author: FLYNN, J.

text:
    CITY OF HARTFORD v. HARTFORD MUNICIPAL EMPLOYEES’ ASSOCIATION ET AL.
    (AC 21765)
    Foti, Schaller and Flynn, Js.

      Argued April 25 —
    officially released August 6, 2002

      Ivan A. Ramos, assistant corporation counsel, with whom, on the brief, -was Alexander Aponte, corporation counsel, for the appellant (plaintiff).

      Frank J. Szilagyi, for the appellee (named defendant).

      Lisa S. Lazarek, assistant general counsel, for the appellee (defendant state board of labor relations).
   Opinion

FLYNN, J.

The plaintiff city of Hartford (city) appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant state board of labor relations (board) in which the board found that the city had violated the Municipal Employees Relations Act, General Statutes § 7-460 et seq., by committing a prohibited practice when it transferred work out of a bargaining unit without first negotiating with the union that represented its employees. The issue on appeal does not arise from the finding of this violation, which the city concedes, but from that part of the remedy that the court also sustained, which ordered reinstatement of a member of the bargaining unit, Walter Remes, to the position he formerly occupied, with all lost pay and benefits.

The city claims that because the defendant union, the Hartford Municipal Employees’ Association, Inc. (union), had once taken the issue of Remes’ discharge through several steps of the grievance procedure, the doctrine of collateral estoppel prevented the board in a separate proceeding from ordering Remes reinstated to his former position. Because the material factual issues litigated before the board were different from the factual issues litigated in the grievance procedure, we conclude that the doctrine of collateral estoppel does not apply and that the trial court properly sustained the decision of the board. The material factual issues litigated before the board concerned the illegal transfer of work out of the bargaining unit, whereas the factual issues litigated in the grievance procedure concerned whether a discharge of Remes from a new position for cause, after the illegal transfer, was proper. We affirm the judgment of the trial court.

We first summarize the pertinent facts. Remes was hired by the Hartford city treasurer’s office in 1987 as an analyst in the investment unit, where he remained until a December, 1993 illness caused his absence on medical leave until March, 1994. At about the same time that Remes went on medical leave, his supervisor, who was the only other employee in the investment unit, retired. While Remes was on medical leave, the city hired a temporary employee, Chris Rowlins, in a nonbar-gaining unit capacity, and he carried on the work of the investment unit. Additional work formerly performed by Remes was contracted out to SEI, Inc. (SEI), a private investment review organization. After Remes returned from medical leave, he was informed by the city treasurer that Rowlins and SEI would now have primary responsibility for the investment unit’s day-today work and that he would be assigned to special projects. The city hired Philip Lawton in April, 1995, to head the investment unit with the title of investment analyst. Lawton was later named principal investment officer. The city eliminated Remes’ position effective June 30, 1995. Three and one-half weeks prior to the elimination of his position, on June 7, 1995, by use of a “bumping” procedure, Remes moved into the pension administration unit of the city treasurer’s office, as a principal administrative analyst. On July 17, 1995, the union filed the complaint with the labor board about the illegal transfer of work outside the bargaining unit to Rowlins, which resulted in the board decision which the city now appeals. In March, 1996, Rowlins was named “investment analyst” in the investment unit, a job that the city posted on November 30, 1995. Remes applied for this job, but was rejected under a “subjective test.” Remes was terminated effective December 29, 1995, from the new position into which he had bumped in the pension division for inefficiency and inability to perform the new job. The union filed a grievance concerning Remes’ termination from the new position on December 8, 1995, which it pursued unsuccessfully through the third step of the grievance procedure, but did not take to the arbitration process.

In a decision and order dated December 17,1998, the board concluded that subcontracting or transferring bargaining unit work to nonbargaining unit personnel is a mandatory subject of collective bargaining and that the city’s unilateral transfer of bargaining unit work to a nonbargaining unit employee violated the Municipal Employees Relations Act. The city raised what it termed a “counterclaim” in the proceeding before the board, in which it contended that the union’s failure to pursue Remes’ grievance to the fourth step of arbitration of his discharge made the union, rather than the city, liable for any damages Remes sustained from his discharge. The city argued that the issue of whether Remes’ termination was proper had been fully and fairly litigated in the prior grievance procedure and that the doctrine of collateral estoppel therefore barred relitigation of that issue in the case underlying this appeal. The board rejected this argument, distinguishing this case from a prior board holding in In re East Hartford, Conn. Board of Labor Relations, Decision No. 3347 (November 14, 1995), because “the issue presented here is different from the issue presented in the grievance challenging Mr. Remes’ termination for cause.” The board noted that but for the city’s unlawful unilateral action in transferring work out of the bargaining unit, Remes would not have been in a position to be terminated for unsatisfactory performance. This was significant because the board sought to restore the status quo ante to uphold the provisions of the act which had been violated.

The board concluded that the union’s filing of the complaint with the board was proper and that it was not required to pursue the termination grievance to arbitration. The board viewed Remes’ termination as almost a direct result of “the unlawful transfer of work out of the bargaining unit.” It summed the matter up by concluding: “If the city had not unlawfully transferred this work to Mr. Rowlins, Mr. Remes would have remained in the job he had successfully performed at least until the elimination of the job.” In determining its remedy for the unlawful transfer of work, the board held that the customary remedy for the unlawful subcontracting or transfer of work out of the bargaining unit is the restoration of the status quo ante. In re Hamden, Conn. Board of Labor Relations, Decision No. 1441 (August 23, 1976). Among the orders it entered as remedies, it ordered the city to take the following affirmative steps, which it found “will effectuate the purposes of the act: (a) Reinstate Walter Remes to the job, or a substantially equivalent job, and duties he was performing at the time his medical leave of absence began in December, 1993, at the same rate of pay and benefits; (b) Make Walter Remes whole for any net loss of earnings and other benefits he suffered as a result of the city’s unlawful action . . . .”

The plaintiff appealed from the board’s decision to the trial court under the same theory of collateral estop-pel. The court concluded that the city’s claim that the doctrine of collateral estoppel barred the remedy of reinstatement with all lost back pay and benefits lacked merit because the issues litigated before the board were distinct from the issue dealt with in the separate grievance procedure. We agree.

Our review of the application of the doctrine of collateral estoppel by the trial court is plenary. R&R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). The doctrine “prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties . . . .” (Internal quotation marks omitted.) Id. The city argues that the “[b]oard erred in reinstating Mr. Remes and awarding him back pay because a third step hearing officer had already determined that the city had just cause to terminate him.” More specifically, the plaintiff argues that the same “employer action” was at issue and fully litigated in both proceedings. The plaintiff then classifies the employer action at issue to be, generally, “the termination of Mr. Remes from city employment.”

This argument demonstrates a misunderstanding of the doctrine of collateral estoppel. There were two distinct positions from which Remes was eliminated, not one. The first was that of analyst in the investment unit from which the city unlawfully eliminated Remes by transferring the work out of the bargaining unit. The second was that of principal administrative analyst in the pension administration unit, from which Remes was fired. The fact that the city labels them together under the common term “termination of employment” does not render them one issue that was previously adjudicated. Under such strained reasoning, a defendant could be insulated from liability for repeating violations of the law as long as his or her repeated violations fall within the same classification of misconduct and he or she chooses the same victim. The proceeding underlying this appeal concerned the propriety of an earlier elimination, which the board determined to be illegal under the Municipal Employees Relations Act. The termination at issue in the grievance proceeding took place months later, in December, 1995, and rested on the concept that there was just cause at that time to terminate Remes from that position. The earlier elimination had nothing to do with any finding related to just cause to terminate. In short, the legality of each elimination was assessed under unrelated material facts, and collateral estoppel simply does not apply.

The city claims that the board ignored certain precedents in similar cases where the union involved had failed to bring a termination case to binding arbitration, including the decision of our Supreme Court in Virgo v. Lyons, 209 Conn. 497, 502, 551 A.2d 1243 (1988). In Virgo, a plaintiff had brought suit in the United States District Court for the District of Connecticut for damages sustained as a result of an assault and battery and claimed false arrest he was alleged to have suffered at the hands of the police. In the District Court action, he also brought a pendent state claim that a negligent failure to train officers properly had resulted in the assault and battery to him and that the officers involved had negligently battered him. The District Court dismissed the false arrest claim and the pendent state claims, and the jury decided, on a claim of excessive force under 42 U.S.C. § 1983, that there was a violation of his civil rights and returned a verdict in his favor for damages. The plaintiff then attempted to bring an action in the Superior Court on a complaint that was identical to that brought in the federal case and reiterated the same injury. The trial court rendered summary judgment on the defendants’ special defense of res judicata and collateral estoppel. The plaintiff appealed on the ground that the pendent state claims had not been litigated. Our Supreme Court, however, determined that collateral estoppel did apply to bar the state claims because they had in fact already been decided and arose out of the same alleged wrongs, committed by the same defendants, with the same resulting injuries, even though § 1983 was invoked in the federal case and the plaintiff was invoking only state tort law in the state case. Id.

In this case, we conclude that the trial court properly interpreted the holding in Virgo when it concluded that the hearing officer at the third grievance level “had no jurisdiction to consider whether reinstatement of Remes would effectuate the purposes of the [Municipal Employees Relations Act]; only the labor board is empowered to make such a determination.” It is conceded that bargaining unit work was transferred out of the bargaining unit without negotiating with the union as the law requires. That was the wrong. Reinstatement was part of the remedy. Illegal transfer of work was not the wrong litigated in the grievance. The grievance litigated only a distinct wrong, namely, the termination of Remes from another job into which he had bumped when his own position had been unlawfully transferred out of the bargaining unit. Our Supreme Court has illuminated the very distinction between legal actions that refer only to violations of a contract, as did the grievance concerning Remes, and actions that involve a violation of a separate labor relations act. L. Suzio Construction Co. v. State Board of Labor Relations, 148 Conn. 135, 168 A.2d 553 (1961). Each addresses a separate wrong. The board is not deprived by an earlier ruling in a grievance procedure of its duty to enforce compliance with the Municipal Employees Relations Act by utilizing a remedy returning matters to the status quo ante.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    MICHELLE L. SPENCER v. EDGAR B. SPENCER III
    (AC 21722)
    Laveiy, C. J., and Schaller and Mihalakos, Js.
    Argued May 1 —
    officially released August 6, 2002

      Walter A. Twachtman, Jr., for the appellant (plaintiff).

      Timothy J. Fitzgerald, with whom, on the brief, was J. Patrick Dwyer, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Michelle L. Spencer, appeals from the order of the trial court modifying the alimony and child support awards to be paid by the defendant, Edgar B. Spencer III. Each of the plaintiffs claims on appeal centers on whether the comí; improperly found that the loss of the defendant’s employment formed a sufficient basis for modification of the support awards despite a trust fund in which the defendant was, at the time of the dissolution, and continues to be a beneficiary. We affirm the order of the trial court.

The following facts and procedural history are relevant to our consideration of the issues on appeal. On February 6, 1996, after a twenty-two year marriage, the plaintiff brought an action seeking dissolution of the marriage. The parties have three children. Colin and Martha were born on December 12, 1983, and Mallory was born on March 7,1993. On May 14, 1998, the court, Baratt, J., rendered judgment dissolving the marriage and, by agreement of the parties, retained jurisdiction for a later determination of custody, alimony, child support, property disposition and fees.

In February, 1999, the court, Bishop, J., heard evidence regarding the reserved issues and issued its memorandum of decision on March 23, 1999. The court awarded to the plaintiff the marital home located at 33 Hoskins Road in Bloomfield. The defendant had moved into his parents’ former home on Duncaster Road, which also is in Bloomfield, after the parties separated in July, 1995. Recognizing that the parties resided fairly close to one another, the court awarded joint physical and joint legal custody of the children. After finding that the substantial amount of time the children were to be in the defendant’s care warranted a deviation from the child support and arrearage guidelines, the court ordered the defendant to pay to the plaintiff $300 per week as child support for the three children and to purchase the children’s clothing. In addition, the defendant was ordered to pay to the plaintiff $400 per week as alimony.

At the time of the dissolution hearing, the defendant was the president of Philbrook, Booth & Spencer, Inc. (Philbrook), a manufacturing firm that had been run by his family for many years, and earned a salary of $90,000 per year. The plaintiff was employed by Nadeau’s Auction Gallery and was working eighteen horns a week for $9 an hour. The court found that the plaintiff held a bachelor of arts degree in art history and that she was underemployed.

In its memorandum of decision, the court also made certain findings pertaining to the trust. It found that the Margaret B. Spencer Irrevocable Trust was created for the benefit of the defendant and his sister. Furthermore, the court found that “the defendant is the beneficiary of an irrevocable trust which, in turn, is the beneficiary of an [individual retirement account] with a principal value of approximately one million, one hundred and fifty thousand ($1,150,000) dollars as of December 31, 1998.” The children’s educational expenses were paid by the trust, and the defendant received direct distributions from the trust totaling $24,500 in the prior two years.

On February 2, 2000, the defendant filed a motion for modification of the alimony and child support payments. In his motion, the defendant claimed that the failure of Philbrook and his subsequent unemployment justified a modification of the support orders. After hearing evidence, the court, Gruendel, J., granted the defendant’s motion for modification. In its memorandum of decision filed November 1, 2000, the court ordered him to pay to the plaintiff $125 per week for child support and reduced alimony to $1 per year. The court found that the “value of the trust has not changed substantially since the date of the judgment.” Since the date of dissolution, the trust paid to the defendant $2500 per month from its income, totaling $30,000 per year. The defendant testified that he was in the process of changing the trustee and that the income generated by the trust was less than $2500 per month. The court found that “there is no evidence as to [the defendant’s] present earning capacity. The court finds, however, that it is not less than the sum of $30,000 he had been receiving as direct income from the trust.”

On November 20, 2000, the plaintiff filed a motion for rehearing or reargument to which the defendant objected. Thereafter, the court granted the plaintiffs motion, but denied the relief requested. This appeal followed.

In essence, the plaintiff argues that there was no substantial change in circumstances to form a basis for modification of the support orders. The linchpin of her argument is the defendant’s interest in the trust. She argues that because the trust is worth approximately $1 million, the defendant’s loss of his $90,000 salary is insignificant and does not constitute a substantial change in circumstances. The plaintiffs arguments are misplaced for two reasons: (1) the defendant’s interest in the trust vested prior to the dissolution and was taken into account by the dissolution court; and (2) the trust contains a spendthrift provision that gives the trustee the sole discretion as to what, if any, funds are distributed to the defendant.

We first set forth our standard of review and the legal principles that govern our analysis of the issues on appeal. “A trial court is endowed with broad discretion in domestic relations cases. Our review of such decisions is confined to two questions: (1) whether the court correctly applied the law, and (2) whether it could reasonably have concluded as it did.” (Internal quotation marks omitted.) Denley v. Denley, 38 Conn. App. 349, 351, 661 A.2d 628 (1995). “With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.” (Internal quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 530, 752 A.2d 978 (1998).

“[U]nder our statutes and cases, modification of alimony can be entertained and premised upon a showing of a substantial change in the circumstances of either party to the original dissolution decree. . . . Thus, once the trial court finds a substantial change in circumstances, it can properly consider a motion for modification of alimony. After the evidence introduced in support of the substantial change in circumstances establishes the threshold predicate for the trial court’s ability to entertain a motion for modification ... it also naturally comes into play in the trial court’s structuring of the modification orders.” Borkowski v. Borkowski, 228 Conn. 729, 737, 638 A.2d 1060 (1994); see also General Statutes § 46b-86. In general, the same factors used by the court to establish an initial award of alimony are relevant in deciding whether the decree may be modified. Borkowski v. Borkowski, supra, 736; see also General Statutes § 46b-82. The party seeking modification must prove the existence of a substantial change in the circumstances. Crowley v. Crowley, 46 Conn. App. 87, 91, 699 A.2d 1029 (1997).

When determining whether there is a substantial change in circumstances, the court is limited in its consideration to conditions arising subsequent to the entry of the dissolution decree. Schorsch v. Schorsch, 53 Conn. App. 378, 382, 731 A.2d 330 (1999). “To permit the trial court to reconsider all evidence dating from before the original divorce proceedings, in determining the adjustment of alimony, would be, in effect, to undermine the policy behind the well established rule of limiting proof of the substantial change of circumstances to events occurring subsequent to the latest alimony order—the avoidance of relitigating matters already settled.” Borkowski v. Borkowski, supra, 228 Conn. 738.

As a preliminary matter, we note that the modification court found that the dissolution court had awarded the trust to the defendant as part of the property settlement. The modification court further noted that “[profits from an asset received as part of a property settlement are not income for purposes of determining whether there has been a substantial change in circumstances. Denley v. Denley, [supra, 38 Conn. App. 353-54].” The dissolution court acknowledged the existence of the trust and the defendant’s interest in the trust, but did not award the trust to the defendant at the time of dissolution. As we will discuss, the court could not award the trust as part of the property settlement and, therefore, Denley does not apply to the present case.

To address the plaintiffs claims, we must also set forth the legal principles governing trusts generally and specifically the construction of a trust instrument. “The issue of intent as it relates to the interpretation of a trust instrument . . . is to be determined by examination of the language of the trust instrument itself and not by extrinsic evidence of actual intent. . . . The construction of a trust instrument presents a question of law to be determined in the light of facts that are found by the trial court or are undisputed or indisputable.” (Citation omitted; internal quotation marks omitted.) Cooley v. Cooley, 32 Conn. App. 152, 159, 628 A.2d 608, cert. denied, 228 Conn. 901, 634 A.2d 295 (1993). “[W]e cannot rewrite ... a trust instrument. The expressed intent must control, although this is to be determined from reading the instrument as a whole in the light of the circumstances surrounding the . . . settlor when the instrument was executed, including the condition of [her] estate, [her] relations to [her] family and beneficiaries, and their situation and condition. The construing court will put itself as far as possible in the position of the . . . [settlor,] in the effort to construe . . . [any] uncertain language used by [her] in such a way as shall, conformably to the language, give force and effect to [her] intention. . . . But [t]he quest is to determine the meaning of what the . . . [settlor] said and not to speculate upon what [she] meant to say.” (Internal quotation marks omitted.) Id.

On February 1, 1996, the defendant’s mother created the Margaret B. Spencer Irrevocable Trust. During her life, Margaret Spencer was the sole beneficiary of the trust. The trust held certain real property, including the defendant’s current home. The trust derives its income from an individual retirement account created for the benefit of Margaret Spencer pursuant to § 401 of the Internal Revenue Code and subject to the required minimum distributions prescribed by § 401 (a) (9). See 26 U.S.C. § 401.

After her death, the trust property was divided into two equal portions for the benefit of the defendant and his sister. We are concerned only with the defendant’s share of the trust. Each portion was further divided into an exempt trust and a nonexempt trust to reduce the tax liability of the trust. Paragraph three of the trust instrument, which governs the exempt trust, states in relevant part: “(a) The Trustee shall pay to or for the benefit of the child, during his or her life, so much of the annual net income from the child’s Exempt Trust as the Trustee deems necessary and advisable for the child’s most comfortable maintenance and support and so much of the principal, even to the exhaustion thereof, as the Trustee deems necessary and advisable for the child’s health. Subject to the needs of the child and with the prior written consent of the child, the Trustee shall pay to or for the benefit of the child’s descendants, not necessarily in equal shares, so much of the remaining annual net income and principal as the Trustee deems necessary and advisable for their education, health, maintenance and support. The Trustee is requested to be generous in exercising its discretion to make expenditures to or for the benefit of my living children. The Trustee need not consider other resources available to the child and/or the child’s descendants. The Trustee shall add undistributed annual net income to principal.” The relevant portion of paragraph 4 (a) of the trust instrument governing the nonexempt trust mirrors paragraph 3 (a).

Margaret Spencer created the trust eight months after the parties separated and the defendant left the marital home. She specifically provided that the trust was for the benefit of “the child,” i.e., the defendant, and “the child’s descendants.” Neither the trustee nor the court is authorized to change the beneficiary of the trust, but is bound by the terms of the trust instrument. “[G]enerally the administration of a trust must accord strictly with the intent of the settlor and the terms of the trust, and ... a court has no right to authorize the trustee to depart therefrom, and will do all within its power to see that the trust is executed in accordance with its terms . . . .” 76 Am. Jur. 2d, Trusts § 335 (1992). There is nothing within the trust instrument indicating that the settlor intended the plaintiff to benefit from the trust. Thus, the court could not order the trustee to allocate any portion of the trust for the benefit of the plaintiff.

The dissolution court did not distribute the trust as part of the marital property, but the court did acknowledge its existence and considered the trust when it fashioned its financial orders and the property distribution. Although the modification court improperly found that the trust was part of the initial property settlement, it correctly noted that the dissolution court “had before it all of the relevant trust documents and income statements.” It also found that the “value of the trust has not changed substantially since the date of the judgment.” Therefore, the status of the trust remained unchanged.

We now turn to the plaintiffs claim that because she is not a creditor of the defendant, she is not precluded from seeking to participate in the income from the trust even though it contains a spendthrift provision. Paragraph 6 (c) of the trust instrument states: “No interest of any beneficiary in any trust held under Paragraphs 3, 4 or 5 shall be subject to pledge, assignment, sale or transfer in any manner. No beneficiary shall have the power in any manner to anticipate, charge or encumber such interest. No such interest shall be hable or subject in any manner, while in the possession of the Trustee, for the beneficiary’s debts, contracts, liabilities or torts.”

“A trust which creates a fund for the benefit of another, secures it against the beneficiary’s own improvidence, and places it beyond the reach of his creditors is a spendthrift trust.” Zeoli v. Commissioner of Social Services, 179 Conn. 83, 88, 425 A.2d 553 (1979); see also General Statutes § 52-321. “[A] spendthrift trust is one that restricts both the beneficiary’s ability to alienate his interest in the fund and his creditor’s ability to seize the property in satisfaction of his debts; in contrast to other types of protective trusts, a spendthrift trust in the technical sense exists where there is an express provision forbidding anticipatory alienations and attachments by creditors.” 76 Am. Jur. 2d, supra, § 121. “Where by statute or the trust terms it is provided that the interest of a beneficiary is not to be available to his creditors, and the court decisions in the state hold the provision valid without limit or qualification, obviously creditors have no rights or remedies as far as the trust property and the beneficiary’s interest in it or the income thereof are concerned. They are limited to collection from sums after payment to the beneficiary, and to the products of such payments and to nontrust property.” G. Bogert, Trusts and Trustees (2d Ed. Rev. 1992) § 227, p. 499.

“The well-settled rule in this state is that the exercise of discretion by the trustee of a spendthrift trust is subject to the court’s control only to the extent that an abuse has occurred . . . .” Zeoli v. Commissioner of Social Services, supra, 179 Conn. 89. Furthermore, “Connecticut bars creditors from reaching a distribution except, and until, it be in the hands of the beneficiary. Olson v. Olson, [Superior Court, judicial district of New London, Docket No. 513444 (October 20, 1992) (7 C.S.C.R. 1247, 1248)].” United States v. Cohn, 855 F. Sup. 572, 576 (D. Conn. 1994). “ ‘No title in the income passes to [the beneficiary] unless and until it is appropriated to him by the trustee, and then only to the amount determined by [the trustee].’ Bridgeport-City Trust Co. v. Beach, 119 Conn. 131, 140, 174 A. 308 (1934); Reilly v. State of Connecticut, 119 Conn. 508, 512, 177 A. 528 (1935).” United States v. Cohn, supra, 576.

Our review of the clear and unambiguous language of the trust instrument reveals that Margaret Spencer intended to create a spendthrift trust that could not be reached by the defendant’s creditors. Because the plaintiff obtained a judgment against the defendant for alimony and child support, her status is that of a creditor.* 2** See Cooley v. Cooley, supra, 32 Conn. App. 169 (judgment in dissolution action established plaintiffs status as judgment creditor); Urrata v. Izzillo, 1 Conn. App. 17, 18, 467 A.2d 943 (1983) (former spouse is judgment creditor pursuant to judgment for alimony, support). Thus, the plaintiff can reach neither the income nor the principal until it is distributed and in the hands of the defendant.

The plaintiff maintains that the trustee’s characterization of the distributions of the IRA to the trust as “income” or “principal” were arbitrary. She further argues that because the distributions are fully taxed as ordinary income under § 691 of the Internal Revenue Code, the distributions are income to the trust. Even if we were to agree with the plaintiffs contention, the income of the trust would still be unavailable to her. We cannot conclude on the record before us that the trustee abused the powers granted to it in making the distributions as it did. The distributions made by the trustee were for the education of the parties’ children, for the maintenance and repair of the real property held by the trust, and for the maintenance and support of the defendant. Each of those distributions fell within the purposes designated by the trust instrument. Because of the nature of a spendthrift trust, the plaintiff is not entitled to the income, regardless of how it is characterized by the trustee, prior to its distribution to the defendant.

As a final note, we address the plaintiffs claim that the court improperly disregarded the defendant’s rent free use of the home owned by the trust, which is indirect income to the defendant. The plaintiff cites Tremaine v. Tremaine, 235 Conn. 45, 64, 663 A.2d 387 (1995), for the proposition that “the value of the house to the defendant is not what the house is worth, but rather how much the defendant’s rent free use of the house saves him in living expenses.” Even a cursory look at Tremaine reveals that the court, in construing the trust instrument, was called on to apply the law of the state of Ohio. Although it is axiomatic that this court is bound by the decisions of our Supreme Court; see State v. James, 69 Conn. App. 130, 133-34, 793 A.2d 1200, cert. denied, 260 Conn. 936, 802 A.2d 89 (2002); those decisions interpreting the laws of our sister states have no relevance in our application of Connecticut law. Even if we were persuaded by our Supreme Court’s application of Ohio law, it would be of no avail to the plaintiff. As previously mentioned, the defendant resided in the home at the time of the parties’ separation. The dissolution court was aware of the use of the home and any indirect financial benefit to the defendant and, therefore, it cannot be considered as part of the modification equation.

Keeping the aforementioned principles in mind, and our conclusions derived therefrom, we now determine whether the finding by the court of a substantial change in circumstances was an abuse of discretion. At the time of the dissolution, the defendant earned a $90,000 salary and received distributions from the trust. When Philbrook closed, the defendant lost his entire salary but received distributions from the trust totaling $30,000. Every other aspect of the defendant’s financial situation remained static. Therefore, the court was limited in its consideration to only the defendant’s loss of salary. Taking into account the distributions of the trust totaling $30,000, the defendant’s income decreased by at least $60,000. We conclude that the court correctly applied the law governing modification of support orders in a dissolution matter and, on the basis of its subordinate findings, the court could reasonably have concluded that the defendant’s decrease in income was a substantial change in circumstances warranting a modification.

The judgment is affirmed.

In this opinion the other judges concurred.

       In her statement of the issues and in the argument portion of her brief, the plaintiff presents six claims as follows:
      “1. Did the court err in granting the defendant’s motion to modify the alimony and child support awarded to the plaintiff in the original judgment of this case, notwithstanding the fact that the defendant had lost his job when the defendant and the children of the marriage are the beneficiaries of trusts that have about $1 million in resources and when the defendant has the rent free use of a substantial house owned by the trust for which the trust pays real estate taxes, maintenance and insurance? . . .
      “2. Did the court err in reducing the child support payable to the plaintiff when the evidence showed that the trusts which benefit the defendant and the children of the marriage, specifically allowed for payments of support for the children and where the defendant admitted that the trusts were set [up] to provide for payments for the support of the children and where the trusts had approximately $1 million in resources available for such payments? . . .
      “3. Did the court err in finding that ‘[t]he income received from the [individual retirement account (IRA), which is the funding vehicle for the trusts] provides the corpus of the exempt and nonexempt trusts? From this corpus, the trusts themselves realize the income that is available to fulfill the stated purpose of the trust,’ when the evidence showed that the trustee received distributions from the IRA and actually recorded it and used it as ‘income’ or ‘principal’ depending on what account needed the funds rather than on any legal categorizing of the distribution? . . .
      “4. Did the court err in finding that a new trustee had, ‘[indicated that there is insufficient income to continue the practice of paying the defendant $2500 per month, ’ without any evidence from the new trustee after the court specifically found that the facts show that the defendant received $2500 per month, and that such sum exceeds the income generated by the exempt trust? . . .
      “5. Did the court err in not considering the defendant’s rent free use of a house owned by the trust, for which the trust pays real estate taxes, maintenance and insurance, as an income factor to him which considerably raises his income and where his financial affidavit failed to show any credit for the benefit of the use of this house? . . .
      “6. Do the spendthrift provisions insulate the defendant from the claims of the plaintiff where a spouse or former spouse is not a ‘creditor’ subject to spendthrift provisions?”

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . .

       General Statutes § 46b-82 provides in relevant part: “In determining whether alimony shall be awarded, and the duration and the amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . .

       General Statutes § 52-321 (a) provides: “If property has been given to trustees to pay over the income to any person, without provision for accumulation or express authorization to the trustees to withhold the income, and the income has not been expressly given for the support of the beneficiary or his family, the income shall be liable in equity to the claims of all creditors of the beneficiary.”

       We note that our analysis and conclusion that the plaintiff is a judgment creditor of the defendant applies equally with regard to alimony and child support. In addition, the amount of the income generated by the trust is irrelevant because the distributions are within the discretion of the trustee. See Zeoli v. Commissioner of Social Services, supra, 179 Conn. 89.

       See 26U.S.C. §691.


text:
    STATE OF CONNECTICUT v. BERNALE BRYANT
    (AC 21652)
    Flynn, Bishop and McDonald, Js.

      Argued May 29 —
    officially released August 6, 2002

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and David Zagaja, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Bernale Bryant, who had been charged with murder and was acquitted of that ciime, appeals from the judgment of conviction, rendered after a jury trial, of the lesser offense of intentional manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l).

On appeal, the defendant claims that (1) the introduction, at trial, of a transcript of the testimony of a witness, Ewan Sharp, at a probable cause hearing violated his constitutional right of confrontation in that he was unable to cross-examine Sharp as to the benefits he received for his testimony, and (2) the trial court violated his constitutional right to present a defense when it prohibited him from presenting extrinsic evidence at trial as to the benefits received by Sharp for his testimony at the probable cause hearing. We affirm the judgment of the trial court.

The jury reasonably could have found that on April 14,1996, the defendant repeatedly and seriously injured Edward Jones, and those injuries caused Jones’ death. The following testimony is relevant to our resolution of this appeal.

After drinking beer and using narcotics together, in the early morning hours of April 14,1996, Gary Fournier and the victim, Edward Jones, drove to Irving Street and Albany Avenue in Hartford to get more narcotics. The pair planned to obtain the narcotics and drive off without paying for them. Fournier stopped his car and was approached by Terry “T-Time” Davis, a known drug seller. Shortly thereafter, the defendant approached the car and handed Fournier some cocaine.

As soon as Fournier had the cocaine in hand, he drove off without paying for the contraband. The defendant continued to hang onto the car as Fournier drove off. The defendant released his hold of the car just as it ran through a stop sign and was struck by another automobile. The defendant then went to Fournier’s car, dragged Fournier from the car, pushed him to the ground and kicked him several times before running to the passenger’s side of the car. The defendant dragged Jones through the passenger window, and hit and kicked him repeatedly while he lay on the street. The defendant then ran from the scene.

There was other evidence that the defendant had given a statement to the police that he was dragged by Fournier’s car toward the intersection and the defendant so testified at the trial.

After the accident, a Hartford police officer, Garth Perri, arrived at the scene of the collision. Officer Perri accompanied Jones to a hospital, where he was pronounced dead.

On December 17, 1999, Sharp was arrested by the Hartford police department for robbery. While being questioned by members of the department, Sharp informed them that he had witnessed the April 14,1996 collision and saw the defendant repeatedly beating Jones. On January 25, 2000, Shaip gave a written statement to the Hartford police concerning those events. Shortly thereafter, the defendant was arrested for the murder of Jones. On March 30, 2000, Sharp testified at the defendant’s probable cause hearing. On direct examination, Sharp testified that he had been incar cer-ated since 1999 because of a charge of robbery and admitted to having four prior criminal convictions, at least one of which was a felony. He was also examined as to the pending robbery charge and denied that it influenced his testimony.

Complete transactional immunity was extended to Sharp at the defendant’s subsequent trial. However, when called as a witness at trial, Sharp refused to testify, initially claiming a fifth amendment privilege against self-incrimination. After determining that Sharp’s fifth amendment privilege would not be implicated, the trial court ordered him to testify. Sharp continued to refuse and was found in contempt by the trial court and sentenced to six months imprisonment. The trial court subsequently determined that, because of his refusal to testify, Sharp was unavailable and allowed portions of his probable cause hearing testimony to be read to the jury. The state and the defendant then stipulated that subsequent to the probable cause hearing and before the trial, Sharp had been sentenced to probation after he pleaded guilty to charges of larceny in the second degree and failure to appear.

I

The defendant first claims that the trial court improperly admitted into evidence Sharp’s testimony from the probable cause hearing in violation of the defendant’s federal and state constitutional right of confrontation. The admissibility of this evidence hinges upon the defendant’s opportunity to cross-examine Sharp at the prior hearing to ensure the defendant’s right of confrontation. Concluding, in this case, that the defendant had a sufficient opportunity to cross-examine Sharp at the probable cause hearing, we disagree with the defendant’s claim.

In Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), the United States Supreme Court announced a two part test for determining whether former testimony may be admitted without infringing on a criminal defendant’s right of confrontation. “That test requires (1) demonstration that the witness is unavailable to testify at trial, and (2) adequate indicia of reliability of the previous testimony.” (Internal quotation marks omitted.) State v. Munoz, 233 Conn. 106, 148, 659 A.2d 683 (1995) (Berdon, J., concurring); see also State v. Torres, 60 Conn. App. 562, 574, 761 A.2d 766 (2000), cert. denied, 255 Conn. 925, 767 A.2d 100 (2001), citing State v. Williams, 231 Conn. 235, 248, 645 A.2d 999 (1994).

In this case, neither party disputes the unavailability of Sharp at the time of trial. Rather, the parties disagree about whether Sharp’s testimony at the probable cause hearing bore adequate indicia of reliability. More specifically, the defendant argues that Sharp’s testimony was not reliable because he did not have an adequate opportunity to cross-examine Sharp concerning any benefits he received in exchange for testifying at the probable cause hearing.

“Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. . . . Prior testimony [at a pretrial hearing] is a well rooted exception to the hearsay rule.” (Citations omitted; internal quotation marks omitted.) State v. Atkins, 57 Conn. App. 248, 254, 748 A.2d 343, cert. denied, 253 Conn. 916, 754 A.2d 164 (2000), citing State v. Malone, 40 Conn. App. 470, 479, 671 A.2d 1321, cert. denied, 237 Conn. 904, 674 A.2d 1332 (1996); see Ohio v. Roberts, supra, 448 U.S. 72-73. Furthermore, “testimony given at a probable cause hearing has the identical safeguards to insure reliability and trustworthiness as the testimony given at the trial.” State v. Parker, 161 Conn. 500, 503, 289 A.2d 894 (1971); see also Ohio v. Roberts, supra, 73; State v. Atkins, supra, 254.

The record demonstrates that the defendant had the opportunity to cross-examine Sharp during the probable cause hearing, and did, in fact, do so. The right to confrontation “demands that where prior testimony is admitted at a later proceeding, the party against whom the testimony is admitted must have had an opportunity to cross-examine the witness at the earlier proceeding sufficient to endow the testimony as a whole with some indicia of reliability . . . .” (Internal quotation marks omitted.) State v. Joyner, 255 Conn. 477, 491 n.19, 774 A.2d 927 (2001), quoting United States v. Ciak, 102 F.3d 38, 43 (2d Cir. 1996). The proper test is that the party must have been given the opportunity for full and complete cross-examination in the prior proceeding as opposed to actually making full use of that opportunity. See State v. Joyner, supra, 491 n.19; State v. Parker, supra, 161 Conn. 504.

We conclude that the testimony at the probable cause hearing bore adequate indicia of reliability, and it was within the trial court’s discretion, especially in light of the absence of any restrictions on cross-examination at the probable cause hearing, to determine that Sharp’s testimony at that hearing was rehable. Accordingly, we find that the trial court’s admission of Sharp’s probable cause hearing testimony presents no clear violation of the defendant’s right of confrontation under either the state or federal constitution.

II

The defendant next claims that the trial court violated his constitutional right to present a defense when it prohibited him from presenting extrinsic evidence at trial as to the benefits received by Sharp for his testimony following the probable cause hearing in the form of a reduction of his $85,000 cash bond to a promise to appear without cash collateral or surety. The defendant’s opportunity to elicit evidence of bias or motive, beyond that necessitated by the constitution, rests within the discretion of the trial court. See State v. Valentine, 255 Conn. 61, 70-71, 762 A.2d 1278 (2000). The defendant argues that the jury should have also been informed that Sharp was released from incarceration on a promise to appear after the probable cause hearing and before the disposition of his robbery case. While we agree that this evidence should not have been excluded, we conclude that its exclusion was not harmful.

“Impeachment of a witness for bias is a matter of right. This attack on credibility may be accomplished by cross-examination or by the introduction of extrinsic evidence. McCormick, Evidence (2d Ed.) p. 81.” State v. Shipman, 195 Conn. 160, 163, 486 A.2d 1130 (1985); see C. McCormick, Evidence (5th Ed. 1999) § 33, p. 124. “Impeachment of a witness for motive, bias and interest may also be accomplished by the introduction of extrinsic evidence. . . . The same rule that applies to the right to cross-examine applies with respect to extrinsic evidence to show motive, bias and interest .... State v. Colton, 227 Conn. 231, 249, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 350-51, 796 A.2d 1118 (2002).

When the right to cross-examine for this purpose is not denied altogether, the scope of the examination rests in the court’s discretion. See State v. Lewis, 220 Conn. 602, 622, 600 A.2d 1330 (1991); State v. Luzzi, 147 Conn. 40, 47, 156 A.2d 505 (1959). “This same rule applies with respect to the introduction of extrinsic evidence to show bias; that is, proof of the main facts is a matter of right but the extent of the proof of details lies in the court’s discretion. See 3A Wigmore, Evidence (Chadbourn Rev.) § 951, p. 797 n.2.” State v. Shipman, supra, 195 Conn. 163; see also State v. Ferguson, supra, 260 Conn. 350-51.

At the probable cause hearing, Sharp testified that he was fourteen years old on April 14,1996. He testified that he was presently incarcerated and that he had been incarcerated for the last four months on a robbery charge. He also stated under oath that his testimony was not at all influenced by his pending case. In addition, he testified that he had been convicted of a felony, possession of a weapon in a motor vehicle, and that he had three other convictions for narcotics offenses. He stated that he smoked marijuana on April 14,1996, and that he smoked marijuana every day. This testimony was read to the jury at the defendant’s trial. Additionally, the parties entered a written stipulation into evidence to the effect that Sharp had been granted immunity by the state from any criminal conduct to which he referred during his probable cause hearing testimony. The stipulation also stated that Sharp was sentenced to probation after the probable cause hearing and before the trial on charges of larceny and failure to appear.

The defendant then sought to introduce extrinsic evidence of Sharp’s release from custody when his bond on the robbery charge was lowered from $85,000 cash to a promise to appear shortly after he testified at the probable cause hearing. The trial court excluded such evidence, ruling that it was inadmissible because it occurred subsequent to the probable cause hearing. The trial court, however, remarked that the defendant could call the state’s attorneys prosecuting Sharp to elicit from them whether the state had made this offer, regarding bond, to Sharp prior to his testimony. Stating that he had no such evidence, the defense attorney did not call those state’s attorneys.

At the probable cause hearing, Sharp denied that his testimony was influenced by the charges pending against him. When Sharp’s prior testimony was offered at trial, the defendant was not obliged to simply accept that answer; rather, he should have been allowed the opportunity to attempt to contradict Sharp by the submission of other proof. See State v. Shipman, supra, 195 Conn. 163; Atwood v. Welton, 7 Conn. 66, 70 (1828). The lowering of Sharp’s bond and his release on a promise to appear may have lent some support to the defendant’s contention that Sharp testified at the probable cause hearing in expectation of a benefit from the state. That evidence should have been allowed. Nevertheless, because the court admitted plenty of other evidence concerning Sharp’s favorable treatment by the state, which the jury heard, there is no clear showing of prejudice. The jury did hear the most telling piece of evidence available concerning Sharp’s favorable treatment, namely, that he had received a sentence of probation, on reduced charges, despite four prior criminal convictions and that he received this favorable sentence after testifying at the probable cause hearing.

The defendant argues that the court’s ruling as to Sharp’s release from custody before receiving probation was prejudicial because it showed that the state treated him favorably after he testified. However, Sharp’s sentence of probation would also result in his release from custody, as well as the avoidance of substantial incarceration if convicted of robbery as a repeated felon.

Additionally, the jury did hear plenty of other evidence for impeachment purposes, i.e., Shaip’s prior arrests, the state’s favoring him with a grant of immunity and his daily use of marijuana. Moreover, because of the other evidence presented at the trial—Fournier’s testimony that the defendant beat him and Jones after the car accident, and the defendant’s admission to the police and his trial testimony that he was “dragged along” by Fournier’s vehicle before the collision—we conclude that the trial court’s ruling with respect to Shaip’s release on a promise to appear was not prejudicial. Consequently, any error was harmless. See State v. Shipman, supra, 195 Conn. 163-64. Accordingly, we hold that the court’s ruling as to Sharp’s release from bond does not require a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       Sharp also testified about the car crash and what happened subsequent to that crash.


text:
    STATE OF CONNECTICUT v. KERRY J. PULASKI
    (AC 21003)
    Mihalakos, Flynn and Peters, Js.

      Argued April 23 —
    officially released August 13, 2002

      Gilbert Shasha, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Sarah E. Steere, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Kerry J. Pulaski, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 1997) § 14-227a (a). On appeal, the defendant claims that (1) there was insufficient evidence to prove under count one of the substitute information that he was operating while under the influence of intoxicating liquor,* (2) the trial court improperly denied his motion for a judgment of acquittal on the second count of the substitute information and (3) there is a disparity in sentencing between those defendants who exercise their constitutional rights to a jury trial and those who plead guilty. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 26,1998, Trooper Stowall Burnham of the Connecticut state police was traveling northbound on Interstate 95 in East Lyme. At approximately 2 a.m., he observed a vehicle ahead of him moving at a high rate of speed. The posted speed limit was fifty-five miles per hour. Burnham followed the vehicle and gauged its speed to be between seventy-six and seventy-eight miles per hour.

At approximately 2:09 a.m., Burnham stopped the vehicle, approached it on the driver’s side, and asked its operator, the defendant, for his license and registration. After noticing a strong odor of alcohol emanating from the defendant, Burnham asked him to recite the alphabet so as to discern his physical and mental functioning. The defendant slurred his pronunciation and stopped reciting the alphabet at the letter “P.” The defendant was then asked to exit his vehicle and to perform various field sobriety tests, including a walk and turn test and a one-legged stand test. After the defendant failed those tests, at approximately 2:23 a.m., he was arrested and charged with speeding and with operating a motor vehicle while under the influence of intoxicating liquor.

The defendant was transported to the state police barracks. At the barracks, the defendant indicated that he had two beers at atavem between 11:30 p.m. and 1:45 a.m., he weighed 205 pounds, had taken a prescription antibiotic called zithromax the previous afternoon and had last eaten at 1:15 p.m. the previous day. At approximately 2:46 a.m., the defendant submitted to a breath test with an intoxilizer alcohol analyzer (intoxilizer), and his blood alcohol content (BAC) registered at 0.244 percent. A second test was administered at approximately 3:24 a.m., and it registered a BAC of 0.239 percent. Thereafter, in a substitute information, the defendant was charged with (1) operating a motor vehicle while under the influence of intoxicating liquor and (2) operating a motor vehicle while the ratio of alcohol in his blood was 0.10 percent or more of alcohol by weight.

On June 19, 2000, the jury returned a verdict of guilty on both counts of the substitute information, which the court accepted. On June 29, 2000, the court imposed a fine on the defendant and sentenced him to confinement in a community correctional institution for a total of six months, execution suspended after forty-five days, with two years probation on count one of the substitute information. This appeal followed. Additional facts will be set forth as necessary.

The defendant’s first claim on appeal is that the evidence adduced at trial regarding his inability to operate a motor vehicle was insufficient to support count one of the substitute information. Specifically, he argues that the cumulative force of the evidence was insufficient to establish that he operated his motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a) (l). We disagree.

The defendant concedes that his claim is unpreserved and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In State v. Trotter, 69 Conn. App. 1, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002), we recognized that “any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding.” (Internal quotation marks omitted.) Id., 5, quoting State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993); State v. Hicks, 56 Conn. App. 384, 386-87, 743 A.2d 640 (2000). Thus, as in Trotter, we review the defendant’s claim as if it had been properly preserved. See State v. Trotter, supra, 5.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Teti, 50 Conn. App. 34, 38, 716 A.2d 931, cert. denied, 247 Conn. 921, 722 A.2d 812 (1998). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132-33, 646 A.2d 169 (1994). Accordingly, we inquire “whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty”; id., 134; and not “whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence.” Id.

Furthermore, we note that “[t]here is no distinction between direct and circumstantial evidence [so] far as probative force is concerned. ... In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence. ... If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” (Citations omitted; internal quotation marks omitted.) State v. Teti, supra, 50 Conn. App. 39.

“Driving while under the influence of liquor means, under the law of Connecticut, that a driver had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle. State v. Tryon, 145 Conn. 304, 307, 142 A.2d 54 [1958]; State v. Andrews, 108 Conn. 209, 216, 142 A. 840 [1928].” Infeld v. Sullivan, 151 Conn. 506, 509, 199 A.2d 693 (1964); see also State v. Gonzalez, 14 Conn. App. 216, 234, 541 A.2d 115 (1988), aff'd, 210 Conn. 446, 556 A.2d 137 (1989).

The following additional facts are relevant to the resolution of the defendant’s claim. At trial, Burnham testified that between 2:09 a.m. and 2:23 a.m., the time that he stopped the defendant’s vehicle and the time of the defendant’s arrest, respectively, the defendant failed various sobriety tests that included a walk and turn test and a one-legged stand test. Specifically, on the walk and turn test, the defendant raised his arms, stopped to steady himself, stepped off of a straight line and failed to walk heel to toe. The defendant could not complete the one-legged stand test for the requisite thirty seconds without putting his foot down three times before the count of six.* The defendant continued to slur his speech during these tests. Furthermore, as previously discussed, the defendant failed to recite the alphabet beyond the letter “P.” After observing the defendant’s behavior and combined performance on these tests, Burnham concluded that the defendant was under the influence of alcohol and arrested him.

Additionally, Joel Milzoff, a toxicologist and manager of the state health department’s toxicology laboratory who was trained in the study of the effects of alcohol on the body, testified that alcohol acts as a depressant on the central nervous system, slowing its reactions. He asserted that alcohol decreases visual acuity and depresses or impairs one’s ability to operate machinery. Milzoff opined that the central nervous system of an intoxicated person would be significantly depressed or impaired, and such person’s ability to respond to situations would also be significantly depressed.

The jury was presented with evidence regarding the defendant’s behavior and inadequate functioning during a series of field sobriety tests, and an expert’s testimony that an intoxicated person would have a depressed central nervous system and an impaired ability to operate machinery. Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury could reasonably have concluded that the cumulative force of the evidence was sufficient to establish that the defendant had operated a motor vehicle while under the influence of intoxicating liquor. Accordingly, we reject the defendant’s claim.

We are not persuaded by the defendant’s argument that the evidence at trial was insufficient to show that he operated his motor vehicle in a manner consistent with that of an intoxicated driver. In this case, there was direct evidence from Burnham that the defendant operated a motor vehicle, and it was reasonable for the jury to infer, from the defendant’s failure of a series of field sobriety tests, that his ability to operate his vehicle was substantially impaired.

We are similarly not persuaded by the defendant’s argument that the evidence was insufficient to show that his conduct after being stopped by police was consistent with that of an intoxicated driver. The defendant focuses on testimony indicating that he had no difficulty providing his license and registration to Burnham, he understood and followed field test instructions and was able to identify and spell the name of the medication he had taken, zithromax. As previously discussed, however, “[i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Sivri, supra, 231 Conn. 132-33. Accordingly, we conclude that there is a reasonable view of the evidence that supports the jury’s verdict of guilty.

As a final matter, the defendant also claims that the court improperly denied his motion for a judgment of acquittal on the second count of the substitute information at the close of the prosecution’s case-in-chief. Specifically, he argues that the state failed to present evidence from which a jury could conclude beyond a reasonable doubt that the alcohol content in his blood was 0.10 percent or more by weight, within the meaning of § 14-227a (a) (2). Because sufficient evidence was presented to demonstrate that the defendant had operated a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a) (1), we need not address the defendant’s second claim on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       Count one alleged that the defendant had operated a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 1997) § 14-227a (a) (1).

       Count two alleged that the defendant had operated a motor vehicle while the ratio of alcohol in his blood was 0.10 percent or more of alcohol by weight in violation of General Statutes (Rev. to 1997) § 14-227a (a) (2).

       The defendant has not presented this court with legal authority or analysis to support his third claim. “We are not required to review issues that have been improperly presented to this court, through an inadequate brief. . . . Analysis, rather than mere abstract, assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. ... We will not review claims absent law and analysis.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 67 Conn. App. 25, 27 n.2, 787 A.2d 43 (2001). Because the defendant’s brief is inadequate, we deem his third claim abandoned and, therefore, decline to review it.

       Prior to administering the field sobriety tests, Burnham asked the defendant if he had any physical problems that might impact the tests and whether he was taking any medication. The defendant explained that he had screws in his left ankle and that he was taking zithromax. Zithromax is a prescription antibiotic.

       The intoxilizer had been certified by the department of public health as being in good working order. Burnham, trained and certified as a breath analysis instrument operator, administered the defendant’s breath test.

       Additionally, on June 29, 2000, the defendant pleaded guilty to a part, B information dated October 29, 1998, which charged the him with being a repeat offender in that he previously had committed the offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a.

       See footnote 1.

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Burnham testified that the walk and turn test requires a person to put one foot in front of the other with his hands down by his sides, while walking heel to toe, which he described as walking with no more than one half of an inch between heel and toe. The person must count out loud and take nine such steps, and then pivot around and take the same type of steps in the opposite direction.

       Burnham testified that for the one-legged stand test, a person is asked to put his hands by his sides, keep his feet together, then raise one leg six inches off of the ground while keeping his toes pointed. While doing so, the person begins counting to thirty, beginning with one thousand and one, then one thousand and two, one thousand and three, and so on. Burnham testified that because the defendant had screws in his left foot, the defendant was given the choice of which foot to raise.

       Practice Book §§ 42-40 and 42-41 permit motions for judgments of acquittal to be made at the close of the prosecution’s case-in-chief.

       The defendant argued, both at trial when seeking a judgment of acquittal and on appeal, that the state failed to present any evidence to show that the results of his breath tests expressed the amount of alcohol in his blood by weight, rather than by volume or some other factor.


author: DUPONT, J.

text:
    UNITED COASTAL INDUSTRIES, INC. v. CLEARHEART CONSTRUCTION COMPANY, INC., ET AL.
    (AC 21610)
    Mihalakos, Dranginis and Dupont, Js.
    Argued April 2 —
    officially released August 13, 2002

      R. Bradley Wolfe, with whom, on the brief, was Donald J. Shubert, for the appellant (named defendant).

      Brian S. Karpe, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The issues in this appeal are whether the plaintiff subcontractor, in an action against the defendant contractor, can recover as restitution, in quantum meruit or unjust enrichment for work done in partial completion of the work encompassed by their written contract, and, if so, the proper amount of damages. We conclude that the remedy of restitution was proper and that the amount of damages was calculated properly. We therefore affirm the judgment of the trial court.

The defendant contractor, Clearheart Construction Company, Inc. (Clearheart), and the plaintiff subcontractor, United Coastal Industries, Inc. (United), entered into a written contract for the demolition of a building. The plaintiff filed an action against the defendant, claiming damages (1) for breach of contract for failure to pay the contract price plus change orders or (2) in quantum meruit for the reasonable value of the services rendered or (3) for the unjust enrichment of the defendant or (4) arising from a claimed violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendant filed a counterclaim for damages and alleged that the plaintiff had breached the contract, violated CUTPA and intentionally interfered with a contractual relationship. The defendant thereafter impleaded Ronald Walker as a defendant. Walker was an officer, director and shareholder of the plaintiff. The defendant then filed a cross complaint against Walker individually, alleging that he had committed intentional torts against the defendant.

The court rendered judgment for the plaintiff on its quantum meruit and unjust enrichment claims in the amount of $41,125, and rendered judgment for the defendant on the plaintiffs breach of contract and CUTPA claims. The court rendered judgment for the plaintiff and for Walker, and against the defendant on its counterclaim and the cross complaint.

The court found that there was a written contract under which the plaintiff had agreed to perform demolition work for a set payment upon completion of that work by a set date, but that the plaintiff had failed to complete the work by the contractual completion date. The court’s other findings in its memorandum of decision were as follows: “A part of the uncompleted work was caused by an unknown, hazardous existing condition covering a wall that was to be removed; that neither patty was aware of the hazardous condition at the time of the execution of the contract. That the remaining work of demolition that [United] failed to carry out by the contractual deadline placed Clearheart in a position of defaulting on its contract or suffering substantial per diem penalties if not carried out immediately. That Clearheart was within its contractual terms in terminating [United’s] demolition involvement at the terminal date of the contract. . . . [Although the plaintiff, [United], failed to complete the demolition set out in the contract, it did provide the defendant, Clearheart, with benefits based upon the portions of the contract it had carried out. . . . Clearheart did complete those portions of the contract that [United] failed to complete to its financial detriment. However, although Clearheart presented evidence as to its expenditures in completing the demolition . . . Clearheart was unable to segregate those expenditures that applied specifically to the uncompleted demolition . . . .” The court found, however, that based on all of the evidence submitted to it, “Clearheart incurred costs of $29,375 to complete the unfinished demolition . . . .”

The plaintiff discovered asbestos paint on a load bearing wall in late August, 1996. According to the court’s memorandum of decision, “Clearheart admits that the asbestos painted wall required special handling that was not part of [United’s] contract” and that Clearheart’s responsibility was “only to permit use of its dumpster for the disposal of the wall debris.” The court stated that the plaintiff had claimed that it could not remove the wall until the paint was first removed. The plaintiff refused to permit its dumpster to be used, claiming that the use would violate various environmental protection regulations and that the plaintiff was not licensed by the state to remove asbestos.

The court found that if the plaintiff had completed its contract, it would be due $88,900, the contract price, plus change orders of $5100 for a total of $94,000. The court determined that 75 percent of the contract work had been completed by the plaintiff so that it was due $70,500 for that work. The defendant had not paid the plaintiff anything toward the contract price and, therefore, no credit was given to the defendant for a payment. The court deducted the costs of the defendant to complete the work and rendered judgment for the plaintiff in the amount of $41,125.

The defendant claims that because the court found that there was a written contract and that the plaintiff had not substantially completed its work by the contractual completion date, there could be no recovery under either quantum meruit or unjust enrichment. The defendant also claims that if any damages were due, they were found improperly because there was no evidence to support the dollar amounts of the value of the work performed by the plaintiff and the cost to the defendant to complete the work.

“[T]he determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings . . . that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion.” (Internal quotation marks omitted.) Gardner v. Pilato, 68 Conn. App. 448, 453, 791 A.2d 707, cert. denied, 260 Conn. 908, 795 A.2d 544 (2002), citing Hartford, Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994). We must determine, therefore, whether there was sufficient evidence to find that the plaintiff was entitled to restitution and, if so, the proper amount due.

Counts two and three of the complaint, which seek damages for unjust enrichment and quantum meruit, are meant to provide an alternative basis for recovery in the event of a failure to prove the breach of contract claim in count one. See Bolmer v. Kocet, 6 Conn. App. 595, 612, 507 A.2d 129 (1986). Thus, the defendant cannot prevail on its claim that the plaintiff is precluded from recovering in quantum meruit because it did not complete its contractual obligation. See id.

In this case, the plaintiff alleged in count one that it “performed the entire contract under the terms of [the] written agreement as best as could be complied with in accordance with the laws of the State of Connecticut” (emphasis added) and that the defendant had failed to pay the plaintiff any sums under the terms of the contract or for additional approved work. The court found against the plaintiff on that count. We are, therefore, not concerned with any theory of damages arising from a breach of contract by either party.

Before reviewing the claims of the defendant, we discuss the general principles of restitution, which are designed to prevent unjust enrichment. We rely on 3 Restatement (Second), Contracts § 344 et seq. (1981), 5 S. Williston, Contracts (Rev. Ed. 1937) § 1479, and case law. Quantum meruit and unjust enrichment are common-law doctrines that provide restitution, or the payment of money, when justice so requires. See Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001); Sidney v. DeVries, 215 Conn. 350, 351-52 n.1, 575 A.2d 228 (1990); Burns v. Koellmer, supra, 11 Conn. App. 384-85.

Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract. See 5 S. Williston, supra, § 1479. Recovery is proper if the defendant was benefited, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff. See Gardner v. Pilato, supra, 68 Conn. App. 453; Polverari v. Peatt, 29 Conn. App. 191, 200-201, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992). “In the absence of a benefit to the defendant, there can be no liability in restitution; nor can the measure of liability in restitution exceed the measure of the defendant’s enrichment.” Restatement (Third), Contracts, Restitution and Unjust Enrichment, § 2 (d) (Discussion Draft March 31, 2000). These requirements for recovery of restitution are purely factual. Dow & Condon, Inc. v. Muros North Ltd. Partnership, 69 Conn. App. 220, 228, 794 A.2d 554 (2002). Because recovery is fact bound, our review is limited to the clearly erroneous standard. Gardner v. Pilato, supra, 454-55.

Both unjust enrichment and quantum meruit are doctrines allowing damages for restitution, that is, the restoration to a party of money, services or goods of which he or she was deprived that benefited another. Burns v. Koellmer, supra, 11 Conn. App. 383. Quantum meruit is usually a remedy based on implied contract and usually relates to the benefit of work, labor or services received by the party who was unjustly enriched, whereas unjust enrichment relates to a benefit of money or property; id., 384; and applies when no remedy is available based on the contract. Gagne v. Vaccaro, supra, 255 Conn. 401. The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit. It would be contrary to equity and fairness to allow a defendant to retain a benefit at the expense of the plaintiff. Id.

Partial performance under a contract is sufficient to trigger, and, in some cases, to allow a claim for restitution by a breaching party, when there has been a nonwilful breach of a contract, equal to the benefits conferred on the nonbreaching party. Vines v. Orchard Hills, Inc., 181 Conn. 501, 506, 435 A.2d 1022 (1980). A claim for restitution is equitable in nature, and permits a trial court to balance the equities and to take into account competing principles to determine if the defendant was unjustly enriched. Id., 507.

Although restitution for unjust enrichment often applies to situations in which there is no written contract, it can also apply to situations in which there is a written contract and the party seeking restitution has breached the contract. Id., 505-507. The case law and other authorities do not support the defendant’s claim that the plaintiff cannot recover by way of restitution damages arising from unjust enrichment or quantum meruit because the plaintiff had not substantially performed the contract.

In this case, the plaintiff seeks relief, namely, restitution by way of damages, on the ground that the defendant has been unjustly enriched because of the work the plaintiff did pursuant to their contract. This relief can be satisfied by awarding the plaintiff a sum of money to prevent unjust enrichment to the defendant. 3 Restatement (Second), supra, § 345 (d). In some cases, the remedy of restitution is dictated by the fact that the contract is not enforceable because of the breach of the party seeking restitution as a result of impracticality or due to mistake or inability to complete the undertaking. Id., § 371. “Restitution is a common form of relief in contract cases.” Id., § 345, p. 199.

The plaintiff breached the contract by nonperformance (failure to complete the demolition) that justified the defendant in refusing to accept the plaintiffs further performance (the necessity of keeping to the timetable required by the defendant’s contract with the owner), but the defendant cannot retain the entire benefit of the part performance of the plaintiff. The plaintiffs breach does not prevent recovery in restitution.

According to the second illustration in § 374 of 3 Restatement (Second) of Contracts, if a contractor agrees to make repairs to a building in exchange for a specific sum under a contract and then fails to complete the work because of insolvency, the contractor may seek restitution from the building owner. Id., § 374, pp. 216-17. We conclude that the plaintiff can recover damages to restore to it the benefit obtained by the defendant because of the plaintiffs partial performance of the contract. See Circle B Enterprises, Inc. v. Steinke, 584 N.W.2d 97, 100 (N.D. 1998), citing 3 Restatement (Second), supra, § 374 (1); see also Peabody N.E., Inc. v. Marshfield, 426 Mass. 436, 442, 689 N.E.2d 774 (1998).

We must next resolve the appropriate amount of damages due the plaintiff. Again, our standard of review is whether the factual findings of the court were clearly erroneous. See Gardner v. Pilato, supra, 68 Conn. App. 454-55. The defendant claims that there is no factual basis for the court’s conclusion that 75 percent of the contract work had been completed (the value of the work completed by the plaintiff) and that $29,375 had been spent by the defendant to complete the demolition. The damages should equal the gain received by the defendant. See John T. Brady & Co. v. Stamford, 220 Conn. 432, 447, 599 A.2d 370 (1991).

The contract price is evidence of the benefit to the defendant of the partially completed demolition, but is not conclusive. The benefit the defendant received was the value of the partial completion from which the cost necessary to complete the work should be deducted. The court had for its review numerous (seventy-three) invoices as an exhibit and other exhibits as well as the testimony of witnesses for the plaintiff and the defendant. Walker, a director and shareholder of the plaintiff testified that the plaintiff had completed all of the demolition except an asbestos wall and a level wall leaning against it. The defendant’s testimony was that structural floors, block walls and steel were not removed by the plaintiff. This case presented factual issues for a determination of the proper amount of damages. See Gardner v. Pilato, supra, 68 Conn. App. 452-53. In an unjust enrichment case, damages are ordinarily not the loss to the plaintiff, but the benefit to the defendant, for which the fact finder may rely on the plaintiffs contract price when the benefit is too difficult to determine.

The court also concluded that the defendant’s evidence did not allow the court to segregate expenditures applicable to the cost of the remaining demolition work from other expenditures of the defendant. On the basis of all of the evidence presented to it, the court made a reasonable determination that it cost the defendant $29,375 to complete the unfinished demolition left by the plaintiff. The plaintiff did not seek articulation of how the court determined that 75 percent of the demolition work had been completed. The court, however, on the basis of the testimony of Walker, could have so concluded. The facts found by the court are not clearly erroneous, and its conclusion as to the damages due the plaintiff was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also named as defendants Richard H. Seidman, the attorney for the defendant, and Mark Wichmann, the president and sole employee of the defendant. The court renderedjudgment in favor of Wichmann. Earlier, the court granted a motion to strike the sole count of the complaint directed against Seidman. Because only Clearheart has appealed, we refer to it in this opinion as the defendant.

       The plaintiff was entitled pursuant to Practice Book §§ 10-21 and 10-25 to pursue all of these causes of action and to seek alternative relief in the same complaint. See also Burns v. Koellmer, 11 Conn. App. 375, 385-86, 527 A.2d 1210 (1987).

       The defendant’s counterclaim alleged that the cost to correct and complete the plaintiffs work that should have been performed under their contract exceeded the contract price. The defendant also claimed that the plaintiff made unfounded claims about the defendant to various governmental agencies, which caused frequent disruption of its work project while the agencies investigated the claims. In addition, the defendant alleged that the false claims interfered with the defendant’s contractual relationships with the owner of the project and other subcontractors, and were clear violations of CUTPA.

       Clearheart has not cross appealed from the judgments against it on its cross complaint and its counterclaim. We therefore do not consider any of the issues raised by either the defendant’s cross complaint or counterclaim.

       The contract of the parties provided that the plaintiff was responsible for disposal and cleanup “of associated debris into [Clearheart’s] dumpster.”

       The court gave the contract price, including modifications, as $94,000, the plaintiff set the same total at $94,500, and the defendant stated that the total was $95,400.

       The plaintiff did not appeal from the judgment for the defendant on count one of its complaint.