text:
    Lloyd Cutsumpas et al. v. The Connecticut Light and Power Company
    (6053)
    Dupont, C. J., Spallone and Foti, Js.

      Argued May 5
    decision released September 6, 1988

      Kevin M. Doyle, for the appellant (defendant).

      Edward J. Gallagher, for the appellees (plaintiffs).
   Spallone, J.

The defendant appeals from the judgment rendered for the plaintiffs, after a trial to the court, wherein the court found for the plaintiffs on the issues of negligence and fraudulent concealment.

The trial court found the following facts. In June, 1964, certain real estate consisting of a three story building and surrounding land located at 148 Deer Hill Avenue in Danbury was owned by Benjamin Sachner, a dentist. Sachner maintained an office for his dentistry practice on the first floor and resided with his family on the second and third floors.

At that time, the Tamarack Construction Company (Tamarack), acting as agent for the defendant, the Connecticut Light and Power Company (CL&P), was engaged in the installation of an underground gas line. In the course of that installation, Tamarack excavated in the vicinity of a clay sewer pipe which serviced Sachner’s premises, installed the gas line and then filled in the excavation. Approximately six months later, in January, 1965, the plaintiffs, Francis J. Collins and Lloyd Cutsumpas, purchased 148 Deer Hill Avenue from Sachner and converted the premises into their law offices.

The plaintiffs experienced no problems with the sewer line until 1975. On several occasions during the years 1975 to 1978, blockages occurred which required the services of a plumber, who corrected the problems as they arose. In 1984, a blockage in the sewer line developed which could not be easily eliminated. The plaintiffs first attempted to check the sewer line with a “snake” or a “rooter,” but this proved unsuccessful. A company was hired to dig out the sewer line from the plaintiffs’ building to the street to ascertain the difficulty. When that portion of the sewer pipe at the intersection of George Street and Deer Hill Avenue was uncovered, the workers discovered a gaping hole in the pipe where one section had caved in and was clogging the line. It also was discovered that the collapsed section was not part of the original clay pipe but had been a “patch” made with sheet metal and concrete. This patched area of pipe was in close proximity to a perpendicular gas line. The plaintiffs eliminated the blockage, repaired the sewer pipe, filled in the excavation and replaced the asphalt on the affected portion of George Street.

In order to recover the costs of repair, the plaintiffs brought suit against CL&P, alleging that Tamarack, acting as an agent for CL&P, “negligently damaged the plaintiffs’ sewer line” when installing the gas line in 1964 and, “due to the negligence of the defendant or its agents in performing the repair work to the damaged sewer line, blockage occurred in the sewer line at the point of the break and repair which resulted in damage to the plaintiffs.” The plaintiffs also alleged that “[a]t the time the defendant or its agents damaged the plaintiffs’ sewer line, the defendant or its agents fraudulently concealed the existence of the damage done to the plaintiffs’ sewer line, of which the plaintiffs had no knowledge until said line became totally blocked on or about March 24, 1984.”

The defendant answered and by special defense pleaded that the plaintiffs’ action was barred by the statute of limitations and denied that Tamarack was its agent. After a trial to the court, judgment was rendered for the plaintiffs. The court found that Tamarack was the agent for the defendant, that the defendant was negligent and that it fraudulently concealed its negligent act. The defendant now appeals from that judgment.

The defendant claims that the trial court erred (1) in not holding that the plaintiffs’ action was barred by the statute of limitations, (2) in considering the plaintiffs’ claim of fraudulent concealment, (3) in determining that actual knowledge of a cause of action is not an element of fraudulent concealment, (4) in basing its finding of fraudulent concealment on an allegation of negligence that was not pleaded in the complaint, and (5) in finding the issues for the plaintiff where the evidence produced at trial was insufficient to support the claims of negligence and fraudulent concealment. We find error in the trial court’s determination that this action was not barred by the statute of limitations and, therefore, we need not reach the remaining claims of error.

Because the allegedly negligent act complained of occurred in June, 1964, absent any unusual circumstances, the applicable statute of limitations, General Statutes § 52-584, clearly had run. In their complaint, the plaintiffs alleged that this statute of limitations was tolled by the defendant’s fraudulent concealment of their cause of action.

General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.” For the plaintiffs to succeed in their cause of action, they must satisfy the requirements of § 52-595 by proving fraudulent concealment.

“To establish that the [defendant] had fraudulently concealed the existence of their cause of action and so had tolled the statute of limitations, the plaintiffs had the burden of proving that the [defendant was] aware of the facts necessary to establish this cause of action; Puro v. Henry, 188 Conn. 301, 311, 449 A.2d 176 (1982); and that [it] had intentionally concealed those facts from the plaintiffs. Zimmerer v. G.E. Company, 126 F. Sup. 690, 693 (D. Conn. 1954); Lippitt v. Ashley, 89 Conn. 451, 480, 94 A. 995 (1915); see note, ‘Fraudulent Concealment of a Right of Action and the Statute of Limitations,’ 43 Harv. L. Rev. 471, 474 (1929); comment, ‘The Application of the Doctrine of Fraudulent Concealment to Modern Federal Trade Conspiracy Cases,’ 14 Conn. L. Rev. 115, 127-28 (1981). The [defendant’s] actions must have been ‘directed to the very point of obtaining the delay [in filing the action] of which [it] afterward [seeks] to take advantage by pleading the statute.’ Lippitt v. Ashley, supra, 480; Zimmerer v. G.E. Company, supra, 693. To meet this burden, it was not sufficient for the plaintiffs to prove merely that it was more likely than not that the [defendant] had concealed the cause of action. Instead, the plaintiffs had to prove fraudulent concealment by the more exacting standard of ‘ “clear, precise, and unequivocal” ’ evidence; Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983); Puro v. Henry, supra, 308; Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982).” Bound Brook Assn. v. Norwalk, 198 Conn. 660, 665-66, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986).

The plaintiffs’ evidence failed to prove the issue at the very heart of fraudulent concealment: whether the defendant, through the acts of its agent, neglected to report the damage done to the sewer pipe. In June of 1964, when the negligent act was committed, Sachner was the owner of 148 Deer Hill Avenue and, therefore, was the party to whom the defendant’s duty of due care was owed. If Tamarack was to report the damage it had caused to the sewer pipe, Sachner would have been a natural recipient of that report. If, in fact, Tamarack fraudulently concealed its acts, it was first from the knowledge of Sachner, and then from the plaintiffs only as they assumed the legal rights of Sachner by purchasing the property in 1965. The plaintiffs offered no evidence regarding the state of knowledge of Sachner, their predecessor in interest, and this omission is fatal to their claim of fraudulent concealment.

It was not the defendant’s duty to prove that Sachner was notified of the negligent act. That burden of proof clearly belongs to the party pleading fraudulent concealment and the proof must be clear, precise, and unequivocal. Bound Brook Assn. v. Norwalk, supra, 666. We conclude that this evidentiary gap cannot be plugged by the plaintiffs’ claim that it easily can be inferred that, if he had been aware of the break, Sachner would have demanded correction. This inference does not satisfy the weighty standard required by law; rather, it is the product of speculation.

In view of the evidence and pleadings in the record, we conclude that the factual findings of the trial court and its conclusion that the plaintiffs met their burden of proof is clearly erroneous. Practice Book § 4061.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       The defendant has not raised as an issue the trial court’s finding of an agency relationship.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to . . . real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.”

       For purposes of this discussion, we operate under the presumption that the facts as found by the trial court were sufficient to prove that the sewer pipe was damaged by Tamarack in an act of negligence. As we do not reach the defendant’s claim that the evidence was not sufficient so to prove, our presumption in no way acts as a legal conclusion of the issue.

       The defendant also would have been a natural recipient of that information, but the evidence at trial was inconclusive as to whether the defendant maintained records of such reports for such a period of time as has passed here.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Debra J. Sardilli v. Don N. Sardilli
    (6075)
    Daly, O’Connell and Stoughton, Js.

      Argued June 16
    decision released September 6, 1988

      Timothy Sheehan, for the appellant (defendant).

      John M. Andreini, for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals from the trial court’s denial of his motions for modification of child support and for contempt, filed approximately one year after the dissolution of the parties’ marriage. The defendant claims that the trial court erred (1) in denying the motion for modification, as a material change of circumstances had arisen since the matter was previously considered, and (2) in denying the motion for contempt, as the plaintiff’s use of the property in question violated the use intended by the parties. We find error in part.

The following facts are relevant to the resolution of this appeal. The marriage of the parties was dissolved on April 18, 1986. The judgment rendered in that dissolution incorporated the parties’ separation agreement, which provided, inter alia, that the defendant would purchase and maintain a condominium in Plain-ville for the plaintiffs use. The condominium facilitated the plaintiffs participation in the joint custody of the parties’ two minor children by providing her with a residence in proximity to the marital home. The down payment on the condominium was treated as part of the property settlement, and the monthly mortgage and associated payments were attributed to the defendant’s child support responsibilities. Pursuant to the dissolution judgment, the children’s primary residence was with the plaintiff.

On June 11, 1986, the trial court, Covello, J., granted the defendant’s motion to modify custody, which implemented a temporary custody and visitation schedule for the summer of 1986, ordered a child custody study, and awarded the defendant primary custody of the children. On August 19, 1986, the trial court, Barry, J., granted the defendant’s motion to modify child support, reordered the child custody study and temporarily suspended the $200 monthly payments made to the plaintiff for support of the minor children. The trial court also stated in that order that the plaintiff would maintain exclusive possession of the condominium. The defendant’s motions were reheard and granted on October 29, 1986, by the trial court, Kaplan, J.

On March 23, 1987, the defendant filed the motions at issue in the present appeal requesting that the plaintiff pay the defendant child support and the condominium’s mortgage, taxes and fees. The defendant further requested that the court find the plaintiff in contempt and order her to vacate the condominium. The trial court denied both motions without an evidentiary hearing and the defendant appealed.

The defendant first claims that the trial court erred in denying his motion for modification. General Statutes § 46b-86 (a) provides in pertinent part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of . . . [child] support . . . 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.” See Vonaa v. Vonaa, 15 Conn. App. 745, 747, 546 A.2d 923 (1988). The defendant claims that the trial court, Covello, J., erred in requiring that the defendant show a substantial change in the circumstances of either party arising since October 29, 1986, the date of the hearing on the last motion argued before the trial court. The defendant contends that because the issue of the condominium was purposefully withheld from consideration in that hearing, the period in which a change of circumstances could have arisen commenced on April 18, 1986, the date the dissolution decree was rendered. We agree.

A review of the trial court transcript indicates that, at the October 29, 1986 hearing, the parties expressly stated that only the $200 support payments were at issue. The transcript of that hearing indicates that the trial court also expressly inquired as to the extent of the modification sought, and the defendant’s attorney stated that only the $200 child support payments, and not the condominium, were at issue.

It is beyond dispute that “[t]he paramount role of a court when considering domestic relations cases is one of a ‘court of equity.’ ” LaBow v. LaBow, 13 Conn. App. 330, 351, 537 A.2d 157 (1988); Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975). Because the transcript indicates that the parties did not intend to address all aspects of child support at the October 29, 1986 hearing, it would be inequitable to now provide that issues excluded at that time are precluded from further consideration. This is in essence what resulted in the trial court’s determination that the issues relating to the condominium were addressed on October 29, 1986. We recognize that the body of law which provides that when a motion for modification has been granted, any subsequent modification can be based only upon a change in circumstances arising from the date of the earlier modification. See, e.g., Benson v. Benson, 187 Conn. 380, 383 n.3, 446 A.2d 796 (1982); Theonnes v. Theonnes, 181 Conn. 111, 114, 434 A.2d 343 (1980). As this aspect of the child support was not previously addressed by the trial court, however, this principle does not apply in the present case. The trial court was faced, in essence, with a bifurcated request for modification, in which only one of two issues raised by the request, the matter of support payments, was previously addressed. In this scenario, it is of no consequence that the trial court may have addressed the issue of support payments on October 29, 1986, because the matter of the condominium had not been addressed since the judgment was rendered. As a result, the trial court improperly limited the date from which the defendant could demonstrate a substantial change in circumstances which warranted the modification. We therefore conclude that the trial court erred and the case must be remanded for further proceedings to allow the defendant to present evidence of a substantial change of circumstances, if any, arising prior to October 29, 1986, but subsequent to the entry of the original dissolution judgment.

The defendant next claims that the trial court erred in failing to find the plaintiff in contempt of court for continuing to reside in the condominium after the defendant obtained primary custody of the parties’ minor children. We disagree.

The dissolution agreement signed by the parties provided that the plaintiff would enjoy exclusive possession of the condominium until any of four contingencies arose: (1) remarriage, (2) cohabitation with an unrelated male, (3) emancipation or the eighteenth birthday of the youngest residing child not attending high school full time, or (4) July 1, 1994, whichever occurred first. The trial court, Covello, J., denied the motion, concluding that none of the four contingencies had occurred. The court further found that the defendant’s custody of the minor children did not constitute “emancipation” under the decree.

“In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party’s failure to comply with a court order.” Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988). We dispose of this issue by noting that in the present case, the plaintiff’s actions in no manner failed to comply with an order of the court. The defendant attempted, at the trial level, to find the plaintiff in contempt for continuing to reside in the condominium after primary custody of the children was obtained by the defendant. As stated above, the trial court found that none of the four contingencies which would require the plaintiff to vacate the condominium had been satisfied. The plaintiff merely continued to follow the mandate of the dissolution decree, and absent a change in the judgment by the court, the plaintiff was fully justified in doing so. The defendant’s claim regarding the trial court’s refusal to find the plaintiff in contempt is meritless.

There is error in part, the order denying the defendant’s motion for modification is set aside and the matter is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The condominium is located one block away from the marital home.

       As noted in the text, the record indicates that the earlier decisions on these motions were apparently intended to provide only temporary relief.

       We note in passing that the statute was amended by Public Acts 1987, No. 87-104, effective October 1, 1987. That amendment, however, does not affect this appeal.

       The parties participated in the following colloquy with the court:
      “The Court: So, the — now what about the support motion? That’s just—
      “[Defense Counsel]: Should be granted, Your Honor. There should be no more child support.
      “The Court: Okay.
      “[Plaintiff’s Counsel]: I think that requires clarification, Your Honor. It would be granted, as I understand it, with respect to that portion of the judgment which reads that the husband shall pay to the wife the sum of $100 per month child support for each of the two children. But there are additional provisions in the judgment which touch upon child support. It’s my understanding are not the subject today, of our agreement. ” (Emphasis added.)

       The following exchange occurred:
      “[Plaintiff’s Counsel]: There's a condominium, Your Honor, which the plaintiff is presently occupying and the defendant is paying the mortgage, the taxes and the condo association fee.
      “The Court: And he’ll continue to pay that?
      “[Plaintiffs Counsel]: That was my understanding.
      “[Defendant’s Counsel]: No. No, Your Honor, that is not part of the agreement. That is not a correct characterization of the judgment. The condominium was part of the property settlement and it was not before this Court. What we are asking the court to modify is the child support payments of $200 a month—
      “Mr. Sardilli: One hundred per month per child.
      “[Defendant’s Counsel]: $100 per month per child.
      “The Court: That’s all you’re asking to be suspended, is that correct?
      [An unresponsive discussion of the status of the judgment file in the case ensued and is omitted.]
      “[Defendant’s Counsel]: And the condominium, the provisions regarding the condominium, Your Honor, are under a distribution of the parties’ jointly owned assets.
      “The Court: Mr. Sheehan, that’s fine. I just want to know two things—
      “[Defendant’s Counsel]: We’re asking you—
      “The Court: $100 per child per month to be suspended as of today?
      “[Defendant’s Counsel]: That is what we’re asking. Yes, Your Honor.
      “The Court: And that’s all you’re asking for by way of suspension?
      “[Defendant’s Counsel]: Yes, Your Honor.
      “The Court: All other orders of the judgment file will remain in full force and effect?
      “[Defendant’s Counsel]: That’s correct.
      “The Court: You’re asking that the custody be changed and the visitation as outlined in that agreement?
      “[Defendant’s Counsel]: That’s correct, Your Honor.
      “The Court: Okay. And that’s all you’re asking for today?
      “[Defendant’s Counsel]: Yes, Your Honor.”
      We note further that the plaintiff’s trial attorney did not object to the defendant’s counsel’s characterization of the matters at issue at the October 29, 1987 hearing as pertaining solely to custody, visitation and support.

       Although the August 19, 1986 order of the trial court, Barry, J., granting interim relief, made passing reference to the plaintiffs “possession” of the condominium, we were not provided with a transcript of the trial court’s hearing on that matter and without such a transcript, will not assume that the issue of the condominium was addressed at that date. It is the responsibility of the party appealing the issue in question to provide an adequate record. See Practice Book § 4061; Commissioner v. Youth Challenge of Greater Hartford, Inc., 206 Conn. 316, 322, 537 A.2d 480 (1988).


text:
    Stephen Repasi v. Jenkins Brothers et al.
    (6153)
    Daly, O’Connell and Stoughton, Js.
    Argued June 14
    decision released September 6, 1988

      Edward, F. Kunin, for the appellant (plaintiff).

      Kevin J. Maher, with whom, on the brief, was Colette Mauborgne, for the appellees (defendants).
   O’Connell, J.

The plaintiff appeals from a decision of the workers’ compensation review division (CRD) which considered (1) issues relating to the amount of the plaintiff’s compensation award and the scope of the workers’ compensation commissioner’s consideration, and (2) issues relating to the constitutionality of the workers’ compensation statutes, General Statutes § 31-275 et seq. The CRD remanded the first category of issues to the commissioner for more information, and declined to consider the second category, concluding that it lacked jurisdiction to decide constitutional questions. The plaintiff appeals only the constitutional issues to this court.

Before we can consider the merits of this appeal, we must first decide the threshold question of whether the plaintiff has appealed from a final judgment. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985). The final judgment determination is fundamental to appellate jurisdiction and must be decided by this court even though not raised by the parties. State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983).

In Timothy v. Upjohn Co., 3 Conn. App. 162, 485 A.2d 1349 (1985), this court held that a remand to the compensation commissioner by the CRD did not constitute an appealable final judgment. See also Bartelstone v. Blue Cross & Blue Shield of Connecticut, Inc., 3 Conn. App. 627, 491 A.2d 417, cert. denied, 196 Conn. 808, 494 A.2d 905 (1985). The present case, however, goes one step further than Timothy. The plaintiff does not attempt to appeal the issues that were remanded to the commissioner, but rather attempts to appeal at this time only the issues not remanded. The plaintiff, in essence, seeks a piecemeal appeal. This is clearly improper. “The finality requirement underlying our appellate review represents a clear and firm policy against piecemeal appeals. State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761 (1938); Maltbie, Conn. App. Proc. § 10. ‘Appeal gives the upper court a power of review, not one of intervention.’ Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949).” State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. State, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).

The well established test for determination of finality is set forth in State v. Curcio, supra, 31: “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” This test has been specifically applied to appeals from administrative agencies. Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 192-93, 544 A.2d 604 (1988); Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 409-10, 521 A.2d 566 (1987).

Examination of the issues in the present appeal discloses that the action of the CRD did not terminate a separate and distinct proceeding, nor did it conclude the rights of the parties so that further proceedings could not affect them. State v. Curcio, supra. We conclude therefore that the decision of the compensation review division was not a final judgment.

“ ‘[T]his court has a duty to reject, on its own motion, any appeal in which it lacks jurisdiction.’ ” Bartelstone v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 628, quoting State v. Phillips, 166 Conn. 642, 644, 353 A.2d 706 (1974). Lack of a final judgment deprives this court of appellate jurisdiction and the appeal must be dismissed sua sponte. See Timothy v. Upjohn Co., supra; Bartelstone v. Blue Cross & Blue Shield of Connecticut, Inc., supra.

The appeal is dismissed.

In this opinion the other judges concurred.


author: Stoughton, J.

text:
    Louise Bailey Kronholm v. Conrad John Kronholm
    (5823)
    (6167)
    Stoughton, Norcott and Foti, Js.
    Argued May 19
    decision released September 13, 1988

      Bruce Louden, with whom were Carol S. Widing and Gerald A. Roisman, for the appellant-appellee (plaintiff).

      Richard P. Weinstein, with whom, on the brief, was Miriam L. Lifshitz, for the appellee-appellant (defendant).
   Stoughton, J.

Both parties have appealed from post-judgment orders arising out of the financial orders made as a part of the judgment dissolving their marriage. We find error in part.

The issues presented in the plaintiffs appeal are whether the trial court erred (1) in interpreting the parties’ separation agreement as providing that the $190,000 lump sum alimony payment should go into a trust for the benefit of the parties’ children, rather than to the plaintiff outright, and (2) in finding that the terms of that agreement were not reasonably open to more than one interpretation, thus refusing to allow the presentation of extrinsic evidence and sustaining the defendant’s objection to an evidentiary hearing. The issues presented in the defendant’s appeal are whether the trial court erred (1) in denying the defendant’s motion for a stay of proceedings and “application for first order of notice” to the parties’ children, where the defendant asserts that the children are indispensable parties to the litigation, and (2) in allowing the plaintiff ninety days after receipt of the lump sum alimony payment to establish a trust and in allowing the plaintiff earned income from the trust, where the defendant argues that such rulings were contrary to the parties’ agreement. With respect to this last claim, the plaintiff has cross appealed and argues that the trial court erred in failing to award the plaintiff interest that had accrued since August 30,1985, the due date under the terms of the parties’ agreement.

The following facts are relevant to this appeal. On August 30, 1977, the marriage of the parties was dissolved. By a lengthy stipulation which was incorporated into the judgment, they agreed on custody and support for the four minor children of the marriage. Paragraph 3 begins: “As lump sum alimony, and in lieu of all other claims of alimony, the husband shall pay . . . .’’Sub-paragraph (a) provided for payment of $25,000 within thirty days; subparagraph (b) provided for payment of $50,000 four years after the entry of the decree; and subparagraph (c) provided for payment of $190,000 eight years after the entry of the decree. Subparagraph 3 (l) is as follows: “In the event the wife shall die prior to the completion of the lump sum payments called for in paragraphs 3 (b) and 3 (c), the unpaid balance of said payments shall be made by the husband to the surviving children of the parties, or in the event any of said children shall be then deceased leaving issue such child surviving, such issue shall take in equal shares, per stirpes, the share which the child who shall be then dead would have taken if said child had survived. The estate of the wife shall have no claim for any of said unpaid amounts. Wife agrees that she shall establish a trust for the benefit of the children of the parties, or the issue of any deceased children as above set forth, and that the amounts received by her on account of the obligations of the husband under 3 (b) and 3 (c) above shall be forthwith deposited with the trustee and added to and made a part of the principal of said trust fund.”

The record discloses that on October 2, 1981, four years after entry of the decree, the judgment was modified according to a trust agreement presented on that date. The trust was funded by a promissory note executed by the defendant on August 30, 1981, in the amount of $50,000 with interest at 15 percent per year to be paid in forty-eight equal installments. The judgment was opened and modified on January 7, 1982, by a stipulation dated December 28, 1981, which was accepted by the court. By this stipulation, the parties agreed to modify the method of payment of the $50,000 due “as lump sum alimony” by August 30, 1981, as follows: $10,000 on December 30, 1981; $15,000 by way of additional periodic alimony in forty-eight monthly installments; and $25,000 by way of a portion of the husband’s interest in land in Florida equal in value to $25,000 which was to be placed in trust by the husband for the benefit of the parties’ children. As a part of the stipulation, the parties agreed that “[t]he trust referred to in Paragraph 3 (l) of the Judgment entered on August 30, 1977, is hereby modified only insofar as the Fifty Thousand Dollars ($50,000.00) lump sum payment called for in paragraph 3 (b), and in its place Conrad John Kronholm shall establish a trust for the parties’ children which trust shall contain a portion of Conrad John Kronholm’s interest in the Florida land equal in value to Twenty-five Thousand Dollars ($25,000.00).”

The plaintiff caused to be served upon the defendant a citation for contempt in which she alleged that the defendant had not paid to her the sum of $190,000 which she alleged was due on or before August 30, 1985. Subsequently, the trial court rendered its evidentiary ruling on the plaintiffs citation for contempt in which it analyzed paragraph 3 (l) of the original stipulation. The court concluded that a reading of the entire agreement did not disclose any ambiguity or language reasonably subject to different interpretations. It pointed to the explicit language of paragraph 3 (l) that the “[w]ife agrees that she shall establish a trust . . . and that the amounts received by her . . . under 3 (b) and 3 (c) above shall be forthwith deposited with the trustee . . . .” It concluded that the language of paragraph 3 (l) was devoid of ambiguity and that the payments under 3 (b) and 3 (c) were to be made to the plaintiff and forthwith placed in trust for the benefit of the children. It sustained an objection by the defendant to a request for an evidentiary hearing and requested counsel for the parties to confer with the clerk regarding scheduling of the contempt motion.

Thereafter, the plaintiff filed a motion for compliance or, in the alternative, for clarification through an evidentiary hearing. She asserted that pursuant to paragraph 3 of the stipulation, the defendant was ordered to make a lump sum payment of $190,000 to the plaintiff by August 30, 1985, and that the last sentence of subparagraph 3 (l) provided that the $190,000 was to be deposited in a trust. She asserted further that numerous other provisions in the judgment make the meaning and intent of the $190,000 lump sum provision potentially ambiguous. She therefore sought an order either that she was entitled to the $190,000 lump sum amount free of any trust or that an evidentiary hearing be held for the purpose of clarifying the provision for payment of the $190,000 and its relationship to the trust provided for in 3 (l). This motion was denied.

On January 29,1987, the trial court issued its order on the citation for contempt. It found that the stipulation of the parties had been incorporated by reference into the judgment of dissolution; that under section 3 (c) the defendant was ordered to pay to the plaintiff the sum of $190,000, which payment became due on August 30,1985, and had not been paid; that under section 3 (l) the plaintiff agreed to the establishment of a trust for the benefit of the children; and that the amount received by her under section 3 (c) would be deposited with the trustee and added to the trust fund. It further found that the defendant had not wilfully failed to comply with the 3 (c) provision of the agreement as incorporated in the judgment in view of the legal issues raised relating to the terms of the agreement. The court concluded that the defendant was not in contempt and made certain orders which both parties challenge on appeal.

The defendant moved the trial court to revise or clarify its order by requiring the plaintiff to establish the inter vivos trust prior to payment of the $190,000, and to require the monies to be paid directly to the trust. He also moved for a stay of the time limitations set forth in the order to provide formal notice to the children as the real parties in interest. The plaintiff filed a motion to reconsider, claiming that statutory interest on the $190,000 should be awarded to whomever was found to be entitled to it. Both motions were denied.

We first address the plaintiffs claim that she was entitled either to the $190,000 payment of lump sum alimony free of trust when it was due, or in the alternative to an evidentiary hearing to clarify ambiguities in the agreement between the parties. We agree with the plaintiff insofar as there are ambiguities which must be resolved in an evidentiary hearing prior to determining whether she receives the $190,000 payment of lump sum alimony free of trust.

The stipulation, which was incorporated into the judgment, was a contract between the parties. Caracansi v. Caracansi, 4 Conn. App. 645, 650, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985). Where rights, duties and obligations are fully stated in a written contract between the parties, the court is obligated to determine the intention of the parties from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used. On Site Energy Corporation v. Sperry Rand Corporation, 5 Conn. App. 326, 330, 498 A.2d 121 (1985). When the intention conveyed is clear and unambiguous, there is no room for construction. Southern New England Contracting Co. v. Norwich Roman Catholic Diocesan Corporation, 175 Conn. 197, 199, 397 A.2d 108 (1978). In determining the intent of the parties, the contract is to be taken as a whole and all of its relevant provisions considered in connection with each other; Cocco v. Cocco, 166 Conn. 37, 41, 347 A.2d 72 (1974); and a judgment based upon the language of an agreement must be read as a whole. Id. While it is fundamental that the terms of a written contract which is intended by the parties to set forth their entire agreement may not be varied by parol evidence, it is equally fundamental that when the words used in the contract are uncertain or ambiguous, parol evidence of conversations between the parties or other circumstances antedating the contract may be used as an aid in the determination of the intent of the parties which was expressed by the written words. Maier v. Arsenault, 140 Conn. 364, 368, 100 A.2d 403 (1953). Extrinsic evidence is admissible to assist the court in resolving the question of intent where the terms of a contract are either latently or patently ambiguous. Cody v. Remington Electric Shavers, 179 Conn. 494, 500, 427 A.2d 810 (1980).

Reading the stipulation, which was incorporated into the judgment as a whole, we find that the meaning of the words used in paragraph 3 (l) is unclear and ambiguous. The stipulation was divided into numbered paragraphs each of which dealt with matters of potential dispute between the parties. The first paragraph dealt with custody and visitation, the second with child support and the third with alimony. The third paragraph, which was divided into twelve lettered subparagraphs, begins with the words: “As lump sum alimony, and in lieu of all other claims of alimony, the husband shall pay to the wife . . . . ” Paragraph 3 (a), 3 (b), 3 (c) and 3 (d) provided for the amounts and the manner of various payments to be made to the plaintiff. The first sentence of paragraph 3 (1) provides for payment of the amounts called for in paragraphs 3 (b) and 3 (c) to the children or their issue in the event that the plaintiff should have died before the payments had been made. The second sentence provides that the estate of the plaintiff should have no claim for unpaid amounts. The third sentence provides for a trust for the benefit of the children or their issue to be established by the plaintiff into which the payments “received by her” under paragraphs 3 (b) and 3 (c) “shall be forthwith deposited.”

Standing alone, the meaning of the third sentence of paragraph 3 (l) seems clearly to require that the plaintiff establish a trust into which is to be deposited the payments to her made under paragraphs 3 (b) and 3 (c). The meaning is rendered unclear because, at the outset, paragraph 3 describes “lump sum alimony,” and because paragraph 3 (l) seems to describe what is to happen to the payments made under paragraphs 3 (b) and 3 (c) “[i]n the event the wife shall die prior to the completion of the lump sum payments called for . . . .” Accordingly, the case must be remanded to the trial court so that an evidentiary hearing may be held and the intention of the parties determined.

The record is sufficient to review other claims made by the parties which will be relevant to any subsequent proceedings in the trial court. The children have now reached majority. We find no error in the denial by the trial court of the defendant’s motion for a stay of proceedings and application for first order of notice to the children. The application for first order of notice was made after the proceedings had occurred. We may safely assume that the children are aware of the proceedings and that they will apply to be made parties if they wish to do so. See General Statutes § 52-107. There are practical reasons why they may not wish to be forced to take sides in this dispute between their parents.

The plaintiff had requested that the defendant be ordered to pay interest on the $190,000 from August 30, 1985, the date upon which the sum became due. The trial court found that the defendant had not wilfully failed to comply in view of the legal issues raised relating to the terms of the agreement. It ordered that the defendant pay statutory interest from the date of its order, which was January 29, 1987. There is no statutory prohibition against awarding interest on a judgment in domestic relations cases. LaBow v. LaBow, 13 Conn. App. 330, 353, 537 A.2d 157 (1988). The defendant has represented his readiness to pay the money to its proper recipient. There has never been any question about whether the money was due on August 30, 1985, but only as to whom or to what entity it should be paid. Under those circumstances, the court need not inquire into the wrongfulness of the detention of the money. When it has been determined where the money is to go, it should be paid with statutory interest from August 30, 1985. This will not deprive the defendant of any interest to which he was entitled and it will give the intended recipient the full benefit of that to which she or it was entitled.

There is error in part on the plaintiff’s appeal and cross appeal, the judgment denying the plaintiff’s motion for an evidentiary hearing and the order directing the plaintiff to hold the sums received by her from the defendant in trust are set aside and the matter is remanded for further proceedings consistent with this opinion. There is no error on the defendant’s appeal.

In this opinion the other judges concurred.

       The trial court’s complete orders were as follows: “(a) that the defendant pay to the plaintiff One Hundred Ninety Thousand ($190,000) Dollars on or before May 1, 1987; the said sum shall be held in trust by the plaintiff for the benefit of the parties’ children, or the issue of any deceased children, and not to be available to creditors of the plaintiff; that the plaintiff shall be entitled to the income earned on said principal sum; all of the aforesaid, pending compliance with paragraph (b) hereof;
      “(b) that within ninety (90) days of receipt of said payment, plaintiff shall deposit said principal sum of One Hundred Ninety Thousand ($190,000) Dollars with the trustee(s) of an inter vivos trust established by plaintiff for the benefit of the children of the parties and the issue of any child (or children) now deceased, or who in the future may become deceased;
      “(c) that within sixty (60) days of receipt of said payment, the plaintiff shall provide the defendant with a copy of the trust instrument establishing said inter vivos trust for the benefit of the parties’ children and any issue of present, or future, deceased children;
      “(d) that said trust instrument shall specify any terms regarding the payment of income from said principal sum and/or any terms regarding invasion of principal; and
      “(e) that defendant shall pay to plaintiff statutory interest on said principal sum of $190,000 from the date of the filing of this ORDER to the date of payment to the plaintiff.”


author: Foti, J.

text:
    Elizabeth Gleason v. William C. Gleason II
    (5877)
    Stoughton, Norcott and Foti, Js.
    Argued June 1
    decision released September 13, 1988

      Richard L. Winter, with whom, on the brief, was Elizabeth Gleason, for the appellant (plaintiff).

      William C. Gleason II, pro se, the appellee (defendant).
   Foti, J.

The plaintiff appeals from the granting by the trial court of the defendant’s motion to modify that portion of the judgment of dissolution relating to the award of alimony and reimbursements for rent. The plaintiff raises eight claims of error. Seven of these claims challenge the court’s judgment modifying the original decree and one asserts that the court erred in failing to find the defendant in contempt for his failure to make alimony and rental payments pursuant to the original decree. Our conclusion that the court erred in granting the defendant’s motion for modification is dispositive of this appeal.

The parties’ marriage was dissolved in 1986. That portion of the orders issued pursuant to the dissolution that are relevant to this appeal provides: (1) the defendant "shall pay periodic alimony to the plaintiff in the amount of $125 per week” during the defendant’s lifetime or until the plaintiff’s death or remarriage, and that these payments shall be reduced to one dollar at the time the family residence is sold and the proceeds are divided; (2) "the plaintiff shall have the right to remain in the family residence until April 1, 1986,” at which time the plaintiff must vacate the home and the defendant “shall move back into the family home . . . for the purpose of fixing it up and repairing it for resale. This work shall be accomplished no later than May 15, 1986, at which time the house will be placed on the market for sale”; and (3) during the intervening time, the plaintiff was permitted to elect to reside in the defendant’s apartment or be reimbursed for rent up to a maximum of $950 per month. At the time the court entered these orders, the defendant had been unemployed for approximately two years.

On January 8, 1987, the plaintiff filed a motion for contempt on the ground that the defendant had not reimbursed her for the January rent and that the defendant refused to pay such sums as they became due. The defendant filed a motion for modification of the original orders on January 15, 1987. The plaintiff subsequently filed an additional motion for contempt because the defendant was three weeks in arrears in alimony payments.

After a hearing on these various motions, the court, without written decision, granted the defendant’s motion for modification, concluding that he had sustained his burden of demonstrating an uncontemplated change in circumstances. The plaintiff claims that the defendant did not establish a change in circumstances which was not anticipated at the time of the issuance of the original orders. We agree.

It is undisputed that at the time of the dissolution the defendant had been unemployed for two years and that he did not obtain employment until nine months after the dissolution. Nevertheless, the court concluded that the defendant's circumstances had changed. On the basis of this conclusion, the court ordered the periodic alimony reduced from $125 to $50 per week, the elimination of all reimbursements for rent and reduced an arrearage from $2700 to $2475.

“[A] party seeking modification of financial orders incident to a marital dissolution judgment must clearly and definitely establish an uncontemplated substantial change of the circumstances of either party which demonstrates that continuation of the prior order would be unfair and improper. Wingerd v. Wingerd, 3 Conn. App. 261, 262, 487 A.2d 212 (1985).” Fabiano v. Fabiano, 10 Conn. App. 466, 469, 523 A.2d 937 (1987). Such an uncontemplated substantial change must have occurred after the date of the judgment. Cersosimo v. Cersosimo, 188 Conn. 385, 405, 449 A.2d 1026 (1982). We also recognize that “ ‘[g]reat weight is due the action of the trial court, which will not be disturbed unless the court has abused its discretion or its finding has no reasonable basis in the facts.’ ” O’Bymachow v. O’Bymachow, 12 Conn. App. 113, 116, 529 A.2d 747, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987); Fabiano v. Fabiano, supra, 469.

Although the court did not file a memorandum of decision granting the defendant’s motion for modification nor has a full transcript of the hearing been filed, a partial transcript suffices to establish that the court granted the defendant’s motion for modification on the basis of his inability to pay. A defendant’s inability to pay “does not automatically entitle a party to a decrease of an alimony order.” Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977). It is clear from the record that the court carefully considered the defendant’s entire economic situation and his employment position at the time of the dissolution. At that time, the court stated that a review would be conducted after the defendant “has obtained some employment of a regular nature or an income of a regular nature.” At the modification hearing, the defendant admitted that he knew at the time of the dissolution that he would need money in the near future. He also conceded that he had not consulted a free lifetime outplacement service provided by a former employer, and that when he did work he limited his hours by choice.

We have recently reaffirmed our conclusion that the inability to pay alimony must be excusable and not brought about by the defendant’s own fault before a motion for modification may be granted. Wanatowicz v. Wanatowicz, 12 Conn. App. 616, 620, 533 A.2d 239 (1987). In this case, the facts provide no reasonable basis for the court’s conclusion that an uncontemplated substantial change occurred after the original orders were issued. Nor is there any basis for concluding that the defendant’s employment situation was excusable or beyond his control. The court, therefore, abused its discretion in granting the defendant’s motion for modification.

There is error, the judgment is set aside and the case is remanded with direction to deny the defendant’s motion for modification.

In this opinion the other judges concurred.

       At the time the trial court ruled on the defendant’s motion, the family residence had not been sold.

       We note that General Statutes § 46b-86 (a), which provides for modification of alimony or support “upon a showing of a substantial change in the circumstances of either party,” has been repealed and substituted by Public Acts 1987, No, 87-104, which provides in relevant part that after the dissolution of a marriage, “modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court.” (Emphasis added.) This act was not effective until October 1, 1987, and, therefore, does not affect this case. See LaBow v. LaBow, 13 Conn. App. 330, 344-45 n.5, 537 A.2d 157 (1988).


author: Daly, J.

text:
    Donald Latham v. Jim and Joe General Contractors et al.
    (6048)
    Dupont, C. J., Daly and Nokcott, Js.
    Argued April 12
    decision released September 13, 1988

      Richard S. Bartlett, for the appellant (defendant).

      Lewis C. Maruzo, with whom, on the brief, was William N. Sebastian, for the appellee (plaintiff).
   Daly, J.

This is an appeal from a decision of the workers’ compensation review division denying the claim for reimbursement filed by the defendant Middlesex Insurance Company (Middlesex), the insurance carrier of the defendant employer. The workers’ compensation commissioner for the second district had dismissed the claim on the basis of lack of jurisdiction, whereas the compensation review division determined there was jurisdiction and denied the claim on the merits.

Middlesex has appealed claiming that the review division erred (1) in considering the matter on the merits when the commissioner did not reach the merits of Middlesex’s claim, and (2) in ruling that Middlesex was not entitled to a credit for the money that the plaintiff had received from the third party tortfeasor’s liability carrier. Since we find error in the first issue, we do not examine the remaining issue.

The following facts are not in dispute. On December 24, 1980, the plaintiff, an employee of Jim and Joe General Contractors, was involved in a motor vehicle accident. The accident, which was caused by the negligence of a third party, resulted in knee injuries to the plaintiff. Middlesex agreed to pay the plaintiff’s workers’ compensation benefits.

On or about October 27, 1981, Middlesex became aware that the plaintiff’s attorney was in contact with the insurance carrier for the third party tortfeasor. Correspondence was exchanged between the plaintiff’s counsel and Middlesex which indicated a willingness to reimburse Middlesex for workers’ compensation benefits from any settlement with the third party tortfeasor’s liability carrier. The plaintiff subsequently received $25,000 from the third party tortfeasor without executing any formal release.

Middlesex sought relief from the workers’ compensation commissioner. The commissioner dismissed the claim on the theory that General Statutes § 31-293 applied to the facts of the case and that he, therefore, lacked jurisdiction to grant the relief requested because no civil action was instituted against the third party tortfeasor and there was no compromise or settlement approved by the commissioner. Pursuant to General Statutes § 31-301, Middlesex appealed to the compensation review division which determined that the commissioner had the requisite jurisdiction. The compensation review division then addressed the merits of Middlesex’s claim, determining that Middlesex was not entitled to a credit for. money the plaintiff had received, and, therefore, that the relief sought should not be granted. This appeal ensued.

Although the compensation review division was correct in determining that the commissioner possessed the requisite jurisdiction to entertain the claim, it was incorrect in deciding the case on the merits. The appellate powers of the compensation review division are defined by § 31-301-8 of the Regulations of Connecticut State Agencies issued pursuant to § 31-301, which regulation provides in pertinent part: “[F]or the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusion reached. ... Its power in the corrections of the finding of the commissioner is analogous to, and its method of correcting the finding similar to the power and method of the Supreme Court in correcting the findings of the trial court.”

This makes it abundantly clear that review by the compensation review division is limited to (1) whether the finding should be corrected, and (2) whether there was evidence to support in law the conclusion reached by the commissioner below. Moreover, the compensation review division must follow certain procedural guidelines consistent with any tribunal conducting an appellate compensation review. That is, the compensation review division must confine the scope of review to matters in the record and specifically assigned questions that were raised before the commissioner, and were ruled upon. See, e.g., New Haven v. Public Utilities Commission, 165 Conn. 687, 727, 345 A.2d 563 (1974); Krulikowski v. Polycast Corporation, 153 Conn. 661, 667-68, 220 A.2d 444 (1966).

In this case, the commissioner did not rule upon the merits of the case. The commissioner ruled that he “lacked the legal or equitable powers to enforce the remedies,” and that the appropriate remedy “would appear to be . . . available at law and equity before the Superior Court.” Since the commissioner ruled only-on the jurisdictional issue, the review division was limited to that issue and erred in ruling beyond it.

There is error, the finding and award are set aside and the case is remanded to the compensation review division with direction to remand the matter to the commissioner to proceed in a manner consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-293 provides in pertinent part: “liability of THIRD PERSONS TO EMPLOYER AND EMPLOYEE. LIMITATIONS ON LIABILITY OF architects and engineers, (a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the.payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee.”

       The workers’ compensation commissioner indicated that while there was an inequity to Middlesex’s detriment, he lacked the necessary administrative legal, and equitable powers to remedy it.

       We note that the plaintiff does not argue, by way of an alternate ground in support of the decision of the compensation review division, that the compensation review division improperly determined that the commissioner had jurisdiction over Middlesex’s claim. We are satisfied that the compensation review division properly determined that the commissioner had jurisdiction over the claim. General Statutes § 31-278 provides that the commissioner has “all powers necessary to enable him to perform the duties imposed upon him by the provisions of the chapter.” Furthermore, it is well settled that the commission possesses power similar to a court of equity. Gonirenki v. American Steel & Wire Co., 106 Conn. 1, 5, 137 A. 26 (1927).


author: Spallone, J.

text:
    State of Connecticut v. Robert Hardison
    (6196)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 9
    decision released September 13, 1988

      Judy Ann Stevens, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Broume, state’s attorney, and John Smriga, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of the sale of cocaine in violation of General Statutes § 21a-277 (a). We find no error.

Although the defendant has presented six claims of error for our review, four of the six are not reviewable. The two remaining claims are that the trial court erred (1) in instructing the jury that it could consider the special training and experience of police officers, and (2) in refusing to give the defendant’s requested instructions regarding identification testimony.

The jury could reasonably have found the following facts. William Chase, an undercover officer with the Bridgeport police department, made two controlled purchases of cocaine from the defendant in December, 1985. On both occasions, Chase used marked money and was equipped with a body transmitter which made a tape recording of the transactions. After the second controlled purchase, Chase viewed a photo array at police headquarters and identified a photograph of the defendant as the seller of the narcotics. The defendant was later arrested, charged with two counts of violating General Statutes § 21a-277 (a), and convicted of those charges by a jury.

The first of the defendant’s reviewable claims faults the trial court’s instructions to the jury regarding the credibility of witnesses. The relevant portion of the charge is as follows: “[Testimony [of police officers] is subject to the same test as all other witnesses and their status as police officers entitles their testimony to no special or unusual weight. Of course it is permissible for you to consider the special training and experience which a police officer receives when you are judging his ability to observe and remember and record events and occurrences while he is engaged in his duties.” The defendant claims that this instruction permitted the jury to give more weight to the testimony of police officers than to the defendant’s witnesses and, therefore, denied him a fair trial. We disagree.

By these statements, the trial court did not instruct the jury that a police officer is, per se, more credible than a lay person. In fact, the court’s initial admonition to the jury instructed them to give no special weight to the testimony of a police officer when determining his credibility. The statement that followed this admonition was in no way contradictory. The court’s instruction that, as to police officers, it was permissible for the jury to consider their special training and experience with regard to their ability to observe, remember and record events, is no more than an acknowledgement that every vocation inherently possesses its own unique qualities. Indeed, the United States Supreme Court, in discussing the challenge to an identification made by an undercover narcotics officer, remarked that “as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.” Manson v. Brathwaite, 432 U.S. 98, 115, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

“It is well established that individual jury instructions are not to be judged in artificial isolation, but must be viewed in the context of the overall charge. Cupp v. Naughten, 441 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987); State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985).” State v. Palmer, 206 Conn. 40, 46, 536 A.2d 936 (1988). Viewed in context, we cannot say that this one statement unfairly presented the case to the jury. The jury was not told that it must consider the officers’ training and experience; rather, it was instructed that such considerations were permissible. The court did not impermissibly interfere with the jury’s freedom to believe or disbelieve all, part, or none of the testimony elicited from any witness before it. We conclude that “under the circumstances of this case, the court’s charge was correct in law and fairly presented the case to the jury in such a way that injustice was not done to either party.” State v. Pollitt, 205 Conn. 61, 85, 530 A.2d 155 (1987), citing State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985).

The defendant’s remaining claim of error challenges the trial court’s failure to give the defendant’s proposed instructions regarding the identification of the defendant. As the defendant concedes, there is no constitutional right or other requirement that the court specifically instruct the jury on the fallibility of eyewitness identifications. United States v. Roundtree, 527 F.2d 16, 19 (8th Cir. 1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1133, 47 L. Ed. 2d 332 (1976). The defendant, however, contends that he was entitled to have the jury instructed on “the dangers inherent in eyewitness identification testimony,” and argues that an instruction based on United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), should have been given.

“Although such an instruction may be given in an appropriate case; see State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978); it is not reversible error for a trial court to refuse to give a Telfaire instruction where the conviction of the defendant did not turn upon the testimony of eyewitnesses who were uncertain, unclear or inconsistent. State v. Davis, 198 Conn. 680, 685, 504 A.2d 1372 (1986). Our review of the charge to the jury on this issue, when examined as a whole, indicates that it was clear, accurate, complete and comprehensive. See State v. Harrell, 199 Conn. 255, 268-71, 506 A.2d 1041 (1986); State v. Frazier, [7 Conn. App. 27, 37 n.3, 507 A.2d 509 (1986)].” State v. Elliott, 8 Conn. App. 566, 573, 513 A.2d 1285, cert. denied, 201 Conn. 813, 517 A.2d 630 (1986).

In this case, the trial court instructed the jury, inter alia: that the state bore the burden of proving identification beyond a reasonable doubt; that they must be satisfied beyond a reasonable doubt that the identification was accurate; that they should consider the witness’ capacity and opportunity to observe the offender, including the duration of the observation, the proximity of the offender, the lighting conditions and previous familiarity with the offender; that they must be satisfied that the identification was made from the witness’ own recollection; that they should consider the strength of the identification and the circumstances under which it was made; that they should consider the time span between the offense and the witness’ next opportunity to observe the defendant; and that they must consider the credibility of the eyewitness.

The court did not err in its refusal to give the requested Telfaire instruction because the “salient principles of the court’s charge adequately covered the dangers of misidentification.” State v. McKnight, 191 Conn. 564, 583, 469 A.2d 397 (1983). The trial court was not required to charge the jury in the identical language requested by the defendant, as long as its instructions were adapted to the issues involved in the case and were sufficient for the guidance of the jury. See State v. Harrell, supra, 269; State v. Frazier, supra, 37 n.3.

There is no error.

In this opinion the other judges concurred.

       The defendant’s first two claims of error, that the court erred (1) in admitting into evidence transcripts of recorded conversations between the defendant and an undercover police officer, and (2) in precluding evidence explaining the circumstances of the defendant’s prior arrest for possession of narcotics with intent to sell, are not reviewable due to the defendant’s failure to comply with Practice Book § 4065 (d) (3) for briefing claimed errors in evidentiary rulings. See, e.g., Terlizzi v. Linsley, 9 Conn. App. 434, 438, 519 A.2d 1210 (1987); Yale Literary Magazine v. Yale University, 4 Conn. App. 592, 595, 496 A.2d 201 (1985), aff’d, 202 Conn. 672, 522 A.2d 818 (1987).
      We will not review the defendant’s fourth claim of error, regarding the court’s instruction to the jury that an identification made after a lineup or through a photo array is generally more reliable than a one-on-one viewing, because this instruction was not objected to at trial; State v. Golding, 14 Conn. App. 272, 279, 541 A.2d 569 (1988); and the defendant does not claim review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). See State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986).
      Finally, the defendant’s sixth claim of error, that the court deprived him of his right to a fair trial by its erroneous evidentiary rulings, by its jury instructions and by its denial of his motion for a new trial, is not a separate issue at all, but rather represents a rehashing of issues one through five. To the extent reviewable, the myriad issues raised in the sixth claim are subsumed by the first five issues raised.

       These tape recordings, as well as transcripts of the conversations prepared by Chase, were admitted into evidence over the defendant’s objections. It is this evidence that the defendant sought to challenge in his first claim of error. See footnote 1, supra.

       Five of the state’s six witnesses were police officers. Through these witnesses, evidence was presented to the jury bearing on the length of service of these individuals and their training and experience, particularly with regard to their activities as undercover officers specializing in narcotic operations.

       Under United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), a jury-should be instructed to consider the following factors when evaluating eyewitness identifications: the adequacy of the witness’ opportunity and capacity to observe the offender; the length of time available for the witness to observe the offender; the proximity of the witness to the offender; whether the witness had seen or known this person in the past; whether the identification was a product of the witness’ own recollection; and the credibility of the witness. Id., 558-59; see State v. Davis, 198 Conn. 680, 685, 504 A.2d 1372 (1986).


text:
    State of Connecticut v. Teddy E. Ruth
    (6285)
    Daly, Stoughton and Foti, Js.
    Argued May 17
    decision released September 13, 1988

      Katherine C. Callahan, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda N. Knight, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of possession with intent to sell a narcotic substance (cocaine) and possession with intent to sell a narcotic substance (heroin), both in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court erred (1) in determining that a conviction on both counts did not violate the prohibition against double jeopardy, (2) in admitting currency into evidence without the establishment of a proper chain of custody, and (3) in finding sufficient evidence as to the defendant’s identity and his possession with intent to sell. We find error in part.

The jury could reasonably have found the following facts. On January 3,1987, at approximately 5:30 p.m., several members of the Bridgeport police department tactical squad converged at the intersection of Hallett Street and Martin Luther King Drive located in the Father Panik Village housing project. This intersection is known by the Bridgeport police to be a drug trafficking area. It is the duty of the tactical squad to enforce the narcotics laws of the state. Sergeant Joseph Convertito was in charge of the squad, and he was accompanied in his police cruiser by Sergeant Leonard Samatulski. Three or four other cruisers also participated in this operation. Officers Richard Gearing and James Viadera were on regular patrol duty assignment in Father Panik Village and joined the tactical squad. The cruisers approached the intersection where twenty-five to thirty people had gathered, despite cold and icy conditions. When the tactical squad cars pulled up to building 25, located on the corner of Martin Luther King Drive and Hallett Street, the crowd dispersed. A black male started to walk away, and then ran north on Hallett Street, followed by Gearing and Viadera in their patrol car. He ran off the road toward buildings 28 and 29, and the officers continued their pursuit on foot. Convertito and Samatulski saw the man being pursued by a patrol car on Hallett Street. They lost sight of the suspect, however, when he ran between two buildings.

In the course of the pursuit, the man discarded objects in the vicinity of a dumpster outside buildings 28 and 29. Viadera abandoned his pursuit to determine what had been discarded while Gearing continued the chase. Gearing kept the man in sight except for a moment when the officer slipped and fell during the chase. The officer rounded the corner of Church, Pembroke and Crescent streets and found a man, whom he took into custody. The chase lasted fifteen to twenty seconds, and Gearing had no doubt that the man he took into custody was the same person he had chased. Gearing communicated with Convertito and turned the suspect over to him and Samatulski when they arrived at the intersection. At the scene, the suspect later identified as the defendant, told Convertito that he ran because he had a knife and some joints of marihuana and that he threw them away when the officers arrived. The defendant indicated that he had no idea why he was being chased.

In his search of the area around the dumpster, Viadera located and picked up two blue packets which he suspected contained narcotics. He was joined by Officer Robert Halpin who was on patrol in the general area. Halpin, with the aid of his flashlight, discovered four small white packets within ten feet of the dumpster. After surrendering the defendant to two of the other officers, Gearing also went to the dumpster area but did not discover any additional evidence. He returned to his patrol car where Viadera was waiting.

Gearing and Viadera proceeded to police headquarters where Viadera turned over the two blue packets to Halpin. Halpin then turned the packets over to Samatulski with the four white packets he had found. Halpin initialed each bag and Samatulski brought the packets to the records room after he conducted a field test on one bag. That test positively indicated the presence of cocaine.

At headquarters, the defendant was searched. The sum of $334 and empty plastic baggies were discovered on his person. The money was found to be “layered,” which is a manner of folding money by denomination commonly used by drug sellers. Samatulski placed the money in a plastic evidence bag, stapled the bag and sealed it with tape before turning it over to the records room.

State toxicology tests subsequently indicated that the blue bags contained heroin and the white bags contained cocaine.

In his second claim of error, the defendant argues that his motion for acquittal and motion for a new trial should have been granted on the ground that the $334 recovered from him was improperly before the jury. Specifically, he argues that there was error because the money was not in the same condition at trial as when it was stored in the records room. We disagree.

“An object connected with the commission of a crime must be shown to be in substantially the same condition as when the crime was committed before it can properly be admitted into evidence.” State v. Pollitt, 205 Conn. 61, 88, 530 A.2d 155 (1987); see also United States v. Clark, 425 F.2d 827, 833 (3d Cir. 1970); State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). “ ‘The state’s burden with respect to chain of custody is met by a showing that there is a “reasonable probability” that the substance has not been changed in important respects.’ State v. Jones, 167 Conn. 228, 239-40, 355 A.2d 95 (1974).” State v. Nieves, 186 Conn. 26, 31 n.4, 438 A.2d 1183 (1982).

At trial, the plastic bag containing the money was unsealed, there was no tape on the bag and no indication that it had ever been stapled. The money also was no longer “layered.” Evidence adduced at trial, however, demonstrated that the bag contained the same amount of money that was seized from the defendant. Further, the evidence indicated that the bag contained the same number of each denomination of currency as was seized from the defendant. Finally, Samatulski testified that the money offered at trial was in fact the money seized from the defendant.

The record discloses that when the assistant state’s attorney offered the currency into evidence, the defense counsel conducted an extensive voir dire and then stated “I have no objection for the record, Your Honor.”

When evidence comes in without objection, it may be given such weight as the trier of fact deems it worth. State v. Rawls, 198 Conn. 111, 118, 502 A.2d 374 (1985); State v. Cox, 7 Conn. App. 377, 388-89, 509 A.2d 36 (1986); B. Holden & J. Daly, Connecticut Evidence § 13. Although the defendant failed to object to the admission of the currency, the defendant seeks review of this claim under the plain error doctrine. “Review for plain error ‘ “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).’ Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986).” Small v. South Norwalk Savings Bank, 205 Conn. 751, 759, 535 A.2d 1292 (1988). On the basis of the evidence presented at trial, we fail to find the existence of a “truly extraordinary situation” amounting to plain error.

The defendant’s final claim of error concerns the sufficiency of the evidence. The defendant claims that the evidence is insufficient to prove that he was the man pursued by the Bridgeport police or even that he possessed narcotics with an intent to sell. Although the defendant conceded that these claims were not presented to the trial court, he nevertheless seeks review under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). See also State v. Dickson, 10 Conn. App. 462, 464, 523 A.2d 935 (1987). The record adequately supports the defendant’s allegation that his claim is of constitutional dimension. We shall, therefore, review this claim.

“The issue of sufficiency of evidence and its appropriate standard of review have been analyzed countless times by both this court and our Supreme Court.” State v. Iovieno, 14 Conn. App. 710, 712-13, 543 A.2d 766 (1988). “ ‘The issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.’ State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981) .... ‘In ruling on such a motion, the evidence presented at trial must be given a construction most favorable to sustaining the jury’s verdict.’ State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978).” (Citations omitted.) State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981).

Gearing testified that he had no doubt that the black male he had apprehended at the corner of Church, Pembroke and Crescent streets was the same person he had chased through the projects. Samatulski identified the fleeing suspect as the defendant. Convertito was told by the defendant that he ran because he had a knife and some marihuana joints. On his way to headquarters, the defendant stated to the officers: “I don’t know why he was chasing me. I was in front of the office. I have no idea why you people were chasing me.”

“ ‘It is within the province of the jury to draw reasonable and logical inferences from the facts proven.’ State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). Nor must we or the jury abandon common sense.” State v. Laracuente, 205 Conn. 515, 521, 534 A.2d 982 (1987). Convertito and Samatulski testified that they saw a black male break from the crowd on Hallett Street and Martin Luther Eing Drive and run down Hallett Street pursued by a patrol car. The sergeants also testified as to the lighting conditions provided by the street lamps. Viadera testified that he never lost sight of the suspect until he stopped to pick up the objects he had seen the suspect discard in the area of the dumpster. He also testified that he was able to see because of the large floodlights located on the top of the buildings. Finally, Gearing testified that the suspect was in his eyesight during the chase except for a brief time when he fell. Gearing also saw, in the vicinity of the dumpsters, the suspect discard objects from his pockets. The jury could reasonably have found that the defendant was the same black male who ran away from the crowd, discarded the narcotics while he was being pursued and was apprehended some fifteen to twenty seconds later at the comer. As for the sufficiency of the evidence with respect to possession, the jury could reasonably have found, from the evidence presented at trial, that the packets of heroin and cocaine found in the vicinity of the dumpster were the objects discarded by the defendant during the pursuit.

Finally, we hold that there was sufficient evidence for the jury to infer an intent to sell narcotics. Circumstances here indicate that on a cold and icy evening, the defendant was in a known drug trafficking area. He departed the scene when the police arrived. Narcotics were found in the area of pursuit where he was seen to discard objects from his pockets. The defendant was found to have $334 on his person when apprehended, and the money was layered in the manner typical of drug dealers. The defendant also had empty plastic baggies on his person which, experienced narcotic police officers testified, are used to package narcotics in for street sale. There was no evidence that the defendant was a user of narcotics. In light of the foregoing, “ ‘[w]e cannot say that the inferences leading to the defendant’s conviction were illogical or unreasonable.’ State v. Vincent, 194 Conn. 198, 208-209, 479 A.2d 237 (1984).” In re Elieser C., 14 Conn. App. 445, 450, 541 A.2d 528 (1988).

After a scrupulous review of the record we think it manifest that there was more than sufficient evidence to allow the jury to have found beyond a reasonable doubt that the defendant was guilty of possession of a narcotic substance with intent to sell.

There is error in part, the judgment as to count two, possession of a narcotic substance (heroin) in violation of General Statutes § 21a-277 (a), is set aside and the case is remanded to the trial court with direction to render judgment that the defendant is not guilty on that count.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in part: “Any person who . . . possesses with the intent to sell or dispense ... to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned.”

       The state conceded the defendant’s claim of double jeopardy and requested this court to set aside the judgment on the second count (heroin) and remand the matter to the trial court with direction to render judgment that the defendant is not guilty as to that count only. We agree with the state that the convictions violated the prohibition against double jeopardy. State v. Williams, 12 Conn. App. 225, 230-34, 530 A.2d 627 (1987). Accordingly, with respect to this claim, we will grant the relief requested.

       Seized from the defendant were seven $20 bills, thirteen $10 bills, six $5 bills and thirty-four $1 bills.