text:
    NANCY O’NEIL, ADMINISTRATRIX (ESTATE OF BRUCE C. CHASE) v. HONEYWELL, INC., ET AL.
    (AC 19295)
    Schaller, Spear and O’Connell, Js.
    Argued March 19
    officially released October 23, 2001

      Donald R. Beebe, with whom was Susan B. Carr, for the appellant (plaintiff).

      Yinxia Long, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).
   Opinion

SPEAR, J.

The plaintiff, Nancy O’Neil, administratrix of the estate of Bruce C. Chase (claimant), appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) to open an approved stipulation in which the defendant second injury fund (fund) agreed to pay the claimant $384,000 in full and final settlement of his workers’ compensation claim. The plaintiff claims that the board improperly affirmed the commissioner’s decision because the commissioner did not have the power or jurisdiction (1) to set aside the approved stipulation on equitable grounds and (2) to issue an order for a de novo hearing. We reverse the decision of the board.

The commissioner found the following facts. On June 28, 1988, the claimant sustained a compensable injury to his lumbar spine. Effective June 28, 1990, liability for the injury was transferred to the fund pursuant to General Statutes § 31-349. The parties subsequently negotiated an agreement for a full and final settlement of the claims arising from the injury. In September, 1996, the claimant and representatives of the fund signed a document titled “Award by Stipulation,” awarding the claimant $384,000. On October 4, 1996, the claimant died from an accidental overdose of prescription drugs. That same day, the claimant’s counsel, without prior knowledge of the claimant’s death, delivered the stipulation to the second district office of the workers’ compensation commission.

A hearing was conducted on October 18, 1996, at which time the commissioner approved the stipulation. Counsel for the claimant, the claimant’s heirs, his prior counsel, the administratrix of his estate and her counsel were present at the hearing. The fund was not notified of the hearing, had no representative at the hearing and contends that it was not advised of the claimant’s death until October 25, 1996.

On November 1,1996, the fund filed a motion to open the approved stipulation. The motion was assigned to a different commissioner. The fund argued that lack of notice of the October 18, 1996 hearing violated its right to due process and that failure to disclose the claimant’s death violated principles of fairness and full disclosure.

In his finding and award dated October 30, 1997, the commissioner initially acknowledged that the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., directs that the best interests of the claimant must be considered when approving a stipulation, that notice must be given to the parties and hearings must be held only in matters that are disputed or contested, and that the act does not appear to require notice of a hearing for approval of a stipulation. He also observed, however, that our Supreme Court has deemed the commissioner to be “the adviser of all and the umpire between the disputants”; Powers v. Hotel Bond Co., 89 Conn. 143, 149, 93 A. 245 (1915); and that General Statutes § 31-298 mandates that a commissioner proceed “so far as possible, in accordance with the rules of equity. ...” He, therefore, granted the fund’s motion to open and ordered that an approval hearing be scheduled with notice to both parties so that the fund would have the opportunity to “object to the stipulation approval process” if it chose to do so.

Thereafter, the plaintiff appealed from the commissioner’s decision. On January 28, 1999, the board affirmed the decision on equitable grounds pursuant to Secola v. State of Connecticut Comptroller’s Office, No. 3102 CRB-05-95-06 (February 26, 1997). In Secóla, the commissioner declined to approve a proposed stipulation because the respondent no longer agreed to the stipulation terms, thus negating the existence of a valid agreement under General Statutes § 31-296. Secola v. State of Connecticut Comptroller’s Office, supra, No. 3102 CRB-05-95-06. The board in the present case observed that “the trial commissioner found that if the fund had been informed of the claimant’s . . . death, the fund would not have agreed to approval of the stipulation” and concluded that “the trial commissioner’s findings that the fund was neither provided with notice of the claimant’s . . . death, nor with notice of the October 18, 1996 hearing, support his conclusion that approval of the stipulation . . . was not equitable.” This appeal followed.

I

The plaintiff first claims that the board improperly affirmed the commissioner’s decision because the commissioner exceeded his power in setting aside the approved stipulation agreement on equitable grounds. We agree.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. . . .

“Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ... As with any issue of statutory interpretation, our initial guide is the language of the operative statutory provisions.” (Citations omitted; internal quotation marks omitted.) Kelly v. Bridgeport, 61 Conn. App. 9, 13-14, 762 A.2d 480 (2000), cert. denied, 255 Conn. 933, 767 A.2d 104 (2001).

“Although the [Workers’ Compensation Act] does not explicitly provide for [stipulated settlement agreements], we have consistently upheld the ability to compromise a compensation claim as inherent in the power to make a voluntary agreement regarding compensation.” Muldoon v. Homestead Insulation Co., 231 Conn. 469, 480, 650 A.2d 1240 (1994). Section 31-296 provides that once an agreement is reached, a commissioner may approve the agreement if it conforms “in every regard” to the provisions of chapter 568 of the General Statutes. “Approval of ... a stipulation by the commissioner is not an automatic process. It is his function and duty to examine all the facts with care before entering an award, and this is particularly true when the stipulation presented provides for a complete release of all claims under the act.” Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 545, 255 A.2d 627 (1969). Once approved, “an Award by Stipulation is a binding award which, on its terms, bars a further claim for compensation unless [General Statutes §] 31-315, which allows for modification, is satisfied.” (Internal quotation marks omitted.) Gagne v. Tilcon, Inc./Tomasso, No. 4031 CRB-03-99-03 (May 25, 2000).

“Section 31-315 allows the commission to modify an award in three situations. First, modification is permitted where the incapacity of an injured employee has increased, decreased or ceased, or . . . the measure of dependence on account of which the compensation is paid has changed .... Second, the award may be modified when changed conditions of fact have arisen which necessitate a change of [the award]. . . . Third, [t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court.” (Internal quotation marks omitted.) Liano v. Bridgeport, 55 Conn. App. 75, 83-84, 737 A.2d 983, cert. denied, 252 Conn. 909, 743 A.2d 619 (1999). Here, the issue is whether the commissioner properly granted the defendant equitable relief under the third ground for modification.

In discussing the power to grant equitable relief, our Supreme Court has stated that “[c]ourts of equity may grant relief from the operation of a judgment when to enforce it is against conscience, and where the appellant had no opportunity to make defense, or was prevented from so doing by accident, or the fraud or improper management of the opposite party, and without fault on his [or her] own part. . . . Fraud, accident, mistake, and surprise are recognized grounds for equitable interference, when one, without his [or her] own negligence, has lost an opportunity to present a meritorious defense to an action, and the enforcement of the judgment so obtained against him [or her] would be against equity and good conscience, and there is no adequate remedy at law. . . . Equity will not, save in rare and extreme cases, relieve against a judgment rendered as the result of a mistake on the part of a party or his [or her] counsel, unless the mistake is unmixed with negligence, or . . . unconnected with any negligence or inattention on the part of the judgment debtor . . . .” (Citations omitted; internal quotation marks omitted.) Cavallo v. Derby Savings Bank, 188 Conn. 281, 284-85, 449 A.2d 986 (1982); Hoey v. Investors’ Mortgage & Guaranty Co., 118 Conn. 226, 230-31, 171 A. 438 (1934). “[T]he rule is founded on the necessity of the case; for if it was otherwise, petitions to set aside or enjoin judgments at law would become too common, and a court of equity be compelled generally to revise decisions at law which on legal principles should be final.” (Internal quotation marks omitted.) Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180, 186, 123 A. 9 (1923).

We conclude that the commissioner did not have authority to grant the fund equitable relief under § 31-315 because there is no evidence that the fund was prevented from making a defense by fraud, accident, mistake, surprise or improper management of the opposite party. Paragraph eighteen of the signed stipulation agreement unequivocally states that “[i]t is agreed by and among the parties hereto that this stipulation was not induced nor entered into by fraud, accident, mistake or duress . . . .” Moreover, under the recognized grounds for equitable interference previously cited, neither the court nor the plaintiff had a duty to inform the defendant of the approval hearing and the claimant’s death after the agreement was signed, and their failure to do so could not have affected the defendant’s ability to make a defense because the parties already had reached a “full, final and complete” settlement of all claims arising from the injury. Accordingly, there is no equitable ground under § 31-315 on which to provide the relief requested.

Section 31-298 is also an improper basis on which to grant the fund’s motion to open and to set aside the approved stipulation. Section 31-298, titled “Conduct of hearings,” mandates that “[i]n all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. . . .” Section 31-298 further provides that the commissioner shall proceed “in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter. ...”

Our Supreme Court has noted that, although § 31-298 expressly refers to the rules of equity, the provision “deals with the manner in which testimony is obtained and hearings are conducted.” Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 765, 730 A.2d 630 (1999). Accordingly, the equitable requirements of § 31-298 do not apply to the scheduling of hearings and notice to the parties, matters that are specifically addressed in another part of the statutes, General Statutes § 31-297.

We are also unpersuaded that Secola is relevant in the present circumstances. In Secola, the board considered the propriety of a commissioner’s refusal to approve a stipulation that the parties had agreed to several days before the claimant died of cancer. Secola v. State of Connecticut Comptroller’s Office, supra, No. 3102 CRB 05-95-06. The commissioner found that the insurance adjuster was not informed of the claimant’s terminal illness during settlement negotiations and that her illness had a direct effect on the nature and extent of future benefits for which the respondent might be liable. Id. In affirming the commissioner’s decision, the board stated that “protecting the employee’s rights does not mean ignoring the rights of the employer or insurer. Fairness and equity are two-way streets, and the commissioner is certainly entitled to consider more than the claimant’s position in deciding whether a stipulation should be approved.” Id. The board concluded that “the commissioner . . . may exercise his authority to withhold approval of a stipulation if the respondent no longer concords with its terms when it is submitted for ratification. In this case, the trial commissioner’s findings support his decision to deny approval of the stipulation.” Id.

Secola is distinguishable from the present case on several grounds. First, the procedural issue in that case involved the commissioner’s decision to withhold approval of a stipulated agreement between the parties, not the opening of an approved agreement, as is the case here. Second, the factual circumstances were completely different in Secóla because the plaintiff withheld important information from the respondent concerning her health that directly affected the calculation of her benefits. Here, by contrast, although the fund argued in its motion to open that more information was needed as to the cause of the claimant’s death and any known conditions that might have shortened his life, there is no suggestion, or even reason to believe, that the claimant withheld such information from the defendant, especially in view of the fact that the commissioner found the death to be accidental. Finally, the board here incorrectly concluded that the commissioner found that the fund, had it been informed of the claimant’s untimely death, would not have agreed to approval of the stipulation, just as the respondent in Secóla did not agree with the stipulation when submitted for approval, because a careful reading of the commissioner’s decision discloses that he did not make such a finding.

II

In light of our conclusion in part I of this opinion that the commissioner did not have the authority to open and to set aside the approved stipulation, we need not review the plaintiffs claim that the commissioner exceeded his authority in issuing an order for a de novo hearing.

The decision of the compensation review board is reversed and the case is remanded to the board with direction to vacate the commissioner’s finding and award dated October 30,1997, and to reinstate the commissioner’s finding and award of October 18, 1996.

In this opinion the other judges concurred.

       Liability was transferred from the Hartford Insurance Company, the insurer of the respondent employer, and the named defendant, Honeywell, Inc.

       Later that day, after the delivery of the stipulation, the claimant’s counsel was notified of the claimant’s death.

       General Statutes § 31-296 provides in relevant part: “If an employer and an injured employee . . . reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury on which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter [568] in every regard, he shall so approve it. . .

       General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”

       General Statutes § 31-298 provides: “Both parties may appear at any hearing, either in person or by attorney or other accredited representative, and no formal pleadings shall be required, beyond any informal notices that the commission approves. In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter. No fees shall be charged to either party by the commissioner in connection with any hearing or other procedure, but the commissioner shall furnish at cost (1) certified copies of any testimony, award or other matter which may be of record in his office, and (2) duplicates of audio cassette recordings of any formal hearings. Witnesses subpoenaed by the commissioner shall be allowed the fees and traveling expenses that are allowed in civil actions, to be paid by the party in whose interest the witnesses are subpoenaed. When liability or extent of disability is contested by formal hearing before the commissioner, the claimant shall be entitled, if he prevails on final judgment, to payment for oral testimony or deposition testimony rendered on his behalf by a competent physician, surgeon or other medical provider, including the stenographic and videotape recording costs thereof, in connection with the claim, the commissioner to determine the reasonableness of such charges.”

       General Statutes § 31-297 provides: “If an employer and his figured employee, or his legal representative, as the case may be, fail to reach an agreement in regard to compensation under the provisions of this chapter, either party may notify the commissioner of the failure. Upon such notice, or upon the knowledge that an agreement has not been reached in a case in which a right to compensation may exist, the commissioner shall schedule an early hearing upon the matter, giving both parties notice of time and place not less than ten days prior to the scheduled date; provided the commissioner may, on finding an emergency to exist, give such notice as he finds reasonable under the circumstances. If no agreement has been reached within sixty days after the date notice of claim for compensation was received by the commissioner, as provided in section 31-294c, a formal hearing shall be scheduled on the claim and held within thirty days after the end of the sixty-day period, except that if an earlier hearing date has previously been scheduled, the earlier date shall prevail. Hearings shall be held, if practicable, in the town in which the injured employee resides; or, if it is not practicable to hold a hearing in the town, in any other convenient place that the commissioner may prescribe. Sufficient notice of the hearing may be given to the parties in interest by a brief written statement in ordinary terms of the date, place and nature of the injury upon which the claim for compensation is based.”


source: Caselaw Access Project

author: MIHALAKOS, J. O’CONNELL, J.,

license: Public Domain

text:
    PAUL D. SHAPERO v. FRANK MERCEDE, JR.
    (AC 21230)
    Schaller, Mihalakos and O’Connell, Js.
    Argued April 23
    officially released October 23, 2001

      Neal L. Moslcow, with whom, on the brief, was Deborah M. Garskof, for the appellant-appellee (defendant).

      Brenden P. Leydon, for the appellee-appellant (plaintiff).
   Opinion

MIHALAKOS, J.

The defendant, Frank Mercede, Jr., appeals from the judgment of the trial court, rendered in favor of the plaintiff, Paul D. Shapero, in the amount of $22,500. On appeal, the defendant claims that the court improperly (1) awarded the plaintiff damages on his claim for nonpayment of legal fees when the attorney trial referee (referee) had found that no evidence as to the value of the plaintiffs services had been introduced at the hearing, (2) awarded the plaintiff damages on his claim for nonpayment of legal fees when the referee based her decision on evidence outside the record, and (3) awarded the plaintiff damages on his claim for nonpayment of legal fees where the referee’s conclusions are internally inconsistent and unsupported by findings of fact. We agree and therefore reverse the judgment of the trial court.

The plaintiff has filed a cross appeal, claiming that (1) the defendant’s claims are not properly reviewable, as he did not provide the trial court with a transcript of the hearing conducted by the referee, (2) the plaintiff introduced sufficient evidence for the court to determine fairly the value of his services, (3) the defendant’s brief is inadequate for review, and (4) the court improperly allowed the defendant to obtain a credit of $5000 when the defendant did not plead a proper special defense or setoff. We do not agree with the plaintiffs claims.

The following facts and procedural history are pertinent to our resolution of these appeals. In May, 1995, the defendant hired the plaintiff, an attorney, to represent him in a tax appeal to reduce the assessment on two commercial properties owned by the defendant. On May 17, 1995, the defendant paid the plaintiff a $5000 retainer and entered into an agreement to pay the plaintiff on a contingency fee basis. In May, 1997, the defendant discharged the plaintiff and hired substitute counsel on an hourly basis. Within four months, substitute counsel had successfully concluded the defendant’s appeal. The appeal resulted in a tax burden reduction of $330,000 for the defendant’s properties. The defendant paid substitute counsel $15,000 for services rendered in resolving the matter.

On February 8, 1998, the plaintiff filed an action against the defendant to recover legal fees under causes of action sounding in quantum meruit, breach of contract, unjust enrichment, violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and fraud. The defendant thereafter alleged two special defenses: (1) that the plaintiff was paid for his work, and (2) that the plaintiff breached the standard for professional conduct within the legal community. On December 28, 1999, the matter was heard by the referee. During the hearing, the plaintiff presented no evidence relating to the hourly rate that he charged the defendant. The plaintiff testified that he had reasonably spent 100 hours on the defendant’s case.

On May 31, 2000, the referee filed a report recommending judgment for the plaintiff in the amount of $27,500 with $5000 credited against the retainer. The referee arrived at those figures by calculating the plaintiffs hourly rate at $275 multiplied by 100 hours. On June 19, 2000, the defendant filed an objection to the referee’s report, asserting that the plaintiff had failed to meet his burden of proof with regard to the value of his services and that the referee had failed to make appropriate findings of fact to support her conclusions. On July 11, 2000, the court, Karazin, J., accepted the referee’s report over the defendant’s objections. On September 6, 2000, the court denied the defendant’s motion for reargument. On October 2, 2000, the plaintiff filed a motion for articulation. In response, the court on November 6, 2000, filed a memorandum of decision upholding the referee’s findings and her crediting of the $5000 retainer against the amount of the judgment. These appeals followed.

All of the defendant’s claims are predicated on the payment of legal fees, regardless of the terms in which those claims have been couched. Because of that, each claim requires that a finding be made as to the value of the legal services rendered by the plaintiff. Absent any evidence as to the value of those services, the court may not award damages. We conclude that our disposition of the defendant’s first claim is dispositive and, therefore, decline to address all of his other claims.

I

The defendant claims that the court improperly awarded the plaintiff damages on his claim for nonpayment of legal fees when the referee found that no evidence as to the value of the plaintiffs services had been introduced at the hearing. We agree.

“This court’s review of the trial court’s factual findings is limited. Unless a finding of fact is clearly erroneous, it must be sustained on appeal.” Citibank (South Dakota), N.A. v. Gifesman, 63 Conn. App. 188, 191, 773 A.2d 993 (2001). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Jonathon G., 63 Conn. App. 516, 528, 777 A.2d 695 (2001). “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . [W]e engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence.” (Internal quotation marks omitted.) State v. Fletcher, 63 Conn. App. 476, 479, 777 A.2d 691, cert. denied, 257 Conn. 902, 776 A.2d 1152 (2001).

“A reviewing authority may not substitute its own findings for those of the Superior Court reviewing the findings of an attorney trial referee. ... An attorney trial referee’s determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment. . . . The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Holt v. People’s Bank, 62 Conn. App. 561, 564-65, 771 A.2d 266, cert. denied, 256 Conn. 917, 773 A.2d 944 (2001).

Our Supreme Court repeatedly has held that courts have a general knowledge of what would be reasonable compensation for services that are fairly stated and described. See, e.g., Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982); Piantedosi v. Floridia, 186 Conn. 275, 279, 440 A.2d 977 (1982); Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245-46, 440 A.2d 306 (1982); Taft v. Valley Oil Co., 126 Conn. 154, 161, 9 A.2d 822 (1939); Carangelo v. Nutmeg Farm, Inc., 115 Conn. 457, 463, 162 A. 4 (1932); Gruskay v. Simenauskas, 107 Conn. 380, 387, 140 A. 724 (1928).

No award of attorney’s fees, however, may be made when the evidence on which to base the award is insufficient. Appliances, Inc. v. Yost, supra, 186 Conn. 680; Lebowitz v. McPike, 151 Conn. 566, 568, 201 A.2d 469 (1964); Gruskay v. Simenauskas, supra, 107 Conn. 387; City Savings Bank of Bridgeport v. Miko, 1 Conn. App. 30, 38, 467 A.2d 929 (1983).

After a review of the record, we conclude that the plaintiff produced no evidence showing either his rate of compensation or that of prevailing rates in the legal community. There was insufficient evidence on which to base a finding of attorney’s fees. In the absence of relevant evidence, the referee acted outside her discretion in assigning the hourly rate of $275, and the court improperly adopted that finding. We therefore reverse the judgment of the trial court.

II

We now turn our attention to the plaintiffs claims on cross appeal. The plaintiff first asserts that the defendant’s claims are not reviewable because he did not provide the court with a transcript of the hearing before the referee. We do not agree.

A

The following additional procedural histoiy is relevant to our disposition of the plaintiffs claim. On May 31, 2000, the referee filed her report, finding that the plaintiff was entitled to $27,500, which represented 100 hours of work valued at $275 per hour, less $5000 credited against the retainer paid by the defendant. On June 19, 2000, the defendant filed written objections to the acceptance of the referee’s report. The defendant stated: “In her report, the Referee specifically found, in paragraph No. 8, that the Defendant ‘did not keep time records’ . . . Despite this fact, which was clearly supported by the record, the Referee nonetheless found in paragraph No. 7 that the Plaintiff ‘reasonably spent 100 hours in connection with his representation of the defendant.’ The Referee repeats this finding in paragraph Nos. 14-15.” (Emphasis in original.) The defendant further stated that “[i]n paragraph 17 the referee finds that the reasonable hourly rate for the plaintiff to have charged during the time period in question— 1995 — was $275.00 per hour. However, in paragraph 14 the referee rightly found that ‘there was not any testimony regarding] the plaintiff’s estimate of the value of his services on an hourly basis’ . . . Therefore, there was simply no basis on which the referee could have found that $275.00 was a reasonable hourly fee to have charged, or that in fact the Plaintiff did utilize that rate in the underlying matter.” (Emphasis in original.)

The defendant in his written objections to the referee’s report finally states that “[t]he [referee] recommends an award in paragraph No. 18 that is not properly found because of the lack of foundation. As set forth above, the Referee specifically determined that the Plaintiff failed to present evidence with respect to the time spent or the rate charged in the underlying matter. Therefore, the award of $27,500.00, less a credit for monies paid, is without foundation in the evidence.” On June 19, 2000, the plaintiff filed written objections to the acceptance of the referee’s report. The plaintiff objected “to the limited extent that [the report] recommended that the Defendant benefit from a credit or setoff of $5,000.00. The Plaintiff does not challenge any of the factual findings of the [referee], but claims as a matter of law that the Defendant can not obtain a credit or setoff, therefore judgment should enter in the full amount of $27,500.00.” Neither the plaintiff nor the defendant filed with the trial court a transcript of the hearing before the referee. On July 11, 2000, both the defendant’s objections and the plaintiffs objections were overruled.

“There is no rule requiring the factfinder or the trial court reviewing the factfinder’s report to order a transcript . . . pursuant to Practice Book § 546J .... [A] trial court may ask that transcripts be provided, but there is nothing that requires that the trial court have the transcripts before rendering judgment.” (Citation omitted.) Beizer v. Goepfert, 28 Conn. App. 693, 706-707, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, 507 U.S. 973, 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993).

The plaintiff relies on John M. Glover Agency v. RDB Building, LLC, 60 Conn. App. 640, 760 A.2d 980 (2000), for the proposition that “[i]t is impossible for a reviewing court, without a transcript, to determine whether the subordinate facts found by the fact finder are supported by the evidence.” (Internal quotation marks omitted.) Id., 646. That, in itself, is true. The plaintiff, however, goes on to maintain that John M. Glover Agency is “exactly on point here.” The plaintiff is mistaken. In John M. Glover Agency, the defendant claimed that the trial court failed to apply a statute to the circumstances of the case. A review of that issue was dependent on the facts found by the attorney fact finder. The defendant had supplied the Appellate Court with a transcript of the hearing before the fact finder, but had not supplied one to the trial court. This court concluded that “to review the transcript and judge the trial court’s decision is appeal by ambuscade, a practice to which we do not adhere . . . .” Id., 646-47.

The case currently before us is distinguishable from John M. Glover Agency. Here, the defendant’s objections were directed to contradictions within the referee’s report. The defendant claims, and we agree, that the referee contradicted herself in her report by finding that (1) the plaintiff kept no time records and presented no evidence concerning the value of his services, and (2) the plaintiff was entitled to compensation at a rate of $275 an hour for 100 hours of work. The defendant’s objections were not directed at the truth or falsity of the referee’s findings, but to the fact that the referee had made two findings in direct opposition to each other. The findings in the referee’s report were sufficient for the court to rely on. In her report, the referee found that (1) the plaintiff had failed to keep any time records with regard to his representation of the defendant, and (2) there was no testimony during the hearing regarding the plaintiffs estimate of the value of his services on an hourly basis.

As previously stated, having found that the plaintiff kept no time records and presented no evidence concerning the value of his services, there was no basis on which the referee could properly find that the plaintiff was entitled to compensation at a rate of $275 an hour. That finding was inconsistent. A transcript of the underlying proceedings was not required for the court to address that claim because the claim itself is not dependent on the underlying facts. All that the court needed to decide the claim was the referee’s report itself. We further find it telling that the plaintiff himself failed to file with the court a copy of the transcript of the hearing before the referee when he objected to the referee’s report.

We conclude that the failure of the defendant to provide the trial court with a copy of the transcript does not preclude this court from hearing the defendant’s appeal. It is clear from the defendant’s objections that the court did not require a transcript to resolve the issues before it.

B

The plaintiff next claims that he introduced sufficient evidence for the referee to be able to fairly determine the value of his services. We disagree.

In her report, the referee found that (1) the plaintiff failed to keep any time records with regard to his representation of the defendant, and (2) there was no testimony during the hearing regarding the plaintiffs estimate of the value of his services on an hourly basis. As previously stated, we conclude that the plaintiff failed to offer any evidence pertaining to the value of his hourly services and that the referee therefore acted outside her discretion in assigning a rate of $275 an hour to his services.

C

The plaintiff claims that the defendant’s brief is inadequate for review. We disagree.

The plaintiffs claim is clearly without merit. Practice Book § 67-4 sets forth the requirements an appellant must meet in his brief for this court to review his claims. The defendant has met those requirements.

D

The plaintiff finally claims that the court improperly allowed the defendant to obtain a credit of $5000 when the defendant did not plead a proper special defense or setoff. We disagree.

Because we have concluded that the referee acted outside her discretion in assigning a value to the plaintiffs services, we need not reach the plaintiffs claim on cross appeal.

On the defendant’s appeal, the judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion SCHALLER, J., concurred.

O’CONNELL, J.,

dissenting. I cannot agree with the majority because without a transcript of the proceedings before the attorney trial referee (referee), it was impossible for the trial court to determine whether there was sufficient evidence to support the referee’s findings and recommendation. It is well settled that “[i]t is impossible for a reviewing court, without a transcript, to determine whether the subordinate facts found by [a referee] are supported by the evidence. (Internal quotation marks omitted.) John M. Glover Agency v. RDB Building, LLC, 60 Conn. App. 640, 646, 760 A.2d 980 (2000), citing Meadows v. Higgins, 249 Conn. 155, 170 n.10, 733 A.2d 172 (1999). Furthermore, “]i]t is inherently unfair to ask this court to rule on the propriety of the trial court’s judgment and to provide this court with information that was not before the trial court. For this court to review the transcript and judge the trial court’s decision is appeal by ambuscade, a practice to which we do not adhere . . . unless a manifest injustice would otherwise occur.” (Citation omitted.) John M. Glover Agency v. RDB Building, LLC, supra, 646-47. The fact that the plaintiff furnished a transcript to this court is irrelevant. We must decide this appeal on what was before the trial court.

The plaintiffs action was not based on an express contract in which he and the defendant had contracted for compensation at an agreed rate per hour for services rendered. The theory of the plaintiffs action was quantum meruit for the value of his services.

The referee found that the plaintiff reasonably spent 100 hours in connection with his representation of the defendant. The majority concludes that this finding is inconsistent with the referee’s finding that the plaintiff did not keep time records. I do not believe that the findings are inconsistent. It was not necessary for the plaintiff to keep time records to estimate the time he spent. The referee’s finding is supported by the plaintiffs testimony that he “spent more than 100 hours” on the case. The referee also made extensive findings concerning the plaintiffs legal experience and the novelty of the case. See Rules of Professional Conduct 1.5. “[I]t is well established that the evaluation of a witness’ testimony and credibility is wholly within the province of the trier of fact.” (Internal quotation marks omitted.) Opotzner v. Bass, 63 Conn. App. 555, 564-65, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001). Furthermore, without a transcript, the trial court could not know what other evidence might have supported that finding.

I acknowledge that the referee found that there was no testimony regarding the plaintiffs estimate of the value of his services on an hourly basis. I question the significance of that finding because, as I have stated, the plaintiff was not suing for compensation on an hourly basis, but in quantum meruit for the reasonable value of his services. He did not allege an hourly rate and now is being penalized for failing to prove something that he did not allege. Furthermore, without a transcript, the trial court could not know what evidence, if any, the referee relied on in arriving at her recommendation that he be awarded $27,500 computed at $275 per hour. If the defendant wanted to persuade the trial court that there was no evidence to support the $275 per hour rate, it was the defendant’s burden to furnish a transcript demonstrating that there was no evidence whatsoever to support that recommendation. Lack of testimony from the plaintiff does not rule out evidence having been produced from some other source.

Accordingly, it is my opinion that the defendant sustained his burden and the trial court properly rendered judgment on the referee’s report. Even if the majority could convince me that there was an inconsistency between the finding and the recommendation, I would not be convinced that a reversal and rendition of judgment for the defendant is warranted. Instead, I would remand the appeal to the trial court to take appropriate action under Practice Book § 19-17.

For the foregoing reasons, I respectfully dissent.

       Practice Book § 23-58, formerly § 546J, provides: “(a) After review of the finding of facts and hearing on any objections thereto, the judicial authority may take the following action: (1) render judgment in accordance with the finding of facts; (2) reject the finding of facts and remand the case to the fact finder who originally heard the matter for a rehearing on all or part of the finding of facts; (3) reject the finding of facts and remand the matter to another fact finder for rehearing; (4) reject the finding of facts and revoke the reference; (5) remand the case to the fact finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts; or (6) take any other action the judicial authority may deem appropriate.
      “(b) The judicial authority may correct a finding of facts at any time before accepting it, upon the written stipulation of the parties.
      “(c) The fact finder shall not be called as a witness, nor shall the decision of the fact finder be admitted into evidence at another proceeding ordered by a judicial authority.”

       Practice Book § 67-4 provides in relevant part: “The appellant’s brief shall contain the following:
      “(a) A concise statement setting forth, in separately numbered paragraphs, without detail or discussion, the principal issues or issues involved in the appeal, with appropriate references to the page or pages of the brief where the issue is discussed, pursuant to subsection (d) hereof. The court may refuse to receive a brief not complying with this requirement. Such statement shall be deemed in replacement of and shall supersede the preliminary statement of issues.
      “(b) A table of authorities cited in the brief, with references to the page or pages of the brief where the citations to those authorities appear. Citations shall be in the form provided in Section 67-11.
      “(c) A statement of the nature of the proceedings and of the facts of the case bearing on the issues raised. The statement of facts shall be in narrative form, shall be supported by appropriate references to the page or pages of the transcript or to the document upon which the party relies, and shall not be unnecessarily detailed or voluminous.
      “(d) The argument, divided under appropriate headings into as many parts its there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the transcript or to the relevant document. The argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied. . . .
      “(5) When the basis of an evidentiary or other ruling referred to in subsection (d) (3) or (d) (4) cannot be understood without knowledge of the evidence or proceeding which preceded or followed the ruling, a brief narrative or verbatim statement of the evidence or proceeding should be made. A verbatim excerpt from the transcript should not be used if a narrative statement will suffice. . . . The statement of rulings in the brief shall include appropriate references to the page or pages of the transcript. . . .
      “(e) . . . The brief shall be organized in the following order: table of contents; statement of issues; table of authorities . . . statement of facts; argument; conclusion and statement of relief requested; signature; and certification pursuant to Section 62-7.”

       The referee made, in part, the following findings:
      “(5) The plaintiff, according to his testimony, spent more than 100 hours pursuing the novel arguments made in the appeal. . . .
      “(6) [The plaintiff] researched the law and in addition to presenting his arguments to the Corporation Counsel’s office, also presented his arguments on the record in an effort to move negotiations forward with the City of Stamford.
      “(7) [The plaintiff] reasonably spent 100 hours in connection with his representation of the defendant.
      “(8) [The plaintiff] did not keep time records on the matter.
      * **
      “(13) The fact finder recognizes that the Value added’ choice of the plaintiff to handle the defendant’s tax matters involved the recognition of the plaintiffs notable service as probate judge and as Corporation Counsel with the City of Stamford and other public boards and agencies and his lifelong service to the community and to the legal profession. . . .
      “(15) The fact finder accepts the argument of plaintiffs counsel that it is reasonable to accept the testimony that 100 hours was spent in pursuit of the defendant’s matters and that there was a value added to the defendant as a result of the plaintiffs standing in the legal community.
      “(16) The fact finder does not believe that an hourly rate of compensation of $500.00 per hour is a reasonable rate of compensation, regardless of the standing of plaintiff in the legal community. Given the criteria set forth in Rules of Professional Conduct Rule 1.5, this fact finder specifically finds that
      “There is an element of novelty to plaintiffs presentation to the tax assessor regarding the assessment method and the list year in question;
      “The defendant is very active in a wide variety of commercial matters and the plaintiff would have been precluded from representation of others who may have been in an adversary position to the defendant
      “The tax appeal process requires attention to detail and is expedited on the docket
      “The plaintiff was deprived of the opportunity to have recovered on a contingent fee basis and there was no evidence that the plaintiff breached his obligation to the defendant
      “(17) The fact finder recommends that an hourly rate of $275.00 per hour is reasonable under the circumstances.”

       See footnote 1.

       Rule 1.5 of the Rules of Professional Conduct provides in relevant part:
      “(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

        “(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      “(2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      “(3) The fee customarily charged in the locality for similar legal services;
      “(4) The amount involved and the results obtained;
      “(5) The time limitations imposed by the client or by the circumstances;
      “(6) The nature and length of the professional relationship with the client;
      “(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
      “(8) Whether the fee is fixed or contingent. . . .”

       It is instructive to note that Practice Book § 19-14 now requires a party filing an objection to a report to file a transcript of the evidence. That requirement was originally contained in Practice Book § 19-13, which was repealed effective January 1,2000. The requirement of filing a transcript was resurrected and added to § 19-14, effective January 1,2001. (The defendant’s objection to the acceptance of the referee’s report was filed in June, 2000.) I can offer no explanation as to why that requirement was omitted for one year, but it is clear that the appeal was filed during the one year window when the Practice Book transcript requirement seemed to be in abeyance.

       Practice Book § 19-17 provides in relevant part: “(a) The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the . . . attorney trial referee has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another . . . attorney trial referee . . . for a new trial or revoke the reference and leave the case to be disposed of in court.
      “(b) The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.”


author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. NEROY HAMPTON
    (AC 19349)
    Schaller, Mihalakos and O’Connell, Js.

      Argued April 23
    officially released October 23, 2001

      KentDrager, senior assistant public defender, for the appellant (defendant).

      Margaret Gajfney Radionovas, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Victor Carlucei, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals, following a jury trial, from the judgment of conviction of burglary in the third degree in violation of General Statutes § 53a-103 and interfering with an officer in violation of General Statutes § 53a-167a. The defendant was acquitted of attempt to commit larceny in the sixth degree and criminal mischief in the third degree. The defendant claims that (1) there was insufficient evidence to support his conviction of burglary in the third degree, (2) he was denied his statutory right to a speedy trial, (3) the trial court improperly admitted into evidence out-of-court statements, (4) he was deprived of a fair trial by prosecutorial misconduct, (5) there was insufficient evidence to support his conviction of interfering with an officer and (6) the court improperly instructed the jury on his right not to testify. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Hartford police officers Gregory DePietro and Germaine Coachman were dispatched to an apartment building at 84 Forest Street at 10:53 a.m. on June 16, 1997. Upon arrival at the scene, the building superintendent and a resident informed them that an intruder had broken into a first floor apartment through a window. The superintendent advised them of the apartment number, and Coachman entered the building to secure the apartment from the inside while DePietro moved to secure the exterior of the building.

As Coachman approached the apartment, a black male about five feet, six inches or seven inches tall and estimated to weigh 140 pounds, opened the door, saw Coachman and slammed it shut. At the same time, DePietro, who by then was at the rear of the building, observed an open broken window on the south side of the building. He heard a window opening on the north side of the building, and saw the defendant squatting in the window with one foot on the windowsill and apparently getting ready to jump to the ground. DePietro pointed his gun at him and ordered him to show his hands and get down. The defendant hesitated and then, rather than comply with DePietro’s order, retreated into the apartment, jumped out of a window on the south side and ran.

DePietro radioed that the individual had fled and that he was chasing him on foot in a southbound direction. He accompanied the radio broadcast with a detailed description of the defendant. Shortly thereafter, DePietro broke off his pursuit and returned to the apartment building because he had left Coachman there without backup.

Upon entering the apartment, the officers observed a stereo, a videocassette recorder and various household goods stacked against a wall near one of the windows.

Officer Brian Foley was on bicycle patrol in the area when he heard DePietro’s communication about the pursuit of a burglary suspect. He saw the defendant, who matched the description, and detained him until a patrol car arrived. The defendant was transported back to 84 Forest Street, where DePietro identified him as the person he had seen coming out of the apartment window and as the same person whom he had chased along the street.

I

The defendant claims that there is insufficient evidence that he (1) entered or remained unlawfully in the apartment and (2) intended to commit a crime therein. We are not persuaded.

We employ a well established standard of review when a defendant challenges a jury’s finding of guilt on the ground of insufficient evidence. “In reviewing [a] sufficiency [of the evidence] claim, we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the [finding of guilt]. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). Moreover, “[i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Sivri, supra, 132-33. “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).

“A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so. ” General Statutes § 53a-100 (b). Applying the statutory definition to the present case, we conclude, on the basis of our review of the evidence, that the jury reasonably could have found that the apartment was occupied by another person and the defendant did not live there. As soon as he came to the attention of the police, he jumped from a window and ran, leaving the stereo, videocassette recorder and other household goods piled near a window, permitting an inference that it was an attempt to gather everything together to be taken from the premises. The defendant’s presence in an apartment that was not his own, his attempts to evade police and his flight were sufficient evidence from which the jury could infer that he had entered the apartment unlawfully. See State v. Gradzik, 193 Conn. 35, 38, 475 A.2d 269 (1984).

The defendant’s reliance on State v. Godfrey, 39 Conn. App. 1, 663 A.2d 1117 (1995), appeal dismissed, 236 Conn. 904, 670 A.2d 1305 (1996), and In re Adalberto S., 27 Conn. App. 49, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992), is unavailing. In Godfrey, a police officer observed the defendant leaning against and peering into a parked car. The defendant attempted to open the front door and then the rear door of the car. The officer further observed the defendant look around and pick up a metal object, which the officer surmised that the defendant intended to use to break the window. The officer approached the defendant, whereupon he fled and was apprehended shortly thereafter. The owner of the car was not identified and did not testify. The defendant was convicted of attempt to commit burglary in the third degree and attempt to commit tampering with a motor vehicle. This court reversed the judgment of conviction because there was insufficient evidence to establish that the defendant lacked the consent of the owner to enter the car.

In this case, the officers testified that they were informed by the superintendent and a resident of the apartment building that an intruder had broken into a particular first floor apartment through a window. In addition, there were Coachman’s observations of a person slamming the apartment door shut and running through the apartment. Furthermore, the officer in Godfrey speculated that the defendant was going to break into the car, whereas the officers in this case directly witnessed the defendant flee from inside of the apartment.

In In re Adalberto S., supra, 27 Conn. App. 49, the respondent was observed by a police officer in a parked car with three other people. All the occupants fled when the officer approached the car. The respondent exited from the backseat and was apprehended a short time later. The vehicle’s steering column was damaged, and the engine was running without a key in the ignition. Following a trial to the court, the respondent was adjudicated delinquent by virtue of having used a motor vehicle without the owner’s permission. This court reversed the judgment of the trial court because the state failed to prove that none of the occupants had the owner’s permission to use the car and that the respondent knew that this was the case.

In In re Adalberto S., a critical aspect of the case was the fact that the respondent was a passenger in the backseat. Taking into account his position in the car, the state could not prove that he was using the car without the owner’s permission. Rather, the state had to prove that he knew that none of the other people had the requisite permission. In this case, however, there was no evidence that there was another person other than the defendant in the apartment. Considering the circumstances in this case, the evidence was sufficient to justify a conclusion that the defendant had entered the apartment unlawfully.

The defendant next claims that the evidence was insufficient to show that he intended to commit a crime in the apartment. “Generally, intent can only be proved by circumstantial evidence, and, being a mental state, it is proved by the conduct of that person whose conduct is being scrutinized.” (Internal quotation marks omitted.) State v. Fields, 31 Conn. App. 312, 328, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993). The fact that the defendant was found within an apartment that was not his own, that he slammed the door in Coachman’s face and made a precipitous exit through a window “permitted a reasonable inference, based on human experience, that the unlawful entry by the defendant was hardly without purpose, but rather was with the intent to commit a crime therein.” (Internal quotation marks omitted.) Id. “It is a basic principle of law that common sense is not to be left at the courtroom door. State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985). ‘Similarly, in [burglary cases], from the evidence of an attempt to make a forcible entry it is reasonable for the jury to infer an intent to commit theft.’ Id., citing United States v. Thomas, 444 F.2d 919, 924 (D.C. Cir. 1971); State v. Johnson, 100 Wash. 2d 607, 625, 674 P.2d 145 (1983). In this case, there was an actual forced entry, not simply an attempted entry. . . . ‘Common experience tells us that an unlawful entry into a dwelling ... is not without purpose. Nor are people accustomed to enter homes of strangers through a [window] for innocent purposes. To any person of ordinary intelligence, the expected by-product of a surreptitious unlawful entry into the home of another is theft.’ . . . State v. Zayas, supra, 617; State v. Grant, 6 Conn. App. 24, 33, 502 A.2d 945 (1986). One would have to suspend reason to find that the defendant had broken into the house in this case intending to do anything other than commit a crime.” State v. Perez, 10 Conn. App. 279, 291, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987).

The defendant further argues that the state was estopped from claiming that he stacked the items near the window because the jury had fully and finally decided that question by acquitting him of a charge of attempt to commit larceny in the sixth degree. We are not persuaded.

In State v. Ortiz, 29 Conn. App. 825, 831, 618 A.2d 547 (1993), the defendant was acquitted of manslaughter in the second degree with a motor vehicle while under the influence of intoxicating liquor and convicted of misconduct with a motor vehicle. The defendant argued that because the jury returned a not guilty verdict on the manslaughter charge, it had determined that he was not intoxicated or that his intoxication did not cause the deaths of the victims. Id., 836-37 n.6. This court stated: “Simply put, collateral estoppel principles do not apply in a single trial to preclude a verdict of guilty on an offense which includes elements in common with an offense for which the jury has returned a verdict of not guilty. . . . Consequently, we may rely on evidence of alcohol consumption and its effects in our consideration of whether the evidence was sufficient to sustain the defendant’s conviction of misconduct with a motor vehicle.” (Citations omitted.) Id. In accordance with Ortiz, we conclude that the state was not estopped from asserting that the defendant had stacked the items near the window.

In light of the additional evidence of the personal property that was stacked near the window, we conclude that the state established evidence from which the jury could infer that the defendant had an intent to steal when he entered the apartment.

II

The defendant next claims that he was denied his constitutional right to a speedy trial. General Statutes § 54-82m codifies a defendant’s constitutional right to a speedy trial and confers on the judges of the Superior Court the authority to make such rules as they deem necessary to establish a procedure for implementing that right. Pursuant to that authority, the judges adopted Practice Book §§ 43-39 through 43-41.

The defendant had been continuously incarcerated for more than eight months and, therefore, was facially entitled to the benefit of § 54-82m. On three occasions, the defendant filed speedy trial motions, two of which were denied by the court and the third of which was withdrawn. The defendant claims that the withdrawal was not voluntary, but was the result of improper information he received from the court.

In his brief and in oral argument, the defendant presented scholarly arguments to support his contention that he is entitled to a dismissal of his case because he did not receive a speedy trial. Those arguments, however, do not take into consideration the final sentence of Practice Book § 43-41, which clearly and unequivocally provides that “[f]ailure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules.” The defendant failed to file a motion to dismiss prior to the commencement of trial and consequently is deemed to have waived his right to a dismissal.

Ill

The defendant next claims that the court improperly allowed the state to introduce out-of-court statements by unavailable witnesses, which were irrelevant for the purposes allegedly offered, but which were clearly prejudicial to the defendant with regard to the burglary charge. On direct examination, DePietro was allowed to testify concerning the radio transmission, which caused him to go to the apartment building. He was also allowed to testify concerning the information he received from the building superintendent when he arrived at the scene. On direct examination, Coachman was allowed to testify that she was responding to the Forest Street address on the basis of a communication that there was a breaking and entering or a burglary in progress at that address. Coachman was also allowed to testify as to the information she received from the superintendent upon her arrival at the scene.

On each occasion of the allowance of that kind of testimony, the court cautioned the jury that it was being admitted solely for the purpose of showing why a witness took certain action. During its closing instructions to the jury, the court charged that “[i]f some evidence was admitted for a limited purpose, you should only consider it for that purpose. We did have some evidence where I allowed police officers to talk about what other police officers were saying to show why they did things, but not to prove the underlying truth. That’s what we were talking about with limited purpose.” It is well established that out-of-court statements that are not admitted for the truth of the matters asserted therein, but to establish the facts that led to the witness taking certain action, are not hearsay and are, therefore, admissible. State v. Cruz, 212 Conn. 351, 357, 562 A.2d 1071 (1989). Because the out-of-court statements were admissible for a permissible nonhearsay purpose and accompanied by appropriate limiting instructions, the court did not abuse its discretion in admitting those statements. See id.

IV

The defendant next claims that he was deprived of a fair trial by prosecutorial misconduct. We are not persuaded.

The defendant failed to preserve his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the defendant fails to demonstrate that a constitutional violation clearly exists that deprived him of a fair trial, his claim fails under the third prong of Golding.

Our standard of review of prosecutorial misconduct is well established. “In analyzing this claim, we do not focus solely on the prosecutor’s conduct. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Jeudis, 62 Conn. App. 787, 793, 772 A.2d 715, cert. denied, 256 Conn. 923, 774 A.2d 140 (2001). “In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. ... In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial. ... In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, [our Supreme Court], in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 297-98, 772 A.2d 1107 (2001).

A

In his opening statement, the prosecutor stated: “Who is Neroy Hampton? It’s our position the defendant, Neroy Michael Hampton, is the one who committed the crimes that the clerk outlined ... I’ll have three witnesses that will testify that Mr. Hampton was in the apartment, had placed items in such a manner illegally in that apartment.” The defendant claims that those statements were improper because none of the three officers could testify that he was illegally in the apartment, and the prosecutor expressed his own opinion as to the guilt of the defendant.

We acknowledge that it is improper for a prosecutor to express his opinion, directly or indirectly, as to a defendant’s guilt. State v. Singh, 59 Conn. App. 638, 647, 757 A.2d 1175 (2000), cert. granted on other grounds, 255 Conn. 935, 767 A.2d 1214 (2001). In this case, however, the prosecutor was expressing the state’s position, not his own. The prosecutor’s comments were an appropriate method of describing the evidence and what the state ultimately intended to prove.

The defendant next claims that the prosecutor, in his opening statement, made improper comments on the basis of inadmissible hearsay. The statements are as follows: “[0]ne [officer] went to the rear- to check the windows, where it was reported that someone had entered the building through a broken window .... All of them will testify, all of those three officers, that a burglary took place on that day at that location, and that [the defendant] was the one [who] committed that burglary . . . .” The defendant claims that because there was no evidence presented that he had entered through the broken window and that none of the officers could testify that a burglary had taken place or that he had committed the burglary, the prosecutor improperly relied on inadmissible hearsay. The prosecutor was referring to evidence that he intended to introduce in the state’s case and, later, when it was introduced, the court gave the jury a limiting instruction on how to consider it. We conclude that, under those circumstances, the prosecutor’s comments were not improper.

B

The defendant next claims that the prosecutor improperly elicited testimony involving out-of-court identifications of the defendant. On direct examination, DePietro testified that he had witnesses identify the defendant before arresting him. The defendant objected, and the court instructed the jury to disregard the statement about identification. On cross-examination, defense counsel questioned DePietro extensively as to his identification of the defendant. During redirect examination of DePietro, the prosecutor asked if his identification of the defendant was independent of any witnesses, to which he answered, “[Y]es.” The defendant claims that the prosecutor’s questions were a deliberate attempt to elicit inadmissible hearsay. We conclude that the defendant was not prejudiced by the prosecutor’s questions because of the court’s instruction to the jury. Furthermore, the prosecutor’s questions on redirect were in response to defense counsel’s cross-examination and were an attempt to clarify that DePietro’s identification was based on his own observations.

C

The defendant next claims that the prosecutor improperly expressed his opinion in his final argument. The prosecutor stated: “It is the state’s position, and you are the finders of facts so you are the ultimate ones. I am giving you my opinion based on the evidence that I put forward, but based on what the judge tells you about the law, what the law is, and you hearing all the facts, you decide ultimately whether the defendant is guilty or innocent. I will tell you my position, our position as the state. Our position is, yes, he is guilty. . . . Someone in a building, an apartment that he doesn’t live in. Why is he there? That’s up to you to determine. Was he there legally or illegally? It’s the state’s position that he was there illegally, attempting to commit larceny. . . . [Y]ou make the conclusions, but it’s the state’s position that the sole person in there was the defendant, and he took flight. . . . That this individual, Mr. Neroy Michael Hampton, is the defendant and is guilty.” In rebuttal argument, the prosecutor stated: “You listened to all the evidence, and all of the evidence clearly points to this defendant as guilty. . . . Was Mr. Hampton in there illegally? We say yes. . . . You weigh the credibility. You’ve heard all the evidence. You make the decision. Who is Michael — Neroy Michael Hampton? He is the defendant, and he is guilty.”

“[B]ecause closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Inherent in this latitude is the freedom to argue reasonable inferences based on the evidence presented at trial. . . . The mere use of phrases such as T submit,’ ‘I find,’ or ‘I believe’ does not constitute improper argument.” (Citations omitted; internal quotation marks omitted.) Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 399-400, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).

Although the prosecutor did refer to himself in the first person, when viewed in the context of his entire argument, it is evident that this was unintentional and was part of his attempt to express the state’s position. We conclude that the prosecutor’s comments were an appropriate method of highlighting the evidence presented and what reasonable conclusions could be made by the jury.

The defendant also argues that the prosecutor misstated evidence when he stated that “[n]o one else was in that apartment” because “Coachman had secured the door and was there.” The defendant claims that there was no evidence to support the conclusion that there was no one else in the apartment. It is apparent that the prosecutor was merely stating an inference that the jury reasonably could have drawn from the facts. Furthermore, it is not improper for a prosecutor to highlight the evidence that supports the state’s position.

Finally, the defendant claims that the prosecutor misstated the evidence when he stated that DePietro said: “Stop. I’m a police officer.” In fact, DePietro testified that he did not recall if he said “police.” The prosecutor’s statement was in the context of describing what occurred when DePietro encountered the defendant in the window. Although DePietro did not remember if he said “police,” the jury was free to draw that inference from the evidence presented. We conclude that the prosecutor’s statement was not improper.

We conclude that the defendant has failed to establish that a constitutional violation clearly exists that deprived him of a fair trial and, therefore, that he has failed to satisfy the third prong of Golding.

In addition, the defendant also claims that in its casein-chief, the state improperly questioned DePietro on direct examination regarding the value of the equipment stacked in the apartment. The court sustained some of the defendant’s objections to that line of questioning and ultimately permitted DePietro to testify only that he had paid $200 for a videocassette recorder. Although the defendant claims that this amounted to prosecutorial misconduct, we conclude that it is an evidentiary claim. Because the claim was preserved properly, we review it and determine that the defendant was not prejudiced by the testimony.

V

The defendant next claims that there was insufficient evidence to support his conviction of interfering with an officer. He argues that the state (1) failed to prove the kind of acts of physical resistance required to constitute the offense and (2) failed to prove intent to interfere with the performance of an officer’s duty. We are not persuaded.

The defendant first argues that to prove him guilty of interfering with an officer, the state was required to prove that he physically resisted the officer. A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers a police officer in the performance of his duties. General Statutes § 53a-167a. This court has stated that “General Statutes § 53a-167a . . . defines interfering to include obstruction, resistance, hindrance or endangerment. ... By using those words it is apparent that the legislature intended to prohibit any act which would amount to meddling in or hampering the activities of the police in the performance of their duties.” (Citation omitted; emphasis in original; internal quotation marks omitted). State v. Laws, 37 Conn. App. 276, 297, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995). “In enacting § 53a-167a, the legislature sought to prohibit behavior that hampers the activities of the police in the performance of their duties. . . . The statute’s purpose is to ensure orderly compliance with the police during the performance of their duties; any act intended to thwart this purpose violates the statute.” (Citation omitted.) In re Adalberto S., supra, 27 Conn. App. 56.

In this case, the officer saw the defendant in the window and ordered him at gunpoint to get down and show his hands, whereupon the defendant reentered the building and fled through another window. The broad intent of § 53a-167a is to prohibit conduct that hampers the activities of the police in the performance of their duties, including physical resistance as well as the defendant’s conduct in this case. The evidence in the record is sufficient to support the jury’s conclusion that the defendant’s actions directly interfered with the officer’s performance of his duties in investigating the burglary.

Second, the defendant argues that the evidence is insufficient to prove that he had the requisite mental state of specifically intending to interfere with the performance of an officer’s duty. We do not agree.

“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inference drawn therefrom.” (Citations omitted; internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 257, 681 A.2d 922 (1996). The defendant disobeyed the officer’s commands to get down from the window, avoided capture by escaping through another window and fled from the officers. Accordingly, the jury reasonably could have inferred that the defendant intended to interfere with an officer by resisting arrest.

VI

The defendant’s final claim is that the court improperly instructed the jury on his constitutional right not to testify. More specifically, the defendant complains that the court referred to his ‘failure to testify” rather than using more neutral language. Whether a reference to a defendant’s “failure” to testify constitutes a constitutional violation as well as a statutory violation under General Statutes § 54-84 (b) is no longer in the realm of speculation. While this appeal was pending in this court, our Supreme Court decided State v. Casanova, 255 Conn. 581, 597, 767 A.2d 1189 (2001), in which it held that reference to a defendant’s “failure to testily” in an instruction pursuant to § 54-84 (b) is proper and that the court is not obligated to substitute more neutral language at the defendant’s request. Accordingly, the defendant’s claim has no merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       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.”

       General Statutes § 53a-167a (a) provides in relevant part: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer ... in the performance of his duties.”

       General Statutes § 53a-125b (a) provides: “A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”

       General Statutes § 53a-117 (a) provides in relevant part: “A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that he has a right to do so, he: (1) Intentionally or recklessly (A) damages tangible property of another, or (B) tampers with tangible property of another and thereby causes such properly to be placed in danger of damage; or (2) damages tangible properly of another by negligence involving the use of any potentially harmful or destructive force or substance . . . .”

       On direct examination, Officer DePietro testified as follows:
      “A. At that point, I had ordered that individual with gun pointing at him to show me his hands and get down so that I could take control and secure him.
      “Q. And you had your gun pointing at him?

        “A. Yes.
      “Q. And you ordered him to get down?
      “A. Yes.
      “Q. And you had — Did you identify yourself?
      “A. I was in full police uniform. I don’t recall if I said ‘police.’ ”

       The sixth amendment to the United States constitution provides in relevant part: “In ail criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”

       General Statutes § 54-82m provides: “In accordance with the provisions of section 51-14, the judges of the Superior Court shall make such rules as they deem necessary to provide a procedure to assure a speedy trial for any person charged with a criminal offense on or after July 1, 1985. Such rules shall provide that (1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence within twelve months from the filing date of the information or indictment or from the date of the arrest, whichever is later, except that when such defendant is incarcerated in a correctional institution of this state pending such trial and is not subject to the provisions of section 54-82c, the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time alter such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant’s inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1).”

       Practice Book § 43-41 provides: “If the defendant is not brought to trial within the applicable time limit set forth in Sections 43-39 and 43-40, and, absent good cause shown, a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period. For the purpose of this section, good cause consists of any one of tire reasons for delay set forth in Section 43-40. When good cause for delay exists, the trial shall commence as soon as is reasonably possible. Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules.”

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review- the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       None of the officers had firsthand knowledge that the defendant had entered the building through the broken window. The evidence was derived from a radio transmission that caused the officers to go to the apartment building as well as what the officers were told by the superintendent of the building. During trial, that evidence was introduced, and the jurors were instructed that they could consider the evidence to explain why the officers took certain actions.

       In its final instructions to the jurors, the court stated: “The defendant has not testified in this case. An accused has an option to testify or not to testify at trial. He is under no obligation to testify. He has a constitutional right not to testify, and you have an obligation to draw no unfavorable inference from his failure to testify.”

       General Statutes § 54-84 (b) provides: “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. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”