text:
    Dewart Building Partnership v. Union Trust Company et al.
    (3308)
    Hull, Spallone and Daly, Js.
    Argued May 15—decision
    released August 13, 1985

      Robert B. Shapiro, for the appellants (defendants Union Trust Company and Winthrop Associates).

      C. George Kanabis, with whom, on the brief, were Melvin Scott and Rebecca Golub, for the appellee (plaintiff).
   Hull, J.

This appeal presents two narrow issues: (1) whether a termination clause in a commercial lease operated to terminate a tenancy automatically on nonpayment of rent; and (2) if it did not, whether the lessor was under an obligation to make reasonable efforts to mitigate its damages. The trial court, Schaller, J., granted the plaintiff-lessor’s motion for summary judgment. Judgment was rendered for the plaintiff in the amount of $21,490.72, plus interest of $1869.86, and from this judgment the defendants appeal. We find no error.

On April 23,1974, the defendant Union Trust Company (Union), leased commercial property in the city of New London from the plaintiff pursuant to a written lease. Prior to the expiration of the lease, Union notified the plaintiff that it had assigned its lease to the defendant Winthrop Associates and that Winthrop would, thereafter, be responsible for payment of the rent. Winthrop never occupied the property, but it did pay the rent from May through October, 1982. After October, 1982, no further rental payments were made by either of the defendants although the lease was not due to expire until February, 1984.

In August, 1983, the plaintiff filed the present action against the defendants for accrued rent due under the lease. Each side moved for summary judgment. The court granted the plaintiff’s motion for summary judgment and denied the defendants’ motions. The defendants appeal from that judgment.

The defendants claim that the trial court erred in granting the plaintiff’s motion for summary judgment. In support of this claim, the defendants rely on a termination clause in Union’s lease with the plaintiff. The clause provides that “if said rent shall remain unpaid ten (10) days after the same shall become payable . . . then the lease shall thereupon, by virtue of this express stipulation . . . expire and terminate.” The defendants assert that this clause operated to terminate their tenancy automatically when they failed to pay the November, 1982 rent. Under this analysis, the defendants claim that they did not owe the plaintiff any rent and that the court, therefore, should have denied the plaintiffs motion for summary judgment and granted the defendants’ countermotions.

The Supreme Court has interpreted termination clauses similar to the one at issue in this case and has consistently held that nonpayment of rent does not automatically terminate the tenancy. Thompson v. Coe, 96 Conn. 644, 115 A. 219 (1921). The tenancy ends only when the lessor takes some action which unambiguously demonstrates his intent to terminate the tenancy. Hartford Wheel Club v. Travelers Ins. Co., 78 Conn. 355, 62 A. 207 (1905).

The defendants claim that the common law interpretation of this termination clause does not apply in the present case. In support of this claim, the defendants rely on the Supreme Court’s decision in Perruccio v. Allen, 156 Conn. 282, 240 A.2d 912 (1968). There, the Supreme Court stated that “the language [of a lease] must be given its ordinary meaning unless a technical or special meaning is clearly intended . . . .” Perruccio v. Allen, supra, 285. The defendants claim that since the lease contained no indication that a technical meaning of the termination clause was intended, the trial court erred in applying the common law meaning.

The defendants’ argument fails because it ignores the Supreme Court’s decision in Judd v. Mutual Bank & Trust Co., 114 Conn. 553, 159 A. 487 (1932). In Judd, the court stated that “[i]f, ultimately, it does not appear that the intention expressed by the lease is other than in accord with the technical meaning of a condition subsequent, or if such presumption as arises from the use of the term is not effectively overcome and rebutted by other legitimate and admissible considerations, that meaning is to be given effect.” (Emphasis added.) Id., 559. Judd and Perruccio are not inconsistent. Both recognize that “the mere use of the technical term ought not and does not necessarily foreclose resort to other accepted means of ascertainment of the actual intent sought to be expressed . . . .” Judd v. Mutual Bank & Trust Co., supra. Under these cases, the defendants were entitled to show the existence of special circumstances which would indicate that they did not intend to incorporate the common law meaning of the termination clause.

The defendants failed to meet the burden necessary to make such a showing. In a summary judgment proceeding, “ ‘[o]nce the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issues. Bartha v. Waterbury House Wrecking Co., [190 Conn. 8, 11, 459 A.2d 115 (1983)]; Farrell v. Farrell, 182 Conn. 34, 38, 428 A.2d 415 (1980); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975).’ ” Barnes v. Schlein, 192 Conn. 732, 738, 473 A.2d 1221 (1984).

Here, the plaintiff introduced evidence demonstrating that no disputed fact existed. In response, the defendants did not claim that a disputed fact existed. The affidavit the defendants submitted in opposition to the plaintiffs motion for summary judgment did not allege special circumstances which would show an intent to modify the common law. Rather than claim an intent to modify the common law, the defendants insisted that their lease automatically terminated, as a matter of law, when they failed to pay the rent. As explained above, the defendants’ interpretation of the law was incorrect.

Since the defendants did not meet the burden necessary to demonstrate the existence of a disputed factual issue, the common law interpretation of the termination clause did apply. It was undisputed in this case that the plaintiff took no action to terminate the tenancy as required at common law. Therefore, the defendants remained bound by their lease and the trial court was correct in granting the plaintiffs motion for summary judgment.

The defendants also claim that the trial court erred in finding that the plaintiff had no obligation to make reasonable efforts to mitigate its damages. Connecticut law is clear on this point. In an action for rent due, a lessor of commercial property is generally under no obligation to mitigate his damages after the lessee fails to pay rent. White v. Miller, 111 Conn. 53, 58, 149 A. 237 (1930). Such an obligation arises only if the lessor manifests an intent to terminate the tenancy either by taking an unequivocal act showing this intent or by bringing an action for damages based on the tenant’s breach of contract. Sagamore Corporation v. Willcutt, 120 Conn. 315, 318, 180 A. 464 (1935). As stated above, the plaintiff sued for rent due and it did not elect to terminate the tenancy. Under these circumstances, the plaintiff was under no duty to mitigate its damages.

There is no error.

In this opinion the other judges concurred.

       The trial court granted the motion to strike filed by a third defendant, Schnip Development Corporation. That defendant is not a party to this appeal.


source: Caselaw Access Project

author: M. Hennessey, J.

license: Public Domain

text:
    Leroy Behlman et al. v. Universal Travel Agency, Inc.
    (2698)
    Dupont, C.P.J., Borden and M. Hennessey, Js.
    Argued June 7—decision
    released August 13, 1985

      Eddi Z. Zyko, for the appellants (plaintiffs).

      N. Warren Hess III, for the appellee (defendant).
   M. Hennessey, J.

The plaintiffs brought an action to recover damages against the defendant travel agency. The action was in two counts, the first for breach of contract and the second for negligence in carrying out its contractual obligations. The plaintiffs appeal from the judgment for the defendant on both counts.

The trial court found the following facts. The plaintiffs, nineteen in number, paid $399 each for transportation, lodging, guaranteed admission and a ticket to Super Bowl XII in New Orleans. Each of the plaintiffs entered into an individual contract with Octagon Travel Center, Inc. Although the plaintiffs were promised tickets by Octagon when they left Connecticut and again in New York, when they arrived in New Orleans, no tickets were forthcoming.

The defendant supervised the transfer of funds between the plaintiffs and Octagon, as well as answering the inquiries of the plaintiffs and doing the necessary paper work. The defendant made no guarantees since the contracts were solely between the plaintiffs and Octagon. The spokesman for the plaintiffs’ group talked directly with Octagon and obtained necessary assurances on information he was seeking, one of which was the availability of tickets. The plaintiffs made a claim against Octagon, and each received only $75.

The trial court concluded that the plaintiffs had not entered into contractual relationships with the defendant under which it owed a duty to the plaintiffs.

The plaintiffs assign as error essentially (1) that the trial court erred in ruling that the plaintiffs’ contracts and guarantees were with Octagon and not with the defendant, (2) that the trial court erred in ruling that the defendant was Octagon’s agent and that the plaintiffs were aware of this fact and acted accordingly, and (3) that the court erred in ruling that the defendant owed no duty to the plaintiffs and therefore could not be liable for negligence.

The plaintiffs’ first claim is that the court erred in finding that the plaintiffs’ contracts and guarantees were with Octagon and not with the defendant. The trial court had before it the individual written contracts entered into between each plaintiff and Octagon. The uncontroverted evidence before the trial court was that the plaintiffs’ spokesman talked directly with Octagon by phone and received assurances from Octagon as to the availability of tickets. The trial court found specifically that no guarantees were given by the defendant because the contracts existed solely between the plaintiffs and Octagon.

On the basis of the evidence, the trial court reasonably determined that the contracts entered into by the plaintiffs were with Octagon and that such guarantees as were given were given to the plaintiffs by Octagon. It is the function of the trial court to weigh the evidence and judge the credibility of the witnesses. Murphy v. Dell Corporation, 184 Conn. 581, 583, 440 A.2d 223 (1981); Filosi v. Hawkins, 1 Conn. App. 634, 641, 474 A.2d 1261 (1984). Our role is to decide whether the trial court’s decision is clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 3060D; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We conclude that the findings of the trial court that the plaintiffs’ contracts and guarantees were with Octagon and not the defendant are not clearly erroneous.

The plaintiffs’ next claim is that the trial court erred in finding that the defendant was Octagon’s agent and that the plaintiffs were aware of this and acted accordingly. The existence of an agency relationship is a question of fact for the trier. Botticello v. Stefanovicz, 177 Conn. 22, 26, 411 A.2d 16 (1979). To avoid personal liability, it is the duty of an agent to disclose both the fact that he is acting in a representative capacity and the identity of his principal. Klepp Wood Flooring Corporation v. Butterfield, 176 Conn. 528, 532-33, 409 A.2d 1017 (1979). An agent, by making a contract only on behalf of a competent disclosed principal whom he has the power to bind, does not thereby become liable for its nonperformance. 2 Restatement (Second), Agency § 328.

The trial court had evidence before it from which it could and did conclude that the defendant was nothing more than a middleman, a mere scrivener, acting in a representative capacity for an identified principal. We hold that the trial court’s finding is not clearly erroneous.

The second count of the plaintiff’s complaint states a cause of action for negligence, which is the basis for the plaintiff’s final claim. “To sustain a cause of action [in negligence], the court must determine whether the defendant owed a duty to the [plaintiffs]; Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); and the applicable standard of care. Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 482, 356 A.2d 117 (1975). The existence of a duty is a question of law. . . . Only if such duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.” (Citations omitted.) Shore v. Stonington, 187 Conn. 147, 151-52, 444 A.2d 1379 (1982).

Negligence cannot be predicated upon the failure to perform an act which the actor was under no duty or obligation to perform. Here, the trial court found that the defendant’s part in its relationship with the plaintiffs was to supervise the transfer of funds between the plaintiffs and Octagon, as well as answering the inquiries of the plaintiffs and doing the necessary paper work. The trial court found that a contract existed between the plaintiffs and Octagon, and that there was no contractual relationship between the plaintiffs and the defendant. The trial court found that the claimed acts of negligence were solely the obligation of the insolvent contractor, Octagon, and concluded that the plaintiffs had failed to prove by a fair preponderance of the evidence any breach of duty owed to them by the defendant. We hold that the trial court’s conclusion is not clearly erroneous.

There is no error.

In this opinion the other judges concurred.


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. FREDERICK PAYNE
    (12993)
    Lavery, Landau and Schaller, Js.

      Argued September 14
    decision released December 26, 1995

      John W. Watson, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The juiy could reasonably have found the following facts. On February 4, 1993, at 5 p.m., the defendant approached three boys, R, age eight, his brother A, age five, and their friend L, age ten, in a dark hallway of a vacant apartment building in a New Haven housing project. Standing in the doorway so as to prevent the boys from leaving, the defendant ordered the boys to urinate into a cup. The defendant told R that he was going to kill him if he did not comply. After all three boys urinated, the defendant gave them $1 and allowed them to leave. R and A ran home crying and told their mother, T, what had occurred.

T and her sons approached Officers Brian Morris and John Dalton of the New Haven police department in the courtyard of the housing project. T informed the police officers of the incident and described the defendant. Morris and Dalton told T to return home and to wait for their telephone call. In an effort to locate the defendant, Morris and Dalton proceeded to a nearby parole office. Morris and Dalton described the defendant to a parole officer who stated that the defendant was currently in the building attending a drug and alcohol recovery meeting. Morris and Dalton then telephoned T and requested that she and her sons meet them there. At the probation office, R and A positively identified the defendant as the man who had forced them to urinate. The police arrested the defendant and, upon searching him, seized a small plastic bottle of urine they found hidden in the waistband of his underwear.

The jury returned verdicts of guilty of risk of injury, not guilty of felony coercion, and guilty of misdemeanor coercion as a lesser included offense. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal and for judgment notwithstanding the verdict pertaining to the charge of risk of injury to a child pursuant to § 53-21. He argues that the statute, as applied to him, is vague because neither the language of § 53-21 nor controlling judicial gloss afforded him fair warning that conduct posing a risk of injury solely to a child’s mental health would violate the statute. We disagree.

“General Statutes § 53-21 proscribes ‘two general types of behavior . . . “(1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare” and “(2) acts directly perpetrated on the person of the minor and injurious to [his] moral or physical well-being.” ’. . . In both instances, the focus of the statute is on the behavior of the defendant, not on the character, history or experience of the victim. See State v. Pickering, 180 Conn. 54, 63-65, 428 A.2d 322 (1980).” (Citations omitted.) State v. Apostle, 8 Conn. App. 216, 242, 512 A.2d 947 (1986).

Under the first prong, it is not necessary that a defendant touch any part of the victim’s body. Rather, the creation of a prohibited situation is sufficient to breach the statute. State v. Perruccio, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984). Under the second prong, acts that are perpetrated directly on the body of a child are proscribed. State v. Schriver, 207 Conn. 456, 467, 542 A.2d 686 (1988).

The defendant in this case was charged pursuant to the first prong of § 53-21. At the state’s request, the trial court instructed the jury that one element of risk of injury was that the defendant “created ... a situation likely to be harmful to the victim’s health or morals.” The court then defined health as “a state of being hale, sound or whole in body, mind or soul, or well-being.” On appeal, the defendant posits that the state’s theory of liability based on impairment of mental health is precluded by our Supreme Court’s decision in State v. Schriver, supra, 207 Conn. 456.

In Schriver, the defendant physically grabbed a fully clothed thirteen year old girl around the waist while uttering a sexual remark. Unlike the present case, the state prosecuted the defendant in Schriver under the second prong of § 53-21. The state charged that the defendant committed a prohibited act under either the “health” or “morals” clause of that prong. Id., 461. On appeal, the Supreme Court held that the statute was unconstitutionally vague because controlling judicial gloss required the actual touching of a victim’s private parts for impairment of morals and instances of blatant physical abuse for injuries to health. Id., 466. The court refused to conclude, as the state urged, “that the defendant’s conduct was culpable because it created a cognizable risk of mental injury to the victim.” Id.; see also State v. Kulmac, 230 Conn. 43, 72-73, 644 A.2d 887 (1994). Schriver, however, left open the question of whether the state could pursue a prosecution based solely on an impairment of mental health under the first prong of the statute. State v. Schriver, supra, 207 Conn. 467. Schriver, therefore, does not control our decision in this case.

To resolve the defendant’s claim that § 53-21 was vague as applied to him, we must decide whether conduct that is likely to impair the mental health of a victim is proscribed under the first prong of § 53-21, Specifically, we must determine whether the defendant was fairly warned that threatening the victims in a dark area of a vacant building in order to compel them to urinate into a cup was such prohibited conduct. State v. Pickering, supra, 180 Conn. 61.

“The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. . . . The fair warning principle has firm roots in federal constitutional law. . . . The United States Supreme Court recently emphasized, however, that the more important aspect of the vagueness doctrine is not actual notice, but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement. ... A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Citations omitted; internal quotation marks omitted.) State v. Schriver, supra, 207 Conn. 459-60.

“In order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. . . . The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. . . . Under appropriate circumstances, the presence of a specific intent element in the offense may purge a potentially vague criminal statute of constitutional infirmity. . . . Furthermore, a facially vague law may nonetheless comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards. . . . For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue.” (Citations omitted; internal quotation marks omitted.) Id., 460-61. “A party contesting a statute’s constitutionality has a heavy burden to prove unconstitutionality beyond a reasonable doubt.” State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985).

The general purpose of § 53-21 is to protect the well-being of children. See State v. Palangio, 24 Conn. App. 300, 304, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991). The plain language of the first prong states that “[a]ny person who . . . causes . . . any child ... to be placed in a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired” will be guilty of risk of injury. The statute does not define the word “health,” nor does it indicate whether health refers to physical health or mental health. The statute does, however, distinguish three alternative classes of potential injury: endangering life or limb, likely injury to health, and impairment of morals.

Operating, as we must, on the assumption that the statute is constitutional; Eielson v. Parker, 179 Conn. 552, 557, 427 A.2d 814 (1980); we look to the phrase “health is likely to be injured” to determine whether any inherent vagueness in that phrase prevented the defendant from ascertaining the meaning of the statute. State v. Pickering, supra, 180 Conn. 62. The rule of strict construction of criminal statutes does not authorize an interpretation that frustrates the intent of the legislature. State v. Grant, 33 Conn. App. 133, 140, 634 A.2d 1181 (1993).

First, we note that use of the phrase “its life or limb is endangered” indicates an obvious intent on the part of the legislature to protect children from the type of conduct that creates a risk of physical injury. See, e.g., State v. George, 37 Conn. App. 388, 656 A.2d 232 (1995) (defendant locked seventeen month old baby in car after police warned him not to do so); State v. Jones, 29 Conn. App. 683, 617 A.2d 918 (1992) (defendant engaged in high-speed automobile chase with child in vehicle). Similarly, use of the phrase “its morals likely to be impaired” indicates that the legislature intended to prohibit conduct that threatens the morality of children. See, e.g., State v. Hauck, 172 Conn. 140, 374 A.2d 150 (1976) (defendant took photographs of nude and semi-nude victim); State v. Erzen, 29 Conn. App. 591, 617 A.2d 177 (1992) (defendant lured two female children to secluded place where he exposed himself and masturbated). Because these two phrases expressly provide protection to minors from physical and moral injury, we must assume that the legislature intended the phrase “its health is likely to be injured” to mean something different from physical or moral health in order to avoid redundancy. See Hayes v. Travelers Indemnity Co., 26 Conn. App. 418, 420-21, 601 A.2d 555 (1992).

Health is defined as “the condition of an organism or one of its parts in which it performs its vital functions normally or properly: the state of being sound in body or mind . . . .” Webster’s Third New International Dictionary. It is further defined as the “[sjtate of being hale, sound, or whole in body, mind or soul . . . .” Black’s Law Dictionary (6th Ed. 1990). Health, therefore, is the general, or total well-being of a person, and includes the separate and distinct concepts of mind and body. Common sense and ordinary understanding dictate that the soundness of body refers to physical health, and the soundness of mind, to psychological or mental health.

By adopting the separate phrase “its health is likely to be injured,” after making express provisions addressing life, limb and morality, we must assume that a reasonable interpretation of the statute is that the legislature also intended to proscribe conduct injurious to mental health. See State v. Uretek, Inc., 207 Conn. 706, 719, 543 A.2d 709 (1988). If the legislature did not intend to include mental health under the general term health, it would have limited the statute to the express provisions referring to physical and moral injury.

We conclude that conduct that creates a situation inimical to the mental health of a minor child violates the first prong of § 53-21. We farther conclude that because a person of ordinary intelligence would reasonably know that threatening a child with physical harm in order to compel him to urinate in public in a dark area of a vacant building would expose a child to a risk of injury to his mental health, the statute, as applied to this defendant, was not unconstitutionally vague.

II

The defendant next claims that the trial court improperly instructed the jury (1) by failing to instruct on the elements of risk of injury as the defense requested and (2) by permitting the jury to consider the “common sense of the community” in identifying situations likely to impair the health and morals of a child. We disagree.

“A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. . . . State v. Usry, 205 Conn. 298, 316, 533 A.2d 212 (1987); State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); see State v. Wood, 208 Conn. 125, 132, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). An instruction that fails to satisfy these requirements would violate the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989); State v. Foster, 202 Conn. 520, 537, 522 A.2d 277 (1987); State v. Fleming, [198 Conn. 255, 269-70, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986)]. . . . State v. Avila, [223 Conn. 595, 602-603, 613 A.2d 731 (1992)].

“The test of a charge is whether it is correct in law, adapted to the issues and sufficient for the guidance of the jury. Berniere v. Kripps, 157 Conn. 356, 358, 254 A.2d 496 (1969); State v. Bell, 153 Conn. 540, 219 A.2d 218 (1966) .... The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established. Vita v. McLaughlin, 158 Conn. 75, 77, 225 A.2d 848 (1969); Worden v. Francis, 153 Conn. 578, 579, 219 A.2d 442 (1966). . . . State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979). The purpose of a charge is to call the attention of the members of the jury, unfamiliar with legal distinctions, to whatever is necessary and proper to guide them to a right decision in a particular case. Shea v. Tousignant, 172 Conn. 54, 59-60, 372 A.2d 151 (1976).” (Internal quotation marks omitted.) State v. Lemoine, 233 Conn. 502, 509-10, 659 A.2d 1194 (1995).

A

The defendant first claims that the trial court’s charge to the jury was improper because the court “merely divide [d] the language of the statute into three elements,” and failed to provide authoritative judicial gloss to cure the facial vagueness of the statute. The defendant asserts that because his requested charge properly stated the elements of risk of injury, the court improperly refused to adopt it.

Although a trial court is required to instruct a jury as requested, the requested charge must represent an accurate statement of the law. State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). The defendant argues that the court should have instructed the jury that it could not convict him of risk of injury under the first prong unless the state proved that he either threatened the victims with blatant physical abuse or exposed them to lewd or indecent contact, and that the victims were exposed to injury other than injury to mental health. Neither the statute nor judicial gloss establishes, however, that a threat of blatant physical abuse is an element under the first prong. To violate the statute, a person need only create a situation that exposes a child to a likely injury to its health or morals. State v. Perruccio, supra, 192 Conn. 159-60.

Moreover, a conviction under the first prong does not, as the defendant claims it does, require proof that a minor was exposed to a threat of lewd or indecent contact. For that proposition, the defendant relies on State v. Zwirn, 210 Conn. 582, 556 A.2d 588 (1989). Zwim held that when a prosecution is based on an act of physical contact that impairs the morals of a chid under the second prong, the state must prove that the predicate contact was committed in a sexual and indecent manner. Id., 588. Because the defendant in this case was not prosecuted under the second prong, Zwim does not control. Finally, the defendant’s assertion that the trial court had to instruct the jury that a conviction cannot be based solely on a likely impairment of mental health is incorrect for the reasons set forth under part I of this opinion.

Our review of the record reveals that the trial court adequately instructed the jury on the elements of risk of injury pursuant to the first prong under § 53-21. In clear and concise language, the court divided the crime into its three essential elements. The court stated that (1) the juiy had to find the defendant’s conduct was wilful or unlawful, (2) the defendant created, acquiesced in or was deliberately indifferent to a situation that was likely to be harmful to the victim’s health or morals, and (3) the victim was less than sixteen years old. The jury was properly instructed that “[t]here is no requirement that the defendant utilized threats” and that “it is not necessary that the defendant touch any part of the victim’s body.” The court also clarified facial ambiguities in the statute by defining several terms such as wilful, unlawfully and health.

Because the defendant’s request to charge did not accurately state the elements of risk of injury under the first prong, we conclude that the trial court properly exercised its discretion in refusing to instruct the jury as the defendant requested.

B

The defendant’s next claim regarding the jury instructions is premised on the following charge by the court: “The statute does not specify the situations being likely to impair the health and morals of a child. The common sense of the community as represented by you, the jury, as well as the sense of decency, propriety and morality which most people entertain is sufficient to apply the statute to any particular case.” The defendant argues that this portion of the charge was improper because it allowed the jury to decide the case based on individual moral judgments.

The trial court based its “common sense of the community” charge on language this court quoted in State v. Erzen, supra, 29 Conn. App. 599, from State v. Sousa, 2 Conn. Cir. Ct. 452, 201 A.2d 664 (1964). Although we were not bound by Sousa; State v. Johnson, 28 Conn. App. 708, 716 n.5, 613 A.2d 1344 (1992), aff'd, 227 Conn. 534, 630 A.2d 1059 (1993); we found in Erzen that the common sense of the community was an appropriate standard for a jury to apply in order to distinguish innocuous conduct from conduct that would violate the first prong of § 53-21. State v. Erzen, supra, 599. In the present case, as in Erzen, the jury had to determine whether the defendant’s conduct violated the statute.

The record reveals that the trial court’s instructions as a whole were correct in law and properly adapted to the issues. The court thoroughly explained, inter alia, the presumption of innocence, the state’s burden to prove each element of the crimes charged beyond a reasonable doubt, and the jury’s obligation to weigh all of the evidence objectively before reaching its verdict. The court also cautioned the jurors against permitting any personal feelings of sympathy, prejudice or bias to affect their decision making. We are not persuaded, therefore, that the jury, upon hearing that it could consider the “common sense of the community” to assess the defendant’s conduct, in light of the entire charge, was misled in any way or that it disregarded its duty to base its verdict on the evidence rather than on the morals of the individual jurors. We conclude that the trial court properly permitted the jury to apply the common sense of the community standard under the facts of this case.

Ill

The defendant next claims that the trial court improperly denied his motion for judgment of acquittal and for judgment notwithstanding the verdict on both convictions because there was insufficient evidence adduced at trial to prove that the defendant threatened the victims in order to compel them to urinate. Without proof of a threat, the defendant argues that no reasonable jury could convict him of risk of injury and coercion. We disagree.

“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold 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 .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ...” (Citations omitted; internal quotation marks omitted.) State v. Goodrum, 39 Conn. App. 526, 531-32, 665 A.2d 159 (1995).

In analyzing the sufficiency of the evidence as it applies to the charge of risk of injury, we first note that a verbal threat to kill is not a required element of either prong. What is required is that the defendant either place a victim in a situation or commit an act that was likely to impair the morals or health of a child under the age of sixteen. State v. Apostle, supra, 8 Conn. App. 242-43. Therefore, we need determine only whether the evidence was sufficient to prove the required elements of risk of injury beyond a reasonable doubt.

The state’s evidence of the ages of the three victims was uncontested; each was below the age of sixteen. The evidence also established that the defendant created the situation in which the victims were exposed to an injury to their mental health. The defendant approached the three boys in a dark hallway of an apartment building in their housing project and told them to “pee in a cup.” The defendant stood in the doorway as the three boys exposed their private parts and urinated. R felt that he was not able to get out of the building. As a result of the defendant’s conduct, R went home crying and told his mother that the defendant had threatened to kill him if he did not urinate. After the incident, R had nightmares, was afraid to sleep alone, placed makeshift bars on his bedroom window and refused to talk for one week. We conclude that there was sufficient evidence adduced at trial to establish the elements of risk of injury to a child beyond a reasonable doubt.

We next review the sufficiency of the evidence regarding the defendant’s conviction of misdemeanor coercion. To sustain this conviction, the state had to prove that the defendant compelled the victims to engage in conduct in which they had a legal right not to engage. See General Statutes § 53a-192. A defendant’s conduct is culpable if it instills in the victims a fear that, unless they comply with the defendant’s request, the defendant will “[cjommit any criminal offense.” General Statutes § 53a-192 (a) (1). In this case, evidence of the defendant’s oral threat to kill R established that the victims were compelled to urinate out of fear that the defendant would commit a crime against them if they did not.

The following additional facts are relevant to this claim. Immediately after the incident, R told his mother and the police that the defendant threatened to kill him if he did not “pee” in the cup. During the ensuing police investigation, R repeated to Morris on at least five to eight occasions that the defendant had threatened to kill him. Although R’s mother gave a written statement to the defense in which she stated that R had told her that the defendant did not threaten him, she later disclaimed that statement as a lie. T testified that she had lied to the defense investigator hoping to keep R out of court.

Reviewing this evidence in the light most favorable to sustaining the jury’s verdict, we are convinced that there was sufficient evidence from which the jury could have found that the defendant threatened to commit a criminal offense. The jury therefore could reasonably have found that the defendant instilled fear in the victims thereby compelling them to urinate. Further, there is no question that the victims had a legal right not to expose their private parts and urinate in a public place. We conclude that the cumulative effect of the evidence was sufficient to support the defendant’s conviction of misdemeanor coercion beyond a reasonable doubt.

IV

The defendant next claims that the trial court abused its discretion (1) in refusing to issue a capias to compel the appearance of two witnesses subpoenaed by the defense who had failed to appear in court, and (2) in excluding evidence that the defendant had approached three other youths earlier on the day of the incident and had asked them to urinate in exchange for $1.

A

The following additional facts are relevant to the resolution of the defendant’s claim regarding the capias. During the state’s case-in-chief, the defense learned the identity of L, who R stated had been present at the incident. On Wednesday, June 23, 1993, Morris testified that he interviewed L immediately after the incident, but did not know L’s current address. On June 24, the trial court recessed the proceedings until June 29.

On Wednesday, June 30, defense counsel informed the court of the following: On June 28, defense counsel and an investigator from the public defender’s office went to L’s home and interviewed him in the presence of his mother, S. Defense counsel then personally served S with a subpoena to have L appear in court on June 29, 1993, at 10 a.m. Later in the day on June 28, S telephoned the defense and stated she would be unable to arrive at court until 2 p.m. S and L failed to appear in court on June 29. The defense investigator again spoke with S on the morning of June 30. At that time, S flatly refused to have L appear in court. The defendant then requested that the court issue a capias to compel the appearance of S and L, and the court denied the request.

The defendant argues that the court deprived him of his constitutional right to compel the appearauce of witnesses for his defense. He claims that pursuant to General Statutes § 52-143 the court had the authority to issue the capias, and abused its discretion by not doing so.

Section 52-143 authorizes the trial court to issue a capias to compel the appearance of a witness who fails to appear without justification. The statute “does not, however, make it mandatory for the court to issue a capias when a witness under subpoena fails to appear; issuance of a capias is in the discretion of the court . . . [which] has the authority to decline to issue a capias when the circumstances do not justify or require it. . . . Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity. . . . [T]he action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. ...” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Mitchell, 8 Conn. App. 598, 604, 513 A.2d 1268, cert. denied, 201 Conn. 810, 516 A.2d 887 (1986).

In denying the capias, the trial court made the following findings. First, the defendant failed to indicate in the space provided on the subpoena how the subpoena was served. Second, the appropriate time for the defendant to have requested the capias was on Tuesday, June 29, 1993, at 10 a.m. when the witnesses failed to appear. At that time, the court could have compelled their appearance on June 30 without a delay in the proceedings. Third, the trial was near its conclusion and only six jurors remained. The court reasoned that a delay in the trial pursuant to a capias would risk the possibility of losing a juror, and the trial could not proceed with fewer than six jurors. The court further found that a capias was not justified because the defendant had ample opportunity to secure the appearance of S and L during the previous extended weekend recess and failed to do so.

In an abuse of discretion review, we must make every reasonable presumption in favor of the trial court’s action. Id. Under the facts of this case, we cannot conclude that the trial court acted unreasonably in failing to issue the capias. The record reveals that the court made substantial inquiry of defense counsel pursuant to his request for the capias and provided adequate reasons for its denial. We conclude that the trial court properly exercised its discretion in refusing to issue the capias.

B

The defendant’s final claim is that the trial court improperly sustained the state’s objection to the testimony of two nieces of the defendant and two brothers who live in the housing project where the incident occurred. In an offer of proof through those witnesses, the defendant attempted to convince the court that it should allow them to testify as to statements made by the defendant and as to the defendant’s demeanor earlier on the date of his arrest. Their testimony would indicate that the defendant had offered money to the brothers and to other youths in the project, prior to approaching R, in order to obtain a urine sample.

The defendant sought to introduce this evidence to establish that he had not been angry, aggressive or threatening earlier on the day of his arrest to show that he acted in the same nonthreatening manner toward the victims. The state objected to all of the proffered testimony, and the court sustained the objection on relevancy grounds.

“[T]he trial court’s rulings on the admissibility of evidence are accorded great deference and will be disturbed on appeal only on a showing of clear abuse of discretion. ... A trial court has broad discretion in its rulings on the relevance of evidence and in its determination of whether the probative value of evidence outweighs its prejudicial effect. Reversal is required only when there is an abuse of discretion or when an injustice has been done. . . . Evidence is considered relevant when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.” (Citations omitted; internal quotation marks omitted.) State v. Garcia, 37 Conn. App. 619, 633-34, 657 A.2d 691, cert. denied, 234 Conn. 917, 661 A.2d 97 (1995).

Our review of the record reveals that the trial court excluded the proffered evidence on the basis of its conclusion that the defendant’s earlier conduct toward the other youths was not an appropriate barometer by which to gauge his later conduct toward the victims. The court opined, “I just don’t follow the logic of that at all. It’s like, for example, if I’m accused of bank robbery and my lawyer brings up the fact that I’d walked by a hundred banks in the last six months and never held up one of them. Does it prove anything?”

We conclude that the trial court did not abuse its discretion in refusing to allow the defendant’s witnesses to testify on the ground that the challenged evidence was irrelevant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides in pertinent part: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals, likely to be impaired . . . shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-192 provides in pertinent part: “(a) A person is guilty of coercion when he compels or induces another person to engage in conduct which such other person has a legal right to abstain from engaging in ... by means of instilling in snch other person a fear that, if the demand is not complied with, the actor or another will: (1) Commit any criminal offense ....
      “(c) Coercion is a class A misdemeanor except, if the threat is to commit a felony, coercion is a class D felony.”

       As the result of a prior conviction, the defendant was under the supervision of a parole officer and subject to random urine testing for drugs and alcohol. The defendant approached the victims in order to obtain a clean urine sample to give as his own to his parole officer. He was also required to attend weekly meetings with a counselor.

       The Supreme Court stated: “At the outset, we note that the defendant in this case was charged under the second part of § 53-21. To have violated the statute, then, the defendant had to "have committed acts directly perpetrated on the person of a minor, whether the alleged impairment was mental orphysical. Under different circumstances, the state might elect to prosecute under the first part of § 53-21, which proscribes the deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare .... A defendant need not physically touch a minor in order to violate that provision of § 53-21.” (Citations omitted; internal quotation marks omitted.) State v. Schriver, supra, 207 Conn. 467.

       The definition of health in Black’s Law Dictionary was used verbatim by the trial court in its charge to the jury. The court used the model charge for risk of injury as set forth in D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (Sup. 1994) § 10.8A, which included this definition.

       The defendant’s request to charge states in pertinent part: “2. Unless you find that the defendant created, or permitted the minor to be placed in, a situation in which he was likely to be subjected to deliberate, blatant physical abuse, you may not find that his health was likely to be injured, and you must find the defendant not guilty.
      “3. Unless you find that the defendant created, or permitted the minor to be placed in, a situation in which he was likely to be subjected to lewd or indecent conduct and touch of a sexual nature, you may not find that his morals were likely to be impaired, and you must find the defendant not guilty.
      “4. Our statute on risk of injury to a minor does not permit a conviction based on likely impairment of mental health alone. Therefore, unless you are satisfied beyond a reasonable doubt that some injury to the minor other than impairment of mental health was likely to result form the defendant’s conduct, whatever you may find it to have been, you must find the defendant not guilty. ...”

       General Statutes (Rev. to 1993) § 52-143 (d) provides in relevant part: “If any person summoned by . . . any public defender . . . fails to appear and testify, without reasonable excuse ... the court or judge, on proof of service . . . may issue a capias ... to arrest the witness and bring him before the court to testify.” That provision is now § 52-143 (e).

       The trial court also excluded the evidence on hearsay grounds.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. HECTOR S. SOTO
    (13569)
    Lavery, Landau and Spear, Js.
    Argued October 30
    decision released December 26, 1995

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

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard Palumbo, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

After a jury trial, the defendant was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and larceny in the second degree in violation of General Statutes § 53a-123 (a) (l). On appeal, he claims that (1) the wording of the information as to the robbery charge required the state to prove that the alleged “firearm” was capable of discharging a shot and proof of such capability was completely lacking, (2) the trial court improperly instructed the jury that the only effect of the presumption of innocence was to require the state to prove guilt beyond a reasonable doubt, (3) the trial court improperly placed a burden on the defendant to prove his innocence by instructing the jury on theories consistent with innocence, and (4) the trial court, by instructing the jury that a guilty verdict could be based on the testimony of a single witness, improperly diluted the state’s burden of proof on the element of identification of the perpetrator.

The defendant did not raise these issues in any manner at trial. He now seeks Golding review of each. We have carefully reviewed the defendant’s claims in light of the evidence, the record and the trial court’s instructions as a whole. We find those issues to be without merit.

The judgment is affirmed.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . . .”

        The information charged a violation of subsection (a) (4) of the statute, but omitted the words “what he represents by his words or conduct to be.” The evidence revealed that the defendant displayed what he represented to be a gun and threatened to shoot the victim. The defense was misidentification. The court read § 53a-134 (a) (4) to the jury and told them several times that they had to find beyond a reasonable doubt that “the defendant displayed or threatened the use of what he represented by his words or conduct to be a firearm” in order to convict him. The defendant makes no claim of lack of notice, surprise or prejudice. There is no merit to this claim. See State v. Mitchell, 37 Conn. App. 228, 233-38, 655 A.2d 282 (1995).

       General Statutes § 53a-123 (a) provides in pertinent part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which exceeds five thousand dollars . . . .”

        State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), provides that a defendant can prevail on an unpreserved constitutional claim “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 afundamental 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.”


author: LAYERY, J.

text:
    SOUTHINGTON SAVINGS BANK v. KIMBERLY RODGERS ET AL.
    (13802)
    O’Connell, Laveiy and Hennessy, Js.
    Argued September 27
    decision released December 26, 1995

      Janet C. Hall, with whom, on the brief, were Christopher J. Hug and Louise Van Dyck, for the appellant (plaintiff).

      SebastianN. Giuliano, with whom, on the brief, were Thomas T Lonardo and Nella R. Rafala, for the appel-lees (defendants).
   LAYERY, J.

The plaintiff, Southington Savings Bank, appeals from the judgment of the trial court declaring a security interest null and void, and awarding the defendants punitive damages and attorney’s fees. The plaintiff claims that the trial court improperly (1) found the plaintiff liable under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., despite a defectively pleaded counterclaim; (2) granted the equitable remedy of rescission of the mortgage; (3) awarded punitive damages; (4) found that the plaintiffs conduct amounted to a deceptive act in violation of CUTPA; and (5) rejected the plaintiffs special defense of equitable estoppel. We find, as a matter of law, that the plaintiffs conduct was not deceptive as defined under CUTPA and, therefore, reverse the judgment of the trial court.

The trial court found the following facts. Prior to 1989, the defendants Joseph Geladino and Ann Marie Matta were in the business of building and selling houses in Southington. Many of the defendants’ development undertakings were financed by the plaintiff, and the parties enjoyed a long and mutually prosperous relationship. On May 5, 1989, the defendants executed a note and mortgage for $1.2 million for the purpose of developing a thirty-six acre parcel in Southington known as Village Estates. The defendants purchased the land for $800,000 and, with the balance of the loan, proceeded to develop the property by installing roads and utilities.

When the mortgage funds were insufficient to complete the development, the defendants sought further financing from the plaintiff. Between August, 1989, and April, 1990, the defendants executed five unsecured promissory notes in favor of the plaintiff for a total sum of $250,000. In addition to the five unsecured notes, the plaintiff released its lien on one parcel in Village Estates to allow the defendants to sell that parcel to the local water company. The plaintiff permitted the defendants to retain the proceeds from this sale to apply toward further development expenses.

In 1990, the real estate market in Southington began to decline. The defendants began to fall behind on their loan payments to the plaintiff and were unable to sell any of the remaining lots in Village Estates. On June 1, 1990, Ralph Mann, president of Southington Savings Bank, inspected most of the defendants’ properties that were financed by the plaintiff. Mann determined that the construction advances made by the bank to fund the defendants’ projects exceeded the actual stage of construction. Mann also noted that the amounts on deposit in the defendants’ various accounts with the bank were decreasing.

Throughout June and July, 1990, the parties discussed plans to resolve the defendants’ financial problems. In connection with these discussions, the parties considered completing a spec, house on one of the Village Estates lots to generate sales. The plaintiff also agreed to give the defendants a loan to build a duplex on another lot in Village Estates.

The parties also discussed the possibility of securing the five unsecured loans by placing a mortgage on two lots owned by the defendants that were located on Mariondale Avenue. The defendants were initially reluctant to encumber these parcels. Mann told the defendants that if the five loans were not secured, it was unlikely that the bank would provide the defendants with any further financing, including the loan to build the spec, house. Throughout the summer of 1990, bank officers repeatedly contacted the defendants to schedule a closing to execute this mortgage.

By August, 1990, the defendants were approximately $55,000 in arrears on payments to the plaintiff. On August 23, 1990, Mann, concerned about the plaintiffs position, directed that a hold be placed on ten certificates of deposit held by the defendants and valued at approximately $290,000. In accordance with this hold, Mann instructed bank employees that the defendants could not withdraw funds from these accounts without Mann’s approval. The plaintiff did not notify the defendants of the hold that was placed on these accounts.

On August 29,1990, without notice of the hold placed on the ten certificates of deposit, the defendants executed a note in the amount of $261,533.22. This note was secured by the two Mariondale lots and was taken in satisfaction of the five past due unsecured notes. At that time, the defendants also executed a note and mortgage for $325,000 in order to construct the spec, house.

The defendants first became aware that the holds were in place in early September when they attempted to withdraw funds to pay their daughter’s college tuition. They immediately demanded that the holds be released, but the plaintiff refused to do so. The plaintiff, however, allowed the defendants to withdraw the necessary funds to pay their daughter’s tuition. On at least five or six occasions, the defendants sought to withdraw funds from these accounts. Each request was approved without any modification, and between August, 1990, and September, 1991, atotal of $130,000 was withdrawn from these accounts. While the holds were in place, the defendants took no legal action against the bank to terminate the holds.

In September, 1991, the relationship between the parties broke down. The defendants filed an action in federal court against the plaintiff based on CUTPA. The plaintiff thereafter commenced this action to foreclose the mortgage on the two Mariondale lots. The defendants filed a counterclaim against the plaintiff under CUTPA alleging that the plaintiff illegally froze the defendants’ personal and corporate savings accounts, making it impossible for the defendants to make the payments required under the note.

The trial court found that closing on the Mariondale mortgage to secure the unsecured loans, without previously notifying the defendants that a hold had been placed on their accounts, constituted a deceptive practice in violation of CUTPA. The trial court based this finding on the fact that the defendants were not given the opportunity to decide whether they would execute the Mariondale mortgage with full knowledge that the plaintiff had previously placed ahold on the defendants’ accounts. As a remedy, the trial court declared the Mariondale note and mortgage null and void and awarded the defendants both counsel fees and punitive damages. We find that the plaintiffs practice was not deceptive and therefore reverse the judgment of the trial court.

The dispositive issue in this appeal is whether the plaintiff violated General Statutes § 42-110b by closing on the Mariondale mortgage to secure the unsecured notes without disclosing to the defendants the hold previously placed on their certificates of deposit. In order to succeed on their CUTPA counterclaim, the defendants must show that the plaintiffs conduct was deceptive or violated public policy. Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 726, 652 A.2d 496 (1995); Vezina v. Nautilus Pools, Inc., 27 Conn. App. 810, 819, 610 A.2d 1312 (1992).

An act or practice is deceptive if three conditions are met. “ ‘First, there must be a representation, omission, or other practice likely to mislead consumers. Second, the consumers must interpret the message reasonably under the circumstances. Third, the misleading representation, omission, or practice must be material—that is, likely to affect consumer decisions or conduct.’ ” Caldor, Inc. v. Heslin, 215 Conn. 590, 597, 577 A.2d 1009 (1990), cert. denied, 498 U.S. 1088, 111 S. Ct. 966, 112 L. Ed. 2d 1053 (1991); see also Figgie International, Inc., 107 F.T.C. 313, 374 (1986).

We find, as a matter of law, that the plaintiffs conduct was not deceptive. “A failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose.” Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 523, 646 A.2d 1289 (1994). The plaintiff will be liable under CUTPA only if there is a statutory or common law duty to disclose to a depositor the existence of a hold placed on the depositor’s accounts. We conclude that the plaintiff in this case had no duty to disclose to the defendants that it had placed a hold on the defendants’ certificates of deposit prior to closing on the Mariondale mortgage.

A deposit is nothing more than a promise to pay from the bank to the depositor. See Citizens Bank of Maryland v. Strumpf, U.S. , 116 S. Ct. 286, 133 L. Ed. 2d 258 (1995). Once the defendants defaulted on their notes, the plaintiff had both a contractual and a common law right to set off the past due debt with deposits held by the bank. If the plaintiff exercised this right of setoff, it would have had no duty to notify the defendants. See Elizarraras v. Bank of El Paso, 631 F.2d 366, 372 (5th Cir. 1980); 5A Michie on Banks and Banking (1994 Ed.) § 115a; see also Normand Joseph Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 523-24 (bank served with execution has no duty to disclose to judgment creditor that bank exercised its right of setoff). We see no reason why a bank that exercises the less extreme remedy of placing a hold on the depositor’s account when the indebtedness is due imposes a duty to disclose its actions immediately to the depositor.

We also find that the plaintiffs failure to inform the defendants about the hold was not likely to mislead the defendants in making their decision to execute the Mariondale mortgage. The evidence shows that the defendants were having serious financial problems. The plaintiff chose to work with the defendants to resolve their financial problems rather than to exercise its right to accelerate the various loans, to setoff the delinquent debt with the defendants’ deposits and to foreclose on the properties. The defendants executed the Mariondale mortgage as part of a “work out plan” that included further financing from the bank to build the spec, house in Village Estates. These facts demonstrate that the plaintiff was simply protecting its position while it provided efforts to resolve the defendants’ financial crisis. We conclude, as a matter of law, that the plaintiffs conduct was not a violation of CUTPA.

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

In this opinion the other judges concurred.

       This case was consolidated with seventeen other related foreclosure actions at trial. In fourteen of the actions, the defendants filed counterclaims based on CUTPA. The trial court ordered judgment of strict foreclosure in the other seventeen actions and rejected all CUTPA counterclaims except for the counterclaim at issue in this case. The defendants in those seventeen actions filed a consolidated appeal. On October 24,1995, this court affirmed the judgment of the trial court in those seventeen actions. See Southington Savings Bank v. Village Builders & Developers, Inc., 39 Conn. App. 909, 665 A.2d 183 (1995).

       During the relevant times, the defendants Joseph Geladino and Ann Marie Matta were married. They were divorced prior to trial and Matta assumed her premarital name. The Geladinos were sole or minority shareholders in corporations known as Village Builders and Developers, Inc., G & M Builders and Developers, Inc., Quality Village Builders and Developers, Inc., Village Real Estate Company and Geladino Builders and Developers, Inc., all of which were engaged in the business of developing real estate.

       The defendants executed a note for $10,000 dated August 25, 1989, a note for $70,000 dated November 1,1989, a note for $20,000 dated December 11, 1989, a note for $80,000 dated February 21, 1990, and a note for $70,000 dated April 16, 1990.

       The action filed in federal court was dismissed on procedural grounds.

       After the defendants executed the mortgages, the Mariondale lots were conveyed to the defendants’ daughter, Kimberly Rodgers, subject to the plaintiffs mortgage.

       General Statutes § 42-110b (a) provides in pertinent part: “No person shall engage in . . . unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       The notes executed by the defendants provided that the plaintiff “shall have a lien on, a security interest in, and during the existence of an Event of Default, an option to set-off against, all deposits ... of the Borrower ... in the possession of . . . the Southington Savings Bank . . . without prior demand or notice . . . .”

       It is a general rule that when a depositor is indebted to a bank, the existing indebtedness is due and owing by the depositor to the bank and the debts are mutual, 1he bank may apply the deposit, or such portion as necessary, to the payment of the debt due it by the depositor, provided there is no express agreement to the contrary and the deposit is not specifically applicable to some other particular purpose. See Vic Gerard Golf Cars, Inc. v. Citizen’s National Bank of Fairfield, 528 F.Sup. 237, 241 (D. Conn. 1981).

       Because the plaintiffs conduct did not violate CUTPA, we do not reach the plaintiffs other claims on appeal.


author: O’CONNELL, J.

text:
    OAKLAND HEIGHTS MOBILE PARK, INC. v. JAMES SIMON
    (14580)
    O’Connell, Landau and Schaller, Js.

      Submitted on briefs November 6
    decision released December 26, 1995

      James Simon, pro se, the appellant (defendant), filed a brief.

      Edward E. Moukawsher filed a brief for the appel-lee (plaintiff).
   O’CONNELL, J.

In this summary process action, the defendant appeals from the postjudgment denial of his application for a writ of audita querela. The defendant claims that the trial court improperly denied his writ of audita querela because (1) the trial court clerk failed to inform him of the Appellate Court’s decision, and (2) the trial court improperly refused to hear the defendant’s equitable defenses arising out of potential damage to his mobile home if moved from the plaintiffs lot. We affirm the judgment of the trial court.

The record discloses the following facts. On February 8, 1993, the plaintiff commenced this summary process action against the defendant for nonpayment of rent for a lot in the plaintiffs mobile home park. The defendant asserted a special defense that he had made several attempts to pay the arrearage but the plaintiff had refused those payments.

The trial court rendered judgment for the defendant on May 5, 1993. The plaintiff appealed and this court reversed the judgment and remanded the case with direction to render judgment for the plaintiff on the grounds that the defendant had not properly raised the equitable defense of relief from forfeiture and that the trial court had improperly found that the defendant had cured the arrearage. Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432, 651 A.2d 281 (1994). The defendant did not seek further appellate relief.

At the plaintiffs request, the trial court issued a summary process execution on January 18, 1995. The defendant applied for a writ of audita querela on January 23, 1995, and, following the trial court’s denial of the writ, the defendant appealed to this court.

Audita querela is a remedy granted in favor of one against whom execution has issued on a judgment, the enforcement of which would be contrary to justice because of (1) matters arising subsequent to its rendition, or (2) prior existing defenses that were not available to the judgment debtor in the original action, or (3) the judgment creditor’s fraudulent conduct or circumstances over which the judgment debtor had no control. Ballentine’s Law Dictionary (3d Ed. 1969).

The defendant first claims that the trial court did not issue proper notice of the Appellate Court’s decision. The defendant incorrectly relies on General Statutes § 47a-26h (b), which requires the trial court clerk to issue notice to defendants upon the entry of summary process judgments. Nothing in that statute, however, indicates that it is intended to apply to decisions of the Appellate Court.

The rule for judgments following appeal is set forth in General Statutes § 51-213. It provides in pertinent part: “Unless otherwise ordered by the court, official notification to counsel of record shall be by publication of the opinion in the Connecticut Law Journal.” See also Practice Book § 4120 (a) (notice shall be by publication in the Connecticut Law Journal). Because there is no requirement that the appellate clerk directly notify the parties of an appellate decision, the trial court properly denied the defendant’s writ of audita querela on the first claim.

In his second claim, the defendant attempts to introduce an equitable defense that his mobile home may suffer damage if removed from the plaintiffs lot. A writ of audita querela is “ ‘ a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense . . . arising, or at least raisable for the first time, after judgment.’ ” Ames v. Sears, Roebuck & Co., 206 Conn. 16, 20, 536 A.2d 563 (1988), quoting A. Leff, “The Leff Dictionary of Law: A Fragment,” 94 Yale L.J. 1855, 2101 (1985). Because the defendant could have raised his potential damage claim as a defense during the summary process action, he does not qualify for a remedy now under the writ of audita querela. Ames v. Sears, Roebuck & Co., supra, 20.

The judgment is affirmed.

In this opinion the other judges concurred.

       Audita querela is a common law writ that may be granted when a defense to a judgment arises for the first time after the judgment has been rendered.

       Although the defendant has appeared pro se, “[s]uch a litigant is bound by the same rules of evidence and procedure as those qualified to practice law.” Cersosimo v. Cersosimo, 188 Conn. 385, 394, 449 A.2d 1026 (1982).


author: SCHALLER, J.

text:
    SAMUEL CRUZ v. MARIA T. GONZALEZ
    (14634)
    O’Connell, Landau and Schaller, Js.

      Submitted on briefs November 6
    decision released December 26, 1995

      Samuel Cruz, pro se, the appellant (plaintiff), filed a brief.
   SCHALLER, J.

The plaintiff, Samuel Cruz, appeals from the trial court’s order that he pay for the cost of a paternity test. The record reveals the following facts relevant to this appeal. The marriage of the plaintiff and the defendant was dissolved in 1992. In 1994, the plaintiff filed a motion to open the judgment of dissolution, seeking a modification of child support and a determination of the paternity of one of the minor children. The motion for modification of child support was granted on February 3, 1995, but no determination of paternity was made at that time. On March 8, 1995, the parties agreed to have a blood test for the paternity determination of a minor child. The agreement provided that the plaintiff could not pay for the testing and sought an order from the trial court waiving the fees. On February 8, 1995, the trial court ordered a test for paternity determination but made the plaintiff “responsible for unreimbursed cost above coverage by [the plaintiffs] and [the defendant’s] medical insurance, if available, for all persons tested.”

We raised, on our own motion, the question of whether the plaintiff’s appeal has been taken from a final judgment. “The lack of a final judgment implicates the authority of this court to hear the appeal because it is a jurisdictional defect.” Mac’s Car City, Inc. v. DiLoreto, 33 Conn. App. 131, 132, 634 A.2d 1187 (1993). “Thus, even where the appellee fails to bring to our attention the lack of a final judgment, either by motion to dismiss or in its brief, or at oral argument, we must, nonetheless, act sua sponte.” Id.

“ ‘An order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment, at least in civil actions.’ ” Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, 520 A.2d 605 (1987). As an interlocutory order, the trial court’s order would be immediately appealable only if it met the two part test articulated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). We conclude that the trial court’s order in this case neither “terminates a separate and distinct proceeding” nor “so concludes the rights of the parties that further proceedings cannot affect them.” Id.

The appeal is dismissed, sua sponte, for lack of a final judgment.

In this opinion the other judges concurred.

       General Statutes § 46b-168 provides in pertinent part: “(a) In any proceeding in which the question of paternity is at issue the court or a family support magistrate, on motion of any party, may order genetic: tests which shall mean deoxyribonucleic acid tests, to be performed by a hospital, accredited laboratory, qualified physician or other qualified person designated by the court, to determine whether or not the putative father or husband is the father of the child. The results of such tests shall be admissible in evidence to either establish definite exclusion of the putative father or husband or as evidence that he is the father of the child. . . .
      “(c) The costs of making tests provided by this section shall be chargeable against the party making the motion, provided if the court finds that such party is indigent and unable to pay such costs, such costs shall be paid by the state. If the costs of making such tests are paid by the state and the respondent making the motion is subsequently adjudicated to be the father of the child, such respondent shall be liable to the state for the amount of such costs.”

       The parties were given the opportunity to file supplemental briefs on the final judgment issue, but no briefs were filed.


author: SPEAR, J.

text:
    DAVID CUMMINGS v. TWIN TOOL MANUFACTURING COMPANY, INC., ET AL.
    (13865)
    O’Connell, Spear and Shea, Js.
    Argued September 26, 1995
    decision released January 2, 1996

      Richard W. Gifford, for the appellant (plaintiff).

      William C. Brown, for the appellees (defendants).
   SPEAR, J.

The plaintiff, David Cummings, appeals from a decision of the compensation review board (board) denying him temporary total disability benefits pursuant to the workers’ compensation statutes. He asserts that the board improperly (1) held that no notice of intention to discontinue temporary total disability benefits was required, (2) affirmed the commissioner’s decision despite concluding that she had relied in part on a document that was marked for identification only and had made findings that were beyond the scope of the hearing, (3) affirmed the denial of the plaintiffs motion to submit additional evidence, and (4) affirmed the commissioner’s refusal to recuse herself. We affirm the decision of the board.

The record discloses the following factual and procedural history. On December 7, 1984, the plaintiff sustained a compensable injury in the course of his employment and filed a claim for workers’ compensation benefits. On May 14, 1990, following a hearing, Commissioner James Metro found that the plaintiff had attained maximum medical improvement from his injuries on October 30,1986. Metro also found that the plaintiff had a permanent disability of 55 percent of the brain, for which Metro awarded him 156 weeks of specific benefits. Those benefits were paid and are not at issue here. Further, Metro found that the plaintiff had become temporarily totally disabled again on November 6,1989, and that the disability continued to May 14,1990. Metro ordered the defendant employer and its defendant workers’ compensation insurance carrier to pay temporary total disability benefits for that period. For reasons that are not apparent on the record, the defendants continued to make payments until December, 1991.

After the defendants stopped payments, the plaintiff filed a claim for temporary total incapacity benefits. On June 25, 1992, a formal hearing was held before Commissioner Roberta Smith D’Oyen (commissioner) on the claim for total disability benefits. On October 20,1992, the commissioner, in dismissing the plaintiffs claim, found that the plaintiff had not been totally or partially disabled from December, 1991, to June 25,1992. The plaintiff appealed to the board, which affirmed the commissioner’s decision. This appeal followed.

“As a preliminary matter, we note that when a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts.” Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991). The commissioner must determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979). “Our scope of review of the actions of the review [board] is similarly limited.” (Internal quotation marks omitted.) Romanski v. West Hartford, 34 Conn. App. 307, 316, 641 A.2d 439 (1994).

I

The plaintiff first claims that the defendants were required to file a Form 36 pursuant to General Statutes § 31-300 prior to discontinuing payments pursuant to the 1990 award. The plaintiff argues that despite the facts that the award covered a specific time period and that all payments have been made, the defendants were required to file a Form 36 before discontinuing payments. We disagree.

Metro correctly found temporary total incapacity only to the date of the evidentiary hearing, and made no finding of total incapacity beyond that date. A commissioner cannot make a finding of temporary total incapacity beyond the date of the most recent evidentiary hearing. Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 100 (1989). “[T]otal incapacity becomes a matter of continuing proof for the period claimed. . . .[Additional proceedings are necessary to provide the requisite factual basis for a conclusion of continued total incapacity.” Id.; Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 87, aff'd, 212 Conn. 441, 562 A.2d 1086 (1989). In the present case, there would have to be a new claim and a new hearing before a finding of total incapacity for any further period could be made.

The plaintiff argues to the contrary in reliance on Platt v. UTC/Pratt & Whitney, 3 Workers’ Comp. Rev. Op. 3 (1985). In Platt, the commissioner had awarded temporary total incapacity benefits for a specific period. The defendant discontinued benefits before the termination date set forth in the award because the plaintiff returned to work before that date. On appeal to the board, the defendant argued that, although the award had not terminated by its terms, the defendant was entitled to discontinue benefits on the date on which the plaintiff returned to work. The plaintiff argued that the defendant needed to file a Form 36 before those benefits could be discontinued.

The board in Platt held that a Form 36 is required to be filed “in certain instances before the employer is allowed to discontinue payments of compensation for total or partial incapacity.” Platt v. UTC/Pratt & Whitney, supra, 3 Workers’ Comp. Rev. Op. 6. It explained that a Form 36 is required only where “an employee is receiving compensation for total or partial incapacity under an agreement, oral or written, [or] an award . . . and the employee contends that his incapacity still continues, if the employer intends to discontinue such payments . . . .” Id., 7. Because benefits had been awarded beyond the date on which the plaintiff returned to work, the board found that a Form 36 was required.

Platt can be distinguished from the present case. In Platt, the defendant sought to terminate benefits that were previously awarded to the plaintiff. To terminate payments prior to the date set forth in the award was tantamount to altering the award without notice or a hearing and without the consent of the commissioner. In the present case, as in Platt, the award provided for payment for a definite time period. Unlike the defendant in Platt, however, the defendants in this case discontinued payments only after making all of the payments ordered in the award.

It is implicit in the statutory scheme that General Statutes § 31-296 does not apply where the award is limited by its own terms. “In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, 217 Conn. 110, 126, 584 A.2d 1172 (1991). It would not be reasonable or rational to require a second hearing on the proposed termination of an award that on its face provides for termination on a date certain. “Such a bizarre result could not have been intended by the legislature.” State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994).

II

The plaintiff next asserts that the board improperly affirmed the commissioner’s decision after striking paragraph eight of her findings, and paragraph C and a portion of paragraph E of her conclusions. The board struck paragraph eight of the commissioner’s decision because it was based on a report that was marked for identification only and was not made a full exhibit. The board struck paragraph C and a part of paragraph E because those findings related to the plaintiffs future need for medical care, whereas the sole issue before the commissioner was whether the plaintiff was entitled to temporary total disability benefits from December, 1991, to the date of the hearing. The plaintiff argues that the portions of the testimony remaining after removal of those portions of the decision do not support the board’s finding that the plaintiff was not totally disabled from December, 1991, to the date of the hearing. The plaintiffs assertion would place the burden on the wrong party. On a claim for workers’ compensation benefits, the burden of proof is on the claimant. Tovish v. Gerber Electronics, 19 Conn. App. 273, 275, 562 A.2d 76, cert. denied, 212 Conn. 814, 565 A.2d 538 (1989). A claimant must prove that “(1) the workers’ compensation commission has jurisdiction over the claim; (2) the claim has been timely brought ... (3) the claimant is a qualified claimant ... (4) the respondent is a covered employer ... (5) the claimant has suffered a personal injury . . . arising out of and in the course of employment. J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) § 1.” Id., 275-76. Further, “total incapacity becomes a matter of continuing proof for the period claimed.” Neurath v. UTC/Pratt & Whitney, supra, 7 Conn. Workers’ Comp. Rev. Op. 100; Besade v. Interstate Security Services, supra, 6 Conn. Workers’ Comp. Rev. Op. 87. The defendants were not required to establish that the plaintiff was not totally incapacitated from December, 1991, to the date of the hearing. Rather, the burden of proof was on the plaintiff to establish his continuing total incapacity from December, 1991, forward. Neurath v. UTC/Pratt & Whitney, supra, 100.

As to the issue of total disability, the plaintiff offered the expert testimony of Alan Russakov, a physiatrist, as to the plaintiffs need for continuing treatment. In addition, on the basis of the case summary of John K. Stanwood, a clinical psychologist, the commissioner found that the plaintiff had seen Stanwood for supportive psychotherapy from November 7, 1991, to the date of the hearing, and that the plaintiff was, at the time of the hearing, being seen on only a “sporadic” basis. The defendants did not offer evidence that the plaintiff was not totally incapacitated during the claimed period.

The commissioner specifically rejected Russakov’s testimony. She therefore concluded that the plaintiff had not met his burden of proof in attempting to establish his total incapacity during the period in question. The commissioner found that “[n]o evidence was introduced at the formal hearing that the [plaintiff] is now, or was during December 1991 to the present, totally disabled or partially disabled.” The commissioner rejected Russakov’s testimony because he failed to document the plaintiffs care, treatment and progress or his opinion as to the plaintiffs total disability for the period from December, 1991, to the date of the hearing. She found that Russakov had testified without medical records, charts or a diary to document frequency of care, quality of care, treatment and progress notes, and that the language of his reports indicated that the care he provided to the plaintiff had changed from “treating” the plaintiff to merely “seeing” him.

The plaintiff argues that the board could not uphold the commissioner’s findings and conclusions after striking certain findings because “there was no other evidence in the record indicating that the [plaintiffs] condition had improved since the last hearing, when he was found by another commissioner to be totally disabled.” The plaintiff not only attempts to place the burden of proof on the defendants, but also argues that because he offered evidence and the defendants did not introduce any contrary evidence, the court was required to accept his evidence. The law does not support this proposition.

In State v. Blades, 225 Conn. 609, 625, 626 A.2d 273 (1993), the defendant offered evidence at trial that he suffered from extreme emotional disturbance. The prosecution offered no evidence to the contrary and the defendant was convicted of murder. On appeal, the defendant argued that the trial court improperly concluded that he failed to prove his affirmative defense of extreme emotional disturbance by a preponderance of the evidence.

The Supreme Court found that “[t]he essence of the defendant’s argument appears to be that, because the state did not present its own evidence to rebut the defense, the trial court was required to accept the defendant’s evidence and to find that the defendant had sustained his burden of proof.” Id., 627. The court held that “[i]n a case in which the evidence is conflicting, it is the quintessential . . . function [of the fact finder] to reject or accept certain evidence, and to believe or disbelieve any expert testimony. . . . Despite the defendant’s contention to the contrary, the trial court is not required to accept uncontradicted expert testimony. The court might reject it entirely as not worthy of belief or find that the opinion was based on subordinate facts that were not proven.” (Citation omitted; internal quotation marks omitted.) Id., 629.

“[T]he trier of fact can disbelieve any or all of the evidence . . . and can construe that evidence in a manner different from the parties’ assertions .... On this record, we conclude that the trial court could reasonably have concluded that the defendant had failed to prove, by a preponderance of the evidence, the existence of extreme emotional disturbance.” (Citation omitted; internal quotation marks omitted.) Id., 629-30.

The plaintiff also argues that erroneously admitted evidence is presumed to have been injurious in its effect, unless the contrary is shown, and that a reversal for admission of improper testimony is required even if the same fact was proven by proper testimony, unless it is clear that the erroneous testimony could not have been prejudicial.

We do not conclude that the removal of the improper findings affected the outcome. Because of the lack of credible evidence, the commissioner did not find that the plaintiff was totally incapacitated for the claimed period. The remaining evidence was not made more credible by the elimination of the challenged findings. In this case, the plaintiff neither proved his continuing total incapacity, nor demonstrated that he suffered such prejudice from the improper findings that reversal is required. On the record before us, we conclude that, even after striking the improper findings, the board properly affirmed the commissioner’s finding that the plaintiff had failed to meet his burden of proving that he was totally incapacitated during the period at issue.

III

The plaintiff next claims that the board should have granted his request to submit additional evidence. The plaintiff offered two sentences and no analysis in his appellate brief on this issue. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” State v. Sewell, 38 Conn. App. 20, 29, 658 A.2d 598, cert. denied, 234 Conn. 918, 661 A.2d 98 (1995); State v. Gaines, 36 Conn. App. 454, 460, 651 A.2d 1297 (1994). Analysis, rather than mere “abstract assertion,” is required in order to avoid abandoning an issue by failure to brief the issue properly. State v. Cain, 25 Conn. App. 503, 524, 596 A.2d 449 (1991). We decline to review this inadequately briefed issue.

IV

Finally, the plaintiff claims that the commissioner should have recused herself from his case as a result of the plaintiffs alleged ex parte contacts with her over a five month period. Because of those contacts, the commissioner filed a criminal complaint for harassment against the plaintiff.

First, this issue was not presented to or decided by the board. At oral argument in this appeal, the plaintiff stated that part of the evidence that he sought to submit under his request to submit additional evidence was in connection with the issue of ex parte communications between the plaintiff and the commissioner. Neither the request to submit additional evidence nor the amended motion to submit additional evidence, however, mentions the issue of ex parte contacts. The arrest warrant affidavit to which the plaintiff refers in his brief was not submitted to the board or to this court on appeal. The plaintiff did not request that the commissioner disqualify herself until two and one-half months after the commissioner rendered her decision. Further, in his request for disqualification the plaintiff requested that the commissioner “disqualify and remove herself from all further proceedings.” (Emphasis added.) The commissioner’s decision that is challenged on appeal was dated October 20,1992. Since the request for disqualification was not submitted until January 13,1993, it does not apply to the decision at issue in this appeal. It is well settled that courts will not review claims of judicial bias where the issue of prejudice was not properly raised in the prior proceedings. Krattenstein v. G. Fox & Co., 155 Conn. 609, 615-16, 236 A.2d 466 (1967); Pagni v. Corneal, 13 Conn. App. 468, 472, 537 A.2d 520, cert. denied, 207 Conn. 810, 541 A.2d 1239 (1988); Trapp v. Trapp, 6 Conn. App. 143, 145, 503 A.2d 1187 (1986); see Practice Book § 4185. This issue was not properly raised before the commissioner or the board, and is, therefore, not properly before this court.

Even if this issue had been raised before the commissioner or the board, we would decline to review it because of inadequate briefing. The plaintiffs one paragraph briefing offers no authority or analysis for the proposition that a party can make improper ex parte posthearing contacts with a commissioner, await the decision and, if it is unfavorable, obtain a new hearing on the ground that the party’s own improper actions necessitated disqualification of the commissioner.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       “Form 36 is a notice to the compensation commissioner and the claimant of the intention of the employer and its insurer to discontinue compensation payments.” Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 120 n.4, 612 A.2d 82, cert. denied, 223 Conn. 920, 615 A.2d 507 (1992). General Statutes § 31-296 sets forth the contents of this form.

       General Statutes § 31-300 provides in pertinent part: “No employer . . . shall discontinue or reduce payment on account of total or partial incapacity under any such award, if it is claimed by or on behalf of the injured person that his incapacity still continues, unless such employer . . . notifies the commissioner and the employee of such proposed discontinuance or reduction in the manner prescribed in section 31-296 and the commissioner specifically approves such discontinuance or reduction in writing. . . .”

       The plaintiff argued in his reply brief that the defendants continued payments beyond the date of the 1990 decision of Metro through December 31, 1991. Even if this is the case, such payments were not made pursuant to the award, nor does the plaintiff claim that they were made pursuant to an agreement. The plaintiff cites no authority for the proposition that the employer must file a notice that it intends to discontinue payments that it is not required to make in the first place.

       The board stated the following in footnote 2 of its opinion: “In her finding and dismissal, the trial commissioner found that ‘[t]he opinion of Dr. Alan Russakov concerning total disability of the claimant from December 15, 1990 to the present is not supported by the evidence which was introduced at the formal hearing,’ and that '[n]o evidence was introduced at the formal hearing that the claimant is now, or was during December 1991 to the present, totally disabled or partially disabled.’ We understand the latter finding to flow from the former and to mean that no credible evidence was presented to the trial commissioner to support the claim for temporary total disability benefits during the relevant time period.” (Emphasis in original.)

       The entire briefing on this issue is as follows: “The [board] denied claimants’ Motion to Submit Additional Evidence stating in its decision that the claimant did not comply with Connecticut State Agencies Regulations § 31-301-9. However, the [board] gave no indication of why the claimant’s submission fell short of meeting those requirements, and a comparison of the Motion to the regulation does not yield an answer.”

       We note that the plaintiffs request to submit additional evidence, dated December 20, 1992, failed to comply with § 31-301-9 of the Regulations of Connecticut State Agencies because he failed to offer any reasons for the failure to present the evidence, offered no basis for the claim of materiality, and offered no reasons why the additional evidence was relevant or necessary to the determination of the issues before the board.

       See part III.