim that General Statutes § 31-284b does not require the continuance of dependents’ benefits for a worker receiving compensation under the act. In relevant part, General Statutes § 31-284b provides: “(a) In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer . . . who provides accident and health insurance or life insurance coverage for any employee . . . shall provide to such employee equivalent insurance coverage . . . while the employee is eligible to receive or is receiving workers’ compensation payments pursuant to this chapter . . . .” (Emphasis added.) The defendant argues that because the statute refers only to an employee, and not to dependents, an employer need not maintain dependent benefits.

Legislative intent is not found in an isolated sentence or word of a statute but must be sought in the entirety of an enactment, its parts reconciled and made operative as far as possible. Orticelli v. Powers, 197 Conn. 9, 13-14, 495 A.2d 1023 (1985); B. Holden & J. Daly, Connecticut Evidence § 50. “Every word in a legislative enactment is presumed to have meaning”; State v. Freedom of Information Commission, 184 Conn. 102, 107, 441 A.2d 53 (1981); and no word is considered superfluous. White v. Burns, 213 Conn. 307, 320, 567 A.2d 1195 (1990). “ ‘The words of a statute should be interpreted in their natural and usual meaning unless such reading would defeat a legislative intent which becomes evident when the statute is read in the light of its history and purpose . . . even though such construction may seem contrary to the letter of the statute.’ ” State v. Delafose, 185 Conn. 517, 522, 441 A.2d 158 (1981).

“The purpose of the workers’] compensation law has always been to provide compensation for an injury arising out of and in the course of the employment regardless of fault, and the statutes are to be broadly construed to effectuate that purpose. . . . The underlying objective is to provide for the work[er] and those dependent on h[er].” (Citation omitted.) Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968).

The compensation review division sought to further this underlying purpose of the workers’ compensation act by enforcing the express objective of General Statutes § 31-284b (a) that seeks to “maintain, as nearly as possible, the income of employees who suffer employment-related injuries.” (Emphasis added.) General Statutes § 31-275 (14) defines the term “income” as “all forms of remuneration to an individual from his [or her] employment, including wages, accident and health insurance coverage . . . .”

Because the underlying purpose of the act is to provide not only for the worker but also for her dependents, and the objective of the statute is to maintain all forms of an employee’s income, the compensation review division reasonably and correctly construed General Statutes § 31-284b to include the dependents’ benefits as a part of that income.

The ruling of the compensation review division is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-284b provides in relevant part: “(a) In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer, as defined in section 31-275, who provides accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare fund, as defined in section 31-53, shall provide to such employee equivalent insurance coverage or welfare fund payments or contributions while the employee is eligible to receive or is receiving workers’ compensation payments pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury.”

       29 U.S.C. § 1001 et seq.

       General Statutes § 31-275 (4) defines in relevant part: “ ‘Dependent’ . . means a member of the injured employee’s family or next of kin . . . .”


author: Cretella, J.

text:
    Mary M. Skibeck, Executrix (Estate of Chester J. Skibeck) v. Barbara R. Avon
    (8782)
    Foti, Cretella and Landau, Js.
    Argued November 6, 1990
    decision released March 12, 1991

      John J. Kennedy, Jr., with whom was Diana S. Marshall, for the appellant (plaintiff).

      J. Jeffrey Coughlin, for the appellee (defendant).
   Cretella, J.

The plaintiff, on behalf of the estate of her late husband, appeals from a summary judgment rendered in favor of the defendant, Barbara R. Avon, who is also known as Barbara M. Reiner.

The relevant facts are not in dispute. The plaintiffs decedent and the defendant were involved in an automobile collision on January 26,1979. On December 15, 1980, the plaintiffs decedent brought an action against the defendant for injuries he sustained in that accident. On March 8, 1983, that case was dismissed due to the failure of the plaintiff’s decedent to appear at trial. A motion to open the judgment of dismissal was denied by the court, Kulawiz, J., but a later motion for a new trial was granted by the court, Chernauskas, J.

On June 7,1987, Judge Kulawiz, dismissed the case for a second time. That dismissal was for failure to prosecute, pursuant to Practice Book § 251. The plaintiff’s decedent filed a motion to reopen the second judgment of dismissal and it was granted by Judge Kulawiz.

On December 4,1987, Judge Kulawiz again dismissed the case pursuant to Practice Book § 251. The plaintiff’s decedent’s motion to reopen this third judgment of dismissal was denied. The denial of this motion was appealed to this court. That appeal was dismissed on March 3, 1988.

On June 10,1988, the plaintiff executrix commenced the present action based on the same cause of action. Although this action was filed more than two years after the date of the accident, the plaintiff asserted in her complaint that the action was not time barred by General Statutes § 52-584 because it fell under the protection of the accidental failure of suit statute, General Statutes § 52-592. The defendant filed a motion for summary judgment alleging that because the plaintiff did not meet the requirements of § 52-592 (a), the court had no jurisdiction to hear an action the factual predicate of which had occurred nine and one-half years prior to the filing of the action. The trial court granted the defendant’s motion for summary judgment holding that the repeated dismissals and egregious conduct demonstrated in this case were never intended to be excused by the provisions of § 52-592.

On appeal to this court, the plaintiff claims that the trial court improperly concluded that the procedural history and prior dismissals demonstrated egregious conduct, and that cases that are dismissed under Practice Book § 251 are dismissed for “matters of form,” and, therefore, warrant the protection offered under § 52-592, the accidental failure of suit statute.

“ ‘Under § 251, the trial court is confronted with endless gradations of diligence, and in its sound discretion, the court must determine whether the party’s diligence falls within the “reasonable” section of the diligence spectrum.’ ” Lacasse v. Burns, 214 Conn. 464, 474, 572 A.2d 357 (1990), quoting Jaconski v. AMF, Inc., 208 Conn. 230, 234, 543 A.2d 728 (1988). In the case before us, the trial court concluded that the plaintiff’s diligence did not fall within the reasonable portion of the spectrum of diligence contemplated by § 251. This fact alone, however, cannot overcome the broad remedial provisions of § 52-592. Lacasse v. Burns, supra.

Summary judgment may be rendered if the pleadings, affidavits and other proof show that there is no genuine issue of fact and that the movant is entitled to the judgment as a matter of law. Practice Book § 384; Barnes v. Schlein, 192 Conn. 732, 738, 473 A.2d 1221 (1984). Once the moving party presents evidence to support its motion for summary judgment, the opposing party must present demonstrative evidence that a factual issue exists. Id. In the present case, the parties do not dispute the procedural facts that have brought this case before us. Thus, we need review only whether the defendant was entitled to judgment in her favor as a matter of law.

Although we agree with the plaintiff that “a dismissal of an action pursuant to Practice Book § 251 constitutes a failure ‘for any matter of form’ within the meaning of General Statutes § 52-592 (a)”; Pintavalle v. Valkanos, 216 Conn. 412, 414 n.3, 581 A.2d 1050 (1990); a plaintiff’s ability to rely on § 52-592 is limited to those cases where the § 251 dismissal is rendered after the case failed because of accident or simple negligence. Lacasse v. Burns, supra, 473.

As previously noted, the trial court in the present case specifically held that “the egregious conduct of the plaintiffs case was never intended to be saved by the provisions of § 52-592.” Under the circumstances of this case, we agree. The genesis of this cause of action is an automobile collision that occurred eleven years ago. Suit was first instituted ten years ago and the first dismissal, although saved by a motion for a new trial, was granted nearly eight years ago. The case was again dismissed and saved by a motion to open. The original action was finally dismissed in December, 1987. After nearly eight years, the plaintiff had not managed to prosecute her claim and try the case on its merits. The present action was filed six months later.

To allow this action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process. Marangio v. Shop Rite Supermarkets, Inc., 11 Conn. App. 156, 160, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987). “Although § 52-592 is a remedial statute and must be construed liberally ... it should not be construed so liberally as to render statutes of limitation virtually meaningless.” (Citation omitted.) Pintavalle v. Valkanos, supra, 417.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 251 provides: “dismissal for lack of diligence “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.
      “If a case is printed on a dormancy calendar pursuant to the dormancy program administered under direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to Sec. 128, only those papers which close the pleadings by joining issues, or raise a special defense, may be filed by any party, unless the court otherwise orders.”

       General Statutes § 52-592 provides in pertinent part: “accidental failure of suit; allowance of new action, (a) If any action, commenced within the time limited by law, has failed one or more times to be'tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”


text:
    In re Jullion C.

    (9268)
    Dupont, C. J., Daly and Norcott, Js.
    Submitted on briefs January 11
    decision released March 12, 1991

      Dante R. Gallucci, special public defender, filed a brief for the appellant (defendant).

      Thomas McCullough O’Brien, state’s advocate, and Peter Van Dyk Berg, Jr., assistant state’s advocate, filed a brief for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Daly, J.

This is an appeal from an order transferring a juvenile matter to the adult criminal docket pursuant to General Statutes § 46b-127 (l), in which the respondent challenges the formal and substantive sufficiency of the trial court’s findings in support of the transfer order. Under General Statutes § 46b-127, the validity of a transfer order depends on a court’s making “written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged.”

The proceedings in this case arose out of the involvement of the respondent in the death of Edwin Perez in Bridgeport as a result of fatal gunshot wounds. After conducting a hearing, the trial court found that the respondent was fourteen years old at the time that the alleged murder occurred and that he intentionally caused the death of Perez by shooting him several times with a handgun after first firing a warning shot.

The respondent raises two issues in his challenge to the validity of the transfer order. First, he argues that the trial court’s written findings were legally insufficient because there was no express finding regarding probable cause to believe that the respondent committed the crime of murder without a finding of specific intent to commit murder, as required by General Statutes § 53a-54a. Second, the respondent asserts there was an insufficient evidentiary basis for the trial court’s conclusion that probable cause existed. We disagree and uphold the validity of the transfer order.

We note at the outset that the rationale and conclusions in the Connecticut Supreme Court’s recent decision, In re Edwin N., 215 Conn. 277, 575 A.2d 1016 (1990), are controlling in this case. In In re Edwin N., supra, the respondent challenged the validity of the trial court’s transfer of a juvenile murder case to the adult criminal docket. As in the present case, the juvenile in Edwin argued that the trial court’s findings were legally insufficient because there was no express finding as to his intent to commit murder, and challenged the evidentiary basis for the trial court’s conclusion regarding his specific intent to kill the victim. The trial court’s written findings were found deficient because they failed to make a finding concerning the juvenile’s intent. The Supreme Court found, however, that the trial court’s findings, “though undesirably sparse, [were] nonetheless . . . sufficient to warrant an inference about the factual underpinnings of the court’s transfer order.” Id., 283. These factual underpinnings supplied the circumstantial evidence capable of supporting a legal inference of intent to kill. Id., 284, citing State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981).

As in Edwin, the trial court in this case made sufficient, though sparse, findings of fact and law. In distinction to Edwin, the trial court here did make an explicit finding that the respondent did intentionally kill the victim. Although the trial court’s findings were conclusory in nature, on the basis of its factual findings and legal conclusions, we affirm.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-127 provides in relevant part that “[t]he court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years .... No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal.”

       The trial court issued its findings and order on May 4, 1990, several weeks before In re Edwin N., 215 Conn. 277, 575 A.2d 1016 (1990), was released.

       After a hearing on the Court Advocate’s Motion for Transfer the trial court made the following findings and order in compliance with § 46b-127 of the Connecticut General Statutes:
      “(1) Edwin Perez died in Bridgeport on March 15,1990 as the result of gunshot wounds of the head and chest.
      “(2) A petition for delinquency charging Jullion C. with Murder in violation of Connecticut General Statutes, Section 53a-54a was served on the respondent and referred to the court.
      “(3) Jullion C., the respondent, was bom on January 10, 1976. He was fourteen years old on March 15, 1990.

        “(4) On the basis of the exhibits presented and the testimony of an eyewitness and the statement of the respondent made after an advisement of rights and in the presence of his grandmother, an adoptive parent, wherein he admitted shooting the decedent after firing a warning shot, the court finds there is probable cause to believe that Jullion C. intentionally caused the death of Edwin Perez by shooting at him several times with a handgun and hitting him twice.
      “(5) There is probable cause to believe the offense charged has been committed and that the respondent, Jullion C., has committed it.”