author: Covello, J.

text:
    State of Connecticut v. Robert Drouin
    (4773)
    (4832)
    Hull, Spallone and Covello, Js.
    Argued April 7
    decision released August 18, 1987

      Austin J. McGuigan, with whom were Lisa J. Barry andM. Daniel Friedland, for the appellant (defendant in both cases).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were Carl Taylor, assistant state’s attorney, and Cheryl Petrucci, law student intern, for the appellee (state).
   Covello, J.

The dispositive issue in this case is whether the circumstances, length and content of the court’s examination of the defendant before the jury constituted error. We conclude that it did and order a new trial.

On June 2,1985, police officers stopped the defendant in his automobile in response to a complaint by a former girlfriend that the accused was harassing her. In the course of taking him into custody, a scuffle occurred which the officers claimed was the product of the accused’s resistance to a lawful arrest.

The defendant testified in his own behalf, claiming that not only was he not the aggressor, but, in reality, he had been the victim of a totally unwarranted police assault. In support of his claim he introduced the record of his emergency room examination and treatment and a series of photographs of his face and body taken shortly after the incident. In view of the conflicting claims as to what had occurred, the credibility of the witnesses was the key factual issue confronting the jury.

The examination and cross-examination of the defendant was lengthy. Its content occupies 103 pages of the transcript. At the conclusion of this examination, the court embarked on its own examination of the accused which occupies an additional 14 pages of text. The questions focused on the accused’s version of how he was struck with a police baton. The court thereafter, had the accused show the jury where in the photographs there could be seen the results of his alleged beating. The form, length and extent of the examination make it evident that the court had doubts concerning the accused’s credibility.

Early decisions have afforded the trial court sound discretion to ask repeated questions of a witness. “The judge must be in a position to comment upon the facts fully and intelligibly to the jury. He must be able to accurately determine whether a verdict should be directed, or if rendered it should be set aside. To perform these judicial functions understandingly he must be permitted to ascertain by questioning what the facts are, and to test the credibility of the witness. Not alone as a help to him but as a help to the jury, he must be permitted to question the witness and place before the jury the facts in their true relation and to give them the opportunity to judge the credibility of the witness. ’ ’ (Emphasis added.) State v. Cianflone, 98 Conn. 454, 468, 120 A. 347 (1923). “Whether or not the trial judge shall question a witness is within his sound discretion. The extent of the examination is likewise within his sound discretion. Its exercise will not be reviewed unless he has acted unreasonably, or, as it is more often expressed, abused his discretion.” Id., 469.

This strong position authorizing a wide role to be taken by the court in the questioning has been eroded in recent decisions, however, where the issue involves credibility. See State v. Smith, 200 Conn. 544, 550, 512 A.2d 884 (1986); State v. Fernandez, 198 Conn. 1, 15, 501 A.2d 1195 (1985); State v. Camerone, 8 Conn. App. 317, 325, 513 A.2d 718 (1986).

The prevailing view now is that “[wjhere credibility [is] so significant ... a trial judge should eschew an examination of a key witness which might easily have given the jury the impression that the court had doubts concerning the truthfulness of his testimony on a crucial issue.” State v. Fernandez, supra, 15. “[T]he court should avoid questioning witnesses in a manner that reflects in any fashion on their credibility.” State v. Smith, supra, 550.

“Due process requires that ‘there should be no questioning that appears to reject a defendant’s credibility and implies judicial support of a prosecution witness’ testimony. . . .’ State v. Fernandez, [supra, 12].” State v. Camerone, supra, 325.

The state claims that the court’s subsequent charge to the jury to make its own judgments concerning credibility, eliminated the effects of any alleged prejudicial questioning. “[T]his court has traditionally given great weight to curative instructions in assessing a defendant’s claim of prejudice. . . .” State v. Smith, supra, 552. “ ‘[A] curative instruction is not inevitably sufficient to overcome . . .’ the impact of prejudice. State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980) . . . .” State v. Fernandez, supra, 17. We find the relevant instruction here to be of no greater moment than the instruction rejected by the court in State v. Fernandez, supra. Accordingly, “we are persuaded . . . that the prejudicial impact of the examination [by the court] . . . has probably overborne reasonable juror conscientiousness [and we must] decline to accept the claimed efficacy of a curative instruction. This is one of those rare cases when we are so persuaded.” State v. Fernandez, supra, 17-18.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       As the result of the defendant’s conviction for the offenses which are the subject matter of this appeal (Docket No. 4773), he was found to be in violation of a previously imposed term of probation incident to an earlier conviction. He was sentenced to serve the unexpired portion of the original term of imprisonment. He appealed that judgment to this court. (Docket No. 4832). Inasmuch as the first judgment (Docket No. 4773) is now set aside, there is no longer any factual basis for the conclusion that a probation violation has occurred. Therefore the appeal in the second ease (Docket No. 4832) is sustained, the judgment is set aside and the case remanded for further proceedings.

       “The Court: Now, this is the same type of instrument that you were beaten on the back with, is that correct?
      “Mr. Drouin: Yes.
      “The Court: And beaten on the top of the head?
      “Mr. Drouin: Yes.
      “The Court: But there’s no evidence — 1 mean, you can’t see that because your hair covers it, is that correct?
      “Mr. Drouin: All right. . . .
      “The Court: Now, that instrument went into your eye and can you show me any — any black and blue marks around your eyes?
      “Mr. Drouin: Right there (indicating).
      “The Court: Is that the black and blue?
      “Mr. Drouin: The yellow and red there (indicating). Can you see it?
      “The Court: Well, maybe I can see it in the other eye, too ... .

      “The Court: . . . Show the black and blue marks then, would you?
      “Mr. Drouin: The marks where they —
      “The Court: No, not the marks. The black and blue marks. I mean, that’s what a beating with a club would cause, isn’t it? Aren’t those abrasions?. . .

      “The Court: Didn’t the doctor say that these were abrasions on your back. He didn’t say these were any ecchymoses or —
      “Mr. Drouin: Yes.
      “The Court: —ecchymosis.
      “Mr. Drouin: Right in the report, your honor.
      “Mr. Friedland: It’s right in the report, your honor.
      “The Court: Show me where it is.
      “Mr. Friedland: I’ll show it to you.
      “The Court: On his back?
      “Mr. Drouin: Yeah.
      “Mr. Friedland: ‘Ecchymosis over back — abrasions and ecchymosis over back.’
      “The Court: All right.
      “Mr. Friedland: It’s right in the report.
      “The Court: Show it to me in the photograph. That’s what I want to see. . . .” (Emphasis added.)

       The trial court’s instruction provided in part: “If I have made any reference to the position of the state or the accused, I assure you it is not my intention to convey to you directly or indirectly how the court feels as to what should be the outcome of the case.
      “I might point out that during the trial any comments made by the court or any questions asked by the court are not intended to in any way convey the court’s impression of this case as to whether the defendant is guilty or not guilty of any of the charges against him. You’re not to make that surmise. The decision in this case as to the facts rests in your hands and in your hands alone.”

       “[Y]ou are not to infer or take any meaning from the intonation of my voice or the manner in which the court has replied to or spoken to counsel or witnesses in the course of the trial. Be as objective and as fair as you can in weighing the credibility of the witnesses you have heard. Do not feel, as a result of any questions I may have asked any witness, that I have endorsed, accepted, or rejected so much of the testimony which I inquired about, as it is in no way intended to remove the testimony from your consideration as to its credibility.” See State v. Fernandez, 198 Conn. 1, 16-18, 501 A.2d 1195 (1985).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Brady Brown, Sr. v. Town of Branford
    (4694)
    Spallone, Bieluch and Berdon, Js.
    Argued March 10
    decision released August 18, 1987

      Jarvis White, with whom, on the brief, was Fred H. White, Jr., for the appellant (plaintiff).

      Vincent J. Beirne, for the appellee (defendant).
   Spallone, J.

The plaintiff appeals from the judgment rendered after the trial court granted the defendant’s motion to strike. The plaintiff claims that the trial court erred in striking both counts of the two count complaint because (1) the first count properly alleged wilful and intentional negligence, and (2) the second count properly alleged a positive act by the defendant that created liability for nuisance. We find no error.

On December 8, 1980, while walking along property owned by the defendant town of Branford, the plaintiff was struck by a motorcycle being driven by an unidentified youth. On August 20, 1982, the plaintiff brought this action in two counts. In the first count, the plaintiff sought to hold the defendant liable on the ground that it failed adequately to police and supervise the area. In his second count, the plaintiff claimed a right of recovery under the theory of nuisance.

The plaintiff filed an amended complaint on February 6, 1984, after the trial court had granted the defendant’s motion to strike. In response to this amended complaint, the defendant filed a second motion to strike on September 6, 1984. This second motion was not acted on by the trial court because the plaintiff again amended his complaint. In response to this last amendment, the defendant filed a third motion to strike, which was scheduled for hearing at short calendar. This third motion to strike was granted by the court when the plaintiff failed to appear at the hearing. Although the record reveals that the plaintiff filed a memorandum opposing the motion to strike on the day of the hearing, the memorandum was not in the trial court file when the trial court granted the motion.

The plaintiff subsequently filed a motion to reargue the third motion to strike. The trial court granted the motion to reargue and, after a hearing, again granted the motion to strike on September 10,1985. This appeal ensued.

I

The plaintiff first claims that the trial court erred in striking count one because that count properly alleged “willful, wanton and intentional negligence.” To decipher the scope of the plaintiffs allegations, it is necessary to put these terms in context. The term “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.’ ” Mingaclos v. CBS, Inc., 196 Conn. 91, 101, 491 A.2d 368 (1985), quoting 1 Restatement (Second), Torts § 8A (1965). “Wanton” misconduct “ ‘is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action.’ ” Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985), quoting Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136 (1929). See also State v. Alterio, 154 Conn. 23, 26, 220 A.2d 451 (1966) (wanton misconduct equated with wilful misconduct). Finally, negligence has long been defined as “the failure to use that degree of care for the protection of another that the ordinarily reasonably careful and prudent [person] would use under like circumstances.” Temple v. Gilbert, 86 Conn. 335, 340, 85 A. 380 (1912). See also Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 501, 365 A.2d 1064 (1976); State v. Russo, 38 Conn. Sup. 426, 431, 450 A.2d 857 (1982). It signifies “a want of care in the performance of an act, by one having no positive intention to injure the person complaining of it.” Pitkin v. New York & New Eng. R.R. Co., 64 Conn. 482, 490, 30 A. 772 (1894). Because the plaintiff has used these incompatible terms in a single count, we must determine under which theory the plaintiff was pleading. See Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970) (negligence and wilful and wanton misconduct are separate and distinct causes of action).

In paragraph six of his amended complaint, the plaintiff alleges that the harm done to him “was due to the willful and wanton negligence and carelessness of the defendant, its employees, servants and/or agents.” This paragraph lists five circumstances in which the defendant allegedly failed to act, which the plaintiff alleges were done “intentionally and knowingly.” Paragraph seven then states that “[a]s a result of the negligence of the defendant as aforesaid,” (emphasis added) the plaintiff received certain injuries.

In its memorandum of decision, the trial court, indicated that the plaintiff’s “change in characterization” of the acts previously described as negligent did not further the plaintiff’s position. We agree. A plaintiff cannot transform a negligence count into a count for wilful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence. See Kostiuk v. Queally, supra, 94; Dumond v. Denehy, 145 Conn. 88, 90-91, 139 A.2d 58 (1958). In this case, the plaintiff’s injection of the words “intentionally and knowingly” in his amended complaint failed to constitute additional factual allegations that would alter the nature of the conduct complained of. In the absence of such additional factual allegations, therefore, we construe the plaintiff’s first count as sounding in negligence.

Having determined that the allegations set forth by the plaintiff in his first count create a cause of action sounding in negligence, we must now decide whether the trial court erred in striking this count. In doing so, “we must take the facts to be those alleged in the plaintiff’s complaint as amended, and must construe the complaint in the manner most favorable to the pleader.” Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 (1980); Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980). In its memorandum of decision, the trial court found that the plaintiff’s cause of action in negligence was barred by the doctrine of governmental immunity.

It has long been the law in Connecticut that “[a] municipality is immune from liability for the performance of governmental acts, as distinguished from ministerial acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.” Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). See also Tango v. New Haven, 173 Conn. 203, 204-205, 377 A.2d 284 (1977); Lambert v. New Haven, 129 Conn. 647, 649, 30 A.2d 923 (1943); Richmond v. Norwich, 96 Conn. 582, 588, 115 A. 11 (1921). A fair reading of the allegations reveals that the plaintiff is complaining of the failure of the defendant to undertake various actions of a police nature. See Wysocki v. Derby, 140 Conn. 173, 175, 98 A.2d 659 (1953) (city’s management of public park is a governmental function). The promotion of the comfort, safety and the overall welfare of the general public constitutes a recognized public service; Katz v. Brandon, 156 Conn. 521, 532, 245 A.2d 579 (1968); and such public service indisputably involves the exercise of police power which is “ ‘the supreme power of government.’ ” Barnes v. New Haven, 140 Conn. 8, 16, 98 A.2d 523 (1953). See also 18 E. McQuillan, Municipal Corporations (3d Ed. Rev,) § 53.22c. “Liability for the negligent performance of a purely public governmental duty may occur only when a statute so provides.” Wysocki v. Derby, supra, 175. Since there is no statutory exception to the application of the doctrine of governmental immunity in this case, we cannot say that the trial court erred in striking the first count of the plaintiff’s complaint.

II

The plaintiff’s second claim of error is that the trial court erred in striking the second count of the amended complaint. This count alleged that the defendant was liable under the theory of nuisance.

A Connecticut municipality may be liable for a nuisance only when “it was created by some positive act of the municipality.” Lukas v. New Haven, 184 Conn. 205, 209, 439 A.2d 949 (1981). For the plaintiff to have set forth a legally sufficient claim in the second count, he was required to allege sufficient facts to establish that the town of Branford undertook a positive act which created the nuisance complained of.

Paragraph thirteen of the plaintiffs complaint, although perfunctorily stating that “the said nuisance was deliberately created by the defendant,” recites nothing but a litany of acts amounting at most to a permissive continuation of the alleged nuisance. Our Supreme Court has drawn a distinction between the creation of a nuisance and the intentional maintenance of a nuisance, holding that a “[failure to remedy a dangerous condition not of the municipality’s own making is not the equivalent of the required positive act.” Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975). See also Brennan v. West Haven, 151 Conn. 689, 693, 202 A.2d 134 (1964); Sheeler v. Waterbury, 138 Conn. 111, 116, 82 A.2d 359 (1951).

A reading of the allegations in the light most favorable to the plaintiff discloses that the nuisance, if any, was created by the behavior of the youths who congregated in the area where the plaintiff was walking. There is no logical nexus by which to attribute any of the acts of the youths to the defendant. The trial court, therefore, was correct in finding the plaintiff’s second count insufficient as a matter of law. See Murray v. Milford, 380 F.2d 468 (2d Cir. 1967); Karnasiewicz v. New Britain, 131 Conn. 691, 42 A.2d 32 (1945); Bacon v. Rocky Hill, 126 Conn. 402, 11 A.2d 399 (1940).

There is no error.

In this opinion the other judges concurred.

       The plaintiff’s original complaint alleged in paragraph six that the accident “was due to the negligence and carelessness of the defendant, its employees, servants and/or agents.” After two motions to strike by the defendant and two amended complaints by the plaintiff, the only relevant change to this allegation was that the accident was caused by “the willful and, wanton negligence and carelessness” (emphasis added) of the defendant.

       Paragraph 6 of the plaintiff’s final amended complaint reads:
      “6. Said occurance [sic] was due to the willful and wanton negligence and carelessness of the defendant, its employees, servants and/or agents in one or more of the following respects:
      “(a) The defendant intentionally and knowingly failed to maintain adequate and effective police patrols in the Branford Supply Pond area;
      “(b) The defendant intentionally and knowingly failed to arrest and prosecute criminal violations in the Branford Supply Pond area;
      “(c) The defendant intentionally and knowingly failed to investigate and/or act upon resident and eye witness complaints in the Branford Supply Pond area;
      “(d) The defendant intentionally and knowingly failed to take any reasonable action that would alleviate the aforementioned conditions;
      “(e) Said conditions were knowingly and intentionally allowed by the defendant to persist and so create a dangerous situation toward individuals and property in the area of the Branford Supply Pond, because the defendant intentionally and deliberately encouraged and promoted the said youth activity conditions to exist in the area of the Branford Supply Pond so that the conditions would not spread to or exist in other, more preferential areas of the town of Branford such as the Branford Green, and down town Branford area.” (Emphasis added.)

       Because it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant was not required to plead governmental immunity as a special defense and could attack the legal sufficiency of the complaint through a motion to strike. See Trzaska v. City of Hartford, 12 Conn. Sup. 301, 302 (1943).

       Paragraph thirteen of the plaintiffs final amended complaint provides in part: “The condition constituting the said nuisance was deliberately created by the defendant, its employees, servants and/or agents in one or more of the following respects.” The remainder of this paragraph states essentially the same allegations found in paragraph six, subsections (a) to (e) in the first count of the complaint. See footnote 2, supra.

       Paragraph four of the plaintiffs amended complaint described the condition alleged to be a nuisance as follows: “On said date, and for a long time prior thereto, there existed in said area of public land known as Bran-ford Supply Pond, an unsafe and dangerous condition which was the source of numerous complaints from area residents, in that it has been used and frequented by youths from Branford and surrounding towms as a motorcycle race course and as an area where they could congregate, drink alcohol, use drugs and carouse not subject to any control.”


author: Borden, J.

text:
    Richard O’Bymachow v. Debra Lee O’Bymachow
    (4582)
    Bokden, Daly and Bieluch, Js.
    Argued January 5
    decision released August 18, 1987

      William H. Cashman, for the appellant (defendant).

      HughH. Keefe, with whom, on the brief, were Charles E. Tiernan III and Patrick Filan, for the appellee (plaintiff).
   Borden, J.

This case is a sequel to our decision in O’Bymachow v. O’Bymachow, 10 Conn. App. 76, 521 A.2d 599 (1987). There we found error in the trial court’s refusal to hear the defendant’s motion to open its judgment denying the defendant’s motion for modification of an earlier judgment of dissolution. That motion to open was based on an allegation of fraud, and the court’s refusal to hear the motion was based on the fact that the judgment which the defendant sought to open was on appeal. Id., 76-77.

We ordered the trial court to hear the defendant's motion to open promptly, and retained the defendant’s original appeal on our docket pending the results of that hearing. Id., 78-79. Upon remand, the trial court denied the defendant’s motion to open, finding that she had not established fraud. The defendant has specifically waived her right to appeal from that determination. We turn, therefore, to the merits of the defendant’s original appeal.

The defendant appeals from the denial by the trial court, Clark, J., of her motion to modify that portion of the judgment of dissolution, Ottaviano, J., relating to unallocated alimony and support. The trial court concluded that the defendant had failed to show the necessary substantial change of circumstances. This appeal followed.

After a hearing held on October 1, 1985, the trial court on October 7, 1985, made the following specific factual findings. Pursuant to the original judgment, dated July 6,1982, the plaintiff was ordered to pay the defendant $450 per month as unallocated alimony and support for their minor child, who was then one year old. The defendant did not file an affidavit at that time. In 1982, she was working two part-time jobs, and earning $187 per week. The court further found that she now works two part-time jobs, and earns $240 per week. One of her jobs, the court found, is as a school nurse; and, the court found, she is a registered nurse with special training as a nurse anesthetist but is not working at that specialty.

The court also found that the plaintiffs net income in 1982 was $330 per week, and is now $340 per week. His employment is unchanged, he drives the same car as in 1982, and he carries the same amount of life insurance. He no longer owns $30,000 worth of stock which he owned in 1982, and his liabilities have increased by $76,000. The court also specifically found that, with reference to the parties’ financial condition, “[t]he only items that have changed since the date of the dissolution were the pieces of real estate owned by the defendant and owned by the plaintiff,” and that “[t]he only change of circumstances that [the] defendant has shown is that she has a man living in the house with her.”

It is not necessary to address each of the six claims of error raised by the defendant. We conclude that, because of the coalescence of the merits of three of these claims, the “underpinning of the [court’s] decision is not sound”; Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 423, 479 A.2d 826 (1984); and that a new hearing is required.

“We recognize that a party seeking modification of financial orders incident to a marital dissolution judgment must clearly and definitely establish an uncontemplated substantial change of the circumstances of either party which demonstrates that continuation of the prior order would be unfair and improper. Wingerd v. Wingerd, 3 Conn. App. 261, 262, 487 A.2d 212 (1985). We also recognize the well established standard of review in this court of the trial court’s actions in such matters. We do not substitute our judgment for that of the trial court. Vanderlip v. Vanderlip, 1 Conn. App. 158, 159, 468 A.2d 1253 (1984). Great weight is due the action of the trial court, which will not be disturbed unless the court has abused its discretion or its finding has no reasonable basis in the facts. Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987); Wingerd v. Wingerd, supra, 263." Fabiano v. Fabiano, 10 Conn. App. 466, 469, 523 A.2d 937 (1987). As in Fabiano, we conclude that the defendant did carry her burden of establishing an abuse of the court’s discretion in denying her motion for modification.

First, two sets of the court’s specific findings are unsupported by the evidence in the case and are clearly erroneous. There is simply no evidence whatsoever to support the findings of the court that the defendant works as a school nurse, that she is a registered nurse with special training as a nurse anesthetist, and that she is not working at that specialty. Indeed, the defendant’s financial affidavit, filed on the date of the modification hearing, indicates that she works at two commercial establishments, namely, “Kleban’s” and “Wild Bill’s.” We can only conclude that the court must have confused the defendant with a party in another case. The court’s factual conclusion that the defendant has a man living in the house with her is similarly flawed. The only evidence to support such a finding was that, since February, 1985, a man with whom the defendant has a relationship stayed overnight at her house an average of three nights per week, and took the defendant and her daughter to Vermont to ski during the winter weekends. This evidence is insufficient to establish that the defendant was living with this man. See Kaplan v. Kaplan, 186 Conn. 387, 441 A.2d 629 (1982).

The plaintiff argues that any errors in these findings of the court are harmless, because the finding regarding the amount of the defendant’s weekly earnings, namely, $240, was supported by the evidence, and because the court’s finding regarding the defendant’s relationship with another man did not result in a decrease in her alimony. See General Statutes § 46b-8 (b); Kaplan v. Kaplan, supra. The error as to the nature of the defendant’s employment, and its implicit reference to her earning capacity, and the error as to the nature of her relationship with the other man, might in isolation be harmless. Taken together, however, and taken with the other errors made by the trial court, they undermine appellate confidence in the court’s fact finding process, and contribute to our conclusion that a new hearing is required.

Second, the court’s finding that, with respect to the financial condition of the parties, the only changes involved the pieces of real estate owned by them, is inconsistent with undisputed critical facts in the record. In October, 1982, the plaintiff was the sole owner of two businesses, and listed them on his financial affidavit at values “unknown.” The summary of assets on his October 1982 affidavit reflected no values for them. The plaintiff’s affidavit, submitted in October, 1985, in connection with the defendant’s motion for modification, disclosed a total value of the two businesses of approximately $202,000. The plaintiff, called as a witness by the defendant, testified that in 1982 the businesses were in fact worth $260,000, or approximately $50,000 more than in 1985. The court’s decision implicitly involved a finding that the known values of the plaintiff’s businesses in October, 1985, when compared to the unknown or zero values as disclosed on the plaintiff’s October 1982 affidavit, does not constitute a substantial change of circumstances. We believe that such a finding is erroneous.

The defendant had the burden of establishing a substantial and unforeseen change of circumstances from the date of the judgment. Cersosimo v. Cersosimo, 188 Conn. 385, 405, 449 A.2d 1026 (1982). The issue presented by this set of facts is whether the financial base at the time of the judgment in October, 1982, is to be determined by reference to the values of the plaintiff’s businesses in October, 1982, as established in the October 1985 modification proceedings, or whether that base is to be determined by reference to the values, or lack thereof, attributed to them by the plaintiff at the time of the original judgment in October, 1982. We conclude that, for purposes of determining whether their values in 1985 constituted a substantial change of circumstances, those values must be compared to the values, or lack thereof, as represented in the 1982 proceedings.

In October, 1982, the plaintiff in effect attributed no value to his businesses on his financial affidavit. Both the defendant and the court were entitled to rely on that evidence at that time. See Grayson v. Grayson, 4 Conn. App. 275, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987). Presumably, that was one of the factors which induced the trial court, Ottaviano, J., to approve the agreement of the parties. Furthermore, since the plaintiff was the owner of the businesses, he had the easier access to the information as to their values, and thus he had the greater obligation to present that information both to the court and to the defendant. Under these circumstances, it would be unfair and inequitable to permit him in October, 1985, to take advantage of values which he did not disclose in October, 1982. To put it another way, in establishing a change of circumstances, the defendant was entitled to take as a starting point the values of the businesses as displayed to her and to the court at the time of the original judgment. Viewed through this lens, the increase in the values of the plaintiffs businesses from “unknown” or zero in October, 1982, to $202,000 in October, 1985, must be viewed as substantial and unforeseen.

Third, the court’s findings effectively disregarded undisputed facts showing a substantial increase in the value of the plaintiff’s real estate. The plaintiff’s October, 1982 affidavit indicated as his sole real asset a one-half interest in the parties’ home in East Haven, valued at $12,500. His October, 1985 affidavit indicates a home in Branford valued at $525,000, which he owns jointly with his current wife, on which there is a mortgage of $150,000, yielding an equity owned by the plaintiff of $187,500. He testified that he purchased the Branford house in October, 1984, for $330,000, and had a contract in October, 1985, to sell it for $525,000. Even if we deduct the $50,000 unsecured loan from the plaintiffs sister; see footnote 4, supra; from the proceeds of the sale of the Branford home, the value of the plaintiffs real estate increased from $12,500 in October, 1982, to $162,500 in October, 1985.

This increase in the value of the plaintiffs real estate, namely $150,000, taken together with the attributed increase in the value of his wholly owned businesses of $202,000, indicates an increase in the value of these assets of $352,000 within three years. The court found that the plaintiffs earnings only increased from $330 per week in October, 1982, to $340 per week in October, 1985. In October, 1982, his total net assets were approximately $44,000. In October, 1985, his total net assets were approximately $373,000. Such a dramatic increase in the value of assets in such a short period of time, for a person of such moderate income, can only be considered as substantial and unforeseen.

There is error, the judgment denying the defendant’s motion for modification is set aside, and the case is remanded for a new hearing on that motion.

In this opinion the other judges concurred.

       At the conclusion of the hearing, the court orally denied the defendant’s motion, finding that “the defendant has failed to show a substantial change in circumstances. . . .” In response to the defendant’s motion for articulation, the court, on October 7,1985, issued a written memorandum of decision.

       The defendant testified that she was unrepresented by counsel in the initial dissolution proceedings. The plaintiff testified that it was his understanding that his attorney was representing both parties. The trial court file discloses no appearance for the defendant at the time of the original judgment, and an appearance only for the plaintiff.

       We note that General Statutes § 46b-86 (a) which provides for modification “upon a showing of a substantial change in the circumstances of eithei party,” has been repealed and substituted by Public Acts 1987, No. 87-104. That act states, in relevant part, that “modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court.” (Emphasis added.) This act is not effective until October 1,1987, and therefore does not affect this case.

       The plaintiff also subtracted from the value of this house a $50,000 loan, but admitted in his testimony that this was an unsecured “oral note” to his sister on which he made no payments.

       The plaintiff testified that his current wife contributed only $15,000 toward the $330,000 purchase price.

       This figure is derived by adding to the value of his businesses and real estate the value of various items of personalty shown on the plaintiffs 1985 affidavit. It is true that the trial court found that the plaintiffs liabilities had increased by $76,000 from 1982, but that finding is also erroneous. That figure is derived from comparing the plaintiffs 1982 and 1985 affidavits. The 1982 affidavit indicated total liabilities of $6000. The 1985 affidavit indicated total liabilities of $80,000. The $80,000 figure consists, however, of two components: (1) the $50,000 debt to his sister, which had already been deducted from the equity in his house; and (2) a $30,000 note payable, shown as a “House purchase loan.” The plaintiffs testimony indicates, however, that $15,000 of this $30,000 “loan” was in fact a draw from one of his wholly owned businesses, which was later changed to show as a loan on the books of the business. In any event, the repayment of this loan, which is not evidenced by any promissory note, is totally within his control, and even if it were repaid, it would be to his wholly owned businesses. We can hardly consider that a true liability.


author: Daly, J.

text:
    Clark-Franklin-Kingston Press, Inc. v. Thomas A. Romano et al.
    (4575)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 3
    decision released August 18, 1987

      John S. Pinney, with whom, on the brief, was Thomas E. Gaffey, for the appellant (plaintiff).

      Thomas R. Legenhausen, with whom, on the brief, were William J. Doyle and John J. Resnik, for the appellees (named defendant et al.).

      Robert W. Allen, for the appellee (defendant William Greene).
   Daly, J.

The plaintiff instituted this action claiming that the defendants were personally liable for a debt due and owing for printing services provided by the plaintiff to Old Guilford Forge, Inc. The issues of this appeal are whether the corporation was a de facto corporation during the time the debt accrued, and whether the plaintiff was estopped to deny its existence as a de facto corporation. From the judgment rendered in favor of the defendants, the plaintiff has appealed.

The parties stipulated to the following facts. Printing services were provided to Old Guilford Forge, Inc. (the corporation), between May, 1980, and August, 1982, in the amount of $110,588.82. The defendants were the stockholders, officers and directors of the corporation during that time. The corporation was dissolved by the secretary of the state in May, 1980, for failure to file two successive annual reports. In June, 1980, the defendants attempted to reinstate the corporation. The defendants incorrectly assumed that this attempt had been successful. In May, 1982, upon realizing that corporate status had not been reconferred, the defendants again attempted to reinstate the corporation and were successful in August, 1982.

Throughout the time that the debt accrued, the plaintiff believed that it was doing business with the corporation. The plaintiff addressed and sent all of its bills and invoices to the corporation, and payments totaling $54,154.70, were made between January, 1981, and June, 1982, on checks drawn on the account of the corporation. These checks were accepted by the plaintiff. The defendants, at all times, held themselves out as a corporation.

At all times relevant to this opinion, General Statutes § 33-387 provided: “(b) Whenever any corporation is in default of filing two successive annual reports, or whenever any corporation has not filed its first annual report during the two-year period following the date its certificate of incorporation was filed, the secretary of the state shall prepare and file in his office a certificate of dissolution by forfeiture stating that the delinquent corporation has been dissolved by forfeiture by reason of its default.”

The plaintiff asserted that since the corporation did not comply with this statute, it was dissolved and the individual defendants were, therefore, responsible for the printing services rendered during the time between forfeiture and reinstatement. The trial court found that the corporation was a de facto corporation during the interim time period and that the corporation, therefore, was responsible for the debt. Furthermore, the court found that the plaintiff was estopped to deny the corporation’s corporate existence.

The basic issue in this appeal is whether the court erred in holding that the defendants are not individually liable for the obligations of the corporation incurred during the period of time when the corporation was dissolved and before it was revived. The plaintiff asserts that the court erred (1) in applying the doctrine of de facto corporations, and (2) in holding that the plaintiff was estopped from denying the corporate existence of Old Guilford Forge. We disagree.

The plaintiff first challenges the trial court’s holding that the corporation was a de facto corporation during the time in question. The plaintiff asserts that Old Guilford Forge, Inc., cannot have been a de facto corporation during the period of dissolution because “once a de jure corporation is statutorily dissolved, it cannot thereafter be held to be a de facto corporation without abrogating the effect of those statutes which provide for, and define the effect of dissolution.” The trial court relied primarily on Chieppo v. Chieppo, 88 Conn. 233, 90 A. 940 (1914), and concluded that Old Guilford Forge, Inc., was a de facto corporation. We agree.

Both parties in this case acknowledge that the corporation was a de jure corporation prior to its statutory dissolution in May, 1980. The point of dispute, and the central question on appeal, is whether a once de jure corporation which has forfeited its charter and has had its powers suspended can continue to function as a de facto corporation.

General Statutes § 33-378 (f) provides in pertinent part: “the dissolution of a corporation shall not of itself render the shareholders liable for any liability or other obligation of the corporation. . . .” Thus, dissolution does not automatically relieve the corporate entity of corporate responsibility. In addition, the reinstatement statute provides in pertinent part: “[T]he reinstated corporation shall be estopped to deny its corporate existence during such time as its rights and powers were forfeited.” General Statutes § 33-388 (f). Thus, the corporation is statutorily deemed to have existed, at least as a de facto corporation, during the time of dissolution.

The basic rationale for the de facto doctrine is clearly applicable in this case. The defendants made a good faith effort to reincorporate after learning of the corporation’s dissolution. They then conducted business with the plaintiff as a corporation believing that they had a right to do so. The plaintiff dealt with the defendants only as a corporation believing them to be a corporation. Since both the plaintiff and the defendants regarded and relied upon the corporation’s existence and assets, it would be inequitable to impose personal liability upon the defendants merely due to a technical defect in the reinstatement process. Such personal liability would constitute an unfair windfall to the plaintiff who never relied on the individual defendants, and an unfair burden on the defendants who thought themselves incorporated and held themselves out as such.

The broad language of our Supreme Court buttresses this theory. “ ‘The corporation is a de facto corporation where there is a law authorizing such a corporation and where the company has made an effort to organize under the law and is transacting business in a corporate name.’ Cook, Corporations (8th Ed.) p. 773, § 234. ‘A de facto corporation is an apparent corporate organization asserted to be a corporation by its members and actually existing as such, but lacking the creative fiat of the State.’ Elliott, Private Corporations (4th Ed.) p. 77, § 72; 1 Thompson, Corporations (3d Ed.) § 266 and cases. ‘A de facto corporation ... is an association which actually exists for all practical purposes as a corporate body, but which, because of failure to comply with some provision of the law, has no legal right to corporate existence as against a direct attack by the State.’ 14 C. J. p. 204, § 215. ‘A corporation de facto is in plain English a corporation in fact. It can incur obligations as a corporation which do not bind those who associated to constitute it, in their individual capacities.’ ” DiFrancesco v. Kennedy, 114 Conn. 681, 687-88, 160 A. 72 (1932). In this case, the defendants clearly intended to function as a corporation, as evidenced by the fact that they had functioned as a de jure corporation and made an immediate good faith attempt at reincorporation upon learning of their dissolution. It follows, therefore, that the plaintiff did not, by reason of the defect in the reincorporation process, acquire any rights against the individual defendants. The acts of the plaintiff in this case, done in reliance on the corporate existence of the corporation, prevent it from now claiming that the defendants had no corporate existence.

It has been held in other jurisdictions that a de jure corporation which has forfeited its charter and has had its powers suspended, cannot continue to function as a de facto corporation. 19 Am. Jur. 2d, Corporations § 2885; see Chevron Oil Co. v. Clark, 291 F. Sup. 552, 561 (S.D. Miss. 1968), aff'd in part and rev'd in part, 432 F.2d 280 (5th Cir. 1970); Rogers v. Toccoa Power Co., 161 Ga. 524, 530, 131 S.E. 517 (1916); Clark v. American Cannel Coal Co., 165 Ind. 213, 217-18, 73 N.E. 1083 (1905); Bradley v. Reppell, 133 Mo. 545, 556, 32 S.W. 645 (1896). Connecticut has not yet ruled on this precise issue.

Some courts have also held that when a corporation continues to carry on as a corporation after dissolution, and does business beyond that necessary to wind up its affairs, those operating the corporation become' individually liable for corporate obligations. 19 Am. Jur. 2d, Corporations § 2887; See In re Hare, 205 F. Sup. 881, 883 (D. Md. 1962); Trubowitch v. Riverbank Canning Co., 30 Cal. 2d 335, 345, 182 P.2d 182 (1947); In re Estate of Plepel, 115 Ill. App. 3d 803, 806, 450 N.E.2d 1244 (1983); Borbein, Young & Company v. Cirese, 401 S.2d 940, 944 (Mo. App. 1966); Seavy v. I. X. L. Laundry Co., 60 Nev. 324, 331, 108 P.2d 853 (1941); Chatman v. Day, 7 Ohio App. 3d 281, 284, 455 N.E.2d 672 (1982); Bulova Watch Co. v. Roberts Jewelers, 240 S.C. 280, 285, 125 S.E.2d 643 (1962); First National Bank of Boston v. Silberstein, 398 S.W.2d 914, 916 (Tex. 1966). The precise question here, however, is whether there is an exception to this general rule where all parties involved believed there was corporate existence.

The plaintiffs second claim of error is that the court erred in finding that the plaintiff was estopped from denying Old Guilford Forge’s corporate existence. The defendants argue that since both parties believed that Old Guilford Forge was a viable legal corporation during the time the debt accrued and did business with each other in the same fashion as they had prior to that period, the plaintiff could not deny Old Guilford’s corporate existence. We agree.

General Statutes § 33-388, provides in pertinent part: “(a) At any time within three years after dissolution ... a corporation may be reinstated as provided in this section. . . .

“(f) Upon the filing of the certificate of reinstatement with the secretary of the state, reinstatement shall be effective, the corporate existence of the reinstated corporation shall commence and it shall be revested with its corporate rights and powers. . . . Any claim against the corporation barred as provided in section 33-379, and not otherwise barred, shall be relieved of such bar upon reinstatement of the corporation and the reinstated corporation shall be estopped to deny its corporate existence during such time as its rights and powers were forfeited.” (Emphasis added.) It would be inconsistent to hold that the plaintiff can deny the corporation’s existence while simultaneously holding that the reinstated corporation cannot deny its existence during the time its rights were forfeited, especially where the plaintiff believed it was dealing with a corporation. Don Rich Corporation v. Rossini, 1 Conn. App. 120, 122, 468 A.2d 1273 (1983).

Generally, one who has dealt with either a de facto or a de jure corporation is estopped to deny its corporate existence. 18A Am. Jur. 2d, Corporations § 262; see Lettinga v. Agristor Credit Corporation, 686 F.2d 442, 446 (6th Cir. 1982); Lamas v. Baldwin, 140 Ga. App. 37, 40-41, 230 S.E.2d 13 (1976); United States Vinegar Co. v. Schlegel, 143 N.Y. 537, 543, 38 N.E. 729 (1894). Indeed, West Winsted Savings Bank & Building Assn. v. Ford, 27 Conn. 282 (1858), provides early authority for the application of this doctrine in Connecticut.

We have concluded that Old Guilford Forge, Inc., was a de facto corporation during the time the debt accrued. Since it was a de facto corporation, the trial court properly applied the doctrine of corporation by estoppel, thereby insulating the individual defendants from liability. Any recourse that the plaintiff may have in this case is against the corporate entity.

There is no error.

In this opinion the other judges concurred.

       In Chieppo v. Chieppo, 88 Conn. 233, 90 A. 940 (1914), a de facto corporation was found to exist where the attempt to incorporate pursuant to statute had begun, but had not been completed at the time of the transaction in question. Chieppo arose under a statute which required that a certificate of incorporation be filed, followed within two years by a certificate of organization. In Chieppo, the latter certificate was not filed within the two year period and the issue presented was whether acts done by the corporation after filing the certificate of incorporation but prior to the filing of the certificate of organization were corporate acts or individual acts. The court concluded they were the acts of a de facto corporation.

       Our Supreme Court has recently upheld a trial court decision which imposed individual liability for a debt on the theory that the defendant, a corporate officer and the sole stockholder of a corporation, continued to conduct corporate business after the corporation had been dissolved but before its reinstatement. J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 528 A.2d 786 (1987). In contrast to the present case, there is no indication in J. M. Lynne Co. v. Geraghty, supra, that the individual defendant made an immediate, good faith, attempt to reinstate the corporation upon learning of its dissolution, or that he believed he was operating as a corporation. Thus, there was no basis upon which the dissolved corporation could have been deemed a de facto corporation during the period of dissolution. In addition, J. M. Lynne Co. v. Geraghty, was decided not on the law of this jurisdiction but on the basis of New York law, pursuant to stipulation by the parties.


text:
    State of Connecticut v. Timothy J. Day
    (4982)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued April 2
    decision released August 25, 1987

      A. A. Washton, with whom was Peter W. Rotella, for the appellant (defendant).

      John F. Cocheo, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b. The defendant claims that the trial court erred (1) in its instruction to the jury concerning the elements of the crime and the state’s burden of proof, (2) in an evidentiary ruling excluding the admission of a past recollection recorded, and (3) in improperly cross-examining the defendant’s expert witness thereby depriving the defendant of a fair trial. We find no error.

The jury could reasonably have found the following facts. On November 1,1984, at 3 p.m., after concluding his work day,, the defendant commenced drinking brandy with a fellow employee in their employer’s parking lot in Norwich. The defendant then drove the fellow employee to the Lincoln Inn where each consumed three small glasses of beer. At approximately 4 p.m., the defendant drove his van back to the employer’s parking lot, and dropped off his fellow employee. The defendant then proceeded to a gas station. He left the gas station at about 5 p.m. and headed home, proceeding east on Route 2. The automobile ahead of the defendant pulled over to the right hand side of the east bound lane to allow him to pass. The defendant then proceeded to overtake and pass the automobile while travelling at a speed between sixty and seventy miles per hour in the west bound lane. The defendant then collided with an oncoming vehicle in the west bound lane. After the impact, both vehicles came to rest in the east bound lane. The operator of the vehicle with which the defendant collided was pronounced dead on arrival at the hospital to which he was transported. Due to an odor of alcohol detected by the attending physician, a blood sample was extracted from the unconscious defendant by the attending physician. The blood sample, upon testing, was detected to have a blood alcohol content of .234 percent. Empty beer bottles were found in the defendant’s van at the scene of the accident.

Two eyewitnesses testifying for the state placed the point of impact of the two vehicles in the west bound lane, while the defendant’s accident reconstruction expert’s opinion was that the accident had occurred in the east bound lane. Oil spots and a gouge mark at the scene were considered by him in formulating his opinion. The chief state toxicologist also analyzed the blood sample taken at the hospital after the accident and found it to have a .18 percent alcohol content, and extrapolated that to a blood alcohol content of .21 percent at the time of the accident. A guilty verdict was returned by the jury, and the defendant appeals from the judgment of conviction.

The defendant’s first claim is that the trial court erred in its charge to the jury by effectively shifting the burden of proof on the element of intoxication to the defendant. This shifting was effectuated, the defendant claims, by the court’s charging the jury that “there isn’t too much doubt about the intoxication, for all intents and purposes, that has been acknowledged,” and allowing the jury to find “that the defendant is under the influence of liquor unless other countervailing evidence is offered to show that he was in control of his faculties.” The defendant did not object to this charge at trial, yet he now requests review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant’s claim of error on the burden of proof of an essential element of the crime charged implicates his fundamental constitutional rights, thus he has passed the first hurdle for Evans review. State v. Whelan, 200 Conn. 743, 756-57, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891 (1987).

Our limited review of the record in this case, however, leads us to reject the contention that the defendant’s claim is truly of constitutional proportions. State v. Thurman, supra. The record reveals that in this case the element of intoxication was not disputed by the defendant during the course of the trial. What the defendant attempted to demonstrate to the jury was that his intoxication did not cause the death of the victim. While we acknowledge that the state must prove any undisputed elements of the crime charged beyond a reasonable doubt, the element now complained of was conceded by the defendant. In fact, in his closing argument, the defendant stated that there was no problem with the state’s proof of intoxication, and that the jury need not concern itself with that element. The defendant thereafter did not object to the trial court’s instruction on the element of intoxication. In light of these circumstances, the record does not support his claim that he was deprived of his fundamental right to a fair trial by the instructions of the court regarding proof of intoxication. To allow the defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal. See State v. Collette, 199 Conn. 308, 318, 507 A.2d 99 (1986); State v. Silveira, 198 Conn. 454, 467, 503 A.2d 599 (1986); State v. Vilhotti, 11 Conn. App. 709, 713, 529 A.2d 235 (1987). The defendant’s claim is not entitled to further review.

The defendant’s second claim is that the trial court erred in excluding evidence of his past recollection recorded. While testifying, the defendant attempted to have a written application for insurance benefits introduced as evidence. The application, however, had not been filled out until twenty days after the events from which the prosecution arose. The trial court upheld the state’s objection and the defendant claims error in that ruling.

The admissibility of such a memorandum is within the discretion of the trial court. Schenck v. Pelkey, 176 Conn. 245, 250, 405 A.2d 665 (1978). One ground for the exclusion of such evidence is the fact that it was not made at or about the time of events recorded in it. Gigliotti v. United Illuminating Co., 151 Conn. 114, 124, 193 A.2d 718 (1963). That ground was one of several relied upon by the trial court in this case, and the defendant has failed to demonstrate that the court abused its discretion in excluding that memorandum, signed by the defendant nearly three weeks after the events transpired. B. Holden & J. Daly, Connecticut Evidence § 124 (d). In fact, the defendant, after a short recess, testified concerning the events of the day in question, and that testimony was practically a verbatim recitation of the statement made in the excluded memorandum. The defendant, therefore, has not demonstrated that the exclusion of that memorandum was harmful to his defense. State v. Luzzi, 147 Conn. 40, 44, 156 A.2d 505 (1959).

The defendant’s final claim is that the court erred in posing a series of questions to his accident reconstruction expert, thereby depriving him of his right to a fair trial. State v. Jenkins, 8 Conn. App. 35, 42, 510 A.2d 1370 (1986). The expert testified that in his opinion, based upon the evidence which he reviewed, the accident occurred in the defendant’s, rather than the victim’s lane of travel on the highway. The trial court’s questions to the expert were related to (1) eliciting from the witness what information was available to him in formulating his opinion with respect to the gouge mark on the highway and the fluid trails which resulted from the accident, (2) why fluid trails were not visible at the locus of the gouge mark, and (3) how he had arrived at his opinion about the cause of the gouge mark.

The defendant objected at trial to some of the court’s inquiries, and now seeks review of other unobjected to questions under State v. Evans, supra 70. Essentially, the defendant claims that the entire series of questions deprived him of a fair trial. Such judicial inquiry is subject to Evans review. State v. Fernandez, 198 Conn. 1, 9-10, 501 A.2d 1195 (1985); State v. Jenkins, supra, 41. The defendant contends that the entire series of questions undercut his theory of how the events at issue transpired, and cast doubt on the credibility of his expert.

“We recognize that ‘[t]he trial judge occupies an impartial position and one of commanding authority, and it often happens in a court-room that he may ascertain the truth when counsel has failed.’ State v. Cianflone, 98 Conn. 454, 469, 120 A. 347 (1923). While it is his responsibility to conduct the trial as impartially as is humanly possible, a trial judge must avoid ‘taking an apparent position of advocacy in a case before him’; he must refrain from making ‘remarks which are indicative of favor or condemnation or which disparage a defendant before the jury.’ State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975).” State v. Fernandez, supra, 11-12.

The trial judge may, however, question witnesses with circumspection for several purposes. Among those purposes are “ ‘to bring the facts out more clearly and to ascertain the truth’; Goggins v. Fawcett, 145 Conn. 709, 713, 147 A.2d 187 (1958); in trying to bring out the facts to resolve a doubt it apparently had as to the admissibility of certain evidence; Hutchinson v. Plante, 175 Conn. 1, 3, 392 A.2d 488 (1978)”; State v. Fernandez, supra, 13; and to clarify the testimony of the witness. State v. Mack, 197 Conn. 629, 641, 500 A.2d 1303 (1985); State v. Echols, supra.

Most of the questions posed by the trial judge in this case were made during colloquies which sought to ascertain the qualification of the expert and the foundation for several specific areas of his testimony. The trial judge was caught in the midst of a hard fought battle between opposing counsel full of argument and objections, and properly sought to determine what evidence was admissible through the testimony of the defendant’s expert. See, e.g., Hutchinson v. Plante, supra. There is no indication, in light of our review of the transcript, that the court abused its discretion by these questions. Id.

The remaining inquiries by the court all related to the factual foundations of the expert’s opinion. It is well within the discretion of the trial judge to elicit facts in order to clarify testimony, clear up misunderstanding, and ascertain the truth. State v. Fernandez, supra; State v. Mack, supra.

The substance of the inquiries in this case does not indicate that the trial judge was conveying to the jury his own impression of the credibility of the defendant’s expert witness; State v. Fernandez, supra, 15; nor indicating to them any personal opinion he may have had of the defendant’s guilt or innocence. State v. Echols, supra, 14. The trial judge’s questions in these areas did not place it in the role of an advocate, even though they may have pointed out the difficulties in the defendant’s case. Id.

The trial court also instructed the jurors, in response to the defendant’s objection to its inquiries, that they should not give his questions more weight than those of either counsel and that they should not guess at or surmise his feelings on any particular point. The court also gave a curative instruction at the conclusion of the case. See State v. Jenkins, supra, 44. The inquiries of the trial judge, in the midst of the battle between counsel over the exact nature and content of the expert’s testimony, were not prejudicial, and did not deprive the defendant of a fair trial. See State v. Reid, 193 Conn. 646, 663, 480 A.2d 463 (1984); State v. Frazier, 7 Conn. App. 27, 31, 507 A.2d 509 (1986).

There is no error.

In this opinion the other judges concurred.

       At the time relevant in this case, General Statutes (Rev. to 1983) § 53a-56b (a) provided: “A person is guilty of manslaughter in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For the purposes of this section, ‘intoxication’ shall include intoxication by alcohol of by drug or both.”

       The trial court’s charge was as follows: “Under the statute there are three elements which the State must prove beyond a reasonable doubt. First, that the accused caused the death of [the victim] by the operation of his automobile; second, that at the time the accused was intoxicated; and third, that as a consequence of that intoxication he caused the death of [the victim] by operation of his automobile.
      “There does not appear to be much question concerning the first element. It is your privilege to determine whether or not the death of [the victim] was caused by the accused in the operation of his automobile. What I’m stressing is that there isn’t too much doubt about the intoxication. For all intents and purposes, that has been acknowledged.
      “Concerning the second element again of intoxication, I’m going to review briefly the evidence that has been presented. To begin with, our legislature has enacted a law that says .01 [sic] or more by weight of alcohol in a person’s blood shall be prima facie evidence that he was under the influence of intoxicating liquor insofar as the operation of an automobile is concerned.
      “There is evidence that the accused had — and it’s up to you to recall what I’m about to tell you as far as the figures are concerned, but as I recall it, Doctor Berman who took a blood test said that the alcohol content was .234. Doctor Stolman, state toxicologist, State’s witness, said that it was— when he had it examined, the blood of [the defendant] it was .180. He also calculated that at the time of the accident, his blood alcohol content would have been .210.
      “Now, there is evidence — excuse me. The term ‘prima facie’ may be freely translated as meaning at first glance. The statute concerning the weight of alcohol in a person’s blood allows a jury to find that such person is under the influence of liquor unless other countervailing evidence is offered to show that he was in control of his faculties. Accordingly, the true question for you to decide is, in view of the statute, in view of all the other evidence in the case, was the amount of liquor consumed by the accused such amount more or less sufficient to so affect his mental, nervous and physical processes that he lacked an appreciable degree of — he lacked to an appreciable degree the ability to function properly with relation to the operation of the automobile?” (Emphasis added.)

       The defendant’s closing argument included the following: “May it please the Court, ladies and gentlemen of the jury, you may recall on the voir dire I specifically asked you that even if the individual was under the influence or intoxicated, but you found from the evidence that he was not the cause of the accident, would you acquit him? I think each and every one of you said you would. I specifically asked that question to make the distinction between what are the issues in the case.
      “There’s no question, number one, and we’re not going to spend any time on it, the Defendant was operating the vehicle. The State has no problem proving that. It’s an admitted fact by the Defendant; and, frankly, the State has no problem as far as the — what is termed intoxication is concerned. I place very frankly little or no credence in Doctor Berman, but I do place a lot of credence in Doctor Stolman who I think is highly reputable and who has been the state toxicologist for, I think, 35 years. When he says it was .18,1 will as an admission state to you that was above the level .10 at the time, which under the law made a person be under the influence.

      “So, the State really has no problem, and I don’t think you really have to concern yourself with the question of operation or with the question of intoxication, but I do think, ladies and gentlemen, you do have to concern yourself with that part of the statute under which this Defendant is charged. He’s charged with manslaughter in the second degree with a motor vehicle while intoxicated, and it goes on to say, ‘when in consequence of his intoxication while operating a motor vehicle he causes the death of another person.’
      “Now, I think what you — the main issue really in this case is whether or not this accident came about as a result of his intoxication or was there some other cause. Now, in a criminal case the State has the burden of proving each and every element of the offense beyond a reasonable doubt. As I said, they’re not going to have any problem with the first two elements, but I submit to you, ladies and gentlemen, there is a real problem as far as the third element, that is, when in consequence of his intoxication in operating a motor vehicle he causes the death of another person.” (Emphasis added.)

       As we have recently held “ ‘[w]here credibility [is] ... so significant ... a trial judge should eschew an examination of a key witness. . . . ’ State v. Fernandez, [198 Conn. 1, 15, 501 A.2d 1195 (1985)].” State v. Drouin, 12 Conn. App. 101, 104, 529 A.2d 740 (1987). In this case, the credibility of the expert witness was not seriously questioned, rather the judge sought to elicit the facts from which the expert formed his opinion. Thus, this case is distinguishable from State v. Drouin, supra.