text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER OF NEW CONNECTICUT BANK AND TRUST COMPANY, N.A. v. NAPERT-BOYER PARTNERSHIP ET AL.
    (14230)
    Foti, Lavery and Landau, Js.

      Argued September 21, 1995
    decision released February 27, 1996

      RaymondL. Baribeault, Jr., with whom, on the brief, were Andrew J. Brand and S. Joel Suisman, for the appellants (named defendant et al.).

      John J. Graubard, with whom, on the brief, was Thomas R. Legenhausen, for the appellee (plaintiff).
   LAVERY, J.

This is an appeal by the defendants from a judgment on two promissory notes for $12,301,165.61. The notes called for a variable interest rate of 1 percent above the prime rate of Connecticut Bank and Trust Company (CBT). The defendants claim that the trial court improperly (1) substituted the prime rate of Fleet Financial Group for the prime rate of the failed CBT, (2) found that a prior foreclosed $1 million mortgage did not merge with the two notes in question and that General Statutes § 49-1 did not prevent the plaintiff from seeking a judgment on the mortgage debt, (3) found that the defendants were hable for late fees after acceleration, and (4) found that the defendants’ special defenses, claims of setoffs and counterclaim for damages were not supported by the evidence and were barred by the doctrine in D’Oench, Duhme & Co. We agree with the defendants that the plaintiff did not prove that the substitution of the prime rate of Fleet Bank was reasonable and that the trial court’s use of judicial notice was improper. We also conclude that there was no evidence of how the interest rate was calculated during the period that New Connecticut Bank and Trust Company, N.A. (New CBT), existed, and that late charges should not have been assessed against the defendants once the notes were accelerated. Accordingly, we reverse the judgment of the trial court and remand the matter for further proceedings.

The trial court found the following facts. On or about August 26, 1988, the defendant Napert-Boyer Partnership (Napert-Boyer) entered into a construction loan agreement with CBT for $8.8 million to construct a condominium in Groton. The loan was evidenced by a promissory note that was secured by a first mortgage on the property. Napert-Boyer experienced problems with the project and, at its request, the parties executed a loan modification agreement in October, 1989.

Pursuant to the loan modification agreement, CBT provided Napert-Boyer with an additional $1 million revolving line of credit. Napert-Boyer and the defendant George Boyer, individually, executed a $1 million promissory note in favor of CBT and granted it a second mortgage on the project. Boyer became a comaker on the $8.8 million loan, and CBT also refinanced a personal line of credit to Boyer who executed a $300,000 promissory note in favor of CBT. Upon default by the defendants, CBT instituted proceedings in June, 1990, to foreclose the second mortgage and to obtain judgment on the $300,000 note executed by Boyer.

On January 6, 1991, CBT became insolvent and the Federal Deposit Insurance Corporation (FDIC) was appointed receiver of CBT. The FDIC, pursuant to 12 U.S.C. § 1821 (n), conveyed CBT’s assets to a bridge bank, New CBT. On July 11, 1991, the FDIC dissolved New CBT, took control of its assets, and was substituted as the plaintiff in this action.

In 1991, the FDIC obtained a judgment of strict foreclosure on the $1 million second mortgage, which was affirmed by this court. See Connecticut Bank & Trust Co., N.A. v. Napert-Boyer Partnership, 29 Conn. App. 901, 614 A.2d 493 (1992), cert. denied, 224 Conn. 924, 618 A.2d 530 (1993). Titled vested in the plaintiff as receiver on March 30, 1993. The FDIC moved for a deficiency judgment. The parties resolved the deficiency judgment motion by stipulating that the value of the property was equal to the sum of the debt due on the $1 million note and mortgage, plus the outstanding real estate taxes due on the property. In November, 1993, the FDIC amended its complaint seeking to recover on the $8.8 million note and on the $300,000 note. The trial court rendered judgment in favor of the FDIC.

The trial court found that it was commercially reasonable for the FDIC to substitute the prime rate of Fleet Financial Group for the prime rate of the defunct CBT. The trial court also found that the $8.8 million note represented a separate obligation and transaction from the $1 million note that was secured by the foreclosed mortgage, and that General Statutes § 49-1 did not apply. Finally, the trial court held that the defendants’ special defenses and counterclaims were not supported by the evidence and that the defendants’ claim of setoff was barred by the prior stipulation on the motion for deficiency judgment on the $1 million loan.

I

The defendants first claim that the trial court incorrectly substituted the prime rate of the Fleet Financial Group for the prime rate of the failed CBT. The trial court found that the FDIC appropriately substituted a commercially reasonable prime rate. In its response to a motion for articulation, the trial court stated that one of the plaintiffs witnesses “testified that in substituting an interest rate for that of the failed CBT, FDIC as receiver utilized the published prevailing prime rate of Fleet Financial Group. The court takes judicial notice of the fact that Fleet Financial Group is a major bank holding company with many of the banks under its aegis located in this region of the country. To substitute an interest rate based on that then being utilized by a comparable commercial lending institution appears to be a logical, fair and reasonable procedure. The defendant has offered no evidence to the contrary.” We agree with the defendant and conclude that the trial court improperly took judicial notice of these facts.

“When a variable interest rate is based on the rate of a failed institution, the trial court must determine whether the substitute rate is reasonable by examining the documents and testimony offered by the plaintiff. See Federal Deposit Ins. Corp. v. Blanton, 918 F.2d 524, 532 (5th Cir. 1990); Federal Deposit Ins. Corp. v. La Rambla Shopping Center, 791 F.2d 215, 223 (1st Cir. 1986); Federal Deposit Ins. Corp. v. Cage, 810 F. Sup. 745, 747 (S.D. Miss. 1993).” Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575, 578, 662 A.2d 157 (1995); see also Mechanics & Farmers Savings Bank, FSB v. Delco Development Co., 232 Conn. 594, 597-98, 656 A.2d 1034 (1995).

In Federal Deposit Ins. Corp. v.M.F.P. Realty Associates, 870 F. Sup. 451, 456 (D. Conn. 1994), a case similar to this case, the United States District Court in Connecticut stated: “[F]ederal law, which now governs this action, supports the conclusion that the FDIC is empowered and entitled to establish an alternate prime rate. See, e.g., United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 99 S. Ct. 1448, 1457, 59 L. Ed. 2d 711 (1979) (‘This Court has consistently held that federal law governs questions involving the rights of the United States arising under nationwide federal programs.’); Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. RTC, 5 F.3d 1508, 1512-13 (D.C. Cir. 1993) (Federal law applies to claim of attorney-client privilege where RTC filed petition to enforce subpoena duces tecum issued to former law firm which had connections to failed thrift.) Under 12 U.S.C. § 1821 (d) (2) (B) (ii), the FDIC, as receiver, assumes the ability to ‘perform all functions of the institution in the name of the institution which is consistent with the appointment as conservator or receiver'. . . .’In the instant case, one such right must necessarily include the right to establish a prime rate called for under the failed institution’s note.

“Accordingly, several courts which have considered the issue have approved the use of the prime rate of another bank when a note becomes the asset of the FDIC. See FDIC v. Condo Group Apartments, 812 F. Supp. 694, 699 (N.D. Tex. 1992). Likewise, this Court already has found that the FDIC may substitute an appropriate interest rate to apply to a loan that is based upon the prime rate of a failed bank. See, e.g., FDIC v. 272 Post Road Associates, Recommended Ruling on Plaintiffs Motion for Summary Judgment of Strict Foreclosure, Civil No. 5:91CV433(TFGD) (D. Conn. March 11,1994); accord FDIC v. Rogers Park I, 1990 WL 482141 (W.D. Okl. 1990) (Under Restatement [Second] of Contracts § 204, when parties have not agreed with respect to an essential contract term, the Court may supply one which is reasonable under the circumstances.)”

An examination of the evidence and exhibits presented in this case shows that the FDIC used the prime rate of Fleet Financial Group from the time the FDIC took over from New CBT. There is no evidence in the record pertaining to the interest rate used during the time New CBT existed. There was testimony that Recall Management Corporation, FDIC’s attorney in fact, was a wholly owned subsidiary of Fleet Financial Group, and that, in calculating the interest rate, it used the prime rate of its parent company Fleet. We find that there is no evidence in the record from which the trial court could have ascertained the reasonableness of the substitute rate. See Central Bank v. Colonial Romanelli Associates, supra, 38 Conn. App. 578.

The trial court took judicial notice that Fleet Financial Group is a major bank holding company with many of its banks located in the region, and that, because Fleet Financial Group is a comparable commercial lending institution, the use of its prime rate appeared to be logical, fair and reasonable. The court also noted that the defendants offered no evidence to the contrary. The trial court, however, gave no notice to the parties that it was going to take judicial notice of the status of Fleet Financial Group as a comparable bank and the fact that its prime rate was a reasonable substitution.

In a civil action, the plaintiff has the burden of proving its case by a preponderance of the evidence. Busker v. United Illuminating Co., 156 Conn. 456, 458, 242 A.2d 708 (1968). “Judicial notice relieves a party only of having to offer proof on the matter; it does not constitute conclusive proof of the matter nor is the opposing party prevented from offering evidence disputing the matter established by judicial notice.” In re Mark C., 28 Conn. App. 247, 252, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992). The trial court must give the parties an opportunity to be heard prior to taking such notice. State v. Zayas, 195 Conn. 611, 615, 490 A.2d 68 (1985); Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977). Lack of notice prevents a party from disputing the judicially noticed fact. State v. Marshall, 11 Conn. App. 632, 634-35, 528 A.2d 1163 (1987).

“Courts may take judicial notice of ‘matters which come to the knowledge of men generally in the course of the ordinary experience of life, and are therefore in the mind of the trier, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestionable demonstration.’ ” West Hartford v. Freedom of Information Commission, 218 Conn. 256, 264, 588 A.2d 1368 (1991), quoting Roden v. Connecticut Co., 113 Conn. 408, 415, 155 A. 721 (1931). “Facts which are of common knowledge, that is, facts so well known that evidence to prove them is unnecessary are proper subjects of judicial notice.” State v. Marshall, supra, 11 Conn. App. 634; see generally 1 B. Holden & J. Daly, Connecticut Evidence (1988) §§ 21 through 33. While some facts, such as the time of the rising or setting of the sun on a given day, are the proper subject for judicial notice; State v. Morris, 47 Conn. 179, 180 (1879); other facts, such as the reliability of DNA typing, are too novel to be judicially noticed. State v. Hammond, 221 Conn. 264, 280-81 n.8, 604 A.2d 793 (1992).

We hold that whether a financial institution is comparable to another financial institution and, based on that comparison, whether a substituted interest rate is reasonable is not the proper subject matter of judicial notice. Those facts are in dispute and the burden is placed on the plaintiff to present evidence showing that substituted rate was reasonable. In addition, the trial court gave no notice to the parties that it intended to take judicial notice of these facts. The defendants were denied the opportunity to be heard and to dispute the reasonableness of the interest rate by offering their own evidence.

II

The defendants next claim that the trial court should not have assessed late fees against them through the date of the trial, but rather that late fees should be charged only until the day on which the notes were accelerated. We address this issue because it is likely to arise on remand. We agree with the defendants that the trial court should not have assessed late fees against them after the notes were accelerated.

The language contained in the notes provides that “[i]n the event of default in any monthly installment, Maker agrees to pay Holder a late charge equal to five percent (5%) of said monthly installment.” Although there is no finding by the trial court of the date of acceleration, it had to be, at the very latest, in June, 1990, when this action was originally instituted. We agree with the reasoning of the District Court in Federal Deposit Ins. Corp. v. M.F.P. Realty Associates, supra, 870 F. Sup. 455, which held that a plaintiff may not recover late charges once the note has been accelerated and demand for payment has been made on the defendants. That court reasoned that “while a note may provide for a lender to collect late charges when an installment is not received by a due date, those installments are no longer ‘due’ after the lender has accelerated the note and made demand upon the borrower.” Id.

The reasoning of the District Court rings true especially in this case because both notes provide for an increase in interest upon default, from 1 percent above prime to 3 percent above prime. If the late charges are allowed to continue after demand for payment in full upon default, it would, in effect, become a penalty since the plaintiff is being compensated for the default by the higher interest rate. See annot., 63 A.L.R.3d 50 (1975). We conclude, therefore, that the trial court improperly assessed late fees against the defendants through the date of the trial.

Ill

The defendants next claim that the $8.8 million note and mortgage merged with the $1 million note and mortgage, and any further action on the $8.8 million note was barred by § 49-1. Because this issue is likely to arise on remand, we will address its merits. Section 49-1 provides in pertinent part: “The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment . ., . .”

The trial court found that the defendants did not raise this argument in any of their responsive pleadings, and it was untimely. The trial court further stated that even if the issue had been properly pleaded, it was not supported by the evidence adduced at trial. The court found that the two notes were separate and distinct obligations and transactions, and that there was no waiver by the plaintiff of its rights to collect on the $8.8 million note when it foreclosed on the $1 million note and mortgage. We agree with the trial court.

Practice Book § 164 provides: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos men-tis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be his own.”

“The puipose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Practice Book § 164. The claim that a plaintiff has elected an exclusive remedy relies on facts outside those alleged in the complaint that operate to negate what may once have been a valid cause of action. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 127, p. 519. It is therefore both rational and fair to place the burden of pleading and proving an election of remedies on the party asserting the claim, usually the defendant. ‘It is sufficient to require the plaintiff to allege facts showing that at one time, at least, he had a cause of action. It would be an undue burden to require him to negate the occurrence of any and all subsequent events that could operate to destroy his cause of action.’ Id.” Grant v. Bassman, 221 Conn. 465, 472-73, 604 A.2d 814 (1992). Since the answer did not allege a special defense of § 49-1, the trial court properly held that the defendants could not assert it at trial.

In addition, a review of the transcript and the record shows that there was substantial evidence on which the trial court could find that the notes were separate and distinct. Appellate courts do not disturb the facts as found by the trial court unless the finding of facts is clearly erroneous. See Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

IV

The defendants’ final claim is that the trial court incorrectly found that their special defenses, their claims of setoff and their counterclaim were not supported by the evidence and were bound by the doctrine in D’Oench, Duhme & Co., or by 12 U.S.C. § 1823 (e) (1994). Because the trial court will be faced with this issue on remand, we will address the trial court’s previous decision.

The trial court found, assuming hypothetically that the doctrine in D’Oench, Duhme & Co., does not bar the special defenses, that the defendants did not sustain their burden of proof on the special defenses, counterclaim and setoff and made specific factual findings in support of its conclusions. A review of the record and transcript shows that the factual findings of the court are not clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 221-22. We agree with the trial court’s conclusion that the defendants failed to sustain their burden of proof on the special defenses, setoff and counterclaim even if the doctrine in D ’Oench, Duhme & Co., and 12 U.S.C. § 1823 (e) did not apply. We also note that both the doctrine in D’Oench, Duhme & Co., and 12 U.S.C. § 1823 (e) apply and would bar those claims.

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

In this opinion the other judges concurred.

       The defendants in this appeal are Napert-Boyer Partnership and George Boyer.

       General Statutes § 49-1 provides: “The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure; but the foreclosure is not a bar to any further action upon the mortgage debt, note or obligation as to any person liable for the payment thereof upon whom service of process to constitute an action in personam could not have been made within this state at the commencement of the foreclosure. The judgment in each such case shall state the names of all persons upon whom service of process has been made as herein provided.”

       See D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 62 S. Ct. 676, 86 L. Ed. 956 (1942).

       Section 1821 (n) of title 12 of the United States Code authorizes the FDIC to create “bridge banks” out of institutions that it deems to be in default or that it anticipates will be in default. A bridge bank is a temporary institution that serves as a vehicle to smooth the transition of a failed institution so that the FDIC need not immediately put an institution into receivership and pay out on insured deposits if there is a possibility that a buyer for the assets may emerge. Jones v. Resolution Trust Corp., 7 F.3d 1006, 1016 (11th Cir. 1993).

       The trial court stated in its memorandum of decision that the FDIC dissolved New CBT on January 11,1991. This was simply a scrivener’s error.

       The trial court rendered judgment on the $8.8 million loan as follows: principal $7,608,714.42; interest $3,432,843.97; default interest $594,148.45; and late charges $180,730.90, for a total of $11,816,437.74. On the $300,000 note, the court rendered judgment as follows: principal $300,000; interest $136,584.31; default interest $43,925; and late charges $4218.56, for a total of $484,727.87.

       The Supreme Court opinion incorporates the trial court opinion Mechanics & Farmers Savings Bank, FSB v. Delco Development Co., 43 Conn. Sup. 408, 422-23, 656 A.2d 1075 (1995).

       See footnote 3.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WILLIAM B. QUINN v. STANDARD-KNAPP, INC., ET AL.
    (13838)
    Dupont, C. J., and Heiman and Hennessy, Js.
    Argued December 14, 1995
    decision released March 5, 1996

      James D. Moran, Jr., with whom, on the brief, was Karen H. Fritzinger, for the appellants (defendants).

      Jason M. Dodge, for the appellee (plaintiff).
   PER CURIAM.

The workers’ compensation commissioner for the eighth district granted the plaintiffs motion to preclude defenses in this workers’ compensation case because the defendants did not file a disclaimer of liability in a timely manner. The compensation review board upheld the decision of the commissioner, and the defendants thereafter appealed to this court. To reach the merits of the issue on the appeal, which is whether the plaintiffs notice of claim satisfied General Statutes § 31-294c (a) and (b), we must first determine if the appeal is taken from a final judgment. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985). The determination of whether a final judgment exists for the purpose of appellate review must be decided by this court even though it was not raised by the parties. State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). If there is no final judgment, we must dismiss the appeal. See General Statutes §§51-197a and 52-263; see also Practice Book § 4000.

The test for determining whether the defendants have appealed from a final judgment turns on the scope of the proceedings on remand. Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990). “[I]f such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” Id., citing Matey v. Estate of Dember, 210 Conn. 626, 630, 556 A.2d 599 (1989).

The question of whether a decision of the compensation review board affirming the granting of a motion to preclude defenses is a final judgment for the purpose of appellate review was addressed in Guinan v. Direct Marketing Assn., Inc., 22 Conn. App. 515, 578 A.2d 129 (1990). In that case, the plaintiff was entitled to temporary total disability benefits, which could be determined by a nonadversarial computation involving only the amount of the plaintiffs weekly salary and the period of time during which there was an inability to work. Id., 517. Neither of those facts was in dispute. Because both the salary and the period of time during which there was an inability to work were known, we concluded that the further proceedings were ministerial, and, therefore, that the decision of the compensation review board was a final judgment. Id.

In the present case, however, there is nothing in the record available to us that establishes the scope of the remand to be held in terms of whether it will be purely ministerial or it will require the taking of evidence to resolve factual questions. At oral argument, however, the defendants’ counsel stated that the defendants dispute whether the plaintiff was actually disabled throughout the entire period of disability claimed. “The determination ... of the extent of [the plaintiffs] incapacity governs which particular statutory formula applies and that determination requires the taking of additional evidence.” Shira v. National Business Systems, Inc., 25 Conn. App. 350, 353, 593 A.2d 983 (1991).

Because the resolution of that issue requires the exercise of independent judgment or discretion and the taking of additional evidence, we conclude that the appeal is premature.

The appeal is dismissed.

       The defendants in this matter are the employer, Standard-Knapp, Inc., and its insurer, Liberty Mutual Insurance Company.

         The timeliness of the disclaimer hinges on whether an employee’s notice of a repetitive trauma-type injury, such as work-related stress disorder, must contain the date of the first day of disability or the last day of work in order for an employee to satisfy the notice of claim requirement.

       The parties were notified to appear at oral argument prepared to address whether we had jurisdiction in view of Szudora v. Fairfield, 214 Conn. 552, 573 A.2d 1 (1990), and Guinan v. Direct Marketing Assn., Inc., 22 Conn. App. 515, 578 A.2d 129 (1990).


author: LAVERY, J.

text:
    REX K. COLLUM v. ALAN CHAPIN ET AL.
    (14125)
    Lavory, Heiman and Spear, Js.
    Argued December 5, 1995
    decision released March 5, 1996

      Maureen Donahue, for the appellant (plaintiff).

      Anthony M. Fitzgerald and William C. Franklin, with whom, on the brief, was John Boyer, for the appel-lees (defendants).
   LAVERY, J.

The plaintiff appeals from the judgment of the trial court granting the defendants’ joint motion for summary judgment. On appeal, the plaintiff claims that the trial court improperly concluded that the plaintiffs action for interference with contractual relations was time barred by General Statutes § 52-577. We affirm the judgment of the trial court.

The following facts were presented to the trial court by way of the pleadings and documents accompanying the motion for summary judgment. The plaintiff is a contractor who proposed to build a new postal facility on land he owned in Washington Depot. In April, 1991, the plaintiff responded to a classified advertisement by the United States Postal Service for a postal facility site. The plaintiff submitted proposals to the Postal Service that were allegedly approved subject to obtaining the required land use permits. The plaintiff alleges that, with knowledge of the “contract” between the plaintiff and the Postal Service, the defendants launched a campaign to interfere with the “contract” and to stop the relocation of the post office to the plaintiffs property.

The plaintiff alleges in his complaint that the defendants (1) sent daily faxes to the Postal Service, (2) circulated petitions requesting the Postal Service to reconsider its site selection, (3) communicated with a Postal Service representative to cause the cancellation of the transaction, and (4) contacted, influenced and intimidated the town zoning and inland wetland commissions to delay the approval of the plaintiffs site. On April 22, 1991, the zoning commission issued its approval of the plaintiffs project. On April 25, 1991, the Postal Service sent a letter to the plaintiff informing him that it had decided to discontinue its search for a site. The letter cited public outcry as one of its reasons for the decision. The plaintiff received the letter from the Postal Service on April 29, 1991.

On April 27,1994, the plaintiff commenced this action for tortious interference with contractual relations. The defendants moved for summary judgment on the ground that the action was barred by General Statutes § 52-577 because it was instituted more than three years after the alleged tortious act or omission. On September 8, 1994, the trial court issued a memorandum of decision granting summary judgment in favor of the defendants. On September 16, 1994, the plaintiff filed a motion to open the judgment and amend the complaint. The trial court denied both motions. The plaintiff, thereafter, filed this appeal.

We conclude that the trial court properly granted the defendants’ motion for summary judgment. “Section 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.” S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 790, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). When conducting an analysis under § 52-577, “the only facts material to the trial court’s decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed.” Shuster v. Buckley, 5 Conn. App. 473, 477, 500 A.2d 240 (1985). The three year limitation period of § 52-577 begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury. Fichera v. Mine Hill Corp., 207 Conn. 204, 212-13, 541 A.2d 472 (1988).

In this case, the plaintiff commenced an action for tortious interference with contractual relations on April 27,1994. A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants’ knowledge of that relationship, (3) the defendants’ intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants’ tortious conduct. Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 535-36, 546 A.2d 216 (1988); Hart, Nininger & Campbell Associates, Inc. v. Rogers, 16 Conn. App. 619, 629, 548 A.2d 758 (1988). In order for the plaintiff to establish liability for interference with a contractual relationship, the plaintiff must show that the defendants’ tortious conduct caused the Postal Service to terminate its relationship with the plaintiff.

Construing the facts in the light most favorable to the plaintiff, the latest date that the defendants could have interfered with the alleged contractual relationship between the plaintiff and the Postal Service was April 25,1991, because that was the date that the Postal Service wrote the letter to the plaintiff rejecting the plaintiffs proposal. Any tortious conduct subsequent to the Postal Service’s letter could not have caused the Postal Service to terminate the relationship. The trial court properly concluded that, at the latest, the three year limitation period of § 52-577 began to run on April 25, 1991.

The plaintiff argues that the limitation period was tolled by operation of the continuous course of conduct doctrine. The trial court did not address this argument because the plaintiff did not allege in his complaint that the defendants engaged in any activity subsequent to the Postal Service letter. To support his theory, the plaintiff relies on an affidavit filed as part of his opposition to the defendants’ motion for summary judgment stating that the defendants continued to engage in tor-tious conduct after the April 25, 1991 letter.

“A summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period. . . . Affidavits are not pleadings, however, and a plaintiff cannot, under the guise of fortifying the complaint, present an entirely new cause of action or expand the scope of his cause of action by means of a counter-affidavit. . . . The issue must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.” (Citations omitted.) Shuster v. Buckley, supra, 5 Conn. App. 477. We conclude that the trial court properly declined to address the plaintiffs claim of a continuing course of conduct.

Finally, the plaintiff argues that the trial court abused its discretion by refusing to allow him to amend his complaint after he received the trial court’s decision on the motion for summary judgment. A trial court has wide discretion in granting or denying amendments to the pleadings. “Such a ruling can be reversed only on a clear showing of abuse of discretion.” Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979); see also Moore v. Sergi, 38 Conn. App. 829, 835-36, 664 A.2d 795 (1995). “The trial court’s refusal to allow a belated amendment to a pleading in response to the filing of a motion for summary judgment by the adverse party will be sustained unless there is clear evidence of an abuse of discretion. . . . Where, as here, the motion was filed after the court had already ruled in favor of the defendant on its summary judgment motion, its action was clearly justified.” (Citation omitted.) Shuster v. Buckley, supra, 5 Conn. App. 479. We conclude that the trial court did not abuse its discretion by denying the plaintiffs motion for leave to amend his complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The plaintiff argues that the trial court improperly relied on his deposition testimony when deciding the joint motion for summary judgment. While the plaintiffs deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact. See Practice Book § 380.

       The plaintiff claims that the limitations period began to run on April 29, 1991, when he received the Postal Service’s letter. The plaintiff argues that the alleged contract was not canceled until such time as he received notice from the Postal Service according to rules of contract law. Our appropriate inquiry is to determine when the alleged tortious conduct occurred. The decision by the Postal Service not to do business with the plaintiff was final and complete on the day of the letter, April 25, 1991.


author: HENNESSY, J.

text:
    ANSON B. CLINTON, JR., ET AL. v. ROGERS LAKE WEST SHORES ASSOCIATION, INC., ET AL.
    (13513)
    Dupont, C. J., and Landau and Hennessy, Js.
    Argued September 28, 1995
    decision released March 5, 1996

      Paul M. Geraghty, for the appellants (plaintiffs).

      Thomas F. McGarry, for the appellee (named defendant).

      Marylin C. Clarke, for the appellee (defendant town of Old Lyme).
   HENNESSY, J.

The plaintiffs, Anson B. Clinton, Jr., and Daloyd M. Clinton, bring this appeal after judgment by the trial court in favor of the defendants, Rogers Lake West Shores Association, Inc. (association), and the town of Old Lyme. The plaintiffs argue that the trial court improperly concluded that the association had not accepted Spruce Street as a public road, and, with respect to the town of Old Lyme, that the trial court improperly dismissed counts seven and eight of the amended complaint. We reverse the judgment of the trial court and remand the case for further proceedings.

The Clintons’ amended complaint, dated July 16, 1993, focuses on Spruce Street in the town of Old Lyme. The complaint alleges, in pertinent part, that Spruce Street is an approved road within the property of the association, that the association is a municipality that has a duty to maintain the road, and that the association refused and failed to maintain the road properly. The plaintiffs demand reimbursement for road improvements that they performed on Spruce Street after the association refused to make the improvements and a declaratory judgment declaring that the association has a duty to maintain Spruce Street. Counts seven and eight of the amended complaint allege that certain appropriations from the town of Old Lyme to the association and other associations are improper.

We remand the case to the trial court for further proceedings because of the failure to comply with Practice Book § 390 (d). See Mannweiler v. LaFlamme, 232 Conn. 27, 31, 653 A.2d 168 (1995).

In response to the plaintiffs’ complaint seeking a declaratory judgment, the trial court rendered a judgment declaring that the “Association is not required to improve and repair Spruce Street.” Section 390 (d) provides that “[t]he court will not render declaratory judgments upon the complaint of any person . . . unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” “The jurisdiction of the trial court over declaratory judgment actions depends upon compliance "with the notice provisions of Practice Book § 390 (d). . . . Failure to comply with § 390 (d) deprives the trial court of subject matter jurisdiction to render a declaratory judgment.” Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993); see also Mannweiler v. LaFlamme, supra, 232 Conn. 32.

In this case, the trial court found that there were three existing houses on Spruce Street. Neither the Appellate Court record nor the trial court record indicates that these parties received notice of the pendency of this action in compliance with § 390 (d). Nor does the record contain a finding that the members of the association received notice. The plaintiffs contend that the Spruce Street residents, as members of the association, and other association members received notice through meetings of the association, but the trial court record is devoid of any such finding. The plaintiffs also argue that, even if these parties have not received notice, our Supreme Court decision in Massameno v. Statewide Grievance Committee, 234 Conn. 539, 550, 663 A.2d 317 (1995), supports the conclusion that notice to the association is notice to its members because the association can represent and protect the interests of the parties who did not receive notice. The present case is inapposite to Massameno because, unlike in Massa-meno, the parties here proffer no statutory authority to support this conclusion. Additionally, the other homeowners on Spruce Street do not necessarily have an identity of interest with the association.

In Russo v. Watertown, 184 Conn. 30, 34, 441 A.2d 56 (1981), our Supreme Court implicitly held that notice to a municipality does not constitute notice to its residents. Because the trial court in this case found that the association is a municipality, we hold, as in Russo, that even if notice was given to the association, the notice requirements of § 390 (d) are not satisfied. This conclusion furthers the basic principles that “no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard.” (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Raymark Corp., 215 Conn. 224, 229, 575 A.2d 693 (1990); Russo v. Watertown, supra, 34. The other residents of Spruce Street certainly had an interest in the determination of whether the association should maintain Spruce Street, and they should have been given notice of the proceeding. See Mannweiler v. LaFlamme, supra, 232 Conn. 34. Similarly, the other members of the association, who may be responsible for the costs of reimbursing the Clintons and maintaining Spruce Street, should have been given notice.

We hold that because of the plaintiffs’ failure to comply with § 390 (d), the trial court lacked jurisdiction to render a judgment. Because the trial court lacked jurisdiction, it necessarily lacked jurisdiction to render an appealable final judgment. Serrani v. Board of Ethics, supra, 225 Conn. 309.

This conclusion, however, does not necessitate a dismissal on remand because this jurisdictional defect can be cured by further proceedings of the trial court. Id., 309-10; Connecticut Ins. Guaranty Assn. v. Raymark Corp., supra, 215 Conn. 230.

The judgment is reversed, including the dismissal of counts seven and eight, and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Counts seven and eight of the amended complaint allege that certain appropriations from the town of Old Lyme to the association and other associations are improper.

       The amended complaint also alleges that the town of Old Lyme has a duty to maintain Spruce Street. The trial court found that the town of Old Lyme was not and is not responsible for enforcing the maintenance of Spruce Street. The plaintiffs do not appeal this part of the trial court’s judgment.


text:
    LORRAINE OTTAWA v. JOCKO OTTAWA
    (14538)
    SchaUer, Spear and Hennessy, Js.
    Submitted on briefs December 14, 1995
    decision released March 5, 1996

      Michael R. Hasse, with whom, on the brief, was Richard T. Miller, certified legal intern, for the appellant (defendant).

      Lois J. Lawrence, for the appellee (plaintiff).
   PER CURIAM.

The defendant appeals from the judgment dissolving his marriage to the plaintiff. Custody and visitation matters were resolved by a stipulation that was signed by the parties and their attorneys and accepted by the trial court. After a hearing on contested financial matters, the court entered orders regarding property, alimony, counsel fees and child support and rendered judgment accordingly.

The defendant asserts that the trial court (1) violated the defendant’s right to due process of law by awarding counsel fees to the attorney for the minor children without affording the defendant an evidentiary hearing, (2) improperly accepted the stipulation of the parties and (3) entered financial awards in contravention of settled law.

The defendant contends that the court awarded fees to the children’s attorney without a hearing despite his request for such a hearing. He states in his brief that “[t]his order is in complete disregard of the defendant’s due process rights to a hearing. It completely ignores a constitutional issue that was raised, questioned and presented by the defendant [at the beginning] of the trial. The trial court deprived the defendant of his right to a hearing on the fees for the attorney for the minor children.”

Our review of the transcript shows that the court offered to have the attorney for the minor children brought to court to testify regarding her bill. In response to that offer, the defendant’s trial counsel responded that “[h]e’s willing to stipulate to the amount. Our concern is how that bill is going to be paid.” The defendant’s counsel then suggested that “if he could just review it in the recess, that would do it . . . .” After a twenty minute recess was called by the court to allow the defendant and his counsel to review the attorney’s bill and to discuss the matter, the following colloquy took place:

“The Court: Where do we stand with the issue I left you with?
“[Defense Counsel]: He has agreed. Yes.”

The hearing then proceeded with other testimony because the court properly considered the fees for the children’s attorney to be a closed issue. The defendant

clearly agreed to the fees and waived his right to a hearing on the issue.

After a careful review of the record and the briefs of the parties, we also conclude that the remaining issues are equally lacking in merit.

The judgment is affirmed.


author: DALY, J. LANDAU, J.,

text:
    KENNETH F. LEMOINE, JR. v. JAMES F. MCCANN
    (14741)
    Foti, Landau and Daly, Js.
    Argued November 3, 1995
    decision released March 5, 1996

      Kenneth Lemoine, Jr., pro se, the appellant (plaintiff).

      Stephen R. Samoski, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   DALY, J.

The plaintiff appeals from the judgment rendered after the trial court granted the defendant’s motion to dismiss. On appeal, the plaintiff claims that the trial court improperly dismissed the action for lack of subject matter jurisdiction on the basis of sovereign immunity. We affirm the judgment of the trial court.

The trial court appointed the defendant attorney as a special assistant public defender to represent the plaintiff in a criminal matter. After a jury trial, the plaintiff was convicted of several counts of the crimes with which he was charged. The plaintiff appealed.

The Appellate Court reversed the convictions and ordered a new trial. State v. Lemoine, 33 Conn. App. 743, 641 A.2d 131 (1994). The Supreme Court granted the state’s petition for certification to appeal, reversed the judgment of the Appellate Court and remanded the case to the Appellate Court for consideration of the plaintiffs remaining claims on appeal. State v. Lemoine, 233 Conn. 502, 659 A.2d 1194 (1995). On remand, the Appellate Court affirmed the judgment of the trial court on the sole remaining claim. State v. Lemoine, 39 Conn. App. 657, 666 A.2d 825 (1995).

Subsequently, the plaintiff initiated the present civil action claiming legal malpractice by the defendant in the course of his representation of the plaintiff in the prior criminal action, and seeking monetary damages from the defendant. The defendant filed a motion to dismiss, asserting lack of jurisdiction over the subject matter by virtue of the doctrine of sovereign immunity. Practice Book § 143. The trial court granted the motion to dismiss and rendered a judgment thereon, and this appeal ensued.

The plaintiff claims on appeal that the trial court improperly held that a special assistant public defender is a “public official or employee of the state” and, therefore, is entitled to sovereign immunity pursuant to General Statutes § 4-165. He also claims that the trial court improperly held that the defendant is protected by the doctrine of sovereign immunity. The plaintiff gives as reasons for this conclusion (1) that the trial court improperly held that the facts as pleaded in the complaint allege negligent rather than wanton, reckless or malicious acts, (2) that as a pro se plaintiff he was entitled to “more latitude” than a plaintiff represented by counsel in the court’s determination of whether the complaint alleged “wanton, reckless or malicious” acts by the defendant as opposed to negligence and that such latitude was not afforded to him, (3) that the trial court improperly failed to afford the plaintiff either a “trial-like hearing” or oral argument on the issue of whether the complaint alleged reckless, wanton or malicious conduct, and (4) that the trial court failed to consider whether the complaint alleged wanton, reckless or malicious conduct, and instead based the judgment dismissing the complaint solely on the issue of whether the defendant was a “state officer or employee.” We disagree with the plaintiff and affirm the judgment of the trial court.

I

We first address the issue of whether an attorney representing a client pursuant to appointment by the court as a special assistant public defender is an employee of the state for purposes of sovereign immunity. We conclude that he is such an employee.

It is the settled law of Connecticut that the state is immune from suit unless it consents to be sued. Lacasse v. Burns, 214 Conn. 464, 468, 572 A.2d 357 (1990). General Statutes § 4-165 provides in pertinent part: “No state officer or employee shall be personally hable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. . . . For the puiposes of this section ‘scope of employment’ shall include, but not be limited to, representation by an attorney . . . appointed by the court as a special assistant public defender of an indigent accused . . . .” (Emphasis added.) Because the state can act only through its officers and agents, a suit against a state officer or employee is in effect one against the sovereign state. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990).

The defendant herein was appointed by the court as a special assistant public defender and is being sued for his actions in the course of that representation. General Statutes § 51-293 (a) (2) specifically does not “prevent a judge of the superior court from appointing a special assistant public defender on a contractual basis for a temporary period of time in an appropriate case . . . .”

The plaintiff argues that the defendant is not an employee of the state and that he therefore is not protected by § 4-165. General Statutes § 4-141 provides, however, that “ ‘state officers and employees’ includes every person elected or appointed to or employed in any office, position or post in the state government, whatever his title, classification, or function and whether he serves with or without remuneration or compensation .... In addition to the foregoing, ‘state officers and employees’ includes . . . attorneys appointed by the court as special assistant public defenders . . . .” Thus, § 4-141 on its face makes § 4-165 applicable to “attorneys appointed by the court as special assistant public defenders,” such as the defendant in the present case. We conclude that the defendant meets the criteria for a “state officer or employee” for purposes of the protection of sovereign immunity.

II

As previously noted, § 4-165 provides that “[n]o state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment.” (Emphasis added.) The plaintiff claims that the doctrine of sovereign immunity is not available to the defendant in this action because the complaint alleges “wanton, reckless or malicious acts,” rather than “negligence.” We disagree.

A

It is axiomatic that the plaintiffs right to recover is limited to the allegations of his complaint. Matthews v. F.M.C. Corp., 190 Conn. 700, 705, 462 A.2d 376 (1983). “When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.” Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981).

The plaintiff specifically represents in the complaint that his cause of action is legal malpractice. “Where the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence . . . .” Shuster v. Buckley, 5 Conn. App. 473, 478, 500 A.2d 240 (1985). Negligence is a separate and distinct cause of action from wilful and malicious misconduct. Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970). Our review of the complaint leads us to conclude that the plaintiffs allegations, construed in the light most favorable to the plaintiff, did not constitute allegations of “wanton, reckless or malicious misconduct,” but, rather, constituted allegations of negligence. We, therefore, cannot conclude that the trial court improperly held that the facts as pleaded in the complaint allege negligent rather than wanton, reckless or malicious acts.

B

The plaintiff further argues that, as a pro se plaintiff, he was entitled to “more latitude” than a plaintiff represented by counsel in the trial court’s determination of whether the complaint alleged “wanton, reckless and malicious conduct,” a decision that could deny the defendant the protection of sovereign immunity. “Although we allow pro se litigants some latitude, ‘the right of self-representation provides no attendant license not to comply with relevant mies of procedural and substantive law.’ ” State v. Krijger, 33 Conn. App. 49, 55, 633 A.2d 310 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994), quoting Galland v. Bronson, 204 Conn. 330, 334-35, 527 A.2d 1192 (1987). Therefore, even a pro se litigant must allege “wanton, reckless or malicious conduct,” which the plaintiff here failed to do, in order to bring a complaint within an exception to sovereign immunity.

C

The plaintiff next argues that he was entitled to and was denied either oral argument or a “trial-like hearing” on the issue of whether the complaint in this action alleged “wanton, reckless or malicious conduct,” rather than mere negligence, because the issue would affect the court’s determination of subject matter jurisdiction. Contrary to the plaintiffs claim, oral argument was provided to the plaintiff, who appeared pro se. Although the plaintiff made reference at that hearing to the nature of the allegations set forth in the complaint, he did not argue his position on this issue. While it is true that at oral argument the court stated: “I am trying to focus on whether the defendant was a state officer or immune in some way,” and may have momentarily turned the discussion away from the nature of the allegations of the complaint, the court’s statement did not, as the plaintiff suggests, deprive the plaintiff of the opportunity to argue that issue. In fact, prior to the conclusion of the hearing, the court said to the plaintiff, “All right. Anything else?” The plaintiff replied, “No, sir.” Thus, the plaintiff was, in fact, afforded the opportunity to address that or any other issue, and he declined to do so.

The plaintiff cites Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 659 A.2d 503 (1983), in support of his claim that he was entitled to a “trial-like hearing” on the issue of jurisdiction. That case is inapposite. In Standard Tallow Corp., atrial-like hearing was required in order to provide the court with the facts regarding service of process that were necessary for the court to determine whether personal jurisdiction had been obtained. In the present case, however, jurisdiction did not depend on the facts of service, but rather on the allegations in the complaint. If the pleadings did not set forth “wanton, reckless or malicious conduct” by the defendant, the doctrine of sovereign immunity would oust the court of jurisdiction. Therefore, no trial-like hearing was required to enable the court to review those pleadings to determine what cause of action or causes of action they set out. Therefore, in the present case, a trial-like hearing was not required.

D

The plaintiff also claims in his brief that, in the trial court, “jurisdiction was decided solely on the question of whether the defendant was a state officer,” and that the trial court improperly failed to consider the issue of whether the plaintiffs complaint alleged “wanton, reckless or malicious conduct.” Contrary to the plaintiffs statement, however, the trial court expressly found that “the facts as pleaded in the complaint allege negligent acts, rather than wanton, reckless and malicious acts.” Therefore, the trial court’s decision was properly based not only on whether the defendant was a state officer or employee, but also on the nature of the allegations of the complaint. We therefore hold that the trial court properly found that the present action does not fall within the exception to the doctrine of sovereign immunity for actions alleging “wanton, reckless or malicious conduct.”

Finally, in light of the fact that the defendant is protected in this case by the doctrine of sovereign immunity, we must consider whether that immunity has been waived. In certain circumstances, upon request of a claimant, the claims commissioner may, on behalf of the state, waive sovereign immunity with respect to a claim that it would otherwise bar. General Statutes § 4-165 provides in pertinent part: “Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter. . . .’’If the claims commissioner “deems it just and equitable,” he may waive immunity on behalf of the state and authorize suit against the state. General Statutes § 4-160 (a). Section 4-160 (b) provides that, in such a case, “the claimant shall allege such authorization and the date on which it was granted. . . .” It is a cardinal principle of judicial review that when an adequate administrative remedy is provided by law, it must be exhausted. Doe v. Heintz, 204 Conn. 17, 34, 526 A.2d 1318 (1987). In the present case, the record does not reflect that the plaintiff exhausted this administrative remedy by obtaining and pleading such authorization to sue, and, therefore, we conclude that immunity has not been waived.

“As we have stated many times before, the doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994). The plaintiffs action in ths case is barred by the doctrine of sovereign immunity and the plaintiff has neither claimed nor demonstrated that sovereign immunity has been waived; therefore, the court does not have jurisdiction to hear the plaintiffs action. The trial court properly dismissed the complaint.

The judgment is affirmed.

In this opinion FOTI, J., concurred.

LANDAU, J.,

dissenting. The majority concludes that the defendant falls within the protection of the doctrine of sovereign immunity because the trial court properly found that the plaintiffs complaint fails to allege sufficient acts of wanton, reckless or malicious misconduct. Because my review of the complaint leads me to conclude otherwise, I respectfully dissent.

Our consideration on appeal is whether the trial court properly granted the motion to dismiss the plaintiffs complaint. Two facts present themselves with exceptional clarity: (1) the plaintiff appears pro se; and (2) the effect, albeit not the purpose, of the trial court’s action is to prevent the pro se plaintiff from obtaining a full and fair adjudication of his rights. “ ‘This court has always been solicitous of the rights of pro se litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party.’ Conservation Commission v. Price, 193 Conn. 414, 421 n.4, 479 A.2d 187 (1984).” Budlong v. Nadeau, 30 Conn. App. 61, 67, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290, cert. denied, 510 U.S. 814, 114 S. Ct. 62, 126 L. Ed. 2d 31 (1993). “ ‘Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982); LaBow v. LaBow, 13 Conn. App. 330, 336, 537 A.2d 157 (1988).’ Cugini v. Cugini, 13 Conn. App. 632, 634, 538 A.2d 1060 (1988).” Lo Sacco v. Young, 20 Conn. App. 6, 9, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989).

Neither party in this case sought to introduce facts outside of the record on the motion to dismiss. “[Wjhen a motion to dismiss does not seek to introduce facts outside of the record it is equivalent to our former motion to erase and admits all well pleaded facts, the complaint being construed most favorably to the plaintiff. Brewster v. Brewster, 152 Conn. 228, 233, 206 A.2d 106 (1964).” American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217, 459 A.2d 1031 (1983).

Although I do not dispute the majority’s conclusion that the plaintiff alleges what can be deemed only acts of negligence in eleven of thirteen allegations of misconduct set forth in the pleading, with respect to the remaining two, I would conclude that the plaintiff asserts claims of misconduct by the defendant that transcend negligence. In subpar agraphs (e) and (f) of paragraph one, the plaintiff claims that the defendant (1) “refused to subpoena witnesses that were available and ready to testify” and (2) “refused to take statements or depositions from witnesses that were available and critical and because of this lost memory of crucial facts.” (Emphasis added.) In my view, the language employed by the plaintiff in these allegations was “ ‘explicit enough to clearly inform the court and opposing counsel that reckless misconduct [was] relied on.’ ” Kostiuk v. Queally, 159 Conn. 91, 94, 276 A.2d 452 (1970). Moreover, if proven, these assertions would establish that the defendant exhibited “a reckless disregard of the just rights ... of others or of the consequences of [his] action.” (Internal quotation marks omitted.) Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 510, 548 A.2d 728 (1988).

Consistent with our practice of being solicitous of the rights of pro se litigants; Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 519-20, 370 A.2d 1306 (1976); in ascertaining the true scope of the complaint, I would conclude that the plaintiff sufficiently alleges acts of misconduct that remove the defendant from the protection of the doctrine of sovereign immunity. Accordingly, I would reverse the judgment and remand the matter for further proceedings.

       Practice Book § 143 provides: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . .

       We need not consider the defendant’s status as a public defender appointed by the public defender services commission since it was not raised in the pleadings or brought to the attention of the trial court.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JOHN MALONE
    (15175)
    Dupont, C. J., and Foti and Heiman, Js.
    Argued November 30, 1995
    decision released March 5, 1996

      Neal Cone, assistant public defender, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of murder for aiding the principal offender in violation of General Statutes §§ 53a-8 and 53a-54a (a). The defendant claims that the trial court improperly (1) admitted a witness’ probable cause hearing testimony in violation of the confrontation clauses of both the state and federal constitutions and (2) instructed the jury on reasonable doubt and the presumption of innocence. The defendant also claims that the evidence was insufficient to support a conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant, John Malone, a Bridgeport resident, regularly purchased drugs from a supplier in Manhattan and sold the drugs in Bridgeport. Luis Estrella, known as Augie, worked for the defendant selling drugs in Bridgeport. At some time prior to September 2,1992, another drug dealer, known as Boone, suspected Estrella of stealing from him. Boone and the defendant purchased their drugs from the same supplier in Manhattan.

On September 2,1992, a man known as Crypt arrived in Bridgeport and went to the defendant’s apartment. Boone had hired Crypt, who worked for Boone’s drug supplier, to kill Estrella. The defendant drove Crypt, in the defendant’s Cadillac, to the Marina Village apartments in Bridgeport. The defendant exited the car and spoke briefly to Estrella in plain view of Crypt, who remained in the car. Sometime later, after the defendant had separated from Estrella, Crypt exited the defendant’s car and walked up to a group of people that included, among others, Estrella and Harold “Bobbie” Hopkins. Crypt asked if anyone had any “dope.” Estrella indicated that he did, and Crypt shot Estrella twice in the head. Estrella died from gunshot wounds to the head and neck. The defendant drove Crypt away from the crime scene in the defendant’s Cadillac.

The police interviewed the defendant the day following the murder. The defendant gave a written statement in which he did not mention Crypt, nor did he mention that he had given any adult male a ride to the Marina Village apartments the morning of the murder. The defendant did tell the police that he rode through the area with his two year old son in the car, and that he stopped and spoke briefly with Estrella and Hopkins before leaving the area.

Approximately one month later, the defendant gave a second statement to the police officers who arrested him on this murder charge. In this oral statement, the defendant stated that Crypt had arrived at the defendant’s apartment on the morning of the shooting and asked the defendant to drive him to the Marina Village area. The defendant acknowledged that Crypt had visited his apartment previously and that Crypt worked for the defendant’s New York drug supplier. The defendant also admitted that Estrella worked for him selling drugs, and that he had given Crypt a ride to the vicinity of the Marina Village neighborhood on the morning of the murder. The defendant, however, denied knowing that Crypt was armed and further denied knowing that Crypt intended to kill Estrella. The defendant claimed that he first saw a gun when Crypt exited his car. The defendant stated he heard shots shortly after Crypt exited his vehicle and soon thereafter witnessed Crypt running back to the car from around a building exclaiming, “Let’s get out of here.” The defendant stated that he drove Crypt back to his apartment and that Crypt later admitted that he had shot Estrella. According to the defendant, Crypt confessed that he had been hired to fulfill a contract to kill Estrella because Estrella had “ripped off” a drug dealer named Boone.

In his trial testimony, the defendant testified that Crypt had not been to his apartment the morning of the shooting, or at any previous time. The defendant claimed that on the morning of the murder, as he left his apartment with his two year old son, a man, whom the defendant knew as Crypt, approached the defendant and asked him for a ride to the Marina Village apartments. The defendant recounted that he gave Crypt a ride and noticed that Crypt was armed when Crypt exited his car. The defendant stated that he parked the car and briefly spoke with Estrella. The defendant told the jury that he separated from Estrella, but was in the general vicinity of the Marina Village apartments when he heard three shots and saw Crypt ran up to him, waving a gun. The defendant testified that Crypt ordered him at gunpoint to drive him away. The defendant stated that he agreed only after Crypt aimed the weapon at him.

I

The defendant first claims that the trial court improperly admitted into evidence the probable cause hearing testimony of Hopkins, a state’s witness. In his testimony, Hopkins recounted a telephone conversation that he had had with the defendant on the day of the murder in which the defendant had asked Hopkins if he had seen what had happened to Estrella. Hopkins replied that he had seen Estrella get shot but he denied saying anything to the police. The defendant then told Hopkins to stick to his story and that Hopkins would be all right. Hopkins testified that later that day he saw the defendant and the defendant again instructed Hopkins to stick to his story, warning Hopkins that he could be next. Hopkins testified that the defendant stated that it was “kind of messed up” that Estrella was killed, but that Estrella “had to go.” As to the shooting itself, Hopkins testified that on September 1,1992, at approximately 9 a.m., Hopkins saw the defendant drive past in a green Cadillac with a brown-skinned man seated in the front passenger’s seat and the defendant’s son in the back seat. Hopkins explained that he later saw the defendant exit his vehicle, approach Estrella and have a conversation with him. Hopkins stated that the defendant subsequently left and Estrella j oined Hopkins and some others. Hopkins recalled that at that point, a man, other than the defendant, approached, asked about drugs and began shooting, hitting and killing Estrella.

Following Hopkins’ direct testimony at the probable cause hear ing, the prosecution furnished defense counsel with three prior statements that Hopkins had given to the police. Thereafter, defense counsel cross-examined Hopkins, and Hopkins described the height of the shooter, indicating that the defendant was not the shooter.

At trial, following a hearing outside the jury’s presence, the trial court found, for purposes of admitting Hopkins’ prior testimony, that Hopkins was unavailable, that the state had made reasonable efforts to locate him, and that Hopkins had a reasonable basis for being unavailable.

In arguing that his confrontational rights were violated, the defendant points out that his cross-examination of Hopkins at the probable cause hearing was brief and limited. Moreover, the defendant maintains that his motive in cross-examining at the preliminary hearing differs significantly from his purpose in cross-examining at trial, especially given the fact that at the time of the probable cause hearing the defendant was charged as a principal, but at trial the defendant was charged as an accessory. The defendant also argues that the trial court improperly concluded that Hopkins was unavailable at the time of trial, and that it was not harmless error to admit Hopkins’ prior testimony.

“Cases involving the admission of an unavailable declarant’s prior statements . . . [give] rise to Confrontation Clause issues because hearsay evidence was admitted as substantive evidence against the [defendant].” (Internal quotation marks omitted.) State v. Outlaw, 216 Conn. 492, 503, 582 A.2d 751 (1990). The sixth amendment to the United States constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” While the confrontation clause may bar the admissibility of evidence possibly admissible under an exception to the hearsay rule; State v. Outlaw, supra, 504; the right of confrontation is not violated by the substantive use of a prior statement if the declarant is unavailable, and if that statement bears adequate indicia of reliability. Id., 505.

We reject the defendant’s claim that the de minimis cross-examination of Hopkins at the probable cause hearing should be sufficient to exclude the preliminary hearing testimony as contrary to state and federal rights of confrontation. Article first, § 8, of the Connecticut constitution provides that “[i]n all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him . . . .” The defendant can point to no authority, under either constitution, for the proposition that any particular type of cross-examination, as to duration or content, is a requirement that must be satisfied before that prior testimony may be admissible. Neither the state nor the federal guarantees of the right of confrontation require that a witness be present at trial for an actual cross-examination in order to admit prior testimony given under oath.

Under the facts of this case, we interpret the confrontation clause of the Connecticut constitution in the same manner as its federal counterpart. We recognize that “ ‘[t]he extent of cross-examination, whether at a preliminary hearing or at a trial, is a trial tactic.’ ” State v. Parker, 161 Conn. 500, 504, 289 A.2d 894 (1971), quoting United States v. Allen, 409 F.2d 611, 613 (10th Cir. 1969). The test is the opportunity for a full and complete cross-examination rather than the use made of that opportunity. State v. Parker, supra, 504. The confrontation clause, under our state constitution, “did not establish a new principle in criminal procedure; it merely secured an old principle whose earlier violation in England in political prosecutions had led to the incorporation of a similar provision in every State constitution .... The fundamental purpose in securing this right, ‘to be confronted by the witnesses against him,’ was to give to the accused the right of opportunity to cross-examine the witnesses against him . . . .” State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925).

The confrontation clause of our state constitution does not prevent the admission of prior testimony given under oath in another related proceeding. Our Supreme Court recognized, although not as a matter of constitutional interpretation, that “the testimony given at aprobable cause hearing has the identical safeguards to insure reliability and trustworthiness as the testimony given at the trial.” State v. Parker, supra, 161 Conn. 503.

We conclude that the defendant was given ample opportunity to cross-examine Hopkins. The defendant’s voluntary and deliberate choice to conduct a limited inquiry of Hopkins cannot now be advanced as a basis on which to exclude Hopkins’ testimony.

The defendant asserts that the state’s initial information misled the defendant to believe that he was being charged as the shooter. The defendant asserts that, on the basis of the original charge, his purpose in cross-examining Hopkins was to establish whether the defendant was the person who shot Estrella. The defendant maintains, however, that his motive in cross-examining Hopkins at trial, given the revised charge, would have been entirely different, and, thus, he was effectively denied the opportunity to cross-examine Hopkins. We find the defendant’s arguments to be without merit.

As a matter of law, an accused charged with an offense is on notice that he may be convicted as an accessory to that crime. State v. Steve, 208 Conn. 38, 43-44, 544 A.2d 1179 (1988); State v. Walton, 34 Conn. App. 223, 230, 641 A.2d 391, cert. denied, 230 Conn. 902, 644 A.2d 916 (1994). Even though charged as aprincipal, a defendant may be convicted as an accessory as long as the evidence is sufficient to establish accessorial conduct. State v. Williams, 220 Conn. 385, 388, 599 A.2d 1053 (1991). The accessory statute itself does not provide a criminal offense, but rather an alternative theory under which liability for the underlying substantive crime may be proven. State v. Walton, supra, 230. Therefore, there is no practical difference in the label for purposes of establishing criminal responsibility. Id.

The primary focus of both the probable cause hearing and the defendant’s trial was to determine whether the defendant committed the crime. Other substantive issues involved in both of these judicial proceedings were substantially similar. See State v. Parker, supra, 161 Conn. 504. We conclude that the original information charging the defendant with murder did not mislead the defendant in conducting the cross-examination of Hopkins nor deny the defendant an opportunity to confront or cross-examine Hopkins.

In addition to the defendant’s claims of the denial of his opportunity to confront and cross-examine, the defendant asserts that the trial court improperly concluded that Hopkins was unavailable to testify at the trial. The trial court has broad discretion in making a determination of unavailability, and its conclusion will be reversed on appeal only on a showing of a clear abuse of that discretion. State v. Rivera, 221 Conn. 58, 62, 602 A.2d 571 (1992). We conclude that the trial court did not abuse its discretion in finding that Hopkins was unavailable. Five witnesses testified as to Hopkins’ unavailability, and our review of the record discloses that the evidence was sufficient to establish that the state had made a good faith effort to procure Hopkins’ attendance by reasonable means. See State v. Aillon, 202 Conn. 385, 391, 521 A.2d 555 (1987). We see no valid purpose in reexamining evidence that so abundantly supports the trial court’s conclusion as to unavailability.

As to the reliability of Hopkins’ prior testimony, the defendant claims that the trial court improperly determined that Hopkins’ statements were admissible as a prior testimony exception to the hearsay rule. The defendant argues that the trial court should have made an independent inquiry to determine whether the statement carried adequate indicia of reliability.

“ ‘Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.’ ” State v. Outlaw, supra, 216 Conn. 505, quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Prior testimony is a well rooted exception to the hearsay rale. Ohio v. Roberts, supra, 72-73; State v. Weinrib, 140 Conn. 247, 249-52, 99 A.2d 145 (1953). We conclude that Hopkins’ testimony at the probable cause hearing qualified as admissible evidence at the trial under the prior testimony exception to the hearsay rale. Accordingly, the trial court properly deemed Hopkins’ prior testimony to be reliable and admissible evidence.

II

The defendant next contends that the trial court’s instructions to the jury on reasonable doubt and the presumption of innocence diluted that standard and undermined that presumption.

The defendant’s claims are unpreserved and he seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant acknowledges that instructions similar in language have been upheld by our Supreme Court on numerous occasions. State v. Ellis, 232 Conn. 691, 705-706, 657 A.2d 1099 (1995); State v. Kelley, 229 Conn. 557, 567-68, 643 A.2d 854 (1994); State v. DePastino, 228 Conn. 552, 572-73, 638 A.2d 578 (1994); State v. Francis, 228 Conn. 118, 134-35, 635 A.2d 762 (1993); State v. Thomas, 214 Conn. 118, 119, 570 A.2d 1123 (1990); State v. Findlay, 198 Conn. 328, 346, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). The defendant further acknowledges that we are bound by the decisions of our Supreme Court.

The defendant has failed to demonstrate that his claims of improper instructions on reasonable doubt and the presumption of innocence satisfy the second prong of the Golding analysis. Therefore, we will not review the defendant’s claims.

Ill

The defendant’s final claim is that the evidence was insufficient to support the inference that he intentionally aided the shooter to kill the victim.

In reviewing claims of insufficiency, we first review the evidence presented at trial and construe it in the light most favorable to sustaining the verdict. State v. Stanley, 223 Conn. 674, 677, 613 A.2d 788 (1992). We then look at the facts established at trial and the reasonable inferences drawn from those facts, and decide whether the jury could have reasonably concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. Id., 678.

It is the jury’s right and duty to draw reasonable and logical inferences from the evidence. State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). It is also the jury’s function to observe the conduct, demeanor and attitude of the witnesses and to gauge their credibility. State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). While we acknowledge that it appears that the defendant’s conviction is premised, in large measure, on circumstantial evidence, we note that there is no legal distinction between direct and circumstantial evidence as far as probative force is concerned, and that it is not one fact, but the cumulative impact of a multitude of facts that establish guilt in a case involving substantial circumstantial evidence. State v. Simino, 200 Conn. 113, 117, 509 A.2d 1039 (1986).

In order to be convicted of murder as an accessory, the defendant must have had the intent to aid the principal and in so doing must have intended to commit the offense with which he is charged. State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 577 (1987). The element of intent is ordinarily proven by circumstantial evidence and must usually be inferred from the defendant’s conduct and the surrounding circumstances. State v. Smith, 35 Conn. App. 51, 63, 644 A.2d 923 (1994).

“Section 53a-8 requires that a defendant charged as an accessory have acted ‘with the mental state required for commission of [the] offense.’ An accessory, therefore, must only have the same intent as the principal. Furthermore, ‘accessorial liability does not require that a defendant act with the conscious objective to cause the result described by the statute. . . . [That statute] merely requires that a defendant have the mental state required for the commission of a crime while intentionally aiding another.’ ” State v. Nixon, 231 Conn. 545, 554, 651 A.2d 1264 (1995). Here, the defendant could be convicted as an accessory to murder if he had the mental state required of the principal, i.e., the intent to cause the death of Estrella, while aiding Crypt.

Our review of the record, including the trial court’s instructions to the jury, leads us to conclude that the jury could have found beyond a reasonable doubt that the defendant intentionally aided Crypt in the commission of the crime of murder. Because we have already set out the facts that the jury could have reasonably found, no purpose would be served by repeating those facts. We do, however, reiterate those specific facts that highlight the defendant’s accessorial involvement in the crime.

The evidence presented as to the defendant’s actions on the day of the murder are mostly undisputed. The defendant’s claim, however, is that he did not know that Crypt was armed or that Crypt intended to kill Estrella. The jury had before it the defendant’s testimony at trial and his two pretrial statements. They were free to consider the continually changing nature of the defendant’s version of events, his conversations with Hopkins, his admitted knowledge of the alleged motive for the killing, and his knowledge of the relationship between the killer, the victim, and Boone. The jury cannot be expected to have left its common sense outside the jury deliberation room. It is very reasonable and probable that the jury would reject the possibility that an execution style killing could take place by a contract killer who had not planned how he would get to the scene of the killing, how he would identify his victim, or how he would depart from the murder scene. The jury could properly find that the meeting between the defendant and Crypt was not a chance encounter, but rather, was a prearranged, intentional meeting, that the defendant identified the victim to Crypt, and that the defendant drove Crypt away after the killing.

The jury could also reject as more than coincidence that Crypt, after committing the shooting, ran toward the defendant and that the defendant just happened to be in the area with his car parked nearby. From the evidence presented, it was not unreasonable for the jury to have concluded that the defendant knew Crypt’s purpose in coming to Bridgeport, knew that Crypt was armed, and, further, that the defendant aided Crypt in the commission of Estrella’s murder. The jury was free to draw reasonable inferences from the facts found and to conclude that the cumulative force of the evidence established the defendant’s guilt beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-8 provides: “(a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.
      “(b) A person who sells, delivers or provides any firearm, as defined in subdivision (19) of section 53a-3, to another person to engage in conduct which constitutes an offense knowing or under circumstances in which he should know that such other person intends to use such firearm in such conduct shall be criminally liable for such conduct and shall be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The right of confrontation is guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

       At the time of the hearing on probable cause on November 12,1992, the defendant was charged with murder as a principal. On March 1, 1993, an amended information was filed alleging “John Doe” was the shooter and that the defendant had been an accomplice by aiding him.

       In order to prevail on a claim of constitutional error not preserved at trial, the second prong of the Golding analysis requires that a defendant assert a claim of constitutional magnitude alleging the violation of a fundamental right. State v. Golding, supra, 213 Conn. 239-40.

       See footnote 2.