author: Stoughton, J.

text:
    Leslie Carothers, Commissioner of Environmental Protection v. Connecticut Building Wrecking Company, Inc., et al. Stanley J. Pac, Commissioner of Environmental Protection v. Connecticut Building Wrecking Company, Inc.
    (7448)
    (7458)
    Spallone, Stoughton and Norcott, Js.

      Argued May 18 —
    decision released July 25, 1989

      Gary A. Mastronardi, for the appellant in each case (named defendant).

      Robert B. Teitelman, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Robert E. Walsh, assistant attorney general, for the appellee in each case (plaintiff in each case).
   Stoughton, J.

In these consolidated appeals, the named defendant appealed from a judgment in each case dismissing its counterclaims. At oral argument, the named defendant conceded that its counterclaim in appeal No. 7448 was properly dismissed. Accordingly, we find no error in that appeal and address appeal No. 7458.

The plaintiff commissioner of the department of environmental protection initiated the action in the second case by service of a complaint on the defendant on November 3, 1986. The plaintiff alleged that the defendant was operating a solid waste transfer-resource recovery facility in Bridgeport without a permit in violation of General Statutes (Rev. to 1985) § 22a-208, a portion of the Solid Waste Management Act. He also alleged that the defendant was discharging waste substance or other material to the waters of the state without a permit in violation of General Statutes (Rev. to 1985) § 22a-430, a portion of the Water Pollution Control Act. The complaint alleged that the plaintiff had issued an order requiring that the defendant bring itself into compliance with the provisions of the law, that the defendant had not appealed and that the order had become a final order not subject to review. The complaint alleged further that an inspection showed that the defendant had not complied with the order and that it was maintaining a condition reasonably expected to pollute, impair or destroy the air, water or natural resources of the state. The plaintiff sought injunctive relief and monetary penalties under certain provisions of the General Statutes.

The defendant filed an answer, various special defenses and a counterclaim in two counts. The first count alleges that General Statutes § 22a-220 (a) imposed upon all municipalities of the state a duty to make provisions for the safe and sanitary disposal of solid waste, that the commissioner knew that a number of municipalities including Bridgeport had not complied with the statute, that he had done nothing to compel compliance and that as a result of the indifference of the commissioner the defendant has sustained damages to its business and reputation. The second count alleges that, by reason of the enforcement action, the commissioner has engaged in irrational and abusive conduct that deprived the defendant of liberty and property rights in violation of the fourteenth amendment to the United States constitution and of 42 U.S.C. § 1983, and that as a result it has sustained damages in excess of $15,000.

The commissioner moved to dismiss the counterclaims on the grounds (1) that they did not arise out of the same cause of action as the plaintiff’s claims, and (2) that the court lacked subject matter jurisdiction to entertain either count under the doctrine of sovereign immunity. The trial court granted the plaintiff’s motion on the grounds that the first count did not arise out of the enforcement order and that the second count was not so connected with the matter in controversy that its consideration was necessary for a full determination of the rights of the parties as to the matter in controversy.

In any action for legal or equitable relief, the defendant may file counterclaims against the plaintiff provided that each counterclaim arises out of the transaction that is the subject of the plaintiff’s complaint. Practice Book § 116. A counterclaim is a cause of action existing in favor of a defendant against a plaintiff that a defendant pleads to diminish, defeat or otherwise affect a plaintiff’s claim. It allows a recovery by the defendant. Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985). The rule permits joinder of closely related claims arising out of the same transaction where such joinder is in the best interests of judicial economy. Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983). The transaction test is a practical one, and the trial court’s determination as to whether that test has been met ought not to be disturbed except for an abuse of discretion. Id.

Under the provisions of General Statutes § 22a-6, as it existed at the time of the commencement of this action and as it exists today, the plaintiff may institute legal proceedings including, but not limited to, suits for injunctions for the enforcement of any order issued by him. General Statutes § 22a-226 provided then and now for a penalty not to exceed $10,000 per day for violation of a final order of the commissioner and for injunctive relief to prevent any further violation of the order. General Statutes § 22a-438, both then and now, provided for forfeiture to the state of a sum not to exceed $10,000 for each violation of the Water Pollution Control Act, the amount to be fixed by the court, and provides that the attorney general institute a civil action to recover such forfeiture upon complaint of the commissioner.

This action was brought by the plaintiff to enforce an order issued by him and to recover a claimed forfeiture. The defendant admits that there was no appeal from the order. The defendant’s claim that it has sustained damages to its business and reputation because of some perceived failure on the part of the plaintiff to see that the city of Bridgeport made provision for safe and sanitary disposal of solid waste, does not arise out of the plaintiff’s action to enforce its order to the defendant.

In the second count, the counterclaim repeats all the allegations of the first count and alleges that the enforcement action is irrational and abusive and has caused the defendant to sustain damages. At first, this might seem to approach more nearly the requirement that it arise out of the same transaction as the complaint. It is at bottom, however, a claim for damages. It would not operate to defeat, diminish or affect the plaintiff’s claims, which are claims for injunctive relief and for penalties. The defendant apparently did not seek a hearing after the plaintiff’s order was issued, which it would have been entitled to do under General Statutes § 22a-225 (b). The injunction is mandatory when the defendant has chosen not to attack the reasonableness of the order in a case such as this where factfinding has been entrusted by the legislature to the administrative agency and an injunction is sought to enforce an administration order in furtherance of a vital public interest. See Water Resources Commission v. Connecticut Sand & Stone Corporation, 170 Conn. 27, 364 A.2d 208 (1975). For the purposes of the commissioner’s suit for an injunction and penalties payable to the state, the court and the commissioner are coordinate actors in the achievement of the purposes of the Solid Waste Management Act. See Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 45, 526 A.2d 1329 (1987). Those purposes require an expedited hearing pursuant to General Statutes § 22a-226 and the absolute right to an injunction if the plaintiff proves that the defendant has failed to comply with his order. See Connecticut Water Co. v. Beausoleil, supra. Resolution of the defendant’s claims for damages would be likely to hamper the speedy resolution that we deem the legislature to have intended where it is alleged that conditions may reasonably be expected unreasonably to pollute air, water or natural resources. See id., 48.

We cannot say that the trial court abused its discretion in dismissing the counterclaim.

There is no error on either appeal.

In this opinion the other judges concurred.

       In No. 7448, Carothers v. Connecticut Building Wrecking Co., the plaintiff filed a motion to dismiss the defendants’ counterclaim because it did not arise out of the same cause of action as the plaintiffs claims and because of the lack of subject matter jurisdiction. The motion was granted, both because the defendants had failed to file a memorandum of law in opposition as required by Practice Book § 143, and on the merits. The named defendant has conceded that the defendant did not file a memorandum of law in opposition to the motion to dismiss and that, accordingly, the counterclaim was properly dismissed. See Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986); Burton v. Planning Commission, 13 Conn. App. 400, 536 A.2d 995 (1988), aff’d, 209 Conn. 609, 553 A.2d 161 (1989).

       General Statutes (Rev. to 1985) § 22a-208 provides in pertinent part: “(c) No solid waste facility shall be built, established or altered after July 1, 1971, until the plan and design and method of operation of the same have been filed with the department and approved by the commissioner by the issuance of a permit, provided, nothing in this chapter or in chapter 446e shall be construed to limit the right of any local governing body to regulate, through zoning, land usage for solid waste disposal. No solid waste facility shall be operated on or after October 1, 1984, unless the owner or operator of such facility has filed a closure plan with the commissioner which he has approved as in compliance with regulatory standards adopted pursuant to section 22a-209. The commissioner shall send a written notification of any application for a permit to the chief elected official of each municipality in which the proposed facility is to be located within five business days of the date on which any such application is filed.”

       General Statutes (Rev. to 1985) § 22a-430 provides in pertinent part: “(a) No person shall, after May 1, 1967, and no municipality shall, after April 10, 1973, initiate, create or originate any new discharge of water, substance or material into the waters of the state without first obtaining a permit for such discharge from the commissioner. Application for such permit shall be on a form prescribed by the commissioner and shall include such information as the commissioner may therein require.”

       General Statutes § 22a-225 (b) provides: “Unless a person aggrieved by an order files a written request for a hearing before the commissioner within thirty days after the date of issuance, such order shall become effective. If requested, the commissioner shall hold a hearing as soon thereafter as practicable. A request for a hearing shall be a condition precedent to any appeal. The commissioner may, after the hearing or at any time after the issuance of his order, modify such order by agreement or extend the time schedule therefor if he deems such modification or extension advisable or necessary, and any such modification or extension shall be deemed to be a revision of an existing order and shall not constitute a new order. There shall be no hearing subsequent to or any appeal from any such modification or extension.”


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    Josephine Rametta v. Conrad A. Stella et al.
    (7275)
    Borden, Stoughton and Norcott, Js.
    Argued April 18 —
    decision released July 25, 1989

      Robert M. Shields, Jr., with whom were Jeffrey A. Hoberman, and, on the brief, Wesley W. Horton, for the appellants (defendants).

      Michael P. Barry, for the appellee (plaintiff).
   Norcott, J.

The defendants, Conrad A. Stella (Stella) and Stella Insurance Agency (agency), appeal from the judgment of the trial court awarding the plaintiff $60,300 in damages for the defendants’ failure to procure an insurance policy on the plaintiff’s property. The defendants do not contest the issue of liability, but rather appeal only the award of damages. They claim that the trial court’s judgment is erroneous because the plaintiff suffered no damages as a result of the defendants’ negligence or as a result of the defendant agency’s breach of contract.

The trial court made the following findings of fact. The plaintiff and her family had utilized Stella as their insurance agent for many years. The plaintiff had obtained insurance coverage for the subject property through Stella since at least 1980. The plaintiff consulted Stella about the amount of insurance coverage to obtain, and she always followed his recommendation.

Stella would obtain the policy for the plaintiff, and the plaintiff would pay all premiums for the coverage directly to the agency. The plaintiff’s payment to the agency was usually made after Stella and the agency had already advanced the amount due to the insurance company and obtained the policy for her. This same procedure was followed with the last insurance policy obtained for the plaintiff by the agency in 1985 from the Terra Nova Company. The policy was issued on May 6,1985, after the agency advanced the premium, and Stella went to the plaintiff’s home in Old Lyme in July to collect the amount due.

On March 29, 1986, Stella and the agency received a copy of a notice from the Terra Nova Company stating that the plaintiff’s policy would expire on May 6, 1986, and would not be renewed. The plaintiff and Stella discussed this notice during a meeting in March or April, 1986. On May 2, 1986, the plaintiff went to the agency and met with the office manager, Maria Stella. During this meeting, the plaintiff related that she had a buyer, Frank Pascale, for the property, and that she wanted to make sure that there was coverage on the property until the closing date. The plaintiff paid $300 as a deposit for the insurance and said she would pay the balance when the exact amount due was known. Maria Stella said she would “obtain coverage if at all possible.”

After this meeting, the defendants attempted to place $60,000 coverage on the property with various companies but were unable to do so. As a “last resort,” they filed an application, dated May 19,1986, with the Connecticut Insurance Placement Facility (Fair Plan). Fair Plan requested the plaintiffs social security number and mailing address from the defendants, but the information was never provided. Even without this additional information, however, Fair Plan approved the application for insurance.

On June 12, 1986, the agency received notice from Fair Plan that it had approved the plaintiff’s policy and that full payment of the premium was due in order to render the policy effective. The agency sent no money to Fair Plan as it had with the plaintiff’s past policies, but did not inform the plaintiff that it would not advance the premium payment. Because the premium had not been paid, no insurance was ever issued. The agency applied the $300 deposit to unrelated charges owed by the plaintiff without informing her of this use of her funds. On July 4,1986, the building on the plaintiff’s uninsured property was destroyed by fire. During the period from May 2, 1986, prior to the termination of the Terra Nova policy, to the date of the fire, Stella had not communicated with the plaintiff.

After the fire, the plaintiff refused to sell the subject property to Pascale, and Pascale brought suit against her for specific performance of their sales contract. In October, 1986, the plaintiff reached an agreement with Pascale whereby he would withdraw his suit, and the plaintiff would sell him the property for the originally agreed upon sale price of $190,000. As a further condition of this agreement, the plaintiff agreed to institute an action against the defendants for failing to procure insurance on the subject property and to divide the net proceeds of any recovery with Pascale. The defendants claim that the plaintiffs damages were reduced to a nominal figure by this subsequent agreement with Pascale.

The defendants appeal from the trial court’s award of $60,300 in damages. That figure represents the $60,000 that the plaintiff would have received had the policy been in effect at the time of the fire and reimbursement for the $300 deposit the plaintiff had given to the agency to be applied toward the purchase of an insurance policy.

An action against an insurance agent may be brought under either a theory of breach of contract or negligence. Ursini v. Goldman, 118 Conn. 554, 558-60, 173 A. 789 (1934). Here, the plaintiff’s action is based upon both theories. The trial court found that $60,000 in damages was attributable to the defendants’ negligence, and $60,300 in damages was attributable to the defendant agency’s breach of contract. On the basis of these findings, the trial court awarded a total of $60,300 in damages against the defendants. The court awarded damages against both defendants jointly and severally in the amount of $60,000 based upon the negligence claim and against the defendant agency in the amount of $300 on the contract claim. The defendants contest only that portion of the trial court’s award that grants the plaintiff $60,000, the amount that the plaintiff would have received had the policy been in effect at the time of the fire. The defendants concede that the plaintiff is entitled to a refund of the $300 deposit that she left with the defendant agency to be applied toward the purchase of insurance.

The defendants claim that the plaintiff suffered no damages because she obtained the same sales price for her property after the fire as she would have obtained from the sale of her property before the fire. They argue, further, that under the original sales agreement, the plaintiff would have received no benefit from the policy, but would have turned over the proceeds to the buyer.

The plaintiff counters that the award of damages was appropriate under either the negligence or the breach of contract theory of liability. She argues that (1) the subsequent sale agreement cannot be used to mitigate the damage liability of the defendants for their negligence because of the application of the collateral source rule, and (2) the measure of damages for breach of contract is the loss sustained at the time of the breach.

When the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision. Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988). Because the defendants are not challenging the facts or contesting liability, the issue for our determination is whether the trial court applied the appropriate measure of damages.

The defendants claim that because the plaintiff suffered no damages as a result of the defendants’ negligence due to the subsequent sale of her property, granting recovery constituted a windfall to the plaintiff. The defendants counter the plaintiff’s assertion of the collateral source rule by arguing that it is inapplicable to the present case.

Under the collateral source rule, “a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where the payment comes from a collateral source, wholly independent of him.” Lashin v. Corcoran, 146 Conn. 512, 515, 152 A.2d 639 (1959); see also Todd v. Malafronte, 3 Conn. App. 16, 23, 484 A.2d 463 (1984). “The basis of our well-established collateral source rule is that a wrongdoer shall not benefit from a windfall from an outside source. That rule is applicable . . . in any tort case.” United Aircraft Corporation v. International Assn. of Machinists, 161 Conn. 79, 101-102, 285 A.2d 330 (1971), cert. denied, 404 U.S. 1016, 92 S. Ct. 675, 30 L. Ed. 2d 663 (1972).

In the present case, the trial court determined that the defendants’ negligence resulted in an immediate loss to the plaintiff of $60,000, the value of the policy that should have been in effect at the time of the fire. In a case such as this, the plaintiff’s damage is the amount that would have been recovered under the policy. Ursini v. Goldman, supra, 563. The subsequent agreement between the plaintiff and Pascale for sale of the property at the original sales price is completely independent from and collateral to the defendants’ acts of negligence and resulting damage liability.

This court has applied the collateral source rule in a negligence action against an insurer who failed to procure insurance. In Todd v. Malafronte, supra, the insurer had incorrectly informed the insured that she did not need workers’ compensation coverage for her employees. She sued the insurer, after she settled a workers’ compensation claim instituted against her by a part-time employee, claiming that the insurer was negligent in his misrepresentations to her. The defendant challenged the exclusion of testimony that the plaintiff had received payment for her loss from another source. This court held that the collateral source rule was operable and that “benefits received by a plaintiff from a source wholly collateral to and independent of the tortfeasor will not diminish the damages otherwise recoverable.” Id.

“Generally, there is no prohibition as to a plaintiff’s recovery from another, perhaps parallel but separate source even where he has no net loss from an injury .... It is clear, however, that the origination of such payments must be from a source unconnected with the wrongdoer.” Ekblade v. Anderson, 28 Conn. Sup. 177, 179, 255 A.2d 865 (1969), citing Hudson v. Lazarus, 217 F.2d 344, 346, 95 App. D.C. 16 (1954); see also Lashin v. Corcoran, supra; Todd v. Malafronte, supra. In this case, the defendants were not connected to the transaction between the plaintiff and Pascale, and they cannot reap the benefits of the plaintiff’s successful renegotiation for the sale of the property.

The defendants’ argument that the plaintiff sustained a windfall from her recovery of the $60,000 value of the insurance policy is unpersuasive given the rationale of the collateral source rule. “The reason for the rule ... is that a ‘windfall’ ought not to be granted to a defendant. ... ‘If there must be a windfall certainly it is more just that the injured person shall profit therefrom, rather than the wrongdoer shall be relieved of his responsibility for his wrongdoing.’ ” Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 580, 271 A.2d 94 (1970), quoting Grayson v. Williams, 256 F.2d 61, 65 (10th Cir. 1958); see also Ekblade v. Anderson, supra. In this case, the trial court determined that the plaintiff suffered a $60,000 loss as a result of the defendants’ negligence. Any windfall resulting to the plaintiff was unrelated to the defendants and cannot be used to mitigate their damage liability.

The trial court held both defendants jointly and severally liable on the negligence claim, and the defendant agency liable on the breach of contract claim. Because the defendants concede that the plaintiff is entitled to the return of her deposit, the only additional damages awarded against the agency for its breach of contract, we need not address that portion of the award. Our decision on the first issue, therefore, is dispositive.

There is no error.

In this opinion the other judges concurred.

       The plaintiff had contracted to sell the property to Frank Pascale for $190,000 on or before July 31, 1986.

       The plaintiff was given a receipt stating “Dep. for pol. to be ordered for 319 Rocky Hill Ave. Fire Ins.”

       The defendants also contend that the plaintiff suffered no damages as a result of the breach of contract by the defendant agency on the basis of the same argument as that made for the negligence claim. We' note that this argument is without merit. Our Supreme Court has held that in claims for damages resulting from breach of contract, damages must be measured as of the date of the breach. Vines v. Orchard Hills, Inc., 181 Conn. 501, 513, 435 A.2d 1022 (1980); Levesque v. D & M Builders, Inc., 170 Conn. 177, 183, 365 A.2d 1216 (1976); Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984). “The fact that the value of the property may have increased in the interim between the breach and the time of trial is of no relevance.” Levesque v. D & M Builders, Inc., supra.


author: Dupont, C. J.

text:
    In re Grand Jury Investigation by Judge Hugh C. Curran
    (6944)
    Dupont, C. J., Borden and Norcott, Js.
    Argued May 9 —
    decision released August 1, 1989

      Ralph G. Elliot, for the appellant (petitioner).
   Dupont, C. J.

The sole issue in this case is whether, under General Statutes (Rev. to 1987) § 54-47g (a), as amended by Public Acts 1987, No. 87-350, § 5, a petitioner is entitled to a hearing to determine whether the disclosure of the findings and record of a grand jury investigation is in the public interest. The petitioner, a managing editor of The Hartford Courant, filed an application seeking disclosure of the report, findings and record of the investigatory grand jury, Curran, J., appointed to investigate the circumstances of the recusal of a Superior Court judge in a matter involving a state police informant and his attorney. The petitioner’s application was filed with a panel of three judges responsible, pursuant to General Statutes § 54-47g (a), for determining whether the disclosure of a grand jury investigation’s findings and record is in the public interest. The petitioner expressly requested a hearing on his application in order to meet any burden necessary to justify an order of disclosure. The petitioner’s request for disclosure was denied by the panel without a hearing and without a memorandum of decision indicating the basis of the denial.

The petitioner has appealed, claiming that pursuant to General Statutes (Rev. to 1987) § 54-47g (a), as amended by Public Acts 1987, No. 87-350, § 5, and the due process clauses of the constitutions of the United States and Connecticut, he is entitled to a hearing on his request for disclosure and that the panel erred in denying his application without such a hearing. Because we conclude that the statute required a hearing on the petitioner’s request for disclosure, it is unnecessary to consider the constitutional bases of the petitioner’s claim.

General Statutes § 54-47g (a), as amended by Public Acts 1987, No. 87-350, § 5, provided in pertinent part: “Except as otherwise provided in this section, the finding and record of the [grand jury] investigation shall be sealed, provided the panel, by a majority vote, may disclose such finding and record when such disclosure is deemed by the panel to be in the public interest.”

Thus, pursuant to the statute, the finding and record of a grand jury investigation are to be sealed and unavailable to the public unless disclosure is deemed by the panel to be in the public interest. The petitioner argues that under General Statutes (Rev. to 1987) § 54-47g (a), as amended by Public Acts 1987, No. 87-350, § 5, a petitioner bears the burden of showing that disclosure is in the public interest and that, accordingly, the statute requires a hearing so that a petitioner has the opportunity to meet that burden. We agree.

“ ‘It is an elementary rule that whenever the existence of any fact is necessary in order that a party may make out his case or establish his defense, the burden is on such a party to show the existence of such fact.’ Citizens Assn. v. Bridgeport, 84 Conn. 383, 387, 80 A. 203.” Nikitiuk v. Pishtey, 153 Conn. 545, 552, 219 A.2d 225 (1966). The burden of proof generally is with the party who initiates the action or proceeding. Id., 553.

In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 711-12, 501 A.2d 377 (1985), held that the burden of making the showing required for the disclosure of the record and findings of a grand jury investigation rests upon the private party seeking disclosure. “To require the applicant seeking disclosure to bear the burden of articulating and substantiating a basis for the desired access to grand jury transcripts is consistent with the general rule allocating the burden of persuasion to the moving party.” Id., 712.

In order for a petitioner to make the required showing to justify the disclosure of the finding and record of a grand jury investigation, a hearing is necessary. A petitioner cannot meet the burden of showing that disclosure is in the public interest without a forum in which to do so.

Our conclusion that the statute requires a hearing on a petitioner’s request for disclosure is further supported by the text of the statute itself. The statute expressly provides that a state’s attorney is entitled to access to grand jury investigation records upon request made to the clerk of the court and without a hearing. The fact that the statute expressly exempts a state’s attorney from the necessity of a hearing indicates that the statute contemplates such a hearing to be held in all other instances in which disclosure is sought.

Because the petitioner’s request for disclosure was denied without the hearing to which we have concluded he was entitled under General Statutes (Rev. to 1987) § 54-47g (a), as amended by Public Acts 1987, No. 87-350, § 5, it is necessary to remand the case for such a hearing.

There is error, the order of the panel is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1987) § 54-47g (a), as amended by Public Acts 1987, No. 87-350, § 5, provided: “Within sixty days of the conclusion of the investigation, the investigatory grand jury conducting such investigation shall file its finding with the court of the judicial district designated by the chief court administrator pursuant to subsection (a) of section 54-47d, and shall file a copy of its finding with the panel and with the chief state’s attorney or a state’s attorney if such chief state’s attorney or state’s attorney made application for the investigation. The stenographer shall file any record of the investigation with the court of the judicial district designated by the chief court administrator pursuant to subsection (a) of section 54-47d and the panel and the chief state’s attorney or a state’s attorney, if such chief state’s attorney or state’s attorney made application for the investigation shall have access to such record upon request made to the clerk of the court without a hearing. Such finding shall state whether or not there is probable cause to believe that a crime or crimes have been committed. Except as otherwise provided in this section, the finding and record of the investigation shall be sealed, provided the panel, by a majority vote, may disclose such finding and record when such disclosure is deemed by the panel to be in the public interest.”

       General Statutes § 54-47g (a) has been further amended by Public Acts 1988, No. 88-345, § 1, expressly to require a hearing on a petitioner’s request for the disclosure of the record of a grand jury investigation. The amendment applies only to grand jury findings filed on or after the effective date of the act, June 7, 1988, and therefore does not apply to this case.

        In re Fined Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 501 A.2d 377 (1985), was decided under a predecessor to the statute at issue in the present case, General Statutes (Rev. to 1985) § 54-47 (g), which provided in pertinent part: “At the conclusion of such inquiry the judge, referee or judges conducting the inquiry shall file with the court a report and the court shall direct whether, and to what extent, the report shall be made available to the public or interested parties.” Public Acts 1985, No. 85-611, and Public Acts 1987, No. 87-350 transferred jurisdiction to order disclosure from the court to a panel of three Superior Court judges and established a specific test for ordering such disclosure, namely, when disclosure is in the public interest. We conclude that none of the changes wrought by those public acts disturbs the allocation of the burden of persuasion to a petitioner.

       General Statutes (Rev. to 1985) § 54-47 (g), under which In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 501 A.2d 377 (1985), was decided does not contain a standard for the burden of persuasion governing the disclosure of investigatory records. In that case, the Supreme Court upheld the trial court’s use of the test of “particularized need” in which a party must make a showing of their need for disclosure and that showing is then balanced against the need for secrecy. Id., 711.


text:
    Acton CATV, Inc. v. Wildwood Partners, Ltd.
    (7053)
    Spallone, Stoughton and Norcott, Js.
    Argued May 18 —
    decision released August 1, 1989

      William H. Clendenen, Jr., with whom, on the brief, was David M. Lesser, for the appellant (plaintiff).

      Margaret P. Mason, with whom was Michael J. Quinn, for the appellee (defendant).
   Norcott, J.

The plaintiff appeals from the judgment of the trial court denying its application to compel arbitration pursuant to General Statutes § 52-410. The trial court found the following facts. In August, 1977, the defendant, Wildwood Partners, Ltd., purchased a cable television franchise in Sumter County, Florida, from BFM Constructors, Inc. On August 17,1977, BFM and the defendant entered into a written construction agreement under which BFM agreed to construct a cable television system in exchange for a promissory note from the defendant and other consideration. The construction contract contained a clause in which the parties agreed to submit to binding arbitration all disputes arising out of the agreement, except those regarding the methods or amounts of payments under the promissory note or its securing documents.

The defendant also entered into an agreement for the management and operation of the cable system with Wildwood Cable Management Company, a wholly owned subsidiary of BFM. Both the construction and management contracts included provisions that prohibited the assignment of the rights under the contract without the consent of the other party. In addition, both contracts provided that the agreements were to be “interpreted and construed in accordance with the laws of Connecticut.” Notwithstanding those provisions, BFM assigned its rights and liabilities under both agreements to Phoenix Communications, Inc., which, on September 27,1979, assigned both contracts to the plaintiff, Acton CATV, Inc.

Disagreements arose between the plaintiff and the defendant concerning performance under the construction and management contracts, and, in 1985, the defendant commenced suit against the plaintiff in the circuit court for Sumter County, Florida, seeking specific performance and damages under the construction contract, and damages and other injunctive relief under the management contract.

Thereafter, the plaintiff sought arbitration by the American Arbitration Association in Connecticut which refused the request, determining that absent a mutual agreement of the parties or an order to compel arbitration from the court it was without jurisdiction over the dispute. On November 25,1987, the plaintiff filed an application in the Connecticut Superior Court for an order to compel arbitration pursuant to General Statutes § 52-410. The trial court denied the application, holding that the plaintiff had not proved the existence of an agreement between the parties. The plaintiff now appeals from that denial, essentially claiming that the trial court erred (1) in finding that the assignment of the contracts was invalid, and (2) in determining that the defendant had not consented to or ratified the assignment of the contracts to the plaintiff by instituting suit against the plaintiff in Florida. We find no error.

“The authority for arbitration must be derived from the agreement of the parties. W. J. Megin, Inc. v. State, 181 Conn. 47, 49, 434 A.2d 306 (1980).” Oldread v. National Union Fire Ins. Co. of Pittsburgh, 5 Conn. App. 517, 519, 500 A.2d 956 (1985). In reviewing a party’s application to proceed with arbitration in connection with the agreement, the trial court’s authority is to grant or deny the applications “ ‘according to the rights of the parties.’ General Statutes § 52-410 (c).” Id., 520.

On appeal, “ ‘ “[w]e 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)].’ Rodriguez v. New Haven, 183 Conn. 473, 476-77, 439 A.2d 421 (1981).” Duksa v. Middletown, 192 Conn. 191, 205-206, 472 A.2d 1 (1984); Northwestern Electric, Inc. v. Rozbicki, 6 Conn. App. 417, 422-23, 505 A.2d 750 (1986). As to the plaintiff’s first claim, we have carefully reviewed the entire record and conclude that the trial court’s determinations that the assignment of the contracts was invalid and, therefore, that the plaintiff failed to sustain its burden of establishing the existence of a valid agreement between the parties to submit disputes to arbitration were legally correct and factually supported.

We also are persuaded that, on the evidence before it, the trial court did not err in determining that the defendant had not acknowledged or consented to the assignment by initiating suit against Acton in Florida. In the pleadings of the pending Florida litigation, each party has made affirmative allegations regarding the construction and management contracts on which they bear the burden of proof. Those allegations, however, are at odds with the positions of the respective parties as set forth in the motion to compel arbitration in the present Connecticut action. Because the positions of the parties in the Connecticut and Florida courts regarding the contracts are conflicting, the trial court did not err in refusing to accept the defendant’s pleadings as judicial admissions conclusively proving the existence of a contractual relationship between itself and the plaintiff. At most, the Florida pleadings constituted one piece of evidence that the trial court considered along with the other evidence in the case.

There is no error.

In this opinion the other judges concurred.

       After the initiation of the Florida litigation, the plaintiff filed motions in Florida seeking to stay Wildwood’s suit against it and to compel arbitration. The Florida trial court denied these motions without prejudice and, on appeal, the Florida appellate courts twice affirmed the denial solely because the Florida Arbitration Act does not allow Florida courts to compel arbitration in a foreign state under foreign law.

       In the Florida litigation, Wildwood Partners, Ltd., has sued Acton for specific performance, damages and injunctive relief under the same contracts that, in the present Connecticut action, they claim are invalid and therefore do not require it to arbitrate disputes. On the other hand, Acton alleges as an affirmative defense to the Florida complaint that the court should deny Wildwood any relief in connection with the construction agreement because there was no consideration for Acton’s assumption of the obligations under that contract. It is axiomatic that in the absence of consideration, there is no contract. State National Bank v. Dick, 164 Conn. 523, 529, 325 A.2d 235 (1973). Acton, however, now urges that Connecticut compel arbitration of disputes arising under both contracts, which they argue are valid and binding between the parties.


text:
    Brian J. Foley v. Southport Manor Convalescent Center, Inc., et al.
    (6875)
    Dupont, C. J., Stoughton and Norcott, Js.

      Argued March 7 —
    decision released August 1, 1989

      Louis R. Pepe, with whom was Jeanine M. Dumont and, on the brief, James G. Green, for the appellant (plaintiff).

      Dion W. Moore, with whom was James T. Shearin and, on the brief, Dwight F. Fanton, for the appellees (defendants).
   Dupont, C. J.

This case involves the following undisputed facts. On September 30,1984, the parties entered into a contract whereby the defendants agreed to sell their 140 bed nursing home, including land, located in the town of Fairfield, to the plaintiff for $5,250,000. The plaintiff paid a $5000 deposit, and was obligated under the contract to make an additional deposit of $150,000 on or before October 15,1984. The contract provided for the sale of only 3.74 acres, a portion of the property on which the nursing home was situated. The real property was owned by the defendant Albert A. Garofalo. The contract obligated the defendants to convey marketable title, free from encumbrances, excepting any town zoning restrictions.

A dispute arose between the parties concerning the performance of the contract. The plaintiff claimed that the defendants were in breach for failure to give notice of the sale to the state health department. The defendants claimed that the plaintiff was in breach for failure to pay the additional deposit of $150,000. The plaintiff sued the defendants seeking, inter alia, specific performance of the contract and injunctive relief restraining the defendants from conveying the property.

The parties ultimately stipulated to a judgment that the court, Kline, J., rendered orally as follows: “What I’ll do is right now enter by stipulation, I’ll enter a reformation of the contract, and the only reformation will be an extension of time for the down payment. And the reformation will further state that the notice to the State of Connecticut Health Department will be simultaneous with the payment of the $150,000 down payment. The time for both of those acts is extended to November 16th, 1984, and the closing will take place on this premises on or before December 30th. I will extend the October 30th date to December 30th. Now, that’s all I am going to do. I’m going to reform the contract to that extent.”

On November 9,1984, the trial court rendered judgment in accordance with the stipulation: “The Court, having heard the parties on the stipulation, finds that judgment should be entered in accordance with the stipulation. Whereupon it is adjudged that a reformation of the purchase and sale agreement is ordered with November 16, 1984, set as the date that the plaintiff purchaser is to make an additional deposit of $150,000 simultaneously with the defendant seller delivering to the plaintiff the appropriate letter notifying the Connecticut Health Department of the impending sale and that the new closing date be on or before December 30, 1984.” The plaintiff made the additional deposit and the defendants delivered to the plaintiff the appropriate letter addressed to the state health department.

It thereafter became known that the sale of only 3.74 acres with the nursing home would violate certain zoning regulations. The defendants maintained that they could not deliver marketable title, and offered to refund the plaintiffs deposit. Finding that option to be unsatisfactory, the plaintiff moved to hold the defendants in contempt of court for their alleged failure to comply with the judgment.

After a hearing held on September 23, 1985, the court rendered the following orders: “I am ordering [the defendants] to do everything possible to effect the sale, whatever zoning is required. . . . I am not going to hold anyone in contempt, but I am going to order that they make an application for a variance and take whatever steps are necessary to comply with the intent of the contract.”

The defendants did not thereafter apply for a zoning variance or for a change of zone. After an evidentiary hearing on the plaintiff’s motion for contempt on March 31, 1986, the court adjudged Garofalo in contempt of court because of his bad faith failure to apply for the variance or zone change that the court, on September 23, 1985, had ordered him to seek. The court, as did the parties, viewed the stipulated judgment of November 9,1984, as a judgment of specific performance of the contract between the parties, and was acting to protect the integrity of that judgment. The court imposed sanctions of $1774.31 per day until the defendant purged himself of contempt by either (1) entering into a long term ground lease of the 3.74 acres to the plaintiff, or (2) reforming the contract further by agreeing to sell the entire 10.09 acres to the plaintiff based on its fair market value.

On April 17, 1986, the defendants appealed to this court. In Foley v. Southport Manor Convalescent Center, Inc., 11 Conn. App. 530, 528 A.2d 841, cert. denied, 205 Conn. 805, 531 A.2d 935 (1987) (Foley I), this court set aside the judgment of contempt and remanded the case with direction to deny the plaintiff’s motion to hold the defendant in contempt of court. The case was not remanded for any other purpose, and the rescript of the case did not order any other further proceedings.

In alternative holdings, this court held (1) that the trial court erred in holding the defendant in contempt for failing to apply for the variance because the order requiring the application for a variance exceeded the stipulated judgment, which had reformed the contract, but had not ordered specific performance; id., 536-38; and (2) that, even if the stipulated judgment had in fact ordered specific performance, the requirement that the defendant apply for relief from zoning restrictions enlarged his obligations beyond those authorized by the scope of specific performance. Id., 538. In a footnote to the opinion, this court stated: “We do not, however, by this decision foreclose the plaintiff from now attempting further proceedings in this case in order to secure a supplemental judgment of specific performance of the reformed contract. Nor do we foreclose the defendants from raising any defense or claim in opposition to such an attempt. We need not decide that issue at this time.” Id., 537 n.4.

On October 13,1987, the plaintiff made a motion for supplemental judgment of specific performance of the reformed contract. In support of its motion, the plaintiff made specific reference to footnote four in Foley I. That motion requested the court (1) to transfer the lesser estate of a long term ground lease of the 3.74 acres parcel, or (2) to convey title to the nursing home on the entire 10.09 acre parcel, on the condition that the plaintiff pay the fair market value of the acreage in excess of the 3.74 acres. The trial court denied the motion and, upon a motion for articulation by the plaintiff, stated that it denied the motion because the plaintiff failed to comply with Practice Book § 326.

The sole issue in this appeal is whether the trial court erred in denying the plaintiffs motion for supplemental judgment of specific performance of the reformed contract. The plaintiff claims that, although our rules of practice do not provide for a motion for supplemental judgment of specific performance, the procedure was initiated by the plaintiff in reliance upon footnote four of Foley I.

It appears that the plaintiff is confused about this court’s intention in footnote four by the use of the phrase “supplemental judgment.” Apparently, the plaintiff believed that the phrase represented a term of art contemplating a new procedure by which the plaintiff could enforce the reformed contract. The plaintiff’s interpretation of the footnote is incorrect. The proper action for the plaintiff to have pursued after Foley I was to initiate a new suit claiming a breach of the reformed contract, and to request, inter alia, the relief of specific performance.

The trial court mistakenly relied upon Practice Book § 326 to deny the plaintiffs motion. The plaintiff did not seek to open a judgment, but sought another, or second, judgment of specific performance. When a trial court reaches a decision on mistaken grounds, the trial court’s action will be sustained if proper grounds exist to support it. Norwich v. Norwalk Wilbert Vault Co., 11 Conn. App. 332, 334, 527 A.2d 716 (1987), aff'd, 208 Conn. 1, 544 A.2d 152 (1988).

There is no error.

In this opinion the other judges concurred.

       Practice Book § 326 provides: “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.
      “Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the court.”

       As previously noted, Foley v. Southport Manor Convalescent Center, Inc., 11 Conn. App. 530, 528 A.2d 841 (1987), held that the stipulated judgment was not one for specific performance but for reformation.


author: Borden, J.

text:
    State of Connecticut v. Julian Delgado
    (7228)
    Borden, Spallone and Jacobson, Js.
    Argued May 3 —
    decision released August 1, 1989

      Stephanie Clarke, deputy assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Michael E. O’Hare, former assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), and criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1). He claims that the burglary and criminal trespass convictions should be reversed because the court’s jury instructions permitted verdicts that were not unanimous. He also claims that the conviction in a single trial of both burglary in the first degree and criminal trespass in the first degree violated his double jeopardy rights. We find no error.

The jury could reasonably have found the following facts. The defendant’s former girl friend, Wendy Czyrko, and her children were in her apartment. At approximately midnight, the defendant gained entrance to Czyrko’s apartment after he unlocked the door with a key and Czyrko released the inside security chain in an attempt to retrieve the key. After forcibly entering the apartment, the defendant struck Czyrko in the mouth with his fist. Before neighbors were able to come to Czyrko’s aid, the defendant attempted to stab Czyrko with a fork and then took a metal leg supporting the front of a wall-mounted sink and used it twice to strike Czyrko twice in the head.

I

The defendant first claims that the court’s instruction to the jury regarding burglary in the first degree permitted a verdict that was not unanimous. The basis for this claim is that the court instructed the jury on the alternative elements of burglary — entering unlawfully and remaining unlawfully — without specifically instructing the jury that it must agree on the same alternative. We disagree.

Although the defendant did not properly preserve this claim at trial, it is subject to a limited review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), to determine whether the claim is truly of constitutional proportions or is simply characterized as such by him. State v. Bailey, 209 Conn. 322, 330 n.4, 551 A.2d 1206 (1988). We conclude that the defendant’s claim is not of true constitutional proportion.

The information, amended at trial, charged the defendant with both statutory theories of burglary, namely, that the defendant “entered or remained unlawfully” in violation of General Statutes § 53a-101 (a) (2). The court instructed the jury that if it found that the defendant either entered unlawfully or entered lawfully and thereafter remained unlawfully, those particular elements of the crime had been satisfied.

“ ‘Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act.’ ” (Emphasis in original.) State v. Bailey, supra, 334, quoting State v. Flynn, 14 Conn. App. 10, 38, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). Under the facts of this case, the two alternative acts of entering unlawfully and remaining unlawfully were not conceptually distinct.

It is true that in a different factual context we have held that unlawful entry and unlawful remaining can be construed to be conceptually distinct concepts. See State v. Edwards, 10 Conn. App. 503, 513, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987) (unlawful entry results from lack of permission, license or privilege to enter; unlawful remaining results from lawful entry that later becomes unlawful). In considering whether alternative statutory elements are conceptually distinct for purposes of requiring a unanimity instruction, however, the analysis “turns, not only on the language of the two statutory subsections or elements, but also on the evidence in the case and how the case is presented to the jury in the court’s instructions.” State v. Velez, 17 Conn. App. 186, 199, 551 A.2d 421 (1988).

In this case, the defendant’s acts of entering and remaining were conceptually indistinct and inseparable. The state’s evidence was that the defendant entered Czyrko’s dwelling unlawfully and continued to remain there unlawfully. The defendant’s theory of defense, supported by the evidence he presented, was that he was a cotenant with Czyrko, and, as such, both his initial entry and his remaining in the apartment were lawful. Thus, the jury’s verdict could have resulted only from its determination that the defendant’s conduct constituted one continuous course of unlawful conduct, namely, that he entered the apartment unlawfully and remained there without any change in his legal status. Under these circumstances, the unlawfulness of his entry determined the unlawfulness of his remaining. The two inexorably intertwined acts were conceptually indistinct.

Furthermore, the defendant’s conduct did not “comprise ‘separate incidents’ implicating alternative or conceptually distinct bases of liability”; State v. Bailey, supra, 336; and this was not a case where the complexity of the evidence or other factors created a genuine risk of jury confusion. Id., 337. Where these factors are absent, our Supreme Court has rejected a similar unanimity claim. Id., 336-37.

The defendant also claims that the court’s jury instruction regarding criminal trespass in the first degree permitted a verdict that was not unanimous. This claim is based also on the court’s instructing the jury on the alternative elements of criminal trespass-entering and remaining — without specifically instructing the jury that it must agree on the same alternative. Our discussion of the first jury instruction disposes of this claim.

II

The defendant’s final claim is that the convictions for both burglary in the first degree and criminal trespass in the first degree subjected him to multiple punishment of the same offense in violation of his rights against double jeopardy. Although the defendant did not properly preserve this claim at trial, it is reviewable under State v. Evans, supra. State v. Mancinone, 15 Conn. App. 251, 273, 545 A.2d 1131 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989). The defendant argues that the legislative history behind General Statutes § 53a-101 (a) (2), burglary in the first degree, and General Statutes § 53a-107 (a) (1), criminal trespass in the first degree, indicates that the two offenses are mutually exclusive and are not meant to be applied simultaneously for a single unauthorized entry. We reject this claim.

The defendant’s claim invokes that strand of double jeopardy jurisprudence that “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended”; Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); and “the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). “Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to impose.” Albernaz v. United States, 450 U.S. 333, 344, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981). “The issue, though essentially constitutional, becomes one of statutory construction.” State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985); State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985).

In reviewing such a double jeopardy claim, “[f]irst, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986). There is no dispute in this case that the two charged offenses arose out of the same transaction. We therefore consider whether the two criminal statutes constitute the same offense for double jeopardy purposes. This requires that we “determine whether the legislature . . . intended that each violation be a separate offense.” Garrett v. United States, 471 U.S. 773, 778, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985).

The traditional polestar in this analysis has been to compare the elements of the offenses in question using the test established in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Under Blockburger, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires the proof of a fact which the other does not.” Id., 304. It is clear that, as the defendant concedes, under Blockburger, burglary in the first degree and criminal trespass in the first degree are not the same offense because each requires proof of a fact that the other does not. Compare footnotes one and two, supra. It is clear also, however, as the defendant argues, that the Blockburger test is not a conclusive presumption of law; Garrett v. United States, supra, 779; but “ ‘is a “rule of statutory construction,” and . . . should not be controlling where, for example, there is a clear indication of contrary legislative intent.’ ” (Emphasis added.) Missouri v. Hunter, supra, 367.

Thus, the Blockburger test as a rule of statutory construction does no more than create a rebuttable presumption. “Although Blockburger creates a presumption as to the actual legislative intent, it is not a blind presumption that may be applied without regard to other relevant evidence of true intent. It would be absurd indeed to apply Blockburger, which was meant to help determine legislative intent, in a way that actually defeats what reason and logic dictate to be the intent.” Carawan v. State, 515 So. 2d 161, 167 (Fla. 1987). The United States Supreme Court in Missouri v. Hunter, supra, 368, found that the Missouri legislature’s express provision for double punishment for a compound and predicate crime expressly rebutted the presumption raised by Blockburger, namely, that if two statutes constitute the “same offenses” the legislature did not intend to allow a defendant to be punished under both statutes. “[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.” Id.

The state argues that it is appropriate to go beyond Blockburger only when that test discloses that the two offenses are the same, and that we should not go beyond the Blockburger test to consider legislative intent when the challenged offenses are different. It would defy reason and logic, however, to give the state, when seeking to impose multiple punishments, the benefit of a rebuttable presumption when the offenses in question are the same under Blockburger, yet to deny the defendant, when seeking to avoid multiple punishments pursuant to the constitutional guaranty against double jeopardy, the benefit of a rebuttable presumption when the offenses are different. Furthermore, our Supreme Court implicitly rejected this notion of Block-burger as a one-sided presumption in State v. John, 210 Conn. 652, 693, 557 A.2d 93 (1989). In John, the court held that the imposition of multiple punishments for felony murder and manslaughter violated the multiple punishment provision of the double jeopardy clause, notwithstanding that “each offense requires proof of an additional fact that the other does not, [making it appear] from an application of the Blockburger test that no double jeopardy violation has occurred.” Id., 695. Thus, the Blockburger presumption regarding different offenses was found to be rebutted by the court “[o]n the basis of [its] holding in State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), and . . . [its conclusion] that the legislature contemplated that the two statutory provisions should be treated as a single crime for double jeopardy purposes.” Id.; see also State v. Sergi, 7 Conn. App. 445, 449 n.3, 509 A.2d 56, cert. denied, 201 Conn. 806, 515 A.2d 379 (1986).

Thus, in determining whether a double jeopardy violation exists where the statutes in question are different offenses under Blockburger, our task is to determine whether the Blockburger presumption that multiple punishments were intended is rebutted on the basis of clear legislative intent to the contrary. We fail to discern any clear legislative intent that the two separate offenses of burglary in the first degree under General Statutes § 53a-101 (a) (2), and criminal trespass in the first degree under General Statutes § 53a-107 (a) (1), were meant to constitute one offense for double jeopardy purposes.

First, the plain language of both General Statutes § 53a-107 (a) (1) and § 53a-101 (a) (2) “affirmatively states an offense for which punishment will be imposed.” Garrett v. United States, supra. In order to be convicted of criminal trespass in the first degree under General Statutes § 53a-107 (a) (1), the state must prove two essential elements: “(1) that the defendant, knowing that he was not privileged or licensed to do so, entered or remained in a building; and (2) that the defendant committed that act after an order to leave or not to enter had been personally communicated to him by the owner or other authorized person.” State v. LoSacco, 12 Conn. App. 172, 174-75, 529 A.2d 1348 (1987). The element of notification must be proved by the state beyond a reasonable doubt. Id., 179; see also Comment of Commission to Revise the Criminal Statutes, Connecticut General Statutes Annotated (West) § 53a-107 (“This section is the most serious degree of criminal trespass. It aims at the situation where the actor enters or remains in premises in defiance of an order not to enter, or to leave, personally communicated to him by an authorized person”). Thus, General Statutes § 53a-107 (a) (1) prohibits conduct involving the unlawful occupation of a premises where the actor is personally ordered by the owner or other authorized person to leave and the actor refuses to do so in direct contravention of that order. The legislative purpose of the statute is to “protect any possessor of land, whether titleholder or not, from intrusions by unwanted persons.” State v. Martin, 35 Conn. Sup. 555, 559, 398 A.2d 1197 (1978).

In contrast, the basic rationale of the offense of burglary is to “[protect] against invasion of premises likely to terrorize occupants. . . . The three degrees of the crime differ only in terms of aggravating factors for which the basic rationale requires different treatment.” Comment of Commission to Revise the Criminal Statutes, Connecticut General Statutes Annotated (West) §§ 53a-100 through 53a-106 (General Comments). One of two aggravating factors must accompany the unlawful entry or remaining in order to classify the criminal conduct in question as burglary in the first degree under General Statutes § 53a-101. The first is that the actor “is armed with explosives or a deadly weapon or dangerous instrument.” General Statutes § 53a-101 (a) (1). The second is that the actor “in the course of committing the offense . . . intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.” General Statutes § 53a-101 (a) (2).

Further indicium that the two offenses were intended by the legislature to be separate offenses is that neither General Statutes § 53a-101 nor § 53-107 makes reference to the other. See Garrett v. United States, supra, 781. In addition, each statutory offense sets out its own penalty rather than using a multiplier of a penalty established for another offense. Id. The penalties set forth in the burglary provisions are not based on a multiplier of the less serious criminal trespass provisions. Burglary in the first degree is a class B felony; General Statutes § 53a-101 (c); and criminal trespass in the first degree is a class A misdemeanor. General Statutes § 53a-107 (b).

Finally, it bears reemphasis that the Blockburger presumption is properly rebutted only upon a clear indication of contrary legislative intent. Silence in the legislative history is insufficient to overcome this presumption. “The presumption when [the legislature] creates two distinct offenses is that it intends to permit cumulative sentences, and legislative silence on this specific issue does not establish an ambiguity or rebut this presumption .... ‘[I]f anything is to be assumed from [legislative] silence ... it is that [the legislature] was aware of the Blockburger rule and legislated with it in mind.' ” Garrett v. United States, supra, 793. Ambiguity in the legislative history is also insufficient to overcome the Blockburger rule. The rule of lenity is not applicable as an aid for resolving ambiguous legislative history; it is only available as a tool of statutory construction for resolving statutory ambiguities. Albernaz v. United States, supra, 342; see also State v. Rawls, supra, 121-22.

As noted by the defendant, the official comments to General Statutes § 53a-108, criminal trespass in the second degree, state that “this section fills a glaring gap in the prior Connecticut law, which did not penalize trespass into one’s home . . . unless it was in defiance of an order to leave.” Comment of Commission to Revise the Criminal Statutes, Connecticut General Statutes Annotated (West) § 53a-108. We agree with the defendant that this legislative history indicates that the purpose of some criminal trespass provisions is to cover certain types of conduct that are not within the scope of the burglary provisions. We do not believe, however, that this gap filling purpose indicates that the legislature intended these provisions to be used as mutually exclusive substitutes. Whenever the legislature fills a gap in the criminal law, it is fair to infer, absent clear legislative history to the contrary, that it is seeking to provide the executive branch with an addition to its existing law enforcement arsenal, rather than a substitute for an already existing offense.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-101 provides in pertinent part: “(a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 53a-107 provides in pertinent part: “(a) A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person . . . .”


author: Daly, J.

text:
    Glenn Banks et al. v. Russell Vito et al.
    (7259)
    Borden, Spallone and Daly, Js.

      Argued May 2 —
    decision released August 1, 1989

      Benson A. Snaider, with whom, on the brief, was Britta Schneider, for the appellants (defendants).

      Bruce S. Beck, for the appellees (plaintiffs).
   Daly, J.

The defendants appeal from the order of the trial court denying their motion to dissolve a prejudgment remedy.

The plaintiffs, Glenn Banks and Erving Arnold, as minority shareholders of the defendant corporation, instituted an action against the corporation and two individual defendants alleging in an amended complaint that the individual defendants (1) diverted funds via dividends, salaries, commissions, pension plans and personal travel and entertainment; (2) breached their fiduciary duties as majority shareholders, officers and directors by utilizing corporate assets and profits for their personal use and benefit and by preventing the plaintiffs from participating in the corporation’s business; and (3) breached an agreement to divide the corporation’s profits.

Upon commencing suit, the plaintiffs sought an ex parte prejudgment remedy allowing attachments on the real estate of the individual defendants in the amount of $100,000 each. The trial court, Shaughnessy, J., granted the prejudgment remedy. The defendants thereafter moved to dissolve the attachments. After a full hearing, the trial court, D. Dorsey, J., denied the defendants’ motion to dissolve the prejudgment remedy. The defendants filed a motion for rehearing, which the trial court, D. Dorsey, J., denied. This appeal ensued.

The defendants contend that the court erred in finding (1) that the plaintiffs established probable cause that the individual defendants were personally liable on the basis of the breach of fiduciary duties owed to the plaintiffs, or, in the alternative, the breach of a promoter’s agreement, and (2) that the plaintiffs had suffered damages of $100,000 each for which they could recover in an individual action rather than in a derivative action. We find no error.

The following facts are relevant to the disposition of this appeal. Prior to December, 1985, the four parties entered into an agreement whereby they would form a corporation. The two defendants were to provide the management and direction for the corporation and also would devote their energies full-time to the enterprise, while the two plaintiffs would provide financial assistance. The plaintiffs also agreed to refer air freight customers to the new corporation, R & R Transportation Services, Inc. The agreement was that each plaintiff was to own one sixth of the shares of the stock while each defendant was to own one third of the shares of stock. The four further agreed to split the profits in the same ratio as the stock. In addition, the four agreed that each plaintiff was to remain vice president and director for the life of the corporation. Each defendant was to receive a salary of $500 per week, a company car, and insurance benefits at the start of the corporation. Any weekly monetary compensation to the plaintiffs would begin when the corporation became profitable. The corporation was formed in January, 1986, and the four parties were named officers and directors.

In June, 1986, the four agreed that the corporation had become profitable and, at that time, each party received a proportionate share bonus. In addition, the plaintiffs began receiving proportionate weekly compensation checks in the amount of $250. In October, 1986, the defendants offered to purchase the plaintiffs’ interests for $5000 each. When the plaintiffs declined the offer, the weekly compensation payments ceased, they lost their positions as officers and directors and were replaced by the defendants’ spouses, and they were denied access to the corporation’s books.

The plaintiffs introduced uncontroverted evidence that, after the plaintiffs were removed as officers and directors, the defendants (1) awarded themselves bonuses of $20,000 each, (2) set up a pension plan that had a contribution of $20,000 and named the defendants as trustees, and (3) increased their weekly compensation to $750 per week, which would have entitled each plaintiff to $13,000 per year under the original agreement. The corporation declared no dividends, despite ample cash reserves. Commissions of approximately $30,000, and other petty cash expenditures were paid, and travel and entertainment costs were incurred without appropriate documentation, and one expert accountant deemed them to be too high. Moreover, he valued the corporation at $600,000.

The trial court concluded that, on the bases of a breach of the oral promoter’s agreement entered into by the parties and of a breach of the defendants’ fiduciary duty to the minority shareholders as majority shareholders, there was probable cause to continue the attachments. Accordingly, the court denied the motion to dissolve the attachments.

The applicable law concerning prejudgment remedies is contained in General Statutes §§ 52-278a through 52-278n. An ex parte attachment is an available remedy pursuant to General Statutes § 52-278e. Upon the granting of an ex parte attachment, the defendant is entitled to file a motion to modify or dissolve the attachment, at which time the court is directed “to hear and determine such motion expeditiously.” At that hearing, the plaintiff has the burden of demonstrating that there is probable cause to sustain the validity of the claim. Goodwin v. Pratt, 10 Conn. App. 618, 620, 524 A.2d 1168 (1987). “The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim.” Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984).

In Goodwin v. Pratt, supra, 620-21, this court reiterated what our Supreme Court in Three S. Development Co. v. Santore, supra, set forth as to the meaning of probable cause: “ ‘ “The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). The court’s role in such a hearing is to determine probable success by weighing probabilities.’ See also Solomon v. Aberman, 196 Conn. 359, 363, 493 A.2d 193 (1985); Michael Papa Associates v. Julian, 178 Conn. 446, 447, 423 A.2d 105 (1979); Pero Building Co. v. Smith, 6 Conn. App. 180, 182-83, 504 A.2d 524 (1980); L. Suzio Concrete Co. v. Salafia, 3 Conn. App. 404, 406-407, 488 A.2d 1280 (1985).” In addition, the trier is entitled to draw reasonable inferences based on the facts proved. Green v. Holy Trinity Church of God in Christ, 16 Conn. App. 700, 703, 549 A.2d 281 (1988).

“Our review of the action taken by the trial court with regard to prejudgment remedies is ‘very circumscribed. It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable.’ ” Goodwin v. Pratt, supra, 621. “In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.” Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977).

Keeping in mind this limited standard, we turn to the defendants’ claim that the trial court erred in finding probable cause to support personal liability of the individual defendants on the basis of breach of fiduciary duty or breach of a promoter’s agreement.

Authority exists in this state for officers, directors, and majority shareholders to be held personally liable for breach of fiduciary duty when evidence shows a misappropriation of corporate funds for personal benefit and subsequent fraudulent concealment. See Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 407-409, 456 A.2d 325 (1983). As our Supreme Court has stated, “ ‘[t]hou shall not steal’ is basic. Not only the theft, but also [the] failure to disclose it [are] violations of the trust imposed upon him in that capacity. ‘An officer and director occupies a fiduciary relationship to the corporation and its stockholders.’ Katz Corporation v. T. H. Candy & Co., 168 Conn. 201, 207, 362 A.2d 978 (1975).” Pacelli Bros. Transportation, Inc. v. Pacelli, supra, 407. “If the controlling majority stockholder seeks to injure the minority stockholder through the means of looting the corporation or so wrecking it that the minority stockholder would get nothing out of his assets, the claim resulting therefrom is sufficient to constitute an individual action. Davis v. United States Gypsum Co., 451 F.2d 659, 662 (3d Cir. 1971).” Yanow v. Teal Industries, Inc., 178 Conn. 262, 282 n.9, 422 A.2d 311 (1979).

In a more recent decision, this court upheld a judgment in favor of the plaintiff who alleged that the defendant, an officer and director of a corporation, violated the trust and confidence conferred upon him in this capacity, committed fraud, and fraudulently concealed his acts by preventing the plaintiff from gaining access to books and records. Henry v. Klein, 15 Conn. App. 496, 499, 545 A.2d 575 (1988).

The evidence presented concerning unaccounted petty cash expenditures, unaccounted commissions, failure to distribute weekly compensation to the plaintiffs, and increases in the defendants’ compensation, taken together with the loss of access to financial information about the corporation, constitute a reasonable basis for the finding of probable cause based on a breach of fiduciary duty for which the individual defendants can be held personally liable.

The defendants correctly argue that only rarely should the corporate veil be pierced. The rare and acceptable legal basis for this piercing occurs when there is a sufficient basis for a claim of breach of fiduciary duty based on fraudulent acts of individuals who occupy a fiduciary relationship. See Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 559, 447 A.2d 406 (1982); Zaist v. Olson, 154 Conn. 563, 573-74, 227 A.2d 552 (1967). Whether the plaintiffs, in a trial on the merits, will prevail on the issue of breach of fiduciary duty is not now before us. The plaintiffs presented sufficient evidence, however, for us to conclude that the trial court did not err in finding probable cause to hold the individual defendants personally liable and, accordingly, there is no reason to address the defendants’ second claim of error based on breach of an oral promoter’s agreement.

This, however, does not end the inquiry because we still must determine whether the dollar amount of the prejudgment remedy order entered by the trial court was proper. See Solomon v. Aberman, supra, 379. The plaintiff must establish the probable amount of damages involved. Mullai v. Mullai, 1 Conn. App. 93, 94, 468 A.2d 1240 (1983).

The remedy of attaching and securing a defendant’s property to satisfy a potential judgment in favor of the plaintiff is unknown to the common law and is a purely statutory vehicle. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, supra, 582. Section 52-278e provides that the prejudgment remedy granted shall remain in effect if the court determines at the hearing that there is probable cause to sustain the plaintiff’s claim. Id.

The defendants are correct in their assertion that the plaintiffs’ affidavit was defective in seeking the individual attachments in an amount based on the plaintiffs’ ownership in the corporation. See Davis v. United States Gypsum Co., supra. That defective affidavit, however, was not fatal. Even if a court erred in granting an ex parte real estate attachment because of a defective affidavit, the plaintiff may still prove probable cause at a hearing to dissolve or modify the attachment. Lengyel & Lengyel Builders, Inc. v. Hill, 1 Conn. App. 349, 351, 471 A.2d 975 (1984); accord Glanz v. Testa, 200 Conn. 406, 408, 511 A.2d 341 (1986). At the hearing, the plaintiffs presented uncontroverted evidence of specific amounts of individual injury they sustained as shareholders. “In such a case, the plaintiff-shareholder sustains a loss separate and distinct from that of the corporation, or from that of other shareholders, and thus has the right to redress in a personal capacity for a wrong done to him individually.” Yanow v. Teal Industries, Inc., supra, 282.

Because the plaintiffs may recover individually in an amount similar to the amount of the attachments, the amount of the prejudgment remedy is not in clear error under all the circumstances. See Solomon v. Aberman, supra, 381.

There is no error.

In this opinion the other judges concurred.

       The defendants are Russell Vito and Russell D’Agostino, individually, and R & R Transportation Services, Inc., the corporate defendant. Only the individual defendants are parties to this appeal.

       The amendment was dated March 18,1988. The defendants’ objection was overruled by the trial court, Maiocco, J., on May 23,1988, subsequent to the memorandum of decision on the motion to dissolve filed April 8,1988. A trial court, in its discretion, may allow an amendment to pleadings, before, during, or after trial to conform to the proof. Cabinet Realty, Inc. v. Planning & Zoning Commission, 17 Conn. App. 344, 348, 552 A.2d 1218 (1989); see Practice Book § 178.

       The third count of the original complaint was directed against the defendant corporation only.

       The evidence included (1) denial of weekly compensation that totaled $13,000 each per annum, (2) denial of pension profits, (3) denial of additional bonuses, and (4) denial of access to the corporation’s records. See 13 Fletcher, Corporations (1970 Rev.) §§ 5913-15, 5921-22, for types of actions that permit recovery by individuals.


author: Spallone, J.

text:
    State of Connecticut v. Michael Jennings
    (6962)
    Spallone, O’Connell and Foti, Js.
    Argued March 15 —
    decision released August 1, 1989

      Ronald D. Williams, Jr., assistant public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was JohnSmriga, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant was convicted after a jury trial of the crime of possession of cocaine with intent to sell by a person who is not drug dependent in violation of the state dependency producing drag law, General Statutes § 21a-278 (b). On appeal, the defendant claims the trial court erred (1) in allowing into evidence money seized at the time of arrest, (2) in allowing into evidence thirteen untested packets of suspected narcotics,, and (3) in refusing the defendant’s request to instruct the jury on “consciousness of innocence.”

The jury could reasonably have found the following facts. On September 22, 1987, the Bridgeport police department’s tactical division received and responded to information that drug sales were occurring at the Evergreen Apartments on Albion Street, Bridgeport. Police officers and marked police vehicles were dispatched to investigate. Two of those officers, upon entering the courtyard area of the Evergreen Apartments from the rear, encountered the defendant walking toward them. The defendant, looking back over his shoulder toward the marked police cars on Albion Street, drew a brown paper bag from his jacket pocket and discarded it. The officers stopped the defendant and retrieved the bag. Inside were two clear resealable plastic bags containing thirty-three white paper packets, twenty of which later tested positive for the presence of cocaine. The officers placed the defendant under arrest, searched his person and found and seized $100. This money and the thirty-three paper packets were admitted into evidence at trial over the defendant’s objections.

The defendant argues that the police failed to articulate the specific facts that focused their general suspicion of criminal activity in the area upon him in particular. Without a specific focus to justify the investigative stop, the defendant reasons, the money found on his person should have been suppressed as the product of an unconstitutional search and seizure under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. We disagree.

It is well established that the police may briefly detain an individual for investigative purposes if they have a reasonable and articulable suspicion that this individual is, or has been, engaged in criminal activity. Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752, 65 L. Ed. 2d 1890 (1980); Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Aversa, 197 Conn. 685, 690, 501 A.2d 370 (1985). The test of reasonable and articulable suspicion is objective: “[Wjould the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” Terry v. Ohio, supra, 22; State v. Aversa, supra, 690-91; State v. Williamson, 10 Conn. App. 532, 541, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987). There must be more than a bare suspicion; the facts at hand must provide a basis for singling out those stopped. Wong Sun v. United States, 371 U.S. 471, 479-80, 80 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Williamson, supra, 542.

The trial court expressly found that the police officers were aware of various facts that satisfy the “reasonable and articulable suspicion” standard necessary to justify a Terry stop. The officers were sent by their sergeant to an area known for frequent narcotics sales on the basis of information that drug sales were then occurring. The defendant apparently was aware of the police cars behind him and, when encountered, was leaving the area. The officers observed the defendant discard a paper bag and, from their training and experience, had reason to believe the bag contained drugs. Each of these circumstances has been held by reviewing courts to be a valid basis for assessing the reasonableness of police action.

In deciding whether to stop a suspect briefly, the police may consider the character of the neighborhood and their knowledge of narcotics distribution in the area. State v. Rodriguez, 14 Conn. App. 574, 578, 542 A.2d 342 (1988). The police may reasonably act on current information that drug trafficking is in progress. State v. Rodriguez, 11 Conn. App. 140, 145, 525 A.2d 1384 (1987). Imminent action may be necessary to prevent a suspect’s departure. United States v. Santana, 485 F.2d 365, 368 (2d Cir. 1973), cert. denied, 415 U.S. 931, 94 S. Ct. 1444, 39 L. Ed. 2d 490 (1974). The police may stop an individual who discards an object that may possibly be a container for narcotics. Id.

The defendant argues that the officers had no reason to focus their generalized suspicion on him as he merely discarded a paper bag and did not flee at the officers’ approach. While the police may have had no more than a general suspicion of illegal conduct when they approached, that suspicion became specific and focused on the defendant when he directed the officers’ attention to himself and “caused the general suspicion of illegal activity to become particularized upon himself.” State v. Williamson, supra. The focusing act in Williamson was flight from the police; the focus in this case was on a defendant who, in an apparent effort to get away from the police activity in the street behind him, discarded an object possibly containing drugs, particularly “a brown paper bag which has long been a sort of hallmark of the narcotics business.” United States v. Santana, supra. That this action was ambiguous and could have as easily been interpreted as innocent, “betrays a misunderstanding of the concept of ‘reasonable and articulable suspicion.’ ” State v. Williamson, supra. “The possibility of an innocent explanation does not deprive the officers of the capacity to entertain a reasonable suspicion of criminal conduct.” Id., 542-43, quoting In re Tony C., 21 Cal. 3d 888, 894, 582 P.2d 957, 148 Cal. Rptr. 366 (1978).

Under the circumstances of this case, we conclude that the facts available to the detaining officers at the time were sufficient to justify the investigative stop. The police had probable cause to make the arrest having found what appeared to be narcotics in the bag tossed away by the defendant. The search of the defendant’s person and the seizure of the $100 were incident to this lawful arrest, a recognized exception to the warrant requirement. State v. Copeland, 205 Conn. 201, 209, 530 A.2d 603 (1987). The money was therefore properly admitted into evidence at trial.

We turn now to the question of the admissibility of the unanalyzed suspected narcotics. The brown paper bag discarded by the defendant and recovered by the police contained thirty-three paper packets of powder in two plastic bags. All were sent to the department of health service laboratories for testing. The state toxicologist testified that the packets were weighed and that twenty packets, ten from each bag, were randomly selected and tested for narcotics. Each of the twenty tested positive for the presence of cocaine. The defendant’s motion to suppress the thirteen untested packets was denied at trial and all thirty-three packets were introduced into evidence. The defendant asserts that the unanalyzed packets were inadmissible as irrelevant. We disagree.

Questions of relevance must be determined in each case by reliance on reason and judicial experience as no exact test of relevancy is found in the law. State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978); State v. Baskins, 12 Conn. App. 313, 317, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). “ ‘Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case.’ ” State v. Baskins, supra, 317. A fact is relevant whenever its existence, either alone or in connection with other facts, makes more certain or probable the existence of another fact. Id., 317-18. “ ‘[A]ny fact may be proved which logically tends to aid the trier in the determination of the issue.’ ” Id., 318, quoting State v. Villafane, 171 Conn. 644, 674-75, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977). Relevant evidence is admissible if the trial court, in the exercise of its broad discretion, determines that the probative value of the evidence outweighs its prejudicial effect. State v. Baskins, supra, 318.

The defendant was charged with possessing narcotics with the intent to sell. The quantity of narcotics found in the defendant’s possession was probative of whether the defendant intended to sell the drugs. The direct evidence of the tested packets and the circumstantial evidence of the untested packets are equally probative. State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); State v. Baskins, supra, 316. A jury is entitled to draw reasonable and logical inferences from the facts proven. State v. Baskins, supra. The jury here was free to infer that the untested material contained the same contraband as the analyzed material from which it was drawn. See, e.g., United States v. Eakes, 783 F.2d 499, 504 (5th Cir.), cert. denied, 477 U.S. 906, 106 S. Ct. 3277, 91 L. Ed. 2d 567 (1986); State v. Addazio, 169 Conn. 416, 421, 363 A.2d 153 (1975); State v. Baskins, supra, 316-17.

A trial court’s determination that evidence is admissible will be reversed only when there has been an abuse of discretion or when an injustice has been done. State v. Carr, 172 Conn. 458, 464, 374 A.2d 1107 (1977). We agree with the trial court that the untested packets were relevant to an issue before the jury and that the probative value of the evidence objected to outweighed its prejudicial effect. We find no abuse of discretion or injustice in the case.

The defendant’s final claim is that the trial court erred in refusing to instruct the jury on consciousness of innocence. Just as flight from the police supports a jury instruction on consciousness of guilt, the defendant claims that failure to attempt escape, conversely, should support an instruction on consciousness of innocence. The defendant’s requested instruction was not a statement of the applicable law and so was therefore improper. A request for jury instructions must clearly state a proposition of law “with the citation of authority upon which it is based, and the evidence to which the proposition should apply.” Practice Book § 854. It is not error to refuse a charge that is contrary to the law. Slicer v. Quigley, 180 Conn. 252, 258, 429 A.2d 855 (1980).

The defendant has failed to cite any authority in support of his request for the jury charge. State v. Huff, 10 Conn. App. 330, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987), cited by the defendant, is not supportive. In Huff, the issue was whether the defendant’s failure to flee a later encounter with his assault victim could be argued as consciousness of innocence in the defendant’s summation to the jury. Id., 341. The court held that the failure to flee is a factual argument that may be made to a jury in summation of the evidence. Id., 344. Proper subject matter for summation is a matter of commenting upon or suggesting inferences from facts in evidence. Id., 340-41. A properjury charge, however, must be correct in the law. State v. Hinckley, 198 Conn. 77, 88, 502 A.2d 388 (1985).

Far from finding support in law for the defendant’s request, we find authority very much to the contrary. This court has previously considered a request for similar jury instructions. In State v. Timmons, 7 Conn. App. 457, 465, 509 A.2d 64 (1986), appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987), the defendant requested a jury instruction that his voluntary surrender to the police supported an inference of innocence. In affirming the trial court’s refusal to give the instruction, this court found no support in law for such a request. Id. The precedent is applicable here. The failure to flee, like voluntary surrender, “is not a theory of defense from which, as a matter of law, an inference of innocence may be drawn by the jury.” Id., 466.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 21a-278 provides in pertinent part: “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance . . . who is not at the time of such action a drug-dependent person . . . shall be imprisoned for not less than five years nor more than twenty years . . . . ”

       By written motion, the defendant sought to have the jury instructed as follows: “CONSCIOUSNESS OF INNOCENCE: Flight from the scene of the crime or from police officers, when unexplained, tends to prove a consciousness of guilt. On the other hand, absence of flight from the scene of the crime or from police officers approaching may be considered a basis for an inference of innocence. Therefore, if you find from the facts presented during testimony that the defendant Michael Jennings, upon being approached and subsequently detained by Officers Vivo and Bergquist, did not attempt to flee you may use this factual finding to draw an inference of consciousness of innocence.”

       A number of jurisdictions have addressed the issue and the decisions appear unanimous that a defendant may properly argue his absence of flight to the jury but he is not entitled to any corresponding “consciousness of innocence” jury instruction. See, e.g., United States v. McQuarry, 726 F.2d 401, 402 (8th Cir. 1984); United States v. Cuni, 689 F.2d 1353, 1356 (11th Cir. 1982); United States v. Telfaire, 469 F.2d 552, 557-58 (D.C. Cir. 1972); United States v. Scott, 446 F.2d 509, 510 (9th Cir. 1971); People v. Green, 27 Cal. 3d 1, 36-39, 609 P.2d 468, 164 Cal. Rptr. 1 (1980); Scully v. State, 256 Ga. 683, 685, 353 S.E.2d 29 (1987); State v. Mayberry, 411 N.W.2d 677, 684 (Iowa 1987); Commonwealth v. Sowell, 22 Mass. App. 959, 961, 494 N.E.2d 1359 (1986); State v. Rhinehart, 68 N.C. App. 615, 619, 316 S.E.2d 118 (1984); State v. Sims, 13 Ohio App. 3d 287, 289, 469 N.E.2d 554 (1984).