text:
    WILLIAM D. MEYERS ET AL. v. CORNWELL QUALITY TOOLS, INC., ET AL.
    (13783)
    (14089)
    Foti, Lavery and Schaller, Js.

      Argued November 29, 1995
    officially released April 9, 1996

      Chester J. Bukowski, Jr., with whom, was Christopher L. Slack, for the appellants-appellees (defendants).

      Kathleen Eldergill, for the appellees-appellants (plaintiffs).
   SCHALLER, J.

The defendants and the plaintiffs filed separate appeals in a fraud and Connecticut Unfair Trade Practices Act (CUTPA) action. The defendants appeal from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiffs on both counts. The defendants claim that the trial court improperly (1) submitted the CUTPA claim to the jury, (2) denied their motion to set aside the verdict on the fraud count, which they based on the plaintiffs’ claimed failure to make out a prima facie case and on the claim that the evidence was contrary to the verdict, (3) admitted evidence of dealer terminations and collateral misconduct, (4) instructed the jury on the burden of proof regarding the fraud claim, (5) instructed the jury on the CUTPA claim, (6) failed to set aside the jury’s verdict on the CUTPA claim as contrary to the evidence, and (7) denied the defendants’ motion for a mistrial based on jury misconduct. The plaintiffs appeal from the trial court’s denial of their motion to open the judgment and for reconsideration, claiming that even if they did not have a right to a jury trial on the CUTPA claim, the trial court improperly refused to consider the evidence and to make its own factual determination as to the CUTPA claim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Cornwell Quality Tools, Inc. (Cornwell), manufactures tools and recruits dealers to buy its tools. Cornwell assigns the dealers particular territories where the dealers sell the tools they have purchased from Cornwell. In the spring of 1989, Raymond Phelan was a district manager for Cornwell and had met with the plaintiffs about William D. Meyers’ (Meyers) becoming a Corn-well dealer.

Phelan initially told the plaintiffs that an investment of $40,000 was required to become a dealer, and Phelan showed the plaintiffs the Cornwell recruiting manual, which suggested a $50,000 investment. Phelan stated that Cornwell would provide Meyers with training and support. Phelan also told the plaintiffs that Cornwell would buy back any tools, minus a 10 percent restocking fee, if Meyers left the business.

Phelan presented the plaintiffs with Cornwell’s projected income statement of dealers who had completed a two year initial period. The statement, which was included in Cornwell’s recruiting manual, projected the income of Cornwell tool dealers as $65,279 per year. The statement, to which added his own representations, also indicated that a dealer’s net annual sales would be $200,000 with a gross profit of 42.5 percent. The actual average annual sales of Cornwell dealers who had completed the initial two year period was about $90,000 rather than the $200,000 indicated in Cornwell’s projected income statement. In addition, a more accurate figure for a dealer’s estimated gross profit was 30 to 35 percent.

The plaintiffs obtained a second mortgage on their home to finance their investment in the dealership, providing Meyers with $22,000 of investment capital. On the basis of his experience with many recruits, Phelan told the plaintiffs that $22,000 would be a sufficient investment because Meyers was buying a used truck and was going into a developed territory. Meyers started in June, 1989, and Phelan traveled with him for the first two weeks, introducing him to customers and showing him how to take and record orders.

Within a short time, Meyers began to have difficulty with the business, including problems with restocking inventory, operating computer software that Phelan had recommended, and acquiring a customer base. Phelan maintained contact with Meyers by means of weekly or biweekly telephone calls or visits. After Phelan emphasized that dealer inventory must be kept at $25,000, Meyers requested, in order to keep his business operating, that Cornwell exchange some of the tools in the initial inventoiy for tools that were selling better. Phelan advised Meyers not to do this because Meyers would have to pay the 10 percent restocking fee.

By August, 1989, Meyers became unable to keep current his bill payments to Cornwell. In October, 1989, bill collectors hired by Cornwell contacted the plaintiffs. Phelan accused Meyers of not working hard enough and not keeping up his inventoiy. After Meyers explained that he was trying to allocate his finances in the best possible way, Phelan suggested that the plaintiffs try to borrow more money. Meyers made numerous attempts to obtain additional small business loans, but was unable to do so.

In November, 1989, Cornwell placed a hold on Meyers’ credit, instructing him that he could not buy any more tools until he paid his bill. A few months later, by letter dated February 23, 1990, Cornwell terminated Meyers’ dealership. Meyers then contacted Phelan who told him to contact Cornwell. When Meyers contacted Cornwell, he was told that the termination had been made at the urging of Phelan. When he called Phelan to inquire why he was being terminated, a heated discussion ensued, and Phelan hung up on him. Meyers then shipped his remaining inventory to Cornwell. Cornwell refused to accept a portion of the tools, worth $3200, and returned those tools at Meyers’ expense. Cornwell credited Meyers’ account for the tools that it did accept. Additional facts will be set out in the opinion where necessary.

I

The defendants first claim that the trial court improperly submitted the CUTPA claim to the jury. They rely on Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 161-62, 645 A.2d 505 (1994), for the proposition that a plaintiff has no right to a jury trial of a CUTPA claim. The defendants argue, therefore, that we should order a new trial in which the court would make the necessary factual findings on the CUTPA claim. We disagree.

The following procedural history is relevant to our resolution of this issue. On November 26, 1990, the plaintiffs filed a complaint against the defendants. On February 11, 1991, the defendants filed an answer, a counterclaim and a general claim for a jury trial. The plaintiffs responded on February 20, 1991, with their answer and special defenses to the counterclaim, as well as their own general claim for a jury trial. On November 10, 1993, the plaintiffs began presenting evidence to the jury.

The defendants first objected to the submission of the CUTPA claim to the jury on December 1, 1993, arguing that the CUTPA claim was a statutory issue that must be decided by the court. The trial court did not indicate at that time whether it would submit the CUTPA claim to the jury. The trial court heard further argument concerning the issue on December 8 and 9, 1993. Evidence concluded on December 9. On December 20,1993, the court placed on the record its decision to allow the jury to deliberate on the CUTPA claim.

In Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 159, our Supreme Court rejected a claim by the defendants that they were entitled to a jury trial on their counterclaim alleging a CUTPA violation. The defendants asserted that article first, § 19, of the Connecticut constitution, which guarantees the right to a jury trial in all cases for which such a right existed at the time of the adoption of the constitutional provision in 1818, applied to their counterclaim. Id. The court determined that “CUTPA creates an essentially equitable cause of action not substantially similar' to common law claims triable to a jury prior to 1818, [and, therefore, that] a jury trial is not constitutionally required for actions brought under CUTPA.” Id., 155. Consequently, the court held that “[t]he trial court . . . properly granted the plaintiffs motion to strike the defendant’s counterclaim from the jury docket.” Id., 162.

Contrary to the defendants’ assertions, however, Associated Investment Co. Ltd. Partnership does not stand for the proposition that because a party is not entitled to a jury trial on a CUTPA issue, a jury trial is not permissible. See Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 590 n.23, 657 A.2d 212 (1995). Practice Book § 307 provides that: “No equitable issues shall be tried to the jury except upon order of the court. Upon the application of either party, the court may order any issue or issues of fact in any action demanding equitable relief to be tried by a jury, and such application shall be deemed to be a request for a jury of six.” (Emphasis added.) Moreover, General Statutes § 52-218 provides: “Upon the application of either party, the court may order any issue or issues of fact in any action demanding equitable relief to be tried by a jury of six.”

In this case, the defendants were the first to claim the case for the jury list. After several days of evidence, however, they objected to the submission of the CUTPA claim to the jury. Once a party has requested the trial court to submit issues of fact to a jury on an equitable claim, the court has the power under § 52-218 to submit such issues to the jury. Klar Crest Realty, Inc. v. Rajon Realty Corp., 190 Conn. 163, 170, 459 A.2d 1021 (1983); see also Gaudio v. Gaudio, 23 Conn. App. 287, 303, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). “The statute is discretionary . . . .” Gaudio v. Gaudio, supra, 303. “The jury forms no part of our equity system, though its use is permitted by statute upon issues of fact in equitable actions.” Doris v. McFarland, 113 Conn. 594, 608, 156 A.2d 52 (1931). Under these circumstances, we conclude that the trial court properly submitted the CUTPA claim to the jury.

II

The defendants next claim that the trial court improperly refused to set aside the jury’s verdict on the claim of fraud. The defendants first argue that, because the plaintiffs failed to provide any evidence that the defendants misrepresented facts, the plaintiffs failed to establish a prima facie case of fraud, and, consequently, the trial court should not have submitted the fraud claim to the jury. The defendants also argue that the jury’s verdict was contrary to the evidence. We find no merit in these claims.

“The function of the trial court in setting a verdict aside, and the role of this court in reviewing that action, are well settled. The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict .... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion .... American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 774, 607 A.2d 418 (1992).

“This court’s inquiry focuses on the action of the trial court .... We determine whether the trial court abused its broad discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness . . . because the trial court, unlike this court, has had the opportunity to view the witnesses, to gauge their credibility and the weight of their evidence, and to detect those factors, if any, that could improperly have influenced the jury. ... In doing so, we must examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion. Id., 774-75.” (Internal quotation marks omitted.) Young v. Falk, 34 Conn. App. 852, 861-62, 643 A.2d 1314 (1994).

The defendants contend that the plaintiffs failed to establish a prima facie case because they offered no evidence that the defendants made factual representations to the plaintiffs. The plaintiffs presented evidence that the defendants told Meyers that he had sufficient financial resources to operate a Cornwell dealership, that Cornwell would provide adequate training, that the plaintiffs could expect $65,000 in annual income from sales totaling $200,000, and that Cornwell would repurchase the tools if the dealership was terminated. The defendants assert that because the plaintiffs’ evidence concerns statements of future occurrences only, they are opinions rather than representations of fact.

The requirement that a representation be made as a statement of fact “focuses on whether, under the circumstances surrounding the statement, the representation was intended as one of fact as distinguished from one of opinion.” Crowther v. Guidone, 183 Conn. 464, 468, 441 A.2d 11 (1981). “It is sometimes difficult to determine whether a given statement is one of opinion or one of fact, inasmuch as the subject matter, the form of the statement, the surrounding circumstances, and the respective knowledge of the parties all have a bearing upon the question .... [E]ach case must in a large measure be adjudged upon its own facts.” 37 Am. Jur. 2d, Fraud and Deceit § 46 (1968).

The defendants told the plaintiffs that they had sufficient investment capital to operate a Cornwell dealership and that they could expect $65,000 in annual income from $200,000 in total sales. Under the circumstances, we do not construe this, as the defendants do, as merely a representation of an opinion that the plaintiffs’ dealership may succeed in the future. The defendants were representing to the plaintiffs that they in fact had sufficient capital to make a viable investment in a Cornwell dealership. See Crowther v. Guidone, supra, 183 Conn. 468 (experienced real estate salesman made representation of fact when he told buyers they could build house on subject property and then divide parcel, selling balance of property to others, in accordance with zoning regulations).

Moreover, the defendants’ representations that Meyers would be provided with adequate training and that Cornwell would repurchase the tools if his dealership terminated could also be considered by the jury to be false representations. “ ‘[A] promise to do an act in the future when coupled with a present intent not to fulfill it, is a false representation.’ ” Mitchell v. Mitchell, supra, 31 Conn. App. 336, quoting Flaherty v. Schettino, 136 Conn. 222, 226, 70 A.2d 151 (1949); see also Smith v. Frank, 165 Conn. 200, 201, 332 A.2d 76 (1973) (representations of fact that repairs would be made before closing on sale of house). We conclude that the trial court did not abuse its discretion in submitting the claim of fraud to the jury.

The defendants nevertheless maintain that the verdict is contrary to the evidence. The defendants assert that the evidence demonstrated that the root causes of Meyers’ failure as a Cornwell dealer was his own lack of effort, his inability to sell tools, and his failure to remain current on his payments. The defendants further assert that Meyers received considerable training and assistance from the defendants and that Cornwell repurchased his tools when his dealership was terminated. We conclude that it was within the trial court’s discretion to submit these disputed issues of fact to the jury. Moreover, because the jury could reasonably and logically have reached its conclusions, the trial court properly refused to set aside the verdict on the fraud count.

Ill

The defendants next claim that the trial court improperly admitted evidence of Cornwell dealer terminations and the testimony of former Cornwell dealers. The defendants argue that the evidence is irrelevant to the plaintiffs’ claims of CUTPA and fraudulent misrepresentation. The defendants further argue that the testimony of former Cornwell dealers was inadmissible evidence of collateral misconduct. We disagree.

The defendants objected to the admission of the following evidence. Four dealers testified that they had been recruited by Phelan in 1987 and 1988. Phelan encouraged those dealers to invest in a Cornwell dealership knowing that their initial investment capital ranged from $10,000 to $57,000. Phelan told them that they possessed sufficient capital to be successful. All of the dealers were terminated within two years because they were unable to maintain their inventory of tools and pay their bills to Cornwell. The dealers further testified that their bad debts from customers ranged from $3000 to $17,000, greatly exceeding Cornwell’s estimated bad debts of $2000 to $3000 per year. In addition, the dealers testified that Cornwell refused to reimburse them for many tools at the conclusion of their dealerships. The plaintiffs also presented a listing of Cornwell dealers terminated nationwide from 1985 to 1989. The listing demonstrated the number of dealers terminated each year and the duration of each dealership at the time of termination.

“[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.” (Internal quotation marks omitted.) State v. Payne, 40 Conn. App. 1, 20, 669 A.2d 582 (1995); see also Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 192, 510 A.2d 972 (1986).

CUTPA “is aimed at eliminating or discouraging ‘unfair methods of competition and unfair or deceptive acts or practices.’ ” Hinchliffe v. American Motors Corp., 184 Conn. 607, 616-17, 440 A.2d 810 (1981), quoting General Statutes § 42-110b. In enacting CUTPA, our General Assembly “deliberately chose not to define the scope of unfair or deceptive acts proscribed ... so that courts might develop a body of law responsive to the marketplace practices that actually generate such complaints.” Sportmen’s Boating Corp. v. Hensley, 192 Conn. 747, 755, 474 A.2d 780 (1984); see also Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 157. “In deciding what constitutes an unfair or deceptive act or practice, courts of this state are encouraged to look to interpretations of the Federal Trade Commission Act; 15 U.S.C. § 45 (a) (1); rendered by both the federal trade commission and the federal courts.” Hinchliffe v. American Motors Corp., supra, 617.

In admitting the list of dealer terminations, the trial court relied on Bailey Employment System, Inc. v. Hahn, 545 F. Sup. 62, 71 (D. Conn. 1982), in which the District Court of Connecticut found that “[t]he attrition rate of franchises is certainly material information which would be likely to influence a prospective franchisee’s decision to purchase.” On the basis of its analysis of CUTPA, Connecticut case law, federal case law and a Federal Trade Commission regulation, the District Court held that the failure to disclose such information “was an unfair and deceptive act or practice under CUTPA.” Id., 72.

The defendants in this case nevertheless argue that their nondisclosure of dealer terminations to the plaintiffs was irrelevant to the CUTPA claim. The dealer lists disclose that in 1985, 116 Cornwell dealers were terminated. Of the 116, sixty-nine had been dealers for less than two years and twenty-one for between two and three years. In 1986, 110 dealers were terminated, fifty-six within two years and nineteen during their third year. Similarly, in 1987, eighty-two dealers were terminated, thirty-nine within two years and seventeen during their third year. We conclude that the trial court did not abuse its discretion in admitting the list of dealer terminations on the CUTPA claim.

The defendants next argue that the list of dealer terminations was irrelevant to the claim of fraud because the defendants did not make an active misrepresentation to the plaintiffs regarding the turnover of its dealers. Phelan told the plaintiffs, however, that Meyers had sufficient investment capital to succeed as a Cornwell dealer. The defendants also indicated to the plaintiffs that the projected sales of Cornwell dealers, after a two year initial period, was $200,000 per year and yielded an annual income of $65,000. We conclude that the dealer terminations were relevant to a determination of whether the defendants knew their statements were true and whether they were made with the intent of inducing reliance.

Finally, the defendants argue that the testimony of the former Cornwell dealers was irrelevant to the CUTPA and fraud claims and unduly prejudicial. The plaintiffs offered the testimony to show the representations that the defendants made to the former dealers and why the dealers were eventually terminated. The plaintiffs asserted that the testimony tended to show fraudulent intent and that the defendants made identical representations to the plaintiffs. “Evidence of other misconduct, although not ordinarily admissible to prove the bad character or criminal tendencies of the accused, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity . . . .” (Internal quotation marks omitted.) Russell v. Dean Witter Reynolds, Inc., supra, 200 Conn. 192; see also Berry v. Loiseau, 223 Conn. 786, 804, 614 A.2d 414 (1992).

In Russell, our Supreme Court concluded that the trial court did not abuse its discretion in admitting evidence of prior misconduct where the witnesses testified to conduct of a defendant that was close in time and character to the defendant’s conduct toward the plaintiff. Id., 193. We conclude that the facts of this case merit the same result. Compare Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 570-72 (plaintiffs failed to provide adequate evidentiary foundation to establish logical connection). Likewise, in this case as in Russell, “the court did not abuse its discretion in finding that the probative value of the testimony outweighed its prejudicial effect. Indeed, the defendants have established no basis for a determination by this court that the admission of the testimony resulted in undue prejudice.” Russell v. Dean Witter Reynolds, Inc., supra, 200 Conn. 193.

IV

The defendants next claim that the trial court improperly charged the jury on the plaintiffs’ burden of proof regarding the fraud count. The defendants argue that the trial court’s charge that the fraud claim must be proven by “clear and satisfactory” evidence is insufficient. Our review of the record reveals that the trial court instructed the jury that the plaintiffs must establish fraudulent misrepresentation by “clear and satisfactory evidence” or “clear, precise, and unequivocal evidence.” Our Supreme Court has described the requisite burden of proof in both manners. Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 540, 661 A.2d 530 (1995); Kilduff v. Adams, Inc., 219 Conn. 314, 327-28, 593 A.2d 478 (1991); J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983). We find no merit in the defendants’ claim.

V

The defendants next claim that the trial court improperly charged the jury on the CUTPA claim. The defendants argue that the trial court improperly charged the jury that the plaintiffs need not prove reliance as part of the CUTPA claim and that a CUTPA violation could be found if any one of the three criteria of the “cigarette rule” was met. We find this claim to be without merit.

First, it is well established that “ ‘[t]he CUTPA plaintiff need not prove reliance or that the representation became part of the basis of the bargain.’ ” Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 158, quoting Hinchliffe v. American Motors Corp., supra, 184 Conn. 617, citing Conaway v. Prestia, 191 Conn. 484, 493, 464 A.2d 847 (1983); see also Gold v. University of Bridgeport School of Law, 19 Conn. App. 379, 381, 562 A.2d 570, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). Second, “[a]ll three criteria [of the cigarette rule] do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. Statement of Basis and Purpose, Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures, 43 Fed. Reg. 59,614 [and] 59,635 (1978).” (Internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d 1130 (1992), quoting McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 569 n.15, 473 A.2d 1185 (1984). We conclude therefore that the trial court did not improperly charge the jury on the CUTPA claim.

VI

The defendants next claim that the jury verdict on the CUTPA count is contrary to the evidence because the plaintiffs did not prove that their injury could not reasonably be avoided. The third criterion of the cigarette rule, the substantial injury factor, is satisfied only if an injury is substantial, is not outweighed by any countervailing benefits to consumers or competition that the practice produces, and could not reasonably be avoided. See McLaughlin Ford, Inc. v. Ford Motor Co., supra, 192 Conn. 569-70. Because we have concluded that the plaintiffs needed to establish only one of the cigarette rule criteria, it was not necessary for the plaintiffs to prove a substantial injury.

VII

The defendants finally claim that the trial court improperly denied their motion for a mistrial and motion in arrest of judgment based on jury misconduct. We disagree.

The following additional facts are relevant to our discussion of this issue. On December 22, 1993, during deliberations, the jury submitted the following question to the trial court: “What is the legal definition of fraud as opposed to negligence?” That afternoon the trial court instructed the jury accordingly. After the jury had been dismissed for the day, the courtroom clerk discovered a Black’s Law Dictionary in the jury room opened to a page containing a definition of “fraud.”

On the following day, before deliberations resumed, the trial court reminded the jury that its verdict “must be solely based on the evidence which has been properly presented . . . and the law as given to you in my instructions . . . .” The court also specifically instructed the jurors that they were not to rely on any other source in seeking to understand or remind themselves of the legal standards to be applied. Moreover, the court asked the jurors if it was still correct to assume that they had not been unduly influenced by the extraneous materials, and they responded in the affirmative. Finally, the court repeated its instruction from the previous day distinguishing fraud from negligence.

Because there is no claim in this case that the plaintiffs occasioned the jury misconduct, the burden is on the defendants to show prejudice. Williams v. Salamone, 192 Conn. 116, 121, 470 A.2d 694 (1984); Klingeman v. MacKay, 25 Conn. App. 217, 219, 594 A.2d 18, cert. denied, 220 Conn. 910, 597 A.2d 333 (1991). Prejudice exists only when the misbehavior makes it probable that the jurors were influenced by it so as to render them unfair and prejudicial jurors. Williams v. Salamone, supra, 122; Klingeman v. MacKay, supra, 220. The trial court enjoys broad discretion in determining whether misconduct prejudiced the defendants. State v. Brown, 235 Conn. 502, 524, 668 A.2d 1288 (1995); State v. Leonard, 31 Conn. App. 178, 195, 623 A.2d 1052 (1993).

The trial court found that the jurors had collectively affirmed that the extraneous materials had not affected their ability to deliberate. In addition, the court repeated the instruction that the jury had requested distinguishing fraud from negligence. Jurors are presumed, in the absence of evidence to the contrary, to follow the court’s instructions. See, e.g., Klingeman v. MacKay, supra, 25 Conn. App. 220. We conclude that the trial court did not abuse its discretion in finding that the jury’s use of the dictionary did not prejudice the defendants.

VIII

In their appeal, the plaintiffs claim that the trial court improperly denied their motion to open and for reconsideration, arguing that in light of Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 148, the trial court should have made its own factual determinations as to the CUTPA claim. “ ‘In all civil actions a requisite element of appealability is that the party claiming error be aggrieved by the decision of the trial court.’ ” Windham Taxpayers Assn. v. Board of Selectmen, 234 Conn. 513, 522, 662 A.2d 1281 (1995), quoting Milford v. Local 1566, Council 4, AFSCME, 200 Conn. 91, 95-96, 510 A.2d 177 (1986); see Practice Book § 4000. Pursuant to our earlier discussion of Associated Investment Co. Ltd. Partnership and because the plaintiffs prevailed at trial, they were not aggrieved by the trial court’s decision. Windham Taxpayers Assn. v. Board of Selectmen, supra, 523-24; First Charter National Bank v. Ross, 29 Conn. App. 667, 674-75, 617 A.2d 909 (1992), cert. dismissed, 228 Conn. 203, 635 A.2d 796 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       We sua sponte ordered the two appeals consolidated.

       See General Statutes §§ 42-110a through 42-110q.

       The defendants are Cornwell Quality Tools, Inc., and Raymond Phelan.

       The jury also found for the plaintiffs on the defendants’ counterclaim alleging breach of contract, and the trial court rendered judgment accordingly. The counterclaim is not at issue in this appeal.

       The plaintiffs are William D. Meyers and Dianna Meyers and will be referred to collectively as the plaintiffs. We refer herein to William D. Meyers as Meyers.

       The plaintiffs alleged, and the defendants admitted, that at all relevant times Phelan was acting as Cornwell’s agent.

       Pat Newman, a former Cornwell dealer and field manager, testified to the actual figures.

       The record reveals that December 1, 1993, was the sixth of ten days on which evidence was presented to the jury.

       The defendants also presented this issue in their motion to set aside the verdict..

       The court apparently expressed its ruling to the parties off the record on December 19, 1993.

       Practice Book § 308 also provides in pertinent part: “A case presenting issues both in equity and law may be claimed for the jury list, but, unless the court otherwise orders, only the issues at law shall be assigned for trial by the jury. . . .” (Emphasis added.)

       In Klar Crest Realty, Inc., the plaintiff sought damages and iryunctive relief against the defendants for interference with its use of a road across certain property to which a defendant held title. “The plaintiff filed a general claim for a jury trial. The complaint, however, sought not only damages but also injunctive relief. Therefore, both legal and equitable issues were presented. In accordance with Practice Book § 308, the legal issue of damages was submitted to the jury. The court also exercised its authority under Practice Book § 307 to order certain issues of fact in an action demanding equitable relief to be tried to the jury.” Klar Crest Realty, Inc. v. Rajon Realty Corp., supra, 190 Conn. 170.

       In Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 490-91 n.13, 656 A.2d 1009 (1995), the Supreme Court stated: “A party who wishes CUTPA issues to be tried to the court . . . need only move to strike such a case from the jury list. If the parties fail to taire such action, however, CUTPA issues may be tried to the jury. See, e.g., A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 579 A.2d 69 (1990).”

       We note that No. 95-123 of the 1995 Public Acts legislatively overruled Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 148. Public Act 95-123, § 1 (g), provides: “In any action brought by a person under this section there shall be a right to a jury trial except with respect to the award of punitive damages under subsection (a) of this section or the award of costs, reasonable attorneys’ fees and injunctive or other equitable relief under subsection (d) of this section.” The act did not apply to this case. See Public Acts 19.95, No. 95-123, § 2.

       “ ‘The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment.’ Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991); Maturo v. Gerard, 196 Conn. 584, 494 A.2d 1199 (1985); Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970).”Mitchell v. Mitchell, 31 Conn. App. 331, 336, 625 A.2d 828 (1993).

       The defendants first made this objection at the close of the plaintiffs’ case, but the trial court reserved its ruling.

       See footnote 15.

       The defendants specifically identify the following testimony as prejudicial. A former dealer testified that Phelan said there would be “money to bum” and was instructed to tell a new recruit a false reason for his leaving the business. Another former dealer testified that Phelan told him not to talk to his predecessor. The defendants argue that no such representations were made to the plaintiffs. Phelan’s conduct toward these former dealers, however, clearly is probative of his knowledge of the Cornwell business and his fraudulent intent. We conclude that the probative value of the former dealers’ testimony outweighs any prejudicial effect of this testimony.

       In determining whether a practice violates CUTPA, we use the “cigarette rule” of the federal trade commission to determine when a practice is unfair. “[WJhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been eslablished by statutes, the common law, or otherwise . . . whether it is immoral, unethical, oppressive, or unscrupulous . . . whether it causes substantial injury to consumers [competitors or other businessmen].” (Internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105-106, 612 A.2d 1130 (1992).

       See footnote 19.

       The defendants do not independently address whether the evidence is otherwise sufficient to justify a jury verdict other than to argue that the dispute over the buy-back of tools is only a simple contract dispute not amounting to a CUTPA violation. Such a claim hardly challenges the sufficiency of the evidence presented at trial.

       Black’s Law Dictionary (5th Ed. 1979) was open to pages 594 and 595. Page 594 begins with “Frank-tenant” and page 595 ends with “Fraud, Statutes of.”

       See part I of this opinion.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    BASIL E. KEISER v. CONSERVATION COMMISSION OF THE TOWN OF REDDING ET AL.
    (13868)
    Heiman, Schaller and Spear, Js.
    Argued January 19
    officially released April 9, 1996

      Nancy Burton, for the appellant (plaintiff).

      Edwin C. Pearson, for the appellee (named defendant).

      Michael N. LaVelle, for the appellee (defendant water pollution control commission of the town of Redding).
   SPEAR, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from the decision of the named defendant, the Redding conservation commission (commission). The commission had approved the application of the water pollution control commission of Redding (WPCC), also a defendant in this action, without conducting a public hearing. On appeal, the plaintiff claims that the trial court improperly found that substantial evidence existed to support the commission’s decisions approving the application and declining to conduct a public hearing. He also claims that the commission’s failure to notify an adjoining municipality as to the application deprived the commission of subject matter jurisdiction. We disagree with the plaintiffs claims and affirm the judgment of the trial court.

The trial court recited the following facts and procedural history in its memorandum of decision. On April 7,1993, WPCC submitted an application to the commission to construct a sewer collection system in the Georgetown area of the town of Redding. The proposed project would affect an area designated as a historic district by the National Register of Historic Places. The commission discussed the application at meetings held on April 20 and May 4, 1993. On May 18, 1993, the plaintiff intervened pursuant to General Statutes § § 22a-19 (a) and 22a-19a on the ground that the application would be reasonably likely to pollute, impair or destroy the public trust in the natural resources of the state and the historic district.

The commission thereafter unanimously approved the application on the condition that the commission’s environmental consultant oversee the installation of sediment and erosion control measures. The trial court dismissed the plaintiffs appeal from that decision, and this appeal followed.

I

The plaintiff first challenges the trial court’s finding that substantial evidence existed to support the commission’s decision to approve the application.

The plaintiff shoulders the burden of proof when challenging a decision of an administrative agency. Newtown v. Keeney, 234 Conn. 312, 319, 661 A.2d 589 (1995); Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993); Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989). A showing by the plaintiff that another decision maker might have reached a different conclusion does not satisfy this burden. Newtown v. Keeney, supra, 319; DeBeradinis v. Zoning Commission, 228 Conn. 187, 198, 635 A.2d 1220 (1994). Instead, the plaintiff must establish that substantial evidence does not exist in the record to support the agency’s decision. Samperi v. Inland Wetlands Agency, supra, 587; Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980). Should substantial evidence exist in the record to support any basis or stated reason for the agency’s decision, the court must sustain the decision. DeBeradinis v. Zoning Commission, supra, 199; Primerica v. Planning & Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989). The reviewing court may grant relief from the agency’s decision only where the decision is “arbitrary, illegal or not reasonably supported by the evidence.” Red Hill Coalition, Inc. v. Conservation Commission, supra, 718.

“This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Internal quotation marks omitted.) Newtown v. Keeney, supra, 234 Conn. 319-20.

The plaintiff correctly asserts that the commission did not state any reasons in support of its decision to approve the application of WPCC. Nonetheless, “it is improper for the reviewing court to reverse an agency decision simply because [the] agency failed to state its reason for its decision on the record. The reviewing court instead ‘must search the record of the hearings before the commission to determine if there is an adequate basis for its decision.’ ” Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588-89, quoting Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). “ ‘The evidence, however, to support any such reason must be substantial . . . .’ ” Samperi v. Inland Wetlands Agency, supra, 588.

It is reasonable to infer that the commission’s approval of the application was based on the unlikelihood that the construction of the sewer collection system would pollute the natural resources within the surrounding areas. This basis is well supported in the record. During the meeting at which the commission received the application, the commission’s engineer submitted a report that raised seven concerns pertaining to the construction of the collection system. The commission was specifically concerned with the construction that would occur adjacent to Gilbert Bennett Brook, an existing watercourse. The following day, an environmental consulting firm representing WPCC submitted a letter that addressed most of the concerns raised by the engineer. The firm, at a later meeting, answered more questions posed by members of the commission. Further, at the commission’s June 15,1993 meeting, the commission’s engineer stated that the “application appears to be in order except that the soil erosion and sediment control measures needed to be stressed.” The commission alleviated this concern by requiring its environmental consultant to oversee the installation of sediment and erosion control measures.

The trial court found that the record provided a basis for the commission’s decision to approve the application, namely, that the construction of the proposed collection system would not cause unreasonable pollution. Having analyzed the record thoroughly, we conclude that there is substantial evidence to support this determination.

II

The plaintiff next claims that the trial court improperly concluded that the commission was not required to conduct a public hearing prior to approving the application. We disagree.

Pursuant to § 22a-42a (c), “the inland wetlands agency may hold a public hearing” no later than sixty-five days after the receipt of an application. (Emphasis added.) Our courts have consistently held that the word “may” is discretionary and not mandatory. Seals v. Hickey, 186 Conn. 337, 345-47, 441 A.2d 604 (1982); Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 34, 632 A.2d 1134 (1993). Section 22a-42a (c), therefore, did not require the commission to conduct a public hearing on the application.

Despite the language of § 22a-42a (c), § 5.1 of the town’s inland wetlands and watercourses regulations requires a public hearing on “any application which the Commission determines involves a significant activity [or] [w]henever the Commission receives a petition signed by at least twenty-five persons requesting such a [h] earing . . . .” Because no petition was ever received by the commission, we must focus on whether there is substantial evidence in the record to support the commission’s conclusion that the application did not involve a significant activity.

Section 2.24 of the town’s wetlands regulations defines “significant activity” as “any activity . . . which may have a major effect or significant impact on the area for which an application has been filed or on another part of the inland wetland, watercourse or aquifer system . . . .” (Emphasis added.) Section 2.24 also provides a nonexclusive list of seven activities that may have a “major effect or significant impact” on wetlands. The plaintiff, relying on one of the enumerated activities listed in the regulations, claims that the construction of the collection system constitutes a significant activity because it “has the potential to cause pollution of a wetland, watercourse, or aquifer system.” Nevertheless, this argument overlooks the fact that the regulations require the impact to be “significant.” An activity that merely impacts or affects wetlands is not a significant activity; the effect must be major or the impact must be significant.

Our Supreme Court’s decision in Rockville Fish & Game Club, Inc. v. Inland Wetlands Commission, 231 Conn. 451, 650 A.2d 545 (1994), provides ample support for our conclusion. In Rockville Fish & Game Club, Inc., the plaintiff claimed that the inland wetlands commission of Tolland should have conducted a public hearing on the application because it involved a significant activity. Id., 456-57. The Tolland wetlands regulations, as do the Redding regulations, require a public hearing whenever the application involves a significant activity, and similarly define “significant activity” as one “which may have a substantial effect on the area for which an application has been filed . . . .” (Emphasis added.) Id. Our Supreme Court, emphasizing the need that the activity have a substantial effect on wetlands, concluded that “[a]n activity that may affect wetlands, therefore, is not a ‘significant activity’ within the meaning of the Tolland wetlands regulations unless its potential effect on the wetlands is a substantial one.” Id.

The trial court in this case determined that the construction did not involve a significant activity because “only two branches of the collection system involved a regulated activity,” the “scope of these regulated activities is narrow,” and “there was not a likelihood of unreasonable pollution.” The record contains substantial support for this finding.

The commission and its engineer expressed concern that the construction of the collection system might cause unreasonable pollution. After the consulting firm representing WPCC addressed this concern and answered other questions posed by the commission, the engineer recommended the approval of the application on the condition that satisfactory sediment and erosion control measures be in place during construction. Substantial support exists in the record to support the determination that the application would not likely cause unreasonable levels of pollution, and, therefore, would not involve a significant activity. The trial court, thus, correctly found that a public hearing was not required.

Ill

The plaintiff last claims that General Statutes § 22a-42b required the commission to notify the town of Wilton, an adjoining municipality, as to the pendency of the application, and that the commission’s failure to do so “renders [its] decision voidable.” The plaintiff has not provided us with a record adequate to afford meaningful review of this issue. The transcript indicates that the plaintiff did raise this issue at trial, but the court did not address it in its memorandum of decision and the plaintiff did not thereafter file a motion for articulation. It is the sole responsibility of the appellant to provide an adequate record for review. Practice Book § 4061; Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993). Because the plaintiff did not provide us with an adequate record as to the notification issue, we can not review it.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 22a-42b (a) provides in pertinent part: “The inland wetlands agency of any municipality shall notify the clerk of any acjjoining municipality of the pendency of any application . . . concerning any project on any site in which: (1) Any portion of the property affected by a decision ... is within five hundred feet of the boundary of the ac[joining municipality . . . [and] (3) a significant portion of the sewer or water drainage from the project on the site will flow through and significantly impact the drainage or sewerage system within the acjjoining municipality . . . .”
      In his reply brief, the plaintiff claims that General Statutes § 22a-42c also required the commission to provide notice to the town of Wilton. That statute, however, requires only that applicants give notice to any municipality within 500 feet of an inland wetland or watercourse on which a proposed regulated activity will be conducted.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. LUIS ALICEA
    (14000)
    Heiman, Spear and Stoughton, Js.
    Argued December 7, 1995
    officially released April 16, 1996

      G. Douglas Nash, public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Dennis J. O’Connor, senior assistant state’s attorney, and Steven Preleski, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgments of conviction, rendered following his guilty plea, of failure to appear in the first degree in violation of General Statutes § 53a-172 (a). On appeal, the defendant claims that the trial court improperly denied his motion to withdraw his guilty plea to the charge of failure to appear in the first degree. He asserts that the action of the trial court was improper because the record fails to reflect that he understood the elements of the crime with which he stood charged. We agree with the defendant and reverse the judgments of the trial court.

The record and the transcripts of the proceedings before the trial court reveal the following relevant facts. The defendant was charged with a number of criminal offenses in three separate cases. In case CR93-438257, he was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4), and failure to appear1 in the first degree in violation of General Statutes § 53a-172 (a). In case CR93-447568, he was charged with attempted robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (4), attempted assault in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-60 (a) (2), reckless endangerment in the first degree in violation of General Statutes § 53a-63 and threatening in violation of General Statutes § 53a-62. In case CR93438693, he was charged with sale of narcotics as an accessory in violation of General Statutes §§ 53a-8 and 21a-278 (b), conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 and 2 la-278 (b) and failure to appear in the first degree in violation of General Statutes § 53a-172 (a). The defendant entered pleas of not guilty to all of the charges.

The defendant negotiated a plea bargain with the state concerning all three cases. As part of the plea bar gain, the defendant agreed to withdraw all prior not guilty pleas, to enter a plea of guilty to the charge of failure to appear in the first degree in case CR93-438257 and to the charges of assault in the third degree and threatening in case CR93-447568. The state agreed to nolle the remaining charges in case CR93-438257, to file a substitute information in case CR93-447568 reflecting the charges to which the defendant would plead guilty in that case, and to nolle all of the charges in case CR93-438693.

On May 12, 1994, the defendant appeared before the trial court to withdraw his prior pleas and to enter his guilty pleas pursuant to the plea bargain. The state filed a substitute information in case CR93-447568 charging the defendant with assault in the third degree and threatening. The defendant entered his plea of guilty to the charge of failure to appear in the first degree in case CR93-438257 and to the charges of assault in the third degree and threatening in case CR93-447568. 6

After the defendant entered his guilty plea, the state recited the factual basis for the charge of failure to appear in the first degree in case CR93-438257:

“[Assistant State’s Attorney]: As to the failure to appear count, Your Honor, he was arrested for robbery first degree and conspiracy to commit robbery first degree, obviously felonies. He was released on bond. The cases were continued until June 16,1993 — the case was continued along with a drug case which is docket [CR93-438693] to the same day, June 16, 1993, at which time the defendant failed to appear.”

The state then proceeded to recite the factual basis for the charges of assault in the third degree and threatening in case CR93-447568. Thereafter, the trial court canvassed the defendant regarding his guilty pleas. The pertinent part of that canvass is as follows.

“The Court: Very well. . . . [H]ow old are you, sir?

“The Defendant: Twenty-two, ma’am.

“The Court: And how far through school have you been, to what grade?

“The Defendant: I went to senior year.

“The Court: You graduated?

“The Defendant: No, ma’am.

“The Court: Where were you bom?

“The Defendant: Hartford.

“The Court: Are you presently under the influence of alcohol, drugs or medication of any kind?

“The Defendant: No, ma’am.

“The Court: Have you had enough time to discuss this case with your two lawyers, [Ronald] Johnson and [Yvonne] Rodriguez-Schack?

“The Defendant: Yes.

“The Court: Did they discuss with you the evidence the state claims it has against you?

“The Defendant: Yes, ma’am.

“The Court: Did they discuss with you the evidence the state would have to have in order to get a conviction at trial beyond a reasonable doubt? That’s called the elements of the offense, and it is that evidence which the prosecutor just recited.

“The Defendant: Yes, ma’am.

“The Court: Are you satisfied with the representation you’ve received from your lawyers?

“The Defendant: Yes, ma’am.” (Emphasis added.)

The trial court accepted the defendant’s guilty plea, and found that it was made knowingly, voluntarily and with the assistance of competent counsel, and that there was a factual basis for the plea. Consequently, the trial court entered a finding of guilty on all counts to which the defendant pleaded guilty. The trial court scheduled sentencing for July 15, 1994.

On July 15, 1994, the defendant, accompanied by counsel, appeared at the sentencing hearing with a letter setting forth the following: “Your Honor: (1) After a final review of this entire case, I have decided to withdraw my guilty plea. (2) I did not understand the nature of the charges, and I thought the sentence would be seven [years] with the right to argue for less. (3) My lawyer told me what to say when I pled guilty because I was tired of coming back and forth to court. If Your Honor is going to deny my request to withdraw, I would like an exception for the record and appeal papers and a sentence review application. Thank you very much.” The trial court treated the letter as a motion to withdraw the plea and questioned the defendant about it. The defendant indicated that the letter applied only to the charge of failure to appear in the first degree and not to the charges of assault in the third degree and threatening. The trial court denied the defendant’s motion to withdraw the plea and sentenced him to five years for failure to appear in the first degree, one year for assault in the third degree and one year for threatening.

The defendant claims that the trial court improperly denied his motion to withdraw his plea of guilty to the charge of failure to appear in the first degree. The defendant posits that the record does not reveal that the defendant understood the nature of the charge, including the element of the offense requiring that to be convicted he must have wilfully failed to appear on the date in question. The defendant asserts that the trial court, by accepting the guilty plea under these circumstances, failed in its constitutional obligation and in its obligations under the rules of practice. We agree.

We first examine the fundamental principles of law that govern our resolution of this claim. “ ‘A guilty plea is itself a conviction; Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); Paulsen v. Manson, 203 Conn. 484, 489, 525 A.2d 1315 (1987); and a defendant, when entering such a plea, waives several constitutional rights. Boykin v. Alabama, supra, 243; McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Paulsen v. Manson, supra [489]; State v. Gilnite, [202 Conn. 369, 381, 521 A.2d 547 (1987)]. First is the privilege against self-incrimination, second is the right to a jury trial, and third is the right to confront one’s accusers. Boykin v. Alabama, supra [234]; McCarthy v. United States, supra [466]; State v. Gilnite, supra, 381 n.14. To ensure that a defendant is accorded due process, [therefore] the plea must be voluntarily and intelligently entered. Boykin v. Alabama, supra, 243 n.5; McCarthy v. United States, supra [466]; Paulsen v. Manson, supra [489]; Oppel v. Lopes, 200 Conn. 553, 556, 512 A.2d 888 (1986); State v. Badgett, [200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986)]; State v. Lopez, 197 Conn. 337, 341-42, 497 A.2d 390 (1985).’ State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988).

“Because it cannot be presumed from a silent record that the decision to plead guilty was the product of the defendant’s ‘full understanding of what the plea connotes and of its consequences’; Boykin v. Alabama, supra, 395 U.S. 243-44; ‘the federal constitution requires that the record of the plea canvass indicate the voluntar-iness of any waiver of the three core constitutional rights [implicated by the guilty plea].’ State v. Badgett, supra, 200 Conn. 418. To ensure that this constitutional requirement is satisfied, the trial court is obliged to comply with the dictates of Practice Book §§711 and 712, which enumerate the responsibilities of the court in conducting the plea canvass. However, because the ‘determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances’; State v. Wright, supra, 207 Conn. 287; the plea may satisfy constitutional requirements even in the absence of ‘literal compliance with the prophylactic safeguards of Practice Book §§711 and 712.’ State v. Badgett, supra, 418.” State v. Domian, 235 Conn. 679, 686-87, 668 A.2d 1333 (1996).

In examining the specific claim that the defendant did not understand the nature of the charge to which he entered a guilty plea, we are also guided by the following additional precepts. “A plea of guilty cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. State v. Collins, 176 Conn. 7, 9, 404 A.2d 871 (1978). [That principle is] in accord with [the requirement of] Practice Book § 711 (1) et seq.”; State v. Wideman, 38 Conn. App. 581, 585, 663 A.2d 409, cert. denied, 235 Conn. 907, 665 A.2d 906 (1995); that provides that the defendant must understand the nature of the charge to which the plea is offered. “Substantial compliance with Practice Book § 711 does not require that the trial court read the statute to the defendant if there are other reasons to believe that the defendant understands the statute. State v. Badgett, 220 Conn. 6, 14, 595 A.2d 851 (1991).” (Emphasis added.) State v. Wideman, supra, 586. Indeed, our Supreme Court, relying upon Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976), has recognized that “the record normally contains an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Henderson v. Morgan, supra, 644.” Oppel v. Lopes, supra, 200 Conn. 557. Further, relying on Henderson, our Supreme Court has also acknowledged that “even without such an express representation, it may be appropriate to presume that in most cases defense counsel has routinely explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. [Henderson v. Morgan, supra, 644].” Oppel v. Lopes, supra, 200 Conn. 557.

Although it may be appropriate to presume, pursuant to Henderson, that defense counsel has explained the nature of the offense to the defendant, we do not automatically invoke this presumption merely because the defendant has appeared in court with counsel to enter a plea of guilty. In deciding whether it is appropriate to presume that defense counsel has adequately explained the charge in question to the defendant, we must examine the circumstances of the case to determine if those circumstances warrant the invocation of the presumption. See State v. Childree, 189 Conn. 114, 123, 454 A.2d 1274 (1983). Thus, we must look to whether the record indicates that such an explanation has been given. See id., 124; see also Oppel v. Lopes, supra, 200 Conn. 558; State v. Wideman, supra, 38 Conn. App. 586 n.9; State v. Hackett, 16 Conn. App. 601, 603, 548 A.2d 16 (1988). “The presumption that defense counsel has explained the elements of the offense to the defendant arises only in limited circumstances where the record clearly supports that presumption.” State v. Elijah, 34 Conn. App. 595, 599, 642 A.2d 735, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994). We will not simply “presume that counsel has effectively informed his client of the elements of the offense when the record does not affirmatively disclose an adequate basis for that conclusion. ‘Our rules of practice prescribe a detailed procedure for acceptance of a guilty plea .... Practice Book §§ 712-713. Where the record fails to disclose substantial compliance with this procedure, to cure the omission by resorting to a presumption that counsel has performed a duty of the court would be inconsistent with the principle that the necessary elements for an effective guilty plea must appear in the record. Boykin v. Alabama, [supra, 242]; State v. Childree, supra, 120.’ State v. Marino, 190 Conn. 639, 646-47 n.8, 462 A.2d 1021 (1983).” State v. Evans, 5 Conn. App. 113, 117, 497 A.2d 73 (1985).

An example of where the record supports the presumption that defense counsel explained the elements of the offense to the defendant is where the defendant, “at the time of the plea canvass, acknowledged that defense counsel had explained the essential elements of the crime to him.” Oppel v. Lopes, supra, 200 Conn. 558; see also State v. Brown, 19 Conn. App. 640, 645 n.2, 563 A.2d 1379, cert. denied, 212 Conn. 821, 565 A.2d 540 (1989).

The present case, however, is dissimilar to those cases where the trial court properly determined that defense counsel had adequately explained the elements of the offense to the defendant. Here, the record does not support the presumption that such an explanation took place. The transcript reveals that the trial court failed to determine whether the defendant understood the nature of the charge of failure to appear in the first degree and canvassed the defendant in such a manner that he most likely misunderstood the nature of the offense.

Our analysis of the plea canvass reveals that, although the state began by reciting the factual basis for the charge of failure to appear in the first degree, it failed to state that the defendant wilfully failed to appear. Wilfulness is an essential element of the crime of failure to appear in the first degree. Thus, the state’s narration of the underlying facts in the presence of the defendant, to the extent that such a narration could have served the purpose of notifying the defendant of the nature of the charge; see State v. Wideman, supra, 38 Conn. App. 587; failed to set forth the elements of the crime properly. In order for a guilty plea to be valid, the accused must necessarily understand both “[t]he nature of the charge to which the plea is offered”; Practice Book § 711; as well as the “factual basis for the plea.” Practice Book § 713. As we have stated, the defendant must understand the law in relation to the facts. State v. Wideman, supra, 585; see also McCarthy v. United States, supra, 394 U.S. 466.

Following the state’s recitation of the facts, the trial court asked the defendant if he had discussed the failure to appear charge with his attorney. Although the defendant answered affirmatively, such a discussion is not sufficient to invoke the presumption that defense counsel has adequately explained the elements of the crime to the accused. Paulsen v. Manson, supra, 203 Conn. 493-94 and n.3. “Although the [defendant] averred upon entering his plea that he had an opportunity to discuss the offense with his attorney, we decline to assume that the [defendant] was thereby referring to an explanation by his counsel of the elements of [the crime charged].” Id., 493-94.

Finally, the trial court attempted, although unsuccessfully, to determine whether the defendant had discussed with his attorneys the elements of the offenses with which he had been charged. The trial court inquired: “Did they discuss with you the evidence the state would have to have in order to get a conviction at trial beyond a reasonable doubt?” Such a question, however, does not serve properly to extract from a defendant whether he understands the nature of the charge. In State v. Elijah, supra, 34 Conn. App. 598-99, we held that this type of question is “insufficient to support the presumption that counsel explained the elements of the charged offenses to the defendant.” (Emphasis in original.) Furthermore, after asking the defendant whether he and defense counsel had discussed the evidence that the state would need for a conviction, the trial court stated: “That’s called the elements of the offense, and it is that evidence which the prosecutor just recited.” In the first instance, this statement was incorrect because it equated the elements of the offense with both the evidence required for a conviction and the evidence recited by the state. Second, the statement was misleading because it equated the evidence that the state would have to produce to secure a conviction at trial with the facts, or evidence, recited by the state. The factual allegations recited by the state, even if proven, would not have been sufficient to support a conviction of failure to appear in the first degree because those allegations did not demonstrate that the defendant wilfully failed to appear. Thus, the trial court’s statement indicated to the defendant that the factual allegations recited by the state were sufficient to show that the defendant committed the crime of failure to appear in the first degree, an indication that simply is not correct.

We conclude that the trial court’s plea canvass failed to demonstrate that the defendant understood the essential elements of the crime of failure to appear in the first degree and that, therefore, the plea of guilty to that charge was not knowingly and voluntarily entered. Thus, the trial court improperly denied the defendant’s motion to withdraw his plea of guilty to the charge of failure to appear in the first degree on the ground that he did not understand the nature of the charge.

The judgments are reversed and the case is remanded with direction to allow the defendant to withdraw his guilty plea and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       We note that the defendant appeals from the judgments rendered in three separate cases, CR93-438257, CR93-447568 and CR93-438693. All three cases were disposed of as a result of one plea bargain.

       General Statutes § 53a-172 (a) provides: “A person is guilty of failure to appear in the first degree when, while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear.”

       General Statutes § 53a-61.

       See Practice Book §§ 725 through 727.

       The guilty plea in case CR93-447568 was entered under the Alford doctrine. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       We do not set forth the state’s recital of these facts because they are not in issue.

       Attorney Ronald S. Johnson represented the defendant in case CR93438257 and Attorney Yvonne Rodriguez-Schack represented the defendant in cases CR93-447568 and CR93-438693.

       The trial court continued by advising the defendant that he did not have to plead guilty and that by doing so he was giving up numerous constitutional rights, including the right to a trial with the assistance of a lawyer, the right to cross-examine the witnesses against him and the right not to incriminate himself. The defendant understood that he was giving up these rights. In addition, the trial court explained to the defendant the maximum penalties for the crimes to which he was pleading guilty, and the defendant indicated that he understood the trial court’s explanation. Furthermore, after questioning from the trial court, the defendant indicated that he was pleading guilty of his own free will. The trial court reminded the defendant that the recommended sentence for the crimes in issue was a total of seven years, consisting of five years for failure to appear in the first degree, one year for assault in the third degree and one year for threatening. The trial court also explained to the defendant that it was ordering a presentence investigation report. Finally, with respect to the failure to appear charge, the defendant admitted that he did not appear in court on January 16,1993, as explained earlier by the state, and that he engaged in the conduct constituting assault and threatening, as the state claimed.

       We note that an additional colloquy took place immediately after the defendant presented his letter to the court and indicated that the letter applied only to the charge of failure to appear in the first degree. The court addressed the defendant in the following manner:
      “The Court: . . . Now, you’re saying that you don’t like the five years [for the failure to appear charge] that Mr. Johnson negotiated for you? Is that what you’re saying?
      “The Defendant: Yes, ma’am.
      “The Court: And why do you think you’re entitled to withdraw your plea, just because you don’t like the sentence, after you agreed to it, and pled to it?

        “The Defendant: Right.”
      The defendant’s answers to this line of questioning by the trial court do not serve to restrict the defendant from claiming on appeal that he did not understand the nature of the charge to which he entered a guilty plea. The trial court failed to address the defendant’s concern that he did not understand the nature of the charge, which, pursuant to Practice Book § 721, is a permissible ground for the withdrawal of a guilty plea. See State v. Elijah, 34 Conn. App. 595, 596, 642 A.2d 735, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994). “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows ... (2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . . .” Practice Book § 721. Because the defendant filed a motion claiming that he did not understand the nature of the charge, he took the proper first step in adequately preserving his right to appeal that ground. “[T]he proper procedure for raising a claim that a guilty plea was not knowingly and voluntarily made is to make that claim in the trial court in the first instance.” State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983). In addition, the defendant has provided us with an adequate record on appeal to enable us to review this claim. See Practice Book § 4061. It is important to note, however, as the state points out in its brief, that in State v. Deboben, 187 Conn. 469, 474, 446 A.2d 828 (1982), our Supreme Court declined to review a defendant’s claim that he was entitled to withdraw his guilty plea, which was based on the assertions that “he was confused” and that “he was told what to say by his lawyer.” The court reasoned that such assertions were “conclusory, vague, and oblique,” and thus not sufficient reasons for withdrawal under Practice Book § 721. The defendant in Deboben, as a third argument in support of his claim, also asserted that “there was no factual basis for the plea.” State v. Deboben, supra, 474. What the state fails to point out, however, is that the Supreme Court determined that this latter claim was in fact reviewable, as it stated an adequate reason for withdrawal under Practice Book § 721. Id., 474 — 75. Because the claim in Deboben was raised for the first time on appeal, the court decided to review the claim under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. Deboben, supra, 474-75.

       the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”
      Practice Book 8 712 provides: “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his counsel."

       See footnote 1.

       In State v. Elijah, supra, 34 Conn. App. 598-99, the trial court asked the defendant, “ ‘[Did your attorney] explain those charges to you so you understand, generally, what the state would have to prove to convict you of the charge?’ ” The defendant answered affirmatively. Id.

       See footnote 2.

       Because the defendant’s plea of guilty to the charge of failure to appear in the first degree in case CR93-438257 was entered as part of a single plea bargain disposing of three different cases with an assortment of charges, our conclusion here necessarily unravels the entire plea bargain.


author: O’CONNELL, J.

text:
    BOBBY JOHN COOPER v. DELTA CHI HOUSING CORPORATION OF CONNECTICUT ET AL.
    (14387)
    O’Connell, Spear and Freedman, Js.
    Argued February 15
    officially released April 16, 1996

      Richard A. Roberts, with whom, on the brief, was Karen T. Gerber, for the appellants (defendant Zeta Psi Fraternity et al.).

      Paul M. Shapiro, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Caroline K. Querijero, assistant attorney general, for the appellee (defendant University of Connecticut).

      James G. Kelly, with whom was Claudia A. Baio, for the appellee (plaintiff).
   O’CONNELL, J.

The sole issue in this appeal is whether the University of Connecticut (UCONN) is immune from having its liability apportioned pursuant to General Statutes §§ 52-102 and 52-572h. The trial court held that UCONN is immune and granted its motion to dismiss. We affirm the trial court’s judgment.

The following allegations and procedure gave rise to this appeal. On the evening of February 15 and early morning of February 16, 1991, the plaintiff attended parties at various sororities and fraternities on the UCONN campus at which alcohol was served. The defendant sororities and fraternities served alcohol to the plaintiff despite his being a minor and they continued to serve him after he became intoxicated. While driving home, the plaintiff hit a tree and sustained serious physical injuries. He brought an action against several fraternities and sororities for negligently serving him as a minor and serving him when he was already intoxicated.

Zeta Psi Fraternity and Theta Elders Association, two of the fraternal organization defendants, moved that UCONN be made a party defendant for purposes of apportionment of liability. General Statutes §§ 52-102 and 52-572h. The trial court granted the motion and the plaintiff amended his complaint to include a count against UCONN. The added count alleges that UCONN was negligent because it did not properly enforce its alcoholic beverage guidelines, did not properly supervise fraternity or sorority parties and because a UCONN police officer escorted the plaintiff to his car, knowing that he was intending to operate it. The plaintiff does not seek damages from UCONN in this action, but, as discussed later in this opinion, filed a claim with the state claims commissioner.

UCONN filed a motion to dismiss the action as to it on the ground that sovereign immunity barred its inclusion in the absence of authorization of suit by the claims commissioner. The court, Potter, J., granted the motion and Zeta Psi Fraternity and Theta Elders Association (defendants) appealed.

UCONN argues that the doctrine of sovereign immunity prohibits the apportionment of liability against it. The defendants do not dispute that UCONN is immune from having damages assessed against it, but contend that, as a party for apportionment only, UCONN is not exposed to damages and thus the doctrine of sovereign immunity does not apply.

“The question whether the principles of governmental immunity from suit and liability are waived is a matter for legislative, not judicial, determination. . . . Sovereign immunity may be waived only through a statute. . . . Any statutory waiver of immunity must be narrowly construed. . . . The state’s sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication.” (Citations omitted; internal quotation marks omitted.) Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987).

The legislature has established a system for the determination of claims against the state. General Statutes §§ 4-141 through 4-165b. A significant part of that system is the appointment of a claims commissioner; General Statutes §§ 4-142 and 4-142a; who is vested with sole authority to authorize suit against the state. General Statutes § 4-160 (a). Decisions of the claims commissioner are not subject to judicial review. Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 539, 489 A.2d 363 (1985). The entire scheme, which authorizes claims against the state, makes clear that the claims commissioner, and not the court, can waive sovereign immunity. Krozser v. New Haven, 212 Conn. 415, 424, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 757, 107 L. Ed. 2d 774 (1990). The claims commissioner has not granted permission to sue the state in the present case.

The defendants contend that citing UCONN into the case for apportionment purposes is not barred by sovereign immunity because it does not expose the state to damages. The history of apportionment in negligence actions is helpful in resolving this appeal. Prior to legislation known as Tort Reform I; Public Acts 1986, No. 86-338; and Tort Reform II; Public Acts 1987, No. 87-227; the doctrine of joint and several liability provided that one of several defendants could be forced to pay an entire judgment at the plaintiffs option. Fox v. Fox, 168 Conn. 592, 595, 362 A.2d 854 (1975). Tort Reform II created a rule of liability apportionment that replaced the joint and several liability rule.

Under the liability apportionment system, a defendant who believes that a nonparty is responsible for some or all of the plaintiffs injuries could implead the nonparty. General Statutes § 52-572h. In the same public act that created apportionment, the legislature amended General Statutes § 52-102 by adding the provision that “no person who is immune from liability shall be made a party in the controversy.'’'’ (Emphasis added.)

The defendants offered several disingenuous arguments to the effect that a party for apportionment was somehow not to be included within the definition of party in § 52-102. It is axiomatic that when the words of a statute are clear, we must follow the statute as its language directs. Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992). The defendants arguments should be addressed to the legislature.

Thus, the trial court correctly determined that sovereign immunity barred UCONN’s inclusion in this civil action for purposes of apportionment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-102 provides in relevant part: “Upon motion made by any party or nonparty to a civil action, the person named ... (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy." (Emphasis added.)

       General Statutes § 52-572h (c) provides: “In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”

       This is a final judgment for purposes of appeal because the trial court’s decision so concludes the rights of the parties, in relation to UCONN, that further proceedings cannot affect them. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

       On August 13, 1991, the plaintiff filed for permission to sue the state. The claims commissioner has taken no action on this claim and it is still pending. Accordingly, it does not affect the resolution of this appeal.

       See footnote 1.

       Query as to whether such arguments would be persuasive to the legislature in view of Public Acts 1995, No. 95-111, which took effect after the accident in the present case. The relevant portion of Public Acts 1995, No. 95-111, § 1 (c) provides: “No person who is immune from liability shall be made an apportionment defendant nor shall such person’s liability be considered for apportionment purposes pursuant to § 52-572 (h) of the General Statutes.” (Emphasis added.)


author: PER CURIAM.

text:
    PATRIOT GENERAL INSURANCE COMPANY v. RAYMOND P. NORMANDIE III
    (14830)
    Dupont, C. J., and Schaller and Spallone, Js.
    Argued February 16
    officially released April 16, 1996

      Mark A. Dubois, for the appellant (defendant).

      Francis D. Paola, Jr., with whom, on the brief, was Timothy G. Zych, for the appellee (plaintiff).
   PER CURIAM.

The plaintiff sought a declaratory judgment to determine whether it had a right to reimbursement for the payment of the cost of medical treatment for the defendant, following an automobile accident involving the defendant, under a basic reparations provision of an insurance policy issued by it. The issue to be resolved is whether the right of subrogation afforded by General Statutes (Rev. to 1993) § 38a-369 exists after the passage of Public Acts 1993, No. 93-297, which repealed § 38a-369.

Practice Book § 390 (d) provides that the trial court will not enter a declaratory judgment “unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” Without compliance with § 390 (d), the trial court lacks jurisdiction over the matter. Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993). There was no order of notice in this case.

Any interpretation of the legislation involved in this case will apply to all insurance carriers and injured persons who are situated similarly to the plaintiff and the defendant. An order of notice is required; see Connecticut Ins. Guaranty Assn. v. Raymark Corp., 215 Conn. 224, 229, 575 A.2d 693 (1990); and we remand this case for further proceedings. Mannweiler v. LaFlamme, 232 Conn. 27, 36, 653 A.2d 168 (1995).

The judgment is reversed and the case is remanded for further proceedings.