author: O’Connell, J.

text:
    John R. DeRosa et al. v. Elizabeth A. DeRosa
    (8233)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued January 30
    decision released June 19, 1990

      Richard H. Lynch, for the appellant (defendant).

      Emily M. Resnik, with whom, on the brief, was John J. Resnik, for the appellees (plaintiffs).
   O’Connell, J.

The defendant appeals from a judgment of partition by sale of property located at 530 Ferry Avenue in Orange, which she owns as a tenant in common with the plaintiffs. The defendant claims (1) that the trial court should have considered the parties’ cotenancy in other property, located at 210 Boston Post Road in Orange, and (2) that the court lacked jurisdiction in the matter because the administrator of the deceased’s estate was not a party to the action. We affirm the judgment of the trial court.

The parcel that is the subject of this appeal was purchased in 1954 by Salvatrice DeRosa, the first wife of Luke DeRosa. Upon her death intestate in 1962, a one-third interest passed to Luke, and the remaining two-thirds was divided equally among their three children. Luke married the defendant in 1962 and died intestate on March 7,1987, survived by the same three children and the defendant. As a result of Luke’s death, each of the plaintiffs owned an undivided five-eighteenths interest and the defendant owned an undivided three-eighteenths interest. The children brought this partition action and, because it was obviously impossible physically to divide, i.e., partition in kind, the single-family house and lot, the court ordered partition by sale. The court did so, believing that it did not have the power to consider any property other than that for which the plaintiffs sought partition by sale.

The defendant makes no claim that the Ferry Avenue property can be partitioned in kind. Instead, she contends that before ordering the sale of the property, the court should have taken into consideration that the parties are also cotenants of the property at 210 Boston Post Road. The cotenancy in the Boston Post Road property also resulted from Luke DeRosa’s death. Upon his death, his fee descended, one-half to the defendant and one-sixth to each of the plaintiffs. The defendant contends that the value of her interest in the Boston Post Road property exceeds the value of the plaintiffs’ interest in the Ferry Avenue property and that, if this fact had been taken into consideration, it would have allowed the court to order partition in kind of both properties instead of partition by sale of the Ferry Avenue property.

She points out that the Ferry Avenue property was her home and that as long as Luke lived, the plaintiffs never questioned her right to live there. During the course of the marriage, improvements were made to the house and a mortgage was paid. She complains that the effect of this sale will be to remove her from the home that she has known for more than twenty years, and that this would be inequitable. She further argues that since partition is an equitable action, every effort should be made to keep her in her Ferry Avenue home, and this result can be accomplished by bringing the Boston Post Road property into this action.

Moreover, the defendant argues that partition in kind is favored and that the burden is on the party seeking partition by sale to demonstrate that such sale would better promote the owners’ interest. To support this position the defendant relies on Delfino v. Vealencis, 181 Conn. 533, 436 A.2d 27 (1980); Coxe v. Coxe, 2 Conn. App. 543, 481 A.2d 86 (1984), and Filipetti v. Filipetti, 2 Conn. App. 456, 479 A.2d 1229, cert. denied, 194 Conn. 804, 482 A2d 709 (1984). These cases are inapposite. None of them involved a fact situation like the present case in which one property was before the court and a second was not. The Boston Post Road property was never part of this case, and, therefore, the trial court did not err in refusing to consider it. In short, this was an action to partition the Ferry Avenue property, and the trial court was correct in holding that its authority to act was limited to acting on that parcel.

In her second claim of error, the defendant argues that the trial court lacked jurisdiction because the administrator of Luke’s estate was not a party to the action. This is not an issue of jurisdiction but is, rather, a question of nonjoinder of a party. General Statutes § 52-108 and Practice Book § 100 both explicitly provide that nonjoinder of a party does not defeat an action. The exclusive remedy for nonjoinder is a motion to strike. Practice Book § 198; George v. St. Ann’s Church, 182 Conn. 322, 325, 438 A.2d 97 (1980). The defendant did not file a motion to strike and may not raise the issue of nonjoinder for the first time on appeal. We will not review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The 210 Boston Post Road property was used by Luke DeRosa in his plumbing business.

       The pertinent part of General Statutes § 52-108 provides: “An action shall not be defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and parties misjoined may be dropped, by order of the court, at any stage of the action, as the court deems the interests of justice require.”
      Practice Book § 100 provides in pertinent part:“[N]o action shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added and summoned in, and parties misjoined may be dropped, by order of the court, at any stage of the cause, as it deems the interests of justice require.”

       Practice Book § 198 provides: “The exclusive remedy for misjoinder of parties is by motion to strike. As set forth in Sec. 152, the exclusive remedy for nonjoinder of parties is by motion to strike.”
      Practice Book § 152 provides in pertinent part: “Whenever any party wishes to contest . . . the legal sufficiency of any such complaint, counterclaim or cross-complaint, or any count thereof, because of the absence of any necessary party . . . that party may do so by filing a motion to strike the contested pleading or part thereof.
      “A motion to strike on the ground of the nonjoinder of a necessary party must give the name and residence of the missing party or such information as the moving party has as to his identity and residence and must state his interest in the cause of action.”


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Willie Carter
    (6866)
    Dupont, C. J., Daly and Norcott, Js.
    Argued April 4
    decision released June 26, 1990

      Sue L. Wise, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Norcott, J.

After a jury trial, the defendant appeals from his judgment of conviction of illegal possession of a narcotic substance in violation of General Statutes § 21a-279. The defendant claims that the trial court should have considered his motion to suppress based upon its ruling that he lacked standing to assert a fourth amendment challenge to the search of the apartment from which the evidence was seized. We reverse the trial court’s judgment.

After the defendant filed a motion to suppress, the state argued that the defendant lacked standing to challenge the search of Helen Boykin’s .apartment. At the suppression hearing, the following evidence was adduced. On April 29, 1987, New Haven police executed a search warrant at the second floor apartment of 191-193 Davenport Avenue. The police knocked on the door and identified themselves. After receiving no response, they forcibly entered the apartment.

From the living room, one of the officers saw the defendant and the female tenant of the apartment, Boykin, in the bedroom. They were sitting on the bed together, partially clothed. The officers secured the living room and then moved into the bedroom, where one of the officers observed the defendant throw a white, rock-like substance into the bed sheets. Once the entire apartment was secured, the officers retrieved the substance, which tested positive for cocaine.

According to the defendant, he had met Boykin two to three months before the search. They began dating at that time and became involved in an intimate relationship. The defendant maintained his primary residence with his mother at the family home, but he spent two to three nights a week with Boykin at her apartment.

The defendant did not have a key to Boykin’s apartment. In order to gain entry, he would knock and identify himself, and someone would let him in. He did not have access to the apartment if Boykin was not at home. If nobody was at home when he arrived, he would wait for a short time, and if someone did not return, he would leave.

The defendant claimed that he provided money to Boykin to help pay the rent and other household expenses, but he also testified that the money was “borrowed.” The defendant kept personal belongings in the apartment, but he also told the police executing the warrant that he was a “social guest.”

On the day of the search, the defendant arrived at the apartment in the early morning hours, approximately 7 a.m. He had last been at the apartment several days earlier and had not been back because he and Boykin had quarrelled. When he arrived, he knocked and identified himself, and the babysitter let him in and told him that Boykin was asleep in her bedroom.

The defendant entered the bedroom, undressed, and got into bed with Boykin. When the defendant and Boykin awoke, they talked, made up, and stayed in bed for most of the day. At about 5 p.m. that afternoon, the police entered to execute their warrant.

On the basis of this evidence, the trial court found the following facts: (1) the defendant did not rent the premises; (2) the defendant did not have or use a key to enter the apartment, but was admitted by the babysitter; (3) his visits were sparse and limited in time; (4) his relationship with Boykin began two months before the search; (5) Boykin and the defendant were estranged before the day of the search; (6) the defendant’s primary residence was with his mother; (7) there was no door to the bedroom where the drugs were seized; (8) he exercised no apparent control over the premises; (9) the defendant was not named in the warrant; and (10) he was never seen entering or exiting the building during surveillances or pass-bys. The trial court also found that the defendant’s testimony was not credible on certain key points. On the basis of these findings, the trial court concluded that the defendant did not have a reasonable expectation of privacy in Boykin’s apartment.

“ ‘A person is entitled to fourth amendment protection anywhere he resides where he has a reasonable expectation of privacy. ... A person 'who resides at a private residence with permission of the [lessee] as a guest or invitee may demonstrate an expectation of privacy in the premises legally sufficient to support a challenge to a police search.’ . . .” (Citations omitted.) State v. Reddick, 207 Conn. 323, 329-30, 541 A.2d 1209 (1988) .

“The defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing. State v. McLucas, 172 Conn. 542, 546, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977). Critical to this standing determination is the defendant’s showing that he possessed a legitimate expectation of privacy in the premises to be searched . . . .” State v. Callari, 194 Conn. 18, 23, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985); see also State v. Harris, 10 Conn. App. 217, 224, 522 A.2d 323 (1987); State v. Cardona, 6 Conn. App. 124, 133, 504 A.2d 1061 (1986). “Whether a reasonable expectation of privacy exists is a determination made on a case-by-case basis. . . . That determination entails a two-part inquiry: first, whether the individual has exhibited an actual subjective expectation of privacy, and second, whether that expectation is one society recognizes as reasonable.” (Citations omitted.) State v. Reddick, supra, 331; State v. Kennedy, 20 Conn. App. 354, 359, 567 A.2d 841 (1989) . Ownership is not a prerequisite to fourth amendment protections; State v. Daay, 5 Conn. App. 496, 499, 500 A.2d 248 (1985); but the defendant must show a reasonable expectation of privacy. Id.

In reviewing this claim, this court must take the facts found by the trial court unless those facts are clearly erroneous. State v. Perry, 195 Conn. 505, 516, 488 A.2d 1256 (1985); State v. Janice, 20 Conn. App. 212, 216, 565 A.2d 553 (1989); State v. Marsala, 19 Conn. App. 478, 481, 563 A.2d 730, cert. granted, 213 Conn. 805, 567 A.2d 836 (1989). “This court cannot retry the facts or reconsider the credibility of witnesses.” State v. Janice, supra; State v. Perry, supra. We conclude that the trial court could have reasonably found the facts as it did. We further conclude that the trial court incorrectly concluded that the defendant did not have a reasonable expectation of privacy in Boykin’s apartment.

The defendant was clearly more than a transient houseguest, and he was present in Boykin’s apartment with her permission at the time of the police entry. That status alone is enough to establish that he had an expectation of privacy in the apartment that society is prepared to recognize as reasonable. See Minnesota v. Olson, 495 U.S. , 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990).

In Minnesota v. Olson, supra, the United States Supreme Court recently held that the defendant had standing to challenge the search of the apartment where he had spent the night, although he did not live there. The court held: “We need go no further than to conclude, as we do, that Olson’s status as an overnight guest is alone enough to show that he had an expectation of privacy in the home'that society is prepared to recognize as reasonable.” Id., 1688.

We note, however, that before this United States Supreme Court decision in Minnesota v. Olson, supra, our case law held that a transient social guest did not have a reasonable expectation of privacy in the place where he was a guest solely by virtue of his status as a guest. See State v. Callari, supra, 23. We required that the defendant produce some additional evidence demonstrating that he had a reasonable expectation of privacy. See State v. Cardona, supra.

In Cardona, the defendant was not only related to the owner of the premises searched, but he also stayed there for extended periods of time, sometimes as long as two to three months. The owner also testified that “her door was always open to the defendant and that her home was his home”; id.; and he also contributed to the household.

We further note that the trial court did not have the benefit of Olson, and it, therefore, correctly applied the law as it existed in Connecticut at the time of its decision. Because, however, the Olson decision clearly states that a houseguest has standing to challenge a search under the fourth amendment, and, hence, affords more substantive rights than the state constitution, we must afford that protection to the defendant.

That the defendant in this case was admitted only when Boykin was home and that he did not possess a key are not determinative. Id., 1689. “[S]ociety recognizes that a houseguest has a legitimate expectation of privacy in his host’s home .... That the guest has a host who has ultimate control of the [residence] is not inconsistent with the guest having a legitimate expectation of privacy.” Id.

Because the defendant had a reasonable expectation of privacy in Boykin’s apartment, he had a right to claim the protection of the fourth amendment and to challenge the search. Accordingly, we conclude that the trial court incorrectly found as a matter of law that the defendant lacked standing and failed to consider his claim that the warrant affidavit lacked probable cause. Because the trial court failed to reach the fact bound issue of probable cause, we cannot properly address it.

The judgment is reversed and the case is remanded with direction to hold a hearing on the defendant’s motion to suppress.

In this opinion the other judges concurred.

       The defendant testified several times that he did not possess a key. He also testified, however, on cross-examination, that Helen Boykin had given him a key, but he left it at his home and never used it. He stated that he, therefore, did not have a key.

       The defendant contends, in a footnote in his brief, that his rights under article first, § 7, of the Connecticut constitution are broader and offer more protection than the United States constitution. He cites State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), and several other cases to support this proposition. He has failed, however, to provide this court with a separate analysis to demonstrate how standing should be treated any differently under Connecticut law. We, therefore, will not address this claim separately. State v. McNellis, 15 Conn. App. 416, 420 n.2, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).


text:
    Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut
    (8482)
    Spallone, Norcott and Lavery, Js.
    Argued April 20
    decision released June 26, 1990

      Stephen Sakonchick II, for the appellant (plaintiff).

      William H. Champlin III, with whom were Donald Moffat and, on the brief, Kristine D. Ragaglia, for the appellee (defendant).
   Norcott, J.

The plaintiff appeals from the trial court’s denial of its request for injunctive relief and damages against the defendant for overburdening the plaintiff’s right-of-way over the defendant’s property. The plaintiff claims that the trial court failed to recognize that the plaintiff owns an unconditional right-of-way over the defendant’s property with which the defendant is interfering.

The following facts are relevant to this appeal. In 1968, the plaintiff’s predecessor, Regional Properties, Inc. (Regional), owned a parcel of real property known as 2944 Main Street in Glastonbury. On September 11 of that same year, Regional conveyed to the defendant that portion of the parcel fronting on Main Street, reserving a right-of-way over the property conveyed for the benefit of the remaining land in the parcel.

On August 1, 1974, Regional and the defendant entered into a purchase and sale agreement that provided that Regional convey to the defendant an additional portion of the property directly behind the Main Street frontage and that the parties would enter into a supplemental agreement of the same date. The supplemental agreement, which was filed in the Glastonbury land records, provided for the relocation of the right-of-way, for the conditions precedent to construction of a permanent roadway over the right-of-way, and for the construction plans for the defendant’s parking lot.

In accordance with these agreements, the additional land was conveyed by warranty deed dated November 15, 1974, and the relocated right-of-way was granted to Regional, its successors, grantees and assignees in a right-of-way agreement dated November 6, 1974. All documents were filed in the Glastonbury land records.

Thereafter, the defendant did not construct its parking area in accordance with the plan that it had provided as part of the supplemental agreement. The parking area that the defendant did construct encroaches on the right-of-way by allowing parking and other obstacles onto it, by blocking vehicular traffic and by limiting the direction of travel to one-way.

The plaintiff, successor in interest to Regional, sought a permanent injunction restraining the defendant from interfering with the right-of-way, compelling the defendant to remove parking spaces and obstacles encroaching on and blocking the right-of-way, and to remove the restriction to one way traffic. The plaintiff also sought compensatory damages.

The trial court concluded, based on its interpretation of all of the documents when read together, that the plaintiff had no present interest in the right-of-way and that such a right could be created only if the certain conditions described in the supplemental agreement were met. On the basis of these conclusions, the trial court denied the plaintiffs request for relief and rendered judgment for the defendant. From this ruling, the plaintiff appeals.

The plaintiff claims that the trial court based its ruling on a misreading of the agreements and incorrectly failed to find that it had a present right to the right-of-way. We agree.

“In considering the expressed intent of a contract evidenced ... by multiple writings, all of the writings should be considered and an endeavor made to ascertain the expressed intent of the contract as a whole.” Schubert v. Ivey, 158 Conn. 583, 587, 264 A.2d 562 (1969). “ ‘ “The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.” . . .’” (Citations omitted.) Id., 589; see also Marion Road Assn. v. Harlow, 1 Conn. App. 329, 332, 472 A.2d 785 (1984); compare American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 75, 574 A.2d 796 (1990) (because the court concluded the deed clearly expressed an intention to convey a fee simple interest, reference to surrounding circumstances was unnecessary). “A reservation will be interpreted as creating a permanent easement if, from all the surrounding circumstances, it appears that that was the intention of the parties.” Kelly v. Ivler, 187 Conn. 31, 40, 450 A.2d 817 (1982). In cases involving the construction of deeds not based on the credibility of witnesses, “the reviewing court does not give the customary deference to the trial court’s factual inferences and decides the question of intent as a matter of law.” Marion Road Assn. v. Harlow, supra; Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122 (1989).

In this case, the right-of-way was reserved at the time of the original conveyance. Thereafter, when the plaintiff’s predecessor, Regional, sold an additional strip of land to the defendant, the original right-of-way was expanded so that it extended over the additional piece of land. Section C of the agreement, incorporated into the supplemental conveyance agreement, contains the revocation of the original right-of-way and the agreement for the new right-of-way. That section reads as follows: “1. Friendly and Regional hereby terminate and revoke the right-of-way designation recorded in the Glastonbury Land Records at Book 162, Page 673, it being the intent of the parties to completely nullify and eliminate said designation as it now exists.

“2. Friendly hereby grants and designates a right-of-way over the said Friendly Premises to Regional, its successors, grantees, and assigns for all vehicular and pedestrian purposes to and from the public highway known as Main Street. It is expressly understood that the right-of-way hereby granted by Friendly to Regional shall not be used in connection with the operation, maintenance and/or use upon the Regional Premises of a restaurant of a similar nature to a Friendly Ice Cream Restaurant. ...”

At the time the parties signed the supplemental agreement and right-of-way modification agreement, both parties were anticipating that Regional would begin construction of a motel on the Regional premises shortly after the agreements were finalized. Accordingly, the supplemental agreement, after acknowledging the right-of-way, states that Regional shall construct a roadway over said right-of-way and that Friendly’s shall construct a parking area in accordance with its parking plan, the two obviously not to conflict with each other. The agreement then provides: “Construction of the parking area and roadway as stipulated above shall be completed prior to the completion of construction of the motel contemplated on the ‘Regional Premises,’ and shall commence as soon as practical after ‘Regional’ or its successors or assigns gives written notice and verification to ‘Friendly’ of the commencement of the motel construction.

“Notwithstanding any other provision herein to the contrary, ‘Friendly’ shall at all times prior to the development of the roadway shown on Schedule C affixed to the Agreement, have the right to utilize any of its premises, including that portion to be purchased from ‘Regional’ under the terms of the Agreement, for additional parking . . . .”

The defendant argues that section C 2, which allows the defendant to use “any part of” the premises purchased from Regional for additional parking, “notwithstanding any other provision herein to the contrary,” provides the authority for the defendant to construct parking over the right-of-way regardless of any encroachment thereon. The defendant further claims that this provision, along with the provisions governing construction of the roadway over the right-of-way, creates only a future right in the plaintiff and, until the time that such construction notice is given, the plaintiff has no enforceable right in that land designated as the right-of-way. The trial court ruled in accordance with this argument.

The defendant’s contention, and the trial court’s ruling, that the plaintiff held only a future right to the right-of-way are based on a misreading of the agreements. It is clear from these provisions, when read together, that the intention of both parties was that Regional and its successor would have a present interest in a right-of-way across the defendant’s property, and that a road would be constructed at some time in the future. The contemplation of further construction of the road in no way affects Regional’s right to the right-of-way across the property.

Because it is clear that the plaintiff, as Regional’s successor, had a present interest in the right-of-way, the defendant could not use that portion of the property designated as the right-of-way for any purpose that would deprive the plaintiff of its right to use the right-of-way. Hagist v. Washburn, 16 Conn. App. 83, 546 A.2d 947 (1988). “Even absent a proviso in the deed restricting the grantor to noninterfering uses of the land, the law implies such restrictions.” Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 443, 440 A.2d 935 (1981).

The provisions upon which the defendant relies do not create an absolute right in the defendant to overburden the plaintiff’s right-of-way. Rather, the defendant had a right to use the land constituting the right-of-way in any manner consistent with the plaintiff’s right; see Hagist v. Washburn, supra, 88; “[s]ince such activities would necessarily be temporary, so they could cease upon the plaintiff’s desire to [use its right-of-way]”; id.; and the encroachment would not overburden the plaintiff’s right-of-way.

The plaintiff also claims that the trial court should not have ruled that, as the defendant argues, the plaintiff is not entitled to injunctive relief because it has failed to prove irreparable harm. The trial court predicated its finding that the plaintiff had not shown irreparable harm on the conclusion that the plaintiff has no present interest in the land designated as the right-of-way. Accordingly, our conclusion that the agreements clearly provide the plaintiff with a present right-of-way across the defendant’s property is dispositive of this issue. Because the plaintiff does possess a present right-of-way, his covenant “ ‘may be enforced by injunction without a showing that violation of the covenant will cause harm to the plaintiff, so long as such relief is not inequitable.’ ” Manley v. Pfeiffer, 176 Conn. 540, 544-45, 409 A.2d 1009 (1979); see also Wambeck v. Lovetri, 141 Conn. 558, 564, 107 A.2d 395 (1954). It is well settled that “the owner of an easement is entitled to relief upon a showing that he will be disturbed or obstructed in the exercise of his right.” Leaho v. Leninski, 182 Conn. 611, 615, 438 A.2d 1153 (1981).

In this case, the plaintiff is entitled to the injunctive relief sought, and no inequity would result from that relief. Moreover, to disallow that relief would deprive the plaintiff of its right to use its right-of-way, and that result would be inequitable.

We also agree with the plaintiff that the trial court should have awarded it compensatory damages. Once again, our conclusion that the plaintiff had a present right-of-way over the defendant’s property dictates here. Because there is no dispute that the defendant constructed a parking area and placed other obstacles in the subject area, it is clear that the plaintiff has proven actual interference with its rights. Proof of actual injury as opposed to “technical” injury, warrants an award of damages. See Mackin v. Mackin, 186 Conn. 185, 190, 439 A.2d 1086 (1982); see also Kelly v. Ivler, supra, 46.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment for the plaintiff granting the injunctive relief sought and for further proceedings to determine the amount of damages to be awarded, consistent with this opinion.

In this opinion the other judges concurred.


text:
    Zbigniew S. Rozbicki v. Helen Huybrechts
    (8084)
    Spallone, O’Connell and Foti, Js.

      Argued January 31
    decision released June 26, 1990

      Wesley W. Horton, with whom, were Karen L. Murdoch, law student intern, and, on the brief, Francis J. MacGregor, for the appellant (plaintiff).

      Alfred B. Mencuccini, for the appellee (defendant).
   O’Connell, J.

The dispositive issue in this appeal is whether a party to a civil action has a right to be present during jury selection. We conclude that he has this right and that the trial court should have granted the plaintiff’s motion for a continuance so that he could be present.

The facts are not in dispute. The plaintiff, a practicing attorney, was in Hartford representing a client in the trial of a law suit when the present case, in which he is the plaintiff, was reached for trial in Litchfield. Through his counsel, the plaintiff requested a continuance in the Litchfield case so that he could be present in order to assist in jury voir dire. The court, Dranginis, J., denied his request, and jury selection proceeded without him. When jury selection was completed, the proceedings were suspended until the plaintiff finished the Hartford trial and could be present in Litchfield. The jury returned a defendant’s verdict on the complaint and on the defendant’s counterclaim and awarded the defendant $8020.60 in damages. The plaintiff’s motion to set aside the verdict was denied.

In denying the plaintiff’s request for a continuance, Judge Dranginis recognized that the plaintiff had a right to be present during voir dire but suggested that he had waived that right by proceeding with the Hartford case. The court remarked that the plaintiff was faced with a conflict between his personal interests and his professional obligations to his client and implied that the plaintiff improperly gave his professional obligations priority over his personal affairs. In denying the posttrial motion to set aside the verdict, the trial court, Moraghan, J., did not discuss waiver, but instead questioned whether a party in a civil case had a right to be present during jury selection.

We start our analysis with the observation that the seventh amendment to the United States constitution, which guarantees the right to a jury trial in civil cases involving more than $20, applies only to actions in federal court. Gluck v. Gluck, 181 Conn. 225, 227, 435 A.2d 35 (1980); Colt v. Eves, 12 Conn. 243, 252 (1837). In Connecticut, the right to have issues of fact decided by a jury is rooted in article first, § 19, of the Connecticut constitution. Henauer v. Corsica, 157 Conn. 49, 53, 244 A.2d 611 (1968).

Although Connecticut courts have not addressed the precise question presented here, our Supreme Court has recognized that jury selection is an integral part of the trial process. In Antel v. Poli, 100 Conn. 64, 123 A. 272 (1923), jury selection was in progress and ten jurors were in the jury box when the plaintiff was carried into the courtroom on a stretcher amid continuous exclamations of pain clearly audible to all persons in the courtroom. 257 Rec. & Briefs 20, 44 (1923). The Antel court held that the plaintiff had a right, as a party, to be present at this stage of the trial as long as the trial court took steps to prevent a repetition of such theatrical behavior. Antel v. Poli, supra, 69.

Courts have long recognized that a defendant in a criminal case has a right to be. present during all phases of the trial, including jury selection. Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884); United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968); Boone v. United States, 483 A.2d 1135, 1137 (D.C. 1984); State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987). In criminal prosecutions, it is important that the defendant be present for jury selection because he “has peculiar knowledge about the facts of the alleged incident which brings him before his peers for judgment .... No matter how extensive or involved were prior discussions with his lawyer, what may be irrelevant when heard or seen by his lawyer may tap a memory or association of the defendant’s which in turn may be of use to his defense.” Boone v. United States, supra, 1137-38.

This reasoning applies with equal force to civil cases, and our Supreme Court has used similar language in holding that a party has a right to be present during a deposition. Anderson v. Snyder, 91 Conn. 404, 99 A. 1032 (1917). In an analysis singularly applicable to the question presented here, the Anderson court determined that “[t]he taking of the deposition is a part of the trial. In many cases the cross-examining attorney cannot anticipate, no matter how thorough his preparation, the developments in the examination of a witness. He cannot know all that his client knows. Oftentimes it is essential for the proper presentation of the case to have the client at hand ready to prompt the cross-examiner and to respond to his inquires.” Id., 408. It is equally important that a party be at his attorney’s elbow during examination of prospective jurors.

While our decision is not limited to the facts of this case, the rule we discuss today applies with particular significance to this plaintiff. He is an attorney who has been in active practice in Litchfield county, the area from which the jurors were drawn, for more than twenty years. The nature of his law practice has brought him into adversarial contact with many persons, families and groups in the county in which the case was to be tried. It could be expected that his face would be familiar to prospective jurors who could not identify him by name and vice versa. It was, therefore, important that prospective jurors could look upon the plaintiff and that he could look upon them. His familiarity with the people and the community would have been of inestimable assistance to his counsel in the voir dire process.

Our holding that a party has a right to be present during jury selection in a civil case does not conclude our analysis, however. We must determine whether the plaintiff had waived his right to be present by electing to fulfill his professional obligations in Hartford rather than be present during the voir dire in his own law suit in Litchfield. Notwithstanding that giving preference to professional responsibilities over personal considerations has ethical appeal, this case does not present such a dilemma.

Approximately four weeks before this case was reached for trial in Litchfield, the plaintiff started a trial in Hartford in which he was representing one of the parties. The plaintiff began the Hartford trial on the express order of the administrative judge there. Thus, he was not in any way making an election between the Hartford case and the Litchfield case but was instead simply obeying the order of the Hartford judge. The plaintiff could not abandon the Hartford case midstream to participate in the Litchfield voir dire, and we refuse to interpret the plaintiff’s appropriate behavior as a waiver of his right to be present at jury selection in his own case.

Since our decision on the voir dire issue will require a new trial we do not reach any of the other claims.

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

In this opinion the other judges concurred.

       The plaintiff brought this action for recovery of legal fees and the defendant counterclaimed for damages arising out of the sale of her residence to the plaintiff and bank charges incurred in a related foreclosure action.

       We note that in Antel v. Poli, 100 Conn. 64, 123 A. 272 (1923), the plaintiff was an actress alleging injuries suffered while appearing in a Hartford theatre.


author: Lavery, J.

text:
    Sandra Messina v. John Messina
    (8042)
    Borden, Daly and Lavery, Js.

      Argued February 6
    decision released June 26, 1990

      Prescott W. May, for the appellant (defendant).

      Lee Marlow, for the appellee (plaintiff).
   Lavery, J.

This appeal is a sequel to our recent decision in Messina v. Messina, 18 Conn. App. 815, 559 A.2d 1185 (1989), in which we affirmed the trial court’s judgment holding the defendant in contempt of court. Following our decision in that case, the plaintiff moved the trial court to order the defendant to reimburse her for the expenses she incurred in defending the appeal. After a hearing, the trial court awarded the plaintiff an allowance for attorney’s fees to defend the appeal. The defendant now appeals from that order and claims that the trial court failed to take into consideration the parties’ respective financial situations when it awarded the plaintiff the allowance.

The dispositive issue in this case is whether General Statutes § 46b-62 applied, prior to October 1,1988, to the award of attorney’s fees in appeals from contempt matters arising out of dissolution cases. We find that § 46b-62 did apply and, accordingly, we reverse the trial court’s award of attorney’s fees.

The uncontroverted facts are as follows: The marriage between the plaintiff and the defendant was dissolved on April 11,1986. Subsequent to the dissolution judgment, a civil judgment in an unrelated matter was entered against both parties in the amount of $31,000 for a debt shown on the defendant’s financial affidavit. A judgment lien was filed on the plaintiff’s property, and the plaintiff satisfied the judgment and the associated costs. The plaintiff then filed a contempt motion against the defendant for his failure to indemnify and hold her harmless, as he had been ordered to do under the terms of the judgment of dissolution.

On July 13, 1988, the defendant was found in contempt. He appealed to this court, which, in a per curiam decision, affirmed the trial court. See Messina v. Messina, supra. The plaintiff then filed a motion for an allowance to defend the appeal. The trial court, without examining the parties’ respective financial resources, awarded the plaintiff attorney’s fees in the amount of $4807. The trial court found that General Statutes § 52-256b gave it the power to award attorney’s fees in a contempt situation without examining the respective financial abilities of the parties. The defendant appealed.

Several statutory sources of authority exist under which a trial court may award a party attorney’s fees. These statutes, however, apply in only certain situations and the trial court based its order on the wrong statute.

Section 52-256b (a), the section upon which the trial court relied, authorizes the court to award attorney’s fees to a successful contempt petitioner. This section does not apply, however, in the case of a person found in contempt of an order entered under § 46b-81. General Statutes § 52-256b (b). The trial court’s judgment ordering the defendant to indemnify the plaintiff was an assignment of property authorized by § 46b-81. Beede v. Beede, 186 Conn. 191, 440 A.2d 283 (1982). Because the defendant was found in contempt of an order entered under § 46b-81, the trial court could not award the plaintiff attorney’s fees under § 52-256b (a). General Statutes § 52-256b (b).

The trial court, as it correctly noted, was also foreclosed from relying on General Statutes § 46b-87, which authorizes the court to award successful contempt petitioners attorney’s fees. Although this section authorizes contempt awards specifically against parties found in contempt of orders entered, inter alia, under § 46b-81, the specific provision authorizing the award of attorney’s fees as a contempt award was not made part of the statute until October 1, 1988. The defendant was found in contempt prior to October 1, 1988, and this portion of the statute therefore did not apply to him.

In Krasnow v. Krasnow, 140 Conn. 254, 261-62, 99 A.2d 104 (1953), the court defined the inherent power of the trial court to award counsel fees on an appeal from an order of contempt based on the financial abilities of the parties. The court held that “the fact that there is no statute providing for an allowance in a divorce action is not decisive. The question is whether the power to make an allowance continues after the original decree, regardless of whether that power is inherent in the court, as some of the cases hold, or is granted by statute. As the jurisdiction of the court to modify the decree in matters of alimony and custody is a continuing one, so too, in reason and justice, is its power to make an allowance when these matters are again in issue after the final decree.” Id., 262.

“Whether to allow counsel fees, and if so in what amount, is a matter which, like the fixing of alimony, calls for the exercise of a judicial discretion. Felton v. Felton, 123 Conn. 564, 567, 196 A. 791 [(1938)]; Keezer, Marriage & Divorce (3d Ed.), p. 676.” Krasnow v. Krasnow, supra, 262-63.

This inherent power was later codified in General Statutes § 46b-62. Under this section, 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.” This section has been used to order the payment of attorney’s fees to defend an appeal from a contempt judgment; see Friedlander v. Friedlander, 191 Conn. 81, 87, 463 A.2d 587 (1983); which is precisely the scenario presented by the present case. Thus, § 46b-62 was the proper vehicle for the trial court’s award of attorney’s fees.

We note that the decisive issue before us in the present case concerns the parameters of the trial court’s inherent power to award an allowance to defend an appeal from a contempt judgment in light of General Statutes § 46b-62. We do not need to decide, and we do not address, the question of whether that statute affects the trial court’s inherent power to impose fines and award attorney’s fees to enforce its contempt judgment. This distinction is clearly present in Fried-lander. The Friedlander court held that the trial court has the inherent power to fine one who has been found in contempt and to award counsel fees.

The Friedlander court then went on to hold, however, that the trial court has the inherent power to award an allowance to defend an appeal from a contempt judgment, but that in the exercise of this discretion, the court should “consider the statutory criteria set out in General Statutes §§ 46b-62 and 46b-82 and the respective financial abilities of the parties.” Id., 87. It appears to us, therefore, that Fried-lander stands for the proposition that the trial court’s inherent power to award an allowance to defend an appeal from a contempt judgment is tempered by the statutory considerations in §§ 46b-62 and 46b-82. The allowance in the present case was not a contempt award per se, but an allowance to defend an appeal from a contempt judgment. Thus, the second portion of the Friedlander holding, not the first, controls the present case. See also Mallory v. Mallory, 207 Conn. 48, 55-56, 539 A.2d 995 (1988); Mays v. Mays, 193 Conn. 261, 268-70, 476 A.2d 562 (1984).

The trial court, however, failed to consider the respective financial positions of the parties, as required by § 46b-62, and its award to the plaintiff of an allowance to defend the appeal is therefore improper under that section. Caracansi v. Caracansi, 4 Conn. App. 645, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985).

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

In this opinion the other judges concurred.

       “[General Statutes] Sec. 52-256b. award of attorney’s and officer’s fees IN contempt action, (a) When any person is found in contempt of any order or judgment of the superior court, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.
      “(b) This section shall not apply to the case of any person found in contempt of an order of the superior court entered under sections 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, which is provided for under section 46b-87.”

       General Statutes § 46b-87 provides: “When any person is found in contempt of an order of the superior court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorney’s fee to such person. The costs of commitment of any person imprisoned for contempt of court by reason of failure to comply with such an order shall be paid by the state as in criminal cases.”

       General Statutes § 46b-82 provides: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”