text:
    State of Connecticut v. Loyal Gaskin
    (4089)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 9 —
    decision released April 22, 1986

      Corinne L. Klatt, with whom, on the brief, were John A. Connelly, state’s attorney, Bradford J. Ward, assistant state’s attorney, and Maureen Norris, legal intern, for the appellant (state).

      AlanD. McWhirter, assistant public defender, with whom, on the brief, was Raymond J. Quinn, Jr., for the appellee (defendant).
   Bieluch, J.

This appeal arises out of the trial court judgment sentencing the defendant to serve a five year sentence on a charge of violation of probation; General Statutes § 53a-32; that sentence to run concurrently with a sentence then being served by the defendant. With the permission of the trial court, the state has appealed, claiming that the court erred in denying its motion to correct an illegal sentence. We agree.

On January 19, 1983, the defendant pleaded guilty to a charge of risk of injury to a minor in violation of General Statutes § 53-21. On February 18, 1983, he received a sentence of five years, execution suspended, and was placed on probation for a period of five years. One of the conditions of his probation was that he not violate any criminal law.

On February 23, 1984, the defendant was arrested on two charges, sexual assault in the first degree and sexual assault in the third degree, offenses that allegedly were committed on February 3, 1984, while the defendant was on probation. After trial, he was convicted of these offenses. Sentence was imposed on June 25, 1984. On the conviction for sexual assault in the first degree, he received a term of fifteen years, execution suspended after seven years, and, on the conviction for sexual assault in the third degree, a concurrent sentence of five years, execution suspended. Additionally, he was placed on probation for three years.

As a result of these convictions, on September 12, 1984, the defendant was charged with violation of probation under General Statutes § 53a-32. After pleading guilty to this charge on October 22, 1984, the probation imposed on February 18, 1983, was revoked and he was committed “for a term of 3 years, said sentence to run consecutively to the sentence imposed [on June 25, 1984] for a total effective sentence of 15 years, execution suspended after 10 years, with 3 years probation.”

Thereafter, the defendant moved to correct this sentence, claiming that it was illegal because “the Court increased the punishment originally imposed on his sentencing of February 18, 1983.” The court agreed with the defendant’s position and, on November 1, 1984, vacated its prior sentence of three years. The court further ordered that “the sentence of 5 years imposed [on November 1, 1984] be executed, said sentence to run concurrently with the sentence the defendant is now serving.” Thereafter, the state moved to correct the amended sentence, claiming that the original sentence of October 22, 1984, was legally imposed. The court denied that motion, but granted the state’s request for permission to appeal from its ruling.

Practice Book § 935 provides that the judicial authority may correct an illegal sentence at any time. The illegality of the sentence is a necessary prerequisite to the court’s correction of that sentence pursuant to § 935. State v. Davis, 190 Conn. 327, 335, 461 A.2d 947, cert. denied, 464 U.S. 938,104 S. Ct. 350, 78 L. Ed. 2d 315 (1983). In the present case, the claimed illegality of sentence which the defendant raised, and with which the trial court agreed on November 1, 1984, was that the defendant’s original five year sentence of February 18, 1983, then suspended but subsequently invoked by a reduced sentence of three years, was improperly increased by the provision in the court’s sentence of October 22, 1984, making that three year sentence under § 53a-32 consecutive to the defendant’s effective imprisonment on June 25, 1984, of fifteen years, suspended after seven years, for a new effective sentence of fifteen years, suspended after ten years.

In support of Ms claim of illegality of sentence, the defendant cites Viel v. Potter, 20 Conn. Sup. 173, 177-79, 129 A.2d 230 (1957). We find Viel v. Potter, supra, to be inapposite to this case. Its facts are dissimilar to the present case. Viel was sentenced to serve sixty days in the Hartford County jail, to be suspended after twenty days, with one year probation. After serving fourteen days of his sentence, he was returned to court, where the suspension of his imprisonment was revoked and he was again sentenced to serve the full term of sixty days. No new charges had been brought against Viel and no violation of probation proceedings were instituted. The trial court there simply increased his effective sentence for a reason not apparent. In ordering Ms release from jail on a writ of habeas corpus, the then Court of Common Pleas concluded that “[t]he action of the court . . . [was] an attempt by judicial sentence to increase a punishment already partially executed. This is contrary to law and in violation of the constitutional guarantee against double punishment and is void.” Id., 179.

Such is not the case here. The defendant’s original sentence of February 18,1983, was still suspended and remained unexecuted at the time of the sentencing for violation of probation on October 22,1984. Indeed, that sentence had been suspended in its entirety and was subject on that date, under § 53a-32, to execution for its full term or for a lesser sentence. The actual term of imprisonment which the court imposed on the conviction for violation of probation was in fact two years less than was originally ordered and suspended on February 18,1983. In no way was the original sentence increased on the revocation of the sentence of probation under § 53a-32.

The sole cause of the defendant’s additional imprisonment for a violation of probation was his conviction of two sexual assault charges for which he had been sentenced on June 25, 1984. Simply put, seven years to be served for the later offenses plus three years (and not five years as originally imposed) for the earlier offense equals ten years to be served, as was properly and legally adjudged on October 22,1984. There is no distinction between the present case and the situation in which a defendant, incarcerated after conviction, is later convicted of an additional crime committed before the offense for which he had been previously sentenced, and who is, on the second conviction, sentenced to serve a term of imprisonment consecutive to the earlier sentence. Such a consecutive sentence is expressly permitted by General Statutes § 53a-37. Thus, the trial court’s sentence of October 22,1984, was not illegal, and the court erred in subsequently “correcting” it under the authority of Practice Book § 935.

The defendant claims that the state’s motion of January 22, 1985, to correct the sentence imposed on November 1, 1984, was an improper proceeding taken in lieu of an appeal long after the expiration of the appeal period. The defendant categorizes the state’s motion as a “transparent device to relitigate issues now res judicata, and to resurrect rights to appeal now expired.” Practice Book § 935, however, expressly provides that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” (Emphasis added.) The state filed such a motion to correct the illegal sentence of November 1, 1984. After the denial of its motion, the state obtained the trial court’s express permission to appeal from that ruling as required by General Statutes § 54-96, and its appeal was timely. No “transparent device” of any kind was employed by the state to present the relevant issue of law before the trial court, and now before us. An illegal sentence is always capable of correction in the interest of justice.

There is error, the judgment of November 1, 1984, is set aside and the case is remanded with direction to reimpose the sentence of October 22, 1984.

In this opinion the other judges concurred.

       Prior to October 1,1983, such a correction of an illegal sentence could only be made within ninety days of sentence.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Kowalsky Properties, Inc. v. The Sherwin-Williams Company
    (3941)
    Hull, Spallone and Bieluch, Js.

      Argued February 13 —
    decision released April 22, 1986

      Peter M. Nolin, for the appellant (defendant).

      Ernest L. Josem, for the appellee (plaintiff).
   Spallone, J.

The defendant is appealing from the judgment rendered by the trial court upon the court’s acceptance of the report of the attorney referee.

The defendant, The Sherwin-Williams Company, entered into a lease with the plaintiff, Kowalsky Properties, Inc., for premises located in a shopping center. The premises were utilized by the defendant for the sale of paint and related products. The base rent for the premises was $18,054 per annum. The lease contained a provision that required the defendant to make an increased rental payment, based upon a percentage, when its annual “retail sales” exceeded $200,000. The lease also provided that, regardless of the extent to which the annual sales exceeded $200,000, the maximum rent due in any given year could not exceed $22,317.50. Thus, in any lease year, the additional rent due could not exceed $4263.50. At the time of trial, it was stipulated by the parties that in the event additional rent was due, the amount would be $42,635, representing the maximum of $4263.50 for each of the ten years of the lease, plus interest.

The matter was referred to an attorney referee who conducted a hearing on March 27, 1984. The defendant’s final brief was filed on May 22,1984. The referee filed his report in the form of a memorandum of decision dated July 23, 1984. In his report, he found that the gross sales in each year of the lease were in actuality “retail sales” and, based on the stipulation of the parties, he found that the sum of $42,635, plus interest, was due the plaintiff from the defendant.

On November 27, 1984, the plaintiff filed a motion for judgment in accordance with the “Memorandum of Decision of Trial Referee Robert A. Epstein dated July 23, 1984.” On December 5, 1984, the defendant objected to the trial court's rendering of judgment in accordance with the referee’s decision alleging solely that the judgment would be untimely because it would be rendered more than 120 days from the completion of the hearing. The defendant based this claim on General Statutes § Sl-lSSb.

On January 25, 1985, the trial court granted the plaintiff’s motion and rendered judgment that the plaintiff recover from the defendant the sum of $42,635, plus interest. In essence, the defendant’s first three claims of error challenge the attorney referee’s conclusion that all of the defendant’s sales were retail sales and subjected it to an assessment of additional rent. His fourth claim is that the trial court erred in rendering a judgment on the attorney referee’s memorandum which was filed more than 120 days after the completion of the hearing before him.

We are limited in our review of the defendant’s first three claims because attorney referees do not have the power to render judgments. The Connecticut constitution, article fifth, § 6, as implemented by General Statutes §§ 51-504, 52-434 and 52-434a, now authorizes a retired judge sitting as a referee to exercise the powers of the referring court on matters referred to him. Harbor Construction Corporation v. D.V. Frione & Co., 158 Conn. 14, 16, 255 A.2d 823 (1969). No such power has been vested in attorney referees either by the provisions of our constitution or by statute. Proceedings before attorney referees are governed by procedures set forth in Practice Book §§ 434 through 444. Ruhl v. Fairfield, 5 Conn. App. 104, 105-106, 496 A.2d 994 (1985). Upon the filing of the referee’s report, the defendant did not file a motion to correct the findings as provided in § 438 of the Practice Book. Instead, the defendant filed a general objection to the trial court’s “Entry of Judgment in Accordance with Trial Referee’s Decision” alleging that the decision was untimely because it was filed with the court more than 120 days from the completion of the hearing.

What the parties intended by the use of the term “retail sales” in their agreement is a question of fact solely within the province of the trier. Where the parties contend for different meanings, the resolution of the disputed issue by the trier is the ultimate manifestation of his function. The parties, here, presented conflicting testimony as to their understanding of the term. Where the evidence is in conflict, its probative force is for the trier. Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 14, 420 A.2d 1142 (1979); Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 359, 232 A.2d 916 (1967). Having filed no motion to correct any of the facts or to add further facts to those found by the attorney referee, the defendant has severely restricted its right to attack the subordinate factual findings in the report. See Harbor Construction Corporation v. D.V. Frione & Co., supra, 20-21. Absent such a motion and a subsequent exception to the report, the trial court, in ruling on the objection, was limited to determining whether the subordinate facts were sufficient to support the ultimate factual conclusions. Practice Book § 440. This court is limited to considering whether the “facts found and the conclusions reached in the report are adequate to support the judgments.” Id.; Ruhl v. Fairfield, supra, 106. We conclude that they are.

The defendant’s remaining claim of error is without merit. The time limitations of General Statutes § 51-183b only apply to judges and “any state trial referee who has the power to render judgments.” We have ruled above that attorney trial referees do not have the power to render judgments. Consequently, they are exempt from the 120 day time restraint. It is significant to note that in Florida Hill Road Corporation v. Commissioner of Agriculture, 164 Conn. 360, 368, 321 A.2d 856 (1973), our Supreme Court ruled that the time limitation for the rendering of judgments provided in General Statutes § 51-129 (now § 51-183b) did not apply to trial referees even though they had the power to render judgment. The statute under consideration in Florida Hill Road Corporation made no reference to judgments rendered by state trial referees. Subsequently, the legislature added language which expressly applied the time limitation to “any state trial referees who had the power to render judgment.” Public Acts 1983, No. 83-295. That legislation does not, however, refer to trial referees who did not have the power to render judgment. If the legislature had wished to do so, they could have included the latter category of trial referees within the time limitations of the statute.

Having held that attorney referees are not bound to file their report within 120 days of the hearing before them, we must now address the question of whether the trial judge must render judgment within 120 days from the completion of the hearing. Obviously, there can be no such requirement. Practice Book § 442 outlines the procedures that must be followed in order that judgment be rendered on the attorney referee’s report. The section expressly provides that, “[ajfter . . . the filing of the report . . . either party may, without written motion, claim the case for the short calendar for judgment on the report . . . .” It is evident that a condition precedent to the rendering of judgment is a short calendar claim. The filing of such claim for the short calendar is the obligation of “either party” and their failure to make such claim within 120 days of the hearing cannot, in logic and reason, preclude the court from rendering judgment after such 120 days have passed. Section 442 of the Practice Book does not provide a time limitation within which the parties must file a claim for judgment. The section does require that the court, after a hearing and upon its decision as to matters raised in the claim for short calendar, may forthwith direct judgment to be rendered. This action by the court, however, can only be taken subsequent to a short calendar claim. We hold that there is no requirement that the court must render judgment within 120 days of the completion of the trial hearing before the attorney referee.

We hold, therefore, that both the attorney referee and the trial court acted in accordance with the law.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 51-183b provides: “Any judge of the superior court and any state trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       The parties’ agreement provides in part: “Once each year, within sixty (60) days after the anniversary of the commencement of the term of this lease, the Tenant shall deliver to the Landlord a statement of retail sales made at the herein demised premises during the preceding lease year, said retail sales to be classified and defined as sales at retail prices to the counter trade.

      “Retail sales shall not include any sales, use, excise, luxury, or similar taxes, or credits for returned or replaced merchandise, adjustments or commissions, advertising allowances, samples, gifts or prizes, or interdepartmental transfers; but gross sales shall include the dollar amount of all goods, wares, merchandise and services sold at the herein demised premises and not herein specifically excluded, regardless of the terms of payment therefore.
      “Accompanying said statement of gross sales made at the herein demised premises, the Tenant shall tender payment, if any shall be due, of a sum, consisting of 5% of such retail sales made at the demised premises in excess of two-hundred thousand dollars ($200,000.00). The Tenant shall keep and preserve in the demised premises for a period of one year complete and accurate records of sales, and the Landlord shall have the right to audit such records at Landlord’s expense during Tenant’s regular business hours.” (Emphasis added.)


text:
    Richard Coollick v. Town of Windham et al.
    (4029)
    Hull, Spallone and Daly, Js.

      Argued January 14 —
    decision released April 22, 1986

      Daniel K. Lamont, for the appellant (plaintiff).

      Kathleen Eldergill, for the appellees (named defendant et al.).
   Spallone, J.

The plaintiff is appealing from a judgment rendered upon the decision of the trial court dismissing his suit against the defendants. The dispositive issue on appeal is whether the trial court erred in granting the defendants’ motion to dismiss based on lack of subject matter jurisdiction.

The facts underlying this action are as follows. On June 16,1982, the plaintiff, Richard Coollick, a regular uniformed member of the Windham (formerly Willimantic) police department, underwent coronary bypass surgery. Thereafter, the plaintiff applied for workers’ compensation benefits pursuant to General Statutes §§ 7-433c and 31-307. Section 7-433c provides for benefits to be awarded to certain policemen and firemen who become disabled or who die as a result of hypertension or heart disease, and § 31-307 provides for benefits to be awarded to certain workers who become totally incapacitated. The workers’ compensation commissioner ruled the plaintiff eligible and awarded him benefits pursuant to the statutes. The town of Wind-ham, a self-insured municipality, did not appeal the decision.

Windham failed to pay the award. On December 22, 1983, the plaintiff commenced an action against the defendants alleging that they acted in bad faith in refusing to pay the award, thereby entitling the plaintiff to compensatory and punitive damages, including attorney’s fees.

The defendants moved to dismiss the action claiming lack of subject matter jurisdiction in that the plaintiff’s failure to receive benefits should be addressed to the compensation commissioner who was vested with exclusive jurisdiction to hear such claims.

At oral argument on the motion to dismiss, the plaintiff conceded that jurisdiction to hear claims based on a failure to pay under the workers’ compensation provisions was vested solely in the workers’ compensation commission. The plaintiff argued, however, that he sought damages pursuant to 42 U.S.C. § 1983, the Federal Civil Rights Act. The trial court concluded that “[bjecause the plaintiff has failed to state a claim based upon 42 U.S.C. § 1983, and because the plaintiff has already conceded that the court lacks jurisdiction over his workers’ compensation claims, the defendants’ motion to dismiss is granted.”

We note that the trial court, in ruling that the plaintiff did not make out a cause of action under the civil rights act, in effect, ruled on the legal sufficiency of the defendants’ complaint. Such a ruling is properly the subject of a motion to strike; Practice Book § 152 (3); and not a motion to dismiss as was before the trial court. See Practice Book § 143. “The record does not [, however,] indicate that the impropriety of the use of a motion to dismiss in this manner was ever raised in the trial court. It was not made here. We shall therefore consider the case ‘as it was presented by the parties, overlooking the foregoing procedural shortcomings and treating the motion to dismiss as sustainable under the same test as would have been applicable’ if it had been a motion to strike. Glens Falls Ins. Co. v. Somers, 146 Conn. 708, 713, 156 A.2d 146 (1959).” Progressive Casualty Ins. Co. v. DiGangi, 4 Conn. App. 137, 139-40, 492 A.2d 548, cert. granted, 197 Conn. 810, 499 A.2d 60 (1985).

We therefore agree with the holding of the trial court that the plaintiff failed to present properly a claim cognizable under the Civil Rights Act because his complaint fails to set out any deprivation of a right secured by the constitution or laws of the United States, as is required. See, e.g., Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980); Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979); Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Williams v. Treen, 671 F.2d 892 (5th Cir. 1982); Bills v. Henderson, 631 F.2d 1287 (6th Cir. 1980).

The plaintiff alleges that he has been deprived of a property interest, i.e., his entitlements under the Workers’ Compensation Act. He relies upon Fuentes v. Shevin, 407 U.S. 67, 86, 92 S. Ct. 1983, 32 L. Ed. 2d 556, reh. denied, 409 U.S. 902, 93 S. Ct. 177, 34 L. Ed. 2d 165 (1972), for the proposition that statutory entitlements are property rights under the fourteenth amendment to the United States constitution. Unlike Fuentes, however, where the plaintiffs’ challenged the statutory scheme itself as violative of due process, the plaintiff here does not complain that any of the defendants acted without due process of law. The plaintiff’s complaint alleges only that the city of Willimantic and the town of Windham “acted in bad faith and with improper motive,” that Paul Shaw “acted wilfully and in gross disregard of the rights of the plaintiff,” and that Neil Mesick and Armand Martineau “acted in bad faith and with an improper motive” in refusing to grant workers’ compensation benefits to the plaintiff.

As was noted in Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir. 1980), cert. denied sub nom. Rashkind v. Marrero, 450 U.S. 913, 101 S. Ct. 1353, 67 L. Ed. 2d 337 (1981), “[i]n order to state a claim under the fourteenth amendment, the complainant must allege facts showing not only that the State has deprived him of a liberty or property interest but also that the State has done so without due process of law.” (Footnote omitted.) Id., 519.

In Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), the United States Supreme Court considered the claim of a prison inmate, made under 42 U.S.C. § 1983, who ordered certain hobby materials by mail, which materials were lost after they were received at the correctional institution. In that action, the District Court had granted the inmate’s motion for summary judgment and the Circuit Court had affirmed that ruling. The United States Supreme Court reversed, holding that the plaintiff had failed to allege a violation of the due process clause of the fourteenth amendment, and therefore did not plead a cause of action under § 1983. In doing so, the court stated: “Although [the inmate] has been deprived of property -under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are inadequate . . . .” Parratt v. Taylor, supra, 543.

In this case, the plaintiff alleges wrongful acts of the defendants but has not challenged the adequacy of the procedural and substantive rights afforded him under the Workers’ Compensation Act, General Statutes § 31-275 et seq. The plaintiff must allege that procedures followed by the defendants, as a matter of law, were violative of and in derogation of his due process rights. Connecticut has established adequate procedures for the disposition of workers’ compensation claims. The failure of the officials to perform in accordance with their duty, to the detriment of the plaintiff, is not a violation of due process but a failure to follow established procedures. See Parratt v. Taylor, supra, 543; Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 47 L. Ed. 2d 405, reh. denied, 425 U.S. 985, 96 S. Ct. 2194, 48 L. Ed. 2d 811 (1976). Our Workers’ Compensation Act contains enforcement provisions enabling the recipient of an award to compel performance.

The issue raised by the plaintiff in this case is the defendants’ failure to pay the benefits ordered by the commissioner. General Statutes § 31-295 expressly provides that “the Commissioner shall adopt regulations for the purpose of assuring prompt payment by the employer or his insurance carrier.” Section 31-300 provides an employee with remedies to ensure prompt payment, including the award of interest and reasonable attorney’s fees when appropriate. Such awards are within the discretion of the workers’ compensation commissioner, depending on his findings of fact as to the default, neglect or unreasonable contest of liability on the part of the employer or insurer. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 179-80, 355 A.2d 227 (1974). Section 31-300 provides that once an award has been granted to an employee, it has the same force and effect as a judgment, “and may be enforced in the same manner as the judgment of the superior court.” Even where there is an appeal from the commissioner’s award, § 31-301 permits the employee to collect the undisputed portion of the claim. Finally, § 31-288 provides that a fíne of $250 may be imposed upon an employer who “wilfully fails to conform to any other provision of this chapter.” The plaintiff has not chosen to follow this well established and well marked path provided for the enforcement of his award, but rather has opted to bypass these state procedures which provide fully for due process of law. Our Supreme Court has expressly held that no private right of action arises out of an employer’s failure to conform to the provisions of the Workers’ Compensation Act. Hoard v. Sears Roebuck & Co., 122 Conn. 185, 192-93, 188 A. 269 (1936).

The established state procedures are adequate, fully protect the rights of the employee and vest exclusive jurisdiction to hear compensation claims with the commissioner. It is well settled that workers’ compensation is the exclusive remedy for an employee seeking redress for work related injuries. Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 375, 423 A.2d 77 (1979). We agree with the trial court’s ruling that no civil rights action was properly pleaded sufficient to invoke 42 U.S.C. § 1983, and that under the circumstances the exclusive jurisdiction of the plaintiff’s claims lies with the workers’ compensation commission.

Since the plaintiff did not complain of the manner in which this action has proceeded, and has never sought to preserve any right he may have had to plead further; see Practice Book § 157; we conclude that no purpose would be served by returning the case to the Superior Court for further pleading. Progressive Casualty Ins. Co. v. DiGangi, supra, 142.

There is no error.

In this opinion the other judges concurred.

       Originally named as defendants were the town of Windham, O. Paul Shaw, former manager of the city of Willimantie, and Neil Mesick and Armand Martineau, two members of the board or selectmen. The plaintiff withdrew the case against Martineau.

       42 U.S.C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”


author: Borden, J.

text:
    State of Connecticut v. Thomas Farrar State of Connecticut v. Clinton Langley
    (3245) (3253)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 5 —
    decision released April 22, 1986

      John R. Williams, with whom, on the brief, was Barbara Goren, for the appellants (defendant in each case).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Mary Galvin, assistant state’s attorney, for the appellee (state).
   Borden, J.

In these combined appeals, the defendants appeal from the judgments of conviction. Both defendants were convicted of attempted sexual assault in the first degree, in violation of General Statutes §§ 53a-49 (a) and 53a-70 (a), and robbery in the first degree, in violation of General Statutes § 53a-134 (a) (3). The defendant Thomas Farrar was also convicted of carrying a dangerous weapon, in violation of General Statutes § 53-206 (a). Each defendant raises five identical claims of error, the most serious of which is that the trial court committed reversible error by instructing the jury that they could use a “more probable than not” standard in drawing inferences from circumstantial evidence. The defendants raise four other claims of error: (1) the denial of their motions to suppress identification testimony by the victim; (2) the improper exclusion of evidence offered by them; (3) the improper denial of access by their counsel to the victim and her family during the trial; and (4) the lack of effective assistance by their trial counsel. We find no error.

The jury could have reasonably found the following facts: On February 13, 1983, the day before the victim’s birthday, there was a blizzard in New Haven. While the victim was shoveling snow at her house after work, she saw two men loitering across the street. That evening, she attended a birthday party for herself and a neighbor at the neighbor’s house. After returning to her home at about 4:30 a.m., she left to buy cigarettes at an all-night convenience store on Dixwell Avenue. About three or four houses from her house, she was attacked by two men. A tall black man grabbed her around the neck, and she felt a sharp object in her back. The man told her he had come back because she told the first time. See footnote 1, infra. As she broke free, the man grabbed the back of her pants, breaking the front fasteners. She ran across the street, where a second black man, shorter than the first, grabbed her, saying “I’m gonna have sex with you.” As he grabbed her, he broke the chain of a “Happy Birthday” medallion which she was wearing, and which she felt slide off her neck. She heard the first man yell to the second to let her go because it was not worth it. The second man responded that “he was going to get it anyway.” When she saw them, she realized that they were the same men who had sexually assaulted her the previous October. She looked carefully at their faces and recognized them. She also recognized them as the two men who had been loitering across the street while she was shoveling snow the previous afternoon. The second man tried to pull down her pants but she managed to escape and run to the convenience store, where the attendant called the police, who arrived shortly thereafter. The victim described the men to the police as two black men, one about 6 feet to 6 feet, 4 inches tall and wearing a tan waist-length jacket, wool cap and jeans; the other as shorter, and wearing a red or burgundy jacket.

Meanwhile, officer Daniel Lorenz of the New Haven police department, armed with the description of the two men, stopped Farrar for questioning on Sheffield Street, which is in the same general neighborhood. Shortly thereafter, the defendant Clinton Langley stepped out of the shadows. Lorenz detained them and radioed to the police at the convenience store that suspects were detained. The police brought the victim to the scene of the detention on Sheffield Street. She immediately recognized the men as her assailants and positively identified them. The defendants were arrested and searched. Farrar was carrying a knife, and in his pocket was the victim’s broken chain and “Happy Birthday” medallion.

Jury Charge on Circumstantial Evidence

The trial court, in charging the jury on circumstantial evidence and drawing inferences, instructed them that they could draw inferences from the circumstantial evidence if “the inference that you are asked to draw or that you consider drawing is not only logical and reasonable but it is strong enough so that you find that it is more probable than not that the fact to be inferred is true. ” (Emphasis added.) The defendants claim that this charge unconstitutionally diluted the state’s burden of proof to establish guilt beyond a reasonable doubt, and that the recent case of State v. Rodgers, 198 Conn. 53, 56-59, 502 A.2d 360 (1985), is dispositive. The state responds that the charge, if erroneous, does not constitute reversible error, and that the recent case of State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986), is dispositive. These two competing claims require us to confront these two Supreme Court decisions, which are certainly divergent in result and appear at first glance to be divergent in approach.

On August 6,1985, the Supreme Court decided State v. Reddick, supra, where the trial court used language in its jury charge; id., 130 n.4; identical to the language which the defendants challenge in this case. The Supreme Court, reading the challenged language not in isolation but as part of the overall charge, and considering the likely effect of that overall charge on the jury, held that “[o]n this record, it is not reasonably possible that the jury was misled by the alleged errors in the court’s instructions.” Id., 132. While not explicitly saying that the challenged language was erroneous, its conclusion that it was not reasonably possible that the jury was misled by the charge was an implicit suggestion that the charge was erroneous, and it was an explicit holding that the error was nonetheless not reversible. See State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982); State v. Torrence, 1 Conn. App. 697, 703-704, 476 A.2d 598 (1984), aff’d, 196 Conn. 430, 493 A.2d 865 (1985). In reaching this conclusion, the court emphasized that, despite the challenged language, the trial court, by its repeated references to the proper burden of proof, “made abundantly clear to the jury that the burden of proof as to every element of the offenses charged was on the state, and that this burden had to be satisfied beyond a reasonable doubt.” State v. Reddick, supra. The court also emphasized, in responding to a related argument by the defendant, that “[i]n the case before us, intent was not a disputed element; identification was the only contested issue.” Id., 133.

On December 17,1985, the Supreme Court decided State v. Rodgers, supra, in which the trial court used language in its jury charge almost identical to the language which the defendants challenge in this case. The Supreme Court, without distinguishing, citing or referring to State v. Reddick, supra, agreed with the defendant “that the requisite standard of proof beyond a reasonable doubt was impermissibly diluted by the trial court’s instruction that an inference may be drawn [from circumstantial evidence] provided ‘that it is more probable that the fact to be inferred is true.’ ” State v. Rodgers, supra, 57.

The defendants claim that Rodgers overruled Reddick sub silentio. We are not prepared to indulge in the presumption that the Supreme Court would so cavalierly overrule such recent authority without even acknowledging that it was doing so. Although the two cases do appear to evince two divergent appellate approaches to the same claim, a careful reading of Rodgers convinces us that it is distinguishable from Reddick, and that the two peacefully coexist.

In Rodgers, the court emphasized that “[m]uch of the evidence produced by the state was circumstantial evidence, especially that bearing on the issue of criminal intent as it related to the crimes charged in the substitute information.” Id., 58. It also emphasized that “[t]he trial court twice gave . . . [the challenged] instruction to the jury, once during its general instructions on burden of proof, and again during its specific instructions on the elements of sexual assault in the first degree.” Id., 58 n.2. In Reddick, however, the court emphasized that the evidence against the defendant was principally identification, not circumstantial, evidence, that intent was not a disputed issue, and that the challenged instruction was not repeated as part of the definitions of the elements of the charged offenses.

The differing analyses in these two cases are consistent with the established principle that the trial court’s instructions must be examined with reference to the factual issues in the case. State v. Torrence, supra, 705; State v. Grant, 6 Conn. App. 24, 28, 502 A.2d 945 (1986). Where the principal factual issue is intent, which is characteristically proven by circumstantial evidence; see State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); the trial court’s instructions regarding the use of circumstantial evidence as proof of this essential element are subject to close scrutiny. See State v. Rodgers, supra, 58. Where, as here, the principal factual issue is identity, which is not classically dependent upon circumstantial evidence for its proof, the trial court’s instructions may be read as a whole to determine whether it is reasonably possible that the jury was misled by an erroneous explanation regarding the use of circumstantial evidence. See State v. Reddick, supra, 133.

It is clear that the present case falls within the confines of State v. Reddick, supra, and outside the confines of State v. Rodgers, supra. The state’s evidence, while bolstered by the circumstantial evidence of Farrar’s possession of the victim’s medallion and of a knife, was based primarily on the direct evidence of the victim’s testimony and identification of the defendants as her assailants. Identity, not intent, was the disputed issue. Indeed, both defendants claimed and offered evidence of alibi. As in Reddick, the trial court in this case made repeated references to the state’s burden of proof beyond a reasonable doubt, both in its general instructions and in its specific instructions on intent. Furthermore, unlike Rodgers, in this case the trial court gave the challenged instruction but once, as part of its general instructions on circumstantial evidence, and did not repeat it when defining the essential elements of the crimes charged. We conclude, therefore, that although it was error for the court to charge as it did, considering the overall charge and its likely effect on the jury, it is not reasonably possible that the jury was misled. State v. Reddick, supra, 132. The error, therefore, was not reversible.

Identification of the Defendants

Both defendants filed motions in limine to suppress the evidence of the victim’s identification of them. After a hearing, the court denied the motions and the defendants duly excepted. The victim then testified to her out-of-court identification of the defendants, and identified them in court as well. The defendants claim that the court erred in denying their motions. We disagree.

Whether an identification procedure offends due process depends (1) on whether it was impermissibly and unnecessarily suggestive, and (2) if so, on whether the identification was nonetheless reliable based on the totality of the circumstances. State v. Amarillo, 198 Conn. 285, 292, 503 A.2d 146 (1986); State v. Anderson, 6 Conn. App. 15, 19-23, 502 A.2d 446 (1986).

Although, as the state concedes, the out-of-court show-up here was suggestive; see State v. Mitchell, 7 Conn. App. 46, 64, 507 A.2d 1017 (1986); the defendants have not met their burden of establishing that the suggestive procedure was also impermissible and unnecessary. Id.; State v. Anderson, supra, 20-21. The show-up took place on the street, in the early morning hours, less than an hour after the assault, and within minutes after the investigative detention of the defendants. Thus, a lineup was not feasible, since the defendants were not in custody and a lineup would have caused considerable delay. State v. Willin, 177 Conn. 248, 252, 413 A.2d 829 (1979). The confrontation took place when the victim’s recollection was fresh, when the need of the police either to establish probable cause or dispel their suspicion was acute, and when, if probable cause were established, the necessity of searching the defendants was strong. State v. Mitchell, supra. This conclusion that the out-of-court identification was not impermissibly suggestive renders it unnecessary to consider whether that identification was nonetheless sufficiently reliable to go to the jury, and whether the in-court identification was irrevocably tainted. Id. The court did not err in admitting the identification of the defendants by the victim.

The Defendants’ Claim of Evidentiary Error

The defendants sought to introduce into evidence a part of a metal chain Farrar claimed to be part of the medallion chain which the police seized from him upon his arrest. He claimed that the chain seized from him had been given to him by a relative, and that the proffered part of the metal chain had been in his jewelry box at his home from the time of his arrest until he gave it to his attorney a week before the trial. The court sustained the state’s objection on the ground that the defendants had not established a proper foundation by way of a chain of custody, prior to Farrar’s turning the metal chain over to his attorney, so as to establish that the proffered item had not been altered. This ruling was based in part upon Farrar’s testimony that others had access to the jewelry box. The defendants neither excepted to this ruling nor claimed, as they do on appeal, that their fundamental constitutional right to present a defense was violated by this offer of evidence. Thus, they seek review under the Evans bypass. State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

The defendants’ Evans effort founders because the record simply does not support their claim that the ruling of the trial court clearly deprived them of a fundamental constitutional right and a fair trial. State v. Lopez, 5 Conn. App. 599, 602-603, 502 A.2d 418 (1985). This single evidentiary ruling was “not of constitutional dimension.” State v. Brown, 199 Conn. 14, 24, 505 A.2d 690 (1986). The ruling concerned whether a proper evidentiary foundation had been laid. “ ‘That is not an issue of constitutional .dimension, but rather of the trial court’s discretion.’ ” Id. “ ‘Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. In this instance, the defendant has put a constitutional tag on a nonconstitutional claim.’ State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).” State v. Cosby, 6 Conn. App. 164, 167, 504 A.2d 1071 (1986).

The Defendants’ Claim of Improper Denial of Access by Counsel to the Victim and Her Family

The defendants claim that the trial court denied them their rights to due process, to compulsory process and to effective assistance of counsel, by prohibiting their counsel from interviewing the victim and members of her family during the trial. They seek review of this claim under Evans. This claim commands no legitimacy whatsoever under Evans; we therefore decline to review it. Indeed, it has so little connection to the reality of what took place at the trial that we can only conclude that the defendants’ appellate counsel, who was not their trial counsel, has permitted zeal of advocacy to overwhelm any modicum of fidelity to the record.

The trial began on March 2,1984, approximately one year after the date of the incident in question. At the end of the first day, after the completion of the victim’s direct examination, a colloquy took place among the assistant state’s attorney, the court and the defense counsel, which is quoted in full in the footnote. From this record, the defendants’ appellate counsel imagines a scenario in which “the trial court upon the State’s oral motion entered an order . . . making it a condition of the defendants’ bond that the defendants ‘have no contact direct or indirect with the victim or any member of her family while this case is pending.’ ” (Emphasis supplied in defendants’ brief.) On this foundation, counsel builds the argument that the trial court “ enter[ed] an order on the first day of trial that effectively prohibited defense counsel from interviewing the complainant and members of her family during the pendency of the trial,” thus violating the defendants’ rights to prepare a defense, to secure witnesses by compulsory process and to receive the effective assistance of their counsel.

The fundamental flaw in the defendants’ argument is that there is no indication whatsoever in this record that anyone in the courtroom — the defendants, their counsel, the assistant state’s attorney or the trial judge — understood the court’s ruling to be anything like what the defendants’ appellate counsel characterizes it to be. Indeed, the indications are all to the contrary. The record discloses that the state’s motion was prompted by recent discussions with the victim which suggested intimidation of her by the defendants. See Practice Book § 667. The ruling of the trial court applied only to contact between the defendants themselves and the victim, not to members of her family, and certainly not to any effort by the defendants’ counsel to interview her or anyone else. See footnote 6, supra. There is no indication that their counsel deemed it necessary to interview her or her family at this stage of the proceedings, one year after the arrest of the defendants and after the victim had completed her direct testimony. Furthermore, the ruling of the court was not what the defendants' appellate counsel quotes it to be, namely, that the defendants “have no contact direct or indirect with the victim or any member of her family while this case is pending.” (Emphasis added in defendants’ brief.) This language is from the state’s oral motion; it is not from the court’s ruling. The language of the court’s ruling was quite general. After some remarks about consciousness of guilt and obstruction of justice, the court said: “So I think I’ll impose it as an additional condition of their [bond]. Keep yourselves well absent from anything to do with that.” It is not at all clear from this printed record what “that” refers to, but it is clear that neither the defendants nor their counsel understood it as imposing limits on counsel’s activity on their behalf. Certainly, he did not fear that interviewing the victim or members of her family could be construed as consciousness of guilt or obstruction of justice by his clients. The defendants and their trial counsel were content with the ruling. It is also noteworthy that in discussing the inadvisability of contact between Langley’s brother and any relative of the victim, the court said: “That’s not an order. That’s a suggestion. . . . I think these gentlemen understand what I’m saying. I certainly hope they do.” Their counsel responded: “If they don’t, Your Honor, I’ll explain it further.” An unbiased reading of the entire colloquy indicates that the court’s ruling and suggestion were animated, in part at least, by the hope that the defendants avoid inadvertent contact with the victim which could later redound to their detriment.

“We therefore conclude that the defendant[s’] claim on appeal fails to pass the first of the three requirements for an Evans review, namely, that the record supports a claim that the trial court’s action raises a question of fundamental constitutional dimension.” State v. Cosby, supra, 171-72. This chimerical claim is nothing more than an attempt on appeal to turn the trial into “a Kafkaesque academic test which [the trial judge] may be determined on appeal to have failed because of questions never asked of him or issues never clearly presented to him.” State v. Cosby, supra, 174.

The Defendants’ Claim of Ineffective Assistance of Trial Counsel

The defendants’ final claim is that, on the face of the record, their trial counsel’s conduct fell far below the constitutionally mandated standard of competent counsel. This claim is disposed of by the recent case of State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (1986), where the Supreme Court held that all claims of ineffective assistance of counsel, whether based solely on the trial record or requiring an evidentiary hearing, should be determined by way of a habeas corpus action. See Sutton v. Robinson, 6 Conn. App. 518, 520-21, 506 A.2d 566 (1986).

There is no error.

In this opinion the other judges concurred.

       The victim testified that the previous October, in the same general vicinity, she had been raped by the same two men, but that she did not report that incident to the police because they threatened to come back and kill her if she did.

       The entire charge on circumstantial evidence, of which the quoted language in the text is a part, was as follows: “I’d like to talk to you for a few minutes about circumstantial evidence and it’s a phrase that you’ve all heard in your past lives. It’s a phrase or consideration that some of you may or may not be more familiar with than others. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting every fact or any fact. You may apply a rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied. Firstly, that the fact which you are asked to draw — The fact from which you are asked to draw an inference has itself been proven beyond a reasonable doubt. Secondly, that the inference that you are asked, to draw or

        that you consider drawing is not only logical and reasonable but it is strong enough so that you can find that it is more probable than not that the fact to be inferred is true. In summary it’s your right to draw inferences if you conclude the fact you find proven reasonably establish [sic] other facts by reason and logic and are not the result of speculation, surmise or guess work. If from the facts you find proven you reasonably infer such other facts you may then use such other facts so inferred as the basis for inference or inferences that other facts exist including facts that go to establish guilt or innocence of either or both of the defendants.” (Emphasis added.)

       Because they did not take an exception to the charge as given, the defendants seek review under the Evans bypass. State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Their claim is sufficiently similar to the kind of burden-shifting claim for which the Supreme Court has afforded Evans review; see State v. Williams, 199 Conn. 30, 33, 505 A.2d 699 (1986); that we will invoke our “principled appellate discretion”; State v. Cosby, 6 Conn. App. 164, 172, 504 A.2d 1071 (1986); and review it. Furthermore, appellate review is appropriate here as an attempt to resolve the apparent conflict between the two recent Supreme Court cases on which the defendants and the state rely.

       We note that the Supreme Court reviewed a similar ruling in State v. Stepney, 191 Conn. 233, 243-46, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984), in which the trial court excluded bloodstained trousers offered by the defendant, on the ground that an insufficient foundation had been laid. The Supreme Court held that the ruling was discretionary, and that the trial court had not abused its discretion. Id., 246.

       This is not the first time we have noted that this particular appellate counsel, who had not tried the case, has resorted to claims on appeal “which are totally unsubstantiated by anything in the record.” Yale Literary Magazine v. Yale University, 4 Conn. App. 592, 603 n.4, 496 A.2d 201 (1985); cert. granted, limited to different issue, 197 Conn. 819, 501 A.2d 389 (1985). Apparently, he has not heeded our admonition that such tactics “have no place in appellate practice and cannot be tolerated.” Id.

       “Ms. Galvin [Assistant State’s Attorney]: . . . [T]here is additional matter that I’d like to alert the court on before we recess tonight.
      “Both of these Defendants are currently released on fairly substantial bonds with no condition on those bonds and in light of my discussion with the victim over the past days there are obvious intimidations being important, Your Honor, I would move that a special condition be attached to the bonds of each of these Defendants that they have no contact direct or indirect with the victim or any member of her family while this case is pending.
      “The Court: Mr. O’Donnell
      “Mr. O’Donnell [Defense Counsel]: So long that incidental contact that is they are ten blocks apart and she lives on Dixwell Avenue which is an avenue which may well be traveled frequently. As long as incidental contact isn’t misconstrued.
      “Ms. Galvin: Well, your Honor—
      “The Court: Well I would think that under the circumstances that your clients would be well advised to ensure that there is [not] even incidental contact and—
      “Mr. O’Donnell: I’ll advise them of such.
      “The Court: I would say so because they’re you know — There shouldn’t be — Nothing should occur that would give the Court and I’m just saying this for your benefit, Gentlemen. There are things that occur or can occur during the trial that can be admitted into evidence as evidence or actions showing a consciousness of guilt or obstruction of justice. I see very few incidents of it. I have [sic] incidents of obstruction of justice in New London last year and it resulted in the [sic] and it was a serious incident and it resulted in the ramification of a bond and the setting of no bond during the trial. We don’t need you know anything like that. So I think I’ll impose it as an additional condition of their probation. Keep yourselves well absent from anything to do with that. Now if you want to ask me something ask it through your lawyer, would you?
      “Ms. Galvin: That’s as to bond, Your Honor.
      “The Court: Bond.
      “Ms. Galvin: Thank you, Your Honor.
      “Mr. O’Donnell: Your Honor, Mr. Langley’s only concern and I think it relates to the incidental contact that I mentioned. He believes that the victim’s brother is a fireman at the same station that Mr. Langley’s brother is a fireman.
      “Ms. Galvin: It’s my understanding that Mr. Langley’s brother has been transferred from that fire house where someone who does have a relationship with the victim works. It’s my understanding that his brother works at Dixwell Station. The person who has contact with the victim does not work at Dixwell Station.
      “The Court: Well. What ever.
      “Mr. O’Donnell: That’s his only concern that that contact—
      “The Court: What does this have to do with his brother’s contact? It can only relate to him and there are a couple of cases out of this state and other jurisdictions where there have been examples of attempts to impede the trial or the process by the use of a third person. Those actions if they’re established can be included to Defendants. They and I want you gentlemen to realize I’m not saying this because I have any belief that you’re going to do this. I’m responding this way because the question has been raised by the State’s Attorney. I am not anxious to see anything happen that’s going to place any additional obstacle into the case for anybody and I don’t want anybody that’s connected with the case to have any difficulty whatsoever. Whether they’re connected to the case through the Defendant’s standpoint or connected through the State’s standpoint. If there’s contact between his brother and the brother of [the victim] or relative of [the victim] they better each talk to their relatives and say look. We’ve got a serious matter going on in Superior Court. Do me a favor and you know just for a while stay apart or do whatever you have to do. That’s not an order. That’s a suggestion.
      “Ms. Galvin: I’ve already done that as far as our side’s concerned, Your Honor.
      “The Court: I think these gentlemen understand what I’m saying. I certainly hope they do.
      “Mr. O’Donnell: If they don’t, Your Honor, I’ll explain it further.
      “The Court: I want them to understand I’m not saying it because I personally] think these things are going to happen. As a Judge I have to respond to questions that are raised on the record by either one of the lawyers and that’s all I’m doing here. Alright. Recess till Monday.” (Emphasis added.)


author: Daly, J.

text:
    Laura Lee Genco v. Connecticut Light and Power Company
    (3937)
    Dupont, C. J., Boeden and Daly, Js.
    Argued December 13, 1985 —
    decision released April 22, 1986

      Thomas L. Nadeau, for the appellant (plaintiff).

      James K. Robertson, Jr., for the appellee (defendant).
   Daly, J.

The plaintiff initiated this action by a complaint in two counts, negligence and nuisance, to recover damages for personal injuries sustained as a result of a diving accident in a lake owned by the defendant. From the granting of a summary judgment, on both counts, in favor of the defendant, the plaintiff has appealed.

Certain facts are not in dispute. The defendant, Connecticut Light and Power Company, is the owner of Candlewood Lake, located in the southwestern part of the state and purported to be Connecticut’s largest lake. Abutting the lake are approximately 3000 private homes, an inn, several marinas, a state park and boat launch, and five municipal beaches. The lake, which is man-made, is used for recreational purposes such as swimming, diving, boating and fishing. The general public has access to the lake from the state park. Residents of five municipalities, and some others, have access to the municipal beaches. Inhabitants of the private homes have access to the lake over their land abutting the lake as do patrons of the inn and the marinas. While the municipalities charge their patrons a small fee for the use of their beaches, the defendant does not charge the users.

The plaintiff, Laura Lee Genco, was seriously injured when she dove into the lake and struck its bottom. Her complaint rests upon her allegations that the defendant failed to maintain a safe recreational level of water in the lake, failed adequately to warn users of the lake of its unsafe depth, and failed to abate a nuisance.

The defendant moved for summary judgment under General Statutes § 52-557g, alleging that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. The trial court rendered a summary judgment in favor of the defendant, holding that General Statutes § 52-557g afforded the defendant immunity on both counts and further holding that the statute was constitutional.

In opposing the defendant’s motion for summary judgment on the ground that material factual disputes exist, the plaintiff relies principally on the depositions of various officials associated with facilities at the lake. The plaintiff’s claim of error, however, still founders upon her failure to demonstrate that there is a material fact in issue, in accordance with summary judgment procedures outlined in Practice Book §§ 380 and 382. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 10, 459 A.2d 115 (1983). “A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. . . . When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [Practice Book] § 380, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant.” (Citations omitted.) Id., 11-12.

The plaintiff claims that certain facts are in dispute: whether the land around the lake is made “available” to the public; whether public availability of the lake is offered to those who must trespass over private land to gain access; and whether the legislature intended, under the statute, to prohibit the owner but not intermediaries from charging fees to users.

“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. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. ‘Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . . Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984), quoting Bartha v. Waterbury House Wrecking Co., supra, 12. The disputed fact or facts must be material. A material fact is simply a fact which will make a difference in the result of the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).

In order to come within the purview of General Statutes § 52-557g (a), the defendant must establish that it is an owner of land available to the public without charge for recreational purposes. In reviewing the record, we conclude that the defendant meets the requirements of § 52-557g (a) and the statutory definitions as set forth in General Statutes § 52-557f.

Contrary to what the plaintiff argues, signs posted by the defendant restricting use in certain locations on the lake (near a dangerous waterfall overlook, for example) do not put a material fact in issue. Further, the plaintiff incorrectly claims that the defendant did not make the lake available to the public. Affidavits submitted by the defendant firmly establish that Candle-wood Lake is available to the public for many recreational uses with various means of access, including a state park, marinas and municipal beaches. It is undisputed that Candlewood Lake is one of the major recreational areas in the state and is used by people numbering in the tens of thousands.

A review of the legislative history, reveals that the clear purpose of § 52-557g is an attempt to satisfy the public’s need for recreational and open space by encouraging private land owners, through limiting their liability, to open their land to public use. The government alone cannot meet this need. “[W]e have long depended and will continue to depend upon the generosity of private owners of land and water to open their property to the use and enjoyment of their fellow citizens. ... So this act here is to allow limited liability . . . of Connecticut property owners to open their land for public use without charge.” 13 H.R. Proc., Pt. 4, 1971 Sess., p. 1805 (remarks of Rep. David Lavine).

For the court to hold that the plaintiff’s accident “falls outside the statute would have the effect of discouraging landowners from opening their lands for any public use free of charge. It would require that a landowner either open up his land for all purposes, or greatly increase the number of security personnel to ensure that only permitted uses occur in order to secure the protection of the statute.” (Emphasis in original.) Jennett v. United States, 597 F. Sup. 110, 113 (D. Conn. 1984).

The plaintiff argues that the lake can hardly be considered “available to the public” if people must trespass over some portion of its perimeter to get there. As presented in the defendant’s affidavits, numerous facilities such as the state park, town beaches, and marinas, are maintained on the lake to provide extensive availability to the public. The fact that, at other points on the perimeter of the lake, one must trespass in order to gain access to the lake, does not remove the lake from the purview of the statute.

The defendant leases land to marinas and town beaches, which in turn charge small fees to their users to cover their costs of maintenance and operation. The plaintiff claims that these leases and fees constitute “charges” within the meaning of § 52-557g (a). General Statutes § 52-557h, which is cross referenced to § 52-557g (a), provides that an owner is liable “(2) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this section. ’’(Emphasis added.) Thus, under § 52-557h, any financial arrangements made between the defendant and the state and the five towns utilizing the facilities are not deemed charges.

The defendant produced affidavits of persons managing lake-front facilities which reveal that the defendant never charged any fee to users. General Statutes § 52-557Í defines “charge” as “the admission price or fee asked in return for invitation or permission to go upon land.” Fees charged by marinas, boat docks, or private facilities under a lease with the defendant do not constitute “charges” within the meaning of General Statutes § 52-557f. Livingston v. Pennsylvania Power & Light Co., 609 F. Sup. 643, 648 (D.C. Pa. 1985). In construing a similar recreational use statute in Pennsylvania, the court in Livingston explained that “charge” connotes a “ ‘ “quid pro quo,” i.e., a charge in exchange for permission to enter that land at that time.’ ” (Emphasis in original.) Id., quoting Hahn v. Commonwealth, 18 Pa. D. & C. 3d 260, 265 (1980). The fees which the plaintiff claims constitute a charge “cannot logically be considered such a “quid pro quo.” The court in Livingston further held that “[t]he only way to avoid inconsistent application of the Act . . . is to interpret the word ‘charge’ ... as an actual admission price paid for permission to enter the land at the time of its use for recreational purposes.” Livingston v. Pennsylvania Power & Light Co., supra. A fee charged by a marina to the boat owners who dock their boats at the marina is not an admission price but merely an operational or maintenance charge. Furthermore, as provided in General Statutes § 52-557h (2), fees charged by the entities, public or private, which abut the lake do not make the defendant liable as an “owner of land [who] charges the person or persons who enter or go on the land for the recreational use thereof . . . . ”

The plaintiff further claims that the nuisance count is unaffected by the statutes relied upon and, therefore, that summary judgment should not have been rendered on that count. The plaintiff claims that her nuisance count is guarded from the effect of General Statutes § 52-557g. The language of the statute clearly' provides that the owner of land “owes no duty of care” and “does not . . . assume responsibility for or incur liability for any injury . . . caused by an act or omission of the owner.” By referring generally to “duty of care” and “liability for injury,” the statute does not expressly limit actions in negligence or nuisance and, therefore, the defendant is immune to an action in nuisance under the statute.

Where the legislative intent is clear, and the language used is unambiguous, there is no room for statutory construction. Seals v. Hickey, 186 Conn. 337, 346, 441 A.2d 604 (1982); Holden & Daly, Connecticut Evidence § 50. Furthermore, there is no mention in the statute of liability for nuisance. A majority of courts construing similar statutes have held that “the recreational use law authorizes recovery in the circumstances of [the] case only if gross negligence or willful and wanton misconduct is shown.” Burnett v. City of Adrian, 414 Mich. 448, 453-54, 326 N.W.2d 810 (1982); Graham v. County of Gratiot, 126 Mich. App. 385, 389, 337 N.W.2d 73 (1983). That statute prohibited recovery on the basis of nuisance. Similarly, our statute authorizes recovery “[f]or wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.” General Statutes § 52-557h (1). It does not authorize recovery for nuisance.

The plaintiff further claims that § 52-557g is unconstitutional, especially as applied, and that the trial court incorrectly dismissed the claim based on Warner v. Leslie-Elliot Constructors, Inc., 194 Conn. 129, 479 A.2d 231 (1984), in which the Supreme Court discussed an analogous statute, General Statutes § 52-557j. Section 52-557j, which provides in plain language that no landowner will be liable for any injuries to operators or passengers arising from the operation of certain vehicles including motorcycles on the landowner’s property unless the landowner charged a fee for the operation, or unless the injury is caused by the wilful or malicious conduct of the landowner, withstood a constitutional challenge on equal protection grounds in Warner v. Leslie-Elliot Constructors, Inc., supra, wherein, the language was deemed clear and unambiguous. A statute limiting private property owner’s liability for injuries sustained on his property to situations in which there has been wilful or malicious failure to warn against dangerous conditions is not a special law in contravention of the state constitution and does not deny equal protection. See Goodson v. Racine, 61 Wis. 2d 554, 213 N.W.2d 16 (1973).

It is well settled that a plaintiff who attacks a state statute on constitutional grounds has the difficult burden to prove unconstitutionality beyond a reasonable doubt. State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985); Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973); Holden & Daly, Connecticut Evidence § 60i. “If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge.” Ryszkiewicz v. New Britain, 193 Conn. 589, 597, 479 A.2d 793 (1984). The legislative purpose of encouraging private landowners to open their land to the public for recreational purposes constitutes a legitimate governmental purpose, and the statutory limitation of liability is rationally related to the purpose. The classification of persons able to seek redress under the statute is not arbitrary, unreasonable or capricious. Estate of Thomas v. Consumers Power Co., 58 Mich. App. 486, 496, 228 N.W.2d 786 (1975).

The plaintiff further claims the statute violates article first, § 10 of the Connecticut constitution, which states that “all courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” If viewed as a limitation on the right to redress for an injury caused by negligence or nuisance, the restricted liability of landowners would stand contrary to the mandate of article first, § 10, and thus must fall. Gentile v. Altermatt, 169 Conn. 267, 363 A.2d 1 (1975). This statutory scheme, however, “does not restrict the right to redress for an actionable injury but, rather, redefines the injury or the class of persons injured to which this constitutional right of redress attaches. . . . Thus, the right of redress for injury is constitutional in its nature but the nature of a specific injury is a right derived from the common law or statute.” Id., 284-85. A statute limiting the liability of owners who provide the public with park area for outdoor recreational purposes is a reasonable exercise of legislative power, and it does not violate the constitutional provision that the courts shall be open to every person for redress of any injury. Abdin v. Fischer, 374 So. 2d 1379 (Fla. 1979).

Finally, the plaintiff's claim that the statute violates the distribution of powers clause of article second of the Connecticut constitution, in particular that the legislature has usurped the power of the judiciary, is without merit. “It is the province of the legislative department to define rights and prescribe remedies: of the judicial to construe legislative enactments, determine the rights secured thereby, and apply the remedies prescribed.” Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 (1905). “Executive, legislative and judicial powers, of necessity overlap each other, and cover many acts which are in their nature common to more than one department. . . . To be unconstitutional in this context, a statute must not only deal with subject matter which is within the judicial power, but it must operate in an area which lies exclusively under the control of the courts.” State v. Clemente, 166 Conn. 501, 510-11, 353 A.2d 723 (1974). We fail to see how this statute intrudes at all on the judicial function.

The plaintiff has not sustained her burden of proof on the constitutional claims. “The test of the requirement for the granting of a summary judgment that the moving party be entitled to judgment as a matter of law is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts. ... In Connecticut, a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict directed.” (Citations omitted.) United Oil Co. v. Urban Redevelopment Commission, supra, 380.

We conclude that the pleadings and affidavits viewed in the light most favorable to the plaintiff fail to disclose any genuine issue as to any material fact meriting a hearing, and that the applicable law requires judgment for the defendant. Thus, summary judgment was appropriate.

There is no error.

In this opinion the other judges concurred.

       A separate action by the plaintiff against James Robert Taylor, the owner of the land by which the plaintiff gained access to the lake, was consolidated but is not involved in this appeal.

       General Statutes § 52-557g provides in pertinent part: “Liability of owner of land available to public for recreation; exceptions, (a) Except as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes.
      “(b) Except as provided in section 52-557h, an owner of land who, either directly or indirectly, invites or permits without charge, rent, fee or other commercial service any person to use the land, or part thereof, for recreational purposes does not thereby: (1) Make any representation that the premises are safe for any purpose; (2) confer upon the person who enters or uses the land for recreational purposes the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of the owner.”

       Practice Book § 380 provides: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the court otherwise directs. The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file shall be filed and served as are pleadings.”
      Practice Book § 382 provides: “Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present facts essential to justify his opposition, the court may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make other order as is just.”

       General Statutes § 52-557f provides in pertinent part: “Landowner liability for recreational use of land. Definitions. . . .
      (1) ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land;
      (2) ‘Land’ means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty;
      (3) ‘Owner’ means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises;
      (4) ‘Recreational purpose’ includes, but is not limited to, any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding and viewing or enjoying historical, archeological, scenic or scientific sites.”

       14 S. Proc., Pt. 4, 1971 Sess., pp. 1677-81; 12 S. Proc. Pt. 5, 1967 Sess., pp. 2329-30; 13 H.R. Proc., Pt. 4,1971 Sess., pp. 1804-1806; 12 H.R. Proc., Pt. 19, 1967 Sess., pp. 1452-53; Legislative Council, 12th Biennial Report, pp. 84-86 (1966).


text:
    Harry Skolnick and Sons v. Samuel J. Heyman
    (3787)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 7 —
    decision released April 22, 1986

      Jeffrey D. Ginzberg, with whom, on the brief, was Arnold M. Potash, for the appellant (plaintiff).

      Austin K. Wolf, with whom were Stewart I. Edelstein and, on the brief, Daniel S. Nagel, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the judgment of the trial court denying his application to confirm what he claimed to be two arbitration awards. The plaintiff is a contractor which constructed two shopping centers for the defendant. The dispositive issue is whether the identical provision in the two construction contracts between the parties requiring the submission of certain disputes over payment for determination by the projects’ architect is an agreement for arbitration, and whether, therefore, the architect’s determinations are subject to confirmation pursuant to General Statutes § 52-417. The trial court held that it is not. We agree with the reasoning of the trial court, and find error only in the form of the judgment.

The facts are not in dispute. The parties entered into two contracts pursuant to which the plaintiff constructed shopping centers in Norwalk and New Britain on land owned by the defendant. Article XX of both contracts, set out in full in the footnote, provides for the resolution of certain disputes between the parties by the architect. Section 20.1 provides that, with respect to any unresolved dispute regarding payment to the plaintiff, “the issue of whether such payment or any part is then due and owing to the Contractor under this Agreement shall be submitted to the Architect, for determination.” Section 20.2 provides that with respect to any dispute regarding certain credit to be given to the defendant, “said credit shall be determined by the Architect.” Section 20.3 provides for the equal division of the architect’s fees for his services in making these determinations. Other similar contractual provisions commit to the architect the determination of the price of certain change orders on which the parties cannot agree, the determination of certain other disputed additional costs, and the determination of disputed progress payments.

Pursuant to Article XX, the architect rendered two decisions. After payments and credits, the plaintiff claims a balance under these decisions of $247,500.16. The plaintiff sought, by way of a single application, to confirm these decisions as arbitration awards, pursuant to General Statutes § 52-417. The trial court concluded that the agreement between the parties was not an agreement for arbitration, but was an agreement providing that the architect’s determination was a condition precedent to the plaintiff’s right to payment, after which the plaintiff was required to bring a plenary action, and that the summary statutory proceedings to confirm arbitration awards was not applicable. This appeal followed.

We first consider our scope of review. “[Ajbsent a statutory warranty or specific contract language, whether there was a contract and the scope of its terms are questions of fact to be determined by the trier on the basis of all the evidence”; Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 404, 499 A.2d 64 (1985), cert. granted, 198 Conn. 802, 501 A.2d 1213 (1986) ; and are thus subject to a limited scope of review by this court. Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985). We conclude that the court’s factual conclusions regarding the meaning of the agreement between the parties were not clearly erroneous.

We agree with the plaintiff that it is not determinative that the agreement does not use the term, “arbitration.” “An agreement to arbitrate is not required to be stated in any particular form or wording, and the use of technical or formal words is not required.” 5 Am. Jur. 2d, Arbitration and Award § 12. In Covenant Ins. Co. v. Banks, 177 Conn. 273, 280, 413 A.2d 862 (1979), the Supreme Court construed an insurance policy appraisal clause, which did not use the term, “arbitration,” as an arbitration clause. The court read our case law definition of “arbitration” broadly, because of the recognition that “[ijt is important as a matter of policy to have a device that allows one party to an insurance contract to compel compliance with the policy’s appraisal procedure when the other party is reluctant to proceed.” Id.

Our cases define “arbitration as ‘the voluntary submission ... of an existing or future dispute to a disinterested person or persons for final determination’; (emphasis added.) Kantrowitz v. Perlman, 156 Conn. 224, 226, 240 A.2d 891 (1968).” Covenant Ins. Co. v. Banks, supra; Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 121, 318 A.2d 84 (1972). Nor is it determinative that the contractual arrangement of the parties here appears to fit within the general definition of arbitration. As with the construction of any contractual provision, the decisive question is the intent of the parties. Lavigne v. Lavigne, supra, 427-28.

Although there is no particular form of words required to form an agreement to arbitrate, “the intent of the parties that arbitration be the exclusive method for the settlement of disputes arising under the contract must be clearly manifested. This express intent by both parties to enter into the arbitration agreement is essential to its existence.” (Emphasis added.) Domke, Commercial Arbitration § 5.01, p. 49. An agreement to arbitrate must be clear and direct and not depend on implication. Id; accord Albers Milling Co. v. Barge Antone F, 487 F. Sup. 37 (W.D. Wash. 1980) (“no valid arbitration unless the parties have expressly contracted to use this method of adjudication of the dispute”) Maross Construction, Inc. v. Central New York Regional Transportation Authority, 66 N.Y.2d 341, 345, 488 N.E.2d 67, 497 N.Y.S.2d 321 (1985) (when agreement to arbitrate is “clearly expressed,” parties may be compelled to submit to arbitration).

In this case, the trial court did not find a clearly expressed intent of the parties to use the services of the architect as an arbitrator. Instead, the court found that they intended that his determinations would constitute a condition precedent to the plaintiffs right to payment, and that they intended those determinations to be enforceable, not by the summary statutory proceedings for confirmation of arbitration awards, but by a plenary action based on those decisions. In such an action, the architect’s determinations will be binding on the defendant if they were made in good faith. Dahl v. Edwin Moss & Son, Inc., 136 Conn. 147, 153-54, 69 A.2d 562 (1949); Chatfield Co. v. O’Neill, 89 Conn. 172, 173, 93 A. 133 (1915). These factual findings of the trial court are reasonably drawn from the language of the agreement and its surrounding circumstances. We cannot conclude that the intent of the parties is so clearly manifested as to render these findings clearly erroneous. We therefore decline to disturb the decision of the trial court in this respect.

The trial court denied the plaintiff’s application to confirm the architect’s determinations as arbitration awards. Since the court had no jurisdiction under the arbitration statute to confirm these nonarbitration determinations, the plaintiff’s application should have been dismissed, rather than denied.

There is error in the form of the judgment, the judgment is set aside and the case is remanded with direction to render judgment dismissing the plaintiff’s application.

In this opinion the other judges concurred.

       Article XX provides: “20.1 In the event of any dispute of any payment to be made to the Contractor which is not resolved by the parties, then the issue of whether such payment or any part is then due and owing to the Contractor under this Agreement shall be submitted to the Architect, for determination. Upon issuance of a certificate for payment by such Architect, the amount set forth therein shall be paid by Owner to Contractor within five (5) days after receipt by Owner.
      “20.2 In the event there should be any dispute between the parties regarding credit to be given to Owner in connection with work not required to be performed under Exhibit C in connection with the Small Stores, said credit shall be determined by the Architect.
      “20.3 If the services of the Architect are required, Owner and Contractor each agree to pay fifty (50%) per cent of such fee made by the Architect referred to herein [sic] shall be conclusive and binding on the parties without right of appeal.”
      Neither party has addressed the import of the grammatical obscurity of § 20.3. We therefore decline to do so as well.

       Although entitled “Order to Confirm Award,” the application did not request in its claim for relief that the award be confirmed. See Practice Book, Form 604.17. Instead, the application prayed for (1) judgment in the amount of $247,500.16, (2) judgment for extra work in the amount of $34,981.74, a disputed issue which the architect had declined to resolve, and (3) other appropriate relief.

       The trial court also determined, because of what can only be seen as a series of clerical and evidentiary mishaps, that only the Norwalk agreement, and not the New Britain agreement, was before the court. The plaintiff raises this determination as an additional claim of error on appeal. We need not consider this claim because of our conclusion that the trial court did not err in its construction of the Norwalk agreement, and because of the stipulation of the parties, which is clear from the record, that the relevant provisions of the New Britain agreement are identical to those of the Norwalk agreement.