author: Dupont, C. J.

text:
    Kristine Miles v. Robert W. Perry et al.
    (4736)
    Dupont, C. J., Borden and Daly, Js.

      Argued March 3
    decision released July 21, 1987

      Tracy Alan Saxe, for the appellant (named defendant).

      Barry J. Boodman, for the appellants (defendants Joyce Yerwood et al.).

      Kathryn C. Senie, with whom was Christopher G. Senie, for the appellee (plaintiff).
   Dupont, C. J.

In this defamation action, the defendants appeal from the judgment of the trial court rendered in favor of the plaintiff. The dispositive issues to be determined on this appeal are whether the trial court erred (1) in concluding that the plaintiff is not a public figure, (2) in holding that the defendants did not successfully prove any recognized privilege which would immunize them from liability for harm caused by defamatory falsehoods, (3) in awarding the plaintiff $25,000 as general damages, without proof of special damages, and (4) in holding the defendants jointly and severally liable for the entire amount of damages. We find no error.

The trial court found the following facts. The plaintiff had been a member of the Union Baptist Church in Stamford for thirty years. She served on the church’s finance committee and as the financial secretary of the church for the six years immediately prior to the time when the church’s board of trustees eliminated the latter position. The defendants are the pastor of the church and several members of the church’s board of trustees.

In 1981, the defendants employed an accountant to review the church’s tax exempt status. The review prompted an investigation by the board of trustees concerning the financial affairs of the church. In January, 1983, a meeting of the church membership was called for the purpose of informing the membership of the investigatory findings. The accountant employed by the board of trustees participated in the meeting of the membership.

At the church meeting, the defendants orally presented prepared texts and displayed photographic slides designed to illustrate their statements. Specifically, the testimony showed that at the meeting, the defendant Gerald Ross, vice-chairman of the board of trustees, read a statement referring to the “former financial secretary” and “questionable transactions.” The defendant Mattie Drakeford, the financial secretary of the church, read a further explanation of the charges. The defendant John Johnson, auditor for the church, showed several slides of checks purporting to substantiate the alleged claim that funds had been “misappropriated.” The defendant Robert W. Perry, pastor of the church, acted as moderator of the meeting and read a statement of purpose referring to “discrepancies of church funds.” Also, both Perry and the defendant Joyce Yerwood, chairman of the board of trustees, answered questions posed to them by the congregation.

At trial, various witnesses testified that there was absolutely no question in their minds that the defendants’ reference to the “former financial secretary” related to the plaintiff, and that all of the defendants were accusing the plaintiff of misappropriating church funds. The plaintiff testified that after the church meeting people shunned her and accused her of stealing funds from the church. In February, 1983, she stopped attending the church.

Although the plaintiff did not claim to have suffered any actual pecuniary harm, she did claim general damages for the humiliation and mental anguish that she allegedly suffered as a result of the defendants’ defamatory remarks. The trial court found that the defendants’ remarks regarding her alleged misappropriation of funds were defamatory. The trial court further found that the plaintiff had proven that those assertions were false. It also concluded that the defendants’ remarks were actionable per se as libel and slander. The trial court awarded the plaintiff the sum of $25,000, and held all the defendants jointly and severally liable for the entire amount.

I

For the purpose of determining the constitutional protection afforded the defendants’ speech under the first amendment to the United States constitution, the first issue which this court must address is the defendants’ assignment of error to the trial court’s conclusion that the plaintiff was not a public figure. The determination of whether a plaintiff is a public figure is dispositive of the standard of proof and the degree of fault of the defendants which the plaintiff had to prove. Under the rule enunciated by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), as later extended in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), a public figure, as well as a public official, cannot recover damages for a defamatory falsehood, absent clear and convincing proof that the defamatory falsehood was published or broadcast with actual malice, that is, with knowledge that the statement was false or with reckless disregard for its falsity. New York Times Co. v. Sullivan, supra, 280. The standard of fault applicable to “private individuals,” on the other hand, merely requires the plaintiff to prove a negligent misstatement of fact. Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966). The United States Supreme Court’s subsequent decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), refined the controlling standard in defamation suits when such suits are brought by private individuals. “[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id., 347. Thus, if the plaintiff is a public figure, she would need to prove actual malice; Holbrook v. Casazza, 204 Conn. 336, 342, 528 A.2d 774 (1987); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 534-36, 368 A.2d 125 (1976); Moriarty v. Lippe, 162 Conn. 371, 377-78, 294 A.2d 326 (1972); but if she is a private individual, she need only prove, by a preponderance of the evidence, negligence in the failure to investigate the facts properly prior to publication. Corbett v. Register Publishing Co., 33 Conn. Sup. 4, 10, 356 A.2d 472 (1975); 3 Restatement (Second), Torts § 580B, pp. 221-22.

The trial court held that the plaintiff was a private individual. Ordinarily, the plaintiff, as a private individual, need only have proved, by a preponderance of the evidence, that the defendants negligently made the defamatory statements. The trial court found, however, that the plaintiff proved malice by a preponderance of the evidence. In this case, the plaintiff needed to prove malice in fact for two reasons. First, the plaintiff needed to prove malice in order to rebut the defendants’ defense of privilege. Second, the plaintiff needed to prove malice in order to recover general damages, without proof of special damages.

We must determine whether the trial court was correct in its finding that the plaintiff was a private individual. This is necessary because that finding determines the standard of proof required for any finding of malice of the defendants as it relates to their defense of privilege. Furthermore, if the plaintiff were a public figure, the scope of judicial review might be different.

Appellate courts ordinarily do not disturb the facts as found by the trial court unless the findings of facts are clearly erroneous. See Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In Brown v. K.N.D. Corporation, 7 Conn. App. 418, 509 A.2d 533, cert. granted, 201 Conn. 802, 513 A.2d 696 (1986), however, this court held that where a defamation plaintiff is a “public official,” the trial court’s determination of whether the public official proved actual malice with clear and convincing evidence is susceptible to an independent de novo review by appellate courts, in order to insure that the defendant’s first amendment guarantees are not unduly trampled upon. Therefore, if the plaintiff is a public figure, we would need to decide if a de novo review is mandated or if the clearly erroneous standard of review would suffice. If the plaintiff is a private individual, however, the trial court’s finding of actual malice is subject only to the clearly erroneous standard of judicial review.

Also, if the plaintiff is a public figure, she is required to prove actual malice by clear and convincing evidence. If the plaintiff is a private individual, on the other hand, she is required to prove actual malice, in order to rebut the defense of privilege and recover general damages, merely by a preponderance of the evidence. Dacey v. Connecticut Bar Assn., supra, 534; Darrow v. Fleischner, 117 Conn. 518, 520, 169 A. 197 (1933).

We hold, for the reasons stated below, that the plaintiff is a private individual and, therefore, that the plaintiff had to prove her case and rebut the defense of privilege by a preponderance of the evidence. As a result of our holding, we need not decide the issue of whether a finding of malice is subject to de novo appellate review when the plaintiff is a public figure.

In Gertz, the United States Supreme Court defined the meaning of “public figure” for the purposes of the first and fourteenth amendments: “For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. ” (Emphasis added.) Gertz v. Robert Welch, Inc., supra, 345. The United States Supreme Court further cautioned that the determination of whether a particular plaintiff is a “public figure” should be made with reference to a limited and more meaningful context than the context of the general society. “It is preferable to reduce the public figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Id., 352.

The defendants argue that because the plaintiff was a church official and because their actions should be viewed in the context of the church environment, she was a public figure. The defendants point out the following facts in support of their position. The meeting called by the church’s board of trustees was a “Special Meeting” to “Report on Discrepancies of Church Funds” before the membership. The plaintiff was discussed or alluded to only in her official capacity as financial secretary or finance committee member.

In support of their proposition, the defendants rely on several cases holding union officers to be public figures during union elections. In Materia v. Huff, 394 Mass. 328, 475 N.E.2d 1212 (1985), the Massachussetts Supreme Judicial Court held that the plaintiff, the secretary and treasurer of a teamsters local and a trustee of a health and welfare fund, was a public figure in the context of a controversy arising out of a reelection campaign. That court emphasized the fact that a union official or candidate seeking election to a union office voluntarily thrusts himself into the controversy and invites open scrutiny of his character for honesty and integrity, qualifications, and fitness for office. Criticism of the public figure on these subjects constitutes no more than fair comment. Id., 331; accord Perruccio v. Arseneault, 7 Conn. App. 389, 390, 393-94, 508 A.2d 831 (1986).

Although the relevant context to decide this issue is the membership society of the Union Baptist Church, we cannot say that the plaintiff thrust herself into the forefront of the church’s financial affairs merely by serving as financial secretary. The plaintiff’s duties mainly involved bookkeeping tasks; she did not serve as accountant or financial adviser.

Contrary to the defendants’ argument, the plaintiff’s position vis-a-vis the church membership is significantly different from that of a union officer’s position with regard to the union membership during union elections. Unlike union officials campaigning for union office, the plaintiff in this case did not voluntarily expose herself to public comment. Public officials and public figures, it may be assumed, invite public attention and comment. No such assumption is justified with respect to a private individual who “has relinquished no part of his interest in the protection of his own good name.” Gertz v. Robert Welch, Inc., supra, 345. The plaintiff did not “assume any role of especial prominence” in the affairs of the church, she did not voluntarily “thrust herself into the forefront” of the controversy over the church’s financial affairs, nor did she seek elective office in the church. See, e.g., Time, Inc. v. Firestone, 424 U.S. 448, 453, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976).

Moreover, the trial court found, and the record substantiates the finding, that the plaintiff was not discussed or alluded to solely with reference to her capacity as financial secretary or finance committee member, but also as an individual member of the church. The essence of the defamatory remarks made by the defendants trampled not only upon the qualifications and integrity of the plaintiff in her official capacities but also denigrated the honesty and integrity of the plaintiff as an individual. Public officials and public figures usually enjoy a significantly greater access than private individuals to the channels of effective communication which can then be used by them to either dispel false statements made about them or to advance their own position. Gertz v. Robert Welch, Inc., supra, 344; Rosenblum v. Metromedia, Inc., 403 U.S. 29, 70, 91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971) (Harlan, J., dissenting). In her position as the former financial secretary or as a former finance committee member, the plaintiff did not have access to an effective means of communication in which to rebut the accusations made by the defendants against her. The plaintiff, as a private individual, is “more vulnerable to injury than public officials and public figures.” Gertz v. Robert Welch, Inc., supra, 345.

We hold that the trial court did not err in its determination that the plaintiff was not a public figure. Therefore, in order to rebut the defense of privilege and recover general damages, the plaintiff merely had to show actual malice by a preponderance of the evidence, and not by clear and convincing evidence. Furthermore, the trial court’s finding of actual malice is subject merely to the clearly erroneous standard of appellate review.

II

The defendants assign error to the trial court’s conclusion that they are not entitled to invoke any privilege in order to immunize themselves from liability for defamatory falsehoods. The defendants assert two privileges: (1) a conditional or qualified privilege applicable to false expression encompassing a matter of public concern; and (2) a conditional or qualified privilege conditioned upon statements made in the course of official duties.

The defendants must sufficiently prove five prerequisites in order to establish the defense of either of the two conditional privileges claimed by them. The essential elements are (1) an interest to be upheld, (2) a statement limited in its scope to this purpose, (3) good faith, (4) a proper occasion, and (5) a publication in a proper manner to proper parties only. See generally Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 615, 116 A.2d 440 (1955). Neither conditional privilege exists where the defamatory remarks are activated by malice, improper motive, or lack of good faith in making the statement. See id.

The defendants first advance the privilege of public concern. The thrust of the defendants’ argument is that the plaintiff was discussed only in her official capacity as financial secretary or finance committee member, and that the subject of the church’s financial affairs is of great interest to the members of the church who gave contributions to it. The trial court held that an occasion for privilege did not exist because the defendants were not simply making fair comment on matters of public interest, but rather made the statements as facts about the plaintiff’s conduct with respect to church funds, which conduct was not a subject of “important common interest.”

The privilege of fair comment is a common law qualified privilege arising out of an occasion to express an opinion or otherwise comment on matters of public interest. Although pure opinions enjoy virtually complete constitutional protection, such is not the case "with the factual statements involved here. In addition to the requirement of good faith, the defendants must show that the statements made concern a public interest. Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111 n.4, 113, 438 A.2d 1317 (1982). The defendants have failed to do so. The defendants rely on the decision in Gospel Spreading Church v. Johnson Publishing Co., 454 F.2d 1050 (D.C. Cir. 1971), which held that the financial activities of a church were a public concern. The defendant’s reliance on this case is misplaced, however, for several reasons. Of paramount importance, the plaintiff in Gospel Spreading Church was the church itself which was considered to be a “public institution” for the purposes of the New York Times Co. malice rule applicable to public officials and public figures. “As an established church with substantial congregations it seeks to play- ‘an influential role in ordering society.’ ” Gospel Spreading Church v. Johnson Publishing Co., supra, 1051, quoting Curtis Publishing Co. v. Butts, supra, 164. In the case before us, on the other hand, the plaintiff is a private individual and a former member of a church.

The Gospel Spreading Church court also emphasized that the defendant magazine publisher made false statements regarding the plaintiff church’s real estate activities and tax exemption status. These subjects are of substantial interest to the general public. Conversely, the trial court in the present case specifically found, as the defendants admit in their brief, that the meeting was called for the sole purpose of presenting the results of the accountant’s investigations into the church’s finances. The full congregation was not asked to vote on any proposals or to act in any other way. Although the church’s financial situation in some instances, such as those present in Gospel Spreading Church, might be a matter of public concern, that is not the case with respect to the plaintiff’s alleged bookkeeping procedures. “ ‘Whether . . . speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context . . . as revealed by the whole record.’ " Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 105 S. Ct. 2939, 2947, 86 L. Ed. 2d 593 (1985), quoting Connick v. Meyers, 461 U.S. 138, 147-48, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). The defendants’ speech did not concern matters of public interest as defined in case law, and instead related to the defendants’ interest in presenting the plaintiff’s actions to her fellow parishioners. That speech warrants no special protection under the first amendment where, as here, the speech is proven false and clearly damaging to the plaintiff’s personal, social and business reputations.

The second form of conditional privilege that the defendants attempt to invoke is the privilege attaching to an official who makes false statements in good faith during the regular course of performing his official duties. Since the church members support the church by their contributions, the defendants argue that, as trustees, they are in a fiduciary relationship with respect to the church members and therefore have a responsibility to account for and report to the membership on the state of church funds. The defendants advance the proposition that as trustees they were privileged to make the statements at the meeting pursuant to their duty to protect the church’s funds.

Although it is not disputed that the church has an interest in its own finances, the trial court found that the statements made relating to that interest were not made in. good faith, and were made with malice and in an improper manner to improper parties. The trial court held, therefore, that the defendants, could not invoke a qualified privilege. These findings are not clearly erroneous. Holbrook v. Casazza, supra, 344; Pandolphe’s Auto Parts, Inc. v. Manchester, supra.

The court found that the defendants failed to confine their publication to proper persons. In this case, the court concluded that proper persons were not the church membership. Rather, publication of remarks based upon the investigatory data ordered by the church’s board of trustees should have been confined to the members of the board in their official capacities or to an appropriate investigatory agency. For example, in Lieberman v. Gant, 474 F. Sup. 848 (D. Conn. 1979), aff'd, 630 F.2d 60 (2d Cir. 1980), the court upheld a conditional privilege where the defendant’s statements, which allegedly attacked the credentials of a teacher whose tenure was being reviewed, confined the statements to proper parties. The proper party in Lieberman was the Dean’s advisory council, not the faculty and student populations.

Additionally, the trial court was not convinced that the defendants publicized the defamatory statement in good faith. The defendants rely on Ely v. Mason, 97 Conn. 38, 44, 115 A. 479 (1921), for the proposition that a defendant invoking a conditional privilege is not required to show reasonable justifications for his belief that the statements are true, as long as the defendant honestly believes them to be true. The holding in Ely only speaks, however, to whether the defendant had an honest belief in the truth of a statement, not whether the defendant published the statements in good faith. The privilege extends to defamatory falsehoods only if made without malice, under an honest belief that they are true, and in good faith. The trial court in this case specifically found that the defendants failed to act in good faith, and that finding is supported by the evidence. The evidence showed the frailty of the defendants’ claims and the ease with which they could have ascertained the truth upon a good faith investigation before accusing a devoted and long-standing church member of misappropriating church funds.

Finally, the trial court found that the evidence demonstrated malice because the publication was made with improper and unjustifiable motives to disparage the plaintiff and to remove her from any position of authority in the church. False and defamatory statements made with such a purpose may constitute an “improper or unjustifiable motive” which will support a finding of malice in the context of establishing the defense of a conditional privilege. Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 564, 72 A.2d 820 (1950).

The defendants assert that there was no evidence presented by the plaintiff as proof that the statements were made with malice. They maintain that their statements were made “in good faith exercise of their official responsibilities . . . to report to the membership . . . and not to disparage the plaintiff.” Their contention, however, is in direct conflict with the factual findings of the trial court as to the motive which prompted the defendants to make the statements. Such a claim essentially challenges the sufficiency of the evidence to support the trial court’s findings. See Gach v. Franolich, 10 Conn. App. 677, 680, 525 A.2d 525 (1987). Our review must determine whether there is evidence on the record to support the finding. Atwater v. Morning News Co., 67 Conn. 504, 517, 34 A. 865 (1896). The possibility that another finding could have been made does not suffice to overturn the trial court’s findings. Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985). “We cannot retry the facts or pass upon the credibility of the witnesses.” Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).

There is sufficient evidence of malice to uphold the trial court’s finding. Our review of the record reveals a plethora of evidence about the nature of the statements, and of the background and interests of the parties to this dispute from which an inference of improper or unjustifiable motive could be drawn. See Hassett v. Carroll, 85 Conn. 23, 37, 81 A. 1013 (1911). We cannot say that such a finding is clearly erroneous. Where, as here, proof of malice is shown, the conditional privilege is unavailable to a defendant. We hold that the trial court did not err in making its determination that the defendants could not invoke the protection of a qualified privilege.

Ill

The final issue which we must decide is whether the trial court erred in awarding the plaintiff $25,000 as general damages, and holding all the defendants jointly and severally liable for the entire amount.

The trial court concluded that the defendants’ accusations of misappropriation of church funds by the plaintiff constituted libel and slander per se and, therefore, that the plaintiff could recover general damages for the harm caused to her reputation. The defendants argue on appeal that the statements made by them are not actionable because they do not implicate the plaintiff in misappropriation or embezzlement but merely point out discrepancies in her bookkeeping. Accordingly, the defendants contend that because the statements did not unequivocally charge theft, the defamation is not actionable per se.

“[Ljibel is actionable per se if it charges improper conduct or lack of skill or integrity in one’s profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business.” Charles Parker Co. v. Silver City Crystal Co., supra, 612; Proto v. Bridgeport Herald Corporation, supra, 566. Slander is actionable per se if it charges incompetence or dishonesty in office, or charges a professional person with general incompetence; Proto v. Bridgeport Herald Corporation, supra, 567; Corsello v. Emerson Bros., Inc., 106 Conn. 127, 130-31, 137 A. 390 (1927); Wynne v. Parsons, 57 Conn. 73, 75, 17 A. 362 (1888). Libel or slander is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached. Proto v. Bridgeport Herald Corporation, supra. Statements accusing a plaintiff of theft are libelous or slanderous per' se. Yavis v. Sullivan, 137 Conn. 253, 259, 76 A.2d 99 (1950); Ventresca v. Kissner, 105 Conn. 533, 537, 136 A. 90 (1927); Battista v. United Illuminating Co., 10 Conn. App. 486, 492-93, 523 A.2d 1356 (1987).

Once the plaintiff has established that-the words are false and actionable per se, barring any statutory provision to the contrary, she is entitled under Connecticut law to recover general damages without proof of special damages. Charles Parker Co. v. Silver City Crystal Co., supra, 612; Battista v. United Illuminating Co., supra, 492. This is because the law presumes general damages where the defamatory statements are actionable per se. Battista v. United Illuminating Co., supra. On the other hand, if the words are defamatory, but not actionable per se, the plaintiff may recover general damages for harm, to her reputation only upon proof of special damages for actual pecuniary loss suffered. Proto v. Bridgeport Herald Corporation, supra, 564.

There was ample evidence in the trial record for the trial court to conclude that the defamatory statements were actionable per se. Whether words are actionable per se is a question of law for the court. Charles Parker Co. v. Silver City Crystal Co., supra, 612; Battista v. United Illuminating Co., supra. All of the circumstances connected with the publication of defamatory charges should be considered in ascertaining whether a publication was actionable per se. The words used, however, must be accorded their common and ordinary meaning, without enlargement by innuendo. Proto v. Bridgeport Herald Corporation, supra, 565.

The trial court specifically found that the defendant had accused the plaintiff of wrongful diversion of funds and that such an accusation amounted to an accusation of theft. The defendants claim that they did not accuse the plaintiff of theft. It is their argument that although they used the word “misappropriation,” they meant only that the plaintiff had “misapplied” funds. The context in which the words were used make it evident that an accusation of theft was being made. The defendants’ own expert witness, who testified on accounting practices, stated that the word “misappropriation” with reference to such practices raised the inference, of wrongful or self-serving activity. Also, other witnesses testified that they had interpreted the defendants’ remarks to mean that the plaintiff had stolen church funds. On this basis, we hold that the trial court did not err in concluding that the defamatory words amounted to an accusation of “theft” and were, therefore, actionable per se.

Even if the accusation of “misappropriation” by the defendants, however, could be correctly construed as a reference to the plaintiff’s bookkeeping procedures or to mismanagement of the funds, the accusation would nonetheless “amount to an allegation of general incompetence or lack of integrity.” Proto v. Bridgeport Herald Corporation, supra, 567. Such an accusation is also actionable per se.

The defendants further argue that the plaintiff should not be able to recover general damages because she failed to produce any evidence showing harm to her reputation. Regardless of the plaintiff’s proof, the defendants’ argument fails to acknowledge that where the law recognizes defamation as actionable per se, the law also presumes damages. Battista v. United Illuminating Co., supra.

Furthermore, contrary to the defendants’ contentions, the plaintiff did produce evidence of reputational harm. Several witnesses for the plaintiff testified that they entertained no doubts that the plaintiff was being accused by church officials of serious wrongdoing. The plaintiff was an active and devoted church member before she felt compelled to leave the church because of the ridicule she endured from her fellow church members. The question of whether a defamed person’s reputation has suffered harm is demonstrated by showing “whether or not a significant segment of the community hold[s] the person in lower esteem.” G. Fain, J. Guman & F. Tobin, “The Law of Defamation in Connecticut,” 38 Conn. B.J. 420, 422 (1964). The defendants’ accusations clearly impugned the plaintiff’s honesty and integrity. Both the plaintiff’s testimony and the testimony of the plaintiff’s witnesses support the trial court’s conclusion that the plaintiff’s reputation had been harmed.

The defendants next argue that the plaintiff may not recover general damages because she failed to demand a retraction as mandated by General Statutes § 52-237. That statute provides that a plaintiff in a libel action is entitled to recover only alleged and proven special damages unless she shows “malice in fact” or a failure by the defendant to publish a retraction upon the plaintiff’s written request. Where the plaintiff is not a public figure, the plaintiff need only prove a negligent misstatement of fact in order to recover special or actual damages, regardless of whether a retraction was sought. The plaintiff in the present case, however, claims only general damages. The trial court held that the plaintiff satisfied the standards imposed by General Statutes § 52-237, despite the plaintiffs failure to demand a retraction.

The trial court first concluded that the plaintiffs failure to demand a retraction was excused because it would have been fruitless to seek one. This conclusion was based on evidence regarding earlier events transpiring between the parties. The trial court specifically found that there had been two requests for retractions which predated the January, 1983 meeting and which related to earlier events. The trial court held that a request for retraction after the January, 1983 church meeting was unnecessary because previous requests for retraction had been ignored by the defendants.

The defendants argue that the plaintiffs failure to request a retraction cannot be excused because her previous demands for retraction were made with reference to letters sent to her by the defendants which did not rise to the level of actionable defamation and because those previous demands for retraction were not made to all of the defendants whom she now attempts to hold liable. We need not address the issue on appeal of whether the plaintiff satisfied the statutory retraction requirement because in this case, the trial court held that the plaintiff proved the requisite malice in fact. Under Connecticut law, where the plaintiff proves “malice in fact,” she is entitled to recover general damages, even if no retraction has been demanded, or if special damages have neither been alleged nor proved. General Statutes § 52-237; Osborne v. Troup, 60 Conn. 485, 492-93, 23 A. 157 (1891). The plaintiff must prove by a fair preponderance of the evidence “malice in fact” in order to recover general damages. Sandora v. Times Co., 113 Conn. 574, 155 A. 189 (1891).

Moreover, the statute applies only to libel, and not to defamation actions involving slander. The trial court specifically held that although the prepared texts and slides constituted libel, the actual words spoken during the slide presentation and question-and-answer session by the defendants to the church members present at the meeting constituted slander.

A related argument by the defendants on appeal is that the plaintiff is barred from recovery because she provoked the defamatory statements. See McGee v. Collins, 156 La. 291, 100 So. 430 (1924); 50 Am. Jur. 2d 681, Libel and Slander § 178. The defendants claim that such provocation arose out of the plaintiffs refusal to cooperate with them by allegedly refusing to surrender records in her possession, by refusing to resign from the finance committee, and by refusing to meet with the defendants prior to their publication of the defamatory statements.

Whether or not a defendant in this jurisdiction, however, may claim that a plaintiff is denied recovery in a defamation action where it is claimed that the defamatory statements were provoked by the plaintiff need not be decided in this case. Even if the facts were as the defendant claims them to be, they do not show the kind of provocation that can overcome liability, especially where the plaintiff has shown malice in fact. Application of this defense ordinarily involves a situation where there is a retaliation in kind. See, e.g., Gladney v. DeBretton, 218 La. 296, 49 So. 2d 18 (1950). Such was clearly riot the case here, however.

The defendants also argue on appeal that the trial court erred in holding all defendants jointly and severally liable. Specifically, the trial court, quoting 50 Am. Jur. 2d, Libel and Slander § 347, pp. 866-67, held with respect to libel: “ ‘Whenever two or more persons cooperate in the publication of a libel, all are responsible for the resultant damages, and at his election, the victim can sue them either jointly or severally,’ provided that there is . . . ‘some degree of concert between the defamers. . . .’” With respect to slander, the trial court, quoting id., § 348, pp. 867-68, stated: “Although generally slander is a ... ‘tort incapable of joint commission’ ... this would not be true if... ‘the defamation was the result of a concert or a conspiracy between [the defamers], or unless the words were uttered by one at the instigation of another . . . .’ ” The trial court found the “requisite concert” and “instigation” to warrant the imposition of the doctrine of joint and several liability.

The defendants claim of error is that except for the historical statement in which all of the defendants participated, they did not act in concert. There are no Connecticut cases addressing joint and several liability in defamation actions. The general rule is that “[wjhenever two or more perons co-operate in the publication of a libel, all are responsible for the resultant damages . . . [b]ut of course there must be some degree of concert between the defamers; if they acted independently, they are not liable jointly, and may not be joined as defendants.” (Citations omitted.) 50 Am. Jur. 2d, Libel and Slander § 347, pp. 866-67. In cases of slander, “the prevailing view is that even though the words are uttered simultaneously, a slander is usually an individual or separate tort incapable of joint commission, so that two or more individuals uttering slanders against the same person cannot be held jointly liable unless the defamation was the result of a concert or conspiracy between them . . . . ” Id., § 348.

Connecticut follows the principle stated in § 876 (a) of the Restatement (Second) of Torts, on joint and several liability: “ ‘Where two or more persons unite in an act which constitutes a wrong to another, intending at the time to commit it, or in doing it under circumstances which fairly charge them with intending the consequences which follow, they incur a joint and several liability for the acts of each and all of the joint participants.’ ” Lamb v. Peck, 183 Conn. 470, 472, 441 A.2d 14 (1981), quoting Gutowski v. New Britain, 165 Conn. 50, 54, 327 A.2d 552 (1973); see Sparrow v. Bromage, 83 Conn. 27, 28, 74 A. 1070 (1910). If the evidence indicates that all defendants acted intentionally and in concert, each defendant will be vicariously liable for the entire injury to the plaintiff.

The trial court found the requisite degree of concert of action and, therefore, held all of the defendants jointly and severally liable. The court’s conclusion of concert of action is amply supported by the record. The facts clearly show that all of the defendants carefully organized, called, and orchestrated the church meeting, prepared the texts, which were then read by one or more of the defendants at the meeting, and selected the slides reproducing various checking transactions which were then shown at the meeting. Furthermore, all of the defendants spoke at the meeting and acted as a unified whole. Therefore, we hold that the trial court’s finding that the requisite concert of action existed was not clearly erroneous.

The defendants’ final claim of error is that the plaintiff did not plead concert of action of the defendants. Although the plaintiff’s complaint did not use the specific phrase “concert of action,” the entire complaint is replete with allegations of facts relating to the defendants’ unanimity of action and purpose.

It is evident from the complaint that the defendants were on notice that the plaintiff’s claims were directed against each and all of them for reputational harm caused by the defamatory statements. The facts as pleaded were sufficient to put the defendants on notice that at trial the plaintiff would rely on a theory of concerted action and, if successful, would be able to invoke the doctrine of joint and several liability.

The entire trial was conducted on the theory that the plaintiffs action was against all of the defendants acting in concert. Where the parties at trial adopt a certain construction of the pleadings, the appellate courts should “review a case on the theory upon which it was tried and decided in the trial court.” Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985); U.S. Fidelity & Guaranty Co. v. Metropolitan Property & Liability Ins. Co., 10 Conn. App. 125, 126, 521 A.2d 1048 (1987); W. Maltbie, Conn. App. Proc. § 42.

There is no error.

In this opinion the other judges concurred.

       Four of the six defendants named in the complaint have appealed from the judgment of the trial court. They are: Robert W. Perry, pastor of the Union Baptist Church; Joyce Yerwood, chairperson of the church board of trustees; Gerald Ross, vice-chairman of the church board of trustees; and Mattie Drakeford, financial secretary to and member of the church board of trustees. Russell Britt, chairman of the board of deacons, upon motion, with the plaintiff’s and the trial court’s permission, withdrew as a defendant during the course of the trial, and John Johnson, auditor-accountant to the church, did not appeal from the trial court’s judgment against him.

       The defendants, in their joint brief, have advanced ten issues as the basis for their claimed errors on appeal. The issues involving joint and several liability, libel per se, slander per se, and demand for retraction are discussed in this opinion in connection with the broad issue of general damages. The issue involving malice is discussed in this opinion in connection with the issue of privilege.

       The position of financial secretary was later reinstated, and one of the defendants assumed the position.

       See footnote 1, supra. The accountant was originally named as a defendant but did not appeal from the trial court’s judgment.

       A “public official” is defined as a person within the hierarchy of government “who [has] or appear[s] to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966).

       There may be real differences between a public official and a public figure that constitutionally compel de novo review of malice findings where the plaintiff is a public official but not where the plaintiff is a public figure. For example, a public figure, as opposed to a public official, can recover damages for a defamatory falsehood upon a showing of “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 158, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967).

       Union officers are generally held to be public figures for purposes of union business where their activities place them in a controversy which invites scrutiny of their integrity, character, and professional ability. See generally Miller v. Transamerican Press, Inc., 621 F.2d 721, 724 (5th Cir. 1980), cert. denied, 450 U.S. 1041, 101 S. Ct. 1759, 68 L. Ed. 2d 238 (1981); Korbar v. Hite, 43 Ill. App. 3d 636, 357 N.E.2d 135 (1976), cert. denied, 434 U. S. 837, 98 S. Ct. 127, 54 L. Ed. 2d 98 (1977); Lins v. Evening News Assn., 129 Mich. App. 419, 342 N.W.2d 573 (1983); City Firefighters Union Local 28 v. Duci, 104 Misc. 2d 498, 428 N.Y.S.2d 772 (1976).

       A qualified or conditional privilege arises out of an “occasion,” such as, when one acts in the bona fide discharge of a public or private duty. Flanagan v. McLane, 87 Conn. 220, 221-22, 88 A. 96 (1913). Privilege is an affirmative defense in a defamation action and must, therefore, be specifically pleaded by the defendant. Monczport v. Csongradi, 102 Conn. 448, 450-51, 129 A. 41 (1925); Haight v. Cornell, 15 Conn. 73, 82 (1842). It is for the court to determine, as a matter of law, whether the defendant made the defamatory statements while acting on an occasion of privilege, as in the bona fide discharge of a public or private duty. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 616, 116 A.2d 440 (1955); Flanagan v. McLane, supra, 222. It is a question of fact for a court or a jury, however, to determine whether the defendant has abused a conditional privilege. Flanagan v. McLane, supra. A conditional or qualified privilege may be abused or lost if the defendant published or broadcast the defamatory remarks with malice, improper motive, or bad faith. Atwater v. Morning News Co., 67 Conn. 504, 513, 34 A. 865 (1896). Therefore, a conditional privilege may be recognized only where the statement is made in good faith, without malice, in an honest belief in the truth of the statement, and in discharge of a public or private duty. Charles Parker Co. v. Silver City Crystal Co., supra.

       W. Prosser & W. Keeton, Torts (5th Ed.) § 115, p. 828, explains this privilege as follows: “A conditional privilege is recognized in many cases where the publisher and the recipient have a common interest, and the communication is of a kind reasonably calculated to protect or further it. Frequently in such cases there is a legal, as well as a moral obligation to speak. This is most obvious, of course, in the case of those who have entered upon or are considering business dealings with one another, or where the parties are members of a group with a common pecuniary interest . . . . ” Id., 828. Similarly, with regard to official action, Prosser and Keeton state: “[T]he ‘public interest’ privilege involves communications made to those who may be expected to take official action of some kind for the protection of some interest of the public. It is on this basis that communications from one public officer to another, in an effort to discharge official duty, are held to be at least qualifiedly privileged. . . . But private citizens likewise are privileged to give information to proper authorities for the prevention or detection of crime, or to complain to them about the conduct of public officials and seek their removal from office.” Id., p. 830.

       See Flanagan v. McLane, 87 Conn. 220, 88 A. 96 (1913), where a woman suspected a workman of having stolen money and had written her suspicion to a constable asking him to investigate. After finding the money, she wrote another letter stating that the money was not where she had left it and that she still believed that the workman had taken it. The Connecticut Supreme Court held this was a privileged communication, if made honestly and in good faith. See also footnote 9, supra.

       Publication and harm to reputation are two necessary elements of the defamation cause of action. Libel is defamation of character usually consisting of the printed word. Slander, on the other hand, is an oral defamation of character. The distinction between libel and slander, however, has become blurred by the ability of modern communications, such as radio and television, to widely disseminate the spoken word or to disseminate the spoken word with more permanency than does the traditional concept of slander. In Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 116 A.2d 440 (1955), the Connecticut Supreme Court held that reading from a prepared manuscript in a radio address constitutes libel, even though the result is the spoken word, as the words have been reduced to permanent form in the manuscript. There is ample evidence in the trial record in the present case showing that some of the defendants spoke defamatory statements while reading them from a prepared manuscript. Although the spoken word was not published over a radio broadcast, it was, nonetheless, spoken to a large meeting of church members. Although not all of the members attended the church meeting, the speech had a potential of reaching the 1,000 parishioners of the Union Baptist Church. This constitutes broad dissemination in our view.
      The impact from these spoken words, coupled with the slide presentation, had the same impact as libel. It is the permanency or the perpetuation of the defamatory speech that is integral to the classification as either slander or libel. The reading from the prepared texts coupled with the display of visual aids is certainly capable of lasting impression in the minds of the church members present at the meeting and, therefore, has “greater capabilities of harm” than obtains with merely the spoken word. See, e.g., id., 612. The trial court correctly classified the defamatory remarks as libel and slander.

       General Statutes § 52-237 provides: “In any action for a libel the defendant may give proof of intention; and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by him in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, he shall recover nothing but sueh actual-damage as he may have specially alleged and proved.”

       Under General Statutes § 52-237, a private individual must prove a negligent misstatement of fact to recover special damages even without a retraction. That is not the case here, however, where general damages are sought.

       See footnote 11, supra.

       The defendants attempted only to avoid total liability by denying concert of action. The defendants did not attempt to limit their liability in any other way, such as arguing for the apportionment of damages. Gutowski v. New Britain, 165 Conn. 50, 327 A.2d 552 (1973); 2 Restatement (Second), Torts § 433 (B) (2); W. Prosser, Torts (4th Ed.) § 52, pp. 313-14; see also Reilly v. DiBianco, 6 Conn. App. 556, 566-73, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 192, 193 (1986), for a discussion of apportionment of damages between joint tortfeasors who have committed concurrent but independent acts.

       Specifically, the plaintiff alleged the following facts in her complaint: (1) All defendants were associated with the Union Baptist Church. Four of the defendants were on the board of trustees and the other defendant was employed by the board as auditor; (2) The plaintiff was notified by telegram, signed by two of the defendants that in the best interest of the church she should no longer participate as a member of the finance committee; (3) The plaintiff was subsequently engaged in a telephone conversation with one defendant who accused plaintiff of misappropriating church funds; (4) Another defendant informed the plaintiff that the accusations against her were not true and that a third defendant was aware of their untruthfulness; (5) At a joint meeting of the board of deacons and board of trustees, where all defendants were present, the slide pictures of checks, which purported to implicate the plaintiff, were shown along with accusatory verbal statements; (6) On several occasions, the defendant pastor told the church’s general membership that there was an investigation under way to determine if church funds had been misappropriated; (7) The plaintiff received a letter signed by three defendants stating that she should resign from the finance committee in light of the apparent misappropriation of funds; (8) At the church meeting all defendants made defamatory written and oral statements and four defendants showed slides; and (9) The plaintiff suffered harm to her reputation on account of statements made by all of the defendants.


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    Susan B. Mihalyak v. John Mihalyak
    (4670)
    . Hull, Spallone and Bieluch, Js.
    Argued March 12
    decision released July 28, 1987

      Charles E. Tieman III, for the appellant (defendant).

      Kenneth B. Rubin, with whom, on the brief, was Sarah D. Eldrich, for the appellee (plaintiff).
   Bieluch, J.

The defendant appeals from the trial court’s granting of the plaintiffs motion to compel performance of judgment and for contempt and attorney’s fees. He further appeals from the trial court’s denial of his motion for contempt and counsel fees. These motions were filed subsequent to a judgment dissolving the marriage of the parties, dividing the marital assets and awarding alimony to the plaintiff. The defendant claims that the trial court’s findings of fact were unsupported by the evidence, misleading and incomplete. Specifically, he alleges that the court’s findings were contrary to the oral agreement reached by the parties and incorporated into the judgment. He also claims that the trial court erred in granting to the plaintiff an award of $500 as attorney’s fees. We find no error.

The trial court could reasonably have made the following factual findings. The marriage of the parties was dissolved by judgment on February 26,1985. Pursuant to an oral agreement of the parties, the following provisions for property division were incorporated into the judgment of dissolution: “The Husband shall quitclaim to the Wife his interest in the real property known as 101 Route 148, Killingworth, Connecticut, said quitclaim to be executed by the Husband forthwith and to be held in escrow until the Wife pays to the Husband the $30,000 due to him as the property division between the parties. It is the understanding and contemplation of the parties that the Husband’s interest is free of any encumbrances except for the balance of the purchase money mortgage due to the Banking' Center of Waterbury.

“The Wife shall pay to the Husband by way of property division the sum of $30,000, said monies to be paid by the Wife on or before April 15,1985. The Husband will co-sign if necessary, the mortgage note and deed, but only if the Wife is unable to obtain financing in connection with the remortgage of the property without his signature, the Husband to co-sign such a note and deed in the amount up to $55,000.

“If the Wife is unable to obtain funds to pay to the Husband the $30,000 due to him on or before April 15, 1985, then the Wife shall forthwith place the real property on the market for sale and the property shall be sold as soon as practicable. Upon closing, the Husband shall receive the $30,000 due to him.

“The Wife shall indemnify the Husband and hold him harmless with respect to all mortgages, old and new, on the property, as well as taxes, insurance, utilities, and all other expenses and assessments that may arise out of or in connection with said property.”

In an effort to refinance the real estate of the parties, beginning on March 4,1985, the plaintiff contacted several banks. On March 8, 1985, a representative of the Banking Center of Waterbury (Bank) came to the home for an appraisal and to complete the application in the plaintiff’s name. After reading a copy of the dissolution judgment, the representative requested that the defendant cosign the mortgage note. The defendant, however, was reluctant to do this. Both the plaintiff’s counsel and the defendant’s counsel were on vacation and unavailable during this time to advise the parties on how to proceed. Upon their return to work, both counsel contacted the Bank concerning the plaintiff’s mortgage application. After discussion with both counsel and an examination of the judgment file as revised by counsel, the Bank, on April 4,1985, agreed to accept the plaintiff’s mortgage application without a cosigner on the mortgage note.

By hand delivered letter dated April 24, 1985, the defendant’s counsel informed the plaintiff that since the payment of $30,000 had not been made to the defendant by April 15, 1985, as provided in the dissolution judgment, the property should be placed on the market for sale pursuant to that contingency. The letter concluded with a statement that unless the plaintiff tendered $30,000 within the next twenty-four hours, the defendant would “insist the property be placed on the market forthwith.”

On April 26, 1985, the plaintiff obtained her mortgage commitment from the Bank. The defendant, however, refused to execute the quitclaim deed to the plaintiff necessary for her closing on the mortgage loan with the bank. He insisted that the property should be put on the market for sale pursuant to the terms of the dissolution judgment.

On September 17, 1985, the plaintiff filed a motion (1) to compel performance of the court’s judgment by ordering the defendant to execute a quitclaim deed transferring his interest in the marital property to the plaintiff, (2) to hold the defendant in contempt of court for his failure to complete the transfer, and (3) to order payment of counsel fees. The defendant, on October 3, 1985, filed a countermotion to hold the plaintiff in contempt of court and for attorney’s fees. The defendant alleged that the plaintiff failed to comply with the court’s judgment by refusing to place the property on the market after April 15, 1985, and sought an order compelling its sale. The defendant also sought attorney’s fees for the preparation and presentation of the motion.

On October 28,1985, after a hearing, the trial court granted the plaintiff’s motion for compliance and ordered that the defendant execute a quitclaim deed in accordance with the dissolution decree within three weeks.

The court also ordered the defendant to pay the plaintiff $500 in attorney’s fees. The defendant’s motions for contempt and for attorney’s fees were denied. On motion of the defendant, the trial court issued its findings of fact incident to its rulings on the parties’ motions on December 9, 1985.

The defendant's first claim is that the court’s rulings on the parties’ motions were not supported by the evidence. Our review of such a claim is governed by the well-established “clearly erroneous” standard. See Practice Book § 4061; Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987).

The defendant challenges the findings of the trial court as to the terms of the judgment. The trial court’s findings of fact included the following characterization of this aspect of the provision for distribution of the property. “In the event the wife was unable to obtain the necessary amount, the real estate was to be sold and upon closing the husband was to receive $30,000.” The defendant alleges that this finding is contrary to the clear language of the judgment which provides that “[i]f the Wife is unable to obtain funds to pay to the Husband the $30,000 due to him on or before April 15, 1985, then the Wife shall forthwith place the real property on the market for sale and the property shall be sold as soon as practicable. Upon closing, the Husband shall receive the $30,000 due to him.” The defendant claims that the court’s finding ignored the requirement that the defendant receive $30,000 on or before April 15, 1985, and the condition that, if he did not receive such amount by that date, the property be placed forthwith on the market and sold as soon as practicable. The defendant argues that since the court did not place these specific details in its findings of fact, the court in effect modified the agreement reached by the parties and incorporated into the judgment of dissolution.

There is nothing in the court’s findings of fact that indicates that the trial court ignored the April 15,1985 time limitation for payment to the defendant under the judgment. To the contrary, the court acknowledged in its findings that, although the April 15,1985 limitation was stated, “time was not of the essence,” the plaintiff was diligent, she obtained her mortgage commitment on April 26,1985, eleven days late, the defendant suffered no damage thereby, and the plaintiff’s late tender was sufficient under the terms of the decree of dissolution. See 3A A. Corbin, Contracts § 715 (even when time is of the essence in contracts involving sale of land, performance within a reasonable time after a fixed date is sufficient).

The defendant next argues that the trial court erred in finding that time was not of the essence. The trial court made the specific finding “that time was not of the essence when the proposed closing date of April 15, 1985 was chosen.” It also found that counsel for both parties made bona fide attempts to obtain the necessary financing to allow the property transfer and money payment without the necessity of the defendant’s signature on the mortgage loan. It further found that the defendant suffered no damage as a result of the eleven day delay in obtaining the financing commitment.

A judgment rendered in accordance with the stipulation of the parties is to be construed and regarded as a binding contract. Caracansi v. Caracansi, 4 Conn. App. 645, 650, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985). Construction of such an agreement is an issue of fact to be resolved by the trial court as the trier of fact, and subject to our review under the clearly erroneous standard. See Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985). The construction and interpretation of the agreement necessarily depends upon the intent of the parties as manifested by the language of the agreement. Id., 428. Where the language of the agreement is unclear, the trier of fact must look to other factors to determine the parties’ intention, A determination as to the parties’ intent requires the drawing of an inference from other facts. Where the trier of fact draws such an inference, its finding will not be disturbed unless it is unsupported by the facts or is otherwise unreasonable. Id., 428.

The defendant alleges that the language of the agreement is clear and unambiguous and that the court erred in admitting testimony which explained why the April 15,1985 date was chosen. Where a time for performance is stated in an agreement, a party’s tender of performance within a reasonable time thereafter will be considered substantial performance unless the parties intended that time for performance be of the essence. See J. Calamari & J. Perillo, Contracts (2d Ed.) § 11-22, pp. 409-10. Where the agreement does not specifically state that time is of the essence, it is presumed not to be unless the parties have expressed a contrary intent. See Kakalik v. Bernardo, 184 Conn. 386, 392-93, 439 A.2d 1016 (1981). In the present agreement, there is no stated provision that time is of the essence. The court, therefore, properly considered other factors to determine the parties’ intent.

The court considered, and found credible, the testimony of the plaintiffs counsel that April 15,1985, was selected as an adequate amount of time for the plaintiff to secure her mortgage. The defendant does not rebut the plaintiffs assertion, but rather relies upon the language of the agreement which provides for consequences if the plaintiff failed to tender payment to the defendant by April 15,1985. Such proviso does not compel the factual conclusion that time was of the essence. See, e.g., Kakalik v. Bernardo, supra. This is especially true in a case such as this where the agreement contemplated the plaintiffs refinancing of the marital home. Delays in such transactions are frequent and, if reasonable in duration, are generally tolerated. See 3A A. Corbin, supra, § 716, p. 367.

The trial court found that the parties did not intend that time be of the essence in the agreement. In fact, the trial court could have reasonably concluded that the April 15, 1985 date was established merely to ensure that the defendant receive his $30,000 within a reasonable time. In this case, where the agreement is silent on the issue, the plaintiffs trial counsel gave credible testimony that time was not of the essence, and the defendant did not express his interest in having the property sold until after April 15,1985, we cannot find that the trial court’s conclusion was clearly erroneous. The use of the word “forthwith” relative to placing the property on the market for sale is not the legal equivalent of stipulating that “time is of the essence” in an agreement.

■ The defendant further alleges that fifteen separate findings included in the trial court’s findings of fact were without evidence, incomplete, misleading or insufficient for the court’s conclusions. We need hot review here each of these findings made by the court. After review of the evidence presented to the trial court, including the testimony of the plaintiff and the representative of the Bank, we find each of the challenged findings to be supported by the evidence and, therefore, not clearly erroneous, but supportive of the court’s conclusions. See Practice Book § 4061; Buddenhagen v. Luque, supra.

The defendant’s second claim is that the trial court erred in not finding that the plaintiff acted wilfully in failing to obtain the funds to pay the defendant $30,000 on or before April 15,1985. This claim is no more than an effort to retry the facts, which is not the function of an appellate court. See Buddenhagen v. Luque, supra, 44-45. We shall review this claim no further than to state that the trial court’s finding that the plaintiff made a good faith effort to obtain financing by April 15, 1985, was supported by the record and evidence. We also note that the trial court found that the delay was partially attributable to the parties’ desire to have the plaintiff secure the mortgage in her own name, without the necessity of having the defendant cosign the mortgage note. The trial court, therefore, did not err in denying the defendant’s motion for contempt on the ground of wilful delay in selling the property and making the settlement payment of $30,000 to the defendant.

The defendant’s final claim is that the trial court erred in granting the plaintiff an award of $500 in attorney’s fees, reflecting payment for services incurred in connection with the prosecution of the plaintiffs motion to compel performance. The defendant alleges that the court failed to consider the parties’ respective financial abilities as required by General Statutes §§ 46b-62 and 46b-82. The defendant does not contest the reasonableness of the attorney’s fees.

General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of [chapter 815j, governing dissolution of marriage] . . . the court may order either spouse to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82 [for an award of alimony].”

“ ‘The allowance of counsel fees is within the sound discretion of the trial court . . . provided the court considers the parties’ respective financial abilities and the criteria set forth in General Statutes § 46b-82. General Statutes § 46b-62.’ Burton v. Burton, 189 Conn. 129, 141-42, 454 A.2d 1282 (1983).” (Citation omitted.) Benson v. Benson, 5 Conn. App. 95, 100, 497 A.2d 64 (1985). “The trial court, moreover, is not obligated to make an express finding on each of the statutory criteria. Posada v. Posada, 179 Conn. 568, 573, 427 A.2d 406 (1980).” Benson v. Benson, supra.

In the present case, the court’s order for payment of counsel fees did not make specific reference to the various criteria of General Statutes § 46b-82. No such checklist is required to be enumerated. As a public officer, a judge is presumed to have properly performed his duty unless the contrary appears. See Cahill v. Board of Education, 198 Conn. 229, 242, 502 A.2d 410 (1985). By the same token, we note that the defendant never requested the trial court to articulate the basis for its award of counsel fees. His motion for post-judgment findings of fact was restricted in scope to facts upon which the court granted the plaintiffs motion to compel performance of judgment and motion for contempt.

On appeal, the defendant bears the burden of proving to this court that the trial court did not consider the proper criteria in awarding attorney’s fees. It is also the responsibility of an appellant to secure an adequate record for our review. See Practice Book § 4061; Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983); Katreczko v. Katreczko, 1 Conn. App. 686, 688 n.3, 475 A.2d 323 (1984). The defendant has failed to demonstrate to this court that the trial court did not consider the relative financial situations of the parties and other criteria enumerated in § 46b-82 before awarding attorney’s fees to the plaintiff. Our own review of the record, likewise, uncovered no such failure of the trial court.

There is no error.

In this opinion the other judges concurred.

       The judgment provides that upon payment of $30,000 to the defendant, and the sale of the property by the plaintiff before June 1,1989, the plaintiffs alimony would be progressively reduced to $180 and $100 per week. The defendant argues in his brief that he suffered harm by the plaintiffs late tender because had the property been placed on the market after April 15, 1985, and sold, his alimony payments would be substantially reduced. We find this argument to be without merit, and find it highly unlikely that the parties contemplated such a result in fixing the April 15, 1985 date for payment to the defendant.

       We note that the court made no finding that the defendant was in contempt of its order made pursuant to General Statutes § 46b-81 (assignment of marital property). It simply granted the motion to compel, allowing three weeks for the closing, awarded the plaintiff $500 counsel fees, and ordered payment of $750 to the plaintiff for the arrearage in alimony. The court’s award of counsel fees was predicated upon the authority for an award of attorney’s fees in dissolution and related matters provided in General Statutes § 46b-62, rather than General Statutes § 46b-87 upon a finding of contempt. Nor was the order for payment of counsel fees made pursuant to General Statutes § 52-256b, authorizing reasonable attorney’s fees after a finding of contempt, as alleged by the plaintiff.

       Although the court awarded the plaintiff $500 in payment of counsel fees incurred in connection with her motion to compel performance of the judgment, the defendant unsuccessfully sought fees of $750 for the prosecution of his motion to hold the plaintiff in contempt, which the court denied.


text:
    State of Connecticut v. Angel Castillo
    (4722)
    Hull, Spallone and Bieluch, Js.
    Argued March 12
    decision released July 28, 1987

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the'brief, were Linda L. Yoder, special attorney, and Frank M. D’Addahbo, Jr. and James G. Clark, assistant state’s attorneys, for the appellee (state).
   Bieluch, J.

The defendant appeals from a judgment of conviction pursuant to the jury’s verdict of guilty on the following charges: two counts of accessory to assault in the first degree, a violation of General Statutes §§ 58a-8 and 53a-59 (a) (l); and one count of having a weapon in a motor vehicle, a violation of General Statutes § 29-38. He claims that the evidence presented at trial was insufficient to support the jury’s verdicts of guilty and that the court erred in its instructions to the jury, thereby shifting to the defendant the burden of proving beyond a reasonable doubt his version of the incident for which he was charged. We find error in part.

The jury could reasonably have found the following facts: On February 28, 1985, at approximately 1:20 p.m., Enrique Oquendo, as driver, and Iris Zavala, as passenger, were in Oquendo’s car which was stopped on Seyms Street in Hartford. Oquendo was talking to a person on the sidewalk when they noticed the defendant’s car come to an abrupt stop alongside of them. Jose Castillo, the defendant’s brother, emerged from the passenger side of the defendant’s car carrying a gun and approached the passenger side of Oquendo’s car. When he was approximately four feet from Zavala, he fired eight rounds into the car, seriously injuring both Oquendo and Zavala. Jose then returned to the defendant’s car and they sped away.

Upon learning that he was being sought by the authorities in connection with the shooting, the defendant turned himself in to the police. Upon his arrest, the defendant was charged with two counts of being an accessory to assault in the first degree (counts one and two), in violation of General Statutes §§ 53a-8 and 53a-59, and two counts of conspiracy to, commit assault in the first degree (counts three and four), in violation of General Statutes §§ 53a-48 and 53a-59. After his transfer to Part A of the Judicial District for trial, a fifth count was added charging him with having a weapon in a motor vehicle, in violation of General Statutes § 29-38. He pleaded not guilty to all five counts and was tried by a jury. At the close of the state’s case, the defendant moved for a judgment of acquittal, which was denied. The defendant then proceeded with the presentation of evidence in his defense. Thereafter, the jury found him not guilty on counts three and four, conspiracy to commit assault in the first degree, but guilty on counts one and two, accessory to assault in the first degree, and on count five, having a weapon in a motor vehicle.

After the jury delivered its verdict, the defendant again moved for a judgment of acquittal on counts one, two and five. This motion was denied and the defendant was sentenced accordingly. The defendant then took this appeal.

The defendant’s first claim on appeal challenges the sufficiency of the evidence presented at trial to support the jury’s verdicts. Our standard for review of such a claim is well established. In reviewing the sufficiency of the evidence, we must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Malines, 11 Conn. App. 425, 431, 527 A.2d 1229 (1987); State v. Stellato, 10 Conn. App. 447, 452, 523 A.2d 1345 (1987). In making such an evaluation, we view the evidence in a light most favorable to sustaining the jury’s verdict. State v. Simino, 200 Conn. 113, 116, 509 A.2d 1039 (1986).

As to count five of the information charging the defendant with a violation of General Statutes § 29-38, having a weapon in a vehicle, the defendant claims that there was no evidence that he had knowledge of the presence of the gun in his car, or that the gun met the statutory definition of a pistol. See General Statutes §§ 29-27 and 29-38. The state has expressly conceded at oral argument before this court that the evidence introduced relevant to this charge was insufficient to support the jury’s verdict and, consequently, that the court erred in denying the defendant’s motion for judgment of acquittal on that count. Accordingly, we will not review the evidence as to this count further. We direct the trial court to set aside the judgment of conviction as to the fifth count and render a judgment of not guilty on that charge.

The defendant’s remaining challenge to the sufficiency of the evidence to sustain a conviction relates to the two counts of being an accessory to assault in the first degree. See General Statutes §§ 53a-8 and 53a-59.

General Statutes § 53a-59 (a), assault in the first degree* provides that “[a] person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .” See footnote 1, supra.

Section 53a-8 of the General Statutes provides that “[a] person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.” See footnote 1, supra. The essence of the defendant’s claim is that there was no evidence from which the jury could conclude that he intended to aid his brother in the commission of the first degree assault. The defendant concedes for the purpose of this appeal that the actions of the brother, Jose Castillo, constituted an assault in the first degree.

We find that the evidence presented at trial was sufficient to support the jury’s verdicts. While fraternal relationship is not proof of aiding and abetting, it is relevant that the defendant is the brother of Jose Castillo. There was testimony that the defendant, approximately one week before the shooting, approached Oquendo on behalf of his brother and asked him to drop criminal charges initiated by Oquendo against the brother. As to the events surrounding the shooting, there was testimony that the defendant drove his. brother to the scene of the shooting and pulled alongside Oquendo’s car in an abrupt and threatening manner. There was also testimony that after the shooting, Jose Castillo returned to the defendant’s car and the defendant quickly drove away without ascertaining if anyone was injured and without notifying the police:

■ Intent is rarely proven by direct evidence, but is classically proven by circumstantial evidence and the inferences that can reasonably be drawn therefrom. See State v. Farrar, 7 Conn. App. 149, 155, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986). From the aforementioned facts, the jury could reasonably have found beyond a reasonable doubt that the defendant was not an innocent bystander, but rather he intentionally aided his brother in committing the assaults in the first degree. See, e.g., State v. Tucker, 9 Conn. App. 161, 163-65, 517 A.2d 640 (1986). The trial court, therefore, did not err in denying the defendant’s motion for judgment of acquittal as to the first and second counts.

The defendant’s final argument is that the trial court erred by instructing the jury that the defendant had the burden of proving beyond a reasonable doubt his version of the events surrounding the shooting. In reviewing the facts surrounding the shooting, the trial court gave the following instruction: “I think all the testimony in this case boils down to a very simple situation. There is no question that this incident occurred on Seyms and Main Street. There is no question—I do not think there is any question that it occurred on February 28, 1985, at about the time stated. There is no question that the defendant was driving his blue and white Pontiac and that he was in the vicinity of the victim’s automobile.

“The only difference in the testimony is his knowledge of what was going on there. I mean that is no difference in testimony because there was no other testimony of what his purpose was, other than that he was driving the car and that he was seen by the victim, Iris, and then the witness—the defendant’s own testimony of why he was there or how come he happened to be there, if that is as he testified.

“You can take all of those things into consideration. You can take the actions which led up to this particular situation and draw whatever logical, reasonable inferences you feel that the evidence leads you to. So, remember, they must all be beyond a reasonable doubt.”

The defendant concedes that he took no exception to the court’s instruction, but seeks review of this claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), claiming that the court’s instructions represent an impermissible shifting of the burden of proof onto the defendant. See Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). We decline to review this claim under State v. Evans, supra, because we find that the instruction cannot reasonably be read to support the defendant’s claim that the court impermissibly diluted the state’s burden to prove each element of the offense beyond a reasonable doubt, or shifted such burden onto the defendant. In ascertaining whether the court’s charge amounted to a constitutional deprivation, we further note the defendant’s concession in his brief that in a number of places during the charge, the jury was correctly instructed that the state had the burden to prove the essential elements of the crime beyond a reasonable doubt.

We also note, as indicated in the state’s brief, that the trial court correctly admonished the jury as follows: “The accused does not have to prove that he did not commit the offenses with which he is charged, but the state must prove that he did, and to prove that, they must prove every essential element necessary to constitute the offense with which he is charged. The burden then is on the state to prove beyond a reasonable doubt that the accused is guilty of the crime with which he is charged.”

We find, therefore, that the record does not support the defendant’s claim that he has been deprived of a fundamental constitutional right. See State v. Sullivan, 11 Conn. App. 80, 90-91, 525 A.2d 1353 (1987).

There is error only as to the conviction of having a weapon in a motor vehicle, the judgment of conviction is set aside as to that count and the trial court is directed to render judgment of not guilty thereon and to amend the defendant’s sentence accordingly; there is no error in the judgment of conviction on counts one and two, being an accessory to assault in the first degree.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      “[General Statutes] Sec. 53a-59. assault in the first DEGREE: class B FELONY, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . . ”

       “[General Statutes] Sec. 29-38. weapons in vehicles. Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered'such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. The word ‘weapon’, as used in this section, means any pistol or revolver, any dirk knife or switch knife or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, and any other dangerous or deadly weapon or instrument, including any slung shot, black jack, sand bag, metal or brass knuckles, stiletto, any knife, the edged portion of the blade of which is four inches or over in length or any martial arts weapon as defined in section 53a-3. ...”

       The state alleges in its brief that at least twenty-nine times during the charge the court properly instructed the jury that the state had the burden of proving the defendant guilty beyond a reasonable doubt.


author: Daly, J.

text:
    State of Connecticut v. Alvin L. Merritt
    (5484)
    Hull, Daly and Bieluch, Js.
    Argued May 14
    decision released July 28, 1987

      Carl D. Eisenman, public defender, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas and John M. Massameno, assistant state’s attorneys, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). The defendant claims that the trial court erred (1) in failing to charge on the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l); and (2) in denying the defendant’s motions for new trial and acquittal.

The jury could have found the following facts. During the evening of December 20, 1984, the defendant left his residence on Capen Street in Hartford and walked to the grocery store located at the corner of Barbour and Capen Streets. As he was leaving the store, he saw the victim. The victim had been seen in the store between 6:30 and 7 p.m. and was highly intoxicated. The defendant and the victim argued, and the defendant followed the victim to his apartment at 15 Barbour Street where he broke into the apartment leaving the door hanging by a hinge. The defendant struck the victim several times on the head with brass knuckles and stabbed him, causing the victim’s death which was estimated to have occurred between 7:20 and 11:20 p.m. The police discovered the body later in the evening and its blood alcohol content was analyzed at .44 percent. A state’s witness testified that the defendant had admitted killing the victim. The defendant claimed that he was home at the time of the killing. The deféndant was charged with murder in violation of § 53a-54a (a) but was convicted of the lesser included offense of manslaughter in the first degree' in violation of § 53a-55 (a) (1). This appeal ensued.

The defendant’s first claim is that the trial court erred in denying his request to charge on the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1). The defendant’s request was timely filed, and he properly excepted to the court’s failure to give the charge. His claim is unavailing, however, as we find this case to be controlled by the decision in State v. Ostroski, 201 Conn. 534, 518 A.2d 915 (1986). “ ‘A proposed instruction on a lesser included offense, like any other proposed jury instruction is not appropriate unless made in compliance with Practice Book § 852.’ State v. McIntosh, [199 Conn. 155, 158, 506 A.2d 104 (1986)]. Section 852 provides in. pertinent part: ‘Requests shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the facts supported by the evidence to which the proposition would apply. . . .’ (Emphasis added.)” State v. Ostroski, supra, 557-58.

In the present case, the defendant framed his request as follows: “In accordance with State v. Whistnant, 179 Conn. 576 [427 A.2d 414 (1980)], the defendant requests the court to charge on the following lesser included offenses: 1. LESSER INCLUDED OFFENSES: Manslaughter, 1st degree, in violation of Section 53a-55 (a) (1) and 55 (a) (3) C.G.S. and Manslaughter 2nd degree, in violation of Section 53a-56 (a) (1) C.G.S.”

In this request, like the request in State v. Ostroski, supra, 558, the defendant merely asked the court to instruct the jury that it could consider the lesser included offenses.

“ ‘[A]n “appropriate instruction” under State v. Whistnant, must contain “ ‘a complete statement of the essential facts as would have justified the court in charging in the form requested.’ Michaud v. Gagne, 155 Conn. 406, 410, 232 A.2d 326 (1967), quoting Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925).” State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984).’ State v. McIntosh, supra, 160. The defendant’s request contains no facts at all. Moreover, although the request cites State v. Whistnant as authority for the proposition stated, we have emphasized in the past that Whistnant by itself does not provide the substantive principles of criminal law which would justify a particular instruction. State v. McIntosh, supra. While this court does not favor unyielding adherence to ‘rules of procedure where the interests of justice are thereby disserved’; id.; the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. 'The minor burden of cooperation imposed by this section is neither unreasonable nor novel.' Id., 161.” State v. Ostroski, supra, 558-59. The trial court did not err in refusing the defendant’s requests to charge on the elements of General Statutes § 53a-56 (a) (1).

The defendant’s claim of error regarding the denial of his motions for acquittal and for a new trial relies upon his argument that the lesser included offense instruction, was erroneously denied and was available to him due to the disputed and distinct mental elements of the offenses, in accord with State v. Fernandez, 5 Conn. App. 40, 496 A.2d 533 (1985). As the defendant failed to comply with the mandates of the rules of practice in submitting the request to charge, and does not enjoy a constitutional right to such a charge; State v. Ostroski, supra, 557; these claims fall with the determination that the trial court properly denied his request to charge.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) (1) provides: “(a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-56 (a) (1) provides: “(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       The defendant has abandoned his claim with respect to the lesser included offense of manslaughter in the first degree in violation of § 53a-55 (a) (3).

       We note that the defendant has failed to comport with the requirement of Practice Book § 3060F (d) (1) (now Practice Book § 4065 [d] [1]) that “a verbatim statement of the relevant portions of the charge as requested” be printed in his brief. We have previously noted that it is impossible for us to review such claims absent compliance with the appellate rules of practice. Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 244 n.4, 522 A.2d 829 (1987). In this case, however; the relevant portions of the request to charge have been excerpted and included in the brief filed by the state, thereby making our review possible.


text:
    State of Connecticut v. Kurt Marshall
    (4846)
    Hull, Daly and Bieluch, Js.
    Argued May 13
    decision released July 28, 1987

      James E. Swaine, for the appellant (defendant).

      James A. Killen, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and Mary Galvin, assistant state’s attorneys, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the sale of marihuana in violation of General Statutes § 21a-277 (b). The dispositive issue of the appeal is whether the trial court erred in taking judicial notice of certain facts and in its instructions regarding those facts. We find error.

The following facts are relevant to our analysis: Sometime after conducting a surveillance and completing an undercover drug buy, the New Haven police arrested the defendant as the man from whom the marihuana was purchased. The defendant presented an alibi defense, claiming that he was at a community fair at the time of the surveillance and transaction. No evidence was presented as to the distance between the community fair and the location of the drug buy.

In its instructions to the jury, the trial court took judicial notice of its estimate of the distance between the scene of the community fair and the location of the drug buy. The defendant’s objection to this instruction was overruled.

On appeal, the defendant claims that the distance between the two locations was not a proper subject for judicial notice, that the court failed to give notice of its intention to take such notice, and that the court directed the jury to find the noticed facts.

Facts which are the proper subject of judicial notice are “those which come to the knowledge of men generally in the course of the ordinary experience of life or those matters which are generally accepted by mankind as true and are capable of ready and unquestionable demonstration.” State v. Tomanelli, 153 Conn. 365, 369, 216 A.2d 625 (1966). Facts which are of common knowledge, that is, facts so well known that evidence to prove them is unnecessary are proper subjects of judicial notice. Id.; see generally, B. Holden & J. Daly, Connecticut Evidence §§ 21-33. Courts have declined to take judicial notice of the distance between two streets. 31 C.J.S., Evidence § 33 (3). We conclude that it was error for the court to take judicial notice of its estimate of the distance between the two sites.

In addition, the trial court failed to give the parties an opportunity to be heard prior to taking such notice. A court should give each party such an opportunity. State v. Zayas, 195 Conn. 611, 615, 490 A.2d 68 (1985); Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977).

Finally, judicial notice is in no sense conclusive, and the opponent is not prevented from disputing it by offering its own evidence. State v. Tomanelli, supra, 368-69. Thus, the jury in a criminal case may, but is not required to accept the judicially noticed fact. See also Fed. R. Evid., rule 201 (g). In this case, the lack of notice prevented the defendant from disputing the distance between the two locations. In addition, the trial court’s instructions did not sufficiently explain the jury’s option in accepting or rejecting the fact, but rather suggested that the jury was required to accept the fact as true.

The walking or driving distance between two points can vary depending on the route travelled. Since the defendant relied heavily on an alibi defense, the trial court’s instruction to the jury that, even if they believed the defendant’s alibi defense, there was still the opportunity for the defendant to traverse the distance from the site of the community fair to the place of the drug sale in a relatively short time, caused an injustice.

Here, the trial court failed to give the parties an opportunity to be heard, and further failed to inform the jury that it was not obligated to accept as true the judicially noted facts. Thus, it is reasonably possible that the jury was misled as to the effect of judicial notice.

We conclude that the trial court’s taking of judicial notice of the distance between the two locations was reversible error.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The trial court’s instruction included the following: “In the evidence, I don’t believe anyone ever brought out just how far [the location of the community fair] is from [the scene of the drug buy]. They are not next door to one another. And I say this because some of you are from other towns. But since I can take judicial notice of the fact that New Haven is a larger city than Old Lyme, I guess it’s proper to tell you for whatever use you want to make of it that [the scene of the fair] is in a different neighborhood of the city, being in the Newhallville sort of area, whereas [the scene of the drug buy] is in the Hill area. And my estimate would be that they’d be about probably a mile and one half or two miles apart not an impossible walk and a very short drive.”
      We note that the state concedes in its brief that since the time of the trial it has been determined through the use of maps obtained from the New Haven Bureau of Engineering that the distance between the two sites is in fact 2.4 miles.