author: Daly, J. Lavery, J.,

text:
    Housing Authority of the City of Stamford v. Fritz Lamothe et al.
    (9905)
    Daly, Foti and Lavery, Js.

      Argued February 10
    decision released June 9, 1992

      Dennis J. O’Brien, with whom, on the brief, was Roberta Hatch, for the appellant (defendant Lucienne Lamothe).

      Mark H. Henderson, with whom, on the brief, was Kristi M. Agniel, for the appellee (plaintiff).
   Daly, J.

The defendant Lucienne Lamothe appeals following the trial court’s denial of her motion to open a judgment by stipulation in a summary process action. The defendant claims that the trial court’s refusal to open the judgment without conducting an evidentiary hearing constituted an abuse of discretion.

In August, 1990, the plaintiff Stamford Housing Authority instituted a summary process action to recover possession of the premises at 213 Connecticut Avenue in Stamford for nonpayment of rent. Named as defendants in the summary process action in addition to Lucienne Lamothe were her husband and her two daughters. The plaintiff alleged that they failed to pay the July, 1990 rent. On July 20, 1990, a notice to quit possession was served. On September 21, 1990, the defendant and her husband filed answers admitting all the allegations in the plaintiffs complaint. They did not raise any special defense other than alleging that they untimely paid the outstanding rental fee on July 21, 1990. On October 11, 1990, the defendant and her daughters met with a rental agent and an attorney for the plaintiff. This meeting resulted in the parties’ entering into a stipulated agreement under which judgment would enter in favor of the plaintiff with a final stay of execution until February 28, 1991. The defendant agreed to pay the outstanding arrearage of $1018 along with use and occupancy fees. The defendant agreed to vacate the premises on February 28, 1991. The court questioned the defendant about her understanding of this agreement. On October 11, 1990, the court rendered judgment in accordance with the stipulation. The defendant signed the judgment pro se.

On December 21, 1990, the defendant, with the assistance of counsel, filed a motion to open the judgment. In her motion, the defendant claimed that the plaintiff’s agent told her not to seek the assistance of counsel and that she was informed on October 11 that if she did not sign the stipulation she would be evicted immediately. She claimed that she entered into the stipulation without understanding its terms or the consequences of agreeing to a final stay of execution until February 28, 1991. The defendant also claimed that her husband, who had supported the family, abandoned her and the children in September, 1990. In the affidavit that accompanied the motion to open, the defendant acknowledged that she had read the motion to open and that the statements contained in it were true. The motion to open indicated that testimony would be required. The defendant maintains that she would not have signed the stipulation if she had had the assistance of counsel.

On January 17, 1991, a hearing was held before the court, Melville, J., on the motion to open the judgment. The court also conducted a canvass of the defendant at the October 11,1990 hearing concerning the stipulated judgment. The defendant’s counsel argued at the hearing on the motion to open that her client did not knowingly enter into the stipulated agreement. The defendant did not provide the court with a transcript of the October 11, 1990 hearing. The judge could not remember exactly how he canvassed the defendant but acknowledged that he normally explains the consequences of a judgment, especially to pro se parties. The defendant’s counsel argued that the defendant may be entitled to raise the defense of no good cause and also the equitable doctrine against forfeiture. The defendant’s counsel noted that the no good cause defense was not recognized in Connecticut but had been recognized in another jurisdiction. Counsel failed to produce a copy of the case dealing with the defense of no good cause. The defendant did not request a continuance to obtain either the transcript of the October 11 proceeding or a copy of the case dealing with the no good cause defense.

The court denied the motion to open on the basis of several factors. It noted that the defendant admitted all the necessary facts to support an eviction. The defendant had the opportunity to retain an attorney before signing the stipulation, but she did not retain one. The court further noted both that that motion, which was filed on December 26,1990, would require the presentation of evidence and that the defendant failed to prepare her case adequately concerning the propriety of the special defenses and the charge that the plaintiff’s agent told the defendant not to retain an attorney.

We must determine whether the trial court’s failure to open the stipulated judgment was an abuse of discretion. In determining this issue, we will also address the defendant’s claim that the trial court was required to hold an evidentiary hearing but refused to do so in this case.

A stipulated judgment constitutes a “contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction.” Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). A stipulated judgment allows the parties to avoid litigation by entering into an agreement that will settle their differences once the court renders judgment on the basis of the agreement. Gillis v. Gillis, 214 Conn. 336, 339-40, 572 A.2d 323 (1990). A stipulated judgment, although obtained by the consent of the parties is binding to the same decree as a judgment obtained through litigation. Id. “It necessarily follows that if the judgment conforms to the stipulation it cannot be altered or set aside without the consent of all the parties, unless it is shown that the stipulation was obtained by fraud, accident or mistake.” Bryan v. Reynolds, supra, 460-61.

A court’s ability to open or modify a judgment is governed by statute and rule of practice. Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). The defendant timely filed her motion to open the stipulated judgment within four months from the date that judgment was rendered as required by General Statutes § 52-212a and Practice Book § 326. Because the decision to open a judgment falls within the trial court’s discretion, our review is limited to a determination of whether the trial court abused its discretion or reached an unreasonable result. Gillis v. Gillis, supra, 340; Batory v. Bajor, supra. Every reasonable presumption in favor of the court’s ruling on the motion to open will be given by a reviewing court. Gillis v. Gillis, supra.

The defendant claims that the trial court refused to conduct an evidentiary hearing to establish cause for opening the stipulated judgment. “The opportunity to be heard at a meaningful time and in a meaningful manner is constitutionally required to meet currently accepted standards of procedural due process in the area of property rights.” Kukanskis v. Griffith, 180 Conn. 501, 509-10, 430 A.2d 21 (1980); Bartley v. Bartley, 27 Conn. App. 195, 197, 604 A.2d 1343 (1992). We find that the trial court did not deprive the defendant of an opportunity to present evidence on her claims. The defendant’s motion to open the judgment stated that oral argument was requested and that testimony was required. The court questioned the defendant’s counsel as to any possible defenses to the eviction. The defendant’s counsel mentioned two possible defenses but failed to produce any case law supporting the defense of no good cause for eviction. The defendant also failed to produce a transcript of the October 11 proceedings. That transcript was needed to support the defendant’s claim that she did not understand the stipulated agreement. The trial judge could not remember his exact canvass and questioning of the defendant concerning this stipulated agreement, which was entered three months before the motion to open was heard. In the absence of evidence to the contrary, the judge correctly assumed that he conducted his regular canvass of the defendant before accepting the stipulated judgment. The defendant was not denied an opportunity to present evidence supporting her claim to open the stipulated judgment. The defendant was not prepared to present evidence as is shown by the court’s concluding remark: “You should have known by the issues you have raised that evidence was going to be required to support your position.”

We now examine whether the court abused its discretion by refusing to open the stipulated judgment. Our task is to review the defendant’s actions and her remarks about the stipulation to determine whether a reasonable person would find that the defendant agreed to leave the apartment by February 28, 1991. Gillis v. Gillis, supra, 341. The defendant’s subjective understanding of the stipulated agreement is not relevant to our decision. Id. The transcript of the October 11, 1990 hearing reveals that the trial court adequately explained the requirements of the stipulated agreement. The judge stated that “[t]he defendants are going to be permitted to stay on the premises through February 28, that is, the end of February, 1991, provided they pay use and occupancy monthly payments.” The judge warned “[n]ow, if you miss any of these payments, then the landlord can evict you immediately. Do you understand that?” The defendant responded, “Yes.” The judge clearly stated that the defendant had to vacate the apartment on February 28, 1991.

This summary process action is based on a claim of nonpayment of rent for July, 1990. The defendant sought to raise the defense of lack of good cause for eviction. This defense was based on the claim that the defendant’s husband was responsible for the late payment of the July rent. The husband abandoned the defendant and her children in September, 1990, leaving her with inadequate funds. The husband’s abandonment of the defendant in September is not relevant to failure timely to pay the July rent. The defendant signed an answer admitting the allegations in the plaintiff’s complaint but alleged a late payment on July 21, 1990. This admission by the defendant establishes cause for the eviction.

As to the equitable doctrine of relief from forfeiture, the court was aware of this defense but chose not to use it in this case. “ ‘The doctrine against forfeiture cannot be dilatorily invoked to eviscerate the statutory mandate of our summary process laws. Under circumstances, however, where the conscience is shocked or the forfeiture unconscionable, the doctrine against forfeiture should be an available shield to the tenant.’ ” Mobilia, Inc. v. Santos, 4 Conn. App. 128,131, 492 A.2d 544 (1985), quoting Zitomer v. Palmer, 38 Conn. Sup. 341, 346, 446 A.2d 1084 (1982). The landlord in Mobilia, Inc. v. Santos, supra, instituted a summary process action because the tenants paid only $140 of the required $170 monthly rent. The tenants raised a special defense that sought equitable relief against forfeiture claiming that an eviction would cause substantial hardship and force a sale of their mobile home. We upheld the trial court’s granting of the plaintiff’s motion to strike this special defense. In the present case, we cannot say that the court’s conscience is shocked or that forfeiture is unconscionable.

We recognize that Connecticut courts have implemented the equitable doctrine against forfeiture to prevent a tenant’s eviction in a summary process action for failure to pay rent. See Fellows v. Martin, 217 Conn. 57, 66, 584 A.2d 458 (1991). Our Supreme Court noted that “[t]he doctrine against forfeitures applies to a failure to pay rent in full when that failure is accompanied by a good faith intent to comply with the lease or a good faith dispute over the meaning of a lease.” Id., 69. The defendant failed to plead or to establish either one of the requirements listed in Fellows v. Martin, supra, to invoke the equitable doctrine against forfeiture. The defendant was required to pay the rent on the first day of each month. On the basis of the defendant’s statements and actions at the October 11 hearing, a reasonable person would conclude that she assented to the terms of the stipulated judgment and realized that she had to vacate her apartment on February 28,1991. Thus, the court did not abuse its discretion in refusing to open the stipulated judgment.

The judgment is affirmed.

In this opinion Foti, J., concurred.

Lavery, J.,

dissenting. I disagree with the majority’s conclusion that the trial court conducted a proper evidentiary hearing on the defendant’s motion to open the stipulated judgment.

As the majority correctly points out, a stipulated judgment is a “ ‘contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. . . (Citations omitted.) Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990). Because the basis for the stipulated judgment is a contract between the parties, it may properly be set aside if the contract was arrived at by fraud, accident or mistake. Id., 340. It is undisputed that a defendant has a procedural due process right to an opportunity to be meaningfully heard before property rights can be taken away. All Brand, Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 208, 567 A.2d 1156 (1989); Kukanskis v. Griffith, 180 Conn. 501, 509-10, 430 A.2d 21 (1980). I cannot agree with the majority, however, that the defendant in this case had such an opportunity.

At the start of the hearing on the defendant’s motion to open, the trial court immediately focused on the hearing in which the stipulation was entered. From that point on, the hearing was dominated by the court, focusing on its canvass of the defendant in the prior hearing. At one point in the hearing, the plaintiffs counsel interjected, “I suppose we can hear testimony if defense counsel believes they have some other grounds for reopening the judgment, but I would submit to the court that it’s a futility . . ..” The counsel for the defendant was then allowed briefly to mention her legal arguments, but was not given an adequate opportunity to develop these arguments, nor was she given an adequate opportunity to present her witnesses. Shortly thereafter, the court ended the hearing, addressing the defendant’s counsel: “You should have known by the issues you have raised that evidence was going to be required to support your position. Motion is denied.”

In her brief, the defendant indicates that at the hearing she was prepared to assert two defenses in support of the motion to open. First, she intended to assert equitable defenses that are recognized in Connecticut. In this case, the defendant’s husband, who was responsible for the nonpayment of rent leading to the stipulated judgment, abandoned the defendant and her five minor children. The defendant’s husband was the head of the household, the sole support of the family, and the sole manager of the family finances. Further, the defendant intended to introduce testimony to the effect that a housing authority employee had advised her that legal representation was not necessary in the resolution of her situation. At the time the defendant signed the stipulated judgment, she was not represented by counsel and her knowledge of the English language was questionable. The defendant was prepared to testify at the hearing that she perceived that her only choice was to sign the stipulated judgment because she was told by the plaintiff’s rental agent that she had two alternatives—either proceed to trial and be evicted within a week, i.e., October 18, 1990, or enter into an agreement whereby she would agree that judgment for possession could enter in favor of the plaintiff, and that she would pay the accumulated arrearage, court costs and current rent according to a fixed schedule. If she chose the latter alternative, she understood that the family would be granted a final stay of execution through February 28,1991. The defendant intended to assert an equitable argument that she and her children had been abandoned by her husband, the family’s breadwinner, and that she was not responsible for the circumstances that caused the plaintiff to seek an eviction in the first place. In addition, the defendant paid all of the arrearages, court costs, fees, and current rent as required by the stipulated judgment. The defendant was prepared to assert that the equities of the situation should allow her and her children to remain in their home.

In Fellows v. Martin, 217 Conn. 57, 66, 584 A.2d 458 (1991), our Supreme Court stated that “Connecticut Appellate and Superior Courts have applied the ancient equitable doctrine against forfeitures to summary process actions for nonpayment of rent and have occasionally, on the particular facts of each case, granted relief to the tenant.” Although the merits of the defendant’s equitable argument are not before this court at this time, it was properly within the province of the trial court, and should have been fully explored in an eviden-tiary hearing.

Second, the defendant intended to assert a public policy argument based on case law from a foreign jurisdiction. In particular, the defendant cites Maxton Housing Authority v. McLean, 313 N.C. 277, 328 S.E.2d 290 (1985), in which the North Carolina Supreme Court held that in order to evict a tenant from low income public housing there must be a finding of fault on the part of the tenant in failing to pay rent. Id., 280. In McLean, the court set forth the following framework to utilize when dealing with such a case: “Upon a showing by the Authority that the rental payment has not been made as required by the lease, it is presumed that the failure to pay the rent is good cause for eviction. The burden thereupon shifts to the tenant to produce evidence to prove a lack of fault on his part in failing to make the rental payment.” Id. The court based its decision on the public policy of the state and federal governments to provide sanitary and safe housing for persons of low income. Id., 279-80. In McLean, it was the defendant’s former spouse who was primarily responsible for the acts that led to the eviction proceedings. In this case, there is a similar claim regarding the role of the defendant’s former spouse in the events leading to the stipulated judgment. Although McLean is not binding on courts of this state, it raises legal issues that should be decided in the first instance by the trial court, and possibly be the subject of subsequent appellate review.

“At the core of due process is the requirement for an impartial tribunal. See Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927).” Rado v. Board of Education, 216 Conn. 541, 556, 583 A.2d 102 (1990). In this case, the court focused on the defendant’s failure to produce a transcript of the prior hearing rather than allowing the defendant to put on her case that the contract of stipulated judgment was induced by duress and mistake, and that she had equitable defenses as set forth above, thus depriving the defendant of an opportunity for a meaningful hearing.

I would remand the case to the trial court to conduct a full evidentiary hearing on the defendant’s motion to open the judgment.

       Lucienne Lamothe is the only defendant involved in this appeal. References to the defendant are to Lucienne Lamothe.

       The defendant’s husband did not appear at the October 11, 1990 hearing. A judgment of default was entered against him. He is no longer involved in this action.

       General Statutes § 52-212a provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.”

       Practice Book § 326 provides in part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. . . .”

       The defendant’s motion to open did not allege that a defense existed at the time of the rendition of judgment as required by General Statutes § 52-212 (a).

       The following' dialogue took place:
      “The Court: You should understand that on February 28 you must leave the premises.

        “Ms. Lamothe: Yes.
      “The Court: You don’t have a right to further stay of execution. They have given you the maximum. O.k.?
      “Ms. Lamothe: O.k.
      “The Court: There is nothing I could do to help you on this, and I would suggest that you start looking immediately for alternate accommodations, because come February 28, if you don’t have any place to go, you are going to have to get out anyway. Do you understand that?
      “Ms. Lamothe: Yes.
      “The Court: Any question about that?
      “Ms. Lamothe: No. I understand.
      “The Court: Any questions, counselor?
      “Mr. Henderson: No.”

       The hearing opened as follows:
      “The Court: Housing Authority of Stamford and Lamothe.
      “Defense Counsel: Good morning, Your Honor. Roberta Hatch of legal services representing the defendant, Lucienne Lamothe, the moving party.
      “Plaintiffs Counsel: And, Lawrence Riley, representing the Plaintiff, Stamford housing authority.
      “The Court: Why don’t you tell me a little bit about this.
      “Defense Counsel: Your Honor, very briefly, Mrs. Lamothe came to court on October 11 without assistance of counsel. She had a good defense. She had two defenses. She was not represented. She entered into a stipulation. The Stamford housing authority was represented. She did not have the benefit of an interpreter, who is here.
      “The Court: An interpreter?
      “Defense Counsel: Yes, she speaks Creole. She does speak English.
      “The Court: But she didn’t speak English?
      “Defense Counsel: She does speak English, but she did not understand fully that she had a right to go to trial.
      “The Court: Wait a minute. Was this before me?”

       The court pressed the defendant’s counsel as to whether she was attacking the actions of either the housing authority’s counsel or the court regarding the stipulated judgment.
      “The Court: You are attacking a man’s right to make a living, by such an allegation, or a woman’s right to make a living here. Now, I don’t mind you doing that, because that is what this court is all about, but I don’t want that done frivolously, and if you intend to make that kind of claim you had better be prepared to prove it, and today is your day in court, then I—You know. There are two things you have claimed here. You claimed that the court did not properly canvass this lady so that it would satisfy that what she did was what she wanted to do. And secondly, you are claiming that an officer of this court, the housing specialist, and an officer, an attorney, that Ms license to practice in this state, both were either oppressive or unethical in the manner in which they conducted their discussion. Now, that’s what you in essence have said by the motion you have put before the court today.
      “Defense Counsel: The defendants perceived that they had no choice.
      “The Court: Counsel, you are now representing them. You filed this motion. You put the language into what you thought it meant, and I’m interpreting it the way I am, is that not what you are saying? You raise orally a due process claim which says that this lady didn’t have a meaningful hearing, and it was not meaningful because of the oppression of the housing specialist, the attorney for the plaintiff, and the insufficient activity on the part of the court. Those are serious allegations, Ma’am. I expect that you are going to prove each one of them, or at least one sufficient to open this judgment.”
      The exchange continued:
      “Defense Counsel: I do not believe that she entered into this knowingly, knowing what her rights were.
      “The Court: I can’t make that determination without a transcript of the proceedings, without her responses to the questions that the court asked. Ordinarily the court makes it a practice to inquire of the party that if they have any questions after all is explained, do you have any questions about this agreement, and if it gets no answer, then it has to assume that the party has no questions. I don’t know of any other reason why it shouldn’t assume that, unless there is something on the record that so indicates it, and if the court neglected to pursue that, then maybe you do have a point. The other thing is that I definitely make it a practice, and I don’t know whether I did it in this case, and that is why I need a transcript, to explain the significance of the agreement in terms of when they have to get out, and what options they have to move for a reopening, or a further stay of execution. I usually go through that very carefully. Maybe I was neglectful of doing that in this case. I can’t recall this case at all. All that I can recall is what my practice is, and in that instance, I cannot make a decision on this case without any information concerning that. With regard to this other matter, she was advised that she should not seek the advice of counsel. That is different from saying she didn’t need an attorney. Now, that requires, I think, some testimony.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Richard A. Matza v. Jane W. Matza
    (10031)
    Daly, Norcott and Heiman, Js.
    Argued January 7
    decision released June 16, 1992

      Wesley W. Horton, with whom were Alexandra Davis and, on the brief, Jeffrey A. Hoberman, for the appellant (defendant).

      William H. Narwold, with whom were William T. Fitzmaurice, C. Ian McLachlan and, on the brief, Katherine C. Stuttman, for the appellee (plaintiff).
   Heiman, J.

The defendant, Jane W. Matza, appeals from the trial referee’s judgment dissolving the parties’ marriage. She claims that (1) the trial referee improperly granted her attorney’s motion to withdraw as counsel, (2) the judge who ruled on the motion to withdraw improperly failed to conduct an evidentiary hearing on the motion, (3) her attorney’s motion to withdraw was improperly referred to a judge rather than having been considered by the trial referee who presided over the dissolution action, (4) the trial referee improperly drew an adverse inference from the defendant’s failure to testify, and (5) the trial referee improperly denied the defendant’s motion for a mistrial made following the withdrawal of counsel. Because we conclude that the failure to conduct a hearing on the motion to withdraw violated the defendant’s right to due process of law, we reverse the judgment.

A summary of this protracted and tortuous litigation is necessary to appreciate fully the issues presented by this appeal. The underlying dissolution of marriage proceeding was commenced on June 14,1988. Judgment was rendered on February 21,1991, thirty-two months later. During the course of this action, three attorneys filed appearances on the defendant’s behalf but subsequently withdrew their representation of her. The first, Gary I. Cohen, filed a motion to withdraw from the case in which he claimed that “difficulties have arisen between counsel and client which make effective representation impossible.”

On November 29,1988, Attorney Arnold M. Potash filed an appearance in lieu of Cohen. On December 20, 1988, the court, Harrigan, J., issued temporary alimony and support orders, but vacated those orders on June 27,1989, after concluding that a financial affidavit filed by the defendant was “unquestionably inaccurate” and “misleading.” After Judge Harrigan vacated the temporary alimony and support orders, hearings on a subsequent motion for temporary alimony were held before the court, F. Freedman, J. Judge Freedman issued temporary alimony and support orders on August 8,1989. On November 21,1989, Judge Freedman ordered the trial to commence on February 15, 1990. On January 10,1990, the defendant discharged Potash and on January 26, 1990, Attorney J. Daniel Sagarin filed an appearance in lieu of Potash. On January 29,1990, Judge Freedman referred the case to the Honorable John Ottaviano, state trial referee, for trial, stating “[t]here will be no further continuances.” Nonetheless, the case again was continued.

On May 16,1990, the first day of trial before Judge Ottaviano, the defendant attempted to fire Sagarin. Judge Freedman referred the matter, without objection, to the court, Mihalakos, J. Sagarin made an oral motion to withdraw before Judge Mihalakos on the basis of his representation that the defendant no longer wanted him to represent her. Judge Mihalakos denied the motion and the trial commenced later that day before Judge Ottaviano.

On May 17, 1990, after one and one-half days of direct examination of the plaintiff, Sagarin began cross-examination. Judge Ottaviano then suspended the trial from May 18,1990, to May 22,1990, to allow the parties to conduct settlement negotiations. On May 24, 1990, with no settlement pending, Judge Ottaviano scheduled the trial to resume on July 17, 1991. Judge Ottaviano noted that the defendant had yet to file a financial affidavit and ordered her to do so or be sanctioned.

The following day, Sagarin delivered a motion to withdraw as counsel together with a supporting memorandum under seal and a letter to Judge Freedman requesting that the motion be assigned to Judge Mihalakos to avoid prejudicing the defendant before Judge Ottaviano. On June 8,1990, an attorney employed by Sagarin’s law firm offered Judge Mihalakos a sealed affidavit in support of the motion. The defendant objected to Sagarin’s motion to withdraw and his submission of the affidavit and requested a continuance to prepare a response to the motion. Attorney Dominic Barbara, a New York attorney who had represented the defendant in other matters but had not filed an appearance in this case, also objected to the affidavit’s being shown to the plaintiff’s counsel, but not to its review by the court. Judge Mihalakos postponed the hearing until June 12, 1990.

On June 12, 1990, Sagarin pursued the motion to withdraw at a hearing before Judge Mihalakos, arguing that his continued representation of the defendant would result in his participation in the defendant’s fraudulent or improper conduct and urging Judge Mihalakos to conduct an in camera review of his affidavit. After the plaintiff’s attorney objected to an in camera review, the defendant stated: “I . . . definitely do not want this affidavit opened up. I think it’s privileged, and if it is submitted I think there should be a hearing without [the plaintiff’s attorney] present so we can ask them questions about this affidavit.”

Judge Mihalakos then recessed and read Sagarin’s affidavit, the contents of which may be summarized as follows: The defendant’s use of $196,000 in proceeds from the sale of a Florida condominium was in dispute in the case. After reviewing testimony given by the defendant before Sagarin entered the case as her attorney, Sagarin advised the defendant that her prior testimony regarding the use of the proceeds from the condominium’s sale was “not inherently credible.” The defendant then told Sagarin that she had used $75,000 of the proceeds to repay a loan from her father. Saga-rin’s interview with her father, however, left him skeptical of this claim. Although Sagarin advised the defendant that he would not allow perjurious testimony or fraudulent documents to be admitted at trial, the defendant refused to admit the falsity of her claim and refused to sign a financial affidavit that was prepared with her approval.

The affidavit further stated the following: On May 14, 1990, Sagarin had received a call from Barbara who claimed that he had been retained by the defendant’s family to protect her interests. Barbara stated that he previously had advised the defendant not to tell the “phony story” about the condominium’s proceeds. Sagarin considered the conversation with Barbara to be “extrinsic proof . . . that the story should not be presented to the court.” On May 17, 1990, Barbara appeared in court in Connecticut and told Sagarin that he had been retained by the defendant’s father and was being paid $4000 per day. Sagarin concluded that because her father could not afford to pay the retainer, the retainer was being paid out of funds hidden by the defendant. From these facts, Sagarin concluded that the defendant’s refusal to sign her financial affidavit was based on “concerns over perjury and fraud.”

After reviewing Sagarin’s affidavit, Judge Mihalakos returned to the bench and granted Sagarin’s motion to withdraw as counsel. When the trial resumed on July 17, 1990, the defendant sought another continuance for the purpose of obtaining counsel. Over the plaintiff’s objection, Judge Ottaviano granted her a one week continuance. He also granted Barbara’s request to appear on the defendant’s behalf pro hac vice, provided Barbara retain local counsel. See Practice Book §24.

Barbara failed, however, to appear in court on July 23, 1990, or any time thereafter. Instead, Attorney Donald Cantor, the defendant’s fifth attorney, appeared on the defendant’s behalf and requested a three month continuance and an order that the plaintiff pay him a $50,000 retainer. Judge Ottaviano denied both requests, and trial resumed the following day. The defendant appeared, unaccompanied by an attorney, and requested another continuance for the purpose of engaging counsel, which the court denied. The defendant represented herself throughout the remainder of the trial. On February 21,1991, Judge Ottaviano rendered judgment dissolving the parties’ marriage and entering consequential orders regarding custody, support and visitation of the parties’ children, alimony and the division of the parties’ assets and liabilities. This appeal followed.

I

The defendant claims that Judge Mihalakos improperly granted Sagarin’s motion to withdraw because the allegations contained in Sagarin’s affidavit, even if true, were insufficient to justify withdrawal under the Rules of Professional Conduct. We disagree.

“The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court.” State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980). The Rules of Professional Conduct have been approved, not adopted, by the judges of the Superior Court. Although they are not binding rules of court, they provide the courts with guidance in confronting issues of professional ethics. Ultimately, however, “[t]he right of counsel to withdraw from any case is a matter which rests within the sound discretion of the court, and this is particularly so where permission is sought during the course of the trial . . . .” Gascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 340, 160 A.2d 899 (1960).

Rule 1.16 (b) of the Rules of Professional Conduct provides in pertinent part that “a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) The client persists in a course of action . . . that the lawyer reasonably believes is criminal or fraudulent . . . .” Under the plain language of the rule, an attorney may be permitted to withdraw from representation, even if withdrawal will have an adverse effect on his client, if he reasonably believes that his client is persisting in a criminal or fraudulent course of action. Here, Judge Ottaviano ordered the defendant to file her financial affidavit or to face sanctions. The affidavit was signed and sworn to by the defendant on May 30,1990. The rules did not require Sagarin to file the affidavit and risk perpetrating a fraud on the court before filing his motion to withdraw as counsel. Further, we cannot say that the allegations of Sagarin’s affidavit are insufficient, if true, to support a conclusion that Sagarin had a reasonable belief that the defendant’s affidavit was fraudulent.

II

The defendant next claims that Judge Mihalakos improperly failed to conduct an evidentiary hearing on Sagarin’s motion to withdraw as counsel. We agree.

We begin our analysis by noting that we share the trial judges’ frustration with the glacial pace of this litigation and the defendant’s substantial and apparently deliberate contribution to it. The defendant’s conduct concerning her employment and retention of counsel is, at best, troubling.

Nonetheless, Judge Mihalakos should not have allowed Sagarin to withdraw solely on the basis of his review of Sagarin’s affidavit. Rather, he should have allowed the defendant an opportunity to contest the factual underpinnings of the affidavit in order to mount a meaningful opposition to the motion to withdraw. The right to an evidentiary hearing to contest important issues of fact has been recognized as a requirement of due process of law under the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution. Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 577, 409 A.2d 1020 (1979); see also Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983); Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 385, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), 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) (right to hearing under federal constitution); Bartley v. Bartley, 27 Conn. App. 195,197-98, 604 A.2d 1343 (1992). “ Tn almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine witnesses.’ Goldberg v. Kelly, [397 U.S. 254, 269, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)]. Tt has long been recognized that “fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-72, [71 S. Ct. 624, 95 L. Ed. 2d 817] (Frankfurter, J., concurring).’ Fuentes v. Shevin, [407 U.S. 67, 81, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972) .... [N]ext to this right, the significance of any argument for judicial expediency or efficiency pales.” Society for Savings v. Chestnut Estates, Inc., supra, 574.

Sagarin’s motion to withdraw raised important, contested issues of fact that should not have been resolved without an evidentiary hearing. Our courts, in reviewing trial court rulings on motions to admit attorneys pro hac vice, have recognized that litigants in a civil case enjoy a right to counsel of their choice, which cannot be infringed upon absent a legitimate state interest. See Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 268-69, 513 A.2d 1211 (1986); Enquire Printing & Publishing Co. v. O’Reilly, 193 Conn. 370, 374-75, 477 A.2d 648 (1984); Yale Literary Magazine v. Yale University, 4 Conn. App. 592, 605, 496 A.2d 201 (1985), aff'd, 202 Conn. 672, 522 A.2d 818 (1987). Indeed, our Supreme Court has indicated that Practice Book § 24, which requires a trial court ruling on a motion for admission to the bar pro hac vice to give “due consideration” to the client’s interests in being represented by his counsel of choice, “embodies this constitutional mandate.” Herrmann v. Summer Plaza Corporation, supra, 268. Because a litigant’s right to counsel of choice in a civil case is rooted in constitutional principle, trial courts also must give due consideration to the litigant’s interests when ruling on a motion to withdraw as counsel. Where the court’s determination as to whether a legitimate state interest exists that outweighs the right to counsel of choice turns on contested issues of fact, the court cannot give the litigant’s interests due consideration without conducting an evidentiary hearing.

The right to counsel of choice is not, however, absolute. Id. Rather, considerations of professional ethics may constitute a legitimate state interest sufficient to overcome the litigant’s right to counsel of choice. Enquire Printing & Publishing Co. v. O Reilly, supra, 376-77; Yale Literary Magazine v. Yale University, supra. In deciding whether the considerations of professional ethics in this case were sufficient to overcome the defendant’s right to counsel of her choice; see Enquire Printing & Publishing Co. v. O’Reilly, supra; Yale Literary Magazine v. Yale University, supra; Judge Mihalakos was required to determine whether the alleged facts that gave rise to the ethical concerns were true, and, if so, whether they were compelling enough to overcome the defendant’s interest in being represented by Sagarin. Although the defendant unequivocally requested an opportunity to protect her interests by contesting those factual allegations, Judge Mihalakos resolved them after merely reviewing Saga-rin’s affidavit. Because the motion to withdraw involved critical issues of fact that impacted on the defendant’s compelling interest to be represented by her counsel of choice, due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution required Judge Mihalakos to afford the defendant a hearing to contest the factual allegations contained in Sagarin’s affidavit.

We disagree with the plaintiff’s contention that Judge Mihalakos properly denied the defendant’s request for a hearing because she requested an ex parte hearing. The issues presented by the motion to withdraw did not implicate the plaintiff’s rights because the plaintiff has no legally cognizable interest in the defendant’s choice of counsel. Although the plaintiff has a significant interest in avoiding undue delay, that interest does not ripen unless and until the motion to withdraw is granted and the issue of a continuance is raised. Further, because there was a substantial likelihood that a hearing on the motion to withdraw would have involved disclosure of communications protected by the attorney-client privilege, the trial court would have acted well within its discretion had it excluded the plaintiff from a hearing on the motion.

III

Finally, the defendant claims that Sagarin’s motion to withdraw was improperly referred to Judge Mihalakos. Although the defendant acknowledges that the issue was not preserved for appellate review, she urges us to consider the issue under the plain error doctrine. See Practice Book § 4185.

Practice Book § 430 provides for the referral of cases to a state trial referee. It states in pertinent part: “Any case referred to a trial referee shall be deemed to have been referred for all further proceedings and judgment, including matters pertaining to any appeal therefrom, unless otherwise ordered before or after the reference.” The defendant claims that because the record reflects no order for proceedings before someone other than Judge Ottaviano, Judge Mihalakos was not authorized to rule on Sagarin’s motion to withdraw.

Although this court is not bound to consider a claim unless it was distinctly raised at trial or arose after the trial, we may, in the interests of justice, review unpreserved claims under the plain error doctrine. Practice Book § 4185. Plain error review generally is “reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Goral v. Kenney, 26 Conn. App. 231, 236, 600 A.2d 1031 (1991); Cuartas v. Greenwich, 14 Conn. App. 370, 375, 540 A.2d 1071 (1988). Here, Sagarin’s affidavit contained allegations of fraud that were tremendously prejudicial to the defendant. The referral of the motion to Judge Mihalakos shielded the defendant from prejudice by removing these allegations from consideration by the trier of fact. As such, the referral served to safeguard, not compromise, the fairness and integrity of and public confidence in the proceedings. There is no plain error.

IV

Because the defendant has not challenged the trial court’s financial awards, she cannot demonstrate that she was prejudiced by the adverse inference that she claims the trial court drew against her. See Starzec v. Kida, 183 Conn. 41, 438 A.2d 1157 (1981); Grahams v. Graham, 25 Conn. App. 41, 48, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991). Thus, the defendant's claim that the trial court improperly drew an adverse inference against her is moot, and we decline to review it. Graham v. Graham, supra.

In light of our disposition of this case, it is not necessary to consider the defendant’s claim that the withdrawal of counsel was grounds for a mistrial.

The case is remanded for a hearing on Sagarin’s motion to withdraw; if that motion is denied, the judgment is reversed and the case is remanded for a new trial; if the motion to withdraw is granted, the judgment is affirmed.

In this opinion the other judges concurred.

       We express no opinion on the accuracy of the allegations set forth in the affidavit.


author: Foti, J.

text:
    Victor Santiago v. Warden, State Prison
    (10286)
    Norcott, Foti and Lavery, Js.

      Argued April 7
    decision released June 16, 1992

      Paula Mangini Montonye, deputy assistant public defender, for the appellant (petitioner).

      Kevin T. Kane, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (respondent).
   Foti, J.

The petitioner appeals from the judgment rendered granting the respondent’s motion to quash his petition for a writ of habeas corpus. He claims that the court improperly rendered judgment without giving him the benefit of an evidentiary hearing. We affirm the judgment of the trial court.

On July 19, 1989, the petitioner pleaded guilty to robbery in the third degree in violation of General Statutes § 53a-136, and admitted to a violation of probation in violation of General Statutes § 53a-32, with no agreed sentence recommendation. On September 13, 1989, he was sentenced to consecutive terms of incarceration of five years on the robbery and two years on the violation of probation. The petitioner did not file a motion to vacate his pleas, nor did he file an appeal. On March 15, 1991, the trial court granted the petitioner’s motion to file an amended petition for a writ of habeas corpus. In his amended petition, the petitioner first claimed that his sentence was illegal because the court failed to offer him his right to allocution pursuant to Practice Book § 919. He further alleged ineffective assistance of counsel at the sentencing in that the trial counsel failed (1) to present any mitigating evidence or argument to the court at the sentencing hearing, (2) to bring to the court’s attention its alleged violation of Practice Book § 919, and (3) to advise the petitioner of his right to appeal the court’s violation of Practice Book § 919. The state filed a motion to quash pursuant to Practice Book § 532, which was granted on May 8, 1991.

On appeal, the petitioner first claims that his sentence was illegal because he was denied the right of allocution, that is, he was not afforded the right to speak in his own behalf before the court at the sentencing hearing. Practice Book § 919 provides in pertinent part that a sentencing hearing shall be conducted at which the defendant shall be allowed a “reasonable opportunity to make a personal statement in his own behalf and to present any information in mitigation of the sentence.” “The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. . . . Indeed, there is no claim that the defendant would have had anything at all to say if he had been formally invited to speak.” Hill v. United States, 368 U.S. 424, 428-29, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962).

In State v. Carr, 172 Conn. 458, 476, 374 A.2d 1107 (1977), our Supreme Court, after tracing the common law history of the right of allocution, noted that the defendant made no attempt to show prejudice from not having been allowed personally to address the judge. It is clear from Hill and Carr that the defendant’s failure to address the court personally does not render the sentence imposed illegal. The Supreme Court also recognized that Practice Book § 2330, the predecessor to Practice Book § 919, had become effective subsequent to the sentencing hearing. State v. Carr, supra, 477 n.6.

The petitioner neither claims, nor does the record reflect, that he sought to be heard and was denied the opportunity to speak. Nor does he claim that the trial court had before it, in the presentence investigation report or elsewhere, any false or misleading information or facts that should not have been considered in imposing sentence. Rather, the petitioner complains that the trial court did not expressly ask him if he wanted to be heard at the sentencing hearing.

The petitioner further claims that a constitutional right of allocution exists under article first, § 8, of the Connecticut constitution and, alternatively, that, if no such right exists, the matter should be remanded nonetheless for an evidentiary hearing on the basis of plain error. We do not agree. The petitioner is unable to cite a single case in support of his position. “Although our state constitution, article first, § 8, provides that an ‘accused shall have a right to be heard by himself or by counsel,’ we have never precisely construed this provision. Similar provisions in other states have not been construed to entitle an accused as a matter of right to be heard by both himself and by counsel.” State v. Carr, supra, 475. We conclude, therefore, that the first count of the amended petition does not allege the existence of a fundamental defect that is cognizable under a writ of habeas corpus.

The petitioner’s second claim on appeal is ineffective assistance of counsel at the sentencing hearing. The state argues that no facts were alleged sufficient to give rise to a recognizable claim that the standard of “reasonably effective assistance” had not been reached.

A motion to quash may be used to attack a writ of habeas corpus for defects appearing on the face of the writ. Fasulo v. Arafeh, 173 Conn. 473, 490, 378 A.2d 553 (1977) (Loiselle, J., dissenting). On a motion to quash a petition for a writ of habeas corpus, the allegations of the petitioner are deemed admitted. Practice Book § 532; Doe v. Doe, 163 Conn. 340, 341, 307 A.2d 166 (1972). A motion to quash is the equivalent to a demurrer to a complaint in a civil action and seeks to test the legal sufficiency of the allegations of the petition. Pi v. Delta, 175 Conn. 527, 528, 400 A.2d 709 (1978). It is true that in order for a habeas court to determine whether the claim of ineffective assistance of counsel meets the criteria set forth in Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), it must first hear the evidence. Here, pursuant to Practice Book § 131, the amended petition is the equivalent of a complaint, and the return would have been in the nature of an answer. Arey v. Warden, 187 Conn. 324, 332, 445 A.2d 916 (1982). The pleadings are so framed, and once the issues have been joined the evidence proffered must be relevant to these issues. Id.

“In a writ of habeas corpus alleging illegal confinement the application must set forth specific grounds for the issuance of the writ including the basis for the claim of illegal confinement.” Macri v. Hayes, 189 Conn. 566, 568, 456 A.2d 1186 (1983).

In its articulation, the court cited page two of the sentencing hearing transcripts dated September 13, 1989, and the “highly speculative nature of the claim with respect to the standards enunciated in Strickland v. Washington, [supra].” The transcript shows that before the court asked defense counsel to speak, it had read the presentence investigation report and was aware of the petitioner’s prior criminal record and previous parole and probation. Defense counsel asked the court to consider the petitioner’s background in imposing sentence, including the fact that he had had a troubled life. While the petitioner, through counsel, in effect threw himself on the mercy of the court, there are no facts alleged in the petition, nor does the record reveal, that the petitioner wanted to speak, had something to say that might have affected the imposition of sentence, wanted to correct or dispute anything in the presentence investigation report, or that counsel knew or should have known of mitigating circumstances not contained in the report that demanded the court’s attention. The petitioner does not claim that he wanted his counsel to do more than rely on the detailed presentence report and throw himself on the mercy of the court. The fact that the court saw fit to impose the maximum period of incarceration is not relevant to the claim of ineffective assistance of counsel.

We are also unpersuaded that the petitioner’s remaining two claims of ineffective assistance merit an eviden-tiary hearing. The petitioner claims that defense counsel failed to request that the court allow the petitioner to speak and that defense counsel failed to advise the petitioner that he had a right to appeal on the grounds that he was not given the right to speak in violation of Practice Book § 919.

In summary, the amended petition is a pleading that on its face is legally insufficient. The petitioner does not allege facts sufficient to support a claim that he was deprived of a fundamental right, or that he received ineffective assistance of counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       A motion to quash a petition for a writ of habeas corpus, if granted, is appealable as a final judgment. Buster v. Commissioner, 26 Conn. App. 48, 50, 596 A.2d 943 (1991).

       Practice Book § 919 provides in pertinent part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows:
      “(1) The judicial authority shall afford the parties an opportunity to be heard and, in his discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report, the alternate incarceration assessment report or any other document relied upon by the judicial authority in imposing sentence.
      “(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his own behalf and to present any information in mitigation of the sentence.”

       Practice Book § 532 provides: “The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash. On such a motion the allegations of the petition are deemed admitted. The motion to quash is not a means by which to test the legal sufficiency of the facts alleged in a return or the answer to the return.”

       In Carr, our Supreme Court noted that “this constitutional issue was neither raised at the trial level nor briefed on appeal.” State v. Carr, 172 Conn. 458, 475, 374 A.2d 1107 (1977).

       The motion to strike has replaced the demurrer in our practice. Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989).

       The Strickland standard is two-pronged: the defendant must show first that counsel’s performance was inadequate, and second that the deficient performance prejudiced the defense.


author: Dupont, C. J.

text:
    State of Connecticut v. Marvin Woodard
    (9778)
    Dupont, C. J., Landau and Heiman, Js.

      Argued February 11
    decision released June 16, 1992

      Laura W. Ray, with whom were William H. Bright, Jr., and, on the brief, William H. Narwold, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61, burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), and kidnapping in the second degree in violation of General Statutes § 53a-94. The defendant claims that the trial court (1) improperly instructed the jury on circumstantial evidence, and (2) should have excluded the testimony of a witness after it was revealed that the New Haven police department had destroyed a tape recording of her telephone call to the police department. We affirm the judgment of the trial court.

On the evening of September 25, 1989, the defendant was in his apartment, which he shared with Alvin Bittle and Theresa Miller. The defendant became irritated because his girl friend, Ida Huckabee, was not at her apartment. The defendant told Miller that he was going to beat Ida and that he was ready to “do a jail bit.” Armed with a knife, the defendant then left his apartment and went to the apartment of Cynthia Huck-abee, Ida’s sister.

Ida Huckabee was at her sister’s apartment with her nephew and a former boyfriend. When the defendant arrived at Cynthia’s apartment, he began kicking and banging on the front door. Ida told the defendant that he could not come in. The defendant eventually forced his way into the apartment, damaging the door and breaking a window. The defendant went into the basement in search of Ida, who was hiding there. The defendant and Ida were arguing when Cynthia arrived at the apartment. She went to the basement where she saw the defendant beating Ida. Although Ida resisted, the defendant pulled her out of the basement and punched her when he got her upstairs. The defendant waved his knife at Cynthia in a menacing way. Cynthia observed that Ida was bleeding from the mouth.

The defendant pulled Ida out of Cynthia’s apartment by her shirt. Ida had no shoes on and did not appear to want to go with the defendant. She asked Cynthia to help her.

After the defendant and Ida left Cynthia’s apartment, the police arrived. Cynthia accompanied them to the defendant’s apartment but they could not find Ida or the defendant. Cynthia did not see Ida again that night. The police told Cynthia to contact them if she learned of the defendant’s whereabouts.

The defendant later brought Ida to his apartment. Miller and Bittle were there. Miller observed that Ida’s mouth was bleeding and that there was blood on her clothing. According to Miller, Ida wanted an ambulance but the defendant would not permit it. Ida laid down on a mattress in Bittle’s room where she cried and said “Don’t hit me no more.”

In the afternoon of September 26, Cynthia learned that the defendant and Ida were in the defendant’s apartment. Cynthia telephoned the police and met them when they arrived. The defendant was apprehended in the apartment after having attempted to climb out a back window. Ida was in obvious pain, appeared to have an injury to her ribs, and had difficulty breathing and speaking. Later medical examination revealed that Ida had suffered contusions to the right side of the head and the lower right ribs and swelling above the right ear.

At trial, the defendant called Ida as his only witness. She admitted that she and the defendant fought in the basement of Cynthia’s apartment, that the defendant grabbed her and held her to prevent her movement, that the defendant hit her and gave her a bloody nose, and that he kicked her and dragged her upstairs. She also admitted that she told other people that she hid in the basement to escape the defendant and that she was beaten by the defendant. Ida also testified that she told the defendant to enter the apartment through a window, that she did not hide in the basement, that she did not ask Cynthia for help, that she left the apartment with the defendant of her own free will, and that the pain in her head was not the result of the assault.

I

The defendant claims that the trial court improperly instructed the jury on circumstantial evidence. The defendant contends that we must reverse the conviction because the trial court never told the jury that facts to be inferred from circumstantial evidence must be proved beyond a reasonable doubt and because the trial court’s example of the permissible use of circumstantial evidence allowed the jury to infer facts under a burden of proof not rising to proof beyond a reasonable doubt. The defendant also argues that the challenged instruction allowed the jury to look to the evidence presented by the defendant to ascertain whether an inference sought by the state had been disproved by him.

The defendant’s challenge to the instruction on circumstantial evidence is raised for the first time on appeal. He seeks our review of this claim pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 832 (1989). He can prevail on a claim of constitutional error not preserved at trial if he can show that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 239-40.

In its instruction, the trial court told the jury to “[kjeep in mind that facts essential to the ultimate inference of guilt must be proved beyond a reasonable doubt.” The defendant’s argument on appeal requires a reading of the charge as though it lacked this critical language. Read in its entirety the challenged instruction correctly stated our law and did not dilute the state’s burden of proof or place an improper burden on the defendant. See State v. Price, 205 Conn. 616, 622, 534 A.2d 1196 (1987); see also State v. Williams, 220 Conn. 385, 399, 599 A.2d 1053 (1991); State v. Willis, 24 Conn. App. 678, 681-83, 591 A.2d 445, cert. granted, 220 Conn. 907, 593 A.2d 968 (1991). It therefore properly guided the jury in its consideration of the evidence, and failed to satisfy the third prong of Golding. Thus, the defendant cannot prevail on this claim.

II

The defendant next claims that the trial court should have excluded the testimony of Cynthia Huckabee because the New Haven police department erased the tape recording of her September 26, 1989 telephone call to the police. We will not review this claim, however, because the defendant did not properly preserve the claim for appellate review.

On September 14, 1990, the defendant filed a motion to exclude Cynthia’s testimony, alleging that the police had intentionally destroyed a recorded statement she made on September 25, 1989. Prior to this motion, the defendant had made a motion to preserve evidence that was granted on November 1, 1989. An evidentiary hearing was held during the course of the trial to determine whether Cynthia’s testimony should be excluded. On the basis of Cynthia’s testimony that she made no phone call to the police on September 25, the defendant conceded that his motion to exclude her testimony for failure to preserve the recording of a phone call made on that date had no viability. The defendant then pursued his motion on the basis of Cynthia’s testimony that she telephoned police on the afternoon of September 26,1989, and the testimony of Lieutenant Stephen Jankowski that the telephone number Cynthia called was a tape recorded line.

The state represented to the court that it first learned that Cynthia had telephoned the police on September 26 when she testified to that fact at the evidentiary hearing. On the basis of the police reports available to it, which reports placed the crime as occurring on September 25, 1989, at 11:45 p.m., the state had requested that the New Haven police department preserve any tape from September 25. The police complied with the state’s request and preserved the tape from September 25. An examination of this tape revealed that it contained nothing pertaining to this case. Neither the state nor the defendant knew that a pertinent phone call had been made on September 26. The state did not seek to preserve the tape from September 26. The tape of calls made on September 26 was erased and reused by the New Haven police approximately forty-five days later.

The trial court found the following facts regarding the September 26 tape: a tape recording was made of the phone call; whatever statements of substance made by the witness concerning the conduct of the defendant were made to the police officer when he arrived on the scene rather than through the call to the police station; the intentional destruction of the tape did not involve bad faith and was more in the form of a mistake or negligence; it could find no prejudice to the defendant resulting from his lack of access to the tape; and the state had met its burden of showing the harmlessness of its destruction of the evidence. The court specifically noted, however, that because Cynthia had not yet testified at trial, it would reevaluate its ruling regarding prejudice to the defendant following her testimony if the defendant so wished.

The court stated that “at this time, although the court did have a minimal opportunity to have Cynthia Huckabee testify, her testimony from a substantive standpoint as to this issue is minimal and the court deems most of what it is saying now at a procedural level. The reason I say that is because of [State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990)]. In other words, the balancing that takes place—normally takes place after a witness has testified and the court can determine whether there are such inconsistencies in the testimony of a particular witness that denial of the tapes to the defense would rise to a reason for sanction. We, obviously, have not had the testimony of Miss Huckabee and . . . assuming that she testifies and I assume that she will ... if the defense wishes pursuant to Johnson [to] raise the issue again, the court will reconsider, to determine whether there is any prejudice. But for the moment, the court can find no prejudice, the court can find minimal culpability on the state's behalf, and for that reason the court is going to deny the defense motion to exclude testimony at this time.” The defendant never sought a reevaluation or otherwise moved to strike her testimony after she testified. Because the defendant did not move to strike the testimony of Cynthia Huckabee after she testified at trial, this claim has not been properly preserved for our review. State v. Johnson, 214 Conn. 161, 169-70, 571 A.2d 79 (1990); State v. Cain, 25 Conn. App. 503, 507-508, 596 A.2d 449, cert. granted, 220 Conn. 931, 599 A.2d 383 (1991). Regarding the issue of excluding the trial testimony of Cynthia Huckabee as a sanction for the intentional destruction of the tape recording of her telephone call to the police, the trial court issued only a preliminary ruling prior to the witness’ trial testimony, not a final adverse ruling. “It was thus incumbent on the defendant to seek a definitive ruling on the striking of [the] witness’ testimony after [she] had testified at trial in order fully to comply with the requirements of our rules of practice for preserving his claim of error with respect to [that witness].” State v. Johnson, supra, 170. Because the defendant failed to preserve this claim in the trial court, we will not consider it.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court instructed the jury on circumstantial evidence as follows: “Now, there are, generally speaking, two kinds of evidence, direct evidence and circumstantial evidence. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence. That is, proof of a chain of facts from which you could find that another fact exists even though it has not been proved directly. You are entitled to consider both kinds of evidence. . . . By way of example, and this is only an example of circumstantial evidence. If you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. Other evidence, such as a turned on garden hose may, however, explain the water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all of the evidence in light of reason, experience and common sense. Keep in mind that facts essential to the ultimate inference of guilt must be proved beyond a reasonable doubt.”

       This case marks at least the twelfth occasion since 1980 that this court or our Supreme Court has had to consider whether the destruction or loss of a witness’ statement by the New Haven police department requires a court to strike the witness’ testimony at trial. See State v. Belle, 215 Conn. 257, 576 A.2d 139 (1990); State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990); State v. Williamson, 212 Conn. 6, 562 A.2d 470 (1989), affirming 14 Conn. App. 108,552 A.2d 815 (1988); State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988); State v. Santangelo, 205 Conn. 578, 534 A.2d 1175 (1987); State v. Mullings, 202 Conn. 1, 519 A.2d 58 (1987); State v. Meyers, 193 Conn. 457, 479 A.2d 199 (1984); State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982); State v. Tyson, 23 Conn. App. 28, 579 A.2d 1083, cert. denied, 216 Conn. 829, 582 A.2d 207 (1990); In re Jesus C. 21 Conn. App. 645, 575 A.2d 1031 (1990); State v. Sims, 12 Conn. App. 239, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988).


text:
    Wendel Hasan v. Warden, State Prison
    (10257)
    Dupont, C. J., Foti and Freedman, Js.
    Argued May 1
    decision released June 16, 1992

      Louis S. Avitabile, special public defender, for the appellant (petitioner).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Bruce Hudoclc, assistant state’s attorney, for the appellee (respondent).
   Foti, J.

The petitioner appeals from the habeas court’s denial of his writ of habeas corpus. Whether that denial should be upheld rests solely on whether the habeas court abused its discretion in denying the petitioner’s motion to amend his petition.

The petitioner was found guilty, after a trial by jury, of the crimes of felony murder in violation of General Statutes § 53a-54c, and burglary in the first degree in violation of General Statutes § 53a-101 (a) (2). These crimes occurred on July 2, 1985. Our Supreme Court affirmed the conviction. State v. Hasan, 205 Conn. 485, 534 A.2d 877 (1987). On August 1, 1986, the petitioner filed a pro se petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel. He filed an amended petition on September 16, 1988, and on March 6, 1990, a second amended petition alleging ineffective assistance of both trial and appellate counsel. After an evidentiary hearing on September 24, September 26, and October 29, 1990, the habeas court denied the petition.

The following is taken from the opinion of our Supreme Court, State v. Hasan, supra, 486-88. “The jury could reasonably have found the following facts. On July 2, 1985, the police were called to the home of George and Rachel Tyler to investigate a possible homicide. The police found George Tyler dead in the kitchen, Rachel Tyler injured, and the premises apparently ransacked. The Tylers’ son and daughter-in-law determined that George Tyler’s wallet was missing as was some of Rachel Tyler’s jewelry. Among the evidence secured by the police were broken glass and linoleum bearing a bloody footprint made by a sneaker. Police suspicion turned to the defendant when, on July 5, 1985, a plumber repairing a clogged toilet in a South Norwalk apartment found two credit cards belonging to George Tyler to be the cause of the clog. The plumber turned the cards over to the owner of the apartment, who reported the find to the police. The police obtained a warrant to search the apartment.

“The defendant had been living at the South Nor-walk apartment intermittently; it was also occupied by his mother, stepfather, his brother, James Singleton, two sisters and James’ girlfriend. Pursuant to the warrant, the police seized several pairs of shoes, including a pair of size ten Puma low cut sneakers which they found at the foot of the bed in which James and his girlfriend slept. The bedroom was actually the defendant’s and most of the belongings there were his. James told the police that the sneakers were the defendant’s and that his own shoe size was thirteen. During custodial interrogation, the defendant stated that the apartment was his primary residence and that he owned a pair of Puma sneakers like the ones seized.

“The conviction depended in large measure on circumstantial evidence. Glass shards and linoleum fibers found in the sole of one of the sneakers, were similar to the mass produced glass and linoleum located at the crime scene, but could not be positively identified as having come from there. Similarly, human blood detected on the sneakers was consistent with the victims’ blood, but could not be positively identified as theirs. During trial, a forensic expert from the Connecticut state police forensic laboratory identified the Puma sneakers as those that made the footprints on the Tylers’ kitchen floor. James testified that the defendant had been in and out of the apartment between July 1 and July 3,1985, and that he had concluded that the sneakers belonged to the defendant because they were in his room under his bed. A former cellmate of the defendant testified that the defendant had admitted to having taken part in the crimes.

“In addition to the foregoing, the jury heard the testimony of Robert Rinaldi, a podiatrist called by the state as an expert witness, who concluded ‘within reasonable podiatric certainty’ that based on his examination of the sneakers and the defendant’s feet, the sneakers belonged to the defendant.’’

The petitioner alleges that trial counsel failed to do thirteen things necessary for effective assistance of counsel and that appellate counsel failed to raise four nonfrivolous issues that likely, either individually or together, would have led to the granting of a new trial.

On October 29, 1990, the third day of evidence on the habeas corpus petition, the petitioner’s habeas attorney viewed the search warrant and affidavit for the first time. He thereafter sought to include a new allegation of ineffective assistance of counsel regarding trial counsel’s failure to challenge the search warrant affidavit by which the sneakers were seized. The habeas court allowed the petitioner to introduce the search warrant and affidavit into evidence. The court did not allow further inquiry into trial counsel’s failure to challenge the search warrant affidavit, however, because it was not raised in the second amended petition. After a hearing, the habeas court denied the petitioner’s motion to amend the petition to conform to the evidence produced. The petitioner filed his proposed amendment along with an affidavit from the petitioner’s appellate attorney indicating that he had not seen the search warrant affidavit prior to December 14, 1990. There was no offer of proof made.

The petitioner claims that a remand is required to allow for a full evidentiary hearing on the issue. “ ‘While our courts have been liberal in permitting amendments; Johnson v. Toscano, 144 Conn. 528, 587, 136 A.2d 341 (1957); this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959). The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. Freccia v. Martin, 163 Conn. 160, 164, 302 A.2d 280 (1972).’ Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-303, 460 A.2d 448 (1983). . . . It is within the discretion of the trial court to grant or deny an amendment, and a decision to deny an amendment during a trial will not be disturbed unless there is a clear abuse of that discretion. Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980).” Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 561-62, 525 A.2d 954 (1987).

“The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.” Papagorgiou v. Anastopoulous, 23 Conn. App. 522, 527, 582 A.2d 1181 (1990). Even if a material variance arguably exists between the allegations and proof, the court, in its discretion, could permit an amendment to the complaint to allow the proof to conform to those pleadings. Practice Book § 178. “Justice is not served [however] by accepting a claim of variance [between allegations and proof] from a party who at all times has been in a position of knowing the true state of facts.” Schaller v. Roadside Inn, Inc., 154 Conn. 61, 67, 221 A.2d 263 (1966).

The petitioner claims that he was unaware that a search warrant existed and had no reason to know that the search warrant application was facially and fatally deficient. He contends that he learned of the warrant and its alleged insufficiency for the first time during the respondent’s cross-examination of trial counsel at the habeas proceeding. It is evident to us, however, that not only was the search warrant part of the defense file at the time of the petitioner’s trial, it was specifically mentioned in the opinion of the Supreme Court on the petitioner’s original appeal. It was also the subject of many questions during the petitioner’s direct examinations of both trial counsel and appellate counsel. Neither the petitioner nor his habeas counsel could have been unaware of the issuance of the search and seizure warrant. The petitioner cannot seriously make a claim of surprise. Further, this petition has been in the judicial system for approximately four years and was one of the oldest cases on the habeas docket at the time.

Our review of the record in this case fails to show a clear abuse of discretion by the habeas court in denying the petitioner’s motion to amend his petition.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 178 provides: “In all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial. If such allegation was made without reasonable excuse, or if the adverse party was actually misled thereby to his prejudice in maintain-mg his action or defense upon the merits, or if such amendment requires postponement of the trial or additional expense to the adverse party and this is shown to the satisfaction of the court, such amendment shall be made only upon payment of costs or upon such terms as the court may deem proper; but in any other case, without costs. Immaterial variances shall be wholly disregarded.”


author: Hetman, J.

text:
    Dominic Fulco v. The Norwich Roman Catholic Diocesan Corporation
    (10664)
    Dupont, C. J., Norcott and Heiman, Js.
    Argued April 1
    decision released June 16, 1992

      Dominic Fulco III, for the appellant (plaintiff).

      Joseph T. Sweeney and James M. Sconzo, for the appellee (defendant).
   Hetman, J.

The plaintiff appeals from the trial court’s judgment in favor of the defendant on the second, fourth, sixth and seventh counts of the complaint. The trial court rendered its judgment after granting the defendant’s motion to strike these counts and their corresponding prayers for relief. See Practice Book § 152 (1).

The plaintiff claims that the trial court improperly (1) refused to apply retrospectively Public Acts 1990, No. 90-55, amending General Statutes § 31-72, (2) found that he had not stated a cause of action under General Statutes § 31-72 as it existed before its amendment by Public Acts 1990, No. 90-55, (3) determined that he had not alleged sufficient facts to invoke the “employer policy” clause of General Statutes § 31-76k, and (4) found that his claim based on the defendant’s alleged negligent infliction of emotional distress was barred by General Statutes § 31-284 (a), the exclusivity provision of the Workers’ Compensation Act. We reverse only the part of the trial court’s judgment in favor of the defendant on the plaintiff’s claim for the negligent infliction of emotional distress, and affirm the balance of the judgment.

The plaintiff alleged the following facts in his complaint. The defendant hired the plaintiff to serve as its director of finance in 1985 and agreed, among other things, to allow him twenty paid vacation days per year. The defendant discharged the plaintiff from employment effective June 23, 1989. As of that date, the plaintiff had used only twenty-six of the 100 vacation days he had earned. The defendant, however, has paid the plaintiff only for twenty vacation days, and owes him the cash value of the remaining fifty-four vacation days.

The plaintiff commenced this lawsuit by filing an eight count complaint. The first count alleged a breach of the parties’ contract. The third count alleged unjust enrichment. The fifth count sought recovery based on quantum meruit. The second, fourth and sixth counts, respectively, alleged an entitlement to double damages pursuant to General Statutes § 31-72 based on the facts set forth in the first, third and fifth counts respectively. The seventh and eighth counts alleged, respectively, the negligent and intentional infliction of emotional distress. The defendant filed a motion to strike the second, fourth and sixth counts, which sought double damages, as well as the seventh count, which sought recovery for the negligent infliction of emotional distress. The trial court granted the motion to strike and rendered judgment in favor of the defendant on the second, fourth, sixth and seventh counts of the complaint. This appeal followed.

I

The plaintiff asserts that the trial court improperly determined that No. 90-55 of the 1990 Public Acts, an amendment to General Statutes § 31-72, does not apply retrospectively. He further argues that even if the amendment does not apply retrospectively, the trial court improperly determined that he had not alleged sufficient facts to entitle him to double damages under General Statutes § 31-72. We disagree with both claims.

On June 23,1989, the effective date of the plaintiffs discharge, General Statutes (Rev. to 1989) § 31-72 provided in pertinent part: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court . . . .” (Emphasis added.) Public Acts 1990, No. 90-55, which took effect on July 1, 1990, amended § 31-72 by providing for double damages “[w]hen any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í . . . or fails to compensate an employee in accordance with section 31-76k . . . .” (Emphasis added.) General Statutes § 31-76k provides that an employer shall pay an employee accrued fringe benefits, including vacation pay, upon the employee’s discharge.

General Statutes § 55-3 provides that “[n]o provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.” “ 'The “obligations” referred to in the statute are those of substantive law’; Nagle v. Wood, 178 Conn. 180, 186, 423 A.2d 875 (1979); and ‘[legislation which limits or increases statutory liability has generally been held to be substantive in nature.’ Little v. Ives, 158 Conn. 452, 457, 262 A.2d 174 (1969). ‘[W]e have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only.’ Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989); Westport v. State, 204 Conn. 212, 219, 527 A.2d 1177 (1987). ‘The legislature only rebuts this presumption when it “clearly and unequivocally” expresses its intent that the legislation shall apply retrospectively.’ Darak v. Darak, supra, 468; see also State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986).” Gormley v. State Employees Retirement Commission, 216 Conn. 523, 529, 582 A.2d 764 (1990).

The plaintiff argues that Public Act No. 90-55 applies retrospectively because it does not create a substantive right, but merely clarifies the legislature’s intent that the term “wages” in § 31-72 be construed to include vacation pay. In support, he relies exclusively on the legislative history of Public Act No. 90-55.

“The principal canon of statutory construction is that where the statutory language is clear and unambiguous, we interpret the statute to mean what it says. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310, 592 A.2d 953 (1991). Under such circumstances, we will look no further for interpretive guidance. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989).” Koskoff v. Haddam Planning & Zoning Commission, 27 Conn. App. 443, 456, 607 A.2d 1146 (1992) (Heiman, J., dissenting). General Statutes § 31-71a (3) defines “wages” for the purposes of § 31-72 as “compensation for labor or services rendered by an employee . . . .” Thus, the definition of wages is limited to remuneration for labor or services rendered, and does not include vacation pay, which is compensation for loss of wages. See McGowan v. Administrator, 153 Conn. 691, 693, 220 A.2d 284 (1966); Conon v. Administrator, 142 Conn. 236, 245, 113 A.2d 354 (1955); Kelly v. Administrator, 136 Conn. 482, 487, 72 A.2d 54 (1950).

Further, it is significant that the legislature chose not to amend the statutory definition of “wages” set forth in § 31-71a (3). Instead, it altered the text of § 31-72, which delineates the breadth of statutory liability, by authorizing double damages when an employer fails to pay an employee wages “or fails to compensate an employee in accordance with section 31-76k . . . (Emphasis added.) The use of the disjunctive “or” clearly indicates that compensation in accordance with § 31-76k is distinct from wages. See State v. Dermis, 150 Conn. 245, 248, 188 A.2d 65 (1963).

The plain language of § 31-72 and Public Act No. 90-55 clearly indicates that the term “wages” in § 31-72 does not include vacation pay. Thus, Public Act No. 90-55, which authorizes double damages for the nonpayment of vacation pay in addition to double damages for the nonpayment of wages, creates new substantive rights and corresponding liabilities. Because nothing in the language of the Public Act suggests a clear legislative intent that it be applied retrospectively, the trial court properly refused to apply it to the facts of this case. See Darak v. Darak, supra; Hunter v. Hunter, 177 Conn. 327, 332, 416 A.2d 1201 (1979).

The plaintiff next claims that, even if Public Act No. 90-55 does not apply retrospectively, the trial court improperly granted the defendant’s motion to strike because the term “wages,” contained in § 31-72 prior to the amendment, is broad enough to include vacation pay. Because we have concluded that vacation pay is distinct from wages for the purposes of § 31-72, the plaintiff cannot prevail on this claim.

II

The plaintiff next claims that the trial court improperly found that he had not alleged sufficient facts to invoke General Statutes § 31-76k itself, without regard to the incorporation of that statute into General Statutes § 31-72 by Public Act No. 90-55. We disagree.

General Statutes § 31-76k provides for the collection of certain fringe benefits, including paid vacations where (1) an employer policy provides for the payment of accrued benefits upon termination, or (2) such payments are provided for by a collective bargaining agreement. The plaintiff argues that he has pleaded sufficient facts to allege the existence of an employer policy that provides for the payment of accrued vacation pay upon an employee’s discharge. He specifically contends that his allegations that (1) an employment agreement existed between the defendant and him, (2) he was not required to work any specific period of time before becoming entitled to twenty paid vacation days, and (3) the defendant compensated him for twenty vacation days after it discharged him are sufficient to allege the existence of an employer policy under General Statutes § 31-76k.

To analyze this claim, we must determine the scope of the statutory term “employer policy.” “Where [as here] a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.” (Internal quotation marks omitted.) Kelemen v. Rimrock Corporation, 207 Conn. 599, 604, 542 A.2d 720 (1988); see also General Statutes § 1-1 (a).

Our Supreme Court, in a different context, has stated that “[a] policy, by definition, is ‘a definite course or method of action selected from among alternatives ... to guide and determine present and future decisions.’ Webster’s Ninth New Collegiate Dictionary.” Heigl v. Board of Education, 218 Conn. 1, 5-6, 587 A.2d 423 (1991). Webster’s Ninth New Collegiate Dictionary also defines policy as “a high-level overall plan embracing the general goals and acceptable procedures. . . .” Thus, the term “employer policy” relates not to the employer’s intent with regard to a single employee, but to its intentions regarding either its employees generally or discrete classes of employees. The plaintiffs complaint, even construed most favorably to him; see Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985); contains no allegation that the defendant engaged in any general plan or practice with regard to paid vacation days. As such, the complaint fails to allege the existence of an employer policy, and the plaintiff has failed to state a cause of action under § 31-76k.

This claim is without merit.

Ill

The plaintiff next claims that the trial court incorrectly found that his claim for the negligent infliction of emotional distress was barred by the exclusivity provision of the Workers’ Compensation Act. We agree.

The Workers’ Compensation Act provides the exclusive remedy to employees seeking compensation for work related injuries or death from such injuries where

(1) the plaintiff was an employee of the defendant,

(2) the plaintiff suffered a personal injury and (3) the injury arose out of and in the course of the plaintiff’s employment. McNamara v. Hamden, 176 Conn. 547, 556, 398 A.2d 1161 (1979); Pagani v. BT II, Limited Partnership, 24 Conn. App. 739, 743, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991). The plaintiff contends that the trial court incorrectly determined that emotional distress constitutes a personal injury and that his particular injury arose out of his employment. We agree that the trial court incorrectly determined that his particular injury arose out of his employment. In light of this conclusion, we need not consider whether the trial court incorrectly found that the plaintiff suffered a personal injury for the purpose of the Workers’ Compensation Act.

General Statutes § 31-275 (12) defines “arising out of and in the course of his employment” as “happening to an employee . . . while he has been engaged in the line of his duty in the business or affairs of the employer . . . . A personal injury shall not be deemed to arise out of the employment unless causally traceable to the employment . . . .” “ ‘To occur in the course of the employment, the injury must take place (a) within the period of the employment, (b) at a place where the employee may reasonably be, and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.’ [.McNamara v. Hamden, supra,].” Pagani v. BT II, Limited Partnership, supra, 746. The allegations of the plaintiff’s complaint, if true, demonstrate that the plaintiff was neither within the period of his employment nor reasonably fulfilling the duties of employment or doing something incidental to it when he sustained his alleged injury.

In his complaint, the plaintiff alleged that his emotional distress arose out of his discharge, not out of the conditions of his employment. Thus, the earliest time that the plaintiff’s injury could have arisen was immediately after his discharge. It is impossible for the injury to have arisen during the period of his employment because his employment necessarily terminated before the alleged injury arose. It would unduly strain the language of the statute for us to conclude that termination of employment creates a job related injury.

Further, the plaintiff was not reasonably fulfilling the duties of his employment or doing something incidental to it when he sustained his alleged injury. Clearly, the process of being fired is not a duty of employment. The proper inquiry is whether the process of being fired was incidental to the plaintiffs employment. See McNamara v. Hamden, supra, 551. “[T]he rule for determining whether the activity is incidental to the employment turns on whether the activity is regularly engaged in on the employer’s premises, within the period of employment, and with the employer’s approval or acquiescence.” Pagani v. BT II, Limited Partnership, supra; see McNamara v. Hamden, supra. The critical language here is “regularly engaged in.” By its nature, the process of being discharged normally occurs only once in an employee’s tenure. It cannot be considered conduct regularly engaged in as an incident to employment. See In re Korsun’s Case, 354 Mass. 124, 128, 235 N.E.2d 814 (1968); Kern v. Ideal Basic Industries, 101 N.M. 801, 802-803, 689 P.2d 1272, cert. denied, 102 N.M. 7, 690 P.2d 450 (1984); Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 382, 426 S.W.2d 760 (1968); Austin v. Johnson, 525 S.W.2d 220, 221 (Tex. Civ. App. 1975).

The defendant, at oral argument, argued that Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 603 A.2d 1160 (1992), stands for the proposition that a claim for the intentional infliction of emotional distress is barred by the exclusivity provision of the Workers’ Compensation Act. He further argued that Saporoso supports his claim that the plaintiff’s injury arose out of the course of his employment. The defendant’s reliance on Saporoso is misplaced. In Saporoso, the plaintiff alleged an entitlement to compensation for emotional distress caused by her employer’s action during her employment. A later attempt to amend the complaint to include allegations concerning the employer’s conduct in connection with the plaintiff’s discharge was properly denied. As the court explicitly stated, “[w]ith-out the proposed amendment, the complaint alleged the infliction of emotional distress by acts of the defendants clearly related to the plaintiffs employment, which occurred only during her period of employment.” (Emphasis added.) Id., 366. Saponoso presented no issue regarding whether an injury sustained as the result of being discharged from employment is an injury that is compensable under our workers’ compensation statutes.

The trial court improperly concluded that the seventh count of the plaintiff’s complaint was barred by the exclusivity provision of the Workers’ Compensation Act. See General Statutes § 31-284 (a).

The judgment in favor of the defendant on the seventh count of the complaint is reversed and the case is remanded to the trial court for further proceedings in accordance with the law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       “[Because] the subject of the appeal is the granting of a motion to strike, the facts giving rise to these claims must be taken from the complaint.” Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 719, 443 A.2d 922 (1982).

       General Statutes (Rev. to 1989) § 31-284 (a) provides in pertinent part: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees .... All rights and claims between employer and employees . . . arising out of personal injury . . . sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter . . . .”