author: HEALEY, J.

text:
    LOUELLA DAVIS v. FORMAN SCHOOL ET AL.
    (AC 18068)
    O’Connell, C. J., and Hennessy and Healey, Js.
    Argued March 1
    officially released September 14, 1999

      Lawrence R. Pellett, for the appellants (defendants).

      George B. Simoncelli, Jr., for the appellee (plaintiff).

      Richard Blumenthal, attorney general, and William J. McCullough and Philip M. Schulz, assistant attorneys general, filed a brief as amicus curiae.
   Opinion

HEALEY, J.

This appeal arises from the decision of the workers’ compensation review board (board) affirming an award to the plaintiff, Louella Davis, pursuant to General Statutes § 31-303, together with a penalty of 20 percent of such award against the defendants, Royal Insurance Company (Royal) and Forman School, of sums due Davis under a stipulation for an award by agreement. On appeal, the defendants claim that the board acted improperly in (1) determining that the penalty provision of § 31-303 was applicable to settlements by stipulation, (2) determining that the penalty sought by Davis was not barred by the express terms of the stipulation and (3) applying the penalty provision of § 31-303 retroactively. We affirm the decision of the board.

The following facts and procedural history are relevant to the resolution of this appeal. Davis filed a notice of claim for workers’ compensation benefits, dated June 18,1991, claiming injuries arising from and in the course of her employment with Forman School. Davis’ claim before the commissioner was defended against by both Royal and Fireman’s Fund Insurance Company (Fireman’s Fund). After numerous informal hearings, the parties executed a stipulation dated April 15, 1994. On April 20, 1994, the commissioner approved this stipulation. Royal did not comply with the stipulation in a timely manner, failing to issue its check until May 3, 1994. It did not make payment until May 6, 1994, when the check was delivered to Davis’ counsel. At the request of Davis’ counsel, the commissioner scheduled a formal hearing to address the issues of payment, late payment and whether a penalty should be assessed. Thereafter, he ordered Royal to pay a 20 percent penalty pursuant to General Statutes (Rev. to 1993) § 31-303, as amended by Public Acts 1993, No. 93-228, § 14.

Both Royal and Forman School appealed to the board, which affirmed the commissioner in a split decision. The board’s majority concluded that (1) the penalty imposed was not “barred” by the language of the stipulation, (2) the 1993 amendment did not apply only to injuries sustained after July 1, 1993, the effective date of the amendment, because it was procedural, not substantive, and, therefore, retroactive application was not improper, and (3) the 1993 amendment applied to “stipulations” as that term is included within the meaning of the term “voluntary agreement” in § 31-303. This appeal by the defendants followed.

I

The defendants first claim that the board improperly determined that § 31-303, as amended, applies to workers’ compensation cases that are resolved by stipulation. In support of their position, the defendants discuss the legislative intent of the statute. They also attempt to distinguish between the terms “stipulation” and “voluntary agreement.” We are not persuaded.

“ ‘In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature.’ United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). ‘[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.’ American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).” Weinberg v. ARA Vending Co., 223 Conn. 336, 340-41, 612 A.2d 1203 (1992). “In order to determine the meaning of a statute, [the court] must consider the statute as a whole when reconciling its separate parts in order to render a reasonable overall interpretation.” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26-27, 717 A.2d 77 (1998); Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 461, 704 A.2d 222 (1997). “We have acknowledged, however, in the context of workers’ compensation legislation, that [s]uch guidance is often of little help . . . since words seldom have precise and unvarying meanings. Jacques v. H.O. Penn Machinery Co., 166 Conn. 352, 359 n.3, 349 A.2d 847 (1974).” (Internal quotation marks omitted.) Weinberg v. ARA Vending Co., supra, 341; see Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390-91, 618 A.2d 1340 (1993). Our Supreme Court, nevertheless, often has acknowledged that “the Workers’ Compensation Act [General Statutes § 31-275 etseq. (act)] is remedial and must be interpreted liberally to achieve its humanitarian purposes. . . . ‘Because the [act] is a remedial statute, this court should not impose limitations on the benefits provided for a disabled worker that the statute itself does not clearly specify.’ Misenti v. International Silver Co., 215 Conn. 206, 210, 575 A.2d 690 (1990).” (Citations omitted.) Gil v. Courthouse One, 239 Conn. 676, 682-83, 687 A.2d 146 (1997). Moreover, in construing the act, our Supreme Court “ ‘makes every part operative and harmonious with every other part insofar as is possible . . . .’ Bahre v. Hogbloom, 162 Conn. 549, 554, 295 A.2d 547 (1972).”Mingachos v. CBS, Inc., 196 Conn. 91, 103-104, 491 A.2d 368 (1985). “In applying these principles we are mindful that the legislature is presumed to have intended a just and rational result.” (Internal quotation marks omitted.) Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 21, 658 A.2d 83 (1995); Vaillancourt v. New Britain Machine/Litton, supra, 391. We also recognize that “[i]t is the province of the legislative department to define rights and prescribe remedies; of the judicial to construe legislative enactments, determine the rights secured thereby, and apply the remedies prescribed.” Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 (1905); see Wilson v. Security Ins. Group, 199 Conn. 618, 628, 509 A.2d 467 (1986); Second Injury Fund v. Lupachino, 45 Conn. App. 324, 341-42, 695 A.2d 1072 (1997).

In addressing the defendants’ claim that the penalty provision of § 31-303 is not applicable to stipulations, we begin with their concession that the language of Public Act 93-228, § 14, “is plain and unambiguous and, accordingly, there is no need to look further than its words themselves to construe the legislature’s intent.” The defendants go on to argue that “[s]imply stated, stipulations for settlement are not included in the language of [Public Act] 93-228, § 14, because it was not intended that they be subject to it.” We do not agree with this argument.

It is presumed that the legislature is mindful of judicial construction relevant to legislation it has enacted. Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988); DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 451, 615 A.2d 1066 (1992). “It is further presumed that when the legislature subsequently acts with respect to a statute, it does so with full awareness of relevant judicial interpretations. Rodriguez v. United States, 480 U.S. 522, 525, 107 S. Ct. 1391, 94 L. Ed. 2d 533 (1987).” Charles v. Charles, 243 Conn. 255, 263, 701 A.2d 650 (1997), cert. denied, 523 U.S. 1136, 118 S. Ct. 1838, 140 L. Ed. 2d 1089 (1998). Indeed, in the context of a workers’ compensation case, our Supreme Court has stated that “[a] stipulation is a compromise and release type of settlement similar to settlements in civil personal injury cases where a claim is settled with a lump sum payment accompanied by a release of the adverse party from further liability. J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) pp. 207-208.” (Internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 479-80, 650 A.2d 1240 (1994); Dunn v. United Technologies Corp., 239 Conn. 19, 30-31, 682 A.2d 99 (1996). Our Supreme Court has, on a number of occasions, also stated that the term “stipulation” is included within the term “voluntary agreement” in the act. See Muldoon v. Homestead Insulation Co., supra, 479-80, citing Sugrue v. Champion, 128 Conn. 574, 578-79, 24 A.2d 890 (1942); see also Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 255 A.2d 627 (1969); Wallace v. Lux Clock Co., 120 Conn. 280, 284, 180 A. 466 (1935). It is interesting to note that in Wallace, the court, in discussing the precursor to General Statutes § 31-296, which governs voluntary agreements in workers’ compensation cases, stated that the statute was broad enough not only to include the circumstance when a compensable injury is admitted, “but also where there is a dispute as to the existence of such a claim. An agreement such as the latter is as much within the beneficent purpose of the [act] as the former.” Wallace v. Lux Clock Co., supra, 284.

Recently, in Muldoon v. Homestead Insulation Co., supra, 231 Conn. 480, our Supreme Court stated that it has “consistently upheld the ability to compromise a compensation claim as inherent in the power to make a voluntary agreement regarding compensation. Sugrue v. Champion, [supra, 128 Conn. 578-79].” When the legislature enacted Public Act 93-228, § 14, Sugrue, Wallace and Welch already had been decided. Thus, when § 31-303 was amended by Public Act 93-228 to include the 20 percent penalty language, our courts already had construed the term “voluntary agreement” to include the term “stipulation.” Moreover, Public Act 93-228, of which § 14 was one section, was titled “An Act Reforming the Workers’ Compensation System” and, as such, the legislature revisited the act as it then was constituted. In so doing, the legislature did not change the language of § 31-303 except to add what is now the last sentence of that section containing the penalty provision.

“In determining whether to overrule precedent, particularly precedent that is a product of statutory interpretation . . . subsequent legislative action or inaction is a key consideration. [T]he legislature is presumed to be aware of the interpretation of a statute and ... its subsequent nonaction may be understood as a validation of that interpretation. . . . This presumption is strengthened when the legislature has affirmatively reenacted the statute after the interpretation in question. . . . Union Trust Co. v. Heggelund, 219 Conn. 620, 627, 594 A.2d 464 (1991).” (Internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 200-201, 676 A.2d 831 (1996). This rationale supports our conclusion that the penalty provision of § 31-303 is applicable to settlements by stipulation. Aware of the prior judicial interpretation, the legislature, had it intended to indicate that the term “stipulation” was not to be included within the term “voluntary agreement,” could have specifically so provided.

II

The defendants next claim that the board improperly determined that the penalty sought by Davis was not barred by the express terms of the stipulation. In making this claim, the defendants refer specifically to certain portions of the written stipulation, which, they argue, clearly and unambiguously demonstrate the intent of the parties to settle any arid all claims under the act. In further support of their claim, the defendants refer to the order portion of the stipulation that was executed by the commissioner, which states in part that “it is ordered, adjudged and concluded that compliance with this agreement shall constitute a full and final settlement, accord and satisfaction of all claims.”

The defendants claim that the common-law doctrine of accord and satisfaction is “well-suited” to this case and that it is clear that when the terms of the settlement agreement are interfaced with the law that they have cited on that doctrine, it becomes evident that Davis’ request for the penalty is barred by the express terms of the agreement. The defendants also claim that despite the prohibitory language of the settlement agreement, a “claim was made [by Davis] for additional benefits alleged to be due under the terms of the [act].” We do not agree.

“When there is a good faith dispute about the existence of a debt or about the amount that is owed, the common law [doctrine of accord and satisfaction] authorizes the debtor and the creditor to negotiate a contract of accord to settle the outstanding claim.” (Internal quotation marks omitted.) Blake v. Blake, 211 Conn. 485, 491, 560 A.2d 396 (1989); County Fire Door Corp. v. C. F. Wooding Co., 202 Conn. 277, 281-82, 520 A.2d 1028 (1987); Kelly v. Kowalsky, 186 Conn. 618, 621, 442 A.2d 1355 (1982). “A contract of accord and satisfaction is sufficiently supported by consideration if it settles a monetary claim that is unliquidated in amount.” County Fire Door Corp. v. C. F. Wooding Co., supra, 282. The settlement agreement between the parties is called an accord and the execution or performance of that agreement is called the satisfaction. 1 E. Farnsworth, Contracts (2d Ed. 1998) § 4.24, pp. 522-23; see J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 21-4, p. 868; Black’s Law Dictionary (6th Ed. 1990); 1 Am. Jur. 2d, Accord and Satisfaction § 1 (1994).

Our Supreme Court has held that “[i]f there is a breach of the accord, the obligee has the option of either seeking enforcement of the original duty or seeking enforcement of any obligation under the accord. 2 Restatement (Second), Contracts § 281 (1982) . . . .” (Citations omitted.) Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 809, 626 A.2d 729 (1993); see Tolland Enterprises v. Scan-Code, Inc., 239 Conn. 326, 333, 684 A.2d 1150 (1996). “ ‘[Statutes existing at the time a contract is made become a part of it and must be read into it just as if an express provision to that effect were inserted therein, except where the contract discloses a contrary intention.’ Ciarleglio v. Benedict & Co., 127 Conn. 291, 293, 16 A.2d 593 (1940); Hatcho Corporation v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985).” All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 199, 567 A.2d 1156 (1989). The United States Supreme Court has held that “ [i]t is also settled that the laws which subsist at the time and place of the making of a contract and when it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge and enforcement.” (Emphasis added.) Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 550, 71 S. Ct. 403, 18 L. Ed. 403 (1866); All Brand Importers, Inc. v. Dept. of Liquor Control, supra, 199.

In the present case, the commissioner approved the stipulation on April 20, 1994, and ordered that “compliance” with the agreement “shall constitute a full, final and complete settlement, accord and satisfaction of all claims of [Davis] against the [defendants].” That order constituted the accord between the parties. The compliance with the accord would constitute the satisfaction, i.e., payment pursuant to the April 20, 1994 stipulation order on or before the tenth day from the date of such order. If the defendants had timely complied with that order, there would have been an accord and satisfaction that would have operated to discharge the defendants from their obligation to Davis. Because the amendment to § 31-303 became law on July 1, 1993, prior to the date of the agreement, that statute became a part of the agreement. The amendment containing the penalty was denominated by the legislature as a “penalty” and was clearly intended to be imposed for a delay in payment beyond the time period provided therein.

Black’s Law Dictionary defines a “penalty” as “a sum of money [for] which the law exacts payment by way of punishment for . . . not doing some act which is required to be done.” Black’s Law Dictionary (6th Ed. 1990). The wrong in this case sought to be redressed by the penalty provision is the violation of Davis’ legal right to receive timely payment pursuant to § 31-303. The wrong here is not, as the defendants argue, a “claim . . . for additional benefits alleged to be due under the . . . act.” Although the term “claim” is not defined in the act, it is evident from the provisions of the act itself that the term “claim” applies to the underlying relief that the act was intended to afford. It is not intended to apply to the penalty provision for failure to make timely payment of the agreed sum. In any event, a “claim” is instituted under the act by invoking General Statutes §§ 31-294b and 31-294C by notifying the employer and filing a claim.

The triggering of the penalty provision of § 31-303, however, is quite different. It does not involve revisiting the underlying claim but, rather, involves compliance, as the commissioner ordered, with the April 15, 1994 agreement between the parties. Unlike the institution of a claim under the act, a request for a penalty is brought directly to and decided by the commissioner. The penalty provision of § 31-303 can fairly be said to be ancillary to the earlier agreement of the parties. See Jones v. National Bank of Commerce of El Dorado, 157 F.2d 214, 215 (8th Cir. 1946); In re Lawson, 156 B.R. 43, 46 (B.A.P. 9th Cir. 1993) (stating “[ajctions are said to be ancillary to the original [proceeding] when brought in aid of an execution or to effectuate a judgment entered in the original [proceeding] . . . [and are] dependent upon a judgment or decree in the original [proceeding] which is complete and determines the rights of the parties”). It follows from our determination that Davis’ request for a penalty was not a “claim . . . made for additional benefits alleged to be due under the [act]” and that the moneys awarded her by way of the penalty provision are not “benefits” required to be paid pursuant to a “claim” within the purview of the act. We, thus, reject the defendants’ claim that the board acted improperly in determining that the penalty sought by Davis was not barred by the express terms of the stipulation.

Ill

The defendants’ final claim is that the board acted improperly in applying the penalty provision of § 31-303 retroactively. In making this claim, the defendants maintain that Public Act 93-228, § 14, “does not show that the legislature intended to depart from the date of injury rule and, thus, it is to be applied only to cases arising after its effective date of July 1, 1993.” We do not agree.

“Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. See, e.g., State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987). In order to determine the legislative intent, we utilize well established rules of statutory construction. Our point of departure is General Statutes § 55-3, which states: No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect. The obligations referred to in the statute are those of substantive law. . . . Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. Coley v. Camden Associates, Inc., 243 Conn. 311, 316, 702 A.2d 1180 (1997). This presumption in favor of prospective applicability, however, may be rebutted when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively. In re Daniel H., 237 Conn. 364, 372, 678 A.2d 462 (1996); accord Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 483-84, 659 A.2d 1188 (1995); Miano v. Thorne, 218 Conn. 170, 175, 588 A.2d 189 (1991).” (Emphasis in original; internal quotation marks omitted.) Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 718-19, 714 A.2d 1209 (1998).

The rule of presumed legislative intent is not, however, applied to legislation that is general in its terms, affects only matters of procedure and does not impose new obligations or affect the substantive rights of the parties. Beach v. Regional School District Number 13, 42 Conn. App. 542, 547, 682 A.2d 118, cert. denied, 239 Conn. 939, 684 A.2d 710 (1996); Schurgast v. Schumann, 156 Conn. 471, 487, 242 A.2d 695 (1968); Toletti v. Bidiziki, 118 Conn. 531, 536, 173 A. 223 (1934). “While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress.” Romano v. B.B. Ginsberg, 108 R.I. 132, 136, 273 A.2d 315 (1971); Richardson v. Honda Motor Co., Ltd., 686 F. Sup. 303, 304 (M.D. Fla. 1988); see Black’s Law Dictionary (6th Ed. 1990). Where the amendment is not substantive, i.e., not directed to the right itself, but rather to the remedy, it is generally considered a distinctly procedural matter. Miller v. Kirshner, 225 Conn. 185, 204, 621 A.2d 1326 (1993). To prevent the exaltation of form over substance, we refer to Public Act 93-228, § 14, as an amendment to the act.

Initially, we must determine whether Public Act 93-228, § 14, effects a change in the substantive rights of the parties. We think not. Prior to July 1, 1993, the effective date of this amendment, payments by an employer to an employee provided for under § 31-303 were required to commence on or before the tenth day from the date of the agreement or award. Those provisions remained the same after Public Act 93-228, § 14, became effective. What did change after July 1, 1993, was that any employer who “fails to pay within the prescribed time limitations of [§ 31-303] shall pay a penalty for each late payment, in the amount of twenty percent of such payment.” The 1993 amendment to § 31-303 did not create an employee’s right to receive the payment due ten days after the agreement involved; that provision already existed in § 31-303. Nor did it create an employer’s duty to pay the amount agreed on ten days after the agreement involved; that, too, already was provided for in § 31-303. It did, however, introduce the penalty provision for late payment. That 1993 amendment providing for the penalty was directed not to the right itself, but rather to the remedy. It did not impose a new “obligation” as that term is employed in § 55-3. Rather, the penalty provision in § 31-303 provides Davis with the procedural mechanism for enforcing her preexisting right to receive payment within ten days of the commissioner’s approval. In so doing, the provision clearly embodies the legislature’s intent with respect to the penalty provision, which is that the provision is of a procedural and not a substantive nature.

“Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leaving the preexisting scheme intact.” Moore v. McNamara, 201 Conn. 16, 22, 513 A.2d 660 (1986). “Procedural statutes generally will be applied retroactively absent contrary legislative intent. . . . This rule, however, is not purely mechanical in its application. . . . Absent an express legislative intent, a statute will not be applied retroactively, even if it is procedural, when considerations of good sense and justice dictate that it not be so applied. . . . These aids to legislative interpretation apply with equal force to amendatory acts which effectuate changes in existing statutes.” (Citations omitted; internal quotation marks omitted.) DeAlmeida v. M.C.M. Stamping Corp., supra, 29 Conn. App. 450-51. Public Act 93-228, § 14, of course, had no express legislative intent referring to the matter of retro-activity. Moreover, considerations of good sense and justice hardly dictate that this statute not be applied retroactively. Indeed, such considerations counsel in favor of such application. We conclude, therefore, that Public Act 93-228, § 14, is procedural.

We turn now to the defendants’ argument that Public Act 93-228, § 14, does not indicate that the legislature intended to depart from the date of injury rule in the application of this amendment, but, rather, that the legislature intended to have it operate only prospectively. We do not agree.

The date of injury rule simply states that “[w]e look to the statute in effect at the date of injury to determine the rights and obligations between the parties. See Civardi v. Norwich, 231 Conn. 287, 293 n.8, 649 A.2d 523 (1994); Iacomacci v. Trumbull, [supra, 209 Conn. 222].” (Internal quotation marks omitted.) Rana v. Ritacco, 236 Conn. 330, 332-33 n.1, 672 A.2d 946 (1996); Dos Santos v. F. D. Rich Construction Co., supra, 233 Conn. 15-16 n.1; Schmidt v. O. K. Baking Co., 90 Conn. 217, 220-21, 96 A. 963 (1916). We have already noted, however, that, in the absence of any expressed intent to the contrary, procedural statutes ordinarily apply retroactively to all actions, whether pending or not, at the time the statute became effective. See Coley v. Camden Associates, Inc., supra, 243 Conn. 318-22.

Here, there is no contrary intent expressed in Public Act 93-228, § 14, which we have found to be procedural in nature. Our Supreme Court has stated that “if a workers’ compensation statute is procedural in nature, the date of injury rule and its presumption against retroactivity are inapplicable.” Coley v. Camden Associates, Inc., supra, 243 Conn. 317. The focus of this procedural amendment is to enforce the employee’s preexisting right to receive and the employer’s preexisting duty to make timely payment. The redress made available by this amendment bears directly on the rational and sensible result that was its purpose. This procedural amendment accomplishes this result without imposing, increasing or decreasing any substantive right or obligation of the employer or employee. Its procedural nature thus renders the date of injury rule inapplicable.

“A statute declares public policy.” Laurel Bank & Trust Co. v. Mark Ford, Inc., 182 Conn. 437, 442, 438 A.2d 705 (1980). “A statute should be interpreted according to the policy which the legislation seeks to serve. Aaron v. Conservation Commission, 183 Conn. 532, 538, 441 A.2d 30 (1981); see 2A J. Sutherland, Statutory Construction (4th Ed.) §§ 56.01 through 56.02. Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 574, 538 A.2d 1039 (1988).” (Internal quotation marks omitted.) Chrysler Corp. v. Maiocco, 209 Conn. 579, 592, 552 A.2d 1207 (1989). It is not seriously in doubt that the matter of prompt payments by employers to employees merited legislative attention. That objective resulted in Public Act 93-228, § 14, amending the act, which is in accord with the remedial character of the act. The defendants suggest that the severity of the penalty here sends an adverse message to the business community. This concern is more properly directed to the legislative branch and not to the judicial branch of government. We are sensitive to our role in the scheme of government. We recognize that “[i]t is up to the legislatures, not courts, to decide on the wisdom and utility of legislation. . . . [Cjourts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. . . . Dupont v. Planning & Zoning Commission, 156 Conn. 213, 220, 240 A.2d 899 (1968).” (Citation omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988).

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-303 provides: “Payments agreed to under a voluntary agreement shall commence on or before the tenth day from the date of agreement. Payments due under an award shall commence on or before the tenth day from the date of such award. Payments due from the Second Injury Fund shall be payable on or before the tenth business day after receipt of a fully executed agreement. Any employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of this chapter.”
      Effective July 1,1993, § 31-303 was amended by Public Acts 1993, No. 93-228, § 14, to include the penalty provision in the last sentence.

       The attorney general sought and was granted permission to file an amicus curiae brief in support of the defendants. See Practice Book § 67-7.

       This stipulation required Royal to pay Davis $25,000 and Fireman’s Fund to pay Davis $15,000. Fireman’s Fund complied with the stipulation by making timely payment to Davis of $15,000 and is not involved in this appeal.

       In their brief, the defendants use the term “stipulations” to include “stipulated settlements.” We shall do likewise.

       In like fashion, the board has pointed out that the term “stipulation” is included within the meaning of the term “voluntary agreement.” See Mongillo v. Terminal Taxi Co., 12 Conn. Workers’ Comp. Rev. Op. 197, 199 (1994).

       While the statute at issue in Wallace was not literally the same as its successor, § 31-296, the operative language as to what type of settlement arrangements were within its ambit was essentially the same as in § 31-296.

       This conclusion makes it unnecessary for us to evaluate and discuss the defendants’ claim regarding the differences between voluntary agreements and stipulations. See Jolly, Inc. v. Zoning Board of Appeals, supra, 237 Conn. 195, citing Martin v. Plainville, 40 Conn. App. 179, 182, 669 A.2d 1241 (1996), aff'd, 240 Conn. 105, 689 A.2d 1125 (1997) (Appellate Court, as intermediate court, is prevented from reexamining or reevaluating Supreme Court precedent); Brunswick v. Inland Wetlands Commission, 25 Conn. App. 543, 553, 596 A.2d 463 (1991), rev’d on other grounds, 222 Conn. 541, 610 A.2d 1260 (1992) (same).

       The specific portions of the stipulation referred to by the defendants in making this claim are the following:
      “Said lump sum payment is made in full and final settlement of all claims under the Connecticut Workers’ Compensation Act .... It is agreed by and between the parties hereto that the total sum . . . paid by the [defendants] shall constitute a full, final and complete settlement, accord and satisfaction .... It is further agreed that said lump sum payment is to include any and all claims of any nature .... It is further agreed by and between the parties that this stipulation was not induced or entered into by fraud, accident, mistake or duress and that none of the parties shall have any further claims under the Workers’ Compensation Act of the state of Connecticut .... It is understood and agreed that before [Davis] signed this Stipulation For An Award By Agreement that she read the same and that the same was explained to her and she understands that it is a full and final settlement . . . .”

       The order portion of the stipulation provides in full as follows: “Whereupon it is ordered, adjudged and awarded that compliance with this agreement shall constitute a full, final and complete settlement, accord and satisfaction of all claims of the [plaintiff] against the [defendants] or any of them by virtue of these premises and is hereby ratified.”

       General Statutes § 31-294b provides: “Any employee who has sustained an injury in the course of his employment shall immediately report the injury to his employer, or some person representing his employer. If the employee fails to report the injury immediately, the commissioner may reduce the award of compensation proportionately to any prejudice that he finds the employer has sustained by reason of the failure, provided the burden of proof with respect to such prejudice shall rest upon the employer.”

       General Statutes § 31-294c is titled “Notice of claim for compensation. Notice contesting liability.” It provides in relevant part: “(a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the Commissioner of Administrative Services. As used in this section, ‘manifestation of a symptom’ means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.
      * ** *
      “(c) Failure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident or within a three-year period from the first manifestation of a symptom of the occupational disease, as the case may be, or if a voluntary agreement has been submitted within the applicable period, or if within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d. No defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice.”

       There is no merit to defendants’ suggestion that the commissioner and the board acted improperly by “reopening” the stipulation in awarding the penalty.

        Richardson v. Honda Motor Co., Ltd., supra, 686 F. Sup. 304, states that “[a] substantive law creates, defines, and regulates rights as opposed to procedural or remedial law which prescribes a method of enforcing the rights or obtaining redress for their invasion. Black’s Law Dictionary, 4th Ed. (1951).”

       The defendants suggest that Public Act 93-228, § 14, is not “literally an ‘amending’ statute” and imply that that fact should make some difference in the analysis of the retroactivity issue. We think not. We recognize that the prefatory language of that section provides, “Section 31-303 of the general statutes is repealed and the following is substituted.” In that regard, however, our Supreme Court has stated that “[w]hether a new provision is in the form of a new enactment repealing the old ... or the form of an amendment of the old is immaterial and depends on the preference of the draftsman. . . . Accordingly, we too have consistently characterized as amendments acts which included the prefatory language of repeal and substitute.” (Citation omitted; internal quotation marks omitted.) State v. Kozlowski, 199 Conn. 667, 676, 509 A.2d 20 (1986).


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    NOIE RICHARDS, JR. v. WILLIAM TRUDEAU, SR., ET AL.
    (AC 16382)
    Foti, Schaller and Spear, Js.
    Argued June 3
    officially released September 14, 1999

      Edward N. Lemer, for the appellants (named defendant et al.).

      Donald A. Mitchell, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendants, William Trudeau, Sr., Brett Trudeau and William Trudeau, Jr., appeal from a default judgment rendered by the trial court in favor of the plaintiff, Noie Richards, Jr. On appeal, the defendants claim that the trial court improperly (1) refused to accept their answer and to set aside the default judgment, (2) rendered judgment against the defendants without providing them with adequate notice and (3) relied on the previous rulings of another judge as the law of the case. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In 1994, the plaintiff commenced a foreclosure action against the defendants. The return date on the plaintiffs complaint was August 23, 1994. On February 8, 1995, the plaintiff served and filed a demand for disclosure of defenses pursuant to Practice Book § 13-19. On that same date, the plaintiff also moved for the entry of a default against the defendants for failure to plead. That motion was denied on March 1, 1995.

On March 13, 1995, the defendants filed a motion to extend the time in which they had to file a responsive pleading to April 11, 1995. The defendants, however, failed to file a responsive pleading and, on June 13, 1995, the plaintiff again filed a motion for default based on the defendants’ failure to plead pursuant to Practice Book § 128, now § 10-18. On June 21, 1995, the plaintiffs motion for default was granted. On April 8, 1996, the plaintiff claimed the matter for the hearing in damages list and served a copy of the claim on the defendants. A printed hearing in damages list was issued advising the parties that the matter would be heard on May 17, 1996.

On the morning of the hearing, May 17, 1996, the defendants attempted to file an answer and argued that the default should be opened as a matter of right pursuant to Practice Book § 363A, now § 17-32. The trial court, Hon. T. Clark Hull, judge trial referee, refused, however, to accept the answer for filing, but did have it marked as an exhibit. The defendants also argued that the matter had been improperly claimed to the hearing in damages list and that the matter should go off and be reclaimed to the short calendar list. After hearing arguments, the trial court ruled that the matter could proceed on the hearing in damages fist. Thereafter, the trial court took evidence as to the debt and the value of the property but, because of issues relating to a lien by the United States government, the matter was continued.

The matter was again taken up on July 12, 1996, by the court, Stodolink, J. The defendants argued that Judge Hull had improperly failed to accept their answer, which was offered on the morning of the first hearing in damages, and, thus, had improperly failed to open the default against them. The defendants also renewed their argument that the foreclosure matter had been, and was still being, improperly heard on the hearing in damages list.

Judge Stodolink determined that the defendants had notice that the matter had been claimed to the hearing in damages list and had done nothing to correct what they perceived to be an improper assignment of the matter to that list. He also determined that the defendants had sufficient opportunity to prepare for the hearing. On the basis of those facts, and in light of Judge Hull’s prior determination that a foreclosure matter could properly be considered on a hearing in damages list, Judge Stodolink proceeded to resolve the remaining issues of the foreclosure and rendered judgment of foreclosure by sale. This appeal followed.

I

The defendants first claim that the trial court improperly refused to accept their answer and to set aside the default entered against them. We disagree.

Practice Book § 17-32 (b) provides in relevant part that “[i]f a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default. If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the judicial authority. . . .” That is the appropriate procedure to be followed by a defendant who seeks to file an answer and to open a default after a claim to the hearing in damages list. Whalen v. Ives, 37 Conn. App. 7, 13, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995).

Because the plaintiff had claimed the matter to the healing in damages list on April 8, 1996, the default in this case could “be set aside only by the judicial authority.” Practice Book § 17-32. “In the past this court has reviewed a trial court ruling on a motion to set aside a default for failure to plead pursuant to § 363A [now § 17-32] under the abuse of discretion standard. Tolland Bank v. Larson, 28 Conn. App. 332, 610 A.2d 720 (1992).” Rogozinski v. American Food Service Equipment Corp., 34 Conn. App. 732, 740, 643 A.2d 300, cert. denied, 231 Conn. 910, 648 A.2d 156 (1994); see also Whalen v. Ives, supra, 37 Conn. App. 13 n.11 (Practice Book § 363A, now § 17-32, requires resort to court’s discretion if claim for hearing in damages is filed before answer).

An examination of the transcript of the hearing in damages, held on May 17,1996, discloses that the defendants offered an answer to the trial court, which they were attempting to file that morning. The trial court ruled, however, that it would not permit the defendants to file the answer at that time. It noted that it had been almost one year since the default had been entered against them and ruled that to permit the filing of the answer, the result of which would have been to set aside the default under Practice Book § 17-32, would have been “highly improper.” The trial court found that the attempted filing of the defendants’ answer at that time was “a patent attempt to stall unfairly and unreasonably a matter that has already been defaulted.” Our review of the record reveals that the trial court did not abuse its discretion in refusing to accept the defendants’ answer or in refusing to set aside the default judgment for failure to plead.

II

The defendants next claim that the trial court improperly rendered the judgment of foreclosure. Specifically, the defendants claim that they did not realize that the foreclosure action would go forward at the hearing in damages and, therefore, lacked proper notice. We disagree.

As explained previously, on April 8, 1996, following the granting of the plaintiffs motion for default, the plaintiff claimed the matter for the hearing in damages list. A printed hearing in damages list was issued advising the parties that the matter would be heard on May 17, 1996. On the morning of May 17, 1996, after hearing arguments from the parties, the trial court ruled that the matter could proceed on the hearing in damages list.

The defendants argue that allowing the case to proceed on the hearing in damages list was improper because they did not have sufficient notice that it would go forward. It is clear from the record, however, that the defendants did receive notice that the case was going forward, albeit on the hearings in damages list. In addition, an attorney for the defendants did, in fact, attend the hearing. Further, at no time prior to the hearing in damages did the defendants take any action to correct what they perceived to be an improper listing of the case on the hearing in damages list.

The defendants cite Practice Book § 526, now § 23-16, in support of their argument that since no motion for judgment was filed and since they received no appraisal report prior to the hearing in damages, they were without sufficient notice that the case would proceed to judgment. Under Practice Book § 23-16, “[a]t the time the plaintiff files a motion for judgment of foreclosure, the plaintiff shall serve on each appearing defendant . . . a copy of the appraisal report of the property being foreclosed.. . .’’An examination of the record reveals, however, that while the defendants did not receive a copy of the appraisal report prior to the first hearing in damages, they did receive a copy prior to the second hearing, at which the final judgment was rendered.

Any prejudice the defendants claim to have suffered by not having received those documents prior to the first hearing, in accordance with Practice Book § 23-16, was cured when the defendants received the documents at the hearing itself. This is not a case where only one hearing was held, thereby possibly depriving the defendants of the opportunity adequately to review and, if necessary, challenge the appraisal report. In fact, at oral argument before this court, the defendants conceded that the value of the property was not contested and that their failure to receive a copy of the appraisal report did not diminish their ability to challenge its contents. They argue only that their failure to receive this document deprived them of notice.

Nevertheless, because two separate hearings were held prior to the rendering of final judgment, we cannot find that the defendants were prejudiced by what they perceived to be an improper listing of the case on the hearing in damages list or by their failure to receive the appraisal report prior to the first hearing. Any initial lack of notice that existed in this case was cured by the second hearing, at which the defendants possessed the appraisal report as well as the affidavits of debt. Based on the nature of the first hearing, in which several of the issues pertaining to the foreclosure were decided by the trial court, the defendants should have been fully aware that the foreclosure action would proceed to judgment at the time of the second hearing.

Ill

The defendants finally claim that Judge Stodolink improperly relied on Judge Hull’s previous rulings as the law of the case and that those rulings were improper. We disagree.

The defendants do not specify to which of Judge Hull’s rulings they are referring. It appears from our reading of the defendants’ brief, however, that they are challenging the propriety of Judge Stodolink’s reliance on Judge Hull’s refusal to accept the defendants’ answer and Judge Hull’s decision initially to proceed with the foreclosure matter at the hearing in damages, the two claims raised earlier in the defendants’ brief.

Under the law of the case doctrine, “[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision.” (Internal quotation marks omitted.) Miller v. Kirshner, 225 Conn. 185, 192, 621 A.2d 1326 (1993). Nevertheless, because we have found that Judge Hull’s rulings were proper, it follows that Judge Stodolink’s reliance on those rulings also was proper. We must, therefore, reject the defendants’ final claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Additional defendants named in the plaintiffs complaint are not parties to this appeal. They include Andrew Theodorakis, Wesson, Inc., Country Lumber, Inc., People’s Bank, the state of Connecticut and the United States of America We refer in this opinion to William Trudeau, Sr., Brett Trudeau and William Trudeau, Jr., as the defendants.

       Practice Book § 10-18 provides: “Parties failing to plead according to the rules and orders of the judicial authority may be nonsuited or defaulted, as the case may be.”

       Practice Book § 17-32 (b) provides: “If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default. If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the judicial authority. A claim for a hearing in damages or motion for judgment shall not be filed before the expiration of fifteen days from the date of notice of issuance of the default under this subsection."

       It was at the first hearing itself that the defendants received a copy of the appraisal report, as well as affidavits of debt.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. MICHAEL BARILE
    (AC 18418)
    Lavery, Sullivan and Daly, Js.

      Argued April 28
    officially released September 14, 1999

      Jeremy N. Weingast, for the appellant (defendant).

      Robert M. Speetor, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John H. Malone, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Michael Barile, appeals from the judgment of conviction, rendered after a trial to the court, of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. On appeal, the defendant claims that the trial court improperly admitted (1) testimony of a social worker concerning hearsay statements made to her by victim X and (2) testimony of victims X and Y concerning the respective hearsay statements that they made to each other under the excited utterance exception to the hearsay rule. We affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. In December, 1990, the defendant married the mother of X and Y, who were bom on March 25, 1985, and January 26, 1988, respectively. During their marriage, the defendant and the victims’ mother separated on several occasions and lived apart between November, 1993, and January, 1995. The couple separated permanently in February, 1995, before divorcing on December 15, 1996. They had one child together, G, bom March 22, 1991.

In May, 1991, the defendant, who worked at night, began caring for the children during the day while his wife worked. In November, 1991, the family moved to Windsor Locks and resided there until February, 1993. While residing there, the defendant physically abused X by pulling her hair and punching her in the hands, arms and head with a closed fist. Additionally, on one occasion, the defendant took photographs of X and Y while they were naked in the bathtub. Fearing reprisal by the defendant, X did not inform her mother of the abusive treatment.

In February, 1993, the family moved to East Windsor, where they resided until December, 1994. While living there, the defendant continued to abuse X. On several occasions, while X’s mother was at work, the defendant would pull X on top of him as he lay on his bed and rub her back and buttocks over her nightgown and ask her to say that she loved him.

During another occasion, while X was taking a shower, the defendant entered the bathroom and turned the lights on and off. X, peeking from behind the curtain, observed the defendant standing near the bathroom door, yelled at him to stop playing with the lights and continued showering. Hearing the door close, X assumed that the defendant had left. Moments later, wearing nothing, the defendant opened the curtain and entered the bathtub, laughing at X. Immediately thereafter, the defendant touched X’s vaginal area with his hand. X then ran naked from the bathroom into a bedroom that she shared with Y and immediately told Y about the incident. X did not inform her mother of the incident because she was ashamed and fearful of retaliation by the defendant, who had said, “If you tell your mother, you’ll see what happens to you.”

In August, 1994, during the course of a study to determine which parent should be given custody of G, a social worker questioned X as to whether the defendant physically abused her. Referring to the defendant’s treatment of X and Y, X informed the social worker that the defendant would push them downstairs, twist their arms and grab them around the neck and squeeze hard.

X eventually informed her mother and aunts about the incidents and the defendant’s behavior. On June 17 and 21, 1996, X provided statements concerning the defendant’s behavior and the incidents to the Windsor Locks and East Windsor police, respectively.

On July 30, 1996, by two separate informations, the defendant was charged in connection with his conduct involving X and Y. As to X, the defendant was charged with third degree sexual assault in violation of General Statutes § 53a-72a (a) (1) (A), third degree assault in violation of General Statutes § 53a-61 (a) (1) and risk of injury to a child in violation of § 53-21. As to Y, the defendant was charged with two counts of risk of injury to a child in violation of § 53-21. The defendant elected a trial to the court.

On January 22, 1998, the trial court acquitted the defendant of the sexual assault count involving X and the two risk of injury counts involving Y. The trial court, however, found the defendant guilty of the assault and risk of injury counts involving X.

On April 3, 1998, the trial court granted the defendant’s motion for judgment of acquittal as to the charge of third degree assault because the charge was outside the applicable statute of limitations. The court sentenced the defendant on one count of risk of injury to a child to ten years imprisonment, execution suspended after three years, and five years probation. This appeal followed.

I

The defendant first claims that the trial court improperly admitted the testimony of a social worker concerning hearsay statements made to her by X. The defendant contends that the trial court improperly admitted the testimony under both (1) the exception to the hearsay rule for statements made to an attending medical provider and (2) the constancy of accusation witness doctrine. We conclude that the trial court did not abuse its discretion.

The following additional facts are relevant to the resolution of this claim. During the trial, a social worker who treated X and Y to address symptoms related to sexual and physical abuse, testified as to X’s statements to her concerning the incident in the shower. The defendant objected to the testimony on the ground that the testimony exceeded the parameters for constancy of accusation testimony articulated in State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996). The trial court overruled the objection and admitted the testimony under the exception to the hearsay rule for statements to an attending medical provider.

“Hearsay is an out-of-court statement that is offered to establish the truth of the matters contained therein. State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985).” State v. Adams, 52 Conn. App. 643, 657, 727 A.2d 780, cert. granted on other grounds, 249 Conn. 907, 733 A.2d 226 (1999). The medical treatment exception to the hearsay rule “allows into evidence out-of-court statements made by a patient to a physician as long as (1) the declarant was seeking medical diagnosis or treatment, and (2) the statements are reasonably pertinent to these ends.” State v. Dollinger, 20 Conn. App. 530, 534, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990). “On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. . . . Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Jurgensen, 42 Conn. App. 751, 754, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996).

In the present case, the out-of-court statements were made by X to a social worker, not to a physician. The medical treatment exception was, therefore, inapplicable. Accordingly, we conclude that the trial court improperly admitted the social worker’s testimony under the medical treatment exception.

While the trial court improperly admitted the social worker’s testimony concerning X’s out-of-court statements under the medical treatment exception, “we can [still] sustain the admission of the evidence if other proper grounds exist for admission of the statements] State v. Williams, 48 Conn. App. 361, 367, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998). The admission of the social worker’s testimony can be sustained under the constancy of accusation doctrine discussed in State v. Troupe, supra, 237 Conn. 293-306.

In Troupe, our Supreme Court concluded that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. . . . Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes.” (Emphasis added.) Id., 304. The court noted that the doctrine, as articulated in Troupe, “does not affect those cases in which the details of a sexual assault complaint are otherwise admissible . . . .” Id., 304 n.19.

As we noted in State v. Orhan, 52 Conn. App. 231, 243, 726 A.2d 629 (1999), “[t]he controlling language from Troupe does not limit the identifying information that may be provided. It limits only the extent of the information provided. Our Supreme Court merely gave examples of how a sexual assault might be identified; it did not hold that that was the only testimony that could be provided.”

In the present case, the social worker’s testimony concerning the statements made to her by X corroborated X’s testimony and indicated only that X had told her of an instance in which the defendant entered the bathroom, got into the bathtub while X was showering and touched her vaginal area. “[W]hether evidence is admissible under the constancy of accusation doctrine is an evidentiary question that will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Id., 243. After reviewing the transcripts and record, we conclude that the trial court properly admitted the social worker’s constancy of accusation testimony because the testimony was not contrary to the parameters set forth in Troupe, nor has there has been a showing of substantial prejudice or injustice.

II

The defendant claims last that the trial court improperly permitted X and Y to testily as to the hearsay statements of Y and X respectively under the excited utterance exception to the hearsay rule. This claim is without merit.

As we previously stated, we afford the trial court great deference concerning rulings as to the admissibility of evidence and we will not disturb them unless there has been “a showing of clear abuse of discretion.” (Internal quotation marks omitted.) State v. Adams, supra, 52 Conn. App. 657. A clear abuse of discretion has not been demonstrated in this case.

“In Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924), our Supreme Court recognized the spontaneous utterance exception to the hearsay rule. This exception allows otherwise inadmissible statements into evidence to prove the truth of the matter asserted if it is proven that (1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant.” (Internal quotation marks omitted.) State v. Guess, 44 Conn. App. 790, 803, 692 A.2d 849 (1997), aff'd, 244 Conn. 761, 715 A.2d 643 (1998). With these principles in mind, we now address the defendant’s claims in turn.

A

The defendant first claims that the trial court improperly admitted Y’s testimony concerning X’s statements to her relating to the incident in the shower involving X. Specifically, the defendant contends that the utterances were not made by a person having an opportunity to observe the event and were made after the declarant had an opportunity for deliberation or fabrication. We disagree.

Our review of the record and transcript reveals that X’s statements to Y concerning the incident in the shower were made immediately after its occurrence. Immediately after the defendant entered the bathtub and touched her, X ran into her bedroom and told Y what had occurred. Thus, X had no opportunity to fabricate or deliberate before she told Y about the incident. Additionally, as the victim, X had every opportunity to observe the incident. Accordingly, we conclude that the trial court did not abuse its discretion in admitting Y’s testimony under the excited utterance exception to the hearsay rule.

B

The defendant next claims that the trial court improperly admitted X’s testimony concerning Y’s statements to her relating to an assault on Y. Specifically, the defendant contends that the utterances were not made by a person having an opportunity to observe the event and were made after the declarant had an opportunity to deliberate or fabricate. We are not persuaded.

The following additional facts are relevant to the resolution of this claim. During the trial, over a hearsay objection by the defendant, the trial court admitted testimony by X concerning statements made to her by Y describing an incident in which the defendant had hit Y against a wall. X testified that she was in a room near the location of the incident and that she heard a thump. Immediately thereafter, Y, crying, came into the room and told X that the defendant had hit her against the wall.

Our review of the record and transcript reveals that Y’s statements to X concerning the assault were made immediately after its occurrence. Immediately after X heard a thump, Y, crying, entered the room where X was and told X that the defendant had hit her against the wall. Thus, Y had no opportunity to fabricate or deliberate before she told X about the incident. Additionally, as the victim, Y had every opportunity to observe the incident. Accordingly, we conclude that the trial court did not abuse its discretion in admitting X’s testimony under the excited utterance exception to the hearsay rule.

Finally, even if we assume, arguendo, that the trial court improperly admitted all of the challenged testimony provided by the social worker and the victims, the admission of the testimony was harmless. Claims of erroneous evidentiary rulings do not implicate the constitution. State v. Walsh, 52 Conn. App. 708, 720, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). “In nonconstitutional claims, the defendant has the burden of demonstrating the harmfulness of the claimed error. ... He must show that it is more probable than not that the claimed error affected the verdict.” (Citation omitted; internal quotation marks omitted.) Id.

In the present case, the defendant challenges the trial court’s admission of testimony by the social worker, Y and X. The trial court, however, acquitted the defendant of the sexual assault count involving X and all of the counts involving Y, despite the admission of the challenged testimony.

The trial court’s admission of the challenged testimony was also harmless as to the risk of injury count involving X, of which the defendant was convicted. There was ample evidence to support the defendant’s conviction apart from the challenged testimony. X testified that the defendant pulled her hair and punched her hands, arms and head with a closed fist. X further testified that the defendant took photographs of her naked in the bathtub and that the defendant would have X come into his bedroom and he on top of him while he rubbed her back and buttocks over her nightgown. Such behavior previously has been determined by our courts to be sufficient to convict a defendant of risk of injury to a child. See State v. Peters, 40 Conn. App. 805, 825-26, 673 A.2d 1158, cert. denied, 237 Conn. 925, 677 A.2d 949 (1996) (shoving, punching and choking of victim sufficient to support conviction of risk of injury to child); State v. Palangio, 24 Conn. App. 300, 304, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991) (photographing naked or partially clad children can be, in certain circumstances, a violation of § 53-21). Therefore, the defendant has failed to demonstrate that it was more probable than not that the exclusion of the testimony would have affected the verdict. Accordingly, we conclude that any error in admitting the challenged testimony was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten tears or both.”

       At trial, to protect the identities of the minor children, the victims were referred to as X and Y. We shall do likewise.

       Although X testified as to having seen one of the photographs, none was introduced into evidence.

       We note that the defendant asserts in his brief that the trial court allowed the social worker to “testify as to specific statements made by X ... to her regarding the specific allegations” without specifying which portions of the testimony were objectionable. Our review of the record and transcript reveals that the only statements X made concerning any specific allegation to which the social worker testified related to the incident in the shower.


author: Per Curiam.

text:
    STEREO SHOP, INC. v. IVAN IVANOFF
    (AC 18113)
    O’Connell, C. J., and Lavery and Hennessy, Js.
    Argued May 27
    officially released June 29, 1999
   Per Curiam.

The judgment is affirmed.


text:
    MORRIS SILVERSTEIN ET AL. v. RICHARD B. LASCHEVER, ADMINISTRATOR (ESTATE OF ESTHER S. SILVERSTEIN), ET AL.
    (AC 18049)
    O’Connell, C. J., and Landau and Sullivan, Js.
    Argued June 2
    officially released June 29, 1999
   Per Curiam.

The judgment is affirmed.


text:
    NANNETTE D’APICE v. MICHAEL D’APICE
    (AC 18370)
    Foti, Lavery and Landau, Js.
    Argued June 8
    officially released June 29, 1999
   Per Curiam.

The judgment is affirmed.


text:
    KATHERINE HARTE v. COMMISSIONER OF MOTOR VEHICLES
    (AC 18032)
    O’Connell, C. J., and Spear and Sullivan, Js.
    Submitted on briefs June 9
    officially released June 29, 1999
   Per Curiam.

The judgment is affirmed.


text:
    JOSEPH SAMELA, JR. v. CITY OF NEW HAVEN
    (AC 18998)
    O’Connell, C. J., and Spear and Sullivan, Js.
    Submitted on briefs June 9
    officially released June 29, 1999
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    ROBERT CAFFERY v. CITY OF NEW BRITAIN
    (AC 18919)
    Lavery, Schaller and Hennessy, Js.
    Submitted on briefs June 9
    officially released June 29, 1999
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    WILLIAM T. EVANS v. COMMISSIONER OF CORRECTION
    (AC 18236)
    Hennessy, Sullivan and Daly, Js.
    Argued June 9
    officially released August 10, 1999
   Per Curiam.

The judgment is affirmed.


author: PER CURIAM.

text:
    JOSEPH TORRICE v. COMMISSIONER OF CORRECTION
    (AC 18579)
    O’Connell, C. J., and Sullivan and Daly, Js.
    Argued June 8
    officially released September 21, 1999

      Adele V. Patterson, deputy assistant public defender, for the appellant (petitioner).

      AnnE. Lynch, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Joseph Torrice, appeals from the dismissal of his petition for a writ of habeas corpus. The petitioner, a sentenced prisoner, brought this writ of habeas coipus to the Superior Court claiming that the respondent, the commissioner of correction, had incorrectly calculated the petitioner’s anticipated discharge date, thereby illegally lengthening his sentence. The focus of the petitioner’s claim is the application of pretrial credits in several cases.

Our examination of the record and briefs and consideration of the arguments of the parties persuades us that the judgment of the trial court should be affirmed. The issues regarding the underlying factual disputes were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. Torrice v. Commissioner of Correction, 46 Conn. Sup. 77, 738 A.2d 1164 (1997). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. “It would serve no useful purpose for us to repeat the discussion contained therein.” In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996) (per curiam).

The judgment is affirmed.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. STEPHEN BELANGER
    (AC 17279)
    O’Connell, C. J., and Schaller and Hennessy, Js.

      Argued March 30
    officially released September 21, 1999

      Robert P. Hanahan, with whom, on the brief, was Mark Ouellette, for the appellant (defendant).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Timothy J. Sugrue, executive assistant state’s attorney, Susann E. Gill, senior assistant state’s attorney, and Michael Gailor and Marjorie Allen Daus-ter, assistant state’s attorneys, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Stephen Belanger, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the second degree with a firearm in violation of General Statutes §§ 53a-49 and 53a-60a,1 reckless endangerment in the first degree in violation of General Statutes § 53a-63, carrying a pistol without a permit in violation of General Statutes § 29-35 (a), having a weapon in a motor vehicle in violation of General Statutes § 29-38 and threatening in violation of General Statutes § 53a-62. On appeal, the defendant claims that the trial court improperly (1) instructed the jury on all five counts, and (2) instructed the jury that the reasonable doubt standard and the presumption of innocence are to protect society and the innocent rather than the guilty. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of March 8, 1995, and into the morning of March 9,1995, the defendant was a customer at a bar in Hartford. At approximately 12:40 a.m., the defendant was involved in a disturbance in the bar, which was reported to the manager, Tom Neigro, by Peter Tannenbaum, an employee. Neigro then asked the defendant to leave, and the defendant did so.

Shortly thereafter, Tannenbaum heard what sounded like two people arguing outside and proceeded to investigate. Upon arriving outside, Tannenbaum saw the defendant sitting in the driver’s seat of a vehicle stopped parallel to the bar with the driver’s window open. The defendant was pointing a gun out the window at Dewey Carter. When Tannenbaum came out of the bar, the defendant switched the focus of the gun from Carter to Tannenbaum. Tannenbaum responded by taking cover behind a parked car and calling to the defendant to put the gun down and leave the parking lot. The defendant fired a shot at Tannenbaum. Tannenbaum fired a warning shot into the air with his own revolver and, subsequently, fired a second shot at the defendant’s vehicle. The defendant thereafter drove out of the parking lot.

The defendant’s vehicle was later stopped by state troopers. In the course of the stop, Trooper Andre Joyner searched the vehicle and found a nine millimeter semiautomatic pistol disassembled into three pieces, all in different parts of the vehicle. The magazine contained live rounds of ammunition. Joyner was unable, however, to find the pistol’s spring. Officer Debra Camacho of the Hartford police department also searched the defendant’s vehicle and found a black holster, three five nine millimeter rounds of ammunition and a discharged nine millimeter shell casing.

At trial, both the state and the defendant submitted proposed jury instructions to the court. After the trial court instructed the jury, both parties took exceptions. Subsequently, the trial court clarified its instructions to the jury. The following day, the jury found the defendant guilty on all counts. This appeal followed.

I

The defendant first claims that the trial court improperly instructed the jury on all five counts. We are notper-suaded.

Of the instructions challenged by the defendant, his claims with respect to three counts were properly preserved in the trial court for our review, while claims with respect to two counts were not preserved.* *

A

Preserved Claims

Our standard of review concerning preserved claims of improper jury instruction is well settled. “The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . 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. . . . While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) State v. Rodriguez, 47 Conn. App. 91, 95, 702 A.2d 906 (1997), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998).

1

The defendant claims that with respect to the count of criminal attempt to commit assault in the second degree with a firearm, the trial court improperly failed to instruct the jury that it must find that (1) the defendant was in possession of the gun in assembled condition on March 9,1995, and (2) the defendant pointed or fired it in the vicinity of a person. We are not persuaded.

The trial court instructed the jury as follows: “If you determine that the firearm was not operable at the time of the incident then you must find the defendant not guilty [of the charge of criminal attempt to commit assault in the second degree with a firearm].” This instruction clearly informed the jury that it must determine whether the gun was assembled and operable, or dismantled and inoperable, at the time of the incident.

Regarding whether the jury was instructed adequately concerning the presence of a victim, as required by General Statutes § 53a-60, a review of the charge reveals that the trial court, in instructing the jury, set forth each element of § 53a-60a as well as the elements necessary under § 53a-60. Together, these instructions made it clear that the jury must find that there was a victim. Moreover, the instructions as a whole adequately apprised the jury of its duty to find all of the elements of this offense beyond a reasonable doubt in order to convict the defendant on this count. We conclude that, viewing the charge as a whole, the trial court’s instruction on the count of criminal attempt to commit assault in the second degree with a firearm fairly and accurately informed the jury of the elements of this offense, thereby avoiding any injustice to the defendant.

2

The defendant next claims that the trial court improperly instructed the jury with respect to the count of carrying a pistol without a permit. Specifically, the defendant argues that the trial court improperly failed to instruct the jury that it must find that the gun had a barrel measuring less than twelve inches in length. We disagree.

The record shows that the trial court did, in fact, instruct the jury on the requisite length of the barrel and on the jury’s duty to find whether the defendant’s gun qualified under the statute beyond a reasonable doubt. We conclude, therefore, that the trial court’s instruction on the count of carrying a pistol without a permit was not deficient and, further, when viewed in light of the entire charge, was a fair representation of the issues to the jury, thus avoiding any injustice to the defendant.

3

The defendant claims next, with respect to the count of having a weapon in a motor vehicle, that the trial court improperly failed to instruct the jury that to convict the defendant it must find that he had a weapon, assembled or unassembled, in his vehicle at the time of the incident. The defendant’s claim lacks merit.

The trial court instructed the jury as to all of the elements of this count and as to its duty to find them all beyond a reasonable doubt before convicting the defendant. Also, viewing the trial court’s charge as a whole, we note that our discussion in part IA1 concerning the operability of the gun responds to the defendant’s argument. Accordingly, we conclude that the trial court’s instruction as to having a weapon in a motor vehicle fairly represented the case to the jury so as to avoid any injustice to the defendant.

B

Unpreseived Claims

“To preserve a challenge to the jury charge, the defendant must make a written request to charge, or take exception to the juiy instructions when they are given by the trial court. . . . This court is not bound to review claims of instructional error if the party raising the claim neither submitted a written request to charge, nor excepted to the charge given by the trial court. Practice Book § [42-16]. The purpose of [§ 42-16] is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” (Internal quotation marks omitted.) State v. Adorno, 45 Conn. App. 187, 196-97, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997).

With respect to the counts of reckless endangerment and threatening, the defendant neither objected to the trial court’s instructions nor submitted proposed jury instructions in a manner adequate to preserve the claims he now makes. He contends, however, that his claims meet the criteria of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 631 n.5, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997). We conclude that the record is adequate for review and that claims of inadequate instruction on the elements of a crime are of constitutional magnitude alleging the violation of a fundamental right. See State v. Owens, 25 Conn. App. 181, 186 n.2, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991). We will proceed, therefore, to examine the defendant’s claims to determine whether the alleged violations clearly exist and clearly deprived him of a fair trial.

We note that under Golding, an unpreserved constitutional claim of instructional error will fail if, considering the substance of the charge rather than the form of what was said, it is not reasonably possible that the jury was misled. See State v. Adorno, supra, 45 Conn. App. 198. “In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering [possible] inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . 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. . . . Furthermore, [a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) Id.

1

The defendant’s first unpreseived claim of improper jury instruction is that with respect to the count of reckless endangerment, the trial court improperly failed to instruct the jury that to convict it must find that the defendant pointed a weapon out the window of his car and discharged it in such a manner or direction as to endanger an identifiable person. We disagree.

Our review of the trial court’s entire instruction reveals that it provided the jury with the elements of the crime, a clear understanding of the these elements and ample guidance on how to determine their presence. The instructions regarding the crime of reckless endangerment were, therefore, constitutionally adequate.

2

The defendant’s second unpreserved claim of improper jury instruction attacks the adequacy of the instruction on the count of threatening. The defendant claims that the trial court improperly failed to instruct the jury that it must find that the defendant threatened an identifiable person. We are not persuaded.

The record shows that the trial court carefully instructed the jury on each element of the crime of threatening, as well as on the three ways in which it can be committed. Furthermore, the balance of the whole charge gave the jury sufficient guidance as to its duty as the finder of fact. Accordingly, we conclude that the trial court’s instructions with respect to this count were constitutionally adequate and that the alleged constitutional error did not clearly exist.

II

The defendant claims finally that the trial court improperly instructed the jury that the reasonable doubt standard and the presumption of innocence are to protect society and the innocent rather than the guilty. We do not agree.

Our Supreme Court consistently has held that jury instructions essentially the same as the ones used here do not confuse juries. See, e.g., State v. Faust, 237 Conn. 454, 477-78, 678 A.2d 910 (1996); State v. Cassidy, 236 Conn. 112, 145, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996); State v. Palmer, 196 Conn. 157, 168-69, 491 A.2d 1075 (1985). In support of his argument for a divergence from these precedents, the defendant relies on a recent decision of the United States Court of Appeals for the Second Circuit that reversed convictions due to the federal district court’s use of the same instructions. See United States v. Doyle, 130 F.3d 523 (2d Cir. 1997). In the wake of Doyle, our Supreme Court has considered whether an instruction essentially the same as that challenged by the defendant violates a defendant’s due process rights. State v. Schiappa, 248 Conn. 132, 167-68, 728 A.2d 466 (1999). “Although the court in Schiappa disapproved of the challenged language and, pursuant to its supervisory authority over the administration of justice, directed our trial courts to refrain from using the challenged language in future cases, the court nevertheless rejected the defendant’s constitutional claim based on the particular instructions given in that case.” State v. Ryan, 53 Conn. App. 606, 610, 733 A.2d 273 (1999).

In this case, judgment was rendered in 1997, prior to our Supreme Court’s decision in Schiappa. Because the particular portion challenged by the defendant is essentially the same as that considered in Schiappa, our decision on this issue is controlled by Schiappa, and the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides in relevant part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. . . .”

       General Statutes § 53a-60a provides in relevant part: “(a) A person is guilty of assault in the second degree with a firearm when he commits assault in the second degree as provided in section 53a-60, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be found guilty of assault in the second degree and assault in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information. . . .”

       General Statutes § 53a-63 provides in relevant part: “(a) A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person. . . .”

         General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to cany the same . . . .”

       General Statutes § 29-38 provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. The word ‘weapon’, as used in this section, means any pistol or revolver . . .

       General Statutes § 53a-62 (a) provides: “A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place and her person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence wilh the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience.”

       In his brief, the defendant also seems to make several claims of insufficient evidence. We decline, however, to review those claims as they are inadequately briefed. See State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998).

       A claim of inadequate jury instruction is unpreserved unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. See Practice Book § 42-16, formerly § 852.

       Section 53a-60a requires, inter alia, an assault in the second degree as provided in General Statutes § 53a-60, which provides in relevant part: “(a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm; or (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . . .” (Emphasis added.) See footnote 2.

       Specifically, the trial court instructed: “The defendant is also charged with unlawfully carrying a pistol without a permit in violation of § 29-35 (a) of the Connecticut General Statutes. . . . For you to find the defendant guilty of this crime, you must find that the state has proven beyond a reasonable doubt that the defendant carried a pistol upon his person, that the defendant did so while outside his dwelling house or place of business and that the defendant did not have a valid permit to carry that pistol. . . . Of course, you must find that what the defendant held upon his person was a pistol. A pistol is defined in the statute as a firearm having a barrel less than twelve inches in length." (Emphasis added.)

       The trial court instructed: “It is the sworn duty of the courts and of you as jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence which the law gives to every person charged. But the law is made to protect society and innocent persons and not to protect guilty ones. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that an accused person is guilty of the crime charged, then it is the sworn duty of you, the jurors, to enforce the law and to render a verdict of guilty.” (Emphasis added.)


author: HENNESSY, J.

text:
    DIANNE MICCI v. DOMINICK J. THOMAS, JR., ET AL.
    (AC 17934)
    Foti, Schaller and Hennessy, Js.
    Argued February 18
    officially released September 21, 1999

      Ian Angus Cole, for the appellant (defendant James E. Cohen).

      Sheldon A. Messinger, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant James E. Cohen appeals from the trial court’s granting of the plaintiffs application for a prejudgment attachment of certain of Cohen’s real property. On appeal, he claims that the trial court improperly determined that the plaintiff, Dianne Micci, was a third party beneficiary of a contract because there was no evidence of an intent by either the promisors or the promisee to assume a direct obligation to the plaintiff. We agree and reverse the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. On October 25, 1995, the defendant Dominick J. Thomas, Jr., and Cohen entered into an agreement with Eugene Micci setting forth the terms of the dissolution of their partnership with Eugene Micci concerning the law firm of Micci, Cohen and Thomas. The termination agreement provided in relevant part that Cohen and Thomas would pay to Eugene Micci the sum of $72,785 in installments as the firm settled any negligence and property damage suits. At the time the termination agreement was signed, Eugene Micci was divorced from the plaintiff and was obligated to pay her alimony and child support.

In 1996, the plaintiff served Eugene Micci with a motion for contempt for failure to pay his periodic alimony and support obligations and claimed that the court ordered him to pay her 70 percent of the sums that he received from his former law firm under the termination agreement in lieu of support payments. Thomas and Cohen subsequently began sending the payments owed to Eugene Micci to the plaintiff.

The plaintiff, however, stopped receiving payments from Thomas and Cohen in 1997. The plaintiff thereafter filed an application for a prejudgment attachment of real property owned by Cohen and real property that had been transferred by Thomas to his wife, the defendant Sally M. Thomas. The application was accompanied by a two count complaint against the defendants. The trial court granted the plaintiffs application as to the Cohen property only. The court’s decision was based on its determination that the plaintiff was a third party beneficiary to the termination agreement and entitled to payment by Thomas and Cohen. The trial court concluded that the intent of the promisee, Eugene Micci, was crucial and that the intent of the promisors, Thomas and Cohen, was irrelevant in deciding third party beneficiary status. Accordingly, the trial court found that Eugene Micci’s testimony was sufficient to create probable cause to grant the prejudgment remedy. This appeal followed.

As a preliminary matter, we note that this court has “only a limited role to play in reviewing a trial court’s broad discretion to deny or grant a prejudgment remedy.” Greenberg v. Mortgage Services Associates, Inc., 41 Conn. App. 882, 883, 677 A.2d 984 (1996) (per curiam). “It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.” Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991).

“[T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties.” (Internal quotation marks omitted.) Grigerik v. Sharpe, 247 Conn. 293, 311-12, 721 A.2d 526 (1998); see also Knapp v. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A.2d 386 (1963); Colonial Discount Co. v. Avons Motors, Inc., 137 Conn. 196, 201, 75 A.2d 507 (1950). “[T]he intent of both parties, rather than just one of the parties to a contract, determines whether a third party is to be afforded third party beneficiary status under a contract.” (Emphasis added.) Grigerik v. Sharpe, supra, 317.

Applying that standard to the facts here, we conclude that the trial court’s determination that there was probable cause for the plaintiff to prevail on her third party beneficiary claim was clearly erroneous. First, there is no evidence that Thomas and Cohen intended to create a direct obligation to the plaintiff when they signed the termination agreement. In fact, Cohen testified to the contrary; when asked if it was his intent at the time he entered into the agreement to create a benefit to the plaintiff, Cohen replied, “No, it was not.” There was no evidence put forth by the plaintiff to contradict that testimony. Second, while Eugene Micci testified that the payments from the termination agreement were supposed to benefit the plaintiff “indirectly,” there is no evidence that he intended to create a direct obligation on the part of Thomas and Cohen to the plaintiff at the time the termination agreement was signed. “The intent to confer a benefit is irrelevant to the determination of whether [the plaintiff] was a third party beneficiary.” (Emphasis added.) Gateway Co. v. DiNoia, 232 Conn. 223, 231, 654 A.2d 342 (1995). Rather, the appropriate inquiry is whether “the parties . . . intended to create a direct obligation from one party ... to the third party.” (Emphasis in original.) Id. Because neither Thomas and Cohen nor Eugene Micci intended to create a direct obligation to the plaintiff, we conclude that the trial court’s determination that the plaintiff is a third party beneficiary of the termination agreement is clearly erroneous.

The judgment is reversed and the case is remanded with direction to render judgment denying the application for a prejudgment remedy.

In this opinion the other judges concurred.

       The defendants in this case are Dominick J. Thomas, Jr., Sally M. Thomas and James E. Cohen. The plaintiff claimed that Dominick J. Thomas, Jr., transferred his interest in certain real property to Sally M. Thomas to avoid his obligation to the plaintiff. The application for prejudgment attachment was granted, however, only against Cohen’s property, and only he has appealed from the trial court’s order. We refer in this opinion to Dominick J. Thomas, Jr., as Thomas.

       See footnote 1.

       No written order was produced by either party and none is contained in the record.

       The trial court relied on Grigerik v. Sharpe, 45 Conn. App. 775, 699 A.2d 189 (1997), in reaching its decision. We note that that case was overturned in Grigerik v. Sharpe, 247 Conn. 293, 721 A.2d 526 (1998).

       During the prejudgment remedy hearing, Eugene Micei testified that he had ini ended “indirectly” that the plaintiff be a beneficiary of the termination agreement with his former law partners, stating, “That’s how I planned on paying my alimony and child support since I had no other source of income.”