author: Cretella, J.

text:
    Ducci Electrical Contractors, Inc. v. Department of Transportation
    (10755)
    Daly, Freedman and Cretella, Js.
    Argued May 4
    decision released July 7, 1992

      James N. Royster, for the appellant (plaintiff).

      George E. Finlayson, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (state).
   Cretella, J.

Since 1983, the plaintiff has sought its day in court to litigate its claim against the defendant department of transportation (state) arising out of certain construction work it performed in the city of Hartford. Most recently, it attempted to reopen a 1988 judgment of dismissal pursuant to section 2 of No. 91-284 of the 1991 Public Acts (section 2). The trial court, however, denied the plaintiff’s motion to reopen the judgment because that judgment of dismissal was by stipulation of the parties. Because we conclude that the judgment of dismissal in this case falls squarely within the terms of section 2, notwithstanding the fact that the judgment of dismissal was by stipulation of the parties, we reverse the judgment of the trial court and remand the case for further proceedings.

The following facts are relevant to our resolution of this appeal. The parties entered into a construction contract on May 22,1978. Under that contract, the plaintiff was to perform certain traffic signal improvements on various municipal roads in Hartford. In 1983, after the work was completed, the plaintiff filed this action for disputed claims under the contract pursuant to General Statutes (Rev. to 1977) § 4-61. In its first special defense, the state asserted that the plaintiffs action was barred by principles of sovereign immunity because the contract, being for work on municipal property and not state property, was not covered by the language of § 4-61.

In 1985, while this case was pending in the trial court, our Supreme Court decided DeFonce Construction Corporation v. State, 198 Conn. 185, 501 A.2d 745 (1985), which held that § 4-61, as it existed at the time, waives the state’s immunity from claims arising under a construction contract only where the contract involves work on a state road, bridge or other public works, and not where the contract calls for work on a municipal road, bridge or other facility. In 1986, the legislature amended § 4-61 to permit an action against the state regardless of whether the state or one of its political subdivisions owned the property on which the work was done. That amendment, however, did not apply retroactively to affect the plaintiffs case.

In August, 1987, the state filed a motion to dismiss based on DeFonce Construction Corporation. As of January 25,1988, the date of the short calendar hearing on the motion to dismiss, the plaintiff had not filed a memorandum of law in opposition to the defendant’s motion. On March 1, 1988, the trial court, A. Aron-son, J., granted the motion to dismiss on the basis of the plaintiff’s failure to file its opposition to the motion in a timely manner. See Burton v. Planning Commis sion, 13 Conn. App. 400, 401-402, 536 A.2d 995 (1988), aff'd, 209 Conn. 609, 553 A.2d 161 (1989).

On March 10, 1988, the plaintiff filed a motion to open the dismissal together with a motion for judgment of dismissal in accordance with a stipulation. Both motions were granted by the trial court, Purtill, J., on March 14, 1988. Accordingly, judgment of dismissal was rendered in accordance with the stipulation of the parties, which provides, inter alia, that “[pjursuant to the Supreme Court’s decision in DeFonce Construction Corporation v. State of Connecticut, 198 Conn. 185, 501 A.2d 745 (1985), the plaintiffs action against the State of Connecticut was not within the scope of the version of Conn. Gen. Stat. section 4-61 which was effective and applicable on the date of [the] plaintiff’s aforesaid contract with the defendant.”

In 1991, the plaintiff again; see footnote 4, supra; went to the legislature to obtain authorization for this contract action. It initiated the amendment to a bill altering § 4-61, which amendment became section 2. See footnote 1, supra. According to its legislative history, the purpose of section 2 is to allow construction firms whose claims regarding work on municipal projects were filed prior to the DeFonce Construction Corporation decision “to continue to press their claims.” 34 H.R. Proc., Pt. 22,1991 Sess., pp. 8538-39, remarks of Representative Robert D. Godfrey.

On June 21, 1991, the plaintiff filed a motion to reopen the judgment of dismissal based on section 2. In its motion, the plaintiff asserted that the trial court had rendered a judgment of dismissal “because said action was not within the scope of General Statutes § 4-61 as it existed prior to the effective date of [Public Acts 1986, No.] 86-253.” The state did not file any opposition to the motion to reopen the judgment. The trial court, A. Aronson, J., denied the motion noting that judgment of dismissal on March 14,1988, was by stipulation of the parties. This appeal followed.

Although the plaintiff filed its motion to reopen the judgment after the passage of section 2 but before its effective date, the state notes in its appellate brief only that the motion was filed “too early.” The state does not attach any significance to the early filing of the motion. Because the premature filing of the plaintiff’s motion may arguably implicate the subject matter jurisdiction of the trial court, we must first discuss whether the premature filing of the motion to reopen prevented the court from affording relief under section 2.

A reviewing court should indulge every presumption in favor of a trial court’s subject matter jurisdiction. Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 198, 596 A.2d 396 (1991). In determining the scope of the trial court’s exercise of jurisdiction pursuant to statute, we will “ ‘look through the literal meaning of words and forms of procedure to the essential purposes to be served.’ ” Tramontano v. Dilieto, 192 Conn. 426, 433, 472 A.2d 768 (1984); Conners v. New Haven, 101 Conn. 191, 198, 125 A. 375 (1924); In re Adrien C., 9 Conn. App. 506, 510, 519 A.2d 1241, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987). This is especially true where, as here, the limited legislative history pertaining to section 2 makes it abundantly clear that the legislature intended section 2 to permit the exercise of trial court jurisdiction over claims like the one presented by the plaintiff in this case. See 34 H.R. Proc., Pt. 22, 1991 Sess., pp. 8538-39. With this in mind, we now determine whether the premature filing of the motion to reopen prevented its consideration by the trial court pursuant to section 2.

Section 2 did not require the plaintiff to file its motion within ninety days of July 1, 1991. Rather, it authorized the plaintiff to petition the court within ninety days of July 1,1991. Where the plaintiff’s motion was pending on July 1,1991, and was thereafter heard and determined by the trial court on September 2, 1991, within the statutory period, the plaintiff satisfied the statutory requirement to “petition the court within ninety days of the effective date” of section 2. Cf. Home Oil Co. v. Todd, 195 Conn. 333, 343-44, 487 A.2d 1095 (1985) (holding that a premature jury trial request remains on file as a continuing request until it becomes ripe when an issue of fact is joined). Consequently, under the circumstances of this case, the premature filing of the motion to reopen by the plaintiff did not deprive the court of jurisdiction to consider the motion pursuant to section 2.

We now turn to the question of whether the trial court properly denied the motion to reopen. “Once a judgment has been rendered it is to be considered final and it ‘should be left undisturbed by post-trial motions except for a good and compelling reason.’ Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983). ... A motion to open and vacate a judgment is addressed to the discretion of the trial court, and we will not disturb the action of the trial court on appeal unless it acted unreasonably and in clear abuse of its discretion.” TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 533-34, 577 A.2d 288 (1990); Northeast Enterprises v. Water Pollution Control Authority, 26 Conn. App. 540, 545, 601 A.2d 563 (1992). Such discretion, however, imports something more than leeway in decision-making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice. Society for Savings v. Stramaglia, 25 Conn. App. 688, 692, 596 A.2d 20 (Cretella, J., dissenting), cert. granted, 220 Conn. 926, 598 A.2d 367 (1991).

Stripped down to its essential terms, section 2 provides that a judgment of dismissal in a construction contract action brought under § 4-61 prior to December 24, 1985, may be opened upon the filing of a petition within ninety days of the effective date of the act if the reason for the dismissal was “because such contract was not within the scope of said section 4-61 as it existed prior to the effective date of public act 86-253 on October 1, 1986.” Under section 2 as it applies to the circumstances of this case, whether a prior judgment of dismissal should be opened, therefore, turns on the reason for the dismissal. In this case, the judgment of dismissal was rendered in accordance with the stipulation of the parties. That stipulation succinctly stated the reason for dismissal: “Pursuant to the Supreme Court’s decision in DeFonce Construction Corporation v. State of Connecticut, [supra], the plaintiffs action against the State of Connecticut was not within the scope of the version of Conn. Gen. Stat. section 4-61 which was effective and applicable on the date of [the] plaintiff’s aforesaid contract with the defendant.” This reason tracks the qualifying language of the 1991 legislative enactment in all material respects.

The trial court, however, denied the motion to reopen because the judgment of dismissal was based on a stipulation of the parties. The state relies on Solomon v. Keiser, 22 Conn. App. 424, 577 A.2d 1103 (1990), to support the contention that a stipulated judgment of dismissal cannot be opened even if it falls within the terms of section 2.

In Solomon, we determined that the trial court lacked jurisdiction to open a stipulated judgment pursuant to Practice Book § 326 because more than four months had elapsed since the rendering thereof. Although we recognized that stipulated judgments “may be opened upon motion of one of the parties even after the four month period has elapsed, but only if the movant can show that the judgment was obtained by fraud, duress, accident or mistake”; id., 427; we found no such exceptional circumstances present in that case. A careful reading of Solomon, however, makes clear that this discussion of exceptional circumstances was undertaken in the context of our discussion of that portion of Practice Book § 326 that prohibits opening judgments more than four months after their rendition “[ujnless otherwise provided by law.” Thus, while our common law provides for the belated opening of a stipulated judgment “only if the movant can show that the judgment was obtained by fraud, duress, accident or mistake”; id.; it in no way prevents the legislature from also “otherwise providing] by law.” Practice Book § 826. In 1991, the legislature expressly so “otherwise provided” by enacting section 2. Consequently, the fact that the judgment of dismissal sought to be reopened by the plaintiff was rendered in accordance with the stipulation of the parties is of no significance.

While the plaintiff’s action may have been dismissed on the basis of the stipulation of the parties, it was nonetheless dismissed because the action was not within the scope § 4-61 as it existed prior to October 1,1986. As such, the stipulated dismissal in this case fell squarely within the express terms of section 2, authorizing the opening of the judgment. While a motion to reopen a judgment “ ‘should not be readily granted nor without strong reasons, it ought to be when there appears cause for which the court acting reasonably would feel bound in duty to do so.’ ” Steve Viglione Sheet Metal Co. v. Sakonchick, supra, 710-11. This is just such a case. The trial court abused its discretion by not giving effect to the intention of the legislature as expressed in section 2, and by failing to reopen the judgment of dismissal in this case.

The judgment is reversed and the case is remanded with direction to open the judgment of dismissal and for further proceedings.

In this opinion the other judges concurred.

       Section 2 of No. 91-284 of the 1991 Public Acts provides: “If any action brought against the state prior to December 24,1985 pursuant to section 4-61 of the general statutes with respect to a disputed claim under a contract with the state for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of any political subdivision of the state, has failed to be tried on its merits because the action has been dismissed by the superior court because such contract was not within the scope of said section 4-61 as it existed prior to the effective date of public act 86-253 on October 1, 1986, the person, firm or corporation bringing such action may, notwithstanding the provisions of section 52-212a of the general statutes, petition the court within ninety days of the effective date of this act to reopen such judgment.” The effective date of No. 91-284 of the 1991 Public Acts was July 1,1991.

       General Statutes (Rev. to 1977) § 4-61 provided in pertinent part: “Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, repair or alteration of any state highway, bridge, building or other public works may, in the event of any disputed claims under such contract, bring an action against the state to the superior court for Hartford county for the purpose of having such claims determined . . . . "

       General Statutes (Rev. to 1987) § 4-61 provided in pertinent part: “Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may, in the event of any disputed claims under such contract, bring an action against the state to the superior court for the judicial district of Hartford-New Britain for the purpose of having such claims determined.”

       Although the plaintiff did not file any opposition to the pending motion to dismiss prior to the short calendar hearing, the plaintiff did not ignore the motion. Since the plaintiff recognized that judicial interpretation of the relevant statute barred its claim, it sought to revive its claim in the legislative arena. On January 26,1988, the plaintiff filed a motion to stay proceedings claiming that “there [was] presently before the 1988 legislative session a proposed bill that will in effect make the change in the law to specifically include DOT contracts involving city and municipal property retroactively effective.” The motion was never acted on by the trial court.
      The proposed bill mentioned in the motion for stay was not enacted in the 1988 legislative session. The plaintiff, however, was able to have the legislature pass Special Acts 1988, No. 88-30, which purported to validate its 1986 claim filed with the commissioner of claims which had been dismissed in 1987 by the commissioner of claims as beyond the one year time limitation specified in General Statutes § 4-148 (a). Although the commissioner of claims later granted the plaintiff permission to sue the state based on the special act, the subsequent lawsuit on the claim was dismissed by the trial court, Freed,, J., on April 26,1990, after the court concluded that Special Acts 1988, No. 88-30, was unconstitutional based on Chotkowski v. State, 213 Conn. 13, 566 A.2d 419 (1989).

       In 1988, Practice Book § 143 provided in relevant part that “[a]n adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.” An amendment to this rule effective October 1,1989, deleted this portion of § 143.

       The entire stipulation of the parties reads as follows:
      “1. The plaintiff and [the] defendant entered into a contract on May 22, 1978, whereby the plaintiff was to perform certain traffic signal improvements at various locations in the city of Hartford.
      “2. The plaintiff initiated this action for breach of contract against the defendant in March, 1983.
      “3. The defendant, State of Connecticut, by virtue of its sovereign immunity, is immune from suit and may not be sued without its consent.
      “4. Pursuant to the Supreme Court’s decision in DeFonce Construction Corporation v. State of Connecticut, 198 Conn. 185, 501 A.2d 745 (1985), the plaintiff’s action against the State of Connecticut was not within the scope of the version of Conn. Gen. Stat. section 4-61 which was effective and applicable on the date of [the] plaintiff’s aforesaid contract with the defendant.
      “5. For the above reasons, the parties hereby stipulate and agree that a judgment dismissing this action may be entered by the Court.”

       Practice Book § 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.”


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Richard Munson v. United Technologies Corporation, Hamilton Standard Division
    (10187)
    Foti, Lavery and Heiman, Js.

      Argued March 25
    decision released July 7, 1992

      Daniel E. Livingston, with whom was Mary E. Kelly, for the appellant (plaintiff).

      Joseph C. Zemetis, for the appellee (defendant).
   Lavery, J.

This appeal involves the plaintiff’s claim that the defendant wrongfully terminated his employment. The plaintiff, Richard Munson, brought an action in three counts against the defendant, United Technologies Corporation, Hamilton Standard Division, alleging that the defendant’s termination of his employment was wrongful because it breached their employment contract and breached an implied covenant of good faith and fair dealing, and employees of the defendant had made negligent misrepresentations to him. After a jury trial, the trial court directed a verdict for the defendant on the negligent misrepresentation count, and submitted the remaining two counts to the jury. The jury rendered a general verdict for the defendant on both counts.

On appeal, the plaintiff claims that the trial court improperly (1) excluded admissible testimony, (2) directed a verdict for the defendant on the negligent misrepresentation count, (3) charged the jury on the relevant contract law, and (4) refused to grant either the motion to set aside the verdict or the motion for a new trial. The plaintiff further asserts that the trial court’s action is not protected by the general verdict rule. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In 1973, the plaintiff applied for and accepted a position as a security officer with the defendant. The plaintiff remained in the employ of the defendant for the next eleven years. Because of the plaintiff’s tardiness from November, 1983, through October, 1984, he received four formal warnings from his supervisor, Lieutenant John Garvulenski. On October 15, 1984, Garvulenski gave the plaintiff what he termed a final verbal warning. Despite this warning, the plaintiff was late four more times before December 12, 1984.

The two instances of tardiness that triggered the termination of the plaintiffs employment occurred on December 5 and December 8, 1984. On December 5, the plaintiff arrived at work more than two hours late. When asked for an explanation by his shift supervisor, he answered that he was late because he was working at his other job. On December 8, the plaintiff arrived at work more than four hours late, explaining that he had been drinking at a party the previous night. On Monday, December 10, 1984, the head of the defendant’s security force, Captain Clarence Toler, brought the plaintiff’s attendance record to David McGrath, director of security for the defendant. Toler recommended that the plaintiff’s employment be terminated. McGrath, who made the final decision, decided that the plaintiff’s termination was warranted due to the reasons given for his two most recent incidents of tardiness and his overall history of tardiness. Other relevant facts will be set forth as necessary.

The plaintiff’s first claim is that the trial court improperly excluded his testimony regarding the statements allegedly made to him by two of the defendant’s employees. The plaintiff was prepared to testify that in the early stages of the application process, he met with Frank Grismaula, who was employed in the defendant’s personnel department. During their hour long meeting, the plaintiff asked Grismaula if the position was a union position. Grismaula stated that it was not, and further told the plaintiff that a union was not necessary because a progressive discipline policy was in place. In 1981, Lieutenant Albert K. MacDonald, one of the plaintiff’s supervisors, told the plaintiff that he had no present problem with his attendance, and that if any problems arose in the future, progressive discipline would begin anew, with counseling, verbal warning and written warning.

The trial court found that the plaintiff’s testimony-regarding statements made by Grismaula and MacDonald was inadmissible because the plaintiff had failed to establish their authority to speak on behalf of the defendant. The plaintiff asserts that the authority of Grismaula and MacDonald was indeed established, and that the statements were not hearsay or were admissible as admissions of a party opponent.

The mere existence of an employment relationship without more does not render statements of an employee admissible against an employer. Liebman v. Society of Our Lady of Mount St. Carmel, Inc., 151 Conn. 582, 586, 200 A.2d 721 (1964). “Before evidence can be admitted to show what an agent said, it must be established that the agent was authorized by the principal to make an admission.” Robles v. Lavin, 176 Conn. 281, 284, 407 A.2d 957 (1978); Hartford National Bank & Trust v. DiFazio, 6 Conn. App. 576, 586, 506 A.2d 1069 (1986). The agency relationship must be proved by a fair preponderance of the evidence. Robles v. Lavin, supra; Leary v. Johnson, 159 Conn. 101, 105, 267 A.2d 658 (1970). The plaintiff concedes that Grismaula’s and MacDonald’s statements, even if not hearsay, were not admissible if they lacked the authority to make the statements.

“Apparent authority must be derived not from the acts of the agent but from the acts of his principal. ‘[The] acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority.’ ” Lettieri v. American Savings Bank, 182 Conn. 1, 8, 437 A.2d 822 (1980); Edart Truck Rental Corporation v. B. Swirsky & Co., 23 Conn. App. 137, 139, 579 A.2d 133 (1990).

In support of the proffered testimony, the plaintiff offered evidence that Grismaula had interviewed him for a job with the defendant. The plaintiff, however, knew only that Grismaula worked in the defendant’s personnel department, and did not know Grismaula’s job title. To justify the admission of the statements by MacDonald, the plaintiff relied on the testimony of Toler that lieutenants, as supervisors, attempted to answer employees’ questions concerning the defendant’s policies by referring to the supervisors’ policy guide or obtaining assistance from the personnel department. This was the sum total of evidence presented by the plaintiff in support of the proffered testimony. The record reveals that the plaintiff offered no evidence to establish that Grismaula or MacDonald had the actual authority to make statements binding on the defendant concerning its disciplinary policies. Likewise, the plaintiff failed to offer evidence concerning any acts or statements of the defendant that would serve to vest either Grismaula or MacDonald with the apparent authority necessary to bind the defendant by their statements.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent an abuse of that discretion.” Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); State v. Menzies, 26 Conn. App. 674, 685-86, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992). We conclude that the trial court did not abuse its discretion in determining that Grismaula and MacDonald lacked the authority to bind the defendant and, therefore, the exclusion of this testimony was proper.

The plaintiff also asserts that the trial court improperly excluded the testimony of David Oliver, another employee of the defendant. Oliver sought to testify that in 1985, after the plaintiff’s termination, a supervisor told him that a progressive discipline policy had always been in effect for the security department. This testimony was excluded by the trial court on relevancy grounds.

“The trial court has broad discretion in determining the relevancy of evidence. State v. Alvarez, 216 Conn. 301, 309, 579 A.2d 515 (1990). Evidence is admissible if it has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787. State v. DeJesus, [194 Conn. 376, 381, 481 A.2d 1068 (1984)]. State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986).” (Internal quotation marks omitted.) State v. Ireland, 218 Conn. 447, 455-56, 590 A.2d 106 (1991); Lombardi v. Groton, 26 Conn. App. 157, 163, 599 A.2d 388 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1361 (1992). The court determined that this proffered testimony was not relevant, in part because the defendant did not have a strict policy regarding the distribution of information concerning any discipline, policy. Consequently, the information allegedly given to Oliver was not necessarily the same as that given to the plaintiff, if any such information was given to the plaintiff at all. We conclude that the trial court’s exclusion of this testimony was not an abuse of discretion.

The plaintiff next claims that the trial court improperly directed a verdict against him on the negligent misrepresentation count. “The standard of review of directed verdicts is well settled. A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion. . . . On reviewing the action of the trial court in first directing and thereafter refusing to set the verdict aside, the evidence must be considered in the light most favorable to the plaintiff. . . . While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... If the evidence would not support a finding of the particular issue, the trial court has a duty not to submit it to the jury. . . (Citations omitted.) Merola v. Burns, 21 Conn. App. 633, 636, 575 A.2d 1025 (1990); Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 285-86, 587 A.2d 1056 (1991).

“[EJven an innocent misrepresentation of fact ‘may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.’ . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1979): ‘One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.’ . . .” (Citations omitted.) D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987).

Even considering the evidence in the light most favorable to the plaintiff, the evidence introduced at trial was insufficient for the jury reasonably to find in favor of the plaintiff on his claim of negligent misrepresentation. On October 15, 1984, when Garvulenski gave the plaintiff a final verbal warning, he told him that next time he was tardy he would receive a written warning. The defendant asserts that this was a negligent misrepresentation because his subsequent tardiness resulted not in a written warning, but in the termination of his employment. The evidence clearly demonstrates, however, that the plaintiffs employment was not terminated merely for chronic tardiness, but for the occurrences of tardiness on December 5 and 8, 1984, which were exacerbated by the unacceptable reasons the plaintiff gave to justify his lateness, that is, working another job and excessive drinking. Given the circumstances of those two occurrences, the trial court correctly concluded that the plaintiff did not present sufficient evidence to send the count of negligent misrepresentation to the jury. We conclude that the trial court properly directed a verdict for the defendant on the negligent misrepresentation count.

The plaintiffs third claim is that the trial court’s instructions to the jury on the breach of contract charge were improper. In light of the general verdict rule, we need not review this claim.

“ ‘The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarche, 188 Conn. 201, 204, 449 A.2d 142 (1982); Collucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts.’ Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202-203, 520 A.2d 208 (1987); see also Hall v. Burns, 213 Conn. 446, 484-85 n.9, 569 A.2d 10 (1990).” Spitzer v. Haims & Co., 217 Conn. 532, 551-52, 586 A.2d 1164 (1991).

This case is analogous to Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 520 A.2d 208 (1987). In Finley, the plaintiff’s complaint alleged that his employment was wrongfully terminated because of breach of express contract, promissory estoppel and breach of an implied covenant of good faith. Id., 192. The jury rendered a general verdict for the defendant. Id. Although the trial court improperly instructed the jury on the statute of frauds; id., 198; our Supreme Court upheld the verdict based on the general verdict rule. Id., 204. “While we acknowledge that the trial court’s erroneous instructions would have tainted any finding for the defendant on the issue of the contract’s existence, we presume that the jury’s verdict included a finding that the plaintiff’s termination was justified by his unsatisfactory job performance. Accordingly, we conclude that the verdict for the defendant must be sustained.” Id.

In the present case, the jury rendered a general verdict for the defendant on the breach of contract count. The plaintiff did not submit interrogatories to the jury in order to determine its findings on each of the plaintiff’s claims. The portion of the jury charge that the plaintiff challenges on appeal relates only to the breach of the contract. Because the defendant denied both the existence of a contract provision requiring written warning prior to discharge and its breach, the general verdict rule dictates the conclusion that the jury found all issues for the defendant; that is, no contract requirement existed, and if a contract did exist, that there was no breach. Therefore, even if the jury charge on breach was incorrect, the defendant cannot prevail because of the general verdict rule, and thus, any such claim of error would be rendered harmless. Finley v. Aetna Life & Casualty Co., supra.

Finally, the plaintiff claims that the trial court improperly refused to grant his motions to set aside the verdict and for a new trial.

Our Supreme Court has recently discussed the trial court’s role in deciding a motion to set aside a verdict. “In passing upon a motion to set aside a verdict, the trial judge must do what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly. . . . The trial judge in considering the verdict must do the same, or fail in the discharge of that function which the law has laid upon him; and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside the verdict. . . .” (Citations omitted; internal quotation marks omitted.) State v. Hammond, 221 Conn. 264, 267-68, 604 A.2d 793 (1992). On the basis of our preceding discussion, we conclude that the trial court properly denied the plaintiff’s motion to set aside the verdict.

The plaintiff’s assertion that the trial court should have ordered a new trial likewise must fail. “[Ojur standard of review of the trial court’s denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion. State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985) .” State v. Leavitt, 8 Conn. App. 517, 524, 513 A.2d 744, cert. denied, 201 Conn. 810, 516 A.2d 886 (1986) . As a reviewing court considering the trial court’s decision granting or denying a motion for a new trial, we must be mindful of the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. State v. Hammond, supra, 269. We conclude that the trial court did not abuse its discretion in denying the plaintiff’s motion for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff was initially employed as a firefighter. His job was reclassified as a fire/security officer when the defendant merged its fire department and its security force.

       Attendance records for 1983 and 1984 show that the plaintiff had been late for work over forty times.

       In sustaining the defendant’s objection to the proffered testimony, the court explained, “We don’t have, I think, in the present status of evidence as it comes in, anything which would give us a basis for saying that you have established the authority of either the immediate supervisor or the personnel individual to speak as the authorized agent of the company on the subject [of progressive discipline].”


author: Freedman, J.

text:
    John McIver v. Warden, State Prison
    (9897)
    Daly, Landau and Freedman, Js.

      Argued March 31
    decision released July 14, 1992

      Louis S. Avitabile, special public defender, with whom, on the brief, was Denise Dishongh, for the appellant (petitioner).

      Jacqueline J. Footman, assistant state’s attorney, with whom, on the brief, was Guy Wolf III, assistant state’s attorney, for the appellee (respondent).
   Freedman, J.

The petitioner, John McIver, was found guilty, after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and larceny in the sixth degree in violation of General Statutes § 53a-125b. The trial court sentenced the petitioner to a total effective term of twenty years imprisonment. The facts underlying the petitioner’s conviction of these charges are fully set forth in State v. McIver, 201 Conn. 559, 518 A.2d 1386 (1986), where, on direct appeal, our Supreme Court upheld the petitioner’s conviction.

While his direct appeal was pending, the petitioner, acting pro se at the time, filed a petition for a writ of habeas corpus in the Superior Court for the judicial district of Tolland. The consolidated amended petition, filed in the habeas court in February, 1990, alleged prosecutorial misconduct, improper jury instructions and ineffective assistance of appellate counsel. After a full hearing on the merits, the habeas court, Dunn, J., denied the petitioner’s application for relief. The habeas court then granted the petitioner certification to file an appeal in this court. General Statutes § 52-470 (b). We affirm the judgment of the habeas court.

The petitioner claims that the habeas court improperly (1) concluded that he was not deprived of a fundamentally fair trial by the cumulative effect of prosecutorial misconduct in combination with insufficient and erroneous trial court instructions on inferences, circumstantial evidence, negative evidence, proof beyond a reasonable doubt and the credibility of the victim, (2) concluded that the petitioner’s right to effective assistance of counsel was not violated where the petitioner’s appellate counsel failed to raise on appeal the issue of the trial court’s erroneous charge on proof beyond a reasonable doubt, (3) concluded that there was a necessary or reasonable continuance of the trial that tolled the 120 day speedy trial statute, and (4) denied the petitioner’s motion to open the judgment.

The petitioner’s first claim was not raised at trial or on direct appeal and therefore must fail. With respect to claims raised for the first time in a habeas corpus petition, our Supreme Court has stated: ‘We are persuaded that habeas review of constitutional claims never raised in the trial court, in violation of our rules of practice, would thrust too great a burden on our criminal justice system.” Johnson v. Commissioner, 218 Conn. 403, 417, 589 A.2d 1214 (1991). In Johnson v. Commissioner, supra, therefore, the court “adopted the federal ‘cause and prejudice’ standard from Wainwright [v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)] for habeas review of constitutional claims not raised at trial.” Giannotti v. Warden, 26 Conn. App. 125, 129, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992). “The Wainwright standard requires that the petitioner show good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . . The petitioner must establish both elements to obtain relief. . . .” (Citations omitted.) Id.

When the habeas court fails to make a finding on the record regarding cause and prejudice, “Giannotti permits this court to review the record in an effort to determine whether any evidence of cause and prejudice has been provided by a petitioner. Where no evidence has been provided, this court can independently conclude that the petitioner has failed to meet the cause and prejudice test. Where, however, there has been evidence presented on the issues of cause and prejudice and the habeas court does not make a finding on the record that the petitioner has either met or failed to meet his burden of establishing cause and prejudice, we will not review the inadequately preserved constitutional claim on the merits. Rather, we will remand the case to the habeas court for it to determine whether the petitioner has satisfied his burden of establishing cause and prejudice.” Daniels v. Warden, 28 Conn. App. 64, 72, 609 A.2d 1052 (1992).

A review of the habeas record reveals that the petitioner failed to demonstrate any reason why the prosecutor’s remarks and the jury instructions were not previously challenged, and that he failed to demonstrate what prejudice these alleged improprieties caused him. “We see no reason why the petitioner could not have advanced this constitutional claim at the time of appeal.” Giannotti v. Warden, supra, 128. We conclude, therefore, that even though the habeas court did not address the issue of cause and prejudice, the record is clear that the petitioner failed to provide that court with evidence of either cause for his failure to raise these issues at trial or any prejudice resulting therefrom. Thus, he is not entitled to review of these claims on the merits. See Daniels v. Warden, supra, 73.

The petitioner next claims that the habeas court improperly concluded that the petitioner was not deprived of his right to the effective assistance of appellate counsel. Specifically, he claims that the habeas court incorrectly concluded that his appellate counsel’s failure to challenge the trial court’s instructions on reasonable doubt, namely, that “if you find the evidence in equipoise or equal, the state has not sustained its burden,” did not constitute ineffective assistance of counsel. The petitioner took no exception to this charge at trial. At the habeas trial, the petitioner’s appellate counsel on direct appeal testified that he did not challenge the jury instructions on appeal because he believed “taking the charge as a whole that it was a fair and correct statement of the law as of December, 1985, and October, 1986, and not subject to reversal on appeal.”

“The right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution . . . .” Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). “When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “There are two components of a claim of ineffective assistance of counsel. ‘First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that thq deficient performance prejudiced the defense.’ [Id., 687].” Johnson v. Commissioner, supra, 424. This standard also applies to claims, such as the one here, of ineffective assistance of appellate counsel. Valeriano v. Bronson, 209 Conn. 75, 84, 546 A.2d 1380 (1988).

The petitioner relies on State v. Smith, 183 Conn. 17, 438 A.2d 1165 (1981), in support of his claim that his appellate counsel’s performance was deficient. In Smith, our Supreme Court rejected the trial court’s instruction that provided in pertinent part: “ ‘Now, if you find that the state has presented evidence so that the scale tips in favor of the state, you still must be convinced that the defendant is guilty beyond a reasonable doubt. I am sorry that I cannot give you graphic or pictorial description as to what is required for the state to prove their case beyond a reasonable doubt by indicating on the scale whether it would be an inch or a foot or a yard or a mile. I can’t do that, so please bear in mind that if the evidence is in equipoise or equal, the state has not sustained its burden, and in that case, you would find the defendant not guilty. For the state to prevail, you must find the scales tipped beyond a reasonable doubt.’ ” Id., 26-27. Our Supreme Court reversed the defendant’s conviction, concluding that “[u]nder the charge, the jury could have found the defendant guilty if they believed beyond a reasonable doubt that the ‘scale’ had been tipped in favor of conviction. . . . Since the jury could easily have been misled by this analogy to the tipping of a scale, and could have found the defendant guilty even if there was a reasonable doubt whether he had in fact committed the crimes, we find error.” (Citations omitted.) Id., 28-29. It is clear that the court’s reversal in Smith was based on the tipping of the scale analogy.

The petitioner claims that his appellate counsel’s failure to challenge the equipoise instruction, on the basis of Smith, constitutes ineffective assistance of appellate counsel. In the petitioner’s trial, however, the trial court did not include the tipping of the scale analogy in its instructions. State v. Smith, supra, therefore, is inapposite to the present matter. Rather, our analysis and disposition of this issue is guided by the well established principles for reviewing jury instructions. “[A] court reviewing a jury charge must review the charge as a whole and not analyze small portions in isolation. . . . The ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.” (Citations omitted; internal quotation marks omitted.) Magnotti v. Meachum, 22 Conn. App. 669, 682, 579 A.2d 553 (1990). With this standard in mind, we cannot say that the conclusion of the petitioner’s appellate counsel was unreasonable.

The trial court accurately described the meaning of reasonable doubt at length in the petitioner’s trial. The charge as a whole made clear to the jury the meaning of reasonable doubt. The portion of the instruction challenged by the petitioner is similar to the two inference instruction, which our Supreme Court has approved when the jury has otherwise been properly instructed on the state’s burden of proof. See State v. Dyson, 217 Conn. 498, 504, 586 A.2d 610 (1991).

Furthermore, the petitioner’s appellate counsel chose several other substantive claims to raise on appeal. “While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. ‘ “A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions.” ’ Valeriano v. Bronson, supra, 89 Magnotti v. Meachum, supra, 682-88. The petitioner’s appellate counsel selected for review those issues that he believed were the strongest and most likely to result in reversal. This decision fell “within the range of competence displayed by lawyers with ordinary training and skill . . . .” (Citations omitted; internal quotation marks omitted.) Levine v. Manson, supra.

The petitioner also claims that he was deprived of the effective assistance of counsel from both his appellate counsel and trial counsel because they failed to raise and press a statutory speedy trial claim. The habeas court disposed of this claim, however, by concluding that there was a necessary and reasonable continuance of the petitioner’s initial trial, and that such continuance tolled the petitioner’s right to a trial within 120 days from his request for a speedy trial pursuant to General Statutes § 54-82c. The petitioner claims that this conclusion by the habeas court was improper.

At the outset, we must set forth our standard of review. “Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment ‘is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.’ Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). As such, that question requires plenary review by this court unfettered by the ‘clearly erroneous’ standard. Id.” Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991).

Additional facts are relevant for a proper disposition of this issue. The crime underlying the petitioner’s conviction in this case derived from an incident that occurred on December 30,1983. At that time, the petitioner was on parole from a previous conviction. When he was arrested for the December 30, 1983 incident, therefore, he was returned to jail to complete his sentence for the previous crime. On March 19, 1984, the petitioner, pursuant to § 54-82c, properly requested a speedy trial as a sentenced prisoner. On April 5,1984, the petitioner’s attorney filed a separate motion for a speedy trial on constitutional grounds, which the trial court subsequently denied.

On July 3,1984, the state moved for a continuance of the petitioner’s trial. The trial court denied the motion. On July 17,1984, the parties appeared before the court. At that time, both the state and the petitioner represented to the court that each side was prepared to commence trial. The court had pending before it, however, various motions involving this matter, including a motion by the petitioner to dismiss the charges because of an allegedly illegal arrest. The petitioner and the state agreed that the court’s disposition of this motion may have been dispositive of the entire prosecution and, therefore, the state without objection from the petitioner, requested “the court to declare the case on trial at this point so that there is no question that the statute has been complied with.” The trial court granted the state’s request, declared the case on trial, and then proceeded to consider the petitioner’s various pretrial motions. Jury selection actually commenced on July 19,1984, and the jury panel was finally sworn in on July 26, 1984.

On direct appeal from his conviction, the petitioner raised the issue of the state’s failure to commence his trial within 120 days of his request, as required by § 54-82c. At oral argument, however, the petitioner abandoned this issue because the state convinced the petitioner’s appellate counsel that the 120 days had not expired because his motion for a speedy trial actually was filed on April 5, 1984. Apparently, the state did not see the March 19, 1984 request in the trial court file, and it convinced the petitioner that the only speedy trial motion he made was filed on April 5,1984, a date that effectively negated the petitioner’s claim under § 54-82c. Sometime after the conclusion of his direct appeal, the petitioner realized the mistake made by the state and accepted by his appellate counsel, and he raised this issue in his habeas petition.

Section 54-82c requires that if a defendant already serving a prison term files a speedy trial request with respect to other charges, “he shall be brought to trial within 120 days . . . .” The purpose of §§ 54-82c and 54-82d is to “allow a prisoner who was committed to jail to ask that he be tried within 120 days on any information or indictment pending against him.” Remarks of Senator John H. Filer, 7 S. Proc., Pt. 6,1957 Sess., p. 3712, on H.B. 683. Section 54-82c, however, permits the trial court to grant “any necessary or reasonable continuance” for good cause shown in open court.

It is undisputed that the last day for compliance with § 54-82c was July 17,1984. The habeas court, however, concluded that because both the state and the petitioner’s attorney agreed to proceed on the motions first, despite their knowledge that July 17 was the 120th day, and because of their acquiescence in the trial court’s declaration that the matter was on trial, there was a necessary and reasonable continuance for good cause shown in open court pursuant to § 54-82c. We agree.

Although the mere declaration by a trial judge that a case is on trial does not a trial make, it is clear from the record that the petitioner and his trial attorney knew that July 17 was the 120th day, and that they had the right to pursue their claim for dismissal under §§ 54-82c and 54-82d. It is also clear from the record and the testimony of witnesses at the habeas trial that the state was ready, willing and able to commence trial on that date, and that the petitioner’s attorney opted to forego his speedy trial claim because (1) he knew that if he raised it, he would not prevail because the court simply would have commenced trial by instituting jury selection, and (2) he believed that he was going to prevail on his motion to dismiss because of an illegal arrest. Because the motion to dismiss based on the illegal arrest might have been dispositive without first going through the process of selecting a jury, both the state and the defendant agreed, in open court, to have a hearing and to obtain a ruling from the court on that motion before a trial actually started.

The trial court’s declaration that the matter was on trial, therefore, was the functional equivalent of the granting of a reasonable continuance for good cause shown in open court, even though the trial court did not use the talismanic word “continuance.” See, e.g., State v. Velez, 17 Conn. App. 186, 190-91, 551 A.2d 421 (1988), cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906, 109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989). We therefore find nothing improper with the conclusion of the habeas court, and because of this conclusion, neither the trial attorney nor the appellate counsel’s failure to raise the speedy trial issue deprived the petitioner of effective assistance.

Finally, the petitioner claims that the trial court improperly denied his motion to open the judgment. Testimony at the petitioner’s habeas trial suggested that the petitioner was technically released from prison on his prior sentence on July 10,1984, because of good time credits that should have been credited to him. If that were true, the petitioner would not have any speedy trial claim under § 54-82c because he would then have been held after that date on a pretrial detainer. State v. Harris, 14 Conn. App. 244, 249-50, 540 A.2d 395 (1988).

In its December 21, 1990 memorandum of decision, the habeas court, after concluding that there was a reasonable and necessary continuance, also stated: “Further, the petitioner was released from prison on July 10, 1984, so § 54-82c probably did not apply. He was held after that date on a (pretrial) detainer.” On April 2,1991, the petitioner filed a motion to open the judgment. The substance of this motion was that the petitioner had discovered, through additional evidence, that the state had incorrectly calculated the good time credits to which the petitioner was entitled so that he was not, in fact, being held on a pretrial detainer as of July 17, 1984. The habeas court denied the motion to open because it concluded that even if the petitioner was correct, it made no difference to the court’s opinion because the habeas court had also concluded that there was a necessary and reasonable continuance for good cause shown.

“The decision to reopen the testimony rests within the sound discretion of the trial court. State v. Sanchez, 200 Conn. 721, 729-30, 513 A.2d 653 (1986).” Ostolaza v. Warden, 26 Conn. App. 758, 778, 603 A.2d 768 (1992). “The criteria for a court to open a judgment is analogous to the conditions needed for a petition for a new trial on grounds of newly discovered evidence. Shelton Sewer Authority v. DeFilippo, 2 Conn. App. 355, 361, 478 A.2d 623 (1984).” Buster v. Commissioner, 26 Conn. App. 48, 51, 596 A.2d 943 (1991). One of those criteria is that the “evidence ... is likely to produce a different result.” Buster v. Commissioner, supra, 51-52. Because of the habeas court’s conclusion that there was a necessary and reasonable continuance for good cause shown, this new evidence, even if true, would not have produced a different result. We conclude, therefore, that the habeas court did not abuse its discretion in refusing to open the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or on behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

         Because the petitioner has couched his ineffective assistance claims entirely in sixth amendment terms and has provided no separate and independent analysis of our state constitutional provisions, we confine our discussion to Ms rights under the sixth and fourteenth amendments. Phillips v. Warden, 220 Conn. 112, 131 n.15, 595 A.2d 1356 (1991).

       The trial court, in its charge to the jury on the meaning of reasonable doubt, also instructed the jury as follows: “Now, the phrase reasonable doubt has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word, reasonable. A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt which is something more than a guess or surmise. It is not a conjecture or a fanciful or capricious doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts. Nor is it a doubt suggested by the ingenuity of counsel or a juror which is not warranted by the evidence. A reasonable doubt, in other words, is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence. It is such a doubt as in the serious affairs which concern you in every day life you would pay some heed to. Another way of defining it is this. A reasonable doubt is not a slight doubt. It is not a possible doubt. It is not a conjecture or a guess, nor does it arise from feelings of sympathy or pity for anyone who may be affected by your verdict. A reasonable doubt is one which is based on the evidence and flows from the' evidence or lack of evidence. It is a doubt which is based on reason. It is a doubt founded on reason as contrasted with purely speculative doubt.
      “Now, absolute certainty, of course, in the affairs of life is almost never attainable and the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. What the law does require, however, is that after hearing all the evidence if there is something in that evidence or lack of evidence which leaves in the minds of the jury as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and be acquitted. It necessarily follows as I have told you, that if any fact or element bears equally two ways, one towards innocent and the other towards guilt, that it must be given that direction which tends towards innocent. In other words, it is incumbent on the State to negative every supposition not in itself unreasonable or improbable with the innocence of the accused. If you can in fact reconcile all of the facts proved with any reasonable theory consonant with the innocence of the accused, then, of course, you cannot find him guilty.”

       General Statutes § 54-82c provides: “(a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden, community correctional center administrator or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.
      “(b) The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, community correctional center administrator or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
      “(c) The warden, community correctional center administrator or other official having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof.
      “(d) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in subsection (a) hereof shall void the request.”


author: Daly, J.

text:
    Frances Martone v. Frank M. Martone
    (10420)
    Dupont, C. J., Daly and Foti, Js.

      Argued March 23
    decision released July 14, 1992

      Gary I. Cohen, with whom, on the brief, was Lee Marlow, for the appellant-appellee (defendant).

      Steven D. Ecker, with whom, on the brief, was Frederick S. Moss, for the appellee-appellant (plaintiff).
   Daly, J.

The defendant appeals from the trial court’s financial awards rendered in a marital dissolution action. The defendant claims that the trial court improperly (1) awarded expenses related to the marital residence as lump sum alimony, (2) awarded lump sum alimony in contradiction to a previous agreement between the parties accepted by the court that limited the remaining issues to an award of periodic alimony and child support, (3) awarded damages to the plaintiff, which is beyond the scope of the court’s jurisdiction in a marital dissolution action, (4) ordered an arrearage in child support to be paid as lump sum alimony, and (5) failed to recognize that the stipulation between the parties gave the plaintiff assets worth $200,000 more than the assets given to the defendant. In her cross appeal, the plaintiff challenges the court’s award of child support. She claims that the court incorrectly computed the defendant’s income by taking into account a federal income tax deduction reported in his financial affidavit even though the defendant admitted that he had not paid federal income taxes for a number of years. The plaintiff further claims that the court’s award of child support was improperly based on the defendant’s pretrial financial affidavit instead of on the defendant’s trial testimony, which established a higher income.

The following facts are pertinent to this appeal. On March 31,1989, the plaintiff sought a dissolution of her marriage to the defendant. At the time of the dissolution, there were three minor children issue of the marriage, ranging in age from fourteen to eleven years. On January 9, 1991, the parties entered into a stipulated agreement, which they characterized as a resolution of equitable distribution issues. The agreement, which consisted of oral and written stipulations, provided for joint custody and visitation of the children as well as for the distribution of the parties’ property. After reading the agreement into the record, the court questioned both parties about their understanding of the agreement. Both parties asked the court to accept the stipulated agreement. The court rendered a judgment according to the parties’ stipulation, dissolving the marriage, establishing custody and visitation, and distributing the parties’ property. The court retained jurisdiction over the matter as to alimony and child support. The defendant contends that the court retained jurisdiction only as to periodic alimony while the plaintiff contends that the court retained jurisdiction to award both periodic and lump sum alimony. The court understood its role to include discretion to order lump sum alimony. The trial court heard testimony about the unresolved issues at hearings on April 5, 12 and 23, 1991. A review of the record reveals that the parties, during their marriage, acquired houses and rehabilitated them as rental units. The parties were able to generate income from the rental of these apartment units, which was distributed according to the stipulated agreement. The court found that both parties were skillful in developing these properties as rental units.

The plaintiff received the marital residence located in Branford as part of the stipulated agreement. The plaintiff testified that the parties moved into the marital residence in December, 1985. In April, 1989, the defendant left the plaintiff. The plaintiff spent approximately $30,000 during the summer of 1990 to repair the marital residence and another $2000 after the property distribution agreement was rendered on January 9, 1991. The defendant did not contribute to the cost of the repairs. The plaintiff also testified that another $25,000 for future repairs was necessary for the marital residence. The plaintiff was aware of the condition of the house at the time that she entered into the stipulated agreement. The defendant’s mother bought a house in Branford where the defendant lived during these proceedings. The defendant’s mother made a down payment of $25,000 and obtained a mortgage for the balance of $100,000. The defendant makes the mortgage payments.

The defendant testified that he had not paid any income tax from 1986 until the time of this action. The defendant claimed to have received a tax credit because the parties rehabilitated the rental properties. On his financial affidavit, the defendant claimed a reduction of his net income for income tax. The court found that neither party had paid federal income taxes in the recent past and that they were unlikely to begin paying federal taxes in the future.

In its memorandum of decision, the court noted that both parties were capable of acquiring and rehabilitating properties to accumulate income. The court, referring to the plaintiff, stated that “[w]ith her realty holdings as collateral and a proven track record, she will be able to get mortgages and go on if she so decides.” The court found that the defendant was responsible for the breakdown of the marriage. The defendant was ordered by the court to maintain a life insurance policy for the benefit of his three children in the sum of at least $100,000 until the youngest child reached majority. The court ordered the defendant to pay $16,000 to the plaintiff, which constituted half of the $32,000 spent on repairing the family residence. The defendant also was ordered to pay another $12,500 to the plaintiff as contribution toward the estimated cost of further remodeling of the marital residence. The court also awarded the plaintiff $9500, representing contribution toward the estimated cost for a new automobile. The court ordered the defendant to pay the plaintiff $15,000 “as damages for his conduct in brutally causing the breakup of this marriage.” The court set the child support award at $73 per child per week for a total of approximately $220 per week. By agreement of the parties, the child support award was retroactive from February 1, 1991.

In response to a motion for articulation filed by the plaintiff, the court clarified its financial orders. The court noted that the $15,000 ordered as damages was in fact an award of alimony. The court emphasized that the $2874 child support arrearage resulting from the parties’ agreement that the award would be effective as of February 1, 1991, was just that and not part of the lump sum alimony award. The court further stated that it did not include in the defendant’s income the monthly rental of $470 from the temporarily vacant apartment on Edwards Street. The defendant appealed from the court’s decision and the plaintiff brought a cross appeal.

I

The defendant claims that portions of the trial court’s lump sum alimony award constitute a modification of the previous nonmodifiable judgment. The defendant argues that the $16,000 award for past repairs and the $12,500 award for future repairs of the marital residence and the award of $9500 for the purchase of a new automobile were impermissible modifications of the property distribution that the parties entered into in their stipulated agreement on January 9, 1991. The defendant argues that this violated General Statutes § 46b-86. We agree with the defendant that the awards of $16,000 and $9500 constituted an improper modification of the property distribution judgment. On this basis, we reverse those aspects of the trial court’s financial awards.

The plaintiff received the marital residence pursuant to the stipulated agreement that divided ownership of the parties’ property. According to the agreement, each party retained ownership of their respective automobiles. On January 9,1991, at the time that the parties asked the court to accept the property distribution agreement, the plaintiff had already spent approximately $30,000 of her own money on the marital residence. The plaintiff had been living in the house for about six years at the time she entered into the property distribution agreement. The plaintiff knew of the condition of the house and the need for additional work that was likely to cost another $25,000. Both parties contributed to the acquisition of the income producing properties, which were divided equally by the agreement. The plaintiff received the additional asset of the marital residence. In the stipulated agreement, the plaintiff agreed to indemnify the defendant in connection with the transfer of the marital residence. The payment of $3750 for family bills by the defendant was included in the stipulated judgment but the plaintiff did not attempt to recover any amount of the money she had already spent on the marital residence.

The court questioned both parties concerning the property distribution agreement. The plaintiff stated it was fair and did not request any compensation for the repairs she had made on the marital residence that she was receiving pursuant to the agreement. General Statutes § 46b-66 provides in pertinent part that “[i]n any case under this chapter where the parties have submitted to the court an agreement concerning the . . . disposition of property, the court shall inquire into the financial resources and actual needs of the spouses ... in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances.” The court fulfilled its duty to inquire into the property distribution agreement. The court found the agreement to be fair and equitable. “If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. . . .” This agreement was in writing and was incorporated by reference in the court’s decision. The court’s acceptance of the agreement transformed it into a binding order as to property distribution. Sands v. Sands, 188 Conn. 98, 102-103, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983); Calorossi v. Calorossi, 4 Conn. App. 165, 168, 493 A.2d 257 (1985).

A trial court does not have to make financial awards such as alimony and property distribution at the time it renders judgment dissolving the parties’ marriage as long as the court expressly retains jurisdiction over the matter. Ross v. Ross, 172 Conn. 269, 272-73, 374 A.2d 185 (1977). In Ross v. Ross, supra, 270, the trial court dissolved the parties’ marriage but specifically retained jurisdiction for a subsequent determination of alimony, custody and child support. Here, the trial court expressly retained jurisdiction over this matter as to alimony and support after it dissolved the parties’ marriage. Under General Statutes § 46b-86 (a), a trial court in a marital dissolution action does not retain continuing jurisdiction over any portion of the judgment that constitutes an assignment of property from one party to another party pursuant to General Statutes § 46b-81. Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980). The stipulated agreement assigned all of the parties’ property, including the automobiles and the marital residence. The court’s award of money for past repairs and the purchase of an automobile constituted improper modifications of the parties’ property distribution agreement. These awards of alimony would have been within the court’s discretion if there were not an existing property distribution. In the present case, however, because of the earlier property distribution, this portion of the alimony award violated Bunche v. Bunche, supra, and, therefore, was a prohibited modification of a property distribution judgment.

An award of alimony is based primarily on a spouse’s continuing duty to support. Hotkowski v. Hotkowski, 165 Conn. 167, 170, 328 A.2d 674 (1973). General Statutes § 46b-82 governs the award of alimony and specifically states it may be in addition to a property distribution award pursuant to § 46b-81. The court, when awarding alimony is required by § 46b-82 to consider each spouse’s needs. The award of $12,500 for further repairs of the marital residence was within the court’s discretion under § 46b-82. The award of $16,000 for past expenses related to the marital residence does not fall within the defendant’s duty to support the plaintiff.

We recognize that a trial court in a marital dissolution action has broad discretion when fashioning financial orders such as alimony. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990); Cahn v. Cahn, 26 Conn. App. 720, 731, 603 A.2d 759, cert. granted, 221 Conn. 924, 608 A.2d 688 (1992). The court’s broad discretion was limited in this case to a determination of alimony and support. It had no jurisdiction and, therefore, had no discretion to alter the prior distribution of assets that had been the subject of the parties’ stipulation. The court’s financial awards to the plaintiff for past repairs and for the acquisition of an automobile were separate and distinct from its other proper awards of alimony. Because the court had no discretion to award the plaintiff anything for amounts already expended on the marital residence or for an automobile, and because there was no abuse of discretion as to the other portions of the alimony award, a remand to review all the financial orders is unnecessary in this case. See Cuneo v. Cuneo, 12 Conn. App. 702, 710-11, 533 A.2d 1226 (1987).

II

The defendant claims that the trial court’s award of $15,000 as damages was improper because such an award is beyond the scope of the court’s jurisdiction in a marital dissolution action. We reject this claim.

In its memorandum of decision, the court referred to damages in its award of $15,000 for the defendant’s conduct in causing the breakdown of the marriage. The plaintiff filed a motion for articulation concerning this portion of the court’s financial award. The plaintiff requested that the court articulate whether “it intended that amount to reflect a portion of the alimony attributable to defendant’s role in causing the breakup of the marriage pursuant to General Statutes § 46b-82, or rather whether the amount was rendered as ‘damages’ in the sense of compensation for personal injury or something else?” The court responded that the $15,000 award constituted a portion of the award of alimony and not an award of damages.

Under § 46b-82, the court, when awarding alimony, should consider “the causes for the . . . dissolution of the marriage . . . .” Therefore, the defendant’s conduct that contributed to the dissolution was relevant and could provide a basis for an award of alimony. Although the court initially referred to damages when awarding the $15,000, its response to the articulation clarified the meaning of the order. “The characterization which is later in time should control, and is more consistent with the trial court’s actions, and with the parties’ testimony.” Dubicki v. Dubicki, 186 Conn. 709, 715, 443 A.2d 1268 (1982). This portion of the court’s award of alimony was proper.

Ill

In her cross appeal, the plaintiff claims that the trial court’s award of child support was improper because there was a deduction from the defendant’s gross income for the payment of federal taxes that were not in fact paid by the defendant. The following facts are relevant to this claim.

The defendant submitted a child support guidelines sheet on April 24,1991. According to the defendant’s calculations, his gross income amounted to $695.92. He then deducted $194.85 from his gross income which constituted the payment of federal income taxes and property expenses. The plaintiff’s gross income was $1,133.07 with $360.41 deducted from her gross income for federal income taxes and property expenses. The guidelines computation established the defendant’s child support obligation at $219.51 for all three children per week. On May 10,1991, the plaintiff submitted an amended child support guidelines worksheet to the court. This worksheet also gave both parties a deduction in their income for the payment of federal income taxes. According to the amended guidelines, the defendant should be responsible for $302.10 per week for all three children. The court ordered the defendant to pay $220 per week in child support for all three children. The court did not make a finding that the application of the child support guidelines would be inappropriate or inequitable.

The court accepted the amount established in the guidelines worksheet submitted by the defendant on April 24,1991. The court was free to reject the amount of child support called for in the plaintiffs amended guideline worksheet. The defendant’s gross income is reduced by $194.85 on the basis of his federal income tax obligation. The defendant testified that he has not paid federal income taxes since 1986. The defendant had not paid federal taxes because he had not filed income tax returns for 1988 and 1989. It is unclear whether the defendant was ever going to have to pay federal income taxes for the period from 1986 until the time of his testimony. The court, however, found that neither party had paid federal taxes “in the recent past and there is no reason to assume they will start in the immediate future.”

The trial court was required by General Statutes § 46b-215b (a) to consider the child support guidelines in reaching its award of child support. Battersby v. Battersby, 218 Conn. 467, 470, 590 A.2d 427 (1991). The figure established by the guidelines becomes a rebut-table presumption of an award of child support according to § 46b-215b (a). The court must make a specific finding that application of the child support guidelines would be inequitable or inappropriate if it wants to rebut the presumption established by the guidelines and award an amount that differs from the application of the guidelines. General Statutes § 46b-215b (a); see McHugh v. McHugh, 27 Conn. App. 724, 728-29, 609 A.2d 250 (1992).

The child support awarded by the court falls within the guidelines figure submitted by the defendant. Those calculations included a deduction from income representing the payment of federal income taxes. The allowance of this deduction directly contradicts the court’s finding that.neither party has paid or will pay federal taxes in the future. The court’s award of child support, which includes a deduction from income for the payment of federal taxes, is not supported by its findings. Thus, the trial court’s award of child support was clearly erroneous. There was no basis in the court’s findings for allowing the deduction of federal taxes from the parties’ gross income to arrive at the award of child support. The award of child support is reversed and the matter is remanded for a new hearing to determine the defendant’s child support obligation and any arrearage resulting from that award.

On the appeal, the judgment is reversed as to the award of $16,000 for past repairs and $9500 for the purchase of a new automobile and the case is remanded with direction to render judgment reducing the award of alimony by those amounts. On the cross appeal, the judgment is reversed as to the award of child support and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The written part of the stipulated agreement provided: “1. Husband gets ownership of Edwards St.; his Mercedes and his truck; and one-half the cash on deposit. 2. Wife gets ownership of Foster St. and Cottage St., with all expenses paid up to date as of date of judgment - from 2/1/91. 3. Parties to transfer Cape Cod property into trust for benefit of the children equally. Parties to be co-trustees and they will equally pay the expenses thereof. 4. Husband transfers by QDRO $4,000 from his IRA to wife’s IRA. 5. Wife keeps her van and contents of the house. Husband transfers Buttermilk Lane house to wife and she indemnifies him in connection therewith. 6. Each pays xk cost of medical insurance for children. If either gets medical insurance for children as an incident of his/her employment then he/she will provide it for the children. They will equally share uninsured medical and dental expenses for the children, including orthodontia and agreed upon counselling expenses. 7. Husband will pay wife $3,750 within six months as a contribution toward family bills. Wife will indemnify husband in connection with the Sears, and Mastercard accounts. 8. They shall continue to cooperate in connection with claims arising out of an investment known as Castle Rock and if there should be any liability established, they shall be equally liable. 9. Transfers of the real estate shall be made as of February 1,1991, and existing pendente lite orders stay in effect until then.”

       “[General Statutes] Sec. 46b-86. (Formerly Sec. 46-54). modification OF ALIMONY OR SUPPORT ORDERS AND JUDGMENTS, (a) Unless and to the extent that the decree precludes modification, any final order for the periodie payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party .... This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. . . .”

       “[General Statutes] Sec. 46b-81. (Formerly Sec. 46-51). assignment of property and transfer OF title, (a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior' court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. . . .”


text:
    Fleet Bank of Connecticut v. Vincent J. Dowling, Jr. Fleet Bank of Connecticut v. Vincent J. Dowling, Sr.
    (10723)
    (10724)
    Dupont, C. J., Foti and Lavery, Js.
    Argued May 5
    decision released July 14, 1992

      Kerry M. Wisser, with whom, on the brief, was Jennifer Jaff for the appellants (defendants).

      Robert A. Izard, Jr., with whom was Denise M. Cloutier, for the appellee (plaintiff).
   Lavery, J.

These two cases involve claims by the plaintiff Fleet Bank of Connecticut that it is entitled to reimbursement from the defendants, Vincent J. Dowling, Sr., and Vincent J. Dowling, Jr., for the amount it paid pursuant to two irrevocable letters of credit. The cases are identical, except that in the first case a reimbursement agreement was signed by Vincent J. Dowling, Jr., in connection with a letter of credit for the benefit of a third party. In the second case, Vincent J. Dowling, Sr., signed a similar agreement. The cases were presented together in oral argument and will be considered together in this opinion. On appeal, the defendants claim that the trial court improperly granted prejudgment remedies because there was insufficient evidence to establish probable cause that the defendants caused the plaintiff to issue the letters of credit, and because the letters of credit were engagements by the plaintiff made at the request of the defendants. We affirm the judgment of the trial court.

The pertinent facts are as follows. On October 31, 1989, and on or about November 2,1989, the plaintiff issued a letter of credit to each of the defendants for the benefit of a third party, Intercontinental Monetary Corporation (IMC), in the amount of $525,000 each. Simultaneously with the issuance of the letters of credit, the defendants executed a reimbursement agreement requiring them to reimburse the plaintiff for any and all drafts made by IMC under the letters of credit, plus all other associated costs.

On August 9,1990, IMC made demand for $525,000 under each letter of credit. The plaintiff honored these demands on August 14,1990, paying IMC $525,000 on behalf of each defendant. Despite demand by the plaintiff, the defendants have refused to reimburse the plaintiff pursuant to the reimbursement agreement.

The plaintiff filed an application for the prejudgment remedy of garnishment on September 4,1991. A hearing was held on September 30,1991, at which the plaintiff introduced both testimony and documentary evidence, including the letters of credit and the demand documents. The plaintiffs application for prejudgment remedy was granted on October 16,1991, without written decision. The defendants moved for an articulation, and, on November 21, 1991, the trial court issued the articulation. The court made the following findings on each case: “The parties entered into an agreement wherein the plaintiff would issue the Letter of Credit for the account of the defendant, in the sum of Five Hundred Twenty-Five Thousand Dollars ($525,000). That the Letter of Credit was issued in favor of the Intercontinental Monetary Corporation. That the beneficiary under the Letter of Credit, Intercontinental Monetary Corporation, drew the Five Hundred Twenty-Five Thousand Dollars ($525,000) pursuant to the Letter of Credit. That the Letter of Credit was properly presented by Intercontinental Monetary Corporation to the plaintiff, and, according to its terms, was paid by the plaintiff to the said corporation. That, there is probable cause that there is due and owing to the plaintiff from the defendant the sum of Five Hundred Twenty-Five Thousand Dollars ($525,000) plus interest and associated costs.”

Our scope of review of a trial court’s decision to grant or to deny a prejudgment remedy is limited. “Pursuant to our prejudgment remedy statutes; General Statutes § 52-278a et seq.; the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . . The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is a probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities. . . . Moreover, this weighing process applies to both legal and factual issues.” (Citations omitted; internal quotation marks omitted.) Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 156, 595 A.2d 872 (1991); New England Land Co. v. DeMarkey, 213 Conn. 612, 620, 569 A.2d 1098 (1990).

“We reiterate ‘the limited role that our case law assigns to appellate review of a trial court’s broad discretion to deny or to grant a prejudgment remedy. It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.’ Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991); see also Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 479-80, 525 A.2d 935 (1987); Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985).” Bank of Boston Connecticut v. Schlesinger, supra, 156-57.

The defendants’ claim that the trial court’s finding of probable cause was improper because the defendants did not cause the plaintiff to issue the letters of credit and that the letters of credit were not made at the request of the defendants.

“The law that governs letters of credit in this state is contained in article 5 of the Uniform Commercial Code, General Statutes §§ 42a-5-101 through 42a-5-117. A letter of credit, under the code, is an engagement by a bank or other person, made at the request of a customer, that the issuer will honor drafts or other demands for payment upon compliance by the beneficiary with the conditions specified in the credit.” Armac Industries, Ltd. v. City trust, 203 Conn. 394, 397, 525 A.2d 77 (1987). A letter of credit involves three separate commitments, one between the customer and the beneficiary (the defendants and IMC), one between the customer and the issuer (the defendants and the plaintiff), and one on the letter of credit itself, “obligating the issuer to honor proper drafts or other demands for payment by the beneficiary, if accompanied by the documentation required by the credit.” Id., 398.

The defendants assert that there was no evidence of the second commitment, the agreement between the plaintiff and the defendants, pursuant to which the plaintiff was to issue the letters of credit. Without such an agreement between the customer and the issuer, a valid letter of credit could not exist, and the trial court’s finding of probable cause would be clear error.

At a probable cause hearing on a prejudgment remedy, a trial court may properly consider all evidence presented, including testimony of witnesses, documentary evidence, and affidavits. Self-Service Sales Corporation v. Heinz, 1 Conn. App. 188, 192, 470 A.2d 701 (1984). Notwithstanding the defendants’ assertions to the contrary, our review of the record shows that the plaintiff did present evidence at the hearing that indicated that an agreement existed between the plaintiff and the defendants and that the defendants had requested the letters of credit. First, an officer of the plaintiff who was responsible for the defendants’ accounts testified that the letters of credit were “issued for the account of Dowling.” Second, the letters of credit state that they were issued for the account of the defendants. Third, the plaintiff paid $525,000 pursuant to each letter of credit. Fourth, the plaintiff brought suit to obtain reimbursement from the defendants. Finally, the defendants agreed to reimburse the plaintiff for amounts drawn under the letters of credit. On the basis of this evidence, we conclude that the trial court’s determination that there was probable cause to establish that the plaintiff and the defendants entered into an agreement pursuant to which the plaintiff would issue a letter of credit for the account of each defendant was correct.

The judgments are affirmed.

In this opinion the other judges concurred.

       The trial court also treated both cases in an identical fashion.

       The letters of credit were issued by United Bank and Trust Company, now known as Fleet Bank of Connecticut.