author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. MUHYASIM ABDALAZIZ
    (AC 14625)
    Foil, Lavery and Landau, Js.

      Argued February 20
    officially released July 1, 1997

      Susan M. Hankins, assistant public defender, with whom, on the brief, was John Barton, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Muhyasim Abdalaziz, also known as Alfredo Coto, appeals from the judgment of conviction, following a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant claims that the trial court improperly (1) denied the defendant’s request for instructions on lesser included offenses, (2) denied the defendant’s request to instruct the jury on a theory of “imperfect self-defense,” (3) improperly precluded the defendant from offering evidence of the victim’s prior convictions, and (4) deprived the defendant of his right to due process when it permitted the prosecutor to make prejudicial comments during his closing argument. We agree with the defendant’s claim regarding the necessity for instructions on the lesser included offenses. Accordingly, we reverse the judgment on the assault charge and remand the case for a new trial.

The jury could have reasonably found the following facts. The victim, Michael Juarbe, and the defendant’s wife, Carmen Rodriguez, had a five year relationship that ended in January, 1991. The defendant’s wife had one daughter from this relationship with the victim. The victim had visitation rights with this daughter. In the summer of 1991, the defendant married Rodriguez. The defendant and the victim had several confrontations leading up to April, 1992.

On April 7, 1992, the defendant drove to the victim’s New Haven apartment at approximately 10 p.m. Upon arriving at the victim’s apartment, the defendant rang the doorbell located at the back door of the victim’s premises. When the victim looked out his window, the defendant yelled to him to come out of the house to talk. The victim dressed and went to the front lawn of the apartment where he found the defendant standing on the sidewalk. The victim noticed that the defendant’s car was parked in front of the premises and two men were sitting inside the vehicle. The victim and the defendant began to argue about the victim’s visitation rights with his daughter and about telephone calls that were made by the victim to the defendant’s home. The defendant eventually sat in the front passenger seat of his car. From that location, the defendant pulled a loaded revolver from under the car’s seat and fired approximately five shots at the victim from a distance of six to nine feet. The victim was struck by four of the bullets and sustained serious injuries. After shooting the victim, the defendant and his two companions drove away in the defendant’s car.

I

The defendant first claims that the trial court improperly refused to instruct the jury on the lesser included offenses of assault in the second degree, assault in the second degree with a firearm and assault in the third degree. We agree.

“A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, [179 Conn. 588], we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. . . . [T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Ray, 228 Conn. 147, 154, 635 A.2d 777 (1993). “If we cannot exclude, as a matter of law, the possibility that the defendant is guilty only of the lesser offense, we must conclude that the trial court’s failure to give the requested instruction is improper. Id., 155; State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982).” State v. Huckabee, 41 Conn. App. 565, 568, 677 A.2d 452, cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996).

The defendant claims that, under Whistnant, he was entitled to a lesser included offense charge with respect to five of the lesser degrees of assault. The state concedes that the first prong of Whistnant is met. The state argues, however, that the third and fourth prongs of Whistnant are not satisfied by the facts of this case. We agree with the defendant.

The second prong of Whistnant requires that “it [cannot be] possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser . . . .” State v. Whistnant, supra, 179 Conn. 588. In the present case, the defendant was charged in an information that “with the intent to cause serious physical injury to another person, he caused such injury to such person by means of a deadly weapon.” At trial, the defendant requested a charge on the following lesser included offenses: assault in the second degree in violation of General Statutes (Rev. to 1991) § 53a-60 (a) (2) or (3), assault in the second degree with a firearm in violation of General Statutes § 53a-60a, and assault in the third degree in violation of General Statutes § 53a-61 (a) (3).

The elements of the lesser included offenses on which instructions had been requested were included in the elements of the greater offense charged. The requisite mental states of the requested lesser offenses are subsumed in the mens rea that was stated in the information charging the defendant. The intent to cause “physical injury,” as required by § 53a-60 (a) (2), is clearly included in intent to cause “serious physical injury,” as set forth in the information. The remaining requested lesser offenses all require either a “reckless or negligent” mental state. In State v. Rodriguez, 180 Conn. 382, 407, 429 A.2d 919 (1980), our Supreme Court held “an offense that would be a lesser included offense but for its requirement of a less culpable state of mind than that required for the greater, will be deemed a lesser included offense.”

The injury required by the requested lesser offenses is also subsumed under the “serious physical injury” that is described in the defendant’s information. See General Statutes § 53a-3 (3) and (4). In addition, the defendant’s information states that the serious physical injury was caused by a dangerous weapon, which by statute includes a firearm. See General Statutes §§ 53a-3 (6) and 53a-3 (19). Therefore, the requested lesser offense of assault in the second degree with a firearm, pursuant to § 53a-60a, would be included in the elements of the greater offense that was charged.

In sum, all of the lesser offenses on which instructions were sought met the second prong of Whistnant. Furthermore, there is support in Connecticut law for the determination that several of the requested offenses can be lesser included offenses of assault in the first degree. See State v. Huckabee, supra, 41 Conn. App. 572 (holding that trial court erroneously failed to instruct jury on lesser included offenses of assault in first degree, which included assault in second degree pursuant to § 53a-60 [a] and assault in third degree pursuant to § 53a-61 [a]); State v. Bunker, 27 Conn. App. 322, 329, 606 A.2d 30 (1992) (trial court correctly instructed jury on lesser included offenses of assault in first degree, which included assault in second degree, pursuant to § 53a-60 [a] and assault in third degree pursuant to § 53a-61 [a]).

The third prong of Whistnant is satisfied when “there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, that justifies conviction of the lesser offense . . . .” State v. Whistnant, supra, 179 Conn. 588. In the present case, there was ample evidence adduced at trial justifying the conviction of the defendant of the lesser offenses. There clearly was evidence that the victim sustained serious physical injuries, and these injuries were caused with a deadly weapon, specifically a firearm. Therefore, there was sufficient evidence, concerning the victim’s injury and the weapon used by the defendant, to justify a conviction as to those elements of the lesser requested offenses.

The main differentiating element between first degree assault and the lesser offenses is the mental state that is required for the commission of the crime. Intent is “often the most significant and, at the same time, the most elusive element of the crime charged.” State v. Rodriguez, supra, 180 Conn. 404. At trial, the defendant testified that he fired the gun at the ground between his car and the victim to scare him away, believing that the victim was holding a gun. The defendant also testified that he fired the gun out of the car window while seated, and did not look where he fired. The location of the victim’s wounds also support the defendant’s contention that he fired downward to scare the victim. The victim testified that he was struck in the chest by a bullet as he lay on the ground, and his other wounds were in his leg and abdomen. In addition, there was testimony from police officers that they found bullets in the street that had been flattened as if they had been shot downward at the pavement. The sum of this testimony supports the defendant’s contention that he had fired the shots toward the ground to scare the victim, thereby providing some evidence of a potentially less culpable mental state, including either recklessness or negligence. Therefore, we conclude that the third prong of Whistnant is met.

The fourth prong of Whistnant requires that “proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra, 179 Conn. 588. “This could occur either through the right of cross-examination, the major function of which is to put certain matters in dispute, or through evidence presented as part of the defendant’s case.” (Internal quotation marks omitted.) State v. Fernandez, 5 Conn. App. 40, 47-48, 496 A.2d 533 (1985).

The key differentiating element in the present case is the defendant’s mental state. The state conceded this point in its closing argument, stating that “the other main issue, as far as the state is concerned is, what was [the defendant’s] intent that night? Was he intending to kill [the victim]? Was he intending to cause him serious physical injury?” Furthermore, the defendant specifically disputed the mental state of which he was accused when he testified that he did not intend to kill or to injure the victim seriously, but was acting in self-defense. We conclude, therefore, that the differentiating element between the greater and lesser offenses was sufficiently in dispute to meet the fourth prong of Whistnant.

“On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if ‘we cannot as a matter of law exclude [the] possibility’ that the defendant is guilty only of the lesser offense. State v. Falby, [supra, 187 Conn. 30].” State v. Ray, supra, 228 Conn. 155. Having found that the defendant met all four prongs of Whistnant, we reverse the ruling of the trial court and remand this case for a new trial. While this issue is dispositive, we will nevertheless review the defendant’s remaining claims so that we may presently address any issues that the defendant may raise in a future appeal.

II

The defendant’s second claim is that the trial court improperly refused to instruct the jury concerning a theory of imperfect self-defense. At trial, the defendant requested that the trial court give an instruction concerning imperfect self-defense with respect to assault in the first degree. The defendant contends that there was conflicting evidence on the issue of whether the victim possessed a gun and was accompanied by another. Therefore, the defendant argues that first degree assault could be reduced to assault in the second degree or assault in the second degree with a firearm, if the jury found that the defendant mistakenly believed that he was acting in self-defense, so that the shooting was a result of recklessness. We disagree.

The defense of imperfect self-defense is not recognized in Connecticut. Maryland and California, however, have extensively used this doctrine. The California Supreme Court recently held: “Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.” In re Christian S., 7 Cal. 4th 768, 771, 872 P.2d 574, 30 Cal. Rptr. 2d 33 (1994). In Maryland, the Court of Appeals explained that the doctrine of imperfect self-defense, like that of hot-blooded response to adequate provocation, does not serve to exonerate a defendant “ ‘but mitigates murder to voluntary manslaughter.’ ” State v. Faulkner, 301 Md. 482, 486, 483 A.2d 759 (1984).

While these jurisdictions do recognize the doctrine of imperfect self-defense, their definition of the offense of murder is different from that of Connecticut. California Penal Code § 187 (a) (Deering 1985) provides: “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (Emphasis added.) By contrast, California Penal Code § 192 (Deering 1985) provides: “Manslaughter is the unlawful killing of a human being without malice. ...” (Emphasis added.) “The vice is the element of malice; in its absence the level of guilt must decline. The doctrine of imperfect self-defense and diminished capacity arose from this principle.” In re Christian S., supra, 7 Cal. 4th 773.

In Maryland, the Court of Appeals stated: “ ‘[Imperfect self-defense] operates to negate malice, an element the State must prove to establish murder. As a result, the successful invocation of this doctrine does not completely exonerate the defendant, but mitigates murder to voluntary manslaughter.’ ” Richmond v. State, 330 Md. 223, 227, 623 A.2d 630 (1993). “In the context of murder cases, this Court has said that malice means the presence of the required malevolent state of mind coupled with the absence of legally adequate justification, excuse, or circumstances of mitigation. Ross v. State, 308 Md. 337, 340 n.1, 519 A.2d 735 (1987).” Richmond v. State, supra, 231.

Pursuant to General Statutes § 53a-54a et seq., however, our applicable murder statute requires the act of causing death coupled with an “intent to cause the death of another person.” Therefore, the Connecticut murder statute, which requires intent and an act, is somewhat different from the malice type of murder statutes, thereby making the doctrine of imperfect self-defense somewhat inapplicable.

It should also be noted that in these jurisdictions the doctrine of an imperfect self-defense applies only to murder and its “shadow” offenses, which may include attempted murder. See W. LaFave & A. Scott, Substantive Criminal Law (2d Ed. 1986) § 7.11, p. 272. Yet, in Maryland it is uncertain how far this doctrine can be stretched from the offense of murder. In State v. Faulkner, supra, 301 Md. 504, the Maryland Appellate Court stated: “Logically, because the statutory offense [assault with intent to murder] is defined in terms of murder, all the defenses available in a murder prosecution are applicable in an assault with intent to murder prosecution.” While the Faulkner decision held that the mitigation defense of imperfect self-defense applies to the statutory crime of assault with intent to murder, that same court later held that this was a “generous expansion of the law of self-defense . . . .” Watkins v. State, 328 Md. 95, 106 n.3, 613 A.2d 379 (1992).

The majority view is that imperfect self-defense applies to murder and homicide charges. We hold that it does not apply to assault charges, and that the instructions on the lesser included offenses achieve the same result for the defendant.

Ill

The defendant’s third claim is that the trial court improperly precluded the defendant from offering four of the victim’s previous criminal convictions to show his violent character, as it pertained to the defendant’s claim of self-defense. At trial, the defendant made an offer of proof outside the presence of the jury in which he attempted to introduce evidence that the victim had been previously convicted of five misdemeanor offenses. The trial court only admitted the victim’s March, 1991 conviction for assaulting the defendant. The trial court, however, excluded the victim’s four other misdemeanor convictions, ruling they were too dissimilar in nature to the aggression alleged in the present case. We agree with the trial court’s ruling.

“ ‘The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of discretion.’ ” State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996). “ ‘The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect. That discretion is subject to reversal only where an abuse of discretion is manifest or where an injustice appears to have been done.’ ” State v. Weber, 31 Conn. App. 58, 65, 623 A.2d 506, cert. denied, 226 Conn. 908, 625 A.2d 1379 (1993).

The defendant relies on State v. Miranda, 176 Conn. 107, 405 A.2d 622 (1978), for the proposition that because the convictions involve crimes of violence they are therefore relevant on the issue of initial aggression in relation to his claim of self-defense. While Miranda may stand for the general rule that evidence of a victim’s prior convictions for violent crimes may be introduced as proof on the issue of initial aggression; id., 114; the defendant’s reliance on Miranda is misplaced. In Miranda, our Supreme Court warned that a defendant is not “authorized to introduce any and all convictions of crimes involving violence, no matter how petty, how remote in time, or how dissimilar in their nature to the facts of the alleged aggression. In each case the probative value of the evidence of certain convictions rests in the sound discretion of the trial court.” Id., 114.

Given the dissimilar nature of the victim’s four excluded convictions from the facts of the alleged aggression in this case, we conclude that the trial court did not abuse its discretion.

IV

The defendant’s fourth claim is that the trial court improperly failed to give a curative instruction directed toward the allegedly improper comments made by the state’s attorney. The defendant claims that the prosecutor, during his closing argument, improperly characterized portions of the defendant’s testimony as “ludicrous” and “unbelievable.” The defendant also objected to the prosecutor’s arguing to the jury that they should ignore evidence of the victim’s past disputes with the defendant. The defendant contends that the comments made by the state and the lack of a curative instruction by the trial court amounted to a violation of the defendant’s right to due process. We disagree.

“In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial.” (Internal quotation marks omitted.) State v. Villanueva, 44 Conn. App. 457, 461-62, 689 A.2d 1141 (1997).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).

After reviewing the record as a whole, we conclude that the conduct of the state’s attorney was not so egregious as to deprive the defendant of a fair trial.

The judgment is reversed only as to the conviction of assault in the first degree and the case is remanded for a new trial on that charge.

In this opinion the other judges concurred.

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

         General Statutes § 29-35 provides in relevant part: “Carrying of pistol or revolver without permit prohibited. Exceptions, (a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. The provisions of this subsection shall not apply to the carrying of any pistol or revolver by any sheriff, parole officer or peace officer of this state, or sheriff, parole officer or peace officer of any other state while engaged in the pursuit of his official duties, or federal marshal or federal law enforcement agent, or to any member of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2, when on duty or going to or from duty, or to any member of any military organization when on parade or when going to or from any place of assembly, or to the transportation of pistols or revolvers as merchandise, or to any person carrying any pistol or revolver while contained in the package in which it was originally wrapped at the time of sale and while carrying the same from the place of sale to the purchaser’s residence or place of business, or to any person removing his household goods or effects from one place to another, or to any person while carrying any such pistol or revolver from his place of residence or business to a place or person where or by whom such pistol or revolver is to be repaired or while returning to his place of residence or business after the same has been repaired, or to any person carrying a pistol or revolver in or through the state for the purpose of taking part in competitions or attending any meeting or exhibition of an organized collectors’ group if such person is a bona fide resident of the United St ates having a permit or license to cany any firearm issued by the authority of any other state or subdivision of the United States, or to any person carrying a pistol or revolver to and from a testing range at the request of the issuing authority, or to any person carrying an antique pistol or revolver, as defined in section 29-33. . . .”

       The state concedes that the defendant satisfies the second prong of Whistnant with respect to all of the requested lesser offenses except assault in the second degree in violation of General Statutes § 53a-60 (a) (2). We, however, will analyze the second prong of Whistnant as it pertains to all five requested lesser offenses because we feel the analysis will be more effective if done as a whole.

       General Statutes (Rev. to 1991) § 53a-60 provides in relevant part: “(a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical iqjury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . .

       Section 53a-60a requires either an intentional or reckless mental state, thereby constituting two lesser offenses for the purposes of this type of analysis. General Statutes § 53a-60a provides: '‘Assault in the second degree with a firearm: Class D felony: One year not suspendable. (a) A person is guilty of assault in the second degree with a firearm when he commits assault in the second degree as provided in section 53a-60, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be found guilty of assault in the second degree and assault in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       General Statutes § 53a-61 provides in relevant part: “(a) A person is guilty of assault in the third degree when ... (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon. . . .”

       General Statutes § 53a-3 (3) provides: “ ‘Physical injury’ means impairment of physical condition or pain . . . .”
      General Statutes § 53a-3 (4) provides: “ ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”

       General Statutes § 53a-3 (6) provides: “ ‘Deadly weapon’ means any weapon, whether loaded or unloaded, from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles. The definition of ‘deadly weapon’ in this subdivision shall be deemed not to apply to section 29-38 or 53-206 . . . .”

       General Statutes § 53a-3 (19) provides: “ ‘Firearm’ means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .”

       The state contends that § 53a-60 (a) (2) explicitly excludes the use of a firearm. The state’s argument must fail, however, because this statute was amended in 1994 by Public Acts 1994, No. 94-2, § 5, to exclude injuries from the discharge of a firearm. When the shooting took place in 1992, General Statutes (Rev. to 1991) § 53a-60 (a) (2) did not exclude the use of a firearm.

       There are, however, several states that do recognize this doctrine, including: Maryland, California, New Jersey, Idaho, Illinois, New Mexico, and North Carolina.

       We do not determine whether it is appropriate to apply the doctrine of imperfect self-defense to other offenses in our penal statutes.

       The defendant unsuccessfully attempted to introduce evidence of four prior misdemeanor convictions of the victim. These four convictions arose from confrontations with persons other than the defendant.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    IN RE STANLEY D.

    (16081)
    Dupont, C. X, and Spear and Hennessy, Js.

      Argued May 2
    officially released July 1, 1997

      Raymond J. Rigat, for the appellant (respondent father).

      Linda Pearce Prestley, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Barry J. Ward, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HENNESSY, J.

The respondent father (respondent) of the child Stanley D. appeals from the judgment of the trial court granting motions by the petitioner, the commissioner of children and families, to open and modify a disposition of protective supervision. The trial court modified the judgment by terminating protective supervision and ordering that the child be committed to the department of children and families (department) for a period of up to twelve months. The respondent claims that the trial court improperly (1) granted the motions to open and modify the disposition of protective supervision and (2) determined that it was in the child’s best interests to be committed to the custody of the petitioner.

The following facts are relevant to this appeal. The child, bom on November 17, 1994, was the subject of a neglect petition filed by the department on November 22, 1994. On June 15, 1995, after a contested hearing, the child was adjudged to be neglected pursuant to General Statutes § 46b-120. On July 14, 1995, the trial court rendered a disposition that allowed the child to remain with his parents but ordered a six month period of protective supervision by the department that expired on January 14, 1996. On December 18, 1995, the department filed motions to open and modify the disposition to commit the child to the department for a period not to exceed twelve months. After several days of contested hearings, the trial court granted the motion. This appeal followed.

I

The respondent first claims that the trial court improperly opened and modified the disposition of protective supervision by failing to determine first whether there had been a change in circumstances. The respondent contends that the statutory scheme in juvenile matters requires that a change in circumstances take place before a disposition can be modified. While noting that Practice Book § 1044.1, which sets forth the method by which a disposition of protective supervision is modified, does not require a finding of a change in circumstances, he maintains that such a finding is required by Practice Book § 1045.1 (2) and by General Statutes § 46b-129 (g). He further argues that, if the court is not required to find a change in circumstances, it would be allowed to review and modify the original disposition, thereby granting a petitioner a trial de novo.

The trial court reviewed the conditions set forth by the original trial court that found the child neglected. It then compared the evidence presented in the hearing on the motion for modification with those conditions and was convinced by a fair preponderance of the evidence that it was in the best interests of the child to be committed to the care and custody of the department for a period of up to twelve months. The trial court made it clear that it did not believe that either party had to show a change in circumstances from the time of the initial neglect finding.

“ ‘The Connecticut legislature has declared: “The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care In re Juvenile Appeal (84-AB), 192 Conn. 254, 262, 471 A.2d 1380 (1984). This policy is accomplished through a statutory scheme that allows the state, through the department, to take custody of a child who is reported to be uncared for, neglected or dependent. See General Statutes § 46b-129 (d). Upon a judicial determination that the child is uncared for, neglected or dependent, the Superior Court has available to it three possible options regarding custody of that child: (1) to commit the child to the custody of the petitioner; (2) to vest such child’s care and custody in a third party until the child reaches the age of eighteen; or (3) to permit the natural parent to retain custody and guardianship of the child with or without protective supervision by the department. General Statutes § 46b-129 (d); In re Juvenile Appeal (85-BC), 195 Conn. 344, 353, 488 A.2d 790 (1985). If the third option includes an order of protective supervision, the court retains jurisdiction and parental noncompliance with the order is a ground for a motion to modify that disposition. See Practice Book § 1044.1; In re Mark C., 28 Conn. App. 247, 249, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992). Thus, if the trial court finds parental noncompliance with its orders, it can modify the original disposition.

We must next determine whether the evidence supports the finding of parental noncompliance with the conditions of protective supervision. We conclude that it does.

The trial court that found the child neglected set forth conditions in connection with its order of protective supervision. The conditions were cooperation with the department, participation in family counseling, accepting the help of a parent aide, accepting announced and unannounced visits to the home by the department, advising the department if there is a caretaker of the child other than the parents and having no further involvement with the criminal justice system. The trial court that heard the motion for modification found that the respondent did not cooperate with the department. It also found that the respondent canceled announced visits by the department and the parent aide without prior notice. Moreover, the court found that the respondent was arrested and charged with breach of the peace and threatening. The trial court further found that the child’s mother had disappeared for a period of weeks and had neither been in contact with the department or her attorney nor established an ability to exist independently and to provide a safe and nurturing environment for her child. The court also found that both parents, prior to the mother’s leaving the home, participated in inappropriate violent behavior toward each other, thereby creating an unhealthy environment for the child. The trial court’s conclusion that the parents did not comply with the conditions of protective supervision, therefore, was clearly supported by the evidence.

II

The respondent next claims that the evidence did not support the trial court’s decision that it was in the child’s best interests to remove him from the care and custody of his parents. He argues that the reason given by the trial court for committing the child to the department, “a willful failure on the part of [the respondent] to cooperate with the department and to meet the expectations,” was inadequate to deprive the parents of their constitutional right to the custody of their child. We disagree.

When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the court’s judgment. We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the court could have concluded as it did based on the cumulative effect of the evidence. See Barry v. Posi-Seal International, Inc., 40 Conn. App. 577, 580, 672 A.2d 514, cert. denied, 237 Conn. 917, 676 A.2d 1373 (1996).

On the basis of the evidence it had before it concerning the parents’ failure to comply with the conditions of parental supervision, the trial court could reasonably have found that the safety of the child and the strengthening of the family was not being achieved under the order of protective supervision. The court also reasonably concluded that committing the child to the care and custody of the petitioner would provide more protection and a more stable environment for the child. We conclude, therefore, that the court was well within the bounds of its discretion in finding that it was in the best interests of the child to modify the disposition of protective supervision and to commit the child to the custody of the petitioner.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17a-93 (i) provides: “ ‘Protective supervision’ means a status created by court order following adjudication of neglect whereby a child’s place of abode is not changed but assistance directed at correcting the neglect is provided at the request of the court through the Department of Children and Families or such other social agency as the court may specify . . . .”

       General Statutes § 46b-120 provides in relevant part: “(8) [A] child or youth may be found ‘neglected’ who (A) has been abandoned or (B) is being denied proper care and attention, physically, educationally, emotionally or morally or (C) is being permitted to live under conditions, circumstances or associations injurious to his well-being, or (D) has been abused . . . .”

       Practice Book § 1044.1 provides: “When protective supervision is ordered, the court will set forth any conditions of said supervision including duration and any review dates. Parental noncompliance with the order of protective supervision shall be a ground for a motion to modify the disposition. Upon finding that the circumstances so warrant, the court on its own motion or acting on a motion of any party and after notice is given and hearing has been held, may modify a previously entered disposition of protective supervision in accordance with the applicable general statutes.”

       Practice Book § 1045.1 (2) provides: “The petitioner seeking revocation of a commitment has the burden of proof that no cause for commitment exists. If the burden is met, the opposing party has the burden of proof that revocation would not be in the best interest of the child. Each burden is by a preponderance of the evidence.”

       General Statutes § 46b-129 (g) provides in relevant part: “Any court by which a child or youth has been committed pursuant to the provisions of this section may, upon the application of ... a parent . . . upon hearing, after reasonable notice . . . upon finding that cause for commitment no longer exists, revoke such commitment . . . .”

       General Statutes § 46b-129 (d) provides in relevant part: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the Commissioner of Children and Families for a maximum period of twelve months .... The commissioner shall be the guardian of such child or youth for the duration of the commitment . . . and in like manner, upon such vesting of his care, such other public or private agency or individual shall be the guardian of such child or youth until he has reached the age of eighteen . . . .”

       “Although a court order continuing the custody of the neglected child in the natural parent is not expressly provided for in General Statutes § 46b-129 (d), this third option is implicit in the legislature’s use of the permissive term‘may’throughout that subsection. . . . As the court‘may’commit custody to [the department] or vest it in a suitable third party, implicitly ajudicial determination may also be made that under the particular circumstances of a given case the best interests of the child are furthered only by permitting the natural parent to retain custody.” (Citation omitted.) In re Juvenile Appeal (85-BC), 195 Conn. 344, 353-54 n.9, 488 A.2d 790 (1985).


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. ALBERT M. NYVELDT
    (AC 15980)
    Foti, Lavery and Cretella, Js.
    Argued April 21
    officially released July 1, 1997

      William H. Cashman, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Albert M. Nyveldt, appeals from a judgment of conviction, rendered after a jury trial, of three counts of risk of injury to a child in violation of General Statutes § 53-21 and three counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A).

Having reviewed the record and briefs of the parties, we find that the claims of the defendant are without merit. The record discloses more than sufficient evidence to sustain the defendant’s conviction for risk of injury to a child as charged in count one of the information.

The judgment is affirmed.

       The defendant did not raise the issue of the sufficiency of the evidence as to any other count of the information.


author: LANDAU, J.

text:
    SYSTEMATICS, INC. v. FORGE SQUARE ASSOCIATES LIMITED PARTNERSHIP ET AL.
    (AC 15817)
    Dupont, C. J., and Landau and Spear, Js.
    Argued January 27
    officially released July 8, 1997

      William H. Clendenen, Jr., with whom, on the brief, was Nancy L. Walker, for the appellant (defendant-third party plaintiff Construction Services of Bristol, Inc.).

      J. Paul Kane, with whom was Joseph B. Mathieu, for the appellee (substitute third party plaintiff).
   Opinion

LANDAU, J.

The defendant third party plaintiff, Construction Services of Bristol, Inc. (Construction Services), by its cross complaint, sought to foreclose a mechanic’s lien on property owned by Forge Square Associates Limited Partnership (Forge). The defendant state of Connecticut filed an answer and special defenses and subsequently filed a motion for summary judgment on Construction Services’s cross complaint. The trial court granted the state’s motion for summary judgment and Construction Services appealed to this court. While that appeal to this court was pending, Seaboard Surety, Inc. (Seaboard), a surety of Construction Services, filed a motion to substitute itself as the sole third party plaintiff, in lieu of Construction Services. Over Construction Services’ objection, the trial court granted Seaboard’s motion to substitute. On appeal, Construction Services claims that the trial court (1) lacked jurisdiction to grant the motion to substitute and (2) failed to hold an evidentiary hearing on the objection to the motion to substitute.

The following facts are relevant to this appeal. This case arises out of a construction project in Middletown on land owned and developed by Forge. Construction Services was the general contractor on the project and Seaboard was its surety by virtue of payment and performance bonds Seaboard issued on behalf of Construction Services. The state holds a mortgage on the subject property.

The plaintiff, Systematics, Inc., brought an action to foreclose its mechanic’s lien for materials and services rendered in connection with the project. The action was brought against Forge as the owner of the property. Construction Services also claims an interest in the same property by virtue of a mechanic’s lien. As a result of arbitration proceedings arising out of a dispute between Construction Services and Forge, Construction Services obtained a net award against Forge of $339,671, plus interest. Construction Services attempted to collect that sum plus attorney’s fees, by way of a cross complaint, by foreclosing its mechanic’s lien. As a result of and in accordance with a proposed settlement in that foreclosure action, Seaboard moved, by motion filed July 3, 1995, in the trial court, to be substituted, pursuant to Practice Book § 96, as the sole plaintiff in this action. Construction Services filed an objection to Seaboard’s motion to substitute on September 28, 1995, and requested that the trial court permit oral argument and an evidentiary hearing. No oral argument or evidentiary hearing was held. On March 12, 1996, the trial court granted Seaboard’s motion to substitute.

The dispositive issue in this appeal is whether the filing of a motion to substitute is subject to Practice Book § 326 and General Statutes § 52-212a. Construction Services argues that the trial court lacked jurisdiction to substitute Seaboard as the sole plaintiff. Construction Services maintains that the trial court could not do so without opening the judgment or absent an order from this court. Seaboard argues that the preargument conference judge, to whom the case was referred as part of the Appellate Preargument Conference Program, exercised supervisory powers pursuant to Practice Book § 4183 and referred Seaboard’s motion to substitute to the trial court. Thus, Seaboard argues that the motion was properly before the trial court. Seaboard further argues that, inasmuch as the trial court was acting under the auspices of the preargument conference judge’s authority in deciding the motion to substitute, opening the judgment was unnecessary. The question, however, is not what powers the preargument conference judge has, but whether the trial court had jurisdiction when it acted to substitute Seaboard for Construction Services. We find Seaboard’s arguments are without merit.

“Absent waiver, consent or other submission to jurisdiction ... a court is without jurisdiction to modify or correct a judgment, in other than clerical respects, after the expiration of the [period] provided in Practice Book ... § 326.” (Internal quotation marks omitted.) O’Leary v. Industrial Park Corp., 211 Conn. 648, 652-53 n.2, 560 A.2d 968 (1989), quoting Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983); see Practice Book § 326. In O’Leary, our Supreme Court outlined the limited circumstances in which a trial court has the authority to modify its judgment after the four month period has passed. O’Leary v. Industrial Park Corp., supra, 652-53 n.2. None of those exceptions applies in this case. Finally, Construction Services did not waive the provisions of § 52-212a or Practice Book § 326; see In re Baby Girl B., 224 Conn. 263, 288, 618 A.2d 1 (1992); and, therefore, the trial court lacked personal jurisdiction over the parties necessary to remove Construction Services from the judgment.

Here, the trial court granted the state’s motion for summary judgment on February 17, 1995. That judgment constituted a final judgment from which Construction Services appealed on March 2, 1995. Because Seaboard failed to file a motion to open within the allotted four month period pursuant to § 326, the trial court lacked the authority to grant Seaboard’s motion to be substituted as the sole plaintiff. See Joblin v. LaBow, 33 Conn. App. 365, 367, 635 A.2d 874 (1993), cert. denied, 229 Conn. 912, 642 A.2d 1207 (1994).

Finally, Seaboard, relying on the language of Practice Book § 96; see footnote 3; argues that the action was pending before this court and, therefore, substitution was permissible. “In general, substitution is permitted ... in cases of assignment. Practice Book § 96.” Joblin v. LaBow, supra, 33 Conn. App. 367. “Where judgment has been rendered, however, substitution is unavailable unless the judgment is opened.” Id. As a result, the action was not pending before the trial court.

The order granting Seaboard’s motion to substitute is reversed and the case is remanded with direction to deny the motion to substitute.

In this opinion the other judges concurred.

       The additional defendants in the underlying action are the state of Connecticut, Construction Services and General Electric Corporation.

       That appeal, Docket No. 14544, has been stayed pending the disposition of the present appeal.

       Practice Boole § 96 provides in relevant part: “If, pending the action, the plaintiff assigns the cause of action, the assignee, upon written motion, may either be joined as a coplaintiff or be substituted as the sole plaintiff, as the court may order . . . .”

       Seaboard indicated in its accompanying memorandum that it intended, after substitution, to withdraw the appeal and settle with the state in a manner adverse to Construction Services’ claims.

       The trial court granted Seaboard’s motion to substitute without comment. After the trial court denied Construction Services’ motion for articulation, Construction Services filed a motion for review in this court. We granted review and the relief requested therein and ordered the trial court to articulate the basis for its decision to grant Seaboard’s motion to substitute. The trial court responded as follows: “Pursuant to the Appellate Court’s order to articulate this court’s granting of the Motion to Substitute Party, the court cites the reasons set forth in Seaboard’s original motion.”
      The trial court’s articulation is inadequate. While we are cognizant of the trial court’s substantial docket and its desire to hasten the procurement of justice, the adoption of a patty’s factual or legal conclusions as the basis for the court’s decision is improper. In Doe v. Bridgeport Hospital, 40 Conn. App. 429, 433, 671 A.2d 405 (1996), quoting Grayson v. Grayson, 4 Conn. App. 275, 284, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987) (certification improvidently granted), we stated that “the appearance of justice is just as important as the reality, and a verbatim adoption of the facts proffered by one of the advocates invites a public suspicion of the trial court’s decision. The perceptions by the public and by the losing litigant of our system of justice are surely not enhanced by such a practice.” (Internal quotation marks omitted.)
      Due to our conclusion that the trial court lacked jurisdiction to entertain the motion to substitute, however, it is not necessary for us to direct the trial court to further articulate its decision.

       At the time that Seaboard filed its motion to substitute, Practice Book § 326 provided in relevant part that “any civil judgment . . . 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 succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. ...”

       General Statutes § 52-212a provides in relevant part: “[A] civil judgment . . . 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

       The proper procedure for changing parties when an appeal is pending is set forth in Practice Book § 4033. Section 4033 provides: “Any change in the parties to an action pending an appeal shall be made in the court in which the appeal is pending. The appellate clerk shall notify the clerk of the trial court of any change.” We note that Seaboard did file a second motion for substitution in this court pursuant to § 4033, which this court denied without prejudice to refiling after the disposition of this appeal.

       Because of our disposition of Construction Services’ first claim, we do not reach the second issue.


author: DUPONT, C. J.

text:
    TOWN OF REDDING ET AL. v. CONNECTICUT SITING COUNCIL ET AL.
    (AC 15556)
    Dupont, C. X, and Hennessy and Licari, Js.
    Argued March 3
    officially released July 8, 1997

      JohnP. Flanagan, with whom, on the brief, was Alice Ann Carey, for the appellant (named plaintiff).

      Mark F. Kohler, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).

      Robert F. Vacchelli, assistant attorney general, with whom was Richard Blumenthal, attorney general, for the appellee (defendant department of public safety).

      Robert K. Ciulla, with whom, on the brief, were Charles R. Andres and Peter J. Tyrrell, for the appellee (defendant Springwich Cellular Limited Partnership).
   Opinion

DUPONT, C. J.

This appeal concerns the effectiveness of service of process, in an administrative appeal, on an administrative agency. On September 21, 1995, the plaintiffs filed an appeal with a return date of October 17,1995, in the Superior Court, appealing an adverse decision of the Connecticut siting council (siting council). The petition named as defendants the siting council; Springwich Cellular Limited Partnership (Springwich); the state department of public safety, division of state police (department of public safety); Robert J. Kaufman; Judith G. Freedman; and John E. Stripp. The petition stated that service had been made on Springwich, George Vermilyea, Neighbors Opposed to Tower, town of Redding, department of public safety c/o Stephen Samoski, Stripp, Freedman, and Kaufman. A September 26, 1995 affidavit of service certified that a copy of the petition of appeal had been served on Joel Rinebold, executive director of the siting council, as well as the parties listed in the petition itself. On November 15, 1995, however, an affidavit executed by Rinebold was filed, which stated that he had never received service in this matter. Subsequent thereto, on November 29, 1995, the plaintiffs filed an amended affidavit of service, which did not list service on Rinebold. On appeal, the plaintiffs make no argument that the siting council was served at its office. The siting council filed an appearance on October 10, 1995.

The trial court granted Springwich’s and the siting council’s motions to dismiss on the ground that the court lacked subject matter jurisdiction because the plaintiffs had failed to serve the defendant siting council as required by General Statutes § 4-183 (c).

The plaintiffs have appealed to this court, claiming that the trial court improperly dismissed the action. The plaintiffs argue that the siting council had been served within the proper time frame because another agency at the attorney general’s office, the department of public safety, had been served. The plaintiffs claim that that service met the requirements of § 4-183 (c) because that section provides that service on the office of the attorney general in Hartford is effective service. Further, the plaintiffs note that the siting council had notice of the appeal, as evidenced by its filing an appearance well in advance of the return date.

In Tolly v. Dept. of Human Resources, 225 Conn. 13, 621 A.2d 719 (1993), the Supreme Court set forth the result when service on an agency has not been properly made. “If there is no service at all on the agency within the forty-five day period, the court lacks subject matter jurisdiction over the appeal by virtue of the clear implication of the language in § 4-183 (c), read against the background of the preexisting law. ... If, however . . . there is an arguable defect in the process that was timely served on the agency . . . rather than a failure to make service at all within the applicable time period, the court does not lack subject matter jurisdiction over the appeal. Under those circumstances, § 4-183 (d) applies, and the appeal is dismissable only upon a finding of prejudice to the agency.” (Citations omitted; internal quotation marks omitted.) Id., 28-29.

The plaintiffs argue that their failure to serve the siting council directly is a defect rather than a lack of service because the attorney general’s office was served with the petition, as required by § 4-183 (c), albeit addressed on the envelope to a different agency. The plaintiffs argue that the service on the department of public safety, because it is another agency of the attorney general’s office, is equivalent to service on the siting council, and, therefore, the omission of the siting council on the envelope constitutes merely a defect in the process. It was clear, they allege, from the caption of the case that the siting council was also meant to be served.

We agree with the defendants that the service on the department of public safety cannot be said to constitute service also on the siting council. This is not the same as a case in which service was made on the attorney general’s office generally, and it was left to the attorney general to make sure that the proper agency received notice of the appeal. Here, the petition was addressed to the department of public safety, and the assistant attorney general who had represented the department in the agency matter was specifically named. Nowhere was the siting council itself, or the assistant attorney general who had represented it, mentioned as the recipient of service of process. When two agencies are to be served with process, serving only one does not constitute proper service as to the other. Two copies needed to be served here. Because there was no service on the siting council, the trial court lacked subject matter jurisdiction.

“ [Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here.” (Internal quotation marks omitted.) Mannweiler v. LaFlamme, 232 Conn. 27, 34-35, 653 A.2d 168 (1995). In Mannweiler, although the lack of notice, pursuant to Practice Book § 390 (d), to other owners in a subdivision was a fatal flaw that deprived the trial court of jurisdiction in a declaratory judgment action, in which injunctive relief was also sought, the lack of jurisdiction did not require a dismissal. Id., 36. Instead, the case was remanded to the trial court so that the plaintiffs could cure the jurisdictional defect regarding the notice requirement. See Serrani v. Board of Ethics, 225 Conn. 305, 309-10, 622 A.2d 1009 (1993); see also Connecticut Ins. Guaranty Assn. v. Raymark Corp., 215 Conn. 224, 230, 575 A.2d 693 (1990).

If this case is procedurally similar to Mannweiler, the case must be remanded to the trial court for further proceedings so that service may be effected. If, however, it is not, we must affirm the decision of the trial court that dismissed the appeal.

In a recent case, Gemmell v. Lee, 42 Conn. App. 682, 686, 680 A.2d 346 (1996), an action to quiet title, it was held that the principle of Mannweiler applied, and the case was accordingly remanded to cure the lack of notice to indispensable parties. Thus, Mannweiler has been applied to an action other than one for a declaratory judgment. An action to quiet title, however, like one for a declaratory judgment, can involve the necessity of notifying indispensable parties. The present action is neither one for a declaratory judgment nor an action to quiet title.

The key language of Serrani v. Board of Ethics, supra, 225 Conn. 309 n.5, on which Mannweiler relied, is the statement that “[ujnlike other jurisdictional defects implicating the trial court’s subject matter jurisdiction . . . the bringing of a declaratory judgment action is not itself precluded by a failure to comply with the notice requirement.” (Emphasis added.) In other words, those actions, that pend in the trial court while notice is given to indispensable, necessary or interested parties or while motions to intervene are being entertained, are different from administrative appeals because the former can exist or be brought, unlike the latter which cannot be brought at all, if there has been a total failure to comply with statutory mandates.

Connecticut Ins. Guaranty Assn., Serrani, and Mannweiler are distinguishable from the present case because they involved actions in which the suit could be brought even though notice to indispensable, necessary or interested parties was lacking. Here, however, the plaintiff failed to serve the siting council, the agency that rendered the final decision. Section 4-183 (c) mandates that the administrative appeal cannot be brought at all if the party fails to make such service. Although the issues of a lack of notice and a lack of service of process are similar in that each provides a manner of informing other parties or potential parties of a suit or claim; see Smith v. Smith, 150 Conn. 15, 20, 183 A.2d 848 (1962); the lack of service of process in an administrative appeal is so fundamental to the existence of the action itself that the failure of subject matter jurisdiction cannot be cured. We conclude that Mannweiler does not apply here, and the failure to comply with the statutory provisions of § 4-183 (c) makes dismissal mandatory.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the named plaintiff, the other plaintiffs are George Vermilyea and Neighbors Opposed to Tower.

       General Statutes § 4-183 (c) provides in relevant part: “Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford .... Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. . . .” (Emphasis added.)


text:
    SANTO FICARA v. WILLIAM O’CONNOR
    (AC 15710)
    Landau, Freedman and Spallone, Js.
    Argued February 21
    officially released July 8, 1997

      Peter J. Casey, for the appellant (defendant).

      Timothy E. Welsh, for the appellee (intervening plaintiff).
   Opinion

LANDAU, J.

The defendant appeals from the judgment, rendered by the trial court pursuant to the acceptance of a report of an attorney trial referee, awarding the intervening plaintiff town of Manchester reimbursement for workers’ compensation benefits paid to the plaintiff, Santo Ficara. On appeal, the defendant claims that the trial court improperly (1) applied numerous provisions of the Connecticut Insurance Guaranty Association Act and (2) accepted the attorney trial referee’s report filed after the 120 days provided for in Practice Book § 430A had expired. We reverse the judgment of the trial court.

The following facts are necessary for the resolution of this appeal. Ficara, a town of Manchester police officer, commenced this negligence action against William O’Connor. The town intervened as a plaintiff in the action to recover workers’ compensation benefits paid to Ficara. On February 19, 1993, the trial court referred the case to an attorney trial referee to try the claims of the town against William O’Connor. This case was tried on February 19 and April 2,1993. Both parties filed posttrial briefs on April 16,1993. Subsequently, on April 11, 1994, the attorney referee issued his report, which was filed on April 26, 1994. In his report, the attorney referee found in favor of the town and recommended an award of $14,740.93.

The defendant filed a motion to vacate the decision, dated April 29, 1994, on the ground that the attorney referee failed to file a report within the time provided for in Practice Book § 430A. On March 21, 1995, the trial court denied the defendant’s motion to vacate. On January 29, 1996, the trial court rendered judgment. This appeal followed.

We first address the defendant’s claim regarding the timeliness of the attorney referee’s report because it is dispositive of this appeal. The defendant argues that the attorney referee’s failure to file his report within the 120 day period provided for in Practice Book § 430A deprived the trial court of jurisdiction. The town contends that the defendant waived the 120 day limit by forwarding correspondence for consideration by the attorney referee, after the posttrial briefs were filed.

Practice Book § 430Aprovides in part that “[a]n attorney trial referee to whom a case has been referred shall file a report with the clerk of the court . . . within one hundred and twenty days of the completion of the trial before such referee.” (Emphasis added.) In denying the defendant’s motion to vacate, the trial court found that, while there was no waiver provision in § 430A, waiver was appropriate in this case because it was the defendant who forwarded the unsolicited material to the attorney referee and then moved to have the report vacated because it was unfavorable. The trial court concluded that the 120 day period commenced on March 3, 1994, the last date on which the defendant submitted material, and, thus, the attorney referee’s report was timely filed on April 26, 1994.

In Gumpert v. Ore-Ida Foods, Inc., 39 Conn. App. 635, 641, 666 A.2d 437 (1995), we held that an attorney referee’s failure to comply with the 120 day limit as set forth in Practice Book § 430A, coupled with the objection of the defendants, required a new trial. See also Sanchez v. Prestia, 29 Conn. App. 157, 161-62, 612 A.2d 824, cert. denied, 224 Conn. 913, 617 A.2d 167 (1992). In Gumpert v. Ore-Ida Foods, Inc., supra, 637 n.3, we did not address the issue of whether the parties may waive or agree to extend the 120 day period under § 430A, but noted that “[u]nlike General Statutes § 51-183b [which provides a waiver provision], Practice Book § 430A contains no explicit waiver provision . . . .” The issue of whether the parties may waive the 120 day period is now squarely before this court.

“ ‘The rules of statutory construction apply with equal force to Practice Book rules.’ ” Whalen v. Ives, 37 Conn. App. 7, 11, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995), quoting Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984). “A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used. . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance.” (Citations omitted; internal quotation marks omitted.) Bristol v. Vogelsonger, 21 Conn. App. 600, 604, 575 A.2d 252 (1990).

The plain language of § 430A is unambiguous. Clearly, it was the intent of the drafters not to provide a waiver provision for the parties to extend the time an attorney referee has to file a report. As a result, the parties cannot waive the 120 day period provided in § 430A. Moreover, while the legislature provided a waiver provision in General Statutes § 51-183b, the judges of the Superior Court, in promulgating the rules of practice for attorney referees, were certainly cognizant of § 51-183b, yet decided not to include a waiver provision in § 430A. See also Practice Book § 546G (providing no waiver provision for fact finders) and § 546Q (providing no waiver provision for arbitrators). Thus, we conclude that the trial court lacked the power to accept an attorney referee’s report that did not comply with § 430A.

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

In this opinion the other judges concurred.

       The town of Manchester intervened as a plaintiff and filed an amended complaint.

       General Statutes § 38a-836 et seq.

       Subsequently, Kevin O’Connor, William O’Connor’s son, was joined as a defendant.

       The defendant’s insurer, American Mutual Insurance Company, became insolvent in March, 1989. As a result, Ficara applied for and received uninsured motorist benefits from his insurance company, Nationwide Insurance. Ficara subsequently settled his claim with Nationwide Insurance and withdrew his claims against William O’Connor and Kevin O’Connor.

       The town argues in its brief that this appeal should be dismissed on the ground that the defendant waived his right to appeal and, notwithstanding, this appeal is untimely. The town argues that the defendant waived his right to appeal by improperly filing an appeal from the attorney referee’s report. This court dismissed that appeal due to the defendant’s failure to file a brief. The town further argues that the trial court rendered judgment when it denied the defendant’s motion to vacate on March 21, 1995, and, thus, this appeal is untimely. See Practice Book § 4009. On the basis of our review of the record, the trial court rendered judgment on January 29, 1996, and, subsequently, the defendant filed this timely appeal.

       The defendant, on August 13, 1993, forwarded to the attorney referee a magistrate’s recommendation in a District Court case, and on November 11, 1993, the defendant informed the attorney referee of an error in his August 13,1993 cover letter. Also, on March 3,1994, the defendant forwarded a federal District Court case to the attorney referee for his consideration.


text:
    COLONIAL PENN INSURANCE COMPANY v. PATRIOT GENERAL INSURANCE COMPANY
    (AC 16467)
    O’Connell, Lavery and Healey, Js.
    Argued May 1
    officially released July 8, 1997

      Michael E. Burt, with whom, on the brief, was Donald G. Walsh, for the appellant (plaintiff).

      Jack G. Steigelfest, with whom, on the brief, was Constance L. Epstein, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Colonial Penn Insurance Company, instituted this declaratory judgment action against the defendant, Patriot General Insurance Company, seeking an order of the court requiring the defendant to provide liability coverage to Carmen Lugo. At the request of the parties, the trial court reserved the following question for the advice of this court: “Consistent with the minimum financial responsibility laws of General Statutes §§ 14-12b, 14-112, 38a-334 and 38a-335 (a), may an insurance policy specifically exclude from coverage a motor vehicle owner while operating the insured motor vehicle pursuant to General Statutes § 38a-335 (d)?”

Although the trial court reserved that question for the advice of this court, compliance with Practice Book § 390 (d) is required. In Hopkins v. Pac, 176 Conn. 318, 407 A.2d 979 (1978), our Supreme Court refused to answer a question reserved for advice because the plaintiff failed to provide reasonable notice to all interested parties. The court held that “[s]trict adherence to this rule [now Practice Book § 390 (d)] has consistently been required by this court. Cavalli v. McMahon, 174 Conn. 212, 215-16, 384 A.2d 374 [1978]; Gannon v Sanders, 157 Conn. 1, 5, 244 A.2d 397 [1968]; Wenzel v. Danbury, 152 Conn. 675, 677, 211 A.2d 683 [1965], . . . Simply stated, ‘[a]nyone with an interest in the subject matter is entitled to reasonable notice and an opportunity to be heard, whether he supports the plaintiffs’ or the defendants’ position.’ Cavalli v. McMahon, supra, 216. Consequently, we refuse to answer the question reserved for our advice at this time. The trial court must ensure compliance with the provisions of Practice Book [§ 390 (d)]. See, for example, Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 112, 355 A.2d 72 [1972].” Hopkins v. Pac, supra, 319-20.

In the present case, an order of notice, which predates the reservation to this court was addressed only to the plaintiffs insured and the defendant’s insured. The question before this court concerning whether an insurance company can specifically exclude from coverage a motor vehicle owner while operating the insured motor vehicle will certainly have an impact on the insurance industry. Therefore, we conclude that other insurance companies would be sufficiently interested in this action to warrant notice. Because the order of notice was issued only to the parties, and there may be other insurance companies with an interest in the pendency of this action, we have determined that the notice requirement set forth in Practice Book § 390 (d) has not been met. Thus, we refuse to answer the question reserved for our advice until the trial court ensures compliance with § 390 (d).

This court, however, will retain jurisdiction of this matter. Our Supreme Court recently held that “ ‘[u]nlike other jurisdictional defects implicating the trial court’s subject matter jurisdiction . . . the bringing of a declaratory judgment action is not itself precluded by a failure to comply with the notice requirement.’ Serrani v. Board of Ethics, [225 Conn. 305, 309 n.5, 622 A.2d 1009 (1993)]; Connecticut Ins. Guaranty Assn. v. Raymark Corp., [215 Conn. 224, 230, 575 A.2d 693 (1990)]. On remand, the plaintiffs may pursue further procedural efforts to cure the jurisdictional defect regarding the notice requirement. Serrani v. Board of Ethics, supra, 309.” Mannweiler v. LaFlamme, 232 Conn. 27, 36, 653 A.2d 168 (1995); see also Hopkins v. Pac, supra, 176 Conn. 319-20.

The case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The initial question before the trial court was limited to the immediate parties and their insureds. The plaintiff initially sought the following declaration: "‘A Judgment declaring that the defendant insurer has a duty to defend and provide coverage to the aforementioned Carmen L. Lugo against the claim of Horace Rosemond arising out of the automobile accident occurring in Bloomfield, Connecticut on October 1, 1994.”

       Practice Book § 390 provides in relevant part: “The court will not render declaratory judgments upon the complaint of any person . . . (d) until all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”