author: Santaniello, J. Borden, J.,

text:
    State of Connecticut v. Yuri Hernandez
    (14168)
    Peters, C. J., Borden, Berdon, Norcott and Santaniello, Js.
    Argued September 30
    decision released December 22, 1992

      Robert S. Bello, with whom was Christopher R. Bello, for the appellant (defendant).

      James A. Kitten, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Bruce Hudock, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant was found guilty by a jury of murder in violation of General Statutes § 53a-54a (a). The trial court rendered a judgment sentencing him to a term of imprisonment of forty years. The defendant appeals claiming that the trial court improperly: (1) limited the cross-examination of the state’s primary witness; and (2) allowed the state to cross-examine the defendant concerning prior acts of uncharged misconduct. The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3). We affirm.

The jury heard the following evidence that supports its conclusions that the defendant murdered the victim. In February, 1985, the defendant began selling drugs. In 1983, the defendant had made the acquaintance of Roberto Quinones and, in 1986, Quinones began selling drugs for the defendant at various nightclubs in Port Chester and White Plains, New York. Throughout 1986 Quinones and the defendant were together daily. They frequently met at the defendant’s apartment at 9 Halloween Boulevard, Stamford, to prepare drugs for sale. They roomed together in other locations while they stored drugs in the defendant’s apartment, and they went to nightclubs together. Quinones often drove the defendant to these places because the defendant did not have a United States driver’s license.

On September 21,1986, the body of the victim, Sylvia Hunt, a prostitute, was discovered wrapped in a rolled carpet lying near the side of Interstate 95 in Greenwich, near the Mianus River Bridge. The state police were called, secured the area and summoned the state medical examiner. An examination of the body by the medical examiner disclosed that the body was punctured by fifteen stab wounds and that the cause of death was multiple stab wounds to the chest. Blood tests revealed traces of alcohol, cocaine and morphine in Hunt’s body.

Subsequent to the discovery of the murder victim, the state police interviewed Quinones as part of their investigation. Quinones informed the police that the defendant had rented an apartment on Halloween Boulevard in Stamford from May to October, 1986. Quinones, who had been to the apartment on numerous occasions, testified that on a Saturday in September, 1986, he visited the defendant at his Halloween Boulevard apartment. The apartment had one entrance in the kitchen-living room area and another in the bedroom. Although Quinones had always used the bedroom entrance when visiting, the defendant told Quinones he could not enter that way and, on that particular day, he would have to use the kitchen entrance instead. That evening, after preparing drugs, the defendant and Quinones went to La Cascada, a nightclub, where the defendant told Quinones that he had killed a girl with a knife because she had been stealing his drugs and his “necklace chains.” The defendant told Quinones that he had gone crazy and “killed her like a dog.” He further stated that he had the body at his apartment but had otherwise cleaned up.

The following day Quinones returned to the Halloween Boulevard apartment to prepare more drugs. While in the apartment with the defendant, Quinones observed “a bulk in between the two mattresses” in the defendant’s bedroom. The defendant asked Quinones to find the defendant’s uncle so that the three of them could dispose of the body. Unable to locate the defendant’s uncle, Quinones returned to the apartment, where he saw the living room rug rolled and tied.

About 4 a.m. the next day, Quinones, the defendant and the defendant’s uncle drove in the defendant’s red Buick automobile to the apartment. Quinones waited while the defendant and his uncle carried the rug down from the apartment and put it in the trunk of the defendant’s car. The three men got into the car and the defendant drove to the Mianus River Bridge. Quinones watched as the defendant and his uncle removed the rug from the trunk and threw it behind the barrier alongside the highway. Quinones later identified the rug in which the victim’s body was found as the same rug he had seen the defendant remove from the Halloween Boulevard apartment and discard along the highway. Later that same day Quinones returned to the defendant’s apartment and saw the defendant cut off bloodstained portions of his mattress, place them in plastic bags, and place the bags in the trunk of his car for disposal.

The following week, the defendant and Quinones were driving by the area where the body had been left and noticed that the police had discovered the body. In late September or early October, Quinones drove the defendant to the airport, and the defendant told Quinones to give the defendant’s car to the defendant’s wife, who lived in White Plains.

One of Quinones’ neighbors testified that, after the police had found the body, Quinones had told him that the defendant had stabbed a black prostitute to death, had rolled up the body in a rug, and had disposed of the body along the highway. In January, 1988, the police seized portions of the flooring and the doorjambs between the kitchen and bedroom areas from the defendant’s apartment on Halloween Boulevard. Laboratory tests revealed the presence of human blood on some of the items.

In the fall of 1988, the police seized a red Buick parked in a garage on Oakwood Avenue in White Plains. The tenants at the address stated that the car had been left there by previous tenants, the defendant’s wife and her brother, who had moved out one year earlier. The police found a number of yarn-like fibers in the trunk of the Buick. Laboratory tests revealed that these fibers were consistent with those taken from the rug in which the victim’s body was found. The police also found a key chain bearing the initial “S” in the trunk of the Buick.

The police testified that the defendant had told them that he thought the key chain looked like one the defendant’s wife had given him. The police also testified that the defendant had told them that he had always kept a knife in the red Buick. He described the knife as a machete.

I

The defendant’s first claim is that the trial court abused its discretion and prejudiced his defense by refusing to allow him to cross-examine Quinones, the state’s primary witness, concerning uncharged misconduct that had occurred ten months after the murder. At trial, Quinones testified that the defendant had told Quinones that he had killed Hunt. The defendant attempted to establish that Quinones had killed the victim. The defendant attempted to bolster this theory by introducing into evidence the fact that, in July, 1987, Quinones had threatened to slash a former girlfriend and to kill her, her husband and other members of her family. After hearing argument outside the presence of the jury, the trial court excluded this evidence because it was too remote in time and not factually similar to the murder.

Our case law recognizes the right of a defendant to introduce evidence that indicates that another person, not the defendant, committed the crime with which the defendant is charged. See, e.g., State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987); State v. Burge, 195 Conn. 232, 252, 487 A.2d 532 (1985); Siemon v. Stoughton, 184 Conn. 547, 555-56, 440 A.2d 210 (1981); State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981); State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974). The defendant must, however, present evidence that directly connects a third party to the crime with which the defendant has been charged. State v. Echols, supra; Siemon v. Stoughton, supra; State v. Giguere, supra. “It is not enough to show that another had the motive to commit the crime; State v. Marshall, supra; State v. Perelli, 125 Conn. 321, 328, 5 A.2d 705 (1939); nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. Brown v. State, 275 Ind. 227, 231, 416 N.E.2d 828 (1981).” State v. Echols, supra.

The rules of relevancy govern both the initial presentation of third party culpability evidence, and the admissibility of particular evidence in that regard. See State v. Echols, supra, 393; State v. Burge, supra; State v. Giguere, supra, 405-406; State v. Marshall, supra, 601-602. Whether third party culpability evidence is direct enough to be admissible is ultimately a matter of the discretion of the trial court. State v. Echols, supra.

“We test the question of remoteness by this rule: ‘Generally speaking, the question of remoteness, as justifying the exclusion of evidence, must depend upon all the considerations, including time, the character of the evidence, and all the surrounding circumstances which in the opinion of the court ought to have a bearing upon its worthiness to be brought into the consideration and determination of the matter in contention.’ State v. Kelly, 77 Conn. 266, 269, 58 Atl. 705 [1904].” Bishop v. Copp, 96 Conn. 571, 580, 114 A. 682 (1921). The evidence in question here related to conduct that occurred ten months after the murder that arose under very different circumstances and the threat was made to different individuals. Furthermore, there is no connection between Quinones’ former girlfriend and the murder victim. Compare State v. Burge, supra, 252 (third party had confessed to recent commission of similar assault); State v. Ross, 18 Conn. App. 423, 424, 429, 558 A.2d 1015 (1989) (third party had been involved in similar fight one week earlier and had argument with victim moments before shooting). Under the circumstances, the trial court did not abuse its discretion in concluding that this evidence was not relevant because it was too remote in time.

Furthermore, the trial court found this evidence factually dissimilar to the circumstances surrounding the murder. The defendant agreed with the trial court’s determination that this case does not involve a signature crime. Additionally, the trial court properly excluded this evidence because it did not directly connect Quinones to the murder. We conclude that the trial court’s ruling was not an abuse of discretion.

II

The defendant’s second claim is that the trial court improperly permitted the state, in cross-examining the defendant, to go beyond the scope of the direct examination of the defendant. The challenged cross-examination concerned the defendant’s purported violence toward women. At trial the defendant testified on direct examination that he had many relationships. He portrayed himself as a popular, churchgoing man who had romantic relationships with many women. Although some women were jealous of his popularity, their jealousy was expressed in harmless ways. The defendant also portrayed himself as a peaceful man; he claimed often to have stopped fights Quinones would get into and he claimed not to have fought with Quinones even when he was angry with him. On cross-examination, the defendant testified that he believed his relationships with women were good but that some women would fight with him. When the state tried to question the defendant about his relationship with a specifically identified woman, the defendant objected.

With the jury excused, the court heard argument on the prejudicial effect of the anticipated testimony concerning an alleged attempted sexual assault accompanied by physical violence. The state claimed that the defendant had portrayed himself as having good relationships with women and that the state, therefore, was entitled to pursue the matter further. The court held that the alleged sexual assault was not relevant to a murder by stabbing and the prejudicial effect of the testimony on this topic outweighed its probative value. The court held, however, that testimony regarding alleged physical violence against the woman was admissible. The defendant had opened the door to this testimony when he created an impression of himself as a peaceful man with good relationships with women.

“Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); see also State v. Roy, 173 Conn. 35, 50, 376 A.2d 391 (1977). “The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party.” State v. Graham, supra. “ ‘The doctrine of opening the door cannot, of course, “be ‘subverted into a rule for injection of prejudice.’ ” United States v. Lum, [466 F. Sup. 328, 335 (D. Del. 1979)], quoting United States v. Winston, [447 F.2d 1236, 1240 (D.C. Cir. 1971)].’ State v. Glenn, [194 Conn. 483, 499, 481 A.2d 741 (1984)]. The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it ‘ “only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.” California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir. 1956).’ United States v. Winston, supra. Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal. Id., 1241-42; People v. Arends, 155 Cal. App. 2d 496, 509, 318 P.2d 532 (1957).” State v. Graham, supra, 13-14.

“ ‘When a witness voluntarily testifies, as did the defendant here, he asks the jury to believe him. The jury should be informed about the sort of person asking them to take his word.’ State v. Staples, 120 N.H. 278, 283, 415 A.2d 320 (1980), quoted in State v. Glenn, [supra, 498-99].” State v. Williamson, 206 Conn. 685, 699, 539 A.2d 561 (1988). “ ‘Matters which might not be strictly relevant on direct examination may be so on cross-examination where that matter is explored for the purpose of credibility. Given that function of cross-examination in shedding light on the credibility of the witness’ direct testimony, “[t]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony.” ’ ” State v. Williamson, supra, quoting State v. Ouellette, 190 Conn. 84, 102, 459 A.2d 1005 (1983). A question is within the scope of the direct examination if it is intended to “rebut, impeach, modify or explain any of the defendant’s direct testimony . . . .” State v. Zdanis, 173 Conn. 189, 196, 377 A.2d 275 (1977).

The court has wide discretion to determine the scope of cross-examination. State v. Jackson, 198 Conn. 314, 319, 502 A.2d 865 (1986); State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985); State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983); Akers v. Singer, 158 Conn. 29, 36, 255 A.2d 858 (1969); State v. Kurz, 131 Conn. 54, 37 A.2d 808 (1944). “ ‘Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.’ ” State v. Jackson, supra, quoting State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). “ ‘Because of the difficulties inherent in this balancing process, the trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.’ ” State v. Williamson, supra, 698, quoting State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982); see also State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983). “Our review is limited to whether the trial court’s rulings exceeded the latitude accorded its discretion in such matters.” State v. Williamson, supra, 698-99.

With the jury excused, the trial court considered arguments by the parties about the proposed questioning concerning the defendant’s alleged misconduct with respect to the woman. The court agreed with the state that by portraying himself in a certain manner on direct examination, the defendant had opened the door to questions that would elicit testimony contradicting this portrayal of the defendant to enable the jury better to assess the defendant’s credibility. On weighing the probative value and prejudicial effect of this proposed testimony, however, the court determined that testimony concerning violence toward the woman would be allowed but testimony concerning an alleged sexual assault would not. Subsequently, while being questioned on cross-examination about his role as a peacemaker at the nightclub, the defendant admitted that he had had arguments with women and had slapped them around. Although the defendant did not state on direct examination that he was never violent toward women, the record supports an inference that his relationships were nonviolent. The trial court did not abuse its discretion when it allowed the state to cross-examine the defendant to modify this inference.

The judgment is affirmed.

In this opinion Peters, C. J., Berdon and Norcott, Js., concurred.

Borden, J.,

concurring. I agree with part I of the majority opinion.

Regarding part II, however, I believe that the challenged evidence addressed on the cross-examination of the defendant was not fairly within the scope of the defendant’s direct examination. There was no evidence in that examination, directly or by inference, that he was nonviolent in his relationships with women. Thus, the trial court abused its discretion in admitting the cross-examination that he had violently sexually assaulted the specifically identified woman.

I am not persuaded, however, that it is more probable than not that the improperly admitted evidence affected the jury’s verdict. First, the defendant, on redirect, vitiated the effect of the court’s ruling by volunteering that he had “had many women and . . . slapped them around.” Second, the other evidence against the defendant was quite strong. Third, there is no indication that the state heavily traded on this evidence in final argument to meet its burden of proof. I would, therefore, hold that the trial court’s ruling was harmless error, and I concur in the judgment.

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 51-199 (b) (3) provides that “an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years” may be taken directly to the Supreme Court.

       The defendant did have a driver’s license from the Dominican Republic.

       When questioned by the police, the defendant had stated that he had a light brown rug in his apartment. The defendant also testified at trial that the photos of the rug in which the body was discovered looked like the rug from his apartment.

       The defendant testified that he had identified a picture of a key chain shown him by the police as his own but did not recollect ever seeing the key chain shown him in court. The police testified, however, that the key chain in the photo and the key chain shown to the defendant at trial were the same.

       The defendant claims that by limiting his cross-examination of Quinones, the state’s primary witness, the trial court violated the defendant’s constitutional right to present a defense. “ ‘Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.’ State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). Only last year, the United States Supreme Court specifically reiterated that ‘ “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to what extent the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 [106 S. Ct. 292, 88 L. Ed. 2d 15 (1985)] (per curiam) (emphasis in original).’ Delaware v. Van Arsdall, [475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)].” State v. Jones, 205 Conn. 638, 670, 534 A.2d 1199 (1987).
      “[Restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . .” (Internal quotation marks omitted.) Id. We find that the trial court permitted cross-examination sufficient to satisfy the defendant’s constitutional right to present a defense. This claim, therefore, is without merit.

       The defendant did present evidence demonstrating that he and Quinones had equal access to the murder scene and that Quinones may have had a motive to implicate the defendant in the murder. The defendant was allowed to present evidence suggesting that: Quinones had access to the apartment at Halloween Boulevard where the murder was thought to have occurred; Quinones had access to the defendant’s car that was used to transport the body; Quinones frequented prostitutes and was jealous of the defendant’s many relationships with women; and Quinones resented the fact that the defendant often referred to Quinones as his chauffeur.

       Defense counsel at trial stated, “we're not talking about a signature crime.”

       “Q. Now did [the police] ask you about your experiences with prostitutes? “A. Yes.
      “Q. And what did you tell them?
      “A. That I did not use prostitutes. I had a lot of girls.
      “Q. Okay. And you did talk about a white prostitute?
      “A. Yes.
      “Q. And what did you tell them about her?
      “A. I told them that she was a white girl from Port Chester and that I brought her to my apartment.
      * * *
      “Q. Now Mr. Hernandez, you mentioned staying in Bridgeport and New Haven on occasion. Who would you stay with there?
      “A. With women that I would date, I would stay at their homes.
      “Q. And would you also at the other places you mentioned, stay with women?
      “A. What was that?
      “Q. The other places that had been mentioned, the hotels in Stamford, your apartment in Stamford, would you also stay with women there on occasion?
      “A. Yes.”

       “Q. Now, where would you meet your girlfriends?
      “A. Could have been at the jobs I used to work, at the Galleria, at McDonald’s, at the beach, anyplace.
      “Q. Did you ever meet any women at church?
      “A. Also at the church.
      “Q. And when did you go to church?
      “A. On Sundays.
      * * *
      “Q. Where would you socialize with these women?
      “A. What do you mean? We would get together at La Cascada or Mokondo in Port Chester.
      “Q. And what evenings did you go to La Cascada?
      “A. Friday, Saturday and Sunday.
      “Q. And did you do this every weekend?
      “A. Yes.
      “Q. And most evenings when you left La Cascada, did you leave with a date?

        “A. Every time I went to La Cascada, I always had women, because I would, the day before, make an agreement to get together there.
      * ** *
      “Q. Now, I may be repeating myself, but when you spent the night with a woman, where would this be?
      “A. Hotels, at their homes, or in my apartment.
      * * *
      “Q. Did you personally do any loud partying in that apartment? . . .
      “A. No.
      “Q. Did you ever play music?
      “A. Romantic music, but very low.”

       “Q. Did a lot of your girlfriends get mad at you because you were going out with so many different—
      “A. Yes.
      “Q. And how do you know that?
      “A. Sometimes they would just give me a flat tire on my car, or they would write names on my car.”

       “Q. And what would you do when [Quinones] got into fights?
      “A. I would have to interfere. . . .
      “Q. Okay. Now did you argue with Robert [Quinones] over his drug and alcohol use?
      “A. Yes.
      “Q. And how often?
      “A. Almost daily.
      “Q. And did you ever come to blows on this issue?
      “A. No, never.”

       Before the trial had begun, on May 22, 1989, the defendant had filed a “Motion to Suppress Statements.” On June 14, 1990, the court denied this motion because it could not determine the prejudicial effect of the defendant’s statements at that time. In June, 1990, the defendant filed a “Motion in Limine Re: Uncharged Misconduct” to exclude evidence of the alleged sexual assault or alleged attempted sexual assault of a specifically identified woman by the defendant. The court heard argument on this motion on August 3, 1990, before the trial commenced. At that time the court did not act on the motion because the state had represented to the defendant that it had not intended to introduce any evidence of striking, sexual assault, or attempted sexual assault in its case-in-chief.

       “This Defendant has made statements on direct and cross regarding his relationships with women. And so far, it’s all pretty much hunky dory .... I mean it appeared at the time of the State’s case that this might be an extraneous issue. The Defendant has seen fit to place it in the for (sic) . . . .”

       “Q. Okay. Now you’ve indicated that you—you’re something of a peacemaker at La Cascada, weren’t you?
      “A. When there would be fights involving people that I knew, I would try to separate them.
      “Q. So you were always the peacemaker?
      “A. Not all the time . . .
      “A. That I am aware of, I never had any problems involving fights, arguments with women and such.
      “Q. You just fought with women?
      “A. Arguments with women.
      “Q. So you didn’t punch anybody except [the woman]; is that right?
      “A. I have had many women and I have slapped them around.”


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    Novametrix Medical Systems, Inc. v. The BOC Group, Inc.
    (14467)
    Peters, C. J., Callahan, Borden, Norcott and F. X. Hennessy, Js.
    Argued September 24
    decision released December 22, 1992

      John M. Calimafde, pro hac vice, with whom were William H. Narwold and, on the brief, Lee A. Goldberg, pro hac vice, and Maurice K. Segall, for the appellant (plaintiff).

      Keith V. Rockey, pro hac vice, with whom were Alison L. Bonds and, on the brief, Thomas C. Elliott, Jr., pro hac vice, for the appellee (defendant).
   Norcott, J.

The sole issue in this appeal is whether the return of a nonrefundable payment made under a licensing agreement negotiated after a finding of patent infringement is required if the finding of infringement is later reversed, thereby obviating the need for the licensing agreement. The plaintiff, Novametrix Medical Systems, Inc., brought suit against the defendant, The BOC Group, Inc., to recover a $400,000 payment made to the defendant under a licensing agreement between the parties. The trial court granted the defendant’s motion to strike the complaint on the ground that the complaint failed to allege a cause of action for breach of contract to justify return of the payment. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The relevant facts are as follows. The plaintiff is in the business of manufacturing and selling medical monitoring equipment. Its principal product is the oximeter, which detects and measures the oxygen content in blood. The defendant, through one of its divisions, manufactures and sells life support and critical care equipment, including a line of oximeters that is in competition with those sold by the plaintiff. The oximeter manufactured by the defendant has been protected under United States Patent No. 4,407,290 since October, 1983.

In June, 1986, the defendant filed a patent infringement action against the plaintiff in federal court seeking to prevent the plaintiff from manufacturing and selling oximeters that came within the scope of the defendant’s patent. In April, 1989, the federal District Court issued a memorandum of decision finding the defendant’s patent valid, enforceable and infringed by the manufacture and sale of the plaintiff’s oximeter. BOC Group, Inc. v. Novametrix Medical Systems, Inc., 11 U.S.P.Q.2d 1853, 1859-60 (D. Conn. 1989). By virtue of the District Court’s decision, the defendant obtained a legal right to have the court issue a permanent injunction against the plaintiff to prevent the plaintiff from continuing to manufacture and sell the oximeter. In the decision, the District Court directed the parties to “file an agreed form of judgment consistent with [its] ruling within thirty days.” Id., 1860.

The demise of the plaintiff company would have been certain had an injunction issued prohibiting the production of its principal product. To assure its survival pending an appeal from the District Court’s finding of patent infringement, the plaintiff negotiated an agreement with the defendant whereby the plaintiff would agree to a form of judgment that included the injunction and the defendant would agree to grant the plaintiff a license to enable it to stay in business. The licensing agreement provided that the plaintiff would pay the defendant a nonrefundable sum of $400,000 which would constitute a credit against future royalties owed or which could be applied as a credit against an award of damages for past infringement. The parties specified that the obligation to pay this sum would survive the termination of the licensing agreement.

The plaintiff appealed only the issue of infringement to the federal Circuit Court of Appeals. The Circuit Court reversed the District Court’s finding of infringement, holding that the plaintiff’s technology was not covered by the scope of the defendant’s patent. BOC Group, Inc. v. Novametrix Medical Systems, Inc., 15 U.S.P.Q.2d 1475 (Fed. Cir. 1990).

Following the decision of the Circuit Court, the plaintiff filed the present state court action for the return of the $400,000 nonrefundable payment. The plaintiff alleged, alternatively, that: (1) established law dictated that royalties paid by a licensee after a challenge is made to a patent are recoverable if the patent is later found to be unenforceable (the “challenge rule”); and (2) the licensing agreement should be rescinded because the parties entered into it under a mutual mistake.

The defendant moved to strike the complaint for failure to state a cause of action. The trial court granted the motion to strike, concluding that the plaintiff had not alleged a breach of contract to justify return of the $400,000 payment or any legal basis for rescission of the licensing agreement. On appeal, the plaintiff claims that, because the trial court incorrectly treated the first count of the complaint as one alleging breach of contract rather than one alleging grounds for applying the challenge rule, the trial court improperly granted the motion to strike. We conclude that, under either analysis, the trial court properly granted the motion to strike.

“The purpose of a motion to strike is to ‘contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.’ In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff.” (Citations omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982); Mora v. Aetna Life & Casualty Ins. Co., 13 Conn. App. 208, 211, 535 A.2d 390 (1988). The first count of the plaintiff’s complaint demanded return of the $400,000 payment on the ground that “royalties paid after challenge to a patent are recoverable if the patent is later found to be unenforceable. The BOC patent was found to be unenforceable against Novametrix.” The plaintiff argues that this allegation, which the plaintiff claims accurately states the “challenge rule,” provides the legal basis for its suit against the defendant, and that, therefore, the claim should have survived a motion to strike. Whether the policy embodied by the challenge rule warrants overriding the clear language of the licensing agreement to permit refund of a royalty payment if a claim of patent infringement is successfully challenged is an issue of first impression for this court. Our review of this doctrine and the policy underlying it leaves us unpersuaded that the plaintiff is entitled to any relief.

The challenge rule originated with Lear, Inc. v. Adkins, 395 U.S. 653, 89 S. Ct. 1902, 23 L. Ed. 2d 610 (1969), in which the United States Supreme Court departed from prior law to hold that a patent licensee was no longer estopped from challenging the validity of the patent underlying the license agreement. The court there considered “the important public interest in permitting full and free competition in the use of ideas which are in reality a part of the public domain,” and that “[licensees may often be the only individuals with enough economic incentive to challenge the patent-ability of an inventor’s discovery.” Id., 670. The court thus held that this important public policy overrides the technical requirements of contract doctrine so as to relieve a licensee from the liability for paying royalties once the licensee successfully challenges the validity of the licensor’s patent. Id., 674; Ransburg Electro-Coating Corporation v. Spiller & Spiller, Inc., 489 F.2d 974, 977 (7th Cir. 1973).

Subsequent cases have consistently upheld the right of a patent licensee to recover royalties paid after a successful legal challenge is made to the patent’s validity. See Bristol Locknut Co. v. SPS Technologies, Inc., 677 F.2d 1277, 1283 (9th Cir. 1982); Transitron Electronic Corporation v. Hughes Aircraft Co., 649 F.2d 871, 874 (1st Cir. 1981); St. Regis Paper Co. v. Royal Industries, 552 F.2d 309, 313-14 (9th Cir.), cert. denied, 434 U.S. 996, 98 S. Ct. 633, 54 L. Ed. 2d 490 (1977); Troxel Mfg. Co. v. Schwinn Bicycle Co., 465 F.2d 1253, 1260 (6th Cir. 1972), cert. denied, 416 U.S. 939, 94 S. Ct. 1942, 40 L. Ed. 2d 290 (1974). The challenge rule has maintained a relatively narrow existence, however, and courts have been reluctant to extend its ambit beyond that originally conceived by the court in Lear. See, e.g., Foster v. Hallco Mfg. Co., 947 F.2d 469, 475 (Fed. Cir. 1991) (Lear policy does not override policy of preserving the finality of judgments); Hemstreet v. Spiegel, Inc., 851 F.2d 348, 350 (Fed. Cir. 1988) (federal patent policy enunciated in Lear does not also override policy in favor of settlement of disputes); Troxel Mfg. Co. v. Schwinn Bicycle Co., supra, 1257 (court declines to interpret Lear to permit recovery of royalties paid before challenge is made to validity of patent).

The plaintiff asks this court to extend the challenge rule to require refund of the $400,000 payment if a successful challenge was made to a finding of patent infringement rather than to a finding of patent validity. This doctrine apparently has never been applied if a challenge was made to patent infringement alone and we decline to do so now. The plaintiff entered into the licensing agreement with the defendant after the District Court found the defendant’s patent to be valid, enforceable and infringed. The plaintiff chose to appeal only the issue of infringement, thus making the findings of validity and enforceability of the patent res judicata in any subsequent action between the parties as to this particular patent. Lawlor v. National Screen Service Corporation, 349 U.S. 322, 326, 75 S. Ct. 865, 99 L. Ed. 1122 (1955); United States Industries, Inc. v. Otis Engineering Corporation, 277 F.2d 282, 284 (5th Cir. 1960). This court will not unnecessarily expand a legal doctrine to enable a party to avoid the consequences of its tactical litigation decisions.

Our doubts about the applicability of the challenge rule to litigation concerning patent infringement rather than patent validity are reenforced, in this case, by the terms of the contract which the parties freely negotiated. The plaintiff expressly agreed that its payment of $400,000 would be nonrefundable, and that its obligation to make this payment would survive any subsequent termination of the contract between the parties. In these circumstances, the plaintiff entered into the licensing agreement to remain an economically viable company while the infringement issue was being appealed, thereby assuming the risk of prevailing on the appeal and not being refunded the payment. Having received the benefit for which it bargained, the plaintiff has no valid claim to recover the moneys that it paid the defendant. We conclude, therefore, that the plaintiff has failed to allege a valid cause of action for return of the $400,000 payment it made to the defendant. The trial court, therefore, properly granted the defendant’s motion to strike.

The judgment is affirmed.

In this opinion the other justices concurred.

       The trial court also granted the motion to strike the second count of the complaint alleging mutual mistake as a ground for rescission of the contract. The plaintiff has pursued this appeal only as to the first count of the complaint.

       The patent was originally owned by Bioximetry Technology, Inc., a company based in Boulder, Colorado. In 1984, the defendant acquired title to the patent when it purchased Bioximetry Technology, Inc. BOC Group, Inc. v. Novametrix Medical Systems, Inc., 11 U.S.P.Q.2d 1853, 1853 (D. Conn. 1989).

       Paragraph 3.1 of the licensing agreement provided: “On or before July 1, 1989, Novametrix shall pay to BOC the sum of Four Hundred Thousand Dollars ($400,000) which sum shall be nonrefundable, but which shall constitute a credit against any royalties due to BOC pursuant to paragraph 3.3 hereof, or if Novametrix elects, said payment can be applied as a credit against any award of damages for past infringement as a result of any accounting under the civil action identified in paragraph 6.4 below. Any such election must be made by Novametrix no later than July 30, 1989.”

       Paragraph 5.1 of the licensing agreement provided: “In the event BOC has not received the payment provided for in paragraph 3.1 above on or before July 1, 1989, this Agreement shall terminate at the end of the day on said July 1st; provided however, Novametrix’s obligation to make such payment shall survive any termination of this Agreement.”

       The United States Court of Appeals for the Federal Circuit is the federal appellate court having exclusive jurisdiction over appeals involving issues arising under the patent laws of the United States. 28 U.S.C. § 1295.

       The Circuit Court found that the manufacture of the plaintiffs oximeter did not constitute “literal infringement” of the defendant’s patent, but remanded the case to the District Court for a determination of whether the plaintiff’s oximeter was the “equivalent” of the patented device. BOC Group, Inc. v. Novametrix Medical Systems, Inc., 15 U.S.P.Q.2d 1475, 1477-78 (Fed. Cir. 1990). On remand, the plaintiff moved for summary judgment on the remaining infringement issue, which was granted by the District Court and affirmed by the Circuit Court. BOC Group, Inc. v.
        Novametrix Medical Systems, Inc., 17 U.S.P.Q.2d 1493 (D. Conn. 1990), aff’d, LEXIS No. 11498 (Fed. Cir. 1991).

       On the same day as oral argument on the motion to strike, the plaintiff requested to amend its complaint to substitute the mutual mistake count for one requesting rescission because of unconscionability. The trial court refused to consider the unconscionability claim in rendering a decision on the motion to strike the complaint because it was not properly part of the complaint when the motion was heard. The plaintiff subsequently withdrew its request to amend its complaint.

       The plaintiff also argues that the licensing agreement should be rescinded because the payment was made under duress and the unequal economic bargaining power of the parties resulted in a contract of adhesion which is contrary to public policy. These allegations were not part of the plaintiffs complaint and were not before the trial court when the motion to strike was granted, and therefore will not be considered for the first time on appeal. Practice Book § 4185.

       Because of our disposition of the application of the challenge rule to the facts of this case, we need not discuss the parties’ disagreement about whether the trial court properly referred to the $400,000 payment as a royalty payment.

       Before Lear, Inc. v. Adkins, 395 U.S. 653, 89 S. Ct. 1902, 23 L. Ed. 2d 610 (1969), a patent licensee was prohibited from challenging the validity of the licensor’s patent under the contract doctrine of licensee estoppel. See Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 836, 70 S. Ct. 894, 94 L. Ed. 1312 (1950). Both federal and state caselaw, however, sought “to accommodate the competing demands of the common law of contracts and the federal law of patents” and thus carved out exceptions to the estoppel doctrine. The result was “a chaos of conflicting case law, proceeding on inconsistent premises.” Lear, Inc. v. Adkins, supra, 668.

       The issues of validity, enforceability, and infringement are significantly different in patent law, and each issue has a different focus. Patent validity looks to the invention itself and examines whether the patent claims define novel and nonobvious subject matter. See 35 U.S.C. %% 102-103. The issue of enforceability focuses on the behavior of the patentee; it requires examining whether the patentee is guilty of fraud or inequitable conduct in obtaining the patent or whether the patentee has misused the patent. Gardco Mfg., Inc. v. Herst Lighting Co., 820 F.2d 1209, 1213 (Fed. Cir. 1987). The issue of infringement focuses on whether a particular device falls within the particular boundaries of a patentee’s invention, which are defined by the claims of the patent. Lemelson v. United States, 752 F.2d 1538, 1551 (Fed. Cir. 1985).
      That these issues are technically different is illustrated by Gardco Mfg., Inc. v. Herst Lighting Co., supra, in which the court stated: “[A] patent may be valid and yet be rendered unenforceable for misuse or inequitable conduct. Similarly, a valid patent may be (in the abstract) infringed, that is, the accused device may fall within the scope of the claim, but there will be no liability to the patentee when the patent is unenforceable.”
      The plaintiff attempts to apply a familiar interpretation of “enforceability” to argue that the challenge rule applies equally to a challenge to infringement because the result is the same; both an invalid and noninfringed patent cannot be enforced against a particular party. While the challenge rule has been applied consistently in cases where a patent has been found to be “unenforceable” because of its invalidity; we have found no instance where the rule has operated similarly on a patent found to be “unenforceable” against a party because of noninfringement.

       We note that had the plaintiff successfully challenged the validity of the patent in its federal appeal as well, it would still not necessarily be entitled to a refund of the $400,000 payment. Indeed, the defendant contends that the agreement would be enforceable in that instance as well. Because the challenge rule does not apply to challenges to infringement alone, we do not consider the result had validity been successfully challenged as well.

       We note also that the trial court granted the motion to strike for failure to allege a cause of action for breach of contract, and therefore did not specifically address the plaintiffs allegation that the challenge rule warranted return of the $400,000 payment. Thus, it is not clear whether the trial court failed entirely to consider the applicability of the challenge rule. That uncertainty, however, need not affect our decision. Even if a “trial court reaches a correct decision on incorrect grounds, that decision will be sustained if correct grounds exist to support it.” Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 301, 429 A.2d 883 (1980).


author: Callahan, J.

text:
    Howell R. Geib III v. John D. McKinney, Jr., et al. Howell R. Geib III v. Walker McKinney et al.
    (14519)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      Argued October 1
    decision released December 22, 1992

      David D. Legere, with whom, on the brief, were William H. Narwold and Robert P. Dolian, for the appellants (named defendant et al. in each case).

      Patricia A. Carpenter, for the appellee (plaintiff in each case).
   Callahan, J.

The named defendants, Walker McKinney and John D. McKinney, Jr., appeal from the judgment of the trial court, on the report and recommendation of an attorney state trial referee, ordering the partition by sale of two parcels of real estate situated in Weston, owned jointly by the defendants and their nephew, the plaintiff, Howell R. Geib III.

The plaintiff commenced two actions pursuant to General Statutes §§ 52-495 and 52-500 (a) to partition both the “Birch Hill” property and the “Richardson” property that were held by the parties to this action as joint tenants with an express right of survivorship. The actions were consolidated and were referred to Arthur A. Hiller, attorney state trial referee, for trial. The trial was bifurcated to try the issue of partition separately from the issue of how the proceeds of a partition by sale, if ordered, should be distributed.

After a hearing to determine the propriety of partition, the trial referee recommended a judgment of partition by sale of both properties and the appointment of an appraiser to assess their values. The defendants moved to correct the trial referee’s memorandum of decision claiming that: (1) partition was improper because it would impermissibly destroy the express right of survivorship in the properties; and (2) appointment of an appraiser would cause unnecessary expense. The trial referee denied the defendants’ motion to correct, and the defendants filed an objection to the acceptance of the trial referee’s report pursuant to Practice Book § 444. The trial court, Katz, J., rendered a judgment of partition by sale for each of the properties and appointed an appraiser. The defendants appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The trial referee could reasonably have found the following facts. In 1983, the parties purchased the Birch Hill property in Weston for use as a vacation home for weekend and summer use. Walker McKinney paid the purchase price of $154,000, closing costs of $2835 and $48,106 in initial improvements. The parties, however, agreed that the property would be owned equally by all three and that over a period of time each would contribute to the costs equally. A mortgage from the Nor-walk Savings Society was taken out on the property in the amount of $108,300, and the mortgagors, the plaintiff and John D. McKinney, paid over the entire amount borrowed to Walker McKinney. In addition, the plaintiff and John D. McKinney each paid Walker McKinney $31,147. According to the deed, all three parties owned the property as joint tenants with the right of survivorship.

In February, 1985, the parties decided to purchase seven acres of unimproved land, referred to as the Richardson property, for investment purposes. At that time, the parties also owned four undeveloped lots on Long Island—the plaintiff owned one lot; John D. McKinney owned one lot; and Walker McKinney owned two lots. Each lot was worth $22,500. In order to purchase the Richardson property, the plaintiff and the McKinneys agreed with the seller of the Richardson property to exchange their lots for the Richardson property and to give the seller a $75,000 purchase money mortgage. Because Walker McKinney had paid the closing costs and contributed an additional lot to the purchase of the Richardson property, the plaintiff and John D. McKinney each paid one half of the monthly mortgage payments until November 1,1990, when the plaintiffs payments ceased. All three parties took title to the Richardson property as joint tenants with rights of survivorship and the deed to the property so indicated.

Toward the end of 1985, after the purchase of these properties, the plaintiff and Walker McKinney had what they called a “parting of the ways.” Thereafter, the plaintiff never used the Birch Hill property, and was told that he was no longer welcome there. Walker McKinney had control over trust funds for the plaintiff and, after their estrangement, made mortgage payments from these funds on the plaintiff’s behalf on both the Birch Hill property and the Richardson property until November 1,1990, when Walker McKinney, without notifying the plaintiff, began to pay the plaintiff’s share of the mortgage payments on both properties himself.

The defendants claim that the trial court improperly ordered: (1) the partition of properties, because they were held in joint tenancy with an express right of survivorship; (2) the partition of properties by sale, because the party who sought partition had only a minimal interest in the properties; and (3) an appraisal of the properties.

I

The defendants first claim that the trial court improperly ordered the partition of the two properties because partition impermissibly destroyed their rights of survivorship. Specifically, they argue that partition improperly defeated the parties’ intention as evidenced by the right of survivorship expressed in the deeds to the properties. We do not agree.

General Statutes § 52-495 vests authority in courts having jurisdiction of actions for equitable relief to order “partition of any real property held in joint tenancy, tenancy in common, coparcenary or by tenants in tail.” (Emphasis added.) The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy. “No person can be compelled to remain the owner with another of real estate, not even if he become such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it may be exercised. Therefore the law afforded to every owner with another relief by way of partition. . . . ” Johnson v. Olmsted, 49 Conn. 509, 517 (1882); see also Wilcox v. Willard Shopping Center Associates, 208 Conn. 318, 325, 544 A.2d 1207 (1988); Delfino v. Vealencis, 181 Conn. 533, 536-37, 436 A.2d 27 (1980).

The defendants contend, however, that because the parties to these actions specifically intended to create a right of survivorship and provided for this right by an express provision in the deeds to both the Birch Hill property and the Richardson property, the plaintiff has no right to partition these properties without their consent. According to the defendants, although partition may normally be appropriate for joint tenancies, partition with respect to a joint tenancy with an express right of survivorship is impermissible because the right of survivorship creates a contingent remainder interest in the survivors that cannot be defeated by one of the joint tenants.

Although there is authority for the proposition that certain survivorship interests in real property are, under some circumstances, indestructible in the absence of the voluntary act of all the joint tenants; Hughes v. Fairfield Lumber & Supply Co., 143 Conn. 427, 430-31, 123 A.2d 195 (1956) (jointly held property with right of survivorship annexed created an interest in the surviving owner that could not be attached by a creditor of deceased owner); Blodgett v. Union & New Haven Trust Co., 111 Conn. 165, 167-68, 149 A. 790 (1930) (jointly held bonds providing for survivor of joint owners created a remainder interest for survivor for purposes of succession tax); see generally note, “Survivorship Deeds and Joint Tenancy in Connecticut,” 31 Conn. B.J. 70 (1957); this is clearly not the case with respect to the right of an owner to partition real property. General Statutes § 47-14h, which was enacted subsequent to § 52-495, provides that “[ajll provisions of existing statutes applicable to joint tenancies are applicable to joint tenancies with right of survivorship.” Under the applicable principles of statutory construction, the enactment of § 47-14h signifies that the legislature intended § 52-495 to provide for a right to partition that applies equally to both joint tenancies and joint tenancies with rights of survivorship. See also United States v. Mosolowitz, 269 F. Sup. 12, 17-18 (D. Conn. 1967) (subjecting joint tenancies with a right of survivorship to all other statutes applicable to joint tenancies).

To support their contention that an express right of survivorship creates a contingent remainder interest in the survivor that cannot be defeated by the other joint tenants, the defendants cite § 27 of volume 59A of the second edition of American Jurisprudence. A reading of § 27 in its entirety, however, reveals that only a minority of jurisdictions adheres to the rule that an express right of survivorship creates an indestructible contingent remainder. Not mentioned in the defendants’ brief, but stated in § 27 is the following: “The general rule is that joint tenants with the right of survivorship may bring actions for partition.” 59A Am. Jur. 2d, Partition § 27 (1987). Connecticut follows the majority rule.

The defendants also claim that regardless of the general rule applicable to joint tenancies with a right of survivorship, the trial court improperly ordered partition by sale because it failed first to hold a hearing in order to ascertain the intent of the parties in creating the survivorship interest. During argument before the attorney state trial referee, however, the defendants did not claim that such a hearing was necessary. Although the trial referee did not preclude evidence concerning the circumstances surrounding the creation of the right of survivorship, there was nothing elicited that would have led the trial referee to inquire whether such a private arrangement, if one existed, could have overcome the statutory right to partition afforded the plaintiff. The testimony that the trial referee did hear regarding the intent of the parties in creating a survivorship interest did not indicate the existence of any collateral understanding that might have barred the plaintiff from seeking partition. It is not unprecedented that a separate agreement, such as a trust, can protect certain survivorship interests against a partition action. Rayhol Co. v. Holland, 110 Conn. 516, 526-527, 148 A. 358 (1930). We cannot discern anything in the record, however, that should have prompted the trial referee to disregard the legislative intent manifested in §§ 52-495 and 47-14h that a partition action will not be barred simply by the creation of a joint tenancy with an express right of survivorship. The defendants’ claim that the trial referee failed to provide a hearing on the intent of the parties is, therefore, without merit.

II

The defendants next claim that the attorney state trial referee improperly recommended and the trial court improperly ordered a partition by sale without first inquiring into the extent of the actual interests of the parties in the two parcels. The defendants argue that if the trial referee had in fact inquired into the interests of the parties, he would have found that the plaintiff had only a minimal interest, thereby rendering a partition by sale improper. We disagree.

At trial, the trial referee ordered the issue of partition to be tried separately from the issue of how the proceeds of any sale, if ordered, should be distributed. Although the defendants originally objected to this bifurcation and argued that their survivorship interests barred a partition action, they specifically told the trial referee that if either of their special defenses failed to bar partition altogether, then partition by sale would be appropriate as to both pieces of property. Moreover, the fact that the trial referee tried the issue of partition separately from the issue of the distribution of the proceeds did not preclude the trial referee from inquiring into the interests of the parties with respect to the two pieces of property and how those interests, if any, would affect or be affected by partition.

A partition by sale, although a creature of statute, is an equitable action. Gaer Bros., Inc., v. Mott, 147 Conn. 411, 415, 161 A.2d 782 (1960). Section 52-500 (a) permits a court, “upon the complaint of any person interested, to order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners.” See also Borzencki v. Estate of Stakum, 195 Conn. 368, 372, 489 A.2d 341 (1985). The standard for reviewing the defendant’s claim is whether the court abused its discretion in ordering a partition by sale. See LaCroix v. LaCroix, 189 Conn. 685, 689-90, 457 A.2d 1076 (1983). In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. DiPalma v. Weisen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972).

The attorney state trial referee heard testimony from both Walker McKinney and the plaintiff concerning the parties’ respective contributions to, and present use of, the properties. From that testimony it was reasonable for the trier of fact to have found, with respect to both the Birch Hill and the Richardson properties, that it was the original intention of all the parties that each would own an equal one-third interest. Although Walker McKinney initially advanced considerably more money to purchase the properties than did the plaintiff, the parties subsequently shared the costs and mortgage payments so that the plaintiff would ultimately have contributed his one-third share. The plaintiff did in fact make mortgage payments on both properties for several years until November 1,1990, when Walker McKinney, without notifying the plaintiff, commenced paying the plaintiff’s share of the mortgage payments from his own funds. Contrary to the defendants’ contention, the trial referee could reasonably have found that the plaintiff had more than a minimal interest in both properties and could likewise reasonably have found that partition by sale would “better promote the interests of the owners.” General Statutes § 52-500 (a).

The defendants also challenge the trial court’s order of a partition by sale of both properties because, they say, it would result in an inequitable distribution of the proceeds. As previously noted, however, the issue of the appropriate distribution of the proceeds of any sale is to be considered separately from the issue of partition and is now pending in the trial court. Although it may be true that a party can obtain partition only to the extent of his interest, for the purposes of the present bifurcated appeal, it is necessary to conclude only that the testimony amply demonstrates that the trial referee reasonably found that the plaintiff had more than a minimal interest in the properties in question and did not abuse his discretion when he recommended, and the court ordered, a partition by sale.

Ill

The defendants finally claim that the trial court improperly ordered an appraisal of the Birch Hill and the Richardson properties. They argue that because the properties would ultimately be sold and the purchase price, however low, would have to be accepted by the court and the plaintiff, an appraisal was an unnecessary expense and was irrelevant. We do not agree.

General Statutes § 52-502 (a) permits the court in a partition action “to make any order necessary to protect the rights of all parties in interest and to carry the sale into effect.” We are limited in our review of the court’s order to a determination of whether the trial court, exercising its broad discretion in light of the statute and the circumstances, could legally have acted as it did act. Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972).

Contrary to the defendants’ argument, the court must ultimately approve the sale of the properties in question. Although appraisals were not required; see Varley v. Varley, 189 Conn. 490, 499, 457 A.2d 1065 (1983); the court could reasonably have concluded that an independent appraisal would furnish guidance and assistance in determining whether to approve a particular sale. We cannot say that the trial court abused its discretion in ordering an appraisal.

The judgment is affirmed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       The defendants to this action were Walker and John D. McKinney, James B. and Grosvenor Richardson, and the Norwalk Savings Society. We refer herein to the named defendants as “the defendants.”

       General Statutes § 52-495 provides in pertinent part: “partition of JOINT AND COMMON estates. Courts having jurisdiction of actions for equitable relief may, upon the complaint of any person interested, order partition of any real property held in joint tenancy, tenancy in common, coparcenary or by tenants in tail. The court may appoint a committee to partition any such property.”
      General Statutes § 52-500 provides in pertinent part: “sale of real or personal property owned by two or more persons, (a) Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners.”

       Walker McKinney also claims to have made $93,965 worth of improvements to the Birch Hill property in 1988.

       The parties disagree as to whether $21,147 of John D. McKinney’s payment was a gift or a loan to the plaintiff.

       That the partition in this case was by sale rather than by kind does not render the right to partition less available to the plaintiff. Even though partition by sale is not the preferred remedy, “[t]he statute giving the power of sale introduces . . . no new principle,-it provides only for an emergency, when a division cannot be well made, in any other way.” Richardson v. Monson, 23 Conn. 94, 97 (1854); see also Struzinski v. Struzinsky, 133 Conn. 424, 426, 52 A.2d 2 (1947) (the statutory proceeding for sale is ancillary to that for partition by physical division).

       These provisions apply to deeds that existed on June 29,1959, and those executed thereafter unless a claim to the contrary was recorded upon the land records within one year from June 29,1959. General Statutes § 14-14k.

       The following exchange occurred before the attorney state trial referee:
      “The Court: All right. Now, as of now, you are still not prepared to— concede on the issue of whether or not a partition is appropriate?
      “[Counsel for the defendants]: Well, having —
      “The Court: I just want to make sure now, so that when we start to go into the evidence, I know exactly where we stand.
      “[Counsel for the defendants]: We still claim our defense as to the effect of the right of survivorship provisions—
      “The Court: And that is the only defense that you are planning.
      “[Counsel for the defendants]: To the partition by sale, yes.
      “The Court: To the partition by sale. Pine. Okay. So, maybe we will be able to resolve that this afternoon. So that with your denial in both cases, as to paragraph three, that the plaintiffs and the defendant’s each have an undivided one-third interest in the real estate, that’s the issue that we are going to proceed with on your special defense, that denial still stands?
      “[Counsel for the defendants]: Essentially, Your Honor. Our claim is that the interests of the parties are other than one-third, one-third, one-third.
      “The Court: And the second denial that you have as to paragraph five, and that will now be admitted and an order of partition by sale is necessary because the physical division of the property is impractical and inequitable and the interest of the property owners would be promoted as a result, thereof. Except for the defense as to joint tenants, that will be admitted. If your defense is overruled as to joint tenancy, then paragraph five will be admitted and the sale would be appropriate.
      “[Counsel for the defendants]: Yes, we agreed that a partition by sale is appropriate, that it would be impractical and not in the interest of the parties to physically partition either of the two parcels.” (Emphasis added.)

       The defendants claim that partition by sale of the Birch Hill property is particularly inequitable. They do not, however, argue that partition in kind would be more appropriate than partition by sale for either of the two properties in question. Therefore, we do not explore the issue of whether the court should have compared the equities of a partition in kind to those of a partition by sale. See, e.g., Delfino v. Vealencis, 181 Conn. 533, 536, 436 A.2d 27 (1980).


author: Katz, J.

text:
    Peter Habetz, Jr., et al. v. Ken Condon
    (14461)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.
    Argued October 28
    decision released December 22, 1992

      George F. Martelon, Jr., with whom, on the brief, was Thomas B. Lynch, for the appellants (plaintiffs).

      Louis M. Pacelli, with whom was John T. Grillo, for the appellee (defendant).
   Katz, J.

The dispositive issue in this appeal is whether a home improvement contractor can recover damages from a homeowner who acted in bad faith for work performed under a contract that did not comply with General Statutes § 20-429 (a), which is part of chapter 400, General Statutes §§ 20-418 through 20-432, known as the Home Improvement Act (act). The plaintiff Peter Habetz, Jr., filed a multicount complaint against the defendant, Ken Condon, doing business as Condon Contracting, alleging breach of contract, certain statutory violations and negligence. The defendant counterclaimed to recover for the nonpayment of moneys allegedly due and owing, to which the plaintiff asserted special statutory defenses arising out of the defendant’s noncompliance with the writing requirements of the act; General Statutes §§ 20-427 and 20-429; and the notice provisions of the Home Solicitation Sales Act. General Statutes § 42-135a. After a trial to the court, judgment was rendered for the plaintiff on the breach of contract count of his complaint and for the defendant on his counterclaim, the court having found that the plaintiff had asserted his statutory defenses in bad faith. The plaintiff appealed to the Appellate Court and we transferred his appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The trial court found the following facts. In March, 1989, the plaintiff and the defendant entered into a five page written contract whereby the defendant would construct a two-story addition to the plaintiff’s home in Orange, for an agreed upon price of $103,000. The contract outlined the work to be performed and set forth a time schedule for payments based on designated stages of construction. The plaintiff operated a business that installed hot tubs and swimming pools in private homes. He owned his own company, had been engaged in this type of business for over twenty-four years and was licensed by the state of Connecticut.

In July, 1989, additional work and modifications (extras), as set forth in a two page written proposal, were agreed upon by the defendant and the plaintiff. The plaintiff, who requested that these extras be performed, never signed the proposal despite repeated requests by the defendant. The cost of that work, as itemized and set forth in the document, was $6244. The plaintiff paid $93,000 on the original contract and nothing toward the extras.

The plaintiff brought this action against the defendant in four counts: (1) breach of contract due to defective, improper and negligent work; (2) breach of the statutory requirements of the act; General Statutes § 20-429 (a); (3) violation of General Statutes §§ 42-110b and 42-110g regarding unfair trade practices; and (4) negligence resulting in the plaintiff sustaining emotional distress and financial loss.

In addition to his answer denying the plaintiff’s allegations in counts one through four, the defendant filed a counterclaim in two counts, alleging: (1) the plaintiff’s failure to pay $10,000 owed under the written, signed contract; and (2) the plaintiff’s failure to pay $6244 for the extras that the defendant had performed at the plaintiff’s request. The plaintiff asserted, inter alia, the special defenses that the writing requirements of the act; General Statutes § 20-429; and the notice provisions of the Home Solicitation Sales Act; General Statutes § 42-135 (a); had not been satisfied. In his answer, the defendant denied the statutory violations.

The trial court rendered judgment for the plaintiff on the first count of the complaint in the amount of $16,542.50, and for the defendant on both counts of the counterclaim, awarding him $10,000 on the first count and $6244 on the second. Although the court concluded that the contract did not comply with § 20-429 (a) (6),6 the court’s finding of bad faith on the part of the plaintiff caused it to conclude further that “the minor noncompliance by the defendant with § 20-429 (a) [did] not bar a recovery under the first and second counts of the counterclaim.” This appeal followed.

The plaintiff contends that because the contract failed to include the mandatory notice of cancellation provision, the contract was unenforceable and thus the trial court should not have rendered judgment for the defendant on his counterclaim despite the trial court’s finding regarding the plaintiff’s bad faith. This contention raises the issue of the validity of this court’s dicturn in Barrett Builders v. Miller, 215 Conn. 316, 328, 576 A.2d 455 (1990), and the related cases decided the same day: that a home improvement contractor, in suing for breach of a contract that violates § 20-429, can avoid the normal bar to his pursuit of such a cause of action by proving that the homeowner invoked, in bad faith, the contractor’s statutory violation as a basis for his own repudiation of the contract. A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 576 A.2d 464 (1990); Sidney v. DeVries, 215 Conn. 350, 575 A.2d 228 (1990); Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 576 A.2d 149 (1990).

The plaintiff urges us to enlarge upon the line of cases that have interpreted the act to preclude a suit by a contractor based on the contract or on the three common law principles of restitution in the absence of strict compliance with the provisions of the act. He asks that this court go further and abandon the one exception reserved in dictum in the Barrett Builders line of cases. The plaintiff maintains that a contractor cannot, in his own action to collect payment at the contract rate for contract work, excuse his noncompliance with the contractual stipulations required by the statute by proving that the homeowner has raised the contractor’s statutory violation in bad faith.

In mounting his attack on the applicability of a defense of bad faith, the plaintiff accepts the standard definition of bad faith as the absence of good faith. Buckman v. People Express, Inc., 205 Conn. 166, 171, 530 A.2d 596 (1987). Bad faith in general implies both “actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.” Black’s Law Dictionary (5th Ed. 1979). Bad faith means more than mere negligence; it involves a dishonest purpose. Funding Consultants, Inc. v. Aetna Casualty & Surety Co., 187 Conn. 637, 644, 447 A.2d 1163 (1982); Hartford National Bank & Trust Co. v. Credenza, 119 Conn. 368, 371, 177 A. 132 (1935).

In Barrett Builders v. Miller, supra, 328, A. Secondino & Son, Inc. v. LoRicco, supra, 340, Sidney v. DeVries, supra, 354, and Liljedahl Bros., Inc. v. Grigsby, supra, 350, we recognized that proof of bad faith on the part of the homeowner is an exception to what might otherwise be a harsh lesson to the home improvement contractor unable to recover due to a violation of the act. The central element giving rise to this exception is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encourage him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the act. To support the position this court took in the Barrett Builders line of cases, we need look no further than the maxim that no person may take advantage of his own wrong. Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 232, 79 S. Ct. 760, 3 L. Ed. 2d 770 (1959); Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 565, 316 A.2d 394 (1972). This deeply rooted principle has been applied in many diverse classes of cases by both law and equity courts and has frequently been employed to bar what would otherwise be inequitable reliance on statutes. See, e.g., Selzer v. Baker, 295 N.Y. 145, 65 N.E.2d 752 (1946) (doctrine’s application to preclude the finality of tax titles when warranted); 51 Am. Jur. 2d, Limitation of Actions § 431 (1970) (doctrine’s application to prevent a fraudulent or inequitable resort to the statute of limitations).

A bad faith exception is designed to prevent a party’s disavowal of previous conduct if such repudiation would not be responsive to demands of justice and good conscience. The law does not permit the exercise of a right to repudiate a contract when the exercise of such a right in bad faith would work an injustice. Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. See, e.g., Warner v. Konover, 210 Conn. 150, 154-56, 553 A.2d 1138 (1989); 3A A. Corbin, Contracts (1960) § 541, p. 97; 5 S. Williston, Contracts (3d Ed. Jaeger 1961) § 670, p. 159; R. Summers, “ ‘Good Faith’ in General Contract Law and the Sales Provisions of the Uniform Commercial Code,” 54 Va. L. Rev. 195, 234 (1968). To demand this implicit component but do nothing about its absence would be at best incongruous, and, more accurately, grossly unfair. Thus, a contractor, otherwise precluded from recovering moneys owed for his work because of a violation of the act, must be permitted to assert that the homeowner’s bad faith precludes him from safely repudiating the contract and hiding behind the act in order to bar the contractor’s recovery.

In Barrett Builders and the related cases decided the same day, this court determined that the purpose of the act would be frustrated if contractors could operate in violation of it and still obtain the restitutionary value of the services they had performed. Barrett Builders did not distinguish between the act’s various provisions, some of which may concededly be more consistent with, and integral to, the protective concerns underlying the act’s enactment. We have read the act to preclude a contractor’s recovery on the various restitutionary doctrines so as to effectuate the legislative purpose: to require that contractors comply with the act. Barrett Builders v. Miller, supra, 325. “Clearly, the legislature is entitled, in the first instance, to impose the burden of compliance with the statute on the professional, the contractor, rather than on the nonprofessional, the consumer.” Id., 326. The objective of the act is to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor. 22 S. Proc., Pt. 17, 1979 Sess., p. 5797, remarks of Senator Audrey P. Beck.

In the absence of specific legislative indication, however, we do not read the act to override the general principle embodied in the bad faith exception: that an individual should not profit from his own deceptive and unscrupulous conduct. This court never intended to advance the cause of the unscrupulous. We can only presume that the legislature had a similar intent. The question is not whether the legislature specifically carved out this bad faith exception, as the plaintiff has argued, but whether, in the absence of specific legislative indication otherwise, a doctrine founded on public policy and containing a strong strain of estoppel can prevent a misbehaving party from invoking the benefits of a statute which is absolute on its face. To deny the contractor any opportunity of recovery after he has completed his end of the bargain if he has persuaded the trier of fact that a statutory remedy is being invoked by a homeowner in bad faith would be to countenance a gross injustice and indeed to encourage its perpetuation and to assure its success.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 20-429 provides in pertinent part: “required contract PROVISIONS; ENFORCEABILITY. NEGATIVE OPTION PROVISIONS PROHIBITED. OWNER TO RECEIVE COPY. CONTRACTS CONSIDERED HOME solicitation sales, (a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor.”

       Peter Habetz, Jr.’s wife, Joyce B. Mihalko, is also a plaintiff on the complaint, which is not involved in this appeal. Habetz is the sole defendant on the counterclaim, however, and only the counterclaim is at issue in this appeal. Therefore, when we refer to the plaintiff, it is to Peter Habetz, Jr., solely.

       Although the plaintiff in his brief challenged the trial court’s factual findings regarding bad faith, he abandoned that claim at oral argument before this court. We therefore consider that claim waived. Rostain v. Rostain, 213 Conn. 686, 688 n.3, 569 A.2d 1126 (1990).

       General Statutes § 20-429 (e) provides that each home improvement contract is considered a home solicitation sale pursuant to chapter 740 of the General Statutes and is subject to its requirements. Chapter 740 is the Home Solicitation Sales Act. General Statutes § 42-134a et seq. The requirements for the cancellation provision in such a contract are contained in General Statutes § 42-135a, which provides for a right to cancel a home solicitation sale transaction without penalty or obligation within three business days from entering into the transaction.

       The plaintiff also raised as a special defense that $93,000 had already been paid. The defendant’s admission of this fact in his reply constitutes a judicial admission. DelVecchio v. DelVecehio, 146 Conn. 188, 191, 148 A.2d 554 (1959); see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.7.1.

       The court also rendered judgment in favor of the defendant on the three remaining counts of the plaintiffs complaint and no issue has been raised on appeal by either party regarding the plaintiffs complaint.

       In response to another issue regarding the validity of the contract, as the trial court concluded, the act does not expressly require the signature of all of the owners of the real estate where the improvement is made. General Statutes § 20-419 (6) defines “owner” as “a person who owns or resides in a private residence and includes an agent thereof.” General Statutes § 20-429 (a) states that a home improvement contract is not valid or enforceable against an owner unless it meets the requirement of the statute for a signature by the owner. The clear implication of the act is that a home improvement contract that meets all of the statutory requirements of § 20-429 (a) is enforceable against any property owner or resident of a private residence or their agent who has signed the contract. The act only precludes enforcement of an otherwise valid and enforceable contract against a co-owner or some other resident of the property who does not sign a contract meeting the statutory requirements.

       The defendant had alleged bad faith in only the second count of the counterclaim. The court, however, as fact finder, determined that the evidence of bad faith permeated the dealings between the parties and thus related to work performed pursuant to the original contract as well as to the list of extras. The plaintiff does not claim that the trial court’s ruling went beyond the permissible scope of the pleadings.

       In addressing cases brought thus far under the act, this court has collectively referred to theories of quasi contract, quantum meruit and unjust enrichment as quasi contract claims of restitution. Barrett Builders v. Miller, 215 Conn. 316, 317 n.1, 576 A.2d 455 (1990).

       We interpret the dictum in Barrett Builders v. Miller, 215 Conn. 316, 328, 576 A.2d 455 (1990), to mean that a homeowner cannot in bad faith invoke the contractor’s statutory violation as a basis for his own repudiation of the contract. Whether proof of bad faith in some other manner on the part of the homeowner will also allow a contractor who has failed to comply with the requirements of the act to recover is a question left for another day.

       It is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact. Warner v. Konover, 210 Conn. 150, 156, 553 A.2d 1138 (1989). As stated earlier, any claims regarding the trial court’s finding of bad faith on the part of the homeowner have been waived.

       It is interesting to note that the legislature has chosen not to revise the act following this court’s interpretation of it in 1990. Despite the majority’s recognition, in Barret Builders v. Miller, 215 Conn. 316, 326, 576 A.2d 455 (1990), of the bad faith exception, and an invitation to address certain issues, as well as the “harsh results” as labelled by the dissent, no legislative action has been taken. The absence of any such legislative reaction to the Barrett Builders line of cases is noteworthy. Where this court interprets a statute and the legislature fails to take action to change that interpretation, it raises the presumption that the legislature has acquiesced in that interpretation. Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984 Rev.) § 45.10. We take the failure of the legislature to amend General Statutes § 20-427 et seq. as acquiescence in Barrett Builders v. Miller, supra. “The legislature is presumed to be aware of the interpretation that courts have placed on existing legislation and of the implications that we will draw from its inaction.” Scheyd v. Bezrucik, 205 Conn. 495, 506, 535 A.2d 793 (1987).