text:
    STATE OF CONNECTICUT v. TYRESE LITTLE
    (AC 17420)
    Lavery, Spear and Kulawiz, Js.

    Argued December 4, 1998
    officially released August 24, 1999

      Frank P. Cannatelli, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Maxine Wilensky, assistant state’s attorney, for the appellee (state).

       This appeal was argued before a panel comprised of Judges Lavery, Spear and Kulawiz. Although Judge Kulawiz agreed with the other two judges regarding the resolution of this appeal, she died before she had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render this written decision.

   Opinion

LAVERY, J.

The defendant, Tyrese Little, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The jury also returned a guilty verdict on a second count charging the defendant with possession of a narcotic substance

with intent to sell in violation of General Statutes § 2 la-277 (a). The court merged the second count with the first and sentenced the defendant for violating § 2 la-278 (b). The defendant claims that the trial court improperly (1) denied the jury’s request to distinguish between the two charges and permitted convictions under both charges even though the charges required contrary findings of fact, (2) violated his right against double jeopardy by merging the two convictions and (3) permitted the state to introduce similar transaction evidence and engaged in an oral colloquy with the jury. The defendant’s claims are without merit.

The jury reasonably could have found the following facts. On May 30, 1995, Officer Mark Pisciotti of the New Haven police department arrived at the comer of Putnam and Liberty Streets. Upon arriving, Pisciotti observed a group of men, including the defendant, disperse. Pisciotti saw the defendant reach into his pocket and discard a small plastic bag containing cocaine. Thereafter, Pisciotti apprehended the defendant, searched him and found $459 on him. The defendant was subsequently arrested and convicted. This appeal followed.

I

The defendant first claims that the trial court improperly denied the jury’s request to distinguish between the two charges and permitted convictions under both charges even though the charges required contrary findings of fact. Specifically, the defendant claims that the trial court failed to clarify the difference between the two charges pursuant to the jury’s request and violated his right against double jeopardy by permitting the jury to convict him under § 21a-278 (b), which requires the accused not to be drug-dependent, and § 2 la-277 (a), which he contends requires the accused to be drug-dependent. The defendant’s claims are wholly without merit.

The defendant claims that the trial court improperly denied the jury’s request for the court to clarify the two charges. Additional facts are necessary to our resolution of this claim.

The trial court, during its charge, instructed the jury on the elements of each count. The trial court first instructed the jury on the elements of § 2 la-278 (b) and then explained that as a defense to that charge the defendant had to prove, by a preponderance of the evidence, that he was drug-dependent. The trial court then instructed the jury on the elements of § 2 la-277 (a). Finally, the trial court instructed the jury that it could find the defendant guilty of each charge.

The jury, during deliberations, sent the trial court a note asking for “clarification of charges.” The trial court responded by explaining to the jury that a violation under § 2 la-277 (a) is not controlled by whether the accused is drug-dependent. The defendant did not object to the trial court’s response.

We conclude that the trial court properly instructed the jury. It is well settled that when reviewing a claimed instructional error, this court must determine “whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions .... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995). “While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) State v. Panella, 43 Conn. App. 76, 80, 682 A.2d 532, cert. denied, 239 Conn. 937, 684 A.2d 710 (1996).

That the defendant was not a drug-dependent person is not an element of § 21a-278 (b). State v. Hart, 221 Conn. 595, 608, 605 A.2d 1366 (1992). “[A] person charged with sale of narcotics pursuant to § 21a-278 (b) is presumed not to have been drug-dependent, but may avoid liability under § 21a-278 (b) by proving by a preponderance of the evidence that he was drug-dependent at the time of the offense.” State v. Jenkins, 41 Conn. App. 604, 609, 679 A.2d 3 (1996). Furthermore, § 2 la-277 (a) simply does not consider drug dependency. State v. Vasquez, 53 Conn. App. 661, 666, 733 A.2d 856 (1999). After reviewing the charge as a whole, we conclude that the trial court did not mislead the jury but accurately presented the law to them because its instructions, when read as a whole, were clearly correct in law, adapted to the issues and sufficient for guiding the jury. Accordingly, we conclude that the defendant’s claim is without merit.

The defendant also claims that the trial court improperly allowed a factually inconsistent verdict to stand. The defendant argues that the verdict cannot stand since he could not be both drug-dependent and not drug-dependent at the same time. We are not persuaded.

To obtain a conviction under § 21a-278 (b), the state must prove that the defendant possessed narcotics with the intent to sell them. “[T]he absence of drug dependency is not an element of the offense .... Rather, [proof of drug dependency provides] an exemption from liability” that must be proved by the defendant. State v. Hart, 221 Conn. 595, 608, 605 A.2d 1366 (1992). Likewise, to obtain a conviction under § 2 la-277 (a), the state must prove that the defendant possessed narcotics with the intent to sell them. Those elements of the statutes, therefore, are identical. The difference between these statutes is not in their elements but in the potential mandatory minimum sentence provision of § 21a-278 (b). If the defendant does not prove by a preponderance of the evidence that he is drug-dependent, he is subject to the mandatory minimum sentence of § 21a-278 (b), whereas, if he proves that he is drug-dependent, the mandatory minimum sentence does not apply. State v. Vasquez, supra, 53 Conn. App. 666. Therefore, because drug dependency is not an element of either crime and merely provides a potential exemption from liability under § 21a-278 (b), and because the defendant failed to present evidence regarding his drug dependency, the trial court properly permitted the jury to find the defendant guilty under both statutes.

II

The defendant’s second claim is that the trial court improperly permitted the jury’s verdict to stand. Specifically, the defendant claims that the trial court improperly merged the two counts because the “counts include elements contrary to the other, such that a conviction on both counts here amounts to a violation of this defendant’s constitutional right against double jeopardy.” We are not persuaded.

Additional facts are necessary to our resolution of this claim. The defendant, during his sentencing hearing, moved for a new trial, arguing that the jury convicted him of two separate counts, one of which was a lesser included offense of the other. In support of his motion, the defendant argued that the two convictions were factually inconsistent and that the trial court failed to instruct the jury that one count was a lesser included offense of the other. The trial court denied the motion. The trial court noted, however, that because the jury convicted the defendant under two separate statutes containing the same elements, the defendant could not be sentenced under both statutes. The trial court, therefore, merged the second count into the first and sentenced the defendant under only the first count.

In State v. Chicano, 216 Conn. 699, 723, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), our Supreme Court held that when a defendant is convicted of both greater and lesser offenses arising from a single transaction, the trial court is to combine the conviction on the lesser offense with the conviction on the greater offense and to vacate only the sentence of the lesser offense. “[T]his way, the conviction on the lesser offense is unaffected and may be resuscitated if the conviction on the greater offense is later vacated for some reason. A conviction on a lesser offense will, in effect, not exist separately as long as the conviction on the greater offense remains intact. This method ensures that there is no danger of double jeopardy or punishment beyond the legislature’s intent. [Id.], 723-25." State v. Cecarelli, 32 Conn. App. 811, 827, 631 A.2d 862 (1993).

In State v. Cavanaugh, 23 Conn. App. 667, 680, 583 A.2d 1311 (1990), cert. denied, 220 Conn. 930, 598 A.2d 1100 (1991), the trial court found the defendant guilty of violating §§ 21a-277 (a) and 21a-278 (b) and sentenced the defendant on each of those counts to fifteen years incarceration, the sentences to run concurrently. This court reversed the trial court’s judgment, holding that double jeopardy precludes the defendant from being sentenced under both § 21a-277 (a) and § 21a-278 (b), because § 2 la-277 (a) is a lesser offense included in the offense of violating § 21a-278 (b). Id. We allowed both convictions to stand, however, and remanded with direction to combine the defendant’s convictions and to vacate his sentence under § 21a-277 (a). Id.

The trial court here properly merged the defendant’s sentences and, therefore, did not violate the defendant’s right against double jeopardy. At the sentencing hearing, the trial court stated that § 21a-277 (a) merged into § 21a-278 (b) for sentencing purposes. Moreover, the trial court indicated that the defendant’s five year sentence was the minimum mandatory sentence set by § 21a-278 (b). Accordingly, we conclude that the defendant’s claim is without merit.

Ill

The defendant’s final claim is that the trial court improperly permitted the state to introduce similar transaction evidence and engaged in an oral colloquy with the jury. The defendant’s claims are without merit.

Prior to Pisciotti’s testimony, the state filed a motion to introduce similar transaction evidence, through Pisciotti, of the defendant’s prior arrest for selling narcotics. The state planned to use Pisciotti’s testimony solely as evidence of the defendant’s intent. The court concluded that Pisciotti’s testimony would be more probative than prejudicial and granted the state’s motion.

Pisciotti testified that in 1993 he and his partner observed the defendant selling narcotics and the defendant, upon seeing the officers, fled and attempted to hide the narcotics under a cardboard box. Pisciotti further testified that, upon arresting the defendant, he and his partner found packets of cocaine and $113. Following Pisciotti’s testimony, the trial court instructed the jury that Pisciotti’s testimony could be used only to show intent and not as evidence proving that the defendant was guilty of the crimes with which he was charged. The trial court, in its charge, reiterated its instruction to the jury that the evidence of the defendant’s prior misconduct was to be used solely to show his intent.

We find that the defendant’s claim is without merit. “As a general proposition, evidence of guilt of other crimes, because of its prejudicial nature, is inadmissible to prove that a defendant is guilty of the crimes with which he is charged. . . . Such evidence is admissible for other purposes, however, such as when it is particularly probative in showing such things as intent .... The trial judge, however, must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Baldwin, 224 Conn. 347, 354-55, 618 A.2d 513 (1993).

In Baldwin, the defendant was charged with possession with intent to sell pursuant to § 21a-277 (a). The trial court admitted evidence of the defendant’s prior sales of narcotics. Our Supreme Court held that the trial court properly admitted the prior misconduct evidence because “evidence that the defendant had been a seller of narcotics in the past is relevant to the nature of his possession of the drug at the time of the alleged offense.” (Internal quotation marks omitted.) Id., 355. Moreover, the court concluded that because the evidence of the prior sales was so similar to the offense charged, the evidence was that much more probative. Id. Finally, the court balanced the probative value of the evidence against its prejudicial effects and concluded that any prejudice did not outweigh the probative value, especially in light of the court’s hmiting instructions. Id., 357.

Similarly, in the present case, the evidence of the defendant’s prior narcotics sale is both relevant to and probative on the issue of what the defendant intended to do with the drugs in his possession. The misconduct evidence was similar to the evidence before the jury. Further, because intent is an essential element of the crimes charged and was not directly and explicitly admitted before the jury, it was at issue at trial. State v. Johnson, 190 Conn. 541, 550, 461 A.2d 981 (1983). Therefore, the trial court reasonably could have determined that the evidence had significant probative value to prove intent. State v. Baldwin, supra, 224 Conn. 356.

Moreover, the record reflects that the trial court balanced the probative value of the evidence against the prejudicial effects and reasonably determined that any possible prejudice did not outweigh the probative value. Indeed, the trial court, to cure any possible prejudice, provided limiting instructions both after Pisciotti’s testimony and in its jury charge. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the similar transaction evidence.

The defendant also claims that the trial court engaged in an improper colloquy with the jury. Specifically, the defendant claims that the trial court violated Practice Book § 845 by having direct oral communications with the jury.

The juiy, while deliberating, gave the trial court anote asking for “clarification of charges.” The trial court, on the record, informed the parties of the note’s contents. Thereafter, the trial court and the parties agreed that the trial court would ask the jury to specify its request.

The jury then entered the courtroom, at which point the trial court requested the jury to specify its request in writing. One juror asked whether the note could be written in the courtroom, to which the trial court responded that the jury could “huddle right there without us listening to you.” The jury, however, did not write a note, but orally repeated its request. The trial court proceeded to answer the jury’s question in open court. Neither party objected to the trial court’s actions.

Our review of the record reveals that the defendant neither raised his claim in the trial court nor requests Golding review. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We decline, therefore, to review the defendant’s claim.

The judgment is affirmed.

In this opinion SPEAR, J., concurred.

       General Statutes 8 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years .... The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended . . . .”

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance ... for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . .”

      Practice Book § 845, now § 42-7, provides: “All communications from the jury to the judicial authority shall be in writing. The judicial authority shall require that a record be kept of all communications received by him from a juror or the jury after the jury have been sworn, and it shall not communicate with a juror or the jury on any aspect of the case itself, as distinguished from matters relating to physical comforts and the like, except after notice to all parties andreasonable opportunity for them to be present.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    IN RE GALEN F.

    (AC 18361)
    Lavery, Schaller and Hennessy, Js.

      Argued January 12
    officially released August 24, 1999

      Dale H. King, for the appellant (respondent father).

      Kelly A. Flint, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HENNESSY, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his child. The respondent claims that the trial court improperly (1) found that there was clear and convincing evidence of the statutory grounds for termination of (a) failure to achieve rehabilitation, (b) no ongoing parent-child relationship and (c) abandonment and, therefore, improperly terminated his parental rights, and (2) admitted certain social studies as full exhibits in the adjudicatory phase. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The respondent’s child was bom on November 24, 1995. Following his birth, the child experienced respiratory distress and drug withdrawal as a result of the mother’s using drugs during her pregnancy. On December 13, 1995, the trial court granted a request by the commissioner of children and families (commissioner) for an order of temporary custody of the child. Thereafter, on January 1, 1996, the child was adjudicated neglected and committed to the care of the commissioner. On October 4, 1996, the commissioner filed a petition for the termination of the parental rights of both parents. In the petition, the commissioner alleged the following statutory grounds for termination of parental rights: (1) abandonment by the parents because they failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (2) failure to achieve personal rehabilitation since the finding of neglect; and (3) no on-going parent-child relationship.

With respect to the statutory grounds for termination of parental rights, the trial court found by clear and convincing evidence that “the parents have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time . . . the parents could assume a responsible position in the life of the child.” The trial court also found that the parents “have no ongoing parent-child relationship” and that the parents have abandoned the child by failing “to maintain and demonstrate a consistent display of the indicia of interest, concern or responsibility for the welfare of the child that should be the hallmark of concerned parents.”

While the grounds did not exist for more than one year prior to the filing of the petition, the trial court found that it was in the best interest of the child that the requirement be waived and terminated the parental rights of both parents.

The respondent appeals from the judgment of the trial court. Additional facts and procedural history will be discussed where relevant to the issues on appeal.

I

The respondent first claims that the trial court improperly found that the petitioner proved by clear and convincing evidence that the respondent failed to achieve personal rehabilitation, as required by the statute. We disagree.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Citation omitted; internal quotation marks omitted.) In re Roshawn R., 51 Conn. App. 44, 52, 720 A.2d 1112 (1998).

General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. ... In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child .... The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child. . . . Thus, the trial court’s inquiry requires the determination of both the present and past status of the child, and obtaining a historical perspective of the respondent’s child caring and parenting.” (Citations omitted; internal quotation marks omitted.) In re Tabitha P., 39 Conn. App. 353, 361, 664 A.2d 1168 (1995).

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citations omitted; internal quotation marks omitted.) In re Danuael D., 51 Conn. App. 829, 835-36, 724 A.2d 546 (1999). “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Christina V., 38 Conn. App. 214, 220, 660 A.2d 863 (1995).

In this case, the trial court found by clear and convincing evidence that “the child has previously been adjudicated neglected . . . and that the parents have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time . . . the parents could assume a responsible position in the life of the child.” After reviewing the decision of the trial court and the whole record, we conclude that this finding is not clearly erroneous.

The child was bom prematurely on November 24, 1995, suffering from dmg withdrawal symptoms and remained in the hospital for treatment. The child has never been in the custodial care of either parent. On December 13, 1995, the trial court ordered temporary custody of the child to the commissioner. Thereafter, on January 1, 1996, the child was adjudicated neglected and committed to the care of the commissioner for a period not to exceed one year. The respondent signed an agreement, with the advice of counsel, encompassing court expectations. The respondent agreed to keep all appointments set by the department of children and families (department), keep his whereabouts known to the department, participate in parenting classes, visit the child regularly, secure and maintain adequate housing, refrain from substance abuse and cooperate with substance abuse evaluation and follow recommendations flowing therefrom. During the period from January, 1996, until October, 1996, when the commissioner filed the petition to terminate parental rights against both parents, the respondent was tardy for or entirely missed several scheduled visitations, failed to secure adequate housing because he had to move on several occasions as a result of incidents of domestic violence and failed to attend the substance abuse evaluation program at community prevention and addiction services, missing all fifteen appointments arranged for by the department.

In April, 1996, the department created a plan for the respondent that would have increased his visitation with the child, required that he undergo a psychological and substance abuse evaluation and participate in parenting education. Thereafter, the respondent missed visitation appointments because he was incarcerated as a result of domestic abuse offenses and missed further appointments at community prevention and addiction services to the extent that they would no longer keep the respondent’s file open. From August until October, 1996, when the petition to terminate parental rights was filed, the respondent did not keep the department apprised of his whereabouts. On the basis of that evidence, the trial court could have concluded that there was clear and convincing evidence that the respondent’s child caring and parenting abilities were not such that would encourage the belief that the respondent had assumed or could assume within a reasonable time, a responsible position in the life of this child. We conclude that the trial court’s findings are not clearly erroneous, are legally correct and support the fact that the respondent has not achieved personal rehabilitation.

During the dispositional phase of the hearing, the evidence must show by a clear and convincing standard that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at that decision, the trial court is mandated to consider and make written findings regarding seven factors delineated in General Statutes (Rev. to 1997) § 17a-112 (e), now § 17a-112 (d).

In its written opinion, the trial court made detailed findings as to the disposition, pursuant to § 17a-112 (e). The trial court found that the department provided appropriate and timely services including substance abuse and individual counseling, transportation assistance, visitation coordination and made reasonable efforts to reunify the family. In addition, the trial court found that the department set reasonable expectations in order to reunify. The trial court further found that the respondent was unwilling or unable to visit the child on a regular basis because of a lack of personal initiative or due to his incarceration and failed to comply to a significant degree with the court approved expectations set forth after the child was found to be neglected and committed to the custody of the commissioner. The court further found that the child has strong emotional ties with the foster family and no positive emotional ties with the biological parents and was found by the court-appointed psychologist to have an aversive, parent-specific, negative reaction to the respondent.

The court also found that the child is two years old, has not been in the care of the respondent since birth, has not been offered nor can be provided a secure home by the respondent and is residing with foster parents who have offered the child a permanent home. The respondent has not made realistic and sustained efforts to conform his conduct to acceptable parental standards, evidenced by his failure to maintain a relationship with the child by not taking advantage of available visitation opportunities and acting in a manner that resulted in incarceration, thereby removing himself from access to the child. The respondent has not been prevented from maintaining a meaningful relationship with the child by the act or conduct of others or by his economic circumstances. He has by his own conduct prevented himself from maintaining a meaningful relationship with the child by not taking advantage of the liberal visitation schedule, by not establishing a suitable home, by engaging in conduct which resulted in his being in prison thereby absenting himself from the life of the child and doing little or nothing to correct that within his life that would have conformed his conduct to acceptable parental standards. See In re Hector L., 53 Conn. App. 359, 367-68, 730 A.2d 106 (1999) (incarcerated respondent could not avail himself of rehabilitative programs available through department because of his incarceration, but that did not excuse failure to use resources offered by department of correction). The child, bom in November, 1995, has not resided with the respondent, who is presently incarcerated and will need further drug rehabilitation upon his release from prison. The child presently is in a secure, stable environment and it is not clear when the respondent will be in a position to assume a responsible position in the child’s life.

Upon reviewing the decision of the trial court and the evidence contained in the record, we conclude that the trial court’s findings are not clearly erroneous, are legally correct and support the fact that the respondent has not rehabilitated himself and that it is in the best interest of the child that the respondent’s parental rights be terminated.

II

The respondent next claims that the trial court improperly admitted, in the adjudicatory phase, a series of social studies that were prepared in connection with the filing of petitions for the termination of parental rights with respect to both parents. Specifically, the respondent argues that § 17a-112, which sets forth the grounds for the termination of parental rights, is to be strictly construed and does not mention social studies or their admissibility. The respondent further argues that Practice Book § 33-5 mandates that a social study be conducted and made an exhibit. He claims that the trial court’s reliance on the social study to conclude that he had been arrested for possession of marijuana, failure to appear, criminal mischief, assault and several burglaries and larcenies, breach of the peace and possession of drug paraphernalia was prejudicial. We disagree.

Practice Book § 33-3 provides in relevant part: “(a) In the adjudicatory phase, the judicial authority is limited to events preceding the filing of the petition or the latest amendment.

“(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded. ...” Practice Book § 33-5 provides in relevant part that “no disposition may be made by the judicial authority until any mandated social study has been submitted to the court. Said study shall be marked as an exhibit subject to the right of any party to require that the author, if available, appear for cross-examination.” In In re Tabitha P., this court held that the trial court is not precluded from considering material in social studies, submitted pursuant to Practice Book § 1043.1, now § 33-5, in the adjudicatory phase of the hearing, even when the social study is prepared after the filing of the petitions, provided that the events considered did not occur after the petition date. In re Tabitha P., supra, 39 Conn. App. 368.

The trial court stated in its written opinion that the respondent, by stipulating to only the offenses listed on the exhibit, attempted to keep the court “in the dark” as to his complete criminal history. The trial court further stated that it “knows from the unchallenged findings of [the court-appointed clinical psychologist] and representations contained in the social study that [the respondent’s] criminal history includes more than ten arrests for possession of drug paraphernalia, burglary, larceny, failure to appear charges and breach of the peace.”

The respondent does not argue that those arrests did not occur or that any of the arrests happened after the petitions were filed. Instead, the respondent claims that the trial court’s reliance on inadmissible hearsay in the social study to conclude that the he had been arrested for possession of marijuana, failure to appear, criminal mischief, assault and several burglaries and larcenies, breach of the peace and possession of drug paraphernalia was prejudicial because the trial court further found that his criminal history prevented the respondent from having a relationship with the child.

We note that the petitioner and the respondent stipulated to the admission of a partial list of the respondent’s official record that showed that the respondent had four arrests between January 3 and June 19, 1996. The charges included possession of drug paraphernalia, breach of the peace, failure to appear and a probation violation.

“When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . One factor to be considered in determining whether an improper ruling on evidence is a harmless error is whether the testimony was cumulative (Citation omitted; internal quotation marks omitted.) State v. Rolli, 53 Conn. App. 269, 276, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999). The social study was cumulative to the overall evidence from which the court could reasonably have found that the respondent failed to take advantage of the opportunities he had for liberal visitation with the child. The trial court could have found from the stipulated evidence that the respondent’s criminal history prevented him from having an ongoing relationship with the child. We conclude, therefore, that the trial court did not improperly admit the social studies as full exhibits.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court terminated the parental rights of both the respondent mother and the respondent father. The respondent mother has not appealed from that decision. We refer in this opinion to the respondent father as the respondent.

       The statute in effect in October, 1996, was the revision to 1996, as amended by Public Acts 1995, No. 95-238, Public Acts 1996, No. 96-130, and Public Acts 1996, No. 96-246. As amended, the statute was codified as General Statutes (Rev. to 1997) § 17a-112 (c). General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) that termination is in the best interest of the child, and (3) that over an extended period of time, which . . . shall not be less than one year . . . (A) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . (D) There is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child

       The respondent also claims that the trial court improperly determined that the petitioner proved by clear and convincing evidence that there was no ongoing parent-child relationship and that the child was abandoned. “In a petition to terminate parental rights . . . the petitioner must list the grounds relied upon and, if any one of these grounds may be upheld, the order to terminate must stand.” (Internal quotation marks omitted.) In re Luis C., 210 Conn. 157, 170, 554 A.2d 722 (1989). Because we conclude that the trial court properly found that the petitioner proved by clear and convincing evidence that the respondent failed to achieve personal rehabilitation pursuant to § 17a-112 (c) (3) (B), we need not address these claims.

       Practice Book § 33-5 provides: “The judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing, but no disposition may be made by the judicial authority until any mandated social study has been submitted to the court. Said study shall be marked as an exhibit subject to the right of any party to require that the author, if available, appear for cross-examination.'’


author: FOTI, J.

text:
    DOROTHY WOOD v. LAILA AMER ET AL.
    (AC 18410)
    O’Connell, C. J., and Foil and Lavery, Js.

      Argued May 25
    officially released August 24, 1999

      Stanley A. Twardy, Jr., with whom, on the brief, were Lynn A. Kappelman and Deborah S. Gordon, for the appellant (plaintiff).

      Frederic S. Ury, with whom, on the brief, were Neal L. Moskow and Deborah M. Garskof for the appellee (named defendant).
   Opinion

FOTI, J.

The plaintiff, Dorothy Wood, appeals from the judgment of the trial court denying her a temporary and permanent injunction prohibiting the named defendant, Laila Amer, from building a home on a lot located across the street from the plaintiffs property in Greenwich. The plaintiff sought the enforcement of certain restrictions contained in the defendant’s chain of title, which restrictions, the plaintiff claimed, were created for the benefit of her property. By way of special defense, the defendant argued that the action was barred by the three year statute of limitations set forth in General Statutes § 52-575a. On appeal, the plaintiff claims that the trial court improperly (1) held that the deed conveying the defendant’s property contained only one restrictive covenant and (2) determined that the statute of limitations in General Statutes § 52-575a had expired. We reverse the judgment of the trial court.

The trial court found the following facts. Ralph Brush obtained the subject property (lot 10) on March 12, 1935. He conveyed it to the owner of its adjacent parcel (lot 11), George Winslow. Both lots 10 and 11 are directly across Deerfield Lane from the Brush home. The deed transferring lot 10 to Winslow contained the following restrictive covenants: “[T]he premises hereby conveyed, together with the premises owned by the Releasee, being lots 10 and 11 ... shall be taken together and held as one individual parcel and that there shall not be erected or maintained on said parcel more than one dwelling house for one family only which will cost not less than $15,000, and no outbuildings whatsoever, except one garage and the tool house now erected thereon, and that this covenant shall run with the land hereby conveyed.”

When Brush conveyed lot 10 to Winslow, there was an existing dwelling on lot 11. Thus, construction of another residence on the combined parcel was prohibited under the restrictive covenant. The restrictive covenant appeared by reference in every subsequent deed from 1935 to 1971.

In 1971, Kenneth Ford and Joan Ford obtained lots 10 and 11. Kenneth quitclaimed his interest in lot 10 to Joan in 1983. The quitclaim deed made no reference to the restrictive covenants. The Fords properly recorded the conveyance in the Greenwich land records on June 1, 1983. Although this conveyance violated the restrictive covenant, the plaintiff did not have actual notice of the violation until early 1988.

Joan Ford conveyed lot 10 to the defendant on December 22, 1987, by warranty deed, which made no reference to the restrictive covenants. Although the deed was silent, the defendant had actual notice of the restrictive covenants when she purchased the property from Joan Ford.

The defendant informed the plaintiff of her intention to construct a residence on lot 10 in the spring of 1988. The defendant obtained the necessary permits and paid a contractor to widen Deerfield Lane. The plaintiff informed the defendant that she intended to enforce the restrictive covenant prohibiting the construction of a dwelling, yet she took no legal action at that time. The defendant undertook no steps to begin construction and allowed her building permit to expire in July, 1989. The defendant attempted to sell lot 10, but in April, 1995, unable to find a purchaser, obtained another building permit. The defendant began construction on lot 10 in August, 1997, and the plaintiff filed this action on August 13, 1997.

I

The plaintiff claims that the trial court improperly determined that the Brush deed contained only one restrictive covenant. The plaintiff claims that the Brush deed contained two restrictive covenants (1) the covenant of unified title and (2) the covenant not to build. We agree with the plaintiff.

We must first look at the language of the Brush deed to determine if it imposed one or two restrictive covenants on lot 10. We begin with a statement of the standard of review. “[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . . Thus, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court’s factual inferences.” (Citations omitted; internal quotation marks omitted.) Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989).

“The meaning and effect of the [restrictive covenant] are to be determined, not by the actual intent of the patties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances .... The primary rule of interpretation of such [restrictive] covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.” (Citation omitted; internal quotation marks omitted.) Id., 65. There is no indication that either party attempted to call Brush or Winslow to testify, nor do we know if they are even alive. The intent of the original grantor and grantee must, therefore, be determined by looking at the language of the covenant. The covenant states that “lots 10 and 11 . . . shall be taken together and held as one individual parcel . . . .” The covenant also specifically states that “there shall not be erected or maintained on said parcel more than one dwelling house for one family only . . . .” The two clauses are connected with “and,” connoting that they were meant to be separate. If Brush had wanted the two clauses to be dependent, as the trial court found, he could easily have used language making one clause dependent on the other.

The trial court, in its memorandum of decision, focused on the language “one individual parcel” and “on said parcel” in determining that the covenant contained two connected clauses. We believe the trial court focused on the wrong portion of the covenants. Instead of focusing on the “one individual parcel” language, the trial court should have focused on the restrictions imposed in the deed. In Quintard v. Bishop, 29 Conn. 366, 373 (1860), our Supreme Court, when faced with a situation involving a deed conveying to the grantees a public road and another road that was to remain open until boating on an adjoining canal ceased, held that the restriction of the continuation of boating on the canal applied to only the latter road. The restriction did not apply to the public road that the grantor covenanted to keep openinpeipetuity. Id., 372-73. The court did not focus on the fact that both roads were located on the same parcel. Instead, it focused on the language in the restriction. It is clear in the present case that Brush and Winslow intended that only one house was to be located on either lot 10 or 11. We conclude, therefore, that the trial court improperly determined that the Brush deed contained one covenant with two connected clauses.

II

The plaintiff next claims that the statute of limitations in § 52-575a had not expired. We agree.

The trial court found that the statute of limitations began to run when the plaintiff received actual notice in 1988 of the conveyance in 1983 of lot 10 from Kenneth Ford to Joan Ford. Although the plaintiff had notice of the breach of the covenant of unified title, the three year limitation period began to run only with respect to the covenant of unified title. Because the plaintiff did not file an action within the limitations period, she is now barred from challenging the 1983 Ford conveyance.

Because we concluded in part I of this opinion that the Brush deed contained two covenants and that it is possible to breach one covenant without breaching another; see Maganini v. Hodgson, 138 Conn. 188, 195, 82 A.2d 801 (1951); the running of the statute of limitations with respect to the covenant of unified title does not preclude the plaintiff from enforcing the covenant not to build.

Section 52-575a provides that a party seeking to enforce a covenant has three years from the date she has notice, actual or constructive, of the violation of the covenant to file an action. The defendant claims that the violation of the covenant not to build occurred when the defendant first applied for her building and sewer permits prior to July, 1989. The defendant cites Watertown v. Lamphier, 18 Conn. Sup. 518 (1954), to support her proposition. The defendant’s reliance is misplaced. Lamphier did not involve a covenant of any kind, let alone when a covenant is considered to have been violated. It dealt with opposition to the proposed construction of a drive-in theater.

The plaintiff claims that the violation of the covenant not to build occurred when the defendant began physical construction on lot 10. We agree. The plaintiff cites Shippan Point Assn., Inc. v. McManus, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV910119682 (March 23, 1993), aff'd, 34 Conn. App. 209, 641 A.2d 144, cert. denied, 229 Conn. 923, 642 A.2d 1215 (1994), for the proposition that the mere planning of construction does not create a violation of a restriction not to build. While we did not affirm Shippan Point Assn., Inc., on that ground, we agree with the proposition that the defendant asserts. The covenant states that “there shall not be erected” a dwelling. Clearly, the mere contemplation of constructing a dwelling does not violate the clear language of the restriction. Section 52-575a requires that a violation occur before the statute begins to run. Because the violation did not occur until August, 1997, when the defendant began construction on lot 10, the statute of limitations had not expired when the plaintiff brought this action on August 13, 1997.

The trial court did not reach the merits of the plaintiffs motion for an injunction. It instead denied the plaintiffs request solely on the ground that the statute of limitations had expired.

The judgment is reversed and the case is remanded for further proceedings to determine whether the plaintiff is entitled to injunctive relief on the merits.

In this opinion the other judges concurred.

       The plaintiff withdrew the action as against the defendant town of Greenwich prior to trial. We refer in this opinion to the named defendant as the defendant.

       In its decision, the trial court stated: “The restrictive covenant at issue here is relatively clear. It states that lots 10 and 11 should always ‘be taken together and held as one individual parcel and that there shall not be erected or maintained on said parcel more than one dwelling house for one family . . . .’ (Emphasis added.) This one covenant contains two connected clauses. The focus, as far as this court is concerned for the present case, is on the language of the restriction stating that no dwelling should be erected ‘on said parcel.’ ‘Said parcel’ refers to lots 10 and 11 ‘taken together.’ In 1983, in violation of the restrictive covenant, lots 10 and 11 were divided. Therefore, in the court’s mind, the statute of limitations began to run when the plaintiff had actual or constructive notice of the division of the ‘parcel.’ In other words, the division of the parcel was the ‘violation’ to which General Statutes § 52-575a applies.”

       The deed in Quintará provides in relevant part: “Know all men by these presents, that I, Isaac Quintard, Jr., of the town of Stamford, in consideration of ten dollars, to me in hand paid by Alfred Bishop of New Jersey, do hereby bind myself ... to keep open as public highway a road of sixteen feet in width, from tire turnpike to a landing-place or basin which said Bishop is about to construct in my comer lot, acjjoining Washington Block, the road to be left open east of the present tier of buildings which constitute said block, said block being’ situated in said Stamford, on the corner south-east of the Presbyterian meeting house; also to keep open as public highway all ground belonging to me on said corner lot, west of the store now occupied by W. & R. Hoyt, and all ground west of a north and south parallel line with the front shed or stoop of said store, and which is north of an east and west line designated as a boundary line between said lot or corner, and land which I have agreed to convey by deed to said Bishop for the purpose of a canal basin, wharf, &c., said ground to be kept open by me as a highway from the time said canal and basin is put in navigable condition for sloops of ordinary size, forever; provided that the boating business is continued on said canal; and should it at any time be suspended for more than six months at any one time, I to have a right to shut tip such highway until said business shall be resumed, and no longer . . . (Internal quotation marks omitted.) Quintard v. Bishop, supra, 29 Conn. 367.

       General Statutes § 52-575a provides in relevant part: “No action or any other type of court proceeding shall be brought to enforce a private restriction recorded in the land records of the municipality in which the property is locat ed or a notation on a filed map pertaining to the use of privately owned land, the type of structures that may be erected thereon or the location of same unless such action or proceeding shall be commenced within three years of the time that the person seeking to enforce such restriction had actual or constructive knowledge of such violation. . . .”


author: SPEAR, J.

text:
    BROOKS A. BENTZ v. ANTHONY P. HALSEY ET AL.
    (AC 17438)
    Spear, Sullivan and Dupont, Js.
    Argued February 23
    officially released August 24, 1999

      James G. Green, Jr., with whom were James A. Budinetz and, on the brief, Anthony J. Natale, for the appellant (plaintiff).

      Lloyd L. Langhammer, for the appellees (defendants).
   Opinion

SPEAR, J.

The plaintiff, Brooks A. Bentz, appeals from the judgment of the trial court denying his claim for a recovery of salary that the plaintiff asserts is due to him as an employee of the defendants, Anthony P. Halsey, A. Searle Field and Jon Kodoma. He also claims that the trial court improperly failed to award him damages based on Halsey’s breach of an indemnity agreement. The dispositive issue as to Bentz’s salary claims on appeal is whether an employer-employee relationship existed between the defendants and Bentz. We conclude that such a relationship did exist and reverse the judgment of the trial court on those issues. We affirm the judgment as to Bentz’s sixth issue on appeal.

The trial court found the following undisputed facts. In October, 1988, Bentz was approached by Halsey via Bentz’s mother, an acquaintance of Halsey’s, to inquire whether Bentz would be interested in discussing business opportunities that Halsey, Field and Kodoma were planning to develop in the transportation industry. In November, 1988, the parties met to discuss generally their business plans. As a follow up to this initial meeting, Bentz sent a letter to Halsey that included, inter alia, his salary requirements. Thereafter, the defendants negotiated Bentz’s relocation from Texas to Connecticut. Believing that a general understanding of the scope of the business undertaking had been accomplished, Bentz sent a draft of his employment agreement to Halsey. The defendants made two modifications to the draft: one modification in § 2.20 dealing with incentive compensation and another in § 6.10 dealing with investment opportunities. This modified draft, which also included Bentz’s request for vacation pay, became the employment agreement (agreement).

Bentz began performing his obligations under the agreement on March 1, 1989, when he formed Livery Ltd. (Livery), a limousine company. Shortly after Livery was established, Mystic Auto Rental Car Company (Mystic), a franchisee of Payless Car Rental, was also established. Consistent with the defendants’ goal of creating a “mini-conglomerate” of related transportation companies, Bentz continued to search for other investment opportunities for the defendants. Bentz’s search led to the defendants’ purchase of Trans-Star Trucking Company (Trans-Star) in August, 1989. Bentz was thereafter appointed by Field and Halsey to serve as Trans-Star’s chief executive officer (CEO), but continued to oversee Mystic’s and Livery’s operations. In January, 1990, however, Field instructed Bentz to work exclusively on Trans-Star. In February, 1990, at the specific request of and with an assurance from Field and Halsey that it would be subject to priority replacement, Bentz loaned Trans-Star $35,000 of his own money. Thereafter, at some point during the spring of 1990, Field and Halsey hired David Whepley, an outside consultant, to recommend how to improve Trans-Star’s financial situation, and eventually assigned control of Trans-Star to Whepley over Bentz’s objections. Whepley, in turn, hired Lester Keck as Trans-Star’s chief operating officer. Thereafter, Bentz offered to resign his position as CEO. Field and Halsey requested, however, that he not resign. Bentz continued to work as Trans-Star’s CEO through the end of 1990.

All three of these companies were funded exclusively by the defendants with Bentz’s salary obligation spread among the companies. This method of payment was Field’s idea. For example, in August, 1989, $40,000 of the $50,000 annual salary obligation to Bentz was paid through Trans-Star and the balance equally through Livery and Mystic. This manner of apportioning Bentz’s salary continued until May 1, 1990, when Bentz, with the defendants’ consent and prior approval, and as a cost saving measure, began taking payments on the $35,000 loan that he had previously made to Trans-Star in lieu of salary. While this loan was being repaid, Bentz’s salary was deferred but was accruing at the rate of $50,000 per year, commencing May 1, 1990. Bentz agreed to the salary deferral as a means to alleviate the financial burden on Livery, Mystic and Trans-Star. When the payments under this deferral arrangement ultimately fell behind, the defendants agreed to remedy the arrearage.

In December, 1990, Trans-Star was forced to close down its business because Independent Freightway, Inc., terminated its operating agreement with Trans-Star. At the time it closed down, Trans-Star had an outstanding debt to BayBank Connecticut, N.A.

Thereafter, in January, 1992, Bentz learned that his salary accrual was not reflected on the books. Seeking to resolve this issue, Bentz relied on his right to payment of his salary as expressed in the agreement. When approached by Bentz, Halsey never challenged Bentz’s right to compensation, nor did he challenge the validity of the agreement. On July 1, 1992, Bentz, Kodoma and Halsey attended a meeting during which Bentz first learned that the defendants were refusing to honor their salary obligation to him.

Bentz filed the present action to recover the salary allegedly due him from the defendants. The trial court concluded that the defendants were not personally liable to Bentz for the salary obligation, determining, inter alia, that there was no evidence that Bentz was an employee, and that the agreement was ambiguous as to which persons or businesses were liable. The trial court further found that because Bentz had drafted most of the agreement, any ambiguities should be construed against him. This appeal followed.

Bentz’s claim for salary turns on (1) whether the agreement created an employee-employer relationship between Bentz and the defendants and (2) whether Bentz was in fact employed by the defendants pursuant to the agreement. Because these claims are interrelated, we will discuss them together.

The trial court dismissed the agreement as ambiguous as to who was to pay Bentz’s salary and noted that Bentz was paid by the various companies that he managed. The trial court also found that there was “no evidence” that Bentz was an employee of the defendants. Bentz claims that the trial court’s factual conclusion that he was not an employee of the defendants is clearly erroneous and the trial court’s legal conclusion that the agreement was ambiguous with regard to who was responsible for paying Bentz’s salary is improper. We agree with Bentz.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . [Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995)]. [W]e will disturb the trial court’s determination . . . only if, in light of the evidence and the pleadings on the whole record, such a conclusion could not reasonably have been reached, given the facts and the law to be applied to the facts. McClintock v. Rivard, 219 Conn. 417, 427, 593 A.2d 1375 (1991).” (Internal quotation marks omitted.) Citino v. Redevelopment Agency, 51 Conn. App. 262, 271, 721 A.2d 1197 (1998).

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).” (Internal quotation marks omitted.) In re Michael A., 47 Conn. App. 105, 109, 703 A.2d 1146 (1997).

To resolve Bentz’s claim, we must determine whether the trial court’s conclusion that the agreement is ambiguous is legally correct and whether its finding that Bentz was not an employee of the defendants was clearly erroneous.

We look first at the agreement. It provides in relevant part: “This Agreement is made this first day of February, 1989, by and between Mr. Brooks A. Bentz (Associate) and, as a group, Mr. Anthony P. Halsey, Mr. A. Searle Field, and Mr. [Jon] Kodoma (the Partners).

“The intent of this Agreement is to specify the arrangements under which the Partners will retain Associate during the interval required for the development and implementation of various projects to be mutually agreed upon.” (Emphasis added.)

Section 2.10 of the agreement provides: “Base Compensation: Associate will receive base compensation at a rate of $50,000 per year, payable semi-monthly.” (Emphasis added.)

The trial court found that the agreement was entered into between Bentz, who signed the agreement on the signature line, under which the word “Associate” was written, and each of the three defendants, who individually signed the agreement on the signature line, under which the word “Partner” was written.

In their brief, the defendants point to claimed ambiguities in the agreement regarding its term, the proposed “company-funded IRA,” the amount of fringe benefits and business expenses and Bentz’s right to participate in investments made by the partners. Conspicuously absent is any claim that the agreement was ambiguous as to the creation of an employee-employer relationship. It is that relationship that gives rise to an employer’s obligation to pay an employee’s salary.

General Statutes § 31-71a, which governs payment of wages, provides in relevant part: “(1) ‘Employer’ includes any . . . partnership . . . employing any person . . . [and] (2) ‘Employee’ includes any person suffered or permitted to work by an employer . . . .” The defendants do not contest Bentz’s status as an employee. They claim that he is someone else’s employee, not theirs.

We conclude that the parties’ unambiguous language clearly created an employee-employer relationship between Bentz and the defendants. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . When only one interpretation of a contract is possible, the court need not look outside the four comers of the contract. . . . Finally, [t]he court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.” (Internal quotation marks omitted.) Grass v. Grass, 47 Conn. App. 657, 662, 706 A.2d 1369 (1998). None of the ambiguities claimed by the defendants goes to the formation of the employee-employer relationship, but rather to the incidents of such relationship such as retirement plans, expense accounts, term of employment, etc.

The trial court agreed with the defendants’ claim that the agreement was ambiguous. “[A]ny ambiguity in the contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Id., 663. The trial court improperly found an ambiguity where none existed.

Next, we look to evidence presented at trial that demonstrates that Bentz was an employee of the defendants. During the cross-examination of Kodoma, the following testimony was elicited in support of Bentz’s claim that he was an employee of the defendants:

“[Plaintiffs Counsel]. In February and March of 1989, the Livery is just a shell company, correct?

“[Kodoma]. February and March?

“Q. Of 1989?

“A. Right.

“Q. All it has is licenses, correct?

“A. Right, and a couple of vehicles.

“Q. It has no employees, correct?

“A. No.

“Q. And it has no operating profit?

“A. No. That’s what we were hiring someone to do.” (Emphasis added.)

In its memorandum of decision, the trial court stated that “[a]s of August, 1989, Bentz was working for the defendants, Field and Halsey, not only as Trans-Star’s chief operating officer, but he also continued to oversee [Mystic’s] and Livery’s operations.” (Emphasis added.) The trial court further stated that, at a meeting on July 1, 1992, “Bentz first learned that the defendants were refusing to honor their salary obligations to him.” (Emphasis added.) These findings of the trial court as well as a review of all of the evidence leaves us with the firm conviction that the court improperly concluded that Bentz was not an employee of the defendants.

Because we have determined that the trial court’s conclusion that Bentz was not an employee of the defendants’ partnership was clearly erroneous, we now must determine whether the defendants are liable to Bentz for his unpaid salary. Generally, all partners are jointly liable for debts and obligations of the partnership. General Statutes (Rev. to 1995) § 34-53; see also Dayco Corp. v. Fred T. Roberts & Co., 192 Conn. 497, 501, 472 A.2d 780 (1984). The agreement signed by Bentz and the defendants was an employment contract obligating Bentz to perform certain business services for the defendants in exchange for a salary of $50,000 a year. Although the partners obviously hoped that the various enterprises would generate sufficient income to cover Bentz’s salary, that hope did not materialize and Bentz’s salary became an obligation of the partnership. Because, pursuant to § 34-53, partners generally are liable for the debts and obligations of the partnership, it is clear that the defendants are liable to Bentz for his unpaid salary, unless, on further proceedings in the trial court, the defendants prevail on a special defense that would preclude recovery.

Bentz also claims that the trial court improperly failed to award him damages based on Halsey’s breach of an indemnity agreement. We disagree. The indemnity agreement, drafted by Bentz and signed by Halsey, provides in relevant part: “You hereby agree to indemnify me and hold me harmless as a guarantor of those obligations from and against all liabilities and expenses, including interest, penalties and reasonable attorneys’ fees that I may incur or suffer, which arise or relate to those obligations, specifically two loans to Trans-Star, and one loan to Mystic Auto Rental Corp. by BayBank Connecticut, N.A., (the ‘Loans’) and one equipment lease covering so-called limousine-coach to Livery Ltd.”

Bentz would like this court to construe broadly the language of this agreement to include indemnification for his expenses in defending the counterclaim. We decline to do so because we agree with the trial court that the indemnity agreement covers only liability and attorney’s fees that Bentz might incur as a guarantor of certain notes. There is no evidence that Bentz was sued on the guarantee instruments evidencing the Trans-Star or Mystic loans, or had incurred any expense thereon. The trial court properly found that there was no evidence of a breach. Bentz’s claim is, therefore, without merit.

Our conclusions make it unnecessary to address the other issues raised by Bentz on appeal.

The judgment is reversed except as to the denial of Bentz’s claim of breach of the indemnity agreement and the case is remanded for further proceedings to consider the special defenses and damages.

In this opinion the other judges concurred.

       Bentz claims that the trial court improperly (1) found that the defendants, who signed Bentz’s employment agreement as partners, were not personally obligated to Bentz pursuant to the agreement, (2) concluded that an ambiguity existed in Bentz’s employment agreement with respect to who would be responsible for paying Bentz’s salary, (3) failed to award Bentz damages pursuant to his claim of promissory estoppel, (4) failed to award Bentz damages pursuant to General Statutes § 31-72, (5) failed to award Bentz damages pursuant to his claim based on unjust enrichment and (6) failed to award Bentz damages based on Halsey’s breach of an indemnity agreement.

       The parties’ goal was to establish various companies in the transportation industry.

       Livery’s assets consisted solely of the right to operate limousines in the form of licenses. Other than these licenses, Livery had no assets, operating income or vehicles. Mystic, likewise, had no assets or employees. The defendants personally financed both Livery and Mystic with their own money and with lines of credit that they had secured.

       Kodoma did not participate in this venture.

       At the time of the purchase of Trans-Star, the entity was experiencing severe financial hardship and was on the brink of dissolution with a negative net worth in excess of $600,000.

       The majority of Bentz’s claim against the defendants relates to unpaid salary from May 1, 1990, through the time Trans-Star closed down.

       In October, 1989, BayBank Connecticut, N.A., had loaned Trans-Star $500,000 on two separate loans. These promissory notes were signed by Bentz, Halsey and Field. The trial court found for Bentz on the counterclaim of Halsey and Field that sought indemnification on the note. The defendants did not appeal that finding.

       The defendants assert that there is an ambiguity in that the agreement could be interpreted to mean that the companies that Bentz would eventually manage would be responsible for his salary and not the partners. Such an interpretation would fly in the face of the plain language of the agreement, especially considering that at the time the parties entered into the agreement, no such companies had been created or acquired.

       The trial court’s memorandum of decision can be read fairly to so conclude. The court stated that the defendants “claim that the agreement is ambiguous as to who would be responsible for paying Bentz’s salary” and immediately thereafter stated that “Bentz himself drew the agreement.” The court then concluded that any ambiguity should be resolved against Bentz.

       General Statutes (Rev. to 1995) § 34-53 provides in relevant part: “All partners are liable: (a) Jointly and severally for everything chargeable to the partnership under sections 34-51 and 34r52; (b) jointly for all other debts and obligations of the partnership . . . .” Effective July 1, 1997, General Statutes § 34-53 was amended and moved to General Statutes § 34-327 (a), which provides in relevant part: “Except as otherwise provided ... all partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed by the claimant or provided by law.”

       The contract was renewable as long as the business projects continued. In fact, Bentz had worked for the defendants for fourteen months when, as a cost savings measure, Bentz’s salary went unpaid, accruing at a rate of $50,000 per year, while being repaid the $35,000 loan that he had made to Trans-Star.

       See footnote 7.

       The defendants raised several alternative grounds for affirmance that were presented as special defenses in the trial court. The trial court made no factual findings with respect to these matters because of its factual and legal conclusion that there was no employee-employer relationship here. On this state of the record, we cannot consider affirmance on a fact based alternative ground.


author: LAVERY, J.

text:
    CLAUDIOUS W. CHANNER v. STATE OF CONNECTICUT
    (AC 17857)
    Lavery, Hennessy and Kulawiz, Js.

      Argued December 15, 1998
    officially released August 24, 1999

      Claudious W. Channer, pro se, the appellant (petitioner).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (respondent).

       This appeal was argued before a panel comprised of Judges Lavery, Hennessy and Kulawiz. Although Judge Kulawiz agreed with the other two judges regarding the resolution of this appeal, she died before she had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render this written decision.

   Opinion

LAVERY, J.

The petitioner, Claudious W. Channer, appeals from the judgment of the trial court denying his petition for a new trial. On appeal, the petitioner claims that the trial court improperly (1) found that the witnesses’ recantations were not credible and that the petitioner failed to meet his burden of proving the validity of the claimed misidentification of him, and (2) applied the wrong standard in reviewing his claim. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. On June 12, 1988, Delroy Lewis and his fiancee, Dawn Jones, were riding in Lewis’ car in Hartford. At a traffic light, a car with two men in it pulled up to the passenger side of Lewis’ car, and Jones saw a gun pointed at her from the vehicle. The car swerved several times in front of and near Lewis’ car. At another traffic light, the driver of the second car exited his vehicle and told Lewis he was going to shoot him.

Lewis drove away, but the car followed and again swerved into his path. Lewis stopped his car and Jones got out. The other driver again got out of the car with a gun and threatened to kill Lewis. After again attempting to drive away from the two men, Lewis eventually got out of his car and was punched in the face by the other driver. The petitioner got out of the other car with a gun and Lewis fled. The petitioner then drove Lewis’ car from the scene.

After a jury trial, the petitioner was convicted of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4). At the criminal trial, the state offered testimony by Jones and Lewis identifying the petitioner as the perpetrator. Jones testified that on the day of the robbery she and Lewis went to the police station and were shown approximately ten photographs from which she selected the petitioner as the passenger of the other car involved in the incident. During the criminal trial, Jones made an in-court identification of the petitioner. During cross-examination, Jones reiterated that she had identified the petitioner as the passenger in the car.

At trial, Lewis testified that he was within six feet of the passenger of the vehicle at the time of the incident. He testified that he was shown a photographic array at the police station on the day of the incident and that he had selected the petitioner as the passenger who drove away with his vehicle. Lewis also made an in-court identification of the petitioner at trial.

During cross-examination, Lewis denied that he had ever been approached by anyone after the incident who suggested that the petitioner was involved in the crime. After being questioned about his brother, Lewis denied that he had a brother named “Trey” or “Tred.” Lewis also denied having been shown any photographs of individuals allegedly involved in the incident other than those shown to him by police.

On February 21, 1991, the petitioner was sentenced to twenty years imprisonment to be served consecutive to a federal sentence the petitioner already was serving. This court affirmed the judgment of conviction. State v. Channer, 28 Conn. App. 161, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992). On October 21, 1991, the petitioner filed a petition for a new trial. The trial court conducted a hearing on the petition on February 27 and April 9, 1997. The petitioner acted pro se at the hearing. In a written memorandum of decision, dated September 12, 1997, the trial court made extensive factual findings and denied the petition. We affirm the judgment of the trial court.

I

We first address the petitioner’s claim that the trial court abused its discretion in concluding that the witnesses’ recantations were not credible and that the petitioner failed to meet his burden of proving the validity of the claimed misidentification.

At the hearing on the petition for a new trial, Jones testified that she no longer believed that the petitioner was one of the perpetrators. She declined to give her address when sworn in as a witness, and stated that she still had fears about the incident and was still afraid of the petitioner. Jones testified that some time after the criminal trial, she received a letter from the petitioner at her mother’s home address. Jones responded by sending him a letter that she wrote after the trial, but prior to his sentencing. In the letter, Jones said that she felt bad for the petitioner and no longer thought he was one of the perpetrators. Subsequently, Jones signed an affidavit stating that she did not believe that the petitioner was one of the people involved in the robbery. Jones testified at the hearing that prior to the criminal trial she was shown some photographs, and she recalled that one of them depicted two people she believed were the perpetrators. Jones farther noted that one of the men in the photograph looked like the petitioner.

At the hearing, Lewis testified, contrary to his earlier testimony, that prior to the criminal trial he had been shown a photograph of two men that he recognized to be the men who stole his car. He testified that these photographs were shown to him by his brother, Denzel Stewart, who is also known as “Trey.” Lewis explained at the hearing that he conveyed that information to someone at the petitioner’s criminal trial before he testified, and he further asserted that he told that person that he wanted to drop the case against the petitioner. Although Lewis testified that he did not recall who that person was, it was his recollection that the person was in a responsible position in regard to the criminal prosecution. Further, Lewis testified that in 1994 he signed a statement in which he stated that he had misidentified the petitioner at trial and that he was willing to testify to that extent.

Lewis testified that he lied at the criminal trial when he stated that he did not have a brother named Trey. He also claimed that he told police prior to his testimony that the petitioner was not one of the perpetrators. Lewis claimed that police threatened him by saying that if he did not testify that the petitioner was the perpetrator, they would instead charge him with the crime.

James Looby, an inspector assigned to the state’s attorney’s office during the investigation, testified that he met separately with Jones and Lewis prior to the criminal trial, and that both said they had been contacted by an individual who wanted to know if they were interested in “settling” the case for money. After the criminal trial, Looby again met with Jones. Looby testified that Jones told him about the letter she received from the petitioner and said that she was fearful that the petitioner or one of his friends might do something to her or a member of her family. Looby also testified that Jones was angry that the petitioner had obtained her mother’s address. Further, Jones told Looby that the petitioner had sent her a picture, along with his letter, of a person Jones thought looked like the person who robbed her and Lewis. Looby also testified that Jones said she was relieved after the trial because she felt that everything was over, and that when the petitioner’s letter came to her mother’s house she became very scared about her safety and that of her mother.

James Howard, a detective with the Hartford police department at the time of the robbery, testified that he was present when Lewis and Jones selected the petitioner’s photograph from approximately ten photographs. Howard testified that Jones and Lewis were separated during their interviews, their viewing of the photographs and their ultimate selection of the petitioner as one of the perpetrators. Further, Howard testified that neither Jones nor Lewis ever contacted him to say that they had made mistaken identifications and he was not aware of any effort made to contact the police department with such information.

The trial court denied the petition and made specific findings as to the petitioner’s claimed newly discovered evidence. The court concluded that the recantation testimony of both Jones and Lewis was not credible and that the petitioner had failed to prove that the material testimony they gave at the criminal trial was false.

“Connecticut has long recognized petitions for new trials based on newly discovered evidence. . . . The modem standard, or an equivalent formulation, adopted by a majority of state and federal courts for granting such a petition is based on the landmark case of Berry v. State, 10 Ga. 511 (1851). Connecticut adopted this general standard as early as 1880 in Hamlin v. State, 48 Conn. 92, 93 (1880), and has since applied it in a long line of cases. . . . Under this standard, a new trial is granted if the petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence (1) is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence, (2) would be material on a new trial, (3) is not merely cumulative, and (4) is likely to produce a different result in a new trial. ... In analyzing the foregoing factors, trial courts are guided by the general principle that a new trial should be granted because of newly discovered evidence only if an injustice was done or it is probable that on a new trial a different result would be reached. . . . The scope of review of a trial court’s decision to grant a new trial on the basis of newly discovered evidence is limited to whether the trial court abused its discretion .... Connecticut cases have employed this standard, which we will refer to as the Asherman standard, in several different contexts involving newly discovered evidence.” (Citations omitted.) Johnson v. State, 36 Conn. App. 59, 63-64, 647 A.2d 373, cert. denied, 231 Conn. 946, 653 A.2d 827 (1994); see Asherman v. State, 202 Conn. 429, 521 A.2d 578 (1987).

The Johnson court further stated that “[a] standard specifically addressing the issue of false testimony was enunciated in Larrison v. United States, 24 F.2d 82 (7th Cir. 1928). False testimony may be of two types: (1) where a material witness admits to perjuring himself at trial or . . . (2) where a material witness has recanted his testimony and claims he was mistaken as to what he said at trial. See generally 3 C. Wright, Federal Practice and Procedure (1982) § 557.1. In analyzing a petitioner’s claim under these circumstances, a new trial should be granted when (1) the court is reasonably well satisfied that the testimony of a material witness is false, (2) without it the jury might have reached a different conclusion, and (3) the party seeking a new trial was taken by surprise when the false testimony was given. Larrison v. United States, supra, 87. Connecticut adopted this standard as applicable to recantations in Pradlik v. State, [131 Conn. 682, 687, 41 A.2d 906 (1945);] see also Smith v. State, 141 Conn. 202, 104 A.2d 761 (1954); Smith v. State, 139 Conn. 249, 251, 93 A.2d 296 (1952); State v. Davis, 2 Conn. Cir. Ct. 257, 262, 197 A.2d 668 (1963). Appellate review of a trial court’s decision in this regal’d is likewise conducted under an abuse of discretion standard. Pradlik v. State, supra, 687.” Johnson v. State, supra, 36 Conn. App. 64-65.

We first address the petitioner’s claim that the trial court improperly dismissed his petition in light of Lewis’ admission that he perjured himself at the criminal trial. In its memorandum of decision, the court found that Lewis had testified falsely about being shown photographs of the supposed perpetrators before the criminal trial and about the identity of his brother, Stewart, also known as Trey or Tred. Although the court found that the first prong of the Pradlik test was satisfied by this false testimony, it further concluded that the petitioner’s claim failed to meet the test’s second prong. The court concluded that the perjured testimony was not material to the issue of the petitioner’s culpability. The court found that the petitioner failed to demonstrate that the identification of him at trial would have been eroded by proof that Lewis had seen other photographs before the trial. Further, the court found that the petitioner failed to prove that Lewis’ initial identification of him at the police station was inaccurate or unreliable.

Although the trial court found unclear what Lewis’ motivations were for his failure to acknowledge his brother, his denial of having ever viewed photographs prior to the criminal trial and his change in testimony at the hearing, the court concluded that the falsities in Lewis’ testimony did not directly implicate the accuracy of his identification of the petitioner. Thus, in applying the second prong of the Pradlik test, the court concluded that although Lewis had perjured himself, the realization of his false testimony did not lead the court to believe that the underlying trial resulted in an injustice or that the availability of the information would have led to a different result.

“In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Hoth, 50 Conn. App. 77, 87-88, 718 A.2d 28, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). In this case, we conclude that the trial court’s decision is fully supported by the facts and, therefore, it could reasonably have concluded that the petitioner failed to meet his burden of proving that the absence of the perjured testimony would have led to a different trial result.

The petitioner also argues that the trial court abused its discretion in not granting him a new trial on the basis of the recantation testimony of both Jones and Lewis. Under the first prong of the Pradlik standard, the court must be convinced of the truthfulness of the witnesses’ recantations, and the court must examine all the circumstances surrounding the recantation to discern whether it is credible. Johnson v. State, supra, 36 Conn. App. 65-66. The trial court, in this case, was unpersuaded that the criminal trial testimony of either Jones or Lewis was false with respect to their initial identification of the petitioner from a photographic array or their subsequent identification of him at the criminal trial. Further, the trial court found that the petitioner had failed to prove any error in the criminal trial testimony of either Jones or Lewis identifying the petitioner as the person whose photograph they selected at the police station.

“Recantation as grounds for a new trial has always been viewed with skepticism. Well over one hundred years ago, our Supreme Court enunciated this skepticism in Shields v. State, 45 Conn. 266, 270 (1877) as follows: ‘After the trial is over and the accused stands convicted, with the heavy penalty of the law impending and just ready to fall upon him, how easy by artful or even honest suggestion to awaken a sympathy even in the heart of the victim, who was the main, perhaps only witness against the accused, and who naturally feels responsible for the conviction; and how easy for such witness by a process of speculation, colored by feeling, to feel and express a doubt about the correctness of the opinion entertained at the time of the transaction.’ ” Johnson v. State, supra, 36 Conn. App. 69.

In this case, the trial court reasonably found that the testimony of Jones and Lewis at the hearing on the petition for a new trial lacked credibility. The court concluded that it was unbelievable that their individual selections of the petitioner’s photograph from a photographic array and their subsequent identification of the petitioner at his criminal trial were mistaken. The court found that Jones was still afraid of the petitioner. Further, the trial court concluded that the exculpatory statements and testimony given by Jones following the criminal trial were the product of intimidation and fear. The court found her testimony was not credible. The court also found that Lewis was not credible and that his recantation was not believable.

It is for the trial court as the fact finder to determine the credibility of the recantations. “ ‘[I]t is the court’s right to consider evidence, draw logical deductions and make reasonable inferences from the facts proven.’ ” Talton v. Warden, 33 Conn. App. 171, 179, 634 A.2d 912 (1993), aff'd, 231 Conn. 274, 648 A.2d 876 (1994). “We cannot retry the matter, nor can we pass on the credibility of a witness.” Id. The trial court was in the best position to observe and determine the credibility of the witnesses, and to discern the motivations for their recantations. The facts set forth in the court’s memorandum of decision are supported by the evidence. We, therefore, conclude that the trial court did not unreasonably find that the recantation testimony was not credible and that the petitioner failed to meet the first prong of the Pradlik test.

II

The petitioner next claims that the trial court applied the wrong standard of review. Specifically, the petitioner focuses on the trial court’s finding as to Lewis’ perjured testimony. The petitioner cannot prevail on this claim.

In its memorandum of decision, the trial court concluded that “Lewis is a perjurer. The realization of that information, however, does not lead the court to believe that the underlying trial resulted in an injustice, or that the availability of this information would have led to a different result.” (Emphasis added.) The petitioner argues that the trial court applied the wrong standard in its analysis of this newly discovered evidence. The petitioner’s argument focuses on the trial court’s use of the word “would” and claims that the court used a more stringent standard than that required by Pradlik. We disagree and conclude that the trial court applied the proper standard.

In Lombardo v. State, 172 Conn. 385, 374 A.2d 1065 (1977), our Supreme court held that “[w]hether a new trial should be granted does not turn on whether the evidence is such that the jury could extend credibility to it. . . . The plaintiff must persuade the court that the new evidence he submits will probably, not merely possibly, result in a different verdict at a new trial, or that an injustice has been done. Pradlik v. State, [supra, 131 Conn. 686]. It is not sufficient for him to bring in new evidence from which a jury could find him not guilty—it must be evidence which persuades the judge that a jury would find him not guilty.” (Citation omitted; emphasis in original.) Lombardo v. State, supra, 390-91; see Gray v. State, 51 Conn. App. 689, 693, 725 A.2d 364 (1999). We, therefore, conclude that the trial court did not apply an improper standard in this case in its analysis of Lewis’ false testimony. The trial court’s conclusion that the newly discovered evidence did not lead the court to believe that the underlying trial resulted in an injustice, or that the availability of this information would have led to a different result does not indicate to this court that an improper standard was used. We conclude that the trial court applied the proper standard in this case.

The judgment is affirmed.

In this opinion HENNESSY, J., concurred.

       At trial, Jones testified that the petitioner looked different from the man involved in the incident. Upon further direct examination, Jones reviewed the photographs from the original photographic array and again picked out the photograph of the petitioner. She again testified that the picture depicted the passenger in the car involved in the robbery, adding that the petitioner now looked different.

       The peütion for a new trial was filed on October 21,1991, in the judicial district of Hartford-New Britain at Hartford. The petitioner’s appeal from his conviction was denied in 1992, and the trial court, Bishop, J., denied the petitioner’s petition for a writ of habeas corpus on February 8, 1996. On August 2,1996, the action on the petition for a new trial was transferred to the judicial district of Tolland, and the hearing on the petition was held in February, 1997.

       Jones testified that she thought these photographs were shown to her on the petitioner’s behalf. Although Jones did not remember who had shown her the pictures, she thought it was Lewis’ brother, Tred.

       This written statement was made an exhibit at the petitioner’s hearing for a new trial. Lewis testified that he did not know who prepared it, but that it was given to him by his brother.


author: PER CURIAM.

text:
    E. J. ELLIOTT ET AL. v. RAYMOND STARON, EXECUTOR (ESTATE OF PAULINE STARON)
    (AC 17774)
    O’Connell, C. X, and Sullivan and Spallone, Js.
    Argued April 19
    officially released August 31, 1999

      Kenneth J. Bartschi, with whom were Wesley W. Horton and, on the brief, Andre Nagy and Michele C. Camerota, legal intern, for the appellant (defendant).

      Heidi McGee, with whom, on the brief, was Daniel Shepro, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

This is an appeal from the judgment of the trial court rendered for the plaintiffs, holding that the defendant breached the lease between the parties. The defendant, Raymond Staron, executor, claims that the trial court improperly concluded that he (1) breached the lease and the implied covenant of good faith and fair dealing and (2) tortiously interfered with the plaintiffs’ business relations, thereby committing a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

This action was commenced by the plaintiffs, E. J. Elliott, and John M. Elliott, against the defendant, Raymond Staron, executor of the estate of Pauline Staron, seeking damages arising from a lease agreement between the parties, pertaining to 3355 Post Road in Fairfield. The revised complaint, in four counts, alleges breach of contract, tortious interference of a business relationship, breach of an implied covenant of good faith and fair dealing and a violation of CUTPA. The defendant has responded with, inter alia, a counterclaim seeking to recover attorney’s fees incurred during a prior action between the parties.

The trial court found the issues for the plaintiffs and rendered judgment on the complaint that the plaintiffs recover $351,000 in damages and rendered judgment for the plaintiffs on the defendant’s counterclaim.

Our examination of the record and briefs, with due accord given arguments of counsel, persuades us that the trial court’s judgment should be affirmed. The issues regarding the underlying disputes advanced in the complaint and counterclaim were resolved properly in the trial court’s memorandum of decision. Elliott v. Staron, 46 Conn. Sup. 38, 735 A.2d 902 (1997). Because that memorandum of decision fully addresses the arguments raised on appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgment is affirmed.