author: Dannehy, J. Shea, J.,

text:
    State of Connecticut v. Darryl Whitaker
    (12742)
    Peters, C. J., Healey, Shea, Dannehy and Cioffi, Js.
    Argued November 12, 1986
    decision released February 10, 1987

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

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Henry J. Lyons II, assistant state’s attorney, for the appellee (state).
   Dannehy, J.

The defendant, Darryl Whitaker, was found guilty by a jury of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), sexual assault in the first degree in violation of General Statutes § 53a-70 (a), robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). He was sentenced to consecutive terms of twenty-five years on the charge of kidnapping, twenty years on the charge of attempted murder, twenty years on the charge of sexual assault, ten years on the charge of robbery, and a concurrent term of ten years on the charge of assault, for a total effective sentence of seventy-five years.

On appeal, the defendant contends that the trial court erred (1) in summarily quashing a subpoena, (2) in ordering the defendant to produce statements of certain alibi witnesses, and (3) in imposing a total effective sentence greater than that which could be imposed for murder. Though finding no error on the third issue, we agree that the trial court erred in quashing the subpoena and in ordering the production of the witnesses’ statements. We therefore reverse this case and remand it for a new trial.

A review of the evidence adduced at trial reveals that on February 8,1983, at about 2:30 p.m., the victim left her apartment and walked to a bus stop in front of Central High School in Bridgeport. She intended to take a bus downtown to pay an electric bill and carried $120 in her purse for that purpose. While she was awaiting the bus, a light-skinned black man approached her and asked where she was heading. The man was directly facing her when he asked the question, and was wearing a green army coat, gray dress pants and a beige and blue sock hat. When she replied “downtown,” the man said he had a gun in his pocket, and if she screamed or tried to run away he would shoot her. He displayed what looked like a gun, ordered her to walk a short distance with him and told her he would take her money and let her go. The victim offered her pocketbook to the man, telling him to “[t]ake it and just go.” The man then grabbed her arm and dragged her across the school parking lot, through a hole in a fence and down a hill. Several times he threatened her and displayed what appeared to be a gun.

The man took the money in the victim’s purse and ordered her to take off her clothes. When she refused and started to cry, he told her to “shut up.” He then struck her in the mouth, removed her coat and pants, and pushed her to the ground as she struggled. He then sexually assaulted her. After the sexual assault, he told her that he could not release her because she could identify him. He began to strangle her, first with his hands and then with a piece of wire which he had removed from his pocket. Eventually, the victim lost consciousness. She awakened to find herself under the steps of the school’s stadium, her face lying in a pool of blood. She could not see out of one eye and injuries to her entire face caused her great pain. She managed to crawl to the school’s parking lot, where a passerby summoned an ambulance. It was later determined that the victim had been beaten in the face with two boulders. Testimony heard by the jury also revealed that as a result of the injuries, she had required extensive surgery on her jaw and eye.

While confined to a hospital undergoing intensive care, the victim was shown a number of police photographs. The victim identified one of the photographs, a picture of the defendant, as portraying her assailant. On February 9, 1983, the police searched the defendant’s home pursuant to a warrant and seized some wire, a hat, coat and pants resembling those described by the victim, and a replica of a .45 Colt automatic.

I

Prosecutorial Discovery

We will first address the defendant’s claim of error wherein he asserts that the trial court erred in ordering the production of certain statements made by defense witnesses to his investigator. This issue arose at trial while the defendant was presenting evidence of an alibi defense. The defendant testified that on the afternoon of February 8,1983, he had boarded city bus No. 12 at the Trumbull Shopping Park at about 2:35 p.m. About ten to fifteen minutes later, he claims, he got off the bus and walked to his home in Bridgeport. According to the defendant, he remained at home for the rest of the afternoon.

Various defense witnesses were called to verify the defendant’s explanation of his whereabouts on the afternoon in question. One witness, Marion Johnson, testified that she was a friend of the mother of the defendant’s girlfriend. She claimed that she had seen the defendant on bus No. 12 at approximately 2:40 p.m. on February 8,1983. According to Johnson, the defendant got off the bus near his home in Bridgeport. On recross-examination, she was asked whether she had given a written statement to anyone from the office of the defendant’s attorney. Defense counsel objected, and a hearing occurred outside the presence of the jury. The state argued that it was entitled to such a statement if it existed. The defendant maintained that neither the Practice Book nor the federal or state constitution requires a defendant to produce such statements. The court overruled the objection and ordered the defendant to produce the witness’s statement. Apparently these statements did not contain any relevant evidence to impeach the witness, as the remainder of the cross-examination was uneventful.

When the same situation occurred during the testimony of another witness, however, the statement that the defendant was ordered to produce did in fact contain relevant impeaching information. Delores Jackson, the driver of bus No. 12, testified that the defendant was on board her bus when it departed from the Trumbull Shopping Park at about 2:30 p.m. on February 8, 1983. She stated that he got off the bus about five to six minutes later near Old Towne Road in Bridgeport. Jackson was asked on cross-examination if she had given a statement to anyone regarding this subject. When she replied that she had spoken to a defense investigator and that he had tape recorded her statement, the prosecutor requested access to the tape. The defendant objected again and argued that the statement did not have to be produced. His objection was overruled. The trial court ordered production of the tape, stating to defense counsel “why shouldn’t you have to produce it just as [the prosecutor] has to produce any statement of any witness that he . . . has taken? ... I think that rule extends both ways.”

The tape recorded conversation between the investigator and Jackson revealed that Jackson had been shown a picture of the defendant and that she had been unable to identify the male in the photograph as the person she had seen on her bus. The state confronted Jackson with this fact on cross-examination. Although Jackson later positively identified the defendant in court as the man on the bus, the state pointed out that the statement made to the investigator was taken shortly after the incident in question. Moreover, during his closing argument, the prosecutor again referred to Jackson’s failure to identify the defendant’s photograph.

The defendant contends that the trial court’s order violated the Practice Book, article first, § 8, of the Connecticut constitution, the state and federal guarantees of effective assistance of counsel, and the work product doctrine. He claims that this sort of mutual discovery in criminal cases has never been allowed in Connecticut and that traditionally, the state does not have the power “to probe the files of defense counsel.” See State v. Cocheo, 1 Conn. Cir. Ct. 610, 614, 190 A.2d 916 (1963). We agree with the defendant that the trial court should not have ordered the production of the statements of either witness. Our holding is based on the general structure of the Practice Book’s discovery provisions and on specific language contained in §§ 752 and 763. We find it unnecessary, therefore, to decide whether the court’s ruling also violated the state and federal constitutions or the work product doctrine.

Chapter 26 of our Practice Book regulates discovery in criminal proceedings. Sections 740 through 747 relate specifically to disclosure of information by the prosecution. Under these provisions, the defendant is allowed access to a wide range of information in the possession of the state. Certain types of information are discoverable by the defendant as a matter of right; see Practice Book § 741; other types are discoverable at the trial court’s discretion; see Practice Book §§ 743, 744; and some material is simply not discoverable under the rules at all. See Practice Book § 746. Under one provision, entitled “Additional Disclosure,” the court may order disclosure to the defendant of other information not covered by the rules as the interests of justice may require. See Practice Book § 745.

The rules governing disclosure of statements of a witness are found in §§ 751 through 755. After a state’s witness has testified on direct examination, § 752 provides that on the defendant’s motion the court “shall . . . order the state to produce any statement of the witness in the possession of the state or its agents . . . which . . . relates to the subject matter about which the witness has testified.” See also General Statutes § 54-86b. By its plain wording this provision applies only to statements made by prosecution witnesses; it clearly does not allow for disclosure of statements made by defense witnesses. The trial court’s order in this case to produce statements made by the two alibi witnesses, therefore, cannot be sustained under this provision.

It has been recognized that discovery is not a “one-way street”; see United States v. Nobles, 422 U.S. 225, 233, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975); and that some degree of mutual discovery is essential to the truth-seeking process. Our Practice Book provisions relating to defense disclosure, however, are of a more limited nature than the prosecutorial disclosure provisions. They relate mainly to certain defenses, such as alibi or mental disease or defect, upon which the defendant intends to rely at trial. See Practice Book §§756 through 768. The alibi provisions only require the defendant to file, a notice of his intention to rely on the alibi defense and to “state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses upon whom he intends to rely to establish such alibi.” (Emphasis added.) Practice Book § 763. Significantly, this section does not mention disclosure of statements made by an alibi witness. Thus, the court’s order requiring disclosure of the statements made by the defendant’s alibi witnesses cannot be justified under the Practice Book provisions relating to the alibi defense.

Finally, the provisions contain no section analogous to § 745 which would allow the disclosure to the prosecution of additional information if the trial court deemed disclosure to be in the interests of justice. In short, our nales of practice neither explicitly nor implicitly support the trial court’s conclusion that disclosure of a witness’s statement “extends both ways.”

A number of courts facing prosecutorial discovery issues like the one at bar have declined to adopt a rule of mutual disclosure of witness statements in the absence of some previous authorization by statute or rule of practice. See, e.g., Moore v. State, 105 Ariz. 510, 513, 467 P.2d 904 (1970); Richardson v. District Court, 632 P.2d 595, 599 (Colo. 1981); Middleton v. United States, 401 A.2d 109, 115 (D.C. App. 1979); State v. Sandstrom, 225 Kan. 717, 728, 595 P.2d 324, cert. denied, 444 U.S. 942, 100 S. Ct. 296, 62 L. Ed. 2d 308 (1979); see generally annot., 23 A.L.R.4th 799. These courts point out that underlying the imbalance between prosecutorial and defense discovery are constitutional and general societal concerns. In Middleton v. United States, supra, 116 n.ll, the court explained that criminal discovery is strongly influenced by concerns that “the accused be secure from condemnations resting upon his coerced testimony or the improper annexation of his counsel’s labors, and that the safety of the community not be jeopardized by unrestrained access to its prosecutor’s files. These concerns, as well as proper deference to the constitutional principles which burden the state alone with proof of criminal charges, and considerations of fairness in light of the normal superiority of the government’s investigatory resources, necessarily will frustrate the evolution of a parity of access similar to that embodied in the rules applicable to civil proceedings.”

We recognize that some jurisdictions, as well as the federal rules of criminal procedure, allow for mutual disclosure of witness statements. See Fed. R. Crim. P. 26.2; State v. Montague, 55 N. J. 387, 399, 262 A.2d 398 (1970); State v. Nelson, 14 Wash. App. 658, 664, 545 P.2d 36 (1975); see generally annot., 23 A.L.R.4th 799. Nevertheless, we agree with the Middleton court that “[hjowever appealing the notion of full disclosure may be in the abstract, important constitutional and societal interests affected by the criminal discovery process counsel against casual acceptance of such a major revision of the established statutory schemes.” Middleton v. United States, supra, 121.

The trial court’s order allowing access to the statements of the defense witnesses in this case cannot be considered harmless. The statement made by Delores Jackson’to the investigator contained information which the state used to impeach her credibility. Jackson was a crucial alibi witness because unlike the other alibi witnesses, she had no ties to the defendant and arguably no reason to lie on his behalf. The jury could reasonably have discredited the defendant’s alibi because of the information erroneously ordered disclosed by the trial court. A new trial is therefore required.

II

Motion to Quash

Although our finding of error requires us to order a new trial, we will also consider one of the remaining issues raised by the defendant, as it is likely to arise on retrial of this matter. State v. Keiser, 196 Conn. 122, 131, 491 A.2d 382 (1985). The defendant’s second contention on appeal involves the quashing of a subpoena duces tecum which the defendant had served on the coordinator of the YWCA rape crisis service in Bridgeport. The subpoena commanded the coordinator to appear in court on January 25,1985, and to bring with her any records concerning the victim. On the designated day, counsel appeared for the coordinator and filed a motion to quash based on General Statutes § 52-146k. Under the provisions of that statute, communications between a “sexual assault counselor” and a “victim” are confidential and may not be disclosed absent a waiver by the victim. The motion to quash alleged that the coordinator was a “sexual assault counselor” and that the victim was a “victim” within the meaning of the statute. The motion also alleged that the coordinator had no knowledge that the victim had offered perjured testimony.

At a hearing on the motion, the defendant asserted his state and federal constitutional rights to compulsory process and confrontation. He also requested an opportunity to make the threshold showing outlined in State v. Esposito, 192 Conn. 166, 179, 471 A.2d 949 (1984), that the records would be relevant to cross-examination and, therefore, to his right of confrontation. Ruling that § 52-146k was “very clear and unequivocal,” the court refused the defendant’s request and ordered the subpoena quashed. The defendant then attempted to make an offer of proof requesting production of the records on the issue of the identification of the assailant. The court, interrupting the defendant as he attempted to explicate the offer of proof, stated that although it had granted the motion to quash it would note the defendant’s exception. The court also refused defense counsel’s request that the records be marked for identification and sealed pending appellate review. Finally, during trial, the defendant attempted on cross-examination to question the victim about her consultation with the rape crisis counselor. The court disallowed the questions.

The crux of the defendant’s argument on appeal is that his right to search for truth in defending himself should supersede the interest of the rape crisis service and the victim in maintaining confidentiality. We addressed this very issue in In re Robert H., 199 Conn. 693, 509 A.2d 475 (1986), which was published subsequent to the trial court’s ruling on the present motion to quash. In that case, we particularized a procedure, developed in our prior decisions; see State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985); State v. Esposito, supra; which protects a victim’s statutory right to confidentiality while simultaneously safeguarding a defendant’s constitutional right effectively to cross-examine the victim. In re Robert H., supra, 708-709. Under that procedure, a claim of privilege may be countered by a showing that “ ‘there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation such that the witness’ direct testimony should be stricken.’ ” Id., 708. If such a showing is made and the consent of the witness is secured, the court may conduct an in camera inspection of the information. This inspection, in the context of the sexual assault counselor privilege, is not limited to merely “relevant material.” The court may also look for “any inconsistent and relevant statements of the victim in the records when compared with the victim’s direct examination.” Id., 709. In the event the inspection does not reveal such material, the record shall be sealed and/made available for appellate review. If the court finds relevant material, however, the witness must choose between consenting to the release of the material or having her testimony stricken. See id., 708-10; State v. Bruno, supra, 329; State v. Esposito, supra, 179-80.

This procedure clearly was not followed in the present case. The trial judge summarily quashed the subpoena, denying the defendant even the opportunity to make a preliminary showing of an impairment of his right to confrontation. The state, although acknowledging that In re Robert H., supra, and the present case raise identical issues of law, attempts to distinguish the two cases on their facts. The proffered distinction is that in the former case, counsel sought the records to demonstrate “substantial inconsistencies” in the victim’s statements and to show that her testimony “was coached”; id., 698-99; while in the present case, such precise factual allegations were not presented to the court. Precise factual allegations were not made in this case, however, because the defendant was simply not given the opportunity to make them. His every attempt to make the threshold showing, to present the offer of proof, and to cross-examine the victim regarding her consultation with the counselor was squelched by the trial court.

We are not persuaded by the state’s assertion that the granting of the motion to quash was harmless. See, e.g., State v. Bruno, supra. “Whether the defendant was prejudiced by not having access to [the records] cannot be determined by speculation about what [the records] contain.” State v. Gonzales, 186 Conn. 426, 435, 441 A.2d 852 (1982). We also cannot say with certainty, as we did in State v. Bruno, supra, 335-36, that the evidence of the defendant’s guilt, absent the testimony of the victim, was so overwhelming as to render the error harmless beyond a reasonable doubt.

We have already ordered a new trial based on the erroneous order concerning the witness statements. A remand, pursuant to In re Robert H. on the issue of the motion to quash is therefore not required. At the new trial, we direct the court to apply the procedures outlined in In re Robert H., supra, should the defendant again seek to subpoena the records of the rape crisis service. Thus, to obtain the records, the defendant must make the requisite threshold showing which, assuming the victim consents, would enable him to obtain an in camera review of the records. If the court’s review reveals relevant material, the victim faces the choice of either waiving her privilege or having her testimony stricken. If the court’s inspection fails to uncover any significant material, the records must be sealed for possible review on appeal. See id., 710-11.

III

Sentencing

Because of our holding in this case, we need not consider the defendant’s contentions concerning his sentence. We merely note that the defendant did not object to the length of the sentence at the time it was imposed.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion, Peters, C. J., and Healey, J., concurred.

Shea, J.,

with whom Cioffi, J., joined, dissenting in part. I agree with part II and part III of the majority opinion, but disagree with part I, which gives a defendant a privilege to withhold prior statements of a defense witness that contradict his testimony in court.

The order of the trial court found erroneous by the majority was not issued at any pretrial disclosure proceeding but during trial after the defendant’s witness Delores Jackson had testified in support of his alibi. It was an order for discovery of evidence then in court in the possession of the defendant. Such orders have commonly been used in the courts of this state for the purpose of disclosing to a cross-examiner any prior inconsistent statements of a witness after completion of his direct testimony.

“An order to produce can be entered by the court in the course of a trial as to any document then in court and in the possession of the party against whom the order to produce is entered . . . . ” Brown v. Connecticut Light & Power Co., 145 Conn. 290, 295, 141 A.2d 634 (1958). An order to produce does not make the document automatically available for inspection by opposing counsel, because the court must first ascertain whether it contains irrelevant or privileged material that could not properly be used at trial. Banks v. Connecticut Ry. & Lighting Co., 79 Conn. 116, 118-19, 64 A. 14 (1906). Where the document contains prior inconsistent statements of a witness, the court should permit counsel to examine the statement, except for irrelevant or privileged matters. Hurley v. Connecticut Co., 118 Conn. 276, 284, 172 A. 86 (1934).

Before the advent of Practice Book § 752, requiring statements of a prosecution witness to be disclosed after he has testified on direct examination, the rule developed in Brown and Hurley had been deemed applicable to both civil and criminal cases. State v. Clemente, 166 Conn. 501, 511-16, 353 A.2d 723 (1974); State v. Pikul, 150 Conn. 195, 202, 187 A.2d 442 (1962); State v. Pambianchi, 139 Conn. 543, 548, 95 A.2d 695 (1953); State v. Hayes, 127 Conn. 543, 601-602, 18 A.2d 895 (1941). In all of these cases statements of prosecution witnesses in the possession of the state’s attorney were required to be produced for examination by the court for the purpose of ascertaining whether they contained inconsistencies with the testimony of a witness. Although this case appears to be the first criminal case in this state involving the production of statements of defense witnesses in the possession of the defendant, the clear implication of these authorities is that the Brown-Hurley rule is applicable to witnesses for the defense as well as the prosecution in both criminal and civil cases.

Practice Book § 752 modifies our previous procedure with respect to disclosure of prosecution witness statements by removing the trial judge’s preliminary inspection of the statement for inconsistencies as a prerequisite to making the statement available to the defendant. The rule leaves no room for the exercise of trial judge discretion, but mandates delivery of the statement after the prosecution witness has testified on direct examination. The Brown-Hurley rule, as applied to the statements of defense witnesses, would entitle a defendant to the exercise of such discretion before being compelled to surrender such statements. In this case it does not appear that the trial judge did conduct a preliminary examination of the statement of the defense witness Delores Jackson before ordering it to be delivered to the prosecutor. This deviation from the Brown-Hurley rule, however, was harmless because it is undisputed that her statement contained a glaring and significant inconsistency with her testimony. We need not be concerned in any event, since there must be a retrial because of the rulings concerning the testimony of the rape crisis counselor. At the new trial another judge should not be foreclosed from exercising his discretion to permit disclosure of this highly material inconsistency in the event that Jackson should again be called as a defense witness.

The majority does not address the claim of the defendant that to allow access to statements of -witnesses given to investigators employed by the defense may infringe upon the right against self-incrimination, the right to effective assistance of counsel or upon the work product privilege. I think these concerns have been largely set to rest by United States v. Nobles, 422 U.S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975). “[T he Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial.” Id., 234. With respect to the work product doctrine and related assistance of counsel claims, the Nobles court held that the work product privilege was qualified and that by presenting his investigator as a witness a defendant waived the privilege with respect to matters covered by such testimony; the investigator’s report to the defense attorney, therefore, was accessible to the prosecutor. Id., 238-40. “Respondent can no more advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials than he could elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross-examination on matters reasonably related to those brought out in direct examination.” Id., 239-40. As the opinion notes, the federal courts since 1980, pursuant to rule 26.2 of the Federal Rules of Criminal Procedure, permit disclosure of the statements of witnesses who have testified for the defense as well as those who have testified for the prosecution without distinction.

The cause of truth is ill served by imposing a restriction upon the Brown-Hurley rule that heretofore has been understood to apply to both prosecution and defense witnesses. In doing so the majority opinion has created a novel privilege, unwarranted by any constitutional provision, for a defendant to withhold material unquestionably significant in ascertaining whether a witness has testified falsely. In uncovering false testimony of witnesses at a trial a prosecutor should not be placed under a greater handicap than defense counsel.

Accordingly, I dissent from part I of the opinion.

       The pertinent portion of the cross-examination by the state is as follows:
      “Q. Mrs. Jackson, did you give a written statement to anybody concerning this matter?
      “A. I didn’t give anyone a written statement. An investigator spoke with me on the bus and he tape-recorded what I said.
      “Mr. Lyons: May I have that tape-recorder and have it so I may be able to see what’s on there, if Your Honor please?
      “Mr. Ruane: May the jury be excused, Your Honor?
      “The Court: Ladies and gentlemen of the jury, I will ask you to retire.
      (Whereupon the jury was excused at 10:55 a.m.)
      “Mr. Ruane: I move for a dismissal. The State knows that’s not produce-able. There’s nothing in the Practice Book. There’s nothing in the Connecticut General Statutes and there’s nothing in the Constitution that requires an attorney’s work product to be given to the State. And to say that in front of the jury, demands that I ask and Your Honor grant a motion to dismiss this case. So I make that motion at this time.
      “Mr. Lyons: It’s no different than the statement given by Mrs. Johnson which Your Honor allowed in evidence.
      “The Court: Motion denied.
      “Mr. Ruane: May I have an exception?
      “The Court: Exception noted.
      “Mr. Ruane: I ask Your Honor to declare a mistrial on the same grounds.
      “The Court: If it’s a statement that was given by the witness, why shouldn’t you have to produce it just as he has to produce any statement of any witness that he—that he has taken? After the witness testifies, he is required to produce that statement. Why aren’t you?
      “Mr. Ruane: Because there’s no law that gives him the power to ask for it or demand that I give it to him.
      “The Court: I think that rule extends both ways.”

       Article first, § 8, of the Connecticut Constitution, provides in part: “No person shall be compelled to give evidence against himself . . . .”

       The defendant’s mother testified that the defendant arrived home at approximately 2:40 p.m. on February 8, 1983. As stated earlier, Marion Johnson, the friend of the mother of the defendant’s girlfriend, testified that the defendant got off bus No. 12 in Bridgeport at approximately 2:40 p.m. nication skills, working with diverse populations, an overview of the state criminal justice system, information about hospital and medical systems and information about state and community resources for sexual assault victims, (B) is certified as a counselor by the sexual assault center which has provided such training, (C) is under the control of a direct services supervisor of a rape crisis center, and (D) whose primary purpose is the rendering of advice, counseling and assistance to, and the advocacy of the cause of, victims of sexual assault.

       “[General Statutes (Rev. to 1985)] See. 52-146k. privileged communications BETWEEN BATTERED WOMEN’S OR SEXUAL ASSAULT COUNSELOR and victim, (a) As used in this section . . . (5)‘Sexual assault counselor’ means any person engaged in a rape crisis center who (A) has undergone a minimum of twenty hours of training which shall include, but not be limited to, the dynamics of sexual assault and incest, crisis intervention, commu-

        “(6) ‘victim’ means any person who consults a battered women’s counselor or a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by a battering or a sexual assault.
      “(b) A battered women’s counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor by a victim in any civil or criminal case or proceeding or in any legislative or administrative proceeding unless the victim making the confidential communications waives the privilege, provided under no circumstances shall the location of the battered women’s center or rape crisis center or the identity of the battered women’s counselor or sexual assault counselor be disclosed in any civil or criminal proceeding.
      * ** *
      “(e) The privilege established by this section shall not apply: (1) In matters of proof concerning chain of custody of evidence; (2) in matters of proof concerning the physical appearance of the victim at the time of the injury; or (3) where the battered women’s counselor or sexual assault counselor has knowledge that the victim has given perjured testimony and the defendant or the state has made an offer of proof that perjury may have been committed. . . .”
      In 1985, § 52-146k (b) was amended to read as follows: “On or after October 1, 1983, a battered women’s counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor at any time by a victim in any civil or criminal case or proceeding or in any legislative or administrative proceeding unless the victim making the confidential communications waives the privilege, provided under no circumstances shall the location of the battered women’s center or rape crisis center or the identity of the battered women’s counselor or sexual assault counselor be disclosed in any civil or criminal proceeding. Any request made on or after October 1, 1983, by the defendant or the state for such confidential communications shall be subject to the provisions of this subsection.” See Public Acts 1985, No. 85-112, effective October 1, 1985.

       After the court ruled that the subpoena must be quashed, the following colloquy occurred:
      “Mr. Ruane: For the purpose of, at least, an appellate record in this case, I want to tell the Court that—as I just said and Your Honor denied me the privilege of calling the Rape Crisis counselors and to inquire of them if they obtained a description of the perpetrator—
      “The Court: If what?
      “Mr. Ruane: If they obtained from [the victim] a description of the person who attacked her, what her degree of certitude was if she made an identification; her narration of the events of the assault if it is contained in the record; whether any advice was given on how to identify the perpetrator in a Courtroom or in a lineup or in a showup; advice as to how to testify in a Courtroom; any notes concerning the advisor noting the demeanor of [the victim] when interviewed; her physical condition; the presence of any third parties at the time these communications occurred other than those contemplated by the statute and whether or not in this particular case, she had prior contact with the Rape Crisis authorities and those same questions would apply to any prior contact with them for any prior crime committed against her.
      “The purpose of that, obviously, is to test her ability as a witness to remember, to narrate and to—

        “The Court: I denied the request.
      “Mr. Lyons: Your Honor, you denied—
      “The Court: Let me go back and start all over again. I’m granting the motion to quash the subpoena. . . .
      “Mr. Ruane: Exception noted.
      “The Court: Very well.”

       At oral argument and in a footnote to the defendant’s brief, a question was raised concerning the dates on which the communications to the rape crisis counselor occurred. The question suggests that if some of the communications were made prior to October 1,1983, the effective date of the amendment to General Statutes § 52-146k, the privilege afforded by that provision may be inapplicable. The defendant reasons that prior to the enactment of Public Acts 1985, No. 85-112, which made the privilege applicable to communications made “at any time”; see footnote 4, supra; the privilege did not apply to communications made prior to October 1, 1983. See State v. Lizotte, 200 Conn. 734, 738-40, 517 A.2d 610 (1986).
      We need not discuss this issue, however, because at the new trial we have ordered, the court must apply General Statutes § 52-146k as amended by Public Acts 1985, No. 85-112. Since Public Acts 1985, No. 85-112, makes the privilege applicable to communications regardless of when they were made, the communications in this case would be privileged even if some were made prior to October 1, 1983.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    County Fire Door Corporation v. C. F. Wooding Company
    (12898)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued December 10, 1986
    decision released February 10, 1987

      Donald C. hunt, for the appellant (defendant).

      Michael J. Whalen, with whom, on the brief, was Martin M. Looney, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this appeal is whether the Uniform Commercial Code modifies the common law of accord and satisfaction so that a creditor can now effectively reserve his rights against a debtor while cashing a check that the debtor has explicitly tendered in full satisfaction of an unliquidated debt. The plaintiff, County Fire Door Corporation, brought an action in two counts against the defendant, C. F. Wooding Company, to recover moneys allegedly owed for goods sold and delivered. Before trial, the plaintiff withdrew the first count, a suit on a default judgment obtained in New York. On the second count, the trial court found the issues for the plaintiff and awarded it damages of $2100. The defendant has appealed from the trial court’s subsequent denial of its motion to set aside the judgment against it. We find error.

The trial court’s articulation and the exhibits at trial establish the following facts. On November 17, 1981, the defendant ordered a number of metal doors and door frames from the plaintiff. The plaintiff undertook responsibility for delivery of the goods to the worksite. Alleging that the plaintiff’s delay in delivery of the doors and frames had caused additional installation expenses, the defendant back charged the plaintiff an amount of $2180. The defendant informed the plaintiff that, on the basis of this back charge, and other payments and credits not at issue, the remaining balance due the plaintiff was $416.88. The plaintiff responded by denying the validity of this back charge. According to the plaintiff, the balance due on its account was $2618.88. The defendant immediately replied, in writing, that it would stand by its position on the validity of the back charge and the accuracy of its calculation of the amount owed to the plaintiff.

The defendant thereafter, on January 10,1983, sent the plaintiff the check that is at the heart of the present controversy. The check was in the amount of $416.88. It bore two legends. On its face was the notation:

‘“Final payment
Upjohn Project
Purchase Order #3302 dated 11/17/81.”

On the reverse side, the check stated: “By its endorsement, the payee accepts this check in full satisfaction of all claims against the C. F. Wooding Co. arising out of or relating to the Upjohn Project under Purchase Order #3302, dated 11/17/81.” The plaintiff did not advise the defendant directly that it planned to cash this check under protest. Instead, the plaintiff crossed out the conditional language on the reverse side of the check and added the following: “This check is accepted under protest and with full reservation of rights to collect the unpaid balance for which this check is offered in settlement.” The plaintiff then indorsed and deposited the check in its account.

The defendant made no further payments to the plaintiff and the plaintiff brought the present action to recover the remaining amount to which it claimed it was entitled. The trial court rendered judgment for the plaintiff on two grounds. The court agreed with the plaintiff that the enactment of General Statutes § 42a-l-207 had deprived debtors generally of the power unilaterally to enforce the terms of a conditional tender of a check to their creditors. Furthermore, in the specific circumstances of this case, the court concluded that the plaintiff could rightfully treat the defendant’s offer of an accord as if it had been a payment on account, because the amount of the tender had been no more than the amount the defendant itself had calculated to be due and owing to the plaintiff. For these reasons, the court awarded the plaintiff $2100 as the unpaid balance of the account.

The defendant’s appeal does not contest the monetary calculation used by the court in arriving at the amount of the judgment against the defendant, but maintains instead that the trial court erred because the plaintiff’s cause of action was foreclosed as a matter of law. The defendant maintains that, when the plaintiff knowingly cashed a check explicitly tendered in full satisfaction of an unliquidated debt, the plaintiff became bound by the terms of settlement that the check contained. The defendant’s argument takes issue with both aspects of the contrary ruling of the trial court. First, the defendant claims that the plaintiff’s action of cashing this check constituted an acceptance of its offer, including its terms of settlement, despite the plaintiff’s reliance on § 42a-l-207 for authority to substitute words of protest for words of satisfaction. Second, the defendant claims that the amount that it tendered the plaintiff constituted a valid offer of an accord and satisfaction because the underlying debt was unliquidated in amount. We agree with both of the defendant’s claims. We will, however, take them up in reverse order, because we would not reach the statutory issue if the defendant had failed to establish its common law defense to the plaintiff’s cause of action.

I

When there is a good faith dispute about the existence of a debt or about the amount that is owed, the common law authorizes the debtor and the creditor to negotiate a contract of accord to settle the outstanding claim. Such a contract is often initiated by the debtor, who offers an accord by tendering a check as “payment in full” or “in full satisfaction.” If the creditor knowingly cashes such a check, or otherwise exercises full dominion over it, the creditor is deemed to have assented to the offer of accord. Upon acceptance of the offer of accord, the creditor’s receipt of the promised payment discharges the underlying debt and bars any further claim relating thereto, if the contract of accord is supported by consideration. Kelly v. Kowalsky, 186 Conn. 618, 621, 442 A.2d 1355 (1982); W.H. McCune, Inc. v. Revzon, 151 Conn. 107, 109, 193 A.2d 601 (1963); Bull v. Bull, 43 Conn. 455, 462 (1876); 2 Restatement (Second), Contracts (1981) § 281; E.A. Farnsworth, Contracts (1982) § 4.23, esp. p. 282.

A contract of accord and satisfaction is sufficiently supported by consideration if it settles a monetary claim that is unliquidated in amount. This court has had numerous occasions to decide whether, in the context of accord and satisfaction, a claim is unliquidated when the debtor tenders payment in an amount that does not exceed that to which the creditor is concededly entitled. “Where it is admitted that one of two specific sums is due, but there is a dispute as to which is the proper amount, the demand is regarded as unliquidated, within the meaning of that term as applied to the subject of accord and satisfaction. . . . Where the claim is unliquidated any sum, given and received in settlement of the dispute, is a sufficient consideration.” Hanley Co. v. American Cement Co., 108 Conn. 469, 473, 143 A. 566 (1928); W.H. McCune, Inc. v. Revzon, supra; Crowder v. Zion Baptist Church, Inc., 143 Conn. 90, 98-99, 119 A.2d 736 (1956); Perryman Burns Coal Co. v. Seaboard Coal Co. 128 Conn. 70, 73, 20 A.2d 404 (1941); Bull v. Bull, supra; see also 1 Restatement (Second), Contracts (1981) § 74, esp. illustration 4; E.A. Farnsworth, supra, § 4.23, p. 281.

Application of these settled principles to the facts of this case establishes, as the defendant maintains, that the parties entered into a valid contract of accord and satisfaction. The defendant offered in good faith to settle an unliquidated debt by tendering, in full satisfaction, the payment of an amount less than that demanded by the plaintiff. Under the common law, the plaintiff could not simultaneously cash such a check and disown the condition on which it had been tendered. Kelly v. Kowalsky, supra, and authorities therein cited. Having received the promised payment, the plaintiff discharged the defendant from any further obligation on this account, unless the enactment of § 42a-l-207 of the Uniform Commercial Code has changed this result.

II

The principal dispute between the parties is what meaning to ascribe to § 42a-l-207 when it states that “[a] party who with explicit reservation of rights . . . assents to performance in a manner . . . offered by the other party does not thereby prejudice the rights reserved. Such words as ‘without prejudice,’ ‘under protest’ or the like are sufficient.” The plaintiff contends, as the trial court concluded, that this section gave the plaintiff the authority to cash the defendant’s check “under protest” while reserving the right to pursue the remainder of its underlying claim against the defendant at a later time. The defendant maintains that the statutory reference to “performance” contemplates something other than the part payment of an unliquidated debt. We noted in Kelly v. Kowalsky, supra, 622 and n.3, that there was considerable disagreement in the cases and the scholarly commentaries about the scope of the transactions governed by § 42a-l-207, but did not then undertake to resolve this disagreement. We now decide that § 42a-l-207 does not displace the common law of accord and satisfaction and that the trial court erred in so concluding.

Because § 42a-l-207 is part of the Uniform Commercial Code, it is important to reconcile its provisions with those found in other articles of the code. See Barco Auto Leasing Corporation v. Home, 202 Conn. 106, 115, 520 A.2d 162 (1987); Galvin v. Freedom of Information Commission, 201 Conn. 448, 456, 518 A.2d 64 (1986); W. Grosse & E. Goggin, “Accord and Satisfaction and the 1-207 Dilemma,” 89 Com. L.J. 537, 544 (1984). Two likely candidates for such a reconciliation are the provisions of article 3, dealing generally with the law of negotiable instruments, including checks; General Statutes §§ 42a-3-101 through 42a-3-805; and the provisions of article 2, dealing generally with contracts for the sale of goods. General Statutes §§ 42a-2-101 through 42a-2-725.

Article 3 provides little support for reading § 42a-l-207 to permit a creditor unilaterally to change the terms of a check tendered in full satisfaction of an unliquidated debt. As the parties have noted, § 42a-3-112 (1) (f) preserves the negotiability of a check that includes “a term . . . providing that the payee by indorsing or cashing it acknowledges full satisfaction of an obligation of the drawer.” There is no such validation, anywhere in article 3, for a term on a check that negates a condition that a drawer has incorporated in a negotiable instrument. On the contrary, General Statutes § 42a-3-407 takes a dim view of the unauthorized alteration of an instrument. Under § 42a-3-407 (1) “[a]ny alteration of an instrument is material which changes the contract of any party thereto in any respect . . . .” (Emphasis added.) The effect of the material alteration of a completed instrument is either to discharge the liability, on the instrument, of “any party whose contract is thereby changed,” or to continue the enforceability of the instrument “according to its original tenor.” General Statutes § 42a-3-407 (2) and (3). According to this section, the plaintiffs conduct in substituting words of protest for words of satisfaction would have put the plaintiff at risk of discharging the defendant entirely, if such conduct were deemed to have been fraudulent. General Statutes § 42a-3-407 (2) (a). Even without a finding of fraud, however, the most for which the plaintiff could hope, under article 3, was to enforce the instrument “in full satisfaction,” because that was “its original tenor.” This result is supported by § 42a-3-802 (1) (b), which provides that, presumptively, the taking of a negotiable instrument suspends the underlying obligation “until the instrument is due,” and that “discharge of the underlying obligor on the instrument also discharges him on the obligation.” Under General Statutes § 42a-3-603 (1), a drawer is discharged from liability on an instrument “to the extent of his payment or satisfaction.”

The impact of these various article 3 rules is clear. Because the check tendered by the defendant was only enforceable “according to its original tenor,” the plaintiff, by receiving “payment or satisfaction,” discharged the defendant not only on the instrument but also on the underlying obligation. See J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) pp. 603-604 n.57. To read § 42a-l-207 to validate the plaintiff’s conduct in this case would, therefore, fly in the face of the relevant provisions of article 3, which signal the continued vitality of the common law principles of accord and satisfaction.

Although § 42a-l-207 does not fit easily within the principles of article 3 that govern checks, the section has a close and harmonious connection with article 2. Article 2 regulates ongoing conduct relating to performance of contracts for the sale of goods. That article recurrently draws inferences from acquiescence in, or objection to, the performance tendered by one of the contracting parties. A course of performance “accepted or acquiesced in without objection” is relevant to a determination of the meaning of a contract of sale. General Statutes § 42a-2-208 (l). Between merchants, proposals for additional terms will be added to a contract of sale unless there is a timely “notification of objection.” General Statutes § 42a-2-207 (2) (c); see W. Grosse & E. Goggin, supra, 551. A buyer who is confronted by a defective tender of goods must make a seasonable objection or lose his right of rejection. General Statutes §§ 42a-2-602 (1), 42a-2-605,42a-2-606 (1), 42a-2-607 (2); Plateq Corporation v. Machlett Laborar tories, Inc., 189 Conn. 433, 441-42, 456 A.2d 786 (1983); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 270-72, 439 A.2d 314 (1981). In an instalment sale, a party aggrieved by nonconformity or default that substantially impairs the value of the contract as a whole will nonetheless have reinstated the contract “if he accepts a nonconforming instalment without seasonably notifying of cancellation . . . .” General Statutes § 42a-2-612 (3). A contract whose performance has become impracticable requires the buyer, after-notification by the seller, to offer reasonable alternatives for the modification or the termination of the affected contract; the buyer’s failure to respond, within a reasonable period of time, causes the sales contract to lapse. General Statutes § 42a-2-616 (1) and (2). In these and other related circumstances, article 2 urges the contracting parties to engage in a continuing dialogue about what will constitute acceptable performance of their sales contract. See generally J. White & R. Summers, supra, §§ 3-1 through 3-9. It is entirely consistent with this article 2 policy to provide, as does § 42a-l-207, a statutory methodology for the effective communication of objections. See J. McDonnell, “Purposive Interpretation of the Uniform Commercial Code: Some Implications for Jurisprudence,” 126 U. Pa. L. Rev. 795, 828 (1978).

From the vantage point of article 2, it is apparent that § 42a-l-207 contemplates a reservation of rights about some aspect of a possibly nonconforming tender of goods or services or payment in a situation where the aggrieved party may prefer not to terminate the underlying contract as a whole. See, e.g., Cherwell-Ralli, Inc. v. Rytman Grain Co., 180 Conn. 714, 718, 433 A.2d 984 (1980); W. Grosse & E. Goggin, supra, 551; A. Rosenthal, “Discord and Satisfaction: Section 1-207 of the Uniform Commercial Code,” 78 Colum. L. Rev. 48, 63 (1978). Indeed, the Official Comment to § 42a-l-207 itself explains that the section supports ongoing contractual relations by providing “machinery for the continuation of performance along the lines contemplated by the contract despite a pending dispute.” See W.D. Hawkland, “The Effect of U.C.C. § 1-207 on the Doctrine of Accord and Satisfaction by Conditional Check,” 74 Com. L.J. 329, 331 (1969). It is significant, furthermore, that the text of § 42a-l-207 recurrently refers to “performance,” for “performance” is a central aspect of the sales transactions governed by article 2. By contrast, article 3 instruments, which promise or order the payment of money, are not characteristically described as being performed by anyone. The contracts encapsulated in various forms of negotiable instruments instead envisage conduct of negotiation or transfer, indorsement or guaranty, payment or acceptance, and honor or dishonor. See, e.g., §§ 42a-3-201, 42a-3-413, 42a-3-414, 42a-3-416, 42a-3-418; see generally J. White & R. Summers, supra, §§ 13-6 through 13-10,13-12. We conclude, therefore, that, in circumstances like the present, when performance of a sales contract has come to an end, § 42a-l-207 was not intended to empower a seller, as payee of a negotiable instrument, to alter that instrument by adding words of protest to a check tendered by a buyer on condition that it be accepted in full satisfaction of an unliquidated debt.

Our conclusion is supported by the emerging majority of cases in other jurisdictions. While the case law was divided five years ago, when we postponed resolution of the controversy about the meaning of § 42a-1-207; Kelly v. Kowalsky, supra, 621-22; it is now the view of the substantial majority of courts that have addressed the issue that § 42a-l-207 does not overrule the common law of accord and satisfaction. See Air Van Lines, Inc. v. Buster, 673 P.2d 774, 779 (Alaska 1983); Pillow v. Thermogas Co. of Walnut Ridge, 6 Ark. App. 402, 405, 644 S.W.2d 292 (1982); Connecticut Printers, Inc., v. Gus Kroesen, Inc., 134 Cal. App. 3d 54, 60, 184 Cal. Rptr. 436 (1982); R.A. Reither Construction, Inc., v. Wheatland Rural Electric Assn., 680 P.2d 1342, 1344 (Colo. App. 1984); Eder v. Yvette B. Gervey Interiors, Inc., 407 So. 2d 312, 314 (Fla. App. 1981); Alston v. Insured Credit Services, Inc., 143 Ga. App. 172, 173, 237 S.E.2d 680 (1977); Stultz Electric Works v. Marine Hydraulic Engineering Co., 484 A.2d 1008, 1012 (Me. 1984); Cass Construction Co. v. Brennan, 222 Neb. 69, 75-76, 382 N.W.2d 313 (1986); Chancellor, Inc. v. Hamilton Appliance Co., 175 N.J. Super. 345, 352, 418 A.2d 1326 (1980); Brown v. Coastal Trackways, 44 N.C. App. 454, 458, 261 S.E.2d 266 (1980); Les Schwab Tire Centers v. Ivory Ranch, Inc., 63 Or. App. 364, 664 P.2d 419, 424 (1983); Marton Remodeling v. Jensen, 706 P.2d 607, 610 (Utah 1985); Department of Fisheries v. J-Z Sales Corporation, 25 Wash. App. 671, 681-82, 610 P.2d 390 (1980); John v. Burns, 593 P.2d 828, 830 (Wyo. 1979); contra Bivins v. White Dairy, 378 So. 2d 1122, 1124 (Ala. Civ. App. 1979); Miller v. Jung, 361 So. 2d 788, 789 (Fla. App. 1978); Majestic Building Material Corporation v. Gateway Plumbing, 694 S.W.2d 762, 765-66 (Mo. App. 1985); Braun v. C.E.P.C. Distributors, Inc., 77 App. Div. 2d 358, 361, 433 N.Y.S.2d 447 (1980); Scholl v. Tallman, 247 N.W.2d 490, 492 (S.D. 1976). The majority finds support as well in much of the recent scholarly commentary. See 2 Restatement (Second), Contracts (1981) § 281, comment d; R. Anderson, Uniform Commercial Code (1984) § 3-408-56; W. Grosse & E. Goggin, supra, 546; W.D. Hawkland, supra, 331; J. McDonnell, supra, 824-28; A. Rosenthal, supra, 61; contra J. Calamari & J. Perillo, Contracts (2d Ed. 1977) § 5-16; J. White & R. Summers, supra, § 13-21.

Both under prevailing common law principles, and under the Uniform Commercial Code, the parties in this case negotiated a contract of accord whose satisfaction discharged the defendant from any further monetary obligation to the plaintiff. The plaintiff might have avoided this result by returning the defendant’s check uncashed, but could not simultaneously disregard the condition on which the check was tendered and deposit its proceeds in the plaintiff’s bank account.

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

In this opinion the other justices concurred.

       General Statutes § 42a-l-207 provides: “A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as ‘without prejudice,’ ‘under protest’ or the like are sufficient.”

       It may well be that an accord is enforceable, even in the absence of consideration, if it is supported by a debtor’s reasonable and foreseeable reliance on a promise by a creditor to forgive the remainder of an outstanding debt. See D’Ulisse-Cupo v. Board of Directors, 202 Conn. 206, 218, 520 A.2d 217 (1987); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 205, 520 A.2d 208 (1987); 2 Restatement (Second), Contracts (1981) § 281, comment d and § 290.

       “It would be too technical a use of the doctrine of consideration to release a well-counselled debtor who tenders a nominal amount beyond his admitted debt but to trap one less sophisticated who is induced to pay the undisputed amount in return for his creditor’s illusory promise to forgive the rest.” Kilander v. Blickle Co., 280 Or. 425, 429, 571 P.2d 503 (1977).

       When the parties in this case asked the trial court for an articulation of its rulings in favor of the plaintiff, the plaintiff sought a finding that the defendant’s tender had been in bad faith. The trial court made no such finding.

       A check is a draft drawn on a bank and payable on demand. General Statutes § 42a-3-104 (2) (b).

       General Statutes § 42a-3-407 provides: “(1) Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in (a) the number or relations of the parties; or (b) an incomplete instrument, by completing it otherwise than as authorized; or (c) the writing as signed, by adding to it or by removing any part of it.
      “(2) As against any person other than a subsequent holder in due course (a) alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense; (b) no other alteration discharges any party and the instrument may be enforced according to its original tenor, or as to incomplete instruments according to the authority given.
      “(3) A subsequent holder in due course may in all cases enforce the instrument according to its original tenor, and when an incomplete instrument has been completed, he may enforce it as completed.”

       General Statutes § 42a-3-802 provides: “(1) Unless otherwise agreed where an instrument is taken for an underlying obligation (a) the obligation is pro tanto discharged if a bank is drawer, maker or acceptor of the instrument and there is no recourse on the instrument against the underlying obligor; and (b) in any other case the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored action may be maintained on either the instrument or the obligation; discharge of the underlying obligor on the instrument also discharges him on the obligation.
      “(2) The taking in good faith of a check which is not post-dated does not of itself so extend the time on the original obligation as to discharge a surety.”

       General Statutes § 42a-3-603 (1) provides: “The liability of any party is discharged to the extent of his payment or satisfaction to the holder even though it is made with knowledge of a claim of another person to the instrument unless prior to such payment or satisfaction the person making the claim either supplies indemnity deemed adequate by the party seeking the discharge or enjoins payment or satisfaction by order of a court of competent jurisdiction in an action in which the adverse claimant and the holder are parties. This subsection does not, however, result in the discharge of the liability (a) of a party who in bad faith pays or satisfies a holder who acquired the instrument by theft or who, unless having the rights of a holder in due course, holds through one who so acquired it; or (b) of a party, other than an intermediary bank or a payor bank which is not a depositary bank, who pays or satisfies the holder of an instrument which has been restrictively endorsed in a manner not consistent with the terms of such restrictive endorsement.”

       An earlier version of the Uniform Commercial Code, prior to its enactment in this state, contained a provision, § 3-802 (3), that would have permitted a check tendered in full satisfaction of an obligation to discharge an underlying obligation even when that obligation was undisputed and liquidated. Section 3-802 (3) read as follows: “Where a check or similar payment instrument provides that it is in full satisfaction of an obligation the payee discharges the underlying obligation by obtaining payment of the instrument unless he establishes that the original obligor has taken unconscionable advantage in the circumstances.” It was deleted in 1952 “on the ground that it would work hardship and was open to abuse.” Uniform Commercial Code, 1952 Official Draft (Sup. No. 1) p. 25. None of the legislative history surrounding this section indicates that the draftsmen of article 3 contemplated that § 1-207 would affect § 3-802 (3). This conclusion is further buttressed by the fact that these two sections were never cross-referenced in the relevant Official Comments. See A.J. Rosenthal, “Discord and Dissatisfaction: Section 1-207 of the Uniform Commercial Code,” 78 Colum. L. Rev. 48, 58-61 (1978).

       General Statutes § 42a-2-208 (1) provides: “Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.”

       General Statutes § 42a-2-207 (2) provides: “The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: (a) The offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.”

       General Statutes § 42a-2-602 (1) provides: “Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.”
      General Statutes § 42a-2-605 provides: “(1) The buyer’s failure to state in connection with rejection a particular defect which is ascertainable by reasonable inspection precludes him from relying on the unstated defect to justify rejection or to establish breach (a) where the seller could have cured it if stated seasonably; or (b) between merchants when the seller has after rejection made a request in writing for a full and final written statement of all defects on which the buyer proposes to rely.
      “(2) Payment against documents made without reservation of rights precludes recovery of the payment for defects apparent on the face of the documents.”
      General Statutes § 42a-2-606 (1) provides: “Acceptance of goods occurs when the buyer (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or (b) fails to make an effective rejection as provided by subsection (1) of section 42a-2-602, but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or (c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.”
      General Statutes § 42a-2-607 (2) provides: “Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a nonconformity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably cured but acceptance does not of itself impair any other remedy provided by this article for nonconformity.”

       General Statutes § 42a-2-612 (3) provides: “Whenever nonconformity or default with respect to one or more instalments substantially impairs the value of the whole contract there is a breach of the whole. But the aggrieved party reinstates the contract if he accepts a nonconforming instalment without seasonably notifying of cancellation or if he brings an action with respect only to past instalments or demands performance as to future instalments.”

       General Statutes § 42a-2-616 (1) and (2) provide: “(1) Where the buyer receives notification of a material or indefinite delay or an allocation justified under the preceding section he may by written notification to the seller as to any delivery concerned, and where the prospective deficiency substantially impairs the value of the whole contract under the provisions of section 42a-2-612 relating to breach of instalment contracts then also as to the whole, (a) terminate and thereby discharge any unexecuted portion of the contract; or (b) modify the contract by agreeing to take his available quota in substitution.
      “(2) If after receipt of such notification from the seller the buyer fails so to modify the contract within a reasonable time not exceeding thirty days the contract lapses with respect to any deliveries affected.”


author: Arthur H. Healey, J.

text:
    Teresa D. DeTeves v. Dinis C. DeTeves
    (12890)
    Peters, C. J., Healey, Shea, Callahan and F. Freedman, Js.
    Argued December 9, 1986
    decision released February 10, 1987

      Nanay O’Connell Dodge, for the appellant (defendant).

      Thomas J. Keramidas, with whom, on the brief, were Roy L. Smith and Jane Cable, for the appellee (plaintiff).
   Arthur H. Healey, J.

The issue in this marital dissolution case is whether the defendant husband, Dinis DeTeves, has taken a timely appeal. The procedural background of the case is as follows. This case was originally tried in 1982. In 1984, the Appellate Court found error in the award of alimony and in the property disposition and remanded the case for a rehearing. Upon the rehearing, the court, Schaller, J., awarded the plaintiff the entire interest in a multifamily house in Pawcatuck, $1 per year alimony and attorney’s fees for the rehearing. This decision was filed on May 29, 1985. By motion filed on June 13, 1985, counsel for the defendant requested an extension of time until July 18,1985, within which to file an appeal of the decision of May 29,1985. The reason advanced for the motion was that the defendant resided in the Azores, that he could only be reached by mail and that past experience had shown that four to five weeks were needed for the defendant to receive information from his attorney and to reply. The court, Hendel, J., granted this motion on June 17, 1985.

On July 12, 1985, counsel for the defendant filed a second motion for extension of time until August 19, 1985, within -which to file an appeal. The reasons advanced for this second request for an extension were that counsel had been informed by a relative of the defendant that the defendant was ill and wanted the relative to speak personally to counsel when that relative arrived in the United States in early August, 1985. This motion also indicated that at that time counsel would “then move to file an appeal if it is [the] Defendant’s wishes.” The court, Hendel, J., granted this motion on July 15, 1985.

On July 18, 1985, the plaintiff filed an objection to the second requested extension and asked that a hearing be held on the matter. With copies to counsel dated July 18,1985, the court, Hendel, J., revoked its order of July 15, 1985, granting the defendant’s motion. In addition, the court ordered that the motion for extension of time to file the appeal and the objection filed July 18, 1985, were to be heard before the court, Hendel, J., on July 29,1985. On August 15,1985, the court, Hendel, J., denied the defendant’s request for the second extension.

The defendant filed an appeal to the Appellate Court on August 14,1985. On August 23,1985, the plaintiff filed a motion, pursuant to Practice Book § 3110, to dismiss the appeal as “untimely filed.” After a hearing on this motion, including the defendant’s objections, the Appellate Court granted the motion to dismiss on October 10, 1985. On December 3, 1985, we granted the defendant’s petition for certification.

The defendant claims that the Appellate Court erred in: (1) finding that his appeal was “untimely filed” given the factual pattern of this case; (2) not finding that he was “entitled” to notice of the denial of his second motion for extension of time before the appeal “could be dismissed as ‘untimely filed’ ”; and (3) not providing for a time period in which to perfect his appeal following the unfavorable ruling on his second motion for extension of time. We affirm the action of the Appellate Court dismissing the defendant’s appeal.

“ ‘The right of appeal is purely statutory and is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met.’ ” Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 293, 320 A.2d 797 (1973), quoting Howarth v. Northcott, 152 Conn. 460, 462, 208 A.2d 540 (1965). Practice Book § 3007 (now § 4009) sets forth a clear and specific timetable for the filing of an appeal from a judgment of the trial court. Section 3007 provides in relevant part that “[t]he party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken, file an appeal in the manner prescribed by Sec. 3011 [now § 4012] . . , See also Practice Book § 2000. “The meaning of ‘within’ is ‘ “not longer in time than”; Webster’s New International Dictionary (2d Ed.); “not later than”; 69 C.J. 1315; 45 Words & Phrases (Perm. Ed.), p. 378. The word “within” is almost universally used as a word of limitation, unless there are other controlling words in the context showing that a different meaning was intended.’ ” Royce v. Freedom of Information Commission, 177 Conn. 584, 586, 418 A.2d 939 (1979). Section 3097 (a) (now § 4040) provides for an extension of this twenty day appeal period. Section 3097 (a) provides in relevant part that “[i]n no event shall the trial judge extend the time for filing the appeal to a date which is more than twenty days from the expiration of the original appeal period.” (Emphasis added.) The maximum time within which an appeal can be filed, therefore, is forty days.

The judgment in this case was rendered on May 29, 1985. The defendant’s appeal, therefore, absent a proper extension of time to file an appeal, should have been filed on or before June 18,1985. No appeal was filed within the original twenty day period, but on June 17,1985, the trial court, Hendel, J., granted the defendant’s timely motion, to which the plaintiff did not object, to extend the time to file an appeal until July 18, 1985. The defendant’s motion, on its face, stated that it was “filed under the provisions of Sec. 3097, Connecticut Practice Book.”

The extension to July 18,1985, extended the appeal period beyond that allowed by Practice Book § 3097 (a). Not only was the date of July 18, 1985, well beyond a date “which [was] more than twenty days from the expiration of the original appeal period,” but so were a number of the days immediately preceding that date. The trial court did not have power to grant a motion extending the appeal period beyond July 8, 1985.

The language of § 3097 (a) is clear and unambiguous. State v. Cook, 183 Conn. 520, 522-23, 441 A.2d 41 (1981); see Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986). Significantly, the relevant sentence of § 3097 (a) was added by amendment effective October 1, 1982. Prior to that amendment, § 3097 (a) consisted of one sentence which simply provided: “If an appeal has not yet been filed, the judge who tried the case may, for good cause shown, extend the time provided for filing the appeal, except as may be otherwise provided in these rules.” (Emphasis added.) The 1982 amendment, in addition to the “no event” language, also inserted the word “shall” into § 3097 (a) where previously the word “may” appeared in delineating the trial judge’s authority. This underscores our interpretation that “shall” in the 1982 amendment is mandatory. The rules of statutory construction are “clearly applicable” to the construction of our rules of practice. State v. Cook, supra, 521. Thus, the words “shall” and “may” as used in § 3097 (a), and indeed throughout § 3097, are to be accorded their plain and ordinary meanings. General Statutes § 1-1; Farricielli v. Personnel Appeal Board, 186 Conn. 198, 203, 440 A.2d 286 (1982). The use of “shall” in § 3097 (a), “commonly mandatory and directory in connotation, [is] a factor that evidences affirmative selectivity of terms with specific intent to be distinctive in meaning.” Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978); Caulkins v. Petrillo, supra. The plain language of § 3097 (a) does not provide the trial court with power to extend the time period for filing an appeal more than twenty days from the expiration date of the original appeal period.

The absence of power in the trial court is dispositive of this case. The appeal should have been filed at the latest on July 8, 1985. It in fact was not filed until August 14, 1985. The Appellate Court correctly granted the plaintiff’s timely motion to dismiss the appeal as untimely.

The defendant next argues that the filing of a motion to extend the time period for filing an appeal tolls the expiration of the time period for filing an appeal until the court rules on the motion to extend. In support of this argument, the defendant points to his ability to file for an extension at any time before the expiration date of the original appeal period and the plaintiff’s ability to object to that request. The defendant maintains that this procedure presents the possibility that the initial time period will expire before the court rules on the motion and the objection thereto. The defendant maintains that fairness dictates that, in such situations, the appellant be given an additional time, after the denial of his request to extend, to perfect his appeal. In effect, the defendant is urging this court to permit an automatic extension of the appeal period whenever a trial judge denies a request for an extension made at or near the expiration of the appeal period. The defendant contends that to hold otherwise would “thwart” the purpose of allowing requests for extensions and require the filing of an appeal or risk dismissal for untimely filing.

We need not reach the merits of the defendant’s argument because the defendant’s second motion for extension of time was filed July 12,1985, a date which was after the expiration of the time limit sought to be extended. Moreover, the Practice Book rules do not confer discretion upon the trial judge to enlarge the appeal period more than twenty days from the expiration of the original appeal period.

We affirm the Appellate Court’s judgment to dismiss the defendant’s appeal.

In this opinion the other justices concurred.

       That objection stated the following:
      “objection to motion to extend
      TIME FOR FILING APPEAL
      Counsel for the Plaintiff objects to the Defendant’s motion to extend the time for filing an appeal and respectfully requests the court to set a date for a hearing on the matter.
      This request is filed under the provision of § 3097 (c) (2) of the Connecticut Practice Book.”

       The defendant’s brief states that on August 17,1985, he received from the Superior Court clerk’s office a copy of this denial on which the date of denial “appears to be August 5,1985, but it is stamped ‘Filed August 15, 1985 Superior Court’ and ‘copies to counsel 8-15-85.’ ”
      The defendant’s counsel, who is a member of the Connecticut and Rhode Island bars, maintained her office in Westerly, Rhode Island, at the time of these proceedings in 1985.

       Practice Book § 3110 (now § 4056) provides: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Secs. 3098 [now § 4041] and 3099 [now § 4042] within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. The court may on its own motion order that an appeal be dismissed for lack of jurisdiction.”

       The motion to dismiss the appeal stated the following: “The plaintiff in the above captioned matter respectfully requests the court to dismiss the defendant’s appeal as untimely filed. This motion is filed pursuant to Section 3110, Connecticut Practice Book.”

       Practice Book § 3097 (now § 4040) provides in part: “extension of time
      “(a) If an appeal has not yet been filed, the judge who tried the case may, for good cause shown, extend the time provided for filing the appeal, except as may be otherwise provided in these rules. In no event shall the trial judge extend the time for filing the appeal to a date which is more than twenty days from the expiration date of the original appeal period.
      * ** *
      “(4) No motion under this rule shall be granted unless it is filed before the time for filing the appeal or subsequent paper has expired.”

       After remand, the trial court, Schaller, J., held a hearing. After this hearing, the trial court filed its written memorandum of decision dated May 23,1985, in the clerk’s office on May 29,1985. “A judgment is in fact rendered in a cause tried to the court when the trial judge officially announces his decision orally in open court, or, out of court, signifies orally or in a writing filed with the clerk in his official capacity the decision pronounced by him.” Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 535, 294 A.2d 573 (1972); see also State v. Nardini, 187 Conn. 109, 127, 445 A.2d 304 (1982).

       The general rule is that where a period of time is to be calculated from a particular date or event, the day of such date or event is excluded from the computation. Lamberti v. Stamford, 131 Conn. 396, 397-98, 40 A.2d 190 (1945).

       The record before us does not disclose that the plaintiff raised any question that the extension granted to July 18,1985, was “more than twenty days from the expiration date of the original appeal period.”

       We, of course, do not know nor can we speculate whether the Appellate Court granted the motion to dismiss because the appeal was filed after the expiration of the first extension or because the trial court lacked the power to grant an extension beyond forty days.

       We note that there is nothing in the record before us to demonstrate that the defendant ever requested that the Appellate Court suspend its rules to permit a late appeal. See Practice Book § 3096 (now § 4183). It is not necessary, therefore, for us to address any claim going to the discretion of the Appellate Court.
      We note also that Practice Book § 3097 (now § 4040) has been amended, effective October 1,1986. That section currently states, inter alia: “Where a timely motion for extension of the period of time within which to appeal has been filed at least ten days before expiration of the time limit sought to be extended, the party seeking to appeal shall have no less than ten days from issuance of notice of denial of the motion to file his appeal.”