text:
    Deborah Mullin v. Vincent R. Mullin
    (10919)
    Dupont, C. J., Norcott and Heiman, Js.
    Argued June 10
    decision released August 18, 1992

      Philip K. Meister, for the appellant (plaintiff).

      Vincent R. Mullin, pro se, the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the judgment of the trial court denying her motion to modify child support. Because we conclude that the trial court failed to consider whether child support should be modified on the basis of a substantial deviation from the guidelines pursuant to General Statutes § 46b-86 as amended by Public Acts 1991, No. 91-76, we reverse the judgment of the trial court.

The marriage of the parties was dissolved on February 5, 1988. There was one child born to the parties during the marriage, who was a minor at the time of the dissolution. Pursuant to the judgment of dissolution, the defendant was ordered to pay child support in the amount of $75 per week.

On November 7,1991, the plaintiff filed a motion to modify both the visitation order, which is not the subject of this appeal, and the support order. The motion alleged that, since the date of judgment, “the circumstances of the parties have substantially changed.”

On December 4,1991, both parties appeared before the court represented by counsel. The financial affidavit submitted by the defendant showed a net weekly income of $453.73. The financial affidavit submitted by the plaintiff showed a net weekly income of $248.81. It should have shown a net weekly income of $371.07 based on the figures provided. At the hearing on the motion, counsel for the plaintiff argued for child support in accordance with the Connecticut child support guidelines. According to the plaintiff, the guidelines require weekly child support in the amount of $117. Counsel for the defendant argued that there should be a deviation from the guidelines because of the expenses incurred by the defendant in exercising his visitation rights.

On December 5,1991, the trial court issued its memorandum of decision denying the motion after concluding that “the court does not find such a change of circumstances as would warrant a modification of child support.” This appeal followed.

The court has the power to modify a child support order on the basis of a substantial deviation from the guidelines independent of whether there has been a substantial change in the circumstances of a party. “Both the ‘substantial change of circumstances’ and the ‘substantial deviation from child support guidelines’ provision establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions. The first allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The second allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole, as reflected in the mandatory periodic revisions of the child support guidelines. See General Statutes § 46b-215a.” Turner v. Turner, 219 Conn. 703, 718, 595 A.2d 297 (1991).

The plaintiff’s motion alleged a substantial change in the circumstances of the parties as the basis for modification, rather than a substantial deviation from the child support guidelines. Neither party, however, argued to the trial court the issue of whether there had been a substantial change in the circumstances of a party. Instead, both parties argued about the manner in which the guidelines should be applied to the particular facts presented by this case. In the context of a trial court’s consideration of a motion to modify, the guidelines become relevant only after a change in circumstances has been shown, if that is the ground urged in support of modification; Glinski v. Glinski, 26 Conn. App. 617, 625, 602 A.2d 1070 (1992); or in determining whether the existing child support order substantially deviates from the guidelines, if that is the ground urged in support of modification. In this case, the defendant made no procedural objection based on the enlargement of the basis for the motion for modification. Any lack of notice that the modification was sought based on a substantial deviation from the child support guidelines was, therefore, waived by the defendant. Turner v. Turner, supra, 705 n.3; see also Tedesco v. Stamford, 215 Conn. 450, 462-63, 576 A.2d 1273 (1990). The issue of whether the existing child support order substantially deviates from the guidelines was squarely presented to the trial court. It was therefore incumbent on the trial court to decide the case on the ground presented.

General Statutes § 46b-86 provides the Superior Court with the authority, inter alia, to modify a child support award “upon a showing that the final order for child support subtantially deviates from the child support guidelines established pursuant to section 46b-215a . . . .” Public Acts 1991, No. 91-76, amended § 46b-86 to provide that “[tjhere shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial.” Here, the current support amount of $75 deviates more than fifteen percent from the child support guidelines amount of $117.

The trial court was, therefore, required to consider the guidelines in determining the defendant’s child support obligation. “In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.” General Statutes § 46b-215b (a).

The defendant argues that he successfully rebutted the presumption on the basis of the needs of other dependents, significant visitation expenses, and extraordinary unreimbursable medical expenses. He correctly points out that these factors are appropriately considered by a trial court in determining whether the application of the guidelines would be inequitable or inappropriate. See Favrow v. Vargas, 222 Conn. 699, 713 n.17, 610 A.2d 1267 (1992). The trial court, however, never made any finding on the record regarding the defendant’s claims.

A trial court “improperly deviate[s] from the child support guidelines in the absence of a specific finding on the record that application of the guidelines would be inequitable or inappropriate according to the deviation criteria established in the guidelines.” McHugh v. McHugh, 27 Conn. App. 724, 729, 609 A.2d 250 (1992); Savage v. Savage, 25 Conn. App. 693, 698, 596 A.2d 23 (1991). The case must be remanded so that the trial court will have the opportunity to give due consideration to the defendant’s claims and to make a specific finding regarding whether the application of the child support guidelines would be inequitable or inappropriate according to the deviation criteria established in the guidelines.

The judgment is reversed and the case is remanded to the trial court for a new hearing on the motion to modify child support.

In this opinion the other judges concurred.

       Section 1 of Public Acts 1991, No. 91-76, repealed General Statutes § 46b-86 and substituted the following in lieu thereof: “(a) Unless and to the extent that the decree precludes modification, any final order for the periodic 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 or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT ANY DEVIATION OF LESS THAN FIFTEEN PER CENT FROM THE CHILD SUPPORT GUIDELINES IS NOT SUBSTANTIAL AND ANY DEVIATION OF FIFTEEN PER CENT OR MORE FROM THE GUIDELINES IS SUBSTANTIAL. MODIFICATION MAY BE MADE OF SUCH SUPPORT ORDER WITHOUT REGARD TO WHETHER THE ORDER WAS ISSUED BEFORE, ON OR AFTER THE EFFECTIVE DATE OF THIS ACT. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1,1990, 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. 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. No order for periodic payment of permanent alimony or support maybe subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”

       We note that in the plaintiffs financial affidavit the total of the itemized deductions from gross income is $173.81, while the figure entered for total deductions and used to determine net weekly wage is $296.07. The figures for total deductions and net weekly wage have been transposed. Properly presented, the plaintiff’s net weekly wage is $296.07, and total deductions equal $173.81. Her total net weekly income, which includes $75 in child support, therefore, is actually $371.07, rather than $248.81 as shown.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Cloid DeWitt
    (10100)
    Dupont, C. J., Norcott and Heiman, Js.
    Argued June 10
    decision released August 18, 1992

      Neal Cone, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, 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 Howe, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of the crime of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court incorrectly (1) denied his motion for a judgment of acquittal which was based upon insufficiency of the evidence, and (2) charged the jury on the issue of reasonable doubt. We affirm the judgment of the trial court.

The defendant made a motion for a judgment of acquittal at the completion of the state’s case. See Practice Book § 887. The trial court denied the motion and an exception was taken. The jury could reasonably have found a number of relevant facts. On September 13, 1988, at about 8:45 p.m., Officers Nicholas Ortiz and John Losak of the Bridgeport police department were assigned to conduct a narcotics investigation at Father Panik Village, building 13. They drove into the courtyard between buildings nine and thirteen in an unmarked police car and parked near a dumpster. The well lighted area was known for high narcotics trafficking, especially cocaine and crack. The officers observed the defendant standing about four feet from them in the courtyard between concrete traffic barriers and the dumpster. There were other individuals in the area who left when the uniformed officers exited the car. The defendant had not been observed approaching anyone or conducting any transactions.

The defendant saw the officers and placed a clear plastic bag containing several red objects in his mouth. Ortiz testified that narcotics are often placed in plastic sandwich bags and that street level dealers place the bags in their mouths hoping that the police will not see the drugs. The defendant turned his back on the officers just before he was seized. They removed the bag from his mouth and found it to contain forty-four plastic vials with red caps. A field test indicated that a white substance in the vials was cocaine. No significant amount of money was seized from the defendant.

Ortiz indicated that each of the vials of cocaine would be worth $5 and would allow a user to be high for fifteen to twenty minutes. Ortiz testified that a typical buyer would purchase between one and five vials at a time. Losak testified that buyers typically purchased one or two vials at a time, but he had arrested buyers who had purchased five to ten vials at once. A state toxicologist testified that each vial tested contained between 42.9 and 58.6 milligrams of cocaine that was 82.2 to 86.9 pure. This, he said, was typical of crack cocaine seized in the Bridgeport area. The defendant testified that the forty-four vials of cocaine were for his and a friend’s use and that he had no intention of selling them.

I

The defendant claims that the evidence presented by the state prior to his motion for a judgment of acquittal was insufficient to sustain a conviction on the charge of possession with intent to sell narcotics because the state failed to prove his intent to sell. The defendant’s argument is that the forty-four vials found in his possession do not allow an inference of his intent to sell, but rather would allow an inference that he intended the vials for personal use. He argues, therefore, that the trial court should have granted his motion for acquittal. We disagree.

Pursuant to Practice Book § 884, the trial court shall order the entry of a judgment of acquittal as to any offense for which the evidence would not support a finding of guilt. When examining claims of insufficient evidence, this court employs a two part analysis. First, we review the trial evidence, construing it in the most favorable manner reasonably possible to support the jury’s verdict. Second, we ascertain whether a jury could reasonably have concluded that the cumulative effect of the established evidence, and the inferences reasonably drawn from those evidentiary facts, established guilt beyond a reasonable doubt. State v. King, 216 Conn. 585, 600-601, 583 A.2d 896 (1990); State v. Bowens, 24 Conn. App. 642, 646, 591 A.2d 433, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991). “Where a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard.” State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Thus, each essential element of the crime must be proven beyond a reasonable doubt; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. King, supra, 601; and a jury may not speculate or resort to conjecture but may draw only reasonable, logical inferences from the proven facts. State v. King, supra; State v. Bowens, supra.

This case is similar to State v. Napoleon, 12 Conn. App. 274, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987). In Napoleon, the defendant was standing with a group of men rolling a marihuana cigarette when police officers approached. He threw a bag into a nearby automobile and attempted to leave. The bag was found to contain four manila envelopes of marihuana and four glassine bags of cocaine. The defendant had fifteen foil packets and four more glassine bags containing cocaine and heroin on his person. This court upheld the conviction of possession of narcotics with intent to sell, stating that evidence of the location of the defendant in an area known for drug trafficking, the packaging of the narcotics in a manner commonly used for retail sale, and the quantity of the narcotics was sufficient to support the verdict.

In this case, Ortiz and Losak testified that the defendant was standing in an area known for high narcotics trafficking, that he was in possession of a large quantity of narcotics packaged in a manner used by street dealers, and that, when police officers approached, he hid the narcotics in his mouth in a manner used by street level dealers. On the basis of the officers’ testimony about quantities purchased by typical buyers, the jury could have concluded reasonably that the amount possessed by the defendant was not intended for his personal use. A trier of fact could have concluded reasonably at the close of the state’s case, without any consideration of the defendant’s evidence, that the state had proven beyond a reasonable doubt that the defendant possessed narcotics with an intent to sell them. See State v. Avila, 166 Conn. 569, 353 A.2d 776 (1974); State v. Bowens, supra; State v. Uribe, 14 Conn. App. 388, 540 A.2d 1081 (1988); State v. Parent, 8 Conn. App. 469, 513 A.2d 725 (1986). The trial court, therefore, properly denied the defendant’s motion for a judgment of acquittal.

II

The defendant also raises four challenges to the trial court’s instruction on reasonable doubt. The trial court stated that a reasonable doubt “is a doubt for which you can, in your own mind, conscientiously find [and] assign a reason to it.” It also stated that proof beyond a reasonable doubt is “that proof which leaves you with a strong and abiding conviction that this accused is guilty of the crime with which he’s been charged.” The court gave a two inference instruction which is that if two conclusions can reasonably be drawn from a piece of evidence, one of which is consistent with innocence, and the other consistent with guilt, the jury should adopt the one of innocence. It also stated that the rules of law are made “to protect the innocent and not the guilty.” The defendant did not object to any of these statements and seeks review under the Evans-Golding standard. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Any instruction that dilutes the state’s burden to prove beyond a reasonable doubt all of the essential elements of a crime with which a defendant is charged would be unconstitutional. State v. Falcon, 26 Conn. App. 259, 268, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992). The record here is adequate for review. We next analyze the defendant’s claim in this case to see if he has demonstrated that the alleged constitutional violations clearly exist and clearly deprived him of a fair trial. Id., 269.

Challenges to various jury instructions regarding reasonable doubt are common. Language similar to that in each of the challenged instructions as to reasonable doubt has been previously held not to create a clear constitutional violation for the purposes of review under Golding. The defendant in State v. Thomas, 214 Conn. 118, 119 n.1, 570 A.2d 1123 (1990), could not prevail on his challenge to an instruction about assigning a reason for any doubt and about the purpose of protecting the innocent. Nor did similar language regarding a “strong and abiding conviction” allow the defendant to prevail in State v. Bowens, supra, 653. The courts in State v. Dyson, 217 Conn. 498, 504, 586 A.2d 610 (1991), and (State v. Falcon, supra, 272, discuss the two inference instruction, and hold that although the instruction benefits the defendant and should not be given, it does not dilute the state’s burden of proof.

We have stated on countless occasions that individual jury instructions will not be judged in isolation from the entire charge and that the instructions must be read as a whole. State v. Watlington, 216 Conn. 188, 195, 579 A.2d 490 (1990); State v. Polanco, 26 Conn. App. 33, 44, 597 A.2d 830 (1991). When viewed in the context of the entire charge, the challenged instructions given by the trial court did not dilute or shift the state’s burden of proof. State v. Thomas, 214 Conn. 118, 120, 570 A.2d. 1123 (1990). “It is clear after reading the court’s charge in its entirety that the jury was adequately informed that the defendant was presumed innocent until the state proved otherwise and that it was the state’s burden to prove him guilty beyond a reasonable doubt.” Id., 119-20. Accordingly, we conclude that the defendant cannot prevail under the precepts of Golding because he has not been clearly deprived of a fundamental constitutional right. Id., 120; see also State v. Ireland, 218 Conn. 447, 590 A.2d 106 (1991); State v. Dizon, 28 Conn. App. 444, 611 A.2d 432 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (formerly § 19-480) provides in pertinent part: “penalty for illegal manufacture, distribution, sale, prescription, dispensing, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than 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 a second 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; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned. . . .”

       The defendant urges us to abolish the waiver rule, pursuant to which a defendant may not obtain appellate review of a denial of a motion for a judgment of acquittal at the close of the state’s case without waiving his right to introduce evidence in his own behalf. The defendant here introduced evidence in his own behalf after his motion for judgment of acquittal, made at the completion of the state’s case, was denied. Because we have concluded that the evidence at the close of the state’s case was sufficient to support a conviction, we do not reach the issue of whether the courts of this state should abandon the waiver rule. See State v. Hufford, 205 Conn. 386, 391 n.5, 533 A.2d 866 (1987); State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986).

       As noted in State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985), this is not a correct statement of the law.


author: Lavery, J.

text:
    State of Connecticut v. Keith Johnson
    (10042)
    Nokcott, Lavery and Landau, Js.
    Argued June 1
    decision released August 18, 1992

      Gregory T. D'Auria, special public defender, with whom, on the brief, were James W. Bergenn and Steven D. Brown, and Katherine Hermes, certified legal intern, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Edward Narus, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant, Keith Johnson, appeals from a judgment of conviction rendered after a jury trial. The defendant was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48 (a), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and received a total effective sentence of twenty-three years. On appeal, the defendant claims that the trial court improperly (1) admitted testimony concerning a pretrial identification of the defendant and (2) denied the motion to sever his trial from those of his codefendants. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At about 6:45 p.m. on October 12,1989, the victim and a companion were walking on Huntington Street in Hartford. Shortly before, they had heard gunshots. They saw three men on the other side of the street, who then crossed the street and began following them. A few moments later, they were stopped by the three men. One of the men said something to the victim’s companion that was inaudible to the victim, and the companion fled.

One of the trio then approached the victim and knocked off his eyeglasses. Another of the men then stood next to the victim, placed a handgun to his head, and instructed him to hand over his jacket and his watch. The victim complied. The man then struck the victim on the bridge of the nose with the handgun, fracturing his nose and knocking him down onto the sidewalk. When the victim tried to stand up, the third man, wielding a shotgun, knocked him back to the ground. The man then struck the victim in the eye with the butt of the shotgun and pointed the shotgun at the victim’s neck. One of the men then removed cash from the victim’s pocket. The men told the victim to leave and quickly left the scene themselves. The victim then went to a friend’s house nearby and reported the crime to a police officer shortly thereafter.

In his report to the police, the victim described the man with the handgun as five feet six inches tall and of medium build. The police subsequently took three suspects into custody on that night. The next day, the victim went to the police station, where he was presented with a photographic array containing three sets of eight photographs. Out of the array, the victim selected photographs of three men, one of whom was the defendant. Prior to trial, the defendant made a motion to sever his trial from the trials of the other two men. The trial court denied the motion.

At trial, the victim’s pretrial identification of the defendant was admitted into evidence. The victim testified, however, that the man with the gun was actually taller than five feet six inches, and was approximately five feet ten or eleven inches tall. Both at trial and at the hearing on the motion for new trial, the victim observed that the defendant was taller and heavier than the man with the gun he remembered immediately after the robbery. The defendant is six feet tall and at the time of the robbery weighed about 215 pounds.

The defendant first claims that the trial court improperly admitted testimony concerning the victim’s pretrial identification of the defendant because the photographic array procedure was unnecessarily suggestive and wholly unreliable. Because no objection was made to the admission of the pretrial identification at trial, the defendant urges that this claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1990).

The manner in which we determine whether a defendant’s due process rights have been violated by a pretrial identification procedure, such as the photographic array in this case, is well established. “[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ ” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992). “A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. ...” (Citations omitted; internal quotation marks omitted.) State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991).

The defendant first contends that because there were only twenty-four photographs shown to the victim, the photographic array was unnecessarily suggestive. “The presentation of an array of several photographs to witnesses, including that of the suspect, does not constitute an impermissibly suggestive pretrial identification procedure ‘in the absence of any unfairness or other impropriety in the conduct of the exhibit.’ ” State v. Boscarino, 204 Conn. 714, 726, 529 A.2d 1260 (1987). There is no requirement that a certain number of photographs be shown to a witness. State v. Watson, 165 Conn. 577, 591, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). We conclude that the procedure in the present case was not rendered unnecessarily suggestive by the number of photographs shown to the victim.

The defendant also asserts that because there were three sets of photographs and three suspects, the defendant’s photograph was emphasized by the police, and the procedure was unnecessarily suggestive. In support of this assertion, the defendant cites the victim’s testimony that he believed that each of the three sets of photographs contained a picture of one of the suspects. That belief, however, was not based on any suggestion on the part of the police. The police did not tell the victim that each set would contain a picture of a suspect, nor did they emphasize any particular photographs for the defendant to select.

In State v. Williams, 203 Conn. 159, 177, 523 A.2d 1284 (1987), our Supreme Court held that when a victim would have inferred without police comment that a photograph of a suspect was present in the array, police comments to that effect did not render the identification procedure unnecessarily suggestive. “When a crime victim is asked to view a display of photographs directly following her description of the perpetrator of the crime, she may reasonably surmise that ‘the police may consider one of the persons presented ... [to be] a suspect in the case.’ ” Id. Consequently, the victim’s subjective belief in the present case, with no police comment, that each set of photographs contained a picture of a suspect does not render the procedure unnecessarily suggestive.

Finally, the defendant contends that the procedure was unnecessarily suggestive because the victim was forced to choose the photograph with the greatest likeness to the defendant from the limited number of photographs in the array. In every photographic array, however, a witness attempts to select a photograph of an individual who he or she believes to be a suspect in the crime in question. Further, in the present case it was the victim, and not the police, who ended the photographic identification procedure. We conclude that the pretrial identification procedure was not unnecessarily suggestive. Therefore, the defendant has not established that a constitutional violation clearly exists and clearly deprived him of a fair trial, and his claim must fail under the third prong of State v. Golding, supra.

The defendant also claims that the trial court improperly denied his motion to sever his trial from those of his codefendants. The defendant asserts that he was prejudiced by the trial court’s denial of his motion to sever because (1) trying him with two codefendants who were positively identified compelled the jury to infer the presence of the defendant as the third attacker, (2) the withdrawal of one of the codefendants during trial presented the jury with an inappropriate opportunity to speculate about the sudden disappearance of a codefendant, and (3) he was the only codefendant who asserted an alibi defense.

“General Statutes § 54-57 and Practice Book § 829 authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the ‘ “denial of severance resulted in substantial injustice,” and that any resulting prejudice was “beyond the curative power of the court’s instructions.” ’ . . .” (Citations omitted.) State v. Herring, 210 Conn. 78, 94-95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Indeed, “[jjoint trials are the rule, and separate trials will be ordered only when ‘ “the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. . . .” ’ State v. Vinal, 198 Conn. 644, 648, 504 A.2d 1364 (1986).” State v. Taylor, 21 Conn. App. 244, 246-47, 572 A.2d 1045, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990).

In this case, the trial court thoroughly cautioned the jury against drawing impermissible conclusions as to the withdrawal of one of the codefendants. Also, the fact that the defendant was the only codefendant to present an alibi defense does not render the denial of his motion to sever an abuse of discretion because the defendant’s alibi defense was not antagonistic to his codefendant’s claims of innocence. Further, the defendant has failed to specify what, if any, evidence was admitted at the joint trial of the defendants that would not have been admissible at the defendant’s separate trial.

After a thorough review of the record, we conclude that the trial court’s denial of the defendant’s motion to sever was a proper exercise of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note at the outset that our Supreme Court has consistently held that a “partial misdescription of the person being identified goes to the weight rather than to the admissibility of the identification. . . .The weaknesses of identifications can be explored on cross-examination and during counsel’s final arguments to the jury. . . .” (Citations omitted; internal quotation marks omitted.) State v. Williams, 203 Conn. 159, 178, 523 A.2d 1284 (1987).

       A defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1990). The conditions as set forth in Golding need not be considered in any particular order. State v. Shaw, 24 Conn. App. 493, 497, 589 A.2d 880 (1991).

       At trial, the police officer who showed the victim the photographs testified: “These photos were handed to him in a stack form and he was asked to go through the photos and he started going through the photos, and it is my normal procedure to have the witness or the victims of crime look at all photo arrays. When he came to photo — I believe it was the sixth in this array — he stopped and said, ‘This was the person who assaulted me with the handgun last night,’ and I said, ‘Would you please look at the other two.’ He said, T don’t have to; I am 100 percent sure that this is the person.’ I said ‘Fine.’ ”
      The victim also testified that he was positive that the photographs that he selected from the photographic array were of his attackers.

       The court instructed the jury, in part, as follows: “I want to advise you that Mr. Saunders’ matter has been resolved without the necessity of your further participation in that case, and you will need concern yourself only with the two remaining defendants, Messrs. Johnson and Harris. I want to tell you very clearly that you must not speculate in any way as to how Mr. Saunders’ case was resolved, nor may you consider his absence in any way in resolving the cases of Messrs. Johnson and Harris. That is to say, they are to have no — his absence or his withdrawal from the further participation in this trial is not to be considered by you in any way in your deliberations or in your arrival upon a verdict concerning Mr. Johnson and Mr. Harris .... Even though the cases have been tried together, you must deliberate with respect to each count of each information as if the defendant whose ease you are then considering had been tried separately. Thus you should keep in mind that your findings in one case do not in themselves establish a basis for similar findings in the other case. . . . Let me remind you again that you must consider each charge against each defendant separately from the other and reach separate verdicts as to each count as against each defendant.”


text:
    Paul Legassey v. Ralph M. Shulansky, Commissioner of Banking Roger Morgan v. Ralph M. Shulansky, Commissioner of Banking
    (10828)
    Daly, Lavery and Freedman, Js.
    Argued June 9
    decision released August 18, 1992

      Rodger C. Boe, for the appellants (plaintiffs).

      William J. Prensky, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Lavery, J.

The plaintiffs, Paul Legassey and Roger Morgan, bring this appeal challenging the dismissal of their motions to quash subpoenas served on their banks by the defendant commissioner of banking (commissioner). The commissioner sought the disclosure of the plaintiffs’ financial records in furtherance of an investigation into the plaintiffs’ possible violations of the Connecticut Uniform Securities Act, General Statutes § 36-470 et seq. The trial court found that the plaintiffs had filed their applications to quash in an untimely manner, and were therefore barred from maintaining a cause of action to quash in accordance with General Statutes § 36-9Z (b). We take judicial notice of the file in Morgan v. Brown, 219 Conn. 204, 592 A.2d 925 (1991), and sua sponte hold that the plaintiffs’ applications to quash, that gave rise to this appeal, were barred by the doctrine of res judicata.

The record and briefs reveal the following relevant facts and procedural history of this case. General Statutes § 36-495 (a) grants the banking commissioner the authority to conduct investigations into possible violations of the Connecticut Uniform Securities Act (CUSA), General Statutes § 36-470 et seq. Section 36-495 (b) confers on the commissioner the authority to subpoena witnesses and to require the production of books, papers, correspondence, memoranda, agreements, and other records or documents that may be relevant to his investigation.

Acting on a complaint, the commissioner began an investigation into the sale of units in four limited partnerships to determine whether there had been, or would be, any violations of CUSA. The investigative trail led to the plaintiffs’ bank accounts, to a financial entity known as Omni Group, Inc., and to Paul J. Legassey client’s fund accounts. On April 24,1990, the commissioner ordered that four subpoenas duces tecum be served on four different banks, requiring the banks to produce certain financial records of the plaintiffs. On May 16, 1990, the plaintiffs’ separately filed applications to quash the subpoenas. The plaintiffs challenged the subpoenas in accordance with General Statutes § 36-9Í, which gives bank customers the right to file an application to quash a subpoena served on the customer’s bank. After a short trial, the court granted the plaintiffs’ motions to quash because of certain defects in the service of the subpoenas. The commissioner appealed the decision of the trial court, and the Supreme Court reversed the granting of the plaintiffs’ motions to quash on June 18,1991, in Morgan v. Brown, supra. On July 31, 1991, the trial court dismissed the applications to quash in accordance with the Supreme Court decision.

On July 19,1991, each plaintiff filed a second application to quash the subpoenas. The trial court dismissed the second applications to quash as untimely in November, 1991. The plaintiffs appeal from the trial court’s dismissal of the second applications, contending that they were indeed timely.

Despite the plaintiffs’ claim that their second applications were timely, and that their cause of action was preserved by General Statutes § 52-592 (a), the dismissal of the first applications was a judgment on the merits, and, therefore, the plaintiffs’ second applications were barred by the doctrine of res judicata.

Res judicata is a doctrine grounded in public policy. Its primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction. Dunham v. Dunham, 221 Conn. 384, 391, 604 A.2d 347 (1992); In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983); Corey v. Avco Lycoming Division, 163 Conn. 309, 316-17, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); Brady v. Anderson, 110 Conn. 432, 435, 148 A. 365 (1930). The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action that were actually made or that might have been made. Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983).

Connecticut’s res judicata rules are derived from the theory of merger and the transactional test set out in the Restatement (Second) of Judgments. Dunham v. Dunham, supra, 392-93 n.10; Vakalis v. Kagan, 18 Conn. App. 363, 557 A.2d 1285 (1989). Merger, or the extinguishing of the plaintiffs’ original claims through the rendering of final judgment, has its roots in early case law. Fisher, Brown & Co. v. Fielding, 67 Conn. 91, 118-19, 34 A. 714 (1895) (Hammersley, J., dissenting). “When the plaintiff recovers a valid and final personal judgment, his original claim is extinguished and rights upon the judgment are substituted for it. The plaintiff’s original claim is said to be ‘merged’ in the judgment.” 1 Restatement (Second), Judgments § 18.

“The transactional test measures the preclusive effect of a prior judgment, which includes any claims relating to the cause of action that were actually made or might have been made.” Vakalis v. Kagan, supra, 367. A cause of action for the purpose of the transactional test is “ ‘the group of facts which is claimed to have brought about an unlawful injury to the plaintiff; Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778 (1952) . . . .” Dunham v. Dunham, supra.

The present case presents a clear example of the type of relitigation that the doctrine of res judicata is designed to prevent. In May, 1990, the plaintiffs brought their first applications to quash the subpoenas on the following six grounds:

“A. The attempted service of the subpoenas did not comply with the requirements of the statutes and other legal authority governing said service.
“B. The respondent attempted to induce the . . . banks to provide financial records in violation of the governing statutory provisions.
“C. The respondent attempted service of said subpoenas while concurrently proceeding with his appeal of a prior pending action involving the same facts and circumstances.
“D. Compliance with said subpoenas would violate the applicant’s right of privacy and his rights under the 4th, 5th, and 14th amendments of the United States Constitution, as well as provisions of the Connecticut Constitution.
“E. The attempted service of said subpoenas is intended to harass the applicant.
“F. The disclosure sought is overbroad, unnecessarily burdensome, irrelevant, immaterial and not calculated to lead to the discovery of relevant or material information.”

After the Supreme Court dismissed the first applications, the second applications were brought on three grounds identical to grounds A, D and F of the original application. The res judicata rules previously discussed bar such a relitigation of those three issues. For example, the method of the service of the subpoenas was argued in the first action and then exhaustively analyzed and ruled upon by the Supreme Court in the first appeal. The court specifically held that § 36-9Í (b) “confers no standing upon bank customers to contest the procedures by which service of process has been made on their banks.” Morgan v. Brown, supra, 212.

The plaintiffs are attempting not only to relitigate an issue previously presented to the trial court, but one that has been ruled upon by the Supreme Court. The remaining issues are barred from relitigation by the doctrine of merger.

Application of the doctrine of res judicata requires that there be a previous judgment on the merits. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988). “Judgments based on the following reasons are not rendered on the merits: want of jurisdiction; pre-maturity; failure to prosecute; unavailable or inappropriate relief or remedy; lack of standing.” 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 354d. We conclude that the trial court’s judgment in the first action and the decision of the Supreme Court constitute a judgment on the merits, and, therefore, the plaintiffs’ second application is barred by the doctrine of res judicata.

The plaintiffs’ claim that their second applications to quash are permitted because of accidental failure of suit is without merit. The plaintiffs rely upon General Statutes § 52-592 (a), which provides: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered, or a judgment for the plaintiff is reversed, the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of judgment.” This statute, by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems. It is not a device for avoiding our well-settled rules of res judicata. In the present case, there was a valid judgment on the merits, and therefore no recourse to § 52-592.

In light of our holding that the plaintiffs’ present action was barred by res judicata, we need not reach the merits of the plaintiffs’ claim that the second applications were timely filed under § 52-592 or any other theory. The trial court shall, without further delay, set a date for the production of the requested documents.

The judgment dismissing the applications to quash is affirmed.

In this opinion the other judges concurred.

       General Statutes § 36-9J (b) provides: “A customer of a financial institution shall have standing to challenge a subpoena of his financial records, by filing an application or motion to quash in a court of competent jurisdiction within the ten-day notice period required by subsection (a) of this section. Upon the filing of such application or motion by the customer, and service of such application or motion upon the financial institution and the person issuing the subpoena, production of the records shall be stayed, without liability to the financial institution, until the court holds a hearing on the motion or application and an order is entered sustaining, modifying or quashing the subpoena.’’

       “ ‘Our rules of res judicata are based on the public policy that a “party should not be allowed to relitigate a matter which it already has had an opportunity to litigate.” . . . "[T]he purpose of a law suit is not only to do substantial justice but to bring an end to controversy.” ’ ” (Citations omitted.) Orselet v. DeMatteo, 206 Conn. 542, 550, 539 A.2d 95 (1988).

       This court may take judicial notice of court files in another suit between the same parties, “especially when the relevance of that litigation was expressly made an issue at this trial.” McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990).

       See footnote 1, supra.


author: Landau, J. Daly, J.,

text:
    Lorine Quimby v. Kimberly Clark Corporation
    (10805)
    Daly, Landau and Heiman, Js.
    Argued April 30
    decision released August 18, 1992

      Laurence V. Pamoff, with whom, on the brief, was Kathryn L. Braun, for the appellant (plaintiff).

      Philip F. Spillane, for the appellee (defendant).
   Landau, J.

The dispositive issue in this appeal is whether the trial court properly granted the defendant’s motion to strike each of the eight counts of the plaintiff’s amended complaint. In its motion to strike, the defendant argued (1) that counts one, two, three, five and six failed to state claims on which relief can be granted “in that the allegations fail to state a common law cause of action based upon alleged violations of the Connecticut Workers’ Compensation Act,” (2) that count four failed to state a claim on which relief can be granted in that it “improperly claimed a violation of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; based on alleged wrongful conduct of the defendant, as an employer, as to the plaintiff, an employee of the defendant, and failed to state that such alleged wrongful conduct was performed in the conduct of any ‘trade or commerce’ as defined in CUTPA,” and (3) that counts seven and eight failed to state claims on which relief can be granted in that these counts allege a violation of CUTPA and the Connecticut Unfair Insurance Practices Act (CUIPA); General Statutes (Rev. to 1989) § 38-60 (now § 38a-815 et seq.) “based upon alleged wrongful conduct of the defendant in its capacity as an ‘insurer’ in the context of a single workers’ compensation claim, without alleging that said alleged wrongful conduct was performed by the defendant 'with such frequency as to indicate a general business practice.’ ” We agree with the trial court.

The following facts are relevant to our resolution of this appeal. The plaintiff, an employee of the defendant, a self-insured corporation, was injured in a work related accident. The plaintiff notified the defendant of her injury pursuant to the Connecticut Workers’ Compensation Act, General Statutes § 31- 275 et seq., and the defendant, after initially contesting liability, accepted the plaintiff’s claim as a compensable workers’ compensation claim. During the course of the proceedings before the workers’ compensation commissioner for the seventh district, the defendant paid benefits to the plaintiff at various times and in various amounts for medical bills, temporary total disability and temporary partial disability. Despite having made these payments, the defendant continued to contest the extent of the plaintiffs permanent disability, her entitlement to benefits and certain medical bills as being unauthorized and unnecessary for her treatment.

On September 4, 1990, the plaintiff instituted this action against the defendant seeking damages and injunctive relief for various common law and statutory causes of action based on the defendant’s alleged wrongful conduct in connection with the plaintiff’s claim for workers’ compensation benefits. The essence of the plaintiff’s eight count complaint was that the defendant wrongfully failed (1) to pay benefits in a timely manner, (2) to conduct a reasonable and timely investigation of the plaintiff’s claim, and (3) to agree to a reasonable resolution of the plaintiffs claim within a reasonable time. In count one, the plaintiff sought damages for emotional distress. In count two, she alleged that the defendant acted recklessly and in bad faith by failing to pay her benefits timely and that the defendant “wrongfully discharg[ed] the plaintiff and thereby violated] [General Statutes §] 31-290a.” In counts three and six, she claimed that the defendant’s bad faith dealings constituted a tortious breach of contract. In counts four, seven and eight, she alleged that the defendant’s bad faith refusal to pay benefits constituted CUTPA and CUIPA violations. In count five, she claimed that the defendant’s refusal to pay benefits constituted a breach of its contractual obligation to deal in good faith. The defendant filed a motion to strike all eight counts of the complaint. The trial court granted the motion as to counts one, two, three, five and six because the facts alleged did not sufficiently support the plaintiffs claim that the defendant’s conduct rose to a level of intentional misconduct, thereby constituting an exception to the exclusivity of the Workers’ Compensation Act. The trial court also struck counts four, seven and eight because count four failed to allege that the defendant’s conduct constituted “trade or commerce” and in counts seven and eight the plaintiff failed to allege that the defendant treated other claimants in a similar manner or that the defendant’s conduct was performed “with such frequency as to indicate a general business practice.”

The plaintiff filed an amended complaint on June 20, 1991, in which the following substantive changes were made: (1) an allegation that the plaintiffs injury “was the subject of a voluntary agreement as to workers’ compensation executed by the parties and approved by the Workers’ Compensation Commissioner for the Seventh District” was added to paragraph three of the first count; (2) an allegation that the defendant acted “intentionally, recklessly and/or negligently” was added to paragraphs eight, eleven, twelve, thirteen, fifteen, sixteen and seventeen of the first count; (3) an allegation that the defendant acted “intentionally, recklessly and/or negligently” was added to paragraphs eighteen and nineteen of the second count; and (4) an allegation that “the defendant Kimberly Clark Corporation has engaged in conduct as aforesaid before, after and during its processing the plaintiff’s claim” was added to paragraph twenty-four of the fourth count. The defendant filed a motion to strike all eight counts of the amended complaint. The trial court granted the motion as to counts four, seven and eight for the same reasons that it had struck these counts in the original complaint. It also granted the motion as to counts one, two, three, five and six on the ground that “[tjhe new allegations contained in the plaintiffs substitute complaint are insufficient to support a cause of action based on common law tort since they allege no new facts, only legal conclusions.” After the plaintiff failed to file a substituted complaint within fifteen days, the trial court granted the defendant’s subsequent motion for judgment. See Practice Book § 157. The plaintiff then filed this appeal.

Initially, we briefly outline our standard for reviewing a trial court’s granting of a motion to strike. It is well settled that “[wjhere an appeal is taken from a judgment following the granting of a motion to strike, we take the facts to be those alleged in the amended complaint construed in a manner most favorable to the pleader. . . . For purposes of appeal, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Citations omitted.) Amodio v. Cunningham, 182 Conn. 80, 82-83, 438 A.2d 6 (1980); Mead v. Burns, 199 Conn. 651, 655, 509 A.2d 11 (1986); Ivey, Barnum & O'Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 530 n.2, 461 A.2d 1369 (1983). Although the motion to strike admits all facts well pleaded, it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980); Sheiman v. Lafayette Bank & Trust Co., 4 Conn. App. 39, 42, 492 A.2d 219 (1987); Greene v. Metals Selling Corporation, 3 Conn. App. 40, 41, 484 A.2d 478 (1984). We review this case on the theory on which the trial court decided the motion. See Mingachos v. CBS, Inc., 196 Conn. 91, 96, 491 A.2d 368 (1986); Fuessenich v. DiNardi, 195 Conn. 144, 151, 487 A.2d 514 (1985).

I

Counts One, Two, Three, Five and Six

We conclude that the trial court properly struck counts one, two, three, five and six on the ground that the plaintiff failed to allege sufficient facts to support of her claim that the defendant’s conduct rose to a level of intentional misconduct, thereby constituting an exception to the exclusivity provision of the Workers’ Compensation Act. See General Statutes § 31-284 (a).

“The purpose of the workers’] compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.” Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). Under General Statutes § 31-284 (a) an employer within the scope of the act is not liable in “any action for damages on account of personal injury sustained by an employee arising out of and in the course of his [or her] employment or on account of death resulting from personal injury so sustained . . . .” Mingachos v. CBS, Inc., supra, 98.

In these five counts of the complaint, the plaintiff has attempted to allege facts that constitute grounds for avoiding the prohibition in General Statutes § 31-284 (a) against suing employers for work related injuries. Both this court and our Supreme Court have “consistently held that the exclusivity provisions of the Workers’ Compensation Act operate as a total bar to actions brought by employees against their employers for job related injuries. See, e.g., Sharp v. Mitchell, 209 Conn. 59, 66, 546 A.2d 846 (1988); Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 532, 494 A.2d 555 (1985); Mingachos v. CBS, Inc., [supra, 98]; Jett v. Dunlap, [supra, 217].” Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989); Coolick v. Windham, 7 Conn. App. 142, 148, 508 A.2d 46 (1986) . Our Supreme Court, however, has carved out a few exceptions to the exclusivity of the Workers’ Compensation Act provisions. See, e.g., Blancato v. Feldspar Corporation, 203 Conn. 34, 43, 522 A.2d 1235 (1987) (exception for a minor who has been illegally employed); Jett v. Dunlap, supra, 221 (exception for intentional torts committed by an employer). On the other hand, the Supreme Court refused to extend the Jett exception to include “ ‘accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.’ ” Mingachos v. CBS, Inc., supra, 108, quoting 2A A. Larson, Workmen’s Compensation Law (1976) § 68.13, pp. 13-18; Panaro v. Electrolux Corporation, 208 Conn. 589, 599, 545 A.2d 1086 (1988); Blancato v. Feldspar Corporation, supra.

In Jett v. Dunlap, supra, the Supreme Court recognized that intentional torts committed by an employer constitute an exception to the exclusivity of the workers’ compensation remedy. As the trial court in the present case noted, these counts of the complaint apparently were drafted in order to raise claims falling within that exception. The trial court ruled that the allegations of the complaint suffered from the shortcomings the Supreme Court recently deemed fatal to the common law action brought in Mingadlos v. CBS, Inc., supra, 96. “To bypass the exclusivity of the act, the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted. ... A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional. A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent. . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act.” (Citations omitted; internal quotation marks omitted.) Nolan v. Borkowski, 206 Conn. 495, 501, 538 A.2d 1031 (1988), quoting Mingachos v. CBS, Inc., supra, 102-103.

“ ‘The word “intent” . . . denote[s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it.’ 1 Restatement (Second), Torts § 8A (1965). Thus, the concept of ‘intent’ in relation to tortious conduct has reference to the consequences of the act rather than to the act itself. ‘But a high risk or probability of harm is not equivalent to the substantial certainty without which an actor cannot be said to intend the harm in which his act results.’ Shearer v. Homestake Mining Co., supra, 559. In terms of intentional tort then, the use of the word ‘intent’ in allegations ‘is not a talisman that can change the allegations into colorable claims of true intentional torts.’ Keating v. Shell Chemical Co., 610 F.2d 328, 332 (5th Cir. 1980).” Mingachos v. CBS, Inc., supra, 101-102.

The issue in this case is whether the factual allegations in the plaintiff’s complaint meet the test of Mingachos v. CBS, Inc., supra, 102. Counts one, two, three, five and six contain the following factual allegations relating to the defendant’s alleged intentional misconduct. The defendant intentionally, recklessly or negligently failed to carry out its duties under the law to pay benefits in a timely manner as required under the Workers’ Compensation Act, to investigate the plaintiff’s claims timely and to agree to a reasonable resolution of the plaintiffs claims, knowing that the plaintiff would not be able to carry on life’s activities, would have no sufficient source of income to meet her financial needs and that the plaintiff was relying on and anticipated receiving workers’ compensation benefits. As a result of the defendant's misconduct, the plaintiff alleged that she was forced to suffer loss of income, various financial expenses, an exacerbation of her medical condition, emotional stress, and embarrassment.

The mere use of the word intent does not change the allegations into colorable claims of true intentional torts. The allegations do not allege that the defendant desired to cause the consequences of its actions or that these consequences were substantially certain to follow. The complaint alleges no more than the fact that the defendant acted with the knowledge that the plaintiff would no longer be able to carry on life’s activities, and that she was relying on and anticipated receiving workers’ compensation benefits to meet her financial needs. Because these allegations are insufficient to allege an intentional tort, the plaintiffs claim must fail.

II

Counts Four, Seven and Eight

The trial court also properly granted the defendant’s motion to strike counts four, seven and eight of the plaintiffs complaint. In count four, the plaintiff alleged that the defendant, in its capacity as an employer, engaged in the conduct alleged in counts one through three inclusive “before, after and during its processing the plaintiffs claim.” In counts seven and eight the plaintiff alleged that the bad faith dealings of the defendant, in its capacity as an insurer, constituted violations of CUTPA and CUIPA. We agree with the trial court that these counts failed to state causes of action cognizable under Connecticut law.

If the facts that the plaintiff alleges are insufficient to frame her causes of action, the plaintiff cannot prevail. Ivey, Barnum & O'Mara v. Indian Harbor Properties, Inc., supra, 532. In order to allege a CUTPA violation properly, the plaintiff must allege, inter alia, that the acts complained of were performed in a “trade or business.” See General Statutes § 42-110b; Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 354, 525 A.2d 57 (1987). In order to allege properly a CUIPA violation, the plaintiff must allege, inter alia, that the defendant engaged in the allegedly wrongful conduct “with such frequency as to indicate a general business practice.” See General Statutes (Rev. to 1989) § 38-61 (6); Mead v. Burns, supra, 660. The plaintiffs complaint lacks these essential allegations.

A

COUNT FOUR

The central allegations of the fourth count of the plaintiff’s complaint, which incorporates the second count in its entirety, is that the defendant’s failure to pay benefits in a timely manner, to investigate reasonably and promptly the plaintiff's claim and to enter into a reasonable resolution of the plaintiff’s claim, constituted a CUTPA violation. We agree with the trial court that these allegations are insufficient to support a CUTPA cause of action.

The plaintiff does not allege that the defendant committed these acts “in the conduct of any trade or commerce.” The terms trade and commerce are defined in General Statutes § 42-110a (4) as “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal, or mixed, and any other article, commodity, or thing of value in this state.” The relationship in this case is not between a consumer and a commercial vendor, but rather between an employer and an employee. There is no allegation in the complaint that the defendant advertised, sold, leased or distributed any services or property to the plaintiff. The United States District Court in Banerjee v. Robert, 641 F. Sup. 1093 (D. Conn. 1986), held that the employer-employee relationship does not fall within the definition of trade or commerce for the purposes of an action under CUTPA. The Banerjee court noted that “[although an employer may engage employees for the purpose of promoting trade or commerce, the actual employment relationship is not itself trade or commerce for the purpose of CUTPA.” Id., 1108, citing Manning v. Zuckerman, 388 Mass. 8, 13, 444 N.E.2d 1262 (1983) (construing similar Massachusetts statute); see also Collins v. Gulf Oil Corporation, 605 F. Sup. 1519, 1523 (D. Conn. 1985).

Applying the holding of Banerjee to this case, we conclude that the trial court properly granted the defendant’s motion to strike the fourth count of the plaintiff’s complaint.

B

COUNTS SEVEN AND EIGHT

The central allegations of wrongdoing in the seventh and eighth counts of the plaintiff’s complaint are contained in the fifth count of the complaint which again alleges the failure of the defendant to pay benefits timely, to investigate the plaintiffs claim reasonably and promptly and to arrive at a reasonable resolution of the plaintiff’s claim within a reasonable time. All of the defendant’s misconduct was alleged to have occurred in the context of the plaintiff’s single workers’ compensation claim. The plaintiff did not allege that the defendant treated other claimants in a similar manner or that the defendant’s conduct was “performed with such frequency as to indicate a general business practice.” General Statutes (Rev. to 1989) § 38-61 (6).

The Supreme Court in Mead v. Burns, supra, addressed the scope of the liability imposed by CUIPA and CUTPA on the insurance industry. The court focused on the definition of “unfair claims settlement practice” in General Statutes (Rev. to 1989) § 38-61 (6) and concluded that the allegations, in the absence of an express allegation that the defendant’s conduct constituted a "general business practice,” did not suffice to establish a violation of either CUIPA or CUTPA and that an allegation of a singular failure to investigate was insufficient. Id., 657.

Under the guidelines set forth in Mead v. Burns, supra, for a plaintiff to allege CUIPA and CUTPA violations successfully the plaintiff must allege more than a singular failure to settle a plaintiffs claim fairly. The plaintiff must allege that the defendant has committed the alleged wrongful acts with such frequency as to indicate a general business practice. Here, the plaintiff’s complaint is based wholly on the defendant’s alleged failure to settle only the plaintiff’s workers’ compensation claim properly. She makes no allegations that the defendant has similarly failed to settle similar claims presented by other claimants properly and, accordingly, has failed to allege properly that the defendant has committed the alleged wrongful acts "with such frequency as to indicate a general business practice.” Her claim, therefore, must fail.

The judgment is affirmed.

In this opinion, Heiman, J., concurred.

Daly, J.,

concurring in part and dissenting in part. I concur with the well reasoned majority opinion sustaining the motion to strike counts one, three, four, five, six, seven and eight of the plaintiff’s amended complaint. As to count two, however, the trial court’s granting of the defendant’s motion to strike should be reversed because the complaint stated a cause of action pursuant to General Statutes § 31-290a.

The majority opinion correctly sets forth our standard of review of a trial court’s motion to strike. “ ‘Where an appeal is taken from a judgment following the granting of a motion to strike, we take the facts to be those alleged in the amended complaint construed in a manner most favorable to the pleader.’ ” Biro v. Hill, 214 Conn. 1, 2, 570 A.2d 182 (1990), quoting Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980). On appeal, “all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” Amodio v. Cunningham, supra, 83. The motion to strike should be granted if the allegations in the complaint only allege legal conclusions unsupported by facts. Mora v. Aetna Life & Casualty Co., 13 Conn. App. 208, 211, 535 A.2d 390 (1988).

Count two, although inartfully drafted, alleged that the defendant acted in bad faith by “wrongfully discharging the plaintiff and thereby violating § 31-290a” because she sought workers’ compensation benefits from the defendant. Construing this allegation in the light most favorable to the plaintiff, it was sufficient to state a statutory cause of action under § 31-290a.

In D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217, 520 A.2d 217 (1987), the plaintiff’s allegation that “ ‘[t]he defendants negligently misrepresented the facts to the plaintiff, causing her damages as pled’ ” sufficiently stated a cause of action for negligent misrepresentation. Id. Our Supreme Court noted that “[although the complaint could have alleged the nature of the defendants’ negligence more precisely, the lack of linguistic specificity does not warrant striking the second count. As the Appellate Court noted, under the rules of practice governing pleading, a party may plead legal effect as long as the pleading ‘fairly [apprises] the adverse party of the state of facts which it intended to prove.’ Practice Book § 109; see Practice Book § 108.” Id., 220.

The allegations in count two of this case fairly apprised the defendant that the plaintiff intended to prove she was wrongfully discharged because she exercised her rights under the workers’ compensation act. Therefore, the allegations in count two stated a cause of action under § 31-290a. For these reasons, I respectfully dissent.

       Count two was incorporated, in its entirety, into counts three and four.

       This paragraph was incorporated by reference into each of the subsequent counts.

       Each of these new allegations was incorporated by reference into counts two, three and four of the amended complaint. Only paragraphs eight, eleven, twelve and thirteen were incorporated by reference into counts five, six, seven and eight.

       Because the trial court never addressed whether the factual allegations in the second count of the plaintiffs amended complaint were sufficient to allege a statutory cause of action, as discussed in the dissent, we do not address this issue.

       General Statutes § 31-284 (a) provides: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing therein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       We note that although the interpretation of our state statute by a federal court is not binding on us, it may be persuasive authority. See General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 213, 603 A.2d 385 (1992); Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 305, 472 A.2d 316 (1984).

       The plaintiff in Mead v. Burns, 199 Conn. 651, 655, 509 A.2d 11 (1986), had brought an action under CUTPA and CUIPA alleging that the defendant’s insurer knowingly and in bad faith refused to pay the plaintiffs claim without conducting a reasonable investigation based on all the available information.

       The court noted that the definition of “unfair claims settlement practice” in General Statutes (Rev. to 1989) § 38-61 (6) reflects the legislative determination that isolated instances of unfair insurance settlement practices are not so violative of the public policy of this state as to warrant statutory intervention. Mead v. Burns, 199 Conn. 651, 655, 509 A.2d 11 (1986).

       General Statutes § 31-290a provides in pertinent part: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
      “(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court . . . .”


author: O’Connell, J.

text:
    Department of Utilities of the City of Groton v. Leslie Carothers, Commissioner of Environmental Protection, et al.
    (10215)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued December 4, 1991
    decision released August 18, 1992

      Timothy D. Bates, with whom, on the brief, was Philip M. Dutton, for the appellant (plaintiff).

      Robert B. Teitelman, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).

      Lloyd L. Langhammer and Thomas B. Wilson filed a brief for the appellee (intervening defendant town of Ledyard).
   O’Connell, J.

This is the plaintiff’s appeal from the granting of the motion for summary judgment filed by the named defendant (commissioner), the effect of which was to deny the plaintiff a writ of mandamus. Three issues are raised on appeal, namely, whether (1) the Superior Court lacked subject matter jurisdiction to issue a writ of mandamus because the plaintiff had an adequate remedy at law, (2) the Superior Court lacked subject matter jurisdiction based on the prior pending action doctrine, and (3) the public hearing “closed” within the meaning of General Statutes § 22a-373 upon the conclusion of oral argument. We affirm the judgment of the trial court.

The parties submitted a stipulation of facts to the trial court. We summarize the stipulation as follows. The plaintiff applied to the commissioner for a water diversion permit pursuant to the Connecticut Water Diversion Policy Act. General Statutes §§ 22a-365 to 22a-378. A public hearing on the application was held on June 26, 1989, before hearing officer Clyde Fisher. On July 17, 1989, Fisher issued a proposed decision recommending approval of the plaintiffs application. Following the issuance of this proposed decision, exceptions, objections, briefs and requests for oral argument were filed, together with the naming of additional parties and requests for intervention all in accordance with § 22a-3a-l (e) (9) (C) of the Regulations of Connecticut State Agencies. As a result of this activity, the commissioner assigned the matter for oral argument which was held on September 25, 1989. On November 21, 1989, the commissioner issued her final decision denying the plaintiff’s application. The plaintiff took a timely appeal to the Superior Court from this decision. That appeal was still pending when the plaintiff brought this action for a writ of mandamus, seeking an order from the court directing the commissioner to issue the water diversion permit.

The plaintiff filed a motion for summary judgment followed shortly thereafter by a motion for summary judgment filed by the commissioner. The trial court, M. Hennessey, J., denied the plaintiffs motion and granted the defendant’s motion for summary judgment.

As a threshold matter, we must first consider the jurisdictional issues. The basis of both issues is the plaintiff’s administrative appeal from the commissioner’s decision. In the trial court, the commissioner moved to dismiss the mandamus action on the jurisdictional grounds that the appeal afforded the plaintiff an adequate remedy at law, and, further, that the appeal constituted a prior pending action. The trial court, Freed, J., denied the motion to dismiss. We agree with Judge Freed.

It is well settled law that a court may not entertain a mandamus action if the plaintiff has an adequate remedy at law. Caltabiano v. Phillips, 23 Conn. App. 258, 263-64, 580 A.2d 67 (1990). It is likewise well settled in Connecticut, however, that an appeal based on an administrative agency’s failure to render a timely decision does not constitute an adequate remedy at law so as to bar a mandamus action. Vartuli v. Sotire, 192 Conn. 353, 366, 472 A.2d 336 (1984). The reasoning of Vartuli is that, although the administrative appeal would result in a review of the administrative record, it would not necessarily result in the issuance of the permit itself. Thus, because only mandamus would secure the expedient and effective remedy of compelling the issuance of the permit, the appeal does not constitute an adequate remedy at law. As stated in Vartuli v. Sotire, supra, “[a]n adequate remedy is one that ‘enforces in some way the performance of the particular duty, and not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its nonperformance.’ ” Accordingly, we conclude that the appeal in this case did not constitute an adequate remedy at law.

At first glance, it also appears that the prior pending action doctrine would bar this mandamus action. “The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.” (Internal quotation marks omitted.) Halpern v. Board of Education, 196 Conn. 647, 652-53, 495 A.2d 264 (1985).

The case law. of this state, however, has departed from the broad principles of the prior pending case doctrine in its application to a situation involving an administrative appeal and a subsequent action seeking issuance of the extraordinary writ of mandamus. Our Supreme Court “in several cases has implicitly approved mandamus as an appropriate remedy where it is claimed that a subdivision plan has been automatically approved pursuant to § 8-26 because of the failure of a planning commission to perform its statutory duty within the prescribed time. ... In Vartuli v. Sotire, [supra, the Supreme Court] held that the pendency of a zoning appeal, which could do no more than secure approval of the coastal site plan, which already had been approved by operation of law, did not preclude resort to the more expeditious and effective remedy of mandamus in order to vindicate the plaintiffs’ right to the immediate issuance of a building permit. The situation is similar in [the case then before the Supreme Court] where the plaintiff claims that her subdivision plan has been approved pursuant to § 8-26 by virtue of the inaction of the commission. If the plan has been approved by operation of law, as [the plaintiff] contends, her right to certification of its approval by the commission can most directly, completely and expeditiously be effectuated by mandamus.” (Citations omitted; internal quotation marks omitted.) Merlo v. Planning & Zoning Commission, 196 Conn. 676, 680-81, 495 A.2d 268 (1985). The principle enunciated in Merlo is directly applicable to the present case. Accordingly, we conclude that the prior pending case doctrine is not a bar to this mandamus action and we will consider the case on its merits.

Pursuant to General Statutes § 22a-373 (a) and (d), the commissioner is required to issue her decision within 120 days of the close of the hearing and failure to render a decision within 120 days shall be deemed a granting of the application. This appeal turns on our construction of the phrase “the close of the hearing.”

The plaintiff claims that the 120 day period started running on June 26, 1989, when the hearing officer declared the hearing closed. Computed from June 26, the commissioner’s decision would be late and, the plaintiff’s application would statutorily be deemed granted. Acting on its theory that the application was thus granted by operation of law, the plaintiff brought this action to compel the commissioner to issue the diversion permit. The commissioner, on the other hand, contends that the 120 day period did not commence until the conclusion of oral argument on September 25, 1989. If this is the correct date, the commissioner’s November 21,1989 decision was well within the statutorily mandated 120 days.

The plaintiff emphasizes the declaration of hearing officer Fisher when he finished hearing witnesses and taking evidence on June 26,1989. Fisher stated in relevant part “so the hearing is now closing, as far as evidence is concerned and the matter is in my hands to make a proposed decision.” (Emphasis added.) He clearly and unambiguously announced only that the evidence receiving portion of the hearing was over and that the hearing would progress to the next stage, which entailed the hearing officer’s preparation and submission of a proposed decision. This is consistent with what in fact transpired. Further evidence was never submitted. This did not, however, close the hearing within the meaning of § 22a-373 (a).

General Statutes § 22a-372 (d) authorizes the commissioner to adopt regulations establishing rules of practice and procedure for these hearings. Pursuant to this authority, the commissioner adopted regulations that expressly provide for the postevidentiary proceedings that occurred in the present case. Moreover, regulation § 22a-3a-l (a) (5) (C) (1) expressly establishes when the record shall be deemed closed in a contested case. A contested case is defined by General Statutes § 4-166 (2) as a proceeding “in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . .” Because a hearing was in fact held in this case and because General Statutes §§ 22a-368 (b) and 22a-373 require the commissioner to determine whether the plaintiff was entitled to a water diversion permit, this case falls within the definition of a contested case. Thus, regulation § 22a-3a-l (a) (5) (C) (1) governs the proceedings that occurred in this case. The regulation provides that the record shall be deemed closed “upon the close of oral arguments and the expiration of any time period granted by the commissioner to submit briefs or other documents . . . .”

The commissioner contends that the phrases close of the record and close of the hearing are to be interpreted consistently. We agree. Our courts give great deference to the construction of a statute by the agency charged with its enforcement. State v. Lang, 23 Conn. App. 272, 277, 580 A.2d 71 (1990). Reading the statute and regulations together, and giving appropriate deference to their interpretation by the department of environmental protection, we conclude that the 120 day period for rendering the commissioner’s decision began to run at the close of argument on September 25, 1989.

This conclusion is in accord with the policy considerations that influenced our Supreme Court in Frank v. Streeter, 192 Conn. 601, 472 A.2d 1281 (1984), where the court held that the completion date of a trial occurs upon the submission of briefs to the trial court. In reaching this conclusion, the court noted that “[w]hen litigation raises difficult questions of law, a trial court is well-advised to request briefs and to defer its written decision until such time as the court has had the opportunity to deliberate and to reach a thoughtful, reasoned conclusion.” Id., 605, citing the National Conference of State Judges, The State Trial Judge’s Book, 194 (1969). Likewise, when posttrial submissions are requested in administrative hearings, thoughtful and documented decisions can be made only after the conclusion of oral argument and the submission of the posthearing briefs.

In Carr v. Trotta, 7 Conn. App. 272, 508 A.2d 799 (1986), this court concluded that an arbitrator had filed a timely decision when it was filed within the mandated period from the receipt of briefs, as opposed to the conclusion of receipt of evidence. This followed an identical result reached by the Supreme Court in C. F. Wooding Co. v. Middletown Elk’s Home Corporation, 177 Conn. 484, 418 A.2d 904 (1979), in which the court ruled that the thirty day period for filing an arbitrator’s decision began to run from the date on which briefs were actually received by the arbitrator. We are unable to discern any reasonable distinction between the duties of a decision maker following an administrative hearing, an arbitrator after an arbitration proceeding, or a judge following a trial to the court. In all of these situations, the time limit for rendering a decision should not begin to run until the presentation of all of the elements to be considered in rendering the decision is completed.

The purpose of filing briefs is to influence the decision maker in making his decision. It is not reasonable to require the decision maker to commence preparation of his decision before he has the parties’ written arguments. Were the law to require a decision maker to commence preparation of his decision prior to receipt of the briefs, it would deprive the parties of the opportunity to influence the outcome.

Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 538 A.2d 1039 (1988), on which the plaintiff relies, is inapposite. Frito-Lay involved posthearing arguments that continually erupted during an unrelated zoning hearing. Nothing of the sort is present here.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named defendant is the commissioner of environmental protection; the other defendants are the Ledyard town council and the Ledyard inland wetlands and watercourses commission. The town of Ledyard subsequently filed a request for intervention, a brief in opposition and a request for oral argument. The court granted these requests.

       Paragraphs four through fifteen of the parties’ stipulation of facts state: “4. On June 26,1989, after hearing witnesses and taking evidence, Hearing Officer Clyde Fisher concluded the receipt of evidence. Hearing Officer Clyde Fisher stated ‘in discussion with all the parties, none of them sees a need to submit proposed finding[s], conclusions of law or any supplemental statements of position so the hearing is now closing, as far as evidence is concerned and the matter is in my hands to make a proposed decision.’
      “5. On July 5,1989, the Ledyard Inland Wetlands and Watercourses Commission and Ledyard Town Council were named parties to this proceeding under the rules.
      “6. On July 17, 1989, after the public hearing, Hearing Officer Clyde Fisher issued a proposed decision recommending approval of the Plaintiff’s application.
      “7. On July 17, 1989, Mr. David S. Knishkowy, Director of the Adjudication Unit of the Department of Environmental Protection, wrote a letter to the parties requiring them to file within fifteen (15) days of the proposed decision any briefs, exceptions or requests for oral argument in accordance with Section 22a-3a-l (e) (9) (C) Conn. Agencies Regs.
      “8. On August 1,1989, a request for intervention was filed by the Town of Ledyard. Further, on August 1,1989, the Town of Ledyard filed a brief in opposition to the proposed decision and took exception to the proposed decision, requesting oral argument.
      “9. On August 16,1989, request for oral argument on the proposed decision was granted. In accordance with the provisions of Section 22a-3a-l (e) (9) (C) Conn. Agencies Regs., oral argument was scheduled for September 25,1989.

        “10. On August 16, 1989, the Commissioner designated Mr. Hugo Thomas, Bureau Chief of the DEP Bureau of Environmental Services, to hear oral argument.
      “11. The Town of Ledyard raised comments and concerns in its briefs submitted September 18, 1989.
      “12. On September 25,1989, the appearing parties presented their positions on the matter at oral argument.
      “13. On September 25,1989 the Town of Ledyard filed objections to the Plaintiffs brief.
      “14. The Plaintiff replied to the Town of Ledyard’s comments and concerns on September 29, 1989.
      “15. November 21, 1989, the DEP issued its final decision denying the Plaintiffs application referred to in Paragraph 3 above.”

       The Regulations of Connecticut State Agencies § 22a-3a-l (e) (9) (c) provides: “A party shall submit any exception, brief or request for oral argument to the commissioner, in writing, not later than fifteen (15) days after service of the proposed decision upon said party, unless otherwise provided in the proposed decision.”

       General Statutes § 22a-373 states in pertinent part: “(a) The commissioner shall, within one hundred and twenty days of the close of the hearing, make a decision either granting or denying the application as deemed complete in section 22a-371, or granting it upon such terms, limitations or conditions, including, but not limited to, provisions for monitoring, schedule of diversion, duration of permit and reporting as he deems necessary to fulfill the purposes of sections 22a-365 to 22a-378, inclusive. The commissioner shall state in full the reasons for his decision. . . .
      “(d) If a decision is not made in the time required pursuant to subsection (a) of this section, the application shall be deemed granted.”

       The fact that the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-180 (a), requires a decision within ninety days is irrelevant because the UAPA is a statute of general application to be relied on where there is not a specific statute applicable to an individual agency. As stated in Reed v. Planning & Zoning Commission, 12 Conn. App. 153, 158, 529 A.2d 1338 (1987), aff’d, 208 Conn. 431, 544 A.2d 1213 (1988), “provisions of special applicability take precedence over those of general applicability.”

       See footnote 4, supra.

       General Statutes § 22a-372 (d) provides: “The commissioner shall adopt regulations in accordance with chapter 54 establishing rules of practice and procedures for hearings held pursuant to this section.”

       The Regulations of Connecticut State Agencies § 22-3a-l (a) (5) (C) provides: “In a contested case, the record shall be deemed closed (1) upon the close of oral arguments and the expiration of any time period granted by the commissioner to submit briefs or other documents, or (2) if after issuance of a proposed decision under subsection (e) (9) of this section no party makes a timely request for oral argument and no time period is granted to submit briefs or other documents, fifteen days after service of the proposed decision, or (3) if a hearing is held but a proposed decision is not required by section 4-179 of the general statutes, upon the close of the hearing or a reasonable time thereafter as specified by the hearing officer. In any other case, the record shall be deemed closed thirty (30) days after the receipt of a complete application by the department or publication of a notice of application, whichever is later.”