text:
    Warren P. Joblin v. Myrna LaBow
    (11875)
    O’Connell, Lavery and Schaller, Js.
    Argued October 29
    decision released December 28, 1993

      Myrna LaBow, pro se, the appellant (defendant).

      Warren P. Joblin, pro se, the appellee (substitute plaintiff).
   Lavery, J.

The defendant appeals from the trial court’s denial of her motion to vacate a property execution issued to enforce a judgment against her. The defendant claims that the trial court improperly (1) permitted an assignee of a judgment to obtain a property execution and (2) substituted an assignee for the original party after judgment had entered. We affirm the judgment of the trial court.

This appeal arises out of the marriage dissolution of Myrna and Ronald LaBow granted in 1978. On April 24,1980, John W. Colleran, an attorney who represented the defendant during the dissolution, obtained a $15,720 judgment against her for unpaid legal fees. On February 22,1985, Colleran assigned that judgment to Warren P. Joblin, as trustee for an undisclosed beneficiary. By assignment, Colleran relinquished all claims to the judgment and appointed Joblin as his attorney-in-fact regarding this judgment.

On September 17, 1992, Joblin obtained a property execution against alimony owed to the defendant by her former husband, Ronald LaBow. The defendant moved to vacate the execution on October 6, 1992. After a hearing, the trial court denied the motion on October 27, 1992. On the same day, the trial court granted Joblin’s motion to be substituted for Colleran as plaintiff. This appeal resulted.

The defendant’s central claim on appeal is that the trial court improperly permitted an assignee of a judgment to obtain a property execution in satisfaction thereof. We resolved this issue in Mall v. LaBow, 33 Conn. App. 359, 635 A.2d 871 (1993). Judgments are assignable and the assignee assumes the right to collect on the judgment. Id., 362. The defendant’s claim must fail.

The defendant also claims that the trial court improperly granted Joblin’s motion to substitute. “ ‘The decision whether to grant a motion for . . . substitution of a party to legal proceedings rests in the sound discretion of the trial court. ... In reviewing the trial court’s exercise of that discretion, every reasonable presumption should be indulged in favor of its correctness . . . and only if its action discloses a clear abuse of discretion is our interference warranted.’ ” (Citations omitted.) Wickes Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 760, 596 A.2d 1331 (1991).

In general, substitution is permitted where an action was commenced in the name of the wrong person; General Statutes § 52-109; Practice Book § 101; in cases of misjoinder and nonjoinder; Practice Book § 100; and in cases of assignment. Practice Book § 96. In each situation, the statute or rule envisions substitution while the action is pending. See, e.g., General Statutes § 52-109 (substitution allowed “[w]hen any action has been commenced in the name of the wrong person”); Practice Book § 96 (substitution permissible “[i]f, pending the action, the plaintiff assigns the cause of action”). Where judgment has been rendered, however, substitution is unavailable unless the judgment is opened. First Federal Savings & Loan Assn. of Waterbury v. Mangan, 17 Conn. Sup. 42, 43 (1950).

In this case, Colleran obtained the judgment five years before the assignment and twelve years before the motion for substitution. Thus, Joblin should not have been substituted for Colleran.

This conclusion, however, does not alter the result. As we noted in Mall v. LaBow, supra, Joblin did not have to substitute himself for Colleran in order to collect on the judgment. Once assigned, the judgment could be enforced by the new judgment creditor, Joblin. Id. Therefore, even though the substitution was improper the result would be the same.

Before a party is entitled to a new trial because of an erroneous ruling, he or she must demonstrate that the error was harmful. Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990). In a civil case, the determining standard is whether the erroneous ruling would likely affect the result. Id. Because the result here would be unchanged, the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       This case was heard in conjunction with Mall v. LaBow, 33 Conn. App. 359, 635 A.2d 871 (1993). Although related, the two cases were considered, and have been reported, separately.

       See General Statutes §§ 52-352b (n) and 52-361a (f) regarding limitations on alimony subject to execution.

       The motion was actually entitled “Motion for change of venue motion to dismiss and/or motion to strike and/or vacate motion to substitute as party plaintiff and objection to motion to substitute as party plaintiff and special defenses to motion to substitute as party plaintiff and motion for cross claim and motion to strike, dismiss or vacate property execution application and exemption.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Paul Varszegi
    (10818)
    O’Connell, Foti and Cretella, Js.
    Argued October 28
    decision released December 3, 1993

      Paul Varszegi, pro se, the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Nicholas Bove, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant was initially charged with larceny in the first degree in violation of General Statutes §§ 53a-122 (a) (2) and 53a-119, and criminal coercion in violation of General Statutes § 53a-49 (a) (2). Following a jury trial, he was convicted of the lesser included offense of larceny in the third degree in violation of General Statutes § 53a-124 and acquitted of the coercion charge. The defendant appeals from his larceny conviction. The defendant claims that (1) there was insufficient evidence to support the larceny conviction and (2) the trial court’s jury instruction violated his constitutional rights to due process of law and a fair trial. We reverse.

The jury could have reasonably found the following facts. The defendant was the landlord of commercial property at 1372 Summer Street in Stamford. One of the defendant’s tenants was Executive Decisions Support, Inc., a computer software company headed by Catherine Topp. Topp, in her capacity as president of the company, personally signed the lease with the defendant. The lease contained a default clause authorizing the defendant to enter the tenant’s premises, seize the tenant’s personal property and sell it as a way of recovering unpaid rent or other charges. The defendant claimed Topp had failed to pay her rent for March, April and May, 1990.

On Saturday May 5, 1990, the defendant entered Topp’s office by picking the lock. He proceeded to remove two of Topp’s computers and attached printers. On Monday May 7, 1990, Topp arrived at work and noticed that the lock on her office door had been tampered with. Upon entering and noticing her computers were missing, Topp called the Stamford police. After the completion of an initial investigation at the scene by Officer Frank Pica, Topp telephoned the defendant, who admitted that he had taken her computers as a consequence of her failure to pay three months rent. Pica then took the phone from Topp and identified himself. The defendant advised Pica that he was Topp’s landlord and expressed his belief that his actions were proper and legal. Upon hearing this, Pica expressed doubt as to the lawfulness of the defendant’s conduct, at which point the defendant reiterated his belief that his actions were in accordance with his lease.

At this point, Pica called his supervisor, Sergeant Ralph Geter. Geter arrived shortly thereafter and telephoned the defendant, who again identified himself as Topp’s landlord and again admitted having taken the computers in question. Geter informed the defendant that he had no right under the law to confiscate Topp’s computer equipment and that he should make arrangements with Topp to return the goods. No such arrangements were made and the defendant sold the computers on May 23, 1990.

On May 25,1990, a detective contacted the defendant and inquired whether they could meet to discuss the matter as part of his investigation. As he had from the start, the defendant admitted during this telephone conversation that he had taken and retained the computers pursuant to his lease. On June 6, 1990, the defendant met with the detective at the Stamford police station and was asked for a formal statement. The defendant requested an attorney and the conversation ended. The defendant was subsequently arrested on June 28, 1990.

The defendant first claims that the state did not prove beyond a reasonable doubt that he was guilty of larceny. It is fundamental jurisprudence that the state bears the burden of proof beyond a reasonable doubt of each essential element of the crime charged. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978).

“When a claim on appeal challenges the sufficiency of the evidence, we undertake a two-part task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. King, 216 Conn. 585, 600, 583 A.2d 896 (1990); State v. Glenn, 30 Conn. App. 783, 791, 622 A.2d 1024 (1993).

Larceny is defined in General Statutes § 53a-119 as follows: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...” This crime has three elements and all three must be established beyond a reasonable doubt. It must be shown that (1) there was an intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner. This appeal focuses on the elements of “intent” and “wrongfully.” Because larceny is a specific intent crime, the state must show that the defendant acted with the subjective desire or knowledge that his actions constituted stealing. A specific “intent to deprive another of property or to appropriate the same to himself ... is an essential element of larceny . . . and as such must be proved beyond a reasonable doubt by the state.” (Internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 356 (1985).

“The ‘animus furandi,’ or intent to steal, is an essential element of the crime of larceny at common law.” 50 Am. Jur. 2d, Larceny § 35 (1970). Hornbook law articulates the same premise. “Since the taking must be with felonious intent . . . taking under a bona fide claim of right, however unfounded, is not larceny. . . . [Although ignorance of the law is, as a rule, no excuse, it is an excuse if it negatives the existence of a specific intent. Therefore, even if the taker’s claim of right is based upon ignorance or mistake of law, it is sufficient to negative a felonious intent. A fortiori, a mistake of fact, if it is the basis of a bona fide claim of right, is sufficient.” J. Miller, Handbook of Criminal Law (1934) § 114 (a), p. 367; see also 2 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 8.5 (a), p. 358.

“One who takes property in good faith, under fair color of claim or title, honestly believing that ... he has a right to take it, is not guilty of larceny even though he is mistaken in such belief, since in such case the felonious intent is lacking. . . . The general rule applies . . . to one who takes it with the honest belief that he has the right to do so under a contract . . . .” 50 Am. Jur. 2d 203, Larceny § 41 (1970).

Particularly apposite to the present case is the comment in American Jurisprudence that, “[i]t is generally held that because of lack of a felonious intent, one is not guilty of larceny who, in the honest belief that he has the right to do so, openly and avowedly takes the property of another without the latter’s consent, as security for a debt bona fide claimed to be due him by the owner, or even to apply or credit it to the payment thereof.” Id., 205-206.

“A defendant who acts under the subjective belief that he or she has a lawful claim on property lacks the required felonious intent to steal. Such a defendant need not show his mistaken claim of right was reasonable, since an unreasonable belief that he had a right to take another’s property will suffice so long as he can establish his claim was made in good faith.” 50 Am. Jur. 2d, Larceny § 41 (1993 Sup.), relying on People v. Romo, 220 Cal. App. 3d 514, 269 Cal. Rptr. 440 (1990).

Connecticut case law is consistent with other jurisdictions and the text writers quoted herein. As far back as 1902, our Supreme Court recognized that the mere taking of another’s property was not sufficient to prove larceny. The taking must be accompanied by a felonious intent to deprive the owner of its use. If a person takes property in the honest, though mistaken belief, that he has a right to do so, he has not committed larceny. State v. Main, 75 Conn. 55, 57, 52 A. 257 (1902).

Our Supreme Court has also considered the scenario of a landlord who, like the defendant in the present case, seizes his tenant’s property as security for a debt. State v. Sawyer, 95 Conn. 34, 35-36, 110 A. 461 (1920). In Sawyer, a landlady took possession of a tenant’s handbag on the ground that the tenant was liable to her for damage done to the demised premises. The court held that the defendant had not committed a larceny because she believed that her claim justified refusal to return the handbag unless the tenant paid for the damage. Id., 38. The court based its decision on the absence of felonious intent and the presence of a color of right. The court held that “[o]ne is not guilty of theft without consciousness of the wholly unlawful and inexcusable nature of his act. The grave character of the necessary intent makes that clear. His belief in his right to take the thing involved, even though a mistaken belief, or one entertained upon insufficient grounds, is essentially inconsistent with the presence of an intent to steal, and the terms ‘colour of right or excuse’ obviously demand a construction consonant with that point of view.” (Emphasis added.) Id. The Sawyer court supported its decision with a citation from 2 Bishop’s New Crim. Law (8th Ed.) § 849, p. 496. “ ‘[0]ne who takes another’s goods to compel him, though in an irregular way, to do what the law requires him to do with them — namely, pay his debt — is on no legal principle a felon, though doubtless he is a trespasser. ... In reason, one has no more privilege to steal the effects of his debtor than those of any other person. But a trespass is not theft, except when done with felonious intent. And he who carries away a thing openly, and not clandestinely, to enforce a just claim, not for fraud, not to injure the owner, but to compel him to do what the law requires, is not a thief, whatever the extent of the wrong viewed otherwise.’ ” State v. Sawyer, supra, 39.

In the present case, the defendant claims that he did not possess the specific felonious intent to commit larceny but rather acted in good faith pursuant to a lease that gave him, as the landlord, authority to enter the premises, impound the lessee’s property, sell it and apply the proceeds to the unpaid rent or other charges. The state claims that it introduced evidence from which the jury could reasonably have inferred that the defendant intended to steal the computer equipment.

We hold that there was insufficient evidence introduced at trial to prove that the defendant knew that he had no right to take the lessee’s computers. During the initial phone conversation with Topp, the defendant made no attempt to conceal either his identity or that he had in fact taken the computers. The defendant emphatically stated during this conversation that the default clause in the lease provided him with the authority to impound her property based on her failure to pay the three months rent due. Moreover, the officers testifying at trial each stated that the defendant never wavered from his contention that his actions were lawful, even when faced with the threat of criminal prosecution. The defendant’s unfaltering and consistent statements to all parties involved that he acted in good faith in seizing Topp’s computers were not contradicted by the testimony of any witness.

The state cites State v. Banet, 140 Conn. 118, 98 A.2d 530 (1953), in support of its claim that the defendant possessed the requisite criminal intent. In Banet, the defendant, a used car dealer, signed over to a finance company to whom he was indebted all of his interest in a number of retail sales installment contracts. Id., 120-21. After two purchasers defaulted, the defendant was found guilty of wrongfully repossessing their vehicles in violation of the assignment agreement. In rejecting the defendant’s claim that he believed in good faith that he had a right to retake the automobiles, the court held that the state had introduced evidence showing the defendant knew that his actions were unlawful. This knowledge was evidenced by the assignment agreement itself, which explicitly transferred title to the automobiles to the finance company. Furthermore, the court viewed the finance company’s refusal to sign a postassignment agreement whereby the defendant attempted to retain the right to repossess the vehicles as strong proof that the defendant knew that his actions were illegal. Id., 122-23.

Unlike Banet, the defendant’s claim that he acted in good faith was not countered by any evidence, direct or circumstantial, that he intended to steal the computers. The state contends, however, that the defendant’s weekend entry into Topp’s office by picking the lock and his subsequent impounding of the computers without leaving a note was enough evidence from which the jury could have reasonably found the requisite intent. Significantly, none of the foregoing evidence contradicted the defendant’s claim that he acted in good faith in taking the computers based on the default clause in the lease. In fact, the defendant testified that he entered the office on the weekend so as to avoid an awkward confrontation. When asked by Topp where the computers were on the following Monday, the defendant concealed nothing. Notwithstanding the state’s claim to the contrary, the record is devoid of any evidence that the jury could have reasonably relied upon in finding the defendant acted with the requisite culpability. The state's bald and conclusory assertion that the jury simply rejected the defendant’s consistent claim that the rental agreement served as justification for his action is not enough to prove beyond a reasonable doubt the specific intent requirement for larceny.

Moreover, the state contends that even if the defendant believed in good faith that he had the right to take his tenant’s personal property to secure overdue rent payments, once he was told by three members of the police force that he was acting illegally, he could no longer reasonably maintain an honest though mistaken belief that he was acting lawfully. We do not agree. Police officers are not imbued with the authority or prerogative to declare provisions of civil contracts void, thereby converting good faith to a felonious intent.

In its brief, the state argues that the passage of time since the Sawyer case has dimmed its effect and suggests that we disregard it as a precedent. Even if we agreed that in some instances time may diminish a precedent, the present case would not be an appropriate situation in which to apply such theory. The felonious taking requirement has not given way to more modern legal concepts. “Although the present statute has broadened the scope of larceny, the element of intent has been retained from the prior statute and case law. Larceny continues to require ‘the existence of a felonious intent in the taker . . . .’ ” State v. Marra, 174 Conn. 338, 342, 387 A.2d 550 (1978). Furthermore, in drafting General Statutes § 53a-119, the penal code commission expressly referred to Sawyer. “The question of wrongfulness is meant to incorporate and to be read in the light of the common law standards enunciated in such cases as . . . State v. Sawyer, [supra].” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969), p. 39.

We agree with the defendant that there was insufficient evidence to support his conviction of larceny in the third degree. Because our decision on the defendant’s first claim is dispositive of the appeal, we do not reach the defendant’s second claim.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty of larceny in the third degree.

In this opinion the other judges concurred.

       General Statutes § 53a-122 (a) (2) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds property from an owner. ...”

       General Statutes § 53a-124 provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and . . . (2) the value of the property or service exceeds one thousand dollars . . . .”

       Paragraph twelve, section (b) of the defendant’s lease reads as follows: “If Lessee defaults under this Lease, Lessor may without further notice to the Lessee: (i) terminate this Lease; (ii) re-enter and take possession of the Leased Premises, remove all persons and property therefrom and disconnect any telephone lines installed for the benefit of Lessee, all without being deemed to have committed any trespass; (Hi) impound Lessee’s property and sell it at auction or private sale, applying the proceeds thereof to any unpaid rent or other charges, including costs of collection, and holding the Lessee responsible for any deficiency; (iv) recover, in addition to any rent and other charges already due and payable, all rent for the entire unexpired balance of the Term of this Lease and all costs incurred by Lessor to recover such sums from Lessee, including reasonable attorney’s fees. All rights and remedies of Lessor under this Lease shall be cumulative and in addition to any other rights or remedies available at law or in equity.” (Emphasis added.)


author: Heiman, J.

text:
    William V. Gabrielle v. Hospital of St. Raphael et al.
    (11346)
    Lavery, Landau and Heiman, Js.

      Argued November 1, 1993
    decision released January 4, 1994

      Lawrence S. Dressier, with whom, on the brief, was Howard Lawrence, for the appellant (plaintiff).

      Merton G. Gollaher, Jr., with whom, on the brief, was Jeremy G. Zimmermann, for the appellees (defendants).
   Heiman, J.

The plaintiff appeals from the summary judgment rendered in favor of the defendants. The plaintiff asserts that the trial court improperly rendered the summary judgment because (1) by its action, the trial court, in effect, set aside the plaintiff’s automatic ninety day extension of the statute of limitations that had been granted by the clerk, (2) the defendants should have been required to appeal from the granting of the ninety day extension of time, (3) it improperly found that the automatic extension of time does not provide an automatic suspension of the running of the statute of limitations, and (4) it refused to set aside the summary judgment rendered in favor of both defendants. We are unpersuaded by these claims and affirm the judgment of the trial court.

The following facts are necessary to a proper resolution of this appeal. On April 26, 1989, the plaintiff was treated by the defendant physician, Anthony Coppola, at the defendant Hospital of St. Raphael for lacerations to his hand from a shattered glass bottle. He was seen by Coppola at the emergency facility of the defendant hospital.

By petition dated May 24,1991, a date after the two year period of limitations provided for in General Statutes § 52-584, the plaintiff sought an automatic extension of the statute of limitations pursuant to General Statutes § 52-190a. The petition itself alleged that “[t]he statute of limitations would have run on April 26, 1991.” The clerk of the Superior Court for the judicial district of New Haven granted the petition on July 11, 1991.

The writ, summons and complaint in this action were dated July 11, 1991, with a return day of August 20, 1991. The writ was served on an agent of the defendant hospital on July 12, 1991, and service was completed by in hand service on the defendant Coppola on July 23,1991. Thus, the last service was made eighty-eight days after the expiration of the two year period of limitations.

The defendants filed an answer together with a special defense that asserted that the plaintiffs claims were barred by General Statutes § 52-584. The plaintiff denied the allegations of the special defense. Upon the closing of the pleadings, the defendants filed a motion for summary judgment, the granting of which is the genesis of this appeal. The trial court held, as a matter of law, that the extension provided for in General Statutes § 52-190a (b) must be requested prior to the expiration of the statute of limitations. Since the petition for the extension was filed after the expiration of the statute of limitations, the trial court granted the defendants’ motion for summary judgment. We agree and affirm the judgment of the trial court.

I

Although the plaintiff appears to raise four separate issues on appeal, three of these issues are merely variations on the same theme: a claim that the filing of a petition pursuant to General Statutes § 52-190a (b) revives an action already time barred by General Statutes § 52-584.

We begin our analysis by stating the standard by which we review the decision of the trial court in granting a motion for summary judgment. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993); Danziger v. Shaknaitis, 33 Conn. App. 6, 9, 632 A.2d 1130 (1993). Although the burden of showing the nonexistence of any material fact is on the party seeking summary judgment, “the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . .” (Internal quotation marks omitted.) Danziger v. Shaknaitis, supra; Nardi v. AA Electronic Security Engineering, Inc., 32 Conn. App. 205, 209, 628 A.2d 991 (1993); Cortes v. Cotton, 31 Conn. App. 569, 572-73, 626 A.2d 1306 (1993). In deciding motions for summary judgment, the trial court is obligated to construe the evidence in the light most favorable to the nonmoving party. Scrapchansky v. Plainfield, supra; Nardi v. AA Electronic Security Engineering, Inc., supra. The test to be applied is whether a party would be entitled to a directed verdict on the same facts. Danziger v. Shaknaitis, supra, 10; Cortes v. Cotton, supra.

The plaintiff argues that § 52-190a (b) automatically generates a stay upon the filing of a petition. He further claims that even where such petition is filed subsequent to the expiration of the statute of limitations, the filing of the petition has the effect of reviving an action that is already time barred by the failure to commence suit within the period of limitations. We are not persuaded.

The general purpose of § 52-190a “is to discourage the filing of baseless lawsuits against health care providers.” LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990); Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 502, 602 A.2d 1040 (1992). The lack of a certificate of good faith is not a jurisdictional defect and thus does not deprive the court of subject matter jurisdiction. LeConche v. Elligers, supra, 713. Our cases explain that the failure to attach a certificate of good faith pursuant to § 52-190a subjects the case to a motion to strike the complaint pursuant to Practice Book § 152 (l) for failure to state a claim upon which relief can be granted, but that the defect is curable by a timely amendment filed pursuant to Practice Book § 157 or Practice Book § 175. Id., 711; Yale University School of Medicine v. McCarthy, supra. Thus, the requirement of filing a certificate does not mandate that the statute of limitations for malpractice actions be treated different from other statutes of limitations.

Statutes of limitations are statutes of repose and are designed to “(1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise.” Ecker v. West Hartford, 205 Conn. 219, 240, 530 A.2d 1056 (1987); Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 808-809, 623 A.2d 66, cert. granted, 226 Conn. 907, 625 A.2d 1379 (1993). A statute of limitations normally acts as a bar to a remedy otherwise available. Ecker v. West Hartford, supra, 232. Given the rationale for enactment of statutes of limitations, the legislature may even enact a statute that may, on occasion, bar an action before the cause of action accrues. Zapata v. Burns, 207 Conn. 496, 509, 542 A.2d 700 (1988). Statutes of limitations are legislative enactments that “prescribe the periods within which actions may be brought upon certain claims or within which certain rights may be enforced. ” Bridgeport v. Debek, 210 Conn. 175, 184, 554 A.2d 728 (1989).

Section 52-584 mandates that no action to recover for the alleged malpractice of a hospital or physician shall be brought but within two years from the date when the injury is first sustained or discovered, except under certain circumstances where the time may be enlarged. Failure to bring suit within the period of limitations bars the action. See Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984). The General Assembly in enacting § 52-584 has ordained that one must assert an action in malpractice within two years or be barred. Id. On the face of the pleadings, including the petition filed under § 52-190a (b), the plaintiff failed to meet the requirements of the statute of limitations.

Nothing in the language of § 52-190a (b) supports a claim that the General Assembly intended to permit the use of a late filed petition for an automatic extension as a vehicle to revive an already expired statute of limitations. To reach such a result would require that we torture the clear language of both statutes. We have often stated that in the field of statutory interpretation, “[t]he law favors rational and sensible statutory construction.” Lundgren v. Stratford, 12 Conn. App. 138, 146, 530 A.2d 183, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987). “When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results.” Id., quoting Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958). Further, “[i]n analyzing the plain language [of the statute] the terms must be interpreted according to their ordinary meaning unless their context dictates otherwise.” Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988).

Our case law, in interpreting statutes of limitations, has consistently held that failure to bring an action within the time limitation bars the cause of action. See, e.g., Bridgeport v. Debek, supra; Burns v. Hartford Hospital, supra. “In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.” United Technologies Corp. v. Groppo, 220 Conn. 665, 680, 600 A.2d 1350 (1991); Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 481, 542 A.2d 692 (1988). To adopt the interpretation of § 52-190a (b) urged upon us by the plaintiff would constitute a substantial and radical departure from the legislative mandate of creating a finality to causes of action. See Zapata v. Burns, supra, 508. Nothing in the language of General Statutes § 52-190a indicates that the General Assembly intended to extend or in any way to affect the applicable statute of limitations. See Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 412, 456 A.2d 325 (1983).

The plaintiffs claim that § 52-190a permitted a revival of an already expired statute of limitations is thus without merit.

II

We next turn to the only claim of the plaintiff not subsumed by our discussion under part I, the claim that the trial court improperly denied the motion of the plaintiff to set aside the summary judgment. We are unpersuaded.

Certain additional facts are pertinent to a proper resolution of this claim. On July 6, 1992, the plaintiff filed a “Motion To Set Aside Judgment.” In the motion, the plaintiff, for the first time, claimed that counsel had recently been advised that the plaintiff “had not discovered that he had an actionable claim until after the date of June 1, 1989.” He then claimed that the statute would thus not have expired until “(at the earliest) on the date of June 1,1991.” The affidavit attached to the motion made the bare assertion by the plaintiff that “I had not discovered that my injuries, losses and damages were caused by the negligence and carelessness of the defendant Anthony Coppola, M.D. until after the date of June 1,1989.” The trial court denied the motion to set aside the judgment.

We first note that we are unpersuaded that the fact that the plaintiff may have discovered the existence of the cause of action after June, 1989, was newly discovered evidence as that term is technically used and understood. For evidence to be newly discovered, it must be of such a nature that could not have been earlier discovered by the exercise of due diligence. Asherman v. State, 202 Conn. 429, 435, 521 A.2d 578 (1987); Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983). Thus, the simple allegations of the motion that the plaintiff did not actually discover the damages failed to establish that the plaintiff’s evidence was in fact “newly discovered.”

The decision to open or set aside judgments pursuant to Practice Book § 326 is left to the discretion of the trial judge. Jaconski v. AMF, Inc., 208 Conn. 230, 237-38, 543 A.2d 728 (1988). Our review is thus limited to determining whether the trial court has abused its discretion in denying the motion to open or set aside the judgment. Id., 238.

Our review of the record indicates that the trial court acted well within its discretion in denying the plaintiffs motion to set aside the judgment since the plaintiff failed to allege a reason upon which the court could reasonably act.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the Hospital of St. Raphael and physician Anthony Coppola. The trial court rendered summary judgment in favor of both defendants and the plaintiff appeals as to each.

       The record reflects that the caption of the petition read: “WILLIAM GABRIELE vs. HOSPITAL OF ST. RAPHAEL, ET AL” The body of the petition, however, indicated that the plaintiff was about to “commence an action to recover damages against a Health Care Provider; to wit Yale New Haven Hospital and one of its staff physicians and one of its nurses.” The defendants conceded at oral argument that they had notice of the petition.

       General Statutes § 52-584 provides in pertinent part: “No action to recover damages for injury to the person . . . caused by . . . malpractice of a physician, surgeon . . . hospital or sanitorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       General Statutes § 52-190a provides: “(a) No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1,1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, of a similar health care provider as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears

        to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney submitted the certificate.
      “(b) Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods.”

       See footnote 3.

       The plaintiff, in his brief, set forth the following issues:

        “(1) Did the trial court . . . commit reversible error in setting aside the plaintiff-appellant’s automatic ninety-day extension which was granted by the court clerk on May 11, 1991 (sic) pursuant to Section 52-190a (b) of the Connecticut General Statutes?
      “(2) Did the trial court . . . commit reversible error in ruling on the defendant-appellee’s motion for summary judgment as the defendant’s proper remedy was by way of appeal?
      “(3) Did the trial court . . . commit reversible error in ruling that Section 52-190a does not provide for a ninety-day tolling period that automatically suspends the running of the applicable two year statute of limitations?
      “(4) Did the trial court . . . commit reversible error in refusing to set aside summary judgment?”

       The three issues are: “(1) Did the trial court . . . commit reversible error in setting aside the plaintiff-appellant’s automatic ninety-day extension which was granted by the court clerk on May 11, 1991 [sic] pursuant to Section 52-190a (b) of the Connecticut General Statutes?
      “(2) Did the trial court . . . commit reversible error in ruling on the defendant-appellee’s motion for summary judgment as the defendant’s proper remedy was by way of appeal? and
      “(3) Did the trial court . . . commit reversible error in ruling that Section 52-190a does not provide for a ninety-day tolling period that automatically suspends the running of the applicable two year statute of limitations?”

       Practice Book § 152 provides in pertinent part: “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof.”

       Practice Book § 157 provides: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”

       Practice Book § 175 provides: “The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day.”


author: Dupont, C. J.

text:
    CTB Realty Ventures XXII, Inc. v. George J. Markoski et al.
    (12257)
    Dupont, C. J., Lavery and Heiman, Js.
    Argued October 28, 1993
    decision released January 4, 1994

      Daniel N. Mara, for the appellant (plaintiff).

      Patrick W. Boatman, with whom, on the brief, was Martha C. Rainey, for the appellees (defendants).
   Dupont, C. J.

The plaintiff appeals from the trial court’s granting of the defendants’ motion for summary judgment and its denial of the plaintiff’s motion for summary judgment. The plaintiff claims that the trial court improperly concluded that General Statutes §§ 49-1 and 49-14 barred the plaintiff from foreclosing the defendants’ mortgage. We affirm the judgment of the trial court.

The trial court found that the defendants, George J. Markoski and Bianca V. Markoski, granted a mortgage deed on property they owned in Middletown to the Farmington Investment Company on October 18,1989. This mortgage was granted as additional security for a promissory note payable to Farmington Investment in the amount of $215,000 plus interest, signed by the defendants and the Nuclear Technology Corporation, and secured by Nuclear Technology’s mortgage on its Hebron real property. Farmington Investment represented to both mortgagors that it would seek payment of the note from Nuclear Technology’s property before it would pursue the property owned by the defendants. The note and mortgages were subsequently assigned to Centerbank and then assigned to the plaintiff. The plaintiff commenced foreclosure proceedings on the defendants’ Middletown property by a complaint dated September 17, 1991, based upon the failure of the makers to pay the note according to its terms. Nuclear Technology was not named as a party to the foreclosure action.

After the defendants asserted as a special defense Farmington Investment’s agreement to seek satisfaction of the indebtedness from Nuclear Technology’s property before that of the defendants, the plaintiff ceased its pursuit of a judgment of foreclosure against the defendants and, on October 16, 1991, instituted a second foreclosure action on Nuclear Technology’s mortgage of its Hebron property. The defendants here were not named as parties to that suit. The plaintiff obtained a judgment of strict foreclosure against Nuclear Technology’s Hebron property on August 10, 1992. The court found the debt on the note to be $289,501.39 and found the fair market value of the Hebron property to be $155,000. By operation of law, title to the property vested in the plaintiff on September 11, 1992. The plaintiff did not seek a deficiency judgment against Nuclear Technology. Instead, the plaintiff resumed its pursuit of a judgment in its foreclosure action against the defendants on October 1, 1992.

The defendants filed a motion for summary judgment on December 1, 1992, based on the plaintiff’s failure to seek a deficiency judgment against Nuclear Technology pursuant to General Statutes § 49-14 and the plaintiff’s failure to join the defendants in the Hebron property foreclosure. See General Statutes § 49-1. The plaintiff countered by filing a cross motion for summary judgment on December 31,1992. The trial court found that no genuine issues of material fact existed, and granted the defendants’ motion for summary judgment, necessarily denying the plaintiffs cross motion for summary judgment in the process. The plaintiff appeals from both the granting of summary judgment for the defendants and the denial of its own motion for summary judgment.

“ ‘When reviewing a trial court’s ruling on a motion for summary judgment, we must decide whether the trial court erred in determining that there was no “genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384; Mingachos v. CBS, Inc., 196 Conn. 91, 111, 491 A.2d 368 (1985); D.H.R. Construction, Inc. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980).’ Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 292-93, 596 A.2d 414 (1991).” West Haven v. Hartford Ins. Co., 221 Conn. 149, 155, 602 A.2d 988 (1992). Here, the parties agree as to the sequence of events underlying this action; their disagreement is predicated solely on the legal significance of the plaintiff’s failure to join the defendants as a party to the foreclosure of Nuclear Technology’s mortgage and its failure to obtain a deficiency judgment in that action. We thus need to determine only whether, on the basis of the uncontroverted facts, the defendants were entitled to summary judgment as a matter of law.

“Under General Statutes § 49-1, a judgment of strict foreclosure extinguishes all rights of the foreclosing mortgagee on the underlying note, except those enforceable through the use of the deficiency judgment procedure delineated in General Statutes § 49-14. . . . Such a deficiency judgment, in light of § 49-1, is, therefore, the only available means of satisfying a mortgage debt when the security is inadequate to make the foreclosing plaintiff whole. Simsbury Bank & Trust Co. v. Ray Carlson Lumber Co., 154 Conn. 216, 219, 224 A.2d 544(1966) . . . .” First Bank v. Simpson, 199 Conn. 368, 370-71, 507 A.2d 997 (1986); see also Eichman v. J & J Building Co., 216 Conn. 443, 448, 582 A.2d 182 (1990).

By its terms, General Statutes § 49-1 is applicable to “persons . . . who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure . . . .” Here, since there has been no showing that service of process could not have been made upon the defendants at the commencement of the foreclosure action against Nuclear Technology, the statutory prohibition against further action on the mortgage debt or note by the plaintiff operates to protect the defendants.

The plaintiff argues that § 49-1 does not bar its foreclosure action against the defendants because the plaintiff is not seeking a deficiency in this case, but is merely seeking to continue its claims against remaining collateral. This argument is unpersuasive. It is undisputed that both mortgages involved in this case were granted as security for the same promissory note, which both mortgagors signed as comakers. Although the agreement between Farmington Investment and the defendants provided that the indebtedness would be satisfied from Nuclear Technology’s mortgaged property before that of the defendants, the latter were still primarily liable on the note, as they possessed no rights of indemnification against Nuclear Technology, and were solely responsible for any amount due on the note that Nuclear Technology could not satisfy.

Nothing in § 49-1 indicates that a mortgagee’s pledge to forbear foreclosure on one mortgagor until the collateral of another mortgagor has been appropriated affects in any way the applicability of the statute. The statutory scheme would not be furthered if the plaintiff’s argument were to be accepted. By their not being named in the suit against Nuclear Technology, the defendants were prejudiced because they could not participate in the determination of the method of foreclosure and had no control over the ascertainment of the fair market value of the property, and, therefore, the amount still due the plaintiff. The foreclosure on the defendants’ property by the plaintiff was an action upon the same note that underlay the foreclosure on Nuclear Technology’s property, and thus fell within the prohibitory scope of § 49-1.

Once the judgment of foreclosure was entered against Nuclear Technology, General Statutes § 49-14 became the only available means of further recovery on the note available to the plaintiff against either Nuclear Technology or the defendants. Section 49-14 requires that the party seeking a deficiency judgment file a motion within thirty days after the time limited for redemption has expired. At a hearing on the motion, the court then establishes a valuation for the mortgaged property as of the date title became vested in the mortgagee and determines whether a deficiency judgment should be awarded. Di Diego v. Zarro, 19 Conn. App. 291, 294, 562 A.2d 555 (1989); Maresca v. DeMatteo, 6 Conn. App. 691, 694, 506 A.2d 1096 (1986). The burden is on the plaintiff to provide the court with sufficient evidence to demonstrate that it is entitled to a deficiency judgment. Eichman v. J & J Building Co., supra, 450.

Here, title to the Hebron property vested in the plaintiff on September 11,1992. The plaintiff thus had thirty days from that date to file a motion seeking a deficiency judgment against any other party liable on the note who could have been joined in the foreclosure action. Fac tor v. Fallbrook, 25 Conn. App. 159, 163, 593 A.2d 520, cert. denied, 220 Conn. 908, 597 A.2d 332 (1991); Maresca v. DeMatteo, supra. At the time the plaintiff brought the foreclosure action against Nuclear Technology, “a cause of action for a deficiency judgment existed . . . because the defendants had already defaulted in payment of the note . . . .” People’s Bank v. Bilmor Building Corp., 28 Conn. App. 809, 816, 614 A.2d 456 (1992). It is undisputed that the plaintiff did not file a motion for a deficiency judgment within thirty days after the time limit for redemption of the real estate had expired. Consequently, it is barred from establishing a deficiency judgment on the promissory note under § 49-14 against either Nuclear Technology or the defendants.

The plaintiff’s failure to join the defendants in its foreclosure suit against Nuclear Technology as required by § 49-1 and its failure to seek a deficiency judgment pursuant to § 49-14 precludes it from proceeding any further against the defendants on the promissory note.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-14 provides in pertinent part: “(a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. ... At such hearing [which this statute requires on the motion] the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiff’s claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       General Statutes § 49-1 provides in pertinent part: “The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure . . . .”

       Although the denial of a motion for summary judgment is not a final judgment and thus is not ordinarily appealable; see Practice Book § 4000; Gurliacci v. Mayer, 218 Conn. 531, 541 n.7, 590 A.2d 914 (1991); Green-garden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d 1043 (1988); the rationale for this rule is not applicable where both sides have filed motions for summary judgment and the court has granted one of them. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295 n.12, 596 A.2d 414 (1991). Thus, we may consider both of the summary judgment rulings contested by the plaintiff on appeal.

       “Prior to 1957, a foreclosing mortgagee could recover the difference between the value of the foreclosed property and the debt either by proceeding for a deficiency judgment under what is now [General Statutes] § 49-14 or by a separate suit on the mortgage debt, note or obligation against anyone liable thereon who had been made a party to- the foreclosure action. . . . Public Act No. 443 of the 1957 Session (now General Statutes § 49-1) drastically changed the rights of a foreclosing mortgagee proceeding under the second alternative by prohibiting any further action on the mortgage obligation against a person liable thereon except against those upon whom in personam service could not have been made at the commencement of the foreclosure action.” (Citations omitted.) Simsbury Bank & Trust Co. v. Ray Carlson Lumber Co., 154 Conn. 216, 219-20, 224 A.2d 544 (1966).

       The parties both discussed in their briefs an unreported Superior Court decision in which the plaintiff was allowed to bring multiple foreclosure actions against the same defendant without first having obtained a deficiency judgment. There, however, the defendant was named as a party in each of the foreclosure actions. Bank of Hartford v. Sereno, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 385190 (August 3, 1992). That case is therefore distinguishable on its facts, and does not apply here.

       It has long been the law of this state that the right of a mortgagee to seek a deficiency judgment “has been conditioned upon the making of the person or persons liable for the payment of the deficiency, parties to the foreclosure suit.” Wilcox v. Bliss, 116 Conn. 329, 332, 164 A. 569 (1933); see Bugg v. Guilford-Chester Water Co., 141 Conn. 179, 182, 104 A.2d 543 (1954); Bergin v. Robbins, 109 Conn. 329, 333, 146 A. 724 (1929).


author: Lavery, J.

text:
    Hartford Postal Employees Credit Union, Inc. v. Kimberly Rosemond
    (11801)
    Lavery, Heiman and Schaller, Js.

      Argued October 29, 1993
    decision released January 4, 1994

      David M. Kutzner, for the appellant (plaintiff).

      Kimberly Rosemond, pro se, the appellee (defendant).
   Lavery, J.

The plaintiff judgment creditor, Hartford Postal Employees Credit Union, Inc., appeals from the judgment of the trial court vacating a wage execution against the defendant judgment debtor, Kimberly Rosemond. The plaintiff asserts on appeal that the trial court improperly (1) ignored the parties’ stipulated modification of the wage execution and (2) vacated the execution on a motion to modify. We agree with the plaintiff and reverse the trial court’s order.

On March 26,1991, the trial court rendered judgment for the plaintiff in the amount of $4386.07. In accordance with a stipulation of the parties, the judgment ordered the defendant to pay the plaintiff $130 monthly. The defendant made payments through November, 1991, skipped the December payment, made the January, 1992 payment and a partial payment the following April. She made no subsequent payments.

In August, 1992, the plaintiff obtained a wage execution and served the defendant’s employer, who established that $151.95 biweekly or $79.98 weekly would be withheld from the defendant’s pay pursuant to General Statutes § 52-361a. The defendant moved to modify the wage execution to $30 per week. The trial court scheduled a hearing on the defendant’s motion for September 21, 1992.

Prior to the hearing, the parties signed a stipulation modifying the execution to $30 per week and submitted it to the court. Through a clerical error, however, the court inadvertently recorded the stipulation as modifying the order to $35 per week. At the hearing on her motion to modify, held to correct the order entered in error, the defendant ignored the parties’ stipulation and asked the court to vacate the execution entirely. After hearing argument by the plaintiff and the defendant, but without taking any evidence, the court vacated the execution and ordered the defendant to pay directly to the plaintiff’s counsel $30 per week.

The plaintiff claims that the trial court failed to satisfy the statute authorizing modification of wage executions. General Statutes § 52-361a (h), entitled “Modification,” provides: “Either party may apply at any time to the court which issued the wage execution for a modification of the execution. After notice and hearing or pursuant to a stipulation, the court may make such modification of the execution as is reasonable.” Although the court had before it the parties’ stipulation, the court did not modify the execution “pursuant to [the] stipulation.” Although stipulations are not binding, they ordinarily should be adopted by the court. Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 438, 606 A.2d 729 (1992). Where stipulations are not adopted, the court should provide the parties an opportunity to present evidence, and state for the record the reason for its disapproval of the stipulation. Id. Neither procedure was followed here.

The record also reveals that the court heard argument but did not take evidence or sworn testimony. The court had before it a motion to modify, the granting of which, under § 52-361a (h), was a discretionary act to be based on reasonableness. This requires findings based on evidence. See People’s Bank v. Perkins, 22 Conn. App. 260, 263-64, 576 A.2d 1313, cert. denied, 216 Conn. 813, 580 A.2d 58 (1990). Since no evidence was presented and the stipulation was not accepted, the trial court failed to comply with § 52-36la (h). A new hearing is required. An issue that may arise on rehearing is whether the power to modify a wage execution includes the power to vacate the execution. We hold that the trial court cannot vacate a wage execution on a motion to modify. The statutory scheme of postjudgment remedies set forth in chapter 906 of the General Statutes balances the equities between judgment creditors and judgment debtors. Thus, although the issuance of a wage execution is mandatory; General Statutes § 52-361a (b); executions are limited in number and amount. General Statutes § 52-361a (f). This equitable balance ensures satisfaction of the judgment while permitting the debtor to use residual earnings “ ‘for the support of himself and his family or for any other proper purpose.’ ” Sienkiewicz v. Sienkiewicz, 178 Conn. 675, 679, 425 A.2d 116 (1979), quoting General Tires, Inc. v. United Aircraft Corp., 143 Conn. 191, 196, 120 A.2d 426 (1956).

Under chapter 906, when a judgment is rendered against a natural person, either the judgment creditor or the judgment debtor may move for an order of instalment payments. General Statutes § 52-356d (a). After a hearing and in consideration of the judgment debtor’s financial circumstances, the court may order instalment payments reasonably calculated to satisfy the judgment. General Statutes § 52-356d (a). If the judgment debtor fails to comply with the ordered instalment payments, the judgment creditor may apply for a wage execution. General Statutes § 52-361a (a). On application by a judgment creditor, issuance of a wage execution is mandatory. General Statutes § 52-361a (b). If the judgment debtor fails to claim an exemption during an automatic twenty day stay, the execution goes into effect. General Statutes § 52-361a (d). Only one execution can be satisfied at any one time; priority of executions is determined by the order of their presentation to the employer. General Statutes § 52-361a (f). Finally, either party may ask the court to modify the execution. General Statutes § 52-361a (h).

Modification has been defined as “[a] change; an alteration or amendment which introduces new elements into the details or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.” Black’s Law Dictionary (6th Ed. 1990) p. 1004. Conversely, to vacate is to “annul; to set aside; to cancel or rescind. . . .” Id. The statutory scheme of post judgment remedies envisions modification based on the judgment debtor’s financial circumstances. See General Statutes § 52-36la (h) (permitting reasonable modification). Nothing in the statutes, however, permits canceling or rescinding a wage execution. Modification under the statute clearly means to increase or decrease in light of the judgment debtor’s financial circumstances.

Moreover, permitting a trial court to vacate an execution on a motion to modify would inequitably disturb the priority of wage executions. Because only one execution may be satisfied at a time, and because priority is determined by presentation to the employer, a judgment debtor could have a wage execution vacated in response to a motion to modify, thereby sending the judgment creditor to the end of the line. It would be unfair for a judgment creditor to have its wage execution vacated and then have wage executions of other judgment creditors take priority over its judgment.

Finally, the power to vacate a wage execution in response to a motion to modify would be the discretionary power to cancel the issuance of an execution. Issuing a wage execution, however, is not discretionary, it is mandatory. General Statutes § 52-361a (b). Including the power to vacate within the power to modify would defeat the mandatory nature of § 52-361a (b). Therefore, we hold that the power to modify pursuant to § 52-36la (h) does not include the power to vacate.

The order of the trial court is reversed and the matter is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The amount subject to levy is limited to the lesser of 25 percent of disposable earnings or the excess of forty times the federal minimum hourly wage; only one execution can be satisfied at a time. General Statutes § 52-36la (f).
      The only exception to the limitation on amount is an execution for support of a wife or husband or a minor child. Such executions are unlimited. General Statutes § 52-362.

       General Statutes § 52-356d (a) provides: “When a judgment is rendered against a natural person, the judgment creditor or judgment debtor may move the court for an order for instalment payments in accordance with a money judgment. After hearing and consideration of the judgment debtor’s financial circumstances, the court may order instalment payments reasonably calculated to facilitate payment of the judgment.”

       General Statutes § 52-361a (a) provides in pertinent part: “If a judgment debtor fails to comply with an instalment payment order, the judgment creditor may apply to the court for a wage execution. . . .”

       General Statutes § 52-361a (b) provides: “On receipt of the application, a clerk of the superior court shall issue a wage execution against the judgment debtor, directed to a levying officer, to enforce payment of the judgment.”

       General Statutes § 52-361a (d) provides in pertinent part: “On service of the execution on the employer, the execution shall automatically be stayed for a period of twenty days and shall thereafter immediately become a lien and continuing levy on such portion of the judgment debtor’s earnings as is specified therein, provided if a claim is filed in accordance with subsection (d) of section 52-36lb within twenty days of such service on the employer, the stay shall continue until determination of the claim.”

       Concurrent executions are permissible, however, under General Statutes § 52-362. Further, “execution on wages for support pursuant to § 52-362 shall take precedence over any execution under the provisions of section 52-361 [now § 52-361a].” (Internal quotation marks omitted.) Sienkiewicz v. Sienkiewicz, 178 Conn. 675, 679, 425 A.2d 116 (1979).


text:
    Burritt Interfinancial Bancorporation v. Howard M. Wood III et al.
    (12007)
    O’Connell, Heiman and Freedman, Js.

      Argued October 4, 1993
    decision released January 4, 1994

      Michael M. Darby, with whom, on the brief, was James H. Howard, for the appellant (named defendant).

      John J. Graubard, with whom were Paula T. Yellman and, on the brief, Victoria Goodman of the New York bar, for the appellee (plaintiff).
   O’Connell, J.

In this mortgage foreclosure action, the defendant Howard M. Wood III appeals from the trial court’s order opening the judgment of strict foreclosure. The appeal presents the following issues: (1) does the automatic stay of the federal bankruptcy statute apply to an action against a codebtor, and (2) does the automatic stay apply in a foreclosure action against a nondebtor cotenant? We answer both questions in the negative and reverse the trial court’s order.

On June 21,1988, the defendant and Peter J. Sklat, Jr., held title to real estate at 506 Garden Street in Manchester as tenants in common. On that date, they mortgaged the property to Burritt Interfinancial Ban-corporation (bank) in a commercial transaction to secure a $500,000 loan. Sklat and the defendant defaulted on the mortgage payments and on August 22, 1991, the bank commenced this foreclosure. The trial court, Freed, J., rendered a judgment of strict foreclosure on March 30,1992, and ordered law days commencing April 27,1992, and ending May 1, 1992. The law days passed without redemption by Sklat, the defendant or any subsequent encumbrancer.

Unbeknownst to the bank or the defendant, sometime in February, 1992, Sklat had filed a petition under chapter 13 of the United States Bankruptcy Code, 11 U.S.C. § 1301 et seq. The bank learned of Sklat’s bankruptcy on April 13, 1992. Although this was prior to the expiration of the law days, the bank took no action to interrupt their running and, on May 1, 1992, title to the defendant’s one-half interest vested in the bank. On June 16, 1992, the bank filed a motion with the bankruptcy court seeking relief from the automatic stay of § 362 (a) of the bankruptcy code. This motion was granted on June 16, 1992, and thereafter, on August 28, the bank filed a motion to open the strict foreclosure judgment. The trial court, Dunn, J., granted the motion and opened the judgment of strict foreclosure on December 4,1992. The defendant argues that opening the foreclosure was improper because (1) the automatic bankruptcy stay did not apply to him and (2) when the law days elapsed without redemption, title to his undivided interest vested in the bank.

We first consider whether the automatic bankruptcy stay applies to actions against a defendant who is not a debtor in the bankruptcy proceeding. During the pendency of this appeal, we answered that question in Metro Bulletins Corp. v. Soboleski, 30 Conn. App. 493, 496-98, 620 A.2d 1314, cert. granted, 225 Conn. 923, 625 A.2d 823 (1993). “As a general rule, the filing of a . . . bankruptcy petition does not enjoin litigation against nondebtors.” Id., 496.

Metro recognized “limited authority for extending the stay to a nondebtor in special circumstances.” Id.; see A.H. Robins Co. v. Piccinin, 788 F.2d 994 (4th Cir.), cert. denied, 479 U.S. 876, 107 S. Ct. 251, 93 L. Ed. 2d 177 (1986). To benefit from such extension of the stay, the nondebtor must move for the extension in the bankruptcy court. Metro Bulletins Corp. v. Soboleski, supra, 497, and authorities therein cited. Because it would not have been in his best interest to do so, it is understandable that the defendant did not move for such an extension. It is significant that the bankruptcy trustee did not feel that the bankrupt’s estate required the protection of the extension of the stay to civil actions against the defendant. Consequently, the bankruptcy court’s order lifting the automatic stay referred only to Sklat. It did not mention the defendant because the stay never applied to his one-half interest. It is well established that a case against a bankrupt debtor and a nonbankrupt debtor, although stayed against the bankrupt debtor, may nevertheless proceed against the nonbankrupt debtor. Matter of Safeguard Mfg. Co., 25 Bankr. 415 (D. Conn. 1982); Royal Truck & Trailer, Inc. v. Armadera, 10 Bankr. 488 (N.D. Ill. 1981); Catania v. Catania, 26 Conn. App. 359, 362, 601 A.2d 543 (1992); Connecticut National Bank v. Foley, 18 Conn. App. 667, 668 n.1, 560 A.2d 475 (1989).

The bank agrees with the general principle of Metro, but argues that mortgage foreclosures are an exception to the general rule. We disagree.

The bank misconstrues the nature of a tenancy in common. Sklat and the defendant each held title to an undivided one-half interest in the property as tenants in common. “The interest of a tenant in common is as fully alienable as any other property interest and transfer does not require consent of cotenants. Thus a cotenancy may be transferred by deed, lease, mortgage, will, or intestate succession.” 4A R. Powell, The Law of Real Property (1993) § 602 (9). A tenant in common may sell or encumber his interest in the cotenancy without the consent of his cotenants, and may thus introduce a stranger into the cotenancy.

Our Supreme Court has ruled on the effect of a conveyance by one cotenant. “It is charged that it is void as being an attempt by one cotenant to convey his interest without the consent of his cotenants. We know of no rule of law which leads to that result. The grantor quitclaimed all of his interest in the property. He did not undertake to convey a part in severalty, thus seeking to accomplish a division by his own unaided act, and deprive his cotenants of their interest in the part conveyed. His action was not, to use the language of the cases, against his cotenants, and did not purport to affect their rights as cotenants of the whole. . . . The end sought by the instrument was the substitution of the grantee for the grantor, as the owner of the interest which the latter had had. It is competent for a tenant in common to make such a substitution by his conveyance.” (Citations omitted.) Humphrey v. Gerard, 83 Conn. 346, 359, 77 A. 65 (1910); Staples v. Bradley, 23 Conn. 167, 170 (1854).

The undivided one-half interests of Sklat and the defendant were absolutely separate and distinct as far as the right of each to convey or to encumber his interest. Thus, Sklat’s bankrupt estate consisted solely of his own one-half interest. At all times, the defendant retained the right to convey, lease, mortgage, encumber or otherwise alienate his one-half interest. He could voluntarily alienate his one-half interest and likewise it could be involuntarily alienated through strict foreclosure. The ultimate effect of the foreclosure against the defendant was to substitute the bank for the defendant as a cotenant with Sklat.

Furthermore, the bank is attempting to confer formal approbation on the colloquial expression, “anything that ‘affects’ the bankrupt estate is included within the automatic stay.” The three applicable subsections of the bankruptcy statute are very specific and are expressly limited to stay “(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; (4) any act to create, perfect, or enforce any lien against property against the estate; (5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title . . . .” None of these subsections applies in the present case. As illustrated above, nothing in § 362 (a) explicitly states that the automatic stay extends to codebtors on a promissory note or mortgage. Significantly, such language extending the stay to codebtors exists under the applicable consumer loan counterpart in 11 U.S.C. § 1301 (a) of the bankruptcy statute.

The bank relies primarily on the cases of In re Bialac, 712 F.2d 426 (9th Cir. 1983), and In re 48th Street Steakhouse, Inc., 835 F.2d 427 (2d Cir. 1987), cert. denied, 485 U.S. 1035, 108 S. Ct. 1596, 99 L. Ed. 2d 910 (1988). Neither case, however, involved the application of the automatic stay in a real estate mortgage foreclosure situation. In Bialac, the court held that the automatic stay prohibited the creditor from foreclosing on the five-sixth’s interest in a surplus cash note owned by non-bankrupts because the bankrupt had a right of redemption in the note pursuant to Arizona law. In re Bialac, supra, 432. Similarly, in In re 48th Street Steakhouse, Inc., supra, the automatic stay precluded a landlord from terminating the nonbankrupt prime tenant’s lease because it would have destroyed the bankrupt subtenant’s possessory interest. Unlike the bankrupt’s interests “affected” in the foregoing cases, the expiration of the defendant’s law days did not “affect” any interest in Sklat’s estate. It makes no difference who owns the other one-half interest and is thus Sklat’s cotenant.

An analogous case cited by the defendant is persuasive. In Cardinal Federal Savings & Loan Assn. v. Flugum, 461 N.E.2d 932 (Ohio App. 1983), two of the three owners of real property filed bankruptcy petitions after the mortgagee commenced foreclosure proceedings. Shortly thereafter, the bankruptcy court abandoned the property as an asset of the estate. The state court then held that the automatic stay tolled for the bankrupt owners the period of time for filing an answer to the bank’s complaint in foreclosure but did not toll the same period for that of the nonbankrupt owner. Id., 934. In granting a default judgment against the nonbankrupt for failure to plead despite the presence of the bankrupts’ stay, the court explicitly held that “the automatic stay provisions only extend to the debtor filing bankruptcy proceedings and not to non-bankrupt codefendants. ” (Emphasis added.) Id.

Moreover, the position in which the bank now finds itself resulted from its own inaction. When it learned of Sklat’s bankruptcy on April 13, 1992, the defendant’s law day had not yet run. The bank had until May 1, to move in the state court to open the judgment to stop the defendant’s law day from running. General Statutes § 49-15 provides for opening strict foreclosure judgments but expressly enunciates that “no such judgment shall be opened after the title has become absolute in any encumbrancer.” In the present case, title to the defendant’s one-half interest became absolute in the bank when the defendant failed to redeem on his law day. Crane v. Loomis, 128 Conn. 697, 700, 25 A.2d 650 (1942). The trial court lacked authority to grant the plaintiff’s motion to open the judgment as to the defendant.

In summary, when Sklat filed his bankruptcy petition the automatic bankruptcy stay halted any further action in the foreclosure of his interest in the property. The foreclosure action, however, continued against the defendant’s interest and, upon expiration of his law day, his title vested in the bank. At that point, the bank and Sklat were tenants in common of the property and § 49-15 barred the opening of the strict foreclosure judgment concerning the defendant’s interest.

The judgment is reversed and the case is remanded with direction to deny the motion insofar as it applies to the interest of the defendant Howard M. Wood III.

In this opinion the other judges concurred.

       In this opinion, the named defendant, Howard M. Wood III, will be referred to as the defendant.

       On December 4,1992, the commissioner of banking of the state declared Burritt insolvent, and appointed the Federal Deposit Insurance Corporation as receiver, which appointment was confirmed by the Superior Court in the judicial district of Hartford-New Britain at Hartford. For convenience, the plaintiff will be referred to herein as the bank.

       Section 362 (a) of title 11 of the United States Code provides in pertinent part: “Except as provided in subsection (b) of this section, a petition . . . operates as a stay, applicable to all entities, of — (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title . . . .”

       Unless we affirm the opening of the foreclosure judgment, the bank’s right to seek a deficiency judgment against the defendant expired thirty days after title vested in the bank. See General Statutes § 49-14.

       The petition in Metro Bulletins Corp. v. Soboleski, 30 Conn. 493, 496-98, 620 A.2d 1314 (1993), was filed under chapter 11 of the bankruptcy code and in the present case the petition was filed under chapter 13. We do not discern any difference for purposes of this case.

       Section 1301 (a) of title 11 of the United States Code provides in relevant part: “[A] creditor may not act, or commence or continue any civil action, to collect all or any part of a consumer debt of the debtor from any individual that is liable on such debt with the debtor, or that secured such debt . . . .”

         General Statutes § 49-15 provides: “Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.” (Emphasis added.)

       The motion to reopen read: “WHEREFORE, the plaintiff moves this Court to reopen the Judgment of Strict Foreclosure so that it can name Gilbert L. Rosenbaum, Trustee of the Bankruptcy Estate of Mr. Sklat, as a necessary and indispensable party and so that it may establish new law days.” This arguably applies only to opening the judgment against Sklat’s interest and giving him or his bankruptcy trustee new law days. The parties, however, treated the motion as applying also to the defendant. Where, as here, a case was argued upon a certain theory, we will dispose of it on the theory on which it was argued. See Crozier v. Zaboori, 14 Conn. App. 457, 463, 541 A.2d 531 (1988).


text:
    State of Connecticut v. Tyrone Sailor
    (11681)
    O’Connell, I-Ieiman and Schaller, Js.
    Argued November 8, 1993
    decision released January 11, 1994

      F. Mac Buckley, for the appellant (defendant).

      Angela R. Macchiarulo, deputy assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, Joan Alexander, assistant state’s attorney, and Kathleen McNamara, deputy assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere; see General Statutes § 54-94a; to possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and conspiracy to distribute narcotics in violation of General Statutes §§ 53a-48 and 21a-277 (a). The defendant asserts that the trial court improperly denied his motion to suppress evidence of drugs seized by the police during a warrantless search of his automobile. We affirm the judgment of the trial court.

The trial court found the following facts. James Pasquarell, a detective with the Hartford police department, received a telephone call from an informant with whom he had worked in the past and whom he had found reliable. The informant told Pasquarell that he “was just with Beaver and Sweet Tooth” and that in approximately fifteen minutes a drug transaction was going to occur between the two at the Charter Oak housing project in the area of Chandler and Ellis Streets. The informant told Pasquarell that Beaver and Sweet Tooth were Willie Armstrong and the defendant, Tyrone Sailor, that Sailor would be driving a white or light colored Cadillac with a red or burgundy top and a Massachusetts license plate, and that he would possess a large quantity of cocaine.

Accompanied by detective Frank Sanzo, Pasquarell drove to the Ellis Street area in the vicinity of the Charter Oak project, but did not observe a vehicle matching the description. They proceeded north on Chandler Street where they noticed a white Cadillac with a burgundy top and a Massachusetts license plate moving toward them with two individuals inside. Sanzo recognized one of the individuals as Armstrong. Pasquarell turned his vehicle around, followed the Cadillac into the Ellis Street parking area and parked his vehicle directly behind the Cadillac, which had stopped voluntarily. Pasquarell then exited his vehicle and approached the driver’s side of the Cadillac. As he approached the vehicle, the detective noticed that the defendant had a plastic bag in his right hand and was reaching down to the floor. The detective opened the driver’s door, removed the driver from the vehicle, took the plastic bag and noted that it contained a large amount of white powder which the trial court found to be contraband. The police then arrested the defendant and Armstrong, searched Armstrong and found $600 on his person.

On December 23,1991, the defendant moved to suppress the evidence obtained during his arrest and claimed that the search of his car violated his rights under both the fourth and fourteenth amendments to the federal constitution and under article first, § 7, of the Connecticut constitution. The trial court denied the motion finding that the police had probable cause to search the vehicle and to arrest the defendant. The trial court found that the informant was reliable because he previously had provided accurate information to Pasquarell. The trial court also found that the informant had established a sufficient basis of knowledge by stating to Pasquarell that “he was just with them.” The trial court found by a “reasonable and logical inference” from this statement that the informant had knowledge from personal observation. The trial court further found that, even if the informant’s basis of knowledge could not be inferred from the statement, the police corroborated much of the information given by the informant. The trial court noted that the police had corroborated the color, make and location of the automobile, and the Massachusetts license plate and they had specifically identified Armstrong. Since the trial court found probable cause for the search, it declined to analyze the motion to suppress under the plain view doctrine. Further, the trial court stated that the police had a reasonable and articulable suspicion that the occupants of the vehicle “had engaged in, are engaged in, or about to engage in criminal activity . . . .” See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The defendant entered a plea of nolo contendere, reserving the right to appeal the denial of the suppression motion.

The issue on appeal is whether the police violated the defendant’s constitutional rights when they seized the bag of cocaine. The defendant claims that the trial court improperly denied the motion to suppress because the police lacked probable cause to search his automobile. In our view of the case, however, we need not reach the issue of whether the search was supported by probable cause since the contraband seized was in plain view prior to the seizure.

“This court can sustain a judgment on a different theory than that adopted by the trial court.” State v. Mierez, 24 Conn. App. 543, 547, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991). Thus, we conclude that the seizure of the cocaine was proper under the plain view doctrine. See Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).

The plain view doctrine “ ‘is based upon the premise that the police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized.’ . . . A plain view seizure is reasonable under the fourth amendment if the police: (1) were lawfully on the premises and engaged in a lawful activity; (2) discovered the evidence inadvertently; and (3) have probable cause to believe there is a reasonable relationship between the evidence seized and the criminal behavior under investigation. . . .” (Citations omitted.) State v. Hamilton, 214 Conn. 692, 698, 573 A.2d 1197, vacated and remanded, 498 U.S. 933, 111 S. Ct. 334, 112 L. Ed. 2d 299 (1990). Our Supreme Court has also stated that “ ‘inadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.’ ” State v. Ruscoe, 212 Conn. 223, 238 n.8, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); State v. Couture, 194 Conn. 530, 547, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). “ ‘Contraband’ is defined in General Statutes § 54-36a as any property the possession of which is prohibited by a provision of the General Statutes.” State v. Vincent, 30 Conn. App. 249, 259, 620 A.2d 152, cert. granted on other grounds, 225 Conn. 917, 623 A.2d 1026 (1993). Cocaine possession is prohibited by General Statutes § 21a-279 and is, therefore, contraband. State v. Mac-Neil, 28 Conn. App. 508, 521, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). Thus, inadvertence was not required to seize the evidence here and we need determine only if the police (1) were lawfully in the area and engaged in lawful activity and (2) had probable cause to believe there was a reasonable relationship between the evidence seized and the criminal behavior under investigation.

“[CJovert ‘visual surveillance’ of a person while he moves about in public is not subject to Fourth Amendment restraints.” 1W. LaFave, Search and Seizure (2d Ed. 1987) § 2.7 (e), p. 536; see Cardwell v. Lewis, 417 U.S. 583, 590-91, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974); Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. DeFusco, 27 Conn. App. 248, 261, 606 A.2d 1 (1992), aff'd, 224 Conn. 627, 620 A.2d 746 (1993). Therefore, the police did not need probable cause to initiate the surveillance in the Charter Oak area and were lawfully in the area. Further, when the police parked behind the defendant’s vehicle, they did not act unlawfully by unconstitutionally seizing the defendant’s vehicle. “ ‘[S]topping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the fourth and fourteenth] Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.’ Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979).” State v. Martin, 2 Conn. App. 605, 611-12, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). The evidence presented in this case, however, demonstrates that the police never stopped or detained the defendant’s car prior to viewing the plastic bag. The defendant’s car was stopped voluntarily before the police parked behind it. Further, a detention of an automobile does not rise to the level of a seizure until the police box in the car so that it cannot be driven from the area. See State v. Martin, supra, 609-10. Here, the defendant’s vehicle was not prevented from leaving the area when the police parked behind it.

Further, the police did not act unlawfully when they looked into the defendant’s vehicle. The police, “no less than any other citizen,” have a right to be on a public street, “stand beside the defendant’s car and peer in.” State v. Kuskowski, 200 Conn. 82, 85, 510 A.2d 172 (1986); State v. Miller, 29 Conn. App. 207, 213-15, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993). “It is well established . . . that if a police officer is in a public area and . . . peer[s] into a vehicle through a window, his action does not constitute a ‘search’ and, as a result, is not considered violative of the car owner’s fourth amendment rights.” State v. Graham, 200 Conn. 9, 20, 509 A.2d 493 (1986); State v. Bryant, 19 Conn. App. 626, 629-30, 563 A.2d 326 cert. denied, 212 Conn. 821, 565 A.2d 540 (1989); see Texas v. Brown, 460 U.S. 730, 739-40, 103 S. Ct. 1535, 75 L. Ed. 2d 685 (1983). The evidence revealed that the police were on a public street when they viewed the inside of the defendant’s vehicle. Therefore, probable cause was not required since the police conduct did not invoke the restraints of the fourth amendment and the police acted lawfully.

Finally, the police had probable cause to believe that the evidence seized, the bag of cocaine, had a reasonable relationship to the criminal behavior under investigation, the sale of a controlled substance. The trial court properly denied the motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure ... the defendant after the imposition of sentence may file an appeal .... The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . . .”

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who . . . possesses with the intent to sell or dispense . . . any narcotic substance . . . and who is not at the time of such action a drug-dependent person” shall be punished in accordance with the statute.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 21a-277 provides in pertinent part: “(a) Any person who . . . distributes ... a narcotic substance” shall be punished.

       This finding is not disputed on appeal. Further, in his brief, the defendant refers to the white powder as cocaine.

       The defendant and Armstrong moved for suppression of evidence in the same motion. The defendant challenged the use in evidence of the cocaine and Armstrong challenged the use in evidence of the $600. Only the defendant has appealed.

       The trial court analyzed the veracity and basis of knowledge of the informant to determine whether probable cause existed under State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985). See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Our Supreme Court has rejected the two-prong test enunciated in Kimbro in favor of a totality of the circumstances test under Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). See State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991).

       The defendant stated the issue on appeal as whether there was probable cause “to justify the warrantless search and seizure of [his] automobile.” The defendant’s motion to suppress, however, challenged only the search of his vehicle as violating his constitutional rights. “This court will not review issues of law that are raised for the first time on appeal.” State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). This claim will be discussed only as it relates to the seizure of the cocaine from the defendant’s vehicle.

        State v. Hamilton, 214 Conn. 692, 573 A.2d 1197 (1990), was vacated and remanded by the United States Supreme Court “for further consideration in light of Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).” The appeal was subsequently withdrawn.

       The United States Supreme Court has abandoned the inadvertence requirement. Horton v. California, 496 U.S. 128, 141-42, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). Our appellate courts, however, have continued to maintain that “[ijnadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.” State v. Vincent, 30 Conn. App. 249, 259, 620 A.2d 152, cert. granted, 225 Conn. 917, 623 A.2d 1026 (1993); State v. MacNeil, 28 Conn. App. 508, 521, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). The Connecticut Supreme Court granted certification to appeal in State v. Vincent, supra, 225 Conn. 918, on the issue of “whether the Connecticut constitution requires ‘inadvertence’ under the ‘plain view’ exception even if the United States constitution does not?” Since our Supreme Court has not yet decided the issue, we must follow the law as it currently exists. State v. Dinoto, 32 Conn. App. 217, 221 n.2, 628 A.2d 618 (1993).

       We note that the fourth amendment does apply to electronic surveillance. General Statutes § 54-41d; State v. Calash, 212 Conn. 485, 495-96, 563 A.2d 660 (1989); State v. Telesca, 199 Conn. 591, 597-98, 508 A.2d 1367 (1986).