text:
    VENTURE PARTNERS, LTD. v. SYNAPSE TECHNOLOGIES, INC., ET AL.
    (13683)
    Dupont, C. J., and Hennessy and Spallone, Js.
    Argued December 8, 1995
    officially released July 9, 1996

      TheodoreR. Killiam, for the appellants (defendants).

      Leslee B. Hill, with whom, on the brief, was Robert A. Ziegler, for the appellee (plaintiff).
   SPALLONE, J.

The defendants, Synapse Technologies, Inc., and its chief executive officer, Floyd Wallace III, (hereinafter referred to jointly as the defendant) having been found hable to the plaintiff pursuant to a contract between the parties, appeal from the judgment of the trial court rendered by a state trial referee. On appeal, the defendant claims that the trial court improperly (1) interpreted the allegedly unambiguous language of the contract, and (2) found an, ambiguity in the contract and resolved that ambiguity in favor of the plaintiff.

The record reveals the following facts. The plaintiff is a midsized company that advises and assists other businesses in strategic and financial planning. Its services include locating new capital to be invested in its clients’ businesses. On August 7, 1991, the defendant entered into a contract with the plaintiff. Under the contract, the plaintiff was to provide various financial consulting services to the defendant, including assistance in formulating a comprehensive business plan-financing memorandum. In addition, the plaintiff was to aid the defendant in identifying and negotiating with potential investors. The parties agree that a goal of the agreement was to enable the defendant to acquire the assets of Middleburg Corporation (Middleburg). The contract called for the plaintiff to receive three forms of compensation: (1) a monthly retainer of $2500, under part two of the contract; (2) a percentage of the funding obtained by the plaintiff on behalf of the defendant that was payable “[u]pon the consummation of the funding (the ‘closing’),” under part four, paragraph one; and (3) the right to purchase at closing, warrants to purchase a percentage of the defendant’s founder’s stock at a nominal price, under part four, paragraph two.

Although Middleburg owned a potentially valuable technology patent, it also had three habilites. First, another company, Teradyne, had an interest in the patent that Middleburg owned. Second, Connecticut Innovations, Inc. (Connecticut Innovations), was a secured creditor in the amount of approximately $600,000. Third, the Bank of Boston, in conjunction with the Small Business Administration (jointly referred to as SBA), was a secured creditor in the amount of $300,000.

The plaintiff and the defendant agreed that reducing the size of Middleburg’s debts to Connecticut Innovations and the SBA was essential if the defendant was to acquire Middleburg’s assets and to attract new capital. Largely through the plaintiffs efforts, Connecticut Innovations agreed to foreclose on Middleburg’s assets, including its right in the technology patent. Connecticut Innovations then sold the assets to the defendant in a private secured party sale for $220,000 on March 11, 1992. Connecticut Innovations maintained a royalty right in the technology and the defendant signed a promissory note for the entire amount. Several days prior to this transaction, the plaintiff and the defendant agreed to modify the portion of the contract that applied to the third form of compensation. Instead of the original percentage, the defendant granted the plaintiff warrants to purchase 15 percent of the founder’s stock as well as warrants to purchase an additional 3 percent of the outstanding shares of the defendant, all of which were due at the closing.

Following this transaction with Connecticut Innovations, which is the gravamen of the present case, the plaintiff continued to work on behalf of the defendant to reduce or eliminate the two other liabilities. Finally, on November 4, 1992, the defendant acquired SBA’s rights in Middleburg’s assets and it settled with Teradyne that company’s right in the technology patent.

At trial, the plaintiff claimed that the transaction between the defendant and Connecticut Innovations, in which the defendant acquired Middleburg’s assets, constituted the closing called for in the contract. Therefore, the plaintiff sought the amount due in fees as well as the warrants to purchase 15 percent of the stock of the defendant Synapse Technologies. The defendant, while conceding the importance of the Connecticut Innovations transaction, contended that the closing actually was to be the consummation of funding from other outside investors. The trial court, after rejecting the defendant’s four special defenses and its three counterclaims, agreed with the plaintiff. The trial court awarded to the plaintiff $45,518.75 for unpaid fees, reasonable attorney’s fees, and required the defendant to provide to the plaintiff the warrants for the purchase of 15 percent of the founder’s stock. We disagree with the trial court’s interpretation of the contract.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Citations omitted; internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995). “In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Internal quotation marks omitted.) De Leonardis v. Subway Sandwich Shops, Inc., 35 Conn. App. 353, 357, 646 A.2d 230, cert. denied, 231 Conn. 925, 648 A.2d 162 (1994). When only one interpretation of a contract is possible, “the court need not look outside the four comers of the contract. . . .” Hedberg v. Pantepec International, Inc., 35 Conn. App. 19, 28, 645 A.2d 543, cert. granted on other grounds, 231 Conn. 927, 648 A.2d 879 (1994) (appeal withdrawn February 21, 1995); see Levine v. Massey, supra, 278 n.7. In addition, “[t]he circumstances surrounding the making of the contract, the purposes which the parties sought to accomplish and their motives cannot prove an intent contrary to the plain meaning of the language used.” Levine v. Massey, supra, 279, citing Connecticut Co. v. Division 425, 147 Conn. 608, 616-17, 164 A.2d 413 (1960). Finally, “[t]he court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.” (Internal quotation marks omitted.) Levine v. Massey, supra, 279. We conclude that the language of the contract between the plaintiff and the defendant is not ambiguous. Therefore, its proper interpretation is a matter of law.

As an initial matter, we disagree with the trial court’s interpretation of language in the introductory paragraph of the contract. The trial court, in its memorandum of decision, stated that “[t]he agreement in the introductory paragraph sets out as the basic purpose of the agreement the type of services to be provided by the plaintiff to the defendant relating to ‘. . . the acquisition of all or part of Middleburg Corporation . . . .’” (Emphasis added.) Reading the italicized portion in a larger context, however, clearly reveals that the language merely defines the parties to the contract. The introductory paragraph begins: “This letter sets forth the agreement between Floyd Wallace, III or any entity he might establish for the acquisition of all or part of Middleburg Corporation .... and Venture Partners, Ltd. . . . with respect to . . . .” Only after first defining the parties does the introductory paragraph specify the purposes of the contract. These purposes are indicated by the phrase “with respect to.” The services listed are nearly identical to those listed in part one of the contract entitled “Overview of Services.” Thus, the introductory paragraph does not assist us in our interpretation of the term “closing.”

We also note that our interpretation of the introductory paragraph conforms with “[t]he circumstances surrounding the making of the contract . . . .” (Internal quotation marks omitted.) Levine v. Massey, supra, 232 Conn. 279. Wallace had just established Synapse Technologies, Inc., to operate as a new corporation. It was prudent for the plaintiff to include language, when defining the parties, to ensure that if Wallace established a different corporation or changed the Synapse name, that he and the new entity would still be bound by the contract. The definition of the parties or potential parties to the contract in this way does not, on its own, establish or preempt the true purpose of the contract.

Next and more important is our disagreement with the trial court’s interpretation of the term “closing,” which is found in part four of the contract. The trial court stated that under part four “the plaintiff was to obtain funding for financing the acquisition of the Middleburg Corporation. When this funding was consummated (described as ‘the closing’) defendant is to pay plaintiff its fee, together with the granting by the defendant to the plaintiff the right to acquire at closing warrants to purchase securities.” The second paragraph of part four actually states that the defendant will grant the right to purchase warrants at closing. “Closing,” in paragraph one of part four, is defined as “the consummation of the funding . . . .” “Funding” is the funding obtained “in an amount necessary to finance the plans outlined in the financing memorandum.” Part two of the contract states that the plaintiff will “assist the [defendant] in the formulation of a financing memorandum for articulating the opportunity to the investment community . . . .” Therefore, it is evident that “the closing” is that point in time at which the defendant receives from the investment community sufficient funds to accomplish the plans set forth in the financing memorandum.

We conclude that the defendant’s acquisition of Connecticut Innovations’ rights in the assets of Middleburg was not the closing anticipated in the contract. Because Connecticut Innovations already had a security interest in the assets of Middleburg, it is illogical to suggest that Connecticut Innovations could be construed to be a member of the investment community that the defendant or plaintiff might approach with an investment “opportunity.” Connecticut Innovations had only to assert its right to Middleburg’s assets, as it eventually did, and it would have acquired Middleburg’s assets.

We are also persuaded that the transaction between the defendant and Connecticut Innovations was not the closing anticipated by the parties because the first paragraph of part four specifies that “[u]pon the consummation of the funding (the ‘closing’), [Wallace] shall pay to [Venture Partners] a fee in cash equal to five and one half (5.5%) percent of the gross proceeds of the funding . . . .” This court, in interpreting a contract, must “constru[e] it as a whole and reconcil[e] its clauses. . . . “ (Citations omitted, internal quotation marks omitted.) Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn. App. 530, 534, 630 A.2d 115 (1993). Thus, since the plaintiff became entitled, at the closing, to both the percentage of the funding and the warrants, we must give effect to both of these provisions. It is impossible to give meaning to both paragraphs of part four under the interpretation urged by the plaintiff. The two paragraphs have meaning simultaneously only if funding were provided by a source other than a creditor. Connecticut Innovations, in foreclosing on Middleburg’s assets and selling them to the defendant, essentially only reduced the amount of debt that the defendant assumed. The plaintiff could not, and indeed did not, assert a claim for a percentage of the funding received by the defendant because the defendant was not funded by the Connecticut Innovations transaction. A claim for a percentage of the funding, however, necessarily had to have been able to occur at the same time that the plaintiff became entitled to the warrants because both were tied to the closing. Moreover, Connecticut Innovations did not fund the defendant per se, but rather the defendant purchased the assets that Connecticut Innovations had owned. Therefore, the transaction between Connecticut Innovations and the defendant could not have been the closing anticipated by the parties.

We note that the parties’ motives do not “prove an intent contrary to the plain meaning of the language used.” (Internal quotation marks omitted.) Levine v. Massey, supra, 232 Conn. 279. There was testimony at trial by the defendant and the principals of the plaintiff that both parties thought that it would not be possible to raise any capital or equity until the three liabilities were resolved. They also testified that the resolution of the liabilities took much longer than anticipated. Finally, there was testimony that the transaction between Connecticut Innovations and the defendant was not the funding contemplated in the contract. This view is buttressed by the fact that a consultant hired by the plaintiff admitted that no financing memorandum had ever been completed. According to the contract, this financing memorandum was to be the benchmark against which the parties were to determine when the defendant had received sufficient financing or, in other words, the closing. It is clear that the failure to develop the financing memorandum at any time, particularly before the Connecticut Innovations transaction, indicates that the Connecticut Innovations transaction was not the closing anticipated by the parties.

Our interpretation of the contract does not deprive the plaintiff of its entire judgment award. “ ‘[I]t is the general rule that a severable contract is one in its nature and purpose susceptible of division and apportionment.’ Pacific Timber Co. v. Iowa Windmill & Pump Co., 135 Iowa, 308, 310, 112 N.W. 771 [1907]. The determinative test is in ascertaining from the language used, read in the light of the surrounding circumstances, what was the intention of the parties. Loud v. Pomona Land & Water Co., 153 U.S. 564, [14 S. Ct. 928 (1894)].” Hartford-Connecticut Trust Co. v. Cambell, 95 Conn. 399, 405, 111 A. 864 (1920). In determining the severability of the contract, the court looks to whether the contract’s “ ‘parts and its consideration are common to each other’ ” or independent of one another. Id.; see also Timely Products, Inc. v. Costanzo, 465 F. Sup. 91, 97 n.6 (D. Conn 1979) (“singleness or apportionability of the consideration rendered is a principal test in judging severability”).

We conclude, as the defendant concedes, that the contract is severable. The duties imposed on the plaintiff and the consideration the plaintiff would receive in return under part two are independent from the duties and consideration found under part four. Specifically, part two calls for the payment of a monthly retainer to the plaintiff in return for advising the plaintiff on a number of strategic and financial matters. Part four, on the other hand, calls for the plaintiff to receive a percentage of the funding it obtains and the stock warrants once the funding is actually accomplished. Thus, the consideration the plaintiff was to receive under the contract was to be apportioned according to the services it provided. We conclude that the plaintiff may recover the fees due under part two of the contract, but not the stock warrants under part four of the contract.

The judgment is reversed only as to the award of stock warrants and the case is remanded with direction to render judgment as on file except as modified to eliminate the award of warrants.

In this opinion the other judges concurred.

       The contract, after its amendment on March 7,1992, provided in pertinent part: “Engagement Letter. This letter sets forth the agreement between Floyd Wallace, III or any entity he might establish for the acquisition of all or part of Middleburg Corporation (collectively ‘FWIII’) and Venture Partners, Ltd. (‘VP’) with respect to, among other things, the furnishing by VP to FWIII of certain consulting services relating to financial advisory services, the review and formulation of a business plan/financing memorandum, and the arrangement, on a best efforts basis, of equity and/or debt financing, a stategic partnering relationship, or a sale or merger.
      1. Overview of Services
      Subject to the terms and conditions set forth herein, VP will endeavor to: i) Provide consulting services in helping to formulate and review long term stategy, financing needs, and structure, ii) Assist in the formulation of a comprehensive business plan/financing memorandum, iii) Arrange for meetings and other communications between FWIII and select number of private and institutional lenders/investors. iv) Assist in various negotiations as required by FWIII. . . .
      2. Stategy Development and Financial Advisory Services
      VP will assist FWIII in exploring alternative stategies, evaluating the potential structure and developing an estimate of the resources required ... to implement the plan. VP will then assist FWIII, as required, in developing a focused, consistent strategy for attacking the potential market opportunities, assist the Company in the formulation of a financing memorandum for articulating the opportunity to the investment community, and work with the Company in identifying investment sources and arranging financing. As compensation for this effort, FWIII will pay to VP a monthly nonrefundable retainer of Two Thousand Five Hundred Dollars .... VP agrees to accrue such retainers for a period of one hundred twenty (120) days, or until the closing, whichever occurs first. . . .
      4. Arrangement of financing
      VP will use its best efforts to obtain the funding in an amount necessary to finance the plans outlined in the financing memorandum. Upon the consummation of the funding (the ‘closing’), FWIII shall pay to VP a fee in cash equal to five and one half percent (5.5%) of the gross proceeds of the funding up to one million dollars; four percent (4%) of the gross proceeds of the funding between one million and two million dollars; three percent (3%) of tire gross proceeds of the funding between two million and three million dollars; two percent (2%) of the gross proceeds of the funding exceeding three million dollars. FWIII, in his sole discretion, may accept or reject any offers of funding.
      Additionally, FWIII grants to VP the right to purchase at closing, for a nominal price of $100, warrants to purchase an amount of securities equal to . . . 15% of FWIII’s founders stock at an exercise price per unit equal to five cents per share ($0.05), exercisable at any time within seven years (7) from the closing of this transaction and having normal antidilution clauses. . . . Plus warrants to purchase an additional three percent (3%) of outstanding shares at the closing of third party investment at an [execise] price per unit equal to the purchase or valuation price per unit of stock sold as part of this transaction.”

       The following exchange took place during the cross-examination of Gary Laskowski, a principal of the plaintiff:
      “Q. So, the financing that you anticipated would solve the [defendant’s] problem, and would be the financing that was contemplated in the contract between you and Synapse was to have Synapse substitute as debtor with [Connecticut Innovations] in place of [Middleburg]; is that correct?
      “A. No.
      “Q. That’s not correct?
      “A. No.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    G. F. CONSTRUCTION, INC. v. CHERRY HILL CONSTRUCTION, INC.
    (14368)
    Dupont,, C. J., and Spear and Hennessy, Js.
    Argued February 27
    officially released July 9, 1996

      Gregory J. Sachs, for the appellant (defendant).

      Terrence J. Molinari, for the appellee (plaintiff).
   HENNESSY, J.

The defendant, Cherry Hill Construction, Inc., appeals from the order of the trial court granting a motion by the plaintiff, G. F. Construction, Inc., to open a default entered on the defendant’s counterclaim and a judgment of nonsuit rendered on the complaint. The defendant claims that the trial court abused its discretion by opening the default and nonsuit and that it lacked authority to open the default and the nonsuit because the plaintiff failed to file affidavits in support of its motion to open within the four month period set forth by General Statutes § 52-212 and Practice Book § 377.

The underlying action from which this appeal arises is based on the plaintiffs allegation that the defendant breached a contract to perform excavation work on the plaintiffs property. The defendant denied the allegations in the plaintiffs complaint and, in a counterclaim, alleged that it performed the work required under the contract but has not been paid. On May 10, 1994, the trial court rendered a judgment of nonsuit against the plaintiff for failure to enter an appearance after its original counsel had withdrawn his appearance. On June 28, 1994, the trial court rendered a default against the plaintiff on the defendant’s counterclaim for failure to appear for a pretrial conference. The court did not render judgment on the default. On September 1, 1994, the plaintiff filed a motion to open the default and the judgment of nonsuit. The plaintiff did not file the necessary affidavits until October 13, 1994, more than four months after the trial court rendered judgment. On November 22, 1994, the trial court granted the motion to open. The defendant appeals from the granting of that motion.

Before we address the questions presented by the plaintiff, we must address three jurisdictional issues. The first question is whether the fact that a judgment was not rendered on the counterclaim affects this court’s jurisdiction. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). “The first alternative, termination of a separate and distinct proceeding, requires the order being appealed to be severable from the central cause to which it is related so that the main action can ‘proceed independent of the ancillary proceeding.’ ” In re Juvenile Appeal (85-AB), 195 Conn. 303, 307, 488 A.2d 778 (1985). “This means that the ‘separate and distinct proceeding,’ though related to the central cause, must be severable therefrom. The question to be asked is whether the main action could proceed independent of the ancillary proceeding.” State v. Parker, 194 Conn. 650, 654, 485 A.2d 139 (1984).

“Under our rules of practice, a counterclaim, if proper, is an independent action. See Practice Book §§ 116, 168, 169; Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 63, 485 A.2d 1296 (1985); see also Schurman v. Schurman, 188 Conn. 268, 270, 449 A.2d 169 (1982). Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985).” (Internal quotation marks omitted.) Union Carbide Corp. v. Aetna Casualty & Surety Co., 212 Conn. 311, 318, 562 A.2d 15 (1989); see Northeast Savings, F.A. v. Plymouth Commons Realty Corp., 229 Conn. 634, 641, 642 A.2d 1194 (1994). In this case, the complaint and the counterclaim are entirely independent and severable, and, as such, the first prong of Curdo is satisfied.

The next jurisdictional question is whether the lack of a judgment on the counterclaim deprives us of jurisdiction to determine whether the motion to open the default on the counterclaim was properly granted. Ornease law clearly states that a default standing alone without a judgment concludes no one’s rights and is not a final judgment. Automotive Twins, Inc. v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951); Connecticut National Bank v. Oxenhandler, 30 Conn. App. 541, 549, 621 A.2d 300 (1993); Ratner v. Willametz, 9 Conn. App. 565, 574, 520 A.2d 621 (1987). Therefore, we dismiss that part of the defendant’s appeal that concerns whether the trial court properly granted the motion to open the default.

Finally, we address the issue of whether the trial court’s granting of a motion to open a judgment of nonsuit is an appealable final judgment. “[I]t is well established that an order opening a judgment ordinarily is not a final judgment within [General Statutes] § 52-263. . . . [Our Supreme Court], however, has recognized an exception to this rule where the appeal ‘challenges the power of the court to act to set aside the judgment.’ Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980); 4 Am. Jur. 2d, Appeal and Error § 126.” (Citations omitted.) Solomon v. Keiser, 212 Conn. 741, 746-47, 562 A.2d 524 (1989). In this case, the defendant argues that the trial court lacked the authority to open the judgment of nonsuit. In keeping with the holdings of Solomon v. Keiser, supra, 746-47, and Connecticut Light & Power Co. v. Costle, supra, 418, we address the defendant’s appeal to the extent that it questions the authority of the trial court to open the judgment of nonsuit.

The defendant claims that the trial court lacked the authority to open the judgment because the plaintiff failed to file affidavits in support of its motion to open within the four month period required by General Statutes § 52-212 and Practice Book § 377. The plaintiff argues that it filed the motion to open judgment in a timely manner, even though the affidavits required by the statute and rules of practice were filed more than four months after the judgment of nonsuit. The plaintiff contends that the affidavits served the puipose of the provisions of the statute and rules of practice and, therefore, are sufficient.

“ ‘Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment . . . rendered in the superior court may not be opened . . . unless a motion to open ... is filed within four months succeeding the date on which it was rendered or passed.’ General Statutes § 52-212a; Practice Book § 326. Unless the parties waive this time limitation, the trial court lacks jurisdiction to entertain a motion to open filed more than four months after a decision is rendered.” Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985).

The plaintiff did not file the necessary affidavits with the motion to open the nonsuit in a timely manner. Therefore, the motion was not proper, and the trial court was without jurisdiction to grant it.

The appeal is dismissed as to the challenge to the trial court’s granting of the motion to open the default on the counterclaim; the order granting the motion to open the judgment of nonsuit is reversed and the case is remanded with direction to deny the motion to open the judgment of nonsuit.

In this opinion the other judges concurred.

       General Statutes § 52-212 provides in relevant part: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
      “(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear. . . .”

       Practice Book § 377 provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed .... Such written motion shall be verified by the oath of the complainant or his attorney . . . .”

       See footnotes 1 and 2.


author: O’CONNELL, J.

text:
    JACQUES ALL TRADES CORPORATION v. LAVERNE BROWN ET AL.
    (14052)
    O’Connell, Schaller and Hennessy, Js.

      Argued January 19
    officially released July 9, 1996

      George M. Purtill, with whom , on the brief, was R. Richard Croce, for the appellant-appellee (named defendant).

      Joseph C. Morelli, for the appellee-appellant (plaintiff).

      John P. Shea, special counsel, Evans Jacobs, Jr., senior assistant corporation counsel, and Pedro Segarra, corporation counsel, filed a brief for the appellee (defendant city of Hartford).

      Richard Blumenthal, attorney general, and Roger F. Reynolds, assistant attorney general, filed a brief for the state of Connecticut as amicus curiae.
   O’CONNELL, J.

This appeal arises out of a contract action for a breach of contract in connection with home improvements performed by the plaintiff Jacques All Trades Corporation (Jacques) on the defendant Laverne Brown’s house. The city of Hartford is also a defendant because of its status as a stakeholder and its involvement with some of the contracts through the federal housing preservation loan program.

In the spring of 1988, Brown applied for a rehabilitation mortgage through Hartford’s federally funded housing preservation loan program. Hartford was the administrator of the program, acted as construction manager for approved projects and authorized progress payments. Hartford accepted Brown’s application for financing and solicited bids for the improvements. As a result, Jacques entered into contracts for $20,250 under the federal program for the improvements that Brown requested. Jacques also contracted directly with Brown for additional improvements that were not included under the federal program.

Although Hartford had a duty to administer the project as construction manager in connection with the housing rehabilitation loan program, it was not required to sign the agreements between Jacques and Brown for work that was to be performed by Jacques. These agreements were required to be signed only by Jacques and Brown.

When Jacques was not paid by either Brown or Hartford from loan funds it was holding on Brown’s behalf, it commenced an action against Brown for breach of contract and against Hartford for the release of the $20,150 that it held for Brown’s benefit. Brown counterclaimed that (1) the project was not completed in a workmanlike fashion, (2) the agreement for housing rehabilitation was invalid because it did not comply with the Home Improvement Act (act), General Statutes § 20-418 et seq., and (3) due to the resulting violation of the act, Jacques had committed unfair trade practices in violation of General Statutes § 42-110b of the Connecticut Unfair Trade Practices Act (CUTPA).

Following a second trial, the court rendered judgment for Jacques for the $20,150 being held by Hartford under the federal loan program.The court did not award the $8749 claimed by Jacques to be due in addition to the amount held by Hartford. From this judgment, Brown appealed and Jacques cross appealed. Hartford, as a stakeholder, did not take an active part in the appeal.

I

Brown first claims that the trial court improperly concluded that the municipal exemption contained in § 20-428 applied to the agreements between her and Jacques. We agree.

The purpose of the Home Improvement Act is to protect consumers from the unfair trade practices of home contractors. Caulkins v. Petrillo, 200 Conn. 713, 720, 513 A.2d 43 (1986). A contractor may not recover damages on a contract that does not comply with the act. Habetz v. Condon, 224 Conn. 231, 239, 618 A.2d 501 (1992); Barrett Builders v. Miller, 215 Conn. 316, 326-27, 576 A.2d 455 (1990).

The trial court found that the agreements did not comply with the act because they (1) did not contain the required notice of cancellation, (2) did not contain the required start and completion dates, and (3) did not contain the entire agreement of the parties. Because of this noncompliance, Jacques cannot recover unless the agreements fall under one the act’s exemptions.

The act does not apply to “[t]he government of the state, municipalities of the state or any department or agency of the state or such municipalities . . . .” (Emphasis added.) General Statutes § 20-428 (1). The trial court concluded that this municipal exemption applied in the present case. The predicate for this conclusion was the finding that because “for all practical purposes [Hartford] was afunctional and essential party to [the] agreement,” such “substantial municipal involvement” rendered the transaction exempt from the provisions of the act. We are not persuaded.

It is well established that “ ‘[t]he meaning to be given a statute is determined by legislative intent and that legislative intent must be determined by language actually used in the legislation.’ ” Broadley v. Board of Education, 229 Conn. 1, 6, 639 A.2d 502 (1994), quoting Eason v. Welfare Commissioner, 171 Conn. 630, 634, 370 A.2d 1082 (1976), cert. denied, 432 U.S. 907, 97 S. Ct. 2953, 53 L. Ed. 2d 1079 (1977). When the language used in a statute is plain and unambiguous, we will not look beyond the words themselves because we assume that the language expresses the legislative intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). We will not read into clearly expressed legislation provisions that are not expressed in its words. Greenwich v. Liquor Control Commission, 191 Conn. 528, 537, 469 A.2d 382 (1983).

The plain and unambiguous language of § 20-248 (1) exempts municipalities from the act because, by its terms, municipalities that enter into contracts are not required to comply with the act. The trial court extended this explicit language to include transactions in which persons or organizations were “for all practical purposes . . . functional and essential parties].” The effect of this construction, however, is to enlarge the scope of the section to exempt contractors who are engaged in transactions in which a municipality has become substantially involved. The plain meaning of the statute exempts only municipalities, not contractors. Despite Hartford’s substantial involvement in the agreements between Jacques and Brown, it did not sign the agreements and is not a party to them.

There has been no claim that the contract made directly between Brown and Jacques is exempt from the act. Accordingly, the trial court properly held that Jacques could not recover the $8749 allegedly owed by Brown directly.

Because the agreements are not exempt from the act, Jacques cannot recover the funds held by Hartford either. Accordingly, we reverse the award of $20,150 in favor of Jacques and affirm the denial of Jacques’ claim for an additional $8749 against Brown.

II

Brown next claims that the trial court improperly failed to award her damages on the portion of her counterclaim in which she alleged that Jacques had not completed the project in a workmanlike fashion. The trial court expressly found that “Brown has failed to prove her counterclaim that the plaintiff breached the contract.”

“In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). “The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses.” (Citations omitted; internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40, 632 A.2d 1134 (1993). The trial court in this case heard conflicting testimony on Brown’s damages and, on the basis of that testimony, found that Brown was not entitled to damages. We conclude that this factual determination was not clearly erroneous.

III

Brown next claims that the trial court failed to award her damages after concluding that Jacques violated CUTPA. “A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” (Citations omitted.) A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990).

Brown has satisfied the first threshold requirement because a violation of the act is deemed to be a CUTPA violation. General Statutes (Rev. to 1987) § 20-427 (b) (6), now § 20-427 (c) (2). Brown has failed, however, to satisfy the second threshold requirement. The trial court found that Brown had not proven any ascertainable losses as a consequence of Jacques’ CUTPA violation. We cannot reject this factual determination unless it is clearly erroneous. Metropolitan District v. Housing Authority, 12 Conn. App. 499, 510-11, 531 A.2d 194, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987). We conclude that the trial court properly found that Brown had not suffered any ascertainable damages.

IV

Brown next claims that the trial court improperly denied her motion for attorney’s fees and punitive damages without first conducting a hearing on that motion.

“The public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices. Hernandez v. Monterey Village Associates Limited Partnership, 17 Conn. App. 421, 425, 553 A.2d 617 (1989). In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorney’s fees and costs. Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22, 33, 521 S.2d 21 (1987) .... Once liability has been established under CUTPA, attorney’s fees and costs may be awarded at the discretion of the court. Ven Nguyen v. DaSilva, 10 Conn. App. 527, 530, 523 A.2d 1369 (1987).” Freeman v. Alamo Management Co., 24 Conn. App. 124, 133, 586 A.2d 619 (1991), rev’d on other grounds, 221 Conn. 674, 607 A.2d 370 (1992). We will not interfere with the trial court’s exercise of this discretion unless there is manifest abuse or injustice appears to have been done. Steiger v. J.S. Builders, Inc., 39 Conn. App. 32, 36, 663 A.2d 432 (1995); see General Statutes § 42-110g.

The award of attorney’s fees and punitive damages under CUTPA has some features not common to such awards in other types of cases. For example, the trial court is not precluded from exercising this discretion even if it finds that the plaintiff has not suffered ascertainable damages. Tillquist v. Ford Motor Credit Co., 714 F. Sup. 607 (D. Conn. 1989). Additionally, the amount of attorney’s fees that the trial court may award is based on the work reasonably performed by an attorney and not on the amount of recovery. General Statutes § 42-1 lOg (d).

Therefore, because the awarding of attorney’s fees and punitive damages is not determined by the amount of the award or the type of relief granted, there may be some evidence that is collateral or irrelevant to the merits of a claim of CUTPA violation or proof of damages, but nontheless may be relevant to proving whether attorney’s fees and punitive damages are warranted. This is such a case. Pursuant to a stipulation approved by the court, the parties specifically reserved the presentation of these issues for a separate proceeding, thus bifurcating the merits and attorney’s fees.

Because the parties specifically delayed the presentation of evidence concerning attorney’s fees until after the merits had been adjudicated and because Brown was then denied an opportunity to present this evidence, Brown is entitled to a hearing at which the trial court may exercise its discretion whether to award attorney’s fees and damages.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants on the complaint, as on file on the named defendant’s counterclaim, and for an evidentiary hearing on the issue of attorney’s fees.

In this opinion the other judges concurred.

       The case was initially tried and judgment was rendered on June 3,1992. The parties appealed, raising issues not relevant here. This court reversed and remanded for a new trial. Jacques All Trades Corp. v. Brown, 33 Conn. App. 294, 635 A.2d 839 (1993).

       General Statutes § 20-427 (c) (2) provides in pertinent part: “A violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.”

       “[Defense Counsel]: Your Honor, counsel for the plaintiff and I would like to address the court with regard to a stipulation. Both of us have claims for attorney’s fees in this case and we would like to stipulate with the court’s permission that the issue of attorney’s fees and interest is bifurcated from this proceeding, so that neither of us have to get involved with taking the stand and challenges to reasonableness of attorney’s fees, et cetera, and not be witnesses in this case. And that we reserve that for a separate proceeding depending upon how Your Honor rules in this case.
      “[Plaintiffs Counsel]: That’s a stipulation, Your Honor.
      “[Defense Counsel]: And I’ve discussed with city of Hartford’s counsel and . . .
      “[City of Hartford’s Counsel]: We have no objection.
      “[Defense Counsel]: They have no objection, Your Honor.
      “The Court: Okay. . . .”


author: LAVERY, J.

text:
    PATRICK CONETTA v. ZONING BOARD OF APPEALS OF THE CITY OF STAMFORD ET AL.
    (14620)
    Foti, Lavery and Heiinan, Js.
    Argued March 25
    officially released July 9, 1996

      Samuel J. Bernstein, for the appellants (defendants).

      Frank W. Livolsi, Jr., for the appellee (plaintiff).
   LAVERY, J.

The defendants appeal from the judgment of the trial court sustaining the plaintiffs appeal and reversing the decision of the Stamford zoning board of appeals (board) that the defendant’s plumbing business constituted a lawful nonconforming use. The controlling issue in this appeal is whether the trial court impermissibly substituted its factual findings for those of the board.

The facts are as follows. In March, 1993, the plaintiff, a neighbor of the defendant, complained to the Stamford zoning enforcement officer that the defendant was conducting an illegal plumbing business in a residential zone that prohibits commercial uses. After investigation, the zoning enforcement officer refused to issue a cease and desist order, finding that the plumbing business being conducted at the premises by the defendant was a continuation of a valid nonconforming use. The plaintiff, pursuant to statute, appealed the zoning enforcement officer’s ruling to the board.

At a public hearing, the plaintiff conceded that the defendant’s father purchased the property in May, 1950, prior to the enactment of the applicable zoning regulations, and began to build on the property later that year. The building was not completed until 1952. The defendant’s father owned the property from 1950 until his death in 1980, at which time it passed by will to his widow who, in turn, conveyed it to the defendant. At the time the defendant’s father purchased the property, he was working as a plumber. The plaintiff claimed before the board that the defendant’s plumbing business did not exist on the premises prior to November 30, 1951, or, in the alternative, that the nonconforming use was abandoned between 1981 and 1990, when it was illegally expanded.

The zoning enforcement officer testified before the board that he conducted an investigation upon receiving the plaintiffs complaint. He talked to the defendant and inspected the property. The officer also reviewed affidavits submitted by Gerald Pellegrino, Jerry Sessa and Nicoletta Sessa, which became part of the record before the board. Pellegrino, who identified himself as a cousin of the defendant, attested that the defendant’s father bought the vacant land in 1950 and immediately began using it for his plumbing business. Pellegrino stated that he knew that because he worked on the construction of the house with the defendant’s father. Jerry Sessa, the defendant’s uncle, stated that his brother bought the property in May, 1950, and immediately began using it for his plumbing business. The defendant’s mother stated that her husband bought the property in 1950 and immediately began using it for his plumbing business.

The defendant’s attorney told the board that two of the affiants were present and would testify that the defendant’s father used the property for the operation of his plumbing business prior to November 30, 1951. The defendant’s attorney stated that Pellegrino and Jerry Sessa would testily that during the construction of the house, pipes were strewn all over the ground, an area was set aside for parking the plumbing trucks and that “[a]ll during the time that this house was being constructed ... if you needed a certain piece of pipe, you would go out on the lawn and look around and kick some grass and there was some pipe and it was all over the place.”

The defendant’s next-door neighbor since 1956 was also available to testify at the hearing. The defendant’s attorney stated that the neighbor would testify that since 1956 the Sessa family had operated the plumbing business on the property. The defendant’s attorney also told the board that the defendant was present and that the board could question him. The defendant’s attorney also stated that when the defendant was in high school he became an apprentice with his father and that he had run the family business since that time.

The board upheld the decision of the zoning enforcement officer. In its decision, the board stated: “The board finds that the business has been in continuous operation since November 30, 1951. The board also finds that the business is confined to the garage and the trucks parked on the premises and therefore there has been no illegal expansion of this nonconforming use.” The plaintiff appealed to the Superior Court claiming that (1) the business did not exist at the location prior to the adoption of the zoning regulations so that no legal nonconforming use ever existed, (2) the addition of a four car garage that houses the plumbing business was an illegal expansión of a nonconforming use, and (3) the defendant abandoned the legally nonconforming use between 1985 and 1990 when the defendant operated his business from an entirely different location.

The trial court found that the board acted illegally, arbitrarily and in abuse of its discretion in affirming the zoning enforcement officer’s decision and concluded that the nonconforming use did not exist on the premises at the time of the adoption of zoning regulations on November 30, 1951. The trial court concluded from its examination of the record that the board knew that construction of the residence was not completed until 1952, that there was no telephone there until 1952 and that no reference exists in local business directories of a plumbing business at that location in November, 1951. The trial court held that the board abused its discretion because it was difficult to see how a vacant lot or one with a house under construction could be adapted or actually employed for a plumbing business. The trial court did not attach significance to the affidavits because the affiants did not offer evidence showing that the plumbing business had begun immediately or explaining how the business could be conducted from an empty lot.

In Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993), our Supreme Court held that a zoning board of appeals hears and decides an “appeal” de novo. The Caserta court stated: “Our case law further reinforces the de novo nature of the hearing conducted by the zoning board of appeals. It is the board’s responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1967); Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). In doing so, the board ‘is endowed with a liberal discretion . . . .’Id. Indeed, under appropriate circumstances, the board ‘may act upon facts which are known to it even though they are not produced at the hearing.’ Parsons v. Board of Zoning Appeals, 140 Conn. 290, 99 A.2d 149 (1953). The principal procedural limitations on the hearing are that ‘there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary or to be fairly apprised of the facts upon which the board is asked to act.’ Id., 293.” Id., 90.

“ ‘It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing ... as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.’ (Citation omitted.) Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 731-32, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989). The court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540, 525 A.2d 940 (1987). ‘[E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.’ ” Mobil Oil Corp. v. Zoning Board of Appeals, 35 Conn. App. 204, 209, 644 A.2d 401 (1994).

In this case, the board heard the report of the zoning enforcement officer and received the three affidavits on which the officer based his finding. Each of the affiants stated that the plumbing business was conducted on the premises since June, 1950. The attorney for the defendant told the board that from the date of the deed the property was used for the plumbing business, that two of the affiants to the affidavits were present and were prepared to testify that the property was used for the operation of the plumbing business, that pipes were strewn on the ground during the period that the building was being built, that the defendant’s father parked his trucks on the premises and that the plumbing business was being conducted on the premises prior to completion of the structure. The defendant’s attorney also stated that the defendant was present and that the board was free to question him. He stated that the defendant started as an apprentice to his father while in high school and that they continuously had run the plumbing business from the property.

“Proceedings before an administrative board are informal. Saporiti v. Zoning Board of Appeals, 137 Conn. 478, 482, 78 A.2d 741 [1951], Such a board is not bound by the strict rules of evidence. Adam v. Connecticut Medical Examining Board, 137 Conn. 535, 540, 79 A.2d 350 [1951]. It may act upon facts which are known to it even though they are not produced at the hearing. Jaffe v. State Department of Health, 135 Conn. 339, 349, 64 A.2d 330 [1949]; Mrowka v. Board of Zoning Appeals, 134 Conn. 149, 154, 55 A.2d 909 [1947], The only requirement is that the conduct of the hearing shall not violate the fundamentals of natural justice. That is, there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary or to be fairly apprised of the facts upon which the board is asked to act. Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8, 68 A.2d 152 [1949].” Parsons v. Board of Zoning Appeals, supra, 140 Conn. 292-93.

In Parsons, our Supreme Court held that the statement of the attorney is evidence that could be weighed and accepted as evidence in a hearing before a zoning board of appeals. In that case, the defendant’s attorney presented facts at the hearing before the board and in the presence of opposing counsel without objection. The plaintiffs attorney had ample opportunity to refute the facts and presented evidence contradicting the defendant’s presentation of the facts. The court found that, under the circumstances, the board was entitled to accept the statement in lieu of sworn testimony and to give to it such credence and weight as, in their minds, it merited. The facts in the statement, therefore, were properly before the board. Id., 293; see also Welch v. Zoning Board of Appeals, 158 Conn. 208, 212-13, 257 A.2d 795 (1969).

An examination of the record in this case satisfies us that the board, the plaintiff and the plaintiffs attorney had the opportunity to question the defendant and the two affiants who were present at the hearing. We conclude that the board had substantial evidence before it to reach the conclusion that it did. The board could reasonably have concluded, on the basis of the evidence before it, that the Sessa family plumbing business was in operation on the premises before the building was finished and before November 30,1951, when the Stamford zoning regulations were enacted.

The clear language of the zoning regulation at issue in this case provides for nonconforming uses of land and buildings. In this instance, the building permit for the premises was issued prior to the enactment of zoning, the construction of the building was commenced in 1950 and there was substantial evidence before the board that the plumbing business had been conducted since June, 1950, both on the land and on the premises while the structure was being built. The trial court impermissibly substituted its judgment for that of the board.

The plaintiff also claims that the language used by the board “that the business has been in continuous operation since November 30, 1951” demonstrates that the claimed nonconforming status must fail because the use did not exist prior to November 30, 1951. This argument is without merit. It is clear from the record of both the public hearings and the executive session that it was the board’s intent to find a legal nonconforming use. We will not hold lay administrative boards to the standard of legal finesse set by Justices Holmes and Cardozo.

The judgment is reversed and the case is remanded to the trial court for further proceedings to determine the remaining issues.

In this opinion the other judges concurred.

       The defendants in this appeal are the Stamford zoning board of appeals and Anthony Sessa. In this opinion, we refer to Anthony Sessa as the defendant.

       Article IV, § 10, of the Stamford zoning regulations provides: “Any building or use of land or building legally existing at the time of enactment of this regulation, or of any amendments thereto, or authorized lawful permit issued prior to the adoption of these regulations which does not conform to the provisions of these regulations for the Use Districts in which it is located, shall be designated a non-conforming use. Such use may be continued but may not be extended or expanded, or changed to a less restrictive use as listed in the LAND USE SCHEDULE IN APPENDIX A.” (Emphasis added.) The zoning regulations were adopted on November 30, 1951.

       In a footnote, the trial court stated that it specifically declined to analyze issues of the illegal expansion of alegal nonconforming use and the abandonment of a legal nonconforming use because of its determination that the use of the premises is illegal and does not constitute a legally nonconforming use.


author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. JAMES DECABA
    (14831)
    Dupont, C. J., and Schaller and Spallone, Js.
    Argued April 29
    officially released July 9, 1996

      Robert M. Berke, deputy assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, was Mary Galvin, state’s attorney, for the appellee (state).
   SPALLONE, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the fourth degree in violation of General Statutes § 53a-125. He claims on appeal that the trial court’s denial of his motion for a continuance to allow him to shower and shave before trial (1) was arbitrary and unreasonable, and constituted an abuse of discretion, (2) denied him the presumption of innocence, and (3) denied his due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

The record reflects that the defendant was incarcerated throughout the trial proceedings. The jury was selected on April 6, 1995, but the trial was postponed to April 25, 1995. On that date, out of the presence of the jury, defense counsel objected to proceeding with the trial on the grounds that, because the defendant had been placed in segregation for security reasons on the previous evening, he had not been permitted to shower or shave on the morning of trial. Counsel claimed that his client’s appearance was unsightly because he was not clean shaven and his hair looked “a little bit matted” on the back of his head. Counsel stated that “it looks like he slept on it.... He wish[es] to shave his old beard. . . . Although he did not elaborate this to me completely, I presume that he would like to look more clean shaven for a jury.”

Construing the defendant’s request as a motion for a continuance, the court closely scrutinized the defendant’s appearance. The trial court found that the defendant had a beard “of long standing,” that he had had the beard at the time of the voir dire, and, moreover, that the prosecutor also had facial hair. The trial court found that the defendant’s hair was not matted, that he had “not one hair out of place,” and that his hair looked “quite nice.” Finally, the court noted that the defendant was wearing a jacket, a light colored button-down shirt and a tie, and that he looked “neatly attired. ... He looks fine. It doesn’t look like he’s been in jail. I have absolutely no problem with his attire.” The defendant has not claimed that he was in prison garb, and it is clear from the transcript that he was not.

Noting that the jury had already been inconvenienced by postponement of the proceedings, the court further stated: “I see nothing wrong with the way he looks. I think this is a delaying tactic on your client’s part to stall this case to prevent this case from getting started today.” The court denied the motion for a continuance.

Appellate review of a trial court’s denial of a motion for a continuance is “ ‘governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion in matters of continuances.’ ” State v. Ortiz, 40 Conn. App. 374, 386, 671 A.2d 389 (1996), quoting State v. Hamilton, 228 Conn. 234, 250, 636 A.2d 760 (1994).

In the present case, the defendant stood before the trial court as it considered his motion. The trial court made factual findings as to the defendant’s appearance, it articulated its findings and, on the basis of those findings, denied the motion for a continuance. We cannot say that the court’s ruling was either arbitrary or unreasonable, or that it was an abuse of discretion. Moreover, the defendant has failed to demonstrate how he was prejudiced by the denial of the continuance. State v. Hamilton, supra, 228 Conn. 244.

The defendant also claims that the denial of a continuance implicated his constitutional rights to the presumption of innocence and due process. Here, the court’s specific findings as to the defendant’s appearance at trial indicate that the defendant was neatly attired and that he did not bear the stigma of incarceration that would prejudice a jury and infringe his right to either the presumption of innocence; Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126, reh. denied, 426 U.S. 954, 96 S. Ct. 3182, 49 L. Ed. 2d 1194 (1976); or due process. See State v. Glenn, 194 Conn. 483, 493, 481 A.2d 741 (1984). The defendant’s subjective feelings as to his appearance are of no consequence if objectively there is no substance to his claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       As the state indicates in its brief, the defendant’s brief provided no separate analysis under the Connecticut constitution. Accordingly, we choose not to review his state constitutional claims. State v. Ells, 39 Conn. App. 702, 667 A.2d 556 (1995), cert. denied, 235 Conn. 940, 669 A.2d 577 (1996).


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JOHN AHERN STATE OF CONNECTICUT v. LAWRENCE BROPHY STATE OF CONNECTICUT v. FRANK PERROTTI, JR. STATE OF CONNECTICUT v. THOMAS SANTA BARBARA
    (15809)
    Dupont, C. J., and Foti and Spear, Js.
    Considered May 22
    officially released June 27, 1996

      Susan C. Marks, supervisory assistant state’s attorney, in support of the motion.

       June 27, 1996, the date that this opinion was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   FOTI, J.

The defendants appeal from the denial of a motion to dismiss the charges against them on the grounds that each was denied his rights to a speedy trial and due process of law. The state asserts in its motion to dismiss the appeal that this court lacks subject matter jurisdiction because the order from which the defendants appeal is not a final judgment. We agree.

The defendants were arrested on June 11, 1991, and charged with several violations of the Connecticut Fire Safety Code. On April 7, 1995, the defendants jointly moved to dismiss the charges against them on the grounds that they were denied their rights to a speedy trial under General Statutes § 54-82m, the constitution of Connecticut, article first, § 8, and the sixth amendment to the United States constitution, and that they were denied their rights to due process of law under the fourteenth amendment to the United States constitution. The trial court denied the defendants’ motion and this joint appeal followed.

“[Ejxcept insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review . . . appellate jurisdiction is limited to final judgments of the trial court. . . . In a criminal proceeding, there is no final judgment until the imposition of a sentence. . . . The general rule is . . . that interlocutory orders in criminal cases are not immediately appealable.” (Citations omitted; internal quotation marks omitted.) State v. Garcia, 233 Conn. 44, 63, 658 A.2d 947 (1995).

The denial of a motion to dismiss based on speedy trial grounds is not immediately appealable. Id., citing United States v. MacDonald, 435 U.S. 850, 857, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978). In United States v. MacDonald, supra, 850, the respondent moved to dismiss the indictment on the ground that he was denied his right to a speedy trial under the sixth amendment to the United States constitution. The United States Supreme Court held that the denial of the respondent’s motion was “not final in the sense of terminating the criminal proceedings in the trial court.” Id., 857. Further, the court noted that “[t]he order sought to be appealed in this case may not accurately be described, in the sense that the description has been employed, as involving an important right which would be lost, probably irreparably, if review had to await final judgment.” (Internal quotation marks omitted.) Id., 860.

The United States Supreme Court’s analysis, when applied to our test for the appealability of interlocutory orders enunciated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), leads to the same conclusion. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id.

The denial of the defendants’ motion to dismiss on speedy trial and due process of law grounds did not terminate the criminal proceeding because the trial has not yet occurred. Nor does the denial of the motion to dismiss conclude the defendants’ rights so that further proceedings cannot affect them because, if the defendants are convicted and sentenced, they could appeal and, at that time, raise the issue of the denial of their motion to dismiss. See State v. Mooney, 218 Conn. 85, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 40 Conn. App. 483, 671 A.2d 1316 (1996). If, after the defendants are found guilty at trial, an appellate court concludes that the convictions cannot stand as a result of the violation of the defendants’ rights to a speedy trial and due process of law, that court could set aside the convictions and remand the cases to the trial court with direction to grant the defendants’ motion to dismiss the charges. Because the defendants’ rights could be vindicated upon appeal from the final judgment in each case, immediate appellate review is not necessary to prevent the loss of the rights involved. State v. Curcio, supra, 191 Conn. 34.

The rights to a speedy trial and to due process of law are distinguishable from the right to be free from double jeopardy. The denial of a motion to dismiss on double jeopardy grounds is immediately appealable. This is so because the constitutional right to protection against double j eopardy “not only protects against being twice punished but also ‘is a guarantee against being twice put to trial for the same offense.’ (Emphasis in original.) Abney v. United States, 431 U.S. 651, 661, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977).” In re Juvenile Appeal (85-AB), 195 Conn. 303, 308-309, 488 A.2d 778 (1985).

Our Supreme Court has “been disinclined ... to extend the privilege of an interlocutory appeal in criminal cases beyond the double jeopardy circumstance. This reluctance stems principally from [the] concern that to allow such appeals would greatly delay the orderly progress of criminal prosecutions in the trial court . . . .” Id, 309. The denial of the defendants’ motion to dismiss on speedy trial and due process of law grounds is not final for the purposes of appeal.

The motion to dismiss the appeal is granted.

In this opinion the other judges concurred.

       The defendants own property under a general partnership.