text:
    Lee H. Knight et al. v. Herbert L. Breckheimer et al.
    (2648)
    Hull, Spallone and Daly, Js.
    Argued February 6
    decision released April 2, 1985

      Ernest F. Teitell, for the appellants (plaintiffs).

      John C. Parker filed a brief for the appellees (defendants).
   Daly, J.

The plaintiffs instituted an action for damages against the defendants alleging fraudulent misrepresentation, failure to disclose and breach of warranty arising out of the sale of a residence. From a judgment rendered by the trial court in favor of the defendants, the plaintiffs have appealed.

The trial court found the following facts: On July 1, 1976, the parties entered into a written agreement whereby the plaintiffs would purchase the defendants’ home located at 24 Glen Hill Road, Wilton. The defendants, whose family consisted of three people, had not encountered any serious problem with the septic system for the eleven years they owned the premises. The system had been cleaned five times during that period but required no further servicing. The defendants made no representations concerning the system but, if asked, would have indicated they encountered no problems. The plaintiffs, whose menage consisted of nine people, had the premises inspected by a contractor prior to the closing and nothing in his report indicated any problem with the septic system. Shortly after the closing and taking occupancy, the plaintiffs experienced difficulty with the system.

The court further found that the sales agreement stated that the plaintiffs examined the premises and were satisfied with its condition, and that the defendants had not made any representations upon which the plaintiffs relied. The agreement did not contain warranties express or implied beyond the date of closing.

The trial court concluded that the plaintiffs failed to sustain their burden of proof concerning material misrepresentations made by the defendants regarding the septic system which induced the plaintiffs to purchase the premises, or concerning nondisclosure of facts which it was the defendants’ duty to divulge. Further, since there was no actionable fraud, the plaintiffs’ breach of warranty action failed.

The plaintiffs have challenged the trial court’s findings of fact and conclusions of law. “The plaintiff misconceives the function of this court. The trial court was presented with conflicting evidence and it is apparent that credibility was a crucial factor. ‘We cannot retry the facts or pass upon the credibility of the witnesses.’ Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975); see Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972).” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). “At the outset of our consideration of this claim, we point out that the plaintiff’s review in its brief of the evidence it presented to the trial court, undertaken to demonstrate the reliability of that evidence, does not avail it on appeal. We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” Id., 222.

The defendants denied receiving any inquiry or making any oral representations about the septic system. The credibility of witnesses is a matter for the trier. Holden & Daly, Connecticut Evidence (Sup. 1983) § 125 (a), pp. 449-51. Hence, we find no error as to the first two counts.

As to the third count, the defendants concur that there are separate actions for fraud and breach of warranty. The plaintiffs maintain that the warranties and representations that the “septic system . . . shall be in working order” remain extant and survive the acceptance of the deed. The defendants claim that a merger occurred.

The general rule is that “acceptance of a deed in pursuance of articles of agreement for the conveyance of land is prima facie the completion of the contract; and all stipulations contained therein . . . are merged in the deed although omitted therefrom.” Annot., 84 A.L.R. 1008, 1010.

The plaintiffs rely on Campbell v. Rawls, 381 So. 2d 744, 746 (Fla. Dist. Ct. App. 1980), which held that the warranty (air conditioning and heating systems to be in working order at the time of closing) did not merge with the execution and delivery of the deed. The court acknowledged that merger does not apply to those provisions of the antecedent contract which the parties do not intend to be incorporated in the deed.

In our case, the agreement specifically provides that “[t]he Buyer agrees that the provisions of this paragraph shall not survive the delivery of the deed” and is not excepted from the merger doctrine. Unlike Smith v. Frank, 165 Conn. 200, 202, 332 A.2d 76 (1973), where a house was found not to be in good working order on the day of closing despite representations to the contrary, there is no evidence that the septic system was not in good working order at the time of closing. The trial court was justified in relying on the merger for the failure of the breach of warranty count.

There is no error.

In this opinion the other judges concurred.

       The sales agreement provides: “The Buyer further agrees that he has examined the premises and that he is fully satisfied with the physical condition thereof and that neither the Seller nor any representative of the Sellers, has made any representation upon which the Buyer relies, with respect to the condition of the property covered by this agreement, except as hereinbefore expressly set forth.”

       The sales agreement provides in pertinent part that “the Seller agrees that at the delivery of the deed that the premises will be in substantially the same condition as at present, reasonable wear and tear excepted, [and] that the . . . septic system . . . shall be in working order. . . . The Buyer agrees that the provisions of this paragraph shall not survive the delivery of the deed.”

       We note that we are not dealing with new home warranties under chapter 827 of the General Statutes. See Scribner v. O’Brien, Inc., 169 Conn. 389, 402, 363 A.2d 160 (1975).


source: Caselaw Access Project

author: ClOFFi, J.

license: Public Domain

text:
    Ronald Ravizza et al. v. Anna Waldie et al.
    (2714)
    Dupont, C.P.J., Callahan and Cioffi, Js.
    Argued March 7
    decision released April 9, 1985

      Joseph R. Lupica, with whom, on the brief, was James G. Green, Jr., for the appellants (defendants).

      Edith S. Rosen, with whom, on the brief, was Samuel J. Henderson, for the appellees (plaintiffs).
   ClOFFi, J.

The issue in this case is what constitutes a clerical error in a judgment. The plaintiffs brought an action to quiet title to a parcel of land in the town of Cromwell. The defendants counterclaimed, claiming title by adverse possession as to a portion of the parcel. The trial court quieted title in the plaintiffs except as to a portion of the parcel which the court found belonged to the defendants by way of adverse possession. In its memorandum of decision dated January 13, 1982, the trial court stated: “[T]he court concludes that the land in dispute claimed by the plaintiffs is that included in the lines delineated in red and drawn by the Court on [the] map, Exhibit Z. This constitutes approximately eight acres.”

A judgment file was prepared and signed by the clerk. Although it mentioned the red line, it did not refer to “approximately eight acres.” No appeal from this judgment was taken by either party. In the summer of 1982, the parties jointly hired a surveyor to establish formal boundary lines in accordance with the trial court’s decision. The surveyor informed the parties that he could not complete his task as ordered because the memorandum of decision described the parcel as consisting of “approximately eight acres” while the parcel designated by the trial court’s diagram on the plaintiffs’ exhibit Z consisted of only five acres. Upon learning of this supposed discrepancy, the defendants on September 23,1983, filed a motion to correct clerical error in judgment. The thrust of the defendants’ argument in support of their motion was that, on the basis of the pleadings and the evidence, the trial court made a mistake in drawing the line on exhibit Z, which only encompassed five acres, and should correct itself and redraw the line to give title to the defendants to a larger portion of the disputed land. The trial court denied the motion and the defendants appeal therefrom, claiming an abuse of discretion.

In a decision dated October 24,1983, the court stated that it had based its original decision on the “use of a given piece of land within the disputed area.” (Emphasis added.) In addition, the court stated: “This motion claimed to be a motion to correct a clerical error and required in reality a complete retrial of the case.” It is clear that the trial court intentionally located the line “within” the disputed area and did not intend otherwise. It was the intention of the court to have the red line control the area in question rather than the phrase “approximately eight acres” contained in the memorandum of decision. The word “this” in the language previously quoted from the original decision could refer either to the land in dispute which consisted of eight acres or to the line drawn by the court on the map. The trial court’s memorandum of decision denying the defendants’ motion to correct establishes that it intended “this” to refer to the latter.

A clerical error is a mistake or omission in a judgment which is not the result of the judicial function. Such a claimed error does not challenge the court’s ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court. 46 Am. Jur. 2d, Judgments § 202.

In the present case, the judgment reflects the decision of the trial court. This is manifested by the trial court's memorandum of decision dated October 24, 1983. No valid claim can be made that there was an error in recordation of the actual decision of the court. Therefore, even though the defendants have sought to characterize the alleged error as “clerical,” the thrust of the defendants’ argument is that the trial court could not have reached the conclusion that it did reach on the basis of the pleadings and record. Therefore, the claimed error is one of substance and thus should have been raised by an appeal from the judgment.

There is no error.

In this opinion the other judges concurred.


author: Per Curiam.

text:
    Virginia Bailey v. Administrator, Unemployment Compensation Act, et al.
    (3109)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued January 10
    decision released April 9, 1985

      Virginia M. Bailey, pro se, the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (named defendant).
   Per Curiam.

This is an appeal from a judgment of the Superior Court dismissing the plaintiff’s appeal from the decision of the employment security board of review denying the plaintiff unemployment benefits. The plaintiff was employed as a private duty nurse’s aide for a period of approximately three years, until she was discharged for wilful misconduct. The board of review essentially adopted the findings of the appeals referee who found that the plaintiff had deliberately violated rules of conduct established by the employer, ranging from conflicts with fellow workers to disloyalty and insubordination.

The plaintiff principally claims that the board of review acted unreasonably, arbitrarily or illegally, and, therefore, the decision denying her eligibility for benefits should be overturned. Pursuant to General Statutes § 31-236 (2) (B), an individual is ineligible for unemployment compensation benefits if he is discharged for repeated wilful misconduct in the course of his employment. In this context, “wilful misconduct” refers to conduct evincing a wilful disregard of an employer’s interest such as deliberate violations of the employer’s procedures or a disregard of expected standards of behavior. Hannon v. Administrator, 29 Conn. Sup. 14, 17, 269 A.2d 80 (1970); see also DeMilo v. West Haven, 189 Conn. 671, 678, 458 A.2d 362 (1983). Wilful misconduct includes deliberate disobedience or the intentional violation of a known rule. A. C. Gilbert Co. v. Kordorsky, 134 Conn. 209, 211-12, 56 A.2d 169 (1947); Bigelow Co. v. Waselik, 133 Conn. 304, 308, 50 A.2d 769 (1946).

In appeals of this nature, the Superior Court does not try the matter de novo and is bound by the findings of subordinate facts and reasonable conclusions made by the appeals referee. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 4-5, 434 A.2d 293 (1980); Lazarcheck v. Administrator, 1 Conn. App. 591, 594, 474 A.2d 465 (1984).

Perusal of the referee’s findings reveals that the plaintiff’s conduct extended beyond mere inefficiency, inability or misjudgment.

The referee’s conclusion that the plaintiff had engaged in repeated wilful misconduct was supported by the subsidiary facts found and was not unreasonable or arbitrary.

There is no error.


text:
    Eaton’s Brook Association et al. v. Planning and Zoning Commission of the Town of Hamden et al.
    (2163)
    Hull, Borden and Spallone, Js.
    Argued February 8
    decision released April 9, 1985

      Linda P. Francois, for the appellants (plaintiffs).

      Hugh I. Manke, for the appellee (named defendant).

      Salvatore L. Diglio, for the appellees (defendant Neil A. Velleca et al.).
   Per Curiam.

We have carefully considered the claims of error raised by the plaintiffs and have found them to be without merit.

There is no error.

       This zoning appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c). At that time, litigants in zoning cases could appeal as of right to that court. Public Acts 1981, No. 81-416, § 3. Such appeals are now subject to a grant of certification by this court. General Statutes § 8-8.


author: Dupont, C.P.J.

text:
    State of Connecticut v. John Millhouse
    (2237)
    (2238)
    (2239)
    (2240)
    (2241)
    (2242)
    Dupont, C.P.J., Hull and Daly, Js.
    Argued November 9, 1984
    decision released April 9, 1985

      Keith Findley, certified legal intern, and Mary A. McCarthy, with whom, on the brief, were John L. Pottenger, Jr., Stephen Wizner and Sally Zanger, for the appellant (defendant).

      Maureen Norris, certified legal intern, and Catherine J. Capuano, deputy assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Dupont, C.P.J.

This is an appeal by the defendant from the trial court’s denial of his motion for the modification of sentences which were imposed following his guilty pleas to crimes charged in seven informations. The court based its denial on its lack of jurisdiction under General Statutes § 53a-39 to modify sentences in excess of three years.

The basic issue of this case is whether General Statutes § 53a-39, as amended by Public Acts 1982, No. 82-428, effective June 8, 1982, applies to the defendant whose crimes were all committed prior to that date, but who was sentenced after that date, and, if so, whether the statute is constitutionally impermissible as a violation of the ex post facto clauses of the United States constitution.

A second issue must also be addressed. General Statutes § 53a-39, after its amendment of June 8,1982, was in direct conflict with Practice Book § 934 until October 1,1983, when an amendment to the latter became effective, conforming it to the statute. At the date of sentencing, June 18,1982, and as of the date the motion to modify the sentences was filed, June 18, 1983, the rule allowed a court to modify a definite sentence in excess of three years, whereas the statute did not.

The rule, until October 1,1983, and the statute, until June 8, 1982, both provided in part as follows:

“At any time during the period of a definite sentence, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditonal discharge for a period not to exceed that to which he could have been originally sentenced.”

Effective June 8,1982, the statute, but not the rule, was amended to allow only changes in definite sentences of three years or less, as opposed to modification of all definite sentences, regardless of their length.

The amendment of General Statutes § 53a-39 was occasioned by the shift in Connecticut from indeterminate to determinate sentencing. At the time the defendant committed the crimes, and at the time he pleaded guilty, the system of sentencing was determinate. Public Acts 1980, No. 80-442. The same act provided for a review of sentences in excess of three years by the sentence review board, while leaving intact General Statutes § 53a-39 which provided for a review of all definite sentences. The purpose of the amendment to General Statutes § 53a-39 was to limit the sentencing judge or court to a review of definite sentences of three years or less, thereby creating a cohesive body of law relative to sentencing.

Prior to the amendment of General Statutes § 53a-39 and prior to Public Acts 1980, No. 80-442, those sentenced to Cheshire to a determinate sentence in excess of one year could either seek sentence modification under the Sentence Review Act or pursuant to General Statutes § 53a-39. If the former route were chosen, an application for review of the sentence had to be made within thirty days, and if the latter, a motion to modify could be made at any time during the period of the definite sentence. Those committing crimes and sentenced to Cheshire prior to June 8,1982, for determinate terms in excess of three years, therefore, had a right to seek a reduction in sentence under General Statutes § 53a-39.

Under General Statutes § 53a-39, as amended, those sentenced to Cheshire for a term in excess of three years may no longer seek a reduction in sentence by motion to the sentencing judge or court but must make application within thirty days to the sentence review board.

Until June 8, 1982, General Statutes § 53a-39 provided a mechanism whereby any definite sentence at any time could be reduced at the discretion of the sentencing judge or court. The provisions pertaining to the sentence review board, General Statutes §§ 51-194 through 51-197, also provided a mechanism for review, but a review with the risk that the sentence might be increased, unlike the review of General Statutes § 53a-39 which carried with it no such risk. The sentencing court or judge, in reviewing applications for sentence modifications of definite sentences, performs a function similar to that of a parole board. Michaels v. York, 31 Conn. Sup. 350, 352, 330 A.2d 466 (1974). The relief which can be provided, however, is more extensive since the sentence may be reduced or the defendant may be discharged.

General Statutes § 53a-39 is not, by its terms, expressly retrospective. It applies to those serving definite terms of three years or less but does not state whether it is to apply to those committing crimes prior to its effective date.

A statute effecting substantial changes in the law cannot be given retrospective effect unless it is clear such was the legislative intent. State v. Paradise, 189 Conn. 346, 456 A.2d 305 (1983). Furthermore, a criminal statute should never be applied retrospectively unless that construction is necessary. Id., 352. In construing a penal statute, in order to determine whether its application is retrospective, it is the date of the crime which controls. State v. Paradise, supra. Otherwise, the penal statute is possibly invalid because it changes, to the defendant’s detriment, the law in effect at the date of the offense, thereby violating the constitutional prohibition against ex post facto laws. Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d. 17 (1981); see Lindsey v. Washington, 301 U.S. 397, 57 S. Ct. 797, 81 L. Ed. 1182 (1937); United States v. McCall, 709 F.2d 852 (3d Cir. 1983); Rodriguez v. United States Parole Commission, 594 F.2d 170 (7th Cir. 1979); Shepard v. Taylor, 556 F.2d 648 (2d Cir. 1977). A criminal statute which applies to crimes occurring before its passage, which disadvantages the defendant and which provides a greater punishment than that existing as of the date the crimes occurred is an ex post facto statute. Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53 L. Ed. 2d. 344 (1977).

A statute which removes a sentencing court’s discretion to impose less than the maximum sentence can not be applied to persons who have committed crimes prior to the enactment of that statute, since it forecloses, to the defendant’s disadvantage, the opportunity to receive less than the maximum sentence. Lindsey v. Washington, supra.

Similarly, a criminal statute applied retrospectively to reduce the defendant’s opportunity to shorten his time in prison by earning good time credits violated the ex post facto clause. Weaver v. Graham, supra. Reduction or elimination of the defendant’s opportunity for obtaining parole has been held to violate the ex post facto clause. Id.; Dufresne v. Baer, 744 F.2d 1543, 1549 n.18 (11th Cir. 1984); Rodriguez v. United States Parole Commission., supra.

Although the consequences of a crime, in terms of punishment, including such matters as parole eligibility, cannot be definitively established until the date of sentencing, it is the date of the crime which controls the possible punishment for the offense. United States v. McCall, supra. If General Statutes § 53a-39, as amended, were to be applied to the defendant, he would be substantially disadvantaged, in that, at the time he committed the crimes, he could have received sentences for them which would have been subject to review at any time by the sentencing judge, without any risk that the sentences would be increased, and might have been liberated from all custody and control. The defendant’s expectation of a particular statutory punishment, including the ability to gain review of that punishment, was frozen in time as of the dates of the commission of his crimes, and that punishment cannot be changed by a subsequent statutory shift in punishment.

There is error, the judgment denying the defendant’s motion for modification of sentences is vacated and the case is remanded for a hearing on the defendant’s motion.

In this opinion the other judges concurred.

       The defendant’s total effective sentence for all the crimes in the seven informations was eight years, with execution suspended after six years, and three years probation. All of the sentences were to be served at the Connecticut correctional institution at Cheshire. No appeal was taken in connection with the denial of the motion for modification as to one of the sentences, that of eight years, suspended after six years. The sentences for the remaining six informations were of varying definite terms of imprisonment, no one of which exceeded six years, and all of which were to run concurrently with each other and with the seventh sentence. The state has not advanced any claim based on the failure to appeal from the denial of the motion to modify all of the sentences. In view of this court’s decision that the trial court had the authority to modify the defendant’s sentences, the sentence which is not a subject of this appeal may, upon renewed motion, also be modified, after a hearing, upon good cause shown, and at the discretion of the sentencing judge or court.

       The constitution of the United States, article one, § 9 provides: “No ... ex post facto Law shall be passed.” The constitution also expressly provides no state shall pass such a law. U.S. Const., art. I § 10.

       There is no need, in this case, to resolve whether the separation of powers provision of the Connecticut constitution was transgressed by the passage of legislation discordant with an existing judicial rule since we hold that General Statutes § 53a-39, as amended, applies prospectively only, to crimes committed after June 8, 1982. Had the defendant in this case committed crimes after June 8,1982, and before October 1,1983, however, the issue would have been raised.

       See Public Acts 1980, No. 80-442; House Bill 5127, Statement of Purpose.


text:
    State of Connecticut v. James Moore
    (3315)
    Borden, Spallone and Daly, Js.
    Argued February 8
    decision released April 9, 1985

      Robert F. Field, assistant public defender, for the appellant (defendant).

      James M. Bemardi, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

After a jury trial, the defendant was convicted of burglary in the third degree; General Statutes § 53a-103; conspiracy to commit burglary in the third degree; General Statutes § 53a-48; larceny in the third degree; General Statutes § 53a-124; and conspiracy to commit larceny in the third degree; General Statutes § 53a-48. On appeal, the defendant claims that there was insufficient evidence to support his conviction.

“The test employed in determining whether the evidence is sufficient to sustain a verdict is whether the trier could reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). In applying this test, the evidence presented at trial is to be given a construction most favorable to sustaining the jury’s verdict. Id.” State v. Davis, 3 Conn. App. 359, 488 A.2d 837 (1985). It is the function of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. State v. Shipman, 195 Conn. 160, 165, 486 A.2d 1130 (1985). If there is any way that the jury might have reconciled the conflicting testimony presented to them, we will not disturb their verdict. State v. Myers, 193 Conn. 457, 473, 479 A.2d 199 (1984).

We have examined the evidence in the light most favorable to sustaining the verdict and conclude that there is no merit to the defendant’s claim.

There is no error.


text:
    Shetucket Plumbing Supply, Inc. v. Solar Processes, Inc., et al.
    (2498)
    Dupont, C.P.J., Hull and Spallone, Js.
    Submitted on briefs January 16
    decision released April 9, 1985

      Frederick J. Miaño filed a brief for the appellant (defendant Gordon Preiss).

      Christopher M. Reeves filed a brief for the appellee (plaintiff).
   Per Curiam.

The defendant Gordon Preiss, president of Solar Processes, Inc., appeals from a judgment rendered against him in his personal capacity in an action for the balance due on goods sold on account by the plaintiff to Solar Processes, Inc. Preiss claims that the trial court erred (1) in finding that he personally guaranteed the debt of the corporation in writing, and (2) in admitting parol evidence on the issue of whether he signed the guarantee as president of the corporation or in his personal capacity.

On July 11,1978, Preiss completed an application to purchase goods on credit from the plaintiff for the benefit of Solar. The relevant provision of the credit application provides as follows: “If the business is now or should in the future become a corporation, I still agree to be personally responsible at all times for any bill due to you.” Beneath the provision appears the signature “Gordon W. Preiss President.”

The corporate defendant, Solar, stipulated that it owed the debt in the amount of $4005.83 and judgment was rendered against it in that amount. The trial court, after a trial, found that the defendant Preiss was a personal guarantor of the corporations’s debt under the credit application, and rendered judgment against him. Whether Preiss signed the application in a representative capacity was a question of fact determined by the trial court. The reviewing court on appeal does not retry the facts or pass upon the credibility of the witnesses. See Hobby v. Feldman, 2 Conn. App. 696, 482 A.2d 1226 (1984). The introduction of the testimony of Preiss regarding his intention as to the written guarantee was admitted at his own insistence. He cannot claim error in the admission of testimony which he introduced. See Bansak v. Pawelczyk, 173 Conn. 520, 523, 378 A.2d 569 (1977).

There is no error.


text:
    Schneider Hardware Company v. Solar Processes, Inc., et al.
    (2226)
    Dupont, C.P.J., Hull and Spallone, Js.
    Submitted on briefs January 16
    decision released April 9, 1985

      Frederick J. Miaño filed a brief for the appellants (defendants).

      William C. Kollman II filed a brief for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    In re Juvenile Appeal (85-4)

    (2228)
    Hull, Spallone and Daly, Js.
    Argued February 6
    decision released April 9, 1985

      Barry J. Ward, for the appellant (mother of the minor children).

      Judith M. Earl, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey and Marcia J. Speziale, assistant attorneys general, for the appellee (commissioner of children and youth services).

      William E. McCoy, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, 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.

   Per Curiam.

The respondent in this appeal from the termination of her parental rights has attacked the factual findings of the trial court. Our review of this case discloses that the court’s findings, pursuant to the criteria set forth in General Statutes §§ 17-43a (b) (2) and 17-43a (b) (3), were amply supported by clear and convincing evidence. The court appropriately considered the statutory criteria and did not, as the respondent claims, apply an all-encompassing “best interests” standard. See In re Juvenile Appeal (Anonymous), 177 Conn. 648, 672, 420 A.2d 875 (1979); In re Juvenile Appeal (84-3), 1 Conn. App. 463, 467, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984).

The function of this court on appeal is to determine whether the trial court’s conclusion was clearly erroneous. Piantedosi v. Floridia, 186 Conn. 275, 276, 440 A.2d 977 (1982). We have determined that it was not.

There is no error.


text:
    New Haven Savings Bank v. Richard S. Gurland et al.
    (2660)
    Dupont, C.P.J., Callahan and Cioffi, Js.
    Argued February 21
    decision released April 9, 1985

      Roy PL. Scharf for the appellant (named defendant).

      Roger J. Frechette, for the appellee (plaintiff).
   Per Curiam.

In this action for foreclosure of a mortgage, the named defendant has appealed from the trial court’s denial of his third motion to “reopen judgment and extend law day.” “A motion to open a judgment of strict foreclosure is addressed to the discretion of the trial court; see General Statutes § 49-15; and ‘ “unless that discretion was abused or was based upon some error in law, the denial of the motion must stand.” Carrington v. Muhlfeld, 122 Conn. 334, 337, 189 A.2d 184 [1937].’ Sebastiano v. Corde, 171 Conn. 324, 325-26, 370 A.2d 946 (1976).” Melillo v. Spiro, 187 Conn. 333, 334, 445 A.2d 921 (1982). The named defendant has failed to show that the trial court abused its discretion or that its exercise of discretion was based on an error in law.

There is no error; the case, however, is remanded with direction to render judgment as on file except for such modification as is made necessary by the lapse of time since the original judgment.


author: Per Curiam:.

text:
    DiChello Distributors, Inc. v. Connecticut Fork Lift, Inc.
    (2908)
    Hull, Spallone and Daly, Js.
    Argued March 6
    decision released April 16, 1985

      Simon Sumberg, for the appellant (plaintiff).

      Susan S. Chambers, for the appellee (defendant).
   Per Curiam:.

There is no error.


text:
    Connecticut Bank and Trust Company v. Pamela Wilcox et al.
    (2652)
    Hull, Spallone and Daly, Js.
    Argued February 13
    decision released April 16, 1985

      David S. Grossman, for the appellants (defendants).

      Jackson T. King, with whom, on the brief, was Mary E. Holzworth, for the appellee (plaintiff).
   Per Curiam.

The defendants take this appeal from the judgment of the trial court finding them to be guarantors of a corporate note and personally liable thereon.

The defendants’ claim that the plaintiff should not have been allowed to amend its complaint to conform to the proof has no merit. In the discretion of the trial court, pleadings may be amended before, during and after trial to conform to the proof. Only upon a clear showing of abuse of discretion will the trial court’s ruling in that regard be disturbed. Wilburn v. Mount Sinai Medical Center, 3 Conn. App. 284, 287, 487 A.2d 568 (1985).

As to the remaining claims of error raised by the defendants, we once again find ourselves confronted with an attack on the trial court’s conclusions of fact. Notwithstanding the terms in which these claims have been couched, it is apparent that the defendants would like us to retry this case. So well established is the principle that we will not overturn the factual findings of the trial court that we do not find it necessary to cite any cases in support of that proposition.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).


text:
    Fowler Convalescent Hospital v. Simeone and Wendler Architects, Inc., et al.
    (2687)
    Spallone, Higgins and Wagner, Js.
    Argued March 1
    decision released April 16, 1985

      Louis B. Blumenfeld, with whom, on the brief, were Karen J. Casey and Brian S. Carlow, for the appellant (named defendant).

      Donn A. Swift, for the appellee (plaintiff).
   Per Curiam.

This is an appeal from an order of the trial court requiring arbitration pursuant to General Statutes § 52-409. The order is not a final judgment from which an appeal lies. Schwarzschild v. Martin, 191 Conn. 316, 323-25, 464 A.2d 774 (1983).

Accordingly, the appeal is dismissed.


author: Spallone, J. Hull, J.,

text:
    Ronnie Wright v. David Bourbeau et al.
    (2598)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued November 7, 1984
    decision released April 16, 1985

      Thomas J. Ullmann, assistant public defender, with whom, on the brief, was Douglas Nash, assistant public defender, for the appellant (plaintiff).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellees (defendants).
   Spallone, J.

The plaintiff, Ronnie Wright, was charged in North Carolina with rape, burglary, armed robbery and two counts of breaking and entering. On January 27, 1983, he was arrested in Connecticut on a warrant charging him with being a fugitive from justice in North Carolina. He was incarcerated in lieu of bond and served by the defendant David Bourbeau, a Connecticut state trooper, with a rendition warrant, signed by the governor of Connecticut in response to a request for extradition signed by the governor of North Carolina. The plaintiff thereafter petitioned for a writ of habeas corpus challenging the warrant under which he is held for rendition. After a full hearing, the petition was denied and the plaintiff now appeals from that judgment.

The sole issue in this appeal is whether the documents filed in support of the rendition warrant meet the statutory requirements of General Statutes § 54-159. The plaintiff claims that they do not. We disagree.

General Statutes § 54-159 provides that no demand for extradition shall be recognized by the governor unless in writing and accompanied by certain documents. The documents presented with the demand to extradite the plaintiff, and admitted as exhibits at the habeas corpus hearing, included five arrest warrants and one affidavit. Two of the warrants were issued, respectively, on September 1,1982, and September 21, 1982, and the remaining three were issued on October 1,1982. The affidavit was dated February 7,1983. The defendant claims that compliance with the provision of General Statutes § 54-159, which allows a requisition warrant to be supported by “a copy of an affidavit made before a magistrate [in the requesting state], together with a copy of any warrant which was issued thereupon,” is only possible if the affidavit either predates or is signed contemporaneously with the warrants. A close examination of the warrants and affidavit in this case, as well as the law, leads us to disagree.

The Uniform Criminal Extradition Act codifies the procedure for the interstate extradition of fugitives, which is a right of the states created by the United States constitution. Hill v. Blake, 186 Conn. 404, 407, 441 A.2d 841 (1982). The extradition act provides the procedural mechanism for the summary disposition of extradition cases. Glavin v. Warden, 163 Conn. 394, 395 n.1, 311 A.2d 86 (1972). “The custodial court may not inquire into the merits of the charge or into any claimed procedural infirmities, constitutional or otherwise, lurking in the prosecution. Michigan v. Doran, [439 U.S. 282, 289, 99 S. Ct. 530, 58 L. Ed. 2d 521 (1978)]; Ross v. Hegstrom, 157 Conn. 403, 409, 254 A.2d 556 (1969); Rosenberg v. Slavin, 122 Conn. 304, 308, 188 A. 272 (1936). Such matters are to be determined by the court in the charging state. Ross v. Hegstrom, supra.” Narel v. Liburdi, 185 Conn. 562, 565, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928, 102 S. Ct. 1974, 72 L. Ed. 2d 445 (1982). Once extradition has been granted, a court considering release on habeas corpus examines the following questions: “(a) whether the extradition documents on their face are in order, (b) whether the plaintiff has been charged with a crime in the charging state, (c) whether the plaintiff is the person named in the request for extradition and (d) whether the plaintiff is a fugitive.” Wentworth v. Bourbeau, 188 Conn. 364, 368, 449 A.2d 1015 (1982), quoted in Parks v. Bourbeau, 193 Conn. 270, 275, 477 A.2d 636 (1984).

Connecticut courts, in interpreting the Uniform Criminal Extradition Act, must do so subject to the provisions of “any and all acts of Congress enacted in pursuance [of the extradition clause in the United States constitution] . . . .” General Statutes § 54-158. **7The federal statute on interstate extradition is 18 U.S.C. § 3182. The language of General Statutes § 54-159 differs significantly from that of the federal statute.

General Statutes § 54-159 requires that a demand for extradition be accompanied by “a copy of an affidavit made before a magistrate [in the demanding state], together with a copy of any warrant which was issued thereupon . . . .” The federal statute requires that the demand be accompanied by “an affidavit made before a magistrate of any State or Territory . . . .” The latter does not require a copy of any warrant which may have been issued upon the affidavit. Accordingly, under federal law, extradition may be accomplished solely on the basis of an affidavit.

The courts which have considered whether the more stringent requirement of the Uniform Criminal Extradition Act is inconsistent with the federal statute and, if so, which is paramount, have concluded that the federal statute controls. Application of Williams, 76 Idaho 173, 176, 279 P.2d 882 (1955); State ex rel. Sieloff v. Golz, 80 Wis. 2d 225, 240, 258 N.W.2d 700 (1977). Although the federal statute prescribes the terms for extradition by states; DeGenna v. Grasso, 413 F. Supp. 427, 430 (D. Conn. 1976); People ex rel. Dimas v. Shimp, 83 Ill. App. 3d 150, 152, 405 N.E.2d 750 (1980); the states may establish ancillary provisions as long as they are consistent with the command of the statute. Giardino v. Bourbeau, 193 Conn. 116, 121 n.7,475 A.2d 298 (1984). Our application and interpretation of General Statutes § 54-159 must therefore harmonize with 18 U.S.C. § 3182.

In construing General Statutes § 54-159 in light of any and all acts of Congress in pursuance of the extradition clause, it is clear that a copy of the affidavit is indispensable. It is not clear, however, that the statute requires a copy of a warrant at all. The words “a copy of any warrant which was issued [thereupon]” have been construed to mean that a copy of an arrest warrant need only be included if a warrant was issued based on the affidavit. See People v. Hoy, 225 N.Y.S. 2d 412, 415-16, (N.Y. Sup. Ct. 1962). 18 U.S.C. § 3182 does not require that the magistrate before whom the affidavit is sworn issue an arrest warrant, and the courts which have considered whether such a warrant must be issued have found no such requirement by implication. Kirkland v. Preston, 385 F.2d 670, 675 (D.C. Cir. 1967).

The uniform act was designed to conform to and supplement the federal statute. DeGenna v. Grosso, supra; Glavin v. Warden, 163 Conn. 394, 395 n.1, 311 A.2d 86 (1972). Under the federal statute, the plaintiffs rendition could be based on the affidavit alone. In the present case, the five warrants which accompanied the affidavit were issued upon information supplied by oral testimony under oath by the complainant, Detective J. M. Stephenson of the Dunn, North Carolina, police department. Each of the warrants states that the magistrate found probable cause to believe that the plaintiff committed the particular offense and that the warrant was “issued upon information furnished under oath by the complainant or complainants listed.” (Emphasis added.) The latter statement appears immediately above the issuing magistrate’s signature. Stephenson, the complainant named on the warrants, prepared and signed the affidavit of February 7,1983.

Since individual circumstances surrounding extradition demands are varied and diverse, the mechanical application of fixed and absolute rules is inappropriate if justice is to be achieved in a particular case. See South Dakota v. Brown, 20 Cal. 3d 765, 779, 576 P.2d 473, 144 Cal. Rptr. 758 (1978). Although our inquiry in this matter is restrained; Parks v. Bourbeau, supra; it must not be perfunctory.

The requirement in General Statutes § 54-159 that the affidavit be the document upon which the warrants were issued must, in logic, refer to the substantive allegations contained therein. In interpreting statutory language, we assume that a reasonable and rational result was intended. Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975). Under the traditional presumption of regularity with which proceedings of the demanding state are clothed; Michigan v. Doran, supra, 290; we presume that Stephenson’s affidavit reduced to writing the information which he had earlier furnished under oath to the issuing magistrate. Public officials acting officially, are considered to have properly and accurately performed their duty until the contrary appears. Parham v. Warden, 172 Conn. 126, 134, 374 A.2d 137 (1976).

An issue analogous to that now before us was considered in In re Armstrong, 49 N.C. App. 175, 270 S.E. 2d 619 (1980), in connection with the provision of the Uniform Criminal Extradition Act which allows a demand for extradition to be accompanied “by information supported by affidavit in the state having jurisdiction of the crime.” The sole question in that case was “whether the words ‘information supported by affidavit’ . . . require that the ‘supporting’ affidavits be dated prior to or contemporaneous with the information.” Id., 178. Noting that an information supported by affidavit is required to assure that the prisoner is indeed charged with a crime in the demanding state, the court found that the documents before it, which included an information and two affidavits which postdated the information, gave adequate and overwhelming assurance that the prisoner was substantially charged in the demanding state. The court held that the purpose of the statute had been met and that "to allow applicant to prevail based on a meaningless and inflexible construction of the statute would violate that clear purpose.” Id.

We have examined the warrants and accompanying affidavit in this case and are likewise satisfied that the plaintiff was substantially charged with a crime in the demanding state. Where it appears that the requesting papers were deemed to be sufficient by the executive authority of the respective states for requisition and rendition, it is not our role to interfere on habeas corpus, and discharge the accused upon technical grounds unless what was done was clearly in contravention of law. Hill v. Blake, 186 Conn. 404, 409, 441 A.2d 841 (1982). “ ‘It is ancient [and yet enduring] wisdom that statutes should be interpreted so as to effectuate their manifested purpose of object.’ 2A Sutherland, Statutory Construction (4th Ed. Sands) § 58.06, p. 474.” McGaffin v. Roberts, 193 Conn. 393, 407, 479 A.2d 176 (1984). The purpose of General Statutes § 54-159 is to implement the extradition clause of the United States constitution by providing a procedure for the summary disposition of extradition cases. Narel v. Liburdi, supra, 565. We hold that, on the facts of this case, the requisitioning documents, including the warrants, which were issued on the basis of sworn oral testimony later embodied in a subsequent affidavit, met the statutory requirements of General Statutes § 54-159. To hold otherwise would ignore the intent of the Uniform Criminal Extradition Act and lead to a result inconsistent with 18 U.S.C. § 3182.

There is no error.

In this opinion Dupont, C.P.J., concurred.

Hull, J.,

dissenting. As briefed and argued before this court, the only issue was “whether the extradition documents on their face are in order.” The pertinent section of General Statutes § 54-159 requires, for recognition of extradition demand, “a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon . . . . ” (Emphasis added.) No great semantical exegesis is required to demonstrate that a warrant together with an affidavit made some four months later, was not issued “thereupon.”

Webster, Third New International Dictionary defines “Thereupon,” in definition two, as “on account of or in consequence of that . . . .” Beyond cavil, warrants issued on September 1,1982, September 21,1982, and October 15,1982 were not issued in consequence of an affidavit dated February 7, 1983.

Rather than deciding the narrow issue raised in this case, the majority concludes, on the basis of the federal extradition statute, 18 U.S.C. § 3182, that Connecticut’s more exacting terms concerning the necessary extradition documents are not controlling. In my view, under the circumstances of this case, this court should not decide the case on a constitutional basis not claimed by the state and which the defendant, therefore, has never had the chance to meet.

The recent case of State v. Martin, 2 Conn. App. 605, 482 A.2d 70 (1984), is entirely apposite. “The rule that claims on appeal should first be made at trial ‘ “applies to criminal as well as civil cases.” ’ State v. Johnson, 166 Conn. 439, 445, 352 A.2d 294 (1974). That rule applies to the state as well as to the defendant. We therefore decide this case on the theory on which it was tried and decided in the trial court, and briefed and argued in this court. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983).” Id., 612B.

Fundamental fairness in the context of a habeas corpus action concerning extradition at least requires reargument on the issue of the controlling effect of the federal statute on interstate extradition, 18 U.S.C. § 3182.

For the foregoing reasons, I dissent.

       Although the defendant argues the issue of probable cause in his brief on appeal, probable cause is not an issue in this case. The basis of the petitioner’s claim was the alleged deficiency in the documents accompanying the demand for extradition. The trial court’s denial of his petition rested upon its conclusion that the requirements of General Statutes § 54-159 had been met.

       General Statutes § 54-159, entitled “Requirements for recognition of extradition demand,” provides in relevant part: “No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging . . . that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state . ”

       The extradition clause provides that: “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” U.S. Const., art. IV § 2, cl. 2.

       General Statutes § 54-158 provides: “Subject to the provisions of this chapter, the provisions of the constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony or other crime, who has fled from justice and is found in this state.”
      That the uniform act must be interpreted subject to such acts of Congress was recognized by both the plaintiff and the defendants in their briefs. Reargument because a statute was overlooked by the parties is, on occasion, permitted. See, e.g., Adley Express Co. v. Darien, 125 Conn. 501, 504, 7 A.2d 446 (1939). Similarly, in a case where an applicable statute was neither applied by the trial court nor noticed by the parties, a new trial may be ordered. Stoni v. Wasicki, 179 Conn. 372, 377, 426 A.2d 774 (1979). In this case, since both parties have specifically cited General Statutes § 54-159, we see no justification for ordering, sua sponte, reargument on the basis that a pertinent federal enactment was overlooked. Nor do we believe that the case should be remanded for that reason. “To return the case to the trial court simply to give the opportunity for pleading and invoking the federal statute would necessarily bring about the same result as would come from our determination of the matter now; it would be a useless procedure, for the final result would not be changed.” Campbell v. Rockefeller, 134 Conn. 585, 589, 59 A.2d 524 (1948).

       18 U.S.C. § 3182 provides: “Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.”


text:
    Maria Byczkiewicz v. Romuald Byczkiewicz
    (2636)
    Dupont, C.P.J., Borden and M. Hennessey, Js.
    Argued March 8
    decision released April 16, 1985

      John A. Barbieri, with whom, on the brief, was John V. Zisk, for the appellant (defendant).

      Andre M. Kocay, for the appellee (plaintiff).
   Per Curiam.

There is no error.


author: Dupont, C.P. J.

text:
    Leo Derderian v. Elizabeth Derderian et al.
    (2848)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued December 7, 1984
    decision released April 16, 1985

      John H. Parks, for the appellant (plaintiff).

      James J. Alaimo, Jr., with whom, on the brief, was Edward Pontacoloni, for the appellee (defendant).
   Dupont, C.P. J.

The plaintiff, Leo Derderian, sought a partition of real estate, owned by him and the named defendant, Elizabeth Derderian, as tenants in common. She counterclaimed seeking to set aside the conveyance to the plaintiff of his interest as fraudulent, and to obtain punitive damages. The case was tried to the court and judgment was rendered for the defendant on the plaintiffs complaint and on the first and second counts of her counterclaim. The plaintiff has appealed.

The trial court made findings of certain relevant facts. The defendant and the plaintiffs brother had been married to each other, and the plaintiff had obtained his interest in the realty from his brother. Prior to the transfer, the defendant had commenced a marriage dissolution action against the plaintiffs brother. The defendant and the plaintiffs brother had acquired joint title to the realty approximately sixteen years before the dissolution action was begun, and it was the marital home. At the time of the transfer, the plaintiff was aware of the pendency of the dissolution of marriage action. The plaintiffs brother removed himself from the state in order to frustrate the dissolution action. On the date of the transfer, the plaintiffs brother also conveyed other realty to the plaintiff. The plaintiff believed that money belonging to his family had made the acquisition of the marital home possible, and that if he and his brother did not act, the defendant would obtain title to the property. The plaintiff and his brother conspired to avoid any court judgment in the dissolution action, and agreed to the transfer of the property in order to defraud the defendant.

The dissolution of marriage action was dismissed, primarily because the brother had absented himself from the state. Subsequently, the defendant brought a second dissolution action which resulted in a judgment of dissolution. The brother did not appear in that action.

The Superior Court file in the second dissolution action reveals that the defendant sought and received a transfer of the interest of her husband, the plaintiffs brother, in the subject property. The brother, thereafter, moved to open that judgment and vacate the property award, claiming a lack of personal jurisdiction over him. The motion was denied.

The plaintiff, on appeal, claims that the trial court erred (1) in setting aside the conveyance as fraudulent, (2) in awarding attorney’s fees as punitive damages, and (3) in refusing to partition the real estate.

The plaintiff's challenges to the judgment which set aside the conveyance as fraudulent are trifold. He claims that the defendant failed to establish an underlying debt owed by his brother to her, that, in the absence of such proof, the brother as debtor-grantor was an indispensable party to the action without whom the trial court could not render the relief requested, and that the evidence was insufficient to prove a fraudulent transfer.

The first two grounds are interrelated since they both involve whether an underlying debt was established. Generally, an underlying debt must be established in an action to set aside a fraudulent conveyance. Annot., 24 A.L.R.2d 395, 411-12; 37 C.J.S., Fraudulent Conveyances § 331. That is so, among other reasons, because the creditor is only entitled to relief to the extent necessary to satisfy the debt. Bizzoco v. Chinitz, 193 Conn. 304, 306-307, 476 A.2d 572 (1984); Doty v. Wheeler, 120 Conn. 672, 679, 182 A. 468 (1936).

The plaintiff concedes that a dissolution of marriage action can provide the basis for the underlying debt. Molitor v. Molitor, 184 Conn. 530, 440 A.2d 215 (1981). The plaintiff attempts to distinguish that case by arguing that there the alimony and support award established the underlying debt while here, notwithstanding the property assignment rendered in the judgment of dissolution pursuant to the later action, no dissolution action commenced by the named defendant provided the underlying debt.

The second dissolution action commenced by the defendant resulted in the judgment whereby the right, title and interest of the plaintiff’s brother in the realty was assigned to her. The plaintiff asserts that this second dissolution action cannot provide the underlying debt. He claims that the trial court in the present case did not take judicial notice of that action and struck any reference to it from the record. Although the appeal record is ambiguous as to what consideration the trial court gave that judgment, one of the plaintiff’s special defenses to the defendant’s counterclaim acknowledges that the judgment in the second dissolution action contained an order relating to the subject property. The transcript also shows that the trial court knew that if the conveyance were set aside, the interest which the defendant’s former husband had prior to his conveyance to the plaintiff would be hers pursuant to the judgment in that dissolution action.

The plaintiff also argues that the court, in the second dissolution of marriage action, had no personal jurisdiction over his brother, and that the judgment rendered therein was void. The contrary is true since the trial court in that action denied the brother’s motion to set aside the judgment. The denial of such a motion is appealable. Trichilo v. Trichilo, 190 Conn. 774, 462 A.2d 1048 (1983). No appeal was taken, and the trial court’s judgment is res judicata as to that issue in any subsequent actions. Insurance Corporation of Ireland, Inc. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706, 102 S. Ct. 2099, 72 L. Ed. 2d 492, cert. denied, 457 U.S. 1105, 102 S. Ct. 2902, 73 L. Ed. 2d 1312 (1982).

The plaintiff further attacks the judgment in the second action for dissolution of marriage by claiming that the court had no power to render a decree affecting that property. Although that court had no authority to dispose of the plaintiff’s interest in the realty, it did have the authority to dispose of whatever interest the brother, the defendant in that case, did have. Other jurisdictions have upheld judgments in dissolution of marriage actions which potentially disturb the interests of those not parties to a dissolution action by construing the judgments as determinative of the right, title and interest in the property of the husband and wife, assuming that the property is an asset of the marital estate. Melny v. Melny, 90 Cal. App. 2d 672, 676, 203 P.2d 588 (1949); Hazard v. Hazard, 17 Or. App. 229, 232, 521 P.2d 29 (1974); Saylor v. Saylor, 20 S.W.2d 229, 231 (Tex. Civ. App. 1929); Reilly v. Reilly, 671 P.2d 330, 333 (Wyo. 1983); Merritt v. Merritt, 586 P.2d 550, 554-55 (Wyo. 1978).

A judgment in a dissolution of marriage action may, therefore, contain the judicial seeds of the divestment of a claimed interest in realty belonging to those other than the parties to the action. If a judgment in a dissolution of marriage action is subsequently, collaterally attacked by a third person who took his interest after it or after another earlier aborted action between the same marital parties was pending, knowing of the pendency of those actions, and who could have, but did not intervene in those actions, the judgment will nevertheless stand.

In the present action, a precise, underlying debt of the brother to the defendant had been determined in the second dissolution of marriage action. That debt was the award of the marital home to the defendant. Since there was an established debt at the time of the present partition action, the brother was not an indispensable party in the action.

The plaintiff also attacks the trial court’s finding of a fraudulent conveyance claiming insufficient evidence was adduced at trial to prove that the conveyance was fraudulent. “A person to whom the grantor was indebted and who wishes to avoid the conveyance has the burden of showing either (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligation or (2) that the conveyance was made with a fraudulent intent in which the grantee participated.” Bizzoco v. Chinitz, 193 Conn. 304, 312, 476 A.2d 572 (1984). The trial court concluded that the defendant had produced sufficient evidence to satisfy both grounds. The defendant will prevail if she has satisfied her burden on either of the two tests. Id. There was sufficient evidence to support the trial court’s finding that the conveyance was made with a fraudulent intent in which the grantee participated.

The plaintiff challenges the court’s finding by arguing that much of the evidence admitted and considered by the trial court was hearsay. This claim is both untimely and addressed to the wrong forum. Practice Book § 3063; Aetna Life & Casualty v. Miscione of Connecticut, Inc., 193 Conn. 435, 437, 476 A.2d 577 (1984). The plaintiff did not object to the introduction of the evidence. Hearsay evidence admitted because no objection was voiced can be considered to prove the matters in issue for whatever its worth on its face. Sears v. Curtis, 147 Conn. 311, 317, 160 A.2d 742 (1960).

The plaintiff also claims testimony elicited at trial and considered by the court was irrelevant, but no transcript references relating to specific examples are provided, nor does the claim conform to the rules. Practice Book § 3060F (c) (3). The plaintiff, in addition, argues that the trial court unduly emphasized certain evidence adduced at trial. The weight and probative force of the evidence is for the trier not the appellate court. See Perl v. Case, 3 Conn. App. 111, 115, 485 A.2d 1331, cert. denied, 195 Conn. 803, 491 A.2d 1103 (1985). The trial court did not err in setting aside the conveyance as fraudulent.

The second principal argument of the plaintiff is that the trial court erred in awarding attorney’s fees to the defendant on the basis of her counterclaim.

The trial court and the defendant relied on common law tort actions as authority for the proposition that the defendant was entitled to punitive damages, namely, attorney’s fees, in an action to set aside a fraudulent conveyance. The reliance is misplaced. Common law principles do not authorize a general creditor to pursue the transferee in a fraudulent conveyance action for anything other than the specific property transferred or the proceeds thereof. Austin v. Barrows, 41 Conn. 287, 299 (1874); Smith v. Blake, 1 Day 258, 262 (1804); see also annot., 11 A.L.R.4th 345; 37 C.J.S., Fraudulent Conveyances § 279; Glenn, Fraudulent Conveyances (Rev. Ed. 1940) § 74.

The only relevant statute invoked by the defendant as a basis of her fraudulent conveyance action is General Statutes § 52-552. The language of that statute provides that a conveyance made with an intent to avoid a debt or duty belonging to others is voidable but it does not provide for an award of punitive damages. The defendant, in her brief, cites no Connecticut case which construes that statute to provide for such an award. For a party to be entitled to a statutory remedy, her prayer for relief must be specifically based on that statutory remedy. Alaimo v. Royer, 188 Conn. 36, 43, 448 A.2d 207 (1982). The trial court erred in awarding punitive damages to the named defendant.

The plaintiffs final claim of error, that the trial court erred in refusing to partition the subject property, has been disposed of by the affirmance of the trial court’s setting aside of the conveyance to him as fraudulent. The trial court, moreover, properly denied such equitable relief because the granting of such relief would, in effect, condone the plaintiff’s attempted defrauding of the defendant’s marital rights and thereby injure the integrity of the court. Pappas v. Pappas, 164 Conn. 242, 245-47, 320 A.2d 809 (1973).

There is error in part, the judgment is set aside as to the award of punitive damages and the case is remanded with direction to vacate the award of damages.

In this opinion the other judges concurred.

       The town of Somers was also a defendant but is not involved in this appeal. We refer in this opinion to Elizabeth Derderian as the defendant.

       The defendant’s counterclaim alleging a fraudulent conveyance is in two counts with one count premised on the common law fraudulent conveyance remedy; White v. Amenta, 110 Conn. 314, 318-19, 148 A. 345 (1930); and the other count premised on our fraudulent conveyance statute. General Statutes § 52-552. That statute provides: “All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.”

       This appeal originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c)

       An appellate court can take judicial notice of court files without notifying the parties. Moore v. Moore, 173 Conn. 120, 121-22, 376 A.2d 1085 (1977); Collins v. York, 159 Conn. 150, 151-52, 267 A.2d 668 (1970); Maltbie, Conn. App. Proc. § 313.

       The motion is more appropriately termed a motion to open and vacate the judgment. Monroe v. Monroe, 177 Conn. 173, 413 A.2d 819 (1979).

       The better practice would have been the joinder of the plaintiff in this case in the second dissolution action so that the issue of the alleged conspiracy of the plaintiff with his brother to defraud the defendant of the marital asset could have been determined. Molitor v. Molitor, 184 Conn. 530, 440 A.2d 215 (1981).


text:
    Westerly Ready-Mixed Concrete Company v. Michael Stern et al.
    (2128)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued February 8
    decision released April 16, 1985

      Albert E. Goring, Jr., for the appellant (defendant).

      Barry Ward, with whom, on the brief, was Abraham A. Lubchansky, for the appellee (plaintiff).
   Per Curiam.

In rendering its judgment for the plaintiff, the trial court erred in its refusal to consider the matter raised in the defendant’s notice of defense and evidence relating thereto which had been introduced by the defendant, without objection by the plaintiff, during a hearing in damages. See Practice Book §§ 365 through 374; Bonner v. American Financial Marketing Corporation, 181 Conn. 57, 434 A.2d 323 (1980).

There is error, the judgment is set aside and a new hearing in damages is ordered.

       Stern Builders, Inc., has taken no appeal from the judgment against it. “Defendant” in this decision refers to the appellant, Michael Stern. This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).


author: Borden, J.

text:
    Carl Neri et al. v. Arthur B. Powers, Commissioner of Transportation, et al.
    (2734)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued March 8
    decision released April 16, 1985

      James D. Reardon, for the appellants (plaintiffs).

      Robert Y. Pelgrift, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellees (defendants).

      Laurence Sarezky, with whom, on the brief, was Leo Nevas, for the appellee (intervening defendant National Railroad Passenger Corporation).
   Borden, J.

This case began as an administrative appeal to the Superior Court pursuant to the Uniform Administrative Procedure Act (UAPA); General Statutes §§ 4-166 through 4-189; and, by agreement of the parties and the court, became a vehicle for deciding an issue not within the scope of the administrative proceedings. Because neither the parties nor the court had the power to make this change, we sustain the judgment of the trial court dismissing the appeal of the plaintiffs, but on a ground different from that used by the trial court.

We begin by noting that it was not until oral argument in this court that certain of the substantial procedural difficulties with this case became apparent, since neither the parties’ briefs nor the appellate record disclosed them. As a result, we have examined the trial court file of the case and the administrative record which was supplied to the trial court. That examination reveals the following facts and procedural history: The plaintiffs have, since 1974, owned two parcels of land in the town of Clinton which are separated by a railroad right of way owned by the National Passenger Rail Corporation, known as Amtrak. Access between the two parcels is by a grade crossing over the right of way, which is known as Lawyer’s Crossing or Shoemaker’s Crossing (the crossing).

Elimination of the crossing was proposed in connection with the Northeast Corridor Improvement Project administered by the federal government. That project, which concerns rail service between Boston and Washington, involved the elimination of certain railroad grade crossings for safety reasons.

On April 21, 1980, a public hearing was held by the bureau of public transportation of the Connecticut department of transportation (DOT), regarding the proposed elimination of the crossing, and two other crossings in the towns of Guilford and Madison. The notice of the hearing designated the plaintiffs, and others, as parties to the proceeding, and stated that “[i]n keeping with the Federal Railroad Administration’s efforts to provide high speed rail passenger service in the Northeast Corridor from Washington to Boston, and in the interest of safety, certain railroad grade crossings have been proposed to be eliminated. A private crossing referred to as Shoemaker’s (Lawyer’s) Crossing, in the town of Clinton has been so named.”

The plaintiffs and their attorney attended the hearing. At the beginning of the hearing a brief presentation was made by a representative of the office of rights of way of DOT. That presentation noted that any property rights existing at the crossing would be taken, and it explained the appraisal and condemnation process which would ensue in the absence of agreement between DOT and the property owners. The remainder of the public hearing involved an explanation of the Northeast Corridor Improvement Project by federal and state officials, and statements and questions by those attending the hearing, including the plaintiffs and their attorney.

DOT’s decision following this hearing is dated September 3,1980. The decision noted that the questions of whether a bridge, some other access mechanism or a buy-out of crossing rights would be used in achieving the elimination of the crossing “were not decisions that were the subject of the hearing. Those decisions were made early on, taking into consideration the economics involved. The purpose in [sic] the hearing was to determine whether there still was a need for the crossing or whether safety required closing of the crossing. Nothing was presented at the hearing . . . that rebutted the claims made by the Northeast Corridor witness as to the need to eliminate grade crossings throughout the entire corridor. An affirmative decision relative to the closing of the crossing is permissive and must follow acquisition of the property rights adversely affected by the closing, since closing of the crossing without extinguishing property rights would cut off property owners from some 66 acres of land. Here again the procedures for acquiring the property rights are beyond the hearing. The hearing is only concerned with the safety elements of the closing order.” The decision concluded that the safety of the train service and people using the crossing required its elimination, and “ordered that Lawyer’s Crossing, also known as Shoemaker’s Crossing, be closed following the extinguishment of property rights adversely affected by the closing of the crossing.” The decision also denoted that copies of it be sent to all the parties in interest.

By letter dated December 10, 1980, from the director of the office of rights of way of DOT, the plaintiffs were sent a copy of the decision. Referring to the decision directing the closing of the crossing, the letter stated: “The finding directs the extinguishment of the property rights affected by the closing. Our research of the land records in the Town of Clinton fails to find any recorded crossing rights in your favor. Since adverse possession does not run against the railroad, your crossing has been of a permissive nature which is terminable on notice. There are, then, no property rights to be extinguished. This letter is your official notice that effective February 1,1981, Lawyer’s/Shoemaker’s Crossing is legally closed.”

The plaintiffs filed an administrative appeal under the UAPA to the Superior Court, alleging essentially six claims of error in the “decision” of the DOT: (1) it was unconstitutional because it deprived them of their property without just compensation; (2) it closed the crossing in violation of particular federal and state statutes regarding such crossings; (3) it was made upon certain unlawful procedures, in violation of the UAPA; (4) it was unsupported by reliable, probative and substantial evidence in the whole record; (5) it was arbitrary and an abuse of discretion; and (6) it was an administrative decision made without the constitutionally required legislative standards. Attached to the plaintiffs’ appeal was, inter alia, a copy of their deed to their two parcels of property. It is clear from the plaintiffs’ appeal that they conceived of the “decision” as being both the decision dated September 3, 1980, and the letter dated December 10, 1980.

Ultimately the plaintiffs claimed the case for the trial list. It came on for hearing on March 7,1983. The parties and the court agreed that the facts were those appearing on the record, no additional evidence would be submitted, and their briefs would address the issues raised by the appeal, including the plaintiffs’ assertion of a right of way of necessity over the crossing.

At that point, Amtrak was not a party to the proceedings. The court requested that DOT determine whether Amtrak wished to appear as amicus curiae. Amtrak accepted the invitation. See footnote 1, supra. A schedule was set by the court for simultaneous briefs and reply briefs.

In their original trial brief the plaintiffs argued two issues: (1) whether they have a right of way by necessity over the crossing; and (2) whether such a right of way may be asserted against a railroad or a governmental agency. In connection with these claims the plaintiffs, in that brief, purported to trace their record title, and that of the railroad to the right of way, back to 1852. It is significant that this material had not been presented in the DOT hearing of April 21,1980. The brief of the amicus curiae, in which DOT joined, argued: (1) the plaintiffs’ claim of right of way by necessity was not properly before the court for several reasons, among them being that DOT’s letter of December 10,1983, was not the decision from which the plaintiffs appealed; and (2) the plaintiffs not having made such a claim before the agency, there was no administrative record for the court to review on that issue. The plaintiffs filed a reply brief in which they responded to the arguments of Amtrak and DOT, and in which they sought to explain their failure to brief the issues raised in their complaint by asserting that the court proceedings of March 7,1983, were no more than a pretrial session to attempt to settle the matter short of a hearing on the merits.

The trial court, taking its cue from the plaintiffs’ appeal, conceived of the “decision” being appealed from as both the decision of DOT dated September 3,1980, closing the crossing, and DOT’s letter to the plaintiffs of December 10,1980, communicating that decision to the plaintiffs and informing them that they had no property rights to be extinguished. The court held that the issue of whether the plaintiffs have a right of way of necessity was properly before it, that such a right of way may be asserted against the federal government, and that the plaintiffs had not proven that they had such a right of way. It found that the court session of March 7, 1983, was not a pretrial session but that the plaintiffs and the defendants understood it to be the hearing on the merits of the plaintiffs’ appeal upon which the court would render its decision after receipt of the trial briefs. The court concluded, therefore, that the plaintiffs had abandoned all their other claims of agency illegality by failing to brief them. The court rendered judgment dismissing the plaintiffs’ appeal.

The plaintiffs appealed to this court, claiming that (1) DOT had no power to close the crossing, because that power was lodged solely in the federal secretary of transportation pursuant to federal statutes, and (2) the trial court erred by finding that the plaintiffs had not established a right of way by necessity over the crossing.

Several axioms of administrative law generally, and the UAPA in particular, bear repeating here. Administrative appeals exist only under statutory authority, without which the court lacks subject matter jurisdiction over the appeal. Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 472, 378 A.2d 547 (1977). The court’s essential function in such an appeal is to review the administrative proceedings to determine whether the action appealed from was legal. Connecticut Television, Inc. v. Public Utilities Commission, 159 Conn. 317, 329, 269 A.2d 276 (1970). The scope of judicial review under the UAPA is very restricted. Lawrence v. Kozlowski, 171 Conn. 705, 707, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). Except in the limited situation in which there is an allegation of procedural illegalities not shown in the record; General Statutes § 4-183 (f); that review is limited to the record and the court cannot hear evidence. Arterburn Convalescent Home v. Committee on State Payments to Hospitals, 176 Conn. 82, 86, 405 A.2d 48 (1978); cf. General Statutes § 4-183 (e) (court may, in limited circumstances, remand to agency for additional taking of evidence). Under the UAPA, the court may not even take cognizance of a factual stipulation by the parties which was not presented to the administrative agency. Woodbury Water Co. v. Public Utilities Commission, 174 Conn. 258, 261, 386 A.2d 232 (1978).

It follows from these axioms that only the “final decision”; General Statutes § 4-183 (a); of the agency may be the subject of an appeal under the UAPA. Although we can understand the confusion created by the manner in which the administrative hearing was conducted and the way in which its result was communicated, it is clear from this record that the only decision which the DOT made as a result of that hearing was the decision, dated September 3, 1980, to close the crossing. That decision did not and could not embrace within its ambit DOT’s letter of December 3,1980, communicating that decision to the plaintiffs.

The notice of the hearing gave no indication that any person’s property rights would be determined at the hearing. Although the brief presentation at the hearing by the representative of the office of rights of way of DOT referred to the general procedure for appraisals and acquisition of property rights, it did not imply that this hearing was for those purposes. The final decision made it quite clear that the hearing was concerned with the safety factors of the crossing and not the process of acquisition of the property rights of any party. DOT was not purporting, by this general public hearing on the elimination of three crossings in three different towns, to adjudicate in any way the property rights of the various property owners relating to those crossings. Indeed, the letter to the plaintiffs stating that they have no property rights to be extinguished is, by its terms, based on DOT’s search of the Clinton land records, not on any evidence adduced at the hearing of April 21, 1980. Thus, to the extent that the plaintiffs appealed to the trial court from DOT’s letter of December 10, 1980, they appealed from something other than the “final decision” of the agency pursuant to General Statutes § 4-183 (a).

This misconception of the plaintiffs as to the proper subject matter of the appeal was then compounded by the parties and the court when they undertook to litigate, under the rubric of this administrative appeal, the issue of whether the plaintiffs had a right of way by necessity over the crossing. The parties were on the wrong track; since that was an issue which was not within the scope of the administrative proceedings, it was not an issue which could, even by agreement of the parties and the court, be the subject of an appeal from those proceedings. See Arterburn Convalescent Home v. Committee on State Payments to Hospitals, supra; Rybinski v. State Employees’ Retirement Commission, supra. Parties may not, by agreement, confer on a court subject matter jurisdiction which it does not otherwise have. Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 552, 489 A.2d 368 (1985).

Thus, to the extent that the court exercised its jurisdiction over the plaintiffs’ appeal from a decision other than a final decision pursuant to General Statutes § 4-183 (a), it exercised jurisdiction which it did not have, and the plaintiffs’ appeal was dismissable. Since the judgment of the court was to dismiss the appeal, we sustain that judgment on a different ground from that used by the trial court. Trivalent Realty Co. v. Westport, 2 Conn. App. 213, 477 A.2d 140 (1984). The plaintiffs are free, of course, to pursue whatever other remedies they may have in order to establish their claimed crossing rights or to prove that the effect of the closing of the crossing is a taking of their property without just compensation.

This leaves for determination the question of the scope of our remand. The plaintiffs assert in this court, as they did in their reply brief to the trial court, that the trial court session of March 7, 1983, was nothing more than a pretrial, and that they never understood that, by briefing only the issues involving the claim of right of way by necessity, they were abandoning their other claims of error, which were properly directed at the final decision of DOT dated September 3,1980. The defendants in this court dispute the plaintiffs’ assertion, however, and maintain that the session of March 7, 1983, was not a pretrial but was the hearing on the merits of the plaintiffs’ appeal.

The trial court specifically noted in its memorandum of decision that “on March 7, 1983, when the instant appeal came before the court, the parties were agreed that there were no issues of fact requiring the taking of evidence and that their briefs would address the issues raised by the appeal including appellants’ assertion of a way of necessity. ” (Emphasis added.) It also noted as follows: “The fact that both the defendant and plaintiffs understood the March 7,1983, session to be the final one from which a decision would be rendered by the court after submission of briefs is further evidenced by the written waivers dated May 16, 1983 which both executed, waiving the provisions of Section 51-183b of the General Statutes and stipulating that ‘the court shall not be limited as to the time required for rendition of its judgment.’ ” The plaintiffs have offered us nothing beyond their bare assertion to disturb these findings of the trial court. We must, therefore, agree with the trial court that the plaintiffs abandoned those claims, directed at the decision of September 3,1980. P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 162, 454 A.2d 1258 (1983); Greene v. Metals Selling Corporation, 3 Conn. App. 40, 42 n.2, 484 A.2d 478 (1984).

There is no error.

In this opinion the other judges concurred.

       The plaintiffs are Carl A. Neri and Alan A. Neri, who are land owners in the town of Clinton. The defendants are the commissioner of transportation and the department of transportation. Upon invitation of the trial court, the National Passenger Rail Corporation (Amtrak) submitted an amicus curiae brief. On appeal to this court, we permitted Amtrak formally to intervene as a defendant, because of its central interest in the issue litigated.

       This was a prudent move, to say the least, since the case purported to litigate the issue of a right of way by necessity over property owned by Amtrak.

       Some of the facts asserted in the brief, however, found their way into the trial court’s memorandum of decision. For example, the trial court found that the railroad’s right of way had been in existence since 1852, and that the plaintiffs’ ownership dated from August 21, 1974, which is the date of the copy of the deed attached to their complaint and also apparently attached to their trial brief. None of these facts appears in the administrative record.

       General Statutes § 4-183 (a) provides, in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter . . . . ”

       Nor do we suggest that this hearing could have been a proper vehicle for adjudicating property rights of land owners affected by the closing of the crossing.