author: Hennessy, J. Lavery, J.,

text:
    William H. Wilson v. Paul Hryniewicz et al.
    (12467)
    Lavery, Landau and Hennessy, Js.
    Argued September 20, 1994
    decision released August 15, 1995

      Anthony A. Ball, with whom, on the brief was Les-lee B. Ives, for the appellants-appellees (defendants).

      Neil F. Murphy, Jr., with whom were Philip N. Walker, Jeanne S. Roberts and, on the brief, Lawrence J. Kiel, for the appellee-appellant (plaintiff).
   Hennessy, J.

The defendants, Paul Hryniewicz and West Service Corporation, appeal from the trial court’s judgment. They claim that the trial court improperly denied (1) their motion to strike and (2) their motions for directed verdict and judgment notwithstanding the verdict on count one of the plaintiff’s complaint, which alleged that the defendants deprived the plaintiff of rights in violation of 42 U.S.C. § 1983. The plaintiff, William H. Wilson, cross appeals and claims that the trial court improperly denied his motion to set aside a directed verdict in the defendants’ favor on the second count of the complaint, which alleged tortious interference with contract. We affirm the judgment of the trial court.

This action arises out of a dispute between the plaintiff, a developer, and the defendants, a private utility in the town of Suffield, and one of its employees. The plaintiff, who was developing a subdivision in Suffield, had an agreement with the defendants wherein West Service Corporation would supply the subdivision site with water. The defendants delayed providing water to the plaintiff’s subdivision for several years. An action was initiated to resolve the question of liability and the amount of damages allegedly resulting from the delay.

The original complaint included three counts: the first stating a claim pursuant to 42 U.S.C. § 1983; the second stating a claim for tortious interference with contract; and the third stating a claim for vexatious litigation. The defendants filed a motion to strike the first and second counts of the original complaint. This motion was denied by the trial court and, after filing notice of intent to appeal the denial of the motion to strike, the defendant filed an answer to the original complaint. During trial, the plaintiff amended his complaint by dropping the third count and making minor modifications in the two remaining counts. In response, the defendant filed an answer to the amended complaint. No motion to strike the amended complaint was filed.

After the plaintiffs case had been presented, the defendants moved for a directed verdict on both counts. The trial court granted the defendants’ motion for directed verdict as to count two, which alleged tortious interference with contract, but denied the motion as to count one, which alleged a claim pursuant to 42 U.S.C. § 1983. After deliberations, the jury returned a verdict in favor of the plaintiff on count one, and judgment was rendered in accordance with that verdict.

I

The first issue raised by the defendants is whether the trial court improperly denied their motion to strike the first count of the complaint. We do not address this issue because the denial of a motion to strike the original complaint cannot be appealed after the filing of an amended complaint that the defendant answers without moving to strike. See Wesley v. DeFonce Contracting Corp., 153 Conn. 400, 404-405, 216 A.2d 811 (1966); Lakitsch v. Brand, 99 Conn. 388, 389, 121 A. 865 (1923).

The defendants argue that the motion to strike, and their appeal from its denial, should be construed to survive and to refer forward to the amended complaint. In support of this argument, the defendants claim that the amended complaint did not make any substantive changes in the first cause of action. The defendants also point out that at the time the amended complaint was filed a jury had been chosen and the case was already proceeding to trial; they suggest that the filing of a new motion to strike might have impeded the timely progress of the trial. This argument is not persuasive.

Practice Book § 112 dictates the order of pleadings in a civil case. A motion to strike a complaint must precede the defendant’s answer to that complaint. Pursuant to Practice Book § 113, “the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”

Although pleadings cannot generally be filed out of order; Sabino v. Ruffolo, 19 Conn. App. 402, 404-405, 562 A.2d 1134 (1989); a party may amend a previously filed pleading. See Practice Book § 176. When an amended pleading is filed, it operates as a waiver of the original pleading. The original pleading drops out of the case and although it remains in the file, it cannot serve as the basis for any future judgment, and previous rulings on the original pleading cannot be made the subject of appeal. See Wesley v. DeFonce Contracting Corp., supra, 153 Conn. 404-405; Lakitsch v. Brand, supra, 99 Conn. 389.

The defendants could have filed a timely motion to strike the amended complaint. They failed to do so, and instead filed an amended answer. By operation of Practice Book § 113, the filing of the answer to the amended complaint acts as a waiver of the right to file a motion to strike the amended complaint.

The appeal from the denial of the motion to strike the original complaint is not properly before us, and we will not consider the issue further.

II

The second issue raised by the defendants is whether the trial court improperly denied their motion for judgment notwithstanding the verdict on the first count of the complaint, alleging a claim under 42 U.S.C. § 1983. We are unable to review this claim in light of the inadequate record provided by the appellants.

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1987); see also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978). These two elements denote two separate areas of inquiry: the plaintiff must prove a constitutional or statutory violation and that violation must have been committed by the defendant acting under color of law. Flagg Bros., Inc. v. Brooks, supra, 155-56. The defendants argue that in light of all of the plaintiff’s evidence, the defendants could not reasonably have been found to have acted under color of law, and, as a result, the jury could not have reasonably rendered a verdict in the plaintiff’s favor.

The trial court denied the motions for directed verdict and judgment notwithstanding the verdict on this count, but we cannot discern the basis for this decision from the record. In denying the motion for directed verdict, the trial court indicated that the central issue to be resolved in connection with the § 1983 claim was whether the determination that the defendants did or did not act under color of law was a question of law for the court to decide or a question of fact to be submitted to the jury. The trial court further indicated that it decided to submit the question to the jury on the basis of a split of authority in other jurisdictions. The transcripts provided to this court, however, fail to inform us as to what split of authority the trial court was referring, or what law controlled its decision to treat the “under color of law” issue as a question of fact. It is the duty of the appellants to provide an adequate record. See Practice Book § 4061. The defendants have failed tó do so by failing to move for an articulation pursuant to Practice Book § 4051. Accordingly, we are without a sound basis for reviewing this claim on appeal and decline to do so.

Ill

The plaintiff cross appeals and challenges the judgment denying his motion to set aside the verdict on the second count of his complaint, which alleged tortious interference with a contract. Again, we have not been provided with an adequate record to review this claim.

The trial court did not prepare a memorandum of decision regarding either the granting of the motion for directed verdict on the second count or the denial of the motion to set aside the directed verdict on this count. The plaintiff has also failed to furnish this court with an adequate record. We have repeatedly held that it is an appellant’s duty to provide us with an adequate record. State v. Rosedom, 34 Conn. App. 141, 144, 640 A.2d 634 (1994); State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993). Accordingly, we are unable to consider the claim raised by the plaintiff’s cross appeal.

The judgment is affirmed.

In this opinion Landau, J., concurred.

Lavery, J.,

concurring. I agree with the reasoning

and conclusion of the majority on the issue concerning survival of the defendants’ motion to strike after an amendment to the complaint.

The second issue, whether the trial court improperly denied the defendants’ motion for judgment notwithstanding the verdict on the first count alleging a claim under 42 U.S.C. § 1983, is not reviewed by the majority because of an inadequate record. I agree with the result reached by the majority, but I would review this claim on the basis of the transcripts filed, the exhibits admitted into evidence and the jury’s answer to the interrogatories, and would affirm the judgment of the trial court.

The jury in rendering its verdict for the plaintiff could have found the following facts. In the fall of 1984, the plaintiff subdivided a parcel of land in the town of Suffield. The defendants, Paul Hryniewiez and West Service Corporation (West Service), agreed to supply the subdivision with water and to allow the plaintiff to install the water mains. The plaintiff applied to the Suffield planning and zoning commission for open space subdivision approval, which required the provision of “public water” rather than private wells to the site. The defendants advised the planning and zoning commission that they could provide water to the subdivision and that the plaintiff’s proposal met their basic requirements. West Service, the closest water company servicing the area of the proposed subdivision, had been licensed by the state department of public utility control (department) and had a water main relatively near the proposed subdivision site.

In January, 1985, the planning and zoning commission approved the plaintiff’s application for a twenty-four lot open space subdivision known as Broadleaf Circle and the plaintiff began the construction of the three houses that fronted an existing public highway and began the installation of drainage pipe. In February or March, 1985, Hryniewicz inspected the pipe that the plaintiff was using for drainage. Hryniewicz found the pipe substandard and retracted his permission that the plaintiff construct the water mains. He then delayed the provision of water to Broadleaf Circle for a period that eventually exceeded three years.

The plaintiff petitioned the department to establish his own water company to service Broadleaf Circle. In May, 1985, he applied to the department for a certificate of public convenience and necessity. In 1981, the department had ordered West Service to submit its financial, engineering and management data for prior years. By this order, the department had sought to compel West Service to adopt acceptable management and engineering standards. West Service had not complied with that order and, in May, 1986, one year after the plaintiff had filed his petition, the department ordered a show cause hearing into West Service’s noncompliance, designated the plaintiff as an intervenor and ordered West Service to determine the feasibility of extending water service to Broadleaf Circle.

On November 12, 1986, the department denied the plaintiff’s petition and ordered West Service to enter into a service extension agreement with the plaintiff. Citing a policy that promoted monopolistic utilities, the department ordered the plaintiff to obtain his water from West Service and ordered West Service to provide the plaintiff with water. Subsequently, because of West Service’s continuing failure to comply with its orders, the department took “extraordinary measures” by drafting the specific terms of the extension agreement and ordered West Service to execute it. In the meantime, the plaintiff applied to the department for a second certificate of public convenience and necessity. That application was denied by the department on June 15, 1988.

On August 5, 1988, West Service finally delivered to the plaintiff the extension agreement that it claimed to have executed under duress. The plaintiff immediately signed the agreement and, pursuant to its terms, paid the defendants the sum of $123,386. Thereafter, despite repeated threats of civil penalties by the department, West perpetrated further delay in the provision of water to the three constructed homes and the balance of the subdivision.

When the main finally reached the houses on the existing highway, West Services did not tie them in through laterals, which would have taken approximately twenty-four hours. Instead West Service ran the main over 700 feet past the subdivision. As of the date of trial, Hryniewicz acknowledged that the construction of the additional 701 feet still did not provide service to anyone.

The defendants first argue that the trial court should have granted the defendants’ motion to strike the plaintiff’s claim under 42 U.S.C. § 1983 on the grounds that the defendants’ conduct was not “under color of state law.” As the majority found, the appeal from the denial of the motion to strike is not properly before this court. Additionally, because all of the facts are before this court on appeal, a review of the plaintiff’s § 1983 claim should be based on the complete trial record. See Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 517, 227 A.2d 83 (1967).

The defendants next argue that the trial court improperly denied their motion for judgment notwithstanding the verdict on the same grounds. A trial court is authorized to set aside a verdict only when it finds that a jury could not reasonably and legally reach its conclusion. Mulligan v. Rioux, 229 Conn. 716, 726, 643 A.2d 1226 (1994). A legally cognizable claim may be brought under 42 U.S.C. § 1983 only if the defendants acted “ ‘under color’ ” of state law. Rendell-Baker v. Kohn, 457 U.S. 830, 835, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982). “In cases under § 1983, ‘under color’ of law has consistently been treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.” United States v. Price, 383 U.S. 787, 794 n.7, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966).

The defendants argue that the jury could not have found sufficient facts to constitute state action under the United States Supreme Court’s holding in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 358-59, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974). The Jackson court specifically rejected the argument that a privately owned utility becomes a state actor solely by being licensed by the state, heavily regulated and enjoying at least partial monopoly status. Id., 350-51. If, however, the state goes further and exercises coercive power, provides significant encouragement or orders a private decision, private conduct can be fairly attributable to the state. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 938-39, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982); Public Utilities Commission v. Pollak, 343 U.S. 451, 462, 72 S. Ct. 813, 96 L. Ed. 1068 (1952). When a private actor is clothed with the authority of the state, and abuses the position given to him by the state, that action constitutes state action. West v. Atkins, 487 U.S. 42, 49-50, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).

At trial, the jury could have reasonably found sufficient facts establishing state action to support a § 1983 claim. Specifically, the jury could have found that the department ordered the plaintiff to obtain his water from the defendants; the department twice denied the plaintiff’s petitions for certificates of public convenience and necessity because it favored a policy promoting monopolistic utilities; West Service was a heavily regulated utility enjoying partial monopoly status; and West Service abused the position given to it by the state by denying water to the plaintiffs subdivision. These facts indicate that the department clothed the defendants with the authority to deprive the plaintiff of his property interest. The defendants’ act of depriving the plaintiff of water constitutes state action giving rise to a claim under 42 U.S.C. § 1983. Therefore, the trial court’s decision to deny the defendants’ motion for judgment notwithstanding the verdict was proper.

       Title 42 of the United States Code § 1983 provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

       The defendants’ brief framed an additional issue for appeal: whether the trial court improperly denied their motion to strike the second count of the complaint. During oral argument the defendants conceded that the denial of their motion to strike the second count of the complaint was moot as a result of the trial court’s granting the defendants’ motion for a directed verdict on this count.

       Although the appealability of the motion to strike the plaintiff’s original complaint was not addressed in any of the briefs filed with this court, the issue was argued by counsel at oral argument.

       Practice Book § 112 provides: “The order of pleading shall be as follows:
      “(1) The plaintiff’s complaint.
      “(2) The defendant’s motion to dismiss the complaint.
      “(3) The defendant’s request to revise the complaint.
      “(4) The defendant’s motion to strike the complaint.
      “(5) The defendant’s answer (including any special defenses) to the complaint.
      “(6) The plaintiff’s request to revise the defendant’s answer.
      “(7) The plaintiff’s motion to strike the defendant’s answer.
      “(8) The plaintiff’s reply to any special defenses.”

       Although the defendants brief the denial of the motion for directed verdict and the refusal to enter a judgment notwithstanding the verdict as separate issues, the facts, arguments and questions of law raised by these motions are the same. We consider the denial of these motions as a single issue.

       See footnote 1.

       In its oral decision denying the defendants a directed verdict on the § 1983 claim, the trial court refers to the “admirable argument” and “very well written memoranda of law” supplied by the parties. Even if we could construct the basis for the trial court’s decision from these sources, we would decline to do so. Such an inquiry would require review of dozens of pages of transcript and written argument and it is the responsibility of the appellant to provide us with an adequate record for review. See Practice Book § 4061.

       Practice Book § 4061 provides: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.
      “It is the responsibility of the appellant to provide an adequate record for review.”


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Robert Esposito v. Martin Schiff, Jr., et al.
    (13408)
    Foti, Lavery and Spear, Js.
    Argued April 21
    decision released August 15, 1995

      Jonathan J. Einhom, for the appellant (plaintiff).

      Stuart M. Ketaineck, for the appellee (named defendant).
   Lavery, J.

The plaintiff appeals in this medical malpractice action from the judgment for the defendant, Martin Schiff, Jr., after a jury trial. The plaintiff claims that the trial court was incorrect in precluding the jury from considering the allegation of negligence that the defendant failed to inform the plaintiff that he did not remove all of the kidney stones. We affirm the judgment of the trial court.

The facts pertinent to this appeal that are not disputed are as follows. On July 8, 1986, the defendant, a surgeon, operated on the plaintiff and removed three kidney stones and left five kidney stones. The plaintiff brought this medical malpractice action against the defendant and made the following claims of negligence in paragraph 11 (f) of his complaint: The defendant was careless and negligent in his treatment of the plaintiff in one or more of the following respects: (1) in removing only three of the eight identified pelvic stones; (2) in failing to employ sophisticated new and available techniques to secure the remaining stones; (3) in failing to repair fully the uretopelvic junction; and (4) in failing to inform the plaintiff that he did not secure and remove all of the stones.

The third of those claims was withdrawn prior to trial, and the trial court instructed the jury not to consider the fourth. As to the remaining claims of malpractice, the jury found for the defendant. The plaintiff and the defendant agreed that there was conflicting testimony, by the plaintiff that he was not informed, and by the defendant that he did inform the plaintiff, that all of the kidney stones were not removed. The plaintiff and the defendant agreed that each of their experts testified that it would have been malpractice and a violation of the appropriate standard of care for the defendant to have failed to notify the plaintiff that all of the kidney stones were not removed. The defendant testified to his extreme distress and anxiety when he learned that contrary to his belief, the stones had not been removed.

The plaintiffs sole issue briefed on appeal is that the court directed the jury not to consider the allegation of failure to inform because the court found that there was insufficient evidence of an injury, i.e., emotional distress. The defendant on the other hand claims that one of the reasons that the trial judge directed the jury not to consider the allegation of failure to inform was that the court found that there was no evidence of proximate cause between the alleged negligence of failure to inform and the alleged injury of distress. The trial court said, “I don’t see in the record the evidence of injury that flowed from a failure to tell of the stones.”

The plaintiff in his brief has failed to comply with the requirements of Practice Book § 4065 (c), which requires that the brief shall recite evidence in narrative form with appropriate references to the page or pages of the transcript. There are no references to any transcripts in the plaintiff’s statements of facts. The only transcripts filed in his appeal are the plaintiff’s testimony, the charging conference, the jury charge and the argument on the motion to set aside the verdict.

Even with the sparse record, we will do a limited review based on the reason the trial judge gave for instructing the jury not to consider the allegation of failure to inform.

Our Supreme Court has interpreted the word “flow” to mean proximate cause on numerous occasions. Fair v. People’s Savings Bank, 207 Conn. 535, 545, 542 A.2d 1118 (1988); Aspiazu v. Orgera, 205 Conn. 623, 630, 535 A.2d 338 (1987); Kilduff v. Kalinowski, 136 Conn. 405, 408, 71 A.2d 593 (1950); Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 361, 199 A. 653 (1938). A common sense interpretation of the trial court’s remarks draws us to the conclusion that its use of the word flow means proximate cause. The trial court stated, “Okay. So then the only question seems to me, the real questions in terms of dealing with it is whether or not paragraph 11D in failing to inform the plaintiff that he did not secure or remove all the stones gets charged out as an allegation of negligence on the basis of whether or not there has been any proof of any injury which flows from that negligence, assuming even if it was negligence because negligence alone doesn’t go to the jury; you have to have negligence plus injury to get to the jury.” (Emphasis added.)

This case is similar to the medical malpractice case of LaBieniec v. Baker, 11 Conn. App. 199, 205, 526 A.2d 1341 (1987), where we upheld a directed verdict for the defendants on a claim of emotional distress because the plaintiff failed to submit sufficient evidence of proximate cause. In LaBieniec, the plaintiff argued that a delay in the diagnosis of cancer caused him to suffer emotional distress. We found, however, that the “only evidence that the delay and not the cancer was the cause of the emotional distress was testimony by the plaintiff.” (Emphasis in original.) Id. We further stated: “A claim of physical suffering can go to the jury only if the plaintiff produces sufficient evidence of the suffering and that the malpractice, within reasonable medical probability, was more likely than not the cause of the physical suffering. The same holds true for an emotional distress claim; a plaintiff must provide sufficient evidence of the distress and that the malpractice, within reasonable medical probability, was more likely than not the cause of the distress. In this case, the plaintiff did not provide causation. The jury therefore could not have found for him on this claim and it was proper for the trial court to direct a verdict. No matter how negligent a party may be, if his act bears no causal relation to the injury, it is not actionable. Kirby v. Spivey, 167 Ga. App. 751, 756, 307 S.E.2d 538 (1983). Since the plaintiff failed to establish the existence of emotional distress caused by the delay rather than by the disease, the trial court did not err in directing a verdict of the emotional distress claim.” Id., 206.

In Shegog v. Zabrecky, 36 Conn. App. 737, 746-47, 654 A.2d 771 (1995), we set out three exceptions to the general rule with regard to expert medical opinion evidence on causation in a medical malpractice case. “An exception to the general rule with regard to expert medical opinion evidence is when the medical condition is obvious or common in everyday life. State v. Orsini, 155 Conn. 367, 372, 232 A.2d 907 (1967); see also Parker v. Supermarkets General Corp., 36 Conn. App. 647, 652 A.2d 1047 (1995). Similarly, expert opinion may not be necessary as to causation of an injury or illness if the plaintiff’s evidence creates a probability so strong that a lay jury can form a reasonable belief. Gannon v. Kresge Co., 114 Conn. 36, 38, 157 A. 541 (1931). Expert opinion may also be excused in those cases where the professional negligence is so gross as to be clear even to a lay person. Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982); Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927).” Id., 746-47.

The plaintiff has not provided this court with a record of any evidence of proximate cause on this issue to contradict the trial court’s ruling. It is the duty of the appellant to provide an adequate record. Practice Book § 4061 provides in pertinent part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.” We will not presume error and it is textbook law that a trial court’s ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied his burden demonstrating the contrary. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 7, 513 A.2d 1218 (1986).

The plaintiff has failed to carry his burden of proof of causation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The case was withdrawn as to the defendant Yale-New Haven Hospital prior to trial. In this opinion, we refer to Schiff as the defendant.

       Subsection (c) of Practice Book § 4065 provides: “A statement of the nature of the proceedings and of the facts of the case. The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the transcript or to the document upon which the party relies. The statement of facts should not be detailed or voluminous but must be confined strictly to facts bearing upon the questions raised. An appellant may not rely upon any fact unless it is set forth in the statement of facts required by this subsection or is incorporated into the brief of the appellant in accordance with subsection (d) hereof.”


text:
    State of Connecticut v. Thomas Martin, Jr.
    (12797)
    Dupont, C. J., and La very and Hennessy, Js.

      Argued April 19
    decision released August 15, 1995

      Suzanne McAlpine, with whom, on the brief, was Hugh F. Keefe, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from a judgment of conviction, after a trial to the court, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (4). The defendant was sentenced to a term of ten years. On. appeal, the defendant claims that (1) the trial court improperly allowed the state to offer constancy of accusation testimony, (2) the trial court improperly allowed admission of the victim’s redacted clinic and hospital records under the hearsay exceptions for business records and statements made in securing medical treatment, (3) the trial court improperly allowed the victim’s mother to testify as to the victim’s mental state and school record under a nonassertive conduct exception to the hearsay rule, and (4) there was insufficient evidence to convict the defendant of any offense beyond a reasonable doubt.

The trial court found the following facts. At the time of the incident, the victim was living with her father and stepmother on her father’s houseboat. She had been living with them for three years. On the date of the assault in this case, the victim’s stepmother was in Vermont where she was about to have a baby. The victim had previously lived with her mother and stepfather in Florida. The victim had just completed her sophomore year in high school and was working for the summer.

On July 30, 1990, the defendant picked up the victim from her job, took her to dinner and returned to the boat with her. Upon returning to the boat, the victim helped the defendant fix the air conditioning. When the repairs were finished, the defendant went out and the victim watched television until approximately 10 p.m. and then went to sleep.

At approximately midnight, the defendant returned, came to the victim’s room and asked her to help do more work on the air conditioning. The victim helped the defendant for approximately one hour. The defendant, who had been drinking, was unsteady on his feet and slurred his words. After helping her father, the victim returned to bed. The defendant entered her room and looked under her bed covers; he said she was not ready for bed because she was wearing shorts. He told her to come talk to him when she was ready for bed. He wanted to discuss whether she was to go on a date the following night.

When the victim went to her father’s bedroom, as he had requested, he started talking to her about sex. After he told her to lay down on the bed, he talked to her about masturbation and inquired as to whether she knew the difference between a hard and soft penis. At this point, the defendant grabbed the victim’s hand and placed it on his penis, instructing her to rub it. The victim told her father that she was uncomfortable with this conduct and went to her room.

Shortly thereafter, the defendant called the victim to the kitchen. He told her that he had been wrong and should not have talked to her that way. After going to his room, the defendant returned to the kitchen with a gun, which he pointed at the victim’s head. He told her that if she told anyone, he would shoot her, and he ordered her to go to his bedroom.

Once they were in the defendant’s bedroom, he told the victim to take off her clothes. She followed his instruction, but asked if she could keep her underwear on, the defendant said she could. He made the victim lie down on top of him on the bed and he moved his pelvic area up and down several times. The victim stood up. The defendant told the victim that she had the choice of performing fellatio or having sexual intercourse. The victim told her father that she did not want to do either, but the defendant told her that if she was not quiet that she would be in big trouble. The victim performed fellatio and then went to her bedroom. The victim heard her father yelling that he had ruined her life and how could he have done this to her.

On July 31, the victim’s father gave her a ride to work. From there, the victim called her friend, Melissa Mancini, but Mancini was asleep. The victim called again later and spoke with Mancini. She told her friend that her father had forced her to perform fellatio. Mancini’s mother, Giselle Doszpoj, got on the phone and asked the victim what had happened. The victim told Doszpoj what had occurred and Doszpoj, who was a Bridgeport police officer, called the department of children and youth services (DCYS).

The victim spoke with Susie Laffitte at DCYS who told her to call the police. Doszpoj picked up the victim at work and brought her to Doszpoj’s house where the victim gave the police a statement. Doszpoj called the victim’s mother, Sharon Giersdorf, and told her what had happened. Giersdorf spoke briefly to the victim and then traveled to Connecticut from Florida the next day. Giersdorf and the victim returned to Florida where the victim has since resided.

I

First, the defendant claims that the constancy of accusation testimony offered by the state is highly prejudicial and requires that the case be reversed. This testimony consisted of statements made by the victim to Mancini and Doszpoj on the morning of the sexual assault. The state introduced a statement given by the victim to Bridgeport police detective A.M. Osika on the afternoon of August 1. The state also introduced redacted records of Savannas Hospital in Florida where the victim had voluntarily admitted herself-because she was depressed. In addition, the state introduced redacted records of Psychiatric and Psychological Associates which consisted of statements the victim made to a treating physician concerning the sexual assault. The defendant claims that the assault never occurred and the only reason the victim accused him was because she no longer wanted to live with him and wanted to return to Florida. In addition to the victim’s testimony concerning the assault and the constancy testimony, the state introduced testimony that refuted the defense theory that the victim’s only purpose in making this accusation was to return to Florida.

A

In June, 1994, our Supreme Court reaffirmed the admissibility of constancy of accusation testimony. State v. Kelley, 229 Conn. 557, 563-67, 643 A.2d 854 (1994). The genesis of this rule dates to 1830 when the court held: “If a female testifies, that such an outrage has been committed on her person, an enquiry is, at once, suggested, why it was not communicated to her female friends. To satisfy such inquiry, it is reasonable that she should be heard in her declarations, that she did so communicate it, and that testimony should be received to confirm her story.” State v. De Wolf, 8 Conn. 93, 100 (1830). Since this case, the Supreme Court has consistently approved the admission of such evidence. See State v. Kinney, 44 Conn. 153, 156-57 (1876); see also State v. Parris, 219 Conn. 283, 289-90, 592 A.2d 943 (1991). In order for such testimony to be admissible, the complainant must first testify to the facts alleged and then state that she made this complaint to some other person. That person can then testify not only to the fact that a complaint was made, but also to the details. State v. Segerberg, 131 Conn. 546, 548-49, 41 A.2d 101 (1945).

The reason for the admission of such testimony is that it would be natural for the victim of a sexual assault to relate the incident to others. The recitation of the details would be likely to be constant if the claim was true and discrepancies would be more likely if the incident did not happen. State v. Kelley, supra, 229 Conn. 565-66. Here, this testimony was used only to corroborate the victim’s testimony. State v. Hamer, 188 Conn. 562, 565, 452 A.2d 313 (1982). The defendant has failed to demonstrate any compelling reason to curtail the use of this doctrine. State v. Parris, supra, 219 Conn. 292. It is also important to note that not only does this testimony provide additional information on which to cross-examine the victim, but the defendant can cross-examine the accusation witnesses as well. State v. Dabkowski, 199 Conn. 193, 202, 506 A.2d 118 (1986); State v. Brigandi, 186 Conn. 521, 533, 442 A.2d 927 (1982).

B

The defendant claims that the constancy of accusation testimony violated his right of confrontation. The defendant’s argument is based entirely on the United States Supreme Court decision in Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990). The issue in Wright was the admission of hearsay statements of a child who the trial court ruled was not capable of communicating to the jury. The prosecution relied on Idaho’s residual hearsay exception; the court then determined that under such an exception the trustworthiness of the statement must be established, which the prosecution could not do. Id., 817-27. The court pointed out, however, that the indicia of reliability requirement is met when the hearsay statement “falls within a firmly rooted hearsay exception.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). If the statement meets this exception then it is allowed into evidence as it also then meets the requirements of the confrontation clause. Idaho v. Wright, supra, 814; Ohio v. Roberts, supra, 65.

As stated in part I A, this exception to the hearsay rule has existed since 1830; State v. De Wolf, supra, 8 Conn. 93; and has “consistently been approved by this court.” State v. Kelley, supra, 229 Conn. 565. The testimony in this case is a firmly rooted exception and, therefore, does not violate the confrontation clause.

The admissibility of the hospital records of the victim also involves an exception to the hearsay rule. This court has held that statements of a child abuse victim to a treating physician, although hearsay, carry with them the indicia of reliability necessary to be admitted as evidence. State v. Maldonado, 13 Conn. App. 368, 371, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988); see also State v. DePastino, 228 Conn. 552, 638 A.2d 578 (1994). The reason for this exception is that an individual seeking medical treatment would be truthful, which gives such testimony the “ ‘guarantees of trustworthiness.’ ” Idaho v. Wright, supra, 497 U.S. 815; Ohio v. Roberts, supra, 448 U.S. 66. It must also be remembered that the victim had testified to these facts and was available for cross-examination.

C

The defendant claims that his state and federal due process rights were violated by the introduction of the constancy of accusation evidence because it discriminates against accused sex offenders. The defendant seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, the defendant must meet four conditions to prevail in his claim. Id., 239-40. The defendant has failed to satisfy the third prong, that a constitutional violation clearly existed and deprived him of a fair trial. State v. Smith, 35 Conn. App. 51, 54, 644 A.2d 923 (1994).

This hearsay exception is limited to sexual assault trials because of the nature of the exception, not a policy decision of any state agency. The constancy of accusation exception to the hearsay rule is an eviden-tiary ruling long recognized by our courts and is applied to every sexual assault defendant regardless of race or gender.

The defendant claims that this exception rests on “hoary sexual stereotypes” and has “no empirical foundation.” In State v. Kelley, supra, 229 Conn. 564-65, the defendant made this same argument and our Supreme Court held that this exception was not gender biased. The court reasoned that “[b]ecause the doctrine would apply equally to male and female victims, we conclude that it is not gender biased and, therefore, does not violate article first, § 20, of the Connecticut constitution.” Id., 565. As the defendant’s claim cannot be differentiated from the claim in Kelley, and there is no constitutional violation, no further review of this claim is necessary.

II

Second, the defendant claims that the admission of portions of the records from the clinic and hospital, under the business exception to the hearsay rule, was prejudicial to the defendant and lacked any indicia of reliability and truthfulness and, therefore, should have been excluded. The only portions of the records admitted were statements made by the victim in which she indicated that she had been sexually assaulted by her father, and opinions, by others, that she was suffering from psychological problems. The victim testified that she started seeing Ruth Bolton, a physician at the clinic, on August 10, and told her what had happened. She also told two other physicians that she had been sexually assaulted. She testified that in November or December she stopped working and going to school, slept day and night, and was in a deep depression. She voluntarily admitted herself to Savannas Hospital for one month.

This court in State v. Maldonado, supra, 13 Conn. App. 371, carved out an exception to the hearsay rule that allows into evidence statements of child abuse victims to a physician for the purpose of obtaining medical treatment. This court relied on the two part test employed in United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980), first, was the declarant’s motive consistent with obtaining medical treatment, and second, was it reasonable for the physician to rely on such information. In the case at hand, from the testimony of the victim and her mother, it is clear that the victim was frightened, sad and confused when she arrived in Florida. From these facts the trier of fact could infer that the victim went to Bolton for treatment of depression and, therefore, these statements, which were made for the purposes of her treatment, were reliable.

The same analysis is appropriate for reviewing the admission of the hospital reports. The defendant argues that because this is not medical treatment, but rather psychological treatment, this exception does not apply. “If the sexual abuser is a member of the child victim’s immediate household, it is reasonable for a physician to ascertain the identity of the abuser to prevent recurrences and to facilitate the treatment of psychological and physical injuries.” State v. Dollinger, 20 Conn. App. 530, 535, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990). The victim demonstrated a desire to recover her mental health by seeing Bolton and her voluntary hospital admission; such action will restrain her from giving false statements. Brown v. Blauvelt, 152 Conn. 272, 275, 205 A.2d 773 (1964). Our Supreme Court adopted this reasoning in State v. DePastino, supra, 228 Conn. 552.

The defendant argues that the state’s “obvious purpose” in introducing these records was to connect the victim’s psychological problems to the sexual assault. The defendant fails to cite any portion of the record that would lend credence to this argument. The victim testified, without objection, that the reason she entered Savannas Hospital was for treatment of the depression caused by the assault.

III

Third, the defendant claims that the trial court improperly allowed Giersdorf, the victim’s mother, to testify as to the victim’s mental state and school record under a nonassertive conduct exception to the hearsay rule. The state introduced this evidence in response to the defendant’s claim that the only reason the victim made this complaint was to be allowed to move to Florida. The defendant did this through his cross-examination of the state’s witnesses and the direct examination of his witness. The defense witnesses portrayed the victim as being very unhappy living with her father. They further testified that immediately after the crime the victim seemed normal and happy; the opposite picture presented by the state. Before this evidence was introduced, the victim had testified to her basic conduct before and after the incident. Giersdorf was testifying as to her observations of the victim and the victim’s demeanor upon their return to Florida. She testified that on July 30, she spoke with her daughter who was happy and spoke of the concert she had attended over the weekend. Giersdorf testified that in August the victim was frightened, sad, unhappy and confused; she had trouble sleeping at night and rarely left the house.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.” State v. Sauris, 227 Conn. 389, 406, 631 A.2d 238 (1993). Here, this evidence was relevant to aid the trier in its determination as to the ultimate issue of whether a sexual assault had occurred. Evidence is relevant if it tends to support the conclusion for which it is offered, even, if only to a slight degree. State v. Marra, 222 Conn. 506, 521, 610 A.2d 1113 (1992). The defendant, by his cross-examination, in effect, opened the door to this line of questioning and cannot now object to the state’s later questioning on the same subject. State v. Hernandez, 224 Conn. 196, 206, 618 A.2d 494 (1992).

“Nonassertive conduct such as running to hide, or shaking and trembling, is not hearsay.” State v. Thomas, 205 Conn. 279, 285, 533 A.2d 553 (1987). Even an out-of-court statement is not hearsay “if it is offered to illustrate circumstantially the declarant’s then present state of mind.” State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993). Here, the witness was relating her direct observations of a person from which the trier of fact could infer that person’s state of mind.

The defendant relies on State v. Vitale, 197 Conn. 396, 405, 497 A.2d 956 (1985), for the proposition that such evidence is admissible only when no other explanation for such conduct is possible. In Vitale, the conduct sought to be introduced was silence in the face of accusation. The court held that while such evidence “may be admissible under the ancient maxim that ‘silence gives consent’ the inference of assent may be made only when no other explanation is equally consistent with silence.” State v. Harris, 182 Conn. 220, 229, 438 A.2d 38 (1980), as quoted in State v. Vitale, supra, 405. In this case, the testimony consisted of direct observations by the witness to conduct that the actor had previously testified to.

In addition, the state attempted to introduce through Giersdorf the victim’s report card from her junior year in high school in Florida. The defendant objected on the basis that the report card was improper hearsay and the trial court sustained the objection. The court then allowed Giersdorf to testify, however, from her own recollection concerning the grades on the report card as long as she did not refer to the actual document. The defendant renewed his objection, and the trial court overruled the objection. The defendant argues on appeal that Giersdorf’s testimony concerning the victim’s grades was improperly admitted under the nonassertive conduct exception to the hearsay rule. We agree. Unlike her testimony concerning the victim’s moods and demeanor, which Giersdorf directly observed and did constitute nonassertive conduct on the part of the victim, the testimony concerning the grades was not conduct directly observed by Giersdorf but rather was the subjective opinion of the victim’s teachers regarding her academic performance. Although the admission of the testimony was improper, we conclude that it was cumulative to Giersdorf’s properly admitted testimony concerning the victim’s mental state. Since it is not likely that the erroneous admission affected the result in this case, we hold that it was not prejudicial and, therefore, harmless. State v. Suckley, 26 Conn. App. 65, 73, 597 A.2d 1285, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991).

IV

Finally, the defendant claims that the evidence was insufficient to find him guilty of sexual assault in the second degree. The defendant’s argument is based on the fact that only the victim testified to the assault, and there was no physical, medical or forensic evidence to corroborate her claim. The defendant further asserts that there was more corroborating evidence for the defendant’s claim that the assault never occurred. The defendant also points to the fact that the trier of fact found that the assault was accomplished through the father-daughter relationship and not by the threat or use of a gun which, the defendant claims, shows that the trier disbelieved a portion of the victim’s testimony.

This court recently employed the traditional two part analysis in reviewing a sufficiency claim. State v. Finley, 34 Conn. App. 823, 826, 644 A.2d 371, cert. denied, 231 Conn. 927, 648 A.2d 880 (1994). The court must construe the evidence in a light most favorable to sustaining the verdict, and then determine from that evidence, and all the reasonable inferences that flow from it, whether the trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. Id.; see also State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994); State v. Reddick, 33 Conn. App. 311, 332, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). “Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing.” State v. Gray, 221 Conn. 713, 720, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). There is nothing in our criminal jurisprudence that mandates that the trier of fact accept the defendant’s version of the events; rather the trier is free to juxtapose conflicting versions of events and determine which is more credible. State v. Adams, 225 Conn. 270, 278, 623 A.2d 42 (1993). It is the trier’s exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. State v. Hooks, 30 Conn. App. 232, 239, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). The trier of fact may accept or reject the testimony of any witness. State v. Cooley, 24 Conn. App. 489, 490, 589 A.2d 377, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). The trier can, as well, decide what — all, none, or some — of a witness’ testimony to accept or reject. 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) § 32.

From a review of the testimony, as previously discussed, the trier of fact could find that the victim was sixteen years old at the time of the assault and that the actor was her father. The trier could also find that there was sexual intercourse. The elements of the crime of sexual assault in the second degree were present so that the court could have found that each was proven beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (4) such other person is less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare. . . . ."

       The defendant was found guilty of violating General Statutes § 53a-71 (a) (4). See footnote 1.


author: Landau, J.

text:
    CFM of Connecticut, Inc. v. Taufiqul Chowdhury et al.
    (12406)
    Foti, Landau and Heiman, Js.
    Argued April 24
    decision released August 15, 1995

      John Timbers, for the appellant-appellee (plaintiff).

      Frank G. Usseglio, with whom, on the brief, were Karen P. Blado and Medina K. Jett, for the appellee-appellant (named defendant).
   Landau, J.

The sole issue in this cross appeal by the defendant Taufiqul Chowdhury (defendant) is whether the trial court, Holzberg, J., improperly vacated an order of contempt and sanctions imposed by a coordinate trial court, Susco, J.

The following facts are relevant to our disposition of this case. In 1989, the plaintiff filed an action against the defendant and 5 C’s Corporation for breach of a franchise agreement and against 294 Farmington Realty Company and Sielev Associates for intentional interference with a contract. During the course of these proceedings, the defendant moved for sanctions against the plaintiff and its attorney, John Timbers, for bad faith pleading. On August 31, 1990, the trial court, Smco, J., granted the motion for sanctions and ordered the plaintiff and Timbers personally to pay attorney’s fees of $10,000 to the defendant. On December 31, 1990, upon a motion by the defendant, the trial court articulated its order, specifying that the $10,000 was to be paid by February 28,1991. Timbers neither complied with nor appealed from the order.

The defendant thereafter moved the trial court to find Timbers in contempt of court for, inter alia, his failure to pay the $10,000 in attorney’s fees. On March 18, 1993, the trial court, Holzberg, J., vacated Judge Susco’s August 31, 1990 order after finding that no hearing had been held in support of the defendant’s motion for sanctions pursuant to Fattibene v. Kealey, 18 Conn. App. 344, 558 A.2d 677 (1989).

The defendant subsequently cross appealed, arguing that because Judge Susco’s August 31,1990 sanctions order was a final judgment, the doctrine of res judicata barred Judge Holzberg from vacating it. In response, Timbers asserts that (1) the doctrine of res judicata does not bar relitigation in the same action, (2) the doctrine applies only to final judgments and not to interlocutory orders, as he characterizes the trial court’s August 31, 1990 sanctions order, and (3) the law of the case doctrine, which is applicable, permits a trial court judge to depart from a ruling by a prior judge in the same case.

As a threshold matter, we conclude that the August 31.1990 sanctions order was a final judgment pursuant to the test set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). In Curdo, the Supreme Court held that “certain interlocutory orders and rulings of the Superior Court [are] final judgments for purposes of appeal. An otherwise interlocutory order is appeal-able in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id. The August 31, 1990 order, as articulated on December 31, 1990, both concluded the matter of whether the plaintiff’s and Timbers’ pleadings were contemptuous and fixed the amount of sanctions at $10,000. No further trial court proceedings were anticipated that would eradicate the plaintiff’s and Timbers’ obligation to pay the $10,000. Therefore, the August 31.1990 order constituted a final judgment. See In re Dodson, 214 Conn. 344, 361, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990); Fattibene v. Kealey, 12 Conn. App. 212, 216, 530 A.2d 206 (1987).

In our resolution of this claim, we need not make use of the stepping stones of res judicata and law of the case, as suggested by the parties. Rather, we turn to the well established law that, “[w]hile courts have an inherent power to open, correct and modify judgments; Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983); the duration of this power is restricted by statute and rule of practice. In order for a trial court to open a civil judgment, a motion to open or set aside must be filed within four months of the date that judgment is rendered. General Statutes § 52-212a; Practice Book § 326; DiSimone v. Vitello, [6 Conn. App. 390, 391-92, 505 A.2d 745 (1986)].” Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). Where “the motion is untimely and the time limitation has not been waived, the trial court is without jurisdiction to entertain the motion. Van Mecklenburg v. Pan American World Airways, Inc., [196 Conn. 517, 518, 494 A.2d 549 (1985)].” Id., 8-9.

General Statutes § 52-212a and Practice Book § 326 are applicable in this case because the contempt order was a civil order. The August 31,1990 order was issued to vindicate the private rights of the defendant rather than the dignity and authority of the court. Dunham v. Dunham, 217 Conn. 24, 28 n.3, 584 A.2d 445 (1991); Mays v. Mays, 193 Conn. 261, 265-66, 476 A.2d 562 (1984); DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 278, 471 A.2d 638 (1984); McTigue v. New London Education Assn., 164 Conn. 348, 352-53, 321 A.2d 462 (1973). “Sanctions for civil contempt may be either a fine or imprisonment; a fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained. DeMartino v. Monroe Little League, Inc., supra [278]; McTigue v. New London Education Assn., supra, 278-79; see also United States v. United Mine Workers of America, 330 U.S. 258, 303-304, 67 S. Ct. 677, 91 L. Ed. 884 (1947); G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29, 41 (1st Cir. 1980). . . . The fine imposed for a civil contempt may be payable to the complainant as compensation for his loss. DeMartino v. Monroe Little League, Inc., supra, 279.” Dunham v. Dunham, supra, 28 n.3.

Following the August 31,1990 sanctions order, neither the plaintiff nor Timbers filed a motion to vacate or set aside the judgment. Likewise, neither appealed the validity of the order. There is no question that the four month period set out in General Statutes § 52-212a and Practice Book § 326 had run by March 18, 1993, when Judge Holzberg vacated Judge Susco’s sanctions order. Also, an examination of the record reveals that the parties did not waive the provisions of § 52-212a and § 326 or otherwise submit to the jurisdiction of the trial court. While the trial court, Holzberg, J., conducted a hearing on the defendant’s motion for contempt and separate application for a writ of quo warranto neither the trial court nor the parties addressed the validity of the August 31,1990 sanctions order. For these reasons, we conclude that Judge Holzberg lacked jurisdiction to vacate the previously imposed sanctions order.

The portion of the judgment vacating the August 31, 1990 sanctions order is reversed.

In this opinion the other judges concurred.

       This cross appeal survives the original appeal in this case, which was filed by the plaintiff. We dismissed the appeal on the grounds of untimeliness pursuant to Practice Book § 4009 and the plaintiff’s failure to comply with a nisi order issued by the court.

       Previously, the trial court had ordered the plaintiff to submit a memorandum of law on the question of whether the plaintiff should be permitted to recall a certain witness. In its motion for sanctions, the defendant claimed that instead of a memorandum of law, the plaintiff had submitted affidavits replete with hearsay and improper opinions and legal conclusions. Also, the defendant alleged that Timbers had personally submitted an affidavit and violated rules 3.4 and 3.7 of the Rules of Professional Conduct. For these reasons, the defendant requested the court to hold the plaintiff and Timbers in contempt of court and to assess costs against both.

       In response to an application for a writ of quo warranto, the trial court, Holzberg, J., had previously ruled that 294 Farmington Realty Company owns the plaintiff and that the underlying action was withdrawn as of July 29, 1991 by duly authorized counsel. Because the issue is not before us, we do not consider the appropriateness of the filing of the application for a writ of quo warranto. Also, because we decide that the court did not have jurisdiction to vacate the sanctions order, we need not decide the effect of the trial court’s finding that the underlying action was withdrawn on a date prior to the filing of the motion for contempt.

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

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

       We note that in vacating Judge Susco’s sanctions order, Judge Holzberg relied on Fattibene v. Kealey, supra, 18 Conn. App. 344, in which we held that the trial court improperly granted the defendant’s motion for sanctions without affording the plaintiff a proper hearing. .Whether Judge Holz-berg properly concluded that Judge Susco failed to afford the plaintiff and Timbers an opportunity to be heard is not the issue before us. The issue is whether Judge Holzberg had jurisdiction to apply the Fattibene rule. In the absence of compliance with General Statutes § 52-212a and Practice Book § 326, Judge Holzberg was without jurisdiction to vacate the order of Judge Susco.


author: Schaller, J.

text:
    State of Connecticut v. Samphanh Phommachanh
    (13601)
    Schaller, Spear and Hennessy, Js.
    Argued June 5
    decision released August 15, 1995

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Joseph Harry, assistant state’s attorney, for the appellant (state).
   Schaller, J.

The state appeals from the judgment rendered by the trial court granting the defendant’s motion to dismiss following the suppression of evidence obtained in the course of a Terry stop. The state claims that the trial court improperly granted the defendant’s motion to suppress. We reverse the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. On October 18,1993, at approximately 2:30 p.m., Officer Ernest Garcia, Jr., and Officer Juan Gonzalez of the Bridgeport police department pulled over a vehicle that had passed them in a no passing zone. Garcia approached the driver, Soutsaychay Sang-philon, and asked for identification, which Sangphilon produced.

When Gonzalez approached the passenger side of the vehicle he saw a bullet hole in the vehicle. Gonzalez asked the defendant, seated in the front passenger seat, for identification. The defendant appeared to be holding something close to his body with his right arm. The defendant, in response to the request for identification, reached with his left hand to retrieve identification from his right rear pocket. Gonzalez reached into the vehicle, patted the defendant’s coat in the area where the defendant appeared to be concealing something and felt a hard object. Gonzalez ordered the defendant out of the car, patted down the defendant again, and removed a .45 caliber firearm from the defendant’s waistband.

The defendant was arrested and charged with carrying a pistol without a permit in violation of General Statutes § 29-35 (a) and stealing a firearm in violation of General Statutes § 53a-212. The defendant pleaded not guilty to the charges and filed a motion to suppress the gun as evidence. The trial court granted the motion to suppress, and then granted the defendant's motion to dismiss.

The state argues that the trial court improperly applied State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992), in ruling on the motion to suppress. The state contends, in particular, that the trial court improperly suppressed the gun because it failed to address whether Gonzalez had a reasonable articulable suspicion that the defendant was armed and dangerous. The record reveals that, after finding that the motor vehicle stop was reasonable, the trial court found that the search of the defendant was not justified because there was no reasonable articulable suspicion that a crime had been committed or was about to be committed.

In Oquendo, our Supreme Court held that under article first, §§ 7 and 9, of the Connecticut constitution a seizure occurs when “a reasonable person would have believed that he was not free to leave." (Internal quotation marks omitted.) Id., 647. Moreover, “[i]n determining whether the detention was justified in a given case, a court must consider if [bjased upon the whole picture the detaining officers [had] a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Internal quotation marks omitted.) Id., 654. The trial court properly applied Oquendo in determining the validity of the motor vehicle stop of the defendant. Garcia and Gonzalez were clearly justified in stopping the defendant and Sang-philon when the car they were in passed the officers in a no passing zone. See State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988).

The trial court farther concluded, however, that after Sangphilon produced proper identification there was no reason to suspect that the defendant and Sangphilon were involved in any type of criminal enterprise. On the basis of that reasoning, the trial court suppressed as evidence the gun found in the defendant’s waistband. The trial court, however, did not apply the appropriate standard for determining the legitimacy of the patdown search. “ ‘[W]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.’ ” State v. Trine, 37 Conn. App. 561, 569, 657 A.2d 675 (1995), quoting State v. Williams, 157 Conn. 114, 118, 249 A.2d 245, cert. denied, 395 U.S. 927, 89 S. Ct. 1783, 23 L. Ed. 2d 244 (1968).

We conclude that the trial court improperly applied the Oquendo standard in determining whether the weapons search was justified. The trial court, instead, should have determined whether Gonzalez was justified in searching the defendant in order to ascertain whether the defendant was carrying a weapon. State v. Williams, supra, 157 Conn. 118.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

        Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1986).

       The trial court stated that “at that point the officers should have just gone on with their business.”


author: Spear, J.

text:
    Nancy Wannagot v. City of Shelton
    (13733)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued April 24
    decision released August 15, 1995

      William J. Curran, for the appellant (plaintiff).

      James T. Baldwin, for the appellee (defendant).
   Spear, J.

The plaintiff, Nancy Wannagot, is the dependent widow of a volunteer firefighter who died in the line of duty. She appeals from the decision of the workers’ compensation commission review board (review board) affirming an order of the workers’ compensation commissioner (commissioner). The order reduced the plaintiff’s award of benefits and ordered her to reimburse the city for the overpayment. The dis-positive issue on appeal is whether the review board properly calculated the plaintiffs compensation benefits pursuant to General Statutes (Rev. to 1991) § 31-306. We affirm the review board’s decision.

The pertinent facts are as follows. On March 15,1991, Daniel Wannagot (decedent) suffered a fatal heart attack while performing his duties as a volunteer firefighter for the defendant city of Shelton (city). Pursuant to a voluntary agreement, benefits of $719 per week were initially paid to the plaintiff. The sum represented the maximum weekly compensation rate of 150 percent of the average production wage for the fiscal year July, 1989, through June, 1990, totaling $719 per week. After formal proceedings, the commissioner issued a finding and award that the plaintiff was entitled to $319.33 per week, a sum representing 66% percent of the average weekly production wage for the July, 1989, through June, 1990 fiscal year. The commissioner also found that the defendant was entitled to recover the overpayment. The plaintiff appealed that decision to the review board. The review board affirmed the commissioner’s decision and this appeal ensued.

Before we reach the merits of the appeal, we must first address the jurisdictional question of whether this appeal is properly before us as a final judgment. “It is axiomatic that appellate review of disputed claims of law and fact ordinarily must await the rendering of a final judgment by the compensation review division . . . .” (Citations omitted.) Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990). Because the commissioner’s finding and award provided for “a hearing, at the request of any party, to decide how the reimbursement for the overpayment shall be made,” we must first resolve whether the decision is in fact a final judgment.

“The test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such farther proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” Id. The remand specified that at future proceedings the commissioner would be limited to determining the plaintiff’s repayment schedule to the city for the overpayment that she received. The scope of these proceedings, therefore, would be ministerial because the taking of new evidence would not be necessary. The commissioner would not be able to modify the underlying decision that the plaintiff had been overpaid.

In Kaufman v. Zoning Commission, 232 Conn. 122, 653 A.2d 798 (1995), our Supreme Court held that a decision was a final judgment for appeal purposes, notwithstanding a remand order to impose “reasonable conditions and changes” to the affordable housing application. In reasoning that there was a final judgment, the Supreme Court stated: “We attach significance to the fact that the trial court’s judgment did not order further evidentiary determinations on remand. Although the trial court’s remand may have allowed the commission to hear additional evidence in order to determine whether to impose reasonable conditions on or to make reasonable changes in the application, the remand in no way required the commission to conduct such an inquiry.

“Even more important, the trial court’s judgment required the commission to approve the plaintiff s application. With respect to this central issue, the trial court’s decision so concludes the rights of the parties that further procéedings cannot affect them. . . . After explicitly resolving all [of] the issues in favor of the plaintiff . . . the trial court remanded the case only for the limited purpose of allowing the commission to impose reasonable conditions on or make reasonable changes to the development, if it so chose. Because the proceedings on remand cannot deprive the plaintiff of the zone change that the trial court has ordered to be approved, the trial court has rendered a final judgment and this court has subject matter jurisdiction over the commission’s appeal.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 130-31.

This case is similar to Kaufman as the remand was for the discrete purpose of determining the repayment schedule. As such, the proceedings cannot affect the underlying decision that the plaintiff was overpaid and the city is entitled to reimbursement for the overpayment. The remand does not vest the commissioner with the discretion to reduce the amount to which the city is entitled. Because on remand the commissioner cannot deprive the city of its right to reimbursement, but merely can create a repayment schedule, the commissioner’s decision is a final judgment. We, therefore, conclude that this court has subject matter jurisdiction.

The parties, at the court’s request, also addressed the issue of whether the city was precluded from reducing the plaintiffs weekly benefit because the payments were made pursuant to a voluntary agreement. General Statutes § 31-296 provides that if the statutory requirements are met, a voluntary agreement is binding on the parties and reductions can be made only in limited circumstances. Section 31-296 requires that “[a] copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner.” (Emphasis added.) Although the commissioner approved the agreement, it was never delivered to the parties as required by the statute. The consequence of this failure to meet all of the requirements set forth in § 31-296 is that the voluntary agreement is not binding on the parties. The city has the right, therefore, to seek a reduction in the plaintiff’s weekly benefits.

Having resolved these procedural issues, we now turn to the gravamen of the plaintiffs appeal and determine whether the commissioner improperly reduced her weekly benefits. The plaintiff argues that she is entitled to $737 a week, which is the maximum weekly benefit pursuant to § 31-309 for the fiscal year from July, 1990, through June, 1991. We conclude that the commissioner properly determined that the plaintiff is entitled to $319.33, representing 66% percent of the average weekly production wage for the fiscal year of June, 1989, through June, 1990, pursuant to § 31-306 and that the city was entitled to reimbursement for the overpayment.

The plaintiff relies solely on Going v. Cromwell Fire District, 159 Conn. 53, 267 A.2d 428 (1970), for the proposition that she is entitled to 150 percent of the average weekly production wage pursuant to § 31-309, rather than 66% percent of the average weekly production wage pursuant to § 7-314a (b). Her reliance is misplaced because Going does not apply in this situation. In Going, a volunteer firefighter, who held a full-time job at Western Electric Company, was injured while performing duties as a volunteer firefighter. The issues involved were (1) the proper rate of compensation where the claimant held more than one “job” and (2) who was liable for the payment of such compensation. The provisions of § 31-306, which provide for benefits equalling 66% percent of the average weekly production wage to dependents of a deceased worker, did not come into play as the plaintiff in Going did not die as a result of his injuries. At the time of the plaintiffs injury in Going, § 7-314a (b) provided that a volunteer firefighter’s wages for compensation purposes was the average weekly production wage and § 31-309 provided that the maximum compensation rate was 100 percent of that wage. The plaintiff relies on the following language in Going: “[T]he wage rate shall be taken as that producing the maximum benefit rate as provided under § 31-309. General Statutes § 7-314a(b).” Id., 59. This language simply reflects the happenstance that, the two rates were the same at that time. Going does not support the proposition that a dependent of a deceased worker is entitled to 150 percent of the average weekly production wage pursuant to the current version of § 31-309 instead of the two-thirds benefit mandated by § 31-306.

The language of the relevant statutes is clear and unambiguous. As a dependent of the decedent, the plaintiff is entitled to benefits pursuant to § 31-306. The benefits include “a weekly compensation equal to sixty-six and two-thirds per cent of the average weekly earnings of the deceased . . . but in no case more than the maximum weekly benefit rate set forth in section 31-309 . . . .” General Statutes § 31-306. It is clear from the statutory language that the claimant is entitled to 66% percent of her husband’s weekly earnings up to the maximum weekly benefit set out in § 31-309. Because the decedent died while performing his duties as a volunteer firefighter, his weekly earnings for workers’ compensation purposes is governed by § 7-314a (b). That section provides that “the average weekly wage of a volunteer fireman shall be construed to be the average production wage . . . under the provisions of section 31-309.”

In interpreting the relevant statutes, we rely on the well established canon of statutory construction that “when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. . . .” (Citations omitted; internal quotation marks omitted.) Frillici v. Westport, 231 Conn. 418, 430, 650 A.2d 557 (1994). Furthermore, we recognize that “[i]f there is no ambiguity in the language of the statute, it does not become ambiguous merely because the parties contend for different meanings.” Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981).

Because the average weekly production wage under § 31-309 at the time of the decedent’s death was $479, the commissioner properly determined that the plaintiff’s weekly benefits were 66% percent of $479, equall-ing $319.33. Section 31-306 provides that a dependent’s weekly benefits in no case shall exceed the maximum weekly benefit rate established in § 31-309. The 150 percent provision set forth in § 31-309 is intended to be a ceiling on the maximum benefits that a person may receive. For example, if a worker earning $1500 a week died on March 15, 1991, due to a work related injury, the worker’s dependents would not be entitled to $1000 representing two-thirds of $1500. Rather, the dependents would be limited to the maximum benefit of 150 percent of the average production wage, which is $719. When we read §§ 31-306, 31-309 and 7-314a (b) together, we are compelled to conclude that the plaintiff, as the dependent of a volunteer firefighter who died in the line of duty, is entitled to only 66% percent of the average weekly production wage, as the review board properly determined.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 31-306 provides in pertinent part: “(b) Compensation shall be paid on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows ... (2) To those wholly dependent upon the deceased employee at the time of his injury, a weekly compensation equal to sixty-six and two-thirds per cent of the average weekly earnings of the deceased at the time of the injury but in no case more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred or less than twenty dollars weekly. . . .”

       This issue was not briefed by the parties. Pursuant to the court’s prior written request, they addressed it at oral argument.

       Although Kaufman is not a workers’ compensation case, we find its reasoning applicable because the test to determine whether the decision was a final judgment similarly focused on the scope of the remand order.

       General Statutes § 31-296 provides in pertinent part: “voluntary agreements. If an employer and an injured employee, or in case of fatal injury his legal representative or dependent, at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner.

       General Statutes (Rev. to 1991) § 31-309 provides in pertinent part: “[T]he weekly compensation received by an injured employee under the provisions of this chapter shall in no case be more than one hundred fifty per cent, raised to the next even dollar, of the average weekly earnings of production and related workers . . . .”

       See footnote 1.

       General Statutes § 7-314a (b) provides in pertinent part that “the average weekly wage of a volunteer fireman shall be construed to be the average production wage in the state as determined by the labor commissioner under the provisions of section 31-309.”

       The plaintiff argues that she is entitled to the average production wage for the July, 1990, through June, 1991 fiscal year. This argument is defeated by the plain language of the statute. General Statutes (Rev. to 1991) § 31-309 specifically provided that the applicable fiscal year “shall be determined by the labor commissioner on or before the fifteenth day of August of each year, to be effective the following October first, and shall be the average of the manufacturing production and related workers’ weekly earnings for the year ending the previous June thirtieth . . . .” Therefore, the applicable fiscal year for the March, 1991 death is the fiscal year that ended the previous June, in this case June, 1990. The commissioner correctly determined that the decedent’s wages were the average production wages for the July, 1989, through June, 1990 fiscal year, or $479.