author: Daly, J.

text:
    Northeast Savings, F.A. v. Jean Hopkins et al.
    (8490)
    Dupont, C. J., Daly and Norcott, Js.
    Argued April 3
    decision released July 24, 1990

      Jeffrey A. Nirenstein, with whom, on the brief, was Judith F. Machuga, for the appellant (named defendant).

      Kevin J. Burns, for the appellee (plaintiff).
   Daly, J.

This is an appeal by the named defendant, Jean Hopkins, trustee, (hereinafter defendant) from the judgment of the trial court approving a foreclosure by sale of property owned by the defendant. The defendant claims that the court (1) should not have denied her “motion to reopen the foreclosure by sale and to extend the law day,” and (2) should not have approved the committee’s sale and deed. We affirm the judgment of the trial court.

The plaintiff, Northeast Savings, F.A., instituted this foreclosure action against the defendant, seeking to foreclose its second mortgage on the defendant’s property in Meriden. On March 16, 1989, the court, M. Hennessey, J., granted a motion for foreclosure by sale filed by the defendant Yale-New Haven Hospital. On that date, the court also found that the debt secured by this mortgage was $40,236.48, plus costs. The sum included attorney’s fees. The court appointed a committee and three appraisers pursuant to General Statutes § 49-25, and ordered a foreclosure by sale to take place on August 5, 1989. The property was subsequently found to have a value of $195,000 after the three appraisals placed a value of $197,000, $175,000 and $195,000.

Before the sale, the defendant filed a “motion to reopen the judgment of foreclosure by sale and to extend law day” on July 13, 1989. Included with this motion was an affidavit of the defendant in support of her motion. The court, Gaffney, J., denied the motion on July 27, 1989.

On the sale date, four registered bidders and approximately sixteen additional persons attended the auction. After clarification that the property was being sold subject to the first mortgage of $56,886.60, plus per diem interest charges, also held by the plaintiff, as well as other liens, the bidding proceeded to a high bid of $68,500. That bid aggregated to a selling price of $128,782.04.

Following the committee’s motions to accept its report and approve the sale and deed, the defendant and another defendant, Michael J. Hopkins, subsequently filed a motion to reject the committee sale. The court heard oral argument on these motions, including reference by the defendant to two letters dated August 30, 1989, from Fairbank Mortgage Company concerning a refinancing plan for the property. The trial court, McWeeney, J., subsequently approved the committee sale. Following appeal, the trial court’s reasons for approving the sale were articulated in response to the defendant’s motion for articulation. Practice Book § 4051.

I

The defendant first claims that the court abused its discretion when it denied her “motion to reopen the foreclosure by sale and to extend the law day.” We conclude that although this motion was timely filed and the trial court had jurisdiction to hear this motion, we need not review this claim because the defendant has not presented an adequate record for review. See State v. Cates, 202 Conn. 615, 625, 522 A.2d 788 (1987); United Church of Christ v. West Hartford, 9 Conn. App. 448, 456, 519 A.2d 1217 (1987), aff'd, 206 Conn. 711, 539 A.2d 523 (1988). Although there is some indication in the record that this motion was argued before Judge Gaffney, the trial court that denied the motion, the defendant filed no transcript of this proceeding. In addition, the defendant filed no motion for articulation of the court’s denial of her motion.

II

The defendant next claims that the court should not have approved the committee sale. We disagree.

First, the defendant argues that the court failed to consider appropriately the following three factors: (1) her ability to pay the debt; (2) the value of the mortgaged property as compared with the amount of the debt; and (3) the depressed real estate market that rendered it difficult to sell the property privately in a short period of time. The defendant relies primarily on the following language in Metropolitan Life Ins. Co. v. Bassford, 120 Conn. 384, 389, 180 A.2d 692 (1935), to support her claim that the court must consider these three factors: “Under the practice in this State, the determination of the time to be allowed for redemption by the owner of the equity rests in the legal discretion of the court. The court will have regard for the value of the mortgaged premises as compared with the amount of the. debt, and exercise its discretion in view of all the circumstances of the case so as to prevent a sacrifice of the property. 2 Swift’s Digest, 197. It may properly consider economic conditions which render it difficult to dispose of the property . . . .”

The record does not support the defendant’s claim that the court failed to consider appropriately these three factors. In its articulation, the court, McWeeney, J., specifically indicated that it had considered the existence of a poor real estate market and concluded that a subsequent sale would incur greater expenses and might not realize any greater net proceeds. It also considered the value of the mortgaged premises as compared to the debt in view of all of the circumstances when it concluded that the amount received from the committee sale essentially satisfied the amount of the debt. In addition, the court specifically indicated that it had considered the defendant’s evidence of the refinancing plan from Fairbank Mortgage Company, but concluded that “[i]n view of the previous unsuccessful attempts by the appellants to resolve this situation and the conditional nature of the ‘commitment’; there was no substantial basis to justify the expense and delay involved in rejecting the committee’s report and sale.” The defendant also argued that the court should not have found that the “commitment” to refinance the premises was conditional. On the basis of our review of the record, we conclude that this finding was not clearly erroneous. See Practice Book § 4061. The trial court has appropriately considered these equities and has not abused its discretion.

The defendant also argues that the trial court abused its discretion in confirming the committee sale because the bid price of $68,500 was not adequate. “Because the trial court has control of the foreclosure proceedings, it can, in the exercise of its discretion, accept or reject a proposed sale.” Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988). “ ‘ “[A] court of equity in a foreclosure suit would have full authority to fix the terms and time of the foreclosure sale and to refuse to confirm sales upon equitable grounds where they were found to be unfair or the price bid was inadequate. . .” ’ Id., quoting Honeyman v. Jacobs, 306 U.S. 539, 543, 59 S. Ct. 702, 83 L. Ed. 972 (1938).” Danbury Savings & Loan Assn., Inc. v. Hovi, 20 Conn. App. 638, 642, 569 A.2d 1143 (1990).

As previously mentioned, the court found that there was no likelihood that a second auction would produce a higher sales price. In addition, the court found that a delay in the sale of the property would also delay the satisfaction of debts to other creditors. Under the circumstances of this case, the court did not abuse its broad discretion when it approved the committee sale.

Last, the defendant argues that because the court acted unjustly in approving the sale for the previously mentioned reasons, she was denied due process of law. This claim has no merit.

“ ‘Due process does not mandate a particular procedure but rather requires that certain safeguards exist in whatever procedural form is afforded. . . . Moreover, there is no violation of due process when a party in interest is given a meaningful time for a court hearing to litigate the question . . . ” Danbury Savings & Loan Assn., Inc. v. Hovi, supra, 643. The defendant had the full opportunity to persuade the court that it should not approve the sale. See id. The defendant was not deprived of due process of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the defendant’s request to “extend the law day” is an inappropriate request in the present case. This proceeding concerned a foreclosure by sale, not a strict foreclosure. The court imposes law days only in strict foreclosure proceedings. In her motion, however, the defendant requested that the court extend the sale day, and also provided reasons why the court should extend the sale day. Accordingly, this motion should properly have been called a “motion to reopen the foreclosure by sale and extend the sale day.” For a discussion of the distinction between the two types of motion, see footnote 3, infra.

       The plaintiff also named several creditors as defendants in this action. These defendants did not, however, appeal.

       This motion was timely filed because it was filed within the four month restriction for opening judgments as set forth in General Statutes § 52-212a, and the court had jurisdiction because the motion was filed before absolute title left the property owner, which in this case means before the committee sale was approved. See Connecticut Savings Bank v. Howes, 9 Conn. App. 446, 447, 519 A.2d 1216 (1987) (court’s holding based on General Statutes § 49-26); see also Merry-Go-Round Enterprises, Inc. v. Molnar, 10 Conn. App. 160, 162, 521 A.2d 1065 (1987) (under General Statutes § 49-15, trial court cannot open the judgment of strict foreclosure once a title is absolute in any encumbrancer).
      We note that a “motion to open a foreclosure by sale and to extend the sale day” is not the same as a “motion to open a strict foreclosure and to extend the law day.” The latter motion is governed by General Statutes § 49-15 which provides that “[a]ny judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.” (Emphasis added.)
      Thus, a motion to open the judgment of strict foreclosure may be filed later than four months after the judgment has been rendered, but not after absolute title passes in any encumbrancer. On the other hand, a motion to open the judgment of foreclosure by sale has two restrictions. It must be filed within the four month restriction of § 52-212a, and this motion has to be filed before the committee sale is approved.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Veronica Riley v. City of Bridgeport
    (7681)
    Foti, Cretella and Landau, Js.

      Argued May 9
    decision released July 24, 1990

      Burton M. Weinstein, for the appellant (plaintiff).

      Thom/is K. Jackson, associate city attorney, for the appellee (defendant).
   Landau, J.

The plaintiff appeals from the judgment of the trial court denying (1) a writ of mandamus to direct the defendant to place her on the permanent civil service roster, and (2) her alternative request to enjoin the defendant from compelling her to take the civil service examination either permanently or until a final decision is rendered on her pending arbitration. The plaintiff claims that the trial court should not have found that neither remedy was warranted in this case. The plaintiff also argues that she was unconstitutionally deprived of her equal protection rights. The plaintiffs claims are without merit. Accordingly, we affirm the trial court’s judgment.

The plaintiff, an accounting clerk, was first hired by the defendant as a Comprehensive Employment Training Act (CETA) employee in February, 1975. In April, 1982, the plaintiff’s status was changed to provisional civil service employee. She signed a provisional declaration sheet on August 13, 1982, acknowledging that her provisional appointment had to be approved by the civil service commission (commission), and that her employment was terminable either upon the establishment of an appropriate examination list or at the discretion of the appointing authority. By letter dated January 29,1988, the commission informed the plaintiff that her employment would likely be terminated unless she met the certification requirements after taking the open competitive examination for the Accounting Clerk I position. The letter further stated that the application deadline for the March 12,1988 exam was March 1, 1988.

On February 4, 1988, the plaintiff filed a grievance against the defendant with her union, the National Association of Government Employees union, seeking a resolution whereby she would be exempted from taking the test and her employment status would be changed from provisional to permanent. She also filed an appeal with the commission to grant her certification as a permanent employee based on her work experience. This appeal was denied on February 22, 1988.

On March 14,1988, the plaintiff filed with the Superior Court a motion temporarily to enjoin the defendant from holding the examination, and the present action followed. The motion for a temporary injunction was dismissed as moot because the March 12 examination date had passed. In early March, the plaintiff also submitted an application with the commission to take the examination. By a letter dated March 11,1988, she was informed that her application would not be accepted because it was not timely filed.

Before reaching the merits, we must first address the preliminary issue of whether the trial court had subject matter jurisdiction over this case given that the plaintiff had filed a grievance to have her dispute arbitrated under the collective bargaining agreement in force between the defendant and the union. Even though the Superior Court has concurrent jurisdiction with the state board of labor relations in certain labor disputes, once a plaintiff elects to utilize the administrative process, she is thereafter constrained to exhausting the remedies available in the manner prescribed and may not initiate an independent civil action to adjudicate the same issues. Cianci v. Connecticut Counsel, AFSCME, 8 Conn. App. 197, 201-202, 512 A.2d 232 (1986). If, however, the dispute in question involves a nonarbitrable matter, the court retains jurisdiction to hear the case irrespective of any attempt by a plaintiff to avail herself of the administrative route. The various matters empowered to a municipal civil service commission under General Statutes § 7-474 (g) are not subject to collective bargaining. D'Agostino v. New Britain, 7 Conn. App. 105, 110, 507 A.2d 1042, cert. denied, 200 Conn. 806, 512 A.2d 229 (1986); see also Haggerty v. Parniewski, 11 Conn. App. 37, 41, 525 A.2d 984 (1987). Here, because the plaintiff had no administrative remedy, the merits of the plaintiffs request for certain equitable relief was properly reached.

The prerequisites that the plaintiff must establish for the extraordinary remedy of mandamus to issue are well settled. First, there must be no other adequate remedy; second, the law must impose a mandatory duty on the defendant; and, third, the plaintiff must have a clear legal right to have that duty performed. See Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982); D'Amico v. Willis, 13 Conn. App. 124, 127, 534 A.2d 1248 (1987), cert. denied, 207 Conn. 803, 540 A.2d 73 (1988). The issuance of the writ is discretionary. West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 740, 462 A.2d 379 (1983).

We decline to disturb the trial court’s finding that the plaintiff has failed to establish that she has a clear legal right to circumvent the competitive examination procedures. The policy behind competitive civil service examinations is to fill positions on the basis of merit and fitness. See Cassella v. Civil Service Commission, 202 Conn. 28, 34-35, 519 A.2d 67 (1987); State v. AFSCME, 13 Conn. App. 461, 466-67, 537 A.2d 517 (1988). The plaintiff argues that the defendant waived its test requirements with regard to her. This issue need not be addressed because the trial court found that the plaintiff has failed to demonstrate that she has a clear legal right to a permanent appointment. This finding is supported by the evidence and we see no reason to disturb it.

With regard to the plaintiffs alternative request for injunctive relief, we will not disturb the court’s finding that the plaintiff failed to demonstrate actual or immediate damage. See Everett v. Pabilonia, 11 Conn. App. 171, 178, 526 A.2d 543 (1987).

The plaintiff’s final claim is that she was denied her right of equal protection of the law under the federal and state constitutions. She is not challenging a legislative classification scheme; see, e.g., Franklin v. Berger, 211 Conn. 591, 594-97, 560 A.2d 444 (1989); but rather is claiming that she was subjected to disparate treatment compared to other untested permanent civil service employees who filed similar Superior Court actions. While the boundaries for which colorable equal protection claims may be asserted have no doubt expanded since the enactment of the fourteenth amendment, the plaintiff here has ventured into an area of discrimination that is afforded no such constitutional protection.

The judgment is affirmed.

In this opinion the other judges concurred.


author: O’Connell, J.

text:
    BCBS Goshen Realty, Inc. v. Planning and Zoning Commission of the Town of Goshen et al.
    (8574)
    Spallone, O’Connell and Lavery, Js.
    Argued April 17
    decision released July 24, 1990

      Peter M. Sipples, with whom, on the brief, was Susan L. Jacobs, for the appellant (plaintiff).

      Duncan J. Forsyth, with whom, on the brief, was Kevin J. Pohl, for the appellees (defendants).
   O’Connell, J.

The plaintiff appeals to this court from the dismissal of its administrative appeal from the named defendant’s adoption of zoning regulations. The regulations were the first ever enacted in Goshen. The question presented is whether the trial court correctly applied the prior pending action doctrine.

The facts are not in dispute. In August, 1983, the town of Goshen adopted new zoning regulations, and the plaintiff took a timely appeal therefrom pursuant to General Statutes §§ 8-8 and 8-9. Subsequently, the plaintiff intervened as a party plaintiff in a declaratory judgment action initiated by another property owner challenging the new regulations. The plaintiff thus became a party to two separate actions, the goal of each being to invalidate the town’s new zoning regulations. The defendants moved to dismiss the appeal on the ground that it was duplicative of the declaratory judgment action. The trial court agreed and dismissed the appeal, leaving the declaratory action pending. The plaintiff appealed.

Connecticut has long recognized that “two suits shall not be brought for the determination of matters in controversy between the same parties, whether relating to legal or equitable rights, or to both, when such determination can be had as effectually and properly in one suit.” Welles v. Rhodes, 59 Conn. 498, 503, 22 A. 286 (1890); see also Quinebaug Bank v. Tarbox, 20 Conn. 510, 515 (1850). “[W]hen two separate lawsuits are ‘virtually alike’ the second action is amenable to dismissal by the court.” Solomon v. Aberman, 196 Conn. 359, 382, 493 A.2d 193 (1985); Halpern v. Board of Education, 196 Conn. 647, 652, 495 A.2d 264 (1985); Northern Homes Distributors, Inc. v. Grosch, 22 Conn. App. 93, 96, 575 A.2d 711 (1990). The plaintiff’s arguments to the contrary notwithstanding, both of the actions here seek a judicial determination of the validity of the zoning regulations. We are unable to discern any material distinction between the relief sought by the plaintiff in one action and that sought in the other. See Northern Homes Distributors, Inc. v. Grosch, supra, 96-98.

If the declaratory judgment action had been commenced first, we would not question the propriety of dismissing the zoning appeal under the prior pending action doctrine. See Solomon v. Aberman, supra. The trial court’s dismissal of what was sequentially the prior action is not, however, necessarily improper. The prior pending action doctrine is not a rule of “ ‘ “unbending rigor, nor of universal application, nor a principle of absolute law.” ’ ” Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 114, 438 A.2d 834 (1981). The doctrine does not implicate the court’s subject matter jurisdiction but rather is a rule of justice and equity; Nielsen v. Nielsen, 3 Conn. App. 679, 682, 491 A.2d 1112 (1985); the purpose of which is to avoid “oppressive and vexatious” litigation. Solomon v. Aberman, supra, 383.

In view of the doctrine’s flexibility, we must determine whether the trial court was correct in dismissing the zoning appeal, although it was filed first in time. Our law recognizes that an action for a declaratory judgment is preferable to an appeal to the Superior Court. “[Djeclaratory judgment proceedings are appropriate for determining jurisdictional issues or questions concerning the validity of the regulations of an administrative agency, while questions concerning the correctness of an agency’s decision in a particular case or of the sufficiency of the evidence can properly be resolved only by appeal.” Aaron v. Conservation Commission, 178 Conn. 173, 178, 422 A.2d 290 (1979). Moreover, this court has recognized that a declaratory-judgment action is the proper proceeding in which to challenge the validity of an ordinance or regulation. Cristofaro v. Planning & Zoning Commission, 11 Conn. App. 260, 262, 527 A.2d 255, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987). Since the plaintiff is questioning the validity of Goshen’s entire body of planning and zoning regulations, it is apparent that a declaratory judgment action is the more appropriate legal proceeding.

We are satisfied that the trial court acted in a manner consistent with the underlying purpose of the prior pending action doctrine. In dismissing the plaintiff’s appeal, the court avoided a multiplicity of lawsuits while ensuring that the plaintiff’s claims were properly addressed in a declaratory judgment action.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the planning and zoning commission and the clerk of the town of Goshen.

       The plaintiff raises the following claims: “(1) Is a challenge to the enactment of zoning regulations, which challenge is premised, in part, on insufficiency of the record evidence, properly resolved by an action for Declaratory Relief or by an appeal taken pursuant to Chapter 124 of the Connecticut General Statutes? (2) Did the Superior Court wrongly reject subject matter jurisdiction over Plaintiff’s appeal when it granted Defendants’ Motion to Dismiss?”


author: Foti, J.

text:
    Monte Jeffrey Sachs v. Deborah Joy Sachs
    (8094)
    Borden, O’Connell and Foti, Js.

      Argued April 10
    decision released July 24, 1990

      Ralph C. Crozier, with whom, on the brief, was Thomas F. Gudsnuk, for the appellant (plaintiff).

      James R. Greenfield, with whom was Helen D. Murphy, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from a judgment dissolving the parties’ twenty-five month marriage. He claims that the trial court should not have (1) found jurisdiction over the parties, (2) denied several motions when the defendant had failed to comply with the plaintiff’s discovery request, (3) proceeded with trial despite the fact that the defendant’s financial affidavit was not filed three days in advance of trial as required by Practice Book § 463, (4) proceeded without a proper pretrial as required under “local rules,” (5) accepted testimony on the replacement value of personal property derived from hearsay documents, and (6) proceeded when the plaintiff had not been properly notified of the trial date. We affirm the judgment of the trial court.

The parties to this action were married in Wood-bridge on August 31,1986, and have no minor children issue of the marriage. The defendant owned a condominium in Cheshire at the time of the marriage. During the first six months of the marriage, the parties lived financially independent of each other. The plaintiff lived in Buffalo, New York, where he was a practicing veterinarian, and the defendant lived in her Cheshire condominium and was employed in a family corporation. After this six month period, the plaintiff moved into the defendant’s condominium in Cheshire. After moving to Connecticut, the plaintiff remained unemployed for ten months and the defendant supported him.

In October, 1987, the plaintiff found employment in Florida. The defendant joined him there in January, 1988. When she arrived in Florida, the defendant purchased a home in her own name for the couple to reside in. From this point until the dissolution of their marriage, the couple pooled their salaries to cover their joint living expenses.

In September, 1988, the defendant returned to Connecticut to visit her family. While she was still in Connecticut, she was served with the plaintiff’s dissolution writ. She returned to Florida to find that the plaintiff had removed several pieces of furniture, some of her personal belongings and all of her financial records and documents from her home. He had also withdrawn $9400 from the couple’s joint savings account. She returned to Connecticut at the end of September with the intention of permanently remaining here, and filed an answer and cross complaint.

The defendant next filed a motion for the return of her personal property. A hearing was held on this motion and the court ordered that all of the financial documents and records be transferred into the custody of the court. In January, 1989, the plaintiff claimed the case for the trial list. On February 28,1989, a hearing was held before the court and the parties agreed that the defendant’s counsel would take custody of the financial documents being held by the court and duplicate them. It was further agreed that the parties would share the cost of duplication. In this manner, both of the parties would receive a complete set of the defendant’s financial records.

Immediately after this agreement was reached, defense counsel wrote to the plaintiff’s counsel confirming the agreement they had reached before the court. This letter also contained a copy of the defense counsel’s letter to the clerk of the court requesting an assignment for trial that would allow a reasonable time for the plaintiff to take the defendant’s deposition.

On March 7, 1989, defense counsel forwarded a second letter to the plaintiff’s counsel informing him that the case had been assigned for a limited contested trial on May 3,1989, at 2 p.m. A copy of this letter was forwarded to the clerk of the New Haven Superior Court.

Defense counsel forwarded a third letter to the plaintiff’s counsel on March 15, 1989. This letter informed him that the duplicated financial documents were ready for him to pick up and that his share of the duplication cost was $176.30.

On April 5, 1989, the defendant’s counsel wrote to the plaintiff’s counsel a fourth time. This letter reminded him that the trial was only one month away and requested that he pick up the financial documents at his earliest possible convenience. This letter also urged the plaintiff to set a date to take the defendant’s deposition if he was still interested in doing so.

On April 15,1989, defense counsel received $176.30 from the plaintiff for his share of the cost of the duplication of the financial documents. On April 28, 1989, the plaintiff filed a motion for extension of time in which to have the trial, and a motion to compel production of financial documents. On May 3,1989, the day of the hearing, the plaintiff filed a motion for sanctions and a motion for a continuance. All of these motions were denied by the court on May 3,1989. The defendant filed her financial affidavit on this same date.

After hearing evidence from both parties, the court dissolved the marriage between the parties and ordered (1) that the plaintiff pay $4700 to the defendant, representing one half of the money he removed from the parties’ joint savings account, at the rate of $500 per month commencing on May 15, 1989, and (2) that the plaintiff either return five specific pieces of furniture to the defendant or return the defendant’s engagement ring and a bracelet. The court further ordered that if the plaintiff failed to comply with either of these orders within thirty days of the judgment, he would be obligated to pay the sum of $18,100 to the defendant within sixty days, pursuant to General Statutes § 46b-81. The plaintiff appeals from this decision.

I

The plaintiff first claims that the trial court should not have found that it had jurisdiction over the defendant because she did not meet the residency requirements of General Statutes § 46b-44 (c). Subsumed in the plaintiffs claim is an assertion that the trial court did not have jurisdiction over the marriage of the parties at the time he filed his complaint because he was then residing in Florida.

Section 46b-44 (c) provides that a “[djecree dissolving a marriage or granting a legal separation may be entered if: (1) One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree; or (2) one of the parties was domiciled in this state at the time of the marriage and returned to this state with the intention of permanently remaining before the filing of the complaint; or (3) the cause for the dissolution of the marriage arose after either party moved into this state.”

When either of the parties to a dissolution action meets the domicile requirements of § 46b-44 (c), the court has both personal and subject matter jurisdiction and there is a sufficient nexus between the state and the marriage to entitle the court’s judgment to full faith and credit. LaBow v. LaBow, 171 Conn. 433, 437, 370 A.2d 990 (1976).

The plaintiff’s present assertions are in complete contradiction to paragraph two of his complaint, which reads: “The plaintiff has resided continuously in the state of Connecticut for at least one year next [preceding] the date of this complaint or dissolution.” This statement clearly satisfies the requirements of domicile set forth in § 46b-44 (c) (1). Because the facts, of this case lead us to believe that the plaintiff misrepresented his own domicile to the court, we will give every presumption in favor of the jurisdiction of the court. Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979).

We conclude that the court gained, subject matter jurisdiction over the marriage of the parties from the facts alleged in the plaintiffs complaint. While any intentional misrepresentation made to the court by the parties is a serious matter; Masters v. Masters, 201 Conn. 50, 56, 513 A.2d 104 (1986); we cannot now allow the plaintiff to profit from his own misrepresentations. One who seeks to prove that he is entitled to the benefit of equity must first come before the court with clean hands. Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980).

II

The plaintiff next claims that the court should not have denied his motions to compel discovery, for extension of time in which to have a trial, for sanctions for noncompliance with discovery and for a continuance. The basis of the plaintiffs claim is his assertion that he was unduly prejudiced by the defendant’s failure to file financial information in response to his discovery requests.

The plaintiff filed a discovery request on October 13, 1988. The motion for disclosure contained ninety-five questions. In November, 1988, the defendant complied with the plaintiff’s motion to the best of her ability. She was unable to answer twenty-six questions, however, because the information sought was in the two boxes of financial papers and documents that the plaintiff took from the Florida home. The court acquired custody of these records on November 17, 1988. They remained in court custody until February 28, 1989, and were available to be returned to the plaintiff on March 15, 1989, although he did not pick them up until some time after April 5, 1989. Thus, the plaintiffs claim that he was denied access to the defendant’s financial papers and documents is an inaccurate portrayal of the record.

Practice Book § 218 provides that “[discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure.” (Emphasis added.) It is within the sound discretion of the trial court to grant or deny discovery. Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983); Lewin v. United States Surgical Corporation, 21 Conn. App. 629, 632 n.3, 575 A.2d 262 (1990); DeMatteo v. DeMatteo, 21 Conn. App. 582, 588, 575 A.2d 243 (1990).

Because the records in question were in the plaintiff’s possession from September, 1988, to November 17, 1988, and were again available to him on March 15,1989, he cannot now claim that the defendant had greater access to them than he, or that she could have produced them with greater facility than he.

The plaintiff further argues that he was at least entitled to updated information, presumably from September, 1988, when he took the records from the Florida condominium, to May 3,1989, the date of the hearing. To support his claim he cites Practice Book S 232.

The rules of discovery were designed to facilitate trial proceedings. Perry v. Hospital of St. Raphael, 17 Conn. App. 121, 123, 550 A.2d 645 (1988). “Although [t]he consequences of a party’s failure to comply with discovery requests should fall on that party”; Seperack v. Solaz, 17 Conn. App. 684, 693, 556 A.2d 175, cert. denied, 211 Conn. 804, 559 A.2d 1138 (1989); the trial court has wide discretion when imposing sanctions on a party who fails to comply with Practice Book § 232, and that court’s decision must be given great weight and every reasonable presumption of correctness. Id. The ultimate issue here is whether the court could have reasonably reached the conclusion that it did. Id.

Underlying the plaintiff’s claim is his assertion that he was surprised when he learned on the day of trial that the defendant’s total assets were in the neighborhood of three quarters of a million dollars. It is hard to imagine, however, that the defendant accumulated these resources between September, 1988, and May, 1989, on a salary of $38,000 per annum. As her financial affidavit shows, the defendant’s principal assets are stock in her family’s corporation, miscellaneous securities, a parcel of land in Florida, as well as her Cheshire condominium and her home in Florida. As we have already noted, the plaintiff lived in each of these residences during the course of the parties’ marriage. It is difficult to imagine that he was surprised by their revelation on the financial affidavit. Moreover, none of the listed holdings can be classified as “new material.” Neither can the defendant’s failure to reveal their value while the plaintiff and then the court held her financial records be called a “knowing concealment.”

We conclude that the trial court did not abuse its broad discretion in denying the plaintiff’s motions to compel discovery, for an extension of time, for sanctions, or for a continuance.

Ill

The plaintiff next claims that the court should not have proceeded because the defendant’s financial affidavit had not been filed at least three days before trial, as required by Practice Book § 463. We do not agree.

The plaintiff has culled one sentence from this rule of practice and has asked us to apply it blindly. Furthermore, he has ignored the last sentence of the rule: “Notwithstanding the above, the court may render pendente lite and permanent orders, including judgment, in the absence of the opposing party’s sworn statement.” In view of this language, we can only conclude that the court’s acceptance of a financial affidavit on the day of trial is a matter within the broad discretion of the court. Just as parties who fail to submit a financial affidavit do so at their own risk; Baker v. Baker, 166 Conn. 476, 489, 352 A.2d 277 (1974); so do those who file beyond the prescribed deadline. As noted above, when reviewing a discretionary ruling of the trial court we must decide whether the court could have reasonably reached the conclusion it did in light of the evidence before it. Seperack v. Solaz, supra. We conclude that the trial court did not abuse its discretion in accepting the defendant’s financial affidavit on the day of trial.

IV

The plaintiffs next claim is that the trial court should not have proceeded without a proper pretrial as required under the court’s own “local rules.” He asserts that the court was not entitled to set up a procedure whereby it would pretry a case and then assign it to the trial list. He further contends that the court did not follow its own “local rules,” in that this case was never pretried.

It is the responsibility of the appellant to furnish this court with an adequate record for review. Practice Book § 4061; Chomko v. Patmon, 19 Conn. App. 483, 488, 563 A-2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989). On the record before us it is impossible to determine whether a pretrial conference was actually held in this case. Although the defendant insists that a pretrial conference was held and points to certain agreements between the parties that were reached in the presence of the court on February 28,1989, we cannot accurately determine whether this conference was “a pretrial session within the contemplation of Practice Book § 265.” DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 390, 494 A.2d 1222 (1985).

Moreover, we find room within the discretionary language of Practice Book § 265 for the trial court to have set up the routine of pretrying domestic relations cases before assigning them to the limited contested list. “It is a proper exercise of the judicial office to suggest the expediency and practical value of adjusting differences and compromising and settling suits at law. The efficient administration of the courts is subserved by the ending of disputes without the delay and expense of a trial, and the philosophy or ideal of justice is served in the amicable solution of controversies. Our rules specifically provide for [these procedures] to be followed in pretrial sessions designed to encourage the settlement of cases.” Krattenstein v. G. Fox & Co., 155 Conn. 609, 614, 236 A.2d 466 (1967).

V

The plaintiff next claims that the trial court should not have accepted the defendant’s testimony as to the replacement value of certain items of personal property. He contends that because these values were derived from hearsay documents her testimony on these matters was also impermissible hearsay.

The facts relevant to this claim are as follows. The trial court heard the defendant’s testimony as to the replacement value of certain pieces of personal property that the plaintiff removed from the Florida home while the defendant was in Connecticut. The defendant stated that she had determined these amounts after correspondence with the manufacturers of the items. The only objection raised by the plaintiff during the defendant’s testimony was that the defendant was not competent to testify as to the value of this personal property. This objection was properly overruled and the plaintiff declined cross-examination of the defendant. At the close of the defendant’s testimony, her correspondence with the manufacturers was offered as an exhibit. At this point, the plaintiff objected, stating that the documents were impermissible hearsay. The court agreed and the plaintiff’s objection was properly sustained.

A party may testify to the value of her own property. Sunbury v. Sunbury, 13 Conn. App. 651, 660, 538 A.2d 1082 (1988), rev’d on other grounds, 210 Conn. 170, 553 A.2d 612 (1989) (defendant permitted to testify as to the fair market value of the marital home). A party’s testimony as to the value of personal property is proper even if no qualification other than ownership of it is shown. Saporiti v. Austin A. Chambers Co., 134 Conn. 476, 479-80, 58 A.2d 387 (1938) (plaintiff testified as to value of furniture). Because the defendant was the owner of the personal property in question, it is inconsequential that she obtained approximate values by corresponding with manufacturers. Further, the court properly withheld the hearsay documents from evidence.

VI

The plaintiff’s final claim is that he received insufficient notice of the date this case was set down for hearing. He also asserts that he was prejudiced by this lack of notice because his principal counsel was on trial in Waterbury.

The plaintiff received no direct notice from the clerk’s office of the Superior Court as to the date this case was set down for hearing. The clerk’s office informed the defendant who, in turn, sent several letters to the plaintiff notifying him of the hearing date.

The final sentence of Practice Book § 270, the rule pertaining to trial assignments, provides: “The . . . clerk shall cause the list of [assigned] cases ... to be prepared and distributed to counsel and pro se parties of record. ” (Emphasis added.) In this case the clerk notified only one party, the defendant, and relied upon her to notify the plaintiff. This procedure is not in accord with the mandatory language of the rules of practice.

A finding of error here would require remedial action by this court only if the error were harmful. See State v. Graham, 21 Conn. App. 688, 706, 575 A.2d 1057 (1990). “ ‘Harmful error requires a finding that the error was likely to affect the result. ... It is the appellant’s burden to demonstrate the harmfulness of the error’. . . .” (Emphasis in original.) Id., quoting Darling v. Waterford, 7 Conn. App. 485, 488, 508 A.2d 839 (1986).

We conclude that while the method of notification used by the clerk’s office was contrary to Practice Book § 270, it was harmless because it did not affect the outcome of the trial. The plaintiff clearly had notice of the May 3, 1988 hearing from the defendant’s April 15, 1988 letter. In that letter, the defendant informed the plaintiff of the hearing date, requested $176.30 to cover duplication costs and asked that the plaintiff pick up his copies of the defendant’s financial records. The plaintiff’s receipt of that letter can be substantiated by the fact that the plaintiff paid the amount requested on April 28, 1989, and appeared at the hearing on May 3, 1989.

The only prejudicial effect claimed by the plaintiff of not having been notified directly by the court is that an associate tried the case rather than his primary counsel, who was in court in Waterbury at the time. He dedicates only one page of his forty page brief to this issue and cites no cases to support his claim. In light of the fact that the plaintiff has failed to meet his burden of establishing the harmfulness of the clerk’s failure to notify him directly, we conclude that that failure was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       In both its original and its corrected memorandum of decision the court has transposed the terms “plaintiff” and “defendant.” Because the plaintiff failed to seek further articulation of the court’s decision in accord with Practice Book § 4051, we have relied upon the trial transcript to determine the court’s orders. It is the responsibility of the appellant to furnish this court with an adequate record for review. Practice Book § 4061; Chomko v. Patmon, 19 Conn. App. 483, 488, 563 A.2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989).

       In addition, an argument can also be made that the defendant’s decision to return to Connecticut and permanently remain here gave the court jurisdiction over the marriage under § 46b-44 (c) (2). The parties were married in this state and the defendant had returned before her answer and cross complaint were filed.

       Practice Book § 232 provides: “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection or discovers that the prior compliance was totally or partially incorrect or, though correct when made, is no longer true and the circumstances are such that a failure to amend the compliance is in substance a knowing concealment, he shall promptly notify the other party, or his attorney, and file and serve in accordance with Sec. 120 a supplemental or corrected compliance.”

       Practice Book § 463 provides: “At the time a motion concerning alimony, support or custody is filed, or at the time a dissolution of marriage, legal separation or annulment action is claimed for a hearing, the moving party shall file a sworn statement substantially in accordance with Form 501.1 of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income. The opposing party shall file such sworn statements at least three days before the date of the hearing on any of the above matters. When the attorney general has appeared as a party in interest, a copy of the sworn statements shall be served upon him in accordance with Sec. 120. Unless otherwise ordered by the court, all appearing parties shall file sworn statements within thirty days prior to the date of the decree. Notwithstanding the above, the court may render pendente lite and permanent orders, including judgment, in the absence of the opposing party’s sworn statement.”

       Practice Book § 265 provides in pertinent part: “The chief court administrator or the presiding judge with the consent of the chief court administrator may designate one or more available judges or state referees to hold pretrial sessions.”


text:
    Elisabeth Solomon v. Basil Keiser
    (7215)
    Spallone, O’Connell and Norcott, Js.
    Argued on March 7
    decision released July 24, 1990

      Wesley W. Horton, with whom was Susan M. Cormier, for the appellant (defendant).

      Michael T. Dolan, with whom, on the brief, was Peter B. O’Connell, for the appellee (plaintiff).
   O’Connell, J.

This is the defendant’s appeal from the trial court’s order opening a stipulated judgment and releasing funds escrowed pursuant thereto. The defendant claims that the trial court lacked jurisdiction to open the judgment because more than four months had elapsed since entry of that judgment. We reverse the judgment of the trial court.

This appeal arises out of an action for specific performance of a contract by which the plaintiff was to purchase certain real estate from the defendant. At an earlier stage, we dismissed the defendant’s appeal for lack of a final judgment. The Supreme Court reversed our decision and remanded the case to us for further proceedings. Solomon v. Keiser, 212 Conn. 741, 562 A.2d 524 (1989). The underlying facts are detailed in the Supreme Court’s opinion and will not be repeated here.

The only facts relevant to this appeal are that, prior to trial, the parties settled their dispute and recited their stipulation into the record. On May 27,1987, the trial court rendered judgment on the oral stipulation, pursuant to which the plaintiff deposited $100,000 in an escrow account, pending the parties’ agreeing on a purchase price. The parties subsequently reached such agreement, but a dispute arose concerning the interpretation of the stipulated judgment provision involving the application of the $100,000 escrowed funds. On December 13,1987, the plaintiff filed a motion asking the trial court to clarify the judgment. The trial court held a hearing, but did not rule on the motion. Instead, it opened the judgment sua sponte, ordered release of the escrowed funds to the plaintiff, and returned the case to the trial list. The defendant appeals from the trial court’s action.

The defendant claims that the trial court lacked jurisdiction to open the judgment because more than four months had elapsed since the rendering thereof. This claim is dispositive of the appeal. General Statutes § 52-212a and Practice Book § 326 establish the procedures for setting aside or opening judgments. “[Ujnless otherwise provided by law . . . any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. . . .” (Emphasis added.) Practice Book § 326; see General Statutes § 52-212a. This rule applies to stipulated judgments as well as to judgments rendered upon controverted facts. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). In the present case, the court rendered judgment in May, 1987, and then opened that judgment, sua sponte, in December, 1987, more than four months later.

The plaintiff focuses on the opening phrase “Unless otherwise provided by law,” and she contends that Connecticut law does otherwise provide for stipulated judgments. She is correct that a stipulated judgment bears important distinctions from a judgment rendered following a trial of controverted facts. Instead of constituting a judicial determination of a litigated right, a stipulated judgment “ ‘may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction.’ ” Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990). In addition, due to the contractual aspect of a stipulated judgment, it may be opened upon motion of one of the parties even after the four month period has elapsed, but only if the movant can show that the judgment was obtained by fraud, duress, accident or mistake. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981); Kenworthy v. Kenworthy, supra.

The plaintiff’s sole claim here is that there was a mistake as to the meaning of the judgment. The flaw in her argument is that the mistake must be mutual; a unilateral mistake will not suffice. Celanese Fiber v. Pic Yarns, Inc., supra. The defendant responds by vigorously protesting that there was no mistake on his part, and, therefore, there was no possibility of a mutual mistake. In opening the judgment, the trial court made no finding that there had been a mutual mistake. Moreover, under General Statutes § 52-212 and Practice Book § 326, the court may open a judgment only upon motion of one of the parties. In the present case, neither party moved to have the judgment opened. We conclude, therefore, that the trial court lacked jurisdiction to open the stipulated judgment.

The judgment is reversed and the case is remanded with direction to reinstate the stipulated judgment of May, 1987, and to disburse the funds to the plaintiff and the defendant according to the terms of said judgment, as more specifically articulated on August 12, 1988.

In this opinion the other judges concurred.

       In her Supreme Court argument, the plaintiff conceded that the trial court’s June, 1988 order releasing the escrowed funds was comparable to an order opening the judgment. Solomon v. Keiser, 212 Conn. 741, 747, 562 A.2d 524 (1989). We have likewise treated the issue as one involving the opening of a judgment.

       In view of our disposition on the jurisdictional issue, we do not reach the second claim of abuse of discretion in releasing the escrow funds.

       As part of an articulation dated August 12,1988, the trial court stated: “The court’s reading of the transcript of the agreement, as well as its recollection of the agreement that was announced to become an order, did not recognize an additional $100,000 credit.” This articulation clearly answers the question presented in the plaintiffs motion for clarification.


author: Cretella, J.

text:
    Zelia S. Rego v. Connecticut Insurance Placement Facility
    (8136)
    Spallone, Lavery and Cretella, Js.
    Argued April 30
    decision released July 24, 1990

      Stephen E. Goldman, with whom was Linda Morkan, for the appellant (defendant).

      Joseph A. Mengacci, for the appellee (plaintiff).
   Cretella, J.

The defendant appeals from a judgment rendered after a jury verdict in favor of the plaintiff to recover the proceeds of a fire insurance policy issued by the defendant covering two properties owned by the plaintiff. The complaint was brought in two counts, one for each of the properties damaged by the fire. To each count, the defendant raised two special defenses that would have excluded coverage, namely, (1) concealment or fraud, and (2) arson by or with the assistance of the plaintiff. The defendant claims that the trial court’s charge to the jury recited an incorrect standard for the burden of proof necessary to establish the two special defenses and failed to apprise the jurors that misrepresentations other than those relating to the cause and origin of the loss were material to the allegations of concealment or fraud.

We affirm the trial court’s judgment.

I

The trial court charged the jury that the defendant had the burden of proving the special defense of arson by a fair preponderance of the evidence and of proving the special defense of concealment or fraud by clear and convincing evidence. The defendant contends that the burden of proof on the special defense of concealment or fraud should have been by a fair preponderance of the evidence. It has been repeatedly stated that the special defense of arson must be proven by a fair preponderance of the evidence, whereas allegations of fraud or concealment must be proven by clear and convincing evidence. Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 182, 540 A.2d 693 (1988); Fichera v. Mine Hill Corporation, 207 Conn. 204, 215, 541 A.2d 472 (1988); Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982).

In its special defense, the defendant used the words “concealment or fraud,” which language came from the insurance policy itself, and also alleged that the plaintiff “intentionally concealed and misrepresented material facts.” This is not an allegation of negligent misrepresentation, which would require proof by a preponderance of the evidence, but, rather, of intentional misrepresentation and, as such, rises to the level of an allegation of fraud. Accordingly, the charge requiring that the allegation of concealment and fraud be proved by clear and convincing evidence was correct.

II

The defendant’s second claim is that the court’s charge to the jury on the special defense of concealment or fraud was defective in that it limited the issues before the jury to whether the plaintiff had made any misrepresentations or concealments that were related to the cause of the fire.

The plaintiff’s insurance policy contains a provision that coverage will not be provided if the plaintiff intentionally conceals or misrepresents “any material fact or circumstance relating to this insurance.” The defendant therefore requested the trial court to instruct the jury on the special defense of concealment or fraud as follows: “[I]f you find that the plaintiff . . . concealed any material facts or made any intentionally false statements at any time, including at any time during this trial, then the policy issued to her is null and. void and she is not entitled to recover anything in this action.”

The language of the defendant’s special defense of concealment or fraud and its response to the plaintiff’s interrogatories reveal that the defendant’s special defense was based upon the claim that the plaintiff concealed facts related to the cause of the fire. The trial court, therefore, instructed the jury that “[t]he defendant has the burden of demonstrating that the plaintiff misrepresented the facts relating to the cause or origin of the fire.”

The defendant claims that these instructions deprived the jury of an opportunity to consider all of the misrepresentations or concealments at issue in the case. The question is whether it is reasonably probable that the court’s instruction could have misled the jury to disregard some of the misrepresentations or concealments alleged by the defendant. See State v. Shifflett, 199 Conn. 718, 754, 508 A.2d 748 (1986). We find that that is not reasonably probable since all of the misrepresentations or concealments in dispute were related, in one sense or another, to the cause or origin of the fire.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    State of Connecticut v. Roger Brunori
    (7836)
    Daly, Laveey and Landau, Js.
    Argued April 30
    decision released July 24, 1990

      Neal Cone, deputy assistant public defender, for the appellant (defendant).

      Paul J. Ferenecek, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, Steven J. Sedensky III, assistant state’s attorney, and Michael Granston, legal intern, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, after a jury trial, of possession of drug paraphernalia in violation of General Statutes § 21a-267 (a), and possession of a narcotic substance in violation of General Statutes § 21a-279 (a). The dis-positive issue is whether the trial court properly denied the defendant’s motion for judgment of acquittal. We conclude that the evidence adduced at trial was insufficient as a matter of law to support the guilty verdicts. Accordingly, we reverse the trial court’s judgment.

The jury could reasonably have found the following facts. On the afternoon of July 16, 1987, Officers Joseph Sherbo and Robert Craw of the Bridgeport police department were dispatched to building number two of the Father Panik Village housing project in response to a report of a man armed with a gun. As they were driving toward the area, the officers first observed the defendant and two other men standing alongside that building. The three men saw the patrol car and went around the corner of the building, but were stopped by the officers a short distance from where they were initially observed. Sherbo, who was driving, had observed the defendant bend down with his arm stretched, come back up and then move back a few feet. The officers exited the vehicle and patted down the three individuals for weapons. Although no weapons were found, Craw did find two “folds” of a narcotic substance, which were later determined to contain cocaine, and a hypodermic needle in the proximate area where Sherbo had previously seen the defendant bend.

On appeal, the state argues that the jury could have made four reasonable inferences based on the evidence presented to find the defendant guilty. First, the defendant was at Father Panik Village to buy drugs; second, Joseph Pirrelo, a person accompanying the defendant, warned him that the police were nearby; third, the defendant and his companions attempted to walk away from the scene inconspicuously to avoid detection; and fourth, the defendant bent down and placed the cocaine and hypodermic needle on the ground to disassociate himself from the incriminating evidence.

The defendant argues that, in the absence of any testimony that an officer actually saw him discard something, the jury had to resort to conjecture and speculation to connect him with the contraband. He contends that mere suspicious conduct in the vicinity of narcotics is not enough to establish criminal possession. The defendant relies on numerous cases from other jurisdictions involving situations in which the surrounding circumstances were found to be insufficient to indicate that the accused had constructive possession of contraband found in a public place. The common theme of these cases is that a defendant who was never observed placing or discarding the contraband in the location where it was later discovered cannot be found guilty of possession in the absence of other evidence that would tend to buttress such an inference. We agree with the defendant.

It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. We do not sit as a seventh juror empowered to cast an overriding vote over the jury of six that actually heard the case. State v. Holloway, 22 Conn. App. 265, 281, 577 A.2d 1064 (1990). Rather, when faced with an insufficiency claim, we review the record to determine whether the jury could reasonably have found guilt beyond a reasonable doubt based on the cumulative effect of all the evidence presented at trial. State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990); State v. Osman, 21 Conn. App. 299, 302-303, 573 A.2d 743 (1990). Our task is to review the evidence presented at trial, both established facts and inferences reasonably drawn from those facts, in the light most favorable to sustaining the verdict. State v. Osman, supra. We treat circumstantial evidence as having the same degree of probative force as direct evidence. Id.; see also State v. Smith, 212 Conn. 593, 599, 563 A.2d 671 (1989).

General Statutes § § 21a-267 (a) and 21-279 (a) require proof that the defendant possessed drug paraphernalia or a narcotic substance, respectively. Under § 21a-267 (a), the state must prove that the defendant possessed the drug paraphernalia with an intent to use it, while under § 22a-279 (a), possession of a narcotic substance, with an intent to use is of no import. Notwithstanding this distinction, to establish possession under either offense, the state must prove beyond a reasonable doubt that the defendant knew the character of the contraband, knew of its presence and exercised dominion and control over it. State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Melillo, 17 Conn. App. 114, 117-18, 550 A.2d 319 (1988). Where, as in the present case, the contraband is not found on the defendant’s person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact. See, e.g., State v. Santiago, 17 Conn. App. 273, 278-79, 552 A.2d 438 (1989) (constructive possession where drugs found in automobile); State v. Melillo, supra, 118 (constructive possession where drugs found in base of tree).

Further, it is well settled that if the contraband is found in a place where the defendant does not have exclusive possession, the presence of the defendant near the contraband without more is insufficent to support an inference of possession. See State v. Alfonso, supra, 634-35 (without supporting evidence, no inference could be made that the defendant possessed the marihuana found in the common area of an apartment). Under such circumstances, the state must offer some additional evidence that would tend to buttress an inference of possession. Id.

We consider this proof requirement to hold true especially where, as here, the contraband was found in a public area. Unlike contraband found either in an automobile with multiple passengers or in a shared premises, contraband found in a public area could have been secreted there by virtually anyone. It would be a frightening scenario indeed for a person to be prosecuted for a possessory offense simply because he was unfortunate enough to be in the wrong public area at the wrong time, that is, in the proximity of contraband when a police officer discovers it. To mitigate the possibility that innocent persons might be prosecuted for such possessory offenses and to assure that proof exists beyond a reasonable doubt, it is essential that the state’s evidence include more than just a temporal and spatial nexus between the defendant and the contraband. See, e.g., State v. Thompson, 20 Conn. App. 290, 291-93, 567 A.2d 837 (1989) (evidence sufficient to attribute possession of cocaine found underneath an abandoned car to a defendant who, while under surveillance, repeatedly picked up something underneath the car and exchanged items with persons who stopped nearby in waiting vehicles); State v. Melillo, supra, 116-18 (evidence sufficient to attribute possession of cocaine found at the base of a tree to a defendant who, while under surveillance, was observed walking directly to the tree and moving around it).

In order to establish a possessory connection for drugs found in a public place, the state need not, of course, show that the defendant was under continuous surveillance as in Thompson and Melillo. If a person is observed by a police officer discarding a package of some sort, and the officer then determines that the abandoned property is contraband, such evidence, although admittedly not as strong as that obtained in a continuous surveillance case, would nevertheless pass muster for purposes of denying a motion for judgment of acquittal. See, e.g., State v. Ruth, 16 Conn. App. 148, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989) (observing a defendant discarding objects, which turned out to be contraband, near a dumpster in the course of a pursuit on foot). Cf. State v. Jennings, 19 Conn. App. 265, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989) (observing a defendant discarding a brown paper bag after having seen a marked police car was sufficient to justify an investigative stop of the defendant and retrieval of the bag).

After carefully reviewing this record in the light most favorable to sustaining the verdict, we conclude that, given the insufficiency of the evidence concerning the element of possession, the state has failed, as a matter of law, to introduce sufficient evidence for the jury to reasonably have found beyond a reasonable’doubt that the defendant possessed the contraband. The court, therefore, should not have denied the defendant’s motion for judgment of acquittal. Significantly, the state produced no testimony that established that either officer actually witnessed the defendant discarding anything as he was bent over. The testimony viewed in its best light toward sustaining the verdict was that the defendant bent down as if he were dropping something.

There is not a scintilla of evidence in the record to support the state’s first inference that the defendant was at Father Panik Village to buy drugs. We cannot accept the state’s implication that the defendant’s walking on a sidewalk in a high crime area gives rise to an inference that he is there to buy drugs.

With regard to the state’s second claimed inference— that the defendant was warned that a police car was approaching—Pirrelo testified that he turned around and “told Roger there’s a police car.” There is nothing in Pirrelo’s testimony that warrants the state’s characterizing this testimony as a “warning” to the defendant. After Pirrelo witnessed the police car driving toward them, it is hardly surprising, and certainly cannot be considered suspicious, that he mentioned it to his companion.

The state’s two remaining inferences at least facially give some support for the ultimate inference of possession, but they too are legally insufficient to support guilty verdicts. We cannot agree with the state that the defendant’s bending over and attempting to walk away while in a public area are probative in supporting an inference of possession. Surely, the innocuous act of bending over on a public sidewalk cannot be given any weight. Possession cannot be established by evidence of a movement that may have been performed for a multitude of reasons. The possibility that the defendant here may have discarded narcotics is not enough. In addition, the fact that the defendant started walking as the patrol car was arriving was no more suspicious than if he had instead elected to “freeze.” No matter what the defendant did at this point, the state, no doubt, could have argued that some inculpatory inference could be drawn from his movements. Again, the possibility that the defendant may have been attempting to walk away from the discarded contraband is not enough.

We are well aware that “[w]here a group of facts [is] relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard.” State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Had the state offered, as a factual predicate to establish possession, evidence that the defendant had discarded something, an inference of possession could have reasonably been drawn. In the absence of any testimony that the defendant was actually observed discarding something, we conclude that state failed to offer sufficient evidence for a jury reasonably to have found that the defendant possessed the contraband.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty of the crimes charged.

In this opinion the other judges concurred.

       Because of our resolution of this claim, we do not reach the defendant’s other claims.

       At trial, the state advanced a far less intricate set of inferences in support of denying the defendant’s motion for a judgment of acquittal. It argued that “[w]e had testimony from the police officers they had seen the defendant lean down as if dropping something. Also, the items were found in the area within two or three feet where the defendant was. Also, testimony that they don’t normally find narcotics lying around unless someone dropped them. The State believes based on this evidence it should be allowed to go in to the jury.”

       For example, in People v. Evans, 72 Ill. App. 146, 147-49, 218 N.E.2d 781 (1966), possession of narcotics found secreted under a public bar with chewing gum was not proved beyond a reasonable doubt where no one saw the defendant place it there. In Evans, the defendant rose from his seat at the bar and hurried toward the men’s room. Further, an officer testified that the defendant offered him a bribe if he would not arrest him. Id., 147. The court, noting that the narcotics were found in a place that was easily accessible to any number of people and could have been put there by anyone at any time, concluded that constructive possession could not be shown in the defendant simply by his suspicious conduct. Id., 149. Similarly, in Carroll v. State, 90 Ariz. 411, 412-13, 368 P.2d 649 (1962), the defendant, who was seated on an airport bench, made a throwing motion on the approach of two police officers. There was no testimony that he threw any object. Drugs were later found in a balled-up rubber sheath behind the bench. The conviction for illegal possession was not sustained because the implications that the defendant threw something and that that something was narcotics was simply too frail to draw the requisite inference to sustain a possession conviction, namely, that the defendant knew of the existence of the found narcotic. See also People v. Russell, 34 N.Y.2d 261, 265, 357 N.Y.S.2d 415, 313 N.E.2d 732 (1974) (evidence insufficient to connect the defendant to an envelope containing narcotics that was found near curb where the defendant’s car was parked, and where the defendant was seen making a motion with his right arm and hand prior to departure when officers neither observed the defendant with anything in his hand nor saw him drop an object); In re Caldarone, 345 A.2d 871, 876 (R.I. 1975) (presence at scene plus flight insufficient to infer possession of contraband where narcotics found át a clearing in the woods where the men had been).

       General Statutes § 21a-267 (a) provides in pertinent part that “[n]o person shall . . . possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240 ... to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance as defined in subdivision (9) of section 21a-240.”

       General Statutes § 21a-279 (a) provides in pertinent part that “[a]ny person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter . . . may be imprisoned . . . .”

       Narcotics possession cases hinging on the testimony of police officers who see a defendant drop something that is later determined to be narcotics or some other contraband are known as “dropsy” cases. See State
        v. Kimbro, 197 Conn. 219, 227 n.11, 496 A.2d 956 (1985). As the defendant notes, this type of testimony has been criticized by the New York courts because an officer may offer fabricated “dropsy” testimony in order to avoid having the evidence suppressed as the fruit of an illegal search and seizure. See People v. McMurty, 64 Misc. 2d 63, 314 N. Y.S.2d 194 (1970). We decline, however, to depart from the long standing rule that witness credibility, including that of a police officer, is within the province of the jury. State v. Osman, 21 Conn. App. 299, 303, 573 A.2d 743 (1990). “[I]t would be a dismal reflection on society to say that when the guardians of its security are called to testify in court under oath, their testimony must be viewed with suspicion.” Bush v. United States, 375 F.2d 602, 604 (1967).

       Sherbo had testified that he saw the defendant “bend down over to the side, down towards the ground bending over, arm outreached and . . . come back up.” He further testified that “he was down to the ground and came back up, took a step to the side all within a couple of—three feet either way. He didn’t walk anywhere.” On cross-examination, he stated that he was “sure he bent down and sure the narcotics were found next to where he bent.” Craw, on the other hand, never saw the defendant bending. His testimony was limited to what Sherbo had told him as the events transpired. Craw testified on direct examination that he “started checking the area, on the ground and found some narcotics. Joe said he had seen—Officer Sherbo said he had seen Brunori bend down and looked like he had thrown something when we first pulled up.” (Emphasis added.) On cross-examination, he stated that he “didn’t [think it was the defendant’s drugs] until Mr. Sherbo said it was. He said he had seen Mr. Brunori throw something to the ground.’.’ Craw’s latter statement on cross-examination contradicted both Sherbo’s own testimony and Craw’s earlier testimony on direct. This one brief statement is insufficient to overcome the otherwise uncontradicted testimony that Sherbo never saw the defendant discarding anything.


author: Lavery, J.

text:
    State of Connecticut v. Eugene Russell
    (7784)
    Dupont, C. J., Foti and Laveky, Js.

      Argued January 8
    decision released July 24, 1990

      William M. Bloss, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John O Meara and Cecelia Wiederhold, deputy assistant state’s attorneys, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, following a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103, and larceny in the fourth degree in violation of General Statutes § 53a-125. He claims that the trial court (1) should not have denied his motion for judgment of acquittal on the burglary count, (2) should not have instructed the jury that the section of the store where the theft occurred was a building, and (3) should not have submitted the case to the jury under both alternatives of the burglary statute. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At about 5 a.m. on April 11,1987, the night manager of the Pathmark grocery store in East Haven was making a routine check of the premises. The store is open twenty-four hours a day. A portion of the store known as the “service center,” however, is closed daily from 9 p.m. to 9 a.m. The service center contained various items of “high value merchandise,” such as cigarettes, electronic equipment, film, and small appliances, and it was secured at night from public access by a padlocked, eight foot tall folding metal gate.

As the night manager walked past the service center, he noticed that the cigarette display was in disarray and that several cartons of cigarettes appeared to be missing. The night manager, accompanied by the store detective, unlocked the gate and went inside to investigate. They noted that many cartons of cigarettes were missing, and they discovered a brown wallet, containing the defendant’s driver’s license, on the floor of the service center. In an aisle adjacent to the service center, they discovered a child’s car seat that had been removed from its box and placed on the floor. They reviewed a videotape recording made by the store’s surveillance camera, which revealed that at approximately 2:20 a.m. a male subject removed the car seat from its box and then climbed over the gate, with the box, into the service center. The subject climbed back over the gate several minutes later, still carrying the box, and moved quickly toward the store exit. Although the quality of the tape was said to be good, the tape did not reveal the facial features of the subject because of the camera’s distance from the service center.

The theft was reported to the East Haven police, who went to the address listed on the driver’s license found in the service center. In a trash can near the rear of the house they discovered an empty box for a child’s car seat. They then obtained search warrants for both the house and a car parked next to the house. Upon executing the warrants, the police found numerous cartons of cigarettes in the house and in the car, all of which bore the Pathmark store’s tax number. The defendant was subsequently arrested pursuant to a warrant.

I

The defendant first claims that the trial court should have granted his motion for judgment of acquittal on the burglary count. In making the motion, the defendant argued that because the Pathmark store was open to the public at the time of the relevant events, the state had failed to present sufficient evidence that the defendant entered and remained unlawfully in a building. The defendant’s argument is bottomed on the premise that the entire Pathmark store, rather than just the closed service center therein, is the space relevant to the burglary count. We disagree.

Burglary in the third degree is defined in General Statutes § 53a-103 (a) as “apersonas] . . . entering] or remaining] unlawfully in a building with the intent to commit a crime therein.” General Statutes § 53a-100 (a) (1) provides that “building” carries its own meaning, but “[wjhere a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the actor is, in addition to being part of such building, a separate building.” Id. The basic issue, then, is whether the statutes permit the “service center” area of the Pathmark store to be deemed a separate building. We conclude that they do.

Our Supreme Court in State v. Thomas, 210 Conn. 199, 554 A.2d 1048 (1989), recently addressed this general issue without reaching the exact question we face in the present case. In Thomas, the court held that the area behind a cash register counter in a convenience store could not be deemed a “building” within the meaning of § 53a-100 (a) (1). The court, however, did not elaborate on the reasoning behind its holding, and Thomas, therefore, is of limited use as we face a much closer version of the same question.

In State v. Cochran, 191 Conn. 180, 463 A.2d 618 (1983), the court upheld the burglary conviction of a defendant who, while invited into a portion of the victim’s home, broke into two locked bedrooms and stole a stereo system. The court’s decision turned on the fact that the defendant’s invitation never “expressly or impliedly extended to either of the bedrooms, which were locked.” Id., 185. The bedrooms, the court concluded, were “distinct parts” of the building for the purposes of the burglary statute. Id. The court reached its conclusion because it found that the state satisfied the burden of “showing that any license or privilege -to remain in one section of the structure did not extend to the separate unit wherein the burglary allegedly occurred.” Id., 186 n.6.

We receive further guidance from the comments by the commission to revise the criminal statutes: “The basic definition of the crime of burglary, implicit in these sections, is: an unlawful entry into or remaining in a building with the intent to commit a crime therein.” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969), p. 50. The original and basic rationale of the crime is the “protection against invasion of premises likely to terrorize occupants.” Id; see also State v. Belton, 190 Conn. 496, 506, 461 A.2d 973 (1983). In light of our consideration of these authorities, when considering whether the closed portion of a commercial building otherwise open to the public is to be deemed a separate building, therefore, we make the following inquiry. Is the closed portion of the building sufficiently demarcated and secured so that (1) persons licensed or invited to be in the open part of the building could not fail to realize that their license or invitation does not extend to the closed area; see State v. Cochran, supra; and (2) any rightful occupants of the closed area would have a reasonable expectation of not being confronted by unauthorized intruders. See id., 185; see also State v. Belton, supra.

There was substantial evidence before the court to support the conclusion that the service center was a separate building. It was closed by a padlocked, eight foot tall gate that precluded the public’s entry into the area by any normal means. It was thus abundantly clear that the public was not invited into the service center when it was closed in that manner, and any employee working in the center at that time could reasonably have believed that it was secured against intrusion by outsiders. The defendant’s challenge to the sufficiency of the evidence on this issue, therefore, was and is unavailing.

II

The defendant next claims that the trial court’s instructions improperly required the jury to find that the service center was a separate building and that this instruction both denied him due process by relieving the state of the burden of proof on this issue, and infringed his constitutional right to a jury trial. The defendant did not raise this claim at trial, and, after examining the challenged instruction in its proper context; see State v. Cato, 21 Conn. App. 403, 410, 574 A.2d 240 (1990); we conclude that this claim is not truly of constitutional magnitude. State v. Spears, 20 Conn. App. 410, 417, 567 A.2d 1245 (1989).

The challenged instruction was part of the court’s instructions on the elements of the crime of burglary. After giving a general description of the elements of the crime, the court elaborated on the definition of a building and clearly charged the jury with deciding the question of whether “the premises in this case was a building, as that term has been defined.” The court then discussed unlawful entering and remaining in a building, instructing the jury that “[a] person enters and remains unlawfully in a or upon a premises when the premises at the time of such entry or remaining is not open to the public and when the defendant is not otherwise licensed or privileged to do so.” The court then gave the challenged instruction: “As you heard from the testimony, the area in question here within the Pathmark store was closed off, it was a closed off area where the cigarettes allegedly were locked, which would have been a closed off area to the public. Therefore, it would be an area which would be affected by this charge as to whether a person unlawfully goes into that area.”

The challenged instruction focused the jury’s unlawful entry inquiry onto the relevant space, namely, the closed service area. Because the defendant’s initial entry and remaining in the greater part of the Path-mark store was lawful, regardless of his motive in making that entry; State v. Thomas, supra, 206-208; the relevant issue before the jury was the legality of the defendant’s entry into the service center. We conclude that the only effect of the challenged instruction, in its proper context, was to narrow the issues before the jury. To the extent that the challenged instruction affected the court’s earlier instruction on buildings, it narrowed the jury’s inquiry to whether it considered the service center to be a separate building. The defendant’s claim is not of constitutional magnitude, and we will not review it further.

Ill

The defendant’s last claim is that the trial court should not have submitted the case to the jury under both alternatives of the burglary statute without giving the jury a unanimity instruction.

The trial court charged the jury on both the “entering” and the “remaining” theories of burglary. Within the factual context of other cases, the acts of “entering” and “remaining” were found to be conceptually distinct, thus necessitating a unanimity instruction; see, e.g., State v. Edwards, 10 Conn. App. 503, 513, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987). “In considering whether alternative statutory elements are conceptually distinct for purposes of requiring a unanimity instruction, however, the analysis ‘turns, not only on the language of the two statutory subsections or elements, but also on the evidence in the case and how the case is presented to the jury in the court’s instructions.’ State v. Velez, 17 Conn. App. 186, 199, 551 A.2d 421 (1988).” State v. Delgado, 19 Conn. App. 245, 248, 562 A.2d 539 (1989).

In this case, the defendant’s acts of entering and remaining were conceptually indistinct and inseparable. The state’s evidence was that the defendant entered the service center unlawfully and continued to remain there unlawfully. The videotape of the incident shows the subject entering the service center and exiting several minutes later. The defendant’s theory of defense was that, because the service center was not a separate building, the defendant’s license both to enter and to remain in the Pathmark store extended to the service center, and both his entry and remaining therein were lawful for the purposes of the burglary statutes. Thus, “the jury’s verdict could have resulted only from its determination that the defendant’s conduct constituted one continuous course of unlawful conduct”; id., 248-49; namely, that he entered the service center unlawfully and remained there without any change in his legal status. “Under these circumstances, the unlawfulness of his entry determined the unlawfulness of his remaining. The two inexorably intertwined acts were conceptually indistinct.” Id., 249

Moreover, the defendant’s conduct did not “ ‘comprise “separate incidents” implicating alternative or conceptually distinct bases of liability’; State v. Bailey, [209 Conn. 322, 336, 551 A.2d 1206 (1988)]; and this was not a case where the complexity of the evidence or other factors created a genuine risk of jury confusion. Id., 337.” State v. Delgado, supra. The defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       A subsequent inventory determined that eighty-two cartons, worth approximately $11.50 each, had been stolen.

         ‘ ‘Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are eoneeptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act.” ’ (Emphasis in original.) State v. Bailey, [209 Conn. 322, 334, 551 A.2d 1206 (1988)] quoting State v. Flynn, 14 Conn. App. 10, 38, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988).” State v. Delgado, 19 Conn. App. 245, 247-48, 562 A.2d 539 (1989).