text:
    Priscilla Cattaneo v. David Cattaneo
    (7044)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued April 11 —
    decision released July 18, 1989

      P. Hurley Bogardus, Jr., for the appellant (defendant).

      William H. Cashman, for the appellee (plaintiff).
   Dupont, C. J.

The defendant appeals from the judgment of the trial court granting the plaintiff’s motion to clarify and denying the defendant’s motion to modify an earlier judgment of dissolution. The defendant claims that the trial court erred (1) in considering and relying on mistaken facts and evidence outside the record in deciding both motions, (2) in denying the defendant’s motion to modify, and (3) in granting the plaintiff’s motion to clarify.

The marriage of the parties was dissolved by judgment of the court dated January 8, 1981. The parties stipulated to all matters concerning their five minor children, alimony, and disposition of their property. Pursuant to the judgment of dissolution, the defendant was required to pay, as unallocated alimony and child support, the sum of $3600 per month from February 1 to December 31,1981, and the sum of $3200 from January 1, 1982, to March 8, 1990, at which time all payments would cease. In addition, the judgment provided that “each of the parties is to contribute according to his or her respective financial ability to the cost of a four year college education for each of the minor children.”

On June 24, 1987, the plaintiff filed a motion for clarification and for further order of the court, requesting that the original order of dissolution be clarified to state the specific extent to which the defendant was required to contribute to the children’s college education and sought an order as to that specific sum or percentage. The motion alleged that the older of the two children residing with the plaintiff had been accepted at a four year college and that the defendant had refused to pay for any portion of that child’s college education.

On September 4,1987, the defendant filed a motion to modify the original judgment, claiming that there had been substantial, unanticipated changes in the circumstances of the parties since the original judgment of dissolution and that such changed circumstances required a modification of the terms and conditions of the unallocated alimony and child support provisions of the original judgment.

The parties agreed to submit the merits of their motions to the court on the basis of briefs to be filed by each party, and on the basis of certain exhibits which included the parties’ financial affidavits and the deposition of the plaintiff.

In its memorandum of decision, the trial court granted the plaintiff’s motion for clarification and further order, ordering the defendant to pay 65 percent of the college tuition bills of both of the children residing with the plaintiff. The court denied the defendant’s motion to modify the unallocated alimony and child support on the ground that the defendant had not demonstrated a substantial, unanticipated change in the parties’ circumstances.

Before reaching the defendant’s claims of error, we must first address the issue of whether the trial court had jurisdiction to entertain the plaintiff’s motion to clarify and for further order.

The plaintiff’s motion to clarify and for further order involved a provision of the dissolution decree obligating the parties to contribute to the college education costs of their children to the best of their financial abilities. Thus, the provision involved the support of the parties’ children beyond the age of eighteen. See footnote 1, supra.

The jurisdiction of the Superior Court with regard to orders involving postmajority child support is limited to the power to approve and incorporate written agreements concerning such support into its orders or decrees and to enforce such written agreements. General Statutes § 46b-66; Arseniadis v. Arseniadis, 2 Conn. App. 239, 244, 477 A.2d 152 (1984). The trial court does not have jurisdiction to modify written agreements involving postmajority support of children without the further written agreement of both parties. Albrecht v. Albrecht, 19 Conn. App. 146, 154, 562 A.2d 528 (1989). The question here, however, does not involve modification but involves a construction or interpretation of the original written agreement.

The power to enforce an agreement involving post-majority child support may include the power to determine the amount each party is required to contribute under the terms of the agreement, if the parties’ agreement contemplates such a determination by the court. See Gallagher v. Gallagher, 11 Conn. App. 509, 528 A.2d 379 (1987). In Gallagher, we reviewed on the merits the trial court’s rulings determining the amount due from the defendant pursuant to an agreement of the parties providing that the defendant would pay for the college education expenses of the parties’ children “if he is financially able.” The agreement further provided that “[i]n the event any question arises as to his financial ability, the court shall determine the same.”

The agreement in the present case states that the parties are to contribute to college education costs according to their respective financial abilities. The failure of the parties to agree on the amount each is to contribute to the college education costs would render the agreement without effect unless the court’s power to enforce the agreement included the power to make a determination of the amount due from each party under its terms. Although, unlike that in Gallagher, the agreement does not expressly contemplate a determination by the court of the amount of the monetary contribution due from each party, we conclude that it implicitly contemplates such a determination, and thus that the trial court had jurisdiction over the plaintiff’s motion to clarify and for further order.

The defendant’s first claim of error is that the trial court abused its discretion in considering and relying on mistaken facts and on evidence outside of the record.

In granting the plaintiff’s motion to clarify, the court relied upon the financial affidavits, dated November 30, 1987, filed by the parties in connection with the plaintiff’s motion to clarify and the defendant’s motion for modification. The court based its determination of the portion of the cost of college education to be borne by each party on a ratio of each party’s gross income to their combined gross incomes. The court found that the gross incomes of the parties totaled approximately $3600 per week and that the ratio of the defendant’s income to the total combined incomes was 68 percent. On the basis of that finding, the court ordered the defendant to pay 65 percent of the college education costs of the two minor children residing with the plaintiff.

The November 30, 1987 affidavits of the parties reveal that the gross wages of the parties equal $2512 per week for the defendant and $440 per week for the plaintiff. The total combined income per week, therefore, is $2952, rather than $3600 as relied on by the court. If the $738.46 per week paid by the defendant to the plaintiff as alimony and child support is calculated as both income of the defendant and income of the plaintiff, the combined gross income of the parties would total $3690.46 or approximately $3600, as found by the court.

The defendant contends that the court erred because it based its determination of the college education cost to be borne by each party on the inflated calculation of the parties’ combined incomes. The defendant contends that, because of this computational error, a new hearing is required on the plaintiff’s motion to clarify. We agree.

“The well settled standard of review in domestic relations cases is that the reviewing court will not disturb a trial court order unless there has been an abuse of discretion or unless the finding of the trial court has no reasonable basis in the facts.” Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987). The trial court based its conclusion, regarding the ability of the parties to bear the cost of the children’s college education and the appropriate percentage allocable to each, on the finding that the combined income of the parties totaled $3600 per week rather than the actual combined income of $2952. This computational error necessarily flaws the court’s conclusions as to the ability of the parties to bear the college education costs of their children and the appropriate percentage of the costs to be paid by each.

Although the allocation to the defendant of 65 percent of the college education costs may fall within the reasonable parameters of the court’s discretion, this does not render the error harmless. See Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 423, 479 A.2d 826 (1984). The factual underpinning of the decision is not sound. O’Bymachow v. O’Bymachow, 12 Conn. App. 113, 115-16, 529 A.2d 747, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987). “A decision that accidentally falls within allowable limits of discretion because of a computation error by the court cannot be allowed to stand.” (Emphasis added.) Ehrenkranz v. Ehrenkranz, supra, 424.

The defendant also contends that the trial court considered irrelevant evidence outside of the record in deciding his motion to modify the original judgment as to unallocated alimony and child support, and therefore a new hearing also is required on that motion. We agree. In denying the defendant’s motion to modify, the court concluded that “a comparison of the figures shown in the financial affidavits of the parties filed June 7,1986, and November 30,1987” failed to show a sufficient change of circumstances to require a modification.

Prior to the amendment of General Statutes § 46b-86a, a party seeking modification of financial orders incident to a marital dissolution judgment, had to show a substantial and uncontemplated change in the circumstances of either party. O’Bymachow v. O’Bymachow, supra, 116. Such a change in circumstances is determined by comparing the financial affidavits of the parties filed at the time of the hearing on the motion to modify with those filed at the time of the previous order. Kaplan v. Kaplan, 8 Conn. App. 114, 117, 510 A.2d 1024 (1986).

In the present case, the trial court apparently based its conclusion that a substantial unanticipated change of circumstances had not occurred by comparing the parties’ affidavits filed at the time of the present motions with affidavits filed June 6,1986, rather than with those filed at the time of the original dissolution order. The affidavits dated June 6, 1986, referred to by the court, do not appear to be part of the record and it is unclear where or how the court obtained them.

The plaintiff argues that the reference to a June 6, 1986 affidavit is a typographical mistake. It is not clear to us, however, that the reference is merely a typographical error. Each party is entitled to financial orders that reflect the court’s discretion and are based on facts correctly elicited and the proper criteria. Ehrenkranz v. Ehrenkranz, supra.

The erroneous reference to or use of 1986 affidavits in deciding the defendant’s motion to modify, rather than affidavits filed at the time of the dissolution, leads to the conclusion that a new hearing on the defendant’s motion is required.

There is error, the judgment granting the plaintiff’s motion to clarify and denying the defendant’s motion to modify is set aside and the case is remanded for a new hearing on the motions.

In this opinion the other judges concurred.

       The record indicates that the child’s date of birth is April 8,1969. Thus, on the date the plaintiff’s motion was filed, June 25, 1987, the child had reached the age of eighteen.

       The record indicates that the parties’ agreement as to children over the age of eighteen years was incorporated into the dissolution decree, pursuant to General Statutes § 46b-66.

       A trial court does not have jurisdiction to issue a clarification of a post-majority child support order that has the effect of substantively modifying the terms of the order. See Miller v. Miller, 16 Conn. App. 412, 547 A.2d 922 (1988) (trial court erred in issuing clarification that had effect of substantively modifying a nonmodifiable lump sum alimony award).

       The defendant’s motion to modify does not implicate the jurisdiction of the trial court with regard to postmajority child support. The defendant’s motion did not seek to modify the college education provisions of the dissolution decree, but sought to modify the amount of unallocated alimony and child support paid monthly to the plaintiff which, under the terms of the decree, ceases when the parties’ youngest child reaches the age of majority.

       As the trial court noted in its memorandum of decision, General Statutes (Rev. to 1987) § 46b-86 (a), which provided for modification “upon a showing of a substantial change in the circumstances of either party,” was repealed and substituted by Public Acts 1987, No. 87-104, effective October 1, 1987. General Statutes § 46b-86 (a) now provides 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.)
      The trial court concluded that, because the defendant’s motion to modify was filed before the effective date of Public Acts 1987, No. 87-104, the act did not apply. The trial court also noted that, even if the act applied, the stipulated agreement provided that certain changes were contemplated by the parties and were not to result in a modification of the judgment, and that any changes in circumstances that had occurred were among those stipulated by the agreement as having been contemplated.
      We note that, because the amendment to General Statutes § 46b-86 (a) affects the substantive rights of parties, it is to be applied prospectively to dissolutions entered after the effective date of the act, October 1,1987. Darak v. Darak, 210 Conn. 462, 467-470, 556 A.2d 145 (1989); LaBow v. LaBow, 13 Conn. App. 330, 344 n.5, 537 A.2d 157 (1988). Thus, because the dissolution of the marriage of the parties occurred prior to October 1, 1987, the act is inapplicable to this case.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    John Ross v. City of New Haven et al.
    (7432)
    Daly, O’Connell and Foti, Js.

      Argued May 17 —
    decision released July 18, 1989

      Richard, A. Roberts, for the plaintiff.

      W. Martyn Philpot, Jr., assistant corporation counsel, for the named defendant.
   O’Connell, J.

This case comes before us, pursuant to Practice Book § 4147, by reservation of two questions of law from the trial court. The questions are: (1) “Is the city of New Haven obligated under the Connecticut General Statutes [§ 38-327] and Regulations to provide uninsured motorist benefits to operators of patrol cars it owns which are used by the city of New Haven’s department of police services, with respect to which it is self-insured?” and (2) “Does the city of New Haven’s status as employer of the plaintiff, John Ross, and the fact that the city of New Haven has paid workers’ compensation benefits to him, or on his behalf, bar the plaintiff, pursuant to [General Statutes] § 31-284, from receiving uninsured motorist benefits?” We decline to answer question one, and we answer question two in the affirmative.

A stipulation filed pursuant to Practice Book § 4148 shows that the plaintiff, a New Haven police officer, was on duty driving a New Haven police department patrol car when he was injured in an accident with an uninsured motorist. He received workers’ compensation benefits from the city of New Haven and in this action seeks to recover uninsured motorist benefits from the city.

For the sake of clarity, we will discuss the questions in the reverse order in which they are presented. Thus, we first consider whether the plaintiff’s receipt of workers’ compensation benefits from the city bars him from receiving uninsured motorist benefits from the city. The pertinent part of our workers’ compensation law provides: “All rights and claims between employer and employees . . . arising out of personal injury . . . sustained in the course of employment . . . are abolished other than rights and claims given by this chapter .. . .” General Statutes § 31-284. This statute has been repeatedly and uniformly construed by the courts of this state to exclude further recovery from the employer by an employee who has received workers’ compensation benefits. Sharp v. Mitchell, 209 Conn. 59, 64, 546 A.2d 846 (1988); Panaro v. Electrolux Corporation, 208 Conn. 589, 599, 545 A.2d 1086 (1988); Sullivan v. State, 189 Conn. 550, 558, 457 A.2d 304 (1983). Accordingly, we conclude that the answer to the second question is yes; the plaintiff is barred from receiving uninsured motorist benefits.

The remaining question concerns whether the city of New Haven is required by law to provide uninsured motorist benefits to the operators of its police patrol cars. Practice Book § 4147 grants authority for reservation of questions to this court and provides in pertinent part: “The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case . . . .’’In view of our determination that the plaintiff’s receipt of workers’ compensation benefits bars his receipt of uninsured motorist benefits, the reserved question is not, in our opinion, “reasonably certain to enter into the decision of the case.” Accordingly, we decline to answer it.

We decline to answer question one (re: definition of police patrol cars). We answer question two (re: workers’ compensation benefits) yes.

No costs will be taxed to either party.

In this opinion the other judges concurred.


author: Per Curiam.

text:
    William E. Sawyer, Jr. v. David J. Gallipoli et al.
    (7042)
    Dupont, C. J., Borden and Daly, Js.
    Argued June 7 —
    decision released July 18, 1989

      Laurence P. Nadel, for the appellant (named defendant).

      Frank J. Forgione, with whom, on the brief, was Todd R. Bainer, for the appellee (plaintiff).
   Per Curiam.

The named defendant appeals from the trial court’s judgment that granted easements by implication for the benefit of the plaintiff’s property, thereby imposing a burden on the named defendant’s property.

On March 4,1986, the plaintiff commenced a lawsuit against the named defendant and Deborah and Vincent Perrelli, seeking an easement by necessity over the properties of the defendants. The plaintiff thereafter amended his complaint by adding an additional count, claiming that he was entitled to an easement by implication over the defendants’ properties. The named defendant denied the existence of the easements and, in addition, claimed that the plaintiff’s claims were barred by the doctrine of laches.

The trial court issued a memorandum of decision and rendered a judgment in the plaintiff’s favor (1) holding that easements by implication for vehicular and utility access and a water line existed over the named defendant’s property, (2) enjoining the named defendant from interfering with the plaintiff’s use and enjoyment of the easements, (3) ordering the parties to appear at a future date for a hearing to determine the precise location of the easements, and (4) dismissing that portion of the plaintiff’s complaint seeking an easement by necessity.

This appeal must be dismissed because the record clearly establishes that it was not taken from a final judgment of the trial court. In its memorandum of decision, filed on April 15,1988, the trial court stated: “The parties are ordered to appear in this court on April 29, 1988, at 9:30 a.m. for a hearing to determine the metes and bounds of said easement.” (Emphasis added.) The trial court did not denote the specific easement that required an additional hearing and could have meant all three of the easements granted, namely, utility, vehicular, and water.

Because there is an unresolved issue extant, the order of the trial court is not final. Although this issue was not raised by the parties, this court has a duty to dismiss any appeal that it lacks jurisdiction to hear. Bucy v. Bucy, 19 Conn. App. 5, 8, 560 A.2d 483 (1989).

The appeal is dismissed.

       In August, 1987, the complaint was withdrawn as to Deborah and Vincent Perrelli.

       In Ms brief, the named defendant states that that hearing and a rescheduled hearing were cancelled at the plaintiff’s request.


text:
    State of Connecticut v. Richard A. Harris
    (7088)
    O’Connell, Norcott and Foti, Js.
    Submitted on briefs May 17 —
    decision released July 18, 1989

      John F. Kavanewsky, Jr., filed a brief for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, Michael Dearington, state’s attorney, and Gerald F. Esposito, assistant state’s attorney, filed a brief for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). He claims that the trial court erred (1) in improperly restricting his cross-examination of a state’s witness, (2) in refusing to admit evidence of a prior aggressive act of the victim, and (3) in taking improper information into consideration at the time of sentencing. We find no error.

The record shows that on February 11, 1988, the defendant was on trial for assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The victim’s brother, Wilber Brown, was called as a state’s witness. Following his direct testimony and after extensive cross-examination on the details of his direct examination, he was dismissed. After an off the record conference, the court permitted the defendant to recall the witness and to resume cross-examination for the purpose of introducing his prior felony record for impeachment purposes. Because of certain discrepancies in that record, court was adjourned until February 16,1988, to allow the state an opportunity to obtain Brown’s correct criminal record. At the time of the adjournment, Brown was instructed to return to court at noon on February 16. He did not appear at that time and the state proceeded with other evidence. When he returned to court the following day, he testified that this disobedience of the order to return at noon on February 16 was wilful. He also testified that he had two robbery convictions but the court sustained an objection to the defendant’s question as to whether he was on probation for these convictions.

I

The defendant first claims that the court erred in refusing to permit him to impeach Brown by showing that he was on probation and that his wilful failure to reappear in court may have inspired a fear that he would be charged with a violation of that probation. The defendant argues that this limitation on his cross-examination violated his right of confrontation under the sixth amendment to the United States constitution. He contends that the possibility of a probation violation might have motivated Brown to testify adversely to the defendant. We agree that the sixth amendment right of confrontation includes the opportunity to cross-examine concerning a witness’ motive, interest, bias and prejudice. State v. Monteeth, 208 Conn. 202, 209, 544 A.2d 1199 (1988). It is well recognized that an important function of cross-examination is to expose a witness’ possible motivation in testifying. Id.

“ ‘A claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis: (1) whether the constitutional standard has been met; and if so, (2) whether the court nonetheless abused its discretion’ ”; State v. Chapman, 16 Conn. App. 38, 46, 546 A.2d 929 (1988), quoting State v. Diorio, 12 Conn. App. 74, 76, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987), cert. denied, 484 U.S. 1065, 108 S. Ct. 1025, 98 L. Ed. 2d 990 (1988). The first prong has been satisfied when the defendant has been permitted to reveal facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the witness’ reliability. State v. Jones, 205 Conn. 638, 669, 534 A.2d 1199 (1987); State v. Chapman, supra.

A review of the record in the present case discloses extensive cross-examination by the defendant revealing, inter alia, that the witness was the victim’s brother, that he had been convicted of robbery twice, that each robbery involved use of a gun and that he had wilfully disobeyed the court’s order to return to court. The only restriction imposed related to whether the witness was on probation. Accordingly, the defendant was permitted to expose facts to the jury from which it could properly draw inferences relating to the reliability of the witness. State v. Chapman, supra, 46-47. We conclude that the first prong has been satisfied.

Turning to the second prong, “ ‘[w]hen the right to cross-examine to demonstrate bias, motive or prejudice is not altogether denied, the scope and extent of cross-examination rests in the court’s discretion.’ ” Id., 47, quoting State v. Diorio, supra, 77. The defendant argues that the witness’s disobedience of the court’s order could expose him to being found in contempt of court which could trigger a violation of probation charge. These are speculative and collateral matters and inquiry into them was clearly within the trial court’s discretion. Thus, we conclude that under the circumstances of this case, the trial court did not abuse that discretion in refusing to allow cross-examination on the witness’s probationary status.

II

The defendant next claims that the trial court erred in refusing to allow him to establish that the victim was the aggressor by introducing evidence of a similar act of violence by the victim. Several witnesses related the victim’s predisposition to aggression. Following that testimony, the defendant attempted to introduce evidenee of a prior unrelated incident in which the victim is alleged to have used a shotgun to resolve a dispute.

It is well settled that in an assault case, when the defendant has claimed self-defense, the victim’s violent character may not be established by evidence of specific acts. State v. Webley, 17 Conn. App. 200, 206, 551 A.2d 428 (1988). In the present case, however, the defendant did not claim that he was acting in self-defense when he shot the victim. Because such a claim is a necessary predicate to introducing evidence of any type concerning the victim’s alleged propensity for violence, we are satisfied that the trial court did not abuse its discretion in excluding evidence of a prior specific act.

Ill

The defendant’s final claim is that the trial court erred in considering pending charges against him for similar offenses when it sentenced him. It is a fundamental appellate principle that a claim of error is not reviewable unless it is distinctly raised in the trial court. Practice Book § 4185. Two recognized exceptions to this principle are the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and the plain error rule of Practice Book § 4185. The defendant does not seek review under either of these exceptions. Thus, under the facts of this case, we decline to address the merits of this claim. State v. Maisonet, 16 Conn. App. 89, 97, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, 489 U.S. 1014, 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1989).

There is no error.

In this opinion the other judges concurred.

       The defendant also bases this claim on a violation of the Connecticut constitution. He does not, however, offer any separate analysis for his argument of a state constitutional violation. Accordingly, we will consider only his federal claim. State v. Bruens, 18 Conn. App. 459, 460 n.1, 557 A.2d 1290 (1989).


author: Spallone, J.

text:
    State of Connecticut v. Ruben Reyes
    (5511)
    Dupont, C. J., Spallone and Foti, Js.
    Argued October 7, 1988 —
    decision released June 21, 1989

      Jon C. Blue, former assistant public defender, with whom, on the brief, was Joette Katz, former public defender, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom, on the brief, was Dennis J. O’Connor, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant takes this appeal from his conviction, after a jury trial, of the crimes of robbery in the first degree; General Statutes § 53a-134 (a) (4); conspiracy to commit robbery in the first degree; General Statutes §§ 53a-48 (a) and 53a-134 (a) (4); accessory to burglary in the first degree; General Statutes §§ 53a-101 (a) (l) and 53a-8; and conspiracy to commit burglary in the first degree; General Statutes §§ 53a-48 (a) and 53a-101 (a) (1). The defendant claims that the trial court erred (1) in allowing him to be improperly convicted of two counts of conspiracy arising out of a single agreement, (2) in charging the jury that it could convict him of burglary on the theory that he had remained unlawfully in a building when there was no evidence to support that theory, (3) in allowing him to be convicted of the crime of burglary in the first degree when there was insufficient evidence to support the conviction, and (4) in its charge to the jury on the deadly weapon or dangerous instrument element of the crime of burglary in the first degree.

The following is a brief summary of the evidence presented in this case. During its case-in-chief, the state presented the testimony of five witnesses. Maria Rivera testified that on June 18, 1985, she was living in an apartment in Hartford with her children and her mother, Marguerita Maldonado (the victim). At about 4:30 p.m., Rivera was at home with her three preschool children and her mother, who was in a back bedroom. Rivera was talking with a neighbor in her kitchen when she heard a knock on the door. She opened the door and saw a man whom she identified in court as the defendant, and a man she knew as David, who was later identified as David Ortiz. She did not observe any weapons. Ortiz told Rivera that he was looking for her mother. Rivera called her mother and went back to the kitchen to resume talking with her neighbor. She did not observe either man enter the apartment. About fifteen minutes later, she saw her mother crying and, on the basis of statements by her mother, called the police. A police officer subsequently came to the apartment, spoke with her mother, and left. The officer later returned with two men, neither of whom Rivera recognized. The officer then returned a second time with two different men, one of whom was Ortiz. Rivera did not recognize the other man. Rivera noticed that a radio was missing from her mother’s room.

The victim, Marguerita Maldonado, testified that, when she opened the door in response to her daughter’s call, “David pointed me with a gun.” She described the gun as “big,” extending the length of her hand and forearm. The defendant was with Ortiz. Ortiz put the gun to her head and told her to walk toward her bedroom. When they reached the bedroom, he told her to sit down. Her two year old granddaughter was in the bed. The victim told Ortiz that the girl was there, and he told her to “shut up.” Ortiz looked in the victim’s pocket for money, while his companion, whom she identified in court as the defendant, searched the mattresses and drawers. Ortiz continued to hold the gun close to her head. When no money was found, Ortiz took a large “boom box” radio. After the two men left, the victim saw them enter a black and yellow car parked outside. She made a note of the license number. She then told her daughter what had happened. About five days later, she selected the defendant’s photograph from an array.

Jack Leitao, an officer in the Hartford police department, testified that he was dispatched to the victim’s apartment at 4:33 p.m. on the day in question. Subsequently, after Leitao had broadcast over the police radio a description given to him by the victim, another officer, Joseph Sikora, arrived at the apartment with two men. One man was Ortiz. The other man was not identified and was released. Ortiz told Leitao where the victim’s radio could be found. On the basis of that information, another officer, Michael Fallon, was dispatched to the given address and retrieved the radio. One week later, on June 25, 1987, Leitao showed the victim a photographic array containing a photograph of the defendant. She positively identified the photograph of the defendant as that of the man who had been with Ortiz.

Sikora testified that at 4:33 p.m. on the day in question he heard a dispatch from Leitao. Approximately five to ten minutes later, he saw a vehicle matching the description drive by. It was a yellow Toyota with a black top, bearing license number 3045B. Sikora took the two men in the car to the victim’s apartment, where Ortiz was identified. The other man was released. No weapons or radios were found in the car.

Fallon testified that on the afternoon in question he received a dispatch to go to 199 Sigourney Street in Hartford to search for an Hispanic male with a “boom box” radio. The building at 199 Sigourney Street is a large brick structure with several floors. No person matching the description was found. On the third floor, however, Fallon found a duffel bag and a large “boom box” radio. The duffel bag contained socks, clothes, and an identification card of Ortiz. The victim subsequently identified the radio as hers. No weapons were found in the bag.

The parties stipulated that the defendant’s brother, Rene Reyes, was the registered owner of a 1973 yellow and black Toyota bearing temporary registration number 3945B.

The defendant presented the testimony of his brother and Ortiz, as well as testifying on his own behalf. The defendant testified that he was arrested in late August, 1985, but knew nothing about the incident for which he was arrested and charged, other than what he subsequently learned from Ortiz. The defendant denied having seen Ortiz on the day in question. He testified that, between the hours of 11 a.m. and 3 to 3:15 p.m. on the day in question, he was working on his brother’s 1973 Toyota, installing a new clutch. When he had finished, his brother took the car out for a test drive. At about 3:30 to 3:45 p.m., his brother returned, stating that the car had been stolen. At about 5 p.m., the defendant called the police, at his brother’s urging, to report the theft. The woman who answered the telephone informed the defendant that the car had been towed incident to an arrest. The defendant spent the entire afternoon at home.

The defendant’s brother testified that he took the car out for a road test shortly after 3 p.m. and parked it at the corner of Park and Putnam Streets in Hartford while he went to get some milk. He left the keys in the car and the engine running. When he returned, the car was gone.

David Ortiz testified that, at about 1:30 p.m. on the day in question, he purchased what he thought were drugs from the victim. He then went to his ex-girlfriend’s house, where he discovered that the drugs were “no good.” He stole a car parked at the corner of Park and Putnam Streets and drove it to the victim’s apartment. He did not have a gun, and he was alone. The victim opened the door and invited him in. They stood just inside the door in the living room. He told her that the drugs were no good and that he wanted his money back. She told Ortiz that her supplier had already taken the money, and gave him her radio until the next day, when she could give him his money back. He never went to her bedroom. He took the radio to the house of a friend named Carlos who lived at 199 Sigourney Street. Carlos asked him to give a man a ride downtown. Ortiz and the other man were arrested while driving downtown.

The state presented the testimony of two police officers in rebuttal. Lucien Roy testified that he was an officer in the Hartford police department assigned to the records division. He testified that when the department receives a stolen vehicle complaint, the complaint is routinely entered into the police department’s computer. A computer printout concerning the 1973 Toyota in question showed no indication that the car had been reported stolen. Leitao testified that there was a “possibility” that this information might not have been entered into the computer.

Leitao testified that he talked to Ortiz at the time he arrested him and asked him who the other party was. Ortiz had responded that it was the defendant and that both the defendant and the radio could be found at 199 Sigourney Street.

The defendant’s first claim of error is that the trial court erred in allowing two judgments of conviction for conspiracy to be rendered when the evidence of the state, if credited beyond a reasonable doubt, clearly demonstrated that the defendant could have entered into only one agreement. The state concedes that the evidence established that Ortiz and the defendant entered into a single agreement to burglarize and rob the victim and that, therefore, the trial court erred in allowing two conspiracy convictions to stand.

Although the defendant did not raise this claim in the trial court; see Practice Book § 4185; we will address his claim because it implicates plain error by the trial court. See State v. Kitt, 8 Conn. App. 478, 489, 513 A.2d 731 (1986), cert. denied, 202 Conn. 801, 518 A.2d 648 (1987).

Where the evidence establishes only one agreement, there can be only one conspiracy conviction, even though the conspirators planned, as part of the agreement, to engage in conduct violative of more than one criminal statute. State v. Stellato, 10 Conn. App. 447, 456-57, 523 A.2d 1345 (1987); State v. Kitt, supra. In this case, the parties correctly state that the evidence establishes a single agreement between the defendant and Ortiz. Accordingly, one of the two conspiracy convictions must be set aside. See State v. Stellato, supra, 456-57.

Ordinarily, in cases involving duplicitous conspiracy convictions, this court sets aside the judgment convicting the defendant of the conspiracy count relating to the substantive offense of lesser severity. State v. Stellato, supra. In this case, although both of the substantive crimes are class B felonies, it is only the fourth count, conspiracy to commit burglary, that is punishable by a nonsuspendable five year minimum term. On each count of conspiracy, the defendant was sentenced to fifteen years, to be served concurrently. Under these circumstances, we set aside the judgment of conviction on the second count, conspiracy to commit robbery in the first degree; General Statutes §§ 53a-48 (a) and 53a-134 (a) (4); and remand to the trial court with direction to render a judgment of acquittal on that count.

The defendant’s second claim is that the trial court impermissibly charged the jury that it could find the defendant guilty of burglary if it should find that he “unlawfully remained” on the victim’s premises, when there was no evidence to support that theory. The defendant contends that the trial court not only engaged in the disapproved practice of charging the jury on a statutory alternative that there was no evidence to support; see State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987); it went further, supplying the jury with “a hypothetical scenario that would support á conviction, even though that scenario had not even been hinted at by any of the witnesses appearing in the case.” The state, on the other hand, contends that there was sufficient evidence of a lawful entry with an unlawful remaining to justify the trial court’s instruction on unlawful remaining.

At no time in the trial court proceedings did the defendant alert the court to any objection regarding an instruction to the jury on the “unlawful entry or remaining” element of the burglary charge. The defendant maintains, however, that his claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), pursuant to State v. Williams, supra. The defendant’s claim does facially implicate the fundamental constitutional right of an accused to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. See State v. Reddick, 15 Conn. App. 342, 350, 545 A.2d 1109, cert. denied, 209 Conn. 817, 551 A.2d 758 (1988), citing State v. Williams, supra. We will therefore review the record to determine whether the defendant’s claim is truly of constitutional proportions or is simply characterized as such by the defendant. See State v. Huff, 10 Conn. App. 330, 334, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987); State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

The following facts are relevant. In the third count of the amended information, the state charged the defendant with the crime of burglary in the first degree, in violation of General Statutes § 53a-101 (a) (1). In a bill of particulars filed in response to the defendant’s motion, the state charged that the defendant “did intentionally aid another person to engage in conduct constituting the crime of Burglary in the First Degree, in that the defendant and another person entered or remained unlawfully in a building with the intent to commit a crime therein, and the other person was armed with a deadly weapon or dangerous instrument, in violation of General Statutes §§ 53a-101 (a) (1) and 53a-8, Accessory to Burglary in the First Degree.” (Emphasis added.) In its charge, the trial court instructed the jury on both entering and remaining unlawfully in a building, elaborating on the meaning of “unlawful remaining” and giving the following example: “Now, even supposing that Mrs. Maldonado had invited David and this other male into the house, they came in and went into the bedroom and then displayed the weapon, then you would have to question whether they lawfully remained. So, that also can be the basis of a burglary.”

During its deliberations, the jury requested a clarifying instruction on the difference between robbery and burglary. The court instructed the jury on burglary as follows: “[I]t is the illegal entry into the dwelling with the intent to commit a crime therein. ... You have to illegally enter the dwelling. In this case, if you recall, there was the testimony of Mrs. Maldonado that Ortiz and the other person with him, and the state claims that it was the defendant, forced their way into the apartment. So, that is an illegal entry because they were not invited into the apartment. They only have a right to be in the apartment if they are invited. It is the illegal entry with the intention of committing a crime.”

The jury foreperson then asked the court whether burglary had to involve a forced entry. The jury was excused while the court and counsel pondered how to address the question. In response to the court’s suggestion that the statutory definition of the term “enters or remains unlawfully” be read to the jury, defense counsel indicated that the defendant had no objection. Accordingly, the court then instructed the jury in accordance with General Statutes § 53a-100 (b), which provides that “[a] person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.”

In this case, the state charged the defendant, in a bill of particulars phrased in the disjunctive, with “entering] or remaining] unlawfully.” An information charging the defendant with alternate methods of committing one substantive crime is sufficient to inform the defendant adequately of the nature of the charge against him for purposes of the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. State v. Hufford, 205 Conn. 386, 397, 533 A.2d 866 (1987); see also State v. Belton, 190 Conn. 496, 501 n.6, 461 A.2d 973 (1983). The defendant in this case had notice that the state was charging him with burglary based on his alleged act of either unlawfully entering or unlawfully remaining, thereby enabling him to prepare his defense, avoid prejudicial surprise, and plead his conviction or acquittal in bar of any future prosecution. State v. Hufford, supra. In instructing the jury on both unlawful entry and unlawful remaining, therefore, the trial court simply instructed the jury on the law defining the statutory alternative methods with which he was charged. Under these circumstances, the defendant’s claim cannot be considered to be of constitutional dimension unless there was insufficient evidence to support submission of the factual question to the jury; see State v. Williams, supra; State v. Arnold, 201 Conn. 276, 280, 514 A.2d 330 (1986); or the charge was overinclusive in that the trial court read more of a definitional statute to the jury than the circumstances called for. See State v. Townsend, 206 Conn. 621, 627, 539 A.2d 114 (1988); State v. Reddick, supra, 350.

We agree with the state that the evidence was sufficient to sustain the trial court’s instruction on, and example of, unlawful remaining, and we therefore conclude that the defendant’s claim is not truly of constitutional dimension. The trial court suggested hypothetically to the jurors that, if the victim had invited Ortiz and “this other male” into the house, and a weapon was displayed once they were inside, the jurors would “have to question” whether the men unlawfully remained. The court concluded that “that also can be the basis of a burglary.” Although neither the victim’s nor Ortiz’ version of events independently established an “unlawful remaining,” the trial court could nevertheless have reasonably concluded that the cumulative evidence was sufficient to support an inference that the defendant “unlawfully remained” on the victim’s premises and that, therefore, submission of the factual question to the jury was warranted.

The jury was presented with two different versions of the events in question, one offered by the victim and one offered by Ortiz. The testimony conflicted on many points. For instance, the defendant and Ortiz testified that the defendant was not present on the date in question, while the victim and her daughter testified that the defendant was present, and a police officer testified that, upon his arrest, Ortiz implicated the defendant. Ortiz denied having told the police officer that the defendant was involved. In light of the conflicting testimony, evaluation of credibility was particularly crucial in this case, and the credibility of the three major witnesses had been placed in question. The victim’s credibility was placed in question by her testimony that she had in the past been convicted for possession of narcotics. Ortiz’s credibility was placed in question by his testimony that (1) on the day in question he had had four drinks of Yukon Jack and was high on pot, (2) at the time of the incident he had a drug habit, and (3) he had been convicted in the past of the crimes of selling heroin, first degree robbery, and second degree manslaughter. The defendant’s credibility was placed in question by his admission that he had in the past been convicted of two felonies. It is the trier’s function to determine the facts and to draw logical and reasonable inferences from those facts. State v. Smith, 15 Conn. App. 122, 127, 543 A.2d 301, cert. denied, 209 Conn. 805, 548 A.2d 441 (1988). The trier may draw reasonable and logical inferences from facts proved beyond a reasonable doubt, or from facts it has found as the result of other inferences. State v. Giorgio, 2 Conn. App. 204, 477 A.2d 134 (1984); and is entitled to credit some portions of the testimony of a witness and to discredit other portions. State v. Carter, 196 Conn. 36, 46, 490 A.2d 515 (1985); State v. Rothenberg, 195 Conn. 253, 257, 487 A.2d 545 (1985); State v. Hoyeson, 154 Conn. 302, 224 A.2d 735 (1966). The trier may rely on its common sense, experience and knowledge of human nature in deciding among conflicting inferences that logically and reasonably flow from the same basic fact. State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985), appeal after remand, 207 Conn. 646, 542 A.2d 1136 (1988); State v. Carter, supra, 45; State v. Johnson, 14 Conn. App. 586, 597, 543 A.2d 740, cert. denied, 209 Conn. 804, 548 A.2d 440 (1988).

We conclude that the evidence was sufficient to justify submission to the jury of the factual question of whether the defendant entered or remained unlawfully because the trier could reasonably find either an unlawful entry or an unlawful remaining. “To enter unlawfully contemplates an entry which is accomplished unlawfully, while to remain unlawfully contemplates an initial legal entry which becomes unlawful at the time that the actor’s right, privilege or license to remain is extinguished.” State v. Belton, supra, 500. The trial court could reasonably conclude that the jury might (1) accept the testimony of the victim and her mother that the defendant was present, rejecting Ortiz’ testimony that the defendant was not present, and (2) accept Ortiz’ testimony that the victim invited him into the apartment and infer that the victim permitted the defendant to enter as well. The jury could have found that the defendant’s “right, privilege, or license to remain [was] extinguished”; id.; if it accepted the victim’s testimony to the extent of finding that Ortiz had a gun and that the gun was drawn, while inferring from Ortiz’ testimony that a dispute arose inside the premises and that the gun was drawn during the dispute. In view of Ortiz’ testimony that he had a “drug habit” at the time of the incident, that he was disgruntled by the victim’s allegedly having sold him “bad drugs,” and that he was physically ill on the afternoon in question as a result of the physical effects of withdrawal, such findings would not be unreasonable.

An “unlawful remaining” can be said to have occurred when the evidence supports a finding that the defendant pointed a gun at the one who permitted him to enter. General Statutes § 53a-100 (b) provides, in pertinent part, that a person “ ‘enters or remains unlawfully’ in or upon premises when . . . the actor is not otherwise licensed or privileged to do so.” General Statutes § 53a-101 (a), which defines the crime of burglary in the first degree, is intended to prohibit the kind of “remaining” which is likely to terrorize occupants. State v. Thomas, 210 Conn. 199, 207, 554 A.2d 1048 (1989); State v. Cochran, 191 Conn. 180, 185, 463 A.2d 618 (1983). A drawn gun creates an inherently threatening situation. Evidence that a defendant subsequently pointed a gun at one who had the right to admit him to the premises, and did admit him to the premises, clearly can form the basis for the inference that consent to remain was implicitly withdrawn and thus that the individual “unlawfully remained” within the meaning of the statute.

On the basis of our determination that the evidence was sufficient to support a finding that the defendant “unlawfully remained,” as suggested by the trial court, we conclude that the trial court was justified in submitting to the jury the factual question of whether the defendant either entered unlawfully or entered lawfully, but remained unlawfully. Under these circumstances, it is clear that the defendant’s claim is not truly of constitutional proportions.

The defendant’s third claim of error is that there was insufficient evidence to support a conviction of the crime of burglary in the first degree because the state failed to prove beyond a reasonable doubt that Ortiz was armed either with a “deadly weapon” or a “dangerous instrument.” The defendant concedes that this claim was not raised in the trial court, but again seeks review under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). The defendant has stated a claim implicating the federal and state constitutional guarantee that a criminal defendant may be convicted only upon proof of each element of the offense beyond a reasonable doubt. See State v. Dickson, 10 Conn. App. 462, 464, 523 A.2d 935 (1987). Under such circumstances, we review the record in a limited way to determine whether it adequately supports the defendant’s allegation that his claim is of constitutional proportions. See State v. Huff, supra; State v. Thurman, supra. We conclude that the record does not support that claim. In view of the fact that there was evidence from which the jury could conclude that Ortiz was armed with a gun, which the victim described as being as long as her arm, the defendant’s claim that he has been deprived of a constitutional right lacks support.

The defendant’s final claim is that the trial court erred in its instructions to the jury on the “deadly weapon or dangerous instrument” element of the crime of burglary in the first degree in that it (1) erroneously defined these terms, and (2) erroneously submitted both statutory alternatives to the jury. The defendant neither submitted a request to charge nor excepted to the instructions as given. Generally, we will not consider a claimed error regarding the giving of or failure to give an instruction unless the matter is covered by a written request to charge or exception has been taken. Practice Book § 852; State v. Brown, 199 Conn. 14, 26, 505 A.2d 690 (1986). We need not review a claim that was not distinctly raised at trial. Practice Book § 4185. The defendant claims review under State v. Evans, supra. Because the defendant’s claim implicates his fundamental constitutional right to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt; see State v. Williams, supra, 363; we review the record in a limited way to determine whether the claim is truly of constitutional proportions. State v. Huff, supra; State v. Thurman, supra.

We have reviewed the record and conclude that review of the defendant’s claims under State v. Evans, supra, is inappropriate because the record does not adequately support a claim that the court’s charge to the jury deprived the defendant of a fundamental constitutional right.

There is error in part, the judgment of conviction on the second count of the information, conspiracy to commit robbery in the first degree, is set aside and the case is remanded to the trial court with direction to render a judgment of acquittal on that count.

In this opinion the other judges concurred.

       “[General Statutes] See. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       “[General Statutes] Sec. 53a-101. burglary in the first degree: class B felony, (a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       Compare cases involving jury instructions that had the effect of enlarging the offense with which the defendant was charged. See, e.g., State v. Franko, 199 Conn. 481, 489-90, 508 A.2d 22 (1986); State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983); State v. Messier, 16 Conn. App. 455, 469, 549 A.2d 270 (1988); State v. Peterson, 13 Conn. App. 76, 83-86, 534 A.2d 1237 (1987); State v. Trujillo, 12 Conn. App. 320, 323-29, 531 A.2d 142 (1987), cert. denied, 205 Conn. 812, 532 A.2d 588 (1988); State v. Newton, 8 Conn. App. 528, 530-38, 513 A.2d 1261 (1986).


author: Daly, J.

text:
    State of Connecticut v. One 1976 Chevrolet Van
    (7399)
    Bokden, Spallone and Daly,. Js.
    Argued May 4 —
    decision released July 25, 1989

      Richard Paladino, for the appellant (defendant owner).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were John Redway, state’s attorney, and Timothy Liston, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant, Timothy Rickards, is the owner of a 1976 Chevrolet van that was the subject of an in rem proceeding by the state pursuant to General Statutes § 54-33g. He appeals from the trial court’s judgment ordering forfeiture of the vehicle.

The following facts are not in dispute. On March 4, 1988, the defendant was arrested without a warrant during an undercover drug investigation in Old Saybrook and charged with possession with intent to sell marihuana in violation of General Statutes § 21a-278 and conspiracy to sell marihuana in violation of General Statutes §§ 21a-277 (b) and 53a-48 (a). In connection with the arrest, the state seized the van and instituted in rem proceedings against it. The defendant was notified of the proceedings by summons on March 7, 1988, and ordered to appear in court for a show cause hearing on March 16, 1988. On March 15, 1988, while the defendant was present in court, the trial court, Klaczak, J., transferred the criminal case and the in rem action from geographical area number nine to the judicial district of Middlesex at Middletown, and rescheduled the in rem hearing date to April 4, 1988.

On April 4,1988, the court continued the hearing to April 18, 1988, due to the unavailability of the state’s toxicology report. The hearing was continued again on April 18 because the report was still unavailable.

The defendant pleaded not guilty to the criminal charges on May 9, 1988, and, two days later, filed his motion for return of the seized vehicle. On May 23, 1988, the trial court held a pretrial conference for the in rem action and scheduled the hearing for May 26, 1988. On that date, the court continued the hearing to June 7, 1988, because the prosecutor handling the in rem action was engaged in a trial.

The in rem hearing was held before the court on June 7,1988. The trial court found that the vehicle was used to transport six pounds of marihuana to the location of an anticipated sale. The court concluded that the van was used to violate General Statutes § 21a-277 (b) and declared it a nuisance.

The defendant raises two issues on appeal that stem from the alleged failure of the trial court to hold the in rem hearing within the six day time period set forth in General Statutes § 54-33g. He claims, because the court did not hold the show cause hearing within that time frame, (1) that the court lacked subject matter jurisdiction to hear the action, and (2) that his due process rights under both the federal and state constitutions were violated. We find no error.

General Statutes § 54-33g (a) provides, inter aha, that once property has been seized pursuant to the commencement of in rem proceedings, the owner shall be notified of the seizure by summons within ten days. The summons commands the owner to appear in court to show cause why the property should not be adjudged a nuisance and ordered to be destroyed or disposed of. The statute requires that the defendant be summoned to appear in court at a particular time, which “shall not be less than six nor more than twelve days” after the service of the summons. The statute does not require that the hearing that follows that appearance also occur within the same twelve day period.

The success of the defendant’s claims on appeal hinges upon his theory that the use of the word “shall” constitutes a promptness requirement that absolutely mandates that a show cause hearing be held within six to twelve days after service of the summons. We find this argument to be unavailing.

This court recently stated that although the use of the word “shall” in a statute is significant, it does not automatically create a mandatory duty. Ruotolo v. Inland Wetlands Agency, 18 Conn. App. 440, 448, 558 A.2d 1021 (1989). Rather, the statute must be viewed as a whole in order to ascertain the legislative intent. Id.

“It is well settled that one of the more reliable guides in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision.” Id., citing Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967). A reading of General Statutes § 54-33g (a) reveals nothing that suggests that a trial court’s actions will be void if the hearing to show cause is not held within six to twelve days after service of the summons. The purpose of an in rem statute is “ ‘to exercise the sovereign power to forfeit property shown to have been involved in an illegal enterprise.’ ” State v. One 1981 BMW Automobile, 5 Conn. App. 540, 542-43, 500 A.2d 961 (1985), quoting State v. Bucchieri, 176 Conn. 339, 348, 407 A.2d 990 (1978). The hearing provides the defendant with the opportunity to contest the seizure of his property; the provisions relating to the time limits safeguard the right to a hearing at a meaningful time in a meaningful manner. See, e.g., Williams v. Bartlett, 189 Conn. 471, 479, 457 A.2d 290 (1983). Viewed in this context, it makes “little sense to conclude that the legislature intended the [time] period to be mandatory.” Ruotolo v. Inland Wetlands Agency, supra, 449. A rigid construction of the time frame provision would permit an owner of seized property to defeat the forfeiture on grounds, legitimate or otherwise, that require delay or continuance of the hearing beyond the twelve day limit. We eschew the defendant’s proposed statutory interpretation of § 54-33g (a) because it would lead to a bizarre result. See State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985). Accordingly, we conclude that this provision does not set a time limit on the date of a forfeiture hearing.

Because we conclude that the time limit provision in § 54-33g (a) is directory, and not mandatory, the defendant’s first claim must fail. The fact that the hearing did not take place within twelve days after service of the summons did not divest the trial court of its jurisdiction. Moreover, we note that jurisdiction, once acquired, is not lost or divested by subsequent events. Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952). Our review of the record indicates that the in rem proceedings were commenced in accordance with the statutory requirements; hence, the court had subject matter jurisdiction. See State v. Tedesco, 175 Conn. 279, 286, 397 A.2d 1352 (1978); Robinson v. ITT Continental Baking Co., 2 Conn. App. 308, 310-11, 478 A.2d 265 (1984).

The defendant’s final claim is that his due process rights were violated by the state’s three month delay in holding the hearing. We disagree.

In United States v. $8,850 in United States Currency, 461 U.S. 555, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983), the United States Supreme Court established a balancing test for determining whether a delay in instituting forfeiture proceedings after the subject property has been seized is unreasonable and, therefore, violative of due process. The court adopted the test set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), which requires a weighing of four factors: the length of the delay, the reason for the delay, the claimant’s assertion of the right to a hearing and the prejudice to the claimant because of the delay. United States v. $8,850 in United States Currency, supra, 564. Although the Barker test was formulated to determine when a government delay has abridged a sixth amendment right to a speedy trial, the court noted that the fifth amendment due process claim mirrored the concern of undue delay encompassed in the right to a speedy trial. Id. Thus, the court held that “[t]he Barker balancing inquiry provides an appropriate framework for determining whether the delay . . . violated the due process right to be heard at a meaningful time.” Id.

“The length of the delay is the triggering factor in the due process analysis.” United States v. $199,514 in United States Currency, 681 F. Sup. 1109, 1111 (E.D.N.C. 1988); see also United States v. One 1980 Mercedes Benz 500 SE, 772 F.2d 602, 606-607 (9th Cir. 1985). A six month delay from the date of the seizure to the date of the hearing has been held to be so short that due process analysis is not even triggered. United States v. $199,514 in United States Currency, supra; see also United States v. One 1973 Dodge Van, 416 F. Sup. 43 (E.D. Mich. 1980). We conclude that the three month delay in this case was not unreasonable.

The second element to be considered in this analytical framework is the reason for the delay. “Only unjustified delay raises a due process concern and then only when the delay is excessive and [the] claimant can demonstrate prejudice.” United States v. $199,514 in United States Currency, supra. We conclude that the state’s reasons for the delay were justified in this case.

The first continuance, due to the transfer of the proceedings to the Middlesex judicial district from geographical area number nine, was legitimate as it was “related to the administration and enforcement of law.” United States v. $47,980 in Canadian Currency, 804 F.2d 1085, 1089 (9th Cir. 1986), cert. denied, 481 U.S. 1072, 107 S. Ct. 2469, 95 L. Ed. 2d 878 (1987). The continuances to obtain the toxicology reports from the state laboratory also were justified. Without the reports, the state could not determine whether the vehicle was used to transport illegal drugs. “Both the Government and the claimant have an interest in a rule that allows the Government some time to investigate the situation in order to determine whether the facts entitle the Government to forfeiture so that, if not, the Government may return the [property] without formal proceedings.” United States v. $8,850 in United States Currency, supra, 565. The final delay in holding the hearing also was justified. This twelve day delay was due to the fact that the prosecutor was in the midst of a trial. “Due process is flexible and calls for such procedural protections as the particular situation demands.” Morrisey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Due process, therefore, does not require our courts to ignore the practical realities of scheduling conflicts inherent in our overburdened court system. We conclude that the state’s reasons for the delay were substantial and justified.

The third element is the defendant’s assertion of the right to a hearing. A failure diligently and timely to pursue this right will weigh against a defendant in the balancing test. United States v. $8,850 in United States Currency, supra, 569. In the present case, the defendant, on March 31,1988, filed an answer to the in rem complaint. This answer contained a special defense, alleging lack of subject matter jurisdiction due to the failure to provide a prompt hearing. On April 5,1988, the defendant filed an amended answer that contained the additional defense of the alleged due process violation. It is clear that the defendant first asserted his right to a hearing on March 31,1988, despite the fact that he had agreed to a continuance of the matter on March 15,1988, to April 4,1988. Although the defendant acquiesced in the preliminary delay, we cannot conclude that the defendant was dilatory in asserting his right.

The final element is whether the defendant has been prejudiced by the delay. “This is probably the most important element . . . because without any prejudice there is no injury to the claimant.” United States v. $199,514 in United States Currency, supra, 1112. The defendant claims that the deprivation of the use of the vehicle amounts to “sufficient prejudice.” He has failed to articulate any specific prejudice suffered from the delay. This bare allegation of prejudice is insufficient to tip the balance in his favor on this element.

We conclude that the delay in this case was short, justified and caused no prejudice to the defendant. Although it is true that the defendant asserted his right to a hearing, this factor is outweighed on balance by the other three. Accordingly, no due process violation occurred.

There is no error.

In this opinion the other judges concurred.

       Although technically the in rem proceeding was brought against the vehicle, we refer to Rickards as the defendant because General Statutes § 54-33g (b) provides that if the property’s owner appears “he shall be made a party defendant in such case.”

       General Statutes § 54-33g (a) provides in relevant part: “When any property believed to be possessed, controlled, designed or intended for use or which is or has been used or which may be used as a means of committing any criminal offense has been seized as a result of a search incident to an arrest, a warrantless arrest or a search warrant, which the state claims to be a nuisance and desires to have destroyed or disposed of in accordance with the provisions of this section, the judge or court issuing the warrant or before whom the arrested person is to be arraigned shall, within ten days after such seizure, cause to be left with the owner of, and with any person claiming of record a bona fide mortgage, assignment of lease or rent, lien or security interest in, the property so seized, or at his usual place of abode, if he is known, or, if unknown, at the place where the property was seized, a summons notifying the owner and any such other person claiming such interest and all others whom it may concern to appear before such judge or court, at a place and time named in such notice, which shall be not less than six nor more than twelve days after the service thereof, then and there to show cause why such property should not be adjudged a nuisance and ordered to be destroyed or otherwise disposed of as herein provided. Such summons may be signed by a clerk of the court or his assistant and service may be made by a local or state police officer. It shall describe such property with reasonable certainty and state when and where and why the same was seized.”

       In his brief, the defendant cites to both the fourteenth amendment of the federal constitution and to article first, § 8, of the Connecticut constitution. He fails, however, to provide a separate analysis of these claims. We decline to undertake such analysis. State v. Enright, 17 Conn. App. 142, 147 n.4, 550 A.2d 1095 (1988).

       Although some courts have refused to analyze the remaining elements of the test once it has determined that the length of delay was insufficient to be deemed presumptively unreasonable; United States v. Nance, 666 F.2d 353, 360 (9th Cir.), cert. denied, 456 U.S. 918, 102 S. Ct. 1776, 72 L. Ed. 2d 179 (1982); we note that the Supreme Court stressed that the elements of the test are “guides in balancing the [competing interests] to assess whether the basic due process requirement of fairness has been satisfied in a particular case.” United States v. $8,850 in United States Currency, 461 U.S. 555, 565, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983). Accordingly, we read this language to require an assessment and weighing of all four elements of the test.


text:
    Hedy Shokite v. Maximo Perez et al.
    (7032)
    Spallone, O’Connell and Norcott, Js.
    Argued February 15 —
    decision released July 25, 1989

      Bruce L. Levin, with whom, on the brief, was Daniel D. Portanova, for the appellant (plaintiff).

      Carla Ottaviano, with whom, on the brief, was James Coyne, for the appellee (named defendant).
   O’Connell, J.

The plaintiff appeals from the dismissal of her action for money damages for personal injuries sustained in a motor vehicle collision. The writ contained a May 1,1984 return date and was properly signed by plaintiff’s counsel as a commissioner of the Superior Court. The accompanying complaint, however, was unsigned. On May 7,1984, the plaintiff filed a properly signed amended complaint.

The defendant did not discover the absence of a signature on the original complaint until it was pointed out by the court at a pretrial conference nearly four years after the commencement of the action. As a result, on March 24,1988, the defendant filed a motion to dismiss the action claiming that the omission of the signature on the original complaint deprived the court of subject matter jurisdiction pursuant to Practice Book § 145 and General Statutes § 52-45a. The court granted the motion to dismiss on April 12,1988, and from that judgment the plaintiff appeals to this court. We find error.

Both parties rely on General Statutes § 52-45a to support their arguments. The plaintiff claims that the statute requires a signature on the writ and does not extend the signing requirement to the complaint that must accompany it. The defendant contends that the statute mandates that both the writ and the complaint be signed by a commissioner of the Superior Court. The defendant is incorrect. The plain language of the statute provides only that a signed writ be accompanied by a copy of the complaint. That section contains no language directing counsel to sign the complaint as well. Where the language of a statute is clear and unambiguous, courts cannot “supply what the legislature chose to omit.” Lee v. Tufveson, 6 Conn. App. 301, 304, 505 A.2d 18, cert. denied, 199 Conn. 806, 508 A.2d 31 (1986). Therefore, we cannot impose on the plaintiff the additional requirement of signing the complaint. We conclude that compliance with the statute was all that was required to give the court subject matter jurisdiction.

Interpretation of the statute, however, does not conclude the matter, as the defendant raises an alternative ground for sustaining the trial court’s dismissal of the suit. The defendant argues that because a complaint is a pleading, as defined by Practice Book §§112 and 131, it must “be signed by at least one attorney of record in his individual name.” Practice Book § 119. The defendant claims that the plaintiffs noncompliance with § 119 deprived the trial court of subject matter jurisdiction and mandated dismissal of the action. We disagree.

The plaintiff’s failure to comply with § 119 does not warrant dismissal of the action. Both the General Statutes and the rules of practice allow the plaintiff, as a matter of right, to amend “any defect, mistake or informality” in the pleadings within thirty days of the return date. (Emphasis added.) General Statutes § 52-128; Practice Book § 175. In the present case, therefore, the plaintiff’s timely filing of a properly signed amended complaint cured the defect of the missing signature in the original complaint.

The defendant finally contends that the failure of the plaintiff’s counsel to sign the complaint violated Practice Book § 399, which prohibits the court clerk from filing any paper that has not been signed by counsel. This argument is unavailing because the obligation created by Practice Book § 399 is imposed on the clerk and not on the plaintiff. “ ‘For the reason that individuals or the public should not be made to suffer for the dereliction of public officers, provisions regulating the duties of public officers . . . are generally directory.’ 2A Sutherland, Statutory Construction (4th Ed. Sands) § 57.19.” Tramontano v. Dileto, 192 Conn. 426, 432, 472 A.2d 768 (1984); State v. White, 169 Conn. 223, 238, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975) (obligations imposed on judge were directory); State ex rel. Arcudi v. Iassogna, 165 Conn. 203, 205-206, 332 A.2d 90 (1973) (obligation imposed on governor was directory); Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967) (obligation imposed on zoning authority was directory). Furthermore, § 399 contains no sanction for noncompliance. We conclude that § 399 is directory, and therefore the clerk’s acceptance of the unsigned complaint should not disadvantage the plaintiff. In addition, the plaintiffs timely amendment corrected the pleading defect, nunc pro tunc, thereby curing the clerk’s oversight retroactively to the time of filing the original complaint.

We recognize that in Housing Authority v. Collins, 38 Conn. Sup. 389, 392-93, 449 A.2d 189 (1982), the Appellate Session of the Superior Court upheld the dismissal of a summary process action because the complaint had not been signed. This case, however, can be distinguished from Collins because there the plaintiff failed to amend its complaint within the thirty days allowed for amendment as of right. Id., 392. Therefore, the decision whether to permit the amendment and thus cure the defect was within the discretion of the trial court. See Practice Book § 176. Here, by contrast, the plaintiff acted promptly to correct, as a matter of right, the omission of the signature, leaving nothing for the court’s discretion.

Finally, we point out that “[i]t is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). To that end, the rules of practice are to “be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” Practice Book §§6 and 4187. In light of this settled policy and for the reasons previously stated, we find that the motion to dismiss was improperly granted.

There is error, the judgment of dismissal is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       This action named Maximo Perez and the city of Bridgeport as defendants. Only Perez is a party to this'appeal. Therefore, we refer only to Perez when we speak of the defendant in the singular.

       Section 52-45a provides in pertinent part: “Civil actions shall be commenced by legal process consisting of a writ of summons . . . describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint . . . and shall be signed by a commissioner of the superior court . . . .”

       Practice Book § 399 provides in pertinent part: “No pleading or paper in any case shall be filed by the clerk until it shall have been signed by counsel It


author: Foti, J.

text:
    Peter W. Crabtree v. Robert E. Coyle
    (7027)
    Dupont, C. J., Foti and Jacobson, Js.
    Submitted on briefs April 13 —
    decision released June 22, 1989

      Bruce L. Levin filed a brief for the appellant (plaintiff).

      Stephen W. Studer and Warren N. Chapman filed a brief for the appellee (defendant).
   Foti, J.

The plaintiff, the acting zoning enforcement officer of the town of Milford, initiated this action pursuant to General Statutes § 8-12 seeking a permanent injunction to restrain the defendant property owner from continuing to deposit certain debris near a designated wetlands area and to force the defendant to remove the debris already deposited. After a trial, the court rendered judgment for the plaintiff in part. The court enjoined the defendant from depositing any further fill within twenty-five feet of the wetlands, but refused to order the defendant to abate the violation. The plaintiff claims that the trial court erred in denying him complete injunctive relief. We find no error.

After a trial and an inspection of the defendant’s property, the trial court found the following facts. The defendant has owned a parcel of property in Milford since 1955. His residence is located on a portion of that property, which is contiguous to the portion on which the landfill is located. The portion of the property supporting the defendant’s residence is level; it then drops off for approximately twenty-five feet to create a forty-five degree slope. At the bottom of the slope the land is level. The watercourse, a brook, is located on this lower level. For several years, the defendant has deposited, with the town’s knowledge, fill and debris, including broken asphalt, concrete, used tires and other substances not readily identifiable, on the slope. Over the past decade, the plaintiff has been in contact with the defendant and has advised him that the Milford zoning regulations require a permit to fill land within twenty-five feet of a designated wetlands area.

In June, 1986, a city official conducted an inspection of the defendant’s property. The inspection revealed that the defendant was depositing fill within twenty-five feet of a designated wetlands area in violation of the town’s zoning regulations. The defendant admitted that he filled the area in question and did not obtain a permit. On June 18, 1986, the plaintiff notified the defendant that the landfill was a violation of the town zoning laws and ordered him to contact the city planner within three business days. The defendant failed to correct the violations and the plaintiff brought the present action for injunctive relief.

The trial court granted the plaintiff’s request for a permanent injunction to enjoin the defendant from continuing to deposit debris within twenty feet of the wetlands area. With respect to the plaintiff's request that the defendant be required to abate the violation, however, the trial court found that the plaintiff had presented no evidence to prove the date when the defendant began filling the area, nor did he establish where, or to what point on the land, the defendant had filled. The trial court reasoned that, absent such evidence, any order related to abating the violation would be unenforceable because it could neither determine the effective dates of the statutes and ordinances upon which the plaintiff relied nor determine the point at which removal of the fill would begin and end.

Although the plaintiff recognizes that the trial court’s decision to grant or deny an injunction to enforce zoning regulations is discretionary and will not be revised absent a clear abuse of discretion; Johnson v. Murzyn, 1 Conn. App. 176, 183, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984); he argues that this case presents a situation in which “ ‘the only reasonable conclusion is that the plaintiff is, in equity, entitled to an injunction.’ Dimmock v. New London, 157 Conn. 9, 19, 245 A.2d 569 (1968); Hammerberg v. Leinert, [132 Conn. 596, 604, 46 A.2d 460 (1946)].” Johnson v. Murzyn, supra. We disagree.

A decision to grant or deny an injunction must be compatible with the equities in the case which include “the gravity and wilfulness of the violation, as well as the potential harm to the defendants.” Id. Our review is limited to whether the trial court abused its discretion. See Emhart Industries Inc. v. Amalgamated Local Union 376 UAW, 190 Conn. 371, 406, 461 A.2d 422 (1983). The trial court’s memorandum clearly indicated that it undertook a process of weighing the equities in this case. We have examined the record and the plaintiff’s claims and conclude that the trial court’s decision not to order the defendant to abate the violation was within its discretionary authority.

The record reveals that over the past decade the parties have been in contact with one another and the plaintiff was aware of the defendant’s activities on his property. According to the defendant, persons other than the defendant were permitted to fill the area. There was no evidence presented by the plaintiff as to when the defendant began depositing debris on the slope or at what point on the property the fill attributable to the defendant began and ended. The plaintiff’s expert testified that the debris was placed within twenty-five feet of a wetlands area, but could not state how long the fill had been there.

On the basis of this record, it was not unreasonable for the court to deny the plaintiff’s request for abatement of the violation when it could not determine the length and extent of the violation. In addition, under these circumstances, the trial court could reasonably have found that it would be unfair and unduly burdensome to require the defendant to move the fill. The trial court, having conducted an inspection of the premises, was in the best position to assess the extent of the violation and the effect of an abatement order on the defendant. Finally, there was no evidence presented at the hearing that the defendant’s conduct was wilful. In fact, the record discloses that upon receiving the cease and desist order the defendant promptly refrained from further activity on the slope.

On this record, we cannot say that the trial court’s assessment of the equities in this case was clearly erroneous. “At the trial, it was the plaintiff’s burden to prove its entitlement to equitable relief. On appeal, it was the plaintiff’s burden to establish so manifest an infringement of its statutory or constitutional rights as to demonstrate an abuse of the trial court’s discretion in its denial of the plaintiff’s request for a permanent injunction.” Gorra Realty v. Jetmore, 200 Conn. 151, 165, 510 A.2d 440 (1986). The plaintiff has failed to do so.

There is no error.

In this opinion the other judges concurred.

       The plaintiff instituted this action for injunctive relief pursuant to General Statutes § 8-12. This section provides local zoning enforcement officers with a means to enforce local zoning laws. The statute specifically grants the zoning enforcement officer the power to sue for injunctive relief as well as to impose monetary fines and to enforce its rules by instituting a suit to enjoin a party from violations of zoning laws. Planning & Zoning Commission v. Campanelli, 9 Conn. App. 534, 536, 520 A.2d 242 (1987).

       The Milford zoning regulations that the defendant was charged with having violated are as follows:
      “4.1.15.1 Waterbodies and Watercourses Unless and until the Planning and Zoning Board has previously approved a Site Plan and authorized the issuance of a Special Permit in accordance with Article VII, herein:
      “4.1.15.2 No land, building, structure or use shall be developed, constructed, or occupied below the regulatory flood protection elevation, except in accordance with the Flood Hazard Regulations, Section 5-6, herein.
      ‘.‘4.1.15.4 No structure of any type nor the perfomance of any type of work incidental thereto shall be permitted on the water side of the seasonal high water level, mean high watermark or legally established boundary of any waterbody, watercourse, wetland or flood hazard area (natural or man-made and named or unnamed); and further provided that: ....
      “(2) No watercourse or open drainage ditch shall be walled up, filled in, narrowed down, altered, or otherwise obstructed, except for necessary clearing of debris, unless a favorable report from the city Engineer is first received by the Planning & Zoning Board.”


text:
    Pump Services Corporation v. Allen B. Roberts et al.
    (7325)
    Borden, Spallone and Daly, Js.
    Argued May 5 —
    decision released July 25, 1989

      Allen B. Roberts, pro se, the appellant (named defendant).

      Robert G. Oliver, with whom, on the brief, was Carolyn P. Gould, for the appellee (plaintiff).
   Daly, J.

In this action seeking foreclosure of a mechanic’s lien in the first count and damages for unjust enrichment in the second count, the defendant appeals from the judgment rendered in favor of the plaintiff. The defendant claims that the trial court erred in granting the plaintiffs motion to open a judgment of dismissal rendered pursuant to Practice Book § 251. The defendant does not challenge on appeal the judgment rendered on the merits. We find no error.

The following facts are relevant to the disposition of this appeal. The plaintiff commenced this action by way of a two count complaint returnable November 20, 1984. The first count sought foreclosure of a mechanic’s lien placed upon real estate owned by the defendant, arising from labor and materials furnished by the plaintiff for the well water system on the property. The second count, based upon unjust enrichment, sought damages in the amount of the reasonable value of the work performed.

On July 20, 1986, the trial court, Jacobson, J., dismissed the action for failure to prosecute with due diligence pursuant to Practice Book § 251. The plaintiff filed a motion to open the judgment of dismissal and a supporting affidavit on October 9,1986. The affidavit indicated that the plaintiff’s attorney was attempting to obtain military service affidavits for the two codefendants, Patricia and Thomas Boyham. The trial court granted the motion on November 3, 1986, and ordered the plaintiff to close the pleadings as to Roberts within thirty days and as to the Boyhams within ninety days, in order to allow sufficient time to obtain the military affidavits. The plaintiff closed the pleadings as to Roberts by filing a reply denying his special defenses on November 20, 1986. The plaintiff withdrew the claims against the Boyhams because of its inability to obtain the military service affidavits.

The action was thereafter tried before the court, Hon. Milton J. Belinkie, state trial referee, who rendered judgment in favor of the defendant on the first count and in favor of the plaintiff on the second count. This appeal ensued.

The defendant’s sole claim on appeal is that the trial court erred in granting the plaintiff’s motion to open the judgment of dismissal.

“ ‘Courts have an inherent power to open, correct and modify judgments.’ ” Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983). A civil judgment may be opened if a motion to open or set aside is filed within four months of the issuance of judgment. Practice Book § 326; General Statutes § 52-212a. Such a motion is addressed to the trial court’s discretion, and its action will not be disturbed on appeal unless it is shown that the court acted unreasonably and in clear abuse of its discretion. Acheson v. White, 195 Conn. 211, 215-16, 487 A.2d 197 (1985). “In determining whether the trial court abused its discretion, [the reviewing] court must make every reasonable presumption in favor of its action.” Id., 215; Steve Viglione Sheet Metal Co. v. Sakonchick, supra, 711.

The trial court concluded that there was evidence of reasonable cause to set aside the dismissal based upon the plaintiff’s efforts to obtain military affidavits for the Boyhams. Moreover, the record indicates that the motion to open was filed within four months of the judgment of dismissal. Our review indicates that the trial court’s decision is fully supported by the record and was not an abuse of discretion.

The defendant’s claim that the affidavit supporting the plaintiff’s motion to open failed to comply with the requirements set forth in Practice Book § 377 misses the mark. A review of our Practice Book and case law indicates that the proper way to open a § 251 judgment of dismissal is to file a motion to open the judgment pursuant to Practice Book § 326. See, e.g., Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985); Acheson v. White, supra; Steve Viglione Sheet Metal Co. v. Sakonchick, supra; 1W. Moller & W. Horton, Connecticut Practice Book Annotated (3d Ed.), commentary to § 251 (p. 441). Practice Book § 377 is the vehicle by which to open a judgment rendered upon a default or a nonsuit, and not a judgment of dismissal pursuant to § 251.

There is no error.

In this opinion the other judges concurred.

       The plaintiff commenced this action against the named defendant, who owned the property where the plaintiff performed work, and against Thomas and Patricia Boyham, the tenants of the named defendant who resided on his property. The action was later withdrawn as to the Boyhams. The term “defendant” as used in this opinion refers only to Roberts.

       Practice Book § 251 provides in pertinent part: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.”