author: SCHALLER, J.

text:
    ANNE E. HARHAY v. BOARD OF EDUCATION OF THE TOWN OF ELLINGTON
    (15071)
    Landau, Schaller and Spear, Js.
    Argued October 1, 1996
    officially released February 4, 1997

      Noah H. Starkey, for the appellant (plaintiff).

      Frederick L. Dorsey, with whom, on the brief, was Stephen J. Courtney, for the appellee (defendant).
   SCHALLER, J.

The plaintiff, Anne E. Harhay, a tenured teacher employed by the defendant Ellington board of education (board) appeals from the judgment of the trial court dismissing her appeal from the defendant’s decision to terminate her employment. The plaintiff claims that the court improperly dismissed her appeal by determining (1) that the time requirements set forth in General Statutes § 10-151 (d) are directory rather than mandatory and (2) that the impartial hearing panel properly excluded evidence as irrelevant on claims that the panel found it lacked the authority to decide pursuant to General Statutes § 10-151 (d) (5). We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. The plaintiff was employed by the board as a certified art teacher for grades prekindergarten through twelve. On April 14, 1993, the board voted to eliminate two elementary art teacher positions, one of which was occupied by the plaintiff. By a letter dated August 11, 1993, the superintendent of the Ellington public schools informed the plaintiff that he intended to recommend that the board place the termination of her contract under consideration at an upcoming hearing. In this letter, he also informed the plaintiff of her rights under § 10-151, including her right to request a statement of reasons for the termination, her right to request a hearing, and her right to be represented by counsel. Pursuant to § 10-151 (d), the plaintiff requested, and the board provided, a written statement of its reasons for the decision to terminate her employment. In its letter, the board stated it was terminating the plaintiffs position (1) because the position that the plaintiff occupied was eliminated and no other position for which the plaintiff was certified existed in the school system, and (2) because of other due and sufficient cause including budgetary considerations and administrative recommendations consistent with the board’s reduction in force plan based on an analysis of curriculum and staffing needs.

By a letter dated September 7, 1993, the plaintiff requested a hearing before an impartial panel, pursuant to § 10-151 (d). Because of a lack of communication between the plaintiffs attorney and the board’s attorney, the parties did not choose their respective panel members until October, 1993. After the parties selected their panel members, the panel members designated a third member as chairman.

In December, 1993, the chairman of the three member panel informed the parties that the termination hearing would be held on January 4, 1994. The hearing took place on that date. On March 8, 1994, the panel recommended, in a two-to-one decision, that the board terminate the plaintiffs employment contract. A majority of the panel also concluded that the plaintiffs employment was properly terminated under the provisions of § 10-151 (d). At a meeting held March 16, 1994, the school board voted to accept the panel’s recommendation, effective March 17, 1994. The board gave the plaintiff written notice of its decision. Pursuant to § 10-151 (f), the plaintiff appealed to the Superior Court from the board’s decision. The trial court affirmed the board’s decision and dismissed the plaintiffs appeal. This appeal followed. .

I

The plaintiff first claims that the trial court improperly found that the time periods set forth in § 10-151 (d) with respect to the commencement of the hearing and with respect to the recommendation of the hearing panel are directory in nature rather than mandatory. We agree with the trial court.

We acknowledge first that our courts have held that the procedural requirements of § 10-151 (d) must be strictly followed. Petrovich v. Board of Education, 189 Conn. 585, 590, 457 A.2d 315 (1983); LaCroix v. Board of Education, 2 Conn. App. 36, 40, 475 A.2d 1110 (1984). In Petrovich and LaCroix, our courts held that failure of the board to provide a tenured teacher with written notice, prior to her termination, that termination of her contract was “under consideration” was error. Petrovich v. Board of Education, supra, 589-90; LaCroix v. Board of Education, supra, 40-41. In the present case, the board did properly notify the plaintiff, prior to her termination, that termination of her contract was under consideration. It is undisputed, however, that the board did not strictly comply with the time requirements of § 10-151 (d) with respect to the commencement of the hearing and with respect to the recommendation of the hearing panel. Whether the board’s noncompliance is improper depends on whether these particular statutory provisions are directory or mandatory.

“Well established principles of statutory construction govern our determination of whether a statutory time period is mandatory or directory. Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994).

We begin our analysis with the language of § 10-151 (d) which provides in pertinent part: “Within twenty days after receipt of written notice by the board of education that contract termination is under consideration, such teacher may file with such board a written request for a hearing. . . . Such hearing shall commence within fifteen days after receipt of such request, unless the parties mutually agree to an extension .... Within ninety days after receipt of the request for a hearing, the impartial hearing panel . . . unless the parties mutually agree to an extension, shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher. . . .”

We note first that “the use of the word ‘shall,’ [in § 10-151 (d)] though significant, does not invariably establish a mandatory duty.” Oller v. Oller-Chiang, 230 Conn. 828, 838, 646 A.2d 822 (1994). The more significant consideration in our determination whether a provision is mandatory or directoiy “is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatoiy. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. . . . Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply. . . .A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision.” (Citation omitted; internal quotation marks omitted.) Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995).

In the present case, the statutory provisions of § 10-151 (d) concerning the time periods for the commencement of the hearing and the recommendation of the hearing panel are designed to secure order, system and dispatch in the proceeding. These provisions are stated in affirmative terms unaccompanied by negative words and prescribe what is to be done without providing a penalty for a failure to comply. Significantly, these statutory time periods are not absolute but, instead, are specifically modifiable by the parties. In fact, in this case, although the parties did not reach an explicit agreement to extend the time periods, their mutual delay in choosing their respective panel members, and their agreement, without objection, to hold the hearing in January, 1996, almost four months after the plaintiff made her request for a hearing, implies that the parties had agreed to an extension. We conclude, therefore, that because these statutory provisions relate to a matter of convenience and do not invalidate action upon a failure to comply, these time periods are directory.

II

The plaintiff next claims that the trial court improperly found that the impartial panel properly excluded evidence as irrelevant on claims that the panel found it lacked the authority to decide pursuant to § 10-151 (d) (5).

During the plaintiffs hearing before the three member impartial panel, it was determined that, due to budgetary considerations, the board had voted to eliminate two elementary art positions, one of which was occupied by the plaintiff. The effect of these budgetary cuts meant that for the 1993-94 school year the board would continue to employ a full-time art teacher for grades six through nine, but that it would not employ any full-time art teachers for grades kindergarten through five. The plaintiff attempted to introduce evidence to show that, because the board eliminated the art teaching positions for grades kindergarten through five, the board was in violation of General Statutes §§ 10-4a and 10-16b (a) by failing to implement the educational interests of the state. The panel found that the plaintiffs evidence on this claim was irrelevant because an impartial hearing panel lacks the authority to determine whether the board’s actions were in violation of §§ 10-4a and 10-16b (a). It determined that it could not review the board’s policy decision to eliminate the two elementary teaching positions because panel hearings are limited to a determination of (1) whether the position was eliminated, and (2) whether there is a position in the school system for which the teacher is qualified.

In her appeal to the Superior Court, the plaintiff asserted, based on Tomlinson v. Board of Education, 226 Conn. 704, 728-732, 629 A.2d 333 (1993), that the panel should have allowed her to introduce evidence on the issue of whether the board violated §§ 10-4a and 10-16b (a) when it eliminated her teaching position. The trial court disagreed, stating that “the holding in Tomlinson v. Board of Education, supra, [704] merely requires that the hearing officer make findings on the public policy claim.” The trial court determined that the panel satisfied Tomlinson because the panel made a finding that evidence as to whether the board had failed to implement the educational interests of the state was irrelevant because that determination was beyond its statutory authority. See id., 728 (“hearing officer can legally exclude any evidence that is irrelevant”). We agree with the trial court.

“General Statutes § 10-151 (d) (5) provides a discharge procedure for tenured teachers when the position held by the teacher is eliminated. . . . [T]he statute requires that the board satisfy a two part test for a lawful termination of a tenured teacher upon elimination of a position. First, the position must be eliminated. Second, the teacher must not be qualified to be appointed to any position held by a teacher with less service as provided for in the collective bargaining agreement or, in the absence of a collective bargaining agreement, as provided for in a written policy of the board.” McKee v. Board of Education, 32 Conn. App. 6, 10-11, 627 A.2d 951 (1993). In the present case, both parts of the McKee test are satisfied. The plaintiff had the opportunity at the impartial panel hearing to introduce evidence to show that the teaching position had not actually been eliminated, and that she was qualified for appointment to another teaching position. She also had the opportunity, on appeal, to show that the board acted illegally in terminating her position. The plaintiff, thus, was afforded full due process rights as provided in § 10-151.

Wide discretion is customarily vested in school boards with regard to employment of teachers. See General Statutes §§ 10-151 and 10-220. When that discretion is exercised in good faith, the courts should not interfere. See Conley v. Board of Education, 143 Conn. 488, 495, 123 A.2d 747 (1956). In the present case, the plaintiff has not demonstrated that the board abused its discretion or acted in bad faith. Accordingly, the trial court properly upheld the board’s discretionary decision to terminate the plaintiffs teaching contract.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 10-151 (d) provides in relevant part: “The contract of employment of a teacher who has attained tenure . . . may be terminated at any time for ... (5) elimination of the position to which the teacher was appointed ... if no other position exists to which such teacher may be appointed if qualified . . . .”

       A panel’s recommendation is merely advisory and the board has discretion to accept or reject the hearing panel’s recommendation. Catino v. Board of Education, 174 Conn. 414, 417, 389 A.2d 754 (1978).

       In a letter dated March 16,1994, the superintendent of schools informed the plaintiff: “This is to advise you that at a meeting held on March 16,1994, the Ellington Board of Education, in accordance with the attached decision and for the reasons noted therein, voted to accept the impartial hearing panel’s majority recommendation to terminate your contract of employment effective March 17, 1994.”

       The issue whether the time periods set forth in § 10-151 (d) regarding the commencement of the hearing and the recommendation of the hearing panel are mandatory or directory has not been decided by this court or our Supreme Court.

       There is evidence in the record that the plaintiff is partially responsible for the delay in the commencement of the hearing. Also, notably, the plaintiff did not suffer prejudice due to any delays because she remained employed by the board until it made its final determination in March, 1994. We also note that, because the impartial panel hearing took place more than four months from the time the plaintiff had requested it, it was impossible for the impartial hearing panel to submit its written findings and recommendation to the board “within ninety days after receipt of the request for [ the] hearing." (Emphasis added.) General Statutes § 10-151 (d).

       General Statutes § 10-4b provides the statutory procedure for a party seeking to malee a complaint that a local or regional board has failed to implement the educational interests of the state.

       The trial court also found that the plaintiff lacked standing to raise these public policy claims. Because we agree with the trial court that these issues are irrelevant before the impartial hearing panel, we need not address the issue of whether the plaintiff had standing to bring these claims.


source: Caselaw Access Project

author: HEIMAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SUSAN TANGARI
    (14967)
    Foti, Heiman and Stoughton, Js.
    Argued November 5, 1996
    officially released February 4, 1997

      Robert P. Pickering, with whom, on the brief, was F. Mac Buckley, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, Mark A. Stabile, supervisory assistant state’s attorney, and Roger R. Caridad, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a court trial, of larceny in the first degree in violation of General Statutes § 53a-122 (a) (4). The defendant was found not guilty of a charge of larceny in the second degree in violation of General Statutes § 53a-123. The defendant asserts that her conviction is fatally flawed because the trial court (1) ineffectively canvassed her when she withdrew her claim for a jury trial and elected to be tried by the court and (2) found her guilty of larceny in the first degree when the evidence was insufficient to establish that she possessed the requisite intent to com-mil that crime. We are unpersuaded and affirm the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal. The defendant was employed as the assistant tax collector for the town of Ashford beginning June 2,1988. She had previously worked as an assistant bookkeeper for the town of Coventry and was familiar with municipal finance. As assistant tax collector, the defendant, along with the tax collector, collected taxes remitted to the town by its taxpayers, gave the proper receipts for payments, validated the rate bills for the paid taxes, deposited the tax money received, balanced the rate bills with the receipts of tax payments, and reported the collection of taxes to the town treasurer.

Maryann Simpson was elected tax collector of Ash-ford and took office on November 18, 1991. At the time that she took over the office of tax collector, she requested that an exit audit be conducted. An exit audit was conducted by Gary Houser and Stan Cusick of the accounting firm of Cole, Frago, Cusick, Chestler and Company. When Houser went to the office of the tax collector on November 18 or 19, 1991, he discovered that the tax collector’s rate book, the detailed record of the tax collector’s actions, had not been posted after July 2, 1991. The auditors determined that the sum of $2420.75 was missing and that Ashford had suffered a financial loss in excess of $2000.

On the deposit slips prepared by the defendant for the tax collector between February 8 and March 5,1991, only $4.39 was identified as cash. The remainder of the deposits consisted of checks. Several checks included in these deposits represented alleged payments for taxes for which no validated tax bill could be found. A validated tax bill is a form of receipt showing the payment of the tax as indicated on the rate or tax bill.

During this period of time, approximately $2000 in cash was paid to the town by way of tax payments. The defendant received those payments directly from taxpayers in cash and validated rate bills for the payments. Many of the notations on the validated rate bills are in the handwriting of the defendant. Moreover, the defendant prepared all of the deposits during this period of time, made regular reports to the town treasurer that conformed to the amount shown on the deposit slips she prepared, and had unrestricted access to the office cash register. Many taxpayers who had made payments to the defendant were reported as being delinquent.

Robert Brousseau, an employee of the division of criminal justice, conducted a review of the tax collector’s records for the period February 11 to March 5, 1991. During this review, Brousseau examined the rate bills, register tapes, reports to the treasurer and bank photocopies of deposit records. He examined five consecutive deposits collectively and also analyzed a deposit for May 3, 1991. He determined that in the five consecutive deposits there were checks that pertained to validated rate bills for which there was no evidence that payments had been made. Moreover, there were checks listed in the deposits that did not correspond to any validated rate bills. Additionally, in his examination of the deposit of May 3, 1991, he determined that the deposit showed cash of about $1800, but that there were not sufficient rate bills that had not been paid by check to support that amount of cash.

On the basis of his review, Brousseau determined that the defendant had perpetrated a lapping scheme in the tax collector’s office. Brousseau explained that the defendant rotated individual checks and money orders in order to conceal her taking of cash. Brousseau determined that the total deposits should have been in the amount of $41,700 and that the deposits totaled only $38,355. Thus, he determined that Ashford had lost $3345.

The defendant testified in her own behalf. She testified that she had never taken money that belonged to Ashford and that any missing money was taken by the former tax collector, Robin LaRosa.

The defendant asserted that in late 1989 she had observed LaRosa manipulating checks being run through the cash register. She testified that LaRosa was collecting statutory fees for tax warrants issued and that when a check came into the tax office to make a payment or to make a partial payment on a tax warrant, the fees would be included in the payment. It was the defendant’s claim that LaRosa would put the check into the register and take cash from the register to cover the amount of her fees. She further claimed that when there was insufficient cash to cover the fees, LaRosa would take checks or money orders of sufficient amount to cover the unpaid portion of the fees. Then, when cash came in, LaRosa would take the cash and replace it with the checks or money orders that she had previously removed. The defendant also testified that LaRosa often cashed paychecks and personal checks from the cash drawer.

On the basis of the evidence before it, the trial court found the defendant guilty of larceny in the first degree and not guilty of larceny in the second degree.

I

The defendant first claims that the trial court failed to canvass her properly at the time that she withdrew her election to be tried by the jury and elected to be tried by the court. The defendant posits that this failure to canvass properly left the trial court without the ability to determine whether her waiver of her right to a jury trial was knowing, intelligent and voluntary. The defendant asserts that this violated her fundamental right to a jury trial, guaranteed by the United States and Connecticut constitutions. We do not agree.

Certain additional facts are necessary to an understanding of our resolution of this issue. On November 10, 1992, the defendant was presented at the Superior Court in geographical area eleven, on a charge of larceny in the first degree. The court gave an advisement of rights to all persons present, including the defendant, that included the fact that the defendant was entitled to a trial by jury. The court ordered the defendant’s case transferred to the Putnam Superior Court. On November 20, 1992, the defendant appeared before the Putnam Superior Court, pleaded not guilty and elected to be tried by a jury.

On April 30, 1993, the defendant and her counsel appeared before the trial court. Counsel informed the trial court that while the not guilty pleas were to stand, the election for jury trial was to be withdrawn. Defense counsel requested that the matter be set down for trial by the court. After both defense counsel and the state’s attorney had finished making statements to the court concerning the possible exchange of information, the trial court addressed the defendant directly. The trial court asked the defendant whether she had discussed with her attorney the change in election of the method of trial and whether she understood that she was giving up her right to a jury trial. The defendant answered both inquiries affirmatively. Accordingly, the matter was transferred to the court trial list and proceeded before the court without a jury.

The defendant concedes that her present claim was not raised before the trial court and was thus not properly preseived. The defendant seeks review of this claim under the standards of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Since the record is adequate for review and the claim advanced implicates a fundamental constitutional right; see Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); the defendant has satisfied the first two prongs of Golding, and is entitled to a review of her unpreserved claim. See State v. Golding, supra, 239-40.

We first set out the standard of review that applies to claims such as that advanced by the defendant. “The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal [such as in this case], our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book.” (Internal quotation marks omitted.) State v. Groomes, 232 Conn. 455, 474-75, 656 A.2d 646 (1995).

Applying these principles, we conclude that the record supports a determination that the trial court sufficiently complied with the constitutional requirement of advising the defendant that by electing a trial to the court, she was giving up or waiving her right to be tried by a jury. When asked about her decision to waive a jury trial, the defendant confirmed that she had discussed the decision to give up her right to a jury trial -with her counsel and that she understood that by electing a court trial she was giving up her right to a trial by jury.

“The determination of whether there has been an intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” (Internal quotation marks omitted.) State v. Shockley, 188 Conn. 697, 707, 453 A.2d 441 (1982). We first note that this is not a silent record. See State v. Alicea, 41 Conn. App. 47, 54-55, 674 A.2d 468 (1996). Here, the record reflects that the defendant had been advised of her constitutional right to a trial by jury in open court at her arraignment. Further, the defendant was represented by competent counsel and she indicated that she had fully discussed with her attorney her waiver of the right to a juiy trial. Cf. Oppel v. Lopes, 200 Conn. 553, 557, 512 A.2d 888 (1986); State v. Alicea, supra, 56-57. Moreover, the defendant responded affirmatively when asked whether she understood that by electing to be tried by the court, she was giving up her right to a trial by juiy.

We conclude, in light of the totality of the circumstances on the record, that the defendant waived her right to a jury trial and that her waiver was voluntary, knowing and intelligent.

II

Next, the defendant asserts that the evidence produced at trial was insufficient to establish that she possessed the requisite intent to deprive another person of property or to appropriate the same to herself or a third party. See General Statutes § 53a-122 (a) (4) and General Statutes § 53a-119 (6). We are unpersuaded.

“ When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. . . . First, we construe the evidence in the light most favorable to sustaining the [finding]. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trial court] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.’ ” State v. Cintron, 39 Conn. App. 110, 118, 665 A.2d 95 (1995).

The trial court articulated on the record the factual findings that led it to find the defendant guilty of the charge of larceny in the first degree. The trial court found that the town lost $3345 in cash receipts. It also found that many taxpayers identified the defendant as the person to whom cash payments were made and who had validated their rate bills. The trial court further determined from the evidence that the defendant prepared all of the deposit slips and reports to the town treasurer during the period when the cash was taken. Moreover, the court determined that the reports conformed to the amounts shown on the deposit slips as a result of a lapping scheme carried out by the defendant.

The trial court further found that the defendant’s testimony that her supervisor routinely withdrew cash from the register in payment of certain statutory fees and to cash paychecks and personal checks lacked credibility. The evidence disclosed that during the period in question no paychecks or personal checks of the tax collector were reflected in the deposits and that the statutory fees involved were nominal.

The trial court found that the circumstantial evidence produced and the reasonable inferences drawn therefrom proved the defendant guilty of the crime of larceny in the first degree by defrauding a public community of a sum in excess of $2000.

“In applying this analytical framework to the circumstances before us, we acknowledge that it appears that the defendant’s conviction is premised, in large measure, on circumstantial evidence. [I]t is of no moment that much of the relevant evidence may be circumstantial. . . . [T]here is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Haggood, 36 Conn. App. 753, 760-61, 653 A.2d 216, cert3. denied, 233 Conn. 904, 657 A.2d 644 (1995).

“We must also acknowledge in our review of the evidence that it is the right and the duty of the [fact finder] to draw reasonable and logical inferences from the evidence. . . . Moreover, the [fact finder] may draw inferences on the basis of facts that it finds as a result of other inferences. . . . [I]n viewing evidence which could yield contrary inferences, the [fact finder] is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the [fact finder’s] function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . We do not sit as [an alternate fact finder] who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the [fact finder’s] opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Citations omitted; internal quotation marks omitted.) Id., 761.

“In considering the evidence introduced in a case, [fact finders] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citation omitted; internal quotation marks omitted.) State v. Patterson, 35 Conn. App. 405, 414, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994); see also State v. Little, 194 Conn. 665, 674, 485 A.2d 913 (1984).

After a careful review of all of the evidence, we conclude that the cumulative effect of the evidence was sufficient to permit the trial court to have found the defendant guilty of the crime of larceny in the first degree. Thus, the defendant’s assertion that the state failed to prove the intent of the defendant to prejudice Ashford by depriving it of property is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-122 (a) provides in pertinent part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.”
      General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . . .
      “(6) Defrauding of public community. A person is guilty of defrauding a public community who (A) authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency which he knows is false; or (B) knowingly accepts the benefits from a claim he knows is false; or (C) as an officer or agent of any public community, with intent to prejudice it, appropriates its property to the use of any person or draws any order upon its treasury or presents or aids in procuring to be allowed any fraudulent claim against such community. For purposes of this subdivision such order or claim shall be deemed to be property. . . .”

       The constitution of the United States, article three, § 2, provides in pertinent part: “The trial of all Crimes, except in Cases of Impeachment, shall be by jury . . . In addition, the sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury . . . .”

       The constitution of Connecticut, article first, § 8, provides in pertinent part: “In all criminal prosecutions, the accused shall have a right ... to a speedy, public trial by an impartial jury. . . .” Moreover, article first, § 19, of the Connecticut constitution provides: “The right of trial by jury shall remain inviolate.”

       The defendant’s counsel’s request to the trial court was as follows: “It’s our intention today to withdraw the claim for a jury trial in this matter, let the not guilty pleas stand and ask that the matter be set down for a court trial . . . .”

       The colloquy between the defendant and the court was as follows:
      “The Court: No problem at all. Friday the 4th. Miss Tangari, you’ve discussed this change thoroughly with your lawyer?
      “The Defendant: Yes.
      “The Court: You understand you’re giving up your right to have a jury trial?
      “The Defendant: Yes.
      “The Court: Transferred then to the court list and continued under the same bond until June 4.”

       While the defendant does not specifically direct us to State v. Golding, supra, 213 Conn. 233, as the source of her authority to seek review, she does direct us to the earlier case of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

       “The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

       We do not discuss separately the defendant’s claim that the action of the trial court violated rights guaranteed to her under the Connecticut constitution. Our Supreme Court has determined that there is “no reason to demand as a constitutional necessity a more elaborate procedure for an effective waiver of the right of jury trial as guaranteed by our state constitution.” State v. Marino, 190 Conn. 639, 646, 462 A.2d 1021 (1983). We are, of course, bound by the decisional law of our Supreme Court. State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994).


text:
    STATE OF CONNECTICUT v. GREGORY MCCLAM
    (15604)
    Heiman, Spear and Freedman, Js.

      Argued November 7, 1996
    officially released February 4, 1997

      Suzanne Zitzer, assistant public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were Michael Dea/rington, state’s attorney, and, on the brief, David, P. Gold, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant, Gregory McClam, appeals from the judgment of conviction, rendered after a trial to a three judge panel, of one count of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the trial court improperly (1) induced a state’s witness to invoke his fifth amendment privilege against self-incrimination regarding any questions about a pending related assault charge, (2) denied his motion for a judgment of acquittal on the charge of murder when the evidence at trial was insufficient to establish beyond a reasonable doubt that the defendant possessed the requisite intent to commit the crime of murder, and (3) determined that there was sufficient evidence at the probable cause hearing to find probable cause that the defendant possessed the requisite intent for the crime of murder. We affirm the judgment of the trial court.

The record and transcripts of the proceedings before the trial court reveal the following facts. At approximately 11 p.m. on March 14,1992, Dwight Binns, Damon Williams, his brother David Williams, Brian McCoy, Warren Murphy and his girlfriend were all at Tipton’s nightclub in Stamford. At the nightclub, McCoy asked Murphy’s girlfriend to dance. A fistfight ensued between McCoy’s friends and Murphy’s friends. The fight was stopped by club security, but started again. Eventually, the nightclub was closed and everyone was asked to leave.

When Murphy returned to his car in the nightclub parking lot, he found the windows broken, the back door bent and a coat missing from the backseat. Murphy assumed that the damage had been inflicted by McCoy and his friends.

Murphy drove to his house in North Haven and called Alan Walker. Walker, accompanied by the defendant and Jimmy Dennis, drove to Murphy’s house and observed the damage to Murphy’s car. Murphy, Walker, the defendant and Dennis all got into Walker’s Honda Accord and drove toward West Haven in an effort to find McCoy and his friends and to finish the fight.

McCoy, the Williams brothers, Binns and George Ortiz were in front of David Williams’ home in West Haven when Murphy and his friends drove by in Walker’s Honda Accord. The two groups stared at each other, but no words were exchanged.

McCoy and his friends got into David Williams’ Hyundai Excel. Binns was driving, McCoy was in the passenger seat and Ortiz, Damon and David Williams were in the backseat. Binns drove to a convenience store and gas station. Murphy and his friends were there buying gas. The defendant got out of the Honda and overheard someone in the Hyundai refer to getting a gun ready. The defendant relayed what he had heard to the occupants of the Honda. The defendant and his friends left the gas station in the Honda and drove toward New Haven. The men in the Hyundai exited the gas station a few seconds later and followed the Honda. As the Hyundai passed the Honda on the left, one of the men in the backseat of the Hyundai pointed a rifle out of the right backseat window toward the Honda. When the Hyundai was two or three car lengths in front of the Honda, the defendant rolled down the front passenger seat window, stuck a nine millimeter gun out of it and fired at least ten bullets at the back of the Hyundai.

David Williams, who was sitting in the backseat of the Hyundai, was shot in the back. Binns drove directly to the hospital, where the victim was pronounced dead.

After the shooting, Murphy and his friends in the Honda drove directly to Walker’s girlfriend’s apartment. From there, they all went home.

At trial, Detective Bennie Smith of the New Haven police department testified that on March 15, 1992, at 4:28 a.m., he found eleven empty shell casings in the vicinity of the shooting. He further testified that ten of the casings were from a nine millimeter gun, and one casing was from a .38 caliber gun. Ira Kanfer, the pathologist who performed the autopsy on the victim, also testified at trial. Kanfer testified that the victim died from a gunshot wound. He explained that the bullet entered the victim’s body through his back and traveled through his right lung into one of the larger vessels in the heart region, causing the victim to bleed to death.

On December 2, 1994, a three judge panel found the defendant guilty of murder. On February 9, 1995, the trial court sentenced the defendant to the custody of the commissioner of correction for a term of thirty-five years. This appeal follows.

I

The defendant first claims that the trial court violated his constitutional right of confrontation by improperly inducing a state’s witness to invoke his fifth amendment privilege against self-incrimination regarding any questions about a pending related assault charge. We disagree.

The defendant raises this issue for the first time on appeal and thus seeks review of this claim under the doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the record is adequate for review and the claim advanced implicates a fundamental constitutional right, the defendant has satisfied the first two prongs of Golding, and is entitled to review of his unpreserved claim.

Certain additional facts are necessary for an understanding of this issue. During the direct examinationof Damon Williams, there was an extended colloquy among the court, the defense counsel and the prosecuting attorney, outside the presence of the witness. The prosecuting attorney brought to the court’s attention that Damon Williams had a pending related assault charge. Approximately eighteen months after the murder, Damon Williams, the brother of the victim, was charged with shooting Warren Murphy. Damon Williams pleaded not guilty to a charge of first degree assault. The court and both counsel agreed that the witness would have a right to invoke his fifth amendment privilege against self-incrimination if asked any questions regarding the facts of the pending assault case.

When Damon Williams returned to the witness stand, the court asked him whether there was a pending first degree assault case in which he was charged with shooting Warren Murphy and whether it was correct that he had pleaded not guilty to that charge. The witness indicated that the court was correct. Next, the court informed the witness that he had a fifth amendment privilege not to answer any questions relating to that pending case and asked the witness if he wanted to assert his fifth amendment privilege. The witness indicated that he did. The prosecuting attorney then asked the witness a series of questions regarding whether he had agreed to testify in this case in exchange for a promise that he would receive a lesser sentence in the pending assault case. The witness indicated that no such agreement had been made.

There is nothing in the record to support the defendant’s claim that the prosecutor and the trial court “improperly induced the witness into silence.” Moreover, during the colloquy among the court and counsel, the trial court determined that any questions as to the facts of the pending case or whether the defendant was guilty of the assault would potentially incriminate the witness. Further, the trial court permitted counsel to question the witness as to whether the pending assault charge in any way affected or motivated the witness’ testimony here. Thus, the record does not substantiate the defendant’s claim that the trial court “improperly gave the witness a blanket right to assert the fifth amendment privilege to all questions relating to the pending assault, without making the required determination that the information sought by the questions truly subjected the witness to incrimination.” We conclude that the trial court did not violate the defendant’s constitutional right of confrontation, and thus the defendant has failed to satisfy the third prong of Golding.

II

Next, the defendant asserts that the trial court improperly denied his motion for a judgment of acquittal on the charge of murder when the evidence at trial was insufficient to establish beyond a reasonable doubt that the defendant possessed the requisite intent to commit the crime of murder. We disagree.

“When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis .... First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom, the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 118, 665 A.2d 95 (1995).

“The specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11). . . . Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . This does not require that each subordinate conclusion established by or inferred from evidence, or even from other inferences, be proven beyond a reasonable doubt because this court has held that a [fact finder’s] factual inferences that support a guilty verdict need only be reasonable. . . . Nevertheless, because intent to cause the death of a person is an element of the crime . . . that intent must be proven beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 257-58, 681 A.2d 922 (1996). “Furthermore, [i]ntent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” (Internal quotation marks omitted.) Id., 257.

Walker, Murphy and the defendant testified at trial that they were driving ar ound in search of McCoy and his friends in order to finish the nightclub fight and to retaliate for the vandalism to Murphy’s car. All of the occupants of the Honda, except the defendant, testified that after the Hyundai passed the Honda, the defendant pulled out a nine millimeter gun, rolled down the passenger seat window, aimed at the Hyundai, which was two or three car lengths in front of the Honda, and fired a number of shots into the back of the Hyundai. The pathologist who performed the autopsy on the victim testified that the victim died of a gunshot wound to the back. Detective Smith testified at trial that a few hours after the shooting he found eleven bullet shell casings in the vicinity of the shooting. “We have stated that [o]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn . . . that there was an intent to kill.” (Internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. 259; State v. Mejia, 233 Conn. 215, 225, 658 A.2d 571 (1995); State v. Stanley, 223 Conn. 674, 680, 613 A.2d 788 (1992).

“ ‘This court does not retry the case or evaluate the credibility of the witnesses.’ ” State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the [trial court] if there is sufficient evidence to support the [trial court’s] verdict.” (Citations omitted; internal quotation marks omitted.) State v. Mejia, supra, 233 Conn. 224.

We conclude that the evidence presented at the defendant’s trial was sufficient to support the trial court’s finding beyond a reasonable doubt that the defendant possessed the requisite intent to kill the victim when he shot him.

Ill

Finally, the defendant claims that there was insufficient evidence presented at the probable cause hearing for the trial court to find that there was probable cause that the defendant possessed the requisite intent to kill required for the offense of murder. He asserts, therefore, that the trial court was without personal jurisdiction to try him for the crime-of murder. We disagree.

“Article first, § 8, of the Connecticut constitution, as amended, provides in part that [n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law. ... In making a finding of probable cause, the trial court must determine whether the evidence offered would warrant a person of reasonable caution to believe that the accused had committed the charged offense. . . . The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear [t]hat there is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992).

The state presented two witnesses at the probable cause hearing, Walker and Binns. Walker offered the following testimony. On the night of March 14-15,1992, Murphy called him and asked him to come to Murphy’s house. Walker called Dennis and the defendant. The defendant left his girlfriend’s apartment with a nine millimeter gun in the waist of his pants. Once at Murphy’s home, all four of these men got into Walker’s Honda and went to find McCoy and his friends in order to retaliate for the nightclub fight. The two groups saw each other at a gas station. McCoy and his friends, who were in a Hyundai, began following Walker and his friends in the Honda. When the Hyundai passed the Honda, Walker saw a shotgun pointed at him from the back window of the Hyundai. Then, the defendant rolled down the passenger seat window of the Honda, stuck out his nine millimeter gun and began shooting at the back of the Hyundai.

Binns testified that on the night of March 14, 1992, he and his friends went to a nightclub in Stamford. Binns explained that at the nightclub one of his friends asked Murphy’s girlfriend to dance and a fight ensued between Binns’ friends and Murphy’s friends. Binns stated that later that night he and his friends were driving around in a Hyundai, following Murphy’s friends, who were in a Honda. Binns testified that after he passed the Honda, someone in the Honda began shooting at the back of the Hyundai and shot the victim in the back. Binns testified that he drove the victim to a hospital and then went to the police station and gave a statement about the shooting. Binns testified that when he arrived at the police station he learned that the victim had died.

As we have already stated in our discussion of the defendant’s second claim, intent to cause death may be inferred from the type of weapon used, the type of wound inflicted and the events leading to and immediately following the death. See State v. Tomasko, supra, 238 Conn. 257. Furthermore, an intent to kill can be inferred merely from the use of a deadly weapon on another person. See id. The evidence presented at the probable cause hearing established that, in retaliation for the nightclub incident, the defendant shot and killed the victim by firing a number of bullets from his nine millimeter gun into the back of the Hyundai, where the victim was seated. Therefore, it was reasonable for the trial court, Quinn, J., to infer that the defendant had the requisite intent to kill the victim.

We conclude that the trial court had jurisdiction to try the defendant because the evidence offered at the probable cause hearing would have warranted a person of reasonable caution to find that the defendant possessed the intent to kill the victim.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       On June 27, 1994, the defendant waived his right to a jury trial, and requested a trial to a three judge panel.

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

       The defendant argues in his reply brief that he adequately preserved this claim. After a review of the relevant trial court transcript, however, we conclude that the defendant did not adequately preserve this claim. See footnote 5.

       The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

       xhe colloquy among counsel and the court was in pertinent part, as follows:
      “[State’s Attorney]: There is a matter we wanted to take up in the witness’ absence. He’s out in the hall. The witness Williams has a pending assault one case here being prosecuted in this courthouse in which the allegations are that in November, 1993—so about eighteen months after the incident . . . Mr. Williams shot Warren Murphy who you are going to be hearing from as well. Mr. Murphy has recovered, but the charge is assault in the first degree. . . . I’ve set forth the nature of the allegations which, to some extent, connect the two cases, but I can’t in good conscience mention to Mr. Williams or his family that he should, nor do I see any reason why he should have to make any admissions under oath, and I would have to tell him 1o lake the fifth. . . .
      “The Court: That would properly entitle you to question about whether the fact that there is this pending case has affected his testimony here and any belief or leaning to or promises or agreement having to do with his testimony. That’s one thing. But that doesn’t get into any questions about the facts of the pending case. You intend to get to that . . . ? And if so . . . w’e obviously run into a problem, fifth amendment problem.
      “[Defense Counsel]: Yes, we do run into a fifth amendment problem. That’s why I raised this question to [the state’s attorney] before directly asking the question of the witness and with regard to putting this before the court. I don't want to be put in a position that I’m asking somebody questions which I know he’s going to take the fifth amendment, but on the other hand ....
      “The Court: Well, in view of the fact that there is no jury here, it is not of the greatest consequence that he invokes his fifth amendment privilege, and I expect that, he will do that. As a matter of fact, if he indicates he’s not going to do that, I wouldn’t let it go ahead without having his lawyer here. Now. that’s what is going to happen. Then what are you going to do?
      “[Defense Counsel]: The important point from my point of view is not so much what he says in a sense, but what the allegation is as to the particulars in that case. It was clearly obviously connected with this case and I think it raises an issue of the witness’ motive for testifying as he does, whatever he says in connection with the case, because it’s clear', I think, the evidence has shown that my client was in a car, the same car that Mr. Murphy was in on the same day that the witness’ brother became the victim of a killing, so I think it raises the question of this witness’ motive for testifying against my client because this other matter involves someone who may have been associated with my client at the time the witness’ brother was shot.

        “The Court: Well, I don’t know that [the state’s attorney] particularly disagrees with you.
      “[State’s Attorney]: The allegations I’m going to bring out through the witness, and the court can consider it for whatever it is worth, I’m just trying to prevent a situation where the witness is caught unaware, so to speak, and is asked questions about a pending case. I think that’s my duty here. I don’t see why his answers are relevant. [Defense counsel] agrees; I don’t see a problem.
      “[Defense Counsel]: I didn’t intend to ask him to admit the facts of this particular case except in so far as I would ask him if he’s guilty of the crime of assault, which is a felony. Had he admitted it, that would affect his credibility as a witness.
      “The Court: You are not going to ask him any questions that could arguably relate to the pending charge against him which he has pleaded not guilty to.
      “[Defense Counsel): Correct.
      “The Court: And he has a fifth amendment privilege not to answer those questions. I can understand, and I think [the state’s attorney] can understand, that assuming for the moment that the witness did shoot Mr. Murphy, then, Mr. Murphy is involved with the other group that is involved with your client, that might have some bearing on his motivation here to testily adversely to your client, which, of course, I have not heard him do it yet, that he got one of the other group, now he’s going to get the other one, so to speak. That’s all well and good, but the trouble is he has a fifth amendment privilege not to get into the details of the charge against him. We might as well get started here, ask what you want to ask and we’ll rule as we see fit ... .
      “[Defense Counsel]: One last thing ... I will ask the witness if he is guilty of this crime of assault in the first degree with respect to one Warren Murphy. If Your Honor then tells him he has certain rights and so forth, I’m not going to then press the issue, but just for purposes of his testimony, that’s how I would be asking him.
      “[State’s Attorney]: I think then the court can rule right now on the appropriateness of the question. I don’t think the witness should be forced to wait for the court’s ruling. That can be, can be posed now and the court has indicated its intention that he will tell the witness not to answer. Again, he’s going to take the fifth amendment to that question.
      “[Defense Counsel]: If [the state’s attorney] is going to stipulate that that’s what he’s going to answer to, that question, then I just want to say that I intend to raise it.
      “The Court: Why don’t we just bring the witness in and I’m going to instruct him not to answer any—I will ask him if he wishes to assert his fifth amendment privilege not to answer any questions regarding the pending charge against him. If he says yes he does intend to assert his fifth amendment privilege, that then brings an end to that question.”

       The third prong of Golding is an inquiry into whether “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . State v. Golding, supra, 213 Conn. 240.


author: FOTI, J.

text:
    JULIO SALAMAN, ADMINISTRATOR (ESTATE OF JAIME C. SALAMAN) v. CITY OF WATERBURY ET AL.
    (14709)
    O’Connell, Foti and Spear, Js.
    Argued November 14, 1996
    officially released February 4, 1997

      Jonathan J. Einhom, with whom was Steven D. Ecker, for the appellant (plaintiff).

      John J. Gorman, assistant coiporation counsel, for the appellee (named defendant).
   FOTI, J.

The sole issue in this appeal is whether the trial court improperly granted the named defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict. The plaintiff argues that, as a matter of law, the trial court improperly rendered judgment notwithstanding the verdict on a ground never presented by the defendant city of Waterbury (city) in its motion for a directed verdict. He claims that under our rules of practice, and as a matter of constitutional law, the trial court was procedurally barred from acting as it did. As an alternative ground for reversal, the plaintiff alleges that the trial court improperly ruled on the issue of notice and usurped the role of the jury with respect to its determinations of reasonableness, dangerousness and causation. We reverse the judgment of the trial court.

The plaintiffs decedent, Jaime Salaman, drowned at the East Mountain Reservoir in Waterbury on Labor Day, September 2, 1991. At that time, he was part of a group from the defendant New Opportunities for Waterbury, Inc. (NOW), a residential counseling program. Following a picnic at a dormitory and some sporting activities at a nearby recreational facility, the group, supervised by the defendant Michael Trotman, a residential supervisor at NOW, traveled by van to the reservoir to swim. The reservoir was not fenced. There was an area on the side of the access road that was used for parking, and a path approximately five or six feet wide that led to the water. The reservoir had not been used as a public water supply for over thirty years. Fishing was allowed with a permit. In addition, the reservoir is located adjacent to other recreational facilities, and people often used the reservoir site for swimming, camping, hiking, bike riding and beer parties. There were a number of old signs posted on the reservoir property stating: “City of Waterbury, No Trespassing, Public Water Supply.” There were, however, no signs in the parking area, on the trail or at the beach area.

The plaintiff brought suit against the city in three counts: nuisance, custodial negligence and premises liability negligence. At trial, after the plaintiff concluded his case, the city moved for a directed verdict on all counts. The court granted its motion on counts one and two, but denied the motion on the negligence claim that was based on premises liability. The sole basis for the city’s motion for a directed verdict on the premises liability claim was that the plaintiffs decedent was a trespasser as a matter of law.

In its charge to the jury, the trial court, after describing the position of a trespasser on a landowner’s property, concluded: “Therefore, if you find that the plaintiffs decedent Jaime Salaman was a trespasser upon the reservoir property, then you must further find the defendant city of Waterbury owed no duty to [him]. If you find no duty, then you must return a verdict in favor of the defendant city . . . .” The trial court then instructed as to the duty owed a licensee and stated: “In order for the plaintiff to prevail, evidence must show that the circumstances were such that the knowledge of plaintiffs presence could be imputed to the defendant. Such circumstances are sufficient to impute knowledge of presence to the defendant only where they are equivalent of actual knowledge. This equivalent arises where the defendant could have and should have reasonably anticipated the plaintiffs presence on the premises because of the regular pattern of such presence at the approximate time of day and the place of injury.” Thereafter, the court instructed: “It’s for you to decide under the facts of this case whether or not it was reasonably foreseeable that a drowning would occur on East Mountain Reservoir. The use of the reservoir would be reasonably foreseeable if said use is reasonable to expect, not merely what might occur.” The city took no exception to the court’s charge.

The jury returned a verdict in favor of the plaintiff, allocating comparative negligence as follows: the city 28 percent, NOW and Trotman 57 percent, and the plaintiffs decedent 15 percent. Based on total damages of $1,226,264.60, the city’s allocation amounted to $343,354.08.

The trial court filed a ten page memorandum of decision in granting the city’s motions to set aside the verdict and for judgment notwithstanding the verdict, concluding that the evidence was insufficient to impose liability on the city even if the jury had concluded that the plaintiffs decedent was a licensee.

Our Supreme Court has repeatedly stated that directed verdicts are not favored. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986); Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982). Nevertheless, the trial court has the power to set aside a jury verdict that, in its opinion, is contrary to either the law or the evidence. A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990). A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 555, 562 A.2d 1100 (1989).

Our review of the trial court’s action in rendering a judgment notwithstanding the verdict necessitates our considering the evidence in the light most favorable to the party who was successful at trial. Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); Pelletier v. Bilbiles, 154 Conn. 544, 546, 227 A.2d 251 (1967). The verdict should not be set aside and judgment directed if the jury could reasonably and legally have reached its conclusion. Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 140, 558 A.2d 966 (1989).

A trial court’s decision to set aside a jury verdict can implicate a party’s constitutional right to a trial by jury. Young v. Data Switch Corp., 231 Conn. 95, 101, 646 A.2d 852 (1994). We must be certain that such a decision did not infringe this right. Larsen Chelsey Really Co. v. Larsen, 232 Conn. 480, 490, 656 A.2d 1009 (1995). Because a litigant has a constitutional right to have issues of fact determined by a jury; Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982); as a preliminary matter, we must closely scrutinize the procedures employed when a trial court sets aside a jury verdict before proceeding to the question of whether that action was proper for reasons of evidentiary insufficiency.

“Pursuant to Practice Book § 321, a party whose motion for a directed verdict has been denied may move to have the jury’s verdict set aside and have judgment rendered in accordance with his motion for a directed verdict.” (Emphasis added.) Berry v. Loiseau, 223 Conn. 786, 819, 614 A.2d 414 (1992). A motion for judgment notwithstanding the verdict may not be granted on any ground not previously raised by a motion for a directed verdict. Practice Book § 321 provides in relevant part: “Whenever a motion for directed verdict . . . is denied . . . the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. . . . After the acceptance of a verdict... a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his motion for a, directed verdict. . . .” (Emphasis added.) The specific grounds stated in a motion for directed verdict must be renewed in a motion for judgment notwithstanding the verdict. The motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict. 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 203, p. 823.

The purpose of this rule of specificity is to prohibit reconsideration of the factual basis of a jury’s verdict unless that verdict is accepted subject to the trial court’s reserved ruling on a particular claim of legal sufficiency. This reserved ruling on a specific claim satisfies the constitutional prohibition that would otherwise preclude judicial reexamination of factual matters decided by the jury. Further, as a practical matter, the rule serves to ensure that a party against whom a motion for a directed verdict is directed and the trial court have sufficient notice of the alleged deficiency of proof so as possibly to cure it without necessitating a new trial.

The city concedes that it did not raise the status of licensee in its motion for a directed verdict and that the only basis for its motion on that remaining count of negligence was that the plaintiffs decedent was a trespasser, as a matter of law, to whom the city owed no duty. We must conclude, therefore, that procedurally the trial court improperly granted the city’s motion for judgment notwithstanding the verdict.

Our inquiry does not end here, however, because our Supreme Court has indicated that the trial court possesses inherent power to set aside a jury verdict that, in the court’s opinion, is against the law or the evidence. Palomba v. Gray, 208 Conn. 21, 23-24, 543 A.2d 1331 (1988); O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981). That inherent power to set aside a jury verdict may be exercised without the filing of a motion for a directed verdict. State v. Avcollie, 178 Conn. 450, 455, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667,62 L. Ed. 2d 645 (1980); Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 637, 179 A. 95 (1935). Because setting aside the verdict implicates a party’s constitutional right to have factual issues resolved by the jury, we must examine the evidentiary basis of the verdict itself to determine whether the trial court abused its discretion. Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980). Further, because the relief granted was not a new trial, but a directed verdict, we do not view the exercise of the court’s discretion to extend to the weighing of evidence and the credibility of the witnesses to determine whether the interests of justice require that the relief be granted. See Palomba v. Gray, supra, 33; Gaines v. Manson, 194 Conn. 510, 520-21 n.12, 481 A.2d 1084 (1984). Instead, we review the record to determine whether there was any evidence presented on which the jury could have reasonably and legally concluded as it did, and to consider that evidence in the light most favorable to the plaintiff. Gemme v. Goldberg, 31 Conn. App. 527, 541, 626 A.2d 318 (1993).

Our review of the record discloses that the evidence was sufficient to establish that the city had constructive knowledge of the general public’s extensive use of the reservoir for swimming and other related activities. The trial court’s instruction was clear that if the jury determined that the plaintiffs decedent was a trespasser, no duty would be owed to him by the city, and a defendant’s verdict had to be returned. As a reviewing court, we must assume the jury followed those instructions. Mulligan v. Rioux, 229 Conn. 716, 732, 643 A.2d 1226 (1994), on remand, 38 Conn. App. 546, 662 A.2d 153 (1995). The jury, by its verdict, obviously determined that the plaintiffs decedent was not a trespasser. The jury’s verdict, therefore, was predicated on a finding that the plaintiffs decedent was a licensee as a member of the general public. The jury was free to find, as it did, on the basis of all the evidence, that the city, with notice of extensive public use of the reservoir, owed a duty to the general public, and to the plaintiffs decedent as a member of the general public, to exercise reasonable care to warn such persons of conditions posing an unreasonable risk of harm. Applying the law as set out by the trial court in its instructions to the jury, we determine that the evidence was sufficient for the jury to find “knowledge of plaintiffs [decedent’s] presence . . . imputed to the defendant [city],” and that “[t]he use of the reservoir would be reasonably foreseeable if said use [swimming] is reasonable to expect . . . .”

The basic test of negligence is the reasonable foreseeability of harm of the general nature sustained occurring within the area of the license. Haffey v. Lemieux, 154 Conn. 185, 188, 244 A.2d 551 (1966). The city’s constructive knowledge of the use of its property at the inactive reservoir by the general public on a regular basis for recreational purposes including swimming, as was necessarily found by the jury, is sufficient to impose a duty to use reasonable care “both to refrain from actively subjecting [a licensee] to danger and to warn him of dangerous conditions which [are known by the landowner] but which [it] cannot reasonably assume that the licensee knows of or by reasonable use of his faculties would observe.” Lubenow v. Cook, 137 Conn. 611, 614, 79 A.2d 826 (1951). The jury could reasonably have inferred from the evidence that during warm weather, the city should reasonably have anticipated that the general public would use the reservoir for swimming. Under the circumstances of this case, the jury reasonably could have concluded, in the application of the measure of duty, that this was the equivalent of actual knowledge of the plaintiffs decedent’s presence in the reservoir, that the reservoir and surrounding property was ostensibly held open for the use of the public, and that every member of the public using the land is a licensee.

We conclude that the charge was sufficient to allow the jury properly to determine whether the city had constructive notice of the plaintiffs decedent’s presence. Because there was no objection to the charge by the city and because there was evidence from which the jury could conclude that there was constructive notice of the plaintiffs decedent’s presence at the reservoir, the verdict should not have been set aside.

The judgment notwithstanding the verdict is set aside and the case is remanded with direction to render judgment for the plaintiff in accordance with the verdict.

In this opinion the other judges concurred.

       In addition to the named defendant, New Opportunities for Waterbury, Inc., and Michael Trotman, are defendants, but not parties to this appeal.

       The following exchange occurred:
      “The Court: You asked me as a matter of law to find that they were trespassers. I’m not going to do that.

      “Defense Counsel: All right. I understand that. I am asking the court to do that, and that would be—that would be the only basis for any directed verdict on the sixth count." (Emphasis added.)

       Following established procedures is a prerequisite for a just and fair trial. The trial court’s power to set aside a verdict, however, is inherent. The rules of practice merely lay out an appropriate procedure for exercising it. State v. Avcollie, 178 Conn. 450, 455, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).

       II seems incongruous that our law allows a trespasser, to whom a landowner owes a lesser duty of care, to recover when his presence is only anticipated; McPheters v. Loomis, 125 Conn. 526, 533, 7 A.2d 437 (1939); Carlson v. Connecticut Co., 95 Conn. 724, 730, 112 A. 646 (1921); but does not allow a licensee, as a member of the general public, to enjoy at least the same protection. See Yeske v. Avon Old Farms School, 1 Conn. App. 195, 470 A.2d 705 (1984) (error to set aside verdict if evidence sufficient, for jury to conclude that defendants had reason to know that children were likely to trespass on trail where accident took place).
      Our Supreme Court has addressed this seeming incongruity in Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 612 A.2d 1197 (1992). The court acknowledged that there is some overlap in the applicable duty of care owed to trespassers and licensees because of special exceptions to the liability rales generally governing injuries to trespassers. The court held, however, that these exceptions, which cover child trespassers and activities on property that are highly dangerous to constant trespassers, do not establish that, the whole system of liability based on entrant status is fatally flawed. Id., 333.


text:
    DANITA FERNANDEZ v. STANDARD FIRE INSURANCE COMPANY
    (15511)
    Heiman, Spear and Freedman, Js.
    Argued November 7, 1996
    officially released February 11, 1997

      Donald E. Freeman, for the appellant (plaintiff).

      Rodd J. Mantell, with whom, on the brief, was Eugene A. Cooney, for the appellee (defendant).
   HEIMAN, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for summary judgment. On appeal, the plaintiff asserts that there are genuine issues of material fact as to whether the plaintiffs injuries were caused by her sexual relationship with Charles Landon and whether Charles Landon intended the plaintiffs injuries. The plaintiff further asserts that the trial court improperly determined, as a matter of law, that the plaintiffs injuries were not covered by the defendant’s insurance policy because the plaintiffs injuries were not caused by “an occurrence” as that term is defined in the insurance policy. We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. In 1989, Charles Landon and Annemarie Landon hired the plaintiff to babysit for their son. In 1989, the plaintiff was thirteen years old and Charles Landon was an adult. During 1989, Landon had sexual intercourse with the plaintiff on over thirty occasions. As a result of these sexual encounters, the plaintiff suffered severe psychological damage, physical injury and social stigma.

At the time of the sexual assaults, Landon had a homeowner’s insurance policy issued by the defendant, Standard Fire Insurance Company, that covered any claims brought against the insured for damages because of bodily injury or property damage caused by “an occurrence.” The policy defines “occurrence” as an “accident, including exposure to conditions, which results, during the policy period, in bodily injury

In 1990, the plaintiff brought an action against Landon in two counts asserting, first, a negligence claim and, second, an intentional tort cause of action. The defendant provided Landon’s defense while reserving its right to deny coverage. The trial court, Blue, J., found for Landon on the negligence claim and found for the plaintiff on the intentional tort claim, awarding the plaintiff $521,174.75 in damages.

The plaintiff then brought the present subrogation action against the defendant seeking payment of the judgment entered against Landon. The plaintiff asserted (1) that the defendant had breached its contract with Landon by failing to pay the judgment entered against him, and (2) that the defendant breached the implied covenant of good faith and fair dealing when it failed to make reasonable attempts to settle the claim against Landon within its policy limits.

The defendant moved for summary judgment on both counts, asserting that there was no issue of material fact because the insurance policy did not provide coverage for this loss. The defendant argued that because there was no coverage, there could be neither a breach of contract nor a bad faith refusal to settle the case. The trial court, Sheldon, J., granted the defendant’s motion for summary judgment on the ground that “there is no genuine issue of material fact that intentional sexual misconduct by an insured is not an ‘occurrence’ to which coverage extends under the terms of the subject policy.” This appeal follows.

“We initially note the standard of review of a trial court decision granting a motion for summary judgment. Practice Book § 384 mandates 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. A material fact is a fact that will make a difference in the result of the case. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citation omitted; internal quotation marks omitted.) Sylvestre v. United Services Automobile Assn. Casualty Ins. Co., 42 Conn. App. 219, 222, 678 A.2d 1005, cert. granted on other grounds, 239 Conn. 916, 682 A.2d 1014 (1996).

Here, the plaintiff asserts that whether her injuries were caused by Landon’s sexual misconduct, and whether Landon’s sexual misconduct was intentional represent genuine issues of material fact. Thus, the plaintiff’s injuries may have been caused by an accidental occurrence and may be covered by the insurance policy. We disagree.

“Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991).

Here, after a full adversary proceeding, the trial court, Blue, J., determined that Landon’s acts of sexual misconduct caused the plaintiff’s injuries, and that these acts of sexual misconduct were intentional. These determinations as to causation and intent were necessary to the trial court’s judgment that Landon had committed the intentional tort of sexual assault. Thus, the issues of causation and intent were actually litigated and necessarily determined by the trial court, Blue, J.

“In order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding.” Id., 297.

The trial court, Blue, J., necessarily determined that Landon’s repeated sexual assaults of the plaintiff caused her injuries, and that those sexual assaults were intentional. The plaintiff claims that there are genuine issues of material fact as to what caused the plaintiffs injuries and whether Landon intended to cause harm to the plaintiff. Therefore, it is clear that the plaintiff is attempting to relitigate in this proceeding the identical issues of causation and intent previously fully litigated and necessarily determined by the trial court, Blue, J.

“Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party. . . .A key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity.” (Citations omitted; internal quotation marks omitted.) Id., 303. Here, the plaintiff brought the subrogation action pursuant to General Statutes § 38a-321. Because the plaintiff is a judgment creditor and subrogee of Landon, § 38a-321 specifically grants the plaintiff a right, identical to the right of Landon, to recover on the insurance policy. The rights of the plaintiff are entirely dependent on and limited by the rights of Landon. Therefore, we conclude that the plaintiff and Landon share a legal interest and are thus in privity. See Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 305-306.

We conclude that the plaintiff is collaterally estopped from relitigating the issues of intent and causation, which were fully litigated and necessarily decided in the underlying action. Thus, there are no genuine issues of material fact in the subrogation action and the trial court properly determined that, as a matter of law, the plaintiffs injuries are not covered by the insurance policy. We conclude that the trial court properly granted the defendant’s motion for summaiy judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff was a minor in 1990 and thus her parents brought the civil action against Landon on her behalf.

       Judge Blue determined: “[I]t is clear to me that as a result, as a direct result of this terribly wrong relationship, that [the plaintiff], among other things was robbed of the ability to know what love is ... . Consent is not in any way a defense to the charge of sexual assault in the second degree, which this appears to have richly deserved to be called. And, in terms of tort, it seems to me that this . . . this was the intentional tort of rape . . . . This is a child who has lost her childhood . . . as an approximate result of the criminal acts of [Charles Landon].”

      “Judge Blue determined: ‘T feel that there is overwhelming evidence, indeed there is proof beyond a reasonable doubt, if that standard were even necessary, that . . . Charles Landon intentionally had intercourse with the minor plaintiff.”

       The elements of the intentional tort of sexual assault for which Landon was found liable are “[a] harmful or offensive contact with aperson, intended to cause the plaintiff ... to suffer such a contact, resulting from an act . . . .” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 9, p. 39.

       General Statutes § 38a-321 provides in relevant part: “Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”


author: SCHALLER, J. O’CONNELL, J.,

text:
    CAROL LAROSA ET AL. v. JOHN LUPOLI
    (15829)
    O’Connell, Foti, Lavery, Landau, Ileiman, Schaller and Spear, Js.
    Argued October 28, 1996
    officially released February 11, 1997

      Joseph De Lucia, with whom was James Butler, for the appellants (plaintiffs).

      Todd R. Bainer, for the appellee (defendant).
   SCHALLER, J.

The plaintiffs, Carol LaRosa and Thomas LaRosa, appeal from the judgment of the trial court dismissing their complaint against the minor defendant, John Lupoli. The plaintiffs claim that the trial court improperly determined that the Superior Court lacked jurisdiction over the minor defendant because the complaint was brought only against him and process was served on him individually rather than on his parent or next friend. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. On May 6, 1995, the plaintiff Carol LaRosa was a spectator at a Little League baseball game in Wallingford. Prior to the game, the defendant, then eight years old, was warming up to pitch. One of his warm-up pitches struck Carol LaRosa in the face. As a result of the incident, Carol LaRosa and Thomas LaRosa brought an action against Lupoli claiming damages for negligence and loss of consortium, respectively. The complaint named Lupoli individually as the sole defendant and he was served by means of abode service. The complaint did not name a parent or next friend for the minor defendant, nor was the process served on anyone other than Lupoli. Counsel filed a timely appearance on behalf of Lupoli. Lupoli filed a motion to dismiss asserting that the failure to bring the minor “before the court through his parent or next friend” and the failure “to make service upon the defendant minor through his parent or next friend” renders the action fatally defective. The defendant did not claim a lack of adequate notice or that he suffered any prejudice as a result of the abode service. The trial court granted the motion to dismiss and rendered judgment in favor of the defendant.

On appeal, the plaintiffs claim that the trial court improperly granted the motion to dismiss because the trial court acquired jurisdiction over the minor defendant despite the fact that the action was not brought against the minor by service on a parent or next friend. The plaintiffs argue that we decided the precise issue presented in this appeal in Tax Collector v. Miley, 34 Conn. App. 634, 641, 642 A.2d 747 (1994). The defendant does not dispute that Miley is dispositive but asserts that Miley should be overruled as being inconsistent with the public policy of our state, which dictates that the welfare of minors should be protected in court matters. The defendant argues that, for example, a minor should not be the object of direct service of process by a sheriff but that such service should be effected by service on a parent or next friend. The defendant argues that the same reasons that require a minor to bring an action through a parent or next friend should require that an action be brought against a minor only through a parent or next friend.

Our decision in Miley, which is controlling, is consistent with the statutory law of our state governing service of process as provided by General Statutes 52-57. We regard that statute as embodying the public policy of our state pertaining to service on minors. In Miley, we held as follows: “In a civil action, General Statutes, § 52-57 requires service on an individual ‘by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.’ (Emphasis added.) There is no requirement, whatsoever, that service be on the parent or guardian of a defendant who is a minor. The service is made in the usual way as though the defendant were of majority. E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 26 (j). Thus, there is no requirement for service on a parent or guardian in Connecticut when the defendant is a minor. Further, the defendants do not claim that they did not receive adequate notice of the action. They did not indicate any defense that they were deprived of asserting or claim any prejudice from the type of service effected. Therefore, the service on the defendants was proper and the defendants were not deprived of due process of law.” Tax Collector v. Miley, supra, 34 Conn. App. 641.

The judgment is reversed and the case is remanded to the trial court with direction to deny the defendant’s motion to dismiss and for further proceedings.

In this opinion FOTI, LAVERY, LANDAU, HEIMAN and SPEAR, Js., concurred.

O’CONNELL, J.,

concurring. I concur with the opinion of the majority but write separately because I feel that greater emphasis on the protection that a minor receives from a guardian ad litem is warranted. The defendant’s brief and oral argument paint a pitiful picture of a lonely youngster cast adrift on the stormy seas of litigation. This picture is woefully inaccurate.

A time tested procedure is in place to protect the minor. Under the common law, a suit against a minor was required to be defended by a guardian ad litem appointed for that purpose. 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) p. 60. Connecticut has long had a statute that authorizes the Superior Court in its discretion to appoint a guardian ad litem for any minor involved in a proceeding before that court. General Statutes § 45a-132 (a).

The defendant complains that the writ here should have been served on one of the minor’s parents as his next friend, i.e., prochein ami. This confuses the distinction between a next friend and a guardian ad litem.

Stated very simply, the only practical difference between a next friend and a guardian ad litem is that a next friend is a person who represents a minor who commences a lawsuit; Tulin v. Tulin, 124 Conn. 518, 522, 200 A. 819 (1938); and a guardian ad litem is a person, appointed by the court, to represent a minor who has been sued. D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 75. No case has come to my attention in which a suit against a minor was commenced by service on an adult as the next friend of the minor. The reason for this is readily apparent. Before a minor commences suit, a conscious decision is made concerning the adult (next friend) through whom suit will be instituted. On the other hand, a person who wants to sue a minor does not necessarily have adequate information of the minor’s circumstances to know who his next friend might be. We cannot assume that in all cases it will be a parent. Under our statute, the court will examine the facts and appoint a proper person to represent the minor’s interests.

The next friend and the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the court and may be removed if the best interest of the minor so requires. General Statutes § 45a-132 (f); Apthorp v. Backus, 1 Kirby (Conn.) 407, 409-10 (1788); Clark v. Green, 29 Conn. Sup. 436, 290 A.2d 836 (1971); see J. Joy, Connecticut Civil Officer (19th Ed. 1948) p. 65.

The minor’s interests will be adequately protected. There is no danger that a young child will be left to fend for himself in the complicated land of litigation.

       After the defendant’s motion to dismiss was granted, the plaintiffs filed a motion to reargue, which the trial court denied.

       We note that General Statutes § 45a-132 provides for the appointment of a guardian ad litem for a minor in any proceeding before the Superior Court.

       Apart from the requirements of General Statutes § 52-57, which Miley precisely carries out, we note that innumerable practical difficulties would result from a requirement that a plaintiff must determine what adult should be served in a given situation in order to effectuate service on a minor.

       Ballentine’s Law Dictionary (3d Ed. 1969) defines a guardian ad litem as a “person appointed by the court during the course of litigation, in which an infant or a person mentally incompetent is a party, to represent and protect the interests of the infant or incompetent.” The term infant is used in its technical legal sense as meaning any person who has not reached the age of majority.

       General Statutes § 45a-132 (a) provides in relevant part: “In any proceeding before . . . the Superior Court including the Family Support Magistrate Division, the judge or magistrate may appoint a guardian ad litem for any minor . . .

       Prochein ami is a French expression commonly used in the law meaning next friend.

       General Statutes § 45a-132 (d) provides: “Any appointment of a guardian ad litem may be made with or without notice and, if it appears to the judge or magistrate that it is for the best interests of a minor having a parent or guardian to have as guardian ad litem some person other than the parent or guardian, the judge or magistrate may appoint a disinterested person to be the guardian ad litem.”

       The plaintiff should be particularly diligent in assuring the appointment of a proper guardian because there is some authority to the effect that a valid decision cannot be rendered until a guardian ad litem has been appointed. See dicta in Milford v. Swarbrick, 24 Conn. Sup. 320, 324, 190 A.2d 493 (1963); 1 Z. Swift, supra, p. 60.

       General Statutes § 45a-132 (f) provides: “The guardian ad litem may be removed by the judge or magistrate which appointed him, without notice, whenever it appears to the judge or magistrate to be in the best interests of the ward or wards of the guardian.”