text:
    JAMES RANDALL DAVIS v. COMMISSIONER OF CORRECTION
    (14183)
    (14303)
    O’Connell, Foti and Heiman, Js.
    Argued October 26
    decision released November 28, 1995

      Mary Haselkamp, assistant public defender, with whom, on the brief, was Paula Mangini Montonye, assistant public defender, for the appellant in the first appeal (petitioner).

      James A. Shanley, Jr., for the appellant in the second appeal (petitioner).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was Kevin T. Ka,ne, state’s attorney, for the appellee (respondent).
   PER CURIAM.

The petitioner appeals from two decisions of the habeas court dismissing his writs of habeas coipus. Bo tli cases were argued before this court on the same day. Appeal 14303 arises out of the petitioner’s convictions of robbery in the first degree, threatening, and accessory to kidnapping with a firearm in April, 1991. The genesis of appeal 14183 is the petitioner’s convictions of robbery in the first degree and theft of firearm in August, 1991.

A common issue is presented by both appeals and we therefore consider them together. After a review of the records and briefs, and after considering the oral arguments, we conclude that the petitioner has not made a substantial showing in either case that he has been denied a state or federal constitutional right or sustained the burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissals of the petitioner’s claims were predicated on the credibility of the witnesses. The habeas court’s findings were not contested on appeal; the petitioner did not file motions to correct or motions for articulation. See Bush v. Commissioner of Correction, 37 Conn. App. 930, 657 A.2d 724 (1995). Our review of the underlying historical facts found by the habeas court leads us to conclude that they are not clearly erroneous. McKnight v. Commissioner of Correction, 35 Conn. App. 762, 765, 646 A.2d 305, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994).

The appeals are dismissed.

       In appeal 14303, the petitioner also has requested that, should we “not find abuse of discretion or error in the habeas court’s decision regarding the right to appeal,” we “should exercise [our] supervisory authority as set forth in the Practice Book [§] 4138 (6) to allow a late appeal.” We deem this request to be improper as part of this appeal and take no action.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    DIME SAVINGS BANK OF NEW YORK, FSB v. CLARE MURANELLI ET AL.
    (14269)
    Schaller, Spear and Hennessy, Js.

      Argued September 18
    decision released November 28, 1995

      Charles Basil, with whom, on the brief, was Adam L. Bendett, for the appellant (substitute plaintiff).

      William W. Ward, with whom, on the brief, was Steven Stanford Berizzi, for the appellee (defendant Lau-relton House Condominium Association, Inc.).
   HENNESSY, J.

The dispositive issue in this appeal is whether a trial court may order a party foreclosing a mortgage on a condominium unit to make payments in lieu of common charges during the pendency of the foreclosure action. We hold that such an order is inconsistent with General Statutes § 47-258 and, therefore, reverse the order of the trial court.

This appeal arises from Dime Savings Bank’s foreclosure of a mortgage on a condominium unit. Dime Savings Bank commenced the action in 1992, but later moved to substitute FGB Realty Advisors (FGB) as the plaintiff because FGB had purchased the subject note and mortgage. The defendants in the action are Clare Muranelli and Stanley P. Thai, the joint owners of the condominium unit, and the condominium association, Laurelton House Condominium Association, Inc. (association). During the pendency of the action the trial court granted the association’s motion, dated September 20, 1994, which requested that FGB make monthly payments in lieu of common charges to the association during the pendency of the foreclosure action. The trial court found no statutory prohibition to such an order and relied on its equitable powers as authority to order the payments. FGB appeals from that order.

The association asserts that General Statutes § 47-207 allows a trial court to exercise its equitable powers to an extent not inconsistent with the Common Interest Ownership Act (act), General Statutes §§ 47-200 through 47-281. The association argues that the trial court’s order in this case does not contravene § 47-258 of the act or the act in general. We disagree.

General Statutes § 47-258 establishes the priority of liens with respect to foreclosures involving condominiums. As our Supreme Court noted in Hudson House Condominium Assn., Inc. v. Brooks, 223 Conn. 610, 614, 611 A.2d 862 (1992), “[l]iens for delinquent common expense assessments on individual units within an association are creatures of statute” and the governing statute, § 47-258 (b), sets forth the priority of these liens with respect to other liens. Our Supreme Court also recognized that this legislative scheme departs from the common law rule of first in time equals first in right. Id. Section 47-258 (b) establishes a specific priority scheme and delineates which liens may take priority over assessment liens and the extent to which assessment liens may take priority over even those priority liens. This court must respect the intricate priority scheme that the legislature has established.

Section 47-258 (b) first pronounces that “[a] lien under this section is prior to all other liens and encumbrances on a unit except (1) liens and encumbrances recorded before the recordation of the declaration . . . (2) a first or second security interest on the unit recorded before the date on which the assessment sought to be enforced became delinquent . . . and (3) liens for real property taxes and other governmental assessments or charges against the unit . . . .’’Section 47-258 (b) further establishes a super priority lien, as against a first or second security interest, for those assessments that “accrued during the six months immediately preceding the commencement of the foreclosure action . . . .” Hudson House Condominium Assn., Inc. v. Brooks, supra, 223 Conn. 611-12. The intricacies of the scheme are evident. The statute specifies which liens shall have priority and makes all others, including, for example, judgment hens, inferior. This scheme establishes the order in which the lienholders shall be paid from the available equity in the subject real property.

As applied to this case, the scheme, pursuant to § 47-258, is as follows: (1) super priority lien for the six months of assessments; (2) the FGB mortgage, if it is a first or second security interest; (3) the remainder of the unpaid condominium assessments, including those assessments that accrue during the pendency of the action; and (4) other liens, if any. The statute clearly provides a place in the priority scheme for common charges that accrue during the pendency of an action. The trial court’s order disturbs this scheme by subordinating the priority of FGB’s first or second security interest to the association’s hens for those assessments not within the super priority lien.

The order of the court requires that FGB pay the association in lieu of common charges. These payments would then become additional debt that FGB would seek to recover from the equity of the real estate through the foreclosure action. Thus, the total amount of liens asserted against the property will remain the same, except that the association’s lien will have been satisfied by FGB. The effect of the court’s order is to force the holder of a first or second security interest to pay for a subordinate lien, which the holder must then pursue without the assurance of receiving full payment thereon. The legislature already considered the position of condominium associations with respect to other lien-holders, and, had it wanted to enhance the association’s priority further, it would have done so. The statute states that the association’s interest, except for the super priority, shall be subordinate to the first and second security interest. The court’s order rearranges the priority scheme established by the legislature and is, therefore, inconsistent with § 47-258 (b).

The association argues that the court’s order is supported by the policy evidenced in General Statutes § 47-258 (k). While § 47-258 (k) establishes a procedure in some cases for the payment of assessments that accrue during the pendency of an action, the procedure contemplates that the receiver will have funds to collect. If the legislature desired to provide for the payment of assessments during the pendency of an action even when funds are not available, it would have done so. When funds are not available, as in this case, an association must rely first on its super priority lien and next on its lien that must follow those liens specifically set forth in § 47-258 (b).

Finally, the association contends that because a lien for assessments not covered by the super priority lien often remains unpaid, the association will be burdened with that debt. It argues that because these expenditures are used for the common good of all units and the mortgagee often takes title to the unit as a result of the foreclosure action, the mortgagee realizes a gain at the expense of the association. While the association may disagree with the equities of the statutory scheme, this question is not a matter for the judiciary. Hudson House Condominium Assn., Inc. v. Brooks, supra, 223 Conn. 616. “When the statute is clear . . . the appropriate rule is that one cannot be unjustly enriched by a statutory enactment.” (Emphasis in original.) Id., 615.

The order of the trial court is reversed and the case is remanded with direction to deny the motion for payments in lieu of common charges.

In this opinion the other judges concurred.

       General Statutes § 47-258 provides in pertinent part: “(a) The association has a statutory lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes delinquent. Unless the declaration otherwise provides, fees, charges, late charges, fines and interest charged pursuant to subdivisions (10), (11) and (12) of subsection (a) of section 47-244 are enforceable as assessments under this section. If an assessment is payable in instalments, the full amount of ihe assessment is a lien from the time the first instalment thereof becomes due.

        “(b) A lien under this section is prior to all other liens and encumbrances on a unit except (1) liens and encumbrances recorded before the recordation of the declaration and, in a cooperative, liens and encumbrances which the association creates, assumes or takes subject to, (2) a first or second security interest on the unit recorded before the date on which the assessment sought to be enforced became delinquent, or, in a cooperative, a first or second security interest encumbering only the unit owner’s interest and perfected before the date on which the assessment sought to be enforced became delinquent, and (3) liens for real property taxes and other governmental assessments or charges against the unit or cooperative. The lien is also prior to all security interests described in subdivision (2) of this subsection to the extent of (A) an amount equal to the common expense assessments based on the periodic budget adopted by the association pursuant to subsection (a) of section 47-257 which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce either the association’s lien or a security interest described in subdivision (2) of this subsection and (B) the association’s costs and attorney’s fees in enforcing its lien. A lien for any assessment or fine specified in subsection (a) of this section shall have the priority provided for in this subsection in an amount not to exceed the amount specified in subparagraph (A) of this subsection. This subsection does not affect the priority of mechanics’ or materialmen’s liens, or the priority of liens for other assessments made by the association. ...”

       The association earlier moved to dismiss this appeal for lack of a final judgment. This court denied the motion.

       General Statutes § 47-207 provides: “The principles of law and equity, including the law of corporations and unincorporated associations, the law of real property, and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter, except to the extent inconsistent with this chapter.’'

       General Statutes § 47-258 (k) provides: "In any action by the association to collect assessments or to foreclose a lien for unpaid assessments, the court may appoint a receiver of the unit owner pursuant to section 52-504 to collect all sums alleged to be due from that unit owner prior to or during the pendency of the action. The court may order the receiver to pay any sums held by the receiver to the association during the pendency of the action to the extent of the association’s common expense assessments based on a periodic budget adopted by the association pursuant to subsection (a) of section 47-257.”


author: FREEDMAN, J.

text:
    STATE OF CONNECTICUT v. TOMMY BATTLE
    (13256)
    Dupont, C. J., and Foti and Freedman, Js.
    Argued September 18
    decision released November 28, 1995

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, David P. Gold, supervisory assistant state’s attorney, and Dennis J. O’Connell, legal intern, for the appellee (state).
   FREEDMAN, J.

The defendant appeals from a judgment of conviction, following a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1987) § 53a-70, sexual assault in the second degree in violation of General Statutes (Rev. to 1987) § 53a-71 (a) (l), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (l) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) refused to give a “missing witness” instruction regarding the state’s failure to call a certain witness and (2) denied the defendant’s motion to exclude evidence under the constancy of accusation doctrine. The defendant also argues that his convictions of sexual assault in the first degree and sexual assault in the second degree violated his constitutional right against double jeopardy. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1988, the victim, then age eleven, lived with her mother, three brothers, two sisters, the defendant and occasionally the defendant’s son. The defendant is the victim’s great uncle. The defendant rented a portion of his apartment to the victim’s mother and her family because she was having difficulty finding an apartment at that time.

The defendant began sexually molesting the victim approximately two months after she and her family moved in with him. This behavior included the defendant’s rubbing his body against the victim’s body and pulling the victim toward him despite her struggles to break free. On one occasion, the defendant walked into the bathroom when the victim was in the shower, pulled back the shower curtain and, despite the victim’s protests, touched her breasts. On another occasion, the defendant went to the victim’s room while she was sleeping, pulled down her shorts and underwear, forced her legs apart and put his mouth and tongue on her vagina. On another occasion, the defendant again removed the victim’s underwear, forced her legs apart, and penetrated her vagina both with his finger and his penis.

The victim and her family lived with the defendant until a fire in 1989 forced them to seek emergency housing elsewhere. Approximately two years after the incidents with the defendant, when the victim was thirteen years old, she had her first boyfriend. The victim’s mother decided to take her to the Hill Health Center to obtain birth control pills for her. At this point, the victim recounted her allegations of abuse by the defendant, first to her mother’s boyfriend and, on the next day, to a friend of hers. When the victim went to the Hill Health Center, she told the nurse who treated her about the abuse.

Additional facts will be set forth where relevant to a specific claim made by the defendant.

I

The defendant first argues that the trial court improperly refused to instruct the jury that it could draw an adverse inference from the state’s failure to call the boyfriend of the victim’s mother as a witness. The boyfriend was the first adult the victim told of the assaults by the defendant, which had occurred approximately two years previously. The state argues that the defendant did not satisfy his burden of showing that the state would naturally produce the boyfriend as a witness. We agree with the state because any testimony given by the boyfriend would have been largely cumulative.

“The missing witness rule was stated in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). That rule provides that [t]he failure of a party to produce a witness who is in his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause. . . . Two requirements must be fulfilled before a party is entitled to a Secondino charge: the witness must be available, and he must be a witness whom the party would naturally produce.” (Citation omitted; internal quotation marks omitted.) State v. Fleming, 36 Conn. App. 556, 568, 651 A.2d 1341, cert. denied, 233 Conn. 913, 659 A.2d 186 (1995). “A prospective witness whose testimony would be comparatively unimportant, cumulative or inferior to what has been offered, should be dispensed with on the grounds of expense and inconvenience, without the need for an adverse inference charge.” State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989). “Whether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a question of fact for the trier. . . . This court cannot reverse or modify the trial court’s determinations of fact unless they are clearly erroneous.” (Citation omitted.) Id. On the basis of the record before us, we cannot say that the trial court’s decision not to give an adverse inference charge to the jury was clearly erroneous.

As stated previously, the boyfriend of the victim’s mother was the first adult the victim told about the abuse by the defendant. The victim testified that she and her mother’s boyfriend “were close” and that they “could talk about anything and [she] would always come to him for a problem.” Although the boyfriend was not called as a witness at trial, the state produced numerous other constancy of accusation witnesses. Specifically, the victim testified that the day after she told her mother’s boyfriend what had happened, she told a friend. The friend testified that, in the summer of 1990, she had a conversation with the victim in which the victim told her that the defendant had sex with the victim when the defendant was babysitting the victim.

A family and pediatric nurse practitioner who worked at the Hill Health Center testified that she saw the victim on July 19,1990, in connection with the victim’s appointment to obtain birth control pills. She testified that the victim told her during the appointment that she had been sexually abused by a great uncle while her family was living in his home. The victim told the nurse that she had had sexual intercourse with the defendant approximately twelve times. The nurse recalled the victim’s saying that she did not tell her mother of the abuse by the defendant while it was occurring because the defendant had threatened to throw the family out of the house if she did.

The victim’s mother testified that she first learned of the victim’s accusations from her boyfriend and another friend before she took the victim to the Hill Health Center. The victim eventually discussed the abuse with her mother. The victim’s mother also testified that she told health care workers that the victim did not always tell the truth.

Detective Peter J. Marone, Jr., testified that on October 18, 1990, he was employed in the youth division of the New Haven police department and conducted an investigation into a complaint made by the victim. On that date, Marone interviewed the victim at her home, and the victim described to Marone the acts perpetrated on her by the defendant. The victim’s mother, her mother’s boyfriend, and some of the victim’s siblings were present at the interview. The victim acted “embarrassed and shy” during this interview. The victim told Marone that the defendant had threatened to throw her family out of the house if she told anyone what he was doing to her. On October 22, 1990, the victim gave a formal tape-recorded statement to Marone at the New Haven police station, which was played for the jury. Approximately one month after the formal statement was made, the boyfriend of the victim’s mother accompanied the victim to the police station so that she could review and sign her formal tape-recorded statement.

A social worker with the Coordinating Council for Children in Crisis testified that on October 25, 1990, the New Haven police department referred the victim’s case to her. The social worker conducted a tape-recorded interview with the victim concerning her accusations of the defendant’s actions. Several times during the interview, the victim became upset while recounting the sexual abuse. The tape was played for the jury.

The victim had told her cousin about the abuse while it was occurring. The cousin, who was twelve at the time that the victim first told her of the sexual abuse, testified that she did not remember exactly what the victim had told her, but knew the victim had told her the defendant was “messing with her.” The cousin also remembered the victim’s asking her not to tell anyone because the defendant had threatened to throw them out of the house. Subsequently, around the time that the victim’s mother was going to take the victim to the Hill Health Center, the victim told her cousin that the defendant had had sexual intercourse and oral sex with her and that, on one occasion, one of her younger sisters stood in the doorway while this occurred.

Finally, the court read a stipulation of counsel to the jury regarding what a caseworker for the department of children and youth services (department) would have testified to if she had been called as a witness. According to the stipulation, after receiving the referral from the Hill Health Center, the caseworker contacted the victim’s mother, who reported that the victim “tells stories sometimes” but that she had no reason not to believe the accusations regarding the defendant. When the caseworker interviewed the victim on August 8, 1990, the victim reported that she had been molested by the defendant over a six month period in 1988 and 1989 while her family lived with him. The victim told the caseworker that the defendant threatened to kick the family out if she told anyone of the abuse. According to the caseworker’s notes, the victim indicated that she had not told her mother of the abuse but had recently told a neighbor who told the victim’s mother. She also said that two years previously she had told a friend of the abuse.

On the basis of the other constancy of accusation evidence, we cannot say that testimony by the boyfriend of the victim’s mother would have added “peculiar or superior information” over that provided by the other witnesses. State v. Williams, supra, 20 Conn. App. 267. “Because there is no need to give a Secondino charge for a witness whose testimony would have been no more than cumulative”; id.; we conclude that the trial court properly refused to give a missing witness charge as to the state’s failure to produce the boyfriend of the victim’s mother.

II

The defendant next argues that the trial court improperly denied his motion to exclude evidence under the constancy of accusation doctrine. The defendant argues that the testimony of the victim’s mother, the victim’s cousin, Marone, the health center nurse, the social worker, and a friend of the victim, as well as the stipulation with regard to the department caseworker and the victim’s two tape-recorded statements given to Marone and to the social worker, should not come in under the constancy of accusation doctrine because that doctrine is “outmoded, anachronistic, gender biased and violates the guarantees of equal protection.” The defendant also argues that the testimony lacked adequate “indicia of reliability” and “particularized guarantees of trustworthiness” necessary to satisfy constitutional standards. We disagree..

The defendant concedes that we are bound by that part of the Supreme Court’s decision in State v. Kelley, 229 Conn. 557, 565-66, 643 A.2d 854 (1994), which held that the admission of constancy evidence does not violate a defendant’s right to confrontation. The defendant argues, however, that the state constitutional claim is reviewable on the merits. The defendant further argues that the federal equal protection claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We conclude that these claims are likewise foreclosed by State v. Kelley, supra, 557.

In State v. Kelley, supra, 229 Conn. 564, the defendant sought Golding review of his claim that the constancy of accusation doctrine is “ ‘outmoded, anachronistic and gender-biased’ and violates his rights under article first, § 20, of the Connecticut constitution.” With regard to the claim that the doctrine is outmoded and clearly anachronistic, the court noted that the defendant had not demonstrated this argument to be of constitutional dimension. Id. With regard to the claim that the constancy of accusation doctrine is gender biased and violated the defendant’s rights under article first, § 20, of the Connecticut constitution, the court stated that “[although the constancy of accusation doctrine was adopted by this court in a case in which a female sexual assault victim had confided in a female friend . . . we have never restricted its application to female victims. . . . Because the doctrine would apply equally to male and female victims, we conclude that it is not gender biased and, therefore, does not violate the defendant’s rights under article first, § 20, of the Connecticut constitution.” (Citations omitted.) Id., 565; see also State v. Martin, 38 Conn. App. 731, 738-39, 663 A.2d 1078 (1995).

On the basis of the foregoing, we conclude that the defendant’s state and federal constitutional rights were not violated by the admission of the constancy of accusation evidence.

Ill

Finally, the defendant argues that his convictions and separate sentences for sexual assault in the first degree and sexual assault in the second degree constitute double jeopardy under the federal and state constitutions. Specifically, the defendant argues that “the legislative history of the sexual assault statutes evidences a clear legislative intent to prohibit multiple punishments for sexual assault in the first and second degree.” We disagree.

“Double jeopardy prohibits multiple punishments for the same offense. . . . Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision required proof of a fact which the other does not.” (Citations omitted; internal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 571-72, 638 A.2d 578 (1994); see Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

In State v. Russell, 25 Conn. App. 243, 248-52, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991), and State v. Blackwell, 20 Conn. App. 193, 195-98, 565 A.2d 549, cert. denied, 213 Conn. 810, 568 A.2d 794 (1989), we rejected claims identical to that of the defendant. The rationale in those cases was that “[t]he plain language of the two statutory sections indicates that while sexual assault in the first degree requires proof of force or threatened use of force, sexual assault in the second degree does not. . . . Furthermore, in order to convict a defendant of sexual assault in the second degree, the state must show that the victim was under the age of sixteen. . . . The statute proscribing sexual assault in the first degree contains no similar requirement. . . . Application of the Blockburger test demonstrates that these are separate crimes for which the defendant could be prosecuted and punished without violating the prohibition against double jeopardy.” (Internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 69-70, 644 A.2d 887 (1994). The Supreme Court, recently citing Russell and Blackwell with approval, noted that “the legislative history of these statutes does not indicate that the legislature intended that these two statutes be classified as two nominally distinct crimes for which only one punishment could be imposed.” (Internal quotation marks omitted.) State v. DePastino, supra, 228 Conn. 572. Accordingly, we conclude that the defendant’s constitutional rights against double jeopardy were not violated.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 53a-70 (a) provides:“A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.” This is presently General Statutes § 53a-70 (a) (1).

       General Statutes (Rev. to 1987) § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

       General Statutes § 53a-72a (a) provides in pertinent part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . .”

       General Statutes § 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 years or both.”

       In accordance with General Statutes § 54-86e, the names of the minor victim and her family are not used.

       The victim had told a cousin, then age twelve, about the abuse while it was occurring. The victim had asked her cousin not to tell anyone about it.

       The constancy of accusation witnesses were permitted to testify following the court’s denial of the defendant’s motion to exclude constancy of accusation testimony.

       The victim also told the nurse that she had had sexual intercourse once with her boyfriend.

       See footnote 6.

       The defendant concedes that we are bound by Kelley, but goes on to argue that the subject testimony lacked adequate “indicia of reliability” and “particularized guarantees of trustworthiness” to satisfy his right to confrontation. We conclude that this claim is foreclosed by State v. Kelley, supra, 229 Conn. 565-66; see also State v. Martin, 38 Conn. App. 731, 737-38, 663 A.2d 1078 (1995). We also note that constancy of accusation evidence is a firmly rooted exception to the hearsay rule and, as such, satisfies the reliability requirement of the confrontation clause. State v. Martin, supra, 737; see State v. Dabkowski, 199 Conn. 193, 199-203, 506 A.2d 118 (1986).

       Pursuant to these cases, “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.” State v. Golding, supra, 213 Conn. 239-40.

       According to the defendant, six months after he was sentenced in this case, the United States Supreme Court decided J. E. B. v. Alabama ex rel. T.

        B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), which recognized a male litigant’s right to assert that different treatment of women violated fourteenth amendment guarantees. The defendant therefore argues that this claim is entitled to Golding review.

       Although State v. Kelley, supra, 229 Conn. 557, involved only a state constitutional claim, we conclude that it is dispositive of the federal claim as well. While the Connecticut constitution may provide greater protection than that provided under the federal constitution, “particularly when the distinctive language of our constitution calls for an independent construction”; Daly v. DelPonte, 225 Conn. 499, 513, 624 A.2d 876 (1993); it cannot afford lesser protection. See Horton v. Meskill, 172 Conn. 615, 639-53, 376 A.2d 359 (1977). “It is beyond debate that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection lor such rights.” (Emphasis in original; internal quotation marks omitted.) State v. Morales, 232 Conn. 707, 716, 657 A.2d 585 (1995).


author: DUPONT, C. J.

text:
    LEWIS J. BUSCONI ET AL. v. RONALD DIGHELLO ET AL.
    (14330)
    Dupont, C. J., and Lavery and Landau, Js.

      Argued September 14
    decision released December 5, 1995

      Bernard Green, with whom, on the brief, was Mami Smith Katz, for the appellants (defendants).

      Todd H. Lampert, for the appellees (plaintiffs).
   DUPONT, C. J.

The defendants appeal from the granting of a summary judgment for the plaintiffs in their action to foreclose a judgment lien based on a prior judgment that was obtained in the United States District Court for the District of Connecticut and affirmed in the Court of Appeals for the Second Circuit. The dispositive issue is whether a judgment of a federal court, confirming an arbitration award, may be enforced in a Connecticut state court when neither the federal action to compel arbitration nor the federal action to confirm the arbitrator’s award named the owners of the property to be foreclosed as parties or served them with process, but where the arbitration panel found, after the participation by these property owners in the arbitration hearing, that they were alter egos of the named defendant, who was served in the action to confirm, and were therefore all liable to the plaintiffs.

For this court properly to review the state trial court’s granting of the motion for summary judgment, which was based principally on the doctrine of collateral estoppel, a review of the facts found and issues resolved in the underlying federal judgment is necessary.

The original dispute between the named plaintiff, Lewis J. Busconi, and the named defendant, Ronald Dighello, arose from a business relationship in which they had agreed to construct condominiums, a golf course and a marina at a cost of $66 million on 165 acres of property located in Milford. Numerous disputes between them soon frustrated these plans.

In October, 1981, Busconi and Lion Construction Company, owned by Busconi, brought an action against Dighello and By-The-Sea, Inc. (By-The-Sea), seeking to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 4. In 1982, a federal magistrate granted the relief sought and ordered that the parties settle their disputes through arbitration pursuant to a written contract entered into on April 29, 1981. Ruling On Objection To Magistrate’s Ruling, Civ. No. N-81-461 (D. Conn. October 5, 1982). On October 5,1982, the federal District Court sustained the magistrate’s decision to order arbitration. After additional motions and appeals, arbitration finally commenced in May, 1984, before a panel of three arbitrators and concluded in January, 1987. A more complete history of the acrimonious past of the parties is contained in Dighello v. Busconi, 673 F. Sup. 85 (D. Conn. 1987), aff'd, 849 F.2d 1467 (2d Cir. 1988).

After forty days of comprehensive and lengthy hearings, generating more than thirty-eight volumes of transcripts, more than 300 exhibits and extensive briefs and papers, the arbitration panel unanimously found the named defendants and Luxury Property, Inc. (Luxury), and Brandy Incorporated-Milford (Brandy) liable to the plaintiffs and ordered the payment of monetary damages and other relief to the plaintiffs. The liability of Luxury and Brandy was based on the fact that the arbitration panel had found them to be alter egos of Dighello. All of the individuals and coiporations against whom the award ran participated in the hearings before the arbitration panel and were parties in those hearings. At oral argument in this court, the defendants conceded that the arbitration award against Brandy and Luxury was binding.

Before issuing the award, the arbitration panel made a number of findings of fact. The development of the construction project centered around three parcels of land that were either owned or controlled by Dighello through various corporate entities. Parcel A, consisting of eleven acres, contained a golf course, clubhouse, and other improvements. Parcel B, consisting of eighteen and one-half acres and abutting parcel A, was the site of a partially constructed condominium. Parcel C, consisting of thirty-five acres, was totally undeveloped.

In the early 1970s, Dighello began construction on parcel B, which was encumbered by a mortgage. Dighello had defaulted on the mortgage and, as a result, lost the property by way of a foreclosure. Although the mortgagee obtained possession of parcel B, the property was worthless unless used in conjunction with parcel A, which was subject to a separate mortgage provided by a different mortgagee.

When Dighello and Busconi met, Dighello had lost title to parcel B and was in jeopardy of losing parcels A and C. As a result, Dighello and Busconi entered into an agreement in which Busconi would provide the needed funds to reacquire parcel B and to save parcels A and C from foreclosure.

On March 17,1980, after continued negotiations, Bus-coni purchased parcel B from the mortgagee for $1.2 million and provided Dighello with $1.15 million to satisfy the debt owed on parcel A. Once the titles to the property were secure, the parties began to implement plans to build 600 condominium units and to maintain a golf course and marina.

By-The-Sea, a defendant named in the original motion to compel arbitration, transferred a portion of parcel C to Busconi, and Busconi transferred title to parcel B to Brandy, a newly formed corporation wholly owned by Dighello. The purpose of this transaction was to secure special building permits, after which the property would be reconveyed to Busconi. Finally, Dighello conveyed parcel A to Luxury, a corporation controlled by Dighello.

Soon after planning and construction began, Dighello and Busconi began to have disputes regarding the finances, management and construction of the project. As a result, work stopped and Busconi moved in federal court to compel arbitration, which was granted.

The arbitration panel stated in its award that the parties were at issue as to the scope of, and the appropriate parties to, the arbitration. The panel found that Luxury, Brandy, Millionaire, Inc. (Millionaire), and Millstone Country Club, Inc. (Millstone), the latter two corporations being owned or controlled by Dighello, in addition to the named defendants, all “either executed or directly benefited from the various agreements,” and that Dighello clearly owned, dominated and controlled all of these corporations. The panel specifically found that Dighello “dealt with and through those various entities as their alter ego, see Zaist v. Olson, [154 Conn. 563, 573-74, 227 A.2d 552 (1967)].” Accordingly, the panel concluded that all orders entered against Dighello applied equally to By-The-Sea, as well as to Millionaire, Millstone, Luxury and Brandy. The panel awarded specific performance, ordering that Dighello return certain parcels of property to Busconi, create certain easements in Busconi’s favor, and execute certain zoning permits and documents to Busconi. The panel also awarded monetary damages of $5,648,677.20 plus supplemental interest, and found that “Busconi [was] entitled to lien any or all of the properties of Dighello or any of his entities, to secure payment of said award.”

Pursuant to 9 U.S.C. § 9, Busconi moved to confirm the arbitration award, and Dighello and By-The-Sea filed a motion to vacate the award pursuant to 9 U.S.C. § 10. Dighello and By-The-Sea argued that the arbitration panel decided issues not submitted for resolution, that the panel exceeded their scope by binding nonsignatories of the arbitration order, namely Luxury and Brandy, to the arbitration award, and that the award was incomplete, ambiguous, and contradictory. Both the federal District Court and the Court of Appeals rejected these assertions and confirmed the award. Dighello v. Busconi, supra, 673 F. Sup. 85.

In addressing these arguments, the District Court cited several factors that illustrated, even beyond the findings of the arbitration panel, the close entanglement among Dighello, By-The-Sea and the previously mentioned corporations. The court noted that Dighello did not challenge the fact that he owned, controlled and dominated the four corporate entities. The court cited the parties’ arbitration agreement, which stated: “4. With respect to any disputes between the parties, either unresolved issues not affected by this Agreement or any future disagreements, the parties agree as follows: (a) Neither shall commence litigation against the other in any court .... This specific provision shall apply to all entities owned or controlled by the parties hereto, including but not limited to LUXURY PROPERTIES, INC.; (b) In lieu of litigation, DIGHELLO and BUSCONI expressly agree to arbitrate any such disputes under the rules of the American Arbitration Association at Hartford . ”

The court found that the corporations agreed to forego litigation in exchange for arbitrating all disputes involving any and all of the entities owned or controlled by Dighello or Busconi, and that Busconi and Dighello intended to bind nonsignatories to the proceedings when they executed the arbitration agreement. Finally, the court concluded that the arbitration panel had found the corporations so “clearly intertwined” with the project and Dighello that they were merely his alter egos. After citing numerous cases supporting such an analysis, the court affirmed the panel’s authority to make such a determination. The court, therefore, denied the defendants’ motion to vacate the award, and subsequently granted the plaintiffs’ motion to confirm the award. The defendants appealed to the Court of Appeals for the Second Circuit, which affirmed the District Court judgment without opinion.

In Mar ch, 1990, the plaintiffs filed a judgment lien against real properties owned by Luxury, Brandy and By-The Sea. The plaintiffs based the lien on the monetary portion of the arbitration award that the federal court had confirmed. In June, 1991, while such debt remained unsatisfied, the plaintiffs sought foreclosure of the judgment lien on real estate owned by the defendants, which action forms the subject of this appeal.

After some procedural skirmishing, including several motions and the granting of a motion for default for failure to plead and the granting of a motion to open the default, the defendants Luxury and Brandy each filed an answer and four special defenses to an amended complaint on December 16, 1992. In their special defense, the corporate defendants alleged that they were never served with process in the federal proceeding, were not a party to the agreement requiring the arbitration that ultimately served as a basis for the judgment lien, were not bound by the federal judgment because the federal court had no in personam jurisdiction over them, and were not bound to the arbitration award because it was never confirmed against them in a court of competent jurisdiction having in personam jurisdiction over them.

On March 18, 1994, the plaintiffs filed a reply to the special defenses, asserting that the doctrines of res judi-cata and collateral estoppel barred these defenses. On March 29,1994, the plaintiffs moved for summary judgment based on the doctrine of collateral estoppel. The plaintiffs asserted that the defendants were estopped from relitigating the issue of whether the arbitration award bound the corporations Luxury and Brandy because the federal District Court had concluded that the arbitration panel had properly found the corporations to be alter egos of Dighello and had held that the panel properly bound the corporations to the award.

On April 18, 1994, the defendants responded to the motion for summary judgment asserting that the plaintiffs failed to meet their burden of proving that their assertions were true and that no material issues of fact existed. On June 28, 1994, the trial court granted the plaintiffs’ motion for summary judgment. The trial court found that the doctrine of collateral estoppel barred the defendants’ special defenses because the issues had already been litigated in the arbitration proceeding. Since the defendants had no valid defense against the judgment lien, the trial court found the plaintiffs entitled to judgment as a matter of law.

On October 20, 1994, the plaintiffs moved for a strict foreclosure on property owned by Luxury and Brandy, and on December 12, 1994, the trial court rendered judgment. After the denial of a motion to open, the defendants filed this appeal.

The defendants claim that the trial court improperly granted summary judgment because (1) a genuine issue of material fact exists as to whether the underlying federal judgment and the state judgment lien based on the federal judgment are valid, (2) the doctrine of collateral estoppel should not have been applied to bar the defendants’ special defenses and should not have entitled the plaintiffs to a judgment as a matter of law, (3) the plaintiffs failed to address adequately disputed issues of material fact, and (4) the trial court found a debt to be due without evidence. We do not agree with the defendants and conclude that the summary judgment rendered by the trial court should be affirmed.

I

QUESTIONS OF LAW

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 384 provides: “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The trial court must “view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Water & Way Properties v. Colt Mfg. Co., 230 Conn. 660, 664, 646 A.2d 143 (1994). “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... it [is nevertheless] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.” (Citations omitted; internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 247, 618 A.2d 506 (1992); Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990). The mere presence of an adverse claim will not in itself defeat the motion. Wadia Enterprises, Inc. v. Hirschfeld, supra, 247. On the basis of the undisputed procedural history of this case, we find that the trial court properly granted summary judgment.

The defendants claim that there are three issues of material fact in dispute that should have prevented the granting of summary judgment. The first two alleged issues of fact are interrelated and will be addressed together. First, the defendants argue that the plaintiffs incorrectly claim that they obtained a judgment against Brandy and Luxury in federal court. Second, the defendants claim that the judgment hen is invalid because the plaintiffs did not have a valid judgment against the defendants in federal court. The defendants argue that these two issues create a genuine issue of material fact. This issue, however, poses an issue of law, not an issue of fact. Neither party disputes the jurisdictional facts underlying the federal judgment. This case is not about a factual dispute as to whether the corporate defendants were served or named in the action to compel arbitration or in the action to confirm arbitration. It is undisputed that they were not. Rather, this case concerns whether the plaintiffs are entitled to judgment as a matter of law based on the undisputed procedural history of the case. The question, stated another way, is whether, given the undisputed, relevant facts in this case, the federal court had personal jurisdiction over the corporate defendants, Brandy and Luxury, even though they were not named or served.

In accordance with notions of fairness and due process, a state court may, without violating the principles of comity, look behind a federal judgment to determine whether the federal court that rendered the judgment had jurisdiction. Dennison v. Hyde, 6 Conn. 507 (1827). Although a party will be collaterally estopped from raising an issue already litigated in a prior proceeding, a party may collaterally attack a judgment on in personam jurisdictional grounds if personal jurisdiction has not been waived. Samson v. Bergin, 138 Conn. 306, 84 A.2d 273 (1951).

The defendants challenge the enforceability of the judgment lien by claiming that the federal court, which confirmed the arbitration award, lacked personal jurisdiction over the corporate defendants because the corporations neither received service of process nor filed appearances in the plaintiffs’ actions to compel arbitration and to confirm the arbitration award. Although the plaintiffs did not serve Brandy and Luxury with the petition to compel arbitration, they did serve the defendants Dighello and By-The-Sea, who responded to the petition. We conclude that the federal court had jurisdiction to render a valid judgment that could form the basis of a judgment lien, and the basis of a foreclosure of that lien in the Connecticut courts despite the lack of service of process or appearance of the corporate defendants in the federal court.

In determining whether the federal court had in personam jurisdiction over the corporate defendants, this court must begin its inquiry with the Federal Arbitration Act. 9 U.S.C. § 1 et seq.; Metro Industrial Painting Corp. v. Terminal Construction Co., 287 F.2d 382, 385 (2d Cir.), cert. denied, 368 U.S. 817, 82 S. Ct. 31, 7 L. Ed. 2d 24 (1961). The plaintiffs brought the original action in federal court pursuant to the Federal Arbitration Act. That act outlines the procedures, rights and remedies regarding arbitration proceedings. Once a dispute is covered by the act, federal law applies to all “ ‘questions of interpretation and construction as well as questions of validity, revocability, and enforceability . . . ” Metro Industrial Painting Corp. v. Terminal Construction Co., supra, 385, quoting Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2d Cir. 1959), cert. granted, 362 U.S. 909, 80 S. Ct. 682, 4 L. Ed. 2d 618, appeal dismissed, 364 U.S. 801, 81 S. Ct. 27, 5 L. Ed. 2d 37 (1960).

In oral argument in this case, the defendants Brandy and Luxury acknowledged that they had participated in the arbitration proceedings and that they are bound by the arbitration award. A person or entity not named in an arbitration proceeding may be brought into the proceeding if that person or entity is found to be an alter ego of a named party. See Fisser v. International Bank, 282 F.2d 231 (2d Cir. 1960). An arbitration award may be enforced against a nonsignatory who is an instrumentality of a party bound by the arbitration. Id. Therefore, the arbitration panel properly had jurisdiction over Brandy and Luxury, the undisputed alter egos of Dighello.

The legal question to be resolved, therefore, is not whether the award is binding on the corporate defendants, but whether the judgment that confirmed the award is binding on the corporate defendants. In a case decided on the day that the parties argued this case before this court, the United States District Court for the District of Connecticut, in an action seeking a prejudgment remedy and seeking an order under the principles of collateral estoppel to prevent the defendants from denying their alter ego status, held that, since an alter ego is considered an indistinguishable entity, jurisdiction over one defendant constitutes jurisdiction over its alter egos. Northern Tankers (Cyprus) Ltd. v. Backstrom, 901 F. Sup. 72, 77 (D. Conn. 1995). In that case, the plaintiff and one of the defendants, Lexmar Corporation, had submitted a contract dispute to arbitration, and the panel had found Lexmar Corporation liable for $11,172,873.42 in damages. Id., 74-75. While the plaintiffs motion to confirm the arbitration award was pending in District Court, the plaintiff brought an action against Lexmar Coiporation and forty-eight other defendants, “alleging that the other defendants [were] all alter-egos of Lexmar [Corporation] and [were] thus liable for Lexmar [Corporation’s] obligations.” Id., 75.

Several defendants answered the complaint, while others moved to dismiss for lack of personal jurisdiction and insufficient service of process. That court held that “ [s]ince an alter ego is considered to be an indistinguishable entity, jurisdiction over the Answering Defendants establishes jurisdiction over their alter egos.” Id., 77, citing Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 405 (7th Cir. 1986); In re Ocean Ranger Sinking Off Newfoundland, 589 F. Sup. 302, 310-12 (E.D. La. 1984); ACS Industries Inc. v. Keller Industries, Inc., 296 F. Sup. 1160, 1161-63 (D. Conn. 1969). Because an arbitration panel had determined the issue of whether the defendants were alter egos, the defendants had a full and fair opportunity to litigate that issue before the panel. Because the resolution of that issue supported a valid final judgment against the alter ego defendants, probable cause existed to sustain the validity of the plaintiffs claim against the alter ego defendants. Northern Tankers (Cyprus) Ltd. v. Backstrom, supra, 901 F. Sup. 77.

Northern Tankers (Cyprus) Ltd. is not a case of first impression, but simply one more case in which federal courts have held that if an administrative agency or arbitration panel acts in a judicial capacity to resolve disputes and finds facts with an opportunity for the parties to litigate those facts, res judicata should be applied to enforce repose where there has been an opportunity to seek court review of any adverse findings made by the administrative agency or arbitration panel. United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1966). If an entity is an alter ego of the signatory to an arbitration agreement, then that alter ego can become obligated to respond to a monetary award of an arbitration panel. Fisser v. International Bank, supra, 282 F.2d 234-35. A corporation and those who control it are one entity and the acts of one are the acts of all. Id., 234.

The award of the arbitration panel in this case, affirmed by both the federal District Court and the Court of Appeals for the Second Circuit, found Luxury and Brandy to be alter egos of the named and answering defendant, Dighello. By providing notice of the application to confirm to Dighello, the alter egos had notice, and, in fact, they participated in all of the proceedings of the arbitration panel. The corporate defendants do not argue that they did not have notice of the arbitration award or of the confirmation proceeding.

Furthermore, for the purposes of service of application of a motion to confirm an arbitration award pursuant to 9 U.S.C. § 9, state procedural law is applicable under rule 4 (e) (1) of the Federal Rules of Civil Procedure. Hidrocarburos y Derivados, C.A. v. Lemos, 453 F. Sup. 160, 165 n.7 (S.D.N.Y. 1977). Under Connecticut law, a proceeding to confirm or vacate an arbitration award is not considered a civil action, but rather is a special proceeding in which formal requirements of service do not control. Middlesex Ins. Co. v. Castellano, 225 Conn. 339, 344, 623 A.2d 55 (1993). Connecticut law, however, requires that an adverse party have notice of an application within a reasonable time and have the opportunity to be heard. Id.

The argument that although Brandy and Luxury are bound by the arbitration award, they are not bound by a judgment confirming the award is rejected. We conclude that collateral estoppel applies to bar the relit-igation of their special defenses.

Although substantive federal law applies to claims brought pursuant to the Federal Arbitration Act, state law is similar to the federal law as far as it concerns judgments to confirm arbitration awards. A judgment confirming an award has the same force and effect as a judgment in a civil action and may be enforced in the same way. Gary Excavating Co. v. North Haven, 163 Conn. 428, 432, 311 A.2d 90 (1972). A final judgment on the merits is conclusive on both the parties and their privies as to the cause of action involved. Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); James L. Saphier Agency, Inc. v. Green, 293 F.2d 769, 772-73 (2d Cir. 1961). Collateral estoppel, or issue preclusion, derived from the doctrine of res judicata, prohibits subsequent litigation of a different cause of action involving issues determined in a former action between the parties. Corey v. Avco-Lycoming Division, supra, 317; Brockett v. Jensen, 154 Conn. 328, 337, 225 A.2d 190 (1966). For a party to use the doctrine of collateral estoppel with success, three requirements must be met. The issue must have been fully and fairly litigated in the first action, it must have been actually decided, and the decision must have been necessary to the judgment. Corey v. Avco-Lycoming Division, supra, 317; Brockett v. Jensen, supra, 337. “The principles of collateral estoppel always apply where both of the parties in the second action were present in the first action.” Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 402, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989).

In Corey v. Avco-Lycoming Division, supra, 163 Conn. 318, our Supreme Court addressed this application of collateral estoppel. Pursuant to a collective bargaining agreement, the plaintiffs union and the defendant employer arbitrated a grievance based on a claim of wrongful discharge. After the panel found that the employer did not wrongfully discharge the plaintiff, the commission on human rights and opportunities found in favor of the plaintiff. On appeal, a Superior Court found that the doctrine of collateral estoppel applied to bar the commission from making a finding contrary to the arbitration panel’s finding. Id., 315.

Affirming the trial court’s decision, our Supreme Court addressed the issue of whether a decision rendered by an arbitration panel constituted a final judgment that could bar subsequent litigation. Id., 316. The court found that the decision of an arbitration panel is a prior adjudication for purposes of res judicata because the determination of arbitration panels, as those of administrative agencies, have purposes similar to those of a court. Id., 319.

In finding that an arbitration proceeding should be given the effect of a judgment for the purposes of res judicata or collateral estoppel, our Supreme Court stated: “No satisfactory reason can be assigned why an award, which the parties have expressly stipulated should be final as to the subject submitted, should not be as conclusive as a court-rendered judgment.” Id., 318, citing, among others, James L. Saphier Agency, Inc. v. Green, supra, 293 F.2d 772-73, for the proposition that a decision by an arbitration panel may be used to invoke res judicata or collateral estoppel. When we apply this principle to the facts of this case, it is clear that the doctrine of collateral estoppel bars the defendants’ defenses to the extent they were already litigated in the arbitration proceedings.

The special defenses asserted in this action are identical to the issues litigated in the first proceeding, namely, whether the arbitration panel had the authority to bind Brandy and Luxury to the award. The arbitration panel had addressed this issue and expressly found that the defendants were alter egos of Dighello, the named defendant, and, as such, were liable for and bound to the arbitration award. Therefore, to the extent that the defendants attempted to assert this defense, the trial court properly applied the doctrine of collateral estop-pel for the purposes of granting the summary judgment motion in favor of the plaintiffs.

The defendants argue that the plaintiffs failed to show that Brandy and Luxury were in privity with Dighello or By-The-Sea, the parties named in the federal court action to compel arbitration. Since Brandy and Luxury were parties to the arbitration, this privity argument is misplaced. Privity becomes an issue only when a party in the second proceeding was not a party to the first proceeding. Gionfriddo v. Gartenhaus Cafe, supra, 15 Conn. App. 402.

The defendants assert in their brief that “the liability of the defendants Brandy and Luxury, who were not parties to [the action to confirm the arbitration award], was not an issue [litigated].” After reviewing the arbitration award, however, which provides a twenty-two page rationale, much of which is devoted to the the liability of the alter egos, and the District Court decision, which exhausts the issue even further, and counsel’s admission of the participation in the arbitration proceeding by the defendants Luxury and Brandy, the defendants’ argument fails. The purpose of the arbitration proceeding was to determine liability.

We affirm the validity of the judgment lien and the application of the doctrine of collateral estoppel to the defendants’ special defenses because the federal court that confirmed the arbitration award, which resulted in this judgment hen, had jurisdiction over the corporate defendants.

II

QUESTIONS OF FACT

The defendants next claim that the trial court improperly granted the motion for summary judgment because “ownership” of the real property subject to the lien, a material fact, was in dispute. Although the defendants have correctly classified this issue as a question of fact, the trial court properly found that no material fact in dispute exists.

The defendants assert for the first time in their appellate brief that an issue of material fact exists because in their answer to the plaintiffs’ amended complaint they denied that the complaint correctly and accurately describes the land owned by them. On this basis, the defendants argue that the plaintiffs have failed to show that no disputes of material fact exist, and that therefore, the trial court improperly granted the motion for summary judgment.

While the defendants correctly assert that the moving party is required to make a showing that no issues of material fact exist and that they are entitled to judgment as a matter of law, they are mistaken in arguing that a denial in an answer will defeat a summary judgment motion. “Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.” (Citations omitted; internal quotation marks omitted.) Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).

At no time did the defendants provide any affidavits or documents showing a dispute over the description of the property owned by them. Making such an assertion does not create an issue of material fact.

Finally, the defendants argued that the trial court improperly found a debt without evidence. Pursuant to Practice Book § 527, a plaintiff may show evidence of debt by use of an affidavit. The defendants argue that since they have asserted a defense, § 527 no longer applies, and the plaintiffs are required to make further proof of the debt. Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 375, 439 A.2d 396 (1981).

The defendants’ reliance on the plain reading of § 527 and Burritt Mutual Savings Bank of New Britain v. Tucker, supra, 183 Conn. 369, is misplaced. In Burritt Mutual Savings Bank of New Britain, our Supreme Court held that a party may not rely on § 527, which allows a mortgage debt to be proved by affidavit, where a defense as to the amount of the mortgage debt is interposed. Burritt Mutual Savings Bank of New Brit ain v. Tucker, supra, 375. Here, the defendants disclaimed all liability to the underlying judgment and presented no evidence or arguments disputing the amount of the debt. This is not a debt based on a promissory note executed in conjunction with a mortgage deed. The federal District Court rendered a judgment on the award. Dighello v. Busconi, supra, 673 F.2d 85. The award was for a certain sum and that sum is part of the judgment upon which the judgment hen and its foreclosure rest.

Because we find that no dispute over a genuine issue of material fact exists, the plaintiffs are entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       In December, 1993, the plaintiffs filed for injunctive relief in the federal District Court. They sought to enjoin the defendants and related entities from interfering with the plaintiffs’ efforts to enforce the judgment rendered by the federal court. The same District Court judge who had decided Dighello v. Busconi, supra, 673 F. Sup. 85 (Zampano, J.), ruled as follows: “In view of the ruling by this court, affirmed by the Second Circuit Court of Appeals, on the precise issues raised by the parties in their moving papers, the applicability of the doctrines of collateral estoppel, and to some extent res judicata, is clear for an appropriate ruling by the state court. Therefore, in respect for the principle of comity, the motion for injunctive relief is denied without prejudice.”

       If the Federal Arbitration Act was not involved, the substantive law of Connecticut, due to the diversity of citizenship, would apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 2d 1188 (1938).

       Since the named defendants in this action concede that they were parties to the arbitration, the element of mutuality for the purposes of applying offensive collateral estoppel is also not an issue in this case. Gionfriddo v. Gartenhaus Cafe, supra, 15 Conn. App. 401-406.


author: PER CURIAM.

text:
    THOMASINA BULGER v. JAMES LIEBERMAN
    (13832)
    Dupont, C. J., and O’Connell and Lavery, Js.
    Argued November 2
    decision released December 5, 1995

      Anthony A. Piazza, with whom, on the brief, was Wesley M. Malowitz, for the appellant (plaintiff).

      Joyce H. Young, assistant town attorney, for the appellee (defendant).
   PER CURIAM.

In this action based on the wrongful termination of employment, the plaintiff appeals from the judgment of the trial court granting the defendant’s motion for summary judgment. The trial court based its decision on the doctrine of collateral estoppel because the issue of wrongful termination was previously litigated in binding arbitration pursuant to a collective bargaining agreement. We conclude that the issues in this case are governed by Corey v. Avco-Lycoming Division, 163 Conn. 309, 318, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973), and do not fall within the exceptions explicated in Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 628 A.2d 946 (1993).

Accordingly, the general rule outlined in Corey controls, and the factual determinations made in final and binding arbitration are given preclusive effect. See Bus-coni v. Dighello, 39 Conn. App. 753, 766-68, 668 A.2d 716 (1995). The arbitration panel’s unanimous decision that the plaintiff resigned from her employment with the town is binding on her under the doctrine of collateral estoppel and is dispositive of the issues alleged in this case.

The judgment is affirmed.


text:
    DONALD LEE WILLIAMSON v. COMMISSIONER OF CORRECTION
    (14406)
    O’Connell, Foti and Heiman, Js.
    Argued October 26
    decision released December 5, 1995

      Neal Cone, assistant public defender, with whom, on the brief, was Paula Mangini Montonye, assistant public defender, for the appellant (petitioner).

      Denise B. Smoker, deputy assistant state’s attorney, with whom were Patricia A. Swords, state’s attorney, and, on the brief, Pamela S. Meotti, deputy assistant state’s attorney, for the appellee (respondent).
   PER CURIAM.

After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petitioner’s writ was predicated on a factual review of the petitioner’s claim and a determination that the petitioner had failed to rebut the “strong presumption that counsel’s conduct f[ell] within the wide range of reasonable professional assistance Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). The habeas court also found as a fact that it was the petitioner himself who had failed to exercise his appellate rights after having been advised of those rights in open court by both counsel and the trial court, and after the trial court had ordered a sheriff to deliver to the petitioner the written notice of his right to appeal. The petitioner had walked away from the clerk when the clerk had attempted to hand the notice to the petitioner. The notice that was delivered to the petitioner stated the time limit for appeal and that indigent persons have the right to apply for a waiver of fees, costs and expenses and for the appointment of counsel to prosecute the appeal. Practice Book § 945.

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.


text:
    HARRIETTE FEUERMAN v. SIGMUND FEUERMAN
    (14748)
    Dupont, C. J., and Foti, Lavery, Schaller and Spear, Js.
    Argued October 25
    decision released December 5, 1995

      Sandra P. Lax, in favor of the motion.

      Edward R. Giacci, in opposition to the motion.
   PER CURIAM.

The plaintiff in this dissolution action filed a motion to dismiss the appeal and for sanctions in the form of attorney’s fees because the defendant’s counsel failed to appear at the preargument settlement conference. Because the failure to appear at apreargument settlement conference is a serious violation of our rules of practice, we held a hearing on October 25, 1995, to address the plaintiffs claim. We grant the plaintiffs request for sanctions in the form of attorney’s fees, but deny all other relief requested.

After the defendant filed an appeal from the trial court’s judgment in this case, the parties were scheduled to appear before former Justice Robert D. Glass, state trial referee, for a preargument settlement conference on August 29,1995. The appeal form indicates that Ralph Crozier is appellate counsel for the defendant. When Crozier failed to appear at the scheduled preargument conference, Judge Glass waited with the plaintiffs counsel for over one hour, while attempting unsuccessfully to reach Crozier by telephone. Thereafter, Judge Glass made further attempts to contact Crozier to reschedule the conference, but Crozier failed to return any of Judge Glass’ telephone calls.

During this court’s hearing on the plaintiffs request for sanctions, Crozier did not appear. Instead, a partner of his appeared, but could give no reasonable explanation as to why Crozier did not attend the preargument settlement conference. The plaintiffs counsel stated, however, that while she and Judge Glass were waiting on August 29, 1995, Judge Glass asked her to look for Crozier. Because she could not find him, the plaintiffs counsel tried to reach Crozier by telephone, and his secretary said that he was somewhere in the building. Crozier did not contact the plaintiffs counsel to excuse his absence or to discuss this matter with her.

Crozier’s partner who was present at the hearing before this court indicated that he had an unsigned affidavit from Crozier stating that he had been out of the country at the time of the scheduled preargument settlement conference. A signed affidavit from a law student who had worked on this case for Crozier was filed with this court before the October 25,1995 hearing. That affidavit states that Crozier was on vacation during the week of September 7, 1995. These affidavits fail to explain adequately why Crozier could not be present at a preargument settlement conference on August 29, 1995.

“There are three possible sources for the authority of courts to sanction counsel and pro se parties. These are inherent power, statutory power, and the power conferred by published rules of the court. The power of a court to manage its dockets and cases by the imposition of sanctions to prevent undue delays in the disposition of pending cases is ‘of ancient origin, having its roots in judgments . . . entered at common law . . . and dismissals . . . .’ That power may be expressly recognized by rule or statute but it exists independently of either and arises because of the control that must necessarily be vested in courts in order for them to be able to manage their own affairs so as to achieve an orderly and expeditious disposition of cases. . . . Simply stated, ‘[t]he inherent powers of . . . courts are those which “are necessary to the exercise of all others.” . . . (Citations omitted.) In the Matter of Presnick, 19 Conn. App. 340, 347, 563 A.2d 299, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).

Practice Book § 4103 provides in relevant part that the “[f]ailure of counsel to attend apreargument conference may result in the imposition of sanctions under Sec. 4184.” The sanctions imposed are left to the discretion of this court, and may include payment of attorney’s fees to the opposing party. Practice Book § 4184. We conclude that sanctions in the form of attorney’s fees are warranted in this case.

The plaintiffs motion is granted in part and Ralph Crozier, counsel for the defendant, is ordered to pay to the plaintiffs counsel, Belinkie and Lax, attorney’s fees in the amount of $750 within thirty days of the issuance of this order.

       The plaintiffs motion to dismiss also asserts that the defendant filed this appeal only as a dilatory tactic and that the defendant has included certain factual misrepresentations in his appellate brief. We deny any relief sought on those grounds. The sanction of dismissal based on the failure to appear at the preargument settlement conference is also denied.

       At the hearing of October 25, 1995, the plaintiffs counsel submitted an affidavit in support of her request for counsel fees.


author: SPEAR, J.

text:
    WAFEEK ABDELSAYED v. MURTY NARUMANCHI
    (13548)
    Schaller, Spear and Hennessy, Js.
    Argued September 18
    decision released December 5, 1995

      Milo J. Altschuler, for the appellant (defendant).

      Brian M. Gildea, with whom, on the brief, was Robin Stevens, for the appellee (plaintiff).
   SPEAR, J.

The defendant in this defamation action appeals from a judgment rendered in favor of the plaintiff in the amount of $15,000. The defendant claims that the trial court improperly (1) denied his motion for a directed verdict because the plaintiff failed to prove actual malice by clear and convincing evidence and (2) instructed the jury to presume injury to the plaintiffs reputation on a finding that the defamatory words were actionable per se. We disagree with the defendant’s assertions and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At all relevant times, the plaintiff and the defendant were professors in the accounting department of the school of business at Southern Connecticut State University. On March 30, 1989, the defendant wrote a memorandum to the accounting department that accused the plaintiff of plagiarizing the defendant’s idea for a course to be offered at the university. The defendant again accused the plaintiff of plagiarism at a department meeting held the following day. The defendant wrote a letter to the president of the university requesting an investigation of the matter. After an investigation, Anthony Pinciaro, the university’s vice president for academic affairs, found that the plaintiff had not committed plagiar ism. After the finding, the plaintiff demanded that the defendant retract the plagiarism charge. The defendant refused to retract the charge and wrote to the president of the university that he was going to India, and that, upon his return, he was going to review his papers and “revert to this subject.” Pinciaro advised the defendant that there would be no further investigation.

The plaintiff subsequently brought the present action in defamation against the defendant claiming that the defendant’s accusations not only damaged him in his professional capacity, but also caused him to suffer stress as well as lost income as a result of such stress. The plaintiff also claims that the stress interfered with his doctoral studies and caused him to develop an eye twitch. The defendant maintains that the plaintiff suffered no actual injury. At the close of the plaintiffs case, the defendant moved for a directed verdict on the ground that the plaintiff had failed to prove actual malice by clear and convincing evidence. The defendant also argued that the plaintiff was required to prove actual injury to his reputation, but had failed to do so. The trial court, in denying the defendant’s motion, concluded that proof of injury to the plaintiffs reputation was not required, but would be presumed if the alleged defamation was found to be actionable per se.

The trial court thereafter instructed the jury: “Now, in a case involving defamation, where the defamatory words are actionable per se, and I have instructed you that they are if you find them to be false, the law conclusively presumes the existence of injury to the plaintiffs reputation. The plaintiff is not required to plead or prove general damages. Where defamatory words are actionable per se, the plaintiff is entitled to recover what we call general damages even in the absence of any allegation as to them or specific proof of their amount.” The jury returned a verdict for the plaintiff in the amount of $15,000. After denying the defendant’s motion to set aside the verdict, the court rendered judgment for the plaintiff. This appeal followed.

I

The defendant first maintains that the trial court improperly denied his motion for a directed verdict because the plaintiff, according to the defendant, failed to present clear and convincing evidence of actual malice. In light of the evidence presented at trial, we do not agree.

The trial court ruled that the plaintiff was, in fact, a public figure. This ruling is consistent with our Supreme Court’s holding in Kelley v. Bonney, 221 Conn. 549, 581, 606 A.2d 693 (1992), where the court concluded that “a public school teacher is a public official for defamation purposes.” As such, the law placed the burden on the plaintiff to prove actual malice by clear and convincing evidence. We must now review whether the plaintiff met this burden.

It is well settled that a public official is precluded from recovering damages for defamation unless he or she proves that the defamatory statement was made with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); Holbrook v. Casazza, 204 Conn. 336, 342, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false. New York Times Co. v. Sullivan, supra, 279-80; Woodcock v. Journal Publishing Co., 230 Conn. 525, 535, 646 A.2d 92 (1994), cert. denied, U.S. , 115 S. Ct. 1098, 132 L. Ed. 2d 1066 (1995). A negligent misstatement of fact will not suffice; the evidence must demonstrate a “purposeful avoidance of the truth.” Harte-Hankes Communications, Inc. v. Connaughton, 491 U.S. 657, 692, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989). Moreover, the plaintiff must prove actual malice by the heightened standard of clear and convincing evidence. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 773, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986); Brown v. K.N.D. Corp., 205 Conn. 8, 10, 529 A.2d 1292 (1987).

Our standard of review is governed by the constitution and case law. In defamation cases where the trial court has found actual malice on the part of the defendant, we have an obligation and the “constitutional responsibility” to make an independent review of the record to make sure that there has been no forbidden intrusion on the right of free speech. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984); see also Woodcock v. Journal Publishing Co., supra, 230 Conn. 536; Brown v. K.N.D. Corp., supra, 205 Conn. 14. “There is no doubt . . . that a trial court finding of actual malice in a defamation case requires an appellate court to conduct an independent review of the record and to draw its own conclusion as to whether actual malice has been proven by clear and convincing evidence.” Brown v. K.N.D. Corp., supra, 12.

Having conducted an independent review of the record, we are persuaded that the proof of actual malice presented at trial evidences the convincing clarity required by the constitution and our case law. The record demonstrates that the defamatory words used by the defendant were made with actual knowledge or reckless disregard of their falsity.

The defendant first accused the plaintiff of plagiarism in a memorandum dated March 30, 1989, submitted to the accounting department that read in part: “I remember having read ... of a copy-cat proposal to introduce a course on financial statement analysis. I have the following comments to make concerning this: 1. The gentleman that made this proposal did not have the honesty to point out that that course proposal originated from me. Under other circumstances this would have been considered as nothing short of plagiarism. . . .” At a meeting with Pinciaro, the university’s vice president for academic affairs, Alan Leader, the dean of the university’s school of business, and Roger Bergh, the vice president for student and university affairs, the defendant once again accused the plaintiff of “[committing] plagiarism by not providing recognition to him as being the author of the proposal to establish a financial statement and analysis course at the institution.”

Contrary to the defendant’s allegations, the evidence reveals that the idea for a course on financial statement analysis did not originate with the defendant. In his testimony, the defendant admits that he “took the course from the person that had created the course in United States colleges.” Consequently, the defendant knew, at the time he wrote his original memorandum accusing the plaintiff of plagiarism, that his statement that the “course proposal originated from me” was false. The defendant further admitted at trial that although he accused the plaintiff of copying his idea to propose the course, the defendant, in fact, never proposed such an idea.

Also, there was ample, uncontroverted testimony from university officials and accounting professors that the idea for a course in financial statement analysis was not sufficiently original to constitute plagiarism. Relying on this testimony, the jury could reasonably have concluded that the defendant also knew that the actions taken by the plaintiff could not constitute plagiarism.

The record also reflects evidence of ill will between the parties. While “proof that a defamatory falsehood has been uttered with bad or corrupt motive . . . will not be sufficient to support a finding of actual malice . . . such evidence may assist in drawing an inference of knowledge or reckless disregard of falsity.” (Citations omitted; internal quotation marks omitted.) Holbrook v. Casazza, supra, 204 Conn. 346-47; see also 3 Restatement (Second), Torts § 580A, comment (d) (1977). In his testimony, the plaintiff maintained that the relationship between the defendant and the plaintiff “was one of hostility” ever since 1985 when the plaintiff decided not to vote for the “[defendant’s] proposal to separate the Accounting and Finance Department.” In fact, the defendant concedes in his brief that “there is evidence of ill-will and litigation between these parties.” Consistent with our Supreme Court’s holding in Hol-brook, such evidence weighs heavily in our evaluation as to whether the defendant acted with the requisite malice.

Likewise, “[a] refusal to retract a statement that has been demonstrated to be false and defamatory ‘might be relevant in showing recklessness at the time the statement was published.’ ” Holbrook v. Casazza, supra, 204 Conn. 349, quoting 3 Restatement (Second), supra, § 580A, comment (d). In the present case, Pinciaxo investigated the accusation of plagiarism and concluded on May 18, 1989, that “plagiarism was not committed by [the plaintiff].” Thereafter, on June 2, 1989, the plaintiff wrote in a letter to the defendant: “I am therefore demanding an immediate public apology from you and that you formally retract your libelous charge of plagiarism against me at once.” At trial, the defendant admitted that he did not retract his statement or “respond in any fashion whatsoever to the letter of Mr. Abdelsayed.”

In sum, the defendant’s refusal to retract the statement, the demonstrated ill will between the parties, the defendant’s admission that the idea for the course did not originate with him, and his admission that he never proposed the idea to the department are evidence of “ ‘the high degree of awareness of [the statement’s] probable falsity’. . . .” Holbrook v. Casazza, supra, 204 Conn. 349, quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964). The trial court therefore properly denied the defendant’s motion for a directed verdict because the record demonstrates proof of actual malice with the convincing clarity required by law.

II

The defendant next claims that the trial court improperly instructed the jury to presume the existence of injury to the plaintiffs reputation. He argues that the trial court should have instructed the jury that injury to the plaintiffs reputation must be proven to recover for defamation. The defendant, however, has failed to preserve this claim properly for appeal. Our rales of practice preclude us from considering claims of error unless they are distinctly raised at trial. See Practice Book § 4185. Specifically, Practice Book § 315 provides that our courts “shall not be bound to consider error as to the . . . failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken by the party appealing immediately after the charge is delivered. . . .” In the present case, the defendant did not take exception to the jury charge on the issue of presumption of injury immediately after the trial court delivered its instruction. Further, while the defendant did prepare a written request to charge, that proposed charge did not distinctly address the issue the defendant now raises. We, therefore, do not address his claim on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s request to charge stated in part: “In order for you to find that this statement was defamatory, you must find by clear and convincing evidence that it tends to harm the reputation of the plaintiff as to lower him in the estimation of the community [so as] to deter third persons from associating or dealing with him." We find that these words did not sufficiently afford notice to the trial court as to the claimed error the defendant now raises.

       We note, however, that the defendant’s improperly preserved claim has no merit.The defendant maintains that there must exist actual injury to the plaintiffs reputation for a statement to be considered defamatory. This claim contradicts well settled principles of law. “To be defamatory, it is not necessary that the communication actually cause harm to another’s reputation . ... Its character depends v.pon its general tendency to have such an effect.” (Emphasis added.) 3 Restatement (Second), supra, § 559, comment (d). To prove the existence of a defamatory statement, therefore, the plaintiff need not prove actual injury, but instead, only a tendency to injure.
      Moreover, the trial court’s charge instructing the jury to presume the existence of injury to the plaintiffs reputation comports to the law of defamation as it has evolved in our state. While a plaintiff must ordinarily prove iryury to reputation as general damages in order to recover, our courts have outlined an exception to this requirement. “When the defamatory words are actionable per se, the law conclusively presumes the existence of ipjury to the plaintiffs reputation. He is required neither to plead nor to prove it.” Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952); see also Battista v. United Illuminating Co., 10 Conn. App. 486, 492, 523 A.2d 1356, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987).
      This court has delineated specific categories of speech deemed actionable per se where “the defamatory meaning of [the speech] is apparent on the face of the statement . . . .” Battista v. United Illuminating Co., supra, 10 Conn. App. 491-92. One such category is speech that is likely to injure one in one’s business and profession. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 612, 116 A.2d 440 (1955); Proto v. Bridgeport Herald Corp., 136 Conn. 557, 566, 72 A.2d 820 (1950). The defendant’s charge of plagiarism in the present case falls squarely within this category because his statements were likely to injure the reputation of the plaintiff as a professor and accountant. As such, the plaintiff was not required to prove actual damages, but was instead entitled to a presumption as to ipjury to his reputation. The trial court’s jury charge was, therefore, proper.


text:
    FEDERAL HOME LOAN MORTGAGE CORPORATION v. LAURANCE R. BARDINELLI ET AL.
    (14850)
    Dupont, C. J., and O’Connell and Heiman, Js.
    Argued October 27
    decision released December 12, 1995

      Margaret J. Slez, for the appellant (named defendant).

      Leanne M. Kinsley, for the appellee (plaintiff).
   PER CURIAM.

The defendant Laurance R. Bardinelli appeals from the judgment of foreclosure by sale following the granting of the plaintiff’s motion for summary judgment. He claims that the trial court improperly granted the motion for summaiy judgment and, consequently, improperly rendered the subsequent foreclosure judgment because the notice of default did not comply with the mortgage deed. We affirm the judgment of the trial court.

The record discloses that on September 15,1989, the defendant executed a promissory note payable to the plaintiffs predecessor. This note was secured by a mortgage deed on property at 4 Leighton Road in Trumbull. In early 1994, the defendant defaulted in payment.

Paragraph nineteen of the mortgage deed required that before the plaintiff could accelerate the entire unpaid balance due on the note, it must notify the borrower of his right to cure the default. The portion of paragraph nineteen at issue in this appeal provides: “The notice shall specify ... a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured . . . .”

In accordance with paragraph nineteen, the plaintiff’s predecessor sent the defendant a letter dated July 6, 1994, which stated that “to cure the default condition, you must remit $5,731.75 to our office . . . within thirty (30) days from the date of this letter.” The defendant contends that this notice was inadequate because it did not specify a date by which the default could be cured.

The plaintiff filed a motion for summary judgment that the trial court granted after concluding that there was no genuine issue of material fact. Following the defendant’s reservation of his right to appeal pursuant to Practice Book § 4002, the trial court rendered a judgment of foreclosure by sale.

Our examination of the record and briefs and consideration of the arguments of the parties persuade us that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the summary judgment issue in a manner consistent with the law. Federal Home Loan Mortgage Corp. v. Bardinelli, 44 Conn. Sup. 85, 667 A.2d 1315 (1995). Because that memorandum addresses the argument raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on this issue. “It would serve no useful purpose for us to repeat the discussion contained therein.” State v. Mobley, 33 Conn. App. 103, 105, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994); LaValley v. Correia, 33 Conn. App. 41, 43, 632 A.2d 1143 (1993).

The defendant contends that the rendering of the foreclosure judgment was improper. This contention, however, is not based on the merits, but is predicated on the defendant’s claim that the trial court improperly granted summary judgment. Because the motion for summary judgment was properly rendered, there was no impediment to the rendering of the judgment of foreclosure by sale.

The judgment is affirmed.

       Wo refer in this opinion to Laurance R. Bardinelli as the defendant. Laurance Bardinelli’s former wile, Kathleen A. Bardinelli, also executed the note and mortgage. On August 29, 1991, Kathleen Bardinelli quitclaimed her interest to Laurance Bardinelli. Although she is named as a defendant in this action, Kathleen Bardinelli has not. part icipated in the case or the appeal.

         The original mortgagee, Bank Mart, assigned the note and mortgage to the plaintiff on October 22, 1991.

       Practice Book § 4002 provides in pertinent part: “A judgment. . . which disposes of certain of the issues . . . may be treated as a final judgment for the purpose of an appeal .... Alternatively, the party or parties may reserve their appeal until the final judgment is rendered which disposes of the cause for all purposes . . . provided, in such a case, that notice of such reserving of appeal shall be filed in the trial court . . . .”