author: PER CURIAM.

text:
    WILLIAM L. ANKERMAN v. COMMISSIONER OF CORRECTION
    (AC 27688)
    Bishop, DiPentima and Freedman, Js.
    Argued September 17
    officially released December 4, 2007

      Darcy W. Ankerman, with whom, on the brief, was William L. Ankerman, pro se, for the appellant (petitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, William L. Ankerman, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) concluded, as to count one of the petition, that he was not denied the effective assistance of trial counsel, and (2) denied the petition as to counts two and three, which alleged that certain witnesses had perjured themselves. We reverse the judgment only as to count three of the habeas petition.

The petitioner was convicted of larceny in the first degree by embezzlement in connection with the embezzlement of certain funds held in trust for the petitioner’s minor client. The petitioner’s conviction was upheld on appeal. State v. Ankerman, 81 Conn. App. 503, 840 A.2d 1182, cert. denied, 270 Conn. 901, 853 A.2d 520, cert. denied, 543 U.S. 944, 125 S. Ct. 372, 160 L. Ed. 2d 256 (2004). On July 6, 2005, the petitioner filed a petition for a new trial. Count one of this petition alleged ineffective assistance of his trial counsel, and count two alleged that certain witnesses at his criminal trial had perjured themselves. On August 11,2005, the petitioner amended his petition to add count three, which also alleged that witnesses in the criminal trial had perjured themselves. On October 3, 2005, the respondent, the commissioner of correction, filed a return in response to the petition. The return, however, addressed only counts one and two as alleged in the original petition. It did not respond to the third count of the petition as amended on August 11, 2005. The petitioner later amended the petition by changing the title from “Petition for New Trial” to “Petition for Habeas Corpus.”

Following trial, the court found, in its oral decision, that the petitioner’s counsel was not ineffective. The court, therefore, denied the petition for a writ of habeas corpus. The petitioner then filed a motion for articulation requesting the court to articulate whether its decision was entered as to count one only, or also as to counts two and three. In response to the motion to articulate, the court issued an order indicating that the petitioner was procedurally defaulted as to counts two and three, as the claims raised in those counts were not raised before the sentencing court or on direct appeal, and the petitioner had neither alleged nor proved cause and prejudice at the habeas trial. The court subsequently granted the petitioner certification to appeal. This appeal followed.

I

The petitioner first argues that the court improperly concluded that he was not denied the effective assistance of counsel. This claim “is governed by the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .... For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Citation omitted; internal quotation marks omitted.) McClendon v. Commissioner of Correction, 93 Conn. App. 228, 230, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006). “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) McClellan v. Commissioner of Correction, 103 Conn. App. 159, 161, 927 A.2d 992 (2007).

The petitioner argued before the habeas court and on appeal that his trial counsel, Jeremiah Donovan, was ineffective for failure to offer a retention agreement and a durable power of attorney, both dated April 15, 1995, into evidence. Donovan, however, testified at the habeas trial that he did not recall the petitioner’s giving him the retention agreement, and further stated that he could not imagine “that there was such a thing and that we didn’t try to offer it.” As to the retention agreement, the court found that “attorney Donovan’s testimony was very reasonable and credible that, as trial counsel, he did nothing inappropriate with respect to the retention agreement because he never saw it, and [that] had he seen it, it would have been exhibit A.” As to the durable power of attorney, the court found that it would “fall under the same category as the retention agreement . . . .”

The petitioner further argues on appeal that the court did not consider his claim that Donovan was ineffective for failure to move for a bill of particulars alleging the specific property taken and the location where the crime was committed. During the habeas trial, however, Donovan testified that he did not need to file a bill of particulars because “[i]t was pretty clear what the money they alleged had been taken was. It was the proceeds of the personal injury settlement.” Although the failure to move for a bill of particulars is not mentioned in the court’s oral decision, the court stated that based “generally on the testimony of attorney Donovan, and I suppose appropriately the way to put it, lack of testimony, expert or otherwise, from the petitioner that the court finds credible, I would find, and I think I’m able to find factually that attorney Donovan was not ineffective, and certainly that portion of the Strickland test was not satisfied.”

As to both of these claims of ineffective assistance of counsel, we note that “[t]he habeas court, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” Alexander v. Commissioner of Correction, 103 Conn. App. 629, 638, 930 A.2d 58 (2007). After our plenary review of the record as a whole, we conclude that the court’s finding that the petitioner was not denied the effective assistance of counsel is supported by both the evidence and the reasonable and logical inferences drawn from such evidence. See Hollby v. Commissioner of Correction, 98 Conn. App. 751, 753-54, 912 A. 2d 494 (2006), cert. denied, 281 Conn. 911, 916 A.2d 50 (2007).

II

With regard to counts two and three of the petition for a writ of habeas corpus, in which the petitioner alleged that certain witnesses had perjured themselves, the court found that the return of the respondent raised procedural default as an affirmative defense. According to the court, the burden then shifted to the petitioner to allege the claimed cause and prejudice, which would permit review of the claim by the court. Because the petitioner neither alleged cause and prejudice, nor proved such at the habeas trial, the court found that he was procedurally defaulted as to counts two and three.

As stated previously, however, the respondent’s return addressed only counts one and two of the petition. The respondent specifically alleged that the claim raised in count two of the petition was procedurally defaulted. The court properly found, as to that count, that the burden then shifted to the petitioner to allege the claimed cause and prejudice to permit review of the claim by the court and that the petitioner had failed to do so. When a petitioner fails to make the required showing of cause and prejudice, a court will not reach the merits of his claim. Solman v. Commissioner of Correction, 99 Conn. App. 640, 644, 916 A.2d 824, cert. denied, 282 Conn. 901, 918 A.2d 888 (2007).

Because the respondent’s return did not respond to count three, however, the court improperly found that the petitioner was procedurally defaulted as to that count. “[T]he plain language of Practice Book § 23-30 (b) requires the state to plead procedural default in its return or it will relinquish the right to assert the defense thereafter. . . . [I]n Connecticut, although the petitioner has the burden of proving cause and prejudice . . . that burden does not arise until after the respondent raises the claim of procedural default in its return.” (Citations omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 734, 779 A.2d 156 (2001). Because the respondent did not plead procedural default as an affirmative defense to count three, the court could not find that the petitioner was procedurally defaulted as to that count.

The judgment is reversed only as it relates to the third count of the petition for habeas corpus and the case is remanded for further proceedings according to law as to that count only. The judgment is affirmed in all other respects.

       The certification of service attached to the amended petition states that it was not served on the respondent, the commissioner of correction, because the respondent had not appeared as of August 11, 2005. Nevertheless, the respondent makes no claim that she did not receive notice of the third count.

       “The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and avoid prejudicial surprise. ... A bill of particulars limits the state to proving that the defendant has committed the offense in substantially the manner described.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 155, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

       The petitioner also claims that Donovan was ineffective for failing to preserve the record for appeal. This particular claim of ineffective assistance of counsel, however, was not raised in the habeas petition. The court, therefore declined to consider this issue during the habeas trial. “This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim. ... To review [claimed errors] now would amount to an ambuscade of the [habeas] judge.” (Emphasis in original; internal quotation marks omitted.) Smith v. Commissioner of Correction, 98 Conn. App. 690, 693, 910 A.2d 999 (2006), cert. denied, 281 Conn. 910, 916 A.2d 52 (2007).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STEPHEN BEECHER ET AL. v. STATE ELECTRICAL WORK EXAMINING BOARD
    (AC 27856)
    DiPentima, McLachlaxi and Peters, Js.

      Argued September 6
    officially released December 4, 2007

      Richard M. Franchi, for the appellants (plaintiffs).

      Robert W. Clark, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

PETERS, J.

In this administrative appeal, an electrical subcontractor and his company on a public works project appeal from sanctions imposed on them by the state electrical work examining board for misconduct in the workplace, including the improper classification and employment of electrical apprentices. They have raised two issues of statutory construction. Their primary claim is that the board lacked the authority to impose these sanctions because, in their view, General Statutes § 31-53 vests exclusive jurisdiction over misclassification of workers in the commissioner of labor. Their secondary claim is that the board violated their statutory and constitutional rights to due process by failing to afford them the compliance hearings prescribed by General Statutes § 4-182 (c). The trial court rejected both claims. We agree and affirm the courts’ judgment dismissing the plaintiffs’ administrative appeal.

On March 18, 2005, the plaintiffs, Stephen Beecher and B & B Electrical Contractors, Inc. (B & B), filed a petition to appeal from two orders of the defendant, the state electrical work examining board (board). The orders incorporated the board’s findings that the plaintiffs repeatedly had violated General Statutes §§ 20-334, 20-341 and 2 la-9 and corresponding administrative regulations. The trial court held that the board had proven its factual allegations and had afforded the plaintiffs the procedural rights to which they were entitled. Accordingly, the court rejected the plaintiffs’ contentions that the board had acted improperly in revoking Beecher’s electrical license and in imposing civil penalties on both plaintiffs. The plaintiffs have appealed.

The presently undisputed findings of the board establish the following factual background for the plaintiffs’ appeal. Beecher was the holder of an unlimited electrical contractor license and the president of B & B. The plaintiffs were the subcontractors for electrical work at the Bullard Havens Regional Vocational Technical High School (Bullard Havens) in Bridgeport.

In breach of his contract obligations, Beecher installed electrical wiring at Bullard Havens that was not new and unused. Concluding that this conduct was unethical, the board revoked Beecher’s electrical license and fined him $3000. The board took no action against B & B with respect to the improper wiring.

Subsequent to its inquiry into the wiring used at Bullard Havens, the board broadened its investigation of the plaintiffs’ performance by inquiring into their use and reporting of electrical apprentices. The board determined that the plaintiffs had permitted four apprentices to perform electrical work without proper supervision and had misclassified them on certain payroll records. Because of this misconduct, the board imposed civil penalties of $1,263,500 on Beecher and $800,500 on B & B.

Without disputing the validity of the board’s adverse factual findings, the plaintiffs maintain that the court improperly dismissed their administrative appeal as a matter of law. In their view, two statutes, §§ 31-53 (f) and 4-182 (c), deprived the board of jurisdiction to adjudicate most of the issues that led to the sanctions imposed on them. Like the trial court, we are not persuaded.

I

In their principal argument for reversal of the judgment of the trial court, the plaintiffs maintain that the penalties imposed by the board on Beecher for misclassification and misuse of electrical apprentices on public works projects were improper as a matter of statutory construction. They contend that the legislature has conferred sole authority to sanction such employer misconduct on the department of labor to the exclusion of the department of consumer protection, which is the board’s parent agency. We are not persuaded.

The trial court rejected the plaintiffs’ argument because, in the absence of any statutory analysis on their part, it had not been adequately briefed. Nonetheless, the board does not dispute the plaintiffs’ contention that they have the right, on appeal, to raise an issue relating to the board’s subject matter jurisdiction to impose substantial penalties on them. “Administrative agencies [such as the board] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . . [I]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. . . . It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power.” (Internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). Judicial review of a state agency’s interpretation of the governing statutes and regulations is particularly appropriate when, as in this case, that interpretation has not previously been subjected to judicial scrutiny. Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650, 931 A.2d 142 (2007). The plaintiffs are, therefore, entitled to a plenary review of the merits of their argument as a matter of law. See id.

The plaintiffs maintain that, in enacting § 31-53, the legislature designated the department of labor as the one and only administrative agency authorized to adjudicate issues relating to payment of prevailing wages and certification of payroll records. In their view, § 31-53 (f) plainly manifests the legislature’s intention that the department of labor “is the all [encompassing] authority over prevailing wages and certified payroll records . . . .” According to the plaintiffs, the jurisdiction conferred by § 31-53 on the department of labor necessarily encompasses the authority to preempt the exercise of jurisdiction over any and all issues relating to misclassification of employees by other administrative agencies, such as the board.

The plaintiffs emphasize that, in this very case, the department of labor cited and fined B & B for failing to pay prevailing wages. As the board observes, however, B & B has no standing to pursue the present claim of jurisdictional error because, unlike the department of labor, the board never imposed any civil penalties on B & B for misclassification. The record is clear that B & B was penalized only for permitting an employee to perform electrical work while not licensed or registered. B & B has failed to proffer any reasoned argument to establish that, as a jurisdictional matter, this misconduct is the functional equivalent of a failure to pay prevailing wages.

The issue before us is, therefore, whether the board had the authority to sanction Beecher for his misconduct in misclassifying several of his electrical employees and permitting these employees to perform work that they were not licensed to perform. Specifically, the plaintiffs assert that Beecher’s misrepresentation of these workers’ credentials falls within the exclusive jurisdiction of the department of labor because § 31-53 (f) requires public works employers to keep, maintain and certify records relating to their employees and to file such records with that department. In their view, although the board concededly has the authority to regulate the “pursuit, practice and standards” of electrical employees “for the preservation of the public safety,” that authority does not extend to policing of the misclassification of employees on records filed with the department of labor.

We note that, apart from a forceful recital of the statutory texts, the plaintiffs again have offered no reasoned support for their argument of statutory exclusivity. In particular, they have not responded in depth to the board’s counterargument that, although filing of payroll records with the department of labor assists that department’s enforcement of its “prevailing wage” mandate; see Electrical Contractors, Inc. v. Tianti, 223 Conn. 573, 593, 613 A.2d 281 (1992); such filings also may serve other legitimate governmental purposes. We find the board’s argument persuasive.

The board cites applicable statutes and regulations that unequivocally confer on the board the authority to require electrical contractors to provide assurance that apprentices perform their work with proper supervision both for their health and safety and for the health and safety of the general public. General Statutes § 20-332 (b) authorizes “[t]he Commissioner of Consumer Protection, with the advice and assistance of the appropriate board [to] adopt regulations ... for the pursuit, practice and standards of the occupations within the jurisdiction of the boards for the preservation of the public safety . . . .” Pursuant to that authority, § 20-332-15a of the Regulations of Connecticut State Agencies permits the appropriate board to discipline an electrical contractor who permits apprentices to undertake work at the job site without proper supervision. In furtherance of the public policy enunciated by the statute and the regulation, General Statutes § 20-334 (c) authorizes a board to impose sanctions on a contractor who “knowingly makes false, misleading or deceptive representations regarding his work or violates the regulations adopted under this chapter . . . .” Finally, General Statutes § 20-341 (b) provides that “[t]he . . . board may, after notice and hearing, impose a civil penalty on any [licensee] who violates any of the provisions of this chapter ... or the regulations adopted pursuant thereto. . . .”

In response to this panoply of legislative and regulatory support for the board’s actions, the plaintiffs simply reiterate their bald claim that, regardless of the text of the statutes and the regulations, board authority over their misconduct “is certainly not consistent with the statutory scheme as stated in [§ 31-53] et seq.” like the trial court, we find this argument unpersuasive.

II

The plaintiffs’ second contention is that the board lacked the authority to impose any sanctions on them because the board failed to give them the notices and failed to conduct the compliance hearings guaranteed to them by § 4-182. That statute provides in relevant part that “[n]o revocation ... of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. . . .” General Statutes § 4-182 (c). Applying the principles enunciated in Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 855 A. 2d 174 (2004), the trial court held that, viewed in its entirety, the administrative record demonstrated that the board had honored Beecher’s statutoiy and constitutional rights to due process. We agree.

The court’s opinion recites the procedural history. On three separate occasions, in August and October, 2003, and March, 2004, Beecher and his lawyer attended compliance hearings to respond to allegations that Beecher had performed incompetent or negligent electrical work and that he had misclassified and failed to supervise electrical apprentices. With respect to these hearings, the board complied fully with § 4-182.

Subsequently, on April 2, 2004, the board informed Beecher’s attorney that it had received additional information that Beecher had violated § 20-334 and its corresponding regulation by having been named in a court settlement for falsifying certified payrolls and time cards and for a citation for failing to pay prevailing wages. Although this letter advised the plaintiffs that proof of such violations might be grounds for additional sanctions and gave them the opportunity to respond, the board did not conduct a further compliance hearing.

Instead, on April 15, 2004, the board began administrative proceedings by filing administrative complaints against the plaintiffs. As the trial court carefully documented in its memorandum of decision, the board held four administrative hearings between May and September, 2004, all of which were attended by Beecher and his counsel. These administrative proceedings addressed both the charges for which compliance hearings had been held and those for which compliance hearings had not been held. Beecher has never claimed that the board impeded, in any way, his ability fully to present his defenses to the charges filed against him.

The court found that Beecher had been given ample notice of the charges against him and had had a sufficient opportunity to be heard. Applying the principles enunciated in Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, supra, 270 Conn. 778, it held that, even if there had not been strict compliance with § 4-182 (c), Beecher could not prevail because he did not establish that this error had prejudiced his substantial rights.

In his appeal to this court, although Beecher alludes to his disagreement with the trial corut’s findings of fact, he has briefed only two related issues of law. He argues that, because the board did not hold a compliance hearing with respect to some of the charges against him, the board (1) did not have subject matter jurisdiction to adjudicate any of the charges and (2) violated his rights to due process. Both issues warrant plenary review by this court. See Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, 283 Conn. 672, 685, 931 A.2d 159 (2007); State v. Kirby, 280 Conn. 361, 378, 908 A.2d 506 (2006).

As the trial court held, Beecher’s claims of illegality depend on a construction of § 4-182 that our Supreme Court has squarely rejected. In Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, supra, 270 Conn. 778, the court held that (1) failure to comply with the provisions of § 4-182 (c) did not deprive an administrative agency of subject matter jurisdiction; id., 793; (2) the requirement of § 4-182 (c) that licensees have an opportunity to show compliance does not require a separate hearing or an opportunity for a hearing prior to the revocation of a license; id., 807; and (3) even if an agency failed to provide adequate notice prior to the initiation of administrative hearings, a licensee cannot establish that such a procedural error is prejudicial unless the administrative hearing failed to afford the licensee an adequate opportunity to offer evidence militating against the agency’s adverse action. Id., 814-15.

Our Supreme Court’s decision in Tele Tech of Connecticut Corp. mandates affirmance of the trial court’s judgment in this case. The board had jurisdiction to decide as it did. In view of the extensive administrative hearings that Beecher attended with his attorney, the court had the authority to decide that the board’s failure to hold a compliance hearing did not deprive Beecher of his statutory or constitutional rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state electrical work examining board is an agency of the department of consumer protection.

       General Statutes § 31-53 provides in relevant part: “(a) Each contract for the construction, remodeling, refinishing, refurbishing, rehabilitation, alteration or repair of any public works project by the state or any of its agents, or by any political subdivision of the state or any of its agents, shall contain the following provision: ‘The wages paid on an hourly basis to any person performing the work of any mechanic, laborer or worker on the work herein contracted to be done and the amount of payment or contribution paid or payable on behalf of each such person to any employee welfare fund, as defined in subsection (h) of this section, shall be at a rate equal to the rate customary or prevailing for the same work in the same trade or occupation in the town in which such public works project is being constructed. Any contractor who is not obligated by agreement to make payment or contribution on behalf of such persons to any such employee welfare fund shall pay to each mechanic, laborer or worker as part of such person’s wages the amount of payment or contribution for such person’s classification on each pay day.’
      “(1) Each employer subject to the provisions of this section or section 31-54 shall (1) keep, maintain and preserve such records relating to the wages and hours worked by each person performing the work of any mechanic, laborer and worker and a schedule of the occupation or work classification at which each person performing the work of any mechanic, laborer or worker on the project is employed during each work day and week in such manner and form as the Labor Commissioner establishes to assure the proper payments due to such persons or employee welfare funds under this section or section 31-54, regardless of any contractual relationship alleged to exist between the contractor and such person, and (2) submit monthly to the contracting agency a certified payroll that shall consist of a complete copy of such records accompanied by a statement signed by the employer that indicates (A) such records are correct; (B) the rate of wages paid to each person performing the work of any mechanic, laborer or worker and the amount of payment or contributions paid or payable on behalf of each such person to any employee welfare fund, as defined in subsection (h) of this section, are not less than the prevailing rate of wages and the amount of payment or contributions paid or payable on behalf of each such person to any employee welfare fund, as determined by the Labor Commissioner pursuant to subsection (d) of this section, and not less than those required by the contract to be paid; (C) the employer has complied with the provisions of this section and section 31-54; (D) each such person is covered by a workers’ compensation insurance policy for the duration of such person’s employment, which shall be demonstrated by submitting to the contracting agency the name of the workers’ compensation insurance carrier covering each such person, the effective and expiration dates of each policy and each policy number; (E) the employer does not receive kickbacks, as defined in 41USC 52, from any employee or employee welfare fund; and (F) pursuant to the provisions of section 53a-157a, the employer is aware that filing a certified payroll which the employer knows to be false is a class D felony for which the employer may be fined up to five thousand dollars, imprisoned for up to five years, or both. This subsection shall not be construed to prohibit a general contractor from relying on the certification of a lower tier subcontractor, provided the general contractor shall not be exempted from the provisions of section 53a-157a if the general contractor knowingly relies upon a subcontractor’s false certification. Notwithstanding the provisions of section 1-210, the certified payroll shall be considered a public record and every person shall have the right to inspect and copy such records in accordance with the provisions of section 1-212. The provisions of subsections (a) and (b) of section 31-59 and sections 31-66 and 31-69 that are not inconsistent with the provisions of this section or section 31-54 apply to this section. Failing to file a certified payroll pursuant to subdivision (2) of this subsection is a class D felony for which the employer may be fined up to five thousand dollars, imprisoned for up to five years, or both.”

       General Statutes § 4-182 (c) provides in relevant part: “No revocation ... of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. ...”

       General Statutes § 20-334 (a) provides in relevant part: “No person shall engage in, practice or offer to perform the work of any occupation subject to this chapter in this state unless such person has first obtained a license as provided in section 20-333 . . . and is subject to all of the regulations adopted under this chapter for the purpose of governing apprenticeship training . . .
      General Statutes § 20-341 (b) provides in relevant part: “The appropriate examining board may, after notice and hearing, impose a civil penalty on any person . . . who wilfully employs or supplies for employment a person who does not have such a license or certificate ... or who violates any of the provisions of this chapter, chapter 394 or chapter 482 or the regulations adopted pursuant thereto. Such penalty shall be in an amount not more than one thousand dollars for a first violation of this subsection, not more than one thousand five hundred dollars for a second violation and not more than three thousand dollars for each violation of this subsection occurring less than three years after a second or subsequent violation of this subsection, except that any individual employed as an apprentice but improperly registered shall not be penalized for a first offense.”

       Pursuant to General Statutes § 20-341 (b), the board had the authority to impose a penalty of $3000 for each of the misclassified employees for each day that each worked at the job site. Other than arguing that the board had no authority whatsoever to impose any penalty for misclassification of the plaintiffs’ employees, the plaintiffs have not challenged either the calculation of the penalties imposed by the board or the propriety of the statutory provision permitting the board to impose, without limitation, a separate penalty for each day of violation.
      Although the plaintiffs charge the board with vindictiveness because its composition included members who were the plaintiffs’ business competitors, the plaintiffs have not argued that the composition of the board violated the applicable statutory guidelines set out in General Statutes § 20-331 (b) or that this statute deprived them of their constitutional rights to due process. Disqualification of administrative adjudicators for bias requires a factual showing of actual bias or of circumstances indicating “a probability of . . . bias too high to be constitutionally tolerable.” (Internal quotation marks omitted.) Rado v. Board of Education, 216 Conn. 541, 556, 583 A.2d 102 (1990). The plaintiffs did not endeavor to make such a showing.

       The plaintiffs do not dispute the board’s authority to adjudicate Beecher’s failure to install new wiring.

       The maximum penalties that might have been imposed by the commissioner of labor pursuant to § 31-53 (b) are considerably less than those that were imposed by the board in this case.

       The board does not claim that its interpretation of the governing statutes reflects a long-standing practice that warrants deference as a “formally articulated interpretation of a statute when that interpretation is both time-tested and reasonable.” See Longley v. State Employees Retirement Commission, 284 Conn. 149, 166, 931 A.2d 890 (2007).

       See footnote 2.

       See General Statutes § 20-332 (b).

       The board asserts, as a matter of statutory construction, that Beecher need not have filed documentation about his employees with the department of labor, but it is undisputed that in this case Beecher did so.

       Section 20-332-15a (d) of the Regulations of Connecticut State Agencies provides: “Any person who encourages or permits an apprentice or helper to so engage in the work or occupation for which a license is required without direct supervision shall also be subject to appropriate disciplinary action. The contractor who obtains the permit for the work for which a license is required shall be deemed to have encouraged or permitted the apprentice or helper to work without direct supervision for the purpose of disciplinary action by the appropriate board.”

       Because the plaintiffs have rejected the board’s public and worker safety argument out of hand, they have made no effort to unbundle the merits of the package of penalties imposed on them. They have not raised any separate question, therefore, about the validity of the board’s decision to impose additional penalties on them for misconduct for which they already had been sanctioned by other governmental entities.

       As the board notes, this claim concerns only Beecher and not B & B because the statute imposes specific procedural requirements only on administrative proceedings with respect to license revocations. As a corporation, B & B did not have, and could not have had, an electrical license.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. NAZRA MUNGROO
    (AC 27603)
    Gruendel, Harper and Mihalakos, Js.

      Argued September 10
    officially released December 4, 2007

      Jodi Zils Gagne, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Thomas R. Garcia, assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Nazra Mungroo, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the first degree in violation of General Statutes § 53a-122'(a) (2) and falsely reporting an incident in the second degree in violation of General Statutes § 53a-180c (a) (3). The defendant claims that the trial court improperly (1) denied her motion for a judgment of acquittal, (2) precluded her from asserting a missing witness argument, (3) excluded certain evidence concerning the timing of her arrest and (4) imposed an illegal sentence. We agree that the sentence imposed by the court is illegal, reverse the judgment on this limited ground and remand the case for resentencing. We affirm the judgment in all other respects.

On the basis of the evidence presented at trial, the jury reasonably could have found that the defendant, while an employee of a hotel in Hartford, wrongfully took approximately $66,000 in checks and $38,000 in cash from the hotel and appropriated the property to herself during a staged robbery. Following her larcenous conduct and her attempt to conceal the same, the defendant reported false information to law enforcement agents investigating the theft of this property. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied her motion for a judgment of acquittal as to both crimes of which she stands convicted. We disagree.

At the close of the state’s case-in-chief, the defendant’s attorney orally moved for a judgment of acquittal. The defendant’s attorney did not argue that the evidence was insufficient as to any specific element or elements of the crimes charged, but argued that the evidence was insufficient to permit a finding of guilt as to either crime in general. The state opposed the motion and summarized its view of the evidence presented. The court, noting its obligation to view the evidence in the light most favorable to the state, summarily denied the defendant’s motion. Immediately thereafter, the defense rested its case.

As a preliminary matter, the defendant argues that the evidence was insufficient because it was circumstantial, rather than direct, in nature. This argument is not persuasive. “The law recognizes no distinction between circumstantial evidence and direct evidence so far as probative force is concerned. If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” State v. Smith, 138 Conn. 196, 200, 82 A.2d 816 (1951); see also State v. Davis, 283 Conn. 280, 330, 929 A.2d 278 (2007); State v. Fagan, 280 Conn. 69, 80, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007); State v. Padua, 273 Conn. 138, 147, 869 A.2d 192 (2005); State v. Gaynor, 182 Conn. 501, 506 n.3, 438 A.2d 749 (1980).

The defendant also argues that the evidence was insufficient “because the police failed to investigate the possibility of any other perpetrator for [these crimes] . . . .” The defendant likewise argues that “the police had more important cases to investigate and did not spend enough time on this case to determine if there were [other hotel employees] who could have also committed this robbery, other than [she].” The defendant devotes a major portion of her argument to discussing portions of the evidence presented at trial and attempting to persuade this court that the juiy should have disagreed with the state’s interpretation of the evidence in favor of her interpretation of the evidence. Repeatedly, the defendant argues that she was “a victim of circumstance” and that there are “many explanations” for evidence that the state argued was probative of her guilt. In her appellate brief, the defendant argues that there are “plausible” ways to interpret the evidence so as to reach a verdict of not guilty and sets forth such explanations of the evidence. The defendant argues: “[W]hen examining all [of the] circumstantial evidence individually, it becomes apparent that there are easy explanations [of the] facts, other than blaming the defendant for this crime. Therefore, the jury should not have simply believed this circumstantial evidence and concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.”

The defendant’s arguments reflect a flawed view of this court’s role in evaluating sufficiency of the evidence claims. As stated by our Supreme Court: “In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence that it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Davis, supra, 283 Conn. 329-30.

The record reflects that the defendant’s attorney availed himself of many opportunities to set forth an interpretation of the evidence that was favorable to the defendant’s case. The defendant’s attorney thoroughly critiqued the state’s theory of the case. Thus, the defendant’s attorney raised most, if not all, of these arguments concerning the inferences to be drawn from the evidence before the appropriate body—the jury that was empaneled to resolve the factual issues in this case.

The defendant does not argue necessarily that the evidence and inferences reasonably drawn therefrom were insufficient to support the verdict, but rather that it would have been reasonable for the jury to draw inferences from the evidence that were consistent with a finding of her innocence. The jury was in a vantage point superior to ours to evaluate the evidence before it, and we decline the defendant’s invitation to reexamine the evidence in an exercise of second-guessing the inferences drawn by the jury. “[T]he finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference.” State v. Conde, 67 Conn. App. 474, 490, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002); see also State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984). We have reviewed the evidence and conclude that a reasonable view of the evidence, consistent with a finding of guilt, amply supports the verdict returned by the jury.

II

The defendant next claims that the court violated her right to make a closing argument by precluding her from asserting a missing witness argument during closing argument. We disagree.

The following additional facts underlie the defendant’s claim. After the parties rested their cases, and prior to oral argument, the defendant’s attorney asked the court for permission to make a missing witness argument concerning two persons who had not testified. The defendant’s attorney identified one of these persons as an unnamed hotel employee who, according to the evidence, was in training at the hotel at or about the time that the events in question occurred. The other person was identified as Lawrence Wagner. The evidence supported a finding that shortly before the events in question on the evening of March 3, 2002, the defendant created a key card for a hotel room that was paid for with a transferable gift certificate that had been issued to Wagner. Months after the incident, a hotel employee found some of the property taken during the robbery, namely a bank ledger and tom checks, in this room. On the basis of other evidence admitted at trial, the state argued that it was not customary for the defendant to have created any key cards and that the circumstances under which she had checked in the guests that stayed in this room were highly suspect. The state also argued that during the defendant’s subsequent conversations with the police, her specific recollection of these guests and the circumstances of their stay at the hotel supported a finding of her guilt on both charges.

Referring to Wagner and the unnamed employee in training, the defendant’s attorney argued: “It would seem to me that not calling these individuals would clearly be an indication that they would not be testifying in a favorable manner to the state, and their nonappearance, I think, is something that ... I should be allowed to argue to the jury.” With regard to Wagner, the defendant’s attorney stressed that there were questions concerning whether he had lost the gift certificate, whether he had transferred it to a third party or whether it had been stolen from him.

The state objected to the defendant’s argument, noting that the hotel employee in training was not known to the parties and that there had been no showing concerning what testimony she could provide. Thus, the state argued that there was no evidence to support a finding that her testimony would be unfavorable to the state’s case. The state observed that there was testimonial evidence from the hotel’s general manager that she had spoken with Wagner and that he had indicated that he had not stayed at the hotel on the evening of March 3, 2002. The state argued that there was no evidence from which to find that Wagner’s testimony would have been unfavorable to the state’s case. The court thereafter refused to permit the defendant’s attorney to argue as requested.

The defendant did not assert a constitutional claim at trial, but argues before this court that the trial court’s ruling violated her right to make a closing argument. Consequently, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record is adequate for review, and the claim is of constitutional magnitude. The claim, however, fails under Golding's third prong because the defendant fails to demonstrate that the alleged constitutional violation clearly exists and clearly deprived her of a fair trial.

“Under the sixth and fourteenth amendments to the United States constitution, a criminal defendant has a constitutionally protected right to make a closing argument. That right is violated not only when a defendant is completely denied an opportunity to argue before the court or the jury after all the evidence has been admitted, but also when a defendant is deprived of the opportunity to raise a significant issue that is reasonably inferable from the facts in evidence.” (Internal quotation marks omitted.) State v. McArthur, 96 Conn. App. 155, 171, 899 A.2d 691, cert. denied, 280 Conn. 908, 907 A.2d 93 (2006).

“In [State v. Malave, 250 Conn. 722, 739, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000)], our Supreme Court abandoned, in criminal cases, the [rule of Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (I960)], also known as the missing witness rule, which sanctioned, under certain circumstances, a jury instruction that an adverse inference may be drawn from the failure of a party to produce a witness. Although our Supreme Court abandoned the Secondino rule, it did not intend to prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness’ absence may reflect on the weakness of the opposing party’s case. . . . Comments in closing argument that do not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence do not necessarily fall under the ambit of Secondino . . . and accordingly are not forbidden by Malave. Our Supreme Court further provided that [o]f course, the trial court retains wide latitude to permit or preclude such a comment, and may, in its discretion, allow a party to adduce additional evidence relative to the missing witness issue. . . .

“The broad discretion vested in trial courts by Malave mirrors the general standards regarding the trial court’s ability to limit closing argument. [T]he scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. ... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the juiy from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations. . . . While we are sensitive to the discretion of the trial court in limiting argument to the actual issues of the case, tight control over argument is undesirable when counsel is precluded from raising a significant issue.” (Citations omitted; internal quotation marks omitted.) State v. Graham, 67 Conn. App. 45, 48-49, 787 A.2d 11 (2001), cert. denied, 259 Conn. 911, 789 A.2d 996 (2002).

A missing witness argument is appropriate in limited circumstances. Counsel may only invite the jury to draw reasonable inferences on the basis of facts in evidence, and the court’s exercise of discretion as to whether to permit such argument is dependent on the facts made known to it. For this reason, it is necessary for counsel, through facts and argument, to justify a request to make a missing witness argument. Our decisional law reflects, for example, that defense counsel should “explain how the state’s decision not to call [a person as a witness] exposed a weakness in the state’s case” and should “make an offer of proof regarding the substance of [such person’s] potential testimony.” Id., 49; see also State v. McArthur, supra, 96 Conn. App. 174. Stated otherwise, counsel must demonstrate that such witness was available to testify, set forth the substance of the testimony that such witness would have given had he been called to the witness stand and explain how his testimony would have been detrimental to the state’s case. Evidence that would have been merely cumulative or of no consequence to a reasonable assessment of the state’s case, for example, would not warrant such an argument. See, e.g., State v. Cruz, 71 Conn. App. 190, 211-12, 800 A.2d 1243, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

With regard to the employee in training, the defendant’s attorney did not make any showing that such person was available to testify or make any representations concerning the substance of this person’s potential testimony. In fact, both parties did not appear to know this person’s identity. On this record, the defendant’s attorney did not make any showing that the state’s decision not to call this person as a witness exposed a weakness in its case.

With regard to Wagner, the defendant’s attorney did not make any showing that he was available to testify or make any representations concerning the substance of his potential testimony. Despite arguing that the evidence revealed questions about Wagner that related to his hotel gift certificate, the defendant’s attorney did not make any showing that the state’s decision not to call Wagner as a witness exposed a weakness in its case.

The defendant’s brief is replete with arguments concerning the “possible” testimony of these persons who were not called as witnesses, as well as how it is “possible” that such testimony could have been detrimental to the state’s case. These arguments are the product of conjecture as to the possible testimony of these persons; they are wholly unsupported by any facts or evidence. A missing witness argument, like all types of closing argument, must be based on the facts or the fair inferences to be drawn therefrom. “[A] party cannot merely comment on the failure of the opposing party to present a witness without first providing a factual or evidentiary foundation from which to infer a weakness in the opposing party’s case.” State v. Graham, supra, 67 Conn. App. 50. Where, as here, a defendant’s claimed entitlement to make a missing witness argument rests on mere speculation, the court’s exercise of discretion in denying permission to make such argument does not reflect an abuse of its discretion. Thus, the defendant has not demonstrated that the court improperly limited closing argument, and the claim fails under Golding’s third prong.

Ill

The defendant next claims that the court improperly precluded certain evidence concerning the timing of her arrest. We disagree.

The state elicited testimony from Michael Lopez, a detective with the Hartford police department, who responded to the reported robbery at the hotel on March 4, 2002. Lopez testified concerning the course and results of his investigation and, specifically, his conversations with the defendant. During his cross-examination of Lopez, the defendant’s attorney asked Lopez to specify the date of the defendant’s arrest. The state objected to the inquiry on the ground of relevance. Outside of the jury’s presence, the defendant’s attorney argued that the fact that the police did not arrest the defendant until approximately one year after the police concluded their investigation following the incident was relevant because “it show[ed] . . . that the police sat on the information they had for over a year, developed no new information and then made an arrest made on information they had a year earlier.” The defendant’s attorney argued that the evidence was “relevant to the strength of the state’s case.” The court sustained the objection.

During subsequent cross-examination, Lopez agreed with the statement by the defendant’s attorney that “the last date that [he had] received any information relevant to [his] investigation” was on June 17, 2002, and that he did not arrest the defendant immediately thereafter. Lopez testified that he had been handling “a very large caseload” and agreed with the characterization made by the defendant’s attorney that he had “put this [case] off because of other more important investigations . . . .” Lopez also testified that he had not identified any other individuals involved in the alleged crimes.

On appeal, the defendant claims that the court abused its discretion in excluding evidence of the date of her arrest. The defendant claims that this evidence “would have shown the possible bias and weakness in the state’s case” in that it “was relevant to the thoroughness of the investigation performed against the defendant in creating this case.” The defendant posits that evidence of a one year delay prior to her arrest tended to prove “that the police failed to properly investigate the crime or that the police let the case lag and simply arrested [her] to clear the docket.” According to the defendant, this evidence “could have shown the jury that the Hartford police department failed to investigate this case properly and did not perform a sufficient examination of every possible cause and perpetrator of this crime.” Among other arguments in this vein, the defendant posits that this evidence tended to prove that Lopez “arrested [her] and decided to let the court system determine if she was guilty instead of doing the police work himself.”

“It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Erhardt, 90 Conn. App. 853, 864-65, 879 A.2d 561, cert. denied, 276 Conn. 906, 884 A.2d 1028 (2005).

“ [E]vidence is relevant if it has a tendency to establish the existence of a material fact. . . . Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . . No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason . . . .” (Internal quotation marks omitted.) State v. Cummings, 91 Conn. App. 735, 743, 883 A.2d 803, cert. denied, 276 Conn. 923, 888 A.2d 90 (2005).

As a preliminary matter, the defendant asserts that the evidence at issue was specifically relevant to the jury’s assessment of the police investigation that led to her arrest, as well as generally relevant to the strength of the state’s case. Certainly, the defendant’s right to present a defense encompassed her right to present evidence that was relevant for such purposes. The defendant has not persuaded us, however, that the evidence at issue had a logical tendency to aid the jury in determining whether the police adequately investigated the case or whether the state failed to prove any of the essential elements of the crimes with which she stood charged. Evidence must logically tend to prove or disprove a material fact for which it is being offered. The date of the defendant’s arrest, when viewed either independently or along with all of the other evidence presented, did not tend to demonstrate that the police had inadequately investigated the case, were unsure that the defendant was the perpetrator of the crimes, had rushed to arrest her or had arrested the wrong person.

Even were we to conclude that the exclusion of this evidence was improper, we nonetheless would conclude that its exclusion was harmless under the facts of this case. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... As we have recently noted, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [0]ur determination that the defendant was harmed by the trial court’s [evidentiary rulings] is guided by the various factors that we have articulated as relevant [to] the inquiry of evidentiary harmlessness . . . such as the importance of the [evidence] in the prosecution’s case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [evidence] on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.” (Internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 641—42, 930 A.2d 628 (2007).

Here, the defendant elicited detailed testimony concerning Lopez’ investigation of the crimes, his police caseload, his view of the importance of this investigation, his inability to identify an accomplice and, importantly, that Lopez did not act quickly in arresting the defendant. During his closing argument, the defendant’s attorney urged the jury to find that Lopez, facing a backlog of cases, was under “pressure” to clear his caseload, hastily “slapped” this case together and rushed to “pin it on” the defendant. Thus, without presenting evidence of the date of the defendant’s arrest, the defendant explored adequately her theory that Lopez’ investigation was inadequate, that her arrest was unwarranted and, generally, that the state’s case was not sound.

Accordingly, we conclude that the court’s ruling reflected a proper exercise of discretion.

IV

Finally, the defendant claims that a portion of the sentence imposed by the court is illegal. We agree.

For the charge of larceny in the first degree, the court imposed a sentence of twelve years incarceration, suspended after five years, followed by five years of probation. For the charge of falsely reporting an incident in the second degree (count two), the court imposed a sentence of five years incarceration, concurrent to the larceny sentence. The defendant claims, and the state agrees, that the court improperly exceeded the statutory maximum limit in its sentence for count two.

“[T]he jurisdiction of the sentencing court terminates once a defendant’s sentence has begun, and, therefore, that court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized to act. . . . Practice Book § 43-22, which provides the trial court with such authority, provides that [t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner. An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. . . . We previously have noted that a defendant may challenge his or her criminal sentence on the ground that it is illegal by raising the issue on direct appeal or by filing a motion pursuant to [Practice Book] § 43-22 with the judicial authority, namely, the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Tabone, 279 Conn. 527, 533-34, 902 A.2d 1058 (2006). “[B]oth the trial court, and this court, on appeal, have the power, at any time, to correct a sentence that is illegal.” (Internal quotation marks omitted.) State v. Constantopolous, 68 Conn. App. 879, 882, 793 A.2d 278, cert. denied, 260 Conn. 927, 798 A.2d 971 (2002). Where, as here, the issue is whether the sentence exceeds relevant statutory maximum limits, the issue is one of law, and we afford it plenary review.

“Falsely reporting an incident in the second degree is a class A misdemeanor.” General Statutes § 53a-180c (b). As such, it is punishable by a definite sentence of “a term [of imprisonment] not to exceed one year . . . .” General Statutes § 53a-36 (1). Plainly, the sentence of five years imposed by the court exceeds the statutory limit for the crime and must be corrected.

The judgment is reversed only as to the sentence imposed for the conviction of falsely reporting an incident in the second degree and the case is remanded for resentencing on that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Alternatively, the defendant asserts that “[t]his evidence may have allowed the jury to assess the credibility of the arresting officer, as well as any witness who clearly believed the defendant committed this crime without direct proof.” Even were we to agree with the defendant that this evidence was relevant to the issue of credibility, which we do not, the record reflects that the defendant did not assert this rationale as a ground of admissibility at trial. We therefore decline to address this aspect of the defendant’s claim. See, e.g., State v. Croom, 166 Conn. 226, 231, 348 A.2d 556 (1974); State v. Hawkins, 162 Conn. 514, 515-16, 294 A.2d 584, cert. denied, 409 U.S. 984, 93 S. Ct. 332, 34 L. Ed. 2d 249 (1972).


author: FLYNN, C. J.

text:
    WYATT ENERGY, INC. v. MOTIVA ENTERPRISES, LLC, ET AL.
    (AC 25454)
    Flynn, C. J., and DiPentima and Rogers, Js.

      Argued December 4, 2006
    officially released December 11, 2007

      Robert A. Izard, Jr., with whom were Barbara F. Wolf and Mark P. Kindall, for the appellant (plaintiff).

      Sheila A. Huddleston, with whom was Paul D. San-son, for the appellee (named defendant).
   Opinion

FLYNN, C. J.

This case arises out of a decision by the plaintiff, Wyatt Energy, Inc. (Wyatt), to solicit purchasers for its New Haven gasoline distribution terminal in 1999. When it did so, Wyatt was in the second year of a ten year contract (terminalling agreement), in which Wyatt had granted to the defendants Shell Oil Company, Shell Oil Products Company, LLC, and Equiva Trading Company, and later Shell’s assignee, the defendant Motiva Enterprises, LLC (Motiva), certain exclusive and nonexclusive rights to the use of its New Haven deepwater terminal. Williams Energy Services (Williams) made an offer to purchase the Wyatt terminal, but Motiva, as Shell’s assignee, had a contractual right of first refusal to purchase. While the sale negotiations were pending between Wyatt and Williams, Motiva purchased a competing terminal facility located in New Haven from Car-gill, Inc., and, subsequently, Motiva declined to purchase the Wyatt terminal. Wyatt later sold its terminal to Williams. Despite a contractual provision requiring it to do so, Wyatt did not make the sale of its terminal to Williams subject to Motiva’s rights to use the terminal.

On appeal, Wyatt claims that the trial court improperly (1) tried Motiva’s breach of contract counterclaim, which had become arbitrable when the court determined that count seven of Wyatt’s complaint was arbitrable, (2) granted Motiva’s motion for summary judgment on Wyatt’s illegality defense to Motiva’s breach of contract counterclaim, (3) failed to consider extrinsic evidence and (4) awarded lost profits to Motiva. Although we disagree with Wyatt with respect to its first claim, we agree with Wyatt that the court improperly granted Motiva’s motion for summary judgment. Accordingly, we reverse the judgment of the trial court. In light of our conclusion, we do not reach the remaining claims.

The following additional facts and procedural history are relevant to our resolution of Wyatt’s appeal. On June 23, 2000, Wyatt informed Motiva by letter that it was terminating the terminalling agreement, effective immediately. Wyatt then sold its terminal facility to Williams without requiring Williams to assume Wyatt’s obligations to Motiva under the terminalling agreement. Following Motiva’s receipt of Wyatt’s termination letter, Motiva, in accordance with the arbitration provision of the terminalling agreement, delivered to Wyatt a demand for arbitration on or about July 6, 2000, alleging a breach of the agreement. Wyatt responded to the demand in August, 2000, by delivering a statement of arbitration defenses and counterclaims, but Wyatt withdrew this statement approximately one and one-half years later.

Thereafter, on July 23, 2002, Wyatt brought an action in the Superior Court, alleging claims for, inter alia, negligent misrepresentation, fraudulent misrepresentation, breach of contract, breach of the implied covenant of good faith and fair dealing, and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and the Connecticut Antitrust Act, General Statutes § 35-24 et seq. In response, Motiva filed an answer and various special defenses and a counterclaim to Wyatt’s complaint, one count of which alleged a breach of contract. Wyatt filed an answer and special defenses in reply to Motiva’s counterclaim, including a special defense of illegality arising from Motiva’s claimed antitrust violations. On August 29,2003, Motiva moved for summary judgment on, inter alia, Wyatt’s illegality defense, which the court granted on December 8, 2003. The summary judgment ruling on Wyatt’s illegality defense, which foreclosed Wyatt from offering evidence at trial, is at the heart of this appeal.

Thereafter, the case was tried to the court, Sheedy, J., on only Motiva’s breach of contract counterclaim, and the court rendered judgment in favor of Motiva in the amount of $3,200,801, plus attorneys’ fees of $891,224.98 and costs of $11,338.44. Wyatt appeals from that judgment. Additional facts will be set forth as necessary.

I

Wyatt first claims that it was improper for the court to try Motiva’s breach of contract counterclaim because that counterclaim became arbitrable once the court determined that Wyatt’s CUTPA claim was arbitrable. Motiva argues, in response, that Wyatt did not raise this issue properly before the trial court and, therefore, may not seek review of this issue on appeal. We agree with Motiva and decline to review the merits of Wyatt’s claim.

As a threshold matter, we must address the issue of which law governs our resolution of Wyatt’s claim. The terminalling agreement contained a choice of law provision, providing that the agreement would be construed and enforced in accordance with the laws of the state of Texas. Although contractual clauses that “require the application of the laws of other states upon breach or dispute are recognized as proper in Connecticut”; (internal quotation marks omitted) Zenon v. R. E. Yeagher Management Corp., 57 Conn. App. 316, 321, 748 A.2d 900 (2000); “procedural issues such as the applicable standard of review are governed by Connecticut law.” Montoya v. Montoya, 280 Conn. 605, 612 n.7, 909 A.2d 947 (2006). Guided by Connecticut law, we decline to review Wyatt’s first claim, which was not raised in the trial court.

“We have stated repeatedly that we ordinarily will not review an issue that has not been properly raised before the trial court. See, e.g., Santopietro v. New Haven, 239 Conn. 207, 219-20, 682 A.2d 106 (1996) (court ‘not required to consider any claim that was not properly preserved in the trial court’); Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) (court declined to consider issues briefed on appeal but not raised at trial); see also Practice Book § 60-5 . . . .” Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000).

Our review of the record and briefs reveals that Wyatt failed to raise as an issue, at any time during the proceedings before the trial court, that the counterclaim became arbitrable once the court determined that the CUTPA count would be sent to arbitration. On February 5, 2004, the court sought clarification from the parties concerning which claims would be tried before the court. The court stated that it had determined previously that count seven of Wyatt’s July 17, 2002 complaint, which alleged a violation of CUTPA, was arbitrable, and, consequently, count seven would not be litigated. This left counts five and six of Wyatt’s complaint, as well as count one of Motiva’s counterclaim and several special defenses raised by Wyatt in response to the counterclaim, excluding the special defenses that were disposed of in the December 8, 2003 summary judgment ruling. Wyatt, however, then withdrew counts five and six. Therefore, Motiva’s breach of contract counterclaim was the sole claim to be tried before the court, along with the special defenses raised in response.

Once all of this was sorted out, the court questioned the parties about whether they wanted a brief recess before proceeding with the trial. In response, counsel for Wyatt stated: “I’m prepared for [Motiva] to go forward, if they are ready to go, but if they would like a recess, it’s fine with me.” Wyatt did not object to proceeding with the trial on the counterclaim. Following a brief recess, the parties each gave opening statements, and the presentation of evidence commenced. Thereafter, Wyatt participated in the six day trial without voicing any objections to the litigation of the counterclaim. Wyatt did not raise the issue before the court that the counterclaim became arbitrable once the court determined that Wyatt’s CUTPA count would be arbitrated.

Moreover, in its reply brief, Wyatt does not attempt to defend against Motiva’s assertion that Wyatt’s claim was not preserved in the trial court. Instead, Wyatt merely asserts that “[a]t trial . . . [its] position was clear” that “the CUTPA and breach of contract counterclaim should be litigated in the same forum . . . .” Wyatt also argues that it “opposed arbitration of the otherwise arbitrable breach of contract counterclaim solely because it was inextricably intertwined with statutory claims and defenses that were not arbitrable

Despite Wyatt’s contention that “[its] position was clear,” our review of the record reveals that Wyatt never once informed the court of its objection to proceeding with the trial on Motiva’s counterclaim because of its belief that the counterclaim was arbitrable. Moreover, Wyatt’s argument that it opposed the arbitration of the otherwise arbitrable breach of contract counterclaim only because it believed that its CUTPA claim was to be litigated does not refute the fact that Wyatt’s claim that the counterclaim should have been arbitrated was not made in the trial court. Even after the court stated that the CUTPA claim would be arbitrated on February 5, 2004, Wyatt did not inform the court of its opposition to the litigation of the counterclaim by arguing that the breach of contract claim also should be arbitrated. Accordingly, we conclude that Wyatt did not preserve the issue, and we decline to review it.

II

We next consider Wyatt’s claim that the court improperly concluded that Motiva was entitled to summary judgment as a matter of law on Wyatt’s illegality defense. We agree with Wyatt.

We begin our analysis by reviewing the procedural history relevant to this claim. In response to Motiva’s breach of contract counterclaim, Wyatt, in its second special defense, alleged that the terminalling contract was illegal. Specifically, Wyatt pleaded that “[Motiva’s] counterclaims are barred by the illegality of the Terminalling Agreement. Motiva’s exclusive control over the Wyatt terminal pursuant to the Terminalling Agreement was a necessary and key part of [Motiva’s] conspiracy to monopolize, attempt to monopolize and actual monopolization of the Western New England market as defined in Wyatt’s complaint. Once Motiva had exclusive control over the Wyatt terminal, it was able to achieve monopolization by purchasing the Cargill terminal, and the Terminalling Agreement became violative of the Connecticut Antitrust Act, [General Statutes] §§ 35-26, 35-27 and 35-29, and the Connecticut Unfair Trade Practices Act, [General Statutes] § 42-110b (‘CUTPA’). The Terminalling Agreement is therefore illegal, void and unenforceable.”

On December 8, 2003, the court granted Motiva’s motion for summary judgment as to Wyatt’s special defense of illegality, ruling that “under both Texas and Connecticut law, the illegality defense fails as a matter of law. The contract did not require a violation of law and was capable of execution without violating the law. See Corporate Leasing International, Inc. v. Groves, 925 S.W.2d 734, 738 (Tex. Civ. App. 1996) . . . .” (Citation omitted.) The case later proceeded to a trial by the court on Motiva’s counterclaim, but because of the court’s entry of summary judgment as to the special defense, Wyatt was barred from presenting evidence that the contract was illegal.

Under Connecticut law, the standard of review of a trial court’s decision to grant a motion for summary judgment is well established. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006). Further, because this appeal involves the applicability of the doctrine of contract illegality, which presents “a question of law for the court, to be determined from all the facts and circumstances of each case,” it is subject to plenary review. (Internal quotation marks omitted.) Parente v. Pirozzoli, 87 Conn. App. 235, 245, 866 A.2d 629 (2005).

Before addressing the merits of Wyatt’s claim, we must first determine which state’s law is applicable to the determination of the existence of illegality. In its summary judgment ruling, the court determined that Wyatt’s illegality defense failed as a matter of law under both Connecticut and Texas law. We conclude that the court, rather than referring to Texas law, should have applied only Connecticut law when determining whether illegality in fact did exist in this particular case.

In reaching this conclusion, we find support in comment (c) of § 202 of the Restatement (Second) of Conflict of Laws, which explains that “the legality or illegality of performance under a contract is usually determined by the local law of the state where this performance either has taken, or is to take, place.” 1 Restatement (Second), Conflict of Laws § 202, comment (c), pp. 645-46 (1971). According to comment (c) of § 202, “[wjhen the validity of a contract is attacked on the ground of illegality, the forum will first decide whether illegality does in fact exist by reference to the appropriate law, which ... is usually the local law of the state where the act in question either has been, or is to be, done.” Id., § 202, comment (c), p. 646; see also E. Scoles, P. Hay, P. Borchers & S. Symeonides, Conflict of Laws (4th Ed. 2004) § 18.39, p. 1035 (noting that Restatement (Second), Conflict of Laws § 202 “provides for primary reference to the law of the place of performance in circumstances where performance is illegal there”). Because the terminalling agreement concerned putting gasoline through the Wyatt terminal in New Haven, we conclude that Connecticut law is the appropriate law to determine whether the Connecticut Antitrust Act was violated. See id.; see also Korea Life Ins. Co., Ltd. v. Morgan Guaranty Trust Co. of New York, 269 F. Sup. 2d 424, 438, 440 (S.D.N.Y. 2003) (court applied Korean law to determine existence of illegality of contract containing New York choice of law provision where Korea was place of performance); see generally Lehman Bros. Commercial Corp. v. Minmetals International Non-Ferrous Metals Trading Co., 179 F. Sup. 2d 118 (S.D.N.Y. 2000).

Having determined the applicability of Connecticut law to the threshold inquiry into the existence of illegality, we now turn to the court’s decision on Motiva’s motion for summary judgment. Because part of the court’s ruling was an incorrect statement of the law as applied to the circumstances of the case, we conclude that the court improperly rendered summary judgment in favor of Motiva on Wyatt’s special defense of illegality.

We first review the part of the court’s ruling on the summary judgment motion that held that the terminailing agreement did not require a violation of the law. After examining the contractual language of the terminailing agreement, we conclude that the agreement on its face does not require a violation of the law. At least at the time of the formation of the contract, we see nothing in the language of the agreement requiring a violation of any law, nor does Wyatt refer us to any.

We next examine the court’s ruling that the illegality defense failed as a matter of law because the agreement was capable of execution without violating the law. Motiva contends in its appellate brief, as it did in its motion for summary judgment, that the terminailing agreement was capable of being performed without violating the law because the lawfulness of a contract is determined by looking only to the time of its formation. In granting Motiva’s motion for summary judgment and in rejecting Wyatt’s illegality defense, the court stated, in relevant part, that the contract was capable of execution without violating the law. The court evidently reached this conclusion because it implicitly agreed with Motiva’s statement of the law that the legality of a contract is determined by looking only to the time of its formation, and, therefore, we construe the court’s ruling as such. We, however, do not agree that the court’s conclusion was proper under the circumstances of this case.

We are cognizant of the general rule that the unlawfulness of a contract “is usually determined as of the time of its making and is not affected by subsequent changes of facts.” (Emphasis added.) 17A C.J.S. 147, Contracts § 197 (1999); see also 12 Havemeyer Place Co., LLC v. Gordon, 76 Conn. App. 377, 390, 820 A.2d 299, cert. denied, 264 Conn. 919, 828 A.2d 618 (2003). However, under the circumstances of the present case, in which antitrust violations are alleged, we conclude that, contrary to Motiva’s contention and to the general rule, the legality of the terminalling agreement and the determination concerning its capability of being performed lawfully cannot be ascertained by looking only to the time of its formation.

In reaching our conclusion that it was improper for the court to conclude that the terminalling agreement was capable of being performed lawfully as a matter of law and that a determination as to the lawfulness of the agreement is made by examining it only at its formation, we are guided by Connecticut antitrust statutes, as well as case law involving antitrust violations. The Connecticut Antitrust Act is a legislative enactment that expresses abroad public policy of promoting competition in the marketplace and prohibiting unreasonable restraints on trade, monopolies and attempts to monopolize a defined market area. See General Statutes §§ 35-26 and 35-27; Vacco v. Microsoft Corp., 260 Conn. 59, 72, 793 A.2d 1048 (2002). Assessing the legality of a contract only at the time of its formation, however, would undermine the policies behind the antitrust statutes, which make a wide array of conduct and practices unlawful.

Control over a given market area need not arise from only one contract or acquisition. See generally Walter A. Wood Mowing & Reaping Co. v. Greenwood Hardware Co., 75 S.C. 378, 383, 55 S.E. 973 (1906) (“In determining whether a particular contract falls within the inhibition of the [antitrust] statute, the Court must necessarily consider the tendency or power of the contract to injure the public, either considered in itself or as part of a scheme to destroy or impede competition and control supply and prices. A contract may be lawful in itself as an isolated matter but yet be unlawful as a part of a scheme to create a virtual monopoly.”). On the contrary, the more likely scenario is that such illicit control results from a series of contracts or acquisitions which, at some point in the progression, cause one party to possess an unreasonable power over a defined market. See id. Thus, a contract, that provides for exclusive marketing rights over a certain terminal, might not violate the antitrust laws at the time of its formation. That initial contract, however, arguably could become violative of those same laws when one of the contracting parties later gains unlawful dominance and control by the purchase of a competing facility within the same market. See generally X.L.O. Concrete Corp. v. Rivergate Corp., 83 N.Y.2d 513, 518, 634 N.E.2d 158, 611 N.Y.S.2d 786 (1994) (noting that contract, which was legal on its face and did not require conduct in violation of antitrust laws, could be related to arrangement or combination in restraint of competition such that its performance would result in conduct prohibited by antitrust laws). Such an accretion of market power, subsequent to the formation of the first contract, is the evil that the antitrust laws prohibit. We find nothing in the statutes or relevant case law that would insulate the contracting parties from the later applicability of the antitrust laws simply because the accretion of power is made possible by a series of acquisitions or contracts.

Although we conclude for the foregoing reasons that the court improperly granted Motiva’s motion for summary judgment as a matter of law, we also agree with Wyatt’s contention in its appellate brief that “[g]enuine issues of fact exist . . . .” Specifically, genuine issues of fact exist between the parties concerning whether the terminalling agreement is related to an unlawful arrangement or combination in restraint of competition. See generally id. Wyatt was entitled to show that there was a relevant market. See Miller’s Pond Co., LLC v. New London, 273 Conn. 786, 814, 873 A.2d 965 (2005) (“[P]roper analysis in an antitrust case first requires determination of the relevant market .... Market definition generally is a deeply fact intensive inquiry . . . .” [Citations omitted; internal quotation marks omitted.]). Wyatt also was entitled to show that Motiva had monopolized or attempted to monopolize it by the later acquisition of the competing Cargill terminal and that compliance with the terminalling agreement would have been violative of Connecticut’s antitrust law. See General Statutes § 35-27. The parties were not in agreement about whether there was a relevant market and whether the Cargill acquisition, in light of Motiva’s control of other similar facilities, gave Motiva monopoly dominance over the relevant market, as the reams of depositions and other documents addressing those issues in this case attest. Wyatt, therefore, was entitled to have a finder of fact determine those disputed issues before the court decided that Wyatt could not offer evidence about its special defense to the breach of contract counterclaim. Accordingly, we conclude that the trial court improperly rendered summary judgment as a matter of law in favor of Motiva on Wyatt’s illegality defense.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Although the answer, special defenses and counterclaim and the motion for summary judgment on Wyatt’s special defenses to the counterclaim were filed on behalf of all of the defendants, judgment was rendered on the breach of contract counterclaim in favor of Motiva only. We therefore consider those pleadings as having been filed by Motiva.

       Count seven of Wyatt’s complaint alleged violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

       Motiva’s counterclaim alleged that Wyatt had breached the contract when, “[without proper cause, [it] unilaterally terminated the contract . . . [and] failed to comply with the notice and cause provision of the Terminalling Agreement.” As a result of this breach, Motiva alleged, inter alia, that Wyatt, when it sold the facility to Williams, failed to assign its obligations to Motiva under the terminalling agreement to Williams.

       Specifically, the terminalling agreement provided: “The Agreement shall be deemed to have been entered into in the State of Texas and the laws of the State of Texas shall be applicable in the construction of the terms and provisions hereof and in the determination of the rights and obligations of the parties hereunder.”

       On September 27, 2002, the court deemed counts one through four of Wyatt’s complaint arbitrable, but Wyatt later withdrew those claims from arbitration. Count eight of Motiva’s complaint was treated as a motion to enjoin arbitration. Counts two and three of Motiva’s counterclaim were withdrawn in November, 2003.

       Wyatt also filed several motions after the court found in favor of Motiva on the counterclaim but failed to seek an articulation as to the basis for court’s decision to try the breach of contract counterclaim.

       In this appeal, Wyatt does not claim that the trial court improperly granted Motiva’s motion for summary judgment on Wyatt’s special defense on the ground that summary judgment is not a proper vehicle for eliminating a special defense, where judgment is not rendered on either a complaint or a counterclaim as a result of the rejection of the special defense. We note, however, that “[although there is no appellate authority, [t]he decisions of the Connecticut Superior Court are almost in unanimous agreement that a motion for summary judgment as [a means to eliminate] a special defense is improper.” (Internal quotation marks omitted.) Banerjee v. Foster, Superior Court, judicial district of Fairfield, Docket No. CV-04-0410456-S (March 5, 2007) (43 Conn. L. Eptr. 42). Because this procedural aspect is not addressed by either parly, we will proceed to review Wyatt’s substantive claim on appeal.

       On appeal, Motiva argues that the interposition of an illegality defense based on antitrust violations in a breach of contract action is disfavored by the federal courts, citing Kelly v. Kosuga, 358 U.S. 516, 79 S. Ct. 429, 3 L. Ed. 2d 475 (1959). The Kelly case is distinguishable from the factual setting of the present case. Kelly involved a contract for the sale of onions, which the purchaser had received but had not paid for. Id., 516-17. The purchaser interposed the seller’s antitrust violations as a defense to payment. Id., 516. The Kelly court would not consider the defense where the purchaser had received the goods, noting that “[p]ast the point where the judgment of the Court would itself be enforcing the precise conduct made unlawful by the [Sherman Antitrust Act, 15 U.S.C. § 1 et seq.], the courts are to be guided by the overriding general policy, as Mr. Justice Holmes put it, ‘of preventing people from getting other people’s property for nothing when they purport to be buying it.’ Continental Wall Paper Co. v. Louis Voight & Sons Co., [212 U.S. 227, 271, 29 S. Ct. 280, 53 L. Ed. 486 (1909) (Holmes, J. dissenting)].” Kelly v. Kosuga, supra, 520-21.
      The present case does not involve a contract for the sale of goods but rather a contract that grants Motiva exclusive marketing rights to put gasoline through the Wyatt terminal and contains an endeavor clause, in which Motiva agreed that it would endeavor to keep the rates at the Wyatt terminal the same as at another terminal Motiva owned in Bridgeport. See footnote 11. Unlike Kelly, no benefit would continue to accrue to Wyatt upon the termination of the contract. Accordingly, we are not persuaded by Motiva’s argument. We cannot find any case law indicating that Connecticut would adopt such a position in this case with regard to alleged violations of the Connecticut Antitrust Act.
      Our review of Texas law reveals that Texas has not adopted the position of the federal courts. Rather, according to Texas law, an antitrust defense can be interposed. See, e.g., Savin Corp. v. Copy Distributing Co., 716 S.W.2d 690, 691 (Tex. Civ. App. 1986); Federal Parts Corp. v. Robert Bosch Corp., 604 S.W.2d 367, 370 (Tex. Civ. App. 1980, writ ref'd n.r.e.) (“[A] contract or transaction in violation of the antitrust statutes is void and unenforceable. . . . Accordingly, [the defendant] was entitled to proceed on its affirmative defense on the legal theory of antitrust violations committed by [the plaintiff].”).

       In its appellate brief, Wyatt addresses the portion of its illegality defense concerning Connecticut antitrust violations, and, therefore, we also only address the Connecticut Antitrust Act.
      In its special defense, Wyatt alleged, inter alia, violations of General Statutes §§ 35-26, 35-27 and 35-29 of the Connecticut Antitrust Act. Section 35-26 provides that “[e]very contract, combination, or conspiracy in restraint of any part of trade or commerce is unlawful.” General Statutes § 35-26. Section 35-27 provides that “[e]very contract, combination, or conspiracy to monopolize, or attempt to monopolize, or monopolization of any part of trade or commerce is unlawful.” General Statutes § 35-27.

       To the extent, that Motiva argues that the law of the chosen state is applicable, citing Zenon v. R. E. Yeagher Management Corp., supra, 57 Conn. App. 316, we find that case to be inapposite. First, we note that Zenon concerns the law to be applied in determining the enforceability of an illegal contract and not the law to be applied in determining, as a threshold matter, the existence of illegality. Id., 328-29; 1 Restatement (Second), Conflict of Laws § 202, comment (c), p. 645 (1971). In addition, the parties in that case agreed that Massachusetts law applied to the plaintiffs claim for nonpayment of a promissory note, which was a part of an illegal arrangement to avoid Massachusetts’ liquor licensing laws for a property located in Massachusetts. Zenon v. R. E. Yeagher Management Corp., supra, 318-21.

       The exclusivity provision of the terminalling agreement provided in relevant part: “Wyatt agrees that at any time during the term of this Agreement, all current or future gasoline truck loading racks within the Facility or any other facility obtained by purchase or lease by Wyatt or its affiliates located in New Haven, [Connecticut] shall be dedicated for use by [Motiva] or its Customers.”
      The terminalling agreement also provided that Motiva would “endeavor” to keep rates the same at the Wyatt terminal as in the Bridgeport terminal, which Motiva also owned.

       A fact finder could conclude that the exclusive rights granted to Motiva to put gasoline through the Wyatt terminal and the language in the agreement, stating that Motiva would endeavor to keep rates the same at the Wyatt termínalas at the Bridgeport terminal did not violate antitrust laws. However, in light of the factual disputes between the parties, a fact finder could conclude that, with the later acquisition of the Cargill terminal, the terminalling agreement between Wyatt and Motiva contributed to antitrust violations. Wyatt, accordingly, had an interest in being able to put on that defense at trial because, as a party to a contract that created such a potentially violative combination, it might have exposure under our antitrust laws.