author: Katz, J.

text:
    Alvin Berger v. Anthony Cuomo et al.
    (14887)
    Callahan, Borden, Katz, Palmer and Dupont, Js.
    Argued May 6
    decision released July 5, 1994

      Constance L. Epstein, with whom, on the brief, were John Stephen Papa and Ronald G. Weller, for the appellant (named defendant).

      William F. Gallagher, with whom, on the brief, were Cynthia C. Bott and Kurt Koehler, law student intern, for the appellee (plaintiff).
   Katz, J.

This case is an action in equity for discovery by the plaintiff, Alvin Berger, seeking documents from the defendants, Anthony Cuomo and First Federal Bank (First Federal), regarding Federal’s release of Cuomo’s personal liability on certain promissory notes. On those notes, however, Berger remains liable, both personally and as a general partner in a real estate venture that he had created with Cuomo. Following a court trial, the court rendered judgment for Berger and granted his prayer for discovery of the documents. This appeal followed.

The trial court could reasonably have found the following facts. At some time prior to October 2, 1992, Berger and Cuomo formed a partnership, known as 2558 Whitney Associates. The partnership owned real estate at three different locations in Hamden. Cuomo owned 75. percent of the partnership and Berger owned 25 percent. Cuomo managed the affairs of the partnership and collected the rents. Because the partnership lost money each month, in order to pay the partnership expenses the two partners contributed funds from their personal assets in proportion to their ownership interests in the partnership.

The three parcels of real estate owned by the partnership were encumbered by mortgages held by First Constitution Bank (First Constitution), dating from 1987. These mortgages were secured by notes of $1.7 million on which the partnership was liable and on which Berger and Cuomo were each jointly and severally liable. Although payments on the notes were current, on or about October 2,1992, Cuomo entered into an agreement with First Constitution wherein Cuomo pledged $225,000 of his own funds in consideration for the release from his obligation on the notes. The agreement limited Cuomo’s personal liability on the notes to the value of the property and the $225,000. After making this agreement, Cuomo delivered to Berger a portion of the books and records of the partnership. He also advised Berger that he no longer intended to perform any property management services for the partnership, including payment of the partnership expenses or contribution to cover any shortfall. Until the end of October, however, Cuomo did not inform Berger that he had reached the agreement with First Constitution. Thereafter, Berger assumed the management of the partnership, collected the rents, and paid its expenses to the extent that the income would permit.

Despite demands by Berger, Cuomo failed to make any shortfall contributions to the partnership after October 2, 1992, which, at the time of trial, amounted to $8000 per month. Berger subsequently defaulted on the notes. He thereafter attempted to negotiate with First Federal with a view toward clarifying and resolving both his individual liability and the partnership’s liability on the notes. Berger attempted to obtain from First Federal and Cuomo all the closing documents produced by and between Cuomo and First Constitution pertaining to the release or limitation of Cuomo’s liability on the notes. Because First Federal and Cuomo refused to disclose the documents, Berger instituted this action.

In support of his request for a bill of discovery, Berger argued to the trial court that he lacked information necessary and material to initiate suit against Cuomo for: (1) Cuomo’s forfeiture of his partnership interest; (2) contribution from Cuomo to the partnership for its continuing shortfall; (3) fraudulent conveyance against Cuomo as to Berger, and possibly as to the partnership; and (4) an accounting of funds while the partnership was managed by Cuomo. Berger also claimed to lack information necessary and material to initiate suit against First Federal and Cuomo for a declaratory judgment regarding the legality of the agreement between Cuomo and First Constitution. Additionally, Berger claimed to require information to initiate suit against First Federal for First Constitution’s participation in a conveyance that Berger alleged may have been fraudulent as to himself and the partnership. Finally, Berger maintained that he lacked information needed to defend against any mortgage foreclosure action likely to be brought as a result of his default on the notes. The trial court agreed and rendered judgment for Berger.

On appeal, Cuomo contends that Berger failed to establish that the information sought is “material and necessary to the proof of another action to be brought . . . [or] that he has no other adequate means of enforcing discovery of the information sought.” Specifically, Cuomo argues that the documents sought were not necessary because Berger was merely attempting to procure them in order to negotiate a favorable release similar to the one Cuomo had obtained. Cuomo also contends that the information sought could not advance or form the basis of any potential cause of action by Berger against him. Additionally, Cuomo disputes Berger’s assertion that no other adequate means of enforcing discovery exist. Finally, Cuomo argues that the trial court failed to require Berger to establish probable cause to bring a potential cause of action against him. We disagree, and therefore affirm the trial court’s judgment.

I

Before examining the sufficiency of the allegations and proof admitted in support thereof, a brief discussion of the bill of discovery is appropriate. The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought. Peyton v. Werhane, 126 Conn. 382, 389, 11 A.2d 800 (1940). As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries. See Middletown Bank v. Russ, 3 Conn. 135, 140 (1819); F. James & G. Hazard, Civil Procedure (2d Ed. 1977) § 1.4, pp. 12-13; 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 210; 1 J. Pomeroy, Equity Jurisprudence (5th Ed. 1941) §§ 142, 144, 190a, 191, 195. The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery. 1 J. Pomeroy, supra, § 193. Furthermore, because a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court’s discretion. Pottetti v. Clifford, 146 Conn. 252, 257, 150 A.2d 207 (1959); Peyton v. Werhane, supra, 389.

To sustain the bill, the petitioner must demonstrate that what he seeks to discover is material and necessary for proof of, or is needed to aid in proof of or in defense of, another action already brought or about to be brought. Pottetti v. Clifford, supra, 146 Conn. 258. Although the petitioner must also show that he has no other adequate means of enforcing discovery of the desired material, “[t]he availability of other remedies . . . for obtaining information [does] not require the denial of the equitable relief . . . sought.” Id., 262. This is because a remedy is adequate only if it “is one which is specific and adapted to securing the relief sought conveniently, effectively and completely. State ex rel. Heimov v. Thomson, 131 Conn. 8, 13, 37 A.2d 689 [1944]; Brainard v. West Hartford, 140 Conn. 631, 635, 103 A.2d 135 (1954).” Id. The remedy is designed “to give facility to proof.” Id., 259.

Discovery is confined to facts material to the plaintiff’s cause of action and does not afford an open invitation to delve into the defendant’s affairs. Carten v. Carten, 153 Conn. 603, 613, 219 A.2d 711 (1966); Pottetti v. Clifford, supra, 146 Conn. 259. A plaintiff must be able to demonstrate good faith as well as probable cause that the information sought is both material and necessary to his action. Pottetti v. Clifford, supra, 259. A plaintiff “should describe with such details as may be reasonably available the material he seeks . . . and should not be allowed to indulge a hope that a thorough ransacking of any information and material which the defendant may possess would turn up evidence helpful to [his] case.” Id., 263. What is reasonably necessary and what the terms of the judgment require call for the exercise of the trial court’s discretion. Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 696-97, 53 S. Ct. 736, 77 L. Ed. 1449 (1933).

Against this legal backdrop, we examine the trial court’s findings in order to evaluate Cuomo’s assertion that Berger failed to sustain his burden of proof. Cuomo acknowledges that for Berger to prevail, Berger was required to establish only that he had probable cause to bring a potential cause of action against Cuomo. Cuomo argues, however, that the trial court neglected to consider Berger’s obligation to establish probable cause. We disagree.

The plaintiff who brings a bill of discovery must demonstrate by detailed facts that there is probable cause to bring a potential cause of action. “Probable cause is the knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action. . . .Its existence or nonexistence is determined by the court on the facts found.” (Citation omitted.) Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980). Moreover, the plaintiff who seeks discovery in equity must demonstrate more than a mere suspicion; he must also show that there is some describable sense of wrong. The plaintiff need not, however, state each claim with technical precision; he need only set forth facts that fairly indicate that he has some potential cause of action. Pottetti v. Clifford, supra, 146 Conn. 259.

A comparison of the trial court’s judgment with its earlier decision granting Cuomo’s motion to strike Berger’s initial complaint is instructive. The trial court granted Cuomo’s motion to strike that first complaint because it found that Berger had failed to “identify any action ‘brought or about to be brought,’ as required in Pottetti v. Clifford [supra, 146 Conn. 258]. Without the allegation that there is a potential cause of action that is to be supported by the information sought,” the trial court found that Berger had failed to allege a situation entitling him to the relief sought.

Berger’s amended complaint, unlike his first complaint, set forth a variety of potential claims against Cuomo and First Federal. The evidence submitted in support of those claims established the following: Cuomo and Berger were partners in a general partnership that owned three parcels of real property that were encumbered by two mortgages securing two promissory notes owned by First Federal on which the partnership was liable. There was also evidence that prior to private negotiations between Cuomo and First Constitution, both Cuomo and Berger had been jointly and severally liable on these same notes. Finally, there was evidence that the partnership continued to lose money and that Cuomo, who owned a 75 percent interest in the partnership, failed to contribute to the monthly shortfall that the partnership fell into default on its obligations to First Federal, and that Berger, who owned a 25 percent interest in the partnership, remained personally liable to First Federal on the notes even after Cuomo had negotiated with First Constitution to obtain a release of his own personal liability.

On the basis of this evidence, the trial court could properly have concluded that Berger had established probable cause to bring at least one, if not several, potential causes of action and that he was merely attempting “ ‘to gather his evidence in advance’ ” in order to avoid proving his case “ ‘clumsily or wastefully.’ ” Pottetti v. Clifford, supra, 146 Conn. 258. As the trial court recognized, there is a distinction between a would-be plaintiff having to demonstrate the need for the information to determine whether a particular cause of action is worthy of being pursued and a plaintiff having to prove definitively that he has a cause of action and that he will probably prevail ultimately at the trial on the merits.

We note that Cuomo does not argue that Berger has no cause of action against him. On the contrary, Cuomo argues that Berger already has enough information to support the claims for potential causes of action set forth in his complaint. Cuomo suggests that Berger’s true purpose in seeking the bill of discovery is to procure the documents in order to negotiate a favorable release on the notes similar to the settlement that he had obtained. The trial court was not required, however, to agree with Cuomo’s contention. The trial court was within its discretion in accepting Berger’s argument that he needed to see the documents in order to discern “which if any of these actions [as contained in paragraph ten of Berger’s amended complaint] should be maintained.” At the trial, Cuomo simply argued that the documents evidencing the agreement between him and First Constitution were “not needed for what [Berger] contemplates in his writ. He could bring that writ without this agreement.” Berger responded that his “very discreet, direct inquiry” was to avoid a “fishing expedition.” Further, Berger’s counsel argued that he believed he “had an ethical obligation to ascertain whether [his] client has ... a cause of action before bringing [it].” Without the documents, Berger’s counsel represented that he would have to bring an action and then seek discovery in an attempt to ascertain whether the transaction between Cuomo and First Constitution had been legitimate and whether his client had any recourse. It was within the discretion of the trial court to ascertain the sincerity of the argument of Berger’s counsel and to determine if the evidence justified his request for the bill of discovery.

Cuomo’s second claim is that the requested documents were not material or necessary. We disagree. The documents requested were material because they pertained to the question Berger needed to answer: which of the many potential causes of action against Cuomo and/or First Federal was most worthy of pursuit? Although Berger already possessed the partnership agreement, arguably he needed the closing documents to discern the answer to this question. Because Berger already had been denied access to the documents by Cuomo and First Federal, the bill of discovery was the only method, short of filing suit “ ‘clumsily or wastefully’ "; Pottetti v. Clifford, supra, 146 Conn. 258; that would afford him access to those documents. Under the circumstances of this case, therefore, the trial court acted within its discretion in granting the bill of discovery, thereby enabling Berger to determine which actions he should ultimately assert. See Sinclair Refining Co. v. Jenkins Petroleum Process Co., supra, 289 U.S. 696-97 (what is reasonably necessary should be determined by sound discretion of trial court); Peyton v. Werhane, supra, 126 Conn. 389.

II

Cuomo’s last claim is that the trial court improperly limited the scope of his cross-examination of Berger by refusing to permit him to ask Berger whether the partnership agreement precluded Cuomo from limiting his liability on the notes.

In sustaining Berger’s objection to Cuomo’s question concerning the partnership agreement, the trial court stated that a bill of discovery did not require Berger to establish that he would prevail on his claims. Cuomo argued that the trial court previously, in granting his motion to strike, had noted that “[Berger had] not alleged in his pleading that his partnership agreement with [Cuomo] preclude[d] subsequent limitations of [Cuomo’s] liability nor that the terms of the [agreement with First Constitution] preclude[d] agreements that alter[ed] [Berger’s] own exposures.” The trial court explained, however, that it had granted Cuomo’s motion because Berger had failed to indicate any potential causes of action that he proposed to assert, and that it had made the above statement merely to illustrate some of the potential causes of action that Berger could have asserted. In response to the trial court’s explanation, Cuomo stated that he would not pursue the issue if the trial court considered it to be irrelevant.

To have preserved the issue properly, Cuomo was required to take an exception to the trial court’s ruling pursuant to Practice Book § 288; Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 569, 525 A.2d 954 (1987); which he failed to do. Of greater significance is the fact that Cuomo specifically abandoned any objection to the ruling at trial. Because we decline to permit Cuomo presently to challenge a ruling he previously had accepted, we reject this claim. See State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982) (assigning error to trial court’s evidentiary ruling on basis of objection not preserved at trial amounts to ambuscade of trial judge).

The judgment is affirmed.

In this opinion the other justices concurred.

       The appeal, originally filed with the Appellate Court, was transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       In December, 1987, there was a mortgage securing a note of $1,200,000, increased thereafter in 1988 to $1,500,000. In 1989, a separate mortgage and note for $200,000 was executed and recorded.

       First Constitution thereafter failed and was taken over by the Federal Deposit Insurance Corporation (FDIC). First Federal purchased the assets of First Constitution from the FDIC and at the time of trial was in possession of the documents that reflect the October 2, 1992 agreement made by Cuomo and First Constitution. Although Cuomo had initially pledged only the $225,000 to First Constitution, that pledge was later called in by the bank in January, 1994.

       In a letter from Cuomo to Berger, dated October 30,1992, Cuomo stated that he “pledged the sum of $225,000 to secure my and the partnership’s obligations under its loans in exchange for a release of further liability.” Berger testified, however, that First Federal had informed Mm that Cuomo had been released from his personal liability on the notes.

       First Federal indicated that-it would supply Berger with the information he sought with the agreement of all parties. Because Cuomo did not grant his permission, First Federal did not consider itself at liberty to comply with the discovery request, absent a court order.

       Although Berger does not make specific common law or statutory reference in support of his potential claims, it is clear that the Uniform Limited Partnership Act; General Statutes § 34-9 et seq.; contemplates actions between general partners for, inter alia, contribution and accounting.

       Cuomo specifically argues that the discovery mechanisms contained in General Statutes §§ 52-148a, 52-148e, 52-152, 52-156, 52-156a and 52-197 provide adequate substitutes for Berger’s requested bill of discovery.

       This distinction was explicitly noted by the trial court when, during cross-examination, Cuomo tried to ask Berger whether the terms of their partnership agreement precluded either of them from limiting their respective liability on the promissory notes. In sustaining Berger’s objections to this area of inquiry, the trial court remarked: “[A] bill of discovery . . . does not require the plaintiff to show [he is] going to prevail on the claims for which he wants the evidence. . . . [Y]ou seem to be trying to defeat the claims themselves rather than right now the only thing before the court is whether there is a need for this information.”

       Cuomo posed the following question: “Is there anything in that partnership agreement which prohibited subsequent limitations of personal liability? When you signed on for the note, was there a prohibition?”

       Practice Book § 288 was amended effective October 1,1993, by deleting the requirement that an exception to a ruling must be taken in order to preserve appellate review.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Larry L. Sharp, Administrator (Estate of David C. Sharp), et al. v. Wyatt, Inc., et al.
    (14862)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.
    Argued May 11
    decision released July 5, 1994

      Jane E. Hugo, with whom on the brief, was Richard A. Jontos, for the appellant (named defendant).

      Ben A. Solnit, with whom were Kevin M. Tepas, Sergio C. Deganis and, on the brief, Robert W. Allen,

      Thomas R. Gerarde, J. Kevin Golger and James G. Geanuracos, for the appellants (defendant Exxon Company, U.S.A., et al.).

      Michael P. Koskoff, with whom was Rosalind J. Koskoff and, on the brief, Joan C. Harrington, for the appellees (plaintiffs).
   Per Curiam.

This appeal concerns the scope of liability under the warnings provision of Connecticut’s product liability statute, General Statutes § 52-572q. The named defendant, Wyatt, Inc. (Wyatt), a wholesale distributor of petroleum products, sold its products to the Norbert E. Mitchell Company (Mitchell), a retail fuel dealer in Danbury. Mitchell stored the petroleum products on its premises in underground tanks surrounding a vault that housed valves. On February 3, 1983, three employees of Mitchell died from asphyxiation after descending into the vault.

On January 24, 1985, the plaintiffs, as administrators of the decedents’ estates, brought this action against Wyatt, alleging that Wyatt had failed properly to warn the plaintiffs’ decedents of the hazards associated with the storage of petroleum products. Wyatt impleaded its oil suppliers as third party defendants and the plaintiffs thereafter filed an amended complaint naming the suppliers as defendants. Subsequently, all of the defendants filed motions for summary judgment in which they asserted that, as a matter of law, their products were neither defective nor the proximate cause of the decedents’ deaths. The defendants also claimed that the plaintiffs’ action was barred by the sophisticated user doctrine and the two year statute of limitations provision contained in General Statutes § 52-577c (b).

The trial court granted the defendants’ motions for summary judgment and the plaintiffs appealed to the Appellate Court, which reversed the trial court’s decision. Sharp v. Wyatt, Inc., 31 Conn. App. 824, 855, 627 A.2d 1347 (1993). The Appellate Court concluded that the trial court had improperly determined that: (1) § 52-572q requires a threshold showing that the product was defective in order to assess whether warnings were required; (2) the doctrine of foreseeability applies to the causation analysis under § 52-572q (c); and (3) the plaintiffs failed to raise a genuine issue of material fact concerning leakage of the defendants’ petroleum products into the vault. Additionally, the Appellate Court concluded that: (1) pursuant to § 52-572q (b), the sophisticated user doctrine is a factor to be considered in determining the need for warnings and is not an affirmative defense; and (2) the plaintiffs had raised genuine issues of material fact regarding the applicability of the two year statute of limitations provision contained in § 52-577c (b). We granted the defendants’ petition for certification to appeal regarding these issues. Sharp v. Wyatt, Inc., 228 Conn. 904, 634 A.2d 298 (1993).

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issues on which we granted certification were properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. Cf. Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994); Board of Education v. State Board of Education, 228 Conn. 433, 436, 636 A.2d 378 (1994); Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76, 78, 556 A.2d 1024 (1989).

The judgment of the Appellate Court is affirmed.

       General Statutes § 52-572q provides: “liability of product seller DUE TO lack of adequate WARNINGS OR instructions, (a) A product seller may be subject to liability for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided.
      “(b) In determining whether instructions or warnings were required and, if required, whether they were adequate, the trier of fact may consider: (1) The likelihood that the product would cause the harm suffered by the claimant; (2) the ability of the product seller to anticipate at the time of manufacture that the expected product user would be aware of the product risk, and the nature of the potential harm; and (3) the technological feasibility and cost of warnings and instructions.
      “(c) In claims based on this section, the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm.
      “(d) A product seller may not be considered to have provided adequate warnings or instructions unless they were devised to communicate with the person best able to take or recommend precautions against the potential harm.”

       The plaintiffs include Larry Sharp as administrator of the estate of David C. Sharp, Cheryl A. Vidal as administrator of the estate of Robert K. Vidal and Judith M. Entress as administrator of the estate of Alois C. Entress.

       The defendant oil suppliers include Exxon Company, U.S.A, Philbro Distributors, Inc., Moore McCormack Petroleum, Inc., Mount Airy Trading Company, Northville Caribbean Corporation, and B.P. North America Trading, Inc.

       The defendant oil suppliers asserted the sophisticated user doctrine against Wyatt, while Wyatt asserted the doctrine against the plaintiffs.

       The defendant oil suppliers raised the two year statute of limitations defense against Wyatt and the plaintiffs. Wyatt did not raise this defense against the plaintiffs.

       General Statutes § 52-577c (b) provides in relevant part: “[N]o action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.”

         The Appellate Court concluded that, for purposes of the causation analysis under the statute, neither subsection (b) nor subsection (c) of General Statutes § 52-572q implicates the doctrine of foreseeability. We recognize, however, that the Appellate Court did indicate, at least by implication, that foreseeability may be implicated under subsection (b), because it noted that subsection (b) calls on the trier of fact to consider the “likelihood that the product would cause the harm suffered by the plaintiff” as a factor in determining whether a product is defective for failure of its seller to provide adequate warnings.
      The parties did not argue, and the Appellate Court did not address, the issue of whether the doctrine of foreseeability is implicated under subsection (a) of the statute for purposes of causation. As we recently noted in Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 505, 642 A.2d 709 (1994), our product liability act was not patterned after the Model Uniform Product Liability Act (model act); 44 Fed. Reg. 62,714-50 (1979); but rather is based on the Draft Uniform Product Liability Law (draft act), published in 44 Fed. Reg. 2996 et seq. (1979). Section 104 of the draft act, after which § 52-572q was patterned, states, in part, that “[a] product seller may be subject to liability for harm caused to a claimant . . . .” (Emphasis added.) Draft Uniform Product Liability Law, Department of Commerce, Office of the Secretary, 44 Fed. Reg. 2998 (Jan. 12, 1979). In contrast, § 104 of the model act states, in part, that “[a] product manufacturer is subject to liability to a claimant who proves . . . that the claimant’s harm was proximately caused . . . .” (Emphasis added.) Model Uniform Product Liability Act, Department of Commerce, Office of the Secretary, 44 Fed. Reg. 62,721 (Oct. 31, 1979). Whether this difference between the draft act and the model act bears on the question of whether the doctrine of foreseeability is implicated under § 52-572q (a) is an issue we leave for another day.
      Even if we were to decide that the doctrine of foreseeability is implicated under § 52-572q (a), summary judgment would be inappropriate in this case. In their motions for summary judgment, the defendants, as the moving parties, did not raise the issue of whether inadequate warnings proximately caused the harm to the plaintiffs’ decedents. The defendants argued only that the plaintiffs’ failure to identify the offending petroleum product prevented them from proving that any alleged defect in the defendants’ products caused the injuries of the plaintiffs’ decedents. The defendants, therefore, failed to sustain their burden of showing the nonexistence of any material fact regarding this issue. See Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 247, 618 A.2d 506 (1992); Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990). Furthermore, because the trial court, sua sponte, raised the issue of whether the doctrine of foreseeability was implicated under § 52-572q (c), the plaintiffs never had the opportunity to present the evidence set forth to this court that the defendants could have foreseen that their products were stored and transported in many types of confined spaces that created the potential hazard of low oxygen and the danger of asphyxiation.

       We granted the defendants’ petition for certification to appeal limited to the following issues:
      “1. Did the Appellate Court properly conclude that, under the facts of this case, the trial court improperly: (a) determined that General Statutes § 52-572q requires a showing that the product was defective in order to determine that warnings were required; (b) determined that the doctrine of foreseeability applies under General Statutes § 52-572q?
      “2. Did the Appellate Court properly conclude that there was a question of fact regarding whether the defendants’ oil products leaked into the vault, in the absence as parties of the other suppliers of the oil in the tanks?
      “3. Did the Appellate Court properly conclude that the defendants could not use the doctrine of sophisticated user as an affirmative defense?
      “4. Did the Appellate Court properly conclude that there was a question of fact regarding whether the two-year statute of limitations of General Statutes § 52-577c (b) applied to the facts of this case?” Sharp v. Wyatt, Inc., 228 Conn. 904, 905, 634 A.2d 298 (1993).


author: Callahan, J.

text:
    Gregory Howard v. Commissioner of Correction
    (14906)
    Peters, C. J., Callahan, Borden, Berdon and Palmer, Js.
    Argued May 5
    decision released July 5, 1994

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (respondent).

      Christopher C. Sheehan, deputy assistant public defender, for the appellee (petitioner).
   Callahan, J.

The commissioner of correction (respondent) has appealed from the judgment of the trial court in a habeas corpus proceeding that held that good conduct credit forfeited by Gregory Howard, the petitioner, during a previous sentence and later restored, must be applied to reduce the petitioner’s subsequently imposed concurrent sentence. We affirm the judgment.

The record reveals the following relevant facts. The petitioner was sentenced on February 24, 1984, to a term of imprisonment of forty months. Subsequently, on August 15, 1985, he was sentenced to a term of imprisonment of ten years to be served consecutively to his sentence of forty months. Thereafter, on March 18, 1993, he was sentenced to a term of imprisonment of nine months to be served concurrently with the sentence he was then serving.

The petitioner’s forty month sentence expired on October 18, 1986. He was discharged from his ten year sentence on July 2, 1993. Thereafter, he was serving only the nine month concurrent sentence imposed on March 18, 1993.

While the petitioner was serving his forty month sentence, he had forfeited a substantial amount of good conduct credit because of misconduct in the institution. See General Statutes § 18-7a (c). While serving his ten year sentence, the petitioner also had forfeited a substantial amount of good conduct credit. His behavior thereafter had improved during that sentence, however, and all the forfeited credit attributable to that sentence had been eventually restored to that sentence. The respondent, however, refused to consider restoration of good conduct credits forfeited during the petitioner’s forty month sentence for application to his subsequent sentences.

On April 12, 1993, the petitioner brought this petition for habeas corpus to require that the respondent consider the good conduct credits forfeited during the petitioner’s expired forty month sentence for application to reduce his remaining sentences. The habeas court concluded that the respondent had denied the petitioner’s request on grounds not authorized by General Statutes §§ 18-7 and 18-7a, and ordered the respondent to reconsider the request. The court reasoned that the petitioner’s forty month sentence and his subsequent sentences should be construed as “one continuous term” pursuant to § 18-7. It determined, therefore, that the petitioner was entitled to have any good conduct credit forfeited during his forty month sentence considered for restoration to reduce his remaining sentences.

Pursuant to the habeas court’s judgment, the respondent considered the petitioner’s request for restoration of good conduct credits and restored to his ten year sentence thirty days of credit that the petitioner had lost while serving his forty month sentence. The respondent, however, refused to apply the restored thirty days of credit to the petitioner’s nine month sentence. When the petitioner was notified on July 29, 1993, that thirty days of good conduct credit had been restored, the petitioner already had been discharged from his ten year sentence. Thereafter, the petitioner continued to serve only the unexpired portion of the nine month concurrent term to which he had been sentenced on March 18, 1993. That term was due to be discharged in September, 1993.

In response to the petitioner’s motion requesting enforcement of its judgment, the habeas court ruled that all three sentences in question were required to be treated as one continuous term of imprisonment pursuant to § 18-7. The court therefore ordered that the thirty days of restored good conduct credit be applied to that portion of the petitioner’s nine month concurrent sentence that he was still serving.

The respondent did not appeal the habeas court’s decision insofar as it held that the petitioner was entitled to have his forty month sentence and his consecutive ten year sentence aggregated and construed as one continuous term of imprisonment. Moreover, he does not disagree with the habeas court’s ruling that the good conduct credits forfeited by the petitioner while serving his forty month sentence properly should have been considered for application to reduce the petitioner’s consecutive ten year sentence, even though the petitioner’s forty month term had expired. The respondent concedes that these aspects of the habeas court’s ruling were reasonable interpretations of McCarthy v. Commissioner of Correction, 217 Conn. 568, 574, 587 A.2d 116 (1991) (statutory mandate of § 18-7 that consecutive terms of imprisonment be aggregated and treated as one consecutive term of imprisonment for purpose of calculating good time credits). See also Elliot v. Commissioner of Correction, 217 Conn. 584, 587 A.2d 124 (1991).

The respondent, however, appeals from that part of the habeas court’s judgment that determined that the petitioner’s nine month concurrent sentence was part of a continuous term of imprisonment and that the restoration of thirty days of good conduct credit from the petitioner’s expired forty month sentence had to be applied to his nine month sentence. The respondent did not seek a stay of execution, however, and the restored good conduct credits were applied to the nine month sentence that the petitioner was then serving. He was released from custody on August 30, 1993.

The question posed by this appeal is whether the habeas court properly ordered the respondent to apply the restored thirty days of good conduct credit from the petitioner’s expired forty month sentence to his concurrent nine month sentence. We conclude that the habeas court was correct.

Section 18-7 states in pertinent part: “When any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section.” This statute makes no distinction between convictions that result in consecutive sentences and those that result in concurrent sentences. See Delevieleuse v. Manson, 184 Conn. 434, 439, 439 A.2d 1055 (1981); see also Wilson v. Warden, 34 Conn. App. 503, 506, 642 A.2d 724 (1994). We cannot rewrite the statute to make such a distinction. Zachs v. Groppo, 207 Conn. 683, 690, 542 A.2d 1145 (1988); Murray v. Lopes, 205 Conn. 27, 34, 529 A.2d 1302 (1987); Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987). If the legislature had intended § 18-7 to apply only to consecutive sentences, it could easily have said so. Caulkins v. Petrillo, 200 Conn. 713, 719, 513 A.2d 43 (1986); State v. Smith, 194 Conn. 213, 232, 479 A.2d 814 (1984). The fact, therefore, that the petitioner’s sentence was concurrent rather than consecutive does not remove it from the purview of § 18-7. Consequently, if the petitioner was “held” under more than one conviction on the imposition of his nine month concurrent sentence on March 18, 1993, he would have been entitled to have all his sentences “construed as one continuous term” of imprisonment pursuant to § 18-7 for the purpose of the forfeiture, and by implication, the restoration of good conduct credits. Moulthrop v. Walker, 129 Conn. 164, 168, 26 A.2d 789 (1942) (for forfeiture of good conduct credit earned, several counts are regarded as one continuous term).

In Alexander v. Robinson, 185 Conn. 540, 548, 441 A.2d 166 (1981), we determined that the execution of the mittimus delivering the petitioner to the custody of the warden of the Somers Correctional Institution “held” the petitioner for the purposes of § 18-7, even though the petitioner was then serving another sen-fence. We reasoned that upon the execution of the mittimus by the sheriff, the petitioner was “held” pursuant to General Statutes § 54-97 and the specific language of the mittimus process. Moreover, in State v. Clemons, 168 Conn. 395, 409, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80 (1975), we concluded that concurrent sentences are separate terms of imprisonment.

We cannot distinguish Alexander and Clemons from the present case to conclude other than that the petitioner was “held” under more than one conviction.

The petitioner had not only been committed to the respondent and the warden by the authority of a mit-timus, but, because his March 18, 1993 sentence was concurrent to his previous sentence, he had embarked immediately upon its service. It is clear, consequently, that the petitioner was “held” under more than one conviction. As a result, his sentences must be “construed as one continuous term” of imprisonment pursuant to § 18-7 for the purpose of the restoration of any good conduct credit. Therefore, the petitioner was entitled to have the thirty days of restored good conduct credits applied to his overall sentence, that is, the sentence with the longest term to run, in this case, his nine month concurrent sentence. “[T]he legislature explicitly chose to make the ‘effective sentence’ the benchmark for ‘good time’ under § 18-7 . . . .” Delevieleuse v. Manson, supra, 184 Conn. 440.

Moreover, the fact that the petitioner’s forty month sentence had expired prior to the time the petitioner was “held” pursuant to his nine month sentence does not defeat the petitioner’s claim that he was entitled to the restored good conduct credits attributable to that sentence. Concededly, the petitioner’s forty month sentence was required to be treated as one continuous term with his subsequent ten year sentence. See McCarthy v. Commissioner of Correction, supra, 217 Conn. 568. His forfeited good conduct credits from that sentence were, therefore, applicable to his ten year sentence. Because the nine month concurrent sentence must be construed as one continuous term with his ten year sentence, those credits were also available for application to his nine month sentence.

We conclude therefore that the habeas court properly ordered the respondent to apply the thirty days of good conduct credit from the petitioner’s forty month sentence restored to the time remaining on his nine month sentence.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-38 provides in pertinent part: “calculation OF TERMS OF IMPRISONMENT. . . .
      “(b) A definite sentence of imprisonment commences when the prisoner is received in the custody to which he was sentenced. Where a person is under more than one definite sentence, the sentences shall be calculated as follows: (1) If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest term to run; (2) if the sentences run consecutively, the terms are added to arrive at an aggregate term and are satisfied by discharge of such aggregate term.”

       General Statutes § 18-7a provides in pertinent part: “GOOD CONDUCT CREDIT FOR PRISONERS. . . .
      “(c) Any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.”

       The decision to restore good conduct credits is a discretionary function of the warden and/or the classification department. The commissioner of correction retains the discretion to approve or disapprove any restoration award.

       General Statutes § 18-7 provides in pertinent part: “When any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section.”

       Although the petitioner has been released from custody, his claims are not moot. See Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981).

       “[General Statutes] See. 54-97. MITTIMUS REQUIRED. EXCEPTION. No person may be committed to the Connecticut Correctional Institution, Somers, or a community correctional center without a mittimus signed by the judge or clerk of the court which committed him, declaring the cause of commitment and requiring the warden or community correctional center administrator to receive and keep him in the Correctional Institution, Somers, or the community correctional center, as the case may be, for the period fixed by the judgment of said court or until he is legally discharged; and such mittimus shall be sufficient authority to the officer to commit such person, and to the warden or community correctional center administrator to receive and hold him in custody, except that any community correctional center may receive any person as provided in section 7-135 without such mittimus.”


author: Callahan, J. Berdon, J., Katz, J., with whom Berdon, J.,

text:
    State of Connecticut v. Gilberto Colon State of Connecticut v. Carmen Perez
    (14847)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.

      Argued March 30
    decision released July 5, 1994

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Paul E. Murray, senior assistant state’s attorney, and Joan K. Alexander, assistant state’s attorney, for the appellant (state).

      Kent Drager, assistant public defender, for the appellees (defendants).
   Callahan, J.

The dispositive issue in these consolidated appeals is whether a search warrant is facially invalid because the issuing judge failed to sign and date a jurat. The defendants, Gilberto Colon and Carmen Perez, were charged with various narcotics offenses. The trial court suppressed evidence seized pursuant to a search warrant that was issued upon the application of two Hartford detectives. The issuing judge, however, had neglected to sign the jurat following the statement, executed by the detectives, that established probable cause. As a result of the suppression, the trial court dismissed the charges against the defendants. The Appellate Court affirmed the judgment of the trial court. We reverse the judgment of the Appellate Court.

On February 6, 1992, Hartford Detectives Michael Perodeau and Stephen Grabowski submitted an application for a search and seizure warrant for 12 Willard Street, apartment 304, to Superior Court Judge Carmen E. Espinosa. State v. Colon, 32 Conn. App. 402, 404, 628 A.2d 1347 (1993). Judge Espinosa found that a statement of the detectives contained in the section of the application denominated “affidavit” established probable cause and issued the warrant. The subsequent search of 12 Willard Street, pursuant to the warrant, resulted in the seizure of a substantial quantity of narcotics and $9329 in cash. Id., 405. The defendants were arrested and charged with violations of the narcotics laws. Id.

It was discovered subsequently that Judge Espinosa had neglected to sign the jurat following the detectives’ statement in the application for the warrant. Id., 404. Both Perodeau and Grabowski, however, had signed and dated the jurat form in the proper places and in all other respects the application for the warrant had been properly completed and executed. Specifically, the affidavit supporting the request to delay delivery of the warrant, including its jurat, had been properly signed by Judge Espinosa and detectives Perodeau and Grabowski. Judge Espinosa had also properly signed the actual order directing the search. Id., 404-405.

After a hearing, the trial court granted Colon’s motion to suppress the evidence seized pursuant to the warrant solely because Judge Espinosa had not signed the jurat following the detectives’ signatures. Id., 404 n.2. After granting the state’s subsequent motion to open and reconsider its decision, the trial court held a further hearing. Id. At this further hearing, the state introduced, over the objection of defense counsel, an affidavit from Judge Espinosa wherein she attested that she had found probable cause to issue the warrant, that she had properly administered the oath to the affi-ant officers, that the officers had sworn to the truth of their statement establishing probable cause in her presence and had signed the jurat following their statement, that she had signed the jurat requesting dispensation with the delivery requirement and had signed the actual search warrant, and that her failure to sign the jurat, following the statement of the detectives that had established probable cause, had been an oversight.

Grabowski testified at the reopened hearing that both he and Perodeau had sworn to the contents of their statement before Judge Espinosa and had affixed their signatures to the jurat form. He further stated that Judge Espinosa had signed the order directing the search in the presence of both officers. Finally, Grabowski testified that neither he nor Perodeau had been aware of the absence of Judge Espinosa’s signature on the jurat prior to searching the premises described in the warrant.

The trial court adhered to its prior decision to suppress the evidence and to dismiss the charges against Colon, holding that the unsigned jurat rendered the warrant fatally defective. Perez, the second defendant, subsequently moved to suppress the evidence seized pursuant to the warrant. His motion was granted and the charges against him were also dismissed. The Appellate Court affirmed the trial court’s judgments. State v. Colon, supra, 32 Conn. App. 402.

We granted certification limited to the following issues: “(1) Under the circumstances of this case, did the failure of the issuing judge to sign the jurat on the affidavit invalidate the search warrant? (2) If the answer to question (1) is ‘yes,’ should the remedy have been exclusion of the evidence seized pursuant to the warrant?” State v. Colon, 227 Conn. 926, 632 A.2d 705 (1993). Because we conclude that the search warrant was valid despite the unsigned jurat, we need not address the second certified question.

The state argues that Judge Espinosa’s failure to sign the jurat following the detectives’ statement establishing probable cause did not render the search warrant in question invalid. We agree.

The fourth amendment to the federal constitution provides in part that “no warrants shall issue, but upon probable cause, supported by oath or affirmation.” Similarly, article first, § 7, of the Connecticut constitution provides in pertinent part that “no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” Neither constitutional provision specifies a particular procedure for evidencing whether probable cause has been supported by oath or affirmation; both simply require that probable cause, in fact, be so supported. See United States v. Turner, 558 F.2d 46, 50 (2d Cir. 1977) (telephonic oath); State v. Nunn, 99 Or. App. 503, 506, 783 P.2d 26 (1989); Vance v. State, 759 S.W.2d 498, 500 (Tex. App. 1988). A jurat provides one effective means of attesting that an affidavit was sworn to under oath, but it is not the only effective or permissible means. State v. Nunn, supra, 505-506; see also Gossard v. Vawter, 21 N.E.2d 416, 417 (Ind. 1939); American Home Life Ins. Co. v. Heide, 199 Kan. 652, 655, 433 P.2d 454 (1967); Land Clearance for Redevelopment Authority v. Zitko, 386 S.W.2d 69, 78 (Mo. 1965); People v. Rodriguez, 150 App. Div. 2d 622, 541 N.Y.S.2d 491, cert. denied, 546 N.Y.S.2d 576, 545 N.E.2d 890 (1989); People v. Zimmer, 112 App. Div. 2d 500, 490 N.Y.S.2d 912 (1985); State v. Flynn, 33 N.C. App. 492, 494, 235 S.E.2d 424 (1977); White v. State, 702 P.2d 1058, 1061 (Okla. Crim. 1985). Therefore, the absence of the signed jurat is not a state or federal constitutional violation.

General Statutes § 54-33a (c), however, requires in pertinent part that "[a] warrant may issue only on affi davit sworn to by the complainant or complainants before the judge and establishing the grounds for issuing the warrant . . . .” (Emphasis added.) The Appellate Court concluded that § 54-33a (c) requires a completed jurat in order to effect an affidavit to support a warrant. In so concluding, the Appellate Court relied principally on its own prior decision in Willametz v. Susi Contracting Co., 9 Conn. App. 1, 6-7, 514 A.2d 383, cert. denied, 201 Conn. 814, 517 A.2d 631 (1986), wherein the court held that an unsworn statement purporting to be an affidavit of debt filed in a civil case that recited only that the “ ‘[d]efendant agreed to pay [the] plaintiff the sum of $100,030.00 on September 9, 1977, in settlement of [the] judgment’ ” was not an affidavit. The court reasoned that the purported affidavit of debt was not an affidavit because it “not only lacked substance, but, more importantly, it lacked the formality required of an affidavit.” Id., 6. The court concluded that it lacked the requisite formality because it contained neither an oath by the plaintiff nor any attestation that the statement was made under oath before a person authorized by law to administer an oath. Id., 6-7. By analogy to Willametz, the Appellate Court in the present case concluded that the definition of an affidavit necessarily includes the jurat and that, without a signed jurat, the search warrant lacked an “affidavit” as required by § 54-33a (c). State v. Colon, supra, 32 Conn. App. 406.

Even if we were to adopt the rule announced in Wil-lametz, we do not read that ruling so expansively. Wil-lametz was governed by Practice Book § 366, which provided that “[i]n all actions of contract when damages are to be assessed after entry of default, the plaintiff must file an account, copy, statement, or bill of particulars verified by oath, or duly present evidence in court in support of his claim.” (Emphasis added.) Willametz v. Susi Contracting Co., supra, 9 Conn. App. 6. The plaintiff in Willametz neither “filed” the appropriate document verified by oath (i.e., an affidavit) nor presented evidence in court in support of his claim. Because the plaintiff in Willametz had presented neither evidence in support of his claim, nor evidence that his statement had been verified by oath, the filing of a self-proving affidavit was required by § 366. In the present case, by contrast, there was evidence that Grabowski and Perodeau had sworn to the facts establishing probable cause and that Judge Espinosa had, in fact, administered an oath to Grabowski and Perodeau prior to issuing the warrant.

Furthermore, in arriving at its decision that the purported affidavit of debt did not qualify as an affidavit, the Appellate Court in Willametz relied on the generally accepted definition of “affidavit,” stating that an affidavit is “ ‘[a]ny voluntary ex parte statement reduced to writing, and sworn to or affirmed before some person legally authorized to administer an oath or affirmation.” (Emphasis in original.) Id., 7; Ballen-tine’s Law Dictionary (3d Ed.); see 3 Am. Jur. 2d 380, Affidavits § 1 (1962). This definition does not preclude extrinsic evidence of the administration of an oath, nor does it mandate a signed jurat in order for a document to fall within its parameters. Therefore extrinsic evidence that Judge Espinosa had administered an oath to Grabowski and Perodeau, if credited, would supply the necessary ingredient to support a finding that there was a valid affidavit as defined in Willametz.

The Appellate Court, in reaching its conclusion that § 54-33a (c) required a signed jurat, also relied on the general rule that criminal statutes are to be construed strictly in the defendant’s favor. State v. Colon, supra, 32 Conn. App. 406-407. While we also recognize that criminal statutes are to be construed strictly, the language in a criminal statute need not be given its narrowest possible construction. See State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); see also Singh v. Singh, 213 Conn. 637, 646, 569 A.2d 1112 (1990); State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987). Moreover, it is a general principle of statutory construction that words “shall be construed according to the commonly approved usage of language . . . ." General Statutes § 1-1 (a); see also State v. Roque, supra, 151. Section 54-33a (c) requires only an “affidavit sworn to by the complainant or complainants” in order for a warrant to issue. The term “affidavit” is, as previously noted, commonly defined as “any voluntary ex parte statement reduced to writing, and sworn to or affirmed before some person legally authorized to administer an oath or affirmation.” 3 Am. Jur. 2d 380, Affidavits § 1 (1962); see also 2A C.J.S. 435, Affidavits § 2 (1972). Neither the commonly approved definition of the term “affidavit” nor § 54-33a (c) requires a signed jurat. “We have no warrant for interpolating into a criminal statute a requirement it does not now contain.” State v. Duhan, 194 Conn. 347, 358, 481 A.2d 48 (1984).

In suppressing the evidence seized, the trial court stated that it had assumed that Judge Espinosa had administered an oath to the detectives. It found, however, that, because the jurat was not signed, the administration of an oath was not evident from the four corners of the warrant application and, consequently, that there was not a valid affidavit to support the search warrant. The Appellate Court also concluded that a jurat signed by the issuing judge had to appear in the warrant application in order for an affidavit to be valid and that any defect in, or omission of, the jurat could not be remedied by extrinsic evidence.

We agree that, in determining the adequacy of an affidavit in support of a search warrant, the information to establish probable cause must be found within the affidavit’s four corners. See State v. Zarick, 227 Conn. 207, 216-17, 630 A.2d 565, cert. denied, U.S. , 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). The purpose of the affidavit, however, is to “enable the issuing authority to weigh the persuasiveness of the facts relied upon by the affiant or complainant and, from them, to determine whether the necessary probable cause exists for the issuance of the warrant.” State v. Allen, 155 Conn. 385, 391, 232 A.2d 315 (1967). Therefore, although probable cause must be determined from the four corners of the warrant, we are not confined to the four corners of the warrant in determining whether the affidavit in support of probable cause has been validly executed. See Vance v. State, 759 S.W.2d 498, 500 (Tex. App. 1988) (“The ‘four corners’ doctrine gives us guidance more particularly in determining the sufficiency of the probable cause evidence set out in the affidavit to justify the issuance of the search warrant. The ‘four corners’ doctrine does not apply to the jurat beneath the affidavit. When the jurat on its face is defective, the fact that it was properly sworn to may be shown by other evidence.”); see also Huff v. Commonwealth, 213 Va. 710, 712, 194 S.E.2d 690 (1973); 3 Am. Jur. 2d, Affidavits § 17 (1962) (“omission of a jurat or a signature thereto ... is not fatal to the validity of the affidavit, so long as it appears . . . from evidence aliunde that the affidavit was, in fact, duly sworn to before an authorized officer”). In making the determination that the affidavit in this case was validly executed, we adopt the view that “the jurat is simply evidence of the fact that the affidavit was duly sworn to by the affiant, and, in the event of its omission, the fact that the affidavit was properly sworn to may be proven by other evidence.” White v. State, supra, 702 P.2d 1061; see also Gossard v. Vawter, supra, 21 N.E.2d 417; American Home Life Ins. Co. v. Heide, supra, 199 Kan. 655; Land Clearance for Redevelopment Authority v. Zitko, supra, 386 S.W.2d 78; People v. Rodriguez, supra, 150 App. Div. 2d 622; People v. Zimmer, supra, 112 App. Div. 2d 500; State v. Flynn, supra, 33 N.C. App. 494; 3 Am. Jur. 2d 393, Affidavits § 16 (1962) (“the jurat is no part of the affidavit, but simply evidence that the affidavit has been duly sworn to by the affiant . . .”); 2A C.J.S. 467, Affidavits § 31 (1972) (“The jurat is not such a part of an affidavit that its omission will render the affidavit a nullity, at least where the affidavit is otherwise properly executed. Thus, ordinarily a jurat is not essential to an affidavit if the fact of the due administration of the oath is otherwise shown . . . .”).

We conclude, therefore, that, although it is preferable that every affidavit contain a completed jurat, the omission of, or a defect in, the jurat does not affect the validity of a warrant issued upon probable cause when it is proven by extrinsic evidence that the supporting affidavit was properly sworn to by the complainants. See, e.g., State v. Nunn, supra, 99 Or. App. 506; Vance v. State, supra, 759 S.W.2d 500. Any other conclusion would impose an undue penalty on law enforcement for an inadvertent omission on the part of the issuing magistrate.

Because we conclude that the jurat “ ‘is no part of the oath’ . . . and its absence is a defect curable by subsequent affidavits or testimony”; (citations omitted); People v. Zimmer, supra, 112 App. Div. 2d 501; the only remaining question is whether there was a proper finding that the affidavit had been sworn to by Grabowski and Perodeau. In the present case, extrinsic evidence was presented through the testimony of Grabowski and an affidavit from Judge Espinosa that the affidavit supporting the warrant had been executed under oath. The trial court, however, did not make a specific finding that Judge Espinosa had administered an oath to the detectives prior to issuing the warrant but merely “assumed” that she had. We therefore remand the case to the trial court for a determination of whether Judge Espinosa did, in fact, administer an oath to Grabowski and Perodeau. If the trial court so finds, the lack of a jurat signed by Judge Espinosa does not render the search warrant in this case invalid.

The judgment is reversed and the case is remanded to the Appellate Court with direction to remand the case to the trial court for further proceedings consistent with this opinion.

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

Berdon, J.,

dissenting. I agree with the dissenting opinion of Justice Katz that the search warrant in this case was invalid. In view of this court’s decisions in J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 555 A.2d 990 (1989), and Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 620 A.2d 118 (1993), the reasoning of the majority eludes me.

In J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 512, 518, although the oath was administered to the lienor, there was, as in this case, no written recital of that fact and the court invalidated the lien. In Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 577, 579, although the mechanic’s lien was signed by the lienor and the notary memorialized the lienor’s oath with a signature, the court held that the failure to conduct a formal ceremony was enough to invalidate the lien. This court in Red Rooster Construction Co. reaffirmed its reasoning in J. C. Penney Properties, Inc., as follows: “To validate a mechanic’s lien certificate without any evidence that the claimant performed some act or form of ceremony indicating that the claimant consciously undertook the obligation of an oath ‘would invite confusion, delay and uncertainty into an area where certainty and complete compliance with the statutory requirements are of paramount importance to interested parties and the general public.’ J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 518.” Red Rooster Construction Co. v. River Associates, Inc., supra, 579.

I am unable to understand why this court would apply a more forgiving standard in scrutinizing a defective search warrant than the requirement of strict compliance with the formalities of the oath it has repeatedly applied in cases such as J. C. Penney Properties, Inc., and Red Rooster Construction Co., where the validity of a mechanic’s lien was challenged. It would seem to me, as Justice Katz points out in her dissenting opinion, that we should be more concerned with the formalities of the oath when the fundamental constitutional right of privacy is implicated, as it is in the present case.

Accordingly, I join Justice Katz in her dissent.

Katz, J., with whom Berdon, J.,

joins, dissenting. I disagree with the majority’s conclusion that the defective jurat did not invalidate the warrant.

“It has long been recognized that . . . rules of criminal procedure are to be strictly construed to protect the fundamental constitutional right to liberty. See State v. Tedesco, 175 Conn. 279, 291, 397 A.2d 1352 (1978); State v. Moore, 158 Conn. 461, 465, 262 A.2d 166 (1969); Perry v. Johnson, 37 Conn. 32, 35 (1870).” State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981); see also State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992). Additionally, this court has specifically directed that strict construction of statutory provisions pertaining to search warrants is imperative. See State v. Surowiecki, 184 Conn. 95, 98, 440 A.2d 798 (1981); State v. Cook, supra, 523. Although the majority acknowledges this rule of strict construction, it nevertheless concludes that “[n]either the commonly approved definition of the term ‘affidavit’ nor [General Statutes] § 54-33a (c) requires a signed jurat.” Such a conclusion is inconsistent with our precedent.

In State v. Surowiecki, supra, 184 Conn. 97, we strictly construed the word “issue” contained in § 54-33a (c) as requiring a lawful signature on a search warrant in order to ensure its validity. See State v. Cook, supra, 183 Conn. 523 (holding that arrest warrant signed only by assistant clerk of Superior Court was defective, even though judge, who should have signed warrant, had found probable cause to support it). In that case, the judge reviewed the search warrant application, found that it established probable cause for a search of the areas listed and for a seizure of the items described, administered the oath to the affiant and signed the jurat on the application. State v. Surowiecki, supra, 96. Because of “ ‘a mere oversight,’ ” however, the judge inadvertently failed to sign the actual search warrant. Id. Despite the existence of undisputed extrinsic evidence proving the judge’s intention to sign the search warrant, we nevertheless concluded that the judge could not properly have “issued” the search warrant until he had fully performed the act of issuing. Id., 97. We stated that the judge’s signature on the search warrant represented the “identifiable objective manifestation of his subjective intent to issue the search warrant,” and therefore concluded that in the absence of such a signature, issuance was not complete. Id. We thus strictly construed the word “issue” to require a lawful signature on a search warrant by the person authorized to issue it, despite the fact that neither the legal lexicon nor the commonly approved definition of the term “issue” required such a result. Id.

The majority concludes that State v. Surowiecki, supra, 184 Conn. 95, is satisfied in this case because the section of the warrant directing the search was signed by the issuing judge. By so disposing of Sur-owiecki, however, the majority misses the point. That is, the majority fails to explain why in Surowiecki we strictly construed the word “issue” to require a lawful signature, yet decline in this case to construe strictly the terms “affidavit” or “sworn to” to require the same.

The majority’s conclusion that an unsigned jurat does not affect the validity of a warrant when it is proven by extrinsic evidence that the affidavit was properly sworn to is also inconsistent with J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 555 A.2d 990 (1989). In J. C. Penney Properties, Inc., we construed General Statutes § 49-34 (1) (C), directing that a certificate of mechanic’s lien must be “sworn to” by the claimant, to require a written recital of the oath-taking on the certificate. Id. We did so despite both the existence of extrinsic evidence proving that an oath had been administered, and the fact that § 49-34 did not explicitly require that the oath-taking be memorialized in writing. Id., 512, 518. We reasoned: “In considering a statute that authorizes a certificate of mechanic’s lien in writing ... we cannot ascribe to the legislature an intent that an essential part of this certificate need not be in writing. ... To validate a certificate without a written oath would invite confusion, delay and uncertainty into an area where certainty and complete compliance with the statutory requirements are of paramount importance to interested parties and the general public.” Id., 518. We further reasoned that “ ‘[t]o hold there need be no [sworn statement] attached would open the door to fraud difficult to detect.’ ” Id., quoting Cook Borden & Co. v. Commonwealth, 293 Mass. 174, 180, 199 N.E. 551 (1936).

It is significant that in J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 514, we “endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanics’ liens in order to achieve the remedial purposes of the mechanics’ lien statutes.” See also H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981) (“[provisions of mechanics’ lien law should be liberally construed so as to reasonably and fairly implement its remedial intent”). Thus, we held that, even if liberally construed, the words “sworn to” contained in § 49-34 required a writing. J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 518. Certainly, a strict construction of the same words as used in a criminal statute should require nothing less.

Indeed, the policies guiding strict construction of criminal statutes are even more compelling than those justifying our liberal construction of § 49-34.1 can think of no sphere in which “certainty and complete compliance with the statutory requirements” are of greater “importance to interested parties and the general public” than in the area of fundamental constitutional rights. Id., 518. To validate a warrant that lacks a completed jurat “would invite confusion, delay and uncertainty” into that arena. Id.

These same policies have persuaded other state courts to hold invalid an affidavit supporting a search warrant in the absence of a valid jurat. See, e.g., Commonwealth v. Dozier, 5 Mass. App. 865, 366 N.E.2d 1270 (1977) (motion to suppress evidence seized from defendant’s apartment and automobile pursuant to search warrant supported by affidavit on which jurat was unsigned properly allowed because document was inadequate on its face as basis for warrant); Commonwealth v. McAfee, 230 Pa. Super. 336, 339, 326 A.2d 522 (1974) (provision in Pennsylvania constitution that warrant be “supported by oath or affirmation subscribed to by the affiant” implies that there be some written record of fact that affiant was in fact sworn, to which he can subscribe, and mere oral testimony that affidavit upon which warrant issued was made under oath would not comply with this clause); see also footnote 5 of the majority opinion and cases cited therein.

I conclude that in the absence of a completed jurat, the affidavit signed by Detectives Grabowski and Perodeau was not properly sworn to and that the warrant was therefore invalid. Finally, I do not agree with the state that the “good faith” exception to the exclusionary rule approved in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), is applicable to this invalid search warrant. I agree with the Appellate Court that we decided that issue in State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990). Accordingly, I would affirm the. judgment of the Appellate Court.

       Both the Appellate Court and the defendants relied on the definition of jurat provided in General Statutes § 3-94a (2): “ ‘Jurat’ means a notarial act in which a notary public certifies that a signatory, whose identity is personally known to the notary public or proven on the basis of satisfactory evidence, has made, in the notary public’s presence, a voluntary signature and taken an oath or affirmation vouching for the truthfulness of the signed document.” We note, however, that the definition of jurat contained in § 3-94a pertains to the statutory sections on notaries public, General Statutes §§ 3-94a to 3-95, and has no specific application to the present case.
      A jurat is generally defined as “a certificate added to an affidavit stating when, before whom, and where it was made.” Webster’s Ninth New Collegiate Dictionary; see also Land Clearance for Redevelopment Authority v. Zitko, 386 S.W.2d 69, 78 (Mo. 1965).

       General Statutes § 54-33a (c) provides: “issuance of search warrant. . . .
      “(c) A warrant may issue only on affidavit sworn to by the complainant or complainants before the judge and establishing the grounds for issuing the warrant, which affidavit shall be part of the arrest file. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person, place or thing to be searched. The warrant shall be directed to any police officer or a regularly organized police department or any state policeman or to a conservation officer, special conservation officer or patrolman acting pursuant to section 26-6. It shall state the grounds or probable cause for its issuance and it shall command the officer to search within a reasonable time the person, place or thing named, for the property specified.”

       The defendant relies on State v. Grant, 176 Conn. 17, 404 A.2d 873 (1978), for the proposition that because criminal statutes are to be strictly construed, a valid search warrant must be supported by a written statement sworn to before the issuing magistrate, with a jurat signed by the issuing magistrate. In Grant, this court considered the statutory requirement that an application for a wiretap warrant be submitted under the oath or affirmation of a state’s attorney. In suppressing the evidence seized as a result of the wiretap, we held that the state’s attorney’s mere acknowledgement on the warrant application form failed to satisfy the requirement that the application be supported by oath or affirmation. Id., 23-24.

        Grant is inapposite to the present case. This court’s decision in Grant focused solely on the importance of a sworn affidavit prior to the issuance of the wiretap warrant. In Grant, there was neither a signed attestation nor extrinsic evidence that the state’s attorney had taken an oath that the statements contained in the affidavit were true. In the present case, there was evidence that Grabowski and Perodeau, in fact, had sworn to the statements contained in the application for the search warrant.
      Similarly, J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 555 A.2d 990 (1989), is inapposite to the present case. J. C. Penney Properties, Inc., required us to interpret the edict of General Statutes § 49-34 that a certificate of mechanic’s lien be “subscribed and sworn to by the claimant.” In that case, we held that “the oath must appear in writing on the certificate of mechanic’s lien for it to be valid under the statute.” Id. In so holding, we relied on Pendleton v. Button, 3 Conn. 406 (1820), wherein we stated: “ ‘It is provided by statute, that no deed shall be accounted complete in law, to convey real estate, but such as is written witnessed, acknowledged, and recorded. Tit. 142, c. 1., s. 7. The acknowledgment, to be recorded, must necessarily, be in writing; and such is the invariable practice.’ ” (Emphasis in original.) J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 517. Our holding in J. C. Penney Properties, Inc., that a valid certificate of mechanic’s lien contain a written oath, can be attributed to the statutory requirement, contained in § 49-34, that the lien certificate be recorded. Id. The oath, to be recorded, necessarily must be in writing. Because General Statutes § 54-33a (c) contains no similar recording requirement, J. C. Penney Properties, Inc., may be distinguished from the present case.

       In other statutory provisions, when the legislature has intended to impose requirements upon the taking of an oath or affirmation it has done so expressly. See, e.g., General Statutes §§ 10a-179 (a), 10a-224 (a), 10a-253 (b), 32-11a (c) and 32-35 (d) (members of various boards shall take and subscribe an oath or affirmation prior to assuming office).

       We recognize that, and the defendants cite, other jurisdictions that have held the jurat to be a necessary part of a valid affidavit. See Ex Parte Finance America Corp., 507 So. 2d 458, 460 (Ala. 1987); Laurens County v. Keen, 214 Ga. 32, 35, 102 S.E.2d 697 (1958); Hough v. Weber, 202 Ill. App. 3d 674, 692, 560 N.E.2d 5, cert. denied, 135 Ill. 2d 556, 564 N.E.2d 837 (1990); Commonwealth v. Dozier, 366 N.E.2d 1270 (Mass. App. 1977); Commonwealth v. McAfee, 230 Pa. Super. 336, 337, 326 A.2d 522 (1974); Elam v. Yale Clinic, 783 S.W.2d 638, 643 (Tex. App. 1989).
      We note, however, that in at least two of these jurisdictions the term “affidavit” had been defined by statute to require the signature of the officer administering the oath. See, e.g., Commonwealth v. Lardo, 240 Pa. Super. 107, 368 A.2d 324, 327 (1976), overruled in part, Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984) (relying on following statutory definition of term affidavit in upholding a search warrant: “A statement in writing of a fact or facts signed by the party making it, sworn to or affirmed before an officer authorized by the laws of this Commonwealth to take acknowledgements of deeds, or authorized to administer oaths, or before the particular officer or individual designated by law as the one before whom it is to or may be taken, and officially certified to in the case of an officer under his seal of office." [Emphasis added.]); Elam v. Yale Clinic, supra, 783 S.W.2d 643 (“An affidavit is defined as ‘a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.’ Tex. Gov’t Code Ann. § 312.011 [Vernon 1988].” [Emphasis added.]). The term affidavit has not been defined in our general statutes.

        State v. Surowiecki, 184 Conn. 95, 440 A.2d 798 (1981), cited by the Appellate Court; State v. Colon, supra, 32 Conn. App. 407; is not inconsistent with our conclusion that an unsigned jurat does not invalidate an otherwise properly issued warrant. In Surowiecki, we held that the signature of the issuing judge on the section of the warrant commanding the search itself was necessary before a valid warrant could issue pursuant to General Statutes § 54-33a (c). State v. Surowiecki, supra, 97. In the present case, the section of the warrant directing the search was signed by Judge Espinosa and, therefore, the warrant complied with Surowiecki’s mandate that the authority for the search be evident on its face.

       I also agree with Justice Katz that a “good faith exception” to the exclusionary rule is inapplicable to this invalid warrant.

       In State v. Surowiecki, supra, 184 Conn. 97, we construed that portion of General Statutes § 54-33a (c) which provides that if a judge “is satisfied that grounds for the [warrant] application exist or that there is probable cause to believe that they exist, he [or she] shall issue a warrant identifying the property and naming or describing the person, place or thing to be searched.” (Emphasis added.)

       There was “no dispute that the judge intended to sign the search warrant . . . .” State v. Surowiecki, supra, 184 Conn. 96.

       General Statutes § 49-34 (1) (C) provides: “certificate of lien to be recorded and notice given to owner. A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land . . . (C) subscribed and sworn to by the claimant. . . .’’(Emphasis added.)