author: Lavery, J.

text:
    Citicorp Mortgage, Inc. v. Richard M. Tarro
    (13210)
    Dupont, C. J., and Lavery and Schaller, Js.
    Argued September 29, 1994
    decision released February 28, 1995

      Richard P. Weinstein, with whom, on the brief, was Peter B. Rustin, for the appellant (defendant).

      Irene P. Romanelli, for the appellee (plaintiff).
   Lavery, J.

The defendant appeals from the trial court’s granting of a judgment of strict foreclosure on January 10,1994. The defendant raises two issues on appeal: (1) whether the trial court improperly granted the plaintiffs motion for strict foreclosure where the case had been dismissed and the plaintiff had filed a motion to reopen the judgment of dismissal more than four months from the date the case was dismissed; and (2) whether the court improperly denied the defendant’s motion to open the judgment of strict foreclosure where the denial was based on a finding that the defendant had waived his claim that the court lacked jurisdiction. We agree with the defendant and reverse the judgment of the trial court.

The essential facts are as follows. The plaintiff commenced a foreclosure action against the defendant on July 6, 1990, with a return date of August 14, 1990, to foreclose a mortgage in the amount of $209,500.

The action was dismissed pursuant to Practice Book § 251 on December 6,1991. The plaintiff failed to file a motion to open the judgment of dismissal until April 9,1992, more than four months from the entry of judgment of dismissal, and in contravention of General Statutes § 52-212a and Practice Book § 326. Between December 6, 1991, the date of dismissal, and April 9, 1992, the date of the filing of the motion to open the dismissal, neither the plaintiff nor the defendant filed any pleadings with the court. The matter remained dormant until April 9, 1992, when the plaintiff filed its motion to open the judgment, which was granted, over the objections of the defendant, on June 8, 1992.

Subsequent to the granting of the motion, the defendant filed an answer and special defense dated November 16,1992. On November 16,1992, the court rendered a judgment of strict foreclosure. On December 14, 1992, the defendant filed a motion to open the judgment of strict foreclosure on the ground of factual misrepresentations. The motion to open was granted in open court on December 28,1992. A judgment of foreclosure was reentered by the court on July 19, 1993.

On August 4, 1993, the defendant filed a motion to reopen the judgment of foreclosure. This motion was based, inter alia, on the fact that the trial court had set aside the judgment of dismissal and opened the case even though the motion to open that judgment was filed more than four months from the dismissal. On November 18, 1993, the trial court issued its memorandum of decision on the defendant’s motion to reopen the judgment of strict foreclosure. In the decision, the trial court concluded that the defendant had waived the four month limitation set forth in § 52-212a. Subsequently, the trial court rendered a judgment of strict foreclosure on or about January 10, 1994. This appeal followed.

A trial court’s ability to open a judgment is circumscribed by § 52-212a and Practice Book § 326, which contain virtually identical provisions. Section 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . . The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .”

It is well recognized that where a motion to open a judgment is filed more than four months from the date of the judgment, the trial court lacks jurisdiction to open the judgment. Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 558, 468 A.2d 1230 (1993); Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 465-66, 440 A.2d 159 (1981). In Celanese Fiber, our Supreme Court held that a trial court “lacked jurisdiction to open the judgment unless the ‘otherwise provided by law’ exception applies.” Celanese Fiber v. Pic Yarns, Inc., supra, 465. Unless the parties waive this time limitation, the trial court lacks jurisdiction to entertain a motion to open filed more than four months after a decision is rendered. Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985); Gallagher v. Gallagher, 29 Conn. App. 482, 483, 616 A.2d 281 (1992). Moreover, it has long been held that “[i]t is necessary to the validity of the judgment ‘that the court should have had jurisdiction of the precise question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant.’ ” Hanson v. Commissioner of Transportation, 176 Conn. 391, 401, 408 A.2d 8 (1979).

There are few exceptions to the general rule. The court does have jurisdiction to open a stipulated judgment, on a motion, even after the four month period has elapsed if the movant can show that the judgment was obtained by fraud, duress, accident or mistake. Solomon v. Reiser, 22 Conn. App. 424, 577 A.2d 1103 (1990). Accordingly, Practice Book § 326 does not prevent the later reopening of a judgment obtained by fraud, by mutual mistake or by actual absence of consent. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). In the case at hand, the trial court did not base its decision to open the judgment of dismissal because of fraud, duress, accident, mistake or absence of consent.

In this case, therefore, the trial court had jurisdiction to open the judgment only during the four months following the date of judgment, unless there is a waiver as provided in the statute.

The waiver exception to § 52-212a provides that “[t]he parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .” The standards for waiver are well established in Connecticut; waiver involves “the intentional relinquishment of a known right.” Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 257, 205 A.2d 780 (1964). There cannot be a finding of waiver unless the party has “ ‘both knowledge of the existence of the right and intention to relinquish it.’ ” Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 645, 220 A.2d 254 (1966); accord National Casualty Ins. Co. v. Stella, 26 Conn. App. 462, 464, 601 A.2d 557 (1992). Moreover, a party claiming waiver has the burden of proving it. Clearly v. Zoning Board, 153 Conn. 513, 518, 218 A.2d 523 (1966).

The waiver found by the trial court fails to meet these standards. Neither the plaintiff nor the trial court cites to any explicit waiver by the defendant. Moreover, the defendant objected to the motion to open the judgment of dismissal. Thus, there was no knowing, voluntary and intelligent waiver of the four month period as of the date that the trial court granted the motion to open.

The trial court improperly concluded that the defendant’s filing of subsequent pleadings was a waiver. The mere fact that the parties filed pleadings after June 8, 1992, does not indicate a waiver of the four month restriction. In its decision, the trial court focused on the time period following June 8,1992, and determined that pleadings had been filed after the motion to open had been granted. Instead, it should have inquired as to whether, before June 8, 1992, the defendant gave any indication that he intended to waive the four month period. There is no dispute that between December, 1991, when the action was dismissed, and June 8,1992, the defendant filed no pleadings that would suggest that he in any way waived the four month period. Thus, as of June 8, 1992, there was no indication that the defendant waived the four month period as set forth by § 52-212a.

The defendant’s filing of pleadings after the judgment of dismissal did not waive the four month period of § 52-212a. Any subsequent pleadings by the defendant could not logically have constituted a waiver. Rather, those pleadings were no more than a necessary attempt to defend his interests in this litigation. The defendant had no choice but to file requisite pleadings and motions after the June 8,1992 opening of the judgment. At that time, the court’s decision became the law of the case. Had the defendant filed nothing once the case was opened, he would have risked the sanction of default. Thus, the trial court’s determination that the filing of pleadings after June 8, 1992, constituted a waiver would put a defendant in an untenable position. This predicament hardly constitutes the intentional relinquishment or abandonment of a known right or privilege, which is the cornerstone of a claim of waiver. See State v. Ramos, 201 Conn. 598, 603, 519 A.2d 9 (1986), citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

Furthermore, the June 8, 1992 decision was not an appealable final judgment. Because a trial court’s decision granting a motion to open a judgment fails to meet the well established test for determining the finality and appealability of judgments, the June 8,1992 decision was not a final judgment. Under this test, the court will determine whether “the rights of a party are con-eluded by the order” and “whether the order terminates a separate and distinct proceeding.” Metropolitan District v. Housing Authority, 12 Conn. App. 499, 502, 531 A.2d 194 (1987), citing Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961); Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 (1953). An application of the test for finality of judgments to the present case indicates that it is clear that the June 8,1992 decision would not have been appealable. The rights of the parties were not concluded by that order. Rather, the June 8,1992 opening of the judgment of dismissal merely allowed for further proceedings in this case. Because the June 8, 1992 decision would not have been appealable, the defendant was left with little choice but to file pleadings and to defend the action.

The judgment is reversed and the case is remanded with direction to render a judgment of dismissal.

In this opinion the other judges concurred.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Anonymous
    (13108)
    Dupont, C. J., and Foti and Lavery, Js.

      Argued September 13, 1994
    decision released February 28, 1995

      Jon L. Schoenhorn, for the appellant (defendant).

      Elliot B. Spector, with whom, on the brief, was Christopher G. Arciero, for the appellee (town of Farmington).
   Lavery, J.

This is an appeal by the defendant from the judgment of the trial court vacating the order granting his motion to destroy statutorily erased criminal records and allowing the town of Farmington to use his records for purposes of defending an action brought by the defendant against the town for false arrest.

On March 31,1993, the defendant was arrested and charged with attempted larceny in the first degree by extortion in violation of General Statutes §§ 53a-49, 53a-119 (5) (E) and 53a-121. The defendant filed a motion to dismiss the charges against him, which the trial court granted. Thereafter, on July 8, 1993, the defendant sent notice, pursuant to General Statutes § 7-465, to the town regarding his intention to bring a civil action against it for false arrest.

Relying on General Statutes § 54-142a (e), the defendant requested that the Farmington police department physically destroy his police records. The police department, however, refused to comply, arguing that § 54-142a (e) applies only to court records. Thereafter, the defendant filed a motion with the trial court seeking an order compelling the town to destroy the records physically and the court granted the motion. The town then filed a motion asking the court to vacate the order granting the defendant’s motion to destroy all records and to grant the town disclosure of the records pursuant to General Statutes § 54-142a (f). The trial court granted the motion “for the purposes of legal defense of [the] civil action only.” Thereafter, the defendant filed a motion to reconsider, which the trial court denied. The defendant filed this appeal following the trial court’s denial of his riiotion to reconsider.

The defendant raises two issues on appeal: (1) did the town have standing to intervene in the underlying criminal action when it was not a party, made no action to intervene and was not aggrieved; and (2) did the court abuse its discretion in considering the defendant’s notice under § 7-465 of his intention to institute a lawsuit and to claim monetary damages against the town for false arrest as a basis to order disclosure of erased records pursuant to General Statutes § 54-142a (f)? We find that the town had standing and we agree with the defendant that he has a right to have his records destroyed. We reverse the trial court’s judgment.

I

The defendant’s first claim is that the town was not a party and made no action to intervene. Though normally a nonparty has no standing, here the parties themselves and the trial court treated the town as though it had made and been granted a motion to intervene. This court will consider the defendant’s failure to file appropriate motions as a waiver of this issue since the trial court heard the matter on the merits. See Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990), remanded, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992).

The town was aggrieved by the court’s order granting the defendant’s motion to destroy the records. Aggrievement and standing are. not technical rules intended to keep suitable parties out of court, nor are they tests of substantive rights. Rather, standing and aggrievement are “practical concept[s] designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” Light Rigging Co. v. Dept. of Public Utility Control, 219 Conn. 168, 172, 592 A.2d 386 (1991). To determine standing, it must be decided whether the town is a proper party to request an adjudication of the issue or has a legally protected interest that has been invaded. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978).

Because the defendant had sent notice to the town regarding his intention to bring a civil action against it, the town had a legally protected interest. The town had a right to be heard concerning the destruction of records relating to its defense in the impending civil action, and, therefore, had standing because it was adversely affected.

II

When the defendant gave notice to the town concerning his intention to bring a civil action for false arrest, the town moved for disclosure of the records. The town claimed a right to disclosure of the records under General Statutes § 54-142a (f), which provides for an exception to General Statutes § 54-142a. Because Farmington did not qualify for the § 54-142a (f) exception, the trial court should not have granted the disclosure of the records to the town.

Section 54-142a (f) provides: “Upon motion properly brought, the court or a judge thereof, if such court is not in session, may order disclosure of such records (1) to a defendant in an action for false arrest arising out of the proceedings so erased . . . .” This section is a narrowly tailored exception to § 54-142a (a), (b), (c) and (d), which provide for automatic erasure of criminal records in four situations. “[T]he four situations under which erasure would occur are if first there was a nolle, second if there is a case dismissed, third if a not guilty judgment was found in a court, and fourth if there was a full pardon after sentencing.” 17 S. Proc., Pt. 6, 1974 Spec. Sess., p. 2781, remarks of Senator David Odegard. In any of these four situations, “General Statutes § 54-142a provides for the sealing, erasure and, in certain cases, destruction of police, court and prosecutorial records insofar as they pertain to criminal charges that do not result in conviction . . . .” State v. West, 192 Conn. 488, 492, 472 A.2d 775 (1984). “ ‘[T]he obvious purpose of [§ 54-142a] is to protect [an innocent person] from the harmful consequences of a criminal charge ....’” Id., 496. So as not to contravene this most important purpose, “the statutorily created exceptions to a general rule [of § 54-142a] must be strictly construed and the language not extended beyond its evident intent.” State v. Anonymous (1983-1), 38 Conn. Sup. 661, 664, 460 A.2d 494 (1983); see also Pintavalle v. Valkanos, 216 Conn. 412, 581 A.2d 1050 (1990) (statute should be given plain and ordinary meaning); State v. Fiasconaro, 25 Conn. App. 643, 595 A.2d 945 (1991) (court cannot, by construction, read provision into legislation not clearly stated therein).

A strict reading of the statutorily created exception, § 54-142a (f) (1) allows disclosure to “a defendant in an action for false arrest . . . .” At the time the town filed its motion requesting disclosure, however, it was not “a defendant in an action for false arrest.” The town had received only a notice, pursuant to § 7-465, of the defendant’s intent to bring an action for false arrest. Section 7-465 requires that notice be given regarding a party’s intent to commence an action. The language of the statute seems clearly to state that notice must be given as a condition precedent to any action. See Fraser v. Henninger, 173 Conn. 52, 376 A.2d 406 (1977); Derfall v. West Hartford, 25 Conn. Sup. 302, 203 A.2d 152 (1964); MacLeod v. Milford, 25 Conn. Sup. 70, 196 A.2d 604 (1963); Wolfe v. Branford, 22 Conn. Sup. 239, 167 A.2d 924 (I960). The giving of notice, therefore, does not equal an action or even the commencement of an action. Furthermore, it is well settled that an action is brought on the date on which the writ is served on the defendant. See, e.g., Hillman v. Greenwich, 217 Conn. 520, 587 A.2d 99 (1991); Howard v. Robertson, 27 Conn. App. 621, 608 A.2d 711 (1992). Because service had not been made on the town at the time it filed its motion to vacate the order granting the motion to destroy the records, there was no action pending, and the town was not a defendant in an action for false arrest, as contemplated by § 54-142a (f). An action as defined by the Connecticut Supreme Court is “ ‘the lawful demand of one’s right in a court of justice ... for the purpose of obtaining whatever redress the law provides.’ ” Dayco Corp. v. Fred T. Roberts & Co., 192 Conn. 497, 502, 472 A.2d 780 (1984), quoting Waterbury Blank Book Mfg. Co. v. Hurlburt, 73 Conn. 715, 717, 49 A. 198 (1901); In re Investigation of the Grand Juror, 188 Conn. 601, 606, 452 A.2d 935 (1982). An action is an action that is currently pending; to state that is to “state the obvious.” Oneglia v. Oneglia, 14 Conn. App. 267, 269 n.2, 540 A.2d 713 (1988). The defendant, therefore, had not yet made a lawful demand for his rights in a court of justice by filing an action for false arrest against the town; he had only put the town on notice that he might file an action.

Even if the defendant had already begun an action against the town, the town’s right to a § 54-142a (f) exception is by no means an absolute right. Section 54-142a (f) provides in part: “Such disclosure of such records is subject also to any records destruction program pursuant to which the records may have been destroyed.” If an action for false arrest is brought and the records have previously been destroyed, the defendant would have no meaningful right to the exception because the right to the exception would be moot.

The town does not qualify for the § 54-142a (f) exception as it is not “a defendant in an action for false arrest.” For this court to find that the records should be disclosed to the town would frustrate the purpose of the erasure statute, § 54-142a (e), which allows individuals who were arrested, but whose charges were dismissed, to seek physical destruction of that record. For this court to uphold the granting of the town’s motion would contravene the firmly established rule of statutory construction that “[t]he intent of the legislature is to be found in the meaning of the words of the statute; that is, in what the legislature actually did say, not in what it meant to say. . . . Where those actual words are plain and unambiguous, there is no room for judicial construction of the statute.” (Citations omitted.) Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981).

Because the defendant had not yet brought an action against the town, the town was not a “defendant in an action for false arrest” and, thus, did not fall within the disclosure exception provided by § 54-142a (f).

The judgment is reversed and the case is remanded with direction to order the physical destruction of the defendant’s arrest records.

In this opinion Dupont, C. J., concurred.

Foti, J., dissenting. I must respectfully disagree with part II of the majority opinion.

I recognize that when a statute creates an exception to a general rule, it is to be construed strictly and its language is not to be extended beyond its evident intent. Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); Kulis v. Moll, 172 Conn. 104, 110, 374 A.2d 133 (1976). General Statutes § 54-142a (f) is, however, remedial in nature. State v. Anonymous (1980-1), 36 Conn. Sup. 9, 12, 409 A.2d 150 (1980); State v. Cutler, 33 Conn. Sup. 158, 162-65, 366 A.2d 805 (1976); see also State v. Anonymous (1983-1), 38 Conn. Sup. 661, 663-64, 460 A.2d 494 (1983).* “The statute is a remedial one in that it affords a remedy against the consequences of nondisclosure of records to a person made a defendant in a civil proceeding. . . . The statute protects from the harmful consequences of nondisclosure those persons whose involvement in the arrest in the criminal action causes them to be named defendants in a civil action arising out of the criminal proceeding.” (Citation omitted.) State v. Cutler, supra, 161. A remedial statute is to be construed in favor of those whom it was intended to protect; Staples v. Palten, 214 Conn. 195, 199, 571 A.2d 97 (1990); it must be liberally construed to effect its purpose. Merchant’s Bank & Trust Co. v. Pettison, 112 Conn. 652, 655, 153 A. 789 (1931). We must construe the true purpose for which the statute was enacted. See Cedar Island Improvement Assn. v. Clinton Electric Light & Power Co., 142 Conn. 359, 369, 114 A.2d 535 (1955).

There is no question that the town of Farmington comes within the limited class for whose benefit the statute was established. The purpose of the notice sent by the defendant was to notify the town that it would be named in a civil action arising out of the criminal proceeding. It is a familiar legal maxim that everyone is presumed to know the law. This rule is founded on public policy and is based on the principle that the acts of a person must be considered as having been done with knowledge of the law, for otherwise the law could be evaded with facility. Hebb v. Zoning Board of Appeals, 150 Conn. 539, 192 A.2d 206 (1963). In this case, the defendant must be presumed to have known of the statutory exceptions to the automatic erasure of criminal records under § 54-142a. Given this presumption, the defendant may indeed be found to have waived any right to object to the disclosure by sending notice of his intent to bring a civil action. The notice constituted a waiver of the defendant’s right to claim thereafter that the town was not “presently” a defendant, or that no “action” had yet been filed. He should not be allowed to control the defense of the civil action after having given the appropriate notice. The records at issue would be vital to the town’s capability to provide the background and defense of the claimed false arrest. I find it both unreasonable and illogical that the defendant is insisting on the physical destruction of the very records that may assist in a fair and just determination of the merits of his “noticed” civil action.

Courts must assume that the legislature intended a reasonable and rational result and must, when possible, construe statutes accordingly. Stone v. Sullivan, 154 Conn. 498, 503, 227 A.2d 76 (1967). The result that the majority proposes does not effect the purpose of the remedial statute, and I believe it is neither rational nor reasonable.

I would, therefore, affirm the trial court’s ruling.

       General Statutes § 7-465 (a) provides in relevant part: “No action . . . shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained had been filed with the clerk of such municipality within six months after such cause of action has accrued. ...”

       General Statutes § 54-142a (e) provides in relevant part: “The clerk of the court or any person charged with retention and control of such records in the records center of the judicial department or any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record, upon submission pursuant to guidelines prescribed by the Office of the Chief Court Administrator of satisfactory proof of the subject’s identity, information pertaining to any charge erased under any provision of this section and such clerk or person charged with the retention and control of such records shall forward a notice of such erasure to any law enforcement agency to which he knows information concerning the arrest has been disseminated and such disseminated information shall be erased from the records of such law enforcement agency. Such clerk or such person, as the case may be, shall provide adequate security measures to safeguard against unauthorized access to or dissemination of such records or upon the request of the accused cause the actual physical destruction of such records. . . .”

       General Statutes § 54-142a (f) provides: “Upon motion properly brought, the court or judge thereof, if such court is not in session, may order disclosure of such records (1) to a defendant in an action for false arrest arising out of the proceedings so erased or (2) to the prosecuting attorney and defense counsel in connection with any perjury charges which the prosecutor alleges may have arisen from the testimony elicited during the trial. Such disclosure of such records is subject also to any records destruction program pursuant to which the records may have hern destroyed. The jury charge in connection with erased offenses may be ordered by the judge for use by the judiciary, provided the names of the accused and the witnesses are omitted therefrom.” (Emphasis added.)

       After a careful review of the legislative history, especially the remarks of Representatives Cornelius O’Leary and James Bingham in the Connecticut General Assembly house proceedings, it is obvious that the legislature intended to benefit the defendant by General Statutes § 54-142a (e).
      “Mr. O’Leary (60th): I should think that most people having an arrest record which had been nolled or not guilty or a pardon would want the record destroyed. Why would you put the burden on the person to contact the court and request that the record be destroyed, rather than the other way around.
      “Mr. Bingham (147th): Not necessarily. The person might in some instances prefer to have the record kept for further action such as an action for false arrest against the police department.” 17 H.R. Proc., Pt. 6,1974 Sess., p. 3048.

       In view of this disposition, no action need be taken on the judgment granting the town the use of the records.

        State v. Cutler, supra, 33 Conn. Sup. 158, was distinguished by the court in State v. Anonymous (1983-1), supra, 38 Conn. Sup. 663-64. The court in Cutler afforded the disclosure remedy to a person made a defendant in a civil proceeding, despite the plaintiff’s claim that because his action was based on malicious prosecution, the exception to nondisclosure in a false arrest was not applicable. In State v. Anonymous (1983-1), supra, 661, the civil action against the town of Wallingford did not arise out of the prior criminal proceeding wherein the accused was acquitted of the crime charged. The court held that “[t]he present case is clearly distinguishable from Cutler for the reason that the civil action[s] filed by the defendant in this case did not arise out of the criminal proceedings as required by § 54-142a (f) (2).” (Emphasis added.) Id., 664. Having so concluded, the court, as dicta, cited Kulis v. Moll, supra, 172 Conn. 110. I, therefore, do not agree that this case stands for the proposition that § 54-142a (f) must be strictly construed as a statutorily created exception to a general rule.


author: Landau, J.

text:
    State of Connecticut v. John Yurch
    (12708)
    Landau, Heiman and Spear, Js.

      Argued October 31, 1994
    decision released February 28, 1995

      Louis S. Avitabile, with whom was Meryl Anne Spat, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Robin A. Lipsky, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant, John Yurch, appeals from the judgment of conviction, rendered after a trial to the court, of two counts of forgery in the third degree in violation of General Statutes § BSa-lJO, and from the judgment finding him in violation of probation pursuant to General Statutes § 53a-32.* The defendant claims that the trial court (1) improperly convicted him on the first count of forgery in the third degree in that (a) forgery in the third degree is not a lesser included offense of forgery in the second degree, (b) there was insufficient evidence that the alleged contract, if completed, was capable of transferring property, and (c) an intent to injure, not simply an intent to deceive, is required to prove a violation of the statute, (2) improperly convicted him on the second count of forgery in the third degree in that (a) an intent to injure, not merely to deceive, is required under the statute and (b) the state failed to prove an intent to defraud, and (3) improperly imposed a total term of probation that was in excess of the five year statutory limit.

The trial court found the following facts. In early 1991, the defendant and Karl Skoog met and discussed the possibility of having the defendant build a house for Skoog. On or about April 3, 1991, they settled on a proposal that included the purchase of lot five, Upper Grassy Hill Road in Woodbury. The defendant agreed to present an offer to purchase to the owner of the lot, John Filchak, and, on April 5, Skoog gave the defendant an $1800 deposit for the land purchase.* ** The defendant thereafter presented Skoog with a copy of the offer to purchase, which was ostensibly signed by John Filchak and dated April 10, 1991.

After Skoog encountered difficulty securing a mortgage, he and the defendant agreed to have the contract for the lot purchase made in the defendant’s name. On May 20, the defendant requested an additional deposit of $1712, which Skoog agreed to provide on the condition that the amount be held in escrow by either his attorney or the defendant’s attorney. The defendant advised Skoog that Robert Cartoceti would be his attorney and Skoog issued a check to Cartoceti, as trustee. Upon receipt of the check, the defendant signed Cartoceti’s name on the check and deposited it into his personal account.

In June, 1991, Skoog contacted the Drakely Agency concerning the agreement between the defendant and Filchak to purchase lot five. He was informed that no contract existed. Skoog confronted the defendant and requested the return of his deposits, in response to which the defendant gave Skoog a check in the amount of $2150. When Cartoceti was contacted by Skoog’s attorney regarding the balance in escrow, Cartoceti informed him that he had no knowledge of any deposit and had never represented the defendant.

On July 8, the defendant returned the remaining $1712 to Skoog. On that same day, the defendant went, upon request by the police, to the Southbury police station, where he was advised of his Miranda rights and voluntarily admitted to signing Cartoceti’s name to the check and signing Filchak’s name to the offer to purchase.

The defendant was subsequently charged with forgery in the second degree, forgery in the third degree and attempted larceny in the fourth degree. He was also charged with a violation of probation. At the close of the state’s case, the court, acting on the defendant’s motion for judgment of acquittal, acquitted the defendant of forgery in the second degree, but permitted the state to proceed on the first count on the lesser included offense of forgery in the third degree. The court also acquitted the defendant of attempted larceny.

Following trial, the court found the defendant guilty of both counts of forgery in the third degree, as well as violation of probation. The court committed him to the custody of the commissioner of correction to serve concurrent sentences of six months each for the counts of forgery, those sentences to be served concurrently with a sentence of one year for the violation of probation, execution suspended after six months, with two years probation. This appeal followed.

I

First Count

The defendant first claims that the trial court improperly convicted him on the first count of the lesser included offense of forgery in the third degree. He proffers three arguments to support this claim, which we address seriatim.

A

LESSER INCLUDED OFFENSE

The defendant asserts that his conviction on the first count was improper because forgery in the third degree is not a lesser included offense of forgery in the second degree. Practice Book § 883 permits the trial court, when granting a judgment of acquittal as to a principal offense, to deny a motion for acquittal as to any lesser included offense if the evidence would reasonably permit a finding of guilty. The defendant contends that the language of § 883 presupposes the legal existence of the lesser included offense. Consequently, he argues, when the trial court granted his motion for judgment of acquittal as to forgery in the second degree, it could not have properly allowed the prosecution to proceed on forgery in the third degree, as the latter offense is not a lesser included offense of the former.

The defendant raises this claim for the first time on appeal. At trial, in his motion for judgment of acquittal at the close of the state’s case, he argued that there was insufficient evidence to permit a finding of guilty of forgery in the third degree as a lesser included offense of the first count. He did not, however, argue that forgery in the third degree is not a lesser included offense of forgery in the second degree. “ ‘This court will not review issues of law that are raised for the first time on appeal.’ ” State v. Beliveau, 36 Conn. App. 228, 242, 650 A.2d 591 (1994), quoting State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992); see Practice Book § 4185. Accordingly, we decline to review this claim.

B

INSUFFICIENCY

The defendant next argues that his conviction on the first count was improper because the state failed to prove what it alleged in the information, that is, that the defendant falsely made a contract that, if completed, would create and transfer a legal right to property.

The defendant’s argument is relevant to the question of whether he could properly be convicted of forgery in the second degree. The trial court, however, acquitted the defendant of that offense and convicted him only of forgery in the third degree. Consequently, the state, to secure a conviction, needed to prove only the elements of forgery in the third degree and not those of forgery in the second degree.

A conviction of forgery in the third degree requires proof that, “with intent to defraud, deceive or injure another,” a person falsely made, completed or altered a written instrument, or issued or possessed any written instrument which he knew to be forged. General Statutes § 53a-140. A “written instrument” is defined as “any instrument or article containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information . . . which is capable of being used to the advantage or disadvantage of some person.” General Statutes § 53a-137 (1).

Thus, the state was required to prove only that the defendant falsely made a written instrument, not a contract that if completed would create and transfer a legal right to property. His argument, then, that the state failed to establish the elements of forgery in the second degree is irrelevant to his claim that he was improperly convicted of forgery in the third degree.

C

INTENT

In the third part of his first claim, the defendant argues that forgery requires an intent to injure, not merely an intent to deceive, and that there was insufficient evidence of any intent to injure. He contends that an intent to injure is a necessary element of forgery because the intent to deceive written into the statute includes within it an injurious purpose. Thus, he posits, an intent to deceive devoid of an intent to injure is not enough to sustain a forgery conviction. Because the trial court failed to find an intent to injure, the defendant claims that his forgery conviction was improper. We disagree.

In interpreting the specific intent element of § 53a-140, we must adhere to “well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature. ... To determine the intent of the legislature, we first consider whether the statutory language yields a plain and unambiguous resolution. ... If the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature . . . and we need inquire no further. . . . The words of a statute must be interpreted according to their ordinary meaning unless their context dictates otherwise. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). Also, General Statutes § 1-1 (a) mandates that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .”

A conviction of forgery, in all three degrees, requires the state to prove an “intent to defraud, deceive or injure another.” See General Statutes §§ 53a-138, 53a-139 and 53a-140. “The use of the disjunctive ‘or’ between the . . . parts of the statute indicates a clear legislative intent of separability.” State v. Chapman, 227 Conn. 616, 622, 632 A.2d 674 (1993), quoting State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65 (1963). It is clear, then, that an intent to deceive, independent of an intent to injure, satisfies the statute’s specific intent element.

The core of the defendant’s argument, however, is that an intent to deceive entails the concept of injurious intent, that an intent to deceive means an intent to deceive in a manner calculated to cause injury. We disagree with the defendant’s interpretation of this phrase. It is important to note that the specific intent element of the forgery statute is satisfied by an intent to defraud as well as an intent to deceive. The ordinary meaning of the phrase “to deceive” is “to cause to believe the false. . . . Deceive indicates an inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine . . . .” Webster’s Third New International Dietionary. In contrast, “to defraud” means “to take or withhold from (one) some possession, right, or interest by calculated misstatement or perversion of truth, trickery, or other deception.” Id.

To defraud, then, means to deceive in order to cheat or to deceive in a manner calculated to cause injury. The defendant proposes an interpretation of an intent to deceive that is the equivalent of an intent to defraud. It is axiomatic “ ‘that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.’ ” Frillici v. Westport, 231 Conn. 418, 432, 650 A.2d 557 (1994). If we were to adopt the defendant’s interpretation, the legislature’s inclusion of both an intent to deceive and an intent to defraud in the forgery statutes would be redundant.

We therefore conclude that an intent only to deceive, without an intent to injure, satisfies the specific intent element of the forgery statutes. The defendant was properly convicted of forgery in the third degree on the first count.

II

Second Count

The defendant next claims that the trial court improperly convicted him of forgery in the third degree on the second count, which concerned his endorsing Cartoceti’s name on the check drafted by Skoog and depositing it into his personal account. To support this claim, the defendant first reiterates his argument that the state introduced insufficient evidence of an intent to injure, which, he claims, is a required element of forgery. The defendant also asserts that he lacked the intent to defraud because, by the provisions of the binder agreement, he was entitled to hold the funds from the check in his account pending the completion of the transaction.

At the close of evidence, the defendant moved for judgment of acquittal, arguing that there was insufficient evidence to disprove the fact that he had a valid claim of right to hold the funds in his personal account. He contended that you cannot have an intent to defraud if you honestly, but erroneously, believe that you have a lawful right to the property at issue. Because he honestly believed that the provisions of the binder agreement afforded him a right to deposit the check into his personal account, the defendant argued that he could not be convicted of forgery.

Again, the defendant’s argument falls wide of its mark. Even if the defendant had a valid claim of right to hold the funds in escrow himself, or even if he honestly believed this to be the case, he nonetheless endorsed Cartoceti’s name on a check without authorization. The key question is not whether the defendant honestly believed he had a right to deposit the funds from the check into his account, but whether he honestly believed that he had a right to sign Cartoceti’s name to the check. The defendant makes no such claim. Thus, his argument that he had a right to deposit the funds into his own account does not support his claim that he lacked an intent to defraud. The defendant was properly convicted of forgery in the third degree on the second count.

III

Probation Sentencing

Finally, the defendant asserts that the trial court inappropriately imposed an additional period of probation when it sentenced him for violation of probation. He argues that the imposition of an additional two year period of probation to an original five year period contravened General Statutes § 53a-32 (b) and State v. Guckian, 27 Conn. App. 225, 246-47, 605 A.2d 874, aff'd, 226 Conn. 191, 627 A.2d 407 (1993). While the state does not agree with the defendant’s analysis under Guckian, it does concede that the sentence imposed by the trial court is improper. We agree that the sentence is inappropriate.

The following history is relevant to the disposition of this issue. In 1988, prior to the events giving rise to this case, the defendant pleaded guilty to thirty-eight counts of forgery in the second degree. As a result of his conviction, he was sentenced to three years of imprisonment, execution suspended, and five years probation on each count, to be served concurrently. The defendant’s probationary period commenced on December 22,1988, and was tolled on October 23,1992, with the issuance of a warrant for violation of probation stemming from Skoog’s complaint in the current matter. Consequently, three years and ten months of the original probation period had gone by when the probation violation warrant issued.

After trial, the court found that the defendant’s conviction of two counts of forgery in the third degree constituted a violation of probation. The court thereupon sentenced him to one year, execution suspended after six months, and two years probation, to be served concurrently with the sentences on the forgery convictions.

We conclude that the trial court contravened General Statutes § 53a-30 (c) when it ordered an additional two years probation. In so doing, the court imposed a probationary period that, together with the portion that had already been served, exceeded the five year limit on felonies mandated by General Statutes § 53a-29 (d) (l). As the court in 1988 had originally imposed the maximum probationary period of five years, and the defendant had only fourteen months left to serve on that period, the trial court could have imposed no more than an additional period of fourteen months probation. By imposing an additional two year period, it exceeded the five year limit.

The judgment of conviction as to the two counts of forgery in the third degree is affirmed. The judgment of violation of probation is reversed as to the sentence only and the case is remanded for further sentencing proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 53a-140 provides in pertinent part: “A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, or issues or possesses any written instrument which he knows to be forged.”

       General Statutes § 53a-32 provides in pertinent part: “(a) At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation ... or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. . . .
      “(b) If such violation is established, the court may continue or revoke the sentence of probation ... or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       We note that the trial court orally rendered its decision after hearing evidence on the matter. The court, however, never issued a written memorandum of decision, or signed and filed a transcript of its oral decision. In response to the defendant’s oral request for an articulation of the bases for its decision, the trial court issued a detailed statement on the record of its factual findings. Although not fully complying with Practice Book § 4059, which requires oral decisions to be transcribed, signed and filed, the court’s statement of its findings is sufficiently detailed and concise for our review. See Fiddleman v. Redmon, 31 Conn. App. 201, 209 n.6, 623 A.2d 1064, cert. denied, 226 Conn. 915, 628 A.2d 986 (1993); State v. Rivera, 30 Conn. App. 224, 225 n.1, 619 A.2d 1146, cert. denied, 225 Conn. 913, 623 A.2d 1024 (1993); cf. State v. Salerno, 36 Conn. App. 161, 165-66, 649 A.2d 801 (1994).

       Later in the month, Skoog forwarded to the defendant an additional $350 for drilling permits and driveway construction material.

       The first count concerned the defendant’s act of signing Filchak’s name to the offer to purchase lot five.

       Practice Book § 883 provides in pertinent part: “After the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant or upon his own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty.”

       General Statutes § 53a-139 (a) (1) provides in pertinent part: “A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed ... [a] contract . . . which does or may evidence, create, transfer, terminate or otherwise affect a legal right . . . .”

       The defendant concedes that the trial court found an intent to deceive.

       We recognize that § 53a-140 is a penal statute, which must be construed strictly in favor of the accused. State v. Somerville, 214 Conn. 378, 384, 572 A.2d 944 (1990). While this is true, the strict construction of a penal statute nonetheless “must accord with common sense and commonly approved usage of the language.” State v. Edwards, 201 Conn. 125,132, 513 A.2d 669 (1986).

       Our interpretation of an intent to deceive is supported by one of the purposes for the criminalization of forgery, which is to safeguard “confidence in the genuineness of documents relied upon in commercial and business activities.” W. LaFave, Criminal Law (1972) § 90, p. 671.

       The defendant’s argument on this point has been addressed and deemed unpersuasive in part I C of this opinion.

       The binder agreement was between the defendant, as seller, and Skoog, as buyer, “to build a new construction” on lot five. It provided that the “Buyers do hereby deposit with John Yurch, the Seller, $1712 to be held in escrow.”

       See footnote 2.

       See General Statutes § 53a-31 (b); State v. Egan, 9 Conn. App. 59, 73, 514 A.2d 394 (1986).

       General Statutes § 53a-30 (c) provides in pertinent part: “At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29. ...”

       General Statutes § 53a-29 (d) (1) provides in pertinent part: “The period of probation . . . shall be as follows . . . [f]or a felony . . . not more than five years . . . .”


author: Schaller, J.

text:
    Dewey Lockwood v. Professional Wheelchair Transportation, Inc., et al.
    (12780)
    Landau, Schaller and Spear, Js.
    Argued October 26, 1994
    decision released February 28, 1995

      Thomas W. Meiklejohn, with whom was Jonathan L. Gould, for the appellant (plaintiff).

      Peter M. Appleton, with whom was Morton W. Appleton, for the appellees (defendants).

      Richard Blumenthal, attorney general, and Charles A. Overend and Maria C. Rodriguez, assistant attorneys general, filed a brief for the state department of labor, as amicus curiae.
   Schaller, J.

The plaintiff, Dewey Lockwood, appeals from the judgment of the trial court rendered, after a jury trial, on a directed verdict for the defendants, Professional Ambulance Services, Inc. (Professional Ambulance) and Professional Wheelchair Transportation, Inc. (Professional Wheelchair). The trial court denied the plaintiffs request for a directed verdict against both defendants. The plaintiff claims that the trial court improperly (1) directed a verdict for the defendant Professional Ambulance, (2) failed to direct a verdict in favor of the plaintiff against the defendant Professional Ambulance, (3) directed a verdict in favor of the defendant Professional Wheelchair, and (4) permitted the defendants to introduce evidence with respect to an issue that had already been litigated and decided against the defendants. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. Lockwood was employed by Professional Ambulance as an emergency medical technician. On May 18, 1988, he was involved in a car accident that resulted in $7000 property damage to the ambulance he was driving. Lockwood was issued a citation for driving at an unsafe speed for the conditions in violation of General Statutes § 14~218a (b).

On July 15, 1988, Lockwood was disciplined by Professional Ambulance for his involvement in the accident. He was issued a warning, suspended from work for three days, and his driving privileges were suspended for six months. After the three day suspension, Lockwood was allowed to return to work as an ambulance attendant, pending reinstatement of his driving privileges.

In June, 1988, Professional Ambulance, pursuant to its policy manual, requested that Lockwood pay it $1000, the amount of the deductible on its insurance policy. Lockwood informed Professional Ambulance that he did not think that the accident was his fault and therefore did not owe the money.

In July, 1988, Lockwood appeared in court with respect to the citation for operating at an unsafe speed. Following a trial, he was found not guilty. Lockwood reported the not guilty verdict to the defendant and repeated his refusal to pay. Professional Ambulance continued to demand the $1000 from Lockwood.

In late September, 1988, Lockwood took a leave of absence from his employ with Professional Ambulance. On October 11, 1988, Professional Ambulance instituted an action against Lockwood in the Small Claims Session of Superior Court seeking payment of the $1000 deductible. Lockwood denied liability and counterclaimed against the defendant for interfering with his employment with a separate corporation, Professional Wheelchair. After about two weeks of employment with Professional Wheelchair, Lockwood was terminated for refusing to pay the money to Professional Ambulance.

On November 25, 1988, a trial was held in Small Claims Court. The magistrate judge rendered judgment for Lockwood on Professional Ambulance’s claim for the $1000 and for Professional Ambulance on Lockwood’s counterclaim of interference with employment.

In December, 1988, after his welding classes were completed, Lockwood informed Professional Ambulance that he was ready to return to work for Professional Ambulance. Harvey Kagan, principal owner and CEO of both Professional Ambulance and Professional Wheelchair informed Lockwood that he would have to pay the $1000 in order to return to work for Professional Ambulance. Lockwood reminded Professional Ambulance that the Small Claims Court had determined that he did not owe the money. Professional Ambulance continued to demand the money as a prerequisite to employment. Lockwood refused to pay the money and did not return to work for Professional Ambulance.

Lockwood filed suit against both defendants, Professional Ambulance and Professional Wheelchair. At the close of evidence, Lockwood and the defendants^filed requests for a directed verdict. The trial court denied Lockwood’s motion, but granted the defendants’ motions and directed the jury accordingly. Lockwood now appeals from the judgment rendered on that verdict.

I

As a preliminary matter, we must discuss Lockwood’s apparent noncompliance with Practice Book § 4059. The appellant bears the responsibility of providing this court with an adequate record for review. Practice Book § 4061; see also Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 554-55, 636 A.2d 1370, cert granted, 229 Conn. 907, 640 A.2d 120 (1994); State v. Rios, 30 Conn. App. 712, 622 A.2d 618 (1993). The appellant has the responsibility of ensuring that the trial court has signed a copy of the transcript when the decision has been rendered orally. Practice Book § 4059. Here, the trial court neither issued a written memorandum nor transcribed and signed its oral decision. “While we do not condone this deviation from the rules of practice, we may disregard certain procedural irregularities and treat the case as the parties have treated and presented it. We do so here.” Askinazi v. Askinazi, 34 Conn. App. 328, 333 n.4, 641 A.2d 413 (1994); see also Lambrakos v. Car son, 174 Conn. 482, 485, 391 A.2d 142 (1978); State v. Beauton, 170 Conn. 234, 237, 365 A.2d 1105 (1976). Lockwood moved for an articulation pursuant to Practice Book § 4051. The trial court granted the motion in part and denied it in part. In its ruling, the trial court indicated that “it fully and clearly stated the reasons” for its decision when it decided the motions for directed verdict at trial. By so indicating and then signing the order on the motion for articulation, the trial court openly adopted the reasoning contained in the transcript as its findings of fact and conclusions of law. We find this to be sufficient to satisfy the purposes of Practice Book § 4059.

As a second preliminary matter, we must decide whether Lockwood has satisfied his responsibility by providing us with an adequate record with which to review this case. Practice Book § 4061; see also Barnes v. Barnes, 190 Conn. 491, 493, 460 A.2d 1302 (1983). We must determine whether the articulation, which incorporated the reasoning from the transcript, is adequate for review. If the trial court has not sufficiently articulated the factual or legal basis of its decision, the appellant may move for articulation pursuant to Practice Book § 4051, in order to ensure an adequate record for review. Lockwood did so in this case.

The trial court granted in part and denied in part the motion for articulation, essentially relying on the reasons it gave at trial for directing the verdict. The trial court’s reasoning, included in the appendix of Lockwood’s brief, is sufficient to provide an adequate record for review.

II

Lockwood first claims that the trial court improperly directed a verdict for the defendant Professional Ambulance. Lockwood argues that he was discharged in violation of public policy, where there was sufficient evidence from which the jury could have concluded that he was discharged in violation of General Statutes § 31-73 (b) and where Professional Ambulance demanded money from him despite a court decision that he did not owe the money. We agree.

A

Directed verdicts are disfavored by the courts. A directed verdict is proper only “if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed ... or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Citation omitted.) Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986). In deciding a motion for a directed verdict, a court must view the evidence in the light most favorable to the nonmoving party. Id., 388.

At the close of evidence, sufficient facts existed to allow a jury to find that Lockwood was discharged from his employment with Professional Ambulance because he refused to pay the $1000. A finding of these facts by the jury would support the conclusion that Professional Ambulance terminated Lockwood in violation of public policy as set forth in § 31-73.

Section 31-73 (b) provides that “[n]o employer . . . acting by himself or by his agent, shall, directly or indirectly, demand, request, receive or exact any . . . sum of money or contribution from any person . . . upon the representation or the understanding that such . . . sum of money ... is necessary to secure employment or continue in employment....” The language of the statute is clear and unambiguous. It prohibits an employer from demanding any sum of money from an individual as a requirement of employment or as a requirement for continued employment.

The trial court relied on two Attorney General Opinions in limiting the application of § 31-73 to preventing “a . . . kick-back . . . system from being used to exact a payment from an employee to an employer in return for that employee’s hiring.” The trial court’s interpretation of § 31-73 is not in accord with the clear language of the statute and therefore runs afoul of the well recognized rules of statutory construction adopted by our Supreme Court. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 186-87, 592 A.2d 912 (1991).

Ordinarily, the construction of a statute by the agency charged with its enforcement is entitled to considerable deference. “However, ‘the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.’ ” Connecticut Light & Power Co. v. Dept. of Public Utility Council, 210 Conn. 349, 357, 554 A.2d 1089 (1989), quoting Schlumberger Technology Corp. v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987); accord Quinnipiac Council, Boy Scouts of America, Inc. v. Commission on Human Rights & Opportunities, 204 Conn. 287, 295, 528 A.2d 352 (1987). Section 31-73 has never been subject to judicial interpretation. Where administrative interpretations lead to a result that is contrary to the language and purpose of the statute, it is within the authority of this court to construe the statute in a manner consistent with its language and purpose.

Our interpretation of § 31-73 is governed by “well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature.” State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). “To determine the intent of the legislature, we first consider whether the statutory language ‘yields a plain and unambiguous resolution.’ ... ‘If the words are clear and unambiguous, “it is assumed that [they] express the intention of the legislature” . . . and we need inquire no further. . . .’ ” (Citations omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). The words of § 31-73 are clear and unambiguous. An employer violates the statute whenever it demands any sum of money from an individual to secure employment or continue employment. We conclude that Professional Ambulance violated § 31-73 when it demanded that Lockwood pay the $1000 before being allowed to return to work.

B

We now consider the issue of whether § 31-73 contains an important public policy that the defendants violated. Connecticut law provides that an employment contract is presumed to be terminable at will. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 563-69, 479 A.2d 781 (1984). An exception to the employment-at-will doctrine was recognized, however, in a cause of action for employees who are discharged in violation of the mandates of public policy. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980). In Sheets, our Supreme Court made clear that the statutes of the state are an important source of public policy. “We need not decide whether violation of a state statute is invariably a prerequisite to the conclusion that a challenged discharge violates public policy. Certainly when there is a relevant state statute we should not ignore the statement of public policy that it represents.” Id.

The court elaborated on the form of the public policy exception when it concluded, “[g]iven the inherent vagueness of the concept of public policy, it is often difficult to define precisely the contours of the exception. Nevertheless, the plaintiff has not alleged that his discharge violated any explicit statutory or constitutional provision.” Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986); see also Girgenti v. Cali-Con, Inc., 15 Conn. App. 130, 136-38, 544 A.2d 655 (1988); Schmidt v. Yardney Electric Corp., 4 Conn. App. 69, 492 A.2d 512 (1985).

Section 31-73 represents a clear public policy prohibiting an employer from taking advantage of the employment relationship by using the acquisition or continuation of employment as a mechanism for exacting sums of money from an employee. The statute is written in broad and sweeping language to prohibit such actions by an employer. The discharge of an employee for, as here, refusing to refund a portion of his wages violates public policy as expressed in § 31-73.

C

We now examine the effect of the small claims judgment, which determined that Lockwood was not liable to Professional Ambulance for the $1000. We conclude that the trial court was precluded from reconsidering that issue, which had been fully adjudicated in a prior judicial proceeding, because the judgment of the Small Claims Court was a final judgment to which the doctrine of collateral estoppel should have applied.

The doctrine of collateral estoppel “prevents a party from relitigating an issue that has been determined in a prior suit.” Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 402, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989). “For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991). Both conditions are satisfied in this case regarding the issue of the accident and money owed to Professional Ambulance.

The constitution and statutes of the state, as well as the rules of court, clearly provide that such a decision of the Small Claims Court is final. The Connecticut constitution, article fifth, § 1, provides that “[t]he judicial power of the state shall be vested in ... a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish.” General Statutes § 51-15 authorizes the establishment of the Small Claims Session of the Superior Court to hear disputes where the amount in dispute is less than $2000. Practice Book § 581 provides that, absent a motion to open for good cause, “the judgments and decisions rendered in the small claims session are final and conclusive.”

When the Small Claims Court heard and decided the action brought by Professional Ambulance, it exercised its constitutional authority to resolve disputes finally and conclusively. The decision of the Small Claims Court was a final and conclusive determination that the plaintiff did not owe Professional Ambulance $1000 for damage resulting from the accident. General Statutes § 51-15; Practice Book § 581.

The trial court’s discussion of the “many possible reasons why the defendant- did not prevail in the small claims suit” was not pertinent to the issue before it. The trial court’s observations did not go to the finality of the small claims determination, but to the question of whether that determination was correct. Once the decision by the Small Claims Court had been rendered, it was final, and whether it was correct was no longer at issue. There is no question that the issue was actually litigated in the Small Claims Court and that issue was necessarily resolved by that court. In the Small Claims Court, Professional Ambulance brought suit against Lockwood to recover the $1000. In the present case, Lockwood brought a claim against Professional Ambulance for wrongful discharge from employment in violation of § 31-73.

All elements of the doctrine of collateral estoppel have been satisfied in this case. By allowing the defendants to introduce evidence regarding Lockwood’s conduct in the accident and by examining the rationale behind the decision of the Small Claims Court, the trial court was allowing relitigation of an issue barred by the doctrine of collateral estoppel. Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 296-303. Because the trial court failed to adhere to the principles of collateral estoppel, the verdict in favor of Professional Ambulance must be reversed.

Ill

Lockwood next claims that the trial court improperly failed to direct a verdict for him against the defendant Professional Ambulance. He argues that the undisputed evidence established that Professional Ambulance, in violation of § 31-73, conditioned his employment on payment of a sum of money that the Small Claims Court had determined he did not owe. Although we agree that liability was conclusively established on the part of Professional Ambulance, a directed verdict would not be appropriate in this case.

In ruling on the motion for directed verdict, the trial court stated: “I am . . . for purposes of ruling on the defendants’motion . . . accepting as fact that the reason why Mr. Lockwood was terminated was because he refused to repay the $1000 that was demanded of him.” Having accepted this fact, the court went on to deny Lockwood’s motion for directed verdict and to grant Professional Ambulance’s motion for directed verdict based on the court’s conclusion that § 31-73 did not apply to this case. Instead, the trial court should have directed the jury to find for Lockwood on the issue of liability. At trial, the evidence was disputed as to whether Lockwood took a leave of absence or quit his job when he left in late September or early October, 1988. Viewing the evidence either way, Professional Ambulance conditioned Lockwood’s employment on payment of the sum of money that the Small Claims Court had determined he did not owe.

Although the evidence was in dispute as to whether Lockwood quit or took a leave of absence, the evidence was uncontradicted that Kagan told him he would not be allowed to return to work because he refused to pay the money. Viewing all of the evidence and inferences therefrom in favor of the nonmoving party, it is clear that Professional Ambulance refused to hire Lockwood because he declined to pay money he did not owe. The refusal to hire an employee for that reason would violate public policy as expressed in § 31-73.

Section 31-73 applies to both the hiring and firing processes involving employment. The statute provides that demanding a refund of wages is illegal if the refund “is necessary to secure employment or continue in employment.” (Emphasis added.) General Statutes § 31-73 (b). A purpose of the statute is to prohibit demands for refunds of wages in the hiring process. The public policy embodied in § 31-73 applies to hiring. It follows that the actions taken by Professional Ambulance with regard to Lockwood violated the public policy of § 31-73. The evidence presented on the issue of liability was conclusive. All that remained was the question of damages. The trial court should have directed the jury to find for Lockwood as to liability, and proceed to determine damages.

IV

Lockwood next claims that the trial court improperly directed a verdict in favor of the defendant Professional Wheelchair. He argues that there was evidence from which the jury could have concluded that he was discharged in violation of § 31-73 for refusing to pay a sum of money that he did not owe. We agree.

Professional Wheelchair fired Lockwood for refusing to pay the $1000 to Professional Ambulance. It was uncertain at the time of Lockwood’s termination by Professional Wheelchair whether Lockwood in fact owed the money to Professional Ambulance because the Small Claims Court decision was still pending. Professional Wheelchair, however, violated § 31-73 when it terminated Lockwood for not paying the $1000 because the money was not owed to Professional Wheelchair.

The evidence before the trial court included that Professional Wheelchair and Professional Ambulance are separate and distinct entities. The trial court in fact found that “[t]he two defendants in this case are Professional Wheelchair Transportation, Inc., and Professional Ambulance Service, Inc. Harvey Kagan was the chief executive officer of both defendants, a 100 percent owner of Professional Ambulance and 50 percent owner of Professional Wheelchair.” The trial court also found that the reason why Lockwood was terminated was because he refused to pay the $1000 demanded of him. On the basis of these two findings of fact, we conclude that a directed verdict in favor of Professional Wheelchair was inappropriate.

Because Professional Wheelchair is a separate entity and never claimed to be owed any money by Lockwood at the time of his termination, it was not entitled to demand payment of the claimed debt to Professional Ambulance in exchange for continued employment. Professional Wheelchair unmistakably violated the public policy of § 31-73 when it demanded the sum allegedly owed to another corporation in exchange for continued employment. This situation falls within the exception to the employment-at-will doctrine controlling in this state. Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. App. 480. The directed verdict in favor of Professional Wheelchair must be reversed.

V

Lockwood claims finally that the trial court improperly permitted the introduction of evidence by the defendants with respect to an issue that had already been decided against the defendants. Lockwood argues that the doctrine of collateral estoppel applied to the introduction of evidence involving the accident and money demanded by Professional Ambulance. We agree, and rely on the discussion in part II C of this opinion.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The relevant portion of the policy manual states: “Any employee who is involved in a chargeable accident may be required to reimburse the company for the damage resulting to company owned vehicles. This decision will be made by the General Manager and the cost estimate will be given to the employee.”

       The evidence as to the work interruption is disputed. Lockwood claims that he requested a change in his scheduled hours so that he could attend welding classes. When the request was denied, he took a leave of absence. Professional Ambulance argues that rather than requesting a leave, Lockwood quit his job.

       When Lockwood left Professional Ambulance, he obtained employment with Professional Wheelchair Transportation, Inc., another company located in the same facility as Professional Ambulance. The trial court found that Harvey Kagan is the principal owner and chief executive officer of both companies, but the companies have separate management and supervision.
      Lockwood was hired without the knowledge of Kagan. His job was to drive a wheelchair van during hours that did not conflict with his schooling. About two weeks after he was hired, Lockwood was told that Kagan had learned that he was driving a wheelchair van. Lockwood was told that Kagan had given orders that Lockwood be fired from Professional Wheelchair for refusing to pay Professional Ambulance the $1000 for damage to the ambulance.

       Practice Book § 4059 (a) provides in pertinent part: “The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office.”

       General Statutes § 31-73 provides: “refund of wages for furnishing employment, (a) When used in this section, ‘refund of wages’ means: (1) The return by an employee to his employer or to any agent of his employer of any sum of money actually paid or owed to the employee in return for services performed or (2) payment by the employer or his agent to an employee of wages at a rate less than that agreed to by the employee or by any authorized person or organization legally acting on his behalf.
      “(b) No employer, contractor, subcontractor, foreman, superintendent or supervisor of labor, acting by himself or by his agent, shall, directly or indirectly, demand, request, receive or exact any refund of wages, fee, sum of money or contribution from any person, or deduct any part of the wages agreed to be paid, upon the representation or the understanding that such refund of wages, fee, sum of money, contribution or deduction is necessary to secure employment or continue in employment. No such person shall require, request or demand that any person agree to make payment of any refund of wages, fee, contribution or deduction from wages in order to obtain employment or continue in employment. A payment to any person of a smaller amount of wages than the wage set forth in any written wage agreement or the repayment of any part of any wages received, if such repayment is not made in the payment of a debt evidenced by an instrument in writing, shall be prima facie evidence of a violation of this section.
      “(c) The provisions of this section shall not apply to any deductions from wages made in accordance with the provisions of any law, or of any rule or regulation made by any governmental agency.
      “(d) Any person who violates any provision of this section shall be fined not more than one hundred dollars or imprisoned not more than thirty days for the first offense, and, for each subsequent offense, shall be fined not more than five hundred dollars or imprisoned not more than six months or both.”

       The trial court noted the possibility that evidence might have been excluded or that witnesses might have been unavailable.


author: Spear, J.

text:
    Sharon Townsley v. Thomas W. Townsley
    (13147)
    Landau, Heiman and Spear, Js.
    Argued December 12, 1994
    decision released February 28, 1995

      Thomas W. Townsley, pro se, the appellant (defendant).

      Sheridan Moore, for the appellee (plaintiff).
   Spear, J.

The defendant appeals from the judgment of the trial court granting the plaintiffs motion to open a judgment of dissolution. The dispositive issue on appeal is whether the trial court improperly opened the dissolution judgment as to all issues when the plaintiffs motion to open was for a limited discrete purpose. We reverse the judgment of the trial court.

The underlying facts are undisputed. In 1989, the plaintiff, Sharon Townsley, instituted a dissolution action against the defendant, Thomas Townsley. On February 8, 1990, a judgment of dissolution was rendered by the court. The judgment incorporated a stipulation that was submitted by the parties concerning issues of custody, alimony and division of property.

The stipulation provided for joint custody of the parties’ only child, required the defendant to pay $75 per week child support and ordered the plaintiff to maintain medical insurance for the child. All unreimbursed medical expenses incurred on behalf of the child were to be borne equally by the parties. The defendant was obligated to maintain a life insurance policy for the benefit of the minor child in the amount of $25,000 until the child reached age eighteen. The agreement further provided that the parties would divide their personal property. The defendant was to sign over all of his interest in TASK Enterprises, Inc., doing business as The Whole Donut. In consideration for this transfer, the plaintiff was to pay the defendant $60,000 in four installments with the first installment due on or before May, 1990. Finally, the agreement provided that neither party was to receive either lump sum or periodic alimony.

On April 30, 1990, the plaintiff filed a “motion to reopen and modify judgment.” In this motion, the plaintiff asked that the judgment be opened and modified for the limited purpose of either placing her first installment payment into an escrow account or suspending her obligation to pay the first installment of $30,000 until such time as the defendant returned to her certain personal property pursuant to the agreement. The motion did not ask the court to open the judgment as to all issues, nor did it allege fraud. After a hearing on October 1,1990, the court opened the judgment as to all issues except the dissolution itself. At that time, the court ordered a new hearing on all issues regarding the terms of the dissolution.

On September 5, 1991, the defendant moved to reopen the October 1,1990 judgment alleging that the judgment was procured by the plaintiffs fraud and misrepresentation. On January 21,1992, the court denied this motion. A plenary hearing concerning the parties’ financial assets was thereafter conducted, and a supplemental judgment was rendered on December 6, 1993. This appeal followed. The defendant claims that the trial court improperly opened the judgment as to all issues in response to the plaintiff’s motion. We agree.

The plaintiff’s motion to “reopen” asked the trial court to place the first installment of $30,000 in escrow or to suspend the plaintiffs obligation to make the first payment until such time as the defendant returned certain personal property pursuant to the agreement. At the hearing on October 1,1990, without notice to the parties, the court sua sponte opened the judgment as to all issues except the dissolution and vacated all orders with respect to the business known as The Whole Donut.

Our Supreme Court and this court have held that a court cannot on its own initiative decide a motion that was not presented by the parties. See Connolly v. Connolly, 191 Conn. 468, 464 A.2d 837 (1983); Costello v. Costello, 186 Conn. 773, 443 A.2d 1282 (1982); Booth v. Flanagan, 19 Conn App. 413, 562 A.2d 592 (1989). “Our rules of practice require that every motion directed toward pleading or procedure, unless relating to procedure during the course of a trial, be in writing. . . . The purpose of requiring written motions is not only the orderly administration of justice . . . but the fundamental requirement of due process of law.” (Citations omitted.) Connolly v. Connolly, supra, 475; see Practice Book § 196.

The motion before the court was to open the judgment for the specific purpose of escrowing or delaying the plaintiff’s first installment payment. The motion sought nothing else. There were no allegations of fraud or misrepresentation to constitute a basis for opening a judgment. See Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983). This case is analogous to the situations presented in both Connolly and Costello in which the Supreme Court held that the trial court abused its discretion by acting sua sponte. In Connolly, our Supreme Court held that when the court is presented with a motion to increase alimony, it cannot sua sponte terminate alimony because a party would have insufficient notice of the termination issue. In Costello, the Supreme Court held that “when a court has approved the provisions of a dissolution decree agreed upon by the parties, the court cannot modify or augment those provisions without following the requirements of due process.” Costello v. Costello, supra, 186 Conn 777.

We conclude that under the circumstances of this case the defendant was not afforded due process because he was not notified that the court was considering opening the judgment as to all issues, nor was he given a reasonable opportunity to be heard “at a meaningful time and in a meaningful manner.” (Internal quotation marks omitted.) Bartley v. Bartley, 27 Conn. App. 195, 197, 604 A.2d 1343 (1992).

By opening the judgment as to all issues, the trial court abused its discretion.

The judgment is reversed and the case is remanded with direction to reinstate the original judgment and for further proceedings on the plaintiffs motion to open.

In this opinion the other judges concurred.

       The defendant is appealing from the trial court’s granting of the motion to open the judgment of dissolution rendered in October, 1990. “Although an order granting such a motion is not ordinarily a final judgment within the terms of General Statutes § 52-263, it is appealable if the appeal challenges the power of court to act to set aside the judgment.” Sanchez v. Prestía, 29 Conn. App. 157, 159 n.3, 612 A.2d 824, cert. denied, 224 Conn. 913, 617 A.2d 167 (1992). The defendant here is challenging the power of the court to open the judgment. A review of the file and the plaintiff’s brief indicates that no objection was raised with regard to the timeliness of this appeal. We conclude, therefore, that the time limitations have been waived and address the issues raised by the defendant. See Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 762-63, 628 A.2d 1303 (1993).

       Our disposition of this issue eliminates the need to address the other claims raised by the defendant.

       After a canvass of both parties at the February 8, 1990 hearing, the trial court approved the stipulation and stated that “the financial agreement of the parties with respect to distribution of marital assets is ratified by this court and it becomes an order of this court and may be incorporated [in] the judgment.”

       The four installments were to be paid as follows: $30,000 on or before May, 1990, $7500 on or before May, 1991, $7500 on or before May, 1992, and $15,000 by December 14, 1993.

       Our search of the record, the trial court file and the transcripts provided reveals nothing that would have supported the trial court's action in opening the judgment for all purposes except the dissolution.