author: Dupont, C. J.

text:
    Mary Hall, Administratrix (Estate of Jesse Hall) v. Dorothy Winfrey
    (10246)
    Dupont, C. J., Landau and Freedman, Js.
    Argued January 9
    decision released March 24, 1992

      Robert M. LaRose, for the appellant (defendant).

      Richard L. Jacobs, with whom was Michael B. Carlson, law student intern, for the appellee (plaintiff).
   Dupont, C. J.

The defendant appeals from the judgment of the trial court, rendered after a jury trial, awarding the plaintiff $165,941.56 in damages for the death of the plaintiffs decedent caused by the defendant’s negligence. The defendant claims that the plaintiff failed to prove, by a preponderance of the evidence, that the defendant’s negligence was the proximate cause of the decedent’s injuries and subsequent death. The defendant claims that because the plaintiff failed to meet its burden of proof on this issue, the trial court improperly denied her motion for a directed verdict after the presentation of the plaintiff’s case, and improperly denied her motion to set aside the verdict and render judgment in her favor. The defendant also claims that the trial court improperly admitted into evidence a portion of the decedent’s hospital records that indicated that the decedent “fell down a flight of stairs.” We affirm the judgment of the trial court.

The essential allegations of the plaintiff’s complaint were that the defendant’s failure to maintain sufficient lighting in the upstairs hallway during hours of darkness, and the failure to warn her houseguests of the allegedly dangerous and unsafe condition, breached her duty of care to the decedent, especially because the head of the stairway and the doorway of the room in which the decedent was staying were nearly equal walking distance and in the same direction from the bathroom. The plaintiff further alleged that this dangerous and unsafe condition caused the decedent to fall down the stairs to his death.

The pertinent facts in this case are undisputed. The defendant owned and lived in a one-family house. On October 14, 1988, the plaintiff and her husband Jesse Hall, the decedent, were overnight guests of their daughter, the defendant. The plaintiff and the decedent were sleeping in a bedroom located next to the stairway on the second floor of the defendant’s house. It was the first time they had visited that particular house of the defendant and the second night of their stay. At approximately 3 a.m., occupants of the defendant’s house heard a thump and arose from bed to find the decedent lying unconscious at the bottom of the stairway on the first floor. When the occupants arose from bed, the hallway was unlit. The decedent never regained consciousness, and subsequently died on February 25, 1989, as a result of the injuries he sustained from that fall.

At trial, the parties stipulated that the injuries and damage sustained by the decedent were caused by his fall. The critical issue in the case, however, was whether the decedent’s fall was proximately caused by the defendant’s negligence. The plaintiff presented evidence that indicated that there was no light in the hall at the time of the fall. The defendant testified that she regularly leaves a dim light on in a room occupied by her grandchildren, the great grandchildren of the plaintiff and the decedent. The defendant stated that she leaves their door open so that anyone in the second floor hallway would have sufficient light to find their way about. On the night in question, however, one of the grandchildren had a nightmare and his crying woke up the defendant. Afraid that the continued crying of the grandchild might awaken other people sleeping in the house, the defendant closed the door to the grandchildren’s room, and, therefore, the second floor hallway was in total darkness. Sometime after the defendant closed the door, the decedent got out of bed and entered the hallway on his way to the bathroom.

Nobody witnessed the decedent’s fall. One occupant of the house, Weston Robinson, a friend of the defendant, testified that he heard the decedent tumble down the steps, but no witness could testify with certainty as to what caused the decedent to fall. The plaintiff presented evidence that the decedent was in good health at the time of the fall, and that there was no medical sign that the decedent had suffered a stroke, fainted, or experienced some other physical ailment prior to the fall. The jury returned a verdict in the plaintiffs favor. It found the plaintiffs decedent’s medical, hospital and funeral expenses to be $157,426.95, and it awarded the decedent’s estate $50,000 for the destruction of the decedent’s life. The jury also found, however, that the plaintiff’s decedent was 20 percent contributorily negligent, and, thus, the trial court reduced the financial award by 20 percent and rendered judgment against the defendant for $165,941.56.

At the close of the plaintiffs case-in-chief, the defendant moved for a directed verdict. She claimed that the plaintiff failed to present any evidence that the decedent’s fall was proximately caused by the defendant’s negligence. The trial court denied the motion. After the jury returned its verdict, the defendant moved to set aside the verdict and to enter judgment in favor of the defendant, again claiming that there was no evidence of proximate causation. The trial court denied this motion too, and rendered judgment for the plaintiff.

Our standards of review for the denial of a motion for a directed verdict and denial of a motion to set aside a verdict are the same. In reviewing such denials, “we view the evidence in the light most favorable to the plaintiff. ... A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in [a verdict for the defendant] ... or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Citations omitted.) Boehm v. Kish, 201 Conn. 385, 388-89, 517 A.2d 624 (1986). When a jury has returned a verdict and the trial court has refused to set it aside, “[t]he court’s decision will be upheld on appeal if, from the evidence presented, the jury could reasonably have concluded as it did.” Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 647, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990); see also Spitzer v. Haims & Co., 217 Conn. 532, 550, 587 A.2d 105 (1991).

“The elements of a cause of action for negligence are duty, breach, causation and damages. Doe v. Manheimer, 212 Conn. 748, 755, 563 A.2d 699 (1989).” Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 112, 585 A.2d 1263 (1991). The defendant does not challenge that the jury could have found that the defendant owed a duty to the plaintiffs decedent with respect to light in the hallway, that the defendant breached that duty, and that she had notice of the defective lighting. The defendant argues only that the plaintiff failed to present sufficient evidence from which a jury could find that the defendant’s negligence was the proximate cause of the decedent’s fall.

“In order for legal causation to exist, actual cause or cause in fact, as well as proximate cause, must be present. . . . Actual cause requires allegations that state that the particular injury would not have occurred in the precise way that it did occur without the defendant’s conduct.” (Citations omitted.) Coste v. Riverside Motors, Inc., supra, 113. Proximate cause, on the other hand, “is defined as an actual cause that is a substantial factor in the resulting harm. . . . The fundamental inquiry in the substantial factor test is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence. . . . The determination of proximate cause is ordinarily a question of fact for the trier; it becomes a question of law only when the mind of a fair and reasonable person could reach only one conclusion . . . . The question should be submitted to the trier of fact if there is,room for a reasonable disagreement.” (Citations omitted; internal quotation marks omitted.) Id., 114; Hughes v. National Car Rental Systems, Inc., 22 Conn. App. 586, 589, 577 A.2d 1132, cert. denied, 216 Conn. 817, 580 A.2d 57 (1990).

In the present case, the plaintiff presented no direct evidence that the lack of light in the hall was the proximate cause of the decedent’s fall. Rather, the plaintiff relied on circumstantial evidence. The plaintiff, in effect, asked the jury to infer that the absence of proper lighting was the proximate cause of his fall. Although inferences may be drawn from circumstantial evidence, “such inferences ‘must be reasonable and logical, and the conclusions based on them must not be the result of speculation and conjecture.’ ” Boehm v. Kish, supra, 389.

“Circumstantial evidence . . . may provide a basis from which the causal sequence may be inferred. Thus it is every day experience that unlighted stairs create a danger that someone will fall. Such a condition ‘greatly multiplies the chances of accident, and is of a character naturally leading to its occurrence.’ When a . . . person tumbles down the steps, it is a reasonable conclusion that it is more likely than not that the fall would not have occurred but for the bad lighting. . . . Such questions are peculiarly for the jury; and . . . are questions on which a court can seldom rule as a matter of law. And whether the defendant’s negligence consists of the violation of some statutory safety regulation or the breach of a plain common law duty of care, the court can scarcely overlook the fact that the injury which has in fact occurred is precisely the sort of thing that proper care on the part of the defendant would be intended to prevent, and accordingly allow a certain liberality to the jury in drawing its conclusion.” W. Prosser & W. Keeton, Torts § 41.

The question with which we are presented is whether it is reasonable and logical for the jury to infer, from the evidence presented, that the fall would not have occurred in the manner that it did if there were light in the hallway, that the lack of light in the hallway was a substantial factor in the fall of the defendant, and that the decedent’s fall was of the same general nature as the foreseeable risk created by the defendant’s negligence.

The facts in the present case are not unlike the facts in Sullivan v. Hamacher, 339 Mass. 190, 158 N.E.2d 301 (1959). In Sullivan, the deceased lived alone on the second floor of a tenement and shared a hallway and a common bathroom with other tenants. The common hallway on the second floor had no light on the day of her fall, and, thus, the hallway was “pitch black after darkness set in.” Id., 191. The deceased was last seen at about 6:30 p.m. on February 7,1954. When she was entering her apartment, she stated to a neighbor that she had to use the bathroom, and that she wished the lighting in the hall were fixed. The deceased was next seen at 7:30 a.m. on February 8, 1954, as she lay dead at the bottom of the tenement stairway. In upholding the denial of the defendant’s motion for a directed verdict, the court stated: “Upon the evidence, in our opinion, the jury could warrantably find that the deceased met her death by reason of the negligence of the defendant in failing to maintain the light in the hallway . . . . [I]t was a question for the jury and . . . it was properly left to them for their determination.” Id., 194-95; see also Mikaloros v. Stamatouras, 348 Mass. 700, 701, 206 N.E.2d 62, 63 (1965) (jury could find causal connection between failure to light hallway and the plaintiff’s injury); Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 8-9, 14 N.E.2d 828 (1938) (in the absence of eyewitnesses, it was reasonable for jury to infer that deceased’s fall was caused by a defective step in a staircase).

In the present case, the jury’s inference that the fall would not have occurred in the manner that it did if there were light in the hallway was both reasonable and logical. It was also reasonable and logical for the jury to infer that the lack of light in the hallway was a substantial factor in the fall of the decedent. This is particularly so, given the fact that the bedroom door and the head of the stairway were approximately an equal distance and in the same direction from the bathroom, that this was the first visit the decedent had made to the defendant’s house, and that the decedent was not familiar with the layout of the defendant’s house. Additionally, “[t]he harm suffered by the [decedent] was of the same general nature as the foreseeable risk caused by [the defendant’s failure to keep the hallway lit].” Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., 20 Conn. App. 253, 260, 566 A.2d 431 (1989). “[T]he fact that both the court and the jury concurred in their determination is a persuasive argument for sustaining the action of the court on the motion [to set aside the verdict].” (Internal quotation marks omitted.) Todd v. Clines, 217 Conn. 1, 7, 583 A.2d 1287 (1991).

We conclude, therefore, that the trial court correctly denied the defendant’s motion for a directed verdict and motion to set aside the verdict, because the jury could reasonably and logically conclude from the evidence presented that “under all the circumstances it was more probable than not that the decedent’s fall . . . was proximately caused by the proximity of the doorway to the stairway, as alleged” in conjunction with the absence of light in the hallway. Facey v. Mer-kle, 146 Conn. 129, 135, 148 A.2d 261 (1959).

The defendant also claims that the trial court improperly admitted into evidence a portion of the decedent’s hospital records, offered by the plaintiff ostensibly to prove damages. Specifically, she claims that a portion of the records that states that the decedent “fell down a flight of stairs” was both irrelevant to the hospital’s medical treatment, and prejudicial to her case because, she claims, the jury could infer from this language that the decedent fell from the top of the stairway. Initially, we note that the defendant stipulated that the decedent’s injuries and subsequent death were caused by the fall on the stairs. The defendant contends, however, that she did not stipulate to the location on the steps from where the decedent fell, and that it is possible that the decedent fell from the first step up from the first floor. The defendant hypothesizes that the decedent may have been downstairs just prior to his fall, and that he turned off the lights himself just before he fell. We will not resort to such speculation. There was absolutely no evidence suggesting that the decedent was anywhere but on the second floor just prior to his fall. Furthermore, one of the witnesses testified that he heard the decedent “tumble down” the stairs. The trial court, therefore, properly admitted the decedent’s hospital records.

The judgment is affirmed.

In this opinion the other judges concurred.

       The decedent’s wife is the plaintiff in this case in her capacity as administratrix of her deceased husband’s estate.


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    Wadia Enterprises, Inc. v. Carolyne Hirschfeld et al.
    (10477)
    Dupont, C. J., Norcott and Lavery, Js.

      Argued January 17
    decision released March 24, 1992

      Robert A. Slavitt, with whom was Michael J. Lawrence, for the appellant (plaintiff).

      Michael D. Bromley, with whom, on the brief, was Burt M. Hoffman, for the appellees (defendants).
   Norcott, J.

The plaintiff corporation appeals from the trial court’s granting of the defendants’ motion for summary judgment. The plaintiff claims that the trial court improperly concluded that (1) the plaintiff failed to raise any genuine factual issue regarding whether the defendants acted in bad faith, or waived or became estopped to assert the protection of the Home Improvement Act, General Statutes § 20-418 et seq. (the Act), (2) there was no issue of material fact regarding the existence of the notice of cancellation that the Act requires, and (3) there was no factual issue regarding whether the defendants consented to work performed, thereby barring them from recovering under the Act. We affirm the trial court’s judgment.

The record discloses the following facts. In August, 1989, the parties entered into a detailed, written contract for the renovation of and addition to the defendants’ house in Greenwich. The contract was prepared by the defendants’ architect and New York attorneys before being presented to the plaintiff for execution. Relevant parts of the contract provided for payment of $599,314.80, substantial completion of the project 170 days after the building permit was obtained, a penalty clause of $500 per day for failure to complete the project within the time provided in the contract, supervision of the project by the defendants’ architect, the defendants’ retention of 5 percent of each installment payment until the architect’s certification of the completion of the job, and the right to submit any disputes to arbitration upon the parties’ mutual agreement. It is not disputed that this contract was a home improvement contract within the meaning of the Act. The contract did, however, fail to provide specifically for a notice of cancellation pursuant to General Statutes § 20-429 (a) (6).

On September 14, 1989, the plaintiff submitted the first of ten requisitions for payment, the first nine of which were approved by the defendants’ architect and paid to the plaintiff, minus the 5 percent retainage. On August 30,1990, the architect approved and certified for payment the tenth and final requisition in the amount of $64,000. A total of $35,676 of this sum consisted of the amounts retained from the first nine payments the defendants made. The defendants, however, did not issue final payment. They instead asserted that sums due under the contract’s liquidated damages clause were to be set off against the plaintiff’s final requisition for payment. The defendants also did not agree to submit the dispute to arbitration.

Thereafter, the plaintiff caused a mechanic’s lien to be filed on the Greenwich land records, and commenced the underlying action to foreclose that lien and for breach of contract. On December 13, 1990, the defendants filed answers and special defenses, alleging that (1) payment in full had been made, (2) there was a failure of performance of the contract, and (3) that the contract violated the Act. Later, the plaintiff countered by filing an amended complaint, essentially alleging that the defendants’ refusal to make final payment amounted to bad faith use of the Act. The defendants then sought summary judgment, claiming that the underlying contract was unenforceable pursuant to the requirement of General Statutes § 20-429 (a) (6). Thereafter, the trial court granted the defendants’ motion. The court found that the contract was unenforceable, and that, because the plaintiff had failed to raise any genuine issue as to any material fact, the defendants were entitled to judgment as a matter of law.

The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn. App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); “the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Trotta v. Branford, supra, 410.

We first consider the plaintiffs claim that the trial court improperly determined that no genuine issue of material fact existed as to whether the contract is viola-tive of the Act with respect to notice of cancellation. The plaintiff argues that the notice is contained in the contract’s provision that work was to commence seven days after the plaintiff obtained a building permit. The plaintiff contends that a genuine issue of material fact exists as to the notice requirement because the contract, as drafted by the defendants, states that the work to be performed shall commence seven days after a building permit is obtained and the contract is executed, a time period greater than the statutorily required three day cancellation period in which the agreement could have been rescinded.

General Statutes § 20-429 provides that “[n]o home improvement contract shall be valid or enforceable against an owner unless it . . . contains a notice of the owners’ cancellation rights in accordance with the provisions of the [Home Solicitation Sales Act, General Statutes § 42-134a et seq.].” General Statutes § 42-135a requires that home solicitation sales contracts contain specific language that consumers have three business days in which to cancel the contract. To provide that work is to commence within seven days says nothing about the right to cancel a contract. Because the contract at issue did not contain the specific language required by General Statutes § 20-429, the trial court therefore correctly determined that the notice provision was missing and that the contract was viola-tive of the Home Improvement Act.

We next turn to the plaintiffs claim that the trial court improperly determined that no genuine issue of material fact existed as to its claim that the defendants acted in bad faith in seeking to use the Act as a defense. The plaintiff contractor maintains that by virtue of its pleadings and affidavit in support of its opposition to the motion for summary judgment, it raised a genuine issue of a material fact as to the defendants’ alleged bad faith claim, which, if proven, provides an exception to the now established general rule that precludes recovery by a contractor who has failed to comply with the Act’s requirements.

In a series of related cases, our Supreme Court recently held that defective home improvement contracts are unenforceable under almost every imaginable theory of recovery. See Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990) (quasi contract); A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 576 A.2d 464 (1990) (quantum meruit and unjust enrichment); Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 576 A.2d 149 (1990) (implied contract). Although the court clearly stated that defective home improvement contracts are invalid and unenforceable as a matter of public policy so as to afford protection to consumers, it also recognized that disallowing all of these invalid contracts “may lead to a harsh result.” Barrett Builders v. Miller, supra, 326. The court stated that the legislature might do well to contemplate the possibility that some inexperienced contractors may encounter unscrupulous homeowners who use the Act “as a sword rather than as a shield.” Id., 328. It suggested that bad faith on the part of a homeowner might preclude use of the Act as a defense. Id.; see also A. Secondino & Son, Inc. v. LoRicco, supra, 340.

Here, the plaintiff contends it has sufficiently raised a genuine issue of material fact as to the defendants’ alleged bad faith claim that because the contract is invalid under the Act, the plaintiff may not recover. The essence of the plaintiff’s assertion seems to be that the defendants, by preparing the underlying defective contract through its sophisticated agents (their attorneys and architect), somehow prevailed upon the plaintiff contractor’s innocence and then, after certain work had been performed and payments made, relied on the same contract and the Act as a defense to the plaintiff’s action against them. The plaintiff contends that these allegations in its pleadings and supporting affidavits sufficiently raise a genuine issue of material fact so as to preclude the granting of summary judgment for the defendants. We disagree.

“It is not enough that one opposing a motion for a summary judgment claims that there is a genuine issue of material fact; some evidence showing the existence of such an issue must be presented in the counter affidavit.’ ” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969). Further, “[i]t is not enough . . . merely to assert the existence of such a disputed issue . . . [instead] the genuine issue aspect requires the party to bring forward before trial evidentiary facts, or substantial evidence outside of the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Citations omitted; emphasis in original; internal' quotation marks omitted.) Na-Mor, Inc. v. Roballey, 24 Conn. App. 215, 217, 587 A.2d 427 (1991). “Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.” United Oil Co. v. Urban Redevelopment Commission, supra.

In urging that we accept its arguments, the plaintiff directs our attention to those cases holding that issues involving motive or intent; Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); or good faith and bad faith; United Oil Co. v. Urban Redevelopment Commission, supra, 381; like negligence cases, should not be resolved by summary judgment. It is clear, however, that this proposition does not relieve the plaintiff from presenting a requisite factual predicate for its claim of bad faith. Multi-Service Contractors, Inc. v. Vernon, 193 Conn. 446, 452, 477 A.2d 653 (1984).

“Bad faith” is an indefinite term that contemplates a state of mind affirmatively operating with some design or motive of interest or ill will. New Amsterdam Casualty Co. v. National Newark & Essex Banking Co., 117 N.J. Eq. 264, 277, 175 A. 609 (1934). Good faith performance of a contract “emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party. . . .” (Internal quotation marks omitted.) Warner v. Konover, 210 Conn. 150,155, 553 A.2d 1138 (1989), quoting 2 Restatement (Second), Contracts § 205, comment (a).

Our examination of the plaintiffs evidence submitted in support of its allegation of bad faith leaves us unpersuaded as to its claim. Viewed in a light most favorable to the plaintiff, the plaintiff’s affidavits in opposition to the motion for summary judgment deal very frugally with the issue of bad faith. The plaintiff’s president avers that, without the advice of counsel, he personally negotiated the home improvement contract prepared by the defendants’ New York attorneys, and that the defendants asserted their rights under the contract after which they sought to use the invalid contract as a defense pursuant to the Act. Nowhere, however, does the plaintiff even assert that the defendants knew of the defect in the contract and affirmatively concealed or induced the plaintiff into signing the contract so as to be in a position thereafter to utilize the Act’s protection. Mere statements of legal conclusions; United Oil Co. v. Urban Redevelopment Commission, supra, 377; and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 784, 595 A.2d 334 (1991). Even if we assume arguendo that the plaintiff’s allegations are true, we nevertheless must conclude that the plaintiff has failed to present the requisite underlying factual basis sufficient to raise a genuine issue of bad faith on the part of the defendants. The trial court therefore correctly determined that “[njeither the conclusory allegations of the complaint nor the documentary evidence submitted by the defendants raises any genuine issue as to any material fact relating to bad faith.”

The remaining argument the plaintiff poses has no merit. In light of the clear expression of public policy establishing that the Act precludes a contractor’s recovery under an unenforceable home improvement contract, the plaintiffs claims that the defendants are not to be afforded the Act’s protection because of waiver, estoppel and consent must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint specifically sounded in three counts: foreclosure of mechanic’s lien, breach of the written construction contract and a claim in quasi contract.

       General Statutes § 20-429 (a) provides in pertinent part: “No home improvement contract shall be valid or enforceable against an owner unless it . . . (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of Chapter 740 [the Home Solicitations Sales Act]

       It is noteworthy that subsequent to Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990), the legislature has not amended the Act.

       The bold print language of the contract provided in pertinent part, “THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION.” Despite this language, the plaintiff’s president negotiated and signed the contract without the assistance of counsel.


author: Landau, J.

text:
    State of Connecticut v. Lesburn Harvey
    (9654)
    Daly, Norcott and Landau, Js.

      Argued December 10, 1991
    decision released March 24, 1992

      Neal Cone, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Alfred C. Baldwin, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant, Lesburn Harvey, appeals from a judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b). On appeal, the defendant raises the following claims: (1) the trial court improperly denied his motion for a mistrial after the state introduced inadmissible prejudicial evidence; (2) a pattern of conduct repeated throughout the course of the trial and the state’s closing argument constituted prosecutorial misconduct that violated his right to a fair trial; (3) the trial court improperly permitted the arresting officer to testify as both a fact witness and an expert witness; and (4) the trial court improperly instructed the jury on expert testimony, on the presumption of innocence, and on reasonable doubt. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 22, 1989, at approximately 8:30 p.m., Detectives Anthony Battistone and Christopher Lyons of the Hartford police department received a telephone call from an unidentified informant indicating that an individual named Les, who was dressed all in white, was selling narcotics out of a parked car in the area of 139 Homestead Avenue in Hartford. In response to the telephone call, plain clothes detectives in an unmarked car drove to the area indicated in the telephone call to conduct a surveillance.

The officers observed four individuals attempting to wave down passing cars. They further observed the defendant, who was dressed all in white, enter an apparently abandoned black Volvo and remove small plastic packages from the backseat, hand the packages to various individuals, whom the other four had stopped, receive money in exchange, and place the money in his pocket. At this point, the officers arrested the defendant. A search of the vehicle produced eleven blue plastic bags containing a substance later identified as marihuana, and four clear plastic bags containing a white powder later identified as cocaine. A search of the defendant’s person produced $561.

I

The defendant first claims that the trial court improperly denied his motion for a mistrial after the state introduced inadmissible prejudicial evidence. We disagree.

The following additional facts are necessary to resolve this claim. On the eve of trial, the defendant filed a motion in limine requesting a ruling by the court regarding the admissibility of the contents of a telephone call to the police in which an unidentified informant related that an individual named Les, dressed all in white, was selling narcotics out of a parked car in the area of 139 Homestead Avenue in Hartford. The defendant, relying on State v. Milner, 206 Conn. 512, 539 A.2d 80 (1988), sought to preclude the state from “mentioning or stating what information was received from an alleged informant . . . until the court has ruled on the admissibility of said information.” He argued that the information was hearsay that did not fall within any recognized exception to the hearsay rule. The trial court entered an order that “no evidence concerning information received from an informant may be intentionally introduced unless prior to the presentation of such evidence, the state, outside the presence of the jury, gives oral notice to the trial judge of his intention to present such evidence before the jury.”

Prior to calling its first witness, the state, pursuant to the trial court’s order, informed the court that it would be questioning the witness regarding the telephone call placed by the unidentified informant. The state’s attorney argued, relying on State v. Cruz, 212 Conn. 351, 356, 562 A.2d 1071 (1989), that he was attempting to introduce evidence of the telephone call to show its effect on the listener and to explain the listener’s subsequent conduct, not for the truth of the statement contained therein. The defendant argued that because the essence of his defense was that he was not selling narcotics, the statement was being offered for the truth of the matter asserted and, therefore, was inadmissible hearsay.

The trial court, here, concluded that the statement was permitted in State v. Cruz, supra, for the limited purpose of explaining the witnesses’ actions and noted that the Cruz court determined that if the witnesses had been permitted to testify to the specific contents of the statement, the testimony would have been inadmissible. Id., 357. The court also noted that in Cruz no testimony was elicited as to anything the defendant did or was accused of doing, but that here the contents of the telephone call, if admitted, would describe specifically that which was precluded in Cruz, the particular conduct of the defendant.

The trial court relied on this distinction in denying the state’s request to introduce the contents of the telephone call. The trial court, however, reaffirmed its earlier decision and allowed the state to introduce the fact that “there was information received from unidentified informants that led them to a particular place because of some type of activity which was going on there.”

On direct examination, the state established that Lyons had received a telephone call regarding some illegal activity and had gone to 139 Homestead Avenue to perform a surveillance in response to that telephone call. Shortly thereafter, the witness was asked why he went to 139 Homestead Avenue. He responded that he “was there to check out information [he] had received concerning a specific person who was selling narcotics from a parked vehicle.” No objection was made to this question nor did the defendant move to strike the response. The witness was asked numerous foundational questions concerning his familiarity with the area around 139 Homestead Avenue. The state then asked him to describe the individuals he saw during the course of his surveillance. The witness briefly described the activity of four individuals and then stated that he was “focused on the person [he] had received information on.” The state’s attorney then cautioned the witness not to testify as to the contents of the telephone call. At this point, defense counsel objected to the testimony and requested argument outside the presence of the jury.

Defense counsel moved to dismiss the charges against the defendant or, in the alternative, for a mistrial on the ground that the state had violated the trial court’s order regarding the introduction of the contents of the telephone conversation. The trial court denied the defendant’s motion. With respect to the first reference, the trial court noted that it came in without objection; with respect to the second, the court did not find “that the comments to which the objections were made was sufficiently specific with regard to the telephone call to be violative of either the words or the spirit of the court’s order.” The trial court did, however, instruct the jury to disregard the testimony relating to the telephone call.

We will not review the defendant’s claim as it relates to the witness’ comment regarding a specific person selling narcotics from a parked vehicle because the defendant has failed to preserve this claim properly for appellate review. Absent a timely objection, this claim is not reviewable. State v. Anderson, 212 Conn. 31, 41, 561 A.2d 897 (1989); State v. Plourde, 208 Conn. 455, 462, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989). Only the most exceptional circumstances will save a claim from the fatal consequences of a defendant’s failure to make a timely objection. State v. Reddick, 197 Conn. 115, 125, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). The defendant has suggested no exceptional circumstances to warrant departure from the general rule that limits appellate review of all issues to those on which the trial court has had an opportunity to rule. Knight v. Bourbeau, 194 Conn. 702, 704 n.3, 485 A.2d 919 (1984). The second claim, addressing Lyons’ comment that he was “focused on the person [he] had received information on” was properly preserved by the defendant’s timely objection and subsequent exception.

Due process requires that a criminal defendant be given a fair trial before an impartial jury. U.S. Const., amend XIV; Conn. Const., art. 1, § 8. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). A new trial, however, is not required every time “ ‘a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.’ ” Rushen v. Spain, 464 U.S. 114, 118, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983), quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).

The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. State v. Hancich, 200 Conn. 615, 624-25, 513 A.2d 638 (1986); State v. Gaston, 198 Conn. 490, 495-96, 503 A.2d 1157 (1986); State v. Ubaldi, 190 Conn. 559, 562, 464 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). The trial court enjoys wide discretion in deciding whether a mistrial is warranted; Speed v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990); State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); and its evaluation as to events occurring before the jury is to be accorded the highest deference. United States v. Grasso, 600 F.2d 342, 343 (2d Cir. 1979). Every reasonable presumption will be given in favor of the trial court’s ruling; State v. Rodriguez, 10 Conn. App. 176, 179, 522 A.2d 299 (1987); because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure has prejudiced a defendant. See, e.g., United States v. Wiley, 846 F.2d 150, 157 (2d Cir. 1988); State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989); State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

The trial court is well aware of the scope of its orders. We, therefore, must afford great deference to its conclusion that the state did not violate either the words or spirit of those orders. Moreover, even though the trial court concluded that the state’s attorney did not violate the order regarding the introduction of the contents of the telephone call, it nonetheless instructed the jury to disregard any and all testimony relating to the telephone conversation. We cannot say that the conduct at issue, after the countermeasures administered by the court, so jeopardized the defendant’s right to a fair trial that the trial court abused its discretion in denying his motion for a mistrial. The defendant’s right to a fair trial was more than adequately protected and his claim to the contrary must fail.

II

The defendant next claims that a pattern of conduct repeated throughout the course of the trial and the state’s closing argument constituted prosecutorial misconduct that violated his right to a fair trial. U.S. Const., amend XIV; Conn. Const., art. 1, § 8. The challenged conduct falls into three general categories: (1) asking the defendant to characterize the testimony of the police as incorrect and arguing to the jury that either the police officers’ testimony or the defendant’s testimony was untrue; (2) questions referring to prior phone calls to the police regarding drug activity and drug arrests in the area of the defendant’s arrest; and (3) questions asked of the defendant regarding the registration of the car in which the drugs were found. The defendant claims that each of these actions independently constitutes prosecutorial misconduct requiring reversal of his convictions, and, alternatively, that even if each alone does not justify reversal, their cumulative effect requires reversal. See Floyd v. Meachum, 907 F.2d 347 (2d Cir. 1990).

Prosecutorial misconduct may occur in the course of cross-examination of witnesses; State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975); or in the course of closing argument. State v. Pelletier, 196 Conn. 32, 33-34, 490 A.2d 515 (1985); State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). “ ‘[T]he touchstone of [our] analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.’ Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); State v. Cosgrove, 186 Conn. 476, 489, 442 A.2d 1320 (1982).” State v. Couture, supra, 562; State v. Palmer, 196 Conn. 157, 163, 491 A.2d 1075 (1985). We must, therefore, determine whether the state’s attorney’s questions and comments, in light of all the circumstances, were so egregious and so damaging to the defendant that they deprived him of a fair trial. State v. Couture, supra, 562-63. Applying the established rules to the case before us, we conclude that the defendant falls short of demonstrating an entitlement to a new trial.

A

CHARACTERIZATION OF TESTIMONY

The defendant did not object to the questions regarding the discrepancy between his testimony and the detectives’ testimony, or to references to these differences made by the state’s attorney during his summation. He, therefore, failed to preserve this claim properly for review. An unpreserved claim of prosecutorial misconduct merits reversal only where the conduct complained of constitutes a “pattern of repeated, strident and serious misconduct,” not where the conduct is comprised of “isolated and brief episodes.” State v. Smith, 209 Conn. 423, 428, 551 A.2d 742 (1988). Moreover, a pattern of blatantly egregious conduct must “rise to the level of character assassination and vitriolic personal attacks ... [in order] to constitute a denial of the constitutional due process right [and] fair trial.” State v. Rogers, 207 Conn. 646, 654, 542 A.2d 1136 (1988).

Although our Supreme Court has disapproved of asking one witness to characterize the testimony of another witness, such action does not automatically result in prejudicial error. See State v. Schleifer, 102 Conn. 708, 723, 130 A. 184 (1925). This is so, particularly in a case where the central issue is one of credibility and the trial court has properly instructed the jury that it is to evaluate the credibility of the witnesses independently and weigh their testimony, as was the case here. In such a case, characterization of testimony by a witness does not deprive the jury of its essential fact finding function. Cf. Commonwealth v. Ward, 15 Mass. App. 400, 401-402, 446 N.E.2d 89 (1983), and People v. Dowd, 101 Ill. App. 3d 830, 844, 428 N.E.2d 894 (1981).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, [our Supreme Court], in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . [and] the strength of the curative measures adopted . . . .” (Citations omitted.) State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).

Here, the detectives testified during the state’s casein-chief that they had apprehended the defendant after observing him make numerous trips to a parked car, approach various individuals and hand them small plastic packages in exchange for money. The defendant testified that he had been playing dominoes at the time he was apprehended. Twice during the cross-examination, the state questioned the defendant about the apparent inconsistency in his testimony compared with that of the detectives. Additionally, during closing arguments both the state and the defendant referred to the disparity between the defendant’s testimony and the detectives’ testimony and inferred that one of the two versions of the events was inaccurate.

After a thorough examination of the record we conclude that the prosecutor’s comments during closing argument were invited by the defendant; the reference to the differences in the testimony of the detectives and the defendant during cross-examination of the defendant were comprised of two isolated incidents, and thus were neither serious nor frequent. We further conclude that any harm that may have arisen was overcome by the trial court’s proper instructions to the jury. Thus, the defendant’s argument must fail.

B

PRIOR PHONE CALLS TO THE POLICE

The defendant next claims that the state injected “ugly innuendo” into the trial by improperly evoking testimony from its witnesses about two prior telephone calls regarding drug activity and arrests in the area where the defendant was arrested and thereby deprived him of his right to a fair trial. Simply stated, the defendant has placed a constitutional tag on a nonconstitutional issue. State v. Smith, 219 Conn. 160, 165, 592 A.2d 382 (1991); State v. Castonguay, 218 Conn. 486, 504, 590 A.2d 901 (1991); State v. Walker, 215 Conn. 1, 5, 574 A.2d 188 (1990). The admission of testimony is an evidentiary ruling. See State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). Unpreserved nonconstitutional claims such as this “do not warrant special consideration simply because they bear a constitutional label.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the admission of this testimony was an evidentiary ruling, the defendant bears the burden of establishing that the admission of the testimony was harmful. State v. Gold, supra, 640. The defendant has not met that burden. The testimony regarding earlier phone calls relating narcotics activity was introduced for the sole purpose of justifying why the police credited the telephone call they received on the night the defendant was apprehended and why they felt a surveillance of the area was warranted. Because the defendant failed to demonstrate that he was harmed by these statements, his claim must fail.

C

PRIOR CRIMES OR UNCHARGED MISCONDUCT

The defendant filed a motion in limine regarding the admissibility of evidence of prior crimes or uncharged misconduct by the defendant. The trial court ruled that the state must give the court notice of its intent to introduce such evidence prior to its introduction. On cross-examination, the defendant was asked a series of questions concerning the car in which the drugs were found. He stated that the car was owned by and registered to his cousin, and that he, the defendant, had taken the car to the department of motor vehicles and registered it in his cousin’s name. He was then asked if he had signed the papers in someone else’s name. Defense counsel objected on the grounds that the question was irrelevant and that it exceeded the scope of direct examination. Outside the presence of the jury, the court, referring to its ruling on the introduction of acts of uncharged misconduct, concluded that the question was approaching that direction. The state argued that the question was asked for purposes of impeachment only, but agreed to withdraw the question. The trial court instructed the jury that it was to disregard the unanswered question and was not to consider the matter during deliberation.

The trial court interpreted its order regarding the admissibility of evidence of uncharged misconduct to cover only the intentional introduction of evidence of such conduct. The trial court concluded that the state did not intentionally introduce this evidence and, consequently, that the state did not violate its orders. Moreover, the trial court’s declaration that this question was “approaching” the forbidden territory indicates that the court was of the belief that the state had not yet reached that realm. Finally, we must assume that the jury followed the trial court’s directive not to consider the evidence of this uncharged misconduct. State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1981); State v. Jupin, 26 Conn. App. 331, 350, 602 A.2d 12 (1992). Therefore, the defendant’s argument fails.

D

CUMULATIVE EFFECT

The defendant alternatively argues that the cumulative effect of the acts complained of was sufficient to warrant reversal of his convictions. We disagree. Because we find that none of the challenged trial court actions was improper, we conclude that the cumulative impact of those actions did not deny the defendant a fair trial. State v. Harris, 182 Conn. 220, 230-33, 438 A.2d 38 (1980); State v. Hudson, 14 Conn. App. 463, 472, 541 A.2d 534 (1988); State v. Robinson, 14 Conn. App. 146, 149-51, 539 A.2d 1037, cert. denied, 208 Conn. 805, 545 A.2d 1101 (1988).

Ill

The defendant’s third claim challenges the propriety of the trial court in permitting Lyons to testify as both a fact witness and an expert witness. At trial, the defendant objected to the state’s attempt to have Lyons testify as an expert witness with respect to narcotics investigations and procedures on the ground that the detective’s proposed testimony went to the ultimate issue in the case. The trial court overruled the defendant’s objection and determined that Lyons was qualified to testify as an expert. The defendant did not claim that the detective should not have been permitted to testify as both a fact witness and an expert witness. Because this claim was never raised at trial, we decline to review it.

This court will not review issues of law that are raised for the first time on appeal. Practice Book § 4185; Texaco, Inc. v. Golart, 206 Conn. 454, 460, 538 A.2d 1017 (1988). To allow the defendant to argue one theory of inadmissibility at trial and then press a distinctly different theory on appeal would amount to an ambuscade of the trial court. See State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990); Crotty v. Naugatuck, 25 Conn. App. 599, 602, 595 A.2d 928 (1991); State v. McFadden, 25 Conn. App. 171, 172 n.1, 593 A.2d 979, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991).

IV

Finally, the defendant, in a series of claims addressed to the trial court’s charge to the jury, argues that the trial court improperly instructed the jury on (1) expert testimony, (2) the presumption of innocence, and (3) reasonable doubt. Specifically, the defendant argues that the trial court’s instruction on expert testimony was prejudicially misleading and that the instructions on reasonable doubt and the presumption of innocence violated his fourteenth amendment right to due process, his federal and state constitutional rights to a fair trial and his right to effective assistance of counsel. The defendant concedes that these claims were not properly preserved and seeks review under the plain error doctrine of Practice Book § 4185, or, alternatively, under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, supra.

The defendant’s claims do not rise to the level of plain error. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings; State v. Ralph, 17 Conn. 247, 249, 551 A.2d 774 (1989), quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); and results in an unreliable verdict or miscarriage of justice. Barca v. Barca, 15 Conn. App. 604, 606, 546 A.2d 887, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988).” (Internal quotation marks omitted.) State v. Polanco, 26 Conn. App. 33, 39, 597 A.2d 830, cert. denied, 220 Conn. 926, 598 A.2d 367 (1991). These claims do not raise such issues; thus, plain error review is not warranted.

A

EXPERT TESTIMONY

The defendant first challenges the trial court’s instruction on expert testimony on the ground that the instruction was prejudicially misleading. Although no objection was made at trial, we will review this claim because it meets all four prongs of State v. Golding, supra. The defendant argues that the trial court’s directive that the jury consider the qualifications of the expert did not meet the required standard that expert testimony is to be considered, weighed and tested like any other testimony. State v. Kelly, 77 Conn. 266, 275, 58 A. 705 (1904).

In reviewing a challenge to jury instructions, we must examine the charge in its entirety. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989). While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury. Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991). The challenged portion of the instruction, taken in the context of the entire charge, was proper.

First, it immediately followed the trial court’s instructions that that testimony was not binding and that the jury was free to disregard the expert testimony, either in whole or in part. The court also instructed that it was for the jury to consider the testimony with the other evidence presented and it was the jury’s responsibility to determine the weight to be given to the expert testimony. Second, this challenged portion was immediately followed by the trial court’s admonition that the evidence must be considered by the jury but that it was not bound to accept it. Thus, contrary to the defendant’s assertion, the trial court did not “[indicate] as a given the truth of the underlying facts.”

Moreover, an examination of the trial court’s charge, in its entirety; State v. Grullon, supra; defeats the defendant’s claim. The court instructed the jury that it was the sole judge of the facts, that it was to weigh the evidence and to form an independent conclusion of what the facts were and that it was to judge the credibility of the witnesses. Even more significant is the fact that the court instructed the jury that the credibility of the police officers, all of whom testified as experts, was to be weighed by the same standards as the testimony of ordinary witnesses. After reading and considering the charge as a whole, we conclude that the jury was properly appraised of the standard by which it was to evaluate the expert testimony adduced at trial and that it is not reasonably possible that the jury was misled by the trial court’s instruction.

B

THE PRESUMPTION OF INNOCENCE

The defendant’s next claim is that the trial court’s instructions on the presumption of innocence violated his due process rights. U.S. Const., amend XIV; Conn. Const., art. 1, § 8. The defendant relies on the recent decision of the United States Court of Appeals for the Second Circuit in Floyd v. Meachum, supra. We conclude that the defendant’s reliance on that case is misplaced and that this case is controlled by the decision of our Supreme Court in State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990).

In Floyd v. Meachum, supra, the Second Circuit reversed the defendant’s convictions and concluded that “the prosecutor’s repeated remarks that the Fifth Amendment was ‘a protection for the innocent’ and not ‘a shield’ for ‘the guilty’ incorrectly stated the law by diluting the State’s burden of proof beyond a reasonable doubt and undermining the presumption of innocence.” (Emphasis added.) Id., 354. It was the constant repetition throughout the prosecutor’s comments that the court relied on in concluding that the effect was to dilute the state’s burden of proof and to undermine the presumption of innocence. Here, unlike in Floyd, it was stated only once that the purpose of the fifth amendment was to protect the innocent and not to shield the guilty. Thus, the facts in Floyd v. Meachum, supra, render the court’s conclusion there inapplicable to the present case.

We are bound by our Supreme Court’s decision in State v. Thomas, supra. The Thomas court declined to review under State v. Evans, supra, and State v. Golding, supra, a challenge to language similar to the language challenged here, noting that jury instructions containing similar statements had been approved in the past. The court held that when viewed in the context of the entire charge, the language did not dilute the presumption of innocence or lessen the state’s burden of proof, but that the court’s charge, in its entirety, adequately informed the jury that the defendant was presumed innocent until the state proved otherwise. The Supreme Court also found that the trial court adequately informed the jury that it was the state’s burden to prove the defendant guilty beyond a reasonable doubt. State v. Thomas, supra, 119-20. On the basis of these findings, the Supreme Court concluded that there was no clear deprivation of a fundamental constitutional right. State v. Golding, supra, 240-41. The same reasoning applies in this case. We, therefore, conclude that the defendant’s due process rights were not violated.

C

REASONABLE DOUBT

The defendant’s final claim concerns the trial court’s instruction on reasonable doubt. He claims that the trial court’s instruction to the jury that reasonable doubt “is not a doubt which is raised by the ingenuity of counsel” violated his rights to counsel and to a fair trial as guaranteed by both the federal and state constitutions. U.S. Const., amends. VI and XIV; Conn. Const., art. 1, § 8. We disagree.

“In a criminal case, the trial court must instruct the jury on the constitutional requirement that the state prove the defendant’s guilt beyond a reasonable doubt. State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983). ‘ “[Courts . . . [should] not use language in instructions which can be understood as diluting or in any way impairing the constitutional requirement of proof beyond a reasonable doubt.” United States v. Pine, 609 F.2d 106, 108 (3d Cir. 1979).’ State v. Smith, 183 Conn. 17, 28, 438 A.2d 1165 (1981). It is well established that the test to be applied in appellate review to a claim of instructional error is whether the charge as a whole presented the case to the jury so that no injustice has been done. State v. Lytell, 206 Conn. 657, 664, 539 A.2d 133 (1988); State v. Moss, 189 Conn. 364, 370, 456 A.2d 274 (1983); State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).” State v. Lamme, 19 Conn. App. 594, 607, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990).

This court and our state Supreme Court have permitted Evans-Golding review of similar claims that certain language used in the charge in a criminal case had the effect of diluting the state’s constitutional burden to prove a defendant guilty beyond a reasonable doubt. State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990); State v. Lamme, supra; State v. Lytell, supra; State v. Smith, 26 Conn. App. 279, 600 A.2d 1036 (1991). Accordingly, we review this claim to determine whether the defendant has been deprived of a fundamental constitutional right and a fair trial. State v. Golding, supra; State v. Evans, supra.

After instructing the jury on the presumption of innocence and instructing that the state bore the burden of proving each and every element of the crimes charged, the trial court charged the jury on reasonable doubt. The language used by the trial court in defining proof beyond a reasonable doubt, specifically, that proof beyond a reasonable doubt is not “a doubt which is raised by the ingenuity of counsel” is not language that dilutes the state’s burden of proof, nor is it language that implies the jury should disregard defense counsel’s argument or accord it minimal consideration. Cf. United States v. Brown, 776 F.2d 397 (2d Cir. 1985), cert. denied, 475 U.S. 1141, 106 S. Ct. 1793, 90 L. Ed. 2d 339 (1986). The challenged portion of the trial court’s instruction was part of a extensive instruction on reasonable doubt that has been previously approved by our state appellate courts. See State v. Lamme, supra; State v. Johnson, supra; State v. Ryerson, 201 Conn. 333, 514 A.2d 337 (1986); State v. Lytell, supra; State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989); State v. Findlay, 198 Conn. 328, 345-46, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d (1986); State v. Smith, supra, 26 Conn. App. 279; State v. Turner, 24 Conn. App. 264, 587 A.2d 1050 (1991); State v. Diorio, 12 Conn. App. 74, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987), cert. denied, 484 U.S. 1065, 108 S. Ct. 1025, 98 L. Ed. 2d 990 (1988). The defendant’s burden with respect to this final claim is thus “ ‘especially heavy because no erroneous instruction was given.’ ” State v. Kurvin, 186 Conn. 555, 563, 442 A.2d 1327 (1982), quoting Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977). We conclude that the trial court adequately informed the jury that the state was required to establish the defendant’s guilt beyond a reasonable doubt; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); and, therefore, that the defendant was not deprived of his right to counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       Upon reaching the area, the detectives radioed for backup. Detectives Richard Perrotta and James Pasqurell responded.

       In State v. Milner, 206 Conn. 512, 539 A.2d 80 (1988), our Supreme Court ruled that the trial court improperly admitted the unidentified informant’s statement under the business record exception to the hearsay rule.

       The trial court added the intentionality requirement by writing in the word “intentionally” to the order that was prepared by the defendant.

       The state conceded that this evidence would not be admissible as a business record because there was no duty on the caller to make the telephone call.

       The following colloquy occurred:
      “Q. And it’s your testimony here today the police officers are wrong in their testimony.

        “A. They are wrong, sir.
      “Q. Do you know any reason why, sir, they should testify—
      “A. I don’t know, but they are wrong.
      “Q. And the testimony of all those police officers, according to you, is incorrect?
      “A. Yes, sir, because they all plan what to say, sir.
      “Q. So, basically, the testimony of those police officers from different positions is incorrect?
      “A. It’s not true, sir.
      “Q. Not true
      “A. Not true.
      “Q. Do you know of any reason why they should make an untrue statement?
      “A. I guess because they say I got the money, that’s why.”

       During his initial closing argument, the state’s attorney made the following two references to the conflicting testimony of the police officers and the defendant:
      “You have testimony of police officers as to a specific event. You have testimony by defense, by the defendant himself, by defense witnesses and that testimony is in conflict.”
      “The four police officers testified to a vehicle in a very specific location. The testimony of the defendant . . . [was that] he pulled into that driveway and he parked the vehicle. So, the confrontation. Whose testimony is to be believed.”
      During his closing argument, defense counsel made the following comments:
      “I submit to you there is some conflict in the testimony of the police officers . . . and [the state’s attorney] asked you to try to determine who’s telling the truth and who’s not telling the truth. I join in that request.” “We think the entire case is based on credibility. Who’s telling the truth and who's not telling the truth.”
      “[A]nd the question I submit to you, ladies and gentlemen, is have you been convinced beyond a reasonable doubt that these two officers were telling the whole truth. The whole truth.”
      “Now you might ask yourself why would Detectives Lyons and Batti-stone say something if it wasn’t true.”
      “So, you might consider, ladies and gentlemen, that the motive Detectives Lyons and Battistone might have for not telling you the entire truth is that they want to make an arrest that sticks.”
      In his rebuttal argument, the state’s attorney commented as follows:

        “[Defense counsel’s] main thrust . . . on behalf of [the defendant] . . . is the credibility of the police officers. He’s using the word untruthful. . . . Basically, he’s implying by the word that the police officers are untruthful in their testimony. . . . Well, if [they’re] being untruthful. . . then why didn’t they just be totally untruthful? Why didn’t they just put the drugs on Mr. Harvey; put a different amount of money involved in the case or no money at all and pocket the money .... If we’re going to have an untruth here, then let’s make it a good untruth. Let’s be totally untruthful. ... If you’re going to be untruthful, be totally untruthful. Let’s not make it a little untruth. . . . What reason do four police officers have to lie? Does the defendant have a reason to lie? Does the defendant’s witness have a reason to lie? ...”
      “[I]t comes down to do you believe the police officers’ testimony or are you going to believe Mr. Harvey’s testimony, and Mr. Harvey’s witness.”

       The defendant also claims that the state’s attorney, in closing argument, improperly referred to the telephone call received on the day of the defendant’s arrest. Because of our conclusion in the first issue, we need not review this claim.

       The defendant does not challenge the propriety of the trial court in allowing any of the other police officers to testify as both fact witnesses and expert witnesses.

       Defense counsel argued: “Your Honor, Detective Lyons’ proposed testimony goes to the ultimate issue in the case. He is the arresting officer. I submit that to allow him to give an opinion in this matter as to drug transactions, what was going on, I submit would certainly be extremely prejudicial to this defendant. He certainly has an interest in this matter because he was the arresting officer and I submit that the proposed—the testimony that I anticipate to be elicited by [the state’s attorney] will go to the ultimate issue in this case. I submit that Detective Lyons should not be allowed to give an opinion in this matter.”

       Practice Book § 4185 provides in pertinent part: “The [appellate] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The [appellate] court may in the interest of justice notice plain error not brought to the attention of the trial court.”

       The trial court instructed as follows: “In this particular case, certain witnesses have gone on the stand and given their qualifications and testified as expert witnesses. A person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates. An expert is permitted not only to testify to facts which he personally observed but also, to state his opinion upon certain circumstances or about certain circumstances. This is allowed because an expert is supposed—from his knowledge, research and study—to have a particular knowledge of the subject of the inquiry and be more capable than a lay person of drawing conclusions from facts and basing his opinion upon that. Such testimony is presented to you to assist you in your deliberations. No such testimony is binding upon you, however, and you may disregard such testimony, either in whole or in part. It is for you to consider the testimony with the other circumstances in the case and using your best judgment, determine whether or not you will give any weight to it and if so, what weight you will give to it. The testimony is entitled to such weight as you find the expert’s qualifications in his field entitle it to receive. It must be considered by you but is not controlling on your judgment.” (Emphasis added.)

       The trial court charged on the presumption of innocence as follows: “On the subject of presumption of innocence . . . the defendant is presumed innocent until proven guilty beyond a reasonable doubt. This presumption of innocence was with the defendant when he was first presented for trial in this case. It continues with him throughout the trial. As far as you are concerned, the defendant is innocent and he continues to be innocent unless and until such time as all the evidence produced here in the orderly conduct of this case, considered in light of these instructions of law and deliberated upon by you in the jury room, satisfy you beyond a reasonable doubt that he is guilty. Thus, the presumption of innocence alone is sufficient to acquit the defendant. The presumption remains with the defendant throughout the trial unless you are satisfied beyond a reasonable doubt of the defendant’s guilt from all the evidence in the case.
      “It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence which the law imputes to every person so charged and by making the state meet its burden of proving guilt beyond a reasonable doubt but you must keep in mind that those rules of law are made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime charged, then it is your sworn duty to enforce the law and render a verdict of guilty.” (Emphasis added.)

       See State v. Brown, 199 Conn. 14, 28, 505 A.2d 690 (1986); State v. Leecan, 198 Conn. 517, 538-39, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 660 (1986); State v. Findlay, 198 Conn. 328, 345-46, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Palmer, 196 Conn. 157, 168-69, 491 A.2d 1075 (1985); State v. Just, 185 Conn. 339, 353, 441 A.2d 98 (1981).

       Although the defendant phrased this claim as a denial of the right to effective assistance of counsel, we conclude that he is effectively claiming that he was denied his right to counsel.

       The trial court charged the jury on reasonable doubt as follows: “A reasonable doubt means this. It is a doubt for which a person can give a valid reason. The burden of proving his guilt beyond a reasonable doubt requires the state to produce sufficient evidence to create in your mind a strong and abiding conviction of the guilt of the accused. In other words, it is the law that the evidence must be so sufficient that it would leave no room in your mind for any reasonable hypothesis of the innocence of the accused.
      “A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise or speculation, conjecture or an imaginary doubt, nor a doubt which is raised by the ingenuity of counsel or by a juror and unwarranted by the evidence. Nor is it a doubt prompted by sympathy for the accused. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or lack of evidence.” (Emphasis added.)

       The First Circuit has examined language similar to the language challenged in the present case and has yet to find that such language constitutes reversible error where it is included in an otherwise proper instruction. United States v. Barnes, 890 F.2d 545, 553-54 (1st Cir. 1989); United States v. Glantz, 847 F.2d 1, 11 (1st Cir. 1988); United States v. Glenn, 828 F.2d 855, 861 (1st Cir. 1987).


author: Heiman, J.

text:
    John F. Bartley, Jr. v. Patricia A. Bartley
    (10292)
    Foti, Heiman and Freedman, Js.
    Argued January 13
    decision released March 24, 1992

      Michael J. Devlin, for the appellant (plaintiff).

      Robert B. Katz, for the appellee (defendant).
   Heiman, J.

The plaintiff father appeals from the trial court’s granting of the defendant’s motion to modify child support. He claims that the trial court improperly granted the motion because (1) the defendant failed to prove a substantial change in circumstances and (2) sufficient deviation criteria existed to justify a departure from the family support guidelines.

The following facts are pertinent to the resolution of this appeal. The marriage between the plaintiff, John F. Bartley, Jr., and the defendant, Patricia A. Bart-ley, was dissolved on December 1, 1987. The parties were awarded joint custody of their three minor children, with the children having their principal place of residence with the defendant. The court further ordered the plaintiff to pay $80 per week for the support of the oldest child, and $135 per week for the support of each of the two younger children. Thus, the plaintiff’s child support obligation totaled $350 per week. The trial court also issued other orders not pertinent to this appeal.

The eldest child reached the age of majority on August 30, 1990. On November 9,1990, the defendant filed a motion to increase the child support order based on a substantial change in circumstances. The trial court held a hearing on the motion to modify and the parties were notified on April 24, 1991, that the plaintiff’s child support obligation was modified as follows: “support in accord with guidelines $445.”

On April 30, 1991, the plaintiff filed a motion requesting reargument on and reconsideration of the defendant’s motion to modify. The motion set forth neither a factual nor a legal basis in support of the requests. Although no hearing on the motion for reargument and for reconsideration was held, the trial court issued the following order on May 17, 1991: “Granted. Support modified to $375 per week, inasmuch as plaintiff educating child and defendant has additional income.”

The plaintiff appeals from the trial court’s decision granting the defendant’s motion to modify the support order. Neither party has contested the trial court’s reconsideration and modification of that order without a hearing. Nonetheless, the trial court’s failure to afford a hearing on the motion to reargue and for reconsideration deprived the parties of their due process rights to be heard. As such, the interests of justice require that we review, under the plain error doctrine, the trial court’s failure to hold a hearing. See Practice Book § 4185; Stoni v. Wasicki, 179 Conn. 372, 377, 426 A.2d 774 (1979).

In his April 30, 1991 motion, the plaintiff simply requested reargument on and reconsideration of the trial court’s order increasing his child support payments. The plaintiff advanced no particular grounds in support of the motion. The language of the trial court’s order on the motion to reargue and for reconsideration suggests, however, that it concluded that reconsideration of its April 24, 1991 order was required based on a factual determination that it reached sometime after April 24, 1991. The parties were not afforded a hearing to contest the factual predicate on which the court apparently acted or to overcome those facts with countervailing ones.

It is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose property rights will be affected by a court’s decision are entitled to be heard “ ‘at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 [1965].’ ” Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 376-77, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); see also Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 574-75, 409 A.2d 1020 (1979). Because the parties were not afforded an opportunity to subject the factual determinations underlying the trial court’s decision on the motion to reargue and for reconsideration to “the crucible of meaningful adversarial testing”; United States v. Cronic, 466 U.S. 648, 656, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); the order cannot be sustained. See Roundhouse Construction Corporation v. Telesco Masons Supplies Co., supra, 385.

We recognize that plain error review must be undertaken sparingly. Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983). In this case, however, the absence of a hearing created a manifest injustice amounting to plain error. See Practice Book § 4185; Small v. South Norwalk Savings Bank, 205 Conn. 751, 760, 535 A.2d 1292 (1988); Valley v. Fazzina, 187 Conn. 423, 428, 446 A.2d 1068 (1982). As a result, the trial court’s action on the plaintiff’s motion to reargue and for reconsideration cannot stand.

In addition, we must imply from the trial court’s order on the motion to reargue and for reconsideration that its decision on the motion to modify was based on an incomplete analysis of the pertinent facts. As such, its decision on the original motion to modify also cannot stand.

The orders granting the motion to modify child support and granting the motion to reargue and for reconsideration are reversed and the case is remanded for a new hearing on the defendant’s motion to modify.

In this opinion the other judges concurred.

       At oral argument, the plaintiff explicitly abandoned his third claim that the family support guidelines do not apply to judgments rendered prior to the enactment of the guidelines. See Turner v. Turner, 219 Conn. 703, 718, 595 A.2d 297 (1991).

       The plaintiff also filed a motion seeking reductions in his child support and alimony payments. The court reduced the plaintiff’s alimony payments from $175 per week to $125 per week. The trial court’s modification of the plaintiff’s alimony payments is not at issue in this appeal.


author: Daly, J.

text:
    W. G. Glenney Company v. Richard Bianco et al.
    (10102)
    Daly, Landau and Heiman, Js.
    Argued December 4, 1991
    decision released March 24, 1992

      Thomas E. Minogue, Jr., with whom, on the brief, were Jonathan D. Elliot and Neal L. Moskow, for the appellants (defendants).

      Joseph Glass, for the appellee (plaintiff).
   Daly, J.

The defendants, Richard and Joan Bianco, appeal from the trial court’s judgment of strict foreclosure of a mechanic’s lien on their house. The defendants claim that the trial court improperly (1) rendered judgment without joining the general contractor as a party to this action, (2) found that the defendants prevented the general contractor from completing performance, and (3) refused to apportion the debt owed by the defendants among all claimants having an interest in the debt as required by General Statutes § 49-36 (b).

The court found the following facts. The defendants entered into a written agreement with the general contractor for the construction of their house. The plaintiff subcontractor supplied materials to the general contractor that were used in the construction of the house. A dispute arose between the defendants and the general contractor that was ultimately submitted to arbitration. The arbitrator ruled that the general contractor was entitled to $101,000 for the work done at the defendants’ residence. The award stated that the general contractor was to obtain all necessary approvals and permits from the town of Greenwich. The award further required that the $101,000 was to be placed in an escrow account to be distributed to those parties that were owed money for supplies or services used by the general contractor on the defendants’ residence.

At the time of trial, the general contractor had failed to obtain a certificate of occupancy from the town of Greenwich. The town would not issue the certificate of occupancy until a hard-wired smoke detector was installed in one of the bedrooms as required by the state building code. The court found that the defendants prevented the general contractor from returning to install the smoke detector. The court concluded that the debt owed to the general contractor by the defendants was now due, thus allowing the plaintiff to foreclose on the mechanic’s lien.

The court determined that the plaintiff was entitled to $55,185.81 for the supplies provided to the general contractor. The defendants then sought apportionment of this payment pursuant to General Statutes § 49-36 (b). The court denied the defendants’ application for apportionment.

I

The resolution of the issues in this case is governed by the statutory provisions concerning mechanic’s liens set forth in General Statutes §§ 49-33 through 49-36. The mechanic’s lien statute is “remedial in nature, designed to furnish security for a contractor’s labor and materials.” Rene Dry Wall Co. v. Strawberry Hill Associates, 182 Conn. 568, 573, 438 A.2d 774 (1980). Under Connecticut law, a subcontractor’s right to enforce a mechanic’s hen against a property owner is based on the doctrine of subrogation. Seaman v. Climate Control Corporation, 181 Conn. 592, 601-602, 436 A.2d 271 (1980). The theory of subrogation allows the plaintiff to recover only to the extent the general contractor could recover from the defendants. The mechanic’s lien held by the plaintiff did not exceed the amount owed by the defendants to the general contractor for performance of the job as required by § 49-33.

The defendants challenge for the first time on appeal the plaintiff’s failure to join the general contractor. The defendants argue that the general contractor was an “indispensable party” the absence of which deprived the court of authority to render its judgment. The defendants never filed a motion to strike the plaintiff’s complaint for nonjoinder of a party as required by Practice Book § 198. The defendants are not challenging the validity of the plaintiff’s lien.

There is some dispute as to whether the defendants waived reviewability of this claim. Practice Book § 198 provides that “the exclusive remedy for nonjoinder of parties is by motion to strike.” Our Supreme Court has held that “[t]his exclusive remedy applies to nonjoinder of indispensable parties.” George v. St. Ann’s Church, 182 Conn. 322, 325, 438 A.2d 97 (1980). Nonjoinder of a party is not a jurisdictional issue because “General Statutes § 52-108 and Practice Book § 100 both explicitly provide that nonjoinder does not defeat an action.” DeRosa v. DeRosa, 22 Conn. App. 114, 117, 575 A.2d 713 (1990). In DeRosa, we refused to review the claim that the trial court lacked jurisdiction in an action to partition property because of nonjoinder of the administrator of the owner’s estate where the appellant did not file a motion to strike. Relying on George v. St. Ann’s Church, supra, this court refused to review a party’s claim that a corporation was an indispensable party where the party did not attempt to strike the complaint because of nonjoinder of parties. Bowman v. Williams, 5 Conn. App. 235, 238, 497 A.2d 1015 (1985), cert. dismissed, 201 Conn. 366, 516 A.2d 1351 (1986). Our Supreme Court, in its dismissal of the appeal in Bowman v. Williams, supra, 201 Conn. 367 n.1, noted that its decision did not constitute an endorsement of the finding that nonjoinder of an indispensable party was unreviewable when the party failed to strike the complaint.

This court, however, recently reviewed a claim of nonjoinder of an indispensable party despite the appellant’s failure to move to strike the complaint. Gaudio v. Gaudio, 23 Conn. App. 287, 305-306, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). The plaintiff in Gaudio alleged that her husband fraudulently transferred corporate stock to the defendant. The trial court found that it was a fraudulent conveyance and ordered the defendant to return the outstanding corporate stock. The defendant claimed that an alleged owner of the corporate stock had to be joined as a party to dispose of the fraudulent conveyance claim properly. Id., 304-305. The plaintiff argued that because there was no motion to strike the fraudulent conveyance claim, this court could not review it. Id., 305.

In Gaudio, this court agreed with the defendant and reviewed the claim because, if the party that was not joined truly was an indispensable party, the action could not "be disposed of properly on its merits . . . .’’Id. Therefore, despite the absence of a motion to strike, the claim of nonjoinder of an indispensable party was not waived on appeal. Id. A party is defined as indispensable if its interest in the case is such that a final judgment cannot be entered without either affecting the party’s interest or leaving the case in such condition that its final resolution may be inconsistent with equity and good conscience. Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983). After reviewing the evidence in Gaudio v. Gaudio, supra, we concluded that the case could be properly disposed of because the alleged stock owner did not in fact purchase any of the corporate stock. Because this person did not own any stock, the action could be disposed of without affecting his interest, thus, he was not an indispensable party. Id., 306-307.

We believe that because of the definition of indispensable party and its relation to the proper disposition of an action, it is necessary for us to review the defendants’ claim even though they did not move to strike the plaintiff’s complaint. The defendants argue that the general contractor is an indispensable party because they could be subject to paying both the general contractor and the plaintiff for the same expenses. Therefore, the final resolution of this case would be inconsistent with equity if they have to pay both the general contractor and the subcontractor for the same work. Their claim is based on Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 198, 286 A.2d 308 (1971), where the court stated that “the general contractor should be made a party to an action for foreclosure of a subcontractor’s lien where the amount due the general contractor is a material issue.” We note however, that the court in Jones Destruction, Inc., characterized the general contractor as a “necessary party” and not an indispensable party. Id.

In the present case, the amount due the general contractor is not in dispute. The arbitration award established that the defendants owed the general contractor $101,000 for the work done on their house. The dispute between the defendants and the general contractor concerns the completion of the job. The court focused on the language of the arbitration award in determining that the amount due had already been established. According to this language, the payment of $101,000 constituted “full and final payment for work completed by” the general contractor. Although the court reasoned that the above language established the existence of a debt owed by the defendants to the general contractor, it deferred payment until certain documents, including the certificate of occupancy, were obtained by the general contractor.

The arbitration award also stated that the $101,000 was to be held in escrow “with the understanding that these funds will immediately be used to pay subcontractors and materialmen owed money on account of work done at the [defendants’] residence” for the general contractor. This fund was created for the benefit of the subcontractors who worked for the general contractor. Payment by the defendants to the plaintiff will reduce the amount owed to the general contractor. The defendants will not be subject to double payments because their payments will decrease the fund established for the benefit of the subcontractors.

Additionally, the general contractor was not an indispensable party because General Statutes § 49-33 (f) protects the defendants from being liable to both the plaintiff and the general contractor for the same services. Section 49-33 (f) allows the court to diminish the amount secured by a mechanic’s lien in favor of a subcontractor “by (1) the reasonable cost of satisfactory completion of the contract, (2) any damages for which the general contractor might be liable to the owner, and (3) any bona fide payments that were made by the owner before it received notice of the lien.” Chris Construction Co. v. May Centers, Inc., 23 Conn. App. 453, 456, 581 A.2d 748 (1990). In Chris Construction Co., the general contractor was not a party to that action. This fact further supports our conclusion that the general contractor is not an indispensable party in an action to foreclose a mechanic’s lien by a subcontractor against the owner of the property.

The foreclosure and payment of the mechanic’s lien will not affect the general contractor’s interest because the general contractor was required to pay the plaintiff for those supplies once it received payment from the defendants. The amount owed to the plaintiff is severable from the total amount owed to the general contractor by the defendants. Therefore, we hold that the general contractor was not an indispensable party that must have been joined in order to render a valid final judgment.

II

The defendants challenge the court’s finding that they prevented the general contractor from completing the job. The court found that the general contractor had to install only a smoke detector to complete performance and to obtain a certificate of occupancy. The court also found that the defendants prevented the general contractor from entering their premises to install the smoke detector. The defendants argue that there was no proof that they prevented the general contractor from finishing the job.

The trial court’s finding that the defendants prevented the general contractor from completing performance was a disputed question of fact. “The resolution of conflicting factual claims falls within the province of the trial court. . . . ‘The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . .’We cannot retry the facts or pass on the credibility of the witness[es].” (Citations omitted.) Nor’easter Group Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988).

At trial, the president of the general contractor’s construction company testified that the defendants told him not to return to the premises to install the smoke detector. The attorney representing the general contractor’s construction company also testified that the defendants told the general contractor not to return to the premises. One of the defendants testified that they did not prohibit the general contractor from returning to complete the job. The trial court resolved this conflict in favor of the plaintiff. Because there was evidence supporting this finding, we cannot hold that it was clearly erroneous.

Ill

The defendants’ last claim involves the court’s refusal to apportion the debt found due the plaintiff pursuant to General Statutes § 49-36 (b). The defendants assert that when judgment was rendered for the plaintiff there were also claims against the defendants for approximately $50,700. They argue that these claims combined with the plaintiff’s claim exceeded the $101,000 debt owed to the general contractor. Because the claims exceeded the contract price, the defendants sought apportionment of payment among the claimants having liens on the residence in proportion to the amount of debts due each claimant. The court denied the defendants’ application for apportionment.

The court’s determination that the claims against the defendants’ property did not exceed the $101,000 debt for the work done on the defendants’ residence was a factual finding. The court’s determination must stand unless we find that it was clearly erroneous. Our review of the record on the apportionment hearing reveals an inconsistency in the defendants’ brief as to the amount of claims against the defendants. In their brief, the defendants claim that at the time of the hearing they faced a claim of approximately $44,000 from L & M Company related to work done on their residence. At the apportionment hearing, counsel for the defendants acknowledged that, in fact, the claim had been settled for $18,000. Thus, the claim reduced the debt owed by the defendants from $101,000 to $83,000. Therefore, at the time of the apportionment hearing, because of the defendants’ negotiation, the original lien of $44,000 was reduced to $18,000 and was paid by the defendants. The remaining fund of $83,000 exceeded the sum of the plaintiff’s lien for $55,185.81 and another lien for approximately $6700. The defendants’ brief failed to address the effect of their settlement of the lien on the court’s decision not to apportion the remaining claims. On the basis of the evidence presented to the trial court, we cannot find that its decision denying apportionment of the claims was clearly erroneous. The defendants did not establish that the claims against them exceeded the debt owed to the general contractor. Therefore, the trial court was not obligated by § 49-36 (b) to apportion the claims pro rata.

The judgment is affirmed.

In this opinion the other judges concurred.

       A necessary party is a person who has an interest in the outcome of the case and ought to be a party but the interest is separable from the parties’ interest such that the court can render judgment without affecting the rights of the person. Sturman v. Socha, 191 Conn. 1, 6-7, 463 A.2d 527 (1983). The definitions of indispensable and necessary parties are similar and in practice it is difficult to distinguish between them. Id., 6.

       General Statutes § 49-33 (f) provides: “Any such subcontractor shall be subrogated to the rights of the person through whom the subcontractor claims, except that the subcontractor shall have a mechanic’s lien or right to claim a mechanic’s lien in the event of any default by that person subject to the provisions of sections 49-34,49-35 and 49-36, provided the total of such lien or liens shall not attach to any building or its appurtenances, or to the land on which the same stands or to any lot or to any plot of land, to a greater amount in the whole than the amount by which the contract price between the owner and the person through whom the subcontractor claims exceeds the reasonable cost, either estimated or actual, as the case may be, of satisfactory completion of the contract plus any damages resulting from such default for which that person might be held liable to the owner and all bona fide payments, as defined in section 49-36, made by the owner before receiving notice of such lien or liens.”

       General Statutes § 49-36 (b) provides: “When there are several claimants and the amount of their united claims exceeds that price, the claimants, other than the original contractor, shall be first paid in full, if the amount of that price is sufficient for that purpose; but, if not, it shall be apportioned among the claimants having the liens, other than the original contractor, in proportion to the amount of the debts due them respectively; and the court having jurisdiction thereof, on application of any person interested, may direct the manner in which the claim shall be paid.”