text:
    Edart Truck Rental Corporation v. B. Swirsky and Company, Inc.
    (8348)
    Dupont, C. J., Foti and Lavery, Js.
    Argued June 4
    decision released September 4, 1990

      Frederick W. Krug, for the appellant (defendant).

      Kimball Haines Hunt, for the appellee (plaintiff).
   Dupont, C. J.

This is an appeal by the defendant from a judgment by the trial court awarding rental payments, finance charges and attorney’s fees to the plaintiff. The defendant claims that the trial court should' not have (1) found that the defendant’s employee had the apparent authority to bind the defendant to a rental agreement, (2) concluded that the plaintiff’s claims were not barred by equitable estoppel, (3) held that the small print format of the contract did not rise to the level of unconscionability, and (4) found, on the defendant’s counterclaim, that the defendant failed to prove a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA). We affirm the trial court’s judgment.

The trial court found certain facts relevant to its determination. In June, 1986, Joseph Swirsky, a director of the defendant corporation and a person of considerable business experience, determined that the company needed to rent a large truck in order to carry on its paper recycling business. He arranged for the rental of the truck by telephoning the plaintiff and discussing rental terms with the plaintiff’s branch manager. Shortly after this conversation, Swirsky sent one of the company’s truck drivers to pick up the truck, instructing the driver to sign whatever papers were necessary to obtain the truck.

The driver signed the plaintiff’s rental agreement, a form contract that has its substantive provisions printed in very small type on its reverse side. As instructed by the rental agent, the truck driver put the agreement in the glove compartment of the truck. Swirsky knew that the agreement was in the truck, but he made no effort to read it. The defendant paid rent for the truck as it became due.

In October, 1986, the vehicle developed mechanical problems and was returned to the plaintiff. Swirsky sent the same driver to pick up a replacement truck. Once again the driver signed an agreement and placed it in the truck’s glove compartment, where it, like the first agreement, remained unexamined by Swirsky. Later in October, the replacement truck was severely damaged in an accident while being operated by the defendant’s driver. It was returned to the plaintiff for repairs. Pursuant to the rental agreement, the defendant was billed $6638.74 for continuing rent while the truck was disabled. The defendant’s insurance policy did not cover rent for the time of the truck’s disability. The defendant refused to pay these rental charges. The issues in this case revolve around the provision in the agreement requiring the defendant, as the renter of the truck, to pay rent while the truck is out of service and undergoing repairs.

The defendant first claims that the trial court should not have found that the defendant’s driver had the apparent authority to bind the corporation to the plaintiff’s rental agreement by his signature. Apparent authority is derived not from the acts of the agent but from the deliberate or inadvertent acts of the principal. Norwalk v. Board of Labor Relations, 206 Conn. 449, 451, 583 A.2d 694 (1988); Lettieri v. American Savings Bank, 182 Conn. 1, 8, 437 A.2d 822 (1980); Newtown Associates v. Northeast Structures, Inc., 15 Conn. App. 633, 638, 546 A.2d 310 (1988).

Apparent authority has two elements. First, it must appear from the acts of the principal that “the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority . . . " Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69, 255 A.2d 845 (1969). Second, the party seeking to bind the principal must have acted in good faith reliance on that appearanee of authority. Id. Courts have developed the doctrine of apparent authority “to protect, under proper circumstances, a third person in his dealings with an agent who lacks express authority.” Keeler v. General Products, Inc., 137 Conn. 247, 251, 75 A.2d 486 (1950).

“The issue of apparent authority is one of fact, requiring the trier of fact to evaluate the conduct of the parties in light of all the surrounding circumstances. . . . Only in the clearest of circumstances, where no other conclusion could reasonably be reached, is the trier’s determination of fact to be disturbed.” (Citations omitted.) Lettieri v. American Savings Bank, supra, 9; see also Newtown Associates v. Northeast Structures, Inc., supra; Bank of Montreal v. Gallo, 3 Conn. App. 268, 273, 487 A.2d 1101 (1985). Apparent authority may be derived from a course of dealing. 3 Am. Jur. 2d, Agency §79.

In this case, the defendant’s driver twice picked up trucks that had been rented from the plaintiff. All rental charges were paid without complaint while the trucks were in service. The plaintiff, therefore, could have reasonably concluded that the driver had the authority to act for the defendant in this transaction. As a result, the plaintiff entrusted to the driver an expensive vehicle, which was subsequently severely damaged while in the defendant’s possession.

The defendant also claims that the plaintiff lacked the requisite good faith reliance on the appearance of authority because the plaintiff did not review the contract with the driver and, rather than instructing the driver to deliver the document directly to Swirsky, told him to keep the agreement in the glove compartment to prove that the truck was a leased vehicle. Swirsky, however, knew that the driver had signed a form that was kept in the truck, and could have read it at any time. A “principal cannot be justified in willfully closing Ms eyes to knowledge.” 1F. Mechem, Agency (2d Ed.) § 404.

Considering the circumstances of tMs case as a whole, the trial court had an ample factual basis to find that the defendant’s driver had the apparent authority to bind the defendant to the rental agreement in its entirety.

In its second claim, the defendant asserts that the plaintiff should be estopped from enforcing the rental agreement because the plaintiff’s use of a small print contract, combined with its failure to explain the contents of the contract, is a deceptive practice. “Estoppel ‘requirefs] proof of misleading conduct by one party resulting in detrimental reliance by the other.’ Latimer Point Management Corporation v. Anderson, 1 Conn. App. 310, 313, 471 A.2d 670 (1984).” Hunt v. Friedman, 6 Conn. App. 720, 722, 507 A.2d 498 (1986). The plaintiff’s rental agreement is very hard to read, and not designed to enlighten an unwary consumer. There was, however, no detrimental reliance on that document because the defendant knew of its existence and location and did not attempt to read it or discover its contents by any other means. The court, therefore, correctly found that the defendant had the knowledge, means and opportunity to learn the document’s provisions.

“We cannot predicate an estoppel in favor of one whose own omission or inadvertence has contributed to the problem at hand.” Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 565, 316 A.2d 394 (1972). The party claiming an estoppel “must show that [it] exercised due diligence to know the truth, and that [it] not only did not know of the true state of things but also lacked any reasonably available means of acqmring knowledge.” S.H.V.C., Inc. v. Roy, 188 Conn. 503, 511, 450 A.2d 351 (1982). Estoppel is a question of fact that is determined by the trial court. New York Annual Conference v. Fisher, 182 Conn. 272, 300, 438 A.2d 62 (1980); Latimer Point Management Corporation v. Anderson, supra. Thus, this court will not disturb the finding of the trial court on this matter unless it is clearly erroneous. Pandolphe’sAuto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Latimer Point Management Corporation v. Anderson, supra. The finding in this case is supported by the evidence and, therefore, the court’s conclusion that estoppel did not bar the plaintiff’s claim is correct.

In its third claim the defendant asserts that the plaintiff’s contract is unconscionable because (1) it enables the plaintiff to impose rental payments unlimited by time, and (2) the plaintiff did not specifically inform the defendant of the continuous rental payment provision.

The purpose of the doctrine of unconscionability is to prevent oppression and unfair surprise. J. Calamari & J. Perillo, Contracts (3d Ed.) § 9-40. Unconscionability is a question of law to be determined by the court in light of all the facts and circumstances of the case; Iamartino v. Avallone, 2 Conn. App. 119,125, 477 A.2d 124, cert. denied, 194 Conn. 802, 478 A.2d 1025 (1984); and “is thus reviewable by us, unlimited by the ‘clearly erroneous’ standard.” Id. The Uniform Commercial Code, as adapted by Connecticut courts, contains a basic test for examining a claim of unconscionability. That test is whether, in light of the general commercial background and the commercial needs of the particular trade, “ ‘ “the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract.” ’ ” Texaco, Inc. v. Golart, 206 Conn. 454, 462, 538 A.2d 1017 (1988); Uniform Commercial Code § 2-302, comment 1; see also Bennett v. Fun & Fitness of Silver Hill, 434 A.2d 476, 481 (D.C. App. 1981).

The clause in the contract that allows the plaintiff to continue to hold the defendant liable for rent after the truck has been disabled is a means of allocating the risk of loss. The fact that parties contract to allocate a risk of loss is not unconscionable per se. See General Statutes § 42a-2-509. A party seeking to void such a clause must show that the clause bears no reasonable relation to the risks involved. Phillips Machinery Co. v. LeBlond, Inc., 494 F. Sup. 318, 324 (N.D. Okla. 1980); Tulowitzki v. Atlantic Richfield Co., 396 A.2d 956, 960 (Del. 1978). The defendant here made no such showing, nor did it claim a lack of good faith on the part of the plaintiff in not having the repairs made promptly. The payments required for the period the truck was undergoing repairs were neither a penalty against the defendant nor a windfall to the plaintiff, but a fair measure of the loss the plaintiff sustained by having a truck out of service. We decline to find, on the basis that the rental payments were open-ended as to the duration of the payments, that the contract was substantively unconscionable.

The defendant’s other claim of unconscionability is that the defendant was not informed of the “continuous” rental payment provision. If the substantive provisions of a contract are hidden in a maze of fine print, if no effort is made to alert the other party directly to the existence of the provisions, and if the parties had unequal bargaining power, a claim of unconscionability might be viable. Here, however, the parties were not an uneducated consumer and a powerful business entity. Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. App. 1965). Under our test for unconscionability, the plaintiff’s actions must be weighed against the defendant’s business experience, the business practices of the community, and the relatively equal bargaining power of the parties. See Texaco, Inc. v. Golart, supra.

The defendant’s driver testified that he had to sign a lease each time he picked up a truck no matter where he worked. The defendant could reasonably have known, therefore, that, in accordance with the practice of its business, the driver had signed a lease and had a copy of it. Swirsky testified that he telephoned several rental companies to discuss renting a truck before deciding that Edart had the best terms. He thus demonstrated that he was knowledgeable about bargaining in an open market. Significantly, Swirsky also testified that similar continuous payment provisions had been included in each of the lease-purchase contracts he had issued during his previous twenty year career in truck sales. In fact, review of the record reveals that Swirsky’s basic complaint was not about the continuous rental provision but that the plaintiff did not tell him to get additional insurance to cover such payments. In light of such evidence, the defendant cannot successfully claim that it had no meaningful choice in the contract or that it was “unfairly surprised” by the continuous rental payment provision.

Finally, the defendant claims that the trial court should have found that the small print format of the plaintiff’s contract was a violation of CUTPA. General Statutes § 42-110b provides in part that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Connecticut courts have adopted the federal criteria for determining when a practice is unfair. These are: “ ‘(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)].’ ” McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 568, 473 A.2d 1185 (1984), quoting Conaway v. Prestia, 191 Conn. 484, 492-93, 464 A.2d 847 (1983). The question is whether the conduct of the plaintiff, namely, the printing of the contract terms in very small type, constitutes an unfair or deceptive trade practice. See A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990).

In spite of the defendant’s assertions to the contrary, “[w]hether a practice is unfair and thus violates CUTPA is an issue of fact.” DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466, 578 A.2d 144 (1990); see also Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 238, 520 A.2d 1008 (1987). In this case, the trial court determined that, under the facts found, the plaintiff’s use of a small print contract did not amount to an unfair trade practice. The defendant also failed to establish that the contract was unconscionable, so that it cannot predicate a CUTPA claim on that theory. Compare Murphy v. McNamara, 36 Conn. Sup. 183,189-91, 416 A.2d 170 (1979). We, therefore, hold that the trial court could have reasonably concluded that there was no CUTPA violation involved in this transaction. DeMotses v. Leonard Schwartz Nissan, Inc., supra.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Coelm v. Frank Imperato
    (8759)
    Dupont, C. J., Norcott and Foti, Js.
    Argued June 11
    decision released September 4, 1990

      Joshua A. Winnick, with whom, on the brief, was Edward B. Winnick, for the appellant (plaintiff).

      Frank B. Velardi, Jr., for the appellee (defendant).
   Foti, J.

The plaintiff, Coelm, a Connecticut partnership, brought this action to recover the balance due on the defendant’s account with the plaintiff’s predecessor in interest, Elm City Filling Stations, Inc. (Elmco), after Elmco assigned its accounts receivable to the plaintiff. The plaintiff appeals from the trial court’s judgment, after a court trial, for the defendant. On appeal, it makes four claims arguing that the trial court improperly (1) precluded testimony, (2) refused to grant a continuance, (3) acted prejudicially, and (4) denied its motion for a new trial. Because the first issue raised by the plaintiff is dispositive and leads us to reverse the trial court’s decision, it is unnecessary to reach the remaining issues.

The facts are not in dispute. The complaint in this collection action alleges that in late 1982 Elmco delivered goods, wares, materials or merchandise valued at $116,415.55 to the defendant and that Elmco was dissolved and its accounts receivable were assigned to the plaintiff on or about January 1, 1983. The complaint further alleges that, despite the plaintiff’s demands, the defendant has failed to pay all but $2300 of the amount due and owing.

At trial the plaintiff presented two witnesses. The first witness, Mary Ann Mclntire, was the bookkeeper and the person in charge of Elmco’s office. She testified that the debt owed Elmco by the defendant was $75,393.39.

The second witness, Sidney J. Horton, was the president of Elmco and a member of its board of directors before that company was dissolved. Horton testified that he was the president, but not a shareholder of Elmco, and that he had presided over that company’s dissolution in January, 1983. The defendant objected to Horton’s testimony at this point and argued that because Horton had not been a shareholder in Elmco, he was not qualified to testify. The court overruled this objection and allowed Horton to continue testifying.

Horton then testified that when Elmco was dissolved all of its assets were sold off, except the accounts receivable. He stated that his wife, Arnold Alderman and Alderman’s wife had formed Coelm, to which Elmco’s accounts receivable were assigned. The defendant again objected to Horton’s testimony and moved that it be stricken because Horton owned neither Elmco nor Coelm. At the court’s suggestion, the defendant rephrased his argument and objected on the ground that Horton’s testimony was not the best evidence. The defendant asserted that the “certificate of purchase [and] the minutes of the corporation reflecting [the purchase]” would be the best evidence to prove that Elmco’s accounts receivable had been assigned to Coelm. The court sustained the defendant’s second objection and, in spite of repeated efforts by the plaintiff to explain that Horton’s firsthand knowledge was a sufficient basis for his testimony, the court struck Horton’s testimony on the ground that the best evidence would be the corporation’s records.

After a short recess the plaintiff moved for a continuance to allow it to collect certain corporate records. The defendant again objected and the court denied the plaintiff’s motion on the grounds that “[everybody said they were ready.”

When further questioning of Horton resulted in the same objections and the same rulings, the parties rested, and the court granted the defendant’s request for a directed verdict, rendering judgment for the defendant, on two stated grounds. The first ground stated by the court was that the plaintiff failed to prove any relationship between itself and the defendant, Frank Imperato, or between Frank Imperato and Frank’s Gas and Service Station. The court’s second stated ground was that the plaintiff failed to prove that the debt had been assigned from Elmco to the plaintiff, Coelm.

As defined by our Supreme Court, the best evidence rule forces a party to produce the original writing, if it is available, when the terms of that writing are material and must be proved. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10, 513 A.2d 1218 (1986); see also C. McCormick, Evidence (3d Ed. 1984) § 230. “The best evidence rule typically applies when attempting to prove the contents of ‘ “instruments such as deeds, wills or contracts, where a slight variation of words may mean a great difference in rights.” ’ Brookfield v. Candlewood Shores, Estates, Inc., supra, 10-11, quoting C. McCormick, supra, § 231. The ‘ “basic premise justifying the rule is the central position which the written word occupies in the law.” ’ Brookfield v. Candlewood Shores Estates, Inc., supra, 10, quoting C. McCormick, supra.” Morales v. Saint Francis Hospital & Medical Center, 9 Conn. App. 379, 382, 519 A.2d 86 (1986).

The best evidence rule is not applicable to this case. “Where one testifies to what he has seen or heard, such testimony is primary evidence regardless of whether such facts are reduced to writing. While recordings might be more accurate and reliable evidence under ordinary circumstances than testimony from memory, the latter is not rendered incompetent by the fact of the existence of the former.” State v. Moynahan, 164 Conn. 560, 583, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).

In the matter at hand, Horton, as president of Elmco, could testify as to corporate acts done by him, or in his presence. Such testimony would be primary evidence. Under the present circumstances, Horton’s testimony as to the dissolution of Elmco and its assignment of its accounts receivable to Coelm was competent evidence. See Royal Sundry Co. v. Railroad Salvage of Connecticut, Inc., 39 Conn. Sup. 430, 434, 466 A.2d 340 (1983). The existence or exact terms and contents of the corporate records were not in issue. The corporate documents were only collaterally involved. The best evidence rule does not apply where the contents of a writing are only collaterally involved. C. Tait & J. LaPlante, Connecticut Evidence § 10.9.

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

In this opinion the other judges concurred.

       After the defendant’s second objection, the following exchange took place:
      “Mr. Lasala: It is my point, Your Honor, that the witness as the president of the company cannot testify as to any corporation—
      “The Court: Is your objection it is not the best evidence?
      “Mr. Lasala: That’s correct, Your Honor.
      “The Court: On that ground it is sustained.
      “Mr. Winnick: Your Honor, may I be heard on that.
      “The Court: You can be heard but I very seldom change my mind.
      “Mr. Winnick: I’m not sure I understand what — there was a motion to strike testimony. What portion of the testimony has been stricken?
      “The Court: The last question.
      “Mr. Winnick: The entire last question?
      “The Court: Yes.
      “Q. Mr. Horton, as president of Elm City Filling Station[s], Inc., did there come a time when Elm City dissolved as a corporation?
      “A. Yes.
      “Mr. Lasala: Same objection, Your Honor.
      “The Court: Mr. Horton, wait a second so that Mr. Lasala can get his objection in, okay. The same grounds, I take it.
      “Mr. Lasala: Same grounds.
      “The Court: Same ruling.”

       The following colloquy occurred:
      “Mr. Winnick: Exception, please. May I inquire as to why as the president of the corporation he cannot testify as to the—
      “The Court: The court seldom answers questions. It just makes decisions.
      “Mr. Winnick: Your Honor, seeking to understand the scope of the court’s ruling, is it the court’s ruling that this witness as president of the corporation cannot testify as to any of the historical events of the corporation?
      “Mr. Lasala: That’s correct. The most credible evidence in this matter, the best evidence in this matter would be a certificate of purchase, the minutes of the corporation reflecting this and this witness not as a shareholder cannot testify to it.
      “The Court: The court ruled the best evidence would be the corporation records.

        “Mr. Winnick: Would be the corporation records.
      “The Court: That’s what I have ruled.”
      At another time the plaintiff specifically requested:
      “Mr. Winnick: Thank you, Your Honor. The witness has testified that he served as a member of the board of directors and had personal knowledge of the acts that the board took. The best evidence rule is a rule of preference, not one of exclusion. It prefers proof by original documentation but will accept oral evidence if necessary. I have just quoted some language from the Handbook of Connecticut Evidence, Tait and LaPlante, page 300, Section 10.7, the first full paragraph on that page. I would submit to the court that in this instance the corporation documents not being here, they are not necessary. This witness has testified that he did have personal knowledge of the acts of the board. He is fully able to be cross-examined on any of these acts. The question as to the admissibility of this evidence is not an issue here. It would go to the weight of this evidence in light of the fact [that] there would be no corroboration by the corporation documents. If Your Honor should find that he is not believable as to the acts taken, then we have — we haven’t met our burden. That shouldn’t preclude Your Honor about entertaining what acts the board of directors took and allowing the plaintiff to proceed to put on his case.
      “Mr. Lasala: I stand by Your Honor’s initial ruling, the best evidence rule. The fact of the matter is there are no corporation documents here, which are the best evidence. There’s no agreement to purchase, there’s nothing here indicating assignments. This man was not a shareholder of the company. Whatever he can say is as a member of the board of directors. “The Court: I have ruled, gentlemen. Thank you.”

       The court treated the “motion for directed verdict” in this court case as a motion for judgment rather than a motion to dismiss, since both parties had rested.

       Paragraph one of the complaint states that the items were “bargained, sold and delivered ... to the defendant Frank Imperato, dba Frank’s Gas and Service Station.” The pleadings do not require that a relationship be shown between Frank Imperato and Frank’s Gas and Service Station.


author: Landau, J.

text:
    State of Connecticut v. David Jackson
    (8176)
    NoRCorr, Foti and Landau, Js.

      Argued June 11
    decision released September 4, 1990

      Beth A. Merkin, assistant public defender, for the appellant (defendant).

      Mary Lesser, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Robert O’Brien, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103. He claims that the trial court (1) should have suppressed certain illegally obtained evidence, (2) erroneously enlarged the crime for which he was charged by incorrectly instructing the jury on the definition of “building,” (3) gave a “no adverse inference” instruction that complied with neither General Statutes § 54-84 (b) nor his request to charge, and (4) improperly instructed the jury that the defendant, through counsel, had admitted that there was a burglary. We find these claims to be without merit and, accordingly, affirm the trial court’s judgment.

I

The court could reasonably have found the following facts at the suppression hearing. In December, 1988, Officer Tracy Lamb of the New Haven police department arrived at 87 Norton Street, a three story multifamily house, upon receiving a report of a triggered burglar alarm. While looking at the building, Lamb heard the alarm, which had stopped, sound again. Lamb, seeing the defendant exit the front door of the building, took him to a police car in order to detain him pending investigation. At that time, the defendant volunteered a statement to the effect that he was in the building visiting a person named “Michelle” on the second floor. No Miranda warnings were given to the defendant before he made his statement.

Lamb, thereafter, questioned the second floor tenant. The tenant told Lamb that someone whom she did not know had knocked on her door and asked to be let in until the police left. She refused to do so. She further stated that he then asked for her name, which she gave him. After speaking with the tenant, Lamb arrested the defendant for burglary.

The defendant moved to suppress his statement, claiming that it was, in the absence of Miranda warnings, the product of an illegal custodial interrogation. The trial court denied the motion, finding that the statement was volunteered and not the result of interrogation and that, under the circumstances, the officer reasonably stopped the defendant during the pendency of the investigation.

The investigatory detention exception to the probable cause requirement of the fourth amendment is well settled. The police have the right to stop individuals suspected of criminal activity, question them briefly, and perform a limited search for weapons. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime, and, if the circumstances so require, the police may place a detainee in a patrol car for a brief period of time. State v. Braxton, 196 Conn. 685, 689-90, 495 A.2d 273 (1985). While a Terry detention must be supported by a reasonable and articulable suspicion of criminal activity; State v. Watson, 165 Conn. 577, 584, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974); Miranda warnings are not required. State v. Torres, 197 Conn. 620, 628, 500 A.2d 1299 (1985).

Here, given that the police were on the premises when the alarm again went off, they were justified in assuming that the burglar was still in the house. The defendant came out immediately thereafter. “ ‘Proximity in time and place of the stop to the crime is highly significant’ in the determination of whether an investigatory detention is justified by reasonable and articulable suspicion.” State v. Aillon, 202 Conn. 385, 400, 521 A.2d 555 (1987), quoting State v. Aversa, 197 Conn. 685, 691, 501 A.2d 370 (1985).

There were articulable facts sufficient to support a reasonable suspicion that the defendant might be implicated in the crime. The defendant, therefore, was properly detained as a suspect in order to maintain the status quo while the officers ascertained the identities of persons inside the building and verified his statement. Because the defendant was not in custody, he was not entitled to Miranda warnings, and the trial court properly denied his motion to suppress.

II

The defendant next claims that the court’s instruction that a whole building, as well as just one unit, can be considered a “building” for the purposes of committing burglary under General Statutes § 53a-103 (a) was incorrect.

Because the defendant made no objection at trial to the challenged instruction, he seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant cannot prevail on this claim because he has not satisfied the third prong of Golding, namely, that the constitutional violation clearly deprived him of a fair trial. The record demonstrates that there was no enlargement of the crime, and, therefore, no constitutional infringement exists that deprived the defendant of a fair trial.

It is clear that this instruction, read in the context of the court’s entire charge, was merely an explanation that the jury could find that the crime had been committed if only one apartment, rather than the entire building, had been broken into. In light of the allegations of the information and the uncontroverted evidence of the burglary of the first floor, a reasonable jury would have heard the instruction to mean that the issue to be resolved was whether there was an entry into the first floor apartment. This belies any suggestion by the defendant that he could have been convicted merely by his presence in the second floor hallway of the building.

Further, given the factual circumstances of this case, one scant reference to the whole building in the context of the entire instruction was not an impermissible enlargement of the crime. The information specifically alleged that the burglary was committed in the apartment on the first floor. The court read the information to the jury prior to the presentation of evidence, and, in addition, the jury had the information during its deliberations. This alone is sufficient to discount the possibility of enlargement of the crime. See State v. McCalpine, 190 Conn. 822, 829, 463 A.2d 545 (1983).

Ill

The defendant’s next claim is that the court improperly instructed the jury regarding his failure to testify. He argues that the phrase “weigh in any exclusive degree” in the instruction was harmful error, because it allowed the jury to weigh his silence along with other evidence consistent with guilt.

The Supreme Court and this court have consistently rejected claims that a “no adverse inference” instruction is reversible error when the substance of the entire instruction informed the jury not to consider the defendant’s silence against him. See, e.g., State v. Cobb, 199 Conn. 322, 325, 507 A.2d 457 (1986); State v. Totem, 194 Conn. 594, 599-600, 483 A.2d 1087 (1984); State v. Mebane, 19 Conn. App. 618, 624-25, 563 A.2d 1026, cert. denied, 212 Conn. 817, 565 A.2d 538 (1989); State v. Carpenter, 19 Conn. App. 48, 56-57, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989); State v. Reddick, 15 Conn. App. 342, 351-52, 545 A.2d 1109, cert. denied, 209 Conn. 817, 551 A.2d 758 (1988). In addition, a court need not charge in the exact words of a request; we look to whether the instruction substantially conformed to the charge requested. State v. Falcone, 191 Conn. 12, 25-26, 463 A.2d 558 (1983).

The charge clearly informed the jury that it could not use the defendant’s silence as a factor in its verdict. The court charged in the exact language of General Statutes § 54-84 (b). It also instructed the jury that no presumption of guilt could be drawn, that the fact that the defendant did not testify should not enter into its deliberations or discussions, that the defendant was presumed innocent, that the presumption of innocence alone was sufficient to acquit him, and that it was the state’s burden to prove him guilty beyond a reasonable doubt.

The one challenged phrase did not negate a lengthy and perfectly clear and correct instruction given by the trial court on the defendant’s failure to testify. The instruction substantially conformed to the charge requested by the defendant. In sum, the record simply does not support the defendant’s claim that a new trial is warranted on the basis of this instruction.

IV

At trial, the defendant objected to the court’s instruction concerning his counsel’s admission that there was a burglary. He based his objection on the ground that the instruction was tantamount to a directed verdict. On appeal, the defendant abandoned that claim, arguing instead that the court’s remarks: (1) infringed his right to assistance of counsel; (2) violated his fifth amendment rights by commenting on his failure to testify; and (3) denied him his right to present a defense. Because these claims were not preserved at trial, the defendant seeks review under State v. Golding, supra. We conclude that the defendant has not demonstrated that he was denied a fundamental constitutional right and a fair trial, or that he was harmed in any way by the trial court’s remarks.

With regard to the defendant’s claim that the trial court’s comments on his attorney’s closing argument impinged on his right to assistance of counsel, it is apparent from the record that counsel had admitted that there was a burglary. It was clear that the burglary admission was a tactical defense strategy. The issue presented by the defendant’s counsel to the jury was that of identification and not whether a burglary had in fact occurred.

• To the extent that the defendant now argues that the court’s instruction on his admission of the burglary was a comment on his failure to testify in violation of his fifth amendment rights and his right to present a defense, there is nothing in the court’s instruction that either directly, indirectly or by implication communicated to the jury that the defendant either failed to testify or failed to explain something. Compare Griffin v. California, 380 U.S. 609, 610, 85 S. Ct. 1229,14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965). In light of the entire charge and the specific instruction precluding the use of the defendant’s failure to testify, there was no reasonable possibility that the jury perceived the instruction as a prejudicial comment on the defendant’s failure to testify.

The judgment is affirmed.

In this opinion the other judges concurred.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       At the suppression hearing, the parties, and to some extent the court, focused on interrogation as the dispositive issue, because the assistant state’s attorney indicated his belief that, for Miranda purposes, the defendant was in custody. This court is not bound by the state’s concession. See State v. Williamson, 212 Conn. 6, 12-16, 562 A.2d 470 (1989).

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       In charging the jury on the defendant’s failure to testify, the court stated: “In this case the defendant did not testify. The law does not compel a defendant to take the witness stand. No presumption of guilt and no favorable inferences may be drawn from the fact that the defendant decided not to testify. You must not permit such a fact to weigh in any exclusive degree against the defendant nor should you enter that into your discussions or deliberations as the defendant is not required to establish his innocence. He need not produce any evidence whatsoever. As I indicated before the burden of proof is upon the state to prove the defendant guilty beyond a reasonable doubt; and if the state fails, the defendant has a right to rely on that failure and be acquitted.” (Emphasis added.)

       General Statutes § 54-84 (b) provides in pertinent part: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.”

       Claims not briefed are deemed abandoned. State v. James, 211 Conn. 555, 588, 560 A.2d 246 (1989). The defendant makes no claim in his appellate brief that the trial court directed a verdict by commenting on the admission that there was a burglary.

         In explaining what could be considered as evidence, the court stated: “However, if an attorney in the part of his statement or his or her argument makes an admission, that you may consider because when the attorney is standing there in front of you, if he makes a material, significant admission as to certain facts, you may take that as an admission.”
      When counsel moved for judgment of acquittal, counsel stated: “Your Honor, this is obviously a case of identification and there is no question that a burglary did occur at 87 Norton Street on the first floor apartment. I do not think that the state has produced enough evidence to establish that my client was the person responsible for the burglary. ” (Emphasis added.)
      After the state’s argument, counsel stated: “Mr. O’Brien [the assistant state’s attorney] is correct. I am not going to stand here and tell you that a burglary did not occur at 87 Norton Street. However, I will tell you that this burglary was not committed by my client. I would submit to you also that since there is clearly a reasonable doubt as to what my client did, that you must return a verdict of not guilty in this case.
      “The evidence is not there. It just isn’t there. There is no solid evidence against my client which [ties] him to the burglary at 87 Norton Street on the first floor. There is no direct evidence.
      “There is no direct evidence that anyone saw him there. If they — they did have a fingerprint expert there. I guess that there were or are two things that bother me, bother me the most in this case.
      “The first thing is that I would ask you to keep in mind that there were no fingerprints on this stuff and there was stuff that was never found.
      “There were things taken in this burglary, all pocketable stuff such as watches and gold chains and . . . remote control parts,'parts to a VCR and they were never located.
      “You heard [the burglary victim] get up and say that she went crazy looking through her house, her hallways and her shrubs and she was upset and rightfully so ... .
      “So again, I don’t really know who did the burglary. I don’t know but I [am] going to outline a few possibilities for you just to show you that somebody else did it. ” (Emphasis added.)


author: Dupont, C. J.

text:
    State of Connecticut v. Leroy Kelly
    (8285)
    Dupont, C. J., Foti and Lavery, Js.
    Argued June 4
    decision released September 4, 1990

      KentDrager, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard F. Jacobson and Henry J. Lyons, assistant state’s attorneys, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of attempted escape in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-171 (a) and of two counts of assault of a peace officer in violation of General Statutes § 53a-167c (a) (l). He and a codefendant, Clayman Whitaker, were tried together.

The defendant challenges (1) the trial court’s supplemental instructions to the jury on the defense of renunciation pertaining to the charge of attempted escape from custody, (2) the admission of evidence of two pending charges of robbery in the first degree, (3) the examples of the meaning of proof beyond a reasonable doubt used by the court in its preliminary instructions, (4) the prosecutor’s allegedly improper remarks made in closing argument, (5) the trial court’s denial of his motion for change of venue, and (6) the sufficiency of the evidence for his conviction of two counts of assault on a peace officer. We affirm the judgment of the trial court.

The facts in this case revolve around an incident that occurred in the holding area of a Fairfield county courthouse. James Dunlop, a special deputy sheriff, was assigned to that area to assist in the movement of prisoners between it and the courtrooms. The holding area consists of three cells, an office area, several security doors, a bay for the sheriffs’ vans, and an elevator to the courtrooms. The defendant, along with other detainees, was being held in the center cell of the lockup area.

A detainee asked to go to the bathroom, and Dunlop opened the cell door to let him out. As Dunlop was trying to close the door, the defendant and the codefendant pushed up against the door, forcing the door to open and moving Dunlop back. The two defendants then exited the cell and began to punch Dunlop. Eventually, the defendant took security door keys from another sheriff who was in the area.

At this point, the defendant, the codefendant and another detainee locked the door behind them, leaving some sheriffs locked in the cell. They then tried to open various security doors, emptied drawers of an office desk, smashed a wire glass window of a door leading into the bay area, removed ceiling tiles, and attempted to pry a hinge from a door. While the defendant and the other detainees were trying to open the security doors, the elevator from the courtroom opened. Sheriff John Scanlon, who was wearing a blazer and a badge, was in the elevator and in the process of escorting a prisoner from the courtroom to the holding area. Scanlon testified that he saw. an unescorted detainee walk past and ordered the detainee up against the wall at which point Scanlon was attacked by the defendant. While placing Scanlon in a judo strangling hold, the defendant told another detainee to get Scanlon’s keys. Scanlon managed to break the hold and retreat to the elevator where he or one of the other sheriffs pulled the alarm.

Once the elevator doors closed, the defendant and the two other detainees continued to try to open the security doors. A van pulled into the bay area, and a sheriff yelled that an escape was in progress. The three detainees then returned to the cell, but again left it, locked the door, and tried to open a security door. A sheriff observed, through a monitor, a police car pulling into the garage area. The defendant and the other detainees then went back into the cell, threw down the keys, and sat in a corner.

I

The defendant first contends that he was deprived of his fundamental constitutional right to present a renunciation defense. The defendant submitted a written request to charge on the defense of renunciation. The trial court charged the jury on the defense, and the defendant objected to it because it was based on law predating the penal code. In response to the defendant’s objections, the court recharged the jury on the defense of renunciation. The defendant did not take an exception to the supplemental charge. The state argues that we should not review the issue because the defendant took no exception.

A matter encompassed by a written request to charge is reviewable even if the defendant failed to take exception. State v. Reddick, 15 Conn. App. 342, 351, 545 A.2d 1109, cert. denied, 209 Conn. 817, 551 A.2d 758 (1988); State v. Marshall, 3 Conn. App. 126,128, 485 A.2d 930 (1985) , appeal dismissed, 199 Conn. 244, 506 A.2d 1035 (1986) ; see also Practice Book § 852.

In reviewing a challenged portion of a jury instruction, it is well established that contested individual sections of the instruction are not to be judged in artificial isolation from the overall charge, but in the context of the charge as a whole. State v. Quintana, 209 Conn. 34, 47, 547 A.2d 534 (1988); State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977). “The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” State v. Corchado, 188 Conn. 653, 661, 453 A.2d 427 (1982).

Before giving its supplemental charge, the court specifically asked the jurors to ignore its previous instruction on renunciation. It then charged that “[t]he defendants have asserted a defense to this charge of attempted escape from custody called abandonment and renunciation. The assertion of this defense reflects a claim that the facts proved are sufficient to show a voluntary and free abandonment of their purpose to escape. When such a defense is asserted the state has the burden of disproving that defense beyond a reasonable doubt. That is the case here. Our statutes provide that it is a defense to an attempt to commit a crime that the actor abandoned his effort to commit the crime or otherwise prevented its commission under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. However, such renunciation is not voluntary if it is motivated in [whole] or in part by circumstances not present or apparent at the inception of the actor's course of conduct which circumstances increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. You must determine if there was an abandonment or renunciation in the first place and if so, whether it was voluntary.” These instructions substantially echo General Statutes §§ 53a-49 and 53a-50.

The defendant argues that the court’s supplemental instruction suggests a basis, not articulated in §§ 53a-49 (c) and 53a-50, for rejecting the defense of renunciation, namely, that there is a point in time beyond which it is too late to renounce an attempted crime.

There are two relevant statutory provisions defining the elements of renunciation. Section 53a-49 (c) provides in part: “When the actor’s conduct would otherwise constitute an attempt ... it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” Section 53a-50 elaborates on the voluntariness requirement as follows: “For purposes of this part, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct or to transfer the criminal effort to another but similar objective or victim.”

The defendant objects only to one clause in one sentence of the entire five page supplemental charge. He cites the following language: “While there is a point beyond which the jury may find it is too late to renounce, that is clear, the jury can make that decision, still an attempt under our statute as it is presently constituted does appear to be capable of renunciation and abandonment after the defendant actor has taken a substantial step toward the completion of the act with the necessary intent.” (Emphasis added.) Although the words, “too late to renounce,” as used in the first half of the sentence, are capable of two interpretations, the court completed the sentence with a correct proposition of law. Even if the phrase were incorrect, one single misstatement in the context of an otherwise appropriate charge can be overlooked. State v. Price, 205 Conn. 616, 620-21, 534 A.2d 1196 (1987). The alleged misstatement of the law was subsequently corrected in the remainder of the supplemental charge. The court stated that “an attempt under our statute as it is presently constituted does appear to be capable of renunciation and abandonment after the defendant actor has taken a substantial step toward the completion of the act with the necessary intent.”

When taken as a whole, the supplemental charge gave the jurors a clear understanding of the correct legal elements of the defense of renunciation and afforded them proper guidance for their determination of whether those elements were present. It is not reasonably possible that the jury was misled. State v. Snook, 210 Conn. 244, 275-76, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988); State v. Quintana, supra, 50.

II

The defendant also challenges the trial court’s evidentiary ruling that allowed evidence of two charges of robbery in the first degree pending to be introduced against the defendant. He claims that such evidence had no probative value and unfairly prejudiced the jury against him. The defendant contends that his claim was properly preserved for review. A careful examination of the record, however, reveals that this is not the case.

On cross-examination of a trial court clerk, evidence of the two charges of robbery in the first degree pending against the defendant was admitted without objection. The defendant did object, however, without giving any ground, when evidence of charges pending against his codefendant was introduced against the codefendant.

Absent exceptional circumstances, “ ‘appellate review of all issues, even constitutional issues, [is limited] to those on which the trial court has had an opportunity to rule.’ ” State v. Rodriguez, 10 Conn. App. 357, 358, 522 A.2d 1250 (1987), quoting State v. Reddick, 197 Conn. 115,125, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). In order to preserve an evidentiary ruling for review, trial counsel must properly object and except. State v. Hoffler, 174 Conn. 452, 461, 389 A.2d 1257 (1978); see Practice Book §§ 288 and 4185. Because no objection was made, this court declines to review the claim. State v. Tyler-Barcomb, 197 Conn. 666, 674, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Martin, 15 Conn. App. 58, 68, 544 A.2d 231 (1988), aff d, 211 Conn. 389, 559 A.2d 707 (1989).

Ill

The defendant next claims that the court’s three examples of the meaning of proof beyond a reasonable doubt, given to the entire panel of prospective jurors before individual voir dire had commenced, diluted the state’s burden of proof and thus constituted a violation of his right to a fair trial. Additionally, the defendant claims that the three examples “strongly suggested] a shifting” of the burden of proof. He concedes that his claim was not properly preserved at trial, but seeks review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or as plain error under Practice Book § 4185.

In a criminal case, the state must prove the defendant’s guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 268 (1970); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982). Where the alleged error implicates the defendant’s right to be convicted by the proper burden of proof, this court will grant Evans review. See State v. Findlay, 198 Conn. 328, 345, 502 A.2d 921, cert. denied, 476 U.S. 1159,106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Torrice, 20 Conn. App. 75, 92, 564 A.2d 330 (1989). Review under Evans is also available where the defendant has alleged a shifting of the burden of proof. See State v. Williams, 199 Conn. 30, 33-35, 505 A.2d 699 (1986); State v. Amarillo, 198 Conn. 285, 299 n.9, 503 A.2d 146 (1986).

Here, the claim is of constitutional magnitude and the record is adequate for review because the transcript preserved the instructions to the prospective jurors. The alleged constitutional violation is a claim of a dilution of the state’s burden of proof or a shifting of that burden. The defendant’s claim meets the first two requirements of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We now must determine whether the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.

The defendant objects to three specific examples of proof beyond a reasonable doubt in the court’s remarks. These examples were given to a prospective panel of jurors, some of whom were the jurors subsequently sworn to hear the evidence in the case. The court later instructed the chosen jurors extensively, using appropriate and traditional language; see, e.g., State v. Ryerson, 201 Conn. 333, 342-43 n.2, 514 A.2d 337 (1986); on the burden of proof beyond a reasonable doubt. The defendant does not contest these subsequent, more substantial instructions, which clearly-defined proof beyond a reasonable doubt and emphasized that the state bears that burden of proof.

The challenged remarks were temporally unconnected to the court’s final charge and were totally subsumed by the final charge. It is not even certain that all of the jurors were present when the remarks were made. The remarks, therefore, could not have influenced the jury in its deliberations, nor could they have deprived the defendant of a fair trial. The remarks were also insufficient to constitute plain error.

IV

The defendant next claims that the prosecutor’s remarks to the jurors in closing argument constituted prosecutorial misconduct. The prosecutor told the jury that the state had withdrawn a charge of attempted murder against the defendant because the prosecutor did not believe that the state could prove each element of that crime beyond a reasonable doubt. The defendant argues that this statement suggested that the state had met its burden of proof on the remaining charges. According to the defendant, this deprived him of his constitutional right to a fair trial. The defendant concedes that this claim was not properly preserved, but again seeks review under State v. Evans, supra.

“Ordinarily, where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974). Where counsel fails to object or to request a curative charge ‘we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized. State v. Lubesky, supra; State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983).’ State v. TylerBarcomb, [supra, 673].” State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986); State v. Bell, 13 Conn. App. 420, 426-27, 537 A.2d 496 (1988). “Only in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, supra, 69.

Although the defendant phrases his claim in constitutional terms, we fail to see, on the record before us, how the prosecutor’s remarks could have deprived the defendant of a fair trial. We decline, therefore, to review the defendant’s claim because it is not truly of constitutional magnitude and does not allege the violation of a fundamental right. State v. Golding, supra, 239; see State v. Bell, supra, 427.

V

The defendant next claims that he was deprived of his right to a fair or impartial trial because the trial court denied his motion for a change of venue. The defendant moved to transfer his prosecution to a courthouse other than the courthouse where the alleged crimes had occurred. The court denied his motion, and the defendant took an exception. The basis of the defendant’s claim is that holding the trial in the Fair-field county courthouse would allow the jurors an unauthorized view of the scene of the alleged crime. See Decko v. Wood, 6 Conn. App. 95, 96, 503 A.2d 185, cert. denied, 199 Conn. 801, 505 A.2d 1249 (1986).

At trial, the defendant presented no evidence to support his motion for change of venue, but relied instead on representations made by defense counsel. A reviewing court, however, cannot rely on representations made by counsel as such representations are not “evidence.” State v. Carsetti, 12 Conn. App. 375, 379, 530 A.2d 1095, cert. denied, 205 Conn. 809, 532 A.2d 77 (1987). “Although counsel for the defendant and the state may be content to rely on their own representations when pressing or posing motions in the trial court, they run the risk that, on appeal of an unfavorable ruling, they will have failed to establish a sufficient factual basis, supported by testimony or exhibits, to furnish us an adequate record to support their claims of error.” Id. In this case, the risk has materialized.

Without exhibits or testimony to support his claim, the defendant has failed to provide us with a sufficient factual basis on which to review his claim. “In requesting a change of venue, a defendant bears the burden of showing that he could not otherwise receive a fair and impartial trial.” State v. Townsend, 211 Conn. 215, 224, 558 A.2d 669 (1989). We conclude that there is no basis for us to review the trial court’s ruling on the motion for change of venue.

VI

Finally, the defendant alleges that there was insufficient evidence to support his convictions of assault of a peace officer pursuant to General Statutes § 53a-167c (a) (1). Specifically, he claims that there was insufficient evidence to prove the elements of § 53a-167c (a) (1) beyond a reasonable doubt. That section provides in part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, (1) he causes physical injury to such peace officer . . . .” The defendant contends that neither Dunlop nor Scanlon testified as to their duties. He also argues that there was no testimony that Dunlop, who admittedly was not wearing a sheriff’s badge, was reasonably identifiable as a peace officer. Finally, he claims that the state failed to prove physical injury to Scanlon. The record, however, demonstrates that there was sufficient evidence of all of these elements.

“In reviewing a sufficiency of evidence claim on appeal the question presented is whether, viewing the evidence favorably to sustaining the verdict, the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983). Applying this standard, there is no question that the evidence established such proof beyond a reasonable doubt.

With respect to the defendant’s first allegation, both Dunlop and Scanlon testified specifically as to their duties. Dunlop testified that his job was to assist in the movement of prisoners and Scanlon testified that he was to maintain order in the courtrooms and to transport prisoners from the courtrooms to the lockup area. From this testimony, the jury could have reasonably inferred that when Dunlop was locked in the cell, he could not assist in the movement of prisoners. Similarly, when Scanlon was exiting the elevator and was attacked by the defendant, the jury could have reasonably inferred that this prevented him from transporting a prisoner from the courtroom to a cell.

The defendant’s second claim is also meritless since there was evidence that Dunlop was reasonably identifiable as a peace officer. Dunlop had keys to the cell in his possession and it was he who was asked by a detainee to leave the cell in order to go to the bathroom. These facts were sufficient to establish that Dun-lop was reasonably identifiable as a peace officer.

Finally, there was also adequate evidence presented on the element of physical injury suffered by Scanlon. Scanlon testified that he grew faint to the point where he was on the verge of unconsciousness because of the defendant’s judo strangling hold. General Statutes § 53a-l (3) defines “physical injury” as an “impairment of physical condition or pain.” Growing faint to the verge of unconsciousness certainly qualifies as an impairment of physical condition. Therefore, the jurors could have reasonably inferred that Scanlon suffered physical injury as a result of the defendant’s judo strangling hold.

The jury could have reasonably concluded that there was sufficient evidence to establish, beyond a reasonable doubt, the defendant’s guilt for assault of peace officers, Dunlop and Scanlon.

The judgment is affirmed.

In this opinion the other judges concurred.

       The relevant elements of attempted escape from custody are that the accused (1) is in lawful custody, (2) is charged with a felony, and (3) takes a substantial step in a course of conduct planned to result in escape from such custody. See General Statutes §§ 53a-49 (a) (2) and 53a-171.

       General Statutes § 53a-167c provides in pertinent part: “assault on A PEACE OFFICER OR FIREMAN: CLASS C FELONY, (a) A person is guilty of assault of a peace officer or a fireman when, with intent to prevent a reasonably identifiable peace officer or fireman, as defined in section 53a-3, from performing his duty, (1) he causes physical injury to such peace officer or fireman.”

       Practice Book § 852 provides in relevant part: “The [appellate] court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.”

       While the words, “too late to renounce,” suggest that there is temporally a point beyond which one cannot renounce an attempt to commit a crime, the same words are also susceptible to another interpretation. These words could also mean that it is too late to renounce effectively an attempt to commit a crime if such a renouncement is induced by circumstances outside of the control of the actor that were not present at the inception of the actor’s conduct, which increase the probability of detection or apprehension. If the words mean the latter, then they are perfectly consistent with the law. In any event, any ambiguity was clarified in the remainder of the sentence and the entire supplemental charge.

       Practice Book § 288 provides: “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”
      Practice Book § 4185 provides in part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.”

       The examples that were given by the court in its preliminary remarks to the entire prospective jury panel suggested that they could believe beyond a reasonable doubt that (1) he was a judge since he was on the bench wearing a black robe, (2) in the normal course of events, an oncoming car would stay to the right of the center line, and (3) the chairs provided by the judicial department were stable enough to hold them when they sat down.

       In its preliminary instructions to the jurors after they had been sworn to hear the evidence the court stated: “Ladies and gentlemen, as I have told you before, every defendant is presumed innocent until proven guilty. That presumption remains with the defendant during a trial unless and until that defendant is proven guilty beyond a reasonable doubt. I will be explaining that concept in my charge to you. The State has the burden of proving the defendant guilty beyond a reasonable doubt and a reasonable doubt means just that. A doubt for which you can assign a reason. A doubt that a reasonable person can reasonably entertain. It does not mean beyond a possible doubt. The defendant is not required in either case to prove his innocence or even produce any evidence although either defendant may do so if he wishes.” At the end of all of the evidence, the judge exhaustively and correctly charged the jury on proof beyond a reasonable doubt.

       The defendant also seeks plain error review but has not supported this claim in his brief and we do not discuss it.


author: Cretella, J.

text:
    Ann M. Conti et al. v. James M. Murphy
    (8809)
    Spallone, O’Connell and Cretella, Js.

      Argued June 14
    decision released September 11, 1990

      Franklin Melzer, for the appellant (defendant).

      Saul Kwartin, for the appellees (plaintiffs).
   Cretella, J.

In this action for partition, the defendant appeals from the dismissal of his counterclaim. The proceedings from which this case arises are more fully expounded in Murphy’s Appeal from Probate, 22 Conn. App. 490, 578 A.2d 661 (1990).

The following facts are essential. The parties are the six children of Katherine B. Murphy, deceased. The defendant, a son of the decedent, was a coexecutor of his late mother’s will until he was removed by the Probate Court. Under the will, any of the children had a right to purchase the former family residence by offering a price equivalent to the property’s appraised value.

The remaining executors of the estate submitted a final accounting, which was accepted by the Probate Court over the defendant’s objection. The defendant’s objection was that the remaining five heirs had conspired with the corporate executor, Connecticut Bank and Trust Company, to prevent him from purchasing the property from the estate. The defendant appealed to the trial court seeking to prevent a distribution of the assets of the estate according to that final accounting. That appeal is still pending.

The Probate Court entered an order of distribution that included a certificate of devise granting to each of the six children of the decedent a one-sixth interest in the property at issue. That certificate was recorded and, thereafter, the plaintiffs, who are the five remaining children, brought this action for partition and sale of the property. To this action, the defendant asserted two special defenses and a counterclaim that alleged among other things that the corporate executor, who is not a party to the partition action, and the five plaintiffs herein fraudulently conspired to prevent him from purchasing the property.

The plaintiffs moved to dismiss the special defenses and the counterclaim, alleging as the sole ground lack of subject matter jurisdiction, and submitted a memorandum of law with the motion. The trial court ruled that the special defenses could stand but dismissed the counterclaim. In its memorandum of decision, the court found that “subject matter jurisdiction ... is precluded by the prior pending action rule.” The plaintiffs’ supporting memorandum of law did not raise the prior pending action doctrine but, rather, argued that the defendant was making a collateral attack on the Probate Court ruling.

The trial court agreed with the plaintiffs that it lacked subject matter jurisdiction over the counterclaim because the counterclaim was a collateral attack on a decree of the Probate Court. The court should not have dismissed the counterclaim on that basis, however, because General Statutes § 45-9 provides that a final decree of the Probate Court does not prevent the Superior Court from making inquiry into allegations of fraud. Miller v. McNamara, 135 Conn. 489, 493-97, 66 A.2d 359 (1949).

The defendant argues that the plaintiffs’ motion to dismiss the counterclaim was improper and that the proper motion should have been a motion to strike. This is not so. Whether the ground for abatement is lack of subject matter jurisdiction or a prior pending action, Practice Book § 143 applies. Halpern v. Board of Education, 196 Conn. 647, 652, 495 A.2d 264 (1985). Although Practice Book § 143 does not specifically set forth that the motion to dismiss shall be used to assert as a ground for abatement the existence of a prior pending action, we have considered that claim on a motion to dismiss even when there is subject matter jurisdiction. Halpern v. Board of Education, supra; Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 111-12, 438 A.2d 834 (1981). The defendant further argues that even if a motion to dismiss was proper, the court should not have based its ruling on the prior pending action rule since the issue was not raised by the plaintiffs.

Although a court can dismiss a case at any time for lack of subject matter jurisdiction; Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 702, 556 A.2d 602 (1989); not all jurisdictional claims can be raised at any time by the court or the parties. Bridgeport v. Debek, 22 Conn. App. 517, 578 A.2d 150 (1990). It does not have the right to raise, sua sponte, the prior pending action rule when the moving party has not done so. To do so would preclude the opposing party from any opportunity to argue that the doctrine does not apply.

Ordinarily, the trial court’s action would require that we reverse and reinstate the counterclaim. In anticipation of the plaintiffs’ asserting a new motion to dismiss on the basis of the prior pending action doctrine, however, we will review the issue at this time.

The prior pending action doctrine applies equally to claims and counterclaims. Northern Homes Distributors, Inc. v. Grosch, 22 Conn. App. 93, 96, 575 A.2d 711 (1990). The rule states “ ‘that when two separate lawsuits are “virtually alike” the second action is amenable to dismissal by the court.’ ” Halpern v. Board of Education, supra, 652; BCBS Goshen Realty, Inc. v. Planning & Zoning Commission, 22 Conn. App. 407, 577 A.2d 1101 (1990). The rule does not apply, however, when the two actions are for different purposes or ends or involve different issues; see Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 347-48, 494 A.2d 606, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985); or where there is not a strict identity of the parties. Burns v. Grubbs Construction, Inc., 174 So. 2d 476, 478 (Fla. App. 1965).

The defendant’s appeal from the acceptance of the final accounting and his counterclaim in the plaintiffs’ action for partition, although both contain allegations of fraud, are not virtually alike in that the parties are not identical and the remedies sought are different. The defendant’s appeal from the acceptance of the final accounting is an appeal from actions of the Probate Court, whereas the counterclaim in the action for partition involves the siblings of the defendant. Also, the defendant’s appeal from the acceptance of the final accounting was for the purpose of preventing a distribution of the estate according to its terms, whereas in his counterclaim to the partition action the defendant seeks not only to prevent such distribution but also to recover money damages which he could not receive in the probate appeal. In short, since there was a valid reason for bringing the counterclaim, we do not find it to be vexatious or oppressive, and the prior pending action rule does not apply. Fishman v. Middlesex Mutual Assurance Co., supra, 348, citing Southland Corporation v. Vernon, 1 Conn. App. 439, 473 A.2d 318 (1984).

The judgment is reversed and the case is remanded with direction to reinstate the defendant’s counterclaim and to proceed according to law.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 45-9. validity of orders, judgments and decrees. Every order, judgment or decree of a court of probate made by a judge who is qualified shall be valid unless an appeal is taken as hereinafter specified. All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.” (Emphasis added.)


author: Daly, J.

text:
    Joseph P. Siudyla et al. v. ChemExec Relocation Systems, Inc., et al.
    (8487)
    Daly, Norcott and Lavery, Js.
    Argued April 4
    decision released September 11, 1990

      Mark V. Oppenheimer, with whom was Judith S. Nickse, for the appellants (plaintiffs).

      Brendan J. O’Rourke, with whom, on the brief, was Edward V. O’Hanlan, for the appellees (named defendant et al.).
   Daly, J.

The plaintiffs appeal from the trial court’s decision granting summary judgment in favor of the defendants J. Christine Mangano, James A. Mangano and ChemExec Relocations Systems, Inc. (hereinafter the defendants), as to counts one, two and four of the plaintiffs’ substitute complaint. The plaintiffs brought suit against the defendants for damages arising out of a contract to buy the defendants’ property. Shortly after taking up residence, the plaintiffs discovered that the well on the property failed to produce sufficient water for their needs. In response to the plaintiffs’ substituted complaint, the defendants filed a motion for summary judgment on April 18,1989, only as to counts one, two and four. In the first count, the plaintiffs alleged that the defendants, through their agent, had fraudulently misrepresented that the defendants’ property was in good condition and not in need of any major repairs, whereas the defendants knew that the well was faulty. The plaintiffs relied upon this misrepresentation, purchasing the property to their detriment. In the second count, the plaintiffs alleged that the defendants had fraudulently concealed the defects in the well. The fourth count is directed solely against ChemExec Relocation Services, Inc. (ChemExec), alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA). General Statutes § 42-110a et seq. In this count, the plaintiffs alleged that ChemExec obscured its legal relationships, obligations, and duties in real estate transactions, thereby engaging in unfair trade practices.

After oral argument, the trial court granted the defendants’ motion for summary judgment and issued a memorandum of decision dated September 18,1989. The trial court considered the affidavits submitted by the plaintiffs as insufficient evidence to meet the high standard of proof required to prove fraudulent concealment and misrepresentation by clear, precise, and unequivocal evidence. See Bound Brook Assn. v. Norwalk, 198 Conn. 660, 666, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986); Rego v. Connecticut Insurance Placement Facility, 22 Conn. App. 428, 430, 577 A.2d 1105 (1990). This appeal ensued.

The plaintiffs’ claim that the trial court decided issues of material fact in favor of the defendants and thus improperly granted the defendants’ motion for summary judgment. We agree as to counts one and two, and disagree as to count four.

This court reviews the propriety of a summary judgment by examining whether “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.” Practice Book § 384; Maruca v. Standard, 19 Conn. App. 16, 18, 559 A.2d 1167 (1989).

To support their motion for summary judgment, the defendants offered the inspection report of Bruce P. Barber, the contract of sale, a letter dated July 28,1987, from the defendants to the plaintiffs, the plaintiffs’ answers to the defendants’ interrogatories, the inspection report of D & L Home Inspection Service Corporation performed at the plaintiffs’ request, the affidavit of a ChemExec agent who coordinated the Mánganos’ property sale, and the affidavit of the defendants J. Christine Mangano and James A. Mangano. Barber inspected the property at the defendants’ request and D & L Home Inspection Service Corporation examined the property for the plaintiffs. Neither report noted any well capacity problems, although the Barber report specified that the water pressure fluctuated, indicating that some service was necessary. An addendum to the sales contract stipulated that the sale of the property was “as is.” The letter from ChemExec accompanying the contract informed the plaintiffs that ChemExec was not the owner of record but the contract owner and thus could not make any representations about the property. In the interrogatories, the plaintiffs answered in the negative when asked whether the defendants told them that the well was in good condition and not in need of any major repair. The affidavits of a ChemExec agent and the Mánganos deny that any representations about the well were made to the plaintiffs and deny any knowledge that the well was failing. Furthermore, the Mánganos assert that they never experienced a problem with the well producing sufficient water for their use.

The plaintiffs offered their own affidavit as well as affidavits by Joan Germano, a neighboring property owner, and Bill Melko, a professional well pump installer, to counter the defendants’ motion. Germano acknowledged that while she had no direct knowledge of the well in September, 1987, the month the plaintiffs completed the purchase and took possession of the property, she stated that all the wells in the development could be considered “low producers.” She also stated that during the prior year she and other neighbors had been obligated to replace their wells, and that they and the Mánganos rented portable toilets when they had parties, primarily to conserve water. Germano also disclosed that J. Christine Mangano spoke to her about the defendants’ water problem approximately one year before the sale. In his affidavit, Melko stated that he found the plaintiffs well dry on September 13, 1987, and that it was unlikely to have become dry in just a few months. He acknowledged that he had no direct knowledge of the well at the time of the alleged fraud and misrepresentation. The plaintiffs stated in their affidavit that the defendants’ agents had, on several occasions prior to the sale, orally represented and assured them that the well was in good repair and adequate for their needs.

The trial court stated in its memorandum of decision that the plaintiffs’ affidavits “fail to present evidence that clearly, precisely, and unequivocally supports the plaintiffs’ claims of misrepresentation and fraudulent concealment. This lack of evidence is underscored when it is contrasted with the substantial evidence, e.g., the home inspection reports that accompany the defendants’ motion for summary judgment. Under these circumstances, the plaintiffs have not presented ‘clear, precise, and unequivocal’ evidence of fraudulent concealment and misrepresentation.”

In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). If a genuine issue exists, it must be left to a later determination after a full hearing. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982).

In dealing with the first two counts in the present case, the trial court did not confine itself to deciding whether material issues of fraudulent concealment and misrepresentation existed. Rather, the trial court weighed the plaintiffs’ evidence against the defendants’ evidence and found that the former did not meet the standard of “clear, precise and unequivocal evidence” necessary to prove fraudulent concealment. Bound Brook Assn. v. Norwalk, supra. The plaintiffs did not have to meet this standard of proof to survive a motion for summary judgment. On the contrary, the party moving for summary judgment has the burden of showing the absence of any genuine issue to all the material facts under the applicable principles of substantive law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). As the burden of proof is on the moving party, the evidence must be viewed in the light most favorable to the opponent. Id. Here, the plaintiffs’ evidence contradicted the defendants’ assertions on several points.

For example, one defendant allegedly discussed her well problem with a neighbor during the year prior to the sale. Further, the evidence of the Barber inspection, viewed in a light most favorable to the plaintiffs, indicates that there were water pressure problems known to the defendants prior to the sale. In contrast, the Mánganos deny ever having problems with the well. In light of the plaintiffs’ pleadings and affidavits opposing the defendants’ motion, and the inferences that could reasonably be drawn therefrom, the material issue of the defendants’ knowledge of the well problems prior to the sale is unresolved. See De Dominicis v. American National Fire Ins. Co., 2 Conn. App. 686, 687, 483 A.2d 616 (1984). The defendants’ knowledge is an element of both fraudulent misrepresentation and fraudulent concealment. See Marchand v. Presutti, 7 Conn. App. 643, 645, 509 A.2d 1092 (1986); Karvarco v. T.J.E., Inc., 2 Conn. App. 294, 295-96, 478 A.2d 257 (1984).

Another unresolved material issue is the nature of the agency relationship between the defendants and Westfall Realty and the extent to which the defendants are liable for any misrepresentations made by their alleged agent. The plaintiffs’ first count alleges that Westfall was the agent acting on behalf of the defendants. The defendants have not addressed these issues and thus have not met their burden in moving for summary judgment. D.H.R. Construction Co. v. Donnelly, supra. The material issues of the agent’s authority and the facts misrepresented are unresolved and require a full hearing. See, e.g., Nowak v. Capitol Motors, Inc., 158 Conn. 65, 255 A.2d 845 (1969); Presta v. Monnier, 145 Conn. 694, 146 A.2d 404 (1958).

Because the pleadings, affidavits and other proof submitted by the parties leave open for resolution by a trier of fact the question of whether the defendants or their agents fraudulently concealed or misrepresented the well’s condition, genuine issues of material fact remain unresolved and the trial court should not have granted summary judgment for the defendants as to counts one and two.

The plaintiffs also claim that the trial court should not have granted summary judgment for the defendant ChemExec on count four, the plaintiffs’ CUTPA allegation. We disagree. The gravamen of the plaintiffs’ allegation in this count is that ChemExec committed fraud by obscuring its relationship to the subject property as a contract owner, when the Mánganos were the record title owners. The plaintiffs allege that ChemExec schemed to sell the property as an owner without making the “representations normally given to residential home buyers,” and that this alleged scheme was an unfair trade practice in violation of CUTPA. The trial court considered the pleadings, affidavits and other proof submitted by the parties, concluding that ChemExec did not engage in conduct that could be considered a violation of CUTPA.

Adopting the federal “cigarette rule” to determine whether certain business practices violate CUTPA, Connecticut courts have examined the following factors: “ ‘(1) whether the practice, without necessarily-having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’ ” FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972); McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984); Conaway v. Prestia, 191 Conn. 484, 492-93, 464 A.2d 847 (1983).

Here, the trial court found uncontested facts that defeated the plaintiffs’ allegations. First, the plaintiffs reviewed the sale contract with their attorney and were legally counseled prior to its execution. Second, ChemExec explicitly advised the plaintiffs that it was a relocation company and not in a position to make any representations about the property. Finally, the plaintiffs conceded that they purchased the property “as is.” Even when read in a light most favorable to the plaintiffs, these facts demonstrate that ChemExec was candid in its role as the contractual seller and gave full notice to the plaintiffs regarding its role. As alleged by the plaintiffs, there did not exist any material fact before the trial court to support their fourth count. Accordingly, the trial court properly granted summary judgment on that claim.

The judgment is reversed as to counts one and two and the case is remanded for further proceedings with regard to those counts; the judgment for the defendants as to count four is affirmed.

In this opinion the other judges concurred.

       The defendants Emmett M. Westfall, doing business as Westfall Realty, and D & L Home Inspection Service Corporation were not parties to this summary judgment motion. Count one also names Westfall and count three is solely against D & L Home Inspection Services Corporation.

       The federal “cigarette rule” derives its name as a result of the rule’s being articulated for the first time in Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed. Reg. 8355 (1964).


author: O’Connell, J.

text:
    Jeffrey Shapiro et al. v. Leslie Carothers, Commissioner of Environmental Protection
    (8592)
    Spallone, Daly and O’Connell, Js.
    Argued June 4
    decision released September 11, 1990

      Linda L. Morkan, with whom, on the brief, was Eric Lukingbeal, for the appellants (plaintiffs).

      Janet P. Brooks, assistant attorney general, with whom, on the brief, were ClarineNardi Riddle, attorney general, and Joseph Rubin, assistant attorney general, for the appellee (defendant).
   O’Connell, J.

The plaintiffs, Jeffrey Shapiro and Cedar Island Marina, Inc., have appealed from the dismissal of their administrative appeal. They had sought review of the defendant’s denial of the application for the permits needed to expand Cedar Island Marina in Clinton. The plaintiffs claim that the trial court incorrectly concluded that they had not complied with the statutory requirements governing administrative appeals. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiffs applied to the water resources unit of the department of environmental protection for permission to expand a marina. During the review of the plaintiffs’ application, the Connecticut Fund for the Environment (CFE) intervened as a party pursuant to General Statutes § 22a-19. Following a public hearing, the plaintiffs’ application was denied in January, 1989.

In February, the plaintiffs filed a timely appeal of the decision pursuant to General Statutes § 4-183. The defendant, the commissioner of environmental protection, moved to dismiss the appeal for lack of subject matter jurisdiction, arguing that the plaintiffs had not properly served all the parties to the administrative action. Specifically, the defendant claimed that while the CFE had been served with copies of the appeal papers, it had not been summoned to appear in court. The trial court granted the defendant’s motion, finding that the lack of a summons meant that the plaintiffs had not complied with the terms of § 4-183 (b).

We begin our analysis of the plaintiffs’ claims by again emphasizing that administrative appeals are creatures of statute, and that parties must strictly comply with the statutes that create the right to appeal. DelVecchio v. Department of Income Maintenance, 18 Conn. App. 13, 14, 555 A.2d 1007 (1989). The statutory requirements are jurisdictional; if a party fails to abide by them, the appeal is subject to dismissal. Donis v. Board of Examiners in Podiatry, 207 Conn. 674, 683, 542 A.2d 726 (1988). The statute in effect at the time of this appeal, § 4-183 (b), required that the appeal petition be served upon the relevant agency and all other parties of record within thirty days after notice of the administrative decision. The question we must decide, therefore, is whether the documents served on the CFE, a party of record to the administrative proceeding, satisfied the statutory mandate.

Both our Supreme Court and this court have held that in order to be valid, an appeal must contain a proper citation. Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356-57, 514 A.2d 749 (1986); DelVecchio v. Department of Income Maintenance, supra. “ ‘A citation is a writ issued out of a court of competent jurisdiction, commanding a person therein to appear on a day named to do something therein mentioned.’ ” Sheehan v. Zoning Commission, 173 Conn. 408, 412, 378 A.2d 519 (1977). A proper citation “clearly apprises all concerned that a lawsuit is being instituted, and contains notice of the return date, and the requirement for filing an appearance, and also directs a competent authority to summon the defendant . . . Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra.

In this case, the CFE was never informed that it had to file an appearance in the trial court. Instead, it was simply served with a copy of the papers served on the defendant, who, in contrast, was directed to appear and to answer the plaintiffs’ claims. While it is true that the defendant’s citation appeared on the same sheet as the defective citation directed to the CFE, and thus the CFE had notice of when and where the appeal was to be heard, this was not enough to-satisfy § 4-183 (b). “A proper citation is essential to the validity of the appeal and the jurisdiction of the court. . . . [It] is not synonymous with notice.” (Citations omitted.) Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 339,170 A.2d 732 (1961). The trial court correctly dismissed the appeal because of the plaintiffs’ failure to comply with § 4-183 (b).

The plaintiffs argue that the legislature has, over the past several years, amended § 4-183 in such a manner as to remove the requirement that parties be summoned. We do not agree. In DelVecchio v. Department of Income Maintenance, supra, 15, this court determined that § 4-183 (b), as it stood at all times relevant to this appeal, included the requirement of a valid citation.

The plaintiffs also argue that the most recent changes in § 4-183, enacted in Public Acts 1988, No. 88-317, and effective July 1, 1989, should be applied to this appeal, which was taken on February 21, 1989. They argue that the changes are mere clarifications of existing law, and therefore Public Acts 1988, No. 88-317 should be applied retroactively. We do not agree. Our Supreme Court has already indicated that the changes in § 4-183 were so drastic and extensive that they “cannot be viewed as a mere clarification of legislative intent,” and, therefore, they have no retroactive effect. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 162 n.7, 561 A.2d 931 (1989). The plaintiffs’ efforts to distinguish the present case from Tamopol are not persuasive.

The judgment is affirmed.

In this opinion the other judges concurred.

      The Connecticut Fund for the Environment did not participate in the proceedings in the trial court or in the appeal to this court.

       At the time of this appeal, General Statutes § 4-183 (b) provided: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

      The plaintiffs’ argument that the flaw in the citation was a mere technical defect in the pleadings that could be corrected at any time; see General Statutes §§ 52-72, 52-123, 52-128; is without merit. The failure to include a party defendant properly in the citation “is not a defect curable by amendment and renders the appeal subject to dismissal for want of jurisdiction.” Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985); Sheehan v. Zoning Commission, 173 Conn. 408, 413, 378 A.2d 519 (1977).