author: CRETELLA, J.

text:
    DENNIS RAFFERTY ET AL. v. NOTO BROTHERS CONSTRUCTION, LLC, ET AL.
    (AC 21131)
    Foti, Schaller and Cretella, Js.
    Argued September 18, 2001
    officially released March 26, 2002

      MichaelS. McKenna, for the appellants (defendants).

      Christopher P. Norris, with whom was William, R. Donaldson, for the appellees (plaintiffs).
   Opinion

CRETELLA, J.

The defendants, Noto Brothers Construction, LLC, and Anthony Noto and Heidi Noto, appeal from the order of the trial court granting the application for a prejudgment remedy filed by the plaintiffs, Dennis Rafferty and Eugenia Rafferty. The defendants claim that the court improperly (1) permitted the plaintiffs to proceed on an application for a prejudgment remedy that failed to comply with the prejudgment remedy statutes, General Statutes § 52-278a et seq., in that it failed to set forth the amount of the remedy requested as required by General Statutes § 52-278c (b), (2) refused to consider any potential counterclaim to be asserted by the defendants when acting on the plaintiffs’ application and (3) issued an order of attachment that failed to comply with General Statutes § 52-278d. We agree in part and reverse the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the defendants’ appeal. On or about April 24,1999, the parties entered into a written contract for the purchase of certain real estate in New Milford and for the construction of a single-family dwelling to be built thereon at a total cost of $209,900. Pursuant to the contract, the plaintiffs paid to the defendants a binder and deposit in the amount of $21,000. In October, 1999, the parties also contracted for the purchase and sale of an additional adjacent lot.

As the result of a subsequent dispute concerning modifications to the original construction contract, the defendants notified the plaintiffs that they were terminating both contracts. In response, the plaintiffs filed a breach of contract action requesting specific performance, damages and injunctive relief. Sometime after the plaintiffs had commenced their action, they filed an application for a prejudgment remedy, which is the subject of this appeal.

As originally drafted and submitted to the court, the application for the prejudgment remedy requested that the court order the defendants to vacate the contested property pending the outcome of the litigation. The court, recognizing that injunctive relief can not be granted within the purview of the prejudgment remedy statutes, allowed the plaintiffs to orally amend their request for relief at the prejudgment remedy hearing and to seek an order of attachment. Following the hearing, the court issued an order requiring the defendants to place the plaintiffs’ initial deposit of $21,000 into an escrow account pending the outcome of the litigation. The court further ordered that the monthly rent being received by the defendants from the third party tenant also be placed into that escrow account. This appeal followed.

I

The first claim that the defendants raise is that the court improperly permitted the plaintiffs to proceed on an application for a prejudgment remedy that failed to set forth the amount of the remedy sought. We disagree.

The plaintiffs concede that they did not specify the amount of damages sought in their initial application for a prejudgment remedy, but rather, at the invitation of the court, referred the court to the damages alleged in their complaint. Thus, in considering the defendants’ claim, we must determine whether the court was authorized to modify the plaintiffs’ application such that the requested relief would satisfy the procedural requirements of § 52-278d.

“Appellate review of a trial court’s broad discretion to deny or grant a prejudgment remedy is limited to a determination of whether the trial court’s rulings constituted clear error.” State v. Ham, 253 Conn. 566, 568, 755 A.2d 176 (2000).

General Statutes § 52-278d (a) provides in relevant part that a hearing on a prejudgment remedy “shall be limited to a determination of (1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff .... If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs . . . finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiffs favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or modified by the court. ...”

The defendants’ objection to the propriety of the court’s action is not persuasive. Section 52-278d explicitly provides that an application for a prejudgment remedy may be granted as requested or as modified by the court. All the parties were before the court and were prepared to proceed on the application as originally submitted. The defendants were on notice as to the damages claims being asserted against them, as those claims were taken directly from the complaint, which previously had been served on them. The defendants did not object to going forward on the amended application and were sufficiently prepared for the hearing as carried out such that they were able to assert, albeit unsuccessfully, a proposed counterclaim as a defense to the application. We conclude, therefore, that it was not an abuse of the court’s discretion to allow the plaintiffs to orally amend their application and to entertain the amended application at the prejudgment remedy hearing. See Haxhi v. Moss, 25 Conn. App. 16, 17 n.1, 591 A.2d 1275 (1991) (defendant allowed orally to amend motion to dissolve prejudgment attachment after hearing to seek, in alternative, modification of attachment).

II

The defendants’ next claim is that the court improperly failed to comply with § 52-278d when it refused to consider the defendants’ potential counterclaim during the prejudgment remedy hearing. The defendants had argued, both in their written opposition to the plaintiffs’ application for the prejudgment remedy and in the hearing on that application, that they intended to raise counterclaims in the main action. The court, however, refused to consider evidence relating to the potential counterclaims because the defendants had not actually filed the counterclaims at the time of the hearing on the prejudgment remedy. We agree with the defendants that the court should have considered the potential counterclaims.

The defendants’ claim requires us to determine the scope of the requirement in § 52-278d that a court shall consider counterclaims during a hearing on an application for a prejudgment remedy. Because the issue is one of statutory construction, our review is plenary. “In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation . . . .” (Internal quotation marks omitted.) State v. Gibbs, 254 Conn. 578, 601-602, 758 A.2d 327 (2000). “In applying [the principles of statutory construction], we keep in mind that the legislature is presumed to have intended a reasonable [and] just . . . result.” Gelinas v. West Hartford, 65 Conn. App. 265, 276, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).

Section 52-278d explicitly directs the trial court to take into account any counterclaims raised by a party in determining whether there is probable cause that a judgment in the amount sought by the applicant will be rendered. The statute provides in relevant part that the probable cause finding made during a prejudgment remedy hearing and any resulting order shall be made “upon consideration of the facts before [the court] and taking into account any defenses, counterclaims or set-offs . . . .” (Emphasis added.) General Statutes § 52-278d (a). We note the absence of any qualifying language that would condition a court’s obligation to do so on the manner in which the counterclaim has been raised.

The other sections of the prejudgment remedy statutes support a broad interpretation of the mandate in § 52-278d. General Statutes § 52-278c (e), prescribing the documents to be submitted to the court in connection with an application for a prejudgment remedy, contains the following language to be included in an accompanying notice and claim form: “YOU HAVE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES . . . THAT YOU MAY WISH TO EXERCISE CONCERNING THIS APPLICATION FOR A PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE THE RIGHT TO A HEARING: (1) TO OBJECT TO THE PROPOSED PREJUDGMENT REMEDY BECAUSE YOU HAVE A DEFENSE TO OR SET-OFF AGAINST THE ACTION OR A COUNTERCLAIM AGAINST THE PLAINTIFF . . . .” General Statutes § 52-278c (g), which sets forth the procedure for contesting an application for a prejudgment remedy, provides in relevant part: “A defendant may request a hearing to contest the application for a prejudgment remedy, assert any exemption or make a request concerning the posting or substitution of a bond. The hearing may be requested by any proper motion or by return to the Superior Court of a signed claim form that indicates, by the checking of the appropriate box on the claim form, whether the claim is an assertion of a defense, counterclaim, set-off or exemption . . .

It also is instructive to compare the language of §§ 52-278c and 52-278d with that of General Statutes § 52-278e, which permits an applicant to petition the court for the issuance of a prejudgment remedy without a hearing. Section 52-278e provides in relevant part that the plaintiff must file an affidavit “setting forth a statement of facts sufficient to show that there is probable cause that a judgment in the amount of the prejudgment remedy sought . . . taking into account any known defenses, counterclaims or set-offs will be rendered in the matter in favor of the plaintiff . . . .” (Emphasis added.) The distinction raised in § 52-278e, requiring merely that known counterclaims be addressed in the absence of a hearing, strongly suggests that where a hearing is provided, a defendant may raise its counterclaim for the first time in that forum.

The legislative history of the prejudgment remedy statutes also supports that conclusion. Connecticut’s prejudgment remedy statutes were adopted in response to aline of United States Supreme Court cases prescribing the standards of procedural due process in the area of property rights, foremost among them the opportunity to be heard at a meaningful time and in a meaningful manner. Roundhouse Construction Corp. v. Telesco Masons Supplies Co., 168 Conn. 371, 377-78, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), aff'd on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); 16 H.R. Proc., Pt. 12, 1973 Sess., pp. 5834-42. The statutes were enacted in response to the constitutional requirements set forth in those cases by providing for notice to the debtor and for a hearing prior to any attachment of property. 16 H.R. Proc., supra, pp. 5834-42.

In 1993, the legislature adopted the law revision commission’s recommendations that language directing the court to consider defenses, counterclaims and setoffs be included in the prejudgment remedy statutes. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 11, 1993 Sess., pp. 3821-28, testimony of David L. Hemond, chief attorney, law revision commission, in favor of House Bill No. 7329, No. 93-431 of the 1993 Public Acts, “An Act Concerning Prejudgment Remedies,” April 22, 1993. As a consequence, several sections of the prejudgment remedy statutes were amended to require trial courts to consider defenses, counterclaims and setoffs in making probable cause determinations. On their face, those changes reflect a new emphasis on ensuring that the size of the prejudgment remedy is proportionate to the actual damages that the plaintiff is likely to recover. In adopting the amendments, the legislature recognized that the typical prejudgment remedy application often is made at a preliminary stage of litigation before the complaint is even served on the defendant. See 36 H.R. Proc., Pt. 31, 1993 Sess., pp. 11,219-31, remarks of Representative Richard D. Tulisano. Accordingly, we find it likely that the legislature anticipated that the hearing itself would serve as a forum in which the defendant could raise defenses related to the prejudgment remedy.

We conclude that the position of the court, i.e., that it can consider only a well pleaded counterclaim, does not conform to the legislative amendment of the prejudgment remedy statutes to include language that any counterclaims should be considered. Accordingly, we agree that the court improperly refused to consider the potential counterclaim asserted by the defendants.

Ill

The defendants’ last claim is that the prejudgment remedy ordered by the court was improper because it lacked the specificity required by § 52-278d. We agree.

We have held that in an application for a prejudgment remedy, the amount of damages need not be determined with mathematical precision. Burkert v. Petrol Plus of Naugatuck, Inc., 5 Conn. App. 296, 301, 497 A.2d 1027 (1985). A “ ‘fair and reasonable estimate’ ” of the likely potential damages is sufficient to support the entry of a prejudgment attachment. Id. Nevertheless, the plaintiff bears the burden of presenting “evidence which affords a reasonable basis for measuring her loss.” (Internal quotation marks omitted.) Spera v. Audiotape Corp., 1 Conn. App. 629, 633, 474 A.2d 481 (1984); see Ledgebrook Condominium Assn., Inc. v. Lusk Corp., 172 Conn. 577, 584-86, 376 A.2d 60 (1977).

During the hearing, the plaintiffs referred the court to their complaint in support of their claim for damages. The plaintiffs based their claim for a prejudgment attachment on (1) the difference between the contract price and the current value of the property, (2) the increase in the cost of funds since the original loan commitment had been obtained, (3) attorney’s fees and litigation costs, and (4) the moneys expended to move and to store the plaintiffs’ personal belongings.

Despite the evidence presented at the hearing, the court did not make a finding of probable damages. Such a finding is an integral part of the probable cause determination. See Ledgebrook Condominium Assn., Inc. v. Lusk Corp., supra, 172 Conn. 584-86. Section 52-278d permits an applicant to seek either an attachment of sufficient property or a garnishment to secure a specified sum and authorizes the court to order such attachment only as is necessary to secure that sum. Thus, the prejudgment remedy must correspondió the applicant’s estimated damages. Here, the court ordered an attachment of rental income that had no fixed monetary value assigned to it and potentially is unlimited as to the time during which attached assets can continue to accumulate in the escrow account. Because the court failed to specify the sum to be secured, we conclude that the prejudgment remedy entered by the court was beyond the scope authorized by § 52-278d and was, therefore, improper.

The judgment is reversed and the case is remanded with direction to vacate the order granting the plaintiffs’ application for a prejudgment remedy and for further proceedings as may be required.

In this opinion the other judges concurred.

       At the time that the plaintiffs filed their application, they believed that the defendants themselves were occupying the premises. Prior to the hearing on their application, they learned that the house was being rented to a third party.

        See Rhode Island Hospital Trust National Bank v. Trust, 25 Conn. App. 28, 592 A.2d 417 (holding that relief expressly limited to four categories enumerated in General Statutes § 52-278a [d], i.e., attachment, foreign attachment, garnishment, replevin), cert. granted, 220 Conn. 904, 593 A.2d 970 (1991) (appeal withdrawn July 10, 1992).

       See Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). Although subsequent cases have held that a hearing prior to the entry of a prejudgment remedy is not an absolute necessity, the opportunity to be heard at a meaningful time and in a meaningful maimer remains a fundamental principle of due process that may not be dispensed with. See Roundhouse Construction Corp. v. Telesco Masons Supplies Co., 168 Conn. 371, 377-78, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), aff'd on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976).

       We also note that as a result of that concern, the 1993 amendments substituted a finding of probable cause that judgment will at least be in the amount sought in the application and that the remedy should be granted for a finding of probable cause merely to sustain the validity of the plaintiffs claim. See General Statutes §§ 52-278c, 52-278d.

       Indeed, the court went beyond merely ordering the escrow of a specific monthly sum for an indeterminate length of time. Instead, the court ordered that the monthly rental payments, “whatever the amount,” be escrowed. The court specifically stated (hat its order encompassed any increases in rent that might occur.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT L. HAIR
    (AC 21407)
    Lavery, C. J., and Schaller and Flynn, Js.
    Argued October 29, 2001
    officially released March 26, 2002

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Robert L. Hair, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1999) § 53a-217c and an enhanced sentence pursuant to General Statutes § 53-202k. On appeal, the defendant claims that the trial court (1) abused its discretion in denying his motion to sever the murder charge from the remaining charges against him and (2) improperly instructed the jury regarding the charge of criminal possession of a pistol or revolver. We affirm, in part, and reverse, in part, the judgment of the trial court.

The jury reasonably could have found the following facts. On March 6, 1999, the defendant and the victim, Shawn Jeffries, had an altercation in a parking lot near the victim’s apartment. A neighbor observed the victim pushing the defendant into a utility box. The victim returned to his apartment upset. The victim’s fiancee, Ebony Harper, went outside to find out from the defendant why the victim was upset. Soon thereafter, the victim went outside to join Harper, who had just approached the defendant. As the victim reached Harper’s side, the defendant shot the victim twice. The defendant ran to a white vehicle and drove away. The victim died soon thereafter. A .45 caliber bullet and spent casing were found at the scene.

Three days later, the defendant was arrested in a friend’s apartment. During a search of the apartment, the police found a nine millimeter handgun in a closet. The defendant admitted that the handgun was his and that he had purchased it for his protection two days after the shooting because he was warned that people were after him.

The defendant initially was charged with (1) murder in violation of §§ 53a-54a (a) and 53-202k, (2) criminal possession of a firearm in violation of General Statutes (Rev. to 1999) § 53a-217 and (3) illegal alteration of a firearm identification mark in violation of General Statutes § 29-36. Prior to trial, the defendant filed a motion to sever the murder charge from the weapons charges on the ground that the weapons charges were unrelated to the murder charge and that a single trial on all three charges would substantially prejudice his right to a fair trial on the murder charge. The court denied the motion, concluding that there could be a connection between the homicide and the arrest that resulted in the weapons charges, and that it was not confusing for the jury to view them as two separate events. See footnote 5.

The defendant subsequently stipulated that previously he had been convicted of forgery in the second degree, a class D felony. An amended information was filed, which omitted the third charge regarding the illegal alteration of a firearm identification mark in violation of § 29-36. The court informed the jury of the stipulation regarding the previous conviction and that the third charge had been withdrawn. The court in its jury instructions twice cautioned the jury that the use of the defendant’s prior forgery conviction had a limited purpose with respect to the charge of criminal possession of a pistol or revolver. The court further instructed the jury to consider the counts separately. The jury convicted the defendant on both counts. The court sentenced the defendant to a term of forty years on the murder count and five years on the second count to run concurrently with the first count. The court further ordered that the defendant’s sentence on the first count be enhanced by five years for having committed a class A, B or C felony with a firearm. The defendant received a total effective sentence of forty-five years. This appeal followed. Additional facts will be provided as necessary.

I

The defendant claims that the court abused its discretion in denying his motion to sever the charge of murder from the charges of criminal possession of a pistol or revolver and illegal alteration of the serial number of a firearm because the joinder substantially prejudiced him in violation of his right to a fair trial. The defendant argues that the state’s presentation of evidence did not prevent jury confusion, and that he was substantially prejudiced because the jury confused the evidence of the nine millimeter handgun and its oversized cartridge and bullets with the evidence pertaining to the murder charge in finding him guilty of murder, and in determining the number and nature of the charged crimes. We do not agree.

Our standard of review of the denial of a motion to sever is whether there was an abuse of discretion. “Our rules of practice allow a trial court to order, sua sponte or upon motion of the defendant, a separate trial of two offenses if it appears that the defendant is prejudiced by the joinder of the offenses. See Practice Book § 41-18 . . . .” State v. Davis, 51 Conn. App. 171, 180, 721 A.2d 146 (1998). “The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Delgado, 243 Conn. 523, 532-33, 707 A.2d 1 (1998).

We conclude that the defendant failed to show that he was substantially prejudiced because the charges were tried together. The murder charge and the weapons possession charge involved discrete and easily distinguishable factual scenarios. Although related to the defendant’s arrest in connection with the murder charge, the weapons possession charge arose as a result of an incident that occurred three days after the murder. Furthermore, the weapon relating to the possession charge was not the weapon used in the murder. With regard to the factor concerning a violent crime or brutal or shocking conduct, we conclude that neither of the crimes was brutal or shocking to the extent that severance was warranted. See, e.g., id., 534-35 (concluding that even though injuries that resulted in death were shocking, no serious prejudice occurred when court refused to sever charge of manslaughter from charge of risk of injury to child). Moreover, the five day trial in this case involving two charges was not so long or complex that the jury was likely to be confused. See, e.g., State v. Banks, 59 Conn. App. 112, 124, 755 A.2d 951 (concluding that six day trial involving two incidents not so long or complex that jury was confused), cert. denied, 254 Conn. 950, 762 A.2d 904 (2000).

The defendant further argues that the court improperly denied his motion to sever because the introduction of his prior felony conviction for purposes of the weapons charge was prejudicial with regard to the murder charge. Specifically, the defendant argues that the jury found his claim of self-defense as to the murder charge unbelievable because the fact that he was a convicted felon who possessed a nine millimeter handgun led the jury to find that he was a bad person. Moreover, he argues that the nature of the prior felony conviction, forgery in the second degree, led the jury to believe that he was not worthy of belief with regard to his claim of self-defense. We do not agree.

When analyzing whether a defendant was prejudiced by the introduction of evidence of prior convictions for the purpose of establishing the elements of a violation of § 53a-217c, we note that in State v. Abraham, 64 Conn. App. 384, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001), we applied the factors set forth in State v. Banta, 15 Conn. App. 161, 170-71, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988): “(1) the manner in which the evidence entered the case and the extent of the jury’s knowledge of the facts underlying the prior felony conviction, (2) the adequacy of any cautionary instructions given by the court, (3) the use of the prior felony evidence by the prosecution in argument to the jury, (4) the likelihood that the prior felony conviction evidence will inflame the passions of the jurors in light of the nature of the offenses charged and (5) the strength of the evidence against the defendant.” (Internal quotation marks omitted.) State v. Abraham, supra, 398-99.

The record and transcripts in this case lead us to conclude that the introduction of evidence of the defendant’s prior conviction did not prejudice him, nor did it deprive him of a fair trial. Because the defendant admits that the first and third Banta factors favor affirming the court’s denial of the motion to sever, we limit our discussion to the second, fourth and fifth factors. The cautionary instructions given by the court were adequate to prevent prejudice on the part of the jury that could result from the jury’s knowledge of the defendant’s past conviction. The court cautioned the jury to use its knowledge of the prior conviction for the limited purpose of satisfying that element of the weapons possession charge after the state raised the issue. Later, the jury requested a written copy of the instruction on the weapons possession count. A court may, in its discretion, submit a copy or tape recording of the jury instructions. Practice Book § 42-23 (b) (3). The court instead reread the instruction on the weapons possession count and again cautioned the jury about the limited use of the prior conviction in accordance with Practice Book § 42-27. There was little likelihood that the prior felony conviction evidence inflamed the passions of the jury in light of the nature of the offenses charged. The prior felony conviction was for forgery, a crime unlike the pending charges of murder and weapons possession. The prior conviction of forgery may have been similar in nature to the third charge of illegal alteration of a firearm identification mark, but when the state withdrew the third charge, the likelihood, if there was any, that the passions of the jury would be inflamed was significantly reduced. Finally, the strength of the evidence against the defendant was sufficient for a guilty verdict. We conclude, therefore, that the defendant was not prejudiced and that the court did not abuse its discretion when it denied his motion to sever.

II

The defendant claims that he was denied his right to due process and a fair trial when the court improperly instructed the jury regarding the charge of criminal possession of a pistol or revolver. Specifically, the defendant argues that the court improperly instructed the jury on the elements of criminal possession of a firearm pursuant to § 53a-217, rather than on the elements of the charged crime, possession of a pistol or revolver in violation of § 53a-217c. He argues that there was insufficient evidence to convict him of violating § 53a-217, the statute on which the court instructed the jury, because he did not satisfy the prior felony conviction element contained in § 53a-217. He argues that the jury, therefore, improperly found him guilty of a crime on which the jury was not instructed, that is § 53a-217c.

The following additional facts are necessary for a resolution of the defendant’s claim. The state’s amended information charged the defendant with “criminal possession of a firearm” in violation of § 53a-217c. The court, however, instructed the jury that the defendant was charged with criminal possession of a firearm in violation of § 53a-217, which requires that he previously had been convicted of one of certain enumerated felonies so as to satisfy that statute’s prior conviction element. The defendant’s prior conviction of forgery in the second degree is not an enumerated felony that satisfies the prior conviction element of § 53a-217, but is a prior conviction that satisfies the prior conviction element of § 53a-217c. The jury found the defendant guilty.

The defendant failed to object to the jury instructions or to seek a judgment of acquittal following the jury’s guilty verdict. He seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine. Pursuant to Practice Book § 60-5, this “court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . . The court may in the interests of justice notice plain error . . . .” We recently restated that “[t]o prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 243-44, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001). We review the defendant’s claim under the plain error doctrine.

“We begin by noting that an improper jury instruction as to an essential element of the crime charged may result in the violation of the defendant’s due process right to a fair trial, and thus require the reversal of a conviction based upon that instruction. . . . When reviewing the challenged jury instruction, however, we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Citations omitted; internal quotation marks omitted.) State v. Leroy, 232 Conn. 1, 7-8, 653 A.2d 161 (1995).

We conclude that it was plain error for the court to instruct the jury on an offense with which the defendant was not charged and then to accept the jury’s guilty verdict on an offense as to which the jury had not been instructed. The court’s instructions were not correct in law. The defendant was charged with a violation of § 53a-217c, but the court instructed the jury on § 53a-217. Although §§ 53a-217 and 53a-217c are similar, there are significant differences between them. Different definitions of “firearm” and “pistol or revolver” were intended by the legislature. State v. Banks, supra, 59 Conn. App. 130-32 (concluding that definition of “firearm” requires that it be operable whereas definition of “pistol or revolver” does not). Furthermore, although §§ 53a-217 and 53a-217c are both class D felonies, two years of the sentence imposed under § 53a-217 may not be suspended or reduced by the court. To treat §§ 53a-217 and 53a-217c as though they were interchangeable would undermine the established principle that “[n]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . .” (Internal quotation marks omitted.) Id., 131. Moreover, the court instructed the jury that the parties had stipulated that the prior conviction element was satisfied. The parties, however, did not stipulate that the prior forgery conviction satisfied the prior conviction element of § 53a-217. Rather, they stipulated that the prior conviction element of § 53a-217c was satisfied. We conclude that the claimed improper instruction is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. To allow a jury to convict the defendant for a crime as to which the jury was not instructed would undermine the fairness and integrity of and public confidence in the judicial proceedings.

The judgment is reversed with respect to the conviction of possession of a pistol or revolver in violation of § 53a-217c and the case is remanded for a new trial. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       Although the state’s amended information identified the charge as “criminal possession of a firearm,” the proper title of General Statutes (Rev. to 1999) § 53a-217c is “Criminal possession of a pistol or revolver.”
      General Statutes (Rev. to 1999) § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when he possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony . . . .”

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       In the defendant’s motion to sever, he argued that the gun seizure took place nearly three days after the alleged murder. In addition, the defendant argued that the gun was seized at a different location from where the alleged murder occurred. Furthermore, he argued that the seized gun was not the gun that was used to commit the murder alleged in count one of the information. The defendant argued, therefore, that the failure to sever the weapons charges from the murder charge would substantially prejudice his right to a fair trial.
      The court denied the defendant’s motion to sever after considering State v. Banta, 15 Conn. App. 161, 166-72, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988), and the five factors outlined in State v. Carpenter, 19 Conn. App. 48, 62-63, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). The court found that there could have been a connection between the alleged murder and the circumstances surrounding the arrest three days later, which brought about the weapons charges, and that there were easily distinguishable factual scenarios between the different counts. The court, therefore, concluded that combining the charges would not be confusing to the jury. Furthermore, the court determined that denying the motion to sever would expedite the trial proceedings and foster economy of judicial resources because a substantial portion of the facts was the same.

       The corut instructed the jury regarding the weapons possession charge in relevant part: “So you have the three—the three elements of the crime, each of which must be proven beyond a reasonable doubt, and that third element about the conviction had been agreed to and stipulated by counsel and need not to have been proven independently.”
      After the jury was excused, the state suggested clarification regarding the limited use of the stipulation concerning the past conviction. Thereafter, the court instructed the jury, stating: “As you recall, I indicated to you that by stipulation, the parties had agreed that the element of a conviction for the possession of a firearm had been stipulated and agreed between the parties, forgery in the second degree. You are to consider that solely for that purpose and for no other purpose in the case. Solely for meeting the element of that particular crime.”

       The parties further stipulated that if the defendant was convicted of murder or any lesser included offense, the requirements of General Statutes § 53-202k for the purpose of sentence enhancement would be satisfied.

       The title of General Statutes (Rev. to 1999) § 53a-217c is “Criminal possession of a pistol or revolver,” not criminal possession of a firearm. See footnote 2.

       General Statutes (Rev. to 1999) § 53a-217 provides in relevant part: “A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and (1) has been convicted of a capital felony, a class A felony, except a conviction under section 53a-196a, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196b, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216 . . . .”

       The court instructed the jury as follows: “The second count of the information is criminal possession of a firearm. The defendant is charged with criminal possession of a firearm in violation of § 53a-217 of our Connecticut statutes, which, in pertinent part, provides as follows: A person is guilty of criminal possession of a firearm when he possesses a firearm and has been convicted of certain enumerated felonies. For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. One, that the defendant possessed a firearm, two, that the firearm was operable, meaning it was capable of being discharged at the time of the alleged possession and, three, at the time he possessed the firearm, the defendant had previously been convicted of one of the enumerated felonies. . . . Convicted, the parties stipulated that the defendant in this action, uh, had been convicted of one of the statutes enumerated for this statute to become operative. So you have the three—the three elements of the crime, each of which must be proven beyond a reasonable doubt, and that third element about the conviction had been agreed to and stipulated by counsel and need not to have been proven independently.” (Emphasis added.)

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

       The state argues that the incorrect instruction was harmless. The state argues that the only relevant difference between possession of a firearm in violation of General Statutes (Rev. to 1999) § 53a-217, the crime as to which the court instructed the jury, and General Statutes (Rev. to 1999) § 53a-217c, is that the former restricts eligible felonies to those enumerated in the statute. Proof of possession of a pistol or revolver in violation of § 53a-217c, Hie crime charged in the amended information, is unrestricted in that it is satisfied by proof of any prior felony conviction. The state argues that this distinction is without significance in the present case because the defendant’s prior forgery conviction manifestly satisfies § 53a-217c and, despite the mistake made by the court in its charge, that is the provision with which the defendant was charged, convicted and sentenced. Not every case requires a harmless error analysis to determine if the plain error involved requires reversal. State v. Hedman, 62 Conn. App. 403, 412, 772 A.2d 603, cert. granted on other grounds, 256 Conn. 909, 772 A.2d 602 (2001). For example, a court’s failure to give a jury a “no adverse inference” instruction pursuant to General Statutes § 54-84 (b) is plain error and is not subject to harmless error analysis because the omission can never be harmless. State v. Suplicki, 33 Conn. App. 126, 130, 634 A.2d 1179 (1993), cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994). Here, the court failed to instruct the jury on § 53a-217c, the crime charged. Rather, the court instructed the jury on § 53a-217. We note that the court’s failure to instruct on § 53a-217c, the crime charged, is plain error that is not subject to harmless error analysis.

       General Statutes § 53a-3 (19), which applies to § 53a-217, defines “firearm” as “any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .”

       General Statutes § 29-27, which applies to § 53a-217c, defines the term “pistol or revolver” as “any firearm having a barrel less than twelve inches in length.”


author: DRANGINIS, J.

text:
    ENIA DOUGLAS-MELLERS ET AL. v. WINDSOR INSURANCE COMPANY
    (AC 22478)
    Lavery, C. J., and Mihalakos and Dranginis, Js.

      Considered January 16
    officially released March 26, 2002

      Andrew H. Sharp, in support of the motion.

      James O. Gaston, in opposition.
   Opinion

DRANGINIS, J.

The plaintiffs appeal from the trial court’s order sustaining the defendant’s objection to the acceptance of the attorney trial referee’s report and revoking the reference to the referee. The defendant has filed a motion to dismiss the appeal on the ground that the order is not an appealable final judgment. We agree that the appeal is premature and grant the defendant’s motion to dismiss.

On April 6,1998, the plaintiffs, Enia Douglas-Mellers, Cynthia Reynolds and Sasha Hart, were involved in an automobile accident while driving in a vehicle insured by the defendant, Windsor Insurance Company. The plaintiffs brought this action against the defendant seeking damages under the uninsured motorist provisions of the insurance policy. The court referred the matter to an attorney trial referee, Dominick J. Rutigliano, who tried the case on June 22 and July 23, 2001. On August 8, 2001, the attorney trial referee filed a report with the court, along with a recommendation of an award of damages for the plaintiffs. The defendant filed an objection to the acceptance of the report on August 24,2001. On September 5, 2001, the court sustained the defendant’s objection, revoked the reference to the attorney trial referee and ordered the matter to be placed on the court trial list. The plaintiffs subsequently filed motions for articulation and for reargument, which the court granted. On October 22, 2001, after reargument, the court sustained its previous ruling on the defendant’s objection to the report.

On November 9, 2001, the plaintiffs filed an appeal from the court’s order rejecting the attorney trial referee’s report and revoking the reference to the referee. The defendant subsequently filed a motion to dismiss the appeal for lack of a final judgment. The sole issue now before us is whether an order of the trial court revoking the reference to an attorney trial referee and leaving the case to be disposed of in the trial court can be immediately appealed.

As a preliminary matter, we must first examine the procedures that govern matters heard by attorney trial referees as set forth in chapter nineteen of our rules of practice. Upon the consent of the appearing parties, the court may refer a nonjury case to an attorney trial referee for a trial. Practice Book § 19-2A. Within 120 days after the completion of the trial, the attorney trial referee must file a report with the court, stating “the facts found and the conclusions drawn therefrom”; Practice Book § 19-8 (a); and the report may be supplemented with “a memorandum of decision including such matters as [the attorney trial referee] may deem helpful in the decision of the case . . . .” Practice Book § 19-8 (b); see Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 503, 508 A.2d 415 (1986). A party may then file an objection to the court’s acceptance of the report. Practice Book § 19-14. Under Practice Book § 19-17, the court has the authority to render judgment on the report or, if the court finds error, it must reject the report and refer the matter to the same or another attorney trial referee for a new trial or revoke the reference and leave the case to be disposed of in the trial court.

The plaintiffs in the present case cite In re Application of Clinton Oyster Ground Committee, 52 Conn. 5 (1884), for the proposition that the revocation of the reference to the attorney trial referee is an appealable final judgment. In that case, the oyster ground committee of the town of Clinton, pursuant to statute, filed an application in the court for the appointment of an independent committee to ascertain and describe the boundaries of the natural oyster, clam and mussel beds in the waters of the town. The appointed committee provided a report to the court designating substantially the entire Clinton harbor as a natural bed. Several persons who previously had acquired oyster grounds and who claimed to be affected by the committee’s report appeared and objected to the court’s acceptance of the report. The court subsequently rejected the report and referred the case to another committee. The applicants, the Clinton oyster ground committee, immediately appealed from the court’s decision. Our Supreme Court heard the appeal, stating that “[i]n ordinary cases the rejection of the report of a committee is not a final judgment from which an appeal lies. This case however is exceptional. No judgment is to be rendered on the report. When accepted, the report itself becomes practically the final judgment. If rejected, there is no judgment, such as the proceedings contemplate, and the case goes to another committee. The judgment of the court on the remonstrance refusing to accept the report, is in the nature of a final judgment. It deprives the party of a report to which he may be entitled. If he is, it is better for all concerned that it should be determined before the expense is incurred of a trial before another committee. In that aspect of the case, and considering the peculiar character of the proceeding, it was deemed best to hear it on its merits . . . .” Id., 6-7.

The plaintiffs’ reliance on In re Application of Clinton Oyster Ground Committee is misplaced. The decision of the court that it “was deemed best to hear it on its merits”; id., 7; appears to have been driven by the exigent circumstances surrounding the economic and political considerations that underlie the court’s scathing characterization of the committee’s actions as “irresponsible” and influenced “by local jealousies and prejudices” in its impassioned discussion of the merits of the case. Id., 7-10. The determination that there was a final judgment in In re Application of Clinton Oyster Ground Committee should, therefore, be limited to its unique facts, which the court itself referred to as exceptional, and should not be precedent for a final judgment analysis in cases involving the modem attorney trial referee process. Rather than fitting into the exception created to reach the merits in In re Application of Clinton Oyster Ground Committee, this case is more analogous to Cothren v. Atwood, 63 Conn. 576, 29 A. 13 (1894). In Cothren, an appeal was taken from an order sustaining a remonstrance and rejecting the report of a committee in an action on a debt. Our Supreme Court removed the appeal from the docket after finding that the order was not an appealable judgment. Unlike In re Application of Clinton Oyster Ground Committee, which was not a case involving parties to an adversarial proceeding, the court in Cothren required the parties to await a final judgment before appealing. Cothren v. Atwood, supra, 576. Similarly, the plaintiffs in this case must await the entry of judgment, which is an inevitable part of the attorney trial referee process.

In OCI Mortgage Corp. v. Marchese, 48 Conn. App. 750, 754, 712 A.2d 449 (1998), another appeal involving the attorney trial referee process, we also distinguished our Supreme Court’s holding in In re Application of Clinton Oyster Ground Committee. In Marchese, the defendant property owners in a foreclosure action appealed from the court’s order sustaining the plaintiffs objection to the acceptance of the attorney trial referee’s report. Id., 750. The court, in sustaining the plaintiffs objection, remanded the case to the same attorney trial referee to “ ‘proceed in a manner not inconsistent with’ ” the trial court’s decision. Id., 752. The plaintiff filed a motion to dismiss the appeal on the ground that the court’s order was not a final judgment. Id., 751-52. In granting the motion to dismiss, we distinguished In re Application of Clinton Oyster Ground Committee, explaining that “[a] party cannot appeal from a trial court’s order sustaining an objection to an attorney trial referee’s report, but rather must appeal from the judgment that is rendered thereon. . . . Here, the trial court has not yet rendered judgment. It has simply remanded the case to the attorney trial referee for further proceedings. Accordingly, there is no judgment from which the defendants may appeal.” (Citations omitted; emphasis in original.) Id., 754. Similarly, in the present case, by revoking the reference to the attorney trial referee, the court has not yet rendered any judgment under Practice Book § 19-17. As the attorney trial referee process is now terminated, no judgment will be rendered in the matter until after the case goes to judgment in the trial court.

The court’s order revoking the reference to the referee also fails to meet the requirements set forth in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), in which our Supreme Court promulgated a test to determine whether certain otherwise interlocutory orders may constitute final judgments for purposes of appeal. In Curcio, the court stated that “[a]n 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., 31. The first prong of Curcio “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.” (Internal quotation marks omitted.) State v. Garcia, 233 Conn. 44, 65, 658 A.2d 947 (1995), on appeal after remand, 235 Conn. 671, 669 A.2d 573 (1996). Applied to the present case, the first prong is inapplicable because the attorney trial referee process is a fact-finding extension of the arm of the court that is not severable from the main proceeding. See OCI Mortgage Corp. v. Marchese, supra, 48 Conn. App. 754-55.

The court’s order also fails to meet the requirements of the second prong of Curcio. The focus in that part of the inquiry is “not on the proceeding involved, but on the potential harm to the appellant’s rights.” State v. Curcio, supra, 191 Conn. 33. “It requires the parties seeking to appeal to establish that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [party] irreparably harmed unless they may immediately appeal.” (Internal quotation marks omitted.) Shay v. Rossi, 253 Conn. 134, 165, 749 A.2d 1147 (2000). Although parties to a case that qualifies for the attorney trial referee process may withhold consent to the referral of the matter, they do not have a presently existing right to the process. If the parties consent, the court has discretion as to whether to refer the case to a referee. Practice Book § 19-2A. If the court refers the matter, the parties similarly have no right to the acceptance of any referee report that is produced. Pursuant to Practice Book § 19-17, if the court determines that the referee has materially erred in his or her rulings or that there are sufficient reasons for rejecting the report, the court has discretion to revoke the reference to the referee entirely and to leave the disposition of the case with the court. National Elevator Industry Pension, Welfare & Educational Funds v. Scrivani, 229 Conn. 817, 821-22, 644 A.2d 327 (1994). Even if we were to have found that the plaintiffs had a presently existing right to a report, it would not be irreparably lost by compelling them to await the outcome of the trial by the court, as any erroneous ruling on the revocation of the reference may be redressed on appeal after judgment is rendered. State v. Parker, 194 Conn. 650, 656, 485 A.2d 139 (1984); see also Schiappa v. Ferrero, 61 Conn. App. 876, 767 A.2d 785 (2001). As a result, there is no presently existing right of any party that has been concluded as a result of the court’s revoking the reference to the attorney trial referee.

Accordingly, we conclude that there is no final judgment in this case. As a result, we lack jurisdiction over this appeal.

The defendant’s motion to dismiss the appeal is granted.

In this opinion the other judges concurred.

       The defendant objected to the report on the ground that it was not based on the evidence introduced at trial.

       “Once the parties consent to the use of an attorney trial referee, however, it is implicit that the parties must then submit to the entire process set forth in [Practice Book §§ 19-1 through 19-18]. A party cannot later opt out of the process should the attorney trial referee’s report prove to be unfavorable. Only the trial court can abort the process by revoking the referral to the attorney trial referee.” OCI Mortgage Corp. v. Marchese, 48 Conn. App. 750, 753, 712 A.2d 449 (1998).

       The process was governed by Public Acts 1881, c. 140, § 12, p. 104, codified as § 2326 of the General Statutes of 1888, which provides in relevant part: “The Superior Court of New Haven County, on the application of the selectmen of the town of Orange, and the Superior Court of any county, on the application of the oyster-ground committee of any town in said county, shall appoint a committee of three disinterested persons, not residents of the town within the boundaries of which any natural oyster, clam, or mussel beds exist, to ascertain, locate, and describe, by proper boundaries, all the natural oyster, clam, or mussel beds within the boundaries of such town. Said committee so appointed shall first give three weeks’ notice, by advertising in a newspaper published in or nearest to said town, of the time and place of their first meeting for such purpose; they shall hear parties who appear before them, and may take evidence from such other sources as they may in their discretion deem proper, and they shall make written designations by ranges, bounds, and areas of all the natural oyster, clam, and mussel beds within the boundaries of the town they are appointed for, and shall make a report of their doings to the Superior Court, which report, when made to and accepted by said court, and recorded in the records thereof, shall be a final and conclusive determination of the extent, boundaries, and location of such natural beds at the date of such report. It shall be the duty of the clerk of the court to transmit to the town clerk of each of said towns a certified copy of said report so accepted and recorded in relation to the beds of such town, which shall be recorded by said town clerk in the book kept by him for the record of applications, designations, and conveyance of designated grounds. Such public notice of said application to the Superior Court, and of the time and place of the return of the same, shall be given by said selectmen or oyster-ground committee as any judge of the Superior Court may order. It shall be the duty of the selectmen of the town of Orange, and of the oyster committees of other towns, upon written request, signed by twenty electors of their respective towns, to make such application to the Superior Court within thirty days after receiving a copy of such written request, and said applications shall be privileged, and shall be heard and disposed of at the term of said court to which such application is returned in preference to other causes. All expenses properly incurred by such selectmen and oyster-ground committees in said applications, and the doings thereunder, and the fees of said committees so appointed by court, shall be taxed by the clerk of said court, and paid upon his order by the State. . . . Any designation of ground for the planting or cultivation of shell-fish within the areas so established by such report of said committee shall be void.”


author: PETERS, J.

text:
    COREGIS INSURANCE COMPANY v. FLEET NATIONAL BANK
    (AC 22136)
    Lavery, C. J., and Schaller and Peters, Js.
    Argued November 27, 2001
    officially released March 26, 2002

      Gerald L. Garlick, with whom was Kenneth M. Rozich, for the appellant (defendant).

      Eric J. Foy, with whom, on the brief, was Joel M. Fain, for the appellee (plaintiff).
   Opinion

PETERS, J.

This is a case of statutory construction. Under General Statutes § 42a-4-401, a bank may charge against a customer’s account only those items that are “properly payable.” The sole issue in this appeal is whether, under General Statutes §§ 42a-3-110 (d) and 42a-3-205 (d), a check made payable in the alternative to one of several payees authorizes a payor to honor the check, even if it contains two unauthorized signatures, if the check is presented for payment beating one valid endorsement. We hold that the one valid endorsement was sufficient and reverse the contrary judgment of the trial court.

The following factual history is relevant to our resolution of this appeal. In October, 1996, Joseph Walton sustained physical injuries at West Feliciana High School where he was a student. Attorney Trudy Avants was retained by Walton’s mother, Delores Carpenter, to represent them in a personal injury action against the West Feliciana school board and the plaintiff, Coregis Insurance Company.

In August or September of 1996, the plaintiff and Avants agreed to settle the claim for $50,000. On September 11, 1996, Avants and two unknown individuals representing themselves to be Carpenter and Walton signed settlement documents. The plaintiff issued a settlement check made payable to:

“TRUDY AVANTS ATTORNEY FOR
MINOR CHILD JOSEPH WALTON,
MOTHER DELORES CARPENTER
11762 S. HARRELLS FERRY ROAD #
E
BATON ROUGE LA 70816”

The check subsequently was endorsed by Avants and by two unknown individuals who fraudulently signed the names of Carpenter and Walton. The settlement check was cashed at Hibernia Bank in Baton Rouge and later was presented for payment to the defendant, Fleet National Bank. The defendant honored the check and charged the plaintiffs account in that amount.

On May 19, 1998, the plaintiff filed a complaint alleging that the check was not properly payable under § 42a-4-401 (a) because the check contained unauthorized endorsements. Both parties filed motions for summary judgment, supported by proper documentation. Each party filed a memorandum of law in opposition to the other’s motion. After oral argument, the trial court denied the defendant’s motion and granted the plaintiffs cross motion for summary judgment.

In its memorandum of decision, the court held that the language describing the payees was ambiguous and that the check thus should be treated as payable in the alternative under § 42a-3-110 (d). The court stated that Avants’ signature was, therefore, a sufficient endorsement to permit negotiation of the check. Nonetheless, in light of the other unauthorized signatures, the court held that the check was not properly payable under § 42a-4-401.

On appeal, the defendant claims that the court improperly denied its motion for summary judgment by concluding (1) that the check, which was payable in the alternative, was not properly payable even though it contained one valid signature, because the other signatures were unauthorized and (2) that the additional unauthorized endorsements were not “anomalous” under General Statutes § 42a-3-205 (d). These two claims merge into one claim about the payability of the disputed check under the provisions of the Uniform Commercial Code as adopted in this state in General Statutes § 42a-l-101 et seq.

The standard by which we review a trial court’s decision to grant or deny a motion for summary judgment is well established. “Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 607, 783 A.2d 462 (2001). Because the relevant facts are undisputed, the only question before us is which party was entitled to judgment as a matter of law. Resolution of that question requires statutory construction and our review is therefore plenary. Boynton v. New Haven, 63 Conn. App. 815, 819, 779 A.2d 186, cert. denied, 258 Conn. 905, 782 A.2d 136 (2001).

Our approach to this issue is guided by well established principles of statutory construction. “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 755-56, 674 A.2d 1313 (1996). Furthermore, it is an “elementary rule of statutory construction that we must read the legislative scheme as a whole in order to give effect to and harmonize all of the parts.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 636, 583 A.2d 906 (1990). When statutes relate to the same subject matter, they must be read together and “specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” (Internal quotation marks omitted.) State v. State Employees' Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997).

The questions raised in this appeal relating to the negotiability and payment of instruments are governed by the provisions of the Uniform Commercial Code as adopted in General Statutes § 42a-l-101 et seq. Under these statutes, only a “holder” or someone who has the rights of a holder may properly present an instrument for payment. General Statutes § 42a-3-301. A “holder” of an instrument that is payable to an identified person is defined as “the person in possession ... if the identified person is in possession.” General Statutes § 42a-1-201 (20). A check payable to more than one person may be payable jointly, requiring valid signatures of all payees, or it may be payable in the alternative, in which case it is “payable to any of them and may be negotiated ... by any or all of them in possession of the instrument.” (Emphasis added.) General Statutes § 42a-3-110 (d). In the case of ambiguity, § 42a-3-110 (d) treats the check as payable in the alternative. According to General Statutes § 42a-3-205 (d), any endorsement made “by a person who is not the holder of the instrument” is “anomalous” and “does not affect the manner in which the instrument may be negotiated.”

The trial court properly determined that the language of the settlement check was ambiguous as to whether it was payable jointly or payable in the alternative and that, due to that ambiguity, the check must be treated as payable in the alternative. Therefore, the check was properly negotiable by any or all of the payees in possession. The court acknowledged that Avants was one of the payees in possession and thus her signature alone was sufficient to negotiate the check.

Nonetheless, the court held that the two unauthorized signatures invalidated the one otherwise proper endorsement. The court relied on comment one to § 42a-4-401, which states that “[a]n item containing a forged drawer’s signature or forged [endorsement is not properly payable.” General Statutes Ann. § 42a-4-401, comment 1 (West 1990). The court held that the signatures constituted “endorsements” as defined by General Statutes § 42a-3-204 and that their forgery made the instrument not properly payable. Furthermore, the court held that the unauthorized endorsements did not fall within the definition of “anomalous” endorsements because, although the two unknown parties were not holders, they were “acting as” holders and their unauthorized signatures impaired the negotiability of the check.

The defendant challenges the court’s conclusion regarding the effect of the unauthorized endorsements. The defendant argues that those signatures were “anomalous” endorsements because they were made by persons who were not holders and, therefore, did not affect the negotiability of the instrument. We agree.

“As with any issue of statutory interpretation, our initial guide is the language of the statute itself.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996). Section 42a-3-205 (d) provides that an anomalous endorsement is an “endorsement made by a person who is not the holder of the instrument” and that it “does not affect the manner in which the instrument may be negotiated.” The court reasoned that the unauthorized signatures did not fall within that definition because the unknown signers were “acting as” holders. The court, however, provided no support for construing § 42a-3-205 (d) to exclude individuals who were not holders, but who were merely acting as holders. Moreover, the plain language of the statute fails to support the court’s interpretation.

We are similarly unpersuaded by the court’s interpretation of comment one to § 42a-4-401. According to the comment, an instrument containing “an unauthorized endorsement” is not properly payable. The comment neither addresses the payability of instruments containing more than one endorsement nor distinguishes between instruments that are jointly payable and those that are payable in the alternative. Indeed, if the comment does refer to multiple endorsements as the court’s interpretation suggests, it would likely conflict with § 42a-3-205 (d) on anomalous endorsements. The court’s reasoning that comment one to § 42a-4-401 applies to the present case because the unauthorized signatures constitute endorsements is unavailing. Section 42a-3-205 (d) on anomalous endorsements applies specifically to endorsements. In order to give effect to and to harmonize § 42a-3-205 (d) and comment one to § 42a-4-401, which pertain to the same subject matter, we must construe the more general comment one to § 42a-4-401 to be subordinated to the more specific provisions of § 42a-3-205 (d). See State v. State Employees’ Review Board, supra, 239 Conn. 653. Accordingly, we do not interpret comment one to § 42a-4-401 to pertain to items with multiple endorsements when the instrument is payable in the alternative and one endorsement is valid.

The plaintiff relies on Perley v. Glastonbury Bank & Trust Co., 170 Conn. 691, 368 A.2d 149 (1976), the only case in which our Supreme Court has addressed unauthorized endorsements. That case is, however, distinguishable from the present case. In Perley, the court held that a negotiable instrument that was payable to two payees was not properly negotiable if one of the endorsement signatures was unauthorized. Id., 695-96. Unlike the present case, Perley determined the principle that governs if the instrument is jointly payable. Therefore, the validity of the unauthorized signature was essential to the transferability of the instrument. In the present case, by contrast, we are addressing the legal consequences of an instrument that was payable in the alternative.

Because our courts have not previously addressed unauthorized endorsements on a check payable in the alternative, we look to other jurisdictions for guidance. Other courts consistently have held that, despite the forgery of another payee’s endorsement, one valid endorsement is sufficient to negotiate such a check. See Danco, Inc. v. Commerce Bank/Shore, 290 N.J. Super. 211, 675 A.2d 663 (1996); Kinzig v. First Fidelity Bank, N.A., 277 N.J. Super. 255, 649 A.2d 634 (1994); L. B. Smith, Inc. v. Banker’s Trust Co. of Western New York, 80 App. Div. 2d 496, 439 N.Y.S.2d 543 (1981), aff'd, 55 N.Y.2d 942, 434 N.E.2d 261, 449 N.Y.S.2d 192 (1982); J. R. Simplot, Inc. v. Knight, 139 Wash. 2d 534, 988 P.2d 955 (1999).

In the statutory scheme of articles three and four of title 42a of the General Statutes, an instrument that is ambiguous about the relationship between designated payees is an instrument that is payable in the alternative. General Statutes § 42a-3-110 (d). Thus, in this case, the bank properly could honor the check presented by Avants. Forged endorsements do not affect this result because any endorsement by a nonholder is nothing more than an anomalous endorsement. General Statutes § 42a-3-205 (d). An anomalous endorsement does not deprive a payor bank of authority to pay the instrument if it is properly endorsed by a holder. This is the position for which the defendant argues. The judgment, therefore, must be reversed.

The plaintiff asserts alternate grounds for affirming the judgment of the trial court. The plaintiff argues that (1) the trial court’s judgment is consistent with the warranty provisions of articles three and four of title 42a of the General Statutes and (2) the settlement was jointly payable, rather than payable in the alternative as the trial court concluded, which would have made the check not properly payable. We are not persuaded.

The plaintiff first argues that the court’s judgment is consistent with the policies of the warranty provisions set out in articles three and four of title 42a of the General Statutes. See General Statutes §§ 42a-3-417, 42a-3-416, 42a~4-207 and 42a-4-208. The plaintiff asserts that these warranty provisions allow the defendant to recover from the presenting bank that was first in the chain of transfers of the check. The plaintiffs claim is unpersuasive because these warranty provisions provide recourse for payments that are unauthorized. In the present case, we have concluded the opposite and these warranty provisions are, therefore, irrelevant.

In support of its second argument that the check was jointly payable, the plaintiff relies on the “usage of trade” standard set out in General Statutes § 42a-l-205. According to that standard, “usage of trade in the vocation or trade in which [the parties] are engaged or of which they are or should be aware give[s] particular meaning to and supplements] or qualiffies] terms of an agreement.” General Statutes § 42a-1-205 (3). “Usage of trade” is defined as “any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question.” General Statutes § 42a-l-205 (2). The plaintiff argues that the “usage of trade” in the insurance industry is to issue jointly payable settlement checks and that the defendant, although in the banking industry, should have been aware of that customary practice.

The plaintiffs reliance on the “usage of trade” standard is misplaced. The standard applies specifically to a usage of trade “in the vocation or trade in which [the parties] are engaged or of which they are or should be aware . . . .” General Statutes § 42a-l-205 (3). Here, the parties are not engaged in the same vocation or trade. The plaintiff argues that the defendant, which is in the banking industry, should have been aware of a custom of the insurance industry. The plaintiff offers no evidentiary support for applying the usage of trade standard so broadly. There was no other evidence at trial to support the plaintiffs claim that the check was jointly payable.

The plaintiffs alternative argument fails because, at best, the check is ambiguous as to whether it was payable in the alternative or jointly payable. In those circumstances, under § 42a-3-110 (d), as the trial court held, the check must be treated as payable in the alternative.

In the absence of precedent in our jurisdiction or other persuasive authority to the contrary, we conclude that the plain language of §§ 42a-3-110 (d) and 42a-3-205 (d) is the most appropriate basis for determining the negotiability of the settlement check payable to more than one payee. Once the trial court concluded that the check was payable in the alternative, Avants’ endorsement was sufficient to make the check properly payable. We are unpersuaded that unauthorized purported signatures of alternative payees invalidate an endorsement that is otherwise proper. The defendant is entitled to judgment as a matter of law.

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

In this opinion the other judges concurred.

       General Statutes § 42a-4-401 (a) provides in relevant part: “A bank may charge against the account of a customer an item that is properly payable from that account .... An item is properly payable if it is authorized by the customer and is in accordance with any agreement between the customer and bank.”
      Under General Statutes § 42a-4-104, a check is an “item.”

       General Statutes § 42a-3-110 (d) provides in relevant part: “If an instrument is payable to two or more persons alternatively, it is payable to any of them and may be negotiated, discharged, or enforced by any or all of them in possession of the instrument. ... If an instrument payable to two or more persons is ambiguous as to whether it is payable to the persons alternatively, the instrument is payable to the persons alternatively.”

       General Statutes § 42a-3-205 (d) provides: “ ‘Anomalous endorsement’ means an endorsement made by a person who is not the holder of the instrument. An anomalous endorsement does not affect the manner in which the instrument may be negotiated.”

         The defendant also claims that, in granting the plaintiffs motion for summary judgment, the court improperly made findings of fact that were not presented by the parties in their respective motions. In light of our resolution of the defendant’s first two claims, we need not reach this third claim.

       The court cited to official comment one to § 4-401 of the A.L.I. Uniform Commercial Code. We cite to the identical language in comment one to General Statutes Ann. § 42a-4-401 (West 1990) because title 42a is the enactment of the Uniform Commercial Code in Connecticut.

       General Statutes § 42a-3-204 (a) provides in relevant part: “ ‘Endorsement’ means a signature, other than that of a signer as maker, drawer, or acceptor, that alone or accompanied by other words is made on an instrument for the purpose of (i) negotiating the instrument, (ii) restricting payment of the instrument, or (iii) incurring endorser’s liability on the instrument, but regardless of the intent of the signer, a signature and its accompanying words is an endorsement unless the accompanying words, terms or the instrument, place of the signature, or other circumstances unambiguously indicate that the signature was made for a purpose other than endorsement.”

       See footnote 2.