author: Curran, J.

text:
    Marsha J. Harlan v. William E. Harlan, Sr.
    (3259)
    Borden, Daly and Curran, Js.
    Argued June 10
    decision released September 24, 1985

      Christopher J. Smith, with whom was Barry C. Pinkus, for the appellant (plaintiff).

      Philip R. Mancini III, with whom, on the brief, was Linda M. Guliuzza, for the appellee (defendant).
   Curran, J.

This is an appeal from the judgment of the trial court denying the plaintiffs motion to open and modify a judgment of dissolution.

The eleven year marriage between the parties was dissolved in September, 1974. At that time, the defendant was ordered to pay the sum of $35 per week for the support of the parties’ two minor children, and $10 per week as alimony. In addition, the defendant was ordered to quitclaim his interest in the marital residence. At the time of the dissolution, the financial affidavit of the defendant disclosed an income of $129 per week and weekly expenses of $142.76. His debts amounted to $6855, and his assets totaled $7800. The plaintiffs affidavit at that time disclosed an income of $132.75 per week and weekly expenses of $130.33. Included in this were payments which the plaintiff and the two children received in monthly social security benefits. The plaintiff had suffered a stroke prior to the dissolution and this sum represented a disability allowance. Her debts amounted to $900.59 and her assets totaled $5750.

In January, 1984, the plaintiff filed a motion to open and modify the judgment as it pertained to alimony. The grounds for the request were that the defendant’s earnings had increased substantially and that the expenses of the plaintiff had increased. The affidavit filed by the defendant at the hearing on the motion to modify showed a weekly income of $786.31. The weekly expenses of the plaintiff were listed at $210.12, while her weekly income amounted to $100.69. Her assets totaled $59,678.89 and she had no liabilities. The court denied the motion on the ground that the plaintiff failed to establish a substantial change in circumstances outside the contemplation of the parties. From the denial of this motion, the plaintiff has appealed.

A motion for articulation was filed with the court and granted. The court stated that the defendant, as of the time of the hearing, was still employed in the same position as he was at the time of the dissolution, but was making approximately $780 per week. The court further found that, at the time of the dissolution, the defendant was making $266 per week, rather than the $129 per week listed on his affidavit, a finding which is not challenged on this appeal. The court found that the increase in salary resulted from normal increments plus inflation over the ten year span. The court indicated that, although the defendant had an increased income, the increase evolved as a result of overall inflation and as an ordinary upgrading of the salary level for the same position which the defendant held at the time of the dissolution. The plaintiff, the court found, continued to be disabled and was still receiving social security benefits. The court found that the change in the parties’ circumstances was not outside the contemplation of the parties at the time of the dissolution.

The authority for modification of alimony orders and judgments may be found in General Statutes § 46b-86 (a). It allows for the modification of any final order for the periodic payment of permanent alimony at any time after the order is entered “upon a showing of a substantial change in the circumstances of either party.” It is clear, however, that a substantial change in the circumstances of either party which would warrant a modification must be accompanied by facts indicating that the change in circumstances was not contemplated at the time of the entry of the original order and arose thereafter. Serby v. Serby, 4 Conn. App. 398, 400, 494 A.2d 617 (1985). Thus, for modification of alimony, the burden of proof rests with the moving party to show a substantial change in circumstances of either party which was not foreseen at the time the dissolution decree was entered and which arose subsequent to the entry of that decree. Id., 401. That party must demonstrate that continued operation of the original order would be unfair or improper. McGuinness v. McGuinness, 185 Conn. 7, 10, 440 A.2d 804 (1981); Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980).

A trial court has broad discretion in making the determination of whether the facts show this burden has been met. In an appeal of this nature, every reasonable presumption will be made in favor of the trial court’s exercise of discretion, and its decision will not be disturbed unless it acted illegally or unreasonably.

The triggering mechanism to enable the court to consider a modification is that it be outside the contemplation of the parties at the time of the entry of the decree of dissolution. This the court found not to be so. The evidence before the court showed that the defendant remained in the same position he held at the time of dissolution and that the plaintiff, who had suffered a stroke prior to the dissolution, remained disabled. There was, however, no evidence of a previously undisclosed asset nor a startlingly dramatic increase in the defendant’s salary. Cf. Serby v. Serby, supra, 402. Nor was there a substantial deterioration in the plaintiff’s health requiring a modification of the original award; cf. McGuinness v. McGuinness, supra; or other similar development necessitating modification. See Howat v. Howat, 1 Conn. App. 400, 402-407, 472 A.2d 799 (1984). The trial court found that the increase in the defendant’s salary was due to normal increments in salary and due to normal inflation. While the increase in the defendant’s income may appear considerable, when one considers it on an annual compounded basis, it amounts to a twelve and one half percent increase in salary each year, a figure within the range of double digit inflation which plagued the economy of our country during the ten years involved. The trial court’s conclusion that the change in circumstances was not outside the contemplation of the parties, therefore, was not unreasonable or an abuse of discretion.

There is no error.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Michael Kasper et al. v. James R. Anderson et al.
    (3412)
    Hull, Spallone and Daly, Js.

      Argued June 13
    decision released September 24, 1985

      William F. Gallagher, with whom, on the brief, were Robert P. Borquez and JackD. Bamston, for the appellants (plaintiffs).

      Richard J. Parrett, with whom was Gregory P. Kinsella, for the appellees (defendants).
   Spallone, J.

The plaintiffs appeal from a judgment rendered in favor of the defendants following the granting of the defendants’ motion to strike the plaintiffs’ substitute complaint.

The factual situation is uncontroverted and may be summarized as follows: the plaintiffs, Michael and Bunny Kasper, entered into a written agreement with the defendants, James and Anitra Anderson, wherein the defendants agreed to sell and the plaintiffs agreed to buy a certain parcel of land.

The sales agreement provided, inter alia, that the “purchase price is to be paid in manner and form as follows: $2,250 non-refundable deposit; $10,000 second purchase money mortgage at 12 per cent interest, payable monthly, principal due in two years; balance by bank teller’s check on date of closing hereinafter set forth.” The defendants ultimately refused to sell the property to the plaintiffs who, as a result, brought this action to compel specific performance of the sales contract and to enjoin the defendants from selling the property to others.

The defendants moved to strike the original complaint, contending that the contract failed to conform to the requirements of the statute of frauds, General Statutes § 52-550. The trial court granted the motion to strike, finding that the contract provision relating to the second purchase money mortgage was not sufficiently detailed to satisfy the statute. Thereafter, the plaintiffs filed a substitute complaint in which they alleged a modification of the purchase agreement. The alleged modification was in the form of a letter to the defendants, signed by the plaintiffs’ attorney, stating that a second purchase money mortgage would not be necessary and that the plaintiffs would provide the entire purchase price in cash. The defendants moved to strike the substitute complaint, again on the ground that the alleged agreement violated the statute of frauds. The trial court granted the motion, finding that the purported modification failed to satisfy the statute of frauds since it was not signed by the defendants as the parties to be charged and there was no evidence of mutual assent to the modification. In addition, the court concluded that the provision in the agreement regarding the second mortgage was a promise and a term of the sale subject to the requirements of the statute of frauds, rather than a contingency clause or condition precedent to such agreement as claimed by the plaintiffs.

The threshold question presented to us in this appeal is whether the contested second mortgage clause was a contingency to be fulfilled before the agreement became binding or a promise to be performed by the defendants as one of their contract obligations.

Whether the mortgage clause was a contingency or a promise was “a question of the intent of the parties, to be determined, as a matter of fact, from the language of the contract, the circumstances attending its negotiation, and the conduct of the parties in relation thereto. Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); Hughes v. Contemporary Mission, Inc., 180 Conn. 150, 152, 429 A.2d 827 (1980); Otto Contracting Co. v. S. Schinella & Son, Inc., 179 Conn. 704, 709, 427 A.2d 856 (1980); Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645 (1970).” Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981). The determination by the trial court of what the parties intended is a finding of fact “that we must sustain unless it was clearly erroneous in light of the evidence and the record as a whole. Practice Book § 3060D; Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., 184 Conn. 10, 17, 441 A.2d 43 (1981); Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 564, 438 A.2d 759 (1980); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Id. Under this standard of review, we do not find clearly erroneous the trial court’s determination that the language used in the second mortgage provision created a promise, subject to the requirements of the statute of frauds. See McCormick v. Boylan, 83 Conn. 686, 688, 78 A. 335 (1910); cf. Fabutico v. Maher, 182 Conn. 448, 438 A.2d 710 (1980).

We also find no error in the trial court’s conclusion that the letter seeking to modify the agreement did not satisfy the statute of frauds because it was not signed by the party or the agent of the party to be charged, and thus did not cure the defects originally found to exist in the contract.

In an action to enforce a contract for the sale of real property, the party to be charged, within the meaning of the statute, is the party against whom the contract is to be enforced. 72 Am. Jur. 2d, Statute of Frauds § 364; see Hodges v. Kowing, 58 Conn. 12, 19, 18 A. 979 (1889). “The party to be charged” refers to “the party to be charged in the legal proceeding, not the party or parties to be bound by the contract.” 1 Restatement 2d, Contracts § 135, comment a. In this case, the purported modification was signed by the plaintiffs’ attorney, not the parties to be charged in this proceeding, that is, the defendants, or their agent.

Although for purposes of a motion to strike all well pleaded factual allegations are admitted; Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980); this court is not required to accept as true the legal conclusion alleged by the plaintiffs that the agreement was modified by the letter signed by the plaintiffs’ counsel. See Verdon v. Transamerica Ins. Co., 187 Conn. 363, 365, 446 A.2d 3 (1982).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-550 provides: “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; or (5) upon any agreement that is not to be performed within one year from the making thereof.
      “(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.”


author: Per Curiam.

text:
    Lucille Shane et al. v. Ann Tabor et al.
    (3031)
    Dupont, C. J., Borden and Curran, Js.
    Argued June 10
    decision released September 24, 1985

      Thomas W. Mochnick, for the appellant (named defendant).

      Gary G. Cooper, for the appellees (plaintiffs).
   Per Curiam.

This is an action brought by the plaintiffs, Lucille Shane and Katherine Hoffman, to recover the value of their mink coats which were stolen from a restaurant owned by the defendant, Ann Tabor. The plaintiffs turned their coats over to an employee of the defendant and when the plaintiffs went to retrieve them, the coats could not be found. The trial court held that a bailment existed and that the failure of the defendant to return the mink coats when requested to do so raised a presumption of negligence on the part of the defendant, which was not rebutted by the evidence.

Thereupon, the trial court awarded to the plaintiff Shane damages in the amount of $2500, and to the plaintiff Hoffman, damages in the amount of $7500, for their respective mink coats. The defendant has appealed from the judgment of the trial court as to the award of damages only. She argues that there was no evidentiary basis for the trial court’s awards. We disagree.

We first discuss the trial court’s award of $7500 in damages to Hoffman. She testified that her mink coat had a replacement value of upwards of $12,000. “[T]he competence of the witness to testify to the value of property may be established by demonstrating that the witness owns the property in question.” State v. Baker, 182 Conn. 52, 60, 437 A.2d 843 (1980); see also Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982); McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 41, 440 A.2d 801 (1981); Saporiti v. Austin A. Chambers Co., 134 Conn. 476, 479-80, 58 A.2d 387 (1948).

On cross-examination, the defendant elicited testimony from Hoffman as to the amount of insurance carried on the mink coat. As a result of the inquiry, the value of $7500 was introduced. The defendant now argues that the evidence of the amount of the insurance on the mink coat, which she introduced, was admissible solely for impeachment purposes and was inadmissible as substantive evidence of the value of the mink coat. The record before this court does not disclose that the evidence adduced by the defendant was offered for that limited purpose. The trial court, therefore, could properly rely on that evidence to find that the value of the plaintiff Hoffman’s coat at the time of the loss was $7500. The trial court did not err.

We now address the defendant’s claim that Shane failed to adduce sufficient evidence on which the trial court’s award of $2500 to her as damages can be sustained. As previously stated, the competency of a witness to testify as to the value of personal property is established if that witness owns the property. State v. Baker, supra, 60. Shane testified that she believed the mink coat was worth $5000 when it was lost. The record discloses that the foundation for that value was the fact she insured the coat for this amount. This basis for her opinion does not render it incompetent but rather goes to the weight of her testimony, which is a question for the trier of fact, not an appellate court. Perl v. Case, 3 Conn. App. 111, 115, 485 A.2d 1331, cert. denied, 195 Conn. 802, 491 A.2d 1103 (1985).

Shane’s testimony revealed that $5000 was approximately the purchase price of her fur coat, which she purchased three to four years prior to its loss. Further, she testified that she had worn the mink coat approximately one hundred times. Where the nature of the circumstances prevent the amount of the loss from being proven with exactitude, “all that is required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.” Griffin v. Nationwide Moving & Storage Co., supra, 423. In that case, the defendant argued that the amount of damages awarded to the plaintiff was unsupported by the evidence because some items were valued at the figures testified to by the plaintiff, while “the court’s valuation of other items . . . was less than that testified to by the plaintiff and such decreases were not, ‘in any particular ratio or proportion.’ ” (Footnote omitted.) Id., 418-19. Our Supreme Court rejected that argument. Here the defendant similarly challenges the trial court’s award of damages because it differs from the value as testified to by Shane, and we find the argument similarly unpersuasive. There was sufficient proof of damages to sustain the award of damages.

There is no error.

       Giovanni’s Restaurant, Inc., was also a defendant in this action but is not involved in this appeal. We refer in this opinion to Ann Tabor as the defendant.


text:
    Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation et al.
    (3562)
    Dupont, C. J., Borden and M. Hennessey, Js.
    Argued June 7
    decision released September 24, 1985

      John F. Lambert, for the appellants (defendants).

      Irving H. Perlmutter, with whom, on the brief, was Gary P. Sklaver, for the appellee (plaintiff).
   Per Curiam.

The plaintiff insurance agency instituted an action to recover unpaid insurance premiums alleged to be due from the three defendant corporations. From a judgment rendered by the trial court, Hon. John R. Thim, state trial referee, in favor of the plaintiff, the defendants, Harbor Marine Contracting Corporation, Harbor Marine Towing Company, and Harbor Marine Equipment Corporation, appealed. The appeal raises several claims of error, one of which we find dispositive.

The plaintiff had been writing insurance policies for the defendant corporations since 1978 covering the marine operations engaged in by the “Harbor Marine” group of corporations. The defendants did not always pay their premiums and there was an outstanding balance due to the plaintiff. The defendants requested the plaintiff to procure a new insurance policy covering their marine equipment. To finance the payment of the insurance premium and to bring the defendants’ balanee current with the plaintiff, the defendant Harbor Marine Contracting Corporation executed a promissory note with the Bank of New Haven (bank), which required the plaintiff to guarantee only that any return premiums remitted due to cancellation of the policy would be sent to the bank. The proceeds of the note were distributed to the plaintiff. The plaintiff reimbursed itself for a balance past due from the defendants and retained the remainder for disbursement to the insurer as premium installments came due. The installments due under the note were not paid and, subsequently, the policy was cancelled. The plaintiff then repaid the bank the full balance due on the note, believing it was a guarantor of the note. The court awarded the plaintiff damages in an amount equal to the unpaid premiums from the date of the issuance of the policy to the date of its cancellation plus interest thereon.

The defendants argue that the court erred in concluding that the proceeds of the promissory note constituted a conditional payment. The plaintiff, under its agreement with the bank, was only required by the bank to remit any return premiums to it if the policy was can-celled due to the failure to pay the note.

We consider dispositive the defendants’ claim that the court erred in finding that General Statutes § 42a-3-802 (1) (b) was applicable and that the proceeds of the note payable to the bank was a conditional payment to the plaintiff.

The plaintiff received the proceeds of the promissory note which the defendant Harbor Marine Contracting Corporation executed. General Statutes § 42a-3-802 applies where “an instrument is taken for an underlying obligation.” The term instrument is defined in General Statutes § 42a-3-102 as a negotiable instrument which is in turn defined by General Statutes § 42a-3-104. The plaintiff did not take an instrument from the defendants for an underlying obligation and, therefore, General Statutes § 42a-3-802 (1) (b) is inapplicable.

The plaintiff argues that common law principles entitled the trial court to find that payment was conditional. The plaintiff relies on Johnson v. Amarillo Improvement Co., 88 Tex. 505, 31 S.W. 503 (1895). In that case, the creditor, in order to receive payment from the debtor, endorsed the debtor’s promissory note. Consequently, the creditor was obligated to pay the note if the debtor defaulted. The court thus held that the proceeds of the note were conditional as opposed to absolute payment.

The trial court, here, heard evidence on the obligation of the plaintiff and the intent of the parties and decided, as a question of fact, that the proceeds of the note constituted conditional payment. We disagree. The definitive contract language of the obligation which the plaintiff had to the bank makes this a question of law in contrast to a question of fact. Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). That language required only that the plaintiff would return to the bank the unearned premiums due to cancellation of the policy. The plaintiff did not guarantee repayment of the note if the defendant defaulted in payment. Payment by the proceeds of the promissory note under these circumstances was absolute.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

       The plaintiff filed a preliminary statement of issues presenting for review an adverse ruling of the trial court. The claim of error, however, is not properly before us because the plaintiff failed to comply with Practice Book §§ 288 and 3060G (e).


author: D. Dorsey, J.

text:
    Janice Wesson v. City of Milford
    (2935)
    Hull, Daly and D. Dorsey, Js.
    Argued June 17
    decision released September 24, 1985
   D. Dorsey, J.

The complaint alleged that Robert W. Wesson was injured while working at his employment with the city of Milford on April 1,1980. The plaintiff is the wife of Wesson and seeks damages independently of the Workers’ Compensation Act for a negligently inflicted loss of consortium resulting from the alleged negligence of the defendant. The defendant filed a motion to strike the complaint predicated on General Statutes § 31-284 (a). The plaintiff concedes in her brief that Wesson was covered by chapter 568 of the General Statutes, the Workers’ Compensation Act, and has received medical and disability benefits under that act. She also concedes that her husband has no independent right of action against the defendant and that, as to his injury and losses, his exclusive remedy was and is workers’ compensation. The trial court decided the motion on the assumption that the plaintiff meets the definition of “dependent” as defined in General Statutes § 31-275 (4). This assumption was necessary for a construction of General Statutes § 31-284 (a). Subsequently, on November 17,1983, the plaintiff responded to a request for admission by admitting that, on April 1, 1980, she was a dependent of Wesson as defined in General Statutes § 31-275 (4).

The trial court considered the defendant’s motion to strike to be grounded on the theory that General Statutes § 31-284 precluded an independent tort cause of action by a dependent of a covered employee for any accidental injury to an employee occurring during the course of, and arising out of the employment of the employee.

The trial court noted that the plaintiff, while recognizing the weight of authority against her position, relied primarily on decisions from two jurisdictions, Massachusetts and New Hampshire. The court distinguished the Connecticut exclusive remedy statute; General Statutes § 31-284 (a); from the statutes in effect in those states and granted the defendant’s motion to strike. Judgment was thereafter rendered for the defendant, whereupon the plaintiff appealed.

The issue presented by this appeal is whether a spousal dependent is barred by General Statutes § 31-284 (a) from bringing an independent cause of action for loss of consortium predicated on an injury which was compensable under the Workers’ Compensation Act.

The plaintiff contends that because the exclusive remedy provision, General Statutes § 31-284 (a), was enacted in 1913 at a time when the common law right of loss of consortium was not recognized in Connecticut; see Hopson v. St Mary’s Hospital, 176 Conn. 485, 408 A.2d 260 (1979); it cannot be construed to abolish a right not then in existence. The plaintiff also asserts that such a construction would violate due process of law. Conn. Const., art. I §§ 8,10; U.S. Const., amend. XIV § 1.

The defendant argues that General Statutes § 31-284 does bar a spousal dependent from maintaining a cause of action for loss of consortium based on an accidental injury to an employee covered under the Workers’ Compensation Act. The defendant also contends that the equal protection clauses of the United States and Connecticut constitutions do not guarantee the presentation of an action for loss of consortium when the spouse’s injury occurs in a workplace setting.

“We first must examine the applicable standard of review on a motion to strike. The motion to strike; Practice Book § 151; replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading. Practice Book § 152. The motion to strike, like the demurrer, admits all facts well pleaded. The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them; if facts provable under the allegations would support a defense or a cause of action, the motion to strike must fail. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). A motion to strike admits facts only. It does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. McAdam v. Sheldon, 153 Conn. 278, 282, 216 A.2d 193 (1965). We must examine the complaint, assuming the truth of all well-pleaded facts, to determine whether the plaintiff, under each count, has stated a legally sufficient cause of action.” Greene v. Metals Selling Corporation, 3 Conn. App. 40, 41-42, 484 A.2d 478 (1984).

The Workers’ Compensation Act is the exclusive remedy for injuries sustained by an employee “arising out of and in the course of his employment.” General Statutes § 31-284 (a). All rights and claims between employers and employees, or any representatives or dependents of such employees arising out of personal injury or death sustained in the course of employment are abolished, other than rights and claims given by that chapter. Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 375, 423 A.2d 77 (1979).

“Under the working of most ‘exclusive remedy’ clauses [such as § 31-284 (a)], any common-law right of a husband or wife to sue for loss of the wife’s or husband’s services and consortium ... is barred. In rare and unusual circumstances, however, it may be possible to show that the injury to the spouse . . . was such an independent violation of duty that its abrogation was not contemplated by the exclusive remedy provision.” 2A Larson, The Law of Workmen’s Compensation § 66.00. These rare and unusual circumstances involve a truly independent breach of a duty toward a spouse often occurring at a different time and within a different context than the underlying accidental injury to the employee. This theory has no application to the case at hand since the wrong complained of by the plaintiff is rooted in time, place and circumstances to her employee husband’s accidental compensable injury.

The types of exclusive liability statutes vary from state to state. The Massachusetts statute relied upon by the plaintiff provides that the employee, by coming within the act, waives his common law rights. Massachusetts General Laws, c. 152, § 24 (1965). Other states have laws specifying that the employer’s liability shall be exclusive or that he shall have no liability whatsoever. The New York law, N.Y. Workmen’s Comp. Law, § 11 (1968), excludes actions by employees, personal representatives, husbands, parents, next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of injury or death. 2A Larson, supra, § 66.10.

Section 31-284 (a) is not as detailed as the New York statute but it is clear and unambiguous in its exclusion or abolition of claims and rights between employer and employees, or any representatives or dependents of said employees arising out of personal injury or death sustained in the course of employment. Every word in a legislative enactment is presumed to have meaning. State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974). “[Cjourts do not torture words to import ambiguity where the ordinary meaning leaves no room for it.” Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980).

Hopson v. St. Mary’s Hospital, supra, 494, tells us that “because a consortium action is derivative of the injured spouse’s cause of action, the consortium claim would be barred when the suit brought by the injured spouse has been terminated by settlement or by an adverse judgment on the merits.” In Hopson, the court noted a general consensus that where possible the consortium claim should be joined with the claim for personal injury. Id. In a situation such as this, where the injured worker is excluded from the courts and the injured spouse is excluded from the workers’ compensation forum, such practicalities designed to avoid double recovery are not possible.

The landmark case of Hitaffer v. Argonne Co., 183 F.2d 811, 815 (D.C. Cir.), cert. denied, 340 U.S. 852, 71 S. Ct. 80, 95 L. Ed. 624 (1950), stated that “[invasion of the consortium is an independent wrong directly to the spouse so injured.” (Emphasis in original.) It is crystal clear, however, that in Connecticut a consortium action is derivative of the injured spouse’s cause of action. Hopson v. St. Mary’s Hospital, supra. In Greene v. Metals Selling Corporation, supra, the trial court granted a motion to strike the fourth count of a wrongful death claim initiated by the administratrix of the estate of Everett Greene, Jr. The decedent was killed in an industrial accident and the plaintiff pursued a common law action for the wrongful death of her husband on the basis of the alleged wilful and wanton misconduct of the defendant corporate employer. The fourth count of her complaint sought recovery for a loss of consortium by the plaintiff wife individually. The appellate court found no error and sustained the trial court’s decision to strike the entire complaint. In its decision, the court, citing Hopson v. St. Mary’s Hospital, supra, stated that a consortium action is derivative of the injured spouse’s cause of action. In view of these cases, the plaintiff’s position that the injury suffered by the wife was a wrong independent of the injury to the husband cannot be maintained. Since the injury to the spouse of the employee is derivative in nature, it is barred by the sweeping language describing the employer’s immunity. General Statutes § 31-284 (a). 2A Larson, supra, § 66.20, suggests that this sweeping language seems to indicate a legislative intention actually reflected in the majority rule.

The plaintiff argues that the immunity provided by this section applies only to rights that were in existence at the time the Workers’ Compensation Act was enacted in 1913. She reasons that since her right to sue for loss of consortium was not recognized in Connecticut until 1979; Hopson v. St. Mary’s Hospital, supra; it could not have been abolished by legislative action in 1913.

As noted earlier in this opinion, the immunity section is unambiguous. In a recent case the Supreme Court declined to extend an exception to this section; General Statutes § 31-284 (a); which would have denied the immunity to employers for injuries to employees resulting from “intentional” or “wilful” or “reckless” violations by the employee of safety standards established pursuant to federal and state laws such as the federal Occupational Safety and Health Administration Act. The court gave several reasons for declining to construe § 31-284 to permit a further judicial exception to the statute. One reason pertinent to this decision is “that to do so would in this case usurp the legislative function.” Mingachos v. CBS, Inc., 196 Conn. 91, 106, 491 A.2d 368 (1985).

There is no logical reason why the legislature in 1913 could not have intended to abolish prospective common law derivative causes of action, such as actions for loss of consortium, not then recognized in Connecticut. The plaintiff has argued in her brief that such a presently-recognized legally protected interest cannot be deprived without due process of law. 2A Larson, supra, § 66.20, notes that in the great majority of cases such restrictions have survived constitutional attack since the derivative actions barred were not constitutional in origin.

“The legislature in the exercise of its police power can alter or abolish accepted principles of common-law liability to pay compensation for injuries without violating constitutional mandates.” Pierce v. Albanese, 144 Conn. 241, 250, 129 A.2d 606 (1957). “Constitutional justification for such legislation must be found in the nature of the problem confronting the legislature, the purpose to be accomplished, and the means adopted to accomplish it.” Id., 251. “ ‘A statute does not constitute a denial of the equal protection of the laws merely because it extends to some persons privileges denied to others, or imposes restrictions or liabilities on some but not on others. [Absent a suspect classification, or invidious discrimination, such] discriminations render legislation void where they are arbitrary or unreasonable, but not where they are based on real differences . . . and are reasonable in extent.’ ” Silver v. Silver, 108 Conn. 371, 378 143 A. 240 (1928), aff’d, 280 U.S. 117, 50 S. Ct. 57, 74 L. Ed. 221 (1929). “The purpose of the workmen’s compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault . . . .” Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). “In a word, these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” Mingachos v. CBS, Inc., supra, 97. The plaintiff is unable to persuade the court that the Connecticut statute, General Statutes § 31-284 (a), does not bear a rational relationship to a legitimate state purpose and is not based on reasons related to that end.

Under the common law, a wife had no legal claim for the services or society of her husband. Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 (1911). Connecticut first recognized this right in 1979 when Marri was overruled by Hopson v. St. Mary’s Hospital, supra. If the right to sue for loss of consortium is a common law right, the legislature may abolish it. If it is a constitutional right to sue, article first, § 10 of the Connecticut constitution curtails the legislative right to abolish it. If the right to sue for loss of consortium is a constitutionally established common law right or a right extant at the time of the adoption of article first, § 10 of the constitution, the legislature may not abolish the right entirely but may legislate a reasonable alternative to such right. It is clear from Hopson v. St. Mary’s Hospital, supra, that the right to sue for loss of consortium by a wife is not a constitutionally incorporated common law right or a constitutional right. Hence, it may be changed at the will or even the whim of the legislature. See Gentile v. Altermatt, 169 Conn. 267, 283-84, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 463 L. Ed. 2d 631 (1976).

Accordingly, the court is not persuaded that General Statutes § 31-284, by granting immunity to employers from loss of consortium suits by the spouses of workers injured in accidents arising out of and in the course of their employment, violates either the due process clause of the federal or state constitutions or article first, § 10 of the Connecticut constitution.

Concluding as we do, that the right to sue for loss of consortium, by the wife of an injured employee, for damages on account of personal injury sustained by an employee arising out of and in the course of his employment is a derivative right, we must conclude that it is abolished by § 31-284 (a).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 31-275 (4) provides “ ‘Dependent,’ except as provided in section 31-308b, means a member of the injured employee’s family or next of kin who was wholly or partly dependent upon the earnings of the employee at the time of the injury.”

       General Statutes § 31-284 (a) provides: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer,'additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       We deem it unnecessarily burdensome to cite the cases from thirty-six jurisdictions found in the defendant’s brief which, under varying workers’ compensation statutes, have determined that loss of consortium, being derivative of the worker’s rights, cannot constitute the basis of an independent action.

       Conn. Const., art. I § 10 provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”


author: Dupont, C. J.

text:
    State of Connecticut v. Michael V. Schaeffer
    (2243)
    Dupont, C. J., Spallone and Daly, Js.
    Argued June 7
    decision released September 24, 1985

      A. Susan Peck, with whom, on the brief, was Susan K. Smith, for the appellant (defendant).

      Samuel J. Sferrazza, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The core issue of this appeal is whether the defendant’s motion to withdraw his plea of nolo contendere should have been granted by the trial court although it was made two days after the conclusion of the proceeding at which the sentence was imposed. The answer requires an examination of the framework of Practice Book §§ 686 through 722 and the essential components of a voluntary plea of guilty or nolo contendere as mandated by constitutional principles.

On May 18,1983, the defendant entered a plea of nolo contendere to the charge of mansláughter in the second degree with a motor vehicle while intoxicated, a violation of General Statutes § 53a-56b. The plea was accepted by the trial court, Barry, J., which found it to have been made knowingly, intelligently, and voluntarily, with full understanding of the crime charged and of the possible consequences of the plea. During the course of the taking of the plea, the trial court was informed that the state would recommend a sentence of one year if the presentence investigation report substantiated the facts presently known by the state, but that the defendant was free to argue for a lesser sentence. The defendant was specifically advised by the court that the state might vary its recommendation if the presentence investigation report was not as anticipated. The defendant’s counsel stated that it was her understanding and that of the defendant that he would be allowed to withdraw his plea if the state changed its recommendation. The state acquiesced in that understanding. The defendant was told by the court that it was not bound by any recommendation the state might make as to an appropriate sentence, and the defendant stated that he understood. The defendant was not told by the court that if the sentence imposed by the court exceeded the recommendation that he would be allowed to withdraw his plea. Nor did the court inform the defendant that if the case was continued for sentencing, a different sentence might be imposed on sentencing by another judicial authority. The case was continued for the preparation of a presentence investigation report and for sentencing.

On July 19, 1983, the sentencing court, Morelli, J., was informed of the sentence recommendation of the state. It nevertheless imposed a sentence of three years, suspended after fifteen months, with a probationary period of five years, the special condition of which was that the defendant was not to drive a motor vehicle during the entire period of probation. The court did not, prior to the imposition of its sentence, advise the defendant that it would not follow the state’s recommendation and the defendant made no motion to withdraw his plea during the sentencing hearing.*

Written motions to withdraw the plea and to correct the sentence were made two days later. A hearing was held on these motions during which the defendant testified that he believed, when he entered his plea, that if the court felt it must impose a greater punishment than the state’s recommendation, he would have a right to withdraw his plea and go to trial, and he testified that his counsel told him he had such a right. In the defendant’s brief, his counsel states that she so advised him. The court denied both motions.

On appeal, the defendant claims that the trial court, Morelli, J., erred (1) in imposing a sentence which exceeded the recommendation of the state without affording the defendant an opportunity to withdraw his plea, (2) in denying the defendant’s motion to withdraw his plea when the court, Barry, J., had failed substantially to comply with Practice Book §§ 697 and 712, thereby accepting a plea which was not voluntarily or intelligently entered, and (3) in denying his motion for correction of the sentence. At the hearing on the defendant’s motions, the defendant raised no claim that the trial court taking the plea had failed to follow the rules of practice. Implicit in the argument made during the hearing, however, is the claim that the defendant’s plea was not voluntary. Such a claim may be raised on appeal, even if for the first time, since it involves a fundamental constitutional right. State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983).

Plea bargaining is no longer an illicit activity of the state and the defendant, condoned in the back corridors of the courthouse while castigated in the courtroom. Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

A bargain struck between the state and a defendant as to punishment or charge of offense has no constitutional significance in and of itself and only becomes a constitutionally protected interest when the judgment of guilty enters. Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984). A guilty plea, which leads to a judgment of guilty, is equivalent to a profession of guilt in open court; State v. Roach, 447 S.W.2d 553, 556 (Mo. 1969); and its autonomous and voluntary character is compromised when the promises made to induce the plea are unfulfilled. Note, “Plea Bargains—Specific Performance of a Prosecutor’s Unfulfillable Promise: A Right or a Remedy?: Palermo v. Warden, Green Haven State Prison,” 9 Conn. L. Rev. 483 (1977).

Connecticut’s rules of practice sanction plea agreements within certain specified parameters. Such rules of criminal procedure are intended to safeguard the due process rights of an accused. Shorette v. State, 402 A.2d 450, 457 (Me. 1979). Penal statutes and criminal procedural rules are to be strictly construed in order to protect fundamental constitutional rights. State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981).

Under the broad heading of “Disposition Without Trial” our Practice Book contains three subsidiary headings of relevance to this appeal. Practice Book §§ 686 through 698 contain the “Procedure for Plea Discussions”; §§ 708 through 718 concern the “Plea of Guilty or Nolo Contendere”; and §§ 719 through 722 involve the “Withdrawal of Plea.” The procedure for plea discussions, Practice Book §§ 686 through 693, relate to the obligations and possible agreements of the parties which may negate the eventuality of a trial. The other sections involving plea discussions, §§ 694 through 698, concern the obligation of the court to require disclosure of any agreement of the parties which contemplates the entry of a plea of guilty or nolo contendere, and the obligations of the court in the event it accepts or rejects the agreement. Practice Book §§ 708 through 713 contain the obligations of the court to the defendant upon a plea of guilty or nolo contendere before the plea may be accepted and found to be voluntary, and §§ 719 through 722 address the circumstances necessary in order to permit or require the court to allow the defendant to withdraw his plea.

There are three types of plea agreements into which a defendant and the state may enter pursuant to Practice Book § 692. Each of these requires a promise of a defendant to plead guilty or nolo contendere in exchange for the state’s promise to act in a particular way in connection with the charges pending against the defendant or in connection with a proposed sentence. The first species of the general genus of plea agreement is the agreement of the state to amend an information to charge a particular offense or to nolle, recommend dismissal of, or not to bring other charges. Practice Book §§ 692 (1) and (2). The second and third species of agreement involve the sentence to be imposed and are embodied within Practice Book § 692 (3).

That section provides: “The parties may agree that the defendant will plead guilty or nolo contendere on one or more of the following conditions . . . (3) That the sentence or other disposition will not exceed specified terms or that the prosecuting authority will recommend a specific sentence, not oppose a particular sentence, or make no specific recommendation.” A construction of the rule is necessary. “The rules of statutory construction apply with equal force to Practice Book rules.” Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984).

The words “[t]he parties may agree” preface all of subsection (3) and modify both the clause “that the sentence or other disposition will not exceed specified terms” and the clause “that the prosecuting authority will recommend a specific sentence, not oppose a particular sentence, or make no specific recommendation.” The first clause relates to a mutual agreement of both the state and a defendant that a specific sentence should not be exceeded, and the second clause relates to the promise of the state to recommend a specific sentence, not to oppose a particular recommendation or to make no specific recommendation. The word “or” which immediately follows the first clause is disjunctive and not conjunctive. The argument of the state that the first clause refers to an action of the court, that is, its acquiescence in a particular sentence, is rejected.

Thus, in exchange for the defendant’s plea of not guilty or nolo contendere, the parties may both agree that a sentence not to exceed certain specified terms is an appropriate disposition of the case or the state may agree to recommend a particular sentence, not oppose a particular sentence or make no specific recommendation.

A recommendation or request of the state as to a particular sentence made to the court need not be a recommendation of both parties but is, nevertheless, one of the species of plea bargaining and leaves the defendant free to argue for a lesser sentence. State v. Childree, supra; Blue v. Robinson, 173 Conn. 360, 363-65 n.1, 377 A.2d 1108 (1977).

We are not here concerned with a plea agreement as to the crime or crimes with which the defendant is to be charged, nor with a sentence agreement mutually acquiesced in by the parties. We are, rather, concerned with a sentence recommendation, promised by the state and fulfilled by the state. Cf. Santobello v. New York, supra.

Practice Book § 720 deals with when a defendant is allowed to withdraw a plea. He may do so as a matter of right until the plea has been accepted, and after acceptance, upon proof of one of the grounds in Practice Book § 721. The last sentence of Practice Book § 720 provides: “A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

The state argues (1) that the defendant may not withdraw his plea after the conclusion of the sentencing proceeding, not having moved to do so during the proceeding, and (2) that the defendant could not have withdrawn his plea even during the proceeding because the words “plea agreement,” as used in Practice Book § 698, do not include a promise by the state to recommend a particular sentence but refer only to sentence agreements deemed appropriate by both the defendant and the state.

The failure of the defendant to make a motion to withdraw his plea before the conclusion of the proceeding at which the sentence was imposed ordinarily precludes review of claimed infirmities in the acceptance of a plea. State v. Martin, 197 Conn. 17, 21, 495 A.2d 1028 (1985); State v. Kiss, 3 Conn. App. 400, 488 A.2d 845 (1985).

Postsentence attacks on the voluntary and intelligent nature of a plea, however, may be made if the defendant has not been made aware of the true nature of the charge against him because the court failed to apprise him of a crucial element of the charge; State v. Childree, supra; or if the court failed to explain to the defendant his plea operated as a waiver of constitutional rights. State v. Anonymous (1980-9), 36 Conn. Sup. 578, 421 A.2d 557 (1980). If it is apparent on the record that a defendant’s constitutional rights were infringed during the plea taking proceeding or that the defendant was not advised of the consequences of his plea and was therefore denied due process, a plea may be withdrawn even after the sentence proceeding has concluded. State v. Martin, supra, 22. Guilty pleas or pleas of nolo contendere are controlled by federal constitutional standards and by our rules of criminal practice. Id.

If the record does not show that the plea was both voluntary and knowing, the plea was obtained in violation of the due process rights of the defendant and is void. McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976). McCarthy makes it clear that the violation of a criminal rule of practice relating to plea taking will require that the defendant be allowed to plead anew. State v. Battle, supra, was decided before the passage of our rules of criminal practice relating to plea bargaining and did not involve a postsentence assault on a plea canvas. It holds, however, that a court’s discretion to grant or deny a withdrawal of a plea does not apply to cases where the record does not show that the defendant’s plea was voluntary and intelligent at the time it was entered. Id., 475-76. A plea which is invalid ab initio because of a deprivation of due process does not become any more valid after sentence is imposed and the sentencing proceeding has concluded. The rules of finality of pleas apply only to those which are valid in the first place.

In this case, during the course of the plea taking, the defendant was not told by the court in accordance with Practice Book § 697 that since his case was being continued for sentencing, he might be sentenced by another judicial authority who might impose a different sentence from that which was the subject of the plea agreement, and, if so, that he would be allowed to withdraw his plea in accordance with Practice Book § 719. The failure to do so was a violation of the rules of practice and the defendant’s constitutional rights. When a case is continued for the preparation of a presentence investigation report and the court is aware of the sentence recommendation but does not indicate its unwillingness to follow it, the court is implicitly indicating that, although it is not bound by the recommendation, it will probably be accepted. At the time of the accceptance of a guilty plea where a presentence investigation report is necessary, there can be no unconditional promise of the court that a particular sentence will be imposed because that would violate the statutory mandate for such a report and public policy. Any bargain of the parties must be contingent upon its acceptance by the court after its review of the presentence investigation report. There is a difference between the entitlement of a defendant to a particular sentence and the expectation of the defendant that the trial court will follow the recommendation for a particular sentence.

The claim of the defendant that the plea canvas was also defective because the trial court did not inquire of the defendant as to whether the plea resulted from prior discussions between the prosecuting authority and the defendant or his counsel, in violation of Practice Book § 712, is meritless. The record makes it clear that such discussions occurred, that the defendant was aware of them, and that he pleaded guilty because of them.

On the facts of this case, we conclude that Practice Book § 720, relating to the finality of sentencing hearings, did not prevent the trial court from granting his motion to withdraw his plea at a subsequent time.

The state also claims that even if Practice Book § 720 did not preclude the defendant from withdrawing his plea, Practice Book § 698 was inapplicable, and imposed no obligation on the sentencing court to inform the defendant that the recommendation of the state as to the sentence would not be followed. It is the state’s contention that its promise to recommend a particular sentence is not a plea agreement.

Practice Book § 698 provides that “[i]f the judicial authority rejects the plea agreement, he shall inform the parties of this fact; advise the defendant personally in open court . . . that the court is not bound by the plea agreement; afford the defendant the opportunity then to withdraw his plea, if given; and advise the defendant if he persists in his . . . plea of nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.” The use of the word “shall” in criminal procedural rules indicates that a particular requirement is mandatory. State v. Cook, 183 Conn. 520, 522-23, 441 A.2d 41 (1981). A trial court’s failure to follow the mandatory provisions of a criminal procedural rule is plain error. State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981).

Since we have concluded that a recommendation of the state for a specific sentence is a plea agreement within the terms of Practice Book § 692 (3), even if the defendant will argue for a lesser sentence, the trial court has an affirmative mandatory obligation, prior to the imposition of sentence, to tell the defendant that it will not accept the recommendation and to afford the defendant an opportunity to withdraw his plea. See Quintana v. Robinson, 31 Conn. Sup. 22, 319 A.2d 515 (1973).

Other state courts which have considered whether, after the imposition of sentence, the defendant may withdraw his plea have determined that if the trial court did not advise the defendant prior to sentence that it would not honor the agreement and offer the defendant a chance to withdraw it, the plea was not voluntary and knowing, and must be voided. Tamers v. State, 284 So. 2d 402 (Fla. Dist. Ct. App. 1973); State v. Fisher, 223 N.W.2d 243 (Iowa 1974); Shorette v. State, 402 A.2d 450 (Me. 1979); People v. Killebrew, 416 Mich. 189, 330 N.W.2d 834 (1982); Schellert v. State, 569 S.W.2d 735 (Mo. 1978); State v. Goodrich, 116 N.H. 477, 363 A.2d 425 (1976); People v. Smith, 76 App. Div. 2d 891, 429 N.Y.S.2d 29 (1980); Commonwealth v. Fazenbaker, 248 Pa. Super. 433, 375 A.2d 175 (1977); annot., 66 A.L.R.3d 902.

These decisions are in accord with § 4.1 of the American Bar Association Standards Relating to the Function of the Trial Judge (Approved Draft 1972). There is ample authority for the proposition that a defendant should be allowed to withdraw his plea where the judge has not granted the sentence concessions sought, even if the judge had previously warned the defendant that the recommendation need not be followed by the court. Cases such as those cited herein, although there is contrary authority, recognize that if the state is allowed to bargain for a guilty plea in exchange for a recommendation not subsequently followed by the court, without the concomitant ability of the defendant to withdraw that plea in the event the court chooses not to follow it, the defendant’s bargain would effectively have been reduced to a trap. Note, “Criminal Procedure: Withdrawal of Plea as a Matter of Right When Plea Agreement is Rejected,” 44 Mo. L. Rev. 796, 804 (1979). A defendant should not be irrevocably bound to his plea by a promise of the state which has lost its effectiveness upon rejection by the court.

For the plea to be constitutionally viable, the defendant must be aware of the consequences of his plea. State v. Martin, supra, 22. Where the plea agreement includes a nonbinding prosecutional recommendation of sentence, the court, if it decides to reject the recommendation, must so advise the defendant and apprise the defendant of the sentence which it believes appropriate. The defendant must then be afforded an opportunity to withdraw his plea. Otherwise, a full understanding of the consequences of the plea is not present. People v. Killebrew, supra.

The imposition of an appropriate sentence is the function of the court regardless of the bargain of the parties. Plea agreements stem from the desire of the state to obtain a prompt disposition of criminal charges with the certainty of conviction, and from the agreement of the defendant to exchange his constitutional right to a trial, with all of its constitutional safeguards, for the certainty of a known and reduced penalty. The defendant is engaged in barter for the length of his incarceration. People v. Killebrew, supra. The term of imprisonment is a defendant’s “bottom line” and his paramount interest. The length of time a defendant must spend incarcerated is clearly crucial to a decision involving whether he should plead guilty. State v. Collins, 176 Conn. 7, 9-10, 404 A.2d 871 (1978). When the defendant’s reasonable expectation that his sentence will not exceed a particular term is to be defeated because of the trial court’s decision, in the proper exercise of its discretion, that a sentence in excess of an agreed term is appropriate, the defendant must be given the opportunity by the trial court to withdraw his plea. Practice Book § 698 is couched in mandatory terms. The words “afford the defendant the opportunity then to withdraw his plea” imply action by the court in order to provide the mechanism for withdrawal. There is an affirmative obligation on the court. Practice Book § 698 is not fulfilled by placing the onus on the defendant to make a motion to withdraw his plea after the imposition of a “surprise” sentence and before the conclusion of the proceedings.

There is error, the judgment is set aside and the case is remanded with direction to permit the defendant to withdraw his plea.

In this opinion the other judges concurred.

       The state variously described its recommendation as being a sentence not to exceed one year, and a sentence of one year. At the subsequent sentencing hearing, the state recommended a one year sentence and noted that the presentence investigation report found that no probationary period would be necessary should the defendant be incarcerated. For purposes of this opinion, the distinction is of no consequence.

       During oral argument in this court, the parties disagreed as to whether, immediately following the imposition of the sentence, the trial court went into recess. The defendant’s counsel claimed that she had no opportunity to move for a withdrawal of the plea, whereas the state’s attorney claimed that the trial court remained in session long enough for the motion to be made. The transcript of the sentencing hearing provides no answer as to which party is correct. The transcript of the hearing on the postsentencing motions, however, makes it clear that the trial court believed that the defendant had ample opportunity to make such a motion, and that it might have had no alternative at that time but to grant the motion. For purposes of this opinion, it is assumed that the defendant had the opportunity to move to withdraw his plea before the sentencing hearing was concluded.

       In view of the decision of this court, it is unnecessary to reach the third claim of error.

       The rules of practice relating to plea agreements were adopted in 1976. State v. Williams, 173 Conn. 545, 554-55, 378 A.2d 588 (1977).

       General Statutes § 54-91a (a) provides in relevant part: “No defendant, convicted of a crime . . . the punishment for which may include imprisonment for more than one year, may be sentenced, or his case otherwise disposed of, until a written report of investigation by a probation officer has been presented to and considered by the court, if (1) the defendant is so convicted for the first time in this state . . . The defendant in this case had no prior record.


text:
    Alex Poll et al. v. Administrator, Unemployment Compensation Act
    (3521)
    Hull, Borden and Daly, Js.
    Argued June 11
    decision released October 1, 1985

      Colin D. Johnson, with whom, on the brief, was Clarence E. Sawyer, Jr., for the appellants (plaintiffs).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (defendant).
   Per Curiam.

The plaintiffs were employees of the Armstrong Rubber Company at its eastern division facility located in West Haven. The following facts, adopted by the trial court in its memorandum of decision, were derived from the appeal referee’s findings of facts, the transcript of the hearing, and the record prior to the time the cases were consolidated. See footnote 1, supra. The named plaintiff, Alex Poll, was laid off from work for one week in November, 1978, and for another week in January, 1979. Poll filed a claim for state unemployment compensation benefits on November 16,1978. On September 1,1979, the United States secretary of labor issued a certificate of eligibility for trade readjustment allowances (TRA) for Armstrong workers with a retroactive impact date of June 22,1978. TRA are federally funded benefits provided, pursuant to the Trade Act of 1974, 19 U.S.C. § 2101 et seq., in addition to state unemployment compensation, to workers who are permanently or temporarily laid off because of foreign competition.

Poll applied for and received TRA for the above mentioned two weeks in addition to state unemployment compensation benefits. When Poll was laid off for two weeks in February, 1980, and one week in April, 1980, he also received double benefits for these weeks. His total TRA benefits encompassed five of his eligible fifty-two weeks. On April 3,1981, the Armstrong plant was closed and Poll was permanently laid off. Poll filed a new claim for unemployment compensation benefits, which established a new benefit year for state benefits, and applied for a continuation of his TRA benefits, which he commenced to receive again.

In 1981, the Trade Act of 1974 was amended by Congress, effective August 13,1981, to provide: “A trade readjustment allowance shall not be paid for any week after the 52 week period beginning with the first week following the first week in the period covered by the certification with respect to which the worker has exhausted . . . all rights to that part of his unemployment insurance that is regular compensation.” 19 U.S.C. § 2293 (a) (2). Thereafter, on September 30, 1981, Poll was informed by the state department of labor that “[i]n accordance -with [19 U.S.C. § 2293] your TRA benefit period has been redefined as the 52 week period effective 11-25-79, based on your initial TRA qualifying separation of 11-24-78. Since this period has lapsed, your TRA eligibility expires October 3,1981.”

The administrator found, and the appeals referee affirmed, that Poll had filed an initiating claim for state unemployment benefits, effective November 26, 1978, and that he had exhausted all his regular state unemployment compensation benefits with regard to this first claim by November 24, 1979. Thus, it was determined that Poll had fifty-two weeks after November 24, 1979, within which to collect his TRA. Since that period had lapsed, Poll’s benefits were terminated. On appeal, Poll claims that his valid TRA entitlement date was September 21, 1979, and that his benefit period ended on September 21, 1981.

We have reviewed the record and after considering the briefs and arguments of the parties, we have concluded that there is no error in the judgment from which the appeal was taken, and that the well-reasoned, thorough and detailed memorandum of decision filed by the trial court; Poll v. Administrator, 40 Conn. Sup. 305, 498 A.2d 1050 (1985); fully expounds upon and answers the arguments of the plaintiffs. See Herold Fund, Inc. v. Commissioner of Revenue Services, 2 Conn. App. 660, 481 A.2d 761 (1984). We adopt the trial court decision as a statement of the facts and the applicable law, as it would serve no useful purpose to repeat them here.

There is no error.

       The employees’ cases were consolidated before the board of review of the employment security appeals division since they involved the same issue and arose out of the same plant closing. The facts found applicable to the named plaintiff apply as well to all plaintiffs.