author: E. O’Connell, J.

text:
    Paul H. Sandrew v. Pequot Drug, Inc., et al.
    (3053)
    Hull, Daly and E. O’Connell, Js.
    Argued March 22—decision
    released August 6, 1985

      J. Michael Sherb, for the appellant (plaintiff).

      Peter W. Rotella, for the appellees (defendants).
   E. O’Connell, J.

This is a summary process action brought on the ground of nonpayment of rent to recover possession of premises rented to the named defendant pursuant to a written lease. Performance under the lease had been personally guaranteed by the defendant Samuel Beilin, president of the named defendant. The plaintiff appeals from a judgment for the defendants dismissing the action.

The trial court did not file a memorandum of decision, but the parties agree on the following facts: On February 9,1979, the plaintiff landlord and the defendant tenant entered into a written lease of commercial ¿remises located in New London. The rent was due and payable on the first of each month and, on September 1, 1983, the tenant failed to pay the rent. By certified letter dated September 14,1983, the plaintiffs attorney notified the tenant that it was in default under the lease.

The trial court granted the defendants’ motion to dismiss this summary process action on the ground that the plaintiff had failed to serve the requisite notice to quit.

The plaintiff appeals claiming that the trial court erred (1) in failing to recognize a waiver of notice to quit provision in the lease and (2) in failing to find that the certified letter satisfied the requirement of an unequivocal act to terminate the lease.

The first issue concerns a clause in the lease in which the tenant waived its right to the statutory notice to quit. The plaintiff argues that he had the right to rely upon this waiver, and that to hold otherwise would significantly alter the agreement between the parties. He contends further that the trial court erred by applying the 1980 amended statute, rather than the statute in effect at the time the lease was executed.

The plaintiff is correct that the statute in effect at the time the lease was executed is controlling. A lease is a contract; Hatcho Corportion v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985); and parties contract with reference to existing law. Id., 21.

The plaintiff relies on General Statutes (Rev. to 1979) § 47a-25 which, in February, 1979, allowed the lessee to waive the ten day notice to quit possession requirement. The plaintiffs reliance on this statute is misplaced because it fails to take into consideration the distinction between a five day notice to quit and a ten day notice to quit. General Statutes (Rev. to 1979) § 47a-23 established a ten day notice to quit for grounds other than nonpayment of rent and a five day notice to quit for nonpayment. While General Statutes (Rev. to 1979) § 47a-25 allowed the lessee to waive the ten day notice, it was silent as to the five day notice. Accordingly, in 1979, there was no statutory authority for waiving the five day notice. See Macha v. Eastern Connecticut Training School for Firemen, Inc., 1 Conn. Cir. Ct. 469, 472-73, 187 A.2d 638 (1962).

We find that the waiver clause in the lease was ineffective to waive the statutory five day notice to quit.

Notwithstanding his contention concerning the waiver clause, the plaintiff claims that his certified letter; see footnote 1, supra; satisfied the notice to quit requirement.

It is well settled that breach of a covenant to pay rent does not automatically result in the termination of a lease; Rosa v. Cristina, 135 Conn. 364, 366, 64 A.2d 680 (1949); Simsbury Turnpike Realty Co. v. Great Atlantic & Pacific Tea Co., 39 Conn. Sup. 367, 370, 465 A.2d 331 (1983); rather, it gives the lessor a right to terminate the lease which he may or may not exercise. Rosa v. Christina, supra; Kovner v. Dubin, 104 Conn. 112, 118, 132 A. 473 (1926); Simsbury Turnpike Realty Co. v. Great Atlantic & Pacific Tea Co., supra. In order to effect a termination, the lessor must perform some unequivocal act which clearly demonstrates his intent to terminate the lease. Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720 (1954).

While there is almost no limit to the possible words or deeds which might constitute the unequivocal act necessary to terminate the lease, none of the cases relied upon by the plaintiff supports the proposition that his actions were sufficient to serve as a substitute for the statutory notice to quit. It is conceivable to this court that a lessor might wish to terminate a lease but not wish to institute a summary process action. For example, a lessor might want to terminate a lease in order to extinguish an option to purchase, even though the lessee had moved from the premises so that a summary process action was unnecessary. In such a circumstance, any type of unequivocal act would be sufficient to terminate all rights arising under a lease although not furnishing a foundation for a summary process action.

“The notice [to quit] is a condition precedent to the bringing of the [summary process] action . . . . ” O’Keefe v. Atlantic Refining Co., 132 Conn. 613, 622, 46 A.2d 343 (1946). A notice to quit is the basis for the inauguration of an action at law and, as such, it must conform to the statute. Vogel v. Bogus, 133 Conn. 95, 98, 48 A.2d 237 (1946).

We have recognized the principle that, because of the summary nature of its remedy, the summary process statute must be narrowly construed and strictly followed. Southland Corportion v. Vernon, 1 Conn. App. 439, 452, 473 A.2d 318 (1984). General Statutes § 47a-23 (b) sets forth the form of the notice to quit with which there must be substantial compliance. A comparison of the statutory notice with the letter sent by the plaintiff reveals that the September 14, 1983 letter does not substantially comply with the format or substance of a statutory notice to quit. The letter fails to indicate the date by which the defendant was to quit possession or occupancy of the premises. Furthermore, the last sentence of the letter negated the effect of a notice to quit, at least until the further negotiation which that letter invited had been conducted. See Danpar Associates v. Falkha, 37 Conn. Sup. 820, 824, 438 A.2d 1209 (1981).

The plaintiff failed to serve the tenant with a notice to quit, a condition precedent to summary process.

There is no error.

In this opinion the other judges concurred.

       The letter dated September 14, 1983, provided:
      “Samuel Beilin, President Pequot Drug, Inc. dba Montauk Pharmacy 209 Montauk Avenue New London, CT 06320 Re: Termination of Lease
      Dear Mr. Beilin:
      You are hereby advised that your landlord, Paul Sandrew, hereby terminates the lease of Pequot Drug, Inc. dba Montauk Pharmacy of the leasehold premises situated at 209 Montauk Avenue in New London. The tenancy is terminated forthwith.
      The reason for this termination is because you have defaulted in the payment of the monthly rent which became due September 1,1983. In accordance with the provisions of paragraph 14 of the lease, the landlord has the right to terminate your tenancy. Any future payments which you might make to the landlord will not be considered to be rent but only reasonable use and occupancy for the premises. I suggest that you call me immediately upon receipt of this letter so that we might discuss a resolution of this matter.
      Very truly yours,
      J. Michael Sherb
      JMS:cl
      cc: Paul Sandrew”

       The lease provided, in pertinent part: “The parties agree that whenever this lease shall terminate either by lapse of time or by virtue of any of the express covenants herein contained, the Tenant hereby waives all right to any notice to quit possession as prescribed by the statute relating to the summary process.”

       General Statutes (Rev. to 1979) § 47a-25: “waiver of notice to quit. When, in any written lease of any land, building, apartment or dwelling unit, notice to quit possession has been expressly waived by the lessee, the ten days’ notice prescribed in section 47a-23 shall not be necessary; and complaint and summons may issue in the same manner as if such notice to quit had been previously given.”

       General Statutes (Rev. to 1979) § 47a-23 provides in pertinent part: “notice to quit possession of premises. When a lease . . . terminates by lapse of time, or by reason of any express stipulation therein . . . [the lessor] shall give notice to the lessee ... to quit possession ... at least ten days before the termination of the lease ... or before the time specified in the notice for the lessee ... to quit possession or occupancy, except when such lease . . . has been terminated by reason of nonpayment of rent, in which case such notice shall be given at least five days before the time specified in the notice for the lessee to quit possession or occupancy (Emphasis added.)

       This court’s interpretation of General Statutes (Rev. to 1979) § 47a-25 is supported by a 1980 amendment to that statute. Public Acts 1980, No. 80-399, § 2 provides, in pertinent part, as follows: “When, in any written lease of any land, building, apartment or dwelling unit, notice to quit possession has been expressly waived by the lessee in the event such lease terminates by lapse of time, the . . . notice prescribed in section 47a-23 . . . shall not be necessary; and complaint and summons may issue in the same manner as if such notice to quit had been previously given.” (Emphasis added.) Wlhile the amended version of General Statutes § 47a-25 is not controlling in this case, it is significant. It is an accepted cannon of statutory construction that “[a] subsequent legislative act may throw light on the legislative intent of a former related act. General Realty Improvement Co. v. New Haven, 133 Conn. 238, 242, 50 A.2d 59 [1946].” Hartford v. Suffield, 137 Conn. 341, 346, 77 A.2d 760 (1950).

       General Statutes § 47a-23 (b) provides, in pertinent part: “I (or we) hereby give you notice that you are to quit possession or occupancy of the [building], now occupied by you, on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy, also the date and place of signing notice). A.B.”

       The last sentence of the letter provided: “I suggest that you call me immediately upon receipt of this letter so that we might discuss a resolution of this matter.”


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Pergament Norwalk Corporation v. William Kaimowitz et al.
    (2517)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued April 4—decision
    released August 6, 1985

      George F. Carroll, Jr., for the appellant (plaintiff).

      Simon Sumberg, with whom was David F. Waters, for the appellees (named defendant et al.).
   Hull, J.

The plaintiff, Pergament Norwalk Corporation, appeals from the trial court’s judgment dismissing its complaint in an action seeking injunctive relief from a zoning variance granted to the defendant Discount Wines and Liquors, Inc., by the Norwalk zoning board of appeals. The variance would enable Discount to build an addition to its liquor store which adjoins the plaintiff’s premises. The trial court, Ford, J., granted the defendants’ motions to dismiss the plaintiff’s complaint on the basis of the plaintiff’s lack of standing to bring this action.

On appeal, the plaintiff basically claims that the trial court erred (1) in dismissing the complaint in its entirety when, in addition to the claim regarding the variance, it raised nuisance and breach of contract claims as well, (2) in finding that the Norwalk zoning board of appeals had jurisdiction to hear the disputed variance application while litigation involving the property at issue was pending, and (3) in concluding that the plaintiff did not have standing to bring the present action. We find error.

On or about March 10,1983, Discount, the lessee of premises at 149 Westport Avenue in Norwalk, applied for a zoning variance from the zoning board of appeals for the purpose of constructing an addition to its liquor store. The application form provided by the city required Discount to list the names and mailing addresses of “all adjoining property owners including property owners on the opposite [s]ide of any street.” Discount provided, as an appendix to its application, a list of thirteen property owners. It did not, however, list the name of the plaintiff, which is the lessee, under a twenty-four and one-half year lease, of the remainder of the building in which Discount is located. The plaintiff operates a home improvement center on its portion of the premises encompassing roughly 95 percent of the area of the building containing the two stores.

All of the owners listed by Discount received actual notice, by mail, of the variance application. Notice of the hearing on that application was otherwise provided by publication in a Norwalk newspaper, The Hour, on March 25, 1983, and April 1, 1983. The plaintiff, nevertheless, remained unaware of the hearing. Further, the zoning board of appeals published a legal notice on April 13,1983, stating that, on April 7,1983, a variance to the zoning regulations had been “granted with conditions,” to Discount, to become effective on April 29, 1983.

The plaintiff did not appeal the decision of the board within fifteen days as provided by General Statutes § 8-8 (a). On May 19, 1983, the plaintiff brought this suit, in one count, alleging: (1) that the variance had been granted by the board without subject matter jurisdiction since the plaintiff, an adjoining “owner,” had not received adequate notice, and since the board acted in violation of the Norwalk code in acting on the application; (2) that the construction of the addition would violate the terms of the plaintiffs lease; and (3) that the addition itself would constitute a nuisance.

The trial court, upon nearly identical motions of two groups of the defendants, dismissed the entire complaint. A subsequent rectification of its decision stated the court’s conclusion that “[t]he Plaintiffs, simply stated, do not have standing since they were not within the classification . . . required to be notified of the application for a zoning variance, nor did they institute a proper appellate proceeding following the issuance and publication by the Defendant, City of Nor-walk, of its decision within the time limitations imposed by law.” From that dismissal, the plaintiff appealed to this court.

In a suit claiming injunctive relief against the use of property pursuant to zoning action or regulation, the plaintiff does not have to allege or prove standing. Rather, “[i]f the plaintiffs have suffered special damages as alleged in their complaint, the court has equitable jurisdiction and may grant injunctive relief” where there is no zoning decision which may be appealed directly; Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 180, 377 A.2d 280 (1977); or where the decision of the zoning authority is void for lack of jurisdiction. Crouchley v. Pambianchi, 152 Conn. 224, 226, 205 A.2d 492 (1964); Smith v. F. W. Woolworth, 142 Conn. 88, 93, 111 A.2d 552 (1955). In the present case, since the zoning board did render a decision, we look to the second part of this test.

Standing or aggrievement, which terms are often used interchangeably in the area of zoning, is not an issue in this action. The basis of the claimed jurisdictional defect is that the plaintiff, as an “owner,” was not afforded actual notice of the hearing and the board’s decision. The court ruled that the plaintiff was not an owner and, accordingly, dismissed the case. We conclude that the court properly decided that the plaintiff’s lack of “owner” status defeated that basis for its claim that the board lacked jurisdiction over the application.

The plaintiff is, quite simply, not an “owner” of property which is entitled to notice by mail. Although it argues that the extended duration and high visibility of its leasehold interest should provide it with “owner” status, leasehold interest holders were not contemplated by Norwalk to be entitled to notice by mail. The guide provided by the city to applicants for zoning variances specifically directs applicants to. the office of the city tax commissioner for assistance in obtaining the mailing addresses of “owners” entitled to actual notice. Since lessees are, pursuant to General Statutes § 12-48, not taxed on their interests in the land that they rent, their addresses would not be available from the office of the tax commissioner regardless of the duration of their tenancies. This advice from the city evidences the board’s construction and interpretation of the requirements of the application. Great deference should be accorded to such interpretations. Chamber of Commerce of Greater Waterbury, Inc. v. Lanese, 184 Conn. 326, 331, 439 A.2d 1043 (1981); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975); Breen v. Department of Liquor Control, 2 Conn. App. 628, 634, 481 A.2d 755, cert. granted, 194 Conn. 808, 483 A.2d 1098 (1984).

This case does nbt involve the interpretation of the phrase “owning land” as that phrase is used in General Statutes § 8-8 (a), which authorizes certain neighboring property owners to appeal decisions of zoning authorities. Nevertheless, interpretations of the phrase “owning land” as used in that statute are relevant to the case before us. In that context, we look to Smith v. Planning & Zoning Board, 3 Conn. App. 550, 490 A.2d 539, cert. granted, 196 Conn. 809, 494 A.2d 906 (1985). In that case, we held that a life tenant is a “person owning land” within the meaning of General Statutes § 8-8 (a). We stated there that “ ‘owner’ is generally defined with reference to title.” Id., 553. “A life estate is an interest in real property, the duration of which is limited by the life of some person. Such person may be the party creating the estate, the tenant himself, or some other person or persons. It may be for an indefinite period which may last for a life. It is of no consequence how uncertain the duration of the estate may be. If it can or may continue during a life, it is a freehold or life estate. It outranks an estate for hundreds of years, because it is said that no one knows how long a man may live. The principal distinction between a tenancy for life and such tenancies as at will, from year to year, and at sufferance is that a tenancy for life confers a freehold upon the tenant, whereas in the other tenancies mentioned the tenant has a chattel interest only.” (Footnote omitted.) 4 Thompson, Real Property § 1893. We conclude, therefore, that the plaintiff was not entitled to actual notice in the present case as it was not an “owner.”

We conclude, nevertheless, that the court erred in dismissing the action because it never reached a second, separate and distinct basis for the plaintiffs claim that the board lacked jurisdiction over the application.

The plaintiff alternatively alleged that the board violated the Norwalk code by accepting jurisdiction over the application while litigation affecting the property at issue was pending. At the time the application was filed, three separate but related actions were pending in both state and federal courts regarding the plaintiffs attempt to fence in an area which encompasses the same area into which Discount subsequently expanded. We conclude that whether those actions constituted "litigation concerning the matter,” as contemplated by the Norwalk code, is a mixed question of law and fact which must be determined by the trial court upon a remand. If that litigation does constitute a bar to the board’s acceptance of jurisdiction over the application, then the present action should proceed on its merits.

In the event that the trial court concludes that the board did have jurisdiction to rule on the application, the court must, nonetheless, rule on the merits of the plaintiffs claims of nuisance and breach of contract. The basis of the court’s dismissal was the plaintiff’s lack of standing to sue the board. That conclusion did not, however, reach the plaintiff’s claims against the Kaimowitzes, Kamson Company or Discount. Thus, the court erred in dismissing that portion of the complaint raising claims against those defendants. Practice Book § 143 lists five express grounds upon which a motion to dismiss may be based. None of these grounds was claimed as to the Kaimowitzes, Kamson or Discount, nor do we find any of them to be applicable.

There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The named defendant is one of the owners of the property to which the variance applies. Carl Kaimowitz, the other owner of the property, and the Kamson Company, through which the Kaimowitzes do business, are also defendants herein. In addition, Discount Wines and Liquors, Inc., the lessee of the premises and the instigator of the variance application, Samuel Resnick, the building inspector for the city of Norwalk, and Joseph Tamsky, the director of planning and zoning for the city of Norwalk, are also defendants.

       General Statutes § 12-48 provides, in part: “When one is entitled to the ultimate enjoyment of real or personal estate liable to taxation, and another is entitled to the use of the same as an estate for life or for a term of years by gift or devise and not by contract, such estate shall be set in the list of the party in the immediate possession or use thereof, except when it is specially provided otherwise.”

       General Statutes § 8-8 (a) provides: “Any person or persons severally or jointly aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.”

       Significantly, a life estate is a taxable property interest to the life tenant pursuant to General Statutes § 12-48. See footnote 3, supra. Thus, under the instructions provided to applicants by the city of Norwalk, a life tenant would have been notified, by mail, of the application in this case.

       We do not dismiss the possibility that a tenant for a great number of years may, because of such factors as the length and nature of its tenancy, its formal assumption of real estate property tax liability, and its ability, under its lease, to deal with the property almost as if it were, in effect, a fee holder, be deemed an owner of the property for purposes of a particular zoning ordinance or statute. See University of Hartford v. Hartford, 2 Conn. App. 152, 158-59, 477 A.2d 1023 (1984). This record, however, does not present that extreme situation.

       Norwalk Code § 116-7 (F) provides: “No application or petition will be considered if litigation concerning the matter is pending.”

       See Kaimowitz v. Pergament Norwalk Corporation, Superior Court Housing Session, Judicial District of Stamford-Norwalk, No. SPN 08303-00472; Cingari v. Kaimowitz, Superior Court, Judicial District of Stamford, No. CV 820063144S; Pergament Norwalk Corporation v. Kamson Co., United States District Court, District of Connecticut at Bridgeport, No. 83OCIV3092.

       With respect to the plaintiffs argument that the provision for notice by publication is constitutionally defective, we note that this claim is utterly without merit. In Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 487 A.2d 559 (1985), the court found a notice of hearing, virtually identical to that present here, and a significantly less informative notice of decision, to be valid. Id., 283. Further, although this point was not raised in the briefs before this court, we also note that General Statutes § 8-7 mandates only that parties are to be given “due notice” of an appeal to the zoning board of appeals. Since the plaintiff was not a party, it was not entitled to notice other than by publication as is also mandated by General Statutes § 8-7.

       Although Practice Book § 147 (3) specifically provides that a party desiring to obtain the separation of causes of action improperly combined in one count may file a request to revise the complaint, the defendants did not file such a request.

       Practice Book § 143, as it read at the time of the trial court’s dismissal, provides: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”


author: Glass J.

text:
    Sandra Esposito et al. v. Joy Wethered et al.
    (3332)
    Dupont, C.P.J., Borden and Glass, Js.
    Argued June 10—decision
    released August 6, 1985

      Roy W. Moss, for the appellants (plaintiffs).

      James E. Coyne, for the appellee (defendant Southern Connecticut Gas Company).
   Glass J.

The plaintiffs, Sandra Esposito and Anthony Esposito, brought this action against the defendants, Joy Wethered and Southern Connecticut Gas Company (Southern), for damages arising out of a motor vehicle collision which resulted in personal injuries to the plaintiff Sandra Esposito and damage to an automobile owned by the plaintiff Anthony Esposito. After the pleadings were closed, Southern moved for summary judgment, claiming that, as to it, there is no genuine issue as to any material fact alleged in the complaint. The trial court granted the motion, and from the judgment rendered the plaintiffs appealed. We find error.

In the complaint, the plaintiffs allege that on June 17, 1977, the plaintiff Sandra Esposito was operating a motor vehicle owned by the plaintiff Anthony Esposito in a westerly direction on Post Road in Westport. In anticipation of making a left turn into a private parking lot, the plaintiff Sandra Esposito caused the vehicle operated by her to stop on Post Road in the inside westbound lane. At that time, a vehicle owned and operated by the defendant Joy Wethered was also traveling west and to the rear of the vehicle operated by the plaintiff Sandra Esposito. Also alleged in the complaint is that Southern was the owner of a vehicle left in a parked position on the roadway on the north side of Post Road. While Sandra Esposito was in a stopped position, her vehicle was struck by the vehicle operated by Wethered. The allegations of negligence against Southern are as follows: that its vehicle was allowed to remain in a parked position on the traveled portion of the highway; that its vehicle was allowed to remain in a hazardous position, causing injuries and damages to the plaintiffs; that it failed to warn the plaintiffs of the presence of its vehicle; that it failed to erect proper barriers and safeguards alerting other cars of the presence of its vehicle; and that it knew or should have known that by leaving its vehicle on the highway, it would increase the hazards to operators traveling in a westerly direction on Post Road, including Sandra Esposito. In their answers, both defendants denied the plaintiffs’ allegations of negligence as to themselves.

Thereafter, Southern moved for summary judgment and, in support of its motion, submitted excerpts from a deposition of Sandra Esposito. These excerpts were that Southern’s truck “wasn’t on the road” nor “on the curb” but was parked with red flashing lights on what was “like a shoulder and up on the grass.” In response to the question, “[d]id that truck cause a squeeze situation where two lanes would have to merge into one,” she answered, “[n]o.” Inquiry was then made as to whether “two lanes of traffic could go by the truck” and she answered, “[y]es.” She also stated that about twenty vehicles passed between her vehicle and Southern’s truck.

Thus, contrary to the allegations in the complaint, the deposition testimony of Sandra Esposito was that the vehicle of Southern was parked on the shoulder and grass of Post Road with red flashing lights and several vehicles passed her stopped vehicle before she was struck by the defendant Wethered.

In opposition to Southern’s motion for summary judgment, the plaintiffs filed two documents consisting of excerpts from the deposition of the defendant Wethered and a copy of the police report of the investigating officer. According to the police officer’s report, all of the motor vehicles had been moved by the time he arrived at the accident scene and, therefore, the police report contained no personal observations of the police officer. The plaintiffs could not, therefore, rely on that report to contest the summary judgment motion. Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1984).

In substance, the defendant Wethered testified in her deposition that she saw Southern’s truck about five car lengths away before she reached it and that it was positioned on about one-half of the outside travel lane. She testified that she saw the vehicle operated by Sandra Esposito in the inside lane and that she did not see any signal lights. Her answer was unresponsive as to whether she could pass between that vehicle and Southern’s vehicle. In determining Southern’s motion for summary judgment, the trial court could consider the pleadings and the two depositions.

A motion for summary judgment may be filed by any party at any time, addressed to the claim or counterclaim, after the pleadings are closed as between the parties to the motion. Practice Book § 379. “ ‘The party moving for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which under applicable principles of substantive law, entitled him to judgment as a matter of law. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971).” Fogarty v. Rashaw, supra, 445. If there is no genuine issue as to any material fact, the moving party is entitled to judgment forthwith as a matter of law. Practice Book § 384.

The testimony in the two depositions regarding the position of the truck on Post Road is in conflict. Sandra Esposito testified that the truck was not parked on the road or on the curb, but on the shoulder and grass of Post Road; the defendant Wethered testified that the truck was parked on about one-half of the westbound outside lane on Post Road. This conflicting testimony presents a genuine issue as to a material fact and resolution of this conflict is within the exclusive province of the trier. Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 199, 319 A.2d 403 (1972); DiUlio v. Goulet, 2 Conn. App. 701, 704, 483 A.2d 1099 (1984). “ ‘Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.’ Spencer v. Good Earth Restaurant Corporation, [supra].” Fogarty v. Rashaw, supra, 446.

Southern argues that Sandra Esposito’s disclosure under oath is conclusive on the issue of its negligence. Connecticut’s Practice Book rules “provide guidelines to facilitate the discovery of information relevant to a pending suit. The primary purpose of a deposition taken pursuant to these provisions is discovery.” Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985). Responses to interrogatories are not judicial admissions in contrast to admissions in a pleading or in open court. Piantedosi v. Floridia, 186 Conn. 275, 278, 440 A.2d 977 (1982); Balboni v. Stonick, 2 Conn. App. 523, 529, 481 A.2d 82 (1984). A response to a question propounded in a deposition is not a judicial admission. General Statutes § 52-200. At trial, in open court, the testimony of Sandra Esposito may contradict her earlier statement and a question for the jury to decide may then emerge. Balboni v. Stonick, supra, 529. We conclude that there were genuine issues as to material facts which should have been determined at a trial.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The plaintiffs have appealed pursuant to Practice Book § 3001 which provides for an immediate appeal where a judgment disposes of the issues between the parties but the case remains undisposed as to other parties. The defendant Joy Wethered is not a party to this appeal.


author: Dupont C.P.J.

text:
    Angelina Caracansi v. Frank A. Caracansi
    (2601)
    Dupont, C.P.J., Borden and Daly, Js.

      Argued May 8—decision
    released August 6, 1985

      William F. Gallagher, with whom, on the brief, were Lawrence J. Merly and Elizabeth A. Gallagher, for the appellant (defendant).

      Lloyd Cutsumpas, with whom was Thomas W. Beecher, for the appellee (plaintiff).
   Dupont C.P.J.

This appeal arises from an action seeking the dissolution of a marriage. The parties’ one marriage has generated a potpourri of eighty-eight pendente lite and postjudgment pleadings, and three appeals. The trial court, Ford, J., rendered a judgment which awarded the plaintiff wife unallocated alimony and support of $26,700 annually, and transferred the marital residence to her as lump sum alimony. The court also awarded the wife 50 percent of the profits from land under development by the husband in a joint venture with others. The husband was also ordered to procure a $150,000 life insurance policy, naming his wife and his children as cobeneficiaries until such time as he had no obligation for alimony and support to any of them.

Two postjudgment orders rendered by the trial court, Sullivan, J., one providing for an award of attorney’s fees to the wife to defend the appeal and the other requiring the husband to make certain payments to the wife in the context of a contempt motion, were the subjects of an amended appeal filed by the husband pursuant to Practice Book § 3062.

At the time of the dissolution, the parties had been married for twenty years, and had three children between the ages of twelve and eighteen. The husband was a self-employed certified public accountant who employed twelve people, and the wife was a high school graduate who had not been employed outside the home except as a cashier during the pendency of the action. The husband’s earnings were a source of factual dispute, but, according to the wife’s accountant, may have been approximately $104,000 per year. The wife testified that her income was approximately $5300 per year. The husband’s financial affidavit in May of 1983, when the trial began, indicated that he had total assets of approximately $387,000, and liabilities of approximately $25,000; the wife’s financial affidavit showed total assets of approximately $75,000 which included a one-half interest in the marital home valued at approximately $13,500 more than the husband valued the same interest in his financial affidavit. Her affidavit also states that her liabilities were approximately $7000.

On appeal, the husband claims that the trial court erred (1) in awarding the wife alimony, including lump sum alimony, on the basis of a factual finding, unsupported by the evidence, that the husband’s income exceeded $100,000 per annum, (2) in ordering the husband to procure and maintain a life insurance policy for the benefit of the wife and the minor children of the marriage with the children named as beneficiaries on the policy after they reach the age of majority, (3) in awarding counsel fees to the wife to prosecute the dissolution proceedings and awarding counsel fees to the wife to defend the husband’s appeal, and (4) in ordering the husband to make retroactive payments to the wife, where those payments were never ordered pendente lite, or pursuant to the dissolution judgment, or in postjudgment proceedings, and where the trial court was without jurisdiction to order those payments in the context of a contempt motion.

The husband claims that the trial court erred in its award of alimony because that award was premised on a factual finding, unsupported by the evidence, that his income exceeded $100,000. He concedes that the trial court’s memorandum of decision contains no reference at all to his income. The trial court’s memorandum of decision does not specifically discuss how it arrived at the award of alimony.

There is no basis on which to find error in the court’s alimony determination because the factual basis for the award is not delineated in the memorandum of decision and the husband did not move, pursuant to Practice Book § 3082, for an articulation from the trial court as to the factual basis for the award of alimony. Newington v. General Sanitation Service Co., 196 Conn. 81, 84, 491 A.2d 363 (1985); Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983); In re Juvenile Appeal (85-1), 3 Conn. App. 158, 161, 485 A.2d 1355 (1985); Holmes v. Holmes, 2 Conn. App. 380, 383, 478 A.2d 1046 (1984). Left only to speculate as to whether the trial court found as a fact that the plaintiffs income exceeded $100,000 and further that it based its alimony award on this finding, this claim of error will not be reviewed.

The wife concedes that the trial court erred in ordering that the children continue to be named as cobeneficiaries on the husband’s life insurance policy after they reached the age of majority. The wife contends that this error can be rectified in the context of a limited remand to the trial court for the sole purpose of deciding how much of the $150,000 life insurance policy was intended to be security for the payment of child support, and therefore by what amount the life insurance policy can be decreased as each child reaches the age of majority.

The raison d’etre for the trial court’s order insofar as the children were concerned was to secure continued child support by requiring that each child be named as a beneficiary on the life insurance policy. See Eldridge v. Eldridge, 4 Conn. App. 489, 495 A.2d 283 (1985). Such an order, limited to the child’s minority, is proper. Broaca v. Broaca, 181 Conn. 463, 465, 435 A.2d 1016 (1980). Here, the life insurance policy served solely as a means to secure payment of child support and alimony since the duty to procure and maintain the policy ceases when the defendant is no longer responsible for alimony and support. The life insurance policy, therefore, was not part of the court’s calculus for determining the financial awards rendered.

The present action is distinguishable from Arseniadis v. Arseniadis, 2 Conn. App. 239, 477 A.2d 152 (1984), which required the judgment to be set aside and the case remanded to the trial court for a new trial as to an award of alimony and the assignment of property. In that case, the judgment was rendered by the trial court in accordance with the stipulation of the parties. Such judgments are regarded as contracts. Kenworthy v. Kenworthy, 180 Conn. 129, 429 A.2d 837 (1980); see Hayes v. Beresford, 184 Conn. 558, 440 A.2d 224 (1981); Lavigne v. Lavigne, 3 Conn. App. 423, 488 A.2d 1290 (1985). In Arseniadis, the court, on the appellate record, could not conclude that the wife would have agreed to the settlement absent the provision that the children would remain as beneficiaries on the life insurance policy after reaching the age of majority. Arseniadis v. Arseniadis, supra. The scope of the remand there was by necessity broader than the remand required here since in this case the order concerning life insurance was solely security for the financial obligation.

The husband also asserts that the trial court erred in its two awards of counsel fees to the wife, one for prosecuting the dissolution action and the other for defending the husband’s appeal. These claims will be addressed separately.

The factual basis for the trial court’s award of attorney’s fees for prosecuting the dissolution action is not given in the court’s memorandum of decision. The husband did not move for an articulation from the trial court on this point. The husband attempts to avoid the consequences of failing so to move; Holmes v. Holmes, supra; by assuming that under General Statutes § 46b-62, the trial court considered his income to be in excess of $100,000 in deciding to award the wife attorney’s fees. The husband is again arguing that the trial court found as a fact that his income exceeded $100,000. That argument is equally unavailing in the context of the award of attorney’s fees to the wife for prosecution of her dissolution action.

The claim that the court erred in awarding the wife attorney’s fees to defend the appeal, however, has merit. The record reflects that the trial court, Sullivan, J., refused to consider the respective fin an - cial positions of the parties after Judge Ford’s judgment in the dissolution action. This was error. Koizim v. Koizim, 181 Conn. 492, 500-501, 435 A.2d 1030 (1980); see Holley v. Holley, 194 Conn. 25, 34, 478 A.2d 1000 (1984); Fisher v. Fisher, 4 Conn. App. 97, 101-102, 492 A.2d 525 (1985).

The husband’s last claim of error is that the trial court, Sullivan, J., erred in ordering the husband to pay certain sums to the wife in the context of a post-judgment contempt hearing. Certain facts are relevant to this issue. Pendente lite orders were rendered in this case, providing that the husband pay shelter expenses for the family and unallocated alimony and support. The judgment dissolving the marriage and the orders issued incident thereto were rendered by the court on September 29, 1983. The husband timely appealed that judgment and thereby stayed the enforcement of that judgment pursuant to Practice Book § 3065. The wife moved to have the appellate stay terminated. The trial court on November 1, 1983, denied that motion, and instead reimposed the pendente lite orders.

In the interim, the wife filed a motion for contempt. The gist of that motion was that the husband had not complied with the dissolution judgment or the pendente lite orders from the time he took his appeal from the dissolution judgment. The court heard the motion for contempt on November 7, 1983, and did not find the husband in contempt, but did, however, order the husband to make certain payments for household expenses and car repairs.

The husband argues that Judge Sullivan’s order amounted to a modification of the postjudgment orders rendered by Judge Ford, in the context of a contempt hearing where the contempt motion was filed prior to the postjudgment orders. The husband contends that the trial court had no authority to modify those orders, absent a motion for modification being filed by the wife, and a showing of a substantial unforeseen change in circumstances. The wife, wisely, does not contest the fact that, before the trial court can modify such an order, the husband must have fair notice that this issue is to be litigated. Hasbrouck v. Hasbrouck, 195 Conn. 558, 560, 489 A.2d 1022 (1985); Connolly v. Connolly, 191 Conn. 468, 475, 464 A.2d 837 (1983).

Instead, the wife argues that the trial court’s order simply required the husband to pay an arrearage found due and owing. The contempt motion was filed in October of 1983 prior to the postjudgment orders rendered by the original trial court. The appeal stayed the enforcement of the orders contained in the dissolution judgment, and, therefore, the only possible orders with which the husband could have been found not to be in compliance were the pendente lite orders, which “cease to exist once a final judgment in the dispute has been rendered because their purpose is extinguished at that time.” Connolly v. Connolly, supra, 480; Yontef v. Yontef, 185 Conn. 275, 291, 440 A.2d 899 (1981); Tobey v. Tobey, 165 Conn. 742, 745, 345 A.2d 21 (1974); Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953). The court therefore erred in ordering the husband to make the payments in issue here to the wife.

There is error in part, the judgment is set aside as to the order concerning the maintenance by the defendant of a life insurance policy, as to the award of counsel fees rendered on November 7, 1983, and as to the sums found to be due by the trial court in the context of the contempt motion and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.


text:
    In re David E.

    (3082)
    Hull, Daly and E. O’Connell, Js.
    Argued March 22—decision
    released August 6, 1985

      Nancy C. Liedlich, for the appellant (mother).

      Judith M. Earl, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (department of children and youth services).

      Craig D. Malone, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   E. O’Connell, J.

This is an appeal from the termination of the respondent mother’s parental rights in regard to her son David.

The trial court recounted the long history of this family prior to the initiation of this petition for termination and made exhaustive findings of fact which are contained in the twenty-one page memorandum of decision. We need not repeat them here. The respondent and her family have been involved with the department of children and youth services (DCYS) since September, 1975, as a result of reported child abuse. Since that time, David and his siblings have been temporarily placed in foster homes and with their maternal grandparents. Between September, 1975, and March 29, 1982, the date of filing the termination petition, numerous unsuccessful attempts were made to place David back with the respondent. Counseling and other support services were also in effect during this period.

The trial court found, by clear and convincing evidence, that there was cause for termination of the respondent’s parental rights. Evidence was adduced at trial from a psychiatrist, a developmental evaluator, a social worker and the child’s foster mother to satisfy the requirements for termination of parental rights as provided by General Statutes § 17-43a (b). The trial court found that the respondent was unable to assume a responsible position in David’s life and has failed to achieve any degree of rehabilitation that would reasonably encourage the belief that she could assume a responsible position at some future date. The court also found that the entire history of the case led to the conclusion that the respondent, by reason of continuing mental deficiency, had been unable to provide D with the care, guidance and control necessary to his physical, educational, moral and emotional well-being. Further, the court found that said mental deficiency would continue to render the respondent unable to provide him with the necessary care, guidance and control for such time as would be detrimental to the best interests of the child.

In her appeal, the respondent sets forth seven claims of error by the trial court: (1) the evidence was not sufficiently clear and convincing to terminate parental rights; (2) evidence regarding the child’s best interests should not have been heard at the adjudicatory or fault stage of the termination proceedings; (3) General Statutes § 17-43a is unconstitutional in that it denies substantive due process rights by not requiring a compelling state interest in terminating parental rights; (4) the motion for re-examination should not have been denied; (5) the motion for treatment and psychiatric examination of the child should not have been denied; (6) the motions for visitation should not have been denied; and (7) the motion to strike should not have been denied.

General Statutes § 17-43a specifies those instances which may justify the termination of parental rights in the absence of consent. The commissioner must allege and prove, by clear and convincing evidence, one or more of the statutory grounds. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Juvenile Appeal (83-BC), 189 Conn. 66, 72, 454 A.2d 1262 (1983).

The respondent's first claim of error is that the evidence was not sufficiently clear and convincing to terminate parental, rights. The trial court was presented with conflicting evidence and rendered a well reasoned decision.

“We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980); Knight v. Breckheimer, 3 Conn. App. 487, 489-90, 489 A.2d 1066 (1985). Our review of the record reveals that the trial court’s decision was legally correct and factually supported.

The respondent’s second claim of error is that the trial court should not have allowed the testimony of the child psychologist at the fault stage of the termination proceedings. She claims that the proceedings were irrevocably tainted since the court’s attention was drawn to the child’s best interests instead of to the state’s case on statutory grounds.

In order to terminate parental rights under General Statutes § 17-43a, “the state was required to prove by clear and convincing evidence (1) that [respondent] suffered from a ‘continuing physical or mental deficiency’ and (2) that, by reason of this condition, she had been and would, for such a period of time as would be detrimental to the best interest of the child, be unable to furnish him with the necessary care, guidance and control.” (Emphasis added.) In re Juvenile Appeal (88-BC), supra. “[T]he court must consider, once mental deficiency has been determined, whether such disability makes a parent incapable of adequately responding to the needs of the particular child involved.” Id., 76.

The evidence presented at the trial established that David had a number of psychological and behavioral problems. The testimony of the child psychologist is a factor which may be considered when determining whether the respondent’s mental deficiency interferes with the parenting functions required to deal effectively with the child. Even if we assume, arguendo, that the testimony did taint the proceedings, the evidence was so overwhelming as to lead to no other conclusion than that termination was warranted.

In her third claim of error, the respondent contends that subsections (2) and (3) of General Statutes § 17-43a (b) infringe upon the substantive due process protection provided by the fourteenth amendment to the United States constitution. In support of this claim, the respondent relies on the United States Supreme Court’s decision in Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972). The respondent reads Yoder as establishing that the state may terminate parental rights only where it is able to show that the child’s health or safety otherwise would be jeopardized. The respondent argues that subsections (2) and (3) of General Statutes § 17-43a (b) are unconstitutional because they do not incorporate the health-safety requirement.

The respondent’s constitutional argument with respect to General Statutes § 17-43a (b) (3) has been addressed by the Connecticut Supreme Court in In re Juvenile Appeal (83-BC), supra. In that case, the court discussed the relationship between General Statutes § 17-43a (b) (3) and Yoder: “A further elucidation in the \Yoder\ opinion of the criterion for state interference is whether parental control will ‘impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.’ [Wisconsin v. Yoder, supra, 233-34.] We see no conflict between these concerns and those contained in the standard for termination established by [§ 17-43a (b) (3)].” In re Juvenile Appeal (83-BC), supra, 78. As we stated recently in O’Connor v. O’Connor, 4 Conn. App. 19, 20, 492 A.2d 207 (1985), this court will not re-evaluate Supreme Court precedent.

The respondent’s argument concerning subsection (2) is also unavailing. Subsection (3) of General Statutes § 17-43a (b) is constitutional and the order to terminate may be upheld on the basis of subsection (3) alone. “In a petition to terminate parental rights under § 17-43a, the petitioner must list the grounds relied upon and if any one of these grounds may be upheld, the order to terminate must stand. In re Juvenile Appeal (83-BC), [supra] . . . .” In re Juvenile Appeal (83-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984). We, therefore, decline to address the constitutionality of subsection (2) of General Statutes § 17-43a(b).

The respondent’s fourth, fifth and sixth claims of error concern the trial court’s rulings on her motions for re-examination, treatment and psychiatric examination and visitation. The trial court’s action involved the exercise of judicial discretion and will not be disturbed unless that discretion was clearly abused. Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979). We cannot say that in denying those motions the court abused its discretion.

The final claim of error is that the trial court should have granted the respondent’s motion to strike. The motion was neither timely nor specific as indicated in the trial court’s memorandum of decision. As such, the ruling was not erroneous.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 17-43a (b) was modified in 1984 to include the provisions at issue herein. At the time of the proceedings below, those provisions were found in General Statutes (Rev. to 1981) § 17-43a (a). See Public Acts 1984, No. 84-449, § 1.


text:
    Eco Industries, Inc. v. Executive Monarch Hotel, Inc., et al. Charles Moskowitz v. Baker-Stamford Limited Partnership et al.
    (3165)
    (3427)
    Hull, Spallone and Daly, Js.
    Argued May 14—decision
    released August 6, 1985

      Stephen A. Wise, with whom, on the brief, was Robert P. Layton, for the appellant (plaintiff in the first case).

      Michael E. Grossman, with whom, on the brief, was Eliot B. Gersten, for the appellee (plaintiff in the second case).
   Hull, J.

These consolidated appeals arise out of the trial court’s disposition of several pretrial motions filed by the appellant, Eco Industries, Inc., in the two captioned cases, which were also consolidated for trial. We find no error.

In December, 1981, Eco Industries, Inc. (Eco), filed a complaint in the Stamford judicial district against Executive Monarch Hotel, Inc. (Executive), Baker Properties and William A. Baker, Jr., for damages arising out of a contract for work to be done by Eco at the hotel. This action is designated as case one. Earlier, in June, 1981, Charles Moskowitz, a subcontractor to Eco, filed an action in the Hartford judicial district against Baker-Stamford Limited Partnership, Patent Scaffolding Company and Williamsburgh Savings Bank arising out of the plaintiff’s certificate of mechanic’s lien which had been filed against Executive, then the owner of the hotel, on January 16,1981. This action is designated as case two.

The defendants in case two subsequently moved to transfer that case to Stamford and to consolidate case one and case two for trial. Both of those motions were granted.

Eco then filed a “complaint over” in case one against Moskowitz, claiming that Moskowitz’s actions were the cause of its dispute with Executive, and served that complaint upon the attorneys representing Moskowitz in case two. A default judgment was entered by the court on November 2, 1983, because of Moskowitz’s failure to answer this complaint over. The default was subsequently set aside and, on February 22, 1984, Moskowitz moved to dismiss the complaint over for lack of personal jurisdiction, insufficiency of process and insufficiency of service, since he had not been personally served. At the same time, Moskowitz moved to strike the complaint because the “complaint over” is not a pleading recognized by the courts in Connecticut. The trial court denied the motion to dismiss the complaint over, but granted the motion to strike. Upon Eco’s failure to file a new pleading, the court rendered a judgment striking the complaint over. From that judgment, the plaintiff filed the first of the two present appeals, No. 3427.

Meanwhile, after the striking of its complaint over, Eco moved for permission to be made a party defendant in case two. That motion was denied on April 2, 1984, and Eco filed the second appeal, No. 3165, from that denial.

In its consolidated brief on these two appeals, Eco claims that the court erred (1) in striking its complaint over in case one and (2) in denying its motion to be made a defendant in case two.

With respect to Eco’s first claim of error, we note that its brief is not responsive to the trial court’s decision on the motion to strike. Eco argues that the motion to strike was based on insufficiency of service. That is simply not so. The motion to dismiss, which was denied by the court, raised such a claim, but the motion to strike argued only that there is, in Connecticut, no such pleading as a “complaint over.” The remainder of Eco’s brief on this point deals with its claim that a motion to dismiss was the proper vehicle for raising the claim of insufficiency of service, as was, in fact, done.

With regard to the decision of the court on Moskowitz’s motion to strike, as that motion was actually presented, we simply point to Practice Book §§ 175 and 176 which specify the proper procedure for amending a complaint to include new counts. Had Eco simply moved to amend its complaint, as it should have, so as to add Moskowitz as a defendant, or had it filed a separate action against Moskowitz to be consolidated with the other two, all of the ensuing creative pleading could have been avoided. We conclude that the court did not err in striking Eco’s “complaint over,” a creature not normally spotted in Connecticut’s jurisprudential forests.

With respect to Eco’s second claim, that it should have been granted permission to enter case two as a defendant, we note that, although the cases were consolidated for trial, they arose under two separate theories. Case one was based on a breach of contract while case two was based on a mechanic’s lien. The only defendants in case two were parties with interests, adverse to those of Moskowitz, in the hotel property which was subject to the lien. Thus, Eco was not an entity which “has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff” as is required by Practice Book § 85 before it may be joined as a defendant in case two. Thus, the court did not err in denying Eco’s motion to be made a party defendant.

There is no error.

In this opinion the other judges concurred.

       The claims against Baker Properties and William A. Baker, Jr. are made relative to their actions on behalf of Executive.

       Baker-Stamford had purchased the hotel from Executive. Patent Scaffolding claimed an interest in the hotel by a mechanic’s lien, and Williamsburgh held a mortgage deed to the hotel.

       It should be noted that the parties have agreed that the record, which reflects that the motion to strike was denied, is in error.

       It seems clear that Eco’s confusion arises out of the fact that it misconstrued Moskowitz’s memorandum in support of his motion to dismiss as having been filed with regard to his motion to strike as well. That is not the case as the caption to that memorandum clearly indicates.


author: Pickett, J.

text:
    Elizabeth C. Croke v. William H. Croke
    (3470)
    Hull, Daly and Pickett, Js.
    Argued June 17—decision
    rleased August 6, 1985

      Peter K. Culhane filed a brief for the appellant (plaintiff).

      Harold E. Stuart, for the appellee (defendant).
   Pickett, J.

A decree of dissolution was rendered by the trial court on October 3, 1980, and, on December 11, 1980, a supplemental judgment was filed concerning custody, visitation, alimony, child support and the division of the parties’ respective assets.

The judgment of December 11, 1980, provides that the plaintiff has the right to occupy jointly owned real property located at 276 Park Street in New Canaan, with the parties’ minor child until the minor child attains age eighteen, or residential custody of the minor child is transferred to the defendant, or the death or remarriage of the plaintiff or her cohabitation with another person under circumstances which would warrant the modification of periodic alimony pursuant to the provisions of General Statutes § 46b-86, or the plaintiff elects to vacate the premises.

On May 24,1984, the plaintiff filed a motion to open and modify the supplemental judgment insofar as the sale of the property was concerned, requesting an additional year so that the child, who became eighteen in May, 1984, could finish high school. This motion was denied without opinion although the parties agree that the court stated it did not have the power to modify the judgment. The sole issue on this appeal is whether the court had continuing jurisdiction to modify a judgment providing for the assignment of property under General Statutes § 46b-81.

General Statutes § 46b-86 (a) provides: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. This section shall not apply to assignments under § 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.” As stated in Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980): “This provision confers on the court continuing jurisdiction, except where precluded by the decree, to modify orders for the periodic payment of permanent or pendente lite alimony or support upon a showing of a substantial change in the circumstances of either party. See Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976). By its terms, the statute deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81.” See also Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983).

The supplemental judgment provides that upon the sale of the property “the proceeds remaining after the payment of expenses and costs resulting from the sale, shall be distributed 60 percent to the plaintiff and 40 percent to the defendant.” Thus, the judgment, in effect, assigned 10 percent of the defendant’s interest in the property to the plaintiff under the authority of § 46b-81 and is therefore nonmodifiable. See Bunche, v. Bunche, supra.

We note that the plaintiff was found in contempt on July 23, 1984, for failure to list the property for sale and that no appeal was taken from that finding which is still in effect. It would appear that this appeal was taken solely for the purpose of delay and it has accomplished that purpose.

There is no error.

In this opinion the other judges concurred.

       The motion claimed that “[tjhe minor child of the parties will be eighteen at the end of May, 1984 which in accordance with the supplemental judgement of December 11,1980 would require the property at Park Street in New Canaan, Connecticut to be sold, but the child at that time will have only finished his junior year in school. With the sale of the premises, the child will be unable to finish school in New Canaan. He will be uprooted from his peers and friends which would work an injustice on the child and as such, the plaintiff asks that the sale be postponed until the minor child has graduated from high school.”

       The court’s handwritten decision on the motion for contempt provides: “The foregoing [contempt] motion having been heard, it is hereby GRANTED. The plaintiff and Defendant are to comply forthwith [with] the court order of 12/11/80 no later than 8/4/84 re sale of property.
      “The plaintiff is to make the house available for inspection by the defendant and his broker on July 28 or 29, 1984.
      “If the plaintiffs broker and the defendant’s broker can’t agree on a price a 3rd broker is to be nominated to set the price.”

       In view of the fact that the plaintiff was and still is in contempt, the court would have been justified in dismissing the appeal sua sponte. Greenwood v. Greenwood, 191 Conn. 309, 313-14, 464 A.2d 771 (1983).


author: Daly, J.

text:
    Joseph Desnoyers v. James R. Wells et al.
    (3344)
    Hull, Spallone and Daly, Js.
    Argued June 5—decision
    released August 13, 1985

      John P. Tedeschi, for the appellant (plaintiff).

      Robert C. Danaher, for the appellee (defendant Stihl, Inc.).
   Daly, J.

This action was instituted on behalf of the plaintiff, a minor who was injured by a chainsaw, against the named defendant as the owner and user of the saw, and the defendant Stihl, Inc., as the manufacturer, distributor and seller of the saw. The plaintiff alleged strict tort liability, negligence and breach of warranty against the defendants. From the granting of the defendant Stihl, Inc.’s motion for summary judgment, the plaintiff has appealed.

The factual situation as set forth in the pleadings and affidavits indicates the following: The chainsaw was manufactured in 1973 by Andreas Stihl, a West German limited partnership. On October 22, 1973, the chainsaw was sold and imported to the United States. The defendant was organized as a Delaware corporation in August of 1974, and is in the business of manufacturing chainsaws. Andreas Stihl did not engage in any business in the United States between October 22,1973, and May 3,1979. There was no nexus established between the defendant and Andreas Stihl. The defendant did not manufacture, purchase, import, distribute or sell the chainsaw.

The plaintiff challenges the granting of the summary judgment.

“ ‘A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377-78, 260 A.2d 596 (1969).’ . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.” (Citations omitted.) Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). “ ‘When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [Practice Book] § 380, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant.’ ” Kakadelis v. DeFabritis, 191 Conn. 276, 280-81, 464 A.2d 57 (1983).

Here, it was uncontradicted that the defendant did not manufacture, sell or distribute the chainsaw in question since the defendant did not come into existence until the following year. The plaintiff never presented an affidavit that “he could not for some reason ‘present facts essential to justify his opposition’ which would authorize the court to deny the summary judgment motion or to grant a continuance to allow an opportunity to gather additional facts. Practice Book § 382 . . . .” Id., 281.

“The test of the requirement for the ^granting of a summary judgment that the moving party be entitled to judgment as a matter of law is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts. . . . In Connecticut, a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.” (Citations omitted.) United Oil Co. v. Urban Redevelopment Commission, supra, 380.

When we apply the aforesaid test, the pleadings and affidavits viewed in the light most favorable to the plaintiff fail to disclose any genuine issue as to any material fact or issue of law meriting a hearing. Thus, summary judgment was appropriate.

There is no error.

In this opinion the other judges concurred.

       Since the claim against the named defendant has been settled, “defendant” hereinafter will refer to Stihl, Inc.

       The plaintiff filed no affidavits in opposition to the defendant’s motion for summary judgment.


author: Per Curiam.

text:
    Logical Communications, Inc. v. Morgan Management Corporation et al.
    (2524)
    Dupont, C.P.J., Borden and Brenneman, Js.
    Argued June 7—decision
    released August 13, 1985

      Walter T. Flaherty, Jr., for the appellants (defendants).

      Gordon R. Erickson, for the appellee (plaintiff).
   Per Curiam.

The plaintiff brought this action to recover deposits paid to secure the leasing of an office in a building managed by the defendants. The plaintiff was unable to take possession of the premises due to the defendants’ failure to make the agreed upon repairs by the date the lease was to begin. The plaintiff immediately notified the defendants that it would not take possession at a later date and requested a return of its payments. When the defendants refused to refund the money the plaintiff initiated this action in small claims court.

Pursuant to Practice Book § 572, the defendants removed the case to the regular docket of the Superior Court by alleging, in an affidavit, that there was a bona fide defense to the plaintiff’s claim for damages.

The trial court awarded damages to the plaintiff plus double costs pursuant to General Statutes § 52-245. The defendants raise the following issues on appeal: (1) whether the court’s comments and rulings showed sufficient prejudice to require the judge’s disqualification pursuant to General Statutes § 51-39 and Canon 3 of the Canons of Judicial Conduct; (2) whether the trial court erred in concluding that no lease existed; (3) whether the defendants’ breach of the covenant to repair justified the plaintiff’s rescinding the lease; and (4) whether double costs were properly assessed. We find no error.

The defendants claim that they were denied a fair trial by an impartial court due to the trial judge’s comment that the defense proffered was a “sham,” prior to the defendants’ presentation of their case in full. The question of judicial bias was not raised after the comments were made, and the defendants did not move to disqualify the judge at any time. Such action “can be construed as the functional equivalent of ‘consent in open court’ to [the judge’s] presiding over the trial.” Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985). A litigant must raise the question of disqualification in a timely and appropriate manner; Pavel v. Pavel, 4 Conn. App. 575, 576 n.2, 495 A.2d 1113 (1985); Jazlowiecki v. Cyr, 4 Conn. App. 76, 78, 492 A.2d 516 (1985); Szypula v. Szypula, 2 Conn. App. 650, 654, 482 A.2d 85 (1984); or the claim will be deemed to have been waived. Verissimo v. Verissimo, 3 Conn. App. 222, 224, 486 A.2d 1134 (1985). Parties cannot be allowed “ ‘to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during a trial.’ ” Timm v. Timm, supra, 205. Since the defendants therefore waived the claim of judicial bias, we need not consider the merits of that claim. Id.

The defendants argue that the trial court erred by declining to find that a lease existed. At oral argument in this court, however, the defendants specifically abandoned their counterclaim. That is the only pleading in the case alleging a lease. Thus, we do not consider this claim of error.

The trial court was clearly disturbed by the fact that the affidavit submitted for transference of the case from the small claims docket to the regular docket raised a defense that was explicitly contradicted by the defendants’ answer and the allegations made in their counterclaim. Under such circumstances, it was proper for the court to consider awarding double costs to the plaintiff under General Statutes § 52-245. The award of such costs is in the sound discretion of the trial court. The court did not abuse its discretion by doubling the costs under the facts presented in this case.

There is no error.

       Morgan Management Corporation and its manager, Darlene Daley, are the defendants in this appeal. The owner of the premises at issue was not a party to this action.

       Even if that claim were properly before this court, we would reject it. Our Supreme Court in Cameron v. Cameron, 187 Conn. 163, 444 A.2d 915 (1982), reviewed the merits of a claim that the trial court had expressed preconceived opinions about the veracity of the appellant and his attorney. The court ruled that the judge’s conduct in Cameron compromised the perception and the reality of impartiality, casting suspicion on the trial court’s fair determination of the merits. Id., 171. The trial judge, in the case before us, reviewed the pleadings and exhibits submitted by the parties and heard what amounted to an offer of proof from the defendants’ counsel. The judge’s comments did not express any personal bias regarding the parties, but were directed at the merits of the defense claimed based on information presented to him during a trial on the merits. See Szypula v. Szypula, 2 Conn. App. 650, 655, 482 A.2d 85 (1984).

       “[General Statutes] Sec. 52-245. false statement concerning defense, costs. In any case in which an affidavit has been filed by the defendant, or a statement that he has a bona fide defense has been made to the court by his attorney, and the plaintiff recovers judgment, if the court is of the opinion that such affidavit was filed or statement made without just cause or for the purpose of delay, it may allow to the plaintiff, at its discretion, double costs, together with a reasonable counsel fee to be taxed by the court.”


text:
    State of Connecticut v. Gerald R. Johnson
    (2789)
    Hull, Spallone and Daly, Js.
    Argued June 4—decision
    released August 13, 1985

      Erskine D. McIntosh, assistant public defender, for the appellant (defendant).

      David Shepack, assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, SusannE. Gill, deputy assistant state’s attorney, and Enrico Vacarro and John S. Massameno, assistant state’s attorneys, for the appellee (state).
   Daly, J.

The defendant was convicted, following a trial to the jury, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). On appeal, the defendant claims that the trial court erred in permitting the state to impeach the defendant by the use of his prior felony convictions. The defendant did not deny having been intimate with the complainant, but claimed that it was a consensual arrangement.

The state was permitted to impeach the credibility of the defendant by introducing the following felony convictions: (1) attempted breaking and entering (1962); (2) aggravated assault (1964); (3) carrying a dangerous weapon (1965); (4) obtaining money by false pretenses (1966); (5) breaking and entering (1966); (6) breaking and entering (1969); and (7) armed robbery and assault (1973). The defendant challenges their admissibility on the grounds of remoteness, relevancy for veracity, and their prejudicial impact outweighing the probative value.

A trial court’s decision to allow the use of prior convictions to impeach a witness’s credibility will not be disturbed unless the court abused its discretion. The test used in determining if the court abused its discretion is whether the court could reasonably conclude as it did, and every reasonable presumption will be made in favor of the correctness of its action. State v. Hamele, 188 Conn. 372, 383, 449 A.2d 1020 (1982).

“Three factors should be examined to determine whether a prior criminal conviction properly has been admitted: (1) the extent to which admission is likely to prejudice the defendant’s cause; (2) the significance of the prior crime as bearing on the defendant’s truthfulness; and (3) the remoteness in time of the prior conviction.” State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984); State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982). “ ‘[PJrior convictions that are admissible for impeachment purposes may be segregated into two general categories. First are those crimes that by their very nature indicate dishonesty or tendency to make false statement. State v. Nardini, [187 Conn. 513, 523-24, 447 A.2d 396 (1982)]. Beyond the obvious violations such as perjury or false statement, we have recognized that crimes involving larcenous intent imply a general disposition toward dishonesty such that they also fall within this category. State v. Carter, [189 Conn. 631, 643, 458 A.2d 379 (1983)]. Convictions of this sort . . . bear heavily on the credibility of one who has been convicted of them. The probative value of such convictions, therefore, may often outweigh any prejudice engendered by their admission.’ State v. Geyer, 194 Conn. 1, 12, 480 A.2d 489 (1984).” State v. Schroff, 3 Conn. App. 684, 687, 492 A.2d 190 (1985). The second category encompasses convictions for crimes that, although not reflecting directly on one’s credibility, show a general disposition towards evilness and thus support an inference of a readiness to lie. Id., 688.

The remoteness of a prior conviction obviously affects its probative value upon the credibility of a witness. State v. Nardini, supra, 525. A balancing process must be used in evaluating whether a conviction should be admitted. Id., 528. In State v. Nardini, the court found that the probative value for credibility purposes of the convictions at issue in that case (breaking and entering, and carrying a pistol without a permit), both of which were more than twenty years old at the time of trial, was greatly diminished by their remoteness. Id., 528. The Nardini court then determined that “[t]he conviction for breaking and entering, a crime regarded as having more than peripheral bearing upon honesty, conceivably might have weathered this erosion of more than two decades sufficiently to have some viability for impeachment purposes. No such justification can be found for admitting the conviction for carrying a pistol without a permit.” Id. Hence, the breaking and entering, and the attempted breaking and entering convictions in the present case come within the ambit of State v. Nardini, supra, and were thus admissible.

In State v. Kuritz, 3 Conn. App. 459, 461, 489 A.2d 1053 (1985), the court stated that “[a] prior conviction of robbery with violence is inextricably interwoven with the crime of larceny and implies a lack of veracity. It, therefore, is directly relevant to a determination of the credibility of a defendant-witness.” In Kuritz, the prior conviction of robbery with violence was sixteen years old at the time of trial. In view of Kuritz, the prior conviction of armed robbery and assault was certainly admissible.

The conviction for obtaining money by false pretenses would fall within the first category of crimes that by their very nature indicate dishonesty or tendency to make false statement and was therefore admissible. State v. Schroff, supra, 687.

As to the admission of the 1965 conviction for carrying a dangerous weapon, we look to the court’s treatment of a similar conviction in State v. Nardini, supra. In Nardini, the court found that “[wjhatever significance upon credibility the conviction for carrying a pistol without a permit may once have had under the general lawbreaker rationale . . . must have entirely dissipated by the date of trial and its admission cannot be justified.” State v. Nardini, supra, 530. Nevertheless, the Nardini court then concluded that “this error was harmless because it is so highly improbable that any additional prejudice arising from knowledge by the jury of this second conviction affected the outcome.” Id. We likewise conclude that the trial court’s admission of the prior conviction for carrying a dangerous weapon was harmless error.

We further find that the trial court did not abuse its discretion in the admission of the remaining prior convictions for impeachment purposes.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The remaining claims of error were withdrawn in the defendant’s reply brief.


text:
    State of Connecticut v. Maureen A. Gilnite
    (3225)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued June 14—decision
    released August 13, 1985

      Vincent J. Giedraitis, public defender, for the appellant (defendant).

      Patricia A. Swords, assistant state’s attorney, for the appellee (state).
   Hull, J.

This appeal arises out of the defendant’s conviction, after a jury trial, on charges of larceny in the sixth degree, a violation of General Statutes § 53a-125b, and of being a persistent larceny offender, a violation of General Statutes § 53a-40 (c). She claims that the court erred (1) in denying her motion for a continuance, (2) in admitting evidence of her prior misconduct, (3) in denying her motion for a judgment of acquittal and (4) in denying her motion to dismiss the persistent larceny offender portion of the information. We find no error.

The jury in this case could reasonably have found the following facts: On December 3, 1983, Ernie Malago, a store detective at Caldor’s department store in Mansfield, was positioned behind a one-way mirror in the western wall of the store, approximately ten feet above the floor. The mirror overlooked the shoe department. With him was his supervisor, Rodney Rowe.

At approximately 9 p.m., Malago and Rowe observed the defendant and her companion, David Monroe, in the shoe department. Monroe sat on the floor with his back to the mirror and the defendant, having tried on one of several pairs of shoes scattered around her, removed them from her feet and placed them in Monroe’s hands. Monroe placed the shoes inside his jacket and partially zipped it up. Then, as the defendant put several other pairs of shoes back on the shelves, Monroe stood up and zipped his jacket up the rest of the way. Monroe then walked away from the defendant and out of the store without paying for the shoes. Malago apprehended Monroe outside the store and brought him to the office while Rowe apprehended the defendant. On that same day, she was charged with larceny in the sixth degree. On January 17, 1984, she pleaded not guilty to this charge and elected a jury trial.

On February 2, 1984, the case was pretried but no agreement was reached between the parties. Thereafter, on February 9,1984, the defendant was charged, by a Part B information, with being a persistent larceny offender.

On February 29,1984, the date of trial, the state filed a “substituted information” charging the defendant with larceny in the sixth degree, as before, but as an accessory pursuant to General Statutes § 53a-8. The defendant renewed her not guilty plea and requested a ten day continuance to prepare her response to the substitute information. After argument on the continuance request, the state withdrew the substitute information and trial commenced on the original information. The court, however, forewarned the defendant that the state would be permitted to request “an instruction on accessory.” After trial, the jury of six returned a verdict of guilty on the larceny charge on March 5, 1984.

On March 19, 1984, the parties stipulated that the defendant had pleaded guilty to two larcenies on prior occasions, but that she had been sentenced on both on the same day. On March 20,1984, after the defendant’s motion to dismiss the Part B information was denied, the court accepted the defendant’s plea of nolo contendere on the persistent larceny offender charge. She was then sentenced, on April 13,1984, to four months for a violation of probation and to two years imprisonment, sentence suspended, followed by two years of probation on the larceny and peristent larceny offender charges. Thereafter, she filed the present appeal claiming the four errors described above.

The defendant’s first claim is that the denial of her motion for a continuance, coupled with the court’s decision to give an instruction on liability as an accessory, denied her due process since she did not learn that she was being charged as an accessory until the time of trial.

In her brief, the defendant concedes that “had the state elected not to file a Substitute Information, the court could have correctly charged the jury on [accessory liability] if the evidence warranted it.” She argues, however, that if the state had followed that course, she would have been entitled to object to “certain evidence” and she could have requested a continuance on the ground that she had been surprised by the introduction of that evidence. Furthermore, the defendant claims that she was deprived of her right to file a bill of particulars, to examine prosecution documents and to move for disclosure of prosecution witnesses prior to trial.

“[T]he propriety of [such an ‘accessory’ charge] is predicated on the basis of the sufficiency of the evidence heard during the course of the trial, not on the mention of such charges in pretrial documents.” (Emphasis in original.) State v. Ferrara, 176 Conn. 508, 513 n.2, 408 A.2d 265 (1979). We fail to see how the defendant was prejudiced by the instruction in this case. In fact, since she was forewarned before trial that the instruction would be given, the defendant was less surprised by it than she would have been had the instruction simply been requested and given after trial. Hence, we find that the court did not abuse its discretion in denying the continuance requested by the defendant.

The defendant’s second claim of error is that the court erred in admitting evidence regarding two prior larcenies of which she had been convicted. The defendant argues that evidence of the larcenies in question, both of which also involved Monroe and which took place in Caldor’s stores, was highly prejudicial and was of little probative value to the pending case.

The state, however, points out that “[s]uch evidence is admissible . . . when it is particularly probative in showing such things as intent, an element in the crime, identity, malice, motive or a system of criminal activity .. . .” State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982), quoting State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979); see also McCormick, Evidence (3d. Ed.) § 190. “ ‘Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.’ ” State v. Falby, supra. We conclude that the admission of the evidence in question did not constitute an abuse of discretion.

The evidence presented clearly showed a system of criminal activity on the part of the defendant. In each instance, the defendant selected items of women’s apparel and turned them over to Monroe to be carried out of the store; the defendant and Monroe left the store separately; the defendant denied her involvement in the crime and attempted to cast blame entirely upon Monroe. Thus, although the evidence was clearly damaging to the defendant, we agree with the trial court that its probative value outweighed its prejudicial effect.

The defendant’s third claim is that the court erred in denying her motion for acquittal on the ground that the evidence was insufficient to support a finding that she was guilty beyond a reasonable doubt. We disagree.

The defendant argues that there is no evidence that she participated in Monroe’s criminal act, or to “rebut the presumption that when David Monroe concealed the boots he did so for his own use.” She argues, essentially, that the “evidence is consistent with at least two reasonable constructions and the one consistent with innocence must prevail.”

In State v. Dumlao, 3 Conn. App. 607, 491 A.2d 404 (1985), this court stated, in reference to this type of argument, that it “is not a correct statement of our law.” (Emphasis in original.) Id., 616. “The difference between the defendant’s claim and [the correct statement of our law] is the difference between the jury’s function in drawing inferences from specific facts or evidence and its function in coming to the ultimate conclusion as to guilt or innocence on the basis of all the evidence.

“It is clear that, in viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” Id. The defendant is, in essence, asking us to replace the jury’s overall evaluation of the evidence with our own. We will not do so.

Finally, the defendant argues that the court should have dismissed the Part B information against her because, although she pleaded guilty to the two earlier counts of larceny in the sixth degree on different dates, she was sentenced on both counts on the same date, and, thus, there was a single judgment of conviction. Hence, she claims that she was not “at separate times prior to the commission of the present larceny, twice convicted” as is required by General Statutes § 53a-40 (c).

The simple answer to this claim has been reiterated most recently in State v. Martin, 197 Conn. 17, 495 A.2d 1028 (1985). There the court held that “[a] plea of nolo contendere is a waiver of all nonjurisdictional defects, including federal constitutional claims, which might otherwise be raised by way of defense, appeal or collateral attack. United States v. Warden of Attica State Prison, 381 F.2d 209, 212 (2d Cir. 1967); Dukes v. Warden, 161 Conn. 337, 343, 288 A.2d 58 (1971), aff'd, 406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45, reh. denied, 407 U.S. 934, 92 S. Ct. 2464, 32 L. Ed. 2d 817 (1972); Consiglio v. Warden, 160 Conn. 151, 166, 276 A.2d 773 (1970).” State v. Martin, supra, 25; see also State v. Satti, 2 Conn. App. 219, 221-23, 477 A.2d 144 (1984). Thus, by pleading nolo contendere to the charge of being a persistent larceny offender, the defendant waived her right to appeal this issue.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-125b provides: “larceny IN THE SIXTH DEGREE: class c misdemeanor, (a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.
      “(b) Larceny in the sixth degree is a class C misdemeanor.”

       General Statutes § 53a-40 (c) provides: “A persistent larceny offender is a person who (1) stands convicted of larceny in the third degree in violation of the provisions of section 53a-124 in effect prior to October 1,1982, or larceny in the fourth, fifth or sixth degree and (2) has been, at separate times prior to the commission of the present larceny, twice convicted of the crime of larceny.”

       General Statutes § 53a-8 provides: “criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”