author: O’Connell, J. Schaller, J.,

text:
    Metro Bulletins Corporation v. Louis Soboleski
    (11047)
    O’Connell, Landau and Schaller, Js.
    Argued October 29, 1992 —
    decision released March 2, 1993

      Frank C. White, Jr., for the appellant (defendant).

      Stephen G. Silverberg, for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals from a judgment, rendered after a court trial, awarding $9400 to the plaintiff. The defendant claims that the trial court (1) improperly denied his motion for a stay, (2) improperly construed the Connecticut Certificate of Trade Name statute, and (3) should have found that the defendant gave the plaintiff actual notice of the defendant’s agency status. We reverse the judgment of the trial court.

The following facts are necessary to resolve this appeal. On April 22,1989, the plaintiff entered into a written contract whereby it agreed to provide billboard advertising services to a business known as Prime Pontiac for a six month period. The name “Prime Pontiac” was written on the contract on the line reserved for the name of the contracting firm. Below that line, the defendant, Louis Soboleski, president of Prime Pontiac, signed his name on behalf of Prime Pontiac. Immediately following his signature, in the area reserved for the signer’s title, the defendant wrote, in an illegible script, what appears to be a word beginning with the letter P.

At the time of contracting, Bridgeside Pontiac, Inc. (Bridgeside), was a Connecticut corporation in good standing and was doing business as Prime Pontiac. In compliance with General Statutes § 35-1, Bridgeside’s status had been disclosed in a certificate of trade name, executed and filed in the Middletown town clerk’s office by the defendant in his capacity as president of Bridgeside.

On January 23, 1991, the plaintiff commenced this action for the unpaid balance owed on the contract. The complaint named the defendant as “Louis Soboleski doing business as Prime Pontiac.” On January 31, 1991, Bridgeside filed a Chapter 11 bankruptcy petition listing the plaintiff as an unsecured creditor. Approximately one week later, the defendant filed a notice, in the present case, of Bridgeside’s bankruptcy filing. The defendant pleaded as a special defense, that Bridgeside doing business as Prime Pontiac was the proper defendant in the action and that Bridgeside had filed for bankruptcy.

On August 20,1991, the defendant filed a motion to stay the proceedings due to Bridgeside’s Chapter 11 bankruptcy. The motion requested the court to “acknowledge and enforce the automatic stay . . . .” The trial court denied the motion and referred the case to a fact finder who recommended judgment for the plaintiff for $9400. The trial court rendered judgment in accordance with the fact finder’s report and recommendations. The defendant appealed.

I

We first consider the threshold question of whether the automatic stay provision of the federal bankruptcy law, 11 U.S.C. § 362, is available to the defendant. Unlike Bridgeside, which is a debtor in the bankruptcy proceeding, the defendant is a nondebtor. As a general rule, the filing of a Chapter 11 bankruptcy petition does not enjoin litigation against nondebtors. G. Ishii-Chang, “Litigation and Bankruptcy: The Dilemma of the Codefendant Stay,” 63 Am. Bankr. L. J. 257 (1989). A number of courts have issued blanket prohibitions on the application of the stay to any nondebtor regardless of its relationship to the debtor and the effect of the action sought to be stayed. See, e.g., Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1329-30 (10th Cir. 1984); Lynch v. Johns-Manville Sales Corporation, 710 F.2d 1194, 1196-97 (6th Cir. 1983); Austin v. Unarco Industries, Inc., 705 F.2d 1, 4-5 (1st Cir.), cert. denied, 463 U.S. 1247, 104 S. Ct. 34, 77 L. Ed. 2d 1454 (1983); Pitts v. Unarco Industries, Inc., 698 F.2d 313, 314 (7th Cir. 1983); In re Kelton Motors, Inc., 121 B.R. 166, 193 (Bankr. D. Vt. 1990).

There is, however, limited authority for extending the stay to a nondebtor in special circumstances. See A.H. Robins Co. v. Piccinin, 788 F.2d 994 (4th Cir.), cert. denied, 479 U.S. 876, 107 S. Ct. 251, 93 L. Ed. 2d 177 (1986). Here, the defendant claims the benefit of the stay, asserting that he has an identity of interest with the debtor. He contends that a judgment against him is, in effect, a judgment against the bankrupt debtor. A sufficient identity of interest has been recognized as satisfying the special circumstances requirement. See id.

Before the merits of the defendant’s identity of interest argument can be reached, however, we must determine the procedure by which the nondebtor may obtain the stay. Despite a split of authority, the weight of the case law indicates that a nondebtor, seeking to extend the stay beyond the debtor, must move for the extension in the bankruptcy court. See, e.g., Ingersoll-Rand Financial Corporation v. Miller Mining Co., 817 F.2d 1424, 1427 (9th Cir. 1987); Federal Land Bank of Spokane v. Stiles, 700 F. Sup. 1060, 1063 (D. Mont. 1988); B & B Associates v. Fonner, 700 F. Sup. 7 (S.D.N.Y. 1988); Rhode Island Hospital Trust National Bank v. Dube, 136 F.R.D. 37, 39 (D.R.I. 1990); In re Codfish Corporation, 97 B.R. 132 (Bankr. D. Puerto Rico 1988); In re All Seasons Resorts, Inc., 79 B.R. 901, 903 (Bankr. C. D. Cal. 1987); In re MacDonald/Associates, Inc., 54 B.R. 865, 867 (Bankr. D.R.I. 1985); In re Precision Colors, Inc., 36 B.R. 429, 431 (Bankr. S.D. Ohio 1984); W. W. Gay Mechanical Contractor, Inc. v. Wharfside Two, Ltd., 545 So. 2d 1348, 1350 (Fla. 1989); Collier v. Eagle-Picher Industries, Inc., 86 Md. App. 38, 48, 585 A.2d 256, cert. denied sub nom. Corhart Refractories Co. v. Collier, 323 Md. 33, 591 A.2d 249 (1991).

In the present case, the defendant did not file for an extension of the automatic stay in the bankruptcy court. Instead, he proceeded by motion in our state trial court. We believe that the cases requiring filing of the motion for an extension of the stay in the bankruptcy court represent the better reasoning. This is because “[i]t is fundamental under federal bankruptcy law that the automatic stay operates for the benefit of the debtor and trustee only, and gives other parties interested in property affected by the automatic stay no substantive or procedural rights.” (Internal quotation marks omitted.) Shorr v. Kind, 1 Cal. App. 4th 249, 258, 2 Cal. Rptr. 2d 192 (1991). Only the bankruptcy court has the entire picture before it. It would be difficult, if not impossible, for a state trial court, which has only the immediate case before it, to determine the best interests of the bankruptcy estate. Accordingly, because the defendant, as a nondebtor, did not apply for an extension of the automatic stay in the bankruptcy court, we affirm the trial court’s denial of the defendant’s motion to stay.

II

We turn next to the defendant’s claim that General Statutes § 35-1 is a notice statute and, as a result, the plaintiff had constructive notice that Bridgeside was the proper defendant. The fact finder found “that at the time this contract was executed, Bridgeside Pontiac, Inc., did business as Prime Pontiac pursuant to a trade name certificate filed with the town clerk of Middletown, Connecticut.” He further found “that the certificate would reasonably apprise a creditor that a corporation was doing business as Prime Pontiac, and that the true corporate name could reasonably be inferred . . . .” Notwithstanding these findings, the fact finder gave no effect to the statute and made his recommendations according to the usual common law rules of agency.

There are two possible purposes that § 35-1 might serve. First, it could be intended to protect a trade name from use by competitors, similar to the protection afforded authors and composers by the federal copyright statutes, or, second, it could be intended to benefit the public in general and creditors in particular by disclosing the true name and address of the person behind a trade name.

The general rule is that “[t]he object or purpose of statutes which regulate the doing of business under a fictitious or assumed name is . . . to protect the public by giving notice or information as to the person with whom they deal, and to afford protection against fraud and deceit.” (Emphasis added.) 57 Am. Jur. 2d, Names § 66. Our Supreme Court has recognized this rule as the purpose behind Connecticut’s trade name statute by enunciating that “its object is to enable a person dealing with another trading under a name not his own, to know the man behind the name, that he may know or make inquiry as to his business character or financial responsibility . . . .” DiBiase v. Garnsey, 103 Conn. 21, 27, 130 A. 81 (1925). The mandated disclosure is “intended for the protection of creditors . . . .” Wofsey v. New York & Stamford R. Co., 106 Conn. 254, 258, 138 A. 136 (1927).

In this respect, § 35-1 differs from the statutes governing trademarks and service marks, which are designed to give their owners protection from infringement or unauthorized use. See General Statutes § 35-1 la et seq. If a trade or service mark owner elects not to register the mark, the only risk is exposure to use of the mark by a competitor. This contrasts sharply with the risks posed by the failure to file a certificate of trade name. Section 35-1 provides two substantial penalties for noncompliance. First, a failure to comply shall be deemed to constitute an unfair or deceptive practice under § 42-110b (a) of the Connecticut Unfair Trade Practices Act (CUTPA). As a result, a defendant faces the full range of civil penalties and liabilities applicable to a CUTPA violation. Second, the defendant may be criminally prosecuted and imprisoned for as long as one year and fined up to $500. From this we conclude that, even though as an incidental benefit § 35-1 may provide some protection to persons transacting business under a trade name, it is primarily intended to protect creditors by giving them constructive notice of the contents of the trade name certificate.

It is a fundamental principle that all legislative enactments are intended to serve some purpose. Union Trust Co. v. Heggelund, 219 Conn. 620, 626, 594 A.2d 464 (1991); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980). Section 35-1 contains several key provisions to achieve its purpose of notification. These include the mandate that each town clerk create and maintain a dual indexing system, thus enabling the public to find either the owner of a particular trade name or the trade name of a particular person or entity.

We are further persuaded that the statute was intended to provide constructive notice by its parallels with real property recording and indexing provisions. In requiring a filing and indexing system, § 35-1 is analagous to General Statutes § 7-25, which governs the recording and indexing of real property records. As is also true of real property records, a certified copy of a certificate of trade name is presumptive evidence in all courts in Connecticut of the facts stated in the certificate. See General Statutes § 7-23.

In light of the statute’s specific mandates and substantial penalties, we cannot agree with the plaintiff’s contention that § 35-1 is not a notice statute. The plaintiff’s theory would mean that a business being conducted under a trade name could not use that trade name without providing an affirmative disclosure of the entity behind the business in every transaction with the public. Disclosure, however, is precisely the intended function of the statute. As a result, the plaintiffs theory would render the statute meaningless. We will not presume that the legislature intended to enact meaningless or useless legislation. Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991); Union Trust Co. v. Heggelund, supra.

In the present case, because the certificate of trade name was filed before the parties entered into the contract, we hold that the plaintiff had constructive notice of the corporate principal’s identity at the time of contracting. As stated by the Pennsylvania Supreme Court, construing a similar statute, the plaintiff “cannot plead ignorance of facts of which it is deemed to have had [constructive] notice.” Ulick v. Vibration Specialty Co., 348 Pa. 241, 243, 35 A.2d 332 (1944). Accordingly, the judgment of the trial court must be reversed.

Because our resolution of the second issue is dispositive of the appeal, we do not reach the issue of whether the defendant provided the plaintiff with actual notice of the defendant’s agency status.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion Landau, J., concurred.

Schaller, J.,

dissenting. I disagree with the result reached in part II of the majority opinion. There, the majority concludes that “because the certificate of trade name was filed before the parties entered into the contract, we hold that the plaintiff had constructive notice of the corporate principal’s identity at the time of contracting.” (Emphasis added.) Notwithstanding our well established case law requiring an agent to disclose the principal to a third party; see Klepp Wood Flooring Corporation v. Butterfield, 176 Conn. 528, 532-33, 409 A.2d 1017 (1979); Robert T. Reynolds Associates, Inc. v. Asbeck, 23 Conn. App. 247, 251, 580 A.2d 533 (1990); New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 683, 474 A.2d 810 (1984);* the result here enables the agent to escape personal liability after withholding critical information readily available to him but obtainable by the plaintiff only with considerable effort and inconvenience.

In addition to the facts recounted by the majority, it is important to note that the only names appearing with the plaintiff’s name on the contract in question are “Prime Pontiac” on the line designated for “firm” and “Louis J. Soboleski” on the line designated for “signature” and “title.” The only indication of title is an illegible notation that, even if assumed to be the letter P, does not indicate any one capacity more than any other.

The fact finder properly determined from the evidence that the plaintiff did not have actual knowledge that a corporation named Bridgeside Pontiac was involved in this transaction and that Soboleski signed only in his individual capacity. The record does not indicate, moreover, that Sobeleski undertook to alert the plaintiff that “Prime Pontiac,” noted on the firm line, was not an entity at all but, instead, a trade name. Without further information being furnished by Soboleski, the only person or entity contracting with the plaintiff was Louis J. Soboleski, in his personal capacity. See, e.g., Robert T. Reynolds Associates, Inc. v. Asbeck, supra.

The majority concludes that the plaintiff had constructive notice that Bridgeside Pontiac was the principal behind the trade name thus placing on the plaintiff the burden of discovering the details of the trade name disclosure made under § 35-1. There is, however, no reason whatsoever why the plaintiff would have known that Prime Pontiac was a trade name. How, then, did the duty arise to search one or more trade name indices located, by the terms of § 35-1, wherever the “business is or is to be conducted or transacted”?

It is true that our Supreme Court stated in a 1925 case, DiBiase v. Garnsey, 103 Conn. 21, 27, 130 A. 81 (1925), that “[the object of § 35-1] is to enable a person dealing with another trading under a name not his own, to know the man behind the name, that he may know or make inquiry as to his business character or financial responsibility.” It is obvious, however, that whatever disclosure value this statute produces is minimal — minimal because the disclosure is recorded, not in any central, fixed or readily identifiable location as in the case of real property records or security interest filings under the Uniform Commercial Code, but in at least one of the 169 towns in Connecticut “in which such business is or is to be conducted or transacted.”

Section 35-1 is hardly a broad ranging statute fully protecting individuals doing business with persons or corporations using trade names. While it does serve the purpose of providing disclosure of the principal using a trade name, that information is usable only when it is known that a trade name is involved. The statute makes no mention that the filing will constitute “constructive notice.” The plain and unambiguous terms of the statute, therefore, cannot fairly be read to include this additional provision. Battersby v. Battersby, 218 Conn. 467, 471, 590 A.2d 427 (1991) (“[a]bsent ambiguity, the courts cannot read into statutes, by construction, provisions that are not clearly stated”).

The preferable result is to require the party having possession of the information about the principal’s identity — in this case Soboleski — to disclose that information before the transaction is consummated. See Klepp Wood Flooring Corporation v. Butterfield, supra; Robert T. Reynolds Associates, Inc. v. Asbeck, supra. Our cases setting forth the law of agency should take precedence over the majority’s reading of the statute inasmuch as “constructive notice” is not specifically set forth in § 35-1. See Battersby v. Battersby, supra.

In this case, Soboleski had within his control all of the information necessary to alert the plaintiff as to what entity Soboleski envisioned was to be bound by the legal consequences flowing from this contract. For whatever reasons, he failed to disclose any information and, in fact, completed the signature portion of the contract in an ambiguous manner. The simple fact is that only Soboleski is bound by this contract as he is the only individual or entity executing it with the plaintiff.

Although the trade name statute is a disclosure statute — albeit extremely limited in scope and coverage — it is designed “to protect the public by giving notice or information.” 57 Am. Jur. 2d, Names § 66. Our own Supreme Court indicated that the statute is for the benefit of others doing business with one operating behind a “name not his own.” DiBiase v. Garnsey, supra. It seems inconsistent with that purpose when the statute is employed to avoid liability by the very person possessing the relevant information needed for a fair evaluation of the transaction.

The majority believes that the purpose behind the trade name statute would be undermined were the business using the trade name to be required to provide “an affirmative disclosure of the entity behind the business in every transaction with the public. ” That concern would not be relevant in this case if this court were to hold that the disclosure of principal rule governs. The statute is not rendered meaningless if this court requires the party in control of the information to disclose it to the party with whom he is doing business. It does not seem too much to ask of an individual acting as an agent in a given transaction who wants to avoid personal liability on a particular contract specifically to disclose his principal to the other party. See, e.g., Myers-Lieber Sign Co. v. Weirich, 2 Ariz. App. 534, 410 P.2d 491 (1966) (Cameron, J., dissenting); see also Saco Dairy Co. v. Norton, 140 Me. 204, 207, 35 A.2d 857 (1944) (fact that contract negotiated by agent under trade name not of itself sufficient disclosure of agency). In all fairness, the failure to do so should prevent that individual from escaping personal liability.

For the foregoing reasons, I respectfully dissent and would affirm the judgment of the trial court.

       General Statutes § 35-1 provides in pertinent part: “fictitious trade names forbidden; certificates, unfair trade practices. No person, except as hereinafter provided, shall conduct or transact business in this state, under any assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the person or persons conducting or transacting such business, unless there has been filed, in the office of the town clerk in the town in which such business is or is to be conducted or transacted, a certificate stating the name under which such business is or is to be conducted or transacted and the full name and post-office address of each person conducting or transacting such business or, in the case of a corporation using such an assumed name, its full name and principal post-office address. Such certificate shall be executed by all of such persons or, in the case of a corporation, by an authorized officer thereof, and acknowledged before some authority qualified to administer oaths. Each town clerk shall keep an alphabetical index of the names of all persons filing such certificates and of all names or styles assumed as hereinbefore provided and, for the indexing and filing of each such certificate, shall receive the statutory filing fee for documents established in section 7-34a, to be paid by the person filing such certificate. A copy of any such certificate, certified by the town clerk in whose office the same has been filed, shall be presumptive evidence, in all courts in this state, of the facts therein contained. . . . Any person conducting or transacting business in violation of the provisions of this section shall be fined not more than five hundred dollars or imprisoned not more than one year. Failure to comply twith the provisions of this section shall be deemed to be an unfair or deceptive trade practice under subsection (a) of section 42-110b.”

       11 U.S.C. § 362 provides in pertinent part: “(a) Except as provided in subsection (b) of this section, a petition . . . operates as a stay, applicable to all entities, of — (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title . . . .”

       The defendant also claimed the benefit of the bankruptcy stay due to his common law right of indemnification as an officer of the debtor corporation. Claims that are merely mentioned but not otherwise analyzed in the brief, as is true of this claim, are considered abandoned. Garrity v. McCaskey, 223 Conn. 1, 2 n.3, 612 A.2d 742 (1992).

       We note that because the stay must be sought by the nondebtor, it is a misnomer to refer to it as an automatic stay.

       For example, the court in New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 683, 474 A.2d 810 (1984), stated: “To avoid personal liability, it is the duty of an agent to disclose both the fact that he is acting in a representative capacity and the identity of his principal, since the party with whom he deals is not required to discover or to make inquiries to discover these facts.”

       See General Statutes § 42a-9-401 (1), which provides: “The proper place to file in order to perfect a security interest is as follows: (a) When the collateral is timber to be cut or is minerals or the like, including oil and gas, or accounts subject to subsection (5) of section 42a-9-103a, or when the financing statement is filed as a fixture filing and the collateral is goods which are or are to become fixtures, then in the office where a mortgage on the real estate would be filed or recorded; (b) in all other cases, in the office of the secretary of the state.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Raymond H. Fortier v. Newington Group, Inc., et al.
    (11257)
    O’Connell, Heiman and Schaller, Js.

      Argued January 19 —
    decision released March 2, 1993

      Walter A. Twachtman, Jr., for the appellant (plaintiff).

      Kenneth Rosenthal, with whom, on the brief, were Marc A. Wattman and David R. Schaeffer for the appellee (named defendant).
   Heiman, J.

The plaintiff appeals from the trial court’s judgment rendered in favor of the named defendant in this interpleader action. On appeal, the plaintiff asserts that the trial court improperly found that no meeting of the minds existed between the plaintiff and the defendant and, therefore, the trial court failed to interpret and reconcile an option agreement in light of (1) the standard rules of contract interpretation, (2) the case law regarding the interpretation of option agreements, (3) the surrounding circumstances at the time the option was executed, (4) four utility easements needed to allow for the proper functioning of the building which was the subject of the sale, which easements are a benefit to the property and not an encumbrance, (5) the fact that the defendant (a) never exercised the option pursuant to its terms, (b) never sent notice to the plaintiff pursuant to the requirement of paragraph four of the contract, and (c) did not notify the plaintiff in a timely fashion, and (6) the fact that the notice of the existence of easements by the defendant’s attorney was ineffective because (a) the option had expired and the parties had no further rights or responsibilities with regard to each other, (b) the notice was not timely given, and (c) the notice was not given in accordance with the provisions of paragraph four of the option agreement. We affirm the trial court’s judgmént.

The following facts are necessary for a resolution of this appeal. The plaintiff and the defendant attempted to enter into an option agreement on June 21, 1988, regarding the sale by the plaintiff of three parcels of commercial land and a building to the defendant. The form of option agreement that they attempted to execute was prepared by the plaintiff without the benefit of legal counsel.

The option agreement provided that it could be exercised at any time during the life of the option by the purchaser’s giving written notice to the seller. The option further provided that upon the exercise of the option the parties would enter into a bond for deed, with a life of up to three months, and also provided that upon the execution of the bond for deed the purchaser “shall pay an additional deposit of two hundred fifty-five thousand dollars.”

The option also contained a clause concerning the requirements of the state of the title to be conveyed. On August 17, 1988, counsel for the defendant notified the plaintiff that a title search had disclosed that the property was subject to four easements, and made demand that the plaintiff either remedy the defects in title, or, alternatively, that he instruct the escrow agent to return the $45,000 deposit. Instead of meeting the demand, the plaintiff claimed that the title to the premises was of good record and insurable by a reputable title insurance company at standard rates. In support of this assertion, the plaintiff proved the issuance of a loan title insurance policy at standard rates for these premises. He also established that there had been no changes in the title subsequent to the issuance of the title policy. The title policy, as issued, noted four easements of record affecting the premises. The policy also provided that the exercise of any of the rights granted by these easements would not interfere with the use and enjoyment of the premises or with the use of the improvements then located on the insured premises. The plaintiff thus declined to remedy the defect or to instruct the escrow agent to return the deposit.

On February 5, 1992, the trial court in a memorandum of decision found that there was no meeting of the minds as to the quality of the title and therefore found that no contract existed. It rendered judgment in favor of the defendant for the return of the deposit after deduction of reasonable counsel fees and disbursements due to the stakeholder. This appeal followed.

The defendant asserts that the trial court improperly found that no contract existed because there was no meeting of the minds as to the quality of the title to be conveyed and that this finding was clearly erroneous. The defendant disputes the trial court’s finding that the first two sentences of paragraph seven, as to the quality of title to be delivered, are in conflict. We are not persuaded that the trial court’s findings are clearly erroneous.

The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. Harry Skolnick & Sons v. Heyman, 7 Conn. App. 175, 178, 508 A.2d 64 (1986). On appeal, our review is limited to a determination of whether the trier’s findings are clearly erroneous. Id. “This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ...” (Citations omitted; internal quotation marks omitted.) Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). Since the case was tried to the court, the trial judge is the sole arbiter of the issues of weight and credibility. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 160, 510 A.2d 440 (1986). We must give the evidence the most favorable reasonable construction to support the judgment. Id.; Polverari v. Peatt, 29 Conn. App. 191, 201, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992). We may reject the trial court’s factual finding only where we conclude that such finding was clearly erroneous. Kimberly-Clark Corporation v. Dubno, supra, 154. “ ‘That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go.’ ” Berlin v. Commissioner, 207 Conn. 289, 293, 540 A.2d 1051 (1988), quoting Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. Hoffman v. Fidelity & Casualty Co., 125 Conn. 440, 443-44, 6 A.2d 357 (1939); Zahornacky v. Edward Chevrolet, Inc., 37 Conn. Sup. 751, 753-54, 436 A.2d 47 (1981); see also Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 249, 268 A.2d 391 (1970). “If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make.” Hoffman v. Fidelity & Casualty Co., supra. “ ‘[A]n agreement must be definite and certain as to its terms and requirements.’ ” Dunham v. Dunham, 204 Conn. 303, 313, 528 A.2d 1123 (1987).

Our review of the evidence and the pleadings in the whole record convinces us that the trial court’s factual findings as set out in the memorandum of decision are supported by the evidence and are not clearly erroneous. See Pandolphe’s Auto Parts, Inc. v. Manchester, supra. The trial court heard all of the evidence and had before it the option agreement that contained the contradictory language concerning the quality of the title to be conveyed. The trial court found with respect to the issue of the delivery of title, that the parties had not had a meeting of the minds, and, thus, effectively found that no enforceable contract existed between them.

The plaintiffs reliance on cases discussing the interpretation of contracts is misplaced. The trial court properly found that no contract in fact existed. No interpretation of the document was necessary and the balance of the plaintiffs claims are thus moot.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff brought this action praying for a judgment of interpleader requiring the plaintiff and the named defendant to plead their claims to money in the hands of the other defendant, Dow and Condon, Inc. (stakeholder). The stakeholder, a real estate brokerage company that held Newington Group’s $45,000 deposit in escrow was impleaded as a party defendant to give the court authority over the fund. The stakeholder is not a party to this appeal. We will refer to Newington Group, Inc., as the defendant in this opinion.

       The option agreement contained the following clause concerning the state of the title to be conveyed: “7. TITLE. The Premises shall be conveyed absolutely free and clear of all liens, easements, and encumbrances. Title is to be of good record and, [in] fact, merchantable and insurable by a reputable title insurance company at standard rates. Seller represents that it knows of no encumbrances. Upon execution of this Agreement Purchaser shall commence an examination of the title of the Premises and shall notify Seller of any defects in the title uncovered by said examination. In the event that defects in title are of such character that they may be remedied by legal action, such legal action shall be pursued with due diligence by Seller at its own expense, whereupon the time herein specified for full settlement by Purchaser shall thereupon be extended for the period for such prompt action. If at the time set for the closing of title, the Seller has not cleared title, Purchaser may elect to accept such title as Seller can provide without set-off or deduction in the purchase price; or terminate this Option Agreement, in which case the Option Price shall be returned to Purchaser within ten (10) days after a letter of termination shall have been delivered by Purchaser to Seller.”

       See footnote 1, supra.

       In light of our conclusion that the trial court properly found that no contract existed because of a lack of the meeting of the minds of the parties, we need not address the defendant’s alternative ground that the escrow deposit be returned to it because the plaintiff must be bound by the unambiguous terms of the written contract that he himself drafted.

       The plaintiffs reliance on the Supreme Court’s opinion in Frank Towers Corporation v. Laviana, 140 Conn. 45, 97 A.2d 567 (1953), is clearly misplaced. In that case, our Supreme Court was called on to interpret the phrase “free of all encumbrances.” Id. Here, the phrase in paragraph seven went well beyond that by adding the terms liens and easements to the generic term “encumbrances.”


author: Freedman, J.

text:
    Toby deElye Cole et al. v. Planning and Zoning Commission of the Town of Cornwall
    (11227)
    Daly, Lavery and Freedman, Js.

      Argued January 5 —
    decision released March 2, 1993

      Ian A. Cole, for the appellants (plaintiffs).

      Thomas P. Byrne, for the appellee (defendant).
   Freedman, J.

This is an appeal by the plaintiffs from the judgment of the trial court dismissing their appeal from the decision of the defendant planning and zoning commission (commission) amending its regulations regarding the operation of sawmills in residential districts. The plaintiffs claim that the trial court improperly determined that they were not aggrieved parties and therefore lacked standing to maintain the appeal. We agree with the plaintiffs and reverse the judgment of the trial court.

The relevant facts are as follows. On February 11, 1991, the commission, after a public hearing, amended that portion of the zoning regulations of the town of Cornwall governing the issuance of a special exception permit and site plan approval for the establishment of a commercial sawmill in the R-3 and R-5 residential zones. Notice of this decision was published in accordance with the applicable statutory requirements and thereafter the plaintiffs filed a timely appeal to the Superior Court. The trial court, after a hearing on the issue of aggrievement, found that the parties were not aggrieved and dismissed the appeal. This appeal followed.

In their complaint, the plaintiffs alleged that they were aggrieved “because they own property within 100 feet of property upon which [an] individual intends to operate a permanent, commercial sawmill and has operated a portable sawmill in the past.” They went on to allege that “[a] permanent sawmill operation was not permitted on said property under the original regulation but is permitted under the amended regulation.”

During the hearing on the issue of aggrievement, in a dialogue with the court, the attorney for the defendant commission stated to the trial court that “[the plaintiffs] own property, Your Honor, in the town of Cornwall, in the R-3 [and] R-5 zone[s] that this regulation pertains to.” “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings. . . . They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them. ... To the extent that they dispense with evidence, they are similar to facts judicially noticed.” (Citations omitted.) C. Tait & J. LaPlante (2d Ed.) § 6.5, pp. 131-32; B. Holden & J. Daly, Connecticut Evidence (2d Ed.) § 103a, p. 1019. “A party is bound by a concession made during the trial by his attorney.” Housing Authority v. Pezenik, 137 Conn. 442, 448, 78 A.2d 546 (1951).

The trial court concluded that the plaintiffs had “failed to demonstrate a specific, personal and legal interest as distinguished from a general interest such as is the concern of members of the community as a whole and to establish a specific and legal interest which has been specially and injuriously affected by the action of the commission.” The plaintiffs, however, as owners of land within either the R-3 zone or the R-5 zone, the zones to which the amendment pertains, are aggrieved parties by virtue of General Statutes § 8-8 (a) (l). Timber Trails Corporation v. Planning & Zoning Commission, 222 Conn. 374, 376 n.3, 610 A.2d 617 (1992).

“Aggrievement falls within two broad categories, classical and statutory. The factors involved in whether classical aggrievement exists are tempered by the subject matter of the litigation. A party has been classically aggrieved if it successfully demonstrates a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as the concern of all members of the community as a whole, and successfully establishes that this specific, personal and legal interest has been specially and injuriously affected by the decision. . . . Statutory aggrievement exists by legislative fiat, which grants appellants standing by virtue of a particular legislation, rather than by judicial analysis of the particular facts of the case.” (Citations omitted.) Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 300-301, 605 A.2d 885 (1992). Here, the plaintiffs were statutorily aggrieved. The trial court, therefore, improperly determined that the plaintiffs were not aggrieved parties.

Although we determine that the plaintiffs were aggrieved parties by virtue of their ownership of land within the zone to which the amendment pertained, we must also determine whether the plaintiffs properly pleaded aggrievement. Both pleading and proof of aggrievement are a prerequisite to a trial court’s jurisdiction over the subject matter of the plaintiffs’ appeal. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). Here, the plaintiffs pleaded, in essence, that they owned property within 100 feet of property on which an individual intended to operate a sawmill and that a permanent sawmill was not permitted on said property under the original regulation but was permitted under the amended regulation. It is obvious, therefore, that the property referred to in the complaint, on which a permanent sawmill would be permitted under the amendment, was within the zone to which the amendment pertained. As such, the plaintiffs set forth a proper allegation of aggrievement based on their proximity to a portion of the land involved in the decision of the commission. See General Statutes § 8-8 (a) (1) (“aggrieved person” includes any person owning land within a radius of 100 feet of any portion of the land involved in the decision of the commission). Whether the plaintiffs own property within the affected zone or within 100 feet of the affected zone is not significant for purposes of establishing statutory aggrievement. In both instances, there is statutory aggrievement. Immaterial variances between an allegation and the proof at trial “shall be wholly disregarded.” Practice Book § 178. A variance is not material if the defendant was not prejudiced in maintaining its defense, surprised by the plaintiff’s proof or misled by the allegations in the complaint. DiLieto v. Better Homes Insulation Co., 16 Conn. App. 100, 106, 546 A.2d 951 (1988); LaFaive v. DiLoreto, 2 Conn. App. 58, 62, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). Clearly, the defendant commission was not misled, since it had stated to the court that the plaintiffs owned land in the affected zone. While the complaint fails to state that the plaintiffs own property within the zone to which the amendment pertains, it properly pleads aggrievement because it “alleges facts which, if proven, would constitute aggrievement as a matter of law . . . .” Beckish v. Manafort, supra.

The judgment is reversed and the case is remanded for a hearing on the merits.

In this opinion the other judges concurred.

       After finding that the plaintiffs were not aggrieved and that the trial court therefore lacked jurisdiction to hear the appeal, the trial court, nevertheless, went on to hold that “even if aggrievement were established, the plaintiffs could not establish their claims.” We conclude, however, that, once the trial court found that it lacked subject matter jurisdiction to hear the appeal on the merits because the plaintiffs were not aggrieved by the decision of the commission, it was without authority to decide the case on the merits. See Light Rigging Co. v. Department of Public Utility Control, 219 Conn. 168, 172, 592 A.2d 386 (1991) (“trial court . . . was bound to dismiss the case upon finding that it had no jurisdiction”). Its conclusions in this regard,therefore, were a nullity. Indeed, the trial court itself recognized this in its own opinion when it stated that “[bjefore the court is able to entertain the merits of the plaintiffs’ case, the issue of aggrievement, which is a prerequisite to the court’s exercise of jurisdiction in this or in any other administrative appeal, must be met and satisfied.”

       General Statutes § 8-8 (a) (1) provides in pertinent pert: “In the case of a decision by a . . . planning and zoning commission . . . ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”


author: Foti, J.

text:
    Susan B. Mihalyak v. John Mihalyak
    (10825)
    O’Connell, Foti and Heiman, Js.

      Argued January 5 —
    decision released March 2, 1993

      Robert M. Elliott, for the appellant-appellee (defendant).

      Gerald H. Kahn, for the appellee-appellant (plaintiff).
   Foti, J.

The defendant appeals from the judgment of the trial court granting in part and denying in part his motion to terminate alimony. He claims that the trial court improperly (1) ordered the plaintiff to repay alimony payments to the defendant only from the date on which he filed the motion rather than from the date on which the plaintiff’s cohabitation began, and (2) failed to exercise its discretion when it denied the defendant an award of interest, attorney’s fees and costs. The plaintiff has cross appealed, her sole claim being that the trial court improperly ordered a retroactive modification of alimony. We agree with the defendant and reverse the judgment of the trial court.

The relevant facts are as follows. The parties’ marriage was dissolved in February, 1985, at which time the plaintiff, who was awarded the marital residence, was ordered to pay the defendant $30,000 as a property settlement on or before April 15,1985. Until such payment, the defendant was to pay the plaintiff $180 per week in alimony, which would be increased to $225 per week when the defendant received the $30,000. On June 1,1988, the alimony was to be reduced from $255 to $180 per week; on June 1, 1989, the alimony was to be further reduced to $100 per week. The amount of alimony was also to change if the plaintiff sold the house. The judgment, which incorporated an oral stipulation of the parties, further provided that “the Wife’s right to receive alimony will terminate upon the death of either party or upon the wife’s remarriage or cohabitation.”

The defendant first learned of the plaintiff’s possible cohabitation in the summer of 1990. After investigating to confirm his suspicion, he filed a motion for contempt in December, 1990, and a motion for modification or termination of alimony on February 14,1991. He continued paying alimony to the plaintiff until July 19,1991. Thereafter, he paid alimony into an interest bearing escrow account.

The trial court held an evidentiary hearing on. the defendant’s motions, at which time the plaintiff orally and by written stipulation admitted to living with a man at the former marital house since the beginning of September, 1988, “under the same roof’ and “sharing the same bed.” The plaintiff also orally stipulated that she did not want to receive any more alimony from the defendant after July 19,1991. The defendant had paid some 150 weeks of alimony from September 1, 1988, until July 19, 1991.

After hearing the evidence, the court found “that the plaintiff was cohabiting or living with another person under circumstances which the court finds should result in a modification, suspension, reduction, or termination of alimony because the living arrangements caused a change of circumstances so as to alter the financial needs of the plaintiff.” The court ordered termination of the alimony effective February 14, 1991, the date the defendant filed his motion for modification. The plaintiff was ordered to repay, without interest, all sums paid to her by the defendant between February 14 and July 19, 1991. The court also terminated the defendant’s obligation to name the plaintiff as a beneficiary on a policy insuring his life, and ordered that alimony payments escrowed after July 19, 1991, be returned to the defendant. No attorney’s fees or costs were awarded to either party.

The defendant first claims that the trial court should have ordered a termination of alimony as of September 1, 1988, the date it found the plaintiff’s cohabitation began, since the dissolution decree provided for automatic termination in the event of cohabitation. The plaintiff, on the other hand, argues that the trial court should have terminated alimony as of July 19, 1991, the date as of which she stipulated to the court that she did not want to receive any further alimony from the defendant. By her analysis, a termination any time prior to that date would constitute an improper retroactive modification. We agree with the defendant and reject the plaintiff’s position.

The plaintiff relies on the principle of law established in Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977), and reaffirmed in Darak v. Darak, 210 Conn. 462, 556 A.2d 145 (1989), Vickery v. Vickery, 25 Conn. App. 555, 595 A.2d 905, cert. denied, 220 Conn. 919, 597 A.2d 344 (1991), and Paddock v. Paddock, 22 Conn. App. 367, 577 A.2d 1087 (1990), that alimony already “accrued” may not be modified. This principle, however, applies when a party seeks modification of alimony pursuant to General Statutes § 46b-86. “That statute ‘is a separate and independent statutory basis for the modification of alimony and is a claim which must be raised in a written motion by the party seeking to modify the award of periodic alimony.’ (Emphasis added.) Connolly v. Connolly, 191 Conn. 468, 478, 464 A.2d 837 (1983).” Taylor v. Taylor, 17 Conn. App. 291, 292-93, 551 A.2d 1285 (1989).

The record is clear that the defendant never sought a termination of alimony pursuant to General Statutes § 46b-86. Rather, he sought to terminate alimony solely on the basis of a provision in the decree.* ** The defendant’s motion does not refer to § 46b-86 (a) or (b). Dur-ing the evidentiary hearing, the defendant’s counsel informed the trial court that “[w]ith respect to the issue of retroactivity, this case is not about retroactivity whatsoever. We are seeking and we are respectfully asking this court to enforce its order, which order said that alimony shall terminate in the event of cohabitation. I don’t believe this is a matter . . . that is controlled by the statute in any way ... . It is merely seeking to enforce a court order. And, that’s what I’m asking the court to do.”

The defendant contends, and we agree, that the dissolution judgment itself provided for termination of the alimony upon the occurrence of the plaintiff’s cohabitation. The provisions of General Statutes § 46b-86 are inapplicable. The trial court should have considered the terms of the dissolution decree, which incorporated the agreement of the parties in the form of a stipulation. Taylor v. Taylor, supra. “When a judgment incorporates a separation agreement in accordance with a stipulation of the parties, it is to be regarded and construed as a contract. Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990). . . .” (Citations omitted.) Greenburg v. Greenburg, 26 Conn. App. 591, 595, 602 A.2d 1056 (1992). The ultimate issue for this court is whether the trial court, in construing the judgment “as a contract,” reasonably could have concluded as it did. Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975).

“In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together. . . . When the language is clear and unambiguous . . . the contract is to be given effect according to its terms.” (Citations omitted.) Greenburg v. Greenburg, supra, 596. The judgment in this case is clear: by its unambiguous terms, alimony ceased when the plaintiff’s cohabitation began on September 1,1988. The alimony termination provision was automatic and self-executing upon cohabitation, just as it would have been upon her remarriage or the death of either party. No alimony “accrued” between September 1,1988, and July 19,1991, and the defendant was properly entitled to a reimbursement of the sums he had paid to the plaintiff during that period. In ordering a termination of alimony effective February 14, 1991 — the date the defendant filed his motion for modification — the trial court incorrectly applied the law and, therefore, could not reasonably have concluded as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985).

The defendant next claims that the trial court improperly denied his request for attorney’s fees, costs and interest on the alimony reimbursed by the plaintiff. Our review of the record indicates that the court’s denial was based on the mistaken belief that it lacked discretion to make such an award. On remand, the trial court should, in addition to correcting the date on which alimony terminated, exercise its discretion by considering whether the defendant is entitled to an award of interest, attorney’s fees and costs.

In light of our disposition of the defendant’s appeal, we conclude that the sole issue raised in the plaintiff’s cross appeal is without merit.

On the defendant’s appeal, the judgment is reversed and the case is remanded for further proceedings in accordance with this opinion. On the plaintiff’s cross appeal, the judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also filed a motion for contempt dated December 20,1990. Although the record does not disclose a disposition, the parties, at oral argument before this court, indicated that the trial court had denied that motion.

       In its memorandum of decision, the trial court did not specify the date cohabitation began. The defendant argues, however, that September 1, 1988, was the only date asserted after the plaintiff made her stipulation. During oral argument before this court, the plaintiff contended that at the evidentiary hearing she had never admitted “cohabitation.” She agreed, however, that September 1, 1988, was the only date that the trial court could have found as the beginning of cohabitation. In her cross appeal, the plaintiff has not challenged the trial court’s finding of cohabitation.

       General Statutes § 46b-86 provides in pertinent part: “(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party.... By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.
      “(b) In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the superior court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party. ...”

       At the onset of the evidentiary hearing, the trial court asked the defendant’s counsel, “And, just so I . . . understand the file .... Your motion for termination of alimony is based on the judgment in the file, is that correct?” The defendant’s counsel responded, “Yes, Your Honor.” Later, in his opening argument, the defendant’s counsel stated that the defendant was “basically seekfing] an enforcement of the dissolution of marriage judgment.” On the second day of the proceeding, the trial court again inquired, “Now let me ask the defendant . . . [a]re you claiming a modification of the alimony because of the statute 46b-86, subsection b, or because of the decree, or both?” The defendant’s counsel responded, “Because of . . . the decree and the decree only.”

       The defendant’s motion for contempt filed December 20, 1990, also makes no reference to General Statutes § 46b-86 (a) or (b).


author: Cretella, J.

text:
    State of Connecticut v. Freddy Rivera
    (10884)
    O’Connell, Foti and Cretella, Js.
    Argued January 11 —
    decision released March 9, 1993

      Joseph M. Shortall, chief public defender, with whom, on the brief, was John Papa, supervisory assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state's attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Michael D. Glowa, assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). The defendant claims that the trial court (1) failed to instruct the jury that the state had the burden to disprove beyond a reasonable doubt that the victim consented to sexual intercourse, and (2) improperly marshaled the evidence in favor of the state. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. After a night of bar hopping, drinking, and using cocaine, the defendant engaged in sexual intercourse with the victim. Although the defendant did not testify at trial, he introduced a statement that he had given to the police in connection with the incident. In the statement, the defendant acknowledged that he had engaged in sexual intercourse with the victim, but claimed that the victim had consented. The jury did not accept the defense of consent and found the defendant guilty of sexual assault in the first degree.

The defendant neither requested a charge on the issue of consent nor objected to the charge as given. Relying on State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and on the plain error doctrine, he now seeks review of his claim that the trial court failed to instruct the jury on consent. See Practice Book § 4185. The defendant acknowledges that the court charged the jury on each of the elements of the crime and instructed the jury that the state must prove each element beyond a reasonable doubt including the element relating to the use of force or the threat of use of force that serves to compel another to engage in sexual intercourse. The defendant, however, argues that the charge should have also included instructions that the state must disprove beyond a reasonable doubt that the victim consented. The defendant contends that proof beyond a reasonable doubt of the element of the use of force or the threat of force is not equivalent to disproving consent. The defendant’s argument, however, is directly contrary to our case law. Where use of force or a threat of force is proven beyond a reasonable doubt, lack of consent is implicit. State v. Mastropetre, 175 Conn. 512, 516, 400 A.2d 276 (1978); State v. Clinkscales, 21 Conn. App. 411, 419, 574 A.2d 243 (1990). Because the use of force or a threat of use of force is essentially the converse of consent, no duty exists upon the court to instruct the jury as if it were a statutory element. State v. Mackor, 11 Conn. App. 316, 324, 527 A.2d 710 (1987). Accordingly, we reject the defendant’s first claim as being contrary to the law.

The defendant also claims that the trial court improperly marshaled the evidence by weighting the charge to the jury so as to favor the state. We are not persuaded that the court unfairly emphasized the state’s evidence.

Because the defendant did not raise the issue of the charge in the trial court, our review is limited to whether the court’s conduct so deviated from the

requirement of impartiality that it deprived the defendant of a fair trial. State v. Tatum, 219 Conn. 721, 735, 595 A.2d 322 (1991). In our review, we focus on whether the jury reasonably understood from the instructions what the state’s burden of proof was for each element of the crime charged. State v. Vessichio, 197 Conn. 644, 651, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); State v. Gilchrist, 24 Conn. App. 624, 633-34, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). We will not examine the challenged portion of the charge in isolation from the overall charge. State v. Scognamiglio, 202 Conn. 18, 27, 519 A.2d 607 (1987); Sullivan v. Norwalk, 28 Conn. App. 449, 456, 612 A.2d 114 (1992). “The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict.” (Internal quotation marks omitted.) Sullivan v. Norwalk, supra.

The trial court’s general comments on the evidence during jury instructions simply summarized a limited portion of the victim’s testimony to explain the elements of the crime. Since the state primarily relied on the victim’s testimony, the court’s reference to some of the evidence presented by the state was proper and did not unreasonably emphasize the state’s evidence. The trial court’s specific comments on the element of compulsion simply advised the jury that if such evidence was believed and established beyond a reasonable doubt, then such evidence relating to the use or movement of a knife would satisfy the element of compulsion.

The trial court’s charge adequately guided the jury in its consideration of the elements of the crime charged. In addition, the trial court instructed the jury at least eight times that the state had the burden of proving each element of the crime beyond a reasonable doubt. Viewing the charge as a whole, we do not find it reasonably possible that the jury was misled regarding the state’s burden of proof on the elements of the crime.

The judgment is affirmed.

In this opinion the other judges concurred.

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


text:
    State of Connecticut v. Larry Plude
    (10931)
    Heiman, Freedman and Cretella, Js.
    Argued January 11 —
    decision released March 9, 1993

      James J. Ruane, with whom was Michael A. Fitzpatrick, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, Stephen J. Sedensky III, assistant state’s attorney, and Lisa Besseghini, law student intern, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l), and three counts of risk of injury to a child in violation of General Statutes § 53-21. The jury acquitted him of an additional count of sexual assault in the second degree and an additional count of risk of injury to a child. On appeal, the defendant claims that the judgment is fatally flawed in that (1) the trial court unconstitutionally deprived him of the common law defense of emancipation as to each of the counts of the information, (2) the trial court’s charge to the jury was so constructed as to mandate verdicts of guilty, thus depriving the defendant of his constitutionally guaranteed right to a fair trial, and (3) the trial court failed to charge the jury that an implied element of the offense of sexual assault in the second degree is that the state must prove that the defendant knew or had reason to know that the victim was under the age of sixteen years. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In January, 1990, the victim, R, who was born April 20,1976, was enrolled as a freshman at Central High School in Bridgeport. The defendant, Larry Plude, was a teacher at that school. The victim was not a student in any class that he taught.

In January, 1990, the victim’s relationship with a boyfriend ended. Upset by that turn of events, she confided her unhappiness to one of her friends. At the suggestion of that friend, the victim contacted the defendant by telephone. They made arrangements to meet at school during the lunch period. They met at the entrance to the cafeteria. The victim’s friend introduced her to the defendant. After this meeting, the victim called the defendant a second time and they made arrangements to meet after the school day in the faculty parking lot behind the school building. The defendant drove the victim to his house. They talked for a time and hugged and kissed and the defendant then drove the victim to her house. On a second occasion, he took the victim to his house and touched and kissed the victim’s breasts and vagina.

On February 13,1990, the defendant engaged in sexual intercourse with the victim for the first time. From that date through May or June of that year, the defendant engaged in both vaginal intercourse and fellatio with the victim at least once or twice a week. At a later point, the frequency of sexual relations increased to three or four times a week. The defendant frequently sent the victim notes, leaving them in her school locker and other locations, expressing his affection for her and his desire to continue the relationship.

The victim’s fourteenth birthday was on April 20, 1990. To mark the occasion, the defendant gave the victim money wdth which to purchase a gift.

After the school year concluded in June, the frequency of sexual activity decreased to about once a week. In July, 1990, the defendant began ignoring the victim. After a number of attempts to see the defendant, the victim finally began to stay away from him.

When the school year commenced in September, the victim confided in Michele Audia, one of her teachers, that she had been involved in a sexual relationship wdth the defendant. The victim was frightened and extremely upset. On the same evening that the victim spoke with Audia, the defendant also called Audia. Audia told the defendant that she knew of his relationship with the victim. The defendant responded by saying, “Oh, my God. Oh shit. Um, what am I going to do?” The defendant subsequently contacted the victim and asked her to tell people that she had exaggerated in describing her sexual activities with him. The victim declined to do so.

I

The defendant first asserts that the trial court unconstitutionally deprived him of his right to present the common law defense of emancipation as to each of the counts charged in the information. We are unpersuaded.

The defendant claims that the issue of emancipation as a defense was raised by him in three ways: first, by attempting to elicit from the victim that she had consented to all of the defendant’s acts of misconduct; second, by claiming that the evidence was supportive of a defense of emancipation; and, third, by requesting the trial court to charge the jury regarding the issue of emancipation.* I*** While the record amply supports the defendant’s assertion that the issue was properly raised by him in each of the three ways, the claim is without merit since no defense of emancipation exists, either at common law or statutorily, to a charge involving sexual assault in the second degree or to one of risk of injury to a child.

The legal doctrine of emancipation is a concept generally related to the civil law. See Sillman v. Sillman, 168 Conn. 144, 150, 358 A.2d 150 (1975). The concept is most often invoked in the context of support obligations; id.; Gillespie v. Gillespie, 8 Conn. App. 382, 385, 512 A.2d 238 (1986); in areas of the right of a child to sue or be sued; Dubay v. Irish, 207 Conn. 518, 523, 542 A.2d 711 (1988); Blancato v. Feldspar Corporation, 203 Conn. 34, 522 A.2d 1235 (1987); or in areas involving the obligations of minors arising out of contractual relationships. Blancato v. Feldspar Corporation, supra, 41. Emancipation occurs when a person who was once in the power or under the control of another is rendered free. Wood v. Wood, 135 Conn. 280, 283, 63 A.2d 586 (1948). A minor who is placed in a new relationship inconsistent with her former relationship as part of her parent’s family is emancipated. Id. Counsel has not pointed us to, nor has our independent research led us to a case in which the emancipation of a child was successfully invoked to defend against a charge involving sexual misconduct with an underage victim. More important, such a result would be bizarre in the extreme, making a mockery of the clear legislative language used in General Statutes §§ 53a-71 (a) (1) and 53-21.

General Statutes § 53a-4, the saving clause in the penal code, provides that “[t]he provisions of this chapter shall not be construed as precluding any court from recognizing other principles of criminal liability or other defenses not inconsistent with such provisions. ” (Emphasis added.) The applicability of any common law defense not expressly provided for in the statutes is thus dependent on whether such defense is inconsistent with the provisions of the penal code. See State v. Messler, 19 Conn. App. 432, 436-37, 562 A.2d 1138 (1989). We conclude that if a “common law defense of emancipation” actually exists, its applicability would be precluded as inconsistent with the express provisions of General Statutes §§ 53a-71 and 53-21.

As originally enacted, General Statutes (Rev. to 1972) § 53a-67 provided for an affirmative defense of mistake of age. Public Acts 1969, No. 828, § 68 (b). The defense provided for the situation where the defendant may have lacked the requisite mens rea on the basis of his belief that the facts were other than as they were. Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes § 53a-67 (1969), p. 27. By enacting No. 75-619 of the 1975 Public Acts, the General Assembly eliminated mistake of age as an affirmative defense to a violation of § 53a-71 (a) (1). Through this act, the legislature clearly expressed its will that engaging in sexual intercourse with a person under the age of sixteen years constitutes a violation of law without regard to the actor’s belief as to the victim’s age. To demonstrate a violation of § 53a-71 (a) (1), the state must establish that (1) the defendant had engaged in sexual intercourse with the victim and (2) at the time the victim was under the age of sixteen years. See State v. Pierson, 201 Conn. 211, 215, 514 A.2d 724 (1986) (interpreting an earlier version of § 53a-71); State v. Arroyo, 181 Conn. 426, 430, 435 A.2d 967 (1980) (same). Sexual assault in the second degree is a general intent crime that requires only that the actor possess a general intent to perform the acts that constitute the elements of the offense. State v. Pierson, supra, 216.

The legislature has also provided that the risk of injury to a child statute turns on the age of the victim. General Statutes § 53-21. Here, the defendant was charged with a violation of that section of the statute that proscribes the commission of acts likely to impair the health or morals of any child under the age of sixteen years. The victim’s age is the operative fact that makes acts perpetrated against that victim criminal in nature. See State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963).

Both statutes are clear and unambiguous insofar as they relate to the crimes being age driven. “Where the language of the statute is clear and unambiguous, we have refused to speculate as to the legislative intention, because it is assumed that the words express the intention of the legislature. . . . Moreover, courts should not imply exceptions to a statute which the legislature did not prescribe by word or implication.” (Citations omitted; internal quotation marks omitted.) State v. Snook, 210 Conn. 244, 267, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). The common law defense of emancipation is thus inapposite with the provisions of General Statutes §§ 53a-71 and 53-21. The trial court correctly determined that any defense based on the alleged emancipation of a child under the age of sixteen years did not constitute a defense to either a charge of sexual assault in the second degree or risk of injury to a child. The defendant’s claim as to the deprivation of his constitutional rights in this regard is without merit.

II

The defendant next asserts that the trial court’s charge to the jury mandated guilty verdicts thereby depriving the defendant of his right to a fair trial. The defendant divides his attack into two distinct claims: He claims that the trial court in its charge effectively denied his right to a separately considered verdict as to each count of the information, and that the language of the charge regarding the crime of risk of injury to a child mandated the jury to find him guilty. We are not persuaded.

The defendant posits that the trial court undermined the fact that in arriving at its verdict the jury must separately consider each count. Specifically, he points to a single paragraph in the court’s charge as support for this proposition.

Our review of the transcript reveals that the defendant failed to except to the portion of the charge about which he now complains. Thus, if he is entitled to review at all, it must be pursuant to the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In order to prevail on a claim of constitutional error that has not been adequately preserved at trial, the defendant must meet all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40; State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993) . We may, however, dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case. State v. Andrews, supra.

The defendant cannot satisfy the third prong of Golding, that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. Our review of the charge in its entirety does not support the defendant’s assertion that the language complained of permitted the jury to find the defendant guilty without viewing the evidence as to each of the counts of the information. The trial court clearly informed the jury that it could find the defendant guilty of the overlapping counts of the information only if they found each of the elements of the separate crimes charged proven beyond a reasonable doubt. “A jury instruction conforms with constitutional requirements if it provides jurors with a ‘clear understanding of the elements of the crime[s] charged, and affords them proper guidance for their determination of whether those elements were present.’ ” State v. Wolff, 29 Conn. App. 524, 530, 616 A.2d 1143 (1992), quoting State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992). “When examining a jury charge, we do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation. . . . We read the instructions as a whole to determine whether a reasonable possibility that the jury was misled by the charge exists. . . . The test that we apply to any part of the charge is whether the charge as a whole presents the case to the jury in such a manner that no injustice is done.” (Citations omitted.) State v. Andrews, supra, 540.

A fair reading of the charge as a whole convinces us that the defendant has failed to establish that the alleged constitutional right clearly exists and clearly deprived the defendant of a fair trial. Thus, we decline to afford review of this unpreserved claim.

The second arrow in the defendant’s quiver is that a single sentence in the trial court’s charge mandated the jurors to find the defendant guilty of the crime of risk of injury to a child once they found that certain acts had occurred. The defendant asserts that the use of the word “obligated” by the trial court unconstitutionally narrowed the jury’s discretion to the prejudice of the defendant. The basis for this claim is his assertion that the linchpin of the state’s case against the defendant was that he had engaged in repeated acts of sexual intercourse with the victim and that sexual intercourse does not constitute a per se violation of General Statutes § 53-21. For the proposition that sexual intercourse is not a per se violation of General Statutes § 53-21, the defendant relies on language in State v. McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982), and State v. Apostle, 8 Conn. App. 216, 246, 512 A.2d 947 (1986). The defendant’s reliance on these cases is misplaced.

In its charge to the jury, the trial court did not use the term sexual intercourse in describing the necessary elements of risk of injury. In fact, the trial court clearly differentiated between the acts necessary to establish the requisite element of sexual assault in the second degree and those of risk of injury to a child. Thus, the defendant’s assertion is unavailing.

Reviewing the charge as a whole, we conclude that it fairly presented the issues to the jury, that no reasonable possibility exists that the jury was misled by the charge and that the trial court fairly and properly differentiated between the elements of the offenses charged in the information. See State v. Andrews, supra.

Ill

The defendant next asserts that General Statutes § 53a-71 (a) (1) contains an implied element of knowledge as to the age of the victim. He claims that the trial court failed to charge the jury that the defendant could not be convicted of the crime of sexual assault in the second degree unless the state proved beyond a reasonable doubt that the defendant knew or had reason to know that the victim was under the age of sixteen years when they engaged in sexual intercourse. The defendant concedes that he did not request this charge nor did he except to the charge as given. He once again seeks review of a portion of the charge under the doctrine of State v. Golding, supra.

A trial court’s failure to instruct on any element of a crime warrants a reversal regardless of whether the defendant made a request to charge or took any exceptions to the charge. State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988); State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985); State v. Payne, 12 Conn. App. 408, 414, 530 A.2d 1110 (1987). The failure to instruct on the essential elements of the crimes charged would violate the defendant’s fundamental constitutional rights because he has the constitutional right to have the jury told what crimes he is being tried for and what the essential elements of those crimes are. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Williamson, supra; State v. Gabriel, 192 Conn. 405, 414, 473 A.2d 300 (1984). We are unpersuaded, however, that proof that the defendant knew or had reason to know that the victim was under the age of sixteen is an essential element of the crime of sexual assault in the second degree.

“We have no warrant for interpolating into a criminal statute a requirement it does not now contain.” State v. Duhan, 194 Conn. 347, 358, 481 A.2d 48 (1984). Our function is not to improve legislative actions by reading into the statute what is clearly not there. State v. Haye, 214 Conn. 476, 481, 572 A.2d 974 (1990).

We have already noted the fact that the General Assembly eliminated as a defense to sexual assault in the second degree the claim of mistake of age. Public Acts 1975, No. 75-619. The legislature has thus clearly expressed its will that engaging in sexual intercourse with a person under the age of sixteen shall constitute an offense. State v. Pierson, supra, 215; State v. Arroyo, supra, 430.

Our Supreme Court has set forth with unquestioned and unchallenged authority its interpretation of the legislative mandate as to the necessary elements to be proven in order to establish a violation of General Statutes § 53a-71 (a) (1): (1) that the defendant had engaged in sexual intercourse with the victim; and (2) that the victim at the time of the act was under the age of sixteen years. State v. Arroyo, supra. This interpretation has been in place since long after the repeal of the defense of mistake of age in 1975, and no statute has been enacted either to reinstate such a defense or to create an additional element of knowledge on the part of the defendant, either express or implied, of the age of the defendant. The legislature is presumed to be aware of the interpretation placed on a statute by this court and our Supreme Court, and that subsequent nonaction may be construed as a validation of that interpretation. Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 1340 (1987). The claim of the defendant as to the existence of an implied requirement of an unexpressed additional element of the crime of sexual assault in the second degree is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53-21 provides in pertinent part: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined ... or imprisoned ... or both.”

       During cross-examination, the defendant attempted to elicit from the victim the fact that she had consented to the defendant’s misconduct. The following occurred:
      “Q. [by Defense Counsel] .... Now, you testified also that in regard to your relationship, as you say, with Mr. Plude, there came a time when you [were] in his bedroom and he touched your body.
      “A. Yes.
      “Q. Is that correct? And you testified that there was an occasion when he would touch your breasts, correct?
      “A. Yes.
      “Q. And he would touch your vagina, as you say.
      “A. Yes.
      “Q. He would touch your inner thighs, correct?
      “A. Yes.
      “Q. And other parts of your body, correct?
      “A. Yes.
      “Q. Now, my question to you is this, and if there’s an objection would you wait for his Honor to rule, when you — when Mr. Plude, according to you, touched those parts of your body did you consent to that?
      “A. Yes, I did.
      “Q. You did.
      “A. Yes.
      “Q. And on all the occasions that that occurred did you always consent?
      “A. Yes, I did.”
      The assistant state’s attorney objected to the relevancy of the issue of consent and requested that the court strike the victim’s responses on this issue. The trial court in response to the objection ruled as follows:
      “[The Court]: Your objection is untimely and that answer — question and answer to both of them will stand but in the future since the rule is that the consent is not an issue in either instance, that if you ask the question continuously you’re going to have a problem with me.”

       The following occurred with respect to the defendant’s claim concerning emancipation as a defense:
      “[Defense Counsel]:.... My final point on that is, the act of consent to either sexual touching or sexual intercourse may not be a defense and Your Honor may charge the jury that that doesn’t matter at all as a defense. I would submit it’s an evidentiary fact that is supportive of the defense of emancipation. If a minor is by court order or by conduct emancipated, consent to sexual intercourse can in fact be a fact that would prove emancipation and the defendant cannot and — if the jury, and it’s a jury question I would submit, decide she was emancipated, as a matter of law they could not convict him of risk of injury to a minor because if they find emancipation she is no longer a minor. So it's an evidentiary fact and I also claim that basis and I will submit to the court a request to charge along those lines.”

       The defendant filed three specific requests to charge relating to his claim of the existence and applicability of a defense of emancipation. (References to the legal and factual basis for each request to charge have been omitted.)
      “2. Emancipation at Common Law
      “In this case, certain evidence has been produced which requires me to charge you on the legal principle of emancipation of a minor. Emancipation of a minor is a situation by a minor who was once in the power or under the control of another is rendered free and thereby acts and can be considered as an adult for all legal purposes. Connecticut law provides that the emancipation can be accomplished either by the express act of the parent, or by the conduct of the parent. For an emancipation, [it] is not necessary that the Court enter an order emancipating the minor, even though Connecticut provides a statutory procedure if the parties chose to use such a procedure. An implied emancipation results when the parent, without any express agreement, by his acts or conduct impliedly consents that his minor child may leave home and shift for himself, have his own time, and the control of his earnings, and it may be inferred from and shown by circumstances. . . .”
      “3. Emancipation As Factual Questions
      “It is solely the province of the jury to determine whether or not [R] was emancipated due to her actions and the actions of her parents. While there is evidence that [R] resided at her parents home in 1990, that fact is not determinative of this issue. A minor can continue to be furnished bed and board by her parents and yet still be found to have been emancipated. The provision of bed and board is but one factor in determining this issue, it is in no sense a factor which must control your decision. . . . (Emphasis added.)”
      “4. Emancipation As A Defense
      “In considering the charge of sexual assault in the second degree and risk of injury to a minor as alleged in the Information, you may consider as a defense the emancipation of [R]. If you find, after a review of all the evidence presented, that there is substantial evidence that [R] was an emancipated person at that time, then the emancipation would be a complete defense to the charges against the defendant. If you find that there has been proven substantial evidence of emancipation, then the State bears the burden of proving beyond a reasonable doubt, not only the elements of the crime, but also the lack of emancipation. If the State fails in its burden of proof as I have described to you, then you must find the defendant Not Guilty. ...”

       The portion of the trial court’s charge to which the defendant points in support of his claim is: “So they are alternating sexual assault in the second and risk of injury. Two offenses arising out of the same conduct alleged by the state, developed in evidence here for you to determine. I tell you so there’s no misunderstanding that a person may be convicted of both offenses. They are separate and distinct although arising out of the alleged same conduct. Understand that. That’s why they are both in there in relation to [the] same dates on four different occasions, two separate offenses. The first of which is sexual assault in the second degree in this General Statute, it’s of no moment to you, but it’s § 53a-71 (a) (1), that is what’s charged. . . . The accused is also charged, the risk of injury to a minor, charging conduct during the same times and at the same places. You may find the defendant guilty of both sexual assault in the second degree and risk of injury to a minor if you are satisfied that any one or more of the charges or counts, as we call them, have been proven as required by proof beyond a reasonable doubt of each essential element of each offense. ” (Emphasis added.)

       The trial court’s instruction challenged by the defendant reads as follows: “With regard to the charge of risk of injury, if you find the defendant deliberately touched the private or intimate parts of[R’s] body in a sexual or indecent manner you are obligated to find the defendant guilty of risk of injury to a minor. Such touch is deemed by law to be likely to impair [the victim’s] morals. . . .” (Emphasis added.)

       The trial court charged the jury as follows: “The prohibitive act for sexual assault in the second degree is engaging in sexual intercourse with a person under the age of sixteen. The prohibitive act for risk of injury to a minor [is the] doing of any act likely to impair the morals of a child under the age of sixteen.”