author: Arthur H. Healey, J.

text:
    Eileen Cahill v. Board of Education of the City of Stamford et al.
    (12559)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued October 11
    decision released December 31, 1985

      Eileen Cahill, pro se, and Davis W. Ganim, with whom was David J. Laudano, for the appellant (plaintiff).

      Beverly J. Hodgson, for the appellees (defendants).
   Arthur H. Healey, J.

This case, which involves the termination of a tenured teacher, was the subject of an earlier appeal to this court. Cahill v. Board of Education, 187 Conn. 94, 444 A.2d 907 (1982). The appeal presently before us challenges the trial court’s, Gerety, J., judgment in favor of the defendants which dismissed count three of the plaintiff’s complaint for lack of subject matter jurisdiction.

In a jury trial in 1980 on counts one, two, and four of her complaint, the plaintiff received a general verdict awarding her damages of over $24,000, approximately equal to her salary for the 1970-71 school year plus interest. The trial court, Zarrilli, J., accepted the jury’s general verdict and denied the plaintiff’s request for an injunction requiring the defendants to reinstate her in her teaching position. In the earlier appeal by the plaintiff, in which the defendants cross appealed, the trial court's decision was affirmed. Cahill v. Board of Education, supra.

The plaintiff was a former tenured science teacher employed by the Stamford board of education before leaving on a sabbatical for the 1969-70 school year. Upon her return to the Stamford school system, the plaintiff and the defendants were unable to agree on a suitable teaching position. “Following protracted negotiations during the 1970-71 school year concerning her employment, the plaintiff filed suit in March 1971. ...” Cahill v. Board of Education, supra, 96. The action, as originally instituted in 1971, did not include the third count now before us, but that count was added thereafter by way of amendment in 1972. That action was later nonsuited in 1974 and the plaintiff instituted the present action in 1975. In June, 1971, the board provided the plaintiff with a notice of the proposed termination of her contract. In July, 1971, upon a request from the plaintiffs attorney, the board provided the plaintiff with a written statement of reasons for the proposed termination. The board voted to terminate her employment on August 3,1971. The plaintiff did not timely file a request for a hearing on the proposed termination and she did not file an appeal within thirty days of the board’s final decision terminating her employment, as then provided in General Statutes § 10-151 (f).

After her 1971 action was nonsuited, the plaintiff filed a complaint in 1975 which contained four counts including the third count now before us. At the beginning of the plaintiff’s trial in 1980, the trial judge, Zarrilli, J., severed count three of the complaint and ■thus removed it from the jury’s consideration. The plaintiff claims that count three alleges a cause of action in libel and slander and the unlawful invocation of the tenure act, i.e., General Statutes § 10-151.

On April 24, 1984, the defendants moved for summary judgment on count three which remained on the trial list after the 1980 verdict on the other three counts. The defendants claimed in that motion that the issues raised by count three “were fully litigated in the previous trial of the case and/or that count three does not state a cognizable cause of action.” The motion for summary judgment was denied on May 18, 1984, by the trial court, Berdon, J., and the memorandum of decision stated that the “third count is not barred under the doctrine of res judicata.”

The plaintiff raises five issues on appeal. She alleges that the trial court erred: (1) in concluding that the defendants lawfully invoked General Statutes § 10-151; (2) in concluding that it was not bound by the statements of the memorandum of decision denying the motion for summary judgment; (3) in dismissing count three for lack of subject matter jurisdiction; and (4) in failing to find that the plaintiff was not required to attend a hearing before the board because it was biased. The plaintiff, in her fifth issue, asks this court to consider whether the word “may” in General Statutes § 10-151 (b) (twenty-day period in which to request a hearing) can be directory and not mandatory despite the plaintiffs admitted failure to raise this issue at the trial level. We find no error.

On June 8, 1984, the defendants filed a motion to dismiss the third count of the plaintiffs complaint “because [the Superior] Court is without subject matter jurisdiction and the defendants are immune.” After hearing the parties, the court, Gerety, J., granted the motion for lack of subject matter jurisdiction. The trial court rejected the plaintiffs claim that General Statutes § 10-151 was improperly invoked by the defendants, pointing out that that statute sets out “the whole procedure concerning what is to be done when a teacher is notified that the Board of Education is considering a termination for cause.” In granting the motion, the court discussed the plaintiffs claimed failure to exhaust her administrative remedies under General Statutes § 10-151, stating that “[o]n that ground alone, failure to exhaust the administrative remedy which was available under the third count and not followed, the court believes that judgment ought to enter in favor of the defendants. . . . ” It went on to state that “more important, the procedure is a statutory one and unless it is followed there is no appeal from it to the court. If that procedure is not followed and there is no right to proceed to the courts, then the court lacks jurisdiction over the subject matter of the proceeding.” It thereupon concluded that the court lacked jurisdiction to proceed on the third count.

The third count has been referred to by the plaintiff as one setting forth not only a cause of action based on the unlawful invocation of the tenure law; General Statutes § 10-151; by the defendants but also as one sounding in libel and slander. The defendants assert that the third count cannot be characterized as one alleging either libel or slander, but rather is really an attempt to appeal her termination as a teacher after she failed to take timely advantage of the statutory proceedings in § 10-151.

At the hearing on the motion to dismiss, the plaintiff said: “The question before this Court in Count Three is whether or not the defendants had the right to invoke the tenure law [General Statutes § 10-151].” The gravamen of her claims on appeal flows from this position. She claims that this issue presents a factual question for a jury and not one of law for the court.

The thrust of the plaintiff’s unlawful invocation claims implicates her sparsely briefed characterization of the third count as sounding in libel and slander. In any event, “[t]he interpretation of pleadings is always a question of law for the court [Guiel v. Barnes, 100 Conn. 737, 743, 125 A. 91 (1924)]. . . .” Hendrie v. Hendrie, 7 Conn. Sup. 186, 190 (1939). We have pointed out that “[t]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty; and for that purpose [the pleaders] were allowed to use their own language. Whenever that language fails to define dearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. Price v. Bouteiller, 79 Conn. 255, 64 Atl. 227 [1906]. But essential allegations may not be supplied by conjecture or remote implication. [Id.]” (Emphasis added.) Preleski v. Farganiasz, 97 Conn. 345, 348, 116 A. 593 (1922). Examination of the allegations of the third count discloses that it does not include allegations essential to a cause of action in either libel or slander. See, e.g., Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 477 A.2d 1005 (1984); Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 116 A.2d 440 (1955); Hassett v. Carroll, 85 Conn. 23, 81 A. 1013 (1911); see also Barry v. McCollom, 81 Conn. 293, 70 A. 1035 (1908); annot., 40 A.L.R.3d 490. Asserting that this count does sound in libel or slander, the plaintiff refers to such a characterization by the court, Zarrilli, J., at the 1980 jury trial as well as to a later such characterization by the court, Berdon, J., in passing upon the defendants’ motion for summary judgment.

At the hearing before Judge Gerety, the plaintiff reminded him that Judge Zarrilli had refused to let the third count go to the jury. The judge expressed his agreement with that ruling even though he was not bound thereby. See generally Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982); Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950). Another judge, Berdon, J., in denying the defendants’ motion for summary judgment, had indicated that the allegations of the third count “raise the issues of libel and slander and the defendants’ invocation of the statute (§ 10-151 [b]) for dismissal for cause for the ulterior purpose of injuring her professional reputation.” Judge Berdon, in considering the two grounds on which summary judgment was sought, concluded that the plaintiff had a constitutional right to have “these issues decided by a jury.” Judge Berdon did not have before him under that motion and, therefore, did not pass upon a claim of either subject matter jurisdiction or the attendant claim of failure to exhaust an administrative remedy. Both of these grounds, however, were later addressed by Judge Gerety who also was not bound by the decision of Judge Berdon. In any event, jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. Practice Book §§ 143, 145; Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985); Neyland v. Board of Education, 195 Conn. 174, 177, 487 A.2d 181 (1985); Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967). Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon. East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 559, 290 A.2d 348 (1971); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). Moreover, “ ‘whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to previous rulings.’ ” Chzrislonk v. New York, N.H. & H. R. Co., 101 Conn. 356, 358, 125 A. 874 (1924).

It is evident that Judge Gerety dismissed this case for lack of subject matter jurisdiction. He pointed out that the plaintiff’s remedy under the third count was statutory, i.e., General Statutes § 10-151. In determining that the defendant board properly invoked this statute in 1971, despite the plaintiff’s refusal to appear before it in 1971, the court, Gerety, J., stressed that adhering to this statutory scheme for termination for cause is a precondition, under the doctrine of exhaustion of administrative remedies, to seeking relief in the courts. Because the statutory remedy was not pursued, the court stated that this alone justified dismissal and because that precondition was not met, the court lacked subject matter jurisdiction. We agree.

The third count of the complaint is in twelve paragraphs. Nine of those twelve paragraphs incorporate by reference allegations of earlier counts in the complaint. The remaining three paragraphs allege the unlawful invocation of the tenure act by the defendants, the charges made in so doing, as well as the defendants’ motivation and the harm alleged to have been incurred by the plaintiff as a result of the unlawful invocation. The trial court, Gerety, J., reasonably construed the third count to allege an unlawful invocation of the tenure act and concluded correctly that the tenure act had been properly invoked and, therefore, that the court lacked subject matter jurisdiction.

The plaintiff argues that the unlawful invocation was not only in an untimely fashion but that it also arose out of ulterior motives, including the defendants’ desire to limit any damages that she might recover against them by the lawsuit she had already instituted. Under those circumstances, it would have been useless, she claims, to appear before the defendant board of education at this time because of its bias.

It is apparent from the record that in 1971 the plaintiffs then counsel and the defendants had been discussing her placement in the Stamford school system for the school year 1971-72. This was prior to the defendant board’s June 28,1971 letter to her counsel stating that it was considering terminating the plaintiff’s employment. This letter was forwarded after “protracted negotiations during the 1970-71 school year concerning her employment . . Cahill v. Board of Education, supra, 96; which arose out of a dispute as to her assignment upon return from her sabbatical leave for the 1969-70 school year.

“A teacher who is given by statute the right to continued employment except upon a showing of cause or the bona fide elimination of his position; see General Statutes § 10-151 (b); acquires a property right that is entitled to protection under the due process clause.” Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980); Petrovich v. Board of Education, 189 Conn. 585, 589, 457 A.2d 315 (1983). Section 10-151 accords the plaintiff the constitutionally required procedural protections, although she failed to take advantage of the opportunity afforded her by those protections. The defendant board, utilizing the procedural statutory means for termination, followed the statute as required in order to effect a legal termination of her services. See, e.g., Lee v. Board of Education, supra, 72-73, 79; see also 2A Antieau, Municipal Corporation Law § 22.186.

The plaintiff argues that because the defendant board invoked the statute when it did, it was improper to do so. We do not agree. Even if the statute was invoked to limit any potential damages that might result from the plaintiff’s lawsuit, the argument is not persuasive. It was proper to invoke the statute when the defendants did so in this case. This claim completely overlooks the significant circumstance that the defendants, in order legally to terminate her employment, were required to invoke the carefully crafted statutory scheme prescribed by General Statutes § 10-151 even though it arguably could have been invoked earlier. That it was not can fairly be said to have been due, on this record, to the “protracted negotiations during the 1970-71 school year concerning her employment” that we noted in the plaintiffs earlier case. See Cahill v. Board of Education, supra.

In addition, the plaintiffs claim that it would have been “useless” to appear before the defendant board once the tenure act had been invoked cannot be accepted. She asserts that the defendants were biased against her and, therefore, she contends that there was no need to exhaust the administrative remedy provided by the tenure act. This court has “grudgingly carved several exceptions” from the exhaustion doctrine; Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 94, 448 A.2d 210 (1982); including one where the administrative remedy is “inadequate or futile.” Greenwich v. Liquor Control Commission, 191 Conn. 528, 542, 469 A.2d 382 (1983); Aaron v. Conservation Commission, 178 Conn. 173, 179, 422 A.2d 290 (1979). We recognize that when a board of education is considering termination of a tenured teacher’s employment and indicates such an intention by invoking the statutory procedure in § 10-151, such an action carries with it a suggestion of the teacher’s unsuitability, depending on the statutory grounds given. This consideration, nevertheless, does not constitute a valid reason for bypassing the statutory procedure available and the protections offered therein to the teacher involved. The place to make the claim of bias and to make a record on the claim of bias was before the defendant board. The plaintiff cannot be allowed to bypass that board and seek relief in court in the first instance. By not appearing before the board, the plaintiff not only deprived the defendant board of the opportunity to hear, analyze and review a matter within its responsibility and expertise, but also deprived herself of the opportunity to put on her case and to make a proper record on which to seek judicial relief in the event she was terminated. “The primary purpose of the [exhaustion] doctrine is to avoid premature interruption of the administrative process. . . . [It] allows the agency to use its expertise and discretion, to correct its own error. . . .” First Jersey Securities, Inc. v. S.E.C., 553 F. Sup. 205, 208 (D.N.J. 1982); see First Jersey Securities, Inc. v. Bergen, 605 F.2d 690, 695 (3d Cir. 1979), cert. denied, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980). The doctrine of exhaustion “furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency ... in advance of possible judicial review.” Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 57, 385 N.E.2d 560, 412 N.Y.S.2d 821 (1978). As a practical matter, an allegation of bias is usually controverted. A mere claim of probable bias of a hearing officer has been held insufficient to avoid an exhaustion requirement. See Christensen v. Iowa Civil Rights Commission, 292 N.W.2d 429, 431 (Iowa 1980), citing First Jersey Securities, Inc. v. Bergen, supra.

A member of a board of education is a public officer. Maitland v. Thompson, 129 Conn. 186, 191, 27 A.2d 160 (1942); Keegan v. Thompson, 103 Conn. 418, 420, 130 A. 707 (1925). There is a presumption that a public officer properly performs his duty unless the contrary appears. Rompe v. King, 185 Conn. 426, 431, 441 A.2d 114 (1981); Parham v. Warden, 172 Conn. 126, 134, 374 A.2d 137 (1976). If this presumption was to have been challenged, the plaintiff should have used the forum available to her for the making of a record— that of timely appearing before the defendants in 1971. Unfortunately, the plaintiff did not do so. In any event, had she done so and had that decision been adverse to her, she then would have had the right to appeal on a proper record for judicial relief under the tenure statute. General Statutes § 10-151 (f); Delagorges v. Board of Education, 176 Conn. 630, 633, 410 A.2d 461 (1979); Miller v. Board of Education, 166 Conn. 189, 193, 348 A.2d 584 (1974). In any event, we are not persuaded that the plaintiff has demonstrated that availing herself of the available administrative remedy would have been, in this case, useless. See Laurel Park, Inc. v. Pac, 194 Conn. 677, 485 A.2d 1272 (1984); Greenwich v. Liquor Control Commission, supra; Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, supra. We have acknowledged “that a strong justification may exist for creating an exception to requiring submission to the administrative process.” Greenwich v. Liquor Control Commission, supra, 542; Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 591, 424 A.2d 285 (1979). That justification is not present here. Accordingly, the trial court, Gerety, J., correctly determined that the plaintiff failed to exhaust the available administrative remedy and, as a result, correctly concluded that it lacked subject matter jurisdiction over the third count.

There is no error.

In this opinion the other judges concurred.

       The other defendant in this action is Joseph Porter, superintendent of schools in Stamford, who was sued only in his official capacity.

       The reasons cited by the acting superintendent, Stamford public schools, for the proposed termination of the plaintiff’s contract were set forth in a letter dated July 19,1971: “Miss Cahill is cited for incompetency on the basis of her demonstrated inability to convey the required educational material to students as evidenced by the extremely high percentage of failures and near failures in her classes. She has refused to accept guidance and direction from her immediate supervisor and the building principals with regard to student grading. She administers unauthorized and overly severe punishment for relatively minor infractions to students in her classes. There has been an unusually high number of parent complaints regarding Miss Cahill’s teaching, grading and discipline practices. A general uncooperative attitude with administration has prevailed. Miss Cahill is cited for unethical conduct due to the fact that after having applied for a sabbatical leave to take science courses to improve her expertise as a teacher of science, she failed to do so. In fact she embarked upon the year of study and undertook a program in library work. This constitutes a moral and ethical misconduct and perhaps even fraud.”

       Count three of the plaintiff’s 1975 complaint was as follows: “1. The defendant Stamford Board of Education is the duly constituted Board of Education for the City of Stamford and as such has the authority and duty to employ teachers for the school system of the City of Stamford pursuant to the Statutes made and provided.
      “2. At all times herein mentioned, the defendant Joseph B. Porter was the Superintendent of Schools for the City of Stamford employed as such by the defendant Stamford Board of Education and was at all times acting for and on behalf of the defendant Stamford Board of Education.
      “3. For more than seven years prior to September, 1970, the plaintiff, Eileen Cahill, had been employed by the defendant Stamford Board of Education as a high school teacher, and had attained tenure in the school system of the City of Stamford pursuant to Section 10-151 (b) of the Connecticut General Statutes, and was entitled to the protection and benefits of said Section 10-151 (b).
      “4. At all relevant times, there existed between the defendant Stamford Board of Education and the Stamford Education Association a contract entitled ‘Agreement Between the Stamford Board of Education and the Stamford Education Association 1968-1970’ (hereinafter referred to as the ‘Agreement of 1968-1970’) covering the employment and working conditions of teachers employed by the defendant Stamford Board of Education, including the plaintiff.
      “5. Pursuant to an agreement between the plaintiff and the defendant Stamford Board of Education, the plaintiff left her teaching duties for the 1969-1970 school year on a sabbatical leave of absence for purposes of study.
      “6. Upon her return from her sabbatical leave of absence, the defendants refused to restore the plaintiff to her position as a high school biology teacher or to a position of like nature, seniority, status and pay.
      “7. The ‘Agreement of 1968-1970’ between the defendant Stamford Board of Education and the Stamford Education Association provides in part:
      ‘The applicant upon return from a Sabbatical Leave shall be restored to his position, or to a position of like nature, seniority, status, and pay, provided that the employee remains eligible for reinstatement under other rules and regulations of the Board of Education.’
      “8. The defendants’ refusal to employ the plaintiff for the 1970-1971 school year constitutes a dismissal of the plaintiff without cause and is prohibited by Section 10-151 of the Connecticut General Statutes, as amended, and by the ‘Agreement of 1968-1970.’
      “9. Subsequent to the commencement of the law suit entitled Cahill vs. Stamford Board of Education, et al, (Superior Court for Fairfield County at Stamford, Docket Number 16544, transferred to Superior Court for Fair-field County at Bridgeport, Docket Number 142952), the defendants did in August, 1971, unlawfully invoke the provisions of Section 10-151 of the Connecticut General Statutes charging the plaintiff with, inter alia, ‘incompetency,’ ‘moral and ethical misconduct,’ and ‘fraud.’
      “10. The defendants’ conduct in unlawfully invoking Section 10-151 of the Connecticut General Statutes subsequent to the commencement of the aforesaid action and prior to the resolution of the same and in charging the plaintiff as alleged was undertaken with the knowledge that the ‘Agreement of 1968-1970’ supersedes the Connecticut General Statutes and constitutes a willful and deliberate attempt to discredit the plaintiff and injure her reputation prior to the resolution of the aforesaid action.
      “11. Whereas the defendants’ breach of the ‘Agreement of 1968-1970’ and unlawful dismissal of the plaintiff as alleged in the First Count and Second Count deprived the plaintiff of her position as a tenured teacher in the school system of the City of Stamford, the defendants’ conduct in unlawfully invoking Section 10-151 of the Connecticut General Statutes and in charging the plaintiff as alleged in paragraph 9 of the Third Count above has effectively prevented the plaintiff from anywhere pursuing her profession as a teacher and the plaintiff has been and remains unemployed since her return from her sabbatical leave of absence and the plaintiff’s ability to earn a living as a teacher has been permanently and effectively destroyed.
      “12. This action is commenced pursuant to Section 52-592 of the Connecticut General Statutes within one year from May 24, 1974.”

       The plaintiff, in her brief, admits that this claim now made on appeal “is not the same as her claim at oral argument and in her briefs, the claim is so closely related with the issue of subject matter jurisdiction, upon which the Trial Court’s decision is based, and upon which this Appeal is based, that the claim should be considered on appeal.” She correctly points to Practice Book § 3063 which requires that claims be distinctly raised below and, admittedly, it was not. In addition, we have examined the transcript of the hearing before Judge Gerety, which contains some fifty-odd pages, and while a number of other claims were articulately and pointedly made by the plaintiff, this new claim was never made at all. The plaintiff now seeks, by this issue, to invoke a theory that was never raised and presented to the trial court, Gerety, J. See Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985); Helbig v. Zoning Commission, 185 Conn. 294, 319, 440 A.2d 940 (1981). We do not address this claim.

       The motion, which was captioned “Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and Defendant's Immunity,” recited: “The defendants in the above-captioned case move that the Court dismiss plaintiff’s Complaint, more particularly Count III, because this Court is without subject matter jurisdiction and the defendants are immune from suit.”

       On May 14, 1984, a hearing was held before Judge Berdon, on the defendants’ motion for summary judgment as to the third count of the plaintiff’s complaint.
      In that hearing, the plaintiff told the court: “Your Honor, the issue isn’t whether [General Statutes § 10-151] was applicable or not, it is whether or not it could lawfully be invoked given the facts in this case.” The court denied the defendant’s motion.
      In oral argument before us, the plaintiff herself argued that she relies heavily on the disposition of that motion, claiming that the issue of whether or not the defendants could lawfully invoke the tenure act in 1971 in this case presented a question of fact for a jury to pass upon and not a question of law. If it is assumed arguendo that this claim was valid, it was hardly binding on Judge Gerety when he passed upon the motion to dismiss and was met with a claim of lack of subject matter jurisdiction, an issue not passed upon by Judge Berdon.

       This may perhaps be due in part to the fact that the memorandum of decision of the trial court, Gerety, J., does not refer at all to libel and or slander. The question of the characterization of the third count as sounding in libel and slander was discussed in the hearing before Judge Gerety. Moreover, there is no indication in the record that any further articulation of that memorandum was ever sought. See Practice Book §§ 3060B, 3082; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222 n.5, 435 A.2d 24 (1980).

       When this case was originally tried to the jury in 1980, the court, Zarrilli, J., submitted three counts of the complaint to the jury but did not submit the third count. In doing so, that court said: “The Court: The third count is to be separated from the complaint. That’s the count relating to defamation and libel. I don’t feel that this count should be included in this case. So, I will separate that issue from this case. Your objection is overruled, exception is noted.
      “Ms. Cahill: Your Honor, separating that issue from this case denies me a fair trial.
      “The Court: Objection is overruled. Exception is noted.
      “Ms. Cahill: Exception.”
      We note that on the plaintiff’s first appeal in this case, one of the issues set out in her “Preliminary Statement of Issues” was “Did the Court err in prohibiting the Plaintiff from proceeding on the Third Count of the Complaint?”

       On at least three occasions before the court, Berdon, J., the plaintiff claimed that count three of her complaint contained the allegations of the unlawful invocation of the tenure act in 1971 and libel and slander.

       The twelfth paragraph of the third count incorporates an allegation that appears in both the first and second counts of the complaint which itself is dated August 15,1975. That paragraph alleges that the action “is commenced pursuant to General Statutes Section 52-592 of the Connecticut General Statutes within one year from May 24, 1974.” That statute, sometimes referred to as “the accidental failure of suit” statute, permits a new action to be instituted within its time limitations.
      The plaintiffs earlier action instituted in 1971 was nonsuited and in 1975 she instituted a new action. See Cahill v. Board of Education, 187 Conn. 94, 96, 444 A.2d 907 (1982).


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Tod W. Frazer III et al. v. John McGowan et al.
    (12286)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued November 13, 1985
    decision released January 7, 1986

      Donald R. Beebe, with whom were Janis M. Webster and, on the brief, Frederick J. Miaño, for the appellants (plaintiffs).

      Philip V. Chabot, for the appellee (defendant Westerly Hospital).
   Peters, C. J.

The sole issue on this appeal is a determination of the circumstances under which a Connecticut court may exercise personal jurisdiction over a hospital that is located in Rhode Island. The named plaintiff, Tod W. Frazer III, brought suit in Connecticut Superior Court against John McGowan, M.D., and Westerly Hospital, alleging medical malpractice and negligence. On June 29,1983, after a hearing, the trial court granted the hospital’s motion to dismiss for lack of personal jurisdiction. The plaintiffs appeal from this judgment. We find error.

The trial court’s memorandum of decision and the record reveal the following undisputed facts. In October, 1979, the named plaintiff, a twelve year old resident of Ledyard, Connecticut, began seeing McGowan in his Mystic, Connecticut office for the treatment of an allergy. During the following ten months, the plaintiff visited McGowan’s office regularly. McGowan was licensed to practice medicine both in Connecticut and in Rhode Island and maintained offices in both states. He was a member of the medical staff with full admitting privileges at Westerly Hospital in Rhode Island. Westerly Hospital was the only hospital at which McGowan enjoyed admitting privileges. All of McGowan’s patients who required hospitalization were sent to Westerly Hospital and Westerly Hospital accepted every patient whom McGowan wanted to have admitted. In the course of treating the named plaintiff, McGowan had him admitted to Westerly Hospital on three occasions. This cause of action arises from conduct of McGowan and the hospital staff that allegedly occurred during the named plaintiff’s third visit to Westerly Hospital.

Westerly Hospital, located near the Connecticut border in Westerly, Rhode Island, is a Rhode Island non-stock corporation licensed to operate as a hospital in Rhode Island. The hospital maintains no treatment facilities in Connecticut. It is not registered to do business in this state as a foreign corporation nor is it licensed by the Connecticut department of health. Nonetheless, the hospital has significant contacts with the state of Connecticut. Thirteen of the physicians with admitting privileges at the hospital had offices in Connecticut at the time of the commencement of this suit. The hospital knew that eleven of them had offices only in Connecticut. Eight of the Connecticut physicians were members of the hospital’s courtesy staff and had limited admitting privileges; five, including McGowan, were members of the medical staff and had full admitting privileges. From 1978 until 1981, the hospital maintained a listing in the yellow pages of the New London, Connecticut telephone directory. During the twelve month period ending in July, 1980, 35.3 percent of the patients discharged by Westerly Hospital were residents of the state of Connecticut.

In its decision granting the hospital’s motion to dismiss for lack of personal jurisdiction in Connecticut over this foreign corporation, the trial court correctly recognized that it was faced with a two-part inquiry. Its first obligation was to decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the hospital. If the statutory requirements were met, its second obligation was then to decide whether the exercise of jurisdiction over the hospital would violate constitutional principles of due process. United States Trust Co. v. Bohart, 197 Conn. 34, 38-39, 495 A.2d 1034 (1985); Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983); Zartolas v. Nisenfeld, 184 Conn. 471, 473-78, 440 A.2d 179 (1981). The trial court did not make the second of these inquiries because it held that the long-arm statute governing nonstock corporations, General Statutes § 33-519 (c), did not reach the defendant hospital. The court addressed its attention to two subdivisions of § 33-519 (c). It concluded that jurisdiction did not lie under § 33-519 (c) (1) because there was no contract made in Connecticut between the plaintiffs and the defendant hospital. It also held that jurisdiction did not lie under § 33-519 (c) (2) because it found there was not the type of repeated solicitation required by the statute. It assigned no evidentiary value to the hospital’s listing in the yellow pages of the New London telephone directory because it held that solicitation could only support jurisdiction when there was a causal connection between the solicitation and the plaintiff’s cause of action. It found inconclusive the referral relationship between the admitting physicians and the defendant hospital because the physicians were not acting as agents for the hospital.

On appeal, the plaintiffs argue that the trial court erred in concluding that the defendant hospital did not fall within the jurisdictional confines of § 33-519 (c). The plaintiffs maintain that the court erred in the standard it applied in its interpretation of § 33-519 (c) and in its conclusion that the plaintiffs had demonstrated neither a contract basis nor a solicitation basis for application of the long-arm statute. These claims of error do not challenge the trial court’s findings of fact, as to which there was no dispute, but rather put into issue the court’s conclusions of law.

The first issue that we must consider is what the standards are that govern the interpretation of § 33-519 (c). As the parties apparently agree, this long-arm statute, which governs nonstock corporations, closely parallels General Statutes § 33-411 (c), governing stock corporations. In Lombard Bros., Inc. v. General Asset Management Co., supra, 253-54, we recently held that the latter subsection “confers jurisdiction over designated causes of action without regard to whether a foreign corporation transacts business in Connecticut and without regard to a causal connection between the plaintiffs cause of action and the defendant’s presence in this state. [The language of § 33-411 (c) requires] inquiry not only into the various elements of the plaintiff’s cause of action, spelled out in the various subparts of subsection (c), but also into the totality of contacts which the defendant may have with the forum. The totality of a defendant’s contacts may include activities which ... do not constitute ‘transacting business’ in this state . . . such as ownership of property in this state and solicitation of business here . . . .” In effect we determined, relying on contrasting language in § 33-411 (b), that in enacting § 33-411 (c), which subjects foreign corporations to suit here “whether or not such foreign corporation is transacting or has transacted business in this state,” the legislature intended to exercise its full constitutional power over foreign corporations in cases falling within one of the designated causes of action. “Under [§ 33-411 (c)], consistent with the constitutional demands of due process, it is the totality of the defendant’s conduct and connection with this state that must be considered, on a case by case basis, to determine whether the defendant could reasonably have anticipated being haled into court here. World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980); Kulko v. California Superior Court, 436 U.S. 84, 92, 97-98, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 251, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 2d 95 (1945); Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1983); See 1 Restatement (Second), Judgments § 5, comment b.” Lombard Bros., Inc. v. General Asset Management Co., supra, 255.

Applying the principles established in Lombard to this case, we conclude that the trial court was mistaken in requiring a causal connection between evidence of solicitation and the plaintiff’s cause of action. The relevant language of § 33-519 (c) is identical to that of § 33-411 (c) except that, in accordance with its subject matter, the nonstock corporation long-arm statute speaks of “whether or not such foreign corporation is conducting or has conducted affairs in this state.” We can surmise no basis in the language of the two long-arm statutes for a distinction on this issue between stock corporations and nonstock corporations, and the parties have suggested none. If the plaintiff’s cause of action alleges conduct falling within one of the four statutorily designated classes, the court must examine the totality of the defendant’s contacts with the state of Connecticut to determine whether personal jurisdiction over the defendant is proper.

The trial court’s application of a standard more stringent than the statute requires necessarily colored its conclusion that the plaintiffs had failed to establish a statutory nexus for in personam jurisdiction in Connecticut over the defendant hospital. We must therefore decide whether, on the undisputed facts disclosed on the record, the plaintiffs have proven their claim that § 33-519 (c) permits them to sue the defendant in this state.

We turn first to the plaintiffs’ claim that solicitation by the hospital in Connecticut confers jurisdiction upon Connecticut courts. Section 33-519 (c) (2) confers such jurisdiction, “whether or not such foreign corporation is conducting or has conducted affairs in this state on any cause of action arising as follows... (2) out of any solicitation in this state by mail or otherwise if the corporation has repeatedly so solicited.”

Application of § 33-519 (c) (2) to the facts of this case is difficult because hospitals, unlike conventional commercial enterprises, do not aggressively advertise their services. Indeed, principles of medical ethics forbid “solicitation” by doctors and hospitals. Nevertheless, hospitals do maintain institutional arrangements that serve to attract patients. A patient may enter a hospital in two ways. He can be admitted at the request of a physician who has admitting privileges at the hospital or he can be admitted after receiving treatment in the hospital emergency room. 1 Lawyers’ Medical Cyclopedia (1981) § 2.12. A hospital solicits patients for the purposes of § 33-519 (c) (2) by acting in a manner that reasonably and foreseeably is likely to enhance the flow of patients from either of these sources. See Lemke v. St. Margaret Hospital, 552 F. Sup. 833 (N.D. Ill. 1982) (hospital referrals constituted solicitation), rev’d on other grounds, 594 F. Sup. 25 (N.D. Ill. 1983); Soares v. Roberts, 417 F. Sup. 304 (D.R.I. 1976) (Massachusetts clinic solicited Rhode Island patients by receiving patients referred by Rhode Island physicians and by distributing information in Rhode Island); S. R. v. Fairmont, 280 S.E.2d 712 (W. Va. 1981); see also Wolf v. Richmond County Hospital Authority, 745 F.2d 904, 912 (4th Cir. 1984); Cubbage v. Merchent, 744 F.2d 665 (9th Cir. 1984), cert. denied, 475 U.S. , 105 S. Ct. 1359, 84 L. Ed. 2d 380 (1985); Braman v. Mary Hitchcock Memorial Hospital, 631 F.2d 6 (2d Cir. 1980); but see Gelineau v. New York University Hospital, 375 F. Sup. 661 (D.N.J. 1974).

In this case, the record reveals that Westerly Hospital took affirmative measures designed to attract Connecticut patients. The hospital granted admitting privileges to a significant number of physicians who practiced in Connecticut. Many of these doctors, including the doctor who treated the named plaintiff, were members of the hospital’s medical staff and enjoyed unlimited admitting privileges. The hospital could foresee that the presence of Connecticut doctors on the staff would result in an influx of patients from Connecticut who would not otherwise seek care at Westerly Hospital. The hospital contends that the doctors could not solicit on behalf of the hospital because they were not agents of the hospital. This argument reads the word “solicit” too narrowly. To solicit in Connecticut, a hospital need not send emissaries into the state to issue invitations to state residents. A hospital may solicit in Connecticut by setting up an organizational network that is likely to prompt a significant number of Connecticut patients to seek treatment at that hospital. See Cubbage v. Merchent, supra; Braman v. Mary Hitchcock Memorial Hospital, supra.

The named plaintiffs cause of action in this case arose from repeated solicitation conducted by Westerly Hospital through the use of such a network. McGowan treated the named plaintiff in Connecticut and arranged for him to enter Westerly Hospital by exercising his admitting privileges there. It was during this hospitalization that the allegedly tortious conduct that forms the basis for the plaintiffs’ suit occurred. The hospital was aware that the named plaintiff’s doctor maintained offices in Connecticut. Indeed, it appointed him to its medical staff only after he had received his license to practice medicine in this state.

Once it is determined that there is an adequate connection between the hospital’s act of solicitation and the plaintiff’s cause of action to satisfy the requirements of § 33-519 (c) (2), the long-arm statute authorizes the exercise of jurisdiction if such an exercise comports with the principles of due process. The United States constitution allows state courts to assert jurisdiction over nonresident defendants only when minimum contacts exist between the defendant and the forum state. The nature of these contacts must be such that requiring the defendant to defend in the forum state does not offend “traditional notions of fair play and substantial justice.” World-Wide Volkswagen Corporation v. Woodson, supra, 292; International Shoe Co. v. Washington, supra; Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278 (1940).

Our review of the record in this case convinces us that Westerly Hospital’s contacts with Connecticut were sufficient to satisfy the requirements of due process. The hospital purposely affiliated itself with a number of Connecticut doctors who were likely to refer Connecticut patients for admission. It solicited in this state by maintaining a listing in the yellow pages of the New London, Connecticut telephone directory for four years. See Lemke v. St. Margaret Hospital, supra; S. R. v. Fairmont, supra. Even though the hospital paid no fee for the listings, it consented to their appearance and it accepted the benefits that flowed therefrom. By allowing the listings to be placed in the directories, the hospital sent a message that was specifically directed to Connecticut residents informing them that Westerly Hospital stood ready to serve them. Cf. Gardner v. Braniff International, 312 F. Sup. 844 (D. Conn. 1970). The hospital can reasonably be held to have foreseen that the number of patients from Connecticut seeking aid in its emergency room would increase due to the listing. As a result of the totality of the hospital’s connections with, and proximity to, Connecticut, 35.3 percent of the patients discharged during a twelve month period were Connecticut residents. Because the hospital is located so close to Connecticut, defending a law suit in this state imposes no undue burden on it. Indeed, just as it was natural for the hospital to avail itself of the services of physicians with offices in nearby sections of Connecticut, so it was natural for the hospital to anticipate that it might be haled into court in Connecticut to defend its medical competence in treating that portion of its market that is in Connecticut. The fact that the defendant hospital itself maintained no physical presence in Connecticut does not mean that it did not purposefully direct its activities toward residents of this state. Burger King Corporation v. Rudzewicz, 471 U.S. 462, 476, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985); Calder v. Jones, 465 U.S. 783, 788-89, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984). In light of the totality of the circumstances, we conclude that the exercise of jurisdiction over the hospital by Connecticut courts is neither unfair nor unjust. The trial court therefore erred in granting the hospital’s motion to dismiss. See World-Wide Volkswagen Corporation v. Woodson, supra, 297; Kulko v. California Superior Court, supra, 97-98; Hanson v. Denkla, supra, 253; International Shoe Co. v. Washington, supra; Lombard Bros., Inc. v. General Asset Management Co., supra, 254-55.

Because we hold that personal jurisdiction over the hospital arises out of the hospital’s repeated solicitation in this state, we need not consider the plaintiffs’ alternative claim that contracts allegedly made by the hospital in Connecticut create a statutory nexus for the exercise of jurisdiction over the hospital.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The named plaintiff’s mother, Linda Frazer, brought this action on behalf of her son as his parent and next friend.

       The trial court dismissed the plaintiffs’ action against Westerly Hospital only. The ruling did not affect the plaintiffs’ suit against McGowan.

       General Statutes § 33-519 (c) provides: “(c) Every foreign corporation shall be subject to suit in this state by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is conducting or has conducted affairs in this state on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; (2) out of any solicitation in this state by mail or otherwise if the corporation has repeatedly so solicited; (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or a single act and whether arising out of misfeasance or nonfeasance.”

       General Statutes § 33-411 (c) provides: “(c) Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; or (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; or (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.”

       The relevant language of §§ 33-519 (c) and 33-411 (c) appears in footnotes 3 and 4, supra.

       Our holding that Westerly Hospital solicited in Connecticut for purposes of General Statutes § 33-519 (c) (2) in no way implies that the hospital’s conduct of its affairs constituted a violation of the ethical standards of the medical profession.

       While we hold that Connecticut courts may assert personal jurisdiction over Westerly Hospital, we express no opinion on whether, as a matter of conflict of laws, the substantive law of Connecticut or Rhode Island should govern the merits of this case.


text:
    State of Connecticut v. Luther Fleming
    (11240)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued November 7, 1985
    decision released January 7, 1986

      Richard Emanuel, special public defender, for the appellant (defendant).

      Jonathan C. Benedict, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue on this appeal is whether the alleged illegality of the defendant’s arrest compels dismissal of the charges against him. After a trial to a jury, the defendant, Luther Fleming, was convicted of felony murder, in violation of General Statutes § BSa-óác, and sentenced to a term of imprisonment of twenty-five years to life. He appeals from the judgment of this conviction.

The jury could reasonably have found the following facts. On the evening of June 10, 1980, the defendant and an associate, Alphonzie Perry, drove to the Star Package Store in Bridgeport with the intention of robbing it. Arriving shortly before the 8 p.m. closing time, the two men parked the car on the street near the liquor store. While Perry remained in the car, the defendant entered the store with a loaded gun. He robbed the proprietor at gunpoint and, during a struggle for the gun, shot him in the abdomen. The victim died a short time later. Both the defendant and Perry were later arrested for this crime and were tried separately.

On appeal from his conviction, the defendant raises three claims of error. He claims that: (1) his motion to dismiss the indictment should have been granted because the indictment stemmed from an illegal arrest; (2) his motions for mistrial should have been granted because information which came before the jury was so prejudicial that it deprived him of a fair trial; and (3) the trial court erred in instructing the jury both on the elements of felony murder and on accessorial liability. We find no error.

I

In his initial claim of error, the defendant claims that the trial court should have dismissed the indictment charging him with felony murder. This claim has two components: first, that his arrest was illegal because the probable cause which supported it was the product of a series of intertwining illegalities; and second, that, because this arrest was illegal, the subsequent prosecution which stemmed from it should have been barred.

At a pretrial hearing on the defendant’s motion to dismiss, the testimony revealed the following facts. A day or two after the incident at the Star Package Store, the defendant voluntarily went to police headquarters to discuss another unrelated incident which he had witnessed. At that time, he initiated conversation with the police about the package store incident. Subsequently, on June 20,1980, during the course of their investigation into the robbery and murder at the package store, the police brought the defendant to police headquarters and questioned him there. He was not then placed under arrest or informed of his Miranda? rights. In response to police questions, the defendant gave a statement exculpating himself but implicating Alphonzie Perry in the crime. Later that day, the police arrested Perry and confronted him with the defendant’s accusatory statement. Perry responded by implicating the defendant. As a result of this statement, the police arrested the defendant.

The defendant argues that his initial statement to police, made in the absence oí Miranda warnings, was a violation of his fifth amendment rights and that his subsequent arrest was a direct product of that illegality. Thus, the defendant claims, the arrest itself was illegal and the charges against him should have been dismissed. Although the trial court granted a defense motion to suppress the defendant’s statements, it denied the motion to dismiss, finding that the arrest was legal and based on probable cause. The defendant now asks us to reverse the trial court’s ruling and to order the charges against him dismissed.

The legality of the defendant’s conviction could be sustained either by upholding the trial court’s findings about the legality of the defendant’s arrest or by determining that illegality of an arrest does not per se invalidate a subsequent conviction. In order to put to rest the controversy that has long surrounded the rule of State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), we have decided to take the latter route in finding no error on this claim.

The relationship between an illegal arrest and a subsequent prosecution under federal constitutional law is well settled. In an unbroken line of cases dating back to 1886, the federal rule has been that an illegal arrest will not bar a subsequent prosecution or void a resulting conviction. United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966); Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 440, 7 S. Ct. 225, 30 L. Ed. 421 (1886).

If the defendant’s claim of necessary linkage between the legality of arrest and legality of prosecution is to be sustained, therefore, that claim must find its predicate in state law. Such a state-based claim arguably arises from State v. Licari, supra, where this court ordered dismissal of criminal charges because the defendant had been arrested under a bench warrant insufficient to satisfy the requirements of the fourth amendment to the United States constitution. Our holding, in Licari, that an illegal arrest deprives the court of jurisdiction over the defendant’s person, was, however, expressly derived from a misunderstanding of the federal cases, and this fragility in the Licari jurisdictional underpinnings has repeatedly been noted. See State v. Heinz, 193 Conn. 612, 629, 480 A.2d 452 (1984); State v. Gallagher, 191 Conn. 433, 438, 465 A.2d 323 (1983); Borden & Jaffe, “The Trouble with Licari; Irony and Anomaly,” 55 Conn. B.J. 463, 465-69 (1981). As an interpretation of federal law, Licari can no longer stand.

Acknowledging this weakness in the relevant precedents, the defendant does not base his appeal on the federal constitution. Instead, he argues that provisions of article first, §§ 7 and 8, of the Connecticut constitution affording protection from unreasonable searches and seizures and defining the rights of the accused in criminal prosecutions create a broad rule invalidating any prosecution which arises from an illegal arrest. There is no question, of course, that this court has the authority to determine what meaning to attribute to provisions contained in the constitution of this state. In this process of interpretation, we will often look to federal precedents when they are analytically persuasive. We are, however, free, in appropriate circumstances, to follow a different route and thus to recognize that the Connecticut constitution may provide for the people of this state greater rights and liberties than they are afforded under the federal constitution. Michigan v. Long, 463 U.S. 1032, 1038-39, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); State v. Kimbro, 197 Conn. 219, 234-35, 496 A.2d 498 (1985); Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); see Howard, “Introduction: A Frequent Recurrence to Fundamental Principles,” in Developments in State Constitutional Law (1985) pp. xi, xvii-xxiii; Mosk, “State Constitutionalism after Warren: Avoiding the Potomac’s Ebb and Flow,” in Developments in State Constitutional Law (1985) p. 201.

In support of the position that we should relocate and revalidate State v. Licari in the law of our state constitution, the defendant relies principally on our holding in State v. Federici, 179 Conn. 46, 425 A.2d 916 (1979). In that case, the defendant was illegally arrested without probable cause, and evidence obtained as a result of that arrest was admitted against him in his subsequent trial. We held that the use of the illegally obtained evidence had tainted his subsequent prosecution, compromising his right to a fair trial. Consequently, citing the same Connecticut constitutional provisions herein invoked, as well as article first, § 9, we ordered dismissal of the charges against him. The defendant suggests that this holding militates toward a similar result in his case. We disagree.

The issue presented by the rule of Licari and the facts of this case are entirely distinguishable from the holding of Federici. Here, the defendant has failed to allege, much less to show, how his allegedly illegal arrest tainted his trial. No evidence obtained as a result of the defendant’s arrest was used to obtain his conviction. Further, the defendant has never challenged, either at trial or on this appeal, the admissibility of Alphonzie Perry’s testimony at trial. In short, unlike the trial in Federici, the fairness of the defendant’s trial was in no way compromised by the circumstances of his arrest. Federici, therefore, fails to supply state constitutional support for the continued viability of the rule of Licari. See State v. Heinz, supra.

The defendant has provided no other state constitutional basis for continuation of the rule of State v. Licari. Nothing in the language of the constitutional provisions themselves sheds any light on the proper relationship between an illegal arrest and a subsequent conviction. Nothing in the constitutional history of this state, so far as we know, illuminates the issue. Courts in other jurisdictions, in decisions that are persuasive even though they are not binding, have followed the federal rule. We therefore conclude that an illegal arrest imposes no jurisdictional barrier to a defendant’s subsequent prosecution and overrule State v. Licari to the extent that it holds to the contrary.

Where the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction. “[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.” Frisbie v. Collins, supra, 522; State v. Watson, 99 Idaho 694, 697, 587 P.2d 835 (1978); see 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.7 (b), p. 152. We are satisfied that the defendant was given a fair trial untainted by any prior illegalities.

II

The defendant next claims that the trial court’s refusal to grant a mistrial on two separate occasions during the trial so prejudiced him that he was deprived of a fair trial and due process of law under the fifth, sixth and fourteenth amendments to the United States constitution and under article first, § 8, of the Connecticut constitution. We are unpersuaded.

Established principles of law govern the granting of a motion for a mistrial. The general rule in this state is that a mistrial should be granted only when it is apparent to the court that some occurrence during the trial has so prejudiced a party that he can no longer receive a fair trial. State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). The trial court enjoys wide discretion in deciding whether a mistrial is warranted; State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); State v. Gooch, supra; and its decision will be reversed on appeal only if it is established that this discretion has been abused.

The defendant’s first motion for a mistrial occurred during the prosecution’s direct examination of its principal witness, Alphonzie Perry. In response to a question relating to the evening of the murder, Perry testified that the defendant had “talked about getting down in robbery again.” The jury was immediately excused, and the defendant moved for “a mistrial or in the alternative that Mr. Perry’s answer be stricken.” The court denied the motion for a mistrial but granted the alternative motion to strike the answer. The defendant did not take exception to the denial of his motion for mistrial, as required by Practice Book § 288. Ordinarily the failure to take exception to a ruling of the trial court would render that ruling unreviewable on appeal. Practice Book §§ 3063, 288; State v. Sinclair, 197 Conn. 574, 580, 500 A.2d 539 (1985). However, because the defendant asserts that the failure to declare a mistrial has deprived him of a fundamental constitutional right implicating the fairness of his trial, we will review it. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

In the circumstances of this case, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion. As soon as the challenged statement was made, the trial court excused the jury and granted the alternative defense motion to strike. In fact, not only did the court strike the challenged portion of the witness’s statement, it struck the entire answer “to avoid the necessity of going over that particular portion and reinforcing that particular portion that is objectionable.” The court then extensively admonished the witness, and carefully cautioned the jury to disregard the entire previous answer. Later, during its final charge to the jury, the court again instructed the jury not to consider any evidence which had been stricken during the trial. We are convinced that any prejudice the defendant may initially have suffered was eliminated by the trial court’s prompt and thorough action. The trial court did not err in denying the defendant’s motion for a mistrial.

The defendant’s second motion for a mistrial was made during the state’s cross-examination of the defendant’s girlfriend, whose car the defendant had borrowed on the night of the crime. The witness had previously testified that she had never lent the defendant her car overnight. In attempting to impeach her, the prosecutor asked: “Would those occasions [when you lent the defendant your car] have included his driving your car on April 8th of that year at or about 4:00 in the morning?” The defendant immediately objected and moved for a mistrial. He argued that the state’s question implied that “something specific had occurred” at that time, which, coupled with Perry’s earlier references to robberies, might have led the jury to draw prejudicial inferences. The trial court sustained the objection on relevancy grounds, but denied the defendant’s motion for a mistrial. The defendant excepted to this latter ruling but did not request a cautionary instruction to the jury, and none was given. The defendant suggests on appeal that this question was an attempt by the prosecutor to place inadmissible prior misconduct evidence before the jury and was so prejudicial to the defendant that a mistrial was the only appropriate remedy. We disagree.

Where a motion for mistrial is made in response to a prosecutor’s allegedly improper question, the burden is on the defendant to establish that, in the context of the proceedings as a whole, the question was so prejudicial that it deprived him of a fair trial. State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984); State v. Ubaldi, supra. “Merely asking an improper question . . . does not necessarily mandate a mistrial.” State v. Dolphin, 195 Conn. 444, 452, 488 A.2d 812, cert. denied, 474 U.S. , 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985).

Our review of the entire proceeding convinces us that the judge did not err in denying the defendant’s motion. The question posed, although arguably improper, did not of itself imply misconduct by the defendant. The cross-examination which preceded the disputed question had focused on the time periods in which the witness had lent the defendant her car. In this context, the state’s reference to a particular date did not necessarily imply misconduct by the defendant. The defendant’s swift objection coupled with the trial court’s ruling prevented any further reference to the subject. In fact, after the objection was sustained, the state ended its cross-examination altogether. Because the defendant has not sustained his burden of establishing that he was deprived of a fair trial, the trial court has not been shown to have abused its discretion in denying the defendant’s motion.

Ill

In his final claim, the defendant maintains that he is entitled to a new trial because errors in the trial court’s instructions to the jury created an “unacceptable risk” that he was convicted on less than proof beyond a reasonable doubt of each essential element of the crimes with which he was charged. Specifically, the defendant claims that the trial court misinstructed the jury on the elements of felony murder and on the intent necessary to establish accessorial liability. We agree that portions of the charge were erroneous but conclude that, taken as a whole, the charge adequately instructed the jury.

Our review of challenged jury instructions takes place within carefully defined parameters. In the absence of a specific request to charge, we neither dissect a charge nor do we consider the challenged portion in isolation. State v. Dolphin, supra, 451; State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982). Rather, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. State v. Hines, supra. An error in the charge requires reversal only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Sinclair, supra, 581; State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).

The defendant first challenges the court’s misuse of the disjunctive in instructing the jury on the elements of felony murder. General Statutes § 53a-54c, the statute under which the defendant was charged, provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . .’’(Emphasis added.) In discussing this element, the trial court twice incorrectly stated that the defendant could be convicted of felony murder if the underlying robbery was committed “by this accused or by another participant.” (Emphasis added.) The defendant argues in this appeal that this misstatement improperly permitted the jury to find him guilty of felony murder without first finding that he had committed the underlying felony, an essential element of the crime. At trial, the defendant neither requested a particular charge on the elements of felony murder nor took exception to the portions of the charge he now challenges. We will review his claim, however, because the failure adequately to instruct the jury on each essential element of the crime charged might result in a violation of the defendant’s due process rights implicating the fairness of his trial. State v. Sinclair, supra, 580; State v. Kurvin, supra.

After reviewing the entire charge, we are convinced that the jury was adequately instructed on the elements of felony murder. There is no question that the trial court’s use of the disjunctive in its discussion of the first element of the crime was erroneous. However, in the course of the entire charge, the trial court correctly explained that element on four separate occasions. At the start of the instruction on felony murder, the court twice correctly read the statute itself. Then, in discussing each element separately, the court twice correctly informed the jury that, to be convicted under this statute, the defendant himself must have committed the underlying robbery. The court also carefully instructed that the state had to prove beyond a reasonable doubt that the defendant was guilty of every element of the crime with which he was charged. In addition, in its discussion of robbery in the first degree as a lesser included offense of felony murder, the court clearly stated that “[i]f, of course, you are not convinced beyond a reasonable doubt that the accused committed robbery in the first degree then you will find the accused not guilty.” In the context of this extensive charge, we conclude that there is no reasonable possibility that the court’s two isolated misstatements, although clearly incorrect, misled the jury. “Jury instructions are calculated to give the jurors a clear understanding of the elements of the crime charged, and to afford them proper guidance for their determination of whether those elements were present.” State v. Sinclair, supra, 581; State v. Smith, 194 Conn. 213, 219, 479 A.2d 814 (1984). We are satisfied that the charge as given adequately fulfilled this purpose.

The defendant’s next challenge to the jury instructions concerns that portion of the charge that dealt with accessorial liability under General Statutes § 53a-8. General Statutes § 53a-8 provides in relevant part: “A person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct . . . as if he were the principal offender.” Conviction under this statute requires proof of a dual intent: “that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.” (Emphasis in original.) State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979); State v. Nardini, 187 Conn. 513, 531, 447 A.2d 396 (1982). To convict this defendant on an accessorial theory, the jury had to find that the defendant was an accessory to the underlying crime of robbery. Accordingly, the jury had to find that he intended both to aid the principal and to commit the underlying felony of robbery. The defendant concedes that in instructing the jury, the trial court tracked the language of § 53a-8. However, the defendant points out that the trial court failed to explain clearly in this portion of the charge that the underlying crime which the defendant must have intended to commit was robbery. Consequently, the defendant argues, there is a reasonable possibility that the jury convicted him without finding beyond a reasonable doubt that he specifically intended to commit robbery. Since proof of such intent was essential to his conviction as an accessory to robbery under § 53a-8, the defendant contends that his conviction is constitutionally infirm.

We conclude that, taken as a whole, the court’s charge correctly instructed the jury on the degree of intent necessary to justify conviction under § 53a-8. The court began this portion of the charge by reading the statute verbatim. It carefully instructed that “[ujnless there is a quantum of intent or unlawful circumstances in common with the actual perpetrator [the defendant] is not guilty under the statute.” The court then explained that merely aiding the principal in the commission of the crime was insufficient to justify conviction, unless the defendant did so “with the criminal intent and common intent” of the principal. Earlier in the charge, the court had emphasized that robbery, as the underlying felony, was an essential element of felony murder, and had explained, carefully and at length, the mental element required to commit it. Although it would have been better for the court to have mentioned robbery specifically during the accessory portion of its charge, we are convinced that its failure to do so did not mislead the jury. Taken as a whole, then, the instruction adequately informed the jury of the necessary mental element for accessorial liability. See State v. Gasparro, 194 Conn. 96, 112, 480 A.2d 509 (1984); State v. Cannon, 185 Conn. 260, 274, 440 A.2d 927 (1981).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-54c provides in relevant part: “Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       Perry’s felony murder conviction was affirmed by this court in State v. Perry, 195 Conn. 505, 488 A.2d 1256 (1985).

        Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), holds that “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

       During the proceedings below, the defendant premised his motion to dismiss on the claimed illegality of his arrest. Although he did not articulate his claim as fully or as clearly as he has done on appeal, the contested issues were raised sufficiently to warrant review on appeal.

       Article first, § 7, of the Connecticut constitution provides: “(security FROM SEARCHES AND SEIZURES.)
      “Sec. 7. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and 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.”
      Article first, § 8, of the Connecticut constitution provides: “(RIGHTS of ACCUSED IN CRIMINAL PROSECUTIONS. WHAT CASES BAILABLE. SPEEDY TRIAL. DUE PROCESS. EXCESSIVE BAIL OR FINES. PRESENTMENT OF GRAND JURY, WHEN NECESSARY.)
      “Sec. 8. In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evidence or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       Article first, § 9, of the Connecticut constitution provides: “(right of PERSONAL LIBERTY.)
      “Sec. 9. No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       In interpreting the federal constitution to deny the very remedy the defendant seeks, the United State Supreme Court has also focused on the effect of the illegal arrest on the fairness of the subsequent trial. Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541 (1952); Ker v. Illionois, 119 U.S. 436, 440, 7 S. Ct. 225, 30 L. Ed. 421 (1886). It has concluded that the exclusion from a subsequent trial of evidence obtained pursuant to an illegal arrest is sufficient protection of the arrestee’s due process rights. United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966). Barring a subsequent prosecution would not significantly further this end. Frisbie v. Collins, supra. State courts considering this issue are overwhelmingly in agreement. State v. Block, 270 Ark. 671, 672, 606 S.W.2d 362 (1980); Lackey v. State, 246 Ga. 331, 333-34, 271 S.E.2d 478 (1980); State v. Watson, 99 Idaho 694, 697, 587 P.2d 835 (1978); State v. Greene, 120 N.H. 663, 664, 421 A.2d 132 (1980); State v. Beck, 584 P.2d 870, 872 (Utah 1978); see Borden & Jaffe, “The Trouble with Licari; Irony and Anomaly,” 55 Conn. B.J. 463, 478-79 (1981).

       To the extent that State v. Saidel, 159 Conn. 96, 267 A.2d 449 (1970), rested on the holding of State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), it too is overruled.

       The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
      The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      The fourteenth amendment to the United States constitution provides: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       The testimony at issue was: “Perry: [Luther] had a $900 gas bill and he needed the money to pay the gas bill and he said, ‘You didn’t finish paying me,’ and he talked about getting down in robbery again. I said, ‘I’m not getting down in a robbery with you.’ ”

       The defendant actually phrased his motion in the conditional: “Your Honor, at this point I may ask for a mistrial or in the alternative that Mr. Perry’s answer be stricken.”
      The trial court, however, clearly considered it an affirmative motion for a mistrial and ruled on it accordingly.

       “[Practice Book] Sec. 3063. errors considered
      “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. The supreme court may in the interest of justice notice plain error not brought to the attention of the trial court.”
      “[Practice Book] Sec. 288. objections to evidence
      “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”

       After the court had admonished the witness to refrain from making any prejudicial statements, the defendant objected to the trial court’s “coaching” of the witness. At no time, however, did he object to the court’s disposition of his motion.

       At another point in the trial, Perry made another reference to the defendant’s involvement in a robbery. It is unclear from the transcript whether this reference was to the Star Package Store robbery, for which the defendant was on trial, or for a separate one. Outside the presence of the jury, the defendant asked that Perry’s remarks be stricken, and added “I renew my motion on that basis.” In his brief, the defendant claims that this was a renewal of his motion for a mistrial. However, the defendant concedes that the court never ruled on this motion. Since the defendant failed to pursue the matter further either at trial or on appeal, there is no need for us to address it.

       The jury was instructed that the defendant could be convicted of felony murder if he was found to have committed the underlying robbery under either of two alternative theories of liability: that of a principal or that of an accessory. The defendant had been charged by indictment as a principal perpetrator. The state later requested, and the court gave, an instruction allowing the jury to convict the defendant in the alternative as an accessory under General Statutes § 53a-8. The defendant took exception to this charge on the ground that he had had no notice of that theory of liability. Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct. State v. Harris, 198 Conn. 158, 502 A.2d 880 (1985); State v. Ferrara, 176 Conn. 508, 513 n.2, 408 A.2d 265 (1979); State v. Parham, 174 Conn. 500, 508, 391 A.2d 148 (1978). Acknowledging this, the defendant expressly declines to pursue this claim of lack of notice on appeal. Consequently, we do not consider it.

       The court’s first misstatement was: “[I]f you find on the evidence beyond a reasonable doubt that the death of Edmund Kish occurred as a result of the commission of a robbery by this accused or by another participant then the death of Edmund Kish becomes murder under our law.” (Emphasis added.)
      The court’s second misstatement was: “So, to recapitulate, in order to find the accused guilty of the charge of murder as set forth in the indictment you must find that the state has proven beyond a reasonable doubt that the accused and others committed—or anothei—committed the crime of robbery.” (Emphasis added.)

         General Statutes § 53a-8 provides: criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      The instruction on accessorial liability was given at the request of the state. We do not decide whether such an instruction was necessary. The text of the court’s accessorial liability charge is: “Now, as I have at times used the word other participants we have a statute in this case called an accessory statute. A person acting with the mental state required for the commission of an offense, solicits, requests, commands, importunes or intentionally aids another to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. If the accused did any of these things specified in the statute he’s in the eyes of the law just as guilty of the crime charged as though he directly committed it or deliberately participated in its commission.
      “Now, I want to particularly emphasize to you the statute does not connect the various things it specifies by the word and but instead separates them by the word or, therefore, the accused is guilty of the crime charged if he solicited, if he requested, if he commanded, if he importuned or if he intentionally aided another person in the commission of the crime. To find him guilty under this statute you must however decide that he was more than inactively present at the commission of the crime, that he did something more than passively acquiesce in the crime or he did something more [than] innocently performing certain acts which in fact did aid in the commission of the offense. Unless there is a quantum of intent or unlawful circumstances in common with the actual perpetrator he is not guilty under the statute but if you find beyond a reasonable doubt that he did any of these things specified in the statute with the criminal intent and common intent he is just as guilty of the crime as though he had committed it himself.”

       After the court had finished instructing the jury, the defendant took exception to numerous portions of the charge. It is unclear from the transcript whether, in his exception to the accessory instruction, he raised the same ground he now argues. However, “[bjecause it appears that a question of constitutional dimension is raised by the court’s alleged failure properly to explain the ‘intent’ element required by § 53a-8 we will accord this claim appellate review.” State v. McCalpine, 190 Conn. 822, 831, 463 A.2d 545 (1983).