author: Foti, J.

text:
    Manatuck Associates v. Conservation Commission of the Town of Fairfield et al. Elizabeth M. Gaynor et al. v. Conservation Commission of the Town of Fairfield et al.
    (10538)
    (10539)
    Daly, Foti and Heiman, Js.

      Argued June 1
    decision released September 1, 1992

      Christopher J. Smith, for the appellants (Elizabeth M. Gaynor et al., defendants in the first case, plaintiffs in the second case).

      Ronald J. Papacha, with whom, on the brief; was John F. Fallon, for the appellee (Manatuck Associates, plaintiff in the first case, defendant in the second case).

      Donald C. Collimore, assistant town attorney, for the appellee (named defendant in both cases).
   Foti, J.

These are consolidated appeals, brought by Elizabeth M. Gaynor and other neighboring property owners (neighbors), from the decision of the trial court sustaining in part and dismissing in part two appeals from the decision of the defendant conservation commission of the town of Fairfield (commission). The first appeal challenges the trial court’s reversal of the commission’s denial of Manatuck Associates’ application for a permit to conduct regulated activities on eight lots in a proposed ten lot subdivision. The second appeal challenges the trial court’s affirmance of the commission’s approval with conditions as to the remaining two lots.

The following facts are pertinent to these appeals. Manatuck Associates (Manatuck) owns thirty-five acres of abandoned farmland located in the Southport section of the town of Fairfield. Manatuck proposed to subdivide the parcel into residential building lots in order to construct ten luxury homes. The land, which contains approximately eleven acres of regulated wetlands, is located within the watershed of Great Brook, which also traverses the site. The parcel is bisected by More-house Lane, a narrow country road. Pursuant to the town’s inland wetlands and watercourses regulations, Manatuck was required to apply to the commission for a permit before conducting any regulated activities associated with its proposed development of this parcel.

The wetlands permit application that is the subject of the present appeals was preceded by an application filed in February, 1989, which, in addition to proposing regulated activities related to lot development (i.e., storm water discharge, filling, excavation), contained a detailed proposal to improve access to the ten building lots through extensive reconstruction of Morehouse Lane. This earlier application was denied by the commission, despite a staff report recommending conditional approval, primarily because the proposed road and culvert improvements would severely impact on the adjacent wetlands. On June 2,1989, Manatuck filed another application, substantially the same as the first, except that it eliminated all reference to the Morehouse Lane improvements. After due notice and public hearings on the second application, the commission voted unanimously on October 19, 1989, to approve it with certain specified conditions as to two of the lots and to deny it without prejudice with respect to the remaining eight lots.

Manatuck thereafter appealed from the commission’s denial with respect to the eight lots, claiming, inter alia, that the denial was arbitrary, capricious, and an abuse of discretion, and that it was unsupported by substantial evidence in the record. The neighbors intervened pursuant to General Statutes § 22a-19 (a), and appealed from the commission’s approval of the permit for the two lots, claiming that Manatuck’s application was incomplete in that it failed to address regulated activities necessary for the proposed subdivision’s access. The trial court sustained Manatuck’s appeal and dismissed the neighbors’ appeal, in effect ordering the commission to approve the application in its entirety. The present appeals followed.

On appeal, the commission, as appellee, claims that the trial court improperly disregarded substantial evidence in the record that supported the commission’s decision to approve the development of two lots while postponing development of the remaining eight, and improperly substituted its own evaluation of the evidence for that of the commission. The neighbors, who challenge the trial court’s decision inasmuch as it now permits Manatuck to proceed with development on all ten lots, claim that the trial court (1) improperly concluded that an applicant can avoid wetlands review simply by eliminating from its plans all regulated activities associated with required road and bridge improvements while seeking approval of a ten lot subdivision, and (2) exceeded its scope of review by substituting its findings and conclusions for that of the commission.

The dispositive issue in these appeals is whether the trial court improperly found that the decision of the commission to approve Manatuck’s application in part and to deny it in part was unsupported by substantial evidence. We disagree with the trial court that there was no substantial, reliable and probative evidence in the record to support the commission’s decision. Our review of the record reveals that there was such evidence.

We first set forth the proper standard for the trial court’s review of the decision of an inland wetlands commission. “[I]n an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision.” Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). Even if the agency’s reasons for denying an application are merely speculative, “the reviewing court must search the record for reasons to support the agency’s decision . . . and, upon finding such, uphold that decision regardless of the language used by the agency in stating its reasons for the denial.” Madrid v. Inland Wetlands Agency, 25 Conn. App. 446, 451, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991). “The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. Feinson v. Conservation Commission, 180 Conn. 421, 425-26, 429 A.2d 910 (1980), quoting Lawrence v. Kozlowski, 171 Conn. 705, 708, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977), and cases there cited.” (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-41, 525 A.2d 940 (1987). If there is contradictory evidence in the record, the reviewing court must take that into account; however, “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Internal quotation marks omitted.) Id., 542; Milardo v. Inland Wetlands Commission, 27 Conn. App. 214, 218, 605 A.2d 869 (1992).

While we find that there was sufficient evidence to support the commission’s decision solely on the basis of lot development concerns, we must address whether the commission properly considered the question of improvements along Morehouse Lane because the trial court based its decision largely on that issue.

The trial court found that in approving only two of Manatuck’s ten proposed lots, “[t]he commission acted outside the scope of its authority in considering the anticipated improvements to the access road.” The court further found that the commission’s decision “contains mere speculation as to the impact on drainage along Morehouse Lane. The commission’s decision turns on speculative considerations concerning matters not a part of the application or the record before it.” The court found that “in determining that Morehouse Lane ‘of necessity’ must be reconstructed to provide lot access . . . and then conditioning subsequent approval of [Manatuck’s] application on ‘securing approval for a permanent road access route’ . . . the commission sought to regulate the width of Morehouse Lane, a power that has been given to the planning and zoning commission under General Statutes §§ 8-25 and 8-26.”

We recognize at the outset that road improvements per se are not within the jurisdiction of an inland wetlands agency. “[LJocal inland wetland bodies are not little environmental protection agencies. Their environmental authority is limited to the wetland and watercourse area that is subject to their jurisdiction. They have no authority to regulate any activity outside their jurisdictional limits.” Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984). Moreover, “although in considering an application for a permit to engage in any regulated activity a local wetland agency must, under § 22a-41, take into account the environmental impact of the proposed project, it is the impact on the regulated area that is pertinent, not the environmental impact in general.” Id. This was not, however, a case in which the commission based its decision on a matter of a “noninland wetlands nature.” Id., 251. We disagree with the trial court that in denying Manatuck’s application as to eight of the proposed lots, the commission was required to forego any consideration of the Morehouse Lane access road.

General Statutes § 22a-41 provides that in deciding whether to approve or to deny an application to conduct regulated activities, a wetlands commission must consider “all relevant facts and circumstances, including but not limited to . . . [inter alia] [t]he suitability or unsuitability of such activity to the area for which it is proposed. ” (Emphasis added.) Section 6 of the town of Fairfield inland wetlands and watercourses regulations contains similar language to that of General Statutes § 22a-41. Section 4.2 of the town regulations authorizes the commission to regulate “those activities which directly or indirectly [impact on] inland wetlands and watercourses.” “As these regulations were enacted under authority of the . . . Wetlands and Water Courses Act [General Statutes §§ 22a-28 through 22a-45] the same canons of construction are applicable as though [they] were enacted as a state statute.” Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981).

It is undisputed that one of the “relevant facts and circumstances” related to the development of Manatuck’s subdivision was the question of access to the proposed lots. In its first application to the commission, Manatuck had addressed the access problem by proposing extensive road improvements and culvert reconstruction at the point where Morehouse Lane crosses Great Brook. Although Manatuck deleted all reference to road and culvert repairs from its second application, Manatuck continued to recognize that such repairs were essential. Manatuck’s representative stated emphatically at the public hearing on September 5,1989, that “[i]t’s a hazardous road; it’s in terrible condition, and it should be dealt with.” At the October 3,1989 public hearing, he conceded that “any improvements to More-house Lane with regard to improving the road for subdivision approval, ultimate subdivision approval would involve encroachments in the wetlands area, the Great Brook area.”

At the October 3,1989 public hearing, Judy Slayback, the neighbors’ environmental expert, indicated that it was impossible to determine the environmental impact of Manatuck’s project without considering the potential road improvements. Manatuck disputed Slayback’s testimony and stated repeatedly that the road issue was irrelevant to the commission’s consideration of its present application, noting that this was a planning and zoning, not a wetlands concern. Manatuck pointed out that if the town plan and zoning commission later determined that Morehouse Lane did need improvement, Manatuck or the town, or both, would be before the wetlands agency again to obtain permission for the road reconstruction. We note with interest that on April 10, 1990, the Fairfield town plan and zoning commission voted to deny Manatuck’s subdivision application in connection with the development of lots two and three principally because the existing access road, Morehouse Lane, is “totally inadequate to serve additional homes.” Seven of the eight reasons for the zoning commission’s denial address the deteriorated condition of Morehouse Lane. The result of that denial is that extensive reconstruction of Morehouse Lane — whether it is undertaken by Manatuck or the town of Fairfield — is inevitable if Manatuck is ever to build its proposed ten lot subdivision. A copy of the zoning commission’s decision was part of the record before the trial court when it rendered its decision.

The foregoing clearly demonstrates that, contrary to the decision of the trial court, the need to make improvements to Morehouse Lane was not merely speculative. The trial court correctly noted that “the planning and zoning commission, not the inland wetlands commission, has the authority to require the widening of existing roads or the construction of new roads to service a subdivision.” In deciding whether to approve or to deny Manatuck’s application, however, the commission was not required to disregard the fact that these improvements inevitably would have to be made in order to accommodate a ten lot subdivision.

Manatuck has based much of its argument on its claim that Morehouse Lane is a public road, and therefore such improvements are not Manatuck’s responsibility. The trial court determined, without evidence before it, that Morehouse Lane was, in fact, a public road. On that basis, the trial court further determined that the commission could not properly base its decision on any future improvements to the road because these improvements would be the responsibility of the town of Fairfield. We need not decide whether More-house Lane was a public road. Under the Fairfield regulations, the commission acted within the scope of its authority in determining that inevitable road construction related to the development of Manatuck’s subdivision-regardless of whether it was performed by Manatuck or the town of Fairfield — would have an adverse impact on the wetlands area and necessitated a postponement in the development of some of the lots.

To adopt Manatuck’s view would inhibit an inland wetlands agency from considering all pertinent “facts and circumstances” related to the “suitability or unsuitability of [a project] to the area for which it is proposed.” General Statutes § 22a-41. On the basis of the facts of this case, we do not agree that the commission was required to forestall consideration of the impact of road improvements on the wetlands area, given that it was undisputed that such improvements inevitably would have to be made.

There is no question that activities occurring outside a wetlands area may have a significant adverse impact on the wetland itself. Mario v. Fairfield, 217 Conn. 164, 170, 585 A.2d 87 (1991); Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 561, 552 A.2d 796 (1989); see T. Tondro, Connecticut Land Use Regulation, p. 130. Obviously, pollution of wetlands can be “caused” by actions on parcels of land adjacent to and perhaps even remote from designated wetlands areas.

The legislature, in enacting General Statutes § 22a-42, has given municipalities a broad grant of authority to carry out and effectuate the purposes of the Inland Wetlands and Watercourses Act. To interpret the act as precluding the commission from taking into consideration all of the facts and circumstances related to a wetlands permit “would clearly work to undermine some of the basic purposes of the act, which seeks not only to protect the state’s inland wetlands and water courses, from pollution, but also to preserve their very existence and protect them from any disturbance, whether polluting or not, which could affect their ‘conservation, economic, aesthetic, recreational’ or other values. See General Statutes § 22a-36.” Aaron v. Conservation Commission, supra, 551.

Apart from the road concerns, there was evidence in the record that lot development activities alone would have an impact on the wetlands. While Manatuck provided certain sediment and erosion control specifications and proposed installation of antitracking aprons, downslope silt fencing and stockpiled areas, as well as seeding and mulching along exposed surfaces, the commission concluded that these measures were not sufficient to counteract the anticipated impact on the wetlands area. With respect to storm water runoff associated with development, there was conflicting evidence in the record pertaining to its harmful effects. Manatuck proposed using roof leader dry wells. The commission, on the basis of its staff recommendations, determined that these would not sufficiently compensate for the runoff. The commission found that the application contained numerous regulated activities involving runoff, drainage and flooding that would adversely affect the wetlands.

The trial court noted that the commission relied heavily on its staff report, which contradicted an earlier staff report prepared in connection with Manatuck’s first application. The earlier report had recommended approval of all ten lots, with certain specified conditions. Between the time the first and second reports were prepared, the Fairfield conservation director wrote to Manatuck’s attorney to explain that he had examined the proposal more thoroughly in connection with the second application, and now believed the proposal would have “significant adverse effect on the regulated area.” The commission was not obligated to adopt the conclusions of its original staff report, particularly where the commission did not adopt it in the first place; the earlier application was denied even though the staff report had recommended approval.

Manatuck argues that the court correctly concluded that the commission had improperly based its decision entirely on the staff report and had disregarded the only expert testimony submitted, which favored the proposed ten lot subdivision. Manatuck relies on Feinson v. Conservation Commission, supra, and Tanner v. Conservation Commission, 15 Conn. App. 336, 544 A.2d 258 (1988). In Feinson, our Supreme Court concluded that “a lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view.” Feinson v. Conservation Commission, supra, 429; Milardo v. Inland Wetlands Commission, 27 Conn. App. 214, 222, 605 A.2d 869 (1992).

In the present case, the commission’s denial, in part, of the requested wetlands permit was supported by the report submitted by the soil erosion and sediment control officer and conservation enforcement officer of the commission, along with the testimony of neighbors as to existing flooding problems at the site. Manatuck was afforded a timely opportunity to rebut the evidence submitted. The report was part of the record in the application; it was known to Manatuck and available for rebuttal. “An agency decision must be based on reliable evidence made public and the applicant must have an opportunity to respond to agency concerns.” Kaeser v. Conservation Commission, 20 Conn. App. 309, 314, 567 A.2d 383 (1989). Nonexperts may offer reliable and substantial evidence. Id., 315. “Moreover, there is a ‘presumption that public officials acting officially properly performed their duties.’ Aczas v. Stuart Heights, Inc., 154 Conn. 54, 58-59, 221 A.2d 589 (1966). This encompasses the presumption that the public official is qualified in the field wherein his or her official duties lie until the contrary is shown. State v. Main, 69 Conn. 123, 140, 37 A. 80 (1897).” Kaeser v. Conservation Commission, supra, 320-21 (Berdon, J., concurring).

The court concluded that the staff report, on which the commission relied in denying the application, was tainted and not reliable evidence. In so doing, the trial court substituted its judgment for that of the commission. “An administrative agency is not required to believe any witness, even an expert. . . . Nor is an agency requested to use in any particular fashion any of the materials presented to it as long as the conduct of the hearing is fundamentally fair.” (Citations omitted.) Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980).

The reasons given by the commission for the approval in part and denial in part of Manatuck’s application for a permit were supported by substantial evidence. Nothing in the record leads us to conclude that the commission’s denial was illegal, arbitrary and capricious, or fundamentally unfair. The commission properly exercised its discretion in acting on Manatuck’s application.

The judgment in the first case (Docket No. 10538) is reversed and the case is remanded to the trial court with direction to render judgment dismissing Manatuck’s appeal. The judgment in the second case (Docket No. 10539) is affirmed.

In this opinion the other judges concurred.

       The commission is the duly designated municipal agency entrusted with enforcement of the Wetlands and Watercourses Act, General Statutes §§ 22a-28 through 22a-45.

       Section 2.11 of the Fairfield inland wetlands and watercourses regulations defines regulated activity as “any operation within or use of a wetland or watercourse involving removal, relocation or deposition of material, or any obstruction, construction, alteration; or pollution, of such wetland or watercourse, except as otherwise indicated in Section 3 of these Regulations.” (Section 3 specifies certain permitted uses and operations that are not involved in the present appeal.)

       The commissioner of environmental protection was named as a defendant in the original appeal but is not a party to the present appeal.

       General Statutes § 22a-41 provides: “(a) In carrying out the purposes and policies of [the Inland Wetlands and Watercourses Act], including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action;
      “(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      “(6) The suitability or unsuitability of such activity to the area for which it is proposed.
      “(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”

       “6A The Agency shall consider the following in making its final decision on a permit application:
      6.1.1 All evidence offered at or before any public hearing.
      6.1.2 Any reports from other commissions and/or federal or state agencies, including the Fairfield County Soil and Water Conservation District and/or the Connecticut Department of Environmental Protection.
      6.1.3 Additional requested information.
      6.1.4 All relevant facts and circumstances, including but not limited to the following:

        He * *
      6.1.4.6 The suitability of such action to the area for which it is proposed. . . .”

       “4.2 By the terms of the definition of a regulated activity the Agency shall regulate only those activities which directly or indirectly:
      4.2.1 remove material from;
      4.2.2 relocate material on;

        4.2.3 deposit material in;
      4.2.4 construct;
      4.2.5 obstruct;
      4.2.6 alter, or
      4.2.7 pollute inland wetlands and watercourses.”

       “I have to state for the record that in reviewing application 89 No. 7, I had to, in good conscience, evaluate, the fact that in order to build this subdivision, you have to have standard roads to access the site, sites. You have to have drainage improvements. You may need to have storm water detention or retention facilities. I don’t know. That’s more of an engineering issue in terms of whether those latter needs are met. So, therefore, many of the ways that I approached this analysis was keeping in mind that the impacts of this proposed application 89 No. 7 are not just those from the ten lots and the million or 2 million dollar houses, but also what is needed to get to those lots. As was previously mentioned, the existing Morehouse Lane spans the width from 10 to 16 feet throughout its length. It is subject to anywhere from a few inches of flooding, probably on an annual basis, to up to 5 feet of flooding during the projected 100-year design storms. It also crosses the Great [Brook] wetland watercourse corridor. There are many concerns and issues that are inherent with any road improvements which will have to be made in order to build the ten lots. You cannot evaluate the building of the ten lots without consideration of those issues.”

       We render no opinion on the propriety of the zoning commission’s decision, but refer to it only to reinforce the point that inadequate subdivision access was not, contrary to the trial court’s conclusion, a matter of “mere speculation.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Claudia Emerick v. Roger Emerick
    (10682)
    Norcott, Landau and Heiman, Js.

      Argued June 9
    decision released September 1, 1992

      Roger Emerick, pro se, the defendant (appellant).

      Lloyd Frauenglass filed a brief for the appellee (plaintiff).
   Heiman, J.

The defendant, Roger Emerick, appeals from the trial court’s judgment denying his motion to modify his child support payments and the trial court’s finding of contempt. He claims that the trial court improperly (1) enforced a prior child support order, (2) awarded counsel fees to the plaintiff, (3) held a hearing on the plaintiffs motion for contempt without advising the defendant of his right to counsel, (4) refused to allow him a continuance for the purpose of securing counsel, (5) enforced a prior child support order even though the court’s ability to enforce prior orders regarding visitation was foreclosed by the plaintiff’s actions, (6) refused to permit the judge who presided over the underlying dissolution action to testify as to the meaning of certain orders entered by him, and (7) denied his application for costs. We reverse the trial court’s finding of contempt, together with the orders relating to it, and affirm the judgment in all other respects.

The history of the parties’ marriage and the course of the litigation leading up to the judgment dissolving that marriage is set forth in this court’s opinion resolving the parties’ appeals from the judgment dissolving the marriage and entering consequential orders. See Emerick v. Emerick, 5 Conn. App. 649, 502 A.2d 933, cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986); see also Emerick v. Emerick, 17 Conn. App. 811, 551 A.2d 36 (1988) (per curiam), cert. denied, 210 Conn. 811, 556 A.2d 609 (1989) (the defendant’s appeal from numerous postappeal and postjudgment motions involving claims for modification of custody, financial awards, counsel fees and in defense of contempt orders regarding his failure to comply with financial orders of the dissolution court). When the court dissolved the parties’ marriage, it ordered the defendant to pay the plaintiff $115 per week for the support of their one minor child. The defendant’s failure to comply with this child support order generated the motions at issue in this case.

I

We turn first to the defendant’s claim that the trial court improperly held him in contempt of court because it failed to advise him of his right to counsel in a contempt proceeding in which he faced potential incarceration, and, in the event that he was found to be indigent, to appointed counsel. He asserts that the trial court’s failure to advise him of these rights requires that we reverse the trial court’s finding of contempt as well as its finding that an arrearage existed with respect to the child support payments. We agree.

“Civil contempt is ‘conduct directed against the rights of the opposing party. Bessette v. W. B. Conkey Co., 194 U.S. 324, 328, 24 S. Ct. 665, 48 L. Ed. 2d 997 [1904]; Welch v. Barber, [52 Conn. 147, 157 (1884)].’ McTigue v. New London Education Assn., 164 Conn. 348, 352, 321 A.2d 462 (1973).” Connolly v. Connolly, 191 Conn. 468, 482, 464 A.2d 837 (1983). One of the remedies available to a court that finds a party in civil contempt due to that party’s failure to pay court ordered support or alimony is the confinement of the contemnor until the contempt is purged. See General Statutes § 46b-87.

The due process clause of the fourteenth amendment to the United States constitution guarantees the right to appointed counsel to any indigent civil contemnor who might be incarcerated. Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983); United States v. Bobart Travel Agency, Inc., 699 F.2d 618, 620 (2d Cir. 1983); Mastin v. Fellerhoff, 526 F. Sup. 969, 973 (S.D. Ohio 1981); see also Lake v. Speziale, 580 F. Sup. 1318, 1341-42 (D. Conn. 1984). This right to counsel is merely a logical extension of the right to counsel in criminal cases in which an accused is incarcerated. Ridgway v. Baker, supra; United States v. Bobart Travel Agency, Inc., supra; see also Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); Gideon v. Wainright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). The courts’ recognition of a due process right to counsel in civil contempt cases in which the contemnor might be imprisoned reflects a judgment that “it is the defendant’s interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments’ right to counsel in criminal cases, which triggers the right to appointed counsel . . . ." Mastin v. Fellerhoff, supra; see also Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981); In re Gault, 387 U.S. 1, 34-42, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1966); Ridgway v. Baker, supra. Thus, cases discussing the nature of the sixth amendment right to counsel in criminal cases are instructive regarding the scope of the fourteenth amendment right to counsel in civil contempt cases in which a litigant might be incarcerated.

The trial court has an obligation to inform the potential contemnor of his right to appointed counsel to ensure that any waiver of the right to counsel is intelligent and competent. In re Jessen, 738 F. Sup. 960, 963 (W.D.N.C. 1990); see Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). “The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake— is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining Whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear on the record.” Johnson v. Zerbst, supra.

Practice Book § 484A implements the right to court appointed counsel in civil contempt proceedings. It provides in pertinent part: “A person who is before the court in a civil contempt proceeding involving the failure to comply with a court order in a family relations case and who faces potential incarceration shall be advised of his right to be represented by counsel and his right to court appointed counsel if he is indigent.” This rule imposes two duties on the trial court. First, each person appearing before the court in a civil contempt proceeding must be advised of his or her right to counsel. Second, counsel must be appointed for each indigent potential contemnor who might be incarcerated if found in contempt.

Here, the trial court did not advise the defendant of either his right to be represented by counsel or his right to appointed counsel in the event that he was indigent. The trial court also failed to state on the record that it had eliminated incarceration as a possible penalty in the event that the defendant was adjudicated in contempt. The trial court’s failure so to advise the defendant ran afoul of both the fourteenth amendment to the United States constitution and Practice Book § 484A.

Where a trial court has failed to inform a defendant of his constitutional right to appointed counsel, we will not attempt to discern whether the error was harmless. Such failure is reversible error. See Johnson v. Zerbst, supra; In re Jessen, supra; see also Argersinger v. Hamlin, supra (no harmless error analysis where a criminal defendant was deprived of his constitutional right to counsel); Gideon v. Wainright, supra (no harmless error .analysis where a criminal defendant was deprived of his constitutional right to counsel). The failure to advise the defendant properly is fatal not only to the finding of contempt, but also to the orders related thereto: the order for the payment of counsel fees arising out of the finding of contempt, the finding that an arrearage existed and the order to pay the arrearage.

II

We turn next to the defendant’s claim that the trial court improperly ordered the enforcement of the support order. Reduced to its essence, the defendant’s claim appears to be that the plaintiff’s removal of their daughter to Brazil, which he claims was in violation of the dissolution court’s orders, had two legal consequences: it required the trial court to grant his motion to modify his child support payments and relieved him of his obligation to comply with the dissolution court’s child support order. We are not persuaded by his arguments.

The following background is necessary to resolve the defendant’s claims. At the hearing on the plaintiff’s motion for contempt, the defendant claimed that in September, 1985, the plaintiff willfully removed their child to Brazil in violation of the dissolution court’s order that neither party permanently remove the child from Connecticut. He also claimed that the removal of the child to Brazil violated the dissolution court’s order allowing a party to remove the child from Connecticut only when such removal does not interfere with the court ordered visitation. He argues that the plaintiff’s violation of the dissolution court’s orders excuses him from complying with his support obligation. A close reading of the judgment file, as corrected by the trial court after remand from this court, however, does not support the defendant’s assertion that a specific order forbidding the removal of the child from the state of Connecticut exists. Although the original judgment provided that removal of the child from Connecticut would effectuate a change of custody, that clause in the judgment was stricken in accordance with the remand from this court. See Emerick v. Emerick, supra, 5 Conn. App. 649. The corrected judgment merely provides that during periods of visitation the child may be removed for travel with the parent, that the child may be removed from Connecticut for any other periods that do not conflict with either the other party’s visitation rights or the child’s education and that the state of Connecticut shall retain jurisdiction over all matters concerning the dissolution, including matters of custody. No specific prohibition exists barring the child’s permanent removal from Connecticut.

We turn first to the trial court’s ruling on the defendant’s motion for modification of support. The defendant claims that the plaintiff’s removal of their child to Brazil constituted a substantial change in circumstances that required the trial court to modify his support payments. See General Statutes § 46b-86. He admits, in his brief, that he offered the trial court no evidence regarding the child’s financial needs since being taken to Brazil. The burden is on the party seeking modification to show the existence of a substantial change in circumstances. Bunche v. Bunche, 180 Conn. 285, 290, 429 A.2d 874 (1980). Further, the trial court has broad discretion in determining whether a substantial change in circumstances exists. Palazzo v. Palazzo, 9 Conn. App. 486, 488-89, 519 A.2d 1230 (1987). Here, the trial court acted well within its discretion when it determined that the mere fact that the defendant’s daughter has moved to Brazil did not justify a modification of his support payments. See Raymond v. Raymond, 165 Conn. 735, 742, 345 A.2d 48 (1974).

The defendant next claims that the plaintiff’s failure to comply with the dissolution court’s orders regarding the child’s residence and his rights to visitation required the trial court to modify his support payments. We need not decide whether the plaintiff violated any orders of the dissolution court. “It has never been our law that support payments were conditioned on the ability to exercise rights of visitation or vice versa.” Raymond v. Raymond, supra. Rather, “[t]he duty to support is wholly independent of the right of visitation.” Id. Thus, even if the plaintiff had violated certain orders of the dissolution court regarding the defendant’s right of visitation, the defendant would not have been entitled to a modification of support on that basis.

The defendant next claims that the trial court should not have enforced the dissolution court’s support orders because the plaintiff was equitably estopped from collecting child support. “ ‘Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, ... as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse.’ 3 Pomeroy, Equity Jurisprudence (5th Ed. 1941) § 804, p. 189; 28 Am. Jur. 2d, Estoppel and Waiver § 76; accord Spear-Newman, Inc. v. Modern Floors Corporation, 149 Conn. 88, 91, 175 A.2d 565 (1961); Tradesmens National Bank of New Haven v. Minor, 122 Conn. 419, 424, 190 A. 270 (1937); MacKay v. Aetna Life Ins. Co., 118 Conn. 538, 548, 173 A. 783 (1934). Its two essential elements are that one party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act on that belief, and that the other party, influenced thereby, must change his position or do some act to his injury which he otherwise would not have done. Dickau v. Glastonbury, 156 Conn. 437, 441, 242 A.2d 777 (1968); Pet Car Products, Inc. v. Barnett, 150 Conn. 42, 53, 184 A.2d 797 (1962); see Bealle v. Nyden’s, Inc., 245 F. Sup. 86, 93-94 (D. Conn. 1965); 28 Am. Jur. 2d, Estoppel and Waiver § 27, p. 627.” Bozzi v. Bozzi, 177 Conn. 232, 241-42, 413 A.2d 834 (1979).

The trial court rejected the defendant’s equitable estoppel claim, finding that the defendant’s decision not to pay child support was voluntary and was based on his view that removal of his child to Brazil was illegal. Thus, the trial court concluded, the defendant did not act in reliance on the plaintiff’s acts. Our review of the record discloses that this factual determination was not clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Thus, the defendant cannot prevail on this claim.

The defendant also claims that the plaintiff was guilty of laches in waiting approximately six years from the time that the defendant ceased complying with the support order before attempting to enforce it. This, he claims, precluded the trial court from enforcing his support obligation. “Laches consists of two elements. ‘First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.’ Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955); Kievman v. Grevers, 122 Conn. 406, 411, 189 A. 609 (1937); 27 Am. Jur. 2d, Equity § 152. The mere lapse of time does not constitute laches; Finucane v. Hayden, 86 Idaho 199, 206, 384 P.2d 236 (1963); 27 Am. Jur. 2d, Equity § 163; unless it results in prejudice to the defendant; see Leary v. Stylarama of New Haven, Inc., 174 Conn. 217, 219, 384 A.2d 377 (1978); Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969); as where, for example, the defendant is led to change his position with respect to the matter in question. Pukas v. Pukas, 104 R.I. 542, 545-46, 247 A.2d 427 (1968).” Bozzi v. Bozzi, supra, 239.

The trial court determined that in view of the “sequence of events, the number of different lawsuits [and] their nature and volatility,” the plaintiff’s delay in seeking to enforce the defendant’s support obligation was excusable. Further, the trial court found that the defendant was not prejudiced by the delay because he decided not to pay child support at the time that the child was removed from Connecticut. Our review of the record indicates that the trial court acted well within its broad discretion in making these findings. See Bozzi v. Bozzi, supra, 240.

The defendant also asserts that the trial court improperly issued a wage execution to ensure the payment of future support. Again, he premises his objection on the claim that the plaintiff’s actions should preclude her from collecting support. We have already pointed out that our law is to the contrary. See Raymond v. Raymond, supra; Bozzi v. Bozzi, supra. In addition, the issuance of a wage execution is mandated by General Statutes § 52-362 (b).

The defendant next claims that the trial court should not be permitted to enforce the order of support by finding him in civil contempt because, as explained above, he feels that the plaintiffs malfeasance excused him from complying with the support order in the first instance. Thus, he argues, he cannot be held in contempt due to a failure to comply with an unenforceable order. As we have noted, however, the support order was enforceable despite the plaintiffs actions because the right of visitation and the obligation of support are wholly independent. Bozzi v. Bozzi, supra, 237-38; Raymond v. Raymond, supra.

For this reason, his claim that the trial court improperly failed to modify his support payments retroactively also must fail. Indeed, retroactive modification of an existing support order also is prohibited by General Statutes § 46b-86 (a). The trial court properly concluded that it was obligated to enforce the dissolution court’s support orders.

The defendant can prevail on none of those claims.

Ill

The defendant next asserts that the trial court violated his civil rights by enforcing the support order because the enforcement of the orders concerning custody and visitation were unenforceable by virtue of the plaintiff’s actions. The defendant provides us with no legal authority, and we know of none, for the proposition that these or similar circumstances implicate the defendant’s civil rights. Further, as we have already stated, orders regarding visitation and support are mutually independent. The fact that a party is deprived of the right of visitation does not excuse a failure to pay support. See Bozzi v. Bozzi, supra; Raymond v. Raymond, supra. This claim is meritless.

IV

The defendant claims that the trial court improperly refused to permit the judge who presided over the dissolution proceedings to testify as to the meaning of certain orders he entered regarding the child’s residence and the defendant’s support obligation and visitation rights. We are unpersuaded.

“The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment.” (Citations omitted; internal quotation marks omitted.) Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985). Our inquiry in interpreting the meaning of judgments is limited to that which is either expressed or implied clearly. Id., 197. Simply put, the issue is not the trial court’s unstated intention but the intention of the trial court as gathered from all parts of the written judgment. Id., 196-97. Thus, the trial court properly ruled that the testimony of the judge who presided over the dissolution proceedings regarding his intent in entering the orders could not be considered in construing the dissolution judgment, and properly excluded that testimony on this point.

Y

The defendant next claims that the trial court improperly ruled on the parties’ motions after hearing a settlement offer made by the defendant in open court. We disagree.

The following facts are necessary to resolve this claim. On May 17, 1991, at a hearing before the trial court, the defendant requested a settlement conference to be held in chambers. The trial court denied his request and told the defendant that it would hear any settlement offer on the record. When the defendant protested, the trial court assured him that it would not penalize him for making any such offer. The defendant then articulated a settlement offer, but withdrew the offer after a colloquy with the court.

The defendant claims that the trial court should not have ruled on the parties’ motions after hearing his settlement offer. He further claims that the trial court penalized him for making the offer.

In arguing that the trial court should not have ruled on the motions after hearing the settlement offer, the defendant relies exclusively on Krattenstein v. G. Fox & Co., 155 Conn. 609, 236 A.2d 466 (1967). In Krattenstein, our Supreme Court held that, although the proper course is for a judge to decline to preside over a trial where that judge also has conducted a settlement conference between the parties, the parties waived any objection to such procedure by failing to make a motion that the judge disqualify himself. Thus, even if Krattenstein applies to hearings on postjudgment motions, and even if it applies where a settlement offer is made on the record in open court, matters that we do not decide today, the defendant cannot prevail because he, like the plaintiffs in Krattenstein, failed to make a motion to disqualify the trial judge. Claims alleging judicial bias are deemed to have been waived where they were not raised at trial by a motion for disqualification. Cahn v. Cahn, 26 Conn. App. 720, 732, 603 A.2d 759 (1992), cert. granted on other grounds, 221 Conn. 924, 608 A.2d 688 (1992).

The defendant’s unsupported assertion that the trial court penalized him for his settlement offer must be rejected as well. The appellant bears the burden of supplying us with a record adequate to review his claims. Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982). The defendant’s failure either to make a motion for disqualification or otherwise to develop the record to support his allegation precludes us from considering the merits of his claim. See Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983).

VI

Finally, the defendant claims that the trial court improperly denied his motion for costs. We disagree.

The defendant’s motion for costs is predicated on his interpretation of the dissolution court’s corrected judgment. The defendant misinterprets the corrected judgment, which provides for an award of costs if any party initiates a proceeding without the dissolution court’s permission in a jurisdiction other than Connecticut. Because the proceedings in this case were instituted in Connecticut, the trial court properly denied the defendant’s motion for costs.

The trial court’s finding of contempt, the order for the payment of counsel fees arising out of the finding of contempt, the finding that an arrearage existed and the order to pay the arrearage are reversed and the case is remanded for a new contempt hearing in accordance with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The rule apparently was adopted in response to the United States District Court’s decision in Lake v. Speziale, 580 F. Sup. 1318 (D. Conn. 1984). Lake involved an application for a preliminary injunction brought by a class of persons who were or would have been facing incarceration after being adjudicated in civil contempt for the failure to comply with support orders. The defendant class consisted of the judges of the Connecticut Superior Court. The injunction sought by the plaintiffs would have required the judges of the Superior Court “to advise each and all members of the putative plaintiff class of their right to counsel and of their right to appointed counsel if found to be indigent in such civil contempt proceedings.” Id., 1320. The plaintiffs’ claim was based primarily on the due process clause of the fourteenth amendment to the United States constitution. On February 22, 1984, the court, after concluding that the plaintiffs had established a “high probability” of success on the merits of their case, granted the plaintiffs’ application. Id., 1340-42.
      Practice Book § 484A was adopted effective October 1, 1984, and, on July 9, 1985, the United States District Court vacated the preliminary injunction.

       General Statutes § 52-362 (b) provides in pertinent part: “The superior court . . . shall issue an order for withholding pursuant to this section against the earnings of an obligor to enforce a support order when the support order is entered or modified or when the obligor is before the court in an enforcement proceeding. . . .”

       Although we have reversed the trial court’s finding of contempt, we review this claim because it is likely to arise on remand. See Falby v. Zarembski, 221 Conn. 14, 26-27, 602 A.2d 1 (1992).

       General Statutes § 46b-86 (a) provides in pertinent part: “No order for periodic payment of . . . support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of . . . support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”


author: Dupont, C. J.

text:
    People’s Bank v. Bilmor Building Corporation et al.
    (10642)
    Dupont, C. J., Heiman and Freedman, Js.
    Argued June 3
    decision released September 1, 1992

      Karen P. Blado, with whom, on the brief, was Alyce L. Raboy, for the appellant (plaintiff).

      Dominic J. Ferraina, for the appellees (defendants).
   Dupont, C. J.

The principal issue to be decided in this mortgage foreclosure action is whether a prejudgment attachment may be obtained, as additional security, to secure recovery of an anticipated deficiency judgment when there is an expectation that the property securing the debt may not be sufficient to satisfy the debt. We conclude that such an attachment may be obtained upon the requisite determination of probable cause.

The salient facts are not in dispute. On September 14, 1989, the defendant Bilmor Building Corporation (Bilmor), through its president, the defendant Eamon F. Moran, executed a promissory note in favor of the plaintiff, People’s Bank (bank), in the amount of $650,000. Moran personally guaranteed payment of the debt. As further security for the debt, Bilmor contemporaneously mortgaged to the plaintiff its interest in certain real property located in the town of Bloomfield and the mortgage was subsequently recorded on the Bloomfield land records. In December, 1990, Bilmor and Moran defaulted on the note by failing to make timely payments under the terms of the note.

The plaintiff instituted the present action on July 17, 1991, seeking inter alia, foreclosure of the mortgage, a deficiency judgment against the defendants, and money damages. In conjunction with this action, the plaintiff, through its attorney, issued a $705,000 ex parte prejudgment attachment against Bilmor’s interest in two properties located in the town of Windsor. The complaint alleged that a lis pendens relating to these properties had also been recorded on the land records. The attachment was issued and recorded on July 25,1992, without prior notice or hearing and without any action by a court, pursuant to a clause in the note that expressly waived the defendants’ rights to a notice and hearing, as permitted by General Statutes § 52-278f.

Bilmor and Moran subsequently, on August 21,1991, moved to dissolve the prejudgment attachment. At the scheduled hearing on the motion, the defendants claimed that the attachment was improper because it was filed without a court hearing in violation of law, that the attachment was based on the assumption that a deficiency judgment would enter in the foreclosure action, that no deficiency had yet been found to exist, and that the sole remedy in an action to foreclose a mortgage is against the real property liened by the mortgage. The motion to dissolve was granted on September 16,1991, from the bench by the court, A. Aron-son, J. A memorandum of decision was later filed on November 22, 1991.

After the defendants moved to dissolve the ex parte attachment, the plaintiff, on September 10,1991, filed an application for a prejudgment remedy that was based not on General Statutes § 52-278f, but on § 52-278d. A scheduled hearing on the application was held on October 7,1991, and the application was denied by the same court on October 25, 1991. Pursuant to the plaintiff’s motion for articulation, the trial court issued a memorandum of decision as to the denial of the application on January 14, 1992.

On December 2,1991, the trial court, Freed, J., rendered a judgment of strict foreclosure against the mortgaged property. Both defendants had previously been defaulted for failure to disclose a defense. The court found the total amount of the debt, including appropriate fees, to be $705,890.03 and the value of the property to be $605,000. The law days passed without redemption and title to the Bloomfield property vested in the plaintiff. After the judgment of strict foreclosure was entered, the plaintiff moved for a deficiency judgment, which was granted on February 10,1992, by the trial court, Salter, J.

The trial court, Aronson, J., dissolved the ex parte attachment and denied the application for an attachment because it concluded, as a matter of law, that a mortgagee may not “obtain additional security for a mortgage debt based solely on an expectation that the property securing the debt may be inadequate” and that, until a deficiency judgment is rendered, there can be no probable cause to support a plaintiff’s application for a prejudgment remedy or the plaintiff’s ex parte real estate attachment. At the hearing on the defendants’ motion to dissolve the attachment, there were representations by the attorneys for the parties as to the amount of the debt and the value of the property as of that date. At the hearing on the plaintiff’s application for a prejudgment remedy, the plaintiff offered to present testimony of a bank official that the debt exceeded $690,000 and the testimony of a real estate appraiser that the fair market value of the property was $610,000. The plaintiff also relied on the affidavit filed with the § 52-278Í attachment to establish probable cause. The defendants conceded that the plaintiff’s figures were accurate. The court, however, allowed no evidence because of its view of the law.

The determination of a deficiency, according to the trial court, could be made only following a hearing on a motion for a deficiency judgment, which could only occur after a judgment of foreclosure had been rendered. Therefore, because the existence or amount of any deficiency had not yet been determined as of the dates of the hearings on the motion to dissolve the prejudgment remedy attachment and on the application for a prejudgment remedy, the former was granted, and the latter denied. The memoranda of decision as to both the motion and application are virtually identical as to their rationale.

The bank appealed from the dissolution of the attachment and from the denial of its application for a prejudgment remedy and filed a motion to stay the dissolution of the attachment pursuant to General Statutes § 52-278l (c). The trial court granted the plaintiffs motion to stay the dissolution of the prejudgment attachment.

The resolution of the appeal from the granting of the defendants’ motion to dissolve the attachment and the resolution of the appeal from the denial of the plaintiff’s application to obtain an attachment require the same analysis. We, therefore, discuss them together unless otherwise noted.

The plaintiff claims that the prejudgment attachment should not have been dissolved because it was a legally allowable remedy in a mortgage foreclosure action that also sought a deficiency judgment and damages. The plaintiff further argues that it should have been allowed to present evidence relating to the merits of whether probable cause existed for the attachment. The plaintiff also claims that the court improperly denied its application for a prejudgment remedy.

The defendants assert that the “contingent” nature of a deficiency judgment, coupled with General Statutes §§ 49-1,49-14, and 49-28, has the net effect of prohibiting prejudgment attachments to secure recovery of an anticipated deficiency judgment in foreclosure cases. The foundation of the defendants’ argument is that a deficiency judgment does not “accrue” unless and until an ascertainable dollar amount of the deficiency is established at the time of foreclosure, and that, until then, the deficiency judgment is merely contingent. The defendants maintain that the deficiency judgment is contingent until the time of the judgment of foreclosure for two reasons. The first is that the foreclosing mortgagee is entitled to a deficiency judgment only if he applies for it “within thirty days after the time limited for redemption has expired.” General Statutes § 49-14; Practice Book § 528. The second reason is that the amount of the deficiency is uncertain until the completion of the foreclosure hearing, and, in fact, there may be no deficiency at all. The defendants use this allegedly contingent quality as the springboard for their analysis.

The defendants further assert that because the deficiency judgment had not yet “accrued” at the time of the prejudgment attachment, the attachment cannot be predicated on the anticipated deficiency but must, by implication, be grounded on the note evidencing the underlying debt or obligation.

In order to resolve the issue of whether a foreclosing mortgagee may, at the beginning of a foreclosure action, take advantage of the statutes relating to prejudgment remedies against property of a mortgagor that is unencumbered by the mortgage, in which action the mortgagee also seeks a deficiency judgment, we must first resolve whether the cause of action for a deficiency judgment existed at the time the suit was instituted.

“A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and of that delict constitute the cause of action.” (Citations omitted; internal quotations marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 546-47, 590 A.2d 914 (1991); Levine v. Town Plan & Zoning Commission, 25 Conn. App. 199, 207, 594 A.2d 9 (1991). Although a single group of facts may give rise to several kinds of relief, there is still one single cause of action. Vakalis v. Kagan, 18 Conn. App. 363, 367, 557 A.2d 1285 (1989).

At the time of the commencement of this foreclosure action, a cause of action for a deficiency judgment existed. This is so because the defendants had already defaulted in payment of the note, and that delict had already caused the harm to the plaintiff, namely, whatever the loss was that was occasioned by the deficiency between the fair market value of the property and the balance, plus interest, due on the note. The same group of facts here gave rise to different kinds of relief, namely, a foreclosure, payment on a note and a deficiency judgment. These different kinds of relief do not alter the fact that there was but one cause of action at the inception of suit; Vakalis v. Kagan, supra, 367-68; and that cause of action included a statutory right to a deficiency judgment pursuant to General Statutes § 49-14.

It is well established that a mortgagee has two separate and distinct causes of action against a defaulting mortgagor. A mortgagee may pursue an action at law for the amount due on the promissory note, or it may pursue its remedy in equity and foreclose on the mortgage. Hartford National Bank & Trust Co. v. Kotkin, 185 Conn. 579, 581, 441 A.2d 953 (1981). The mortgagee may also pursue both of these remedies simultaneously in one consolidated foreclosure suit. Id. The only restriction on the mortgagee’s election of remedies is contained in General Statutes § 49-1, which provides that “[t]he foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure . . . .” General Statutes § 49-14 furnishes an exception to § 49-1 by providing that, “[a]t any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment.” Id. Thus, a mortgagee who elects to pursue his right of foreclosure of a mortgage and his right to obtain payment of a promissory note may also, in the same action, seek a deficiency judgment. When a deficiency judgment is sought, the plaintiff may recover the difference between the amount due on the underlying debt and the amount received upon foreclosure. First Bank v. Simpson, 199 Conn. 368, 371, 507 A.2d 997 (1986).

In this case, the plaintiff sought and obtained a judgment of foreclosure. As the amount due on the underlying debt exceeded the value of the property upon strict foreclosure, the plaintiff was entitled, within thirty days of the foreclosure, to seek a deficiency judgment in accordance with § 49-14. Even though the plaintiff was entitled to obtain a deficiency judgment in the foreclosure suit, it would be able to recover the amount of the deficiency judgment only if the defendants had other assets left to satisfy that judgment. The plaintiff, by its prejudgment attachment, attempted to secure a position superior to that of other attaching creditors. The plaintiff seeks to have its deficiency judgment or any judgment lien obtained pursuant to the deficiency judgment relate back to the date of the attachment.

The first sentence of General Statutes § 52-279 authorizes the granting of attachments “upon all complaints containing a money demand against the estate of the defendant, both real and personal.” The statute then details specific instances when such attachments are not permitted. None of the enumerated exceptions proscribes the use of attachments in foreclosure actions. It is a well established maxim of statutory construction that when a statute enumerates exceptions to a stated general proposition, anything not excepted is conclusively included. State v. Kish, 186 Conn. 757, 443 A.2d 1274 (1982).

There is also no exception for foreclosure actions in the general prejudgment remedy statute. General Statutes §§ 52-278a through 52-278h. General Statutes § 52-278b provides for prejudgment remedies in “any action at law or equity.” Thus, neither the attachment statute nor the prejudgment remedy statute specifically prohibits the granting of a prejudgment attachment in a foreclosure action.

Similarly, there is nothing in those statutes that specifically prohibits the granting of a prejudgment attachment to secure the payment of a deficiency judgment. If the legislature intended to prevent the use of prejudgment attachments to secure the payment of deficiency judgments in foreclosure cases, then presumably it would have done so. It has not.

The note signed by the defendants clearly anticipated that a prejudgment remedy might be sought on property other than the mortgaged property in order to secure the debt. The defendants waived the right to prior notice of and hearing on any prejudgment remedy that would enable the plaintiff to deprive the defendants of any of their property at any time prior to judgment in any litigation instituted in connection with the note.

We are unpersuaded by the defendants’ bedrock assertion that the possibility or probability of a deficiency judgment cannot form the basis for a prejudgment remedy because it cannot be known until the completion of the foreclosure action whether there will be such a judgment and, if there is, its amount. While it is true that a deficiency judgment is “contingent” in that it cannot automatically be granted by a court without credible evidence as to an appropriate amount; Eichman v. J & J Building Co., 216 Conn. 443, 449, 582 A.2d 182 (1990); other prejudgment remedies that are based on various causes of action that can lead to judgments are no less contingent. Prejudgment remedies are available in dissolution actions; Atlas Garage & Custom Builders, Inc. v. Hurley, 167 Conn. 248, 355 A.2d 286 (1974); in an action claiming a real estate commission; New England Land Co. v. DeMarkey, 213 Conn. 612, 569 A.2d 1098 (1990); in an action claiming a cobroker commission; Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 525 A.2d 935 (1987); in an action claiming damages for willfully and maliciously causing personal injury; Goodwin v. Pratt, 10 Conn. App. 618, 524 A.2d 1168 (1987); in an action for negligence stemming from a car accident; Anderson v. Nedovich, 19 Conn. App. 85, 561 A.2d 948 (1989); in an action for libel; Haxhi v. Moss, 25 Conn. App. 16, 591 A.2d 1275 (1991); in an action for a percentage of anticipated profits of a partnership; Glanz v. Testa, 200 Conn. 406, 511 A.2d 341 (1986); in an action seeking a judgment requiring the defendant to set up a trust; England v. England, 184 Conn. 85, 440 A.2d 790 (1981); in an action seeking modification of a contract; Three S Development Co. v. Santore, 193 Conn. 174, 474 A.2d 795 (1984); in an action claiming conversion of funds; Mullai v. Mullai, 1 Conn. App. 93, 468 A.2d 1240 (1983); in an action claiming past and future damages due to the sale of a defective product; Bechert v. Petrol Plus, 5 Conn. App. 296, 497 A.2d 1027 (1985); in a breach of contract action; Augeri v. C. F. Wooding Co., 173 Conn. 426, 378 A.2d 538 (1977); and in an action for tortious interference with a contractual relationship. William M. Raveis & Associates, Inc. v. Kimball, 186 Conn. 329, 441 A.2d 200 (1982).

The likelihood of a deficiency judgment and the probable amount of such a judgment are much easier to ascertain in this case than in many other cases where prejudgment relief is routinely granted. Furthermore, the time between the institution of a foreclosure action and a deficiency judgment is usually much shorter than the time between the commencement of suit and judgment in other types of actions. Even if an appraisal conducted at the commencement of the foreclosure proceeding does not conclusively establish the anticipated value of the property at the time of foreclosure, such an appraisal would generally be accurate enough for the court to determine the propriety of issuing such relief under the probable cause standard of § 52-278e. Attachment statutes are premised on an ultimate factual contingency, namely, that the defendant may not be able to satisfy the eventual award of damages to the plaintiff. Connecticut v. Doehr, U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991). Disputes between debtors and creditors more readily lend themselves to accurate ex parte assessment of the merits of a dispute. Id., 2115. “Regarding damages, if there is an uncontradicted statement in an affidavit that the affiant believes that it is probable that a stated sum may be recovered upon a trial and such belief is founded on reasonable subordinate facts, this will ordinarily be sufficient to support probable cause for an attachment.” McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 39, 440 A.2d 801 (1981). We conclude that a deficiency judgment is not of such an unascertainable nature that it is precluded from serving as the basis of a valid prejudgment attachment upon the requisite showing of probable cause.

The defendants also argue that the note is serving as the basis of the attachment, which is prohibited by General Statutes §§ 49-1 and 49-28. The purpose of § 49-1 is to determine the rights between the parties in one action; it is not intended to act as a bar to the pursuit of ancillary proceedings to secure payment of any judgment. See First Bank v. Simpson, supra; 7 H.R. Proc., Pt. 4, 1957 Sess., p. 2375, remarks of Representative Edward C. Krawiecki. Moreover, to the extent that § 49-1 limits the mortgagee’s remedies, it does so only after the entry of a judgment in foreclosure. First Bank v. Simpson, supra, 376. Thus, § 49-1 does not prohibit the granting of a prejudgment remedy prior to judgment in the foreclosure action or during its pendency.

Similarly, the defendants assert that “[a] clear reading of [General Statutes § 49-28] suggests that the commencement of the foreclosure action acts to stay any other independent actions on the debt, such as a separate action on the note only.” A prejudgment attachment, however, is not an independent action on the debt; Associates Financial Services Co. v. Gear, 31 Conn. Sup. 507, 510, 320 A.2d 835 (1974); it is part of the main foreclosure suit. Likewise, the procedure used to obtain a deficiency judgment is also part of the main action. See Practice Book § 528. Also, a request for a deficiency judgment in a foreclosure action is brought by written motion and not by service of process. See id. Thus, the procuring of a prejudgment attachment to secure payment of a deficiency judgment in a foreclosure suit is ancillary to the main foreclosure suit, the purpose of which is to secure a higher priority on the list of the mortgagor’s creditors. A deficiency judgment provides a means for a mortgagee to recover any balance due on the mortgage note that was not satisfied by the foreclosure judgment. Maresca v. DeMatteo, 6 Conn. App. 691, 696, 506 A.2d 1096 (1986). It is the “only means of satisfying a mortgage debt when the security is inadequate to make the foreclosing plaintiff whole.” Eichman v. J & J Building Co., supra, 449, quoting First Bank v. Simpson, supra, 371. If the mortgagee brings a foreclosure of mortgage action, and pursues a prejudgment attachment, he is not seeking an additional remedy that would be barred by §§ 49-1 and 49-28, but is merely seeking to establish a higher priority for a remedy to which he is legally entitled under § 49-14.

The mortgagee here simply attempted to avail itself of a commonly used procedural device in order to improve its chances to receive full recovery of a debt owed to it. The mortgagee could have sued on its promissory note, independent of a foreclosure action, and obtained a prejudgment remedy. It should not be penalized by combining an action for foreclosure with one for payment of the note. A mortgagee should not be placed at the end of the creditors’ line for exercising its legal right to initiate an action for foreclosure and payment of the note in which it could seek a deficiency judgment, rather than bringing two separate lawsuits. That would be inconsistent with the conservation of judicial resources.

Finally, allowing a mortgagee to secure prejudgment relief will not allow the mortgagee to run roughshod over the rights of the debtor, for, consistent with the granting of any prejudgment remedy, the mortgagee will be granted such relief only upon a showing of probable cause. See General Statutes §§ 52-278e, 52-2781 Even in a case such as this, where the plaintiff obtained an ex parte attachment pursuant to an express waiver by the defendants, as allowed by § 52-278f, mortgagors can still do as the defendants did, and move to dissolve the attachment. Furthermore, in accordance with § 52-278f, the plaintiff had to provide an affidavit sufficient to show probable cause.

We conclude that the ex parte attachment issued by the plaintiffs attorney was valid and in compliance with General Statutes § 52-2781 We further conclude that the prejudgment application for an attachment should have been considered to determine whether there was probable cause to grant it. In assessing that probability, the court would have had to consider both the plaintiff’s claim and the defendants’ defenses; Haxhi v. Moss, supra; although in this case, the defendants were defaulted for failure to disclose a defense. We hold, as a matter of law, that a mortgagee may obtain additional security for a mortgage debt by means of a prejudgment remedy, if there is probable cause to believe a deficiency judgment will be rendered and a court can make an educated prediction as to the probable amount of the deficiency.

Ordinarily, we would remand this case to the trial court so that it could hold an evidentiary hearing to determine whether probable cause exists so as to entitle the plaintiff to prejudgment relief. See Three S Development Co. v. Santore, supra, 175-76. Because a deficiency judgment has already been entered in this case, however, probable cause for an attachment, in the amount of the judgment rendered, obviously exists.

The original ex parte attachment is currently in place due to the trial court’s stay of its order to dissolve the attachment pending appeal. Because we hold that the ex parte attachment should not have been dissolved, we need not take any action on the court’s denial of the plaintiffs application for an attachment.

The next question to be resolved is what was the effective date of the ex parte attachment. “Under General Statutes § 52-285, an attachment that is subsequently transformed into a judicial lien following a judgment in the underlying cause of action relates back, for purposes of determining priority, only to the moment when the certificate of attachment is left at the town clerk’s office of the town where the property is located.” Farmers & Mechanics Savings Bank v. Garafolo, 219 Conn. 810, 819, 595 A.2d 341 (1991). A judgment lien relates back to the date of an attachment. Atlas Garage & Custom Builders, Inc. v. Hurley, supra, 251. A prejudgment attachment relates back to the date of the' attachment; Union Trust v. Heggelund, supra, 626; which in this case is the date it was issued and recorded, namely, July 25, 1991. The original attachment recorded on July 25,1991, however, exceeded the amount of the deficiency judgment eventually obtained and must be reduced accordingly. See Eichman v. J & J Building Co., supra.

The judgment dissolving the attachment is set aside and the case is remanded to the trial court with direction to render judgment denying the defendants’ motion to dissolve the attachment and to modify the attachment to reflect the amount of the deficiency judgment rendered.

In this opinion the other judges concurred.

       On January 15, 1992, P. B. Real Estate, Inc., was substituted as the plaintiff.

       Paragraph 11 of the note contained the following language in bold type and capital letters: “Commercial Loan; Prejudgment Remedy Waiver. Makers acknowledge receipt of a copy of this note and certify that this is a commercial transaction and expressly waive all rights under sections 52-278a through 52-278g of the Connecticut General Statutes of prior notice or hearing with respect to any future . . . attachment . . . by the holder against property owned or possessed by Makers. Makers hereby waive the right to prior notice of and a hearing on the right of any holder of this note to a prejudgment remedy, which remedy enables said holder by way of attachment ... to deprive Makers of . . . any of their property at any time prior to judgment in any litigation instituted in connection with this note.”

       General Statutes § 52-278f, as amended by Public Acts 1991, No. 91-315, provides: “In an action upon a commercial transaction . . . wherein the defendant has waived his right to a notice and hearing under sections 52-278a to 52-278g, inclusive, the attorney for the plaintiff shall issue the writ for a prejudgment remedy without securing a court order provided that (1) the complaint shall set forth a copy of the waiver; (2) the plaintiff shall file an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show that there is probable cause to sustain the validity of the plaintiffs claim; and (3) the plaintiff shall include in the process served on the defendant a notice satisfying the requirements of subsection (b) of section 52-278e, as amended by section 1 of this act.” Subsections (2) and (3) were added by the 1991 public act to take effect July 1, 1991. The plaintiff satisfied all three conditions.

       An ex parte prejudgment attachment made pursuant to General Statutes § 52-278Í must include in the process served on the defendant a notice that the defendant has a right to a hearing to object to the attachment for lack of probable cause to sustain the claim, or to request that the remedy be modified, vacated or dismissed or to claim the property attached is exempt from execution. No party has raised any issue on appeal as to the constitutionality of § 52-278Í arising from its ex parte nature, allowing an attachment without notice or hearing due to an express contractual waiver. See Connecticut v. Doehr, U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991);
        Shaumyan v. O’Neill, 795 F. Sup. 528 (D. Conn. 1992); Union Trust v. Heggelund, 219 Conn. 620, 624 n.3, 594 A.2d 464 (1991). Nor is there any dispute that the defendants did expressly waive notice and hearing.

       Although a deficiency judgment was eventually obtained, the issue of whether the July 17,1991 attachment is valid or whether the September 10, 1991 application for an attachment should have been denied does not become moot in this case because if the attachment were proper or if the application should have been granted, the plaintiff would have a priority over the other creditors of the defendants in the collection of the amount of the deficiency as finally determined in February, 1992. See General Statutes § 52-380a (b). Because the dissolution of the attachment was stayed by the trial court, any relief awarded to the plaintiff would have practical consequences. The amount of an ex parte attachment set by the attorney of a plaintiff without prior court approval, if the attachment is provided for in a statute, relates back to its recordation but may not exceed the original amount set. Union Trust v. Heggelund, 219 Conn. 620, 626-29, 594 A.2d 464 (1991).

       General Statutes § 49-1 provides in relevant part: “The foreclosure of a mortgage is a bar to any further action upon the mortgage . . . note . . . against the . . . persons who are liable for the payment thereof

         General Statutes § 49-28 applies to foreclosures by sale and provides: “If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same . . . but all other proceedings for the collection of the debt shall be stayed during the pendency of the foreclosure suit, and, if a deficiency judgment is finally rendered therein, the other proceedings shall forthwith abate. . . .”

       General Statutes § 49-14 provides for deficiency judgment motions by any party to a mortgage foreclosure action.


text:
    State of Connecticut v. Mitchell Pitt
    (9973)
    Dupont, C. J., Foti and Freedman, Js.
    Argued June 15
    decision released September 1, 1992

      Timothy Patrick Brady, with whom were Steven D. Brown and, on the brief, Steven T. Sledzik and James W. Bergenn, for the appellant (defendant).

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant claims that (1) General Statutes § 53a-55 (a) (3) is unconstitutionally vague as applied to him, (2) the trial court improperly instructed the jury on the essential elements of § 53a-55 (a) (3) by failing to instruct on the meaning of the statutory terms “extreme indifference to human life” and “grave risk of death,” and (3) the trial court improperly excluded the testimony of a defense witness who was called to testify about the victim’s alleged threats to kill the defendant. We affirm the judgment of the trial court.

The jury could reasonably have found certain facts. The defendant and the victim had an argument, during which the defendant threatened the victim with a fence picket, which ended the fight. Subsequently, the defendant drove off with some friends.

Later that evening, in the vicinity of the defendant’s sister’s house, the defendant and the victim again got into an altercation. This time a gun was involved. Three to five gunshots were fired, one of which fatally wounded the victim. Shortly after the shots were fired, the defendant was seen with a gun in his possession coming from the area where the victim lay wounded. The defendant then fled and was apprehended four months later. There were no eyewitnesses to what actually occurred between the defendant and the victim.

The defendant’s first two claims involve § 53a-55 (a) (3). He argues that § 53a-55 (a) (3) violates his due process rights because it is unconstitutionally vague as applied to him. He also challenges the trial court’s failure to define, in its instructions to the jury, the terms “extreme indifference to human life” and “grave risk of death,” which are used in the statute.

The defendant concedes that he did not raise the claim of a due process violation at trial and, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). He argues that the failure of the legislature to define the terms as used in the manslaughter statute fails to give him fair warning of the effect of the statute and fails to provide a sufficient guarantee against arbitrary enforcement. The defendant’s failure to raise the constitutionality of a statute at trial, or to object to the instruction given, in light of the facts that the jury could reasonably have found, leaves the record inadequate for a fair consideration of whether the statute was unconstitutionally vague as applied to him. State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991). In the absence of such a record, review is precluded. State v. Golding, supra, 239-40.

The defendant next claims that the trial court improperly instructed the jury when it failed to define the terms “extreme indifference to human life” and “grave risk of death” during its main instructions to the jury and, again, later when the jury specifically requested the definition of “extreme indifference to human life” during its deliberations. The defendant failed to preserve this claim properly. He, therefore, seeks our review under State v. Golding, supra. We conclude, however, that the defendant’s claim must fail under the third prong of Golding because the record shows that a constitutional violation does not clearly exist and he was not clearly deprived of a fair trial. Id., 240.

The defendant’s testimony is relevant to a resolution of this issue. He claimed that on the evening of the shooting, the victim came looking for him at his sister’s apartment. The victim and the defendant struggled for a gun that the victim had brought with him. The defendant gained possession of the gun and then requested that the victim leave. The two men went outside and the victim refused to leave without his gun. The defendant turned to walk back into the apartment building and the victim ran toward the defendant. The defendant then turned and fired two shots at the ground near the victim’s feet. The victim stopped. The defendant again turned to walk into the apartment and the victim again ran toward the defendant. The defendant turned and again fired two shots at the ground near the victim’s feet. The victim stopped. The defendant turned for a third time to enter the apartment. The victim again approached the defendant. This time, however, the defendant lost his balance when he turned toward the victim, and the gun went off, fatally wounding the victim.

It has long been held that a “ ‘charge should be read as a whole. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . .’ ” (Citations omitted.) State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). Where supplemental instructions are given, as is the case here, they must be viewed together with the original instructions. State v. Toczko, 23 Conn. App. 502, 507, 582 A.2d 769 (1990). “The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991); State v. Bunker, 27 Conn. App. 322, 326, 606 A.2d 30 (1992).

In State v. Spates, 176 Conn. 227, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979), the defendant claimed that the trial court’s failure to define the term “extreme indifference to human life” for the jury required a new trial. The court’s instructions, which defined the term for the jury by stating that it meant more than “mere carelessness” or “ordinary recklessness” and also charged the jury extensively on the meaning of “recklessly,” were upheld. Id., 236-37. Likewise, in State v. Bunker, supra, 325-27, which involved similar statutory language found in General Statutes § 53a-59 (a) (3), we recently determined that the trial court had not impermissibly diluted the meaning of “extreme indifference to human life” when it paraphrased the statutory term to mean “a high degree of disinterest to human life” where the trial court had adequately defined the term “recklessly” to the jury and had stressed the difference between ordinary recklessness and the type of reckless assault made criminal by § 53a-59 (a) (3). We concluded that the Bunker jury was properly guided to a correct verdict because the court’s instructions “gave the jury a clear understanding of the aggravated form of recklessness required to support a conviction under § 53a-59 (a) (3).” Id., 327.

Our review of the record in this case shows that the court instructed the jury on the statutory definition of “recklessly.” No definition of “extreme indifference to human life” is found in the penal code, title 53a of the General Statutes, and the court did not define the term. In carefully instructing the jury concerning the difference between manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l), however, the court explained that § 53a-55 (a) (3) requires “the prosecution . . . to prove beyond a reasonable doubt that the reckless conduct was under circumstances which evinced an extreme indifference to human life and that conduct by its very nature is conduct which created a grave risk of death to another person.” Immediately thereafter, the court further explained that under § 53a-56 (a) (1), by contrast, “these two requirements are dropped. The state . . . merely has to prove that [the defendant] acted recklessly and that the death of [the victim] resulted from that reckless conduct.” This instruction is entirely consistent with that approved by our Supreme Court in Spates and, we believe, “gave the jury a clear understanding of the aggravated form of recklessness required to support a conviction under [§ 53a-55 (a) (3)].” State v. Bunker, supra; accord State v. Dyson, supra, 502.

In response to the jury’s requests for a definition of “extreme indifference to human life,” the court stated that “[t]here is no special definition. There is no legal definition that I can go to and say this is how the law defines it. It really is a question of fact as to whether or not there was extreme indifference to human life. The term in and of itself is the ordinary meaning of each of the words put together. For me to try to give you an illustration would be for me to attempt to find facts for you, and I can’t do that because you are the factfinders.” In this supplemental instruction, the court appropriately instructed the jury as to the lack of any specific definition of the term “extreme indifference to human life,” especially “when the defendant has not shown that the phrase was used in anything other than its ordinary meaning.” State v. Spates, supra, 237.

The defendant also challenges the trial court’s failure to define the term “grave risk of death.” The defendant offers no analysis of this aspect of his claim nor has he suggested, in light of the evidence, that the phrase was used in anything other than its ordinary meaning. See State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977); State v. Bunker, supra, 328-29.

The trial court’s instructions, when viewed as a whole, reveal that the jury could not have been misled by the lack of a statutory definition. The jury reasonably could have found, even if it accepted the defendant’s testimony as true, that the defendant’s behavior evinced “extreme indifference to human life” and recklessly created “a grave risk of death to another person.” Repeatedly firing a loaded gun in the direction of another person, even at the ground, in a populated area exhibits behavior plainly within the intendment of General Statutes § 53a-55 (a) (3). The court’s instructions gave the jury “a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.” State v. Avila, 166 Conn. 569, 574, 353 A.2d 776 (1974). The defendant cannot prevail on his claim because it is not reasonably possible that the jury was misled. A clear constitutional violation does not exist, and the defendant was not clearly deprived of a fair trial.

The defendant’s final claim is that the trial court improperly refused to admit certain testimony regarding the victim’s threats to kill the defendant. The defendant attempted to present the testimony of Andrea Cunningham regarding certain threats made by the victim. Cunningham visited the victim at the hospital some time after the shooting and before his death. During one or more of those visits, the victim allegedly confirmed to Cunningham that he had intended to kill the defendant on the day of the incident. The state objected to this testimony on grounds of hearsay and relevance. The court refused to permit the challenged testimony because there were no indicia of reliability since the defendant’s counsel indicated that the victim could not talk after the shooting and could only nod his head in response to statements made by Cunningham, and because the testimony was cumulative. On appeal, the defendant claims that the evidence was relevant and corroborated testimony that the defendant’s actions were in self-defense. The defendant asserts that the trial court should have admitted Cunningham’s testimony (1) as a statement against penal interest, (2) as hearsay falling within the catchall exception to the hearsay rule, or (3) as non-hearsay testimony offered not for the truth of the matter asserted but only to show the effect that this information had on the defendant’s state of mind.

Cunningham had already testified that the victim, prior to the shooting, had expressed to her his desire to kill the defendant. Additionally, the defendant himself had testified that the victim had directly communicated such an intention to him during their confrontation earlier in the day of the shooting. In his challenge to the trial court’s evidentiary ruling, the defendant has the burden of proving the harmfulness of any alleged erroneous exclusion of evidence, when, as here, it does not involve a constitutional issue. State v. Lewis, 220 Conn. 602, 624-25, 600 A.2d 1330 (1991); State v. Murdick, 23 Conn. App. 692, 697, 583 A.2d 1318 (1991). Although the evidence was relevant to the defendant’s claim of self-defense, it was cumulative. Evidence of the victim’s alleged reiteration to Cunningham of his prior intention to kill the defendant would have been cumulative of other evidence to the same effect. Even if the evidence had been admissible, its exclusion, therefore, could not have been harmful. State v. Crumble, 24 Conn. App. 57, 70, 585 A.2d 1245 (1991), cert. denied, 218 Conn. 902, 588 A.2d 1077 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       We note that not only did the defendant not object at trial to the instruction given regarding General Statutes § 53a-55 (a) (3), but he affirmatively requested that the court instruct the jury as to this lesser included offense.

       In Bunker, the crime in question was assault in the first degree in violation of General Statutes § 53a-59 (a) (3). Like manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), assault in the first degree requires proof of reckless conduct that creates a grave risk of death to another person “under circumstances evincing an extreme indifference to human life.” The only difference between § 53a-55 (a) (3) and § 53a-59 (a) (3) is that the former requires the conduct to cause the death of another person, whereas the latter requires the same type of conduct to cause serious physical injury to another person. See State v. Bunker, 27 Conn. App. 322, 326-27, 606 A.2d 30 (1992).

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