author: Hull, J.

text:
    Chrysler Corporation v. Richard Maiocco et al.
    (13474)
    (13475)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued November 8, 1988
    decision released January 17, 1989

      Stephen R. Park, assistant attorney general, with whom were Garry Desjardins, assistant attorney general, Robin Bruce Sandler and, on the brief, Joseph I. Lieberman, attorney general, and Robert M. Langer, assistant attorney general, for the appellants (defendants).

      Thomas R. Legenhausen, with whom, on the brief, was Mark R. Kravitz, for the appellee (plaintiff).
   Hull, J.

This case raises the issue of whether, in an arbitration proceeding pursuant to General Statutes Chapter 743b (Lemon Law I and II), arbitrators have the power to award attorney’s fees to the consumer. We conclude that the arbitrators do have such power and find error in the trial court’s judgment vacating that part of the arbitration award granting attorney’s fees to the named defendant, Richard Maiocco.

The factual and procedural posture of this case is not in dispute. On June 10, 1985, Maiocco bought a new Jeep Laredo from Stahls, Inc., a Derby automobile dealer. He returned the vehicle to the dealer four times because of a “hesitation” problem. The dealer eventually diagnosed the problem and attempted to repair it in April, 1987. While Maiocco was on a vacation trip to Lake George, New York, on July 22,1987, “the car hesitated while climbing a hill, made a clanking noise, and stopped.” Maiocco had the car towed back to his home in Orange.

Maiocco filed a request for arbitration with the department of consumer protection on September 4, 1987. In response, the plaintiff, on November 13,1987, offered to buy back the car. Maiocco rejected the manufacturer’s offer because it did not address additional damages. He thereafter filed for arbitration pursuant to General Statutes § 42-181. On September 21, 1987, the department of consumer protection reviewed the request for arbitration and determined that the statutory requirements were met under § 42-181 and scheduled an arbitration hearing for December 17, 1987. After the December 17, 1987 hearing, the arbitration panel made a written award in favor of Maiocco, finding that the vehicle was returned to the dealer more than four times for hesitation and that the vehicle was in a condition that severely impaired its use, value and safety. The plaintiff has not challenged these findings. The arbitration panel awarded Maiocco broad remedies under § 42-181 including a refund of the purchase price and various items of consequential damages. The arbitrators also awarded Maiocco $1125 in attorney’s fees, finding that “these were incurred as the direct result of the vehicle’s defect.”

On January 20, 1988, the plaintiff filed an application with the Superior Court seeking an order vacating the arbitration award between itself and Maiocco. The plaintiff claimed that General Statutes §§ 42-179 through 42-184 (chapter 743b, entitled Automobile Warranties) violated its right to a jury trial guaranteed by article first of the Connecticut constitution and violated the separation of powers provision of article second as well as article fifth, § 1, of the Connecticut constitution. The plaintiff did not press these constitutional claims at the hearing on its petition but rather sought to have that portion of the award granting attorney’s fees to Maiocco vacated on the ground that the arbitrators had exceeded their powers in awarding them. On March 1,1988, the court granted the motion of the department of consumer protection to be made a party defendant.

The trial court concluded that: (1) the controlling statutes defined the powers of the arbitrators; (2) nowhere in chapter 743b are arbitrators expressly authorized to award attorney’s fees; (3) the legislative history of chapter 743b offers no guidance as to the intent of the legislature regarding authorization of arbitrators to award attorney’s fees; (4) as a general rule, absent contractual or statutory authorization for an award of attorney’s fees, each party must pay its own attorney’s fees; and (5) the words of chapter 743b do not manifestly express the intent to authorize arbitrators to award attorney’s fees in a chapter 743b arbitration. The court rendered judgment vacating that portion of the award allowing attorney’s fees, and this appeal followed. The defendants briefed the single issue of whether the trial court erred in concluding that in an arbitration proceeding under chapter 743b of the General Statutes, the arbitrators exceeded their powers in awarding attorney’s fees to Maiocco.

In Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 67-74, 523 A.2d 486 (1987), we analyzed the statutory background of this case: “In 1982, the Connecticut legislature enacted Public Acts 1982, No. 82-827 (Lemon Law I). That act is codified as General Statutes § 42-179. For consumer buyers of new motor vehicles, the act provides supplemental remedies of repair, replacement and refund to facilitate the enforcement of express warranties made by the manufacturers of such vehicles. These supplemental remedies come into play whenever a manufacturer or authorized dealer, after a reasonable number of repair attempts, is unable substantially to conform a new vehicle to the terms of the express warranty. . . .

“In 1984, the legislature enacted Public Acts 1984, No. 84-338 (Lemon Law II), now codified as General Statutes §§ 42-181 through 42-184. The purpose of Lemon Law II is to provide, for consumer purchasers of new motor vehicles, an alternative to civil litigation. The key provision is § 42-181, which authorizes the department of consumer protection to establish ‘an independent arbitration procedure for the settlement of disputes between consumers and manufacturers of motor vehicles which do not conform to all applicable warranties under the terms of section 42-179.’ Whether to invoke arbitration under the act is a decision for the consumer: only the consumer may initiate arbitration proceedings, and the consumer may decide whether to accept the decision of the arbitration panel. General Statutes § 42-181 (b), (c). Once a consumer has brought a grievance to the statutory arbitration panel, the manufacturer must cooperate, in good faith, with all aspects of the arbitration procedure. General Statutes §§ 42-181 (b), (c) and 42-184. The department of consumer protection has promulgated the necessary regulations, effective December 18, 1984, to create the automobile dispute settlement panels mandated by Lemon Law II. Regs., Conn. State Agencies § 42-1-181 et seq.

“The legislature amended both Lemon Law I and Lemon Law II in 1985, when it enacted Public Acts 1985, No. 85-331, codified as General Statutes § 42-179a and as amendments to §§ 42-179, 42-181, 42-182 and 42-185. The amendments, in addition to making a number of procedural changes, empowered the attorney general to certify a manufacturer’s informal dispute settlement mechanism as complying with 16 C.F.R. § 703 et seq., thus avoiding the state’s arbitration panels under Lemon Law II. To date, no manufacturer has obtained such certification. A report of the attorney general that has been made an exhibit criticizes existing private programs for, inter alia, their ‘exclusion of consequential damages’ from the arbitration process.

“The state has begun to implement and enforce Lemon Law II according to its terms. Arbitration panels have heard and resolved numerous consumer complaints pursuant to the applicable statutory and regulatory provisions.” (Emphasis added.) Section 42-181 was further amended by Public Acts 1987, No. 87-522, § 3, in procedural aspects not pertinent here.

To focus clearly on the issue in this case we must first point out the four separate statutory areas involved in the overall Lemon Law apparatus that do authorize payment of attorney’s fees. The first is General Statutes § 42-180 (added to chapter 743b [Lemon Law I] by Public Acts 1983, No. 83-351), which provides: “costs AND ATTORNEY’S FEES IN BREACH OF WARRANTY actions. In any action by a consumer against the manufacturer of a motor vehicle, or the manufacturer’s agent or authorized dealer, based upon the alleged breach of an express or implied warranty made in connection with the sale of such motor vehicle, the court, in its discretion, may award to the plaintiff his costs and reasonable attorney’s fees or, if the court determines that the action was brought without any substantial justification, may award costs and reasonable attorney’s fees to the defendant.”

It is important to note that Lemon Law I made no provision for attorney’s fees, but left the dissatisfied consumer to his ordinary civil remedies without the possibility of such an award. Two additional facets of § 42-179 (Public Acts 1982, No. 82-287, [Lemon Law I] deserve attention. The first is the carrot and stick provision now contained in § 42-179 (i), which provides: “[I]f a manufacturer has established an informal dispute settlement procedure which is certified by the attorney general as complying in all respects with the provisions of Title 16 Code of Federal Regulations Part 703, as in effect on October 1,1982, and with the provisions of subsection (b) of section 42-182, the provisions of subsection (d) of this section concerning refunds or replacement shall not apply to any consumer who has not first resorted to such procedure.” This subsection shows an emerging legislative awareness of the need for a more practical and economical means of resolving disputes over vehicle warranties than civil litigation. The second factor we note is that Lemon Law I, in § 42-179 (g), provides that “[a]ll express and implied warranties arising from the sale of a new motor vehicle shall be subject to the provisions of part 3 of article 2 of title 42a [General Statutes §§ 42a-2-301 through 42a-2-326, the part of the Uniform Commercial Code containing §§ 42a-2-312 through 42a-2-318, the UCC’s provisions concerning warranties applicable to sales contracts].” Part 3 also does not provide for attorney’s fees to either party in a dispute.

Thus, the adoption of § 42-180 in 1983 was the first instance of an authorization of attorney’s fees in the evolutional development of the Lemon Law legislation. By its terms it authorized the granting of attorney’s fees to either party.

The second major provision for attorney’s fees is found in Lemon Law II, General Statutes § 42-181 (c) (5). It provides that if the arbitration decision is accepted by the consumer, either party to the arbitration may apply to the Superior Court for an order confirming, vacating, modifying or correcting any award in accordance with the relevant statutes. It then provides that “[i]f it is determined by the court that the manufacturer has acted without good cause in bringing an appeal of an award, the court, in its discretion, may grant to the consumer his costs and reasonable attorney’s fees.” Once again, attorney’s fees are authorized in a court proceeding, and in this case to the consumer only.

A third possible authorization for attorney’s fees is also found in § 42-181 (c) (5), which grants, among other remedies available to a consumer, “[a]ny other remedies available under the applicable warranties, section 42-179, this section and sections 42-182 to 42-184, inclusive, or the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 88 Stat. 2183 (1975), 15 USC 2301 et seq., as in effect on October 1,1982.” Magnuson-Moss gives authority to the court to grant attorney’s fees in a civil suit. Title 15 of the United States Code, § 2310 (d) provides: “If a consumer finally prevails in any action brought under . . . this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.”

The fourth instance of opening the door to attorney’s fees is found in a legislative triple play also contained in § 42-181 (c) (5) which, as stated previously, affords a consumer “[a]ny other remedies available under the applicable warranties, section 42-179, this section and sections 42-182 to 42-184, inclusive . . . .”

General Statutes § 42-184 (originally § 5 of Public Acts 1984, No. 84-338) provides: “A violation of any of the provisions of sections 42-179 and 42-181 to 42-183, inclusive, shall be deemed an unfair or deceptive trade practice under chapter 735a [General Statutes § 42-110a et seq., the Unfair Trade Practices Act (CUTPA)].”

General Statutes § 42-110g (a) provides in part that “[a]ny person who suffers any ascertainable loss of money or property ... as a result of the use or employment of a method, act or practice prohibited by section 42-110b [the section delineating unfair trade practices], may bring an action ... to recover actual damages.” Finally, subsection (d) of § 42-110g states in part that “[i]n any action brought by a person under this section, the court may award, to the plaintiff . . . costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery.”

We now look to the claims of the parties. The defendants claim that: (1) the language of § 42-181 defines the powers of the arbitrators; (2) § 42-181 (c) (4) clearly authorizes arbitration panels to award attorney’s fees by the referential incorporation of the Magnuson-Moss and CUTPA provisions previously described; (3) the court’s decision confused the statutory remedies incorporated into Lemon Law II with the issue of what body may award such fees; (4) public policy considerations as reflected in the legislative history of Lemon Law II show an intention to authorize arbitrators to award attorney’s fees; and (5) the award of attorney’s fees is critical to the effective enforcement of consumers’ rights in arbitration proceedings.

The plaintiff claims that: (1) Connecticut follows the traditional “American rule” that attorney’s fees are not recoverable; (2) there is no explicit provision in Lemon Law II or in the other statutes incorporated by reference providing that arbitrators may award attorney’s fees; (3) neither CUTPA nor the Magnuson-Moss Act authorize arbitrators to award attorney's fees; (4) both CUTPA and Magnuson-Moss allow attorney’s fees only subject to the sound discretion of the court; and (5) the statutory scheme of chapter 743b confirms that arbitrators lack authority to award attorney’s fees.

We agree with the plaintiff's first four arguments summarized above. First, “[t]he general rule of law known as the ‘American rule’ is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); Fleischmann Distilling Corporation v. Maier Brewing Co., 386 U.S. 714, 717, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967). This rule is generally followed throughout the country. See 20 Am. Jur. 2d, Costs § 72. Connecticut adheres to the American rule.” Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 652, 529 A.2d 702 (1987). Second, it is undisputed that there are no explicit provisions in the Lemon Law apparatus authorizing arbitrators to award attorney’s fees. The plaintiff’s argument, however, proves nothing, for if such authority were specifically contained in the statutes this action would not be before us. Third, neither CUTPA nor Magnuson-Moss authorizes arbitrators to award attorney’s fees. This fact can readily be explained by the fact that neither CUTPA nor Magnuson-Moss provides for the use of arbitrators. Fourth, both CUTPA and Magnuson-Moss allow attorney’s fees subject only to the sound discretion of the court. Once again, this fact sheds no light on the issue in this case but rather reflects the procedural stance of the statutes involved. The plaintiff’s arguments represent a classic example of “not seeing the forest for the trees.” We agree with all of the points argued by the plaintiff. Where we part company with the plaintiff, however, is in our view of the “forest” involved in this case: whether the statutory scheme of chapter 743b confirms that arbitrators provided for in the Lemon Laws lack authority to award attorney’s fees, as claimed by the plaintiff, or whether it reflects a legislative intention that mandates such authority, as contended by the defendants.

Ordinarily, arbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the arbitrators. Caldor, Inc. v. Thornton, 191 Conn. 336, 341, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). The duty to arbitrate may be created by contract or statute. Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 182, 520 A.2d 202 (1987). Where the parties arbitrate pursuant to statute, the statute itself defines the powers of the arbitrators. Caldor, Inc. v. Thornton, supra. Any deviation by the arbitrators from the statutory bounds under which they operate would indicate that they had “exceeded their powers,” a basis for vacating any offending part of the award, under General Statutes § 52-418 (a) (4). Carafano v. Bridgeport, 196 Conn. 623, 637, 495 A.2d 1011 (1985).

We start our analysis of the parties’ claims with certain settled tenets of statutory construction. “Our principal objective is to ascertain the apparent intent of the legislature.” Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988). We first look for that intent in the apparent meaning of the statutory language. Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). “[Wjhere the wording is plain, courts will not speculate as to any supposed intention . . . .” Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980). “If there is no ambiguity in the language of the statute, it does not become ambiguous merely because the parties contend for different meanings.” Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981).

“When the language is unclear, however, the court must ascertain the statute’s meaning . . . .” State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985). We conclude that legislative intent is ambiguous on the issue of Lemon Law arbitrators awarding attorney’s fees since the statute authorizing the use of arbitrators contains no such power and the attorney’s fees provision of CUTPA and Magnuson-Moss only provide for attorney’s fees to be awarded by the court. “When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself; State v. Kozlowski, [199 Conn. 667, 673, 509 A.2d 20 (1986)]; Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984); the legislative history and circumstances surrounding the enactment of the statute; State v. Kozlowski, supra, 673; DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985); State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985); State v. Delafose, [185 Conn. 517, 522, 441 A.2d 158 (1981)]; and the purpose the statute is to serve. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 8, 434 A.2d 293 (1980).” Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). “ ‘A statute should be interpreted according to the policy, which the legislation seeks to serve.’ Aaron v. Conservation Commission, 183 Conn. 532, 538, 441 A.2d 30 (1981); see 2A J. Sutherland, Statutory Construction (4th Ed.) §§ 56.01 through 56.02.” Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 574, 538 A.2d 1039 (1988).

We recognize that the two references in Lemon Law II to court awarded attorney’s fees with no other provisions for such awards tend to show that the legislature did not intend to authorize such awards by arbitrators. To put it simply, when the General Assembly wanted to authorize the award of attorney’s fees it knew how to do it. We conclude, however, that putting the matter in a proper legislative context, as we must, leads firmly to a contrary conclusion.

The plaintiff stresses the fact that the only two references in chapter 743b to attorney’s fees provide that courts shall make the awards. Section 42-180 necessarily so provides since it concerns only a breach of warranty action against a motor vehicle manufacturer. We also note that it became law in 1983, a year before Lemon Law II was enacted. Similarly, the provision in § 42-181 (c) (5), although enacted as part of Lemon Law II, concerned only an appeal of an arbitration award to the court, so of necessity this provision provided that the court could, in its discretion, grant the consumer reasonable attorney’s fees. Further, CUTPA and Magnuson-Moss logically make no specific provision for arbitrators to award attorney’s fees, since both statutes are enforceable only in civil actions. Looking to the words of Lemon Law II itself, we focus on the word “remedies” which the statute employs when incorporating by reference “remedies” in CUTPA and Magnuson-Moss. We have previously established that “[t]he plaintiff who establishes CUTPA liability has access to a remedy far more comprehensive than the simple damages recoverable under common law. The ability to recover both attorneys’ fees; General Statutes § 42-110g (d); and punitive damages; General Statutes § 42-110g (a); enhances the private CUTPA remedy and serves to encourage private CUTPA litigation.” Hinchliffe v. American Motors Corporation, 184 Conn. 607, 617, 436 A.2d 1259 (1981). Thus, attorney’s fees are a “remedy.”

Any doubt concerning the issue in this case is thoroughly dissipated when we examine the legislative history and circumstances surrounding the enactment of Lemon Law II and the purpose it was intended to serve. As we stated in Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, supra, 70, “[t]he purpose of Lemon Law II is to provide for consumer purchasers of new motor vehicles an alternative to civil litigation.” The entire thrust of the gradual development of the Lemon Laws has been to provide a meaningful and adequate response to a vexing social problem.

The legislative history of Lemon Law II is unusually persuasive in this regard. “Presently there are some manufacturers that are violating the law and the only remedy that individuals have is to go to court. And we all know about the tremendous backlog in the court. In Hartford County, four or five years. In other counties in the State of Connecticut, it’s two or three years.

“So the remedy has been illusory for many consumers. Lemon Law II by establishing the independent arbitration mechanism will carry out the intent of the Lemon Law . . . .” 27 H.R. Proc., Pt. 11, 1984 Sess., p. 3930, remarks of Representative Maurice B. Mosley.

“Two years ago we gave our new car consumers new rights. This morning, we’re offering new car consumers a place to go to exercise those new rights. By offering an arbitration process.

“The thrust of the arbitration process is to provide equal protection of the law for all new car buyers. To date only 7 of 26 manufacturers offer arbitration. This is indeed a big problem, because with our five to seven year backlog in our court systems, with the cost of litigation sky-rocketing, with the average price of new cars being $11,000, with new car complaints being the number one consumer problem in our country, and with weekly recall notices appearing in our newspapers, it has become incumbent upon us to provide the public with a process where they can resolve new car warranty problems.

“The courts have not been able to do this. The complaints that were received from the general public, and the findings of the Attorney General indicate that the industry is not doing it. The arbitration process that is being offered today is a totally integrated and coordinated approach to the abuses and problems that we have uncovered in the past 18 months.” 27 H.R. Proc., Pt. 11, 1984 Sess., pp. 3931-32, remarks of Representative John J. Woodcock III.

Further strong evidence of legislative intent to protect the automotive consumer is Representative Woodcock’s statement: “We have one of the worst backlogs in the United States of America in our court system. And people can’t wait five years for an answer on a bad car, nor can they afford to go to court. [The automobile manufacturers] are able to write off all expenses of defense as a legitimate business expense, whereas the average person who buys a car obviously does not have that kind of economic staying power.” 27 H.R. Proc., Pt. 11, 1984 Sess., p. 3943. Significantly, under Lemon Law II it is up to the consumer whether to proceed with arbitration, while the manufacturer’s participation is mandated by § 42-181 (b). Further, the consumer must decide whether to accept the decision of the arbitration panel.

Section 42-181 (c) gives arbitration panels wide-ranging discretion to fashion appropriate remedies. See Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, supra, 78. “The expansive nature of this statutory authority for remedial action leaves considerable room for variation in actual practice.” Id. “Remedial statutes are to be liberally construed in favor of those whom the legislature intended to benefit. Hart ford, Fire Ins. Co. v. Brown, 164 Conn. 497, 503, 325 A.2d 228 (1973).” Hinchliffe v. American Motors Corporation, supra, 615 n.4. We agree with the defendants that the trial court confused the question of which body could award attorney’s fees under CUTPA and Magriuson-Moss with the question of whether or not arbitrators under Lemon Law II had such powers.

We conclude that when the General Assembly incorporated by reference into the Lemon Laws the “remedies” provided in CUTPA and Magnuson-Moss, it intended to authorize Lemon Law arbitrators to award reasonable attorney’s fees to consumers who prevail in the arbitration proceeding.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment denying the application.

In this opinion the other justices concurred.

       General Statutes § 42-181, as of January 1,1987, provides in pertinent part as follows: “department arbitration procedure, records, appeals, (a) The department of consumer protection, shall provide an independent arbitration procedure for the settlement of disputes between consumers and manufacturers of motor vehicles which do not conform to all applicable warranties under the terms of section 42-179. The commissioner shall establish one or more automobile dispute settlement panels which shall consist of three members appointed by the commissioner of consumer protection, only one of whom may be directly involved in the manufacture, distribution, sale or service of any product. Members shall be persons interested in consumer disputes and.shpll serve without compensation for terms of two years at the discretion of the commissioner. In lieu of referring an arbitration dispute to a panel established under the provisions of this section, the department of consumer protection may refer an arbitration dispute to the American Arbitration Association in accordance with regulations adopted in accordance with the provisions of chapter 54.
      “(b) An owner of any motor vehicle purchased at any time on or after October 1, 1984, which fails to conform to such applicable warranties as defined in said section 42-179, may bring a grievance to an arbitration panel if the manufacturer of the vehicle has not established an informal dispute settlement procedure which the attorney general has certified as complying in all respects with the requirements of said section 42-179. The consumer may initiate a request for arbitration by calling a toll-free telephone number designated by the commissioner or by requesting an arbitration hearing in writing. The consumer shall file, on forms prescribed by the commissioner, any information deemed relevant to the resolution of the dispute and shall return the form accompanied by a filing fee of fifty dollars. Such complaint form shall offer the consumer a choice of presenting any subsequent testimony orally or in writing. The filing fee shall be refunded if the arbitration panel determines that a complaint does not allege a violation of any applicable warranty under the requirements of said section 42-179. Upon acceptance of the complaint, the commissioner shall notify the manufacturer of the filing of a request for arbitration and shall obtain from the manufacturer, in writing on a form prescribed by the commissioner, any information deemed relevant to the resolution of the dispute. The manufacturer shall return the form within fifteen days of receipt, together with a filing fee of two hundred fifty dollars.
      “(c) The department of consumer protection shall investigate, gather and organize all information necessary for a fair and timely decision in each dispute. The commissioner may issue subpoenas on behalf of any arbitration panel to compel the attendance of witnesses and the production of documents, papers and records relevant to the dispute. The department shall forward a copy of all written testimony, including all documentary evidence, to an independent technical expert certified by the National Institute of Automotive Service Excellence or having a degree or other credentials from a nationally recognized organization or institution attesting to automotive expertise, who shall review such material and be available to advise and consult with the arbitration panel. An expert shall sit as a nonvoting member of an arbitration panel whenever oral testimony is presented. Such experts may be recommended by the commissioner of motor vehicles at the request of the commissioner of consumer protection. An arbitration panel shall, as expeditiously as possible, but not later than sixty days after the time the consumer files the complaint form together with the filing fee, render a fair decision based on the information gathered and disclose its findings and the reasons therefor to the parties involved. The decision shall provide appropriate remedies, including, but not limited to one or more of the following:
      “(1) Repair of the vehicle;
      “(2) Replacement of the vehicle with an identical or comparable new vehicle acceptable to the consumer;
      “(3) Refund of the full contract price, plus collateral charges as specified in subsection (d) of said section 42-179;
      “(4) Reimbursement for expenses and compensation for incidental damages as specified in subsection (d) of said section 42-179;
      “(5) Any other remedies available under the applicable warranties, section 42-179, this section and sections 42-182 to 42-184, inclusive, or the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 88 Stat. 2183 (1975), 15 USC 2301 et seq., as in effect on October 1,1982. The decision shall specify a date for performance and completion of all awarded remedies. Notwithstanding any provision of the general statutes or any regulation to the contrary, the department of consumer protection shall not amend, reverse, rescind or revoke any decision or action of an arbitration panel. The department shall contact the consumer, within ten working days after the date for performance, to determine whether performance has occurred. The manufacturer shall act in good faith in abiding by any department decision. In addition, if the decision is accepted by the consumer, either party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, when the court is not in session, any judge thereof for an order confirming, vacating, modifying or correcting any award, in accordance with the provisions of sections 52-417, 52-418, 52-419 and 52-420. If it is determined by the court that the manufacturer has acted without good cause in bringing an appeal of an award, the court, in its discretion, may grant to the consumer his costs and reasonable attorney’s fees. . . .
      “(f) Any consumer injured by the operation of any procedure which does not conform with procedures established by a manufacturer pursuant to subsection (b) of section 42-182 and the provisions of Title 16 Code of Federal Regulations Part 703, as in effect on October 1,1982, may appeal any decision rendered as the result of such a procedure by requesting arbitration de novo of the dispute by an arbitration panel. Filing procedures and fees for appeals shall be the same as those required in subsection (b) of this section. The findings of the manufacturer’s informal dispute settlement procedure may be admissible in evidence at such arbitration panel hearing and in any civil action subsequently arising out of any warranty obligation or matter related to the dispute. Any consumer so injured may, in addition, request the attorney general to investigate the manufacturer’s procedure to determine whether its certification shall be suspended or revoked after proper notice and hearing. The attorney general shall establish procedures for processing such consumer complaints and maintain a record of the disposition of such complaints, which record shall be included in the annual report prepared in accordance with the provisions of subsection (a) of section 42-182.”

       The plaintiff sought relief under General Statutes § 52-418 (a), which provides: “vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon their subject matter submitted was not made.”


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. John Pittman
    (13197)
    Healey, Callahan, Glass, Covello and Hull, Js.

      Argued November 10, 1988
    decision released January 17, 1989

      Jeffrey R. Van Kirk, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, was Lawrence Daly, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, John Pittman, was charged in an information with the crime of murder in violation of General Statutes § 53a-54a (a). The charge arose out of the homicide of the defendant’s wife, Gloria Pittman, who was stabbed to death in her automobile on October 13,1985, in Hartford. Her skeleton was later discovered in the Mill River in New Haven on April 5,1986. The defendant pled not guilty to the charge and was tried and convicted by a jury. The trial court subsequently sentenced the defendant to a term of imprisonment of sixty years.

The defendant, on appeal, has raised three claims of error. He claims that the trial court erred in: (1) denying his motion to suppress tangible evidence; (2) limiting his cross-examination of two of the state’s witnesses; and (3) permitting the state to elicit testimony of his postarrest silence. We find no reversible error.

I

The defendant first claims that the trial court erred in denying his motion to suppress certain tangible evidence that was seized from the victim’s 1979 Chrysler LeBaron automobile. The facts relative to the defendant’s claim have their genesis on the morning of October 15,1985, two days after the victim’s disappearance. At that time, the defendant was confronted at his residence at 240 Martin Street, Hartford, by two of his wife’s sisters and her brother and questioned concerning the victim’s whereabouts. The victim’s siblings were unable to obtain either information or an expression of concern from the defendant. As a result, the victim’s sister, Stella, called the Hartford police and reported Gloria missing.

Officer Elwood Horsey was dispatched to the defendant’s residence to investigate. When he arrived, he found a hostile situation involving the defendant and his in-laws. The hostility was apparently generated because the members of the victim’s family felt something was sinister about their sister’s disappearance. Horsey also thought something was wrong because the defendant seemed unconcerned about his missing wife. After an initial discussion in the defendant’s kitchen, the officer and the parties went outside to look at the victim’s car. During the inspection of the car, the defendant was cooperative and opened the doors and the trunk to facilitate the policemen’s check of the vehicle. During the course of his examination, Horsey did not observe anything out of the ordinary.

Thereafter, apparently intending to take the car to her home, the victim’s sister Louise demanded the keys to the vehicle from the defendant. In response the defendant turned the keys over to Horsey. When he did so, he informed the officer that they were the only set he had in his possession. Horsey, in turn, handed the keys over to Louise, who kept them until the time of trial.

On the evening of October 15, the police were again called to the defendant’s residence. This time the call emanated from the defendant with a complaint that his in-laws were trespassing. Upon their arrival, the patrol officers, who were dispatched to handle the defendant’s complaint, found the defendant and members of his wife’s family engaged in an altercation and called Sergeant Frank Campbell for assistance. When Campbell arrived, he spoke to the patrol officers, the defendant and the victim’s relatives. As a result of those conversations, Campbell thought further investigation was necessary and summoned Detectives Stephen Kumnick and Luis Vera. When the detectives responded, they learned that the victim was last seen in the Chrysler LeBaron with the defendant and that the victim was the owner of the automobile.

After obtaining that information, Kumnick, Vera and Campbell went to look at the victim’s car. The vehicle at the time was locked and parked on neighboring property at 234 Martin Street, where it was clearly visible from the road. While viewing the car, the police observed a substance on the windshield that Kumnick and Campbell thought was a piece of flesh. The officers then secured the car and requested that a tow truck be called. The car was later removed to a local garage. On October 17, 1985, a search warrant was issued for the victim’s car and on October 18,1985, that warrant was executed and the vehicle searched. During the course of the search, samples of the upholstery and other items were taken. The items taken yielded evidence damaging to the defendant that was later admitted at his trial.

The state claimed that the defendant did not have an expectation of privacy in the victim’s car that would support a challenge to its seizure and subsequent search. The defendant claimed an expectation of privacy in the vehicle but admitted that it was registered in his wife’s name and that he had not provided any of the funds for its purchase. He maintained, however, that he had operated the car frequently, going back and forth to work, and for shopping. The defendant did not possess a valid motor vehicle operator’s license.

The trial court found that the defendant had no reasonable expectation of privacy in the victim’s automobile and therefore that he had no “standing” to object to its seizure or to the admission of the evidence obtained when it was searched. See Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979); State v. Santiago, 8 Conn. App. 290, 296, 513 A.2d 710 (1986). That finding will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law. State v. Brown, 198 Conn. 348, 354-55, 503 A.2d 566 (1986); State v. Zindros, 189 Conn. 228, 242, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). Further, the burden is on the defendant to prove that he had a reasonable expectation of privacy in the victim’s automobile. Rawlings v. Kentucky, supra; Rakas v. Illnois, supra, 130 n.1; State v. Brown, supra, 356; State v. Harris, 10 Conn. App. 217, 223, 522 A.2d 323 (1987). In order to sustain that burden, the defendant must prove, first, that he had an actual subjective expectation of privacy in his wife’s car and, second, that his expectation was one that society would recognize as reasonable. New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985); Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); State v. Reddick, 207 Conn. 323, 331, 541 A.2d 1209 (1988); State v. Brown, supra; State v. Zindros, supra, 239.

Whether the defendant has established that he possessed a reasonable expectation of privacy in the automobile requires a factual inquiry into all the relevant circumstances surrounding its seizure. Oliver v. United States, 466 U.S. 170, 177-78, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); United States v. Brown, 635 F.2d 1207, 1211 (6th Cir. 1980); State v. Reddick, supra, 331; State v. Brown, supra. Such an inquiry reveals that when the victim’s automobile was seized, it was parked in plain view from the street on premises other than the defendant’s, that it was not registered in the defendant’s name, nor did he purchase it, that he had no operator’s license, and that he had earlier assisted Officer Horsey in his examination of the vehicle without asserting a privacy right. More important, however, is the evidence that the defendant, in response to his sister-in-law’s demand, surrendered what he professed to be the only set of keys to the automobile to Horsey to give to the victim’s sister. Given the fact that there is a diminished expectation of privacy in an automobile to begin with; United States v. Chadwick, 433 U.S. 1, 12, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974); State v. Morrill, 197 Conn. 507, 541-42, 498 A.2d 76 (1985); it is difficult to fathom how the defendant can claim any reasonable expectation of privacy in the victim’s car after having given, without any apparent limitation, the means of assuming possession and control of it to his hostile sister-in-law.

Under all of the circumstances, we think that the trial court properly concluded that the defendant failed to sustain his burden of demonstrating a reasonable expectation of privacy, the necessary predicate to his claim of a violation of his fourth amendment rights.

II

The defendant next claims that the trial court erred when it limited his cross-examination of two of the state’s witnesses. He argues that because of the limitation imposed on his cross-examination, he was deprived of his sixth amendment right to confrontation.

During the course of the trial the state announced its intention to call as witnesses Gregory Blue and Mitchell Henderson. Both Blue and Henderson had criminal records and both had cases pending against them at the time of the defendant’s trial. Before either witness testified, the trial court ruled that the defendant could cross-examine them concerning only prior felony convictions and pending felony cases because, in the court’s view, the law did not permit cross-examination concerning pending misdemeanor charges.

Subsequently, Blue gave damaging testimony against the defendant. On direct examination, the state elicited from Blue that he previously had been convicted of forgery, escape and larceny in the second degree. Blue also testified on direct examination that he had felony charges of risk of injury to a child and of being a persistent larceny offender pending against him. Further, he admitted that he had talked to the authorities and come forward and testified against the defendant only because he was on trial in Manchester and he was looking for some help in his own case. The defendant cross-examined Blue concerning his felony convictions, his pending felony charges and his motivation for testifying. Because of the trial court’s ruling, however, the defendant was prevented from questioning Blue about a pending misdemeanor larceny charge.

The trial court erred in limiting the defendant’s cross-examination of Blue concerning pending charges to pending felony charges. United States v. Vasilios, 598 F.2d 387, 389-90 (5th Cir. 1979), cert. denied sub nom. Alexander v. United States, 444 U.S. 932, 100 S. Ct. 277, 62 L. Ed. 2d 190 (1979); State v. Ortiz, 198 Conn. 220, 223-24, 502 A.2d 400 (1985). The defendant on cross-examination, however, took full advantage of the opportunity afforded him “to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); United States v. Vasilios, supra, 389; State v. Milner, 206 Conn. 512, 525, 539 A.2d 80 (1988); State v. Lubesky, 195 Conn. 475, 483, 488 A.2d 1239 (1985). The constitutional standard was, therefore, met. State v. Jones, 205 Conn. 638, 669-72, 534 A.2d 1199 (1987); State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985); State v. Castro, 196 Conn. 421, 425, 493 A.2d 223 (1985). Because the trial court’s error was not of constitutional dimension, the burden is on the defendant to prove that it was probably harmful. State v. Vitale, supra, 403; State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. Jones, 167 Conn. 228, 233, 355 A.2d 95 (1974). Given the latitude that the defendant was granted on cross-examination and in final argument to emphasize Blue’s prior record, his pending felony charges, and his motivation for testifying, it is manifest that the defendant’s inability to inquire about a single misdemeanor charge was harmless. See State v. Vitale, supra, 404; State v. George, 194 Conn. 361, 365-66, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). The defendant, therefore, did not sustain his burden of demonstrating that the ruling was probably harmful.

Henderson also provided damaging testimony against the defendant. As to Henderson, however, the record is devoid of any evidence that there were misdemeanor charges pending against him at the time of the defendant’s trial. We are, therefore, unable to determine whether the trial court committed any error at all, let alone constitutional error, in restricting the defendant’s cross-examination of Henderson to an inquiry concerning pending felony charges. Because the defendant has failed to provide an adequate record for review, we are unable to consider his claim of error as it applies to Henderson. Practice Book § 4061; State v. Tyler- Barcomb, 197 Conn. 666, 676, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Thompson, 197 Conn. 67, 81, 495 A.2d 1054 (1985).

Ill

Finally, the defendant claims that the trial court erred by permitting the state to elicit testimony concerning the defendant’s silence and “no comment” response when faced with custodial interrogation.

During the defendant’s trial, over his objection, the trial court admitted the testimony of Kumnick concerning the defendant’s lack of responsiveness to police questioning. The state at trial claimed that the evidence was an admission relevant to consciousness of guilt. See State v. Leecan, 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). The defendant claimed that the evidence was inadmissible because it was obtained in violation of his constitutional rights. The defendant’s constitutional argument is based on his contention that his silence or “no comment” response to police questioning was the result of police interrogation while he was in custody prior to receipt oí Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Any evidence obtained as a result of interrogation from a person in custody who has not been provided Miranda warnings is inadmissible in the state’s case-in-chief. Id., 479; see also Berkemer v. McCarty, 468 U.S. 420, 429, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); Harryman v. Estelle, 616 F.2d 870, 874 (5th Cir.), cert. denied, 499 U.S. 860, 101 S. Ct. 161, 66 L. Ed. 2d 76 (1980); State v. Ferrone, 97 Conn. 258, 266, 116 A. 336 (1922). The defendant’s claim, therefore, has validity if he was, in fact, subjected to custodial interrogation. State v. Stankowski, 184 Conn. 121, 136-38, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). The trial court found that, although the police interrogated the defendant prior to the administration of Miranda warnings, the defendant was not in custody. It ruled consequently that Miranda warnings were not mandated and that the defendant’s response to police questions was admissible. State v. Walker, 206 Conn. 300, 306, 537 A.2d 1021 (1988); State v. Leecan, supra, 521-23.

The defendant had the initial burden of proving custodial interrogation. United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984); State v. Doehrer, 200 Conn. 642, 647, 513 A.2d 58 (1986); State v. Vitale, supra, 409. The trial court’s determination that the defendant was not in custody is a finding of fact. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). That finding of fact by the trial court will not be overturned unless it is clearly erroneous. Id.; see Practice Book § 4061; State v. Young, 191 Conn. 636, 652, 469 A.2d 1189 (1983). We will, however, carefully review the record to ascertain whether the trial court’s finding is supported by substantial evidence. State v. Toste, 198 Conn. 573, 580, 504 A.2d 1036 (1986); State v. Alexander, 197 Conn. 180, 185, 496 A.2d 486 (1985).

The record reveals that the following facts were before the trial court. On the evening of October 15, 1985, the defendant was transported to Hartford police headquarters in a police vehicle. This occurred after the police had responded to the defendant’s complaint and had found the defendant and his in-laws engaged in an altercation in the defendant’s driveway. Although the defendant was a suspect in his wife’s disappearance, the ostensible reason for the trip to police headquarters was to discuss the dispute at his home. When he arrived at police headquarters at approximately 9:30 p.m., the defendant was placed in an unlocked interview room. He was left alone and apparently unguarded in the interview room until approximately 11 p.m. During that time the defendant was not arrested or handcuffed nor has he claimed that he was booked, fingerprinted or photographed. Sometime around 11 p.m. Kumnick, having just returned from the defendant’s premises at 240 Martin Street, entered the interview room and asked the defendant questions relating to his wife’s possible whereabouts and what he thought may have happened to her. The defendant either made no response to Kumnick’s questions or answered “no comment.” After approximately five minutes, the defendant asked for a lawyer, Kumnick read him his Miranda rights, all questioning ceased, and the defendant called an attorney. Later, around midnight, the defendant left police headquarters with his attorney and was not arrested until March, 1986, some five months later. The record also indicates that the defendant had had previous experience with the criminal justice system; see State v. Green, 207 Conn. 1, 7, 540 A.2d 659 (1988); and that Kumnick testified that the defendant was free to leave police headquarters at any time.

There is no doubt that Kumnick asked questions of the defendant prior to advising him of his Miranda rights. Police officers, however, are not required to administer Miranda warnings every time they ask questions at police headquarters even if the person interrogated is a suspect in a crime. California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); State v. Januszewski, 182 Conn. 142, 159, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Miranda warnings are mandated only if the person interrogated is in custody. Oregon v. Mathiason, supra; State v. Copeland, 205 Conn. 201, 206, 530 A.2d 603 (1987); State v. Wilson, 199 Conn. 417, 444, 513 A.2d 620 (1986); State v. Januszewski, supra. A person is in custody only if, in view of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 64 L. Ed. 2d 497, reh. denied, 448 U.S. 908, 100 S. Ct. 3051, 65 L. Ed. 2d 1138 (1980); State v. Hoeplinger, 206 Conn. 278, 287, 537 A.2d 1010 (1988). As stated by the United States Supreme Court in California v. Beheler, supra, 1125, “[although the circumstances of each case must certainly influence a determination of whether a suspect is ‘in custody’ for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest. Mathiason, supra, at 495.” See also New York v. Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984); Minnesota v. Murphy, 465 U.S. 420, 430-31, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984); United States v. Cadmus, 614 F. Sup. 367, 370 (S.D.N.Y. 1985).

The only testimony concerning indicia of custody apparently credited by the trial court was that the defendant was transported to headquarters in a police vehicle and that the questioning took place in an interview room after the defendant had been at headquarters for a substantial period of time. See State v. McCarthy, 197 Conn. 247, 258, 496 A.2d 513 (1985). The trial court found that these circumstances did not add up to custody. We cannot say from our review of the record that the trial court’s determination was clearly erroneous. See State v. Young, supra, 652.

Moreover, after reading the transcript we are constrained to observe that even if the trial court erred in regard to custody, it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 22-24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); Harryman v. Estelle, supra, 875; Null v. Wainwright, 508 F.2d 340, 343 (5th Cir.), cert. denied, 421 U.S. 970, 95 S. Ct. 1964, 44 L. Ed. 2d 459 (1975). The evidence against the defendant, including other displays of consciousness of guilt, was so overwhelming that the admission of his reaction to Kumnick’s few questions pales by comparison. See State v. Briggs, supra, 336.

There is no reversible error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       Later that same day, however, Horsey drove by the defendant’s residence and the car was missing from its earlier parking place. One of the victim’s daughters later told Horsey that there was another set of keys.

       A.subsequent search warrant was issued on November 29,1985, which resulted in the seizure of more tangible evidence. The defendant’s claim is the same as to the evidence seized by virtue of both warrants.

       It does appear, however, that Henderson’s prior record, pending felony charge and motivation for testifying were exposed on direct examination, cross-examination and in final argument. Even if Henderson did have a pending misdemeanor charge, it is difficult to imagine that the trial court’s ruling would have been harmful. See discussion re Blue, supra.

       The state does not dispute that Kumnick’s questioning constituted interrogation.


author: Covello, J. Shea, J.,

text:
    Nancy Burton v. Planning Commission of the Town of Redding et al.
    (13426)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued November 2, 1988
    decision released January 17, 1989

      Wesley W. Horton, with whom was Nancy Burton, for the appellant (plaintiff).

      Michael N. LaVelle, for the appellee (named defendant).

      Gregory M. Perry, with whom, on the brief, was Marybuise S. Black, for the appellee (defendant James E. McMurray).
   Covello, J.

The sole issue in this appeal is whether the Appellate Court erred in concluding that the late filing of the plaintiff’s brief required granting of the motion to dismiss filed by one of the defendants. Burton v. Planning Commission, 13 Conn. App. 400, 536 A.2d 995 (1988). We affirm the Appellate Court’s decision.

The facts relevant to this appeal are undisputed. On July 15, 1986, the plaintiff, Nancy Burton, appealed to the Superior Court from a decision of the named defendant, the planning commission of the town of Redding, approving the application of the codefendant, James E. McMurray, to subdivide his property. The plaintiff, who was not a party in the proceeding before the planning commission, claimed to be aggrieved by its decision and sought to intervene pursuant to General Statutes § 22a-19.

On July 21,1986, McMurray filed a motion to dismiss the plaintiffs action, pursuant to Practice Book § 143, accompanied by an affidavit and memorandum of law in support of his motion. In his motion, McMurray claimed that the plaintiff was not aggrieved and, therefore, lacked standing to appeal the commmission’s decision and to intervene. General Statutes § 8-28 (b).

The motion to dismiss was originally scheduled to be heard at short calendar on Monday, September 22,1986. The plaintiff and counsel for McMurray agreed to postpone the matter due to a scheduling conflict. The matter was then reassigned to be heard on Monday, September 29, 1986. On Thursday, September 25, 1986, four days before the scheduled hearing on the motion to dismiss, the plaintiff filed a memorandum of law in opposition to the motion to dismiss.

At the September 29, 1986 hearing, McMurray informed the trial court, William J. Sullivan, J., that the plaintiffs memorandum of law in opposition to the motion to dismiss was filed four days, rather than five days, prior to the hearing. The trial court thereafter rendered judgment dismissing the case, observing that the plaintiff was one day late in filing the memorandum of law as required by Practice Book § 143.

Practice Book § 143 provides in relevant part: “If an adverse party objects to this motion [to dismiss] he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with [Practice Book] Sec. 120 a memorandum of law .... An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.” (Emphasis added.)

I

In order to determine the correctness of the Appellate Court’s decision we address two questions. First, was the plaintiff’s memorandum of law timely filed pursuant to Practice Book § 143? If the answer to that question is “no” we must then determine if the trial court’s dismissal of the case was required under § 143. The Appellate Court was correct in concluding that the plaintiff’s memorandum was not filed in a timely manner and that § 143 requires the trial court’s dismissal of the case.

The plaintiff concedes that her memorandum of law was filed in court one day late. She argues, however, that she substantially complied with the requirements of § 143 by filing the memorandum within four days of the hearing, mailing copies to opposing counsel, and hand delivering additional copies to opposing counsel’s office on Friday, September, 26,1986. We are not persuaded. The question presented is not whether the plaintiff substantially complied with § 143 but rather whether she in fact complied with its requirements.

It is clear that the plaintiff did not timely file her memorandum of law as required by § 143. Had the plaintiff moved for, and been granted a continuance pursuant to Practice Book § 209, however, her memorandum of law, filed on Thursday, September 25, would have been filed “at least five days before the motion is to be considered on the short calendar.” Practice Book § 143. Although the plaintiff had used Practice Book § 209 to her advantage the previous week, when she and McMurray’s counsel agreed to have the hearing continued, it is important to note that she did not seek a continuance on Monday, September 29, 1986. See Practice Book § 209. Under the factual circumstances presented here our conclusion is inescapable. Thursday, September 25, 1986, is four days before Monday, September 29,1986, and, therefore, the plaintiff did not file her memorandum of law in a timely manner as required by § 143.

II

The plaintiff argues that, nevertheless, the trial court erred in granting McMurray’s motion to dismiss the case. We disagree and conclude that the Appellate Court correctly determined that the trial court’s action was required by § 143.

In Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986), we analyzed Practice Book § 155 which, like § 143, contains a provision that provides in relevant part: “If an adverse party objects to this motion he shall, at least five days before the date the motion is to be considered on the short calendar, file ... a memorandum of law. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.” We interpreted this language and concluded that “[t]he memorandum must be filed, or the motion . . . shall be granted.” Hughes v. Bemer, supra, 402-403. The plaintiff urges us to find that Hughes is not controlling in this situation despite the fact that the language in § 155 is identical to the language in § 143. We see no reason why our analysis in Hughes is not equally applicable in this situation.

The plaintiff points to Pepe v. New Britain, 203 Conn. 281, 287, 524 A.2d 629 (1987), in support of her claim that dismissal under § 143 is not required. In Pepe we examined Practice Book § 380, which states in relevant part: “The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence.” (Emphasis added.) We “decline[d] to construe such language as a jurisdictional barrier that the parties cannot waive or the court may not excuse under any circumstances.” Pepe v. New Britian, supra, 288. There is, however, a critical factor that distinguishes Pepe from the case at hand. Unlike §§ 143 and 155, § 380 does not contain language which provides a sanction for failure to file timely the necessary documents. In Pepe we concluded that “[although § 380 declares that materials in opposition to a motion for summary judgment ‘shall’ be filed the day before the hearing, it does not contain any provision corresponding to the dictate of § 155 that the consequence of noncompliance with the rule is that the delinquent party ‘shall be deemed by the court to have consented to the granting of the motion.’ ” Pepe v. New Britain, supra, 287. Therefore, the dismissal of this case was appropriate not simply because the language in § 143 dictates that a memorandum must be filed but because, along with that dictate, the rule contains a sanction for failure to comply with that provison.

The plaintiff argues that the trial court’s interpretation of § 143 requires a “draconian” application of the rule. We disagree. Practice Book § 6 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” This provision, along with § 209, make it clear that the “draconian” application to which the plaintiff refers is not the necessary outcome of the application of § 143. In circumstances similar to these, the trial court, upon request, may grant the parties a continuance for good cause shown pursuant to § 209. Therefore, the plaintiffs claim that the result will be universally harsh is without merit.

We are acutely aware that this case presents the tension that exists between the deprivation of an individual’s right to defend a motion to dismiss and the overriding concern that the great number of cases before our courts be kept moving efficiently through the judicial system. “Overcrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice. . . . In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management. Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necesssary, to enforce compliance with such standards.” In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983). It is an inherent power of the court “ ‘to provide for the imposition of reasonable sanctions to compel the observance of its rules.’ ” Id., 690. Not only was the sanction used in this case reasonable, it was required.

We affirm the Appellate Court’s decision.

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

Shea, J.,

dissenting. The needlessly unjust outcome of this appeal, in which the plaintiff has been deprived of a resolution of her claim on its merits because she was one day late in filing a memorandum of law in opposition to a motion to dismiss, is another episode in the draconian enforcement of the “shall be deemed to have consented to the granting of the motion” provisions of Practice Book § 143 with regard to motions to dismiss and Practice Book § 155 with regard to motions to strike. We began this saga with Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986), in which the failure of the plaintiff to file a memorandum in opposition to a motion to strike pursuant to § 155 was held to preclude consideration of the substantive issue of the viability of the complaint on its merits, despite the fact that noncompliance with the rule had never been raised in the trial court.

In the present appeal it cannot be said that noncompliance with the time limit for filing a memorandum opposing the motion to dismiss pursuant to § 143 has been waived, since it was clearly raised at the hearing on the motion. The trial court, however, construed the applicable precedent of Hughes to afford no room for the exercise of reasonable discretion. Under this pettifogging view of our procedural rules, such circumstances as the lack of any prejudice to the defendants, who apparently received hand delivered copies of the memorandum no later than if they had been mailed five days before the hearing, as § 143 requires, must be disregarded for the sake of “caseflow management.” The majority opinion attempts to justify this approach as advancing that goal of judicial administration without explaining how the delay of one day in filing the plaintiff’s memorandum in the clerk’s office in any manner has or could have affected the expeditious disposition of the defendants’ motion to dismiss. The opinion also overlooks the fact that such dismissals are likely to generate additional litigation in the form of malpractice suits, though not in this case where the plaintiff in the trial court acted as her own counsel. Furthermore, its suggestion of a continuance as the remedy to alleviate the harshness of the rule is hardly consistent with the “caseflow management” objective of reducing unnecessary delay.

“The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” (Emphasis added.) Practice Book §§ 6, 4187.1 cannot reconcile this guiding principle for the application of our rules of practice with affirmance by the majority of the dismissal of this complaint without consideration of its merits for a minimal lack of timeliness resulting in neither prejudice nor actual delay. It is the entire judicial system, not just the plaintiff, that suffers when a case fails to be resolved upon substantive grounds because of a procedural deficiency so trivial and inconsequential as in this case. Hughes v. Berner, supra, 405 (Shea, J., dissenting). We merely invite legislative intervention in the rule making process when our rules of practice are applied in such a manner that litigants are needlessly thwarted in obtaining a determination of their claims on the merits. See Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 75-76, 570 A.2d 59 (1988) (Shea, J., concurring).

Accordingly, I dissent.

       General Statutes § 22a-19 provides in relevant part: “administrative proceedings, (a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
      “(b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”

       [Practice Book] Sec. 143. —grounds
      “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”

       “[General Statutes] Sec. 8-28. appeal from planning commission to SUPERIOR COURT. REVIEW BY APPELLATE COURT. . . .
      “(b) The court, upon the motion of the person who applied for the commission’s action or decision, shall make such person a party defendant in the appeal. Such defendant may, at any time after the return date of such appeal, make a motion to dismiss the appeal. At the hearing on such motion to dismiss, each appellant shall have the burden of proving his standing to bring the appeal. The court may, upon the record, grant or deny the motion. The court’s order on such motion shall be a final judgment for the purpose of the appeal as to each such defendant. No appeal may be taken from any such order except within seven days of the entry of such order.”

       The plaintiff is an attorney appearing pro se in this case.

       Practice Book § 209 provides: “Matters upon the short calendar list requiring oral argument or counsel’s presence shall not be continued except for good cause shown; and no such matter in which adverse parties are interested shall be continued unless the parties shall agree thereto before the day of the short calendar session ... in the absence of such agreement, unless the court shall otherwise order, any counsel appearing may argue the matter and submit it for decision, or request that it be denied.”

       It should be noted that the plaintiff did not ask the court to have the hearing on the motion to dismiss continued. See Practice Book § 209.

       The term “draconian” has its origin in 621 B.C. when Draco, an Athenian lawgiver, would cut a person’s head off for stealing cabbage.

       The plaintiff argues that it would be manifestly unfair for a court to dismiss a plaintiffs case if, for example, counsel’s office burned down prior to filing the required memorandum. We would tend to agree. This result, however, is not a foregone conclusion.


author: Per Curiam. Shea, J.,

text:
    Gary S. Blonder v. Hartford Helicopters, Inc.
    (13512)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued December 15, 1988
    decision released January 17, 1989

      David M. Sheridan, with whom, on the brief, was George C. Springer, Jr., law student intern, for the appellant (plaintiff).

      Bourke G. Spellacy, with whom were Karen P. Blado and, on the brief, Anna V. Crawford, for the appellees (defendants).
   Per Curiam.

The dispositive issue in this appeal is whether, in light of the plaintiff’s belated filing of his brief, the trial court properly granted the defendants’ motion to dismiss. The plaintiff, Gary S. Blonder, brought an action for indemnification, fraud, and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., against the defendants Hartford Helicopters, Inc., and Robert Foisie. The defendants filed a timely motion to dismiss. The plaintiff appeals from the judgment of the trial court granting this motion. Because the procedural circumstances attendant to the motion to dismiss are functionally indistinguishable from those involved in our recent case of Burton v. Planning Commission, 209 Conn. 609, 553 A.2d 161 (1989), we find no error.

In Burton, this court held that noncompliance with Practice Book § 143 requires a trial court to dismiss a case. Practice Book § 143 provides in relevant part: “If an adverse party objects to [a] motion [to dismiss] he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with [Practice Book] Sec. 120 a memorandum of law .... An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.”

In this case, the defendants filed their motion to dismiss on January 11, Í988. The trial court scheduled and heard oral argument on the motion to dismiss on Monday, February 1, 1988. The plaintiff did not file his memorandum of law in opposition to the motion to dismiss until Thursday, January 28,1988. The plaintiff did not seek a continuance on February 1,1988, when the motion was heard. The trial court granted the motion to dismiss the following day. At oral argument in this court, the plaintiffs counsel conceded the accuracy of this historical account.

We held in Burton that, when a motion to dismiss has been scheduled to be heard on a Monday, a memorandum of law filed the previous Thursday is untimely. Id., 613. It follows from our holding in Burton that, absent a continuance for good cause shown pursuant to Practice Book § 209, dismissal of the plaintiff’s cause of action was required. This result is mandated even though the defendants did not rely on the plaintiff’s procedural default until they filed their brief on appeal in this court. Hughes v. Bemer, 200 Conn. 400, 402-403, 510 A.2d 992 (1986).

There is no error.

In this opinion Peters, C. J., Healey, Glass and Hull, Js., concurred.

Shea, J.,

dissenting. The dismissal of this appeal because the plaintiff was late by one day in filing his memorandum in opposition to the defendants’ motion to dismiss is the third instance in which this court has applied the time limitations of Practice Book §§ 143 and 155 so rigidly as to deprive a plaintiff of the opportunity for consideration of the merits of his claim. See Burton v. Planning Commission, 209 Conn. 609, 553 A.2d 161 (1989); Hughes v. Bemer, 200 Conn. 400, 402-403, 510 A.2d 992 (1986). In this case, as in Hughes v. Bemer, supra, the failure to comply strictly with the rule was first raised when the defendants filed their brief in this appeal, having ignored the stricture of Practice Book § 4013 that an appellee wishing to rely upon an alternate ground to sustain the judgment below “shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.” The trial court never invoked § 143 in granting the motion to dismiss, but relied upon the ground that the action of the plaintiff was premature.

Except for those involving the subject matter jurisdiction of the court, procedural defects are deemed to be waived unless they are seasonably raised. Fuessenich v. DiNardo, 195 Conn. 144, 487 A.2d 514 (1985); Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 479, 289 A.2d 896 (1971). “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 4185. Despite the imperative language used in Practice Book §§ 143 and 155, these rules of practice cannot be deemed to transform a procedural failure into a lack of subject matter jurisdiction. Only the legislature may define the “powers and jurisdiction” of the courts of this state. Conn. Const., art. V, § 1.

Accordingly, I continue to disagree with the course this court has embarked upon of treating noncompliance with §§ 143 and 155, unlike noncompliance with other rules of practice, as neither waivable by the opposing party nor excusable by the court. There is no reason to give those rules of the trial court such priority in implementation that we are compelled to disregard well established general principles of waiver as well as specific provisions of the rules of appellate procedure for this court, such as §§ 4013 and 4185.

       Article fifth, § 1, of the Connecticut constitution provides as follows: “The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.”