author: Dupont, C. J.

text:
    Judith Langan v. John Weeks
    (12846)
    Dupont, C. J., and Schaller and Hennessy, Js.
    Argued November 28, 1994
    decision released March 7, 1995

      Judith Solomon, with whom, on the brief, were Kimberly Newman and Lucy Porter, for the appellant (plaintiff).

      Rochelle Homelson, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Donald M. Longley, assistant attorney general, for the appellee (state).
   Dupont, C. J.

The sole issue of this appeal is whether the plaintiff, in exchange for receiving public assistance from the state of Connecticut, assigned to the state her right to current and future support payments from the father of her child, as well as to amounts already owed to her by him, but not yet paid at the time of her application, for periods of time when she was not receiving benefits. We conclude that the trial court was correct in determining that the assignment was valid.

The defendant, John Weeks, was adjudicated the father of the plaintiffs child in 1986 and ordered to make support payments to the plaintiff in the amount of $50 per week. The plaintiff and the child received aid to families with dependent children (AFDC) during several periods following that adjudication.

In April, 1991, the child support enforcement bureau filed a contempt action against the defendant for failure to pay child support. At the contempt hearing before a family support magistrate, the support enforcement bureau argued that the amount of the defendant’s arrearage to which the state was entitled was the total of all unreimbursed public assistance payments made to the plaintiff by the state since 1986, regardless of whether the arrearage owed to the plaintiff by the defendant was payable for a period of time when the state was not making public assistance payments to the plaintiff. In other words, the state claimed that the plaintiff had assigned to the state all of her support rights from the defendant, past and current, pursuant to General Statutes (Rev. to 1993) § 17-82b (now § 17b-77). The plaintiff argued to the contrary. In order to resolve this issue, at the request of the state and the plaintiff, a special hearing was held by the magistrate.

The state presented evidence to the magistrate, through both testimony and exhibits, of the federal and state statutory and regulatory requirements mandating the assignment of support rights by a recipient as a condition for eligibility for AFDC benefits. The magistrate also admitted into evidence copies of documents completed at the time of the plaintiffs applications for AFDC assistance. These showed that the plaintiff had received AFDC benefits for various periods between 1986 and 1991 and that a total of $17,245.71 in public assistance benefits had been paid on behalf of the plaintiff and her child, which was a sum greater than the amount of the arrearage due the plaintiff by the defendant.

The state’s evidence also showed that each time the plaintiff applied for AFDC benefits, she signed an application form that contained the language: “I assign to the State all the support rights which I have against any person in behalf of any family member for whom I am applying or receiving assistance.” (Emphasis added.) The plaintiff also signed, each time she applied for assistance, a “Notice to AFDC Recipients Regarding Cooperation in Obtaining Support,” which contains the language, “you must turn over all child support payments you receive . . . if you fail to comply with this requirement, you will become ineligible and be removed from the assistance unit . . . .” (Emphasis added.) Finally, the state submitted a document, signed by the plaintiff, entitled “Department Responsibilities for Explaining the Following,” listing areas that “intake workers” must discuss with AFDC applicants. Child support assignment is not listed as one of these mandatory areas, but there is language on the form pertaining to support assignment that states: “I understand . . . I have assigned all my support rights to the State. This means that if I receive child support directly, I will turn it over to the state.” (Emphasis added.) Thus, there were three separate documents that made the plaintiff aware of an assignment of child support rights to the state.

The plaintiff last applied for AFDC in September, 1991, when she lost her job. A child support arrearage of $3043.62 was owed to her at the time, representing amounts the defendant had not paid since the plaintiff had stopped receiving AFDC in 1990. In January, 1992, three months after she had applied for assistance, the plaintiff began receiving unemployment compensation and again stopped receiving AFDC.

The plaintiff testified at the hearing before the magistrate that each time she applied for AFDC benefits, she had read the assignment language, but did not question it because she thought it applied only to current support amounts. She further testified that she had had the same caseworker on at least three different occasions when she applied for assistance and that she had never been informed that the assignment of child support would extend to money previously owed to her as well as to her right to ongoing support.* *** She also testified that on a prior occasion in 1990, the department had allowed her to keep a lump sum child support payment representing an arrearage that had accrued while she was not receiving assistance, even though she was on assistance at the time she received the payment and had reported it to the department. The state presented evidence, however, that in 1989 the plaintiff reported a lump sum payment of past due support as required by one of the forms she signed and that the department of income maintenance required her to repay that money to the state.

The plaintiff testified that had she understood that she was giving up her right to the $3043.62 arrearage in support payments, accrued while she was not receiving state support, she would not have applied for state assistance, but would have instead sought help from her fiance and family.

The magistrate asked the plaintiffs witness, Patrick Hearn, supervisor of the Torrington department of income maintenance, how he would respond to someone who specifically inquired whether an arrearage owed to her would be affected if she applied for assistance. He answered that he had never been asked such a question, and that he would have to consult with support enforcement services before he would be able to answer such a question.

The magistrate found two arrearage amounts, one for sums owed by the defendant to the plaintiff for periods when the plaintiff was not receiving state aid, and the other for sums owed by the defendant to the plaintiff for periods when she was receiving state aid. The magistrate held that the plaintiff was entitled to an arrearage of $3488.62, which included the $3043.62 arrearage that had accumulated prior to the plaintiffs September, 1991 AFDC application, during a period when the plaintiff was not receiving assistance, and that the state was entitled to $4738.94, the amount owed by the defendant to the plaintiff from September, 1991, to May 27,1992, when she was receiving aid.

The state appealed from the magistrate’s findings to the Superior Court, where oral arguments, but no further evidence or testimony, were heard. The trial court found that the assignment had not been conspicuously placed on the application and that the plaintiffs caseworker had given no explanation about the assignment of the arrearage. The court also found that the plaintiff did receive notice on the application itself, although it was not extensive, and that the plaintiff was given the opportunity to ask questions but chose not to do so. The court concluded that (1) the assignment of support rights under General Statutes (Rev. to 1993) § 17-82b (now § 17b-77) arises by operation of law, and (2) the notice and explanation provisions of § 17-82b are directory, rather than mandatory. The court reversed the magistrate’s decision and rendered judgment for the state for $8227.56.

On appeal, the plaintiff claims that (1) the assignment of child support arrears was invalid because notice of the assignment was not conspicuously placed on the AFDC application or explained as required by General Statutes (Rev. to 1993) § 17-82b (now § 17b-77), and her constitutional rights to due process were violated, (2) the notice provision in § 17-82b is mandatory rather than directory, (3) the state was estopped from claiming an assignment of the arrearage, (4) the state was not precluded from enacting legislation implementing Title IV-D of the Social Security Act to provide broader protection to the state’s citizens than required by federal law, and (5) the trial court incorrectly calculated the amount of the arrearage that was owed to the state.

The first two issues for which review is sought are based on a claim that the plaintiff had a statutory right, provided by § 17-82b, to be informed of the condition for receiving benefits, rather than a claim that the state could not, consistent with federal law, require an assignment of all support amounts due her at the time she applied for benefits. The third issue is based on the plaintiff’s claim that even if the state would otherwise have a valid assignment, it was estopped from asserting it, and the fourth on a claim that the Connecticut legislature could grant an applicant an absolute right to conspicuous notice and to an explanation of the assignment, even if such notice and explanation is not required by federal law.

The trial court’s conclusions, that the plaintiff’s assignment of all her rights to support, including the defendant’s child support arrearages, occurred by operation of law, and that the notice provisions of § 17-82b are directory rather than mandatory, are legal conclusions and are, therefore, subject to our plenary review. State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994). “Because interpretation of a statute presents a question of law, we decide the question independently of the [trial] court’s decision.” In re Paternity of Lachelle A.C., 180 Wis. 2d 708, 713, 510 N.W.2d 718 (1993).

I

Validity of Assignment

The plaintiffs brief makes it clear that she agrees that Title IV of the Social Security Act, 42 U.S.C. § 602 (a) (26), requires an applicant to assign to the state any rights for child support that she had at the time she executed the assignment, which had accrued by then, and that the state was entitled to properly assigned arrearages if the arrearage amounts did not exceed the total amount of assistance paid to the recipient. The plaintiffs argument, however, is that General Statutes (Rev. to 1993) § 17-82b (now § 17b-77), the implementing statute in Connecticut, requires that its provisions as to notice be strictly followed in order for an assignment to be valid. If the notice is not conspicuously placed on the application and explained, the plaintiff claims that the assignment is void even if it arose by operation of law. We agree with the trial court that because the state must require the assignment of any and all support rights as a prerequisite to the receipt of AFDC benefits in order to be in compliance with federal regulations, the assignment takes effect by the operation of law by virtue of the application for AFDC benefits.

Title IV of the Social Security Act, 42 U.S.C. § 602 (a), outlines the requirements for states to participate in child support enforcement and family aid programs and imposes specific requirements on states in their implementation of the federal laws and regulations. Among these is the requirement that a state’s plan for aid and services to needy families “must . . . (26) provide that, as a condition of eligibility for aid, each applicant or recipient will be required — (A) to assign to the state any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid, and (ii) which have accrued at the time such assignment is executed . . . .’’(Emphasis added.) 42 U.S.C. § 602 (a).

The implementing regulations allow the states the option of effecting an applicant’s assignment of support rights either by operation of law or by execution of an assignment agreement. A state plan for child support must provide that “[a]s a condition of eligibility for assistance, each applicant for or recipient of AFDC shall assign to the state any right to support from any other person as such applicant or recipient may have”; 45 C.F.R. § 232.11 (a) (1); or that “[a]n assignment by operation of state law which is substantially identical to the requirements of paragraph (a) (1) may be utilized in lieu of the assignment described in that paragraph.” 45 C.F.R. § 232.11 (b).

Federal regulations farther provide that AFDC applicants must be informed about their rights and obligations: “Applicants shall be informed about the eligibility requirements and their rights and obligations under that program. Under this requirement individuals are given information in written form, and orally as appropriate, about coverage, conditions of eligibility, scope of the program, and related services available, and the rights and responsibilities of applicants for and recipients of assistance. . . .” 45 C.F.R. § 206.10 (a) (2) (i). The regulations also state that upon discontinuance of AFDC benefits, the assignment automatically terminates “except with respect to the amount of any unpaid support obligation that has accrued under such assignment up to the amount of assistance paid.” 45 C.F.R. § 302.51 (f); see also 42 U.S.C. § 657 (c).

States must pass their own enabling legislation to effect this federal scheme. In order to obtain matching federal funds, a state must operate its child support program in conformity with the Social Security Act. State ex rel. Southwell v. Chamberland, 361 N.W.2d 814, 818 (Minn. 1985); see also Lavertue V. Niman, 196 Conn. 403, 406 n.5, 493 A.2d 213 (1985). General Statutes § 17-82b provides that “[b]y such application [for AFDC benefits], the applicant shall assign to the commissioner the right of support, present, past and future . . . .” The statute also states that notice of assignment should “be conspicuously placed on said application and shall be explained to the applicant at the time of application.” Committee deliberations on Public Acts 1980, No. 80-55, the act that added the language “by such application” and the notice provision, indicate that the purpose of the bill was to make it clear that the assignment arises by operation of state law upon the completion of an application for AFDC benefits, so that individual assignments from each AFDC recipient would not be necessary. Conn. Joint Standing Committee Hearings, Human Services, Pt. 1, 1980 Sess., pp. 27-35. The legislative history is devoid of the legislative purpose for the notice provision. The stated purpose of the amendment was to “eliminate the requirement of individual assignment of rights to support.” Raised Committee Bill No. 5120 (Feb. 1980), p. 2.

This court has, in another context, noted that “an assignment of support rights [becomes] effective upon operation of state law when the [applicant] sign[s] her application for public assistance.” Sierra v. Lozada, 31 Conn. App. 114, 117, 623 A.2d 1045 (1993). Other cases involving General Statutes (Rev. to 1993) § 17-82b (now § 17b-77) have assumed, without explicitly stating, that the statute provides for assignment of support payments to the state by operation of law. “ ‘If the paternity action [under § 46b-160 (a)] is successful and results in an award of child support, the moneys so awarded are paid directly to the state because the mother of a child on public assistance must assign her rights of support to the state.’ ” Durso v. Misiorek, 200 Conn. 656, 661, 512 A.2d 917 (1986); DiMauro v. Natalino, 11 Conn. App. 548, 549 n.1, 528 A.2d 851 (1987). These cases are different from those arising pursuant to General Statutes (Rev. to 1993) § 17-83e (now § 17b-93), which does not give the state an automatic assignment of proceeds due to the beneficiary by a third party, but instead requires a separate action to enforce the state’s right to reimbursement. Thibeault v. White, 168 Conn. 112, 117, 358 A.2d 358 (1975); see also Danbury Savings & Loan Assn. v. Delaney, 207 Conn. 743, 753, 542 A.2d 1153 (1988), cert. denied sub nom. Heintz v. United States, 488 U.S. 1004, 109 S. Ct. 783, 102 L. Ed. 2d 774 (1989).

The legislative history of § 17-82b clearly indicates an intention to have the assignment arise by operation of law upon completion of the application and to eradicate the need for each applicant to sign a separate agreement. The question we must decide, however, is whether the notice portion of the statute prevents the assignment from occurring if notice is not given in exact accordance with the statute. Phrased differently, the question is whether any notice can be statutorily mandated if the assignment occurs by operation of law. This issue is one of first impression in Connecticut. There is also a sparsity of case law in other jurisdictions, and neither we nor the parties found any case in any jurisdiction directly on point.

“Operation of law is a generic term or phrase commonly used to express the manner in which rights (and/or liabilities) attach to a person by the mere application to the particular transaction of the established rules of law, without the act or cooperation of that person.” (Internal quotation marks omitted.) All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 201, 567 A.2d 1156 (1989).

The legislature, thus, may enact legislation that causes an involuntary change in the position of litigants, such as providing for the effects of a merger or consolidation of stock corporations; id., 201; or for deeming the attorney general a party to a paternity proceeding even though he or she does not appear or participate in court proceedings. Durso v. Misiorek, supra, 200 Conn. 663. This is so because the legislature may determine by operation of the statute itself that certain liabilities or rights will attach upon the occurrence of certain events. The change is effected automatically without any voluntary action of the persons or entities affected. Id.

Changes in the rights of parties that can occur by operation of the passage of laws, however, are fettered by both the federal and state constitutions. Substantive and procedural due process rights cannot be trampled in the name of operation of law.

The guarantee of substantive due process requires that a law be reasonable, rather than arbitrary or capricious, and that its operation has a real and substantial relation to the object to be obtained. All Brand Importers, Inc. v. Dept. of Liquor Control, supra, 213 Conn. 205. Here, the purpose of the law requiring the assignment to the state of the support due is to conform to federal law, and is, therefore, rational, with a substantial connection between the purpose and the effect of the law.

The guarantee of procedural due process requires that persons whose rights are to be affected have a right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Id., 208. “Procedural due process emphasizes the right to participate in decision-making — a right to be heard, rather than a right to a particular outcome.” New England Savings Bank v. Lopez, 227 Conn. 270, 282, 630 A.2d 1010 (1993). Moreover, “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Lee v. Board of Education, supra, 181 Conn. 73. Finally, due process must be evaluated in context. Cassella v. Civil Service Commission, 4 Conn. App. 359, 372, 494 A.2d 909 (1985), aff'd, 202 Conn. 28, 519 A.2d 67 (1987). “Public assistance is not an outright gift which the recipient has a right to retain free and clear of any obligation of reimbursement. The benefit is burdened with the obligation to reimburse . . . .” Commissioner of Finance & Control v. Whitfield, 35 Conn. Sup. 622, 624, 403 A.2d 709 (1978).

The thrust of the plaintiff’s argument that she was denied due process is a claim of denial of procedural due process. The procedural due process required depends on the particular situation. “[Resolution of the issue whether the administrative procedures provided . . . are constitutionally sufficient requires analysis of the governmental and private interests that are affected.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). There are three factors involved in that analysis, which are: whether the plaintiff was deprived of fundamental fairness by the alleged failure of the state to comply with the notice provisions of General Statutes (Rev. to 1993) § 17-82b, the extent of the governmental interest, including its financial interest, as well as administrative burdens, and the risk that the procedure used will deprive the plaintiff of a right. Id., 335; Barnes v. Healey, 980 F.2d 572, 577 (9th Cir. 1992); Lavertue v. Niman, supra, 196 Conn. 407-408. Here, the plaintiff has a financial interest in the retention of the defendant’s payments, while at the same time receiving the benefit of a reduction in the amount of moneys she would otherwise have to repay the state for the dollar amount of AFDC payments previously made. The state has a financial interest in being reimbursed for support previously paid, and an interest in obtaining federal funds, which it cannot receive without compliance with federal law. In addition, “[t]he legislature and the courts recognize that public assistance grants to those in need are a worthy necessity. No less necessary is the availability of funds to these programs and it is for this purpose that the legislature has enacted such provisions as those under consideration. ... In view of the severe shortage of public assistance funds and the ever mounting demands on them, there is certainly a bona fide governmental interest in recouping such funds from persons who subsequently receive funds from other sources.” (Citations omitted; internal quotation marks omitted.) Thibeault v. White, supra, 168 Conn. 118.

A similar issue has been addressed by the United States Supreme Court, which held that: “It would be quite strange ... if, by virtue of an offer to provide benefits to needy families through the entirely voluntary AFDC program, Congress or the States were deemed to have taken . . . property. [The required assignment of support rights] does not even arguably take anyone’s property.” Bowen v. Gilliard, 483 U.S. 587, 605, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987). The plaintiff, as the custodial parent, did not have to apply for the AFDC benefits, and had no vested rights in the receipt of AFDC benefits. The assignment of support payments to the state is, therefore, not a taking of private property. Id.

In order to be entitled to a notice and hearing, a person must have suffered, by state action, a loss of either a property or a liberty interest. All Brand Importers, Inc. v. Dept. of Liquor Control, supra, 213 Conn. 209. Due process requires that before the government can deprive a person of life, liberty, or property, the thoroughness of the procedure through which the deprivation is effected must be balanced against the gravity of the potential loss and the interests at stake, and the procedure involved must be appropriate to the nature of the interest at stake. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S. Ct. 652, 94 L. Ed. 865 (1950). The federal government “calls the shots” as to what is necessary to administer AFDC and has control over what the state legislation may require. The plaintiff has no cognizable federal due process right to require that her assignment be separate and individual, rather than by operation of law. See All Brand Importers, Inc. v. Dept. of Liquor Control, supra, 209-11.

Connecticut chose to provide for an assignment by operation of law rather than by execution of a separate assignment for each individual AFDC beneficiary. The recipient is, therefore, “ ‘deemed to have made an assignment to the State . . . of the right to any child support owed ... up to the amount of public assistance paid.' ” State ex rel. Crews v. Parker, 319 N.C. 354, 354 S.E.2d 501 (1987). A state is under no “duty to give persons subject to the state and federal statutes and regulations direct notice of their content and application . . . .” Iverson v. Schulte, 367 N.W.2d 570, 572 (Minn. App. 1985).

The question, however, is not solely whether a duty of notice of the assignment by operation of law was required, but whether an otherwise valid assignment is negated if a particular kind of notice as provided by the same statute is not given. The answer to this question involves an interpretation of whether the word “shall” in General Statutes (Rev. to 1993) § 17-82b is mandatory or directory.

The general rule is that the word “shall” is mandatory, not directory. Jones v. Civil Service Commission, 175 Conn. 504, 509-10, 400 A.2d 721 (1978). The fact that a provision uses the word “shall” does not, however, always indicate that the clause is mandatory. Yanni v. DelPonte, 31 Conn. App. 350, 353, 624 A.2d 1175 (1993). Moreover, statutes must be construed so as not to thwart their intended purposes. Narel v. Liburdi, 185 Conn. 562, 571, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928, 102 S. Ct. 1974, 72 L. Ed. 2d 443 (1982). The result should be a rational and sensible one that bears directly on the legislative objective. Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985).

The basic test for whether a particular provision is mandatory is whether the mode of action relates to a matter of substance or convenience. Tramontano v. Dilieto, 192 Conn. 426, 472 A.2d 768 (1984); Yanni v. DelPonte, supra, 31 Conn. App. 354. Language is deemed to be mandatory when the mode of action is of the essence of the purpose to be accomplished by the statute. LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990). Language is deemed to be directory, on the other hand, if it prescribes what shall be done but the purpose of the statute is such that the intent of the legislature is not to invalidate the statute if the party fails to comply, such as where the language is written in affirmative terms containing no penalty for noncompliance, or where the language purports to establish procedure. Ghent v. Planning Commission, 219 Conn. 511, 516 n.4, 594 A.2d 5 (1991); Caron v. Inland Wetlands & Watercourses Commission, 25 Conn. App. 61, 66, 592 A.2d 964 (1991), aff'd, 222 Conn. 269, 610 A.2d 584 (1992); see also Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985). To determine whether a particular provision is mandatory or directory, the court must examine the statute’s language, the legislative history, and the statutory context. Engle v. Personnel Appeal Board, 175 Conn. 127, 129-30, 394 A.2d 731 (1978).

For example, in Ghent v. Planning Commission, supra, 219 Conn. 515, our Supreme Court held that the absence of a transcript was not fatal to subject matter jurisdiction over the appeal because the requirement of a transcript was directory in nature, despite the fact that the applicable statute, General Statutes § 8-8 (c), used the word “shall.” The court held that the language established procedure, and did not contain a penalty for noncompliance. Id. Similarly, LeConche v. Elligers, supra, 215 Conn. 701, dealt with the issue of whether the absence of a good faith certificate from a medical malpractice statute deprived the court of subject matter jurisdiction. The court held that the purpose of the applicable statute, General Statutes (Rev. to 1987) § 52-190a, was not compromised by the failure to supply the certificate. Id.

Here, it would defeat the purpose of § 17-82b if we were to construe the “shall” in that statute to be mandatory rather than directory. The purpose of the statute is to effect the assignment of the AFDC applicants’ right to support by operation of law. Although the legislature in 1980 added the language providing for conspicuous placement of notice of the assignment of support rights and explanation of the assignment, that language was not the primary reason for the legislative act. Finally, § 17-82b contains no penalty for noncompliance. See Caron v. Inland Wetlands & Watercourses Commission, supra, 25 Conn. App. 61.

We conclude that the notice provisions are directory and that failure to follow them precisely does not invalidate the assignment. The plaintiff was not deprived of either substantive or procedural due process.

II

Estoppel

The plaintiff also argues that even if the assignment did arise by operation of law, and even if there are no due process problems with that assignment, the state is estopped from claiming the arrearage because the caseworker failed to make it clear that past due support payments were included in the assignment, and because, on one occasion in the past, the plaintiff had been allowed to keep a lump sum payment from the defendant. We disagree.

Estoppel generally may not be invoked against the government or a public agency functioning in its governmental capacity. The exception to this rule is when “the party against whom estoppel is claimed [does] something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party . . . change[s] its position in reliance on those facts .... [E]stoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency.” (Citations omitted; internal quotation marks omitted.) Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987).

The facts of this case do not support the plaintiffs argument that the state is estopped from claiming past due arrearages as part of the plaintiff’s assignment. First, the state did not induce her to apply for AFDC benefits. Second, she has shown no special circumstances that would make it highly inequitable or oppressive not to estop the state from collecting the arrearages. She claims that special circumstances exist in that she will lose a substantial arrearage and that she has encountered problems with the office of support enforcement since the trial court’s ruling. The plaintiff assigned all of her rights to support at the time she applied for AFDC, and cannot claim that she will lose anything. Further, she does not detail in her brief nor is there anything in the record to indicate precisely what problems she has encountered with the office of support enforcement. Blanket statements do not constitute special circumstances for purposes of estoppel. Moreover, even if the plaintiff had demonstrated special circumstances, and although she was at one time misinformed that she could keep a lump sum payment of a past arrearage, the fact remains that she was not induced to apply for benefits. The principles of estoppel do not apply here.

Ill

The State May Enact Legislation Providing Broader Protection to Its Citizens than that Provided by Federal Law

In raising this issue, the plaintiff appears to be arguing that because the federal regulations allow state legislatures to effect the assignment of support rights either in writing or by operation of law, and because Connecticut has chosen to effect the assignment by law but also makes a provision for notice in its implementing statute, § 17-82b, this court must construe § 17-82b as requiring an oral explanation of the assignment to AFDC applicants and conspicuous notice of the assignment. In making this argument, the plaintiff reiterates many of the arguments raised elsewhere in her brief.

We disagree, for the reasons discussed in part I, that the notice provisions of General Statutes (Rev. to 1993) § 17-82b (now § 17b-77) are mandatory. The state may give greater rights to its citizens, pursuant to its constitution than would be granted under the federal constitution. That proposition does not apply, however, here. Our interpretation of General Statutes (Rev. to 1993) § 17-82b (now § 17b-77), namely, that its notice provisions are directory, does not deprive the plaintiff of a constitutional right, and accomplishes its purposes.

The judgment is reversed only as to the calculation of the award and the case is remanded with direction to render judgment for the state in the amount of $7782.56.

In this opinion the other judges concurred.

       The word “plaintiff” as used in this decision refers to the appellant, Judith Langan. The appellee, the state of Connecticut, is also technically a party plaintiff pursuant to General Statutes (Rev. to 1993) § 46b-160 (a), which provides in pertinent part: “Proceedings to establish paternity of a child born or conceived out of lawful wedlock . . . shall be instituted by a verified petition of the mother or expectant mother .... In cases involving public assistance recipients the petition shall also be served upon the attorney general who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action. ...”

       This bureau was created within the department of social services and works cooperatively with the judicial department, law enforcement officials, and the attorney general. General Statutes § 17b-179 (formerly § 17-578).

       Family support magistrates have jurisdiction to entertain applications for contempt and to make findings of contempt, as well as to imprison for contempt. General Statutes § 4b-231 (m) (7); Perry v. Perry, 222 Conn. 799, 611 A.2d 400 (1992).

       General Statutes (Rev. to 1993) § 17-82b (now § 17b-77) provides in pertinent part: “Application for aid under this chapter shall be made to the commissioner of income maintenance. ... By such application, the applicant shall assign to the commissioner the right of support, present, past, and future, due all persons seeking assistance and shall assist the commissioner in pursuing support obligations from the absent parent. Notice of such assignment shall be conspicuously placed on said application and shall be explained to the applicant at the time of application.”

       The plaintiff testified that each time she applied for AFDC the following occurred: “When we got down to the child support section . . . [the caseworker] read it off to me and I asked her what it meant, and she said ... if he paid child support . . . that I would . . . receive $50 of it for the month extra, not including what I would get as a grant, and that anything over that I would not receive and it would go towards the state’s . . . paying me for benefits.”

       The plaintiff testified: “I called . . . [the caseworker] and I was told that he was going to be giving me a lump sum payment of $810. And that was my money when I was not on state and I was working and struggling and paying a babysitter and, you know, doing it all on my own, and that money was owed to me. And she gave it to me. . . . She didn’t penalize me for it, she didn’t take away my supplement. I got to keep the money. And I did receive a state check.”

       This amount includes an arrearage of $445 accrued subsequent to the termination of the plaintiff’s AFDC benefits.

       Additionally, in a footnote to the memorandum of decision, the court states: “This court does not condone the fact that the assignment provision on the application was not conspicuous and that the intake worker did not fully explain the extent of the assignment to the plaintiff. However, an assistant attorney general has assured this court that application forms and procedures are being modified so as to comply with the notice provisions of General Statutes (Rev. to 1993) § 17-82b. The department should review its intake procedure to incorporate discussion about the assignment and what it means to the recipient.”

       This amount includes the arrearage of $445 owed to the plaintiff for a period of time subsequent to her last period of receiving assistance. See footnote 7. The state noted at oral argument before the trial court that it made no claim to this $445 arrearage.

       The state agrees that the calculation was incorrect and makes no claim to the $445 that was owed by the defendant to the plaintiff for a time period after the plaintiffs APDC benefits had terminated. We, therefore, do not address this issue.

       Bruce Morrison, then executive director of the New Haven legal assistance association, commented at the committee hearing that due process questions might be raised if the assignment arose by operation of law, without notice to the applicant. Conn. Joint Standing Committee Hearings, supra, p. 34.

       General Statutes (Rev. to 1993) § 17-83e (a) (now § 17b-93) provides in pertinent part that “the parents of an [AFDC] beneficiary shall be liable to repay ... to the state the full amount of any such aid paid to or in behalf of . . . his child or children. The state of Connecticut shall have a lien against property of any kind or interest in any property, estate or claim of any kind of the parents of an [AFDC] beneficiary, in addition and not in substitution of its claim, for amounts owing under any order for support of any court or any family support magistrate, including any arrearage under such order, provided household goods and other personal property identified in section 52-352b and real property pursuant to section 17-82c, as long as such property is used as a home for the beneficiary, shall be exempt from such lien.”

       The parties cited related cases, but none were applicable. For example, the United States Bankruptcy Court, in the district of Connecticut, has held an assignment of support benefits under § 17-82b invalid because there was no written application for AFDC benefits. In re Green, 36 B.R. 398, 400 (1984). That case, however, is not applicable to the present case because the bankruptcy court limited its holding — “m the context of [bankruptcy] litigation, there can be no assignment in Connecticut, as required by § 602 (a) (26) of the Social Security Act ... in the absence of a written application for assistance” (emphasis added) — and because it relates to the absence of an application. Id. Without an application, there cannot, of course, be an assignment by operation of law. The case of Nelson v. Adult & Family Services, 42 Or. App. 865, 601 P.2d 899 (1979), is also not applicable because it involves an assignment agreement, rather than an application that provides for an assignment by operation of state law.

       While the plaintiff refers only to the Connecticut constitution in her brief, the legal argument she presents is grounded in United States Supreme Court cases. Because both the fourteenth amendment of the United States constitution and article first, § 8, of the Connecticut constitution contain the same prohibition against the deprivation of “life, liberty, or property, without the due process of law,” Connecticut courts give the same effect to both clauses. Lee v. Board of Education, 181 Conn. 69, 71, 72, 434 A.2d 333 (1980). Our analysis, therefore, encompasses both provisions.

       We have noted that the plaintiff had notice of the assignment. We need not, in our plenary review, reach the issue of whether the trial court improperly determined that the notice was inconspicuous because we have concluded that the notice provisions of the statute are directory.

       On a different occasion, however, the plaintiff notified the state that she had received a lump sum payment for past due support and she repayed that money to the state. It is noted that successful actions brought pursuant to General Statutes § 46b-160 require the payment of support directly to the state. Durso v. Misiorek, supra, 200 Conn. 661. There is no explanation in the record of the present case as to why arrearages were not paid directly to the state.


source: Caselaw Access Project

author: Hennessy, J.

license: Public Domain

text:
    Cecelia Gasparri et al. v. Department of Transportation
    (12585)
    Foti, Landau and Hennessy, Js.
    Argued January 17
    decision released March 7, 1995

      Robert E. Ghent, for the appellants (plaintiffs).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Hennessy, J.

This is an appeal by the plaintiffs, Cecelia Gasparri and Eugene Gasparri, from the trial court’s judgment reassessing damages against the defendant department of transportation in a condemnation action. The plaintiffs claim that the trial court (1) applied an improper standard to arrive at its valuation of the property, and (2) reached a determination of damages that was not supported by the evidence. We affirm the judgment of the trial court.

In 1992, the plaintiffs were the owners of a parcel of land located on a state highway known as Harper’s Ferry Road in Waterbury. On July 15,1992, the defendant obtained this property by eminent domain and assessed the damages owing to the plaintiffs at $164,000. The plaintiffs appealed to the Superior Court for a reassessment of damages, and the matter was referred to a state trial referee. Following a hearing, at which testimony was given by Eugene Gasparri, by an expert retained by the plaintiffs, and by an expert retained by the defendant, and after the trial referee viewed the premises in question, the trial referee reassessed the fair market value of the property at $185,000, and ordered the defendant to pay the plaintiffs $21,000 in addition to the $164,000 previously assessed.

In arriving at its independent valuation of the property, the trial referee found that the plaintiffs’ expert’s $250,000 valuation for the subject property was based on commercial use, and that the defendant’s expert’s $164,000 valuation was based on residential use. The trial referee found that the highest and best use of the property was commercial, and that a zoning change to allow such use was probable, but that the property was zoned residential at the time of the taking. Taking these factors into consideration, the trial referee reassessed the value of the property at $185,000. It is from this assessment of damages that the plaintiffs appeal.

I

The plaintiffs first claim that the trial referee applied an improper standard in arriving at the valuation of the property. The plaintiffs contend that having found that the highest and best use of the property was commercial, the trial referee was required to use this as the basis for assessing damages. We disagree.

The plaintiffs are entitled to receive just compensation when their land is taken by eminent domain. South Farms Associates Ltd. Partnership v. Burns, 35 Conn. App. 9, 15, 644 A.2d 940, cert. denied, 231 Conn. 912, 648 A.2d 157 (1994). “ ‘The amount that constitutes just compensation is the market value of the condemned property when put to its highest and best use at the time of the taking.! ” (Emphasis added.) Id., quoting Green v. Burns, 221 Conn. 736, 745, 607 A.2d 402 (1992). “The probability of a zone change that could affect the price may properly be considered in the determination of the fair market value. Transportation Plaza Associates v. Powers, 203 Conn. 364, 375, 525 A.2d 68 (1987). ‘[T]he true issue is, [however,] not the value of the property for the use which would be permitted if a change in zone was made, but the value of the property as zoned at the time of the taking as it is affected by the probability of a change. Budney v. Ives, [156 Conn. 83, 89, 239 A.2d 482 (1968)].’ Greene v. Burns, supra, [745].” South Farms Associates Ltd. Partnership v. Burns, supra, 15.

Although the plaintiffs are correct in stating that the trial referee found the highest and best use of the property to be commercial, they fail to accept that the highest and best use cannot be the starting point for the assessment of damages if the property is not zoned so as to allow that use. “ ‘No matter how probable an amendment may seem, an element of uncertainty remains and has its impact upon the selling price. At most a buyer would pay a premium for that probability in addition to what the property is worth under the restrictions of the existing ordinance.’ ” Budney v. Ives, supra, 156 Conn. 89, quoting State v. Gorga, 26 N.J. 113, 117, 138 A.2d 833 (1958).

Here, the trial referee determined that the property was zoned residential, and that there was a probability that it would be rezoned commercial. To reflect the probability of the rezoning for commercial use in the valuation, the trial referee assessed the fair market value of the property to be greater than the defendant’s valuation, which was based solely on the current residential zoning. In doing so, the trial referee properly applied the controlling law.

II

The plaintiffs also claim that there was no evidence to support the trial referee’s conclusion that the proper valuation of the subject property was $185,000. The plaintiffs contend that because their expert valued the property at $250,000 and because the defendant’s expert valued the property at $164,000, the trial referee was limited to choosing one of these two figures as the measure of damages. We disagree.

“In determination of the fair market value, the trial court in a condemnation appeal hears the matter de novo; DeLucia v. Burns, 11 Conn. App. 439, 443, 527 A.2d 1234, cert. denied, 205 Conn. 803, 531 A.2d 935 (1987); and makes an independent determination of value and fair compensation in light of all the circumstances, the evidence, the trial court’s general knowledge and the court’s viewing of the premises. Minicucci v. Commissioner of Transportation, 211 Conn. 382, 388, 559 A.2d 216 (1989).” South Farms Associates Ltd. Partnership v. Burns, supra, 35 Conn. App. 17. “[N]o one method of valuation is controlling in the trier’s determination of just compensation; Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 37-38, 428 A.2d 789 (1980); the trial court need not necessarily specify a valuation method used. Nor is the court required to set forth specific factors that were considered in arriving at that determination. The trial court’s decision is reviewable only if it is apparent that it misapplied, overlooked, or gave a wrong or improper effect to any test or consideration that it was that court’s duty to regard. Greenfield Development Co. v. Wood, 172 Conn. 446, 451, 374 A.2d 1084 (1977).” South Farms Associates Ltd. Partnership v. Burns, supra, 18.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). In this case, the trial referee viewed the premises, heard all the evidence, studied the appraisal reports, and made an independent determination of value. The plaintiffs fail to show that the trial referee misapplied, overlooked, or gave a wrong or improper effect to any relevant factors. We conclude that the trial referee’s valuation of the property was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.


author: O’Connell, J.

text:
    Gerald Rowe v. Plastic Design, Inc., et al.
    (12949)
    Dupont, C. J., and O’Connell and Lavery, Js.
    Argued December 9, 1994
    decision released March 7, 1995

      Loida John-Nicholson, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough and Robin L. Wilson, assistant attorneys general, for the appellant (defendant second injury fund).

      David R. Bull, for the appellees (defendant Manchester Molding Company et al.).
   O’Connell, J.

This is an appeal by the defendant second injury fund (fund) from the decision of the workers’ compensation review board (board) ordering the fund to accept liability for the plaintiff’s injury. The fund claims that the board improperly ordered the liability transfer because it was not supported by a finding of a preexisting permanent physical impairment. We agree and reverse the board’s decision.

The facts leading to this appeal began on March 21, 1985, when the plaintiff, Gerald Rowe, suffered the first of three back injuries. At that time, he was employed by the defendant Monsanto Company (Monsanto). The defendant CIGNA provided Monsanto’s workers’ compensation insurance and made voluntary payments to the plaintiff. John Goetcheus, an orthopedic surgeon, treated the plaintiff and concluded, at the end of the treatment, that the plaintiff had a completely normal neurological examination and that he was asymptomatic. The plaintiff returned to full-time work with no restriction.

On March 17, 1986, while working for the defendant Manchester Molding Company (Manchester Molding) the plaintiff sustained a second compensable back injury. The defendant St. Paul Insurance Company (St. Paul) insured Manchester Molding’s workers’ compensation liability and paid the plaintiff indemnity benefits, including 10 percent permanent partial disability of the low back.

The plaintiff suffered a third back injury on April 11, 1988, while employed by the defendant Plastic Design, Inc. (Plastic Design), which was insured by the defendant F.B. Hall of Connecticut, Inc. (F.B. Hall). On December 2,1991, the workers’ compensation commissioner for the eighth district found Plastic Design and F.B. Hall were the risk bearers for the April 11, 1988 injury and ordered them to pay total disability benefits plus benefits for 5 percent permanent partial disability of the low back.

The commissioner also ordered Manchester Molding, through St. Paul, to pay the plaintiff benefits for an additional 10 percent permanent partial disability of the low back, making the total permanent partial disability 25 percent. At the same time, the commissioner dismissed all claims against Monsanto and CIGNA for the March 21, 1985 injury.

Prior to the commissioner’s December 2, 1991 finding and award, the fund had agreed to accept transfer of liability for the 1988 claim. In his award, the commissioner ordered the fund to accept liability for the 1986 (Manchester Molding) injury as well. The board affirmed the commissioner’s decision, and it is from that decision that the fund appeals to this court.

Historically, an employer was liable for workers’ compensation benefits for the full extent of an injured employee’s disability, even if the disability was due in part to a preexisting condition or disability. Levanti v. Dow Chemical Co., 218 Conn. 9, 18, 587 A.2d 1023 (1991). This rule obviously made it difficult for an employee who had been injured on the job to obtain future employment. Employers were understandably reluctant to take on financial responsibility for injuries or disabilities suffered before the employee came to work for them.

To avoid discrimination against employees with disabilities, while providing them with the benefits of workers’ compensation, nearly every state has enacted some form of second injury legislation. Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 355-56, 349 A.2d 847 (1974). Connecticut’s solution to the preexisting disability problem was the remedial Second Injury Fund statute. General Statutes (Rev. to 1985) § 31-349. Under this statute, “[i]f an employee who has ... [a] permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone,” the employer’s obligation is limited to the first 104 weeks of the employee’s disability. (Emphasis added.) All liability for compensation after the first 104 weeks shifts to the fund.

The statute unambiguously establishes a preexisting permanent physical impairment condition precedent to considering fund liability. In the present case, the commissioner expressly found that “at the time the claimant left the employ of Monsanto he had no permanent partial disability of his back.” For purposes of this appeal, we interpret “permanent partial disability” and “permanent physical impairment” as synonymous.

The board does not retry the facts and, with exceptions not relevant here, is bound by the commissioner’s findings. Muldoon v. Homestead Insulation Co., 231 Conn. 469, 475-76, 650 A.2d 1240 (1994). The commissioner’s fact-finding function bears the same relation to the board that a trial court’s fact-finding function bears to an appellate tribunal. Id., 477. Accordingly, in the present case, the board was bound by the commissioner’s finding that the plaintiff was not suffering from a permanent partial physical impairment when he left Monsanto. Thus, the 1985 injury at Monsanto could not be the basis of the fund’s liability. Simply stated, there cannot be a second injury until there is a first injury, and the 1985 Monsanto injury does not meet the statutory requirement of a first injury because it did not result in a permanent physical impairment.

The board recognized that the 1985 Monsanto injury had not caused a permanent partial impairment to the plaintiff. It phrased the issue before it as, “where the claimant’s prior work related injury resulted in no permanent partial disability, but where the second injury was materially and substantially worse as a result of the earlier injury, [can liability be transferred to the fund].” (Emphasis added.)

The board considered the second part of the statute and reasoned that if the second injury was materially and substantially worse as a result of the first injury then, a fortiori, the first injury must have been a permanent partial impairment. We do not agree.

The fallacy in the board’s reasoning is that it renders meaningless the statutory clause referring to an employee “who has ... [a] permanent physical impairment.” It is a canon of statutory construction that “[statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.” (Internal quotation marks omitted.) 84 Century Ltd. Partnership v. Board of Tax Review, 207 Conn. 250, 263, 541 A.2d 478 (1988).

The board’s reliance on Hernandez v. Gerber Group, 222 Conn. 78, 86, 608 A.2d 87 (1992), and Levanti v. Dow Chemical Co., supra, 218 Conn. 17, is misplaced. Neither case focused on the permanence of preexisting injuries. There was no question that the preexisting physical impairment in Hernandez was permanent; the commissioner had approved a 40 percent permanent partial disability of the heart. Hernandez v. Gerber Group, supra, 80. The issue in that case was the determination of liability for a leg injury sustained while the employee was being treated for his heart impairment.

Levanti concerned, inter alia, the effect of two prior noncompensable back injuries on liability for a subsequent compensable back injury. The commissioner determined that each of the three injuries had caused a 5 percent impairment of the employee’s back, for an overall 15 percent back impairment. Levanti v. Dow Chemical Co., supra, 218 Conn. 16. That finding was uncontested, and the permanence of the preexisting back injuries was never in question.

In the present case, in contrast with Hernandez and Levanti, the issue is whether liability transfer was supported by the requisite preexisting permanent physical impairment. Because the commissioner found that there was no such permanent impairment prior to the 1986 injury, the order transferring liability for that injury cannot stand.

The decision of the compensation review board is reversed and the case is remanded with direction to reverse the commissioner’s transfer of liability to the defendant second injury fund for the plaintiff’s March 17, 1986 injury.

In this opinion the other judges concurred.

       The fund formulated its issues as follows:
      “I. Did the compensation review board err in granting the employer Manchester Molding Company’s claim ordering a transfer of liability to the Second Injury Fund pursuant to Conn. Gen. Stat. § 31-349 (a) when the commissioner did not make a finding of a pre-existing permanent physical impairment?
      “II. Whether this claim qualifies for a § 31-349. (a) transfer when the underlying findings of fact do not support a finding of a pre-existing permanent physical impairment?”

       General Statutes (Rev. to 1985) § 31-349, at the time of the claimed second injury, provided in relevant part: “The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury . . . . If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care( as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. ...” (Emphasis added.)


author: Heiman, J.

text:
    William H. Honan v. Mathew H. Greene et al.
    (13295)
    Landau, Heiman and Spear, Js.
    Argued December 12, 1994
    decision released March 7, 1995

      Nancy Burton, for the appellant (plaintiff).

      Thomas J. Londregan, with whom was Ralph J. Monaco, for the appellee (named defendant).
   Heiman, J.

The plaintiff appeals from the judgment of the trial court rendered in favor of the defendants after the granting of a motion for summary judgment. On appeal, the plaintiff claims that the trial court improperly rendered summary judgment because (1) genuine issues of material fact remained in dispute and (2) the defendants were not entitled to relief as a matter of law because the plaintiff is an aggrieved party as required by General Statutes § 45a-186. We agree that the plaintiff is an aggrieved party and reverse the judgment of the trial court.

The following facts are relevant to this appeal. On November 23, 1992, the plaintiff filed an application with the Probate Court seeking the appointment of an involuntary conservator for his father-in-law, the defendant Milton Burton. The plaintiff alleged that Burton suffered from a personality disorder that resulted in uncontrolled rage and disruptive behavior that endangered the safety of the plaintiff and his three children. The Probate Court denied the application for failure to meet the burden of proof required by General Statutes § 45a-650 (c), which mandates proof by clear and convincing evidence that the respondent is unable to manage his affairs or care for himself.

On February 26,1993, the plaintiff filed a motion to appeal the decision of the Probate Court. The defendant Mathew H. Greene, judge of probate for the district of New London, denied the plaintiffs motion, finding that the plaintiff was not aggrieved by the denial of his application for the appointment of a conservator.* **

On March 15, 1993, the plaintiff brought an action seeking a writ of mandamus to compel Greene to allow his appeal. Greene filed a special defense alleging that the plaintiff was not entitled to a writ of mandamus because he was not aggrieved by the denial of his petition for appointment of a conservator and was not, therefore, entitled to appeal from that denial. Greene then moved for summary judgment claiming that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law.

On January 26, 1994, the trial court rendered summary judgment in favor of the defendants. The trial court found that the plaintiff was not aggrieved by the Probate Court’s refusal to appoint a conservator for Burton because such an appointment is designed to benefit the proposed ward rather than the applicant. The trial court therefore determined that the plaintiff was not entitled to a writ of mandamus. This appeal followed.

I

The plaintiff first claims that the trial court improperly found that there were no genuine issues of material fact. We disagree.

“Summary judgment is a method of resolving litigation when the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Rudewicz v. Gagne, 22 Conn. App. 285, 286, 582 A.2d 463 (1990), quoting Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316-17, 477 A.2d 1005 (1984); see Practice Book § 384. The moving party bears the burden of establishing the nonexistence of any material fact; Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 664, 646 A.2d 143 (1994); and the trial court must view the evidence before it in the light most favorable to the nonmoving party. Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993); see also Dinnis v. Roberts, 35 Conn. App. 253, 260, 644 A.2d 971, cert. denied, 231 Conn. 924, 648 A.2d 162 (1994). “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990).

Summary judgment may be defeated only when the facts alleged to be in dispute are material to the case. “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) NaMor, Inc. v. Roballey, 24 Conn. App. 215, 217, 587 A.2d 427 (1991); Hammer v. Lumberman’s Mutual Casualty Co., supra, 214 Conn. 578.

Viewing the facts in the light most favorable to the plaintiff, we cannot say that the trial court improperly determined that no genuine issue of material fact existed. The facts alleged by the plaintiff to be in dispute are not material to the case and could not, therefore, defeat Greene’s motion for summary judgment.

The plaintiff points to various allegations in his complaint that were denied by Greene. Each of these denied allegations concerns the actions and capability of Burton. The plaintiff, however, misapprehends the nature of the issue to be decided by the trial court. The case before the trial court did not concern the capability of Burton to care for himself or manage his own affairs, but rather concerned an application for a writ of mandamus. The only issue to be decided by the trial court was whether the plaintiff was an aggrieved party-entitled to appeal a decision of a Probate Court. See General Statutes § 45a-186. The trial court was not required to review the merits of the Probate Court’s decision on the plaintiff’s application for appointment of a conservator in "any way. See Kucej v. Kucej, 34 Conn. App. 579, 581, 642 A.2d 81 (1994) (question of aggrievement does not involve inquiry into merits of case). Whether Burton was capable is inapposite to the claim before the trial court and does not constitute a material fact sufficient to defeat the defendant’s motion for summary judgment. Hammer v. Lumberman’s Mutual Casualty Co., supra, 214 Conn. 578; see NaMor, Inc. v. Roballey, supra, 24 Conn. App. 217.

The trial court properly determined that no genuine issues of material fact were disputed by the parties and that the trial court could decide the issue before it as a matter of law.

II

Our inquiry, however, does not end with our resolution regarding the nonexistence of material facts because summary judgment may be granted only where the moving party is entitled to judgment as a matter of law. Rudewicz v. Gagne, supra, 22 Conn. App. 286. The plaintiff asserts that he was aggrieved by the Probate Court’s denial of his application for the appointment of a conservator for Burton, and is thus entitled to a writ of mandamus compelling the Probate Court to allow his appeal from that decision. He, therefore, claims that the defendants were not entitled to judgment as a matter of law and that the trial court improperly found otherwise. We agree.

“[MJandamus is an extraordinary remedy. It is designed to enforce a plain positive duty. The writ will issue only when the person against whom it is directed is under a clear legal obligation to perform the act compelled and the party seeking the writ has a clear legal right to the performance.” (Internal quotation marks omitted.) Gelinas v. West Hartford, 225 Conn. 575, 586, 626 A.2d 259 (1993), quoting McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984); Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 197 (1985). It, therefore, cannot be invoked to enforce a discretionary act. Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990). “Mandamus neither gives nor defines rights which one does not already have. ... It acts upon the request of one who has a complete and immediate legal right; it cannot and does not act upon a doubtful and contested right.” Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 533-34, 450 A.2d 369 (1982). The plaintiff in an action for a writ of mandamus bears the burden of proving the “deprivation of a ‘clear legal right’ ” that warrants the imposition of such an extraordinary remedy. Light v. Board of Education, 170 Conn. 35, 38, 364 A.2d 229 (1975).

A Probate Court does not have the discretion to deny review of its decision by one who has met the requirements of § 45a-186. See Haylett v. Commission on Human Rights & Opportunities, 207 Conn. 547, 550, 541 A.2d 494 (1988). A party aggrieved by a decision of a Probate Court, who timely moves for permission to appeal and gives the appropriate security for costs, may obtain a writ of mandamus to compel the allowanee of that appeal if permission is denied. VanBurkirk v. Knierim, 169 Conn. 382, 387, 362 A.2d 1334 (1975) (addressing appeals from probate pursuant to General Statutes [Rev. to 1972] § 45-288, predecessor to § 45a-186).

The central issue to be determined by the trial court in deciding whether the plaintiff was entitled to a writ of mandamus concerned the question of whether the plaintiff had satisfied the requirements of § 45a-186, specifically, whether he was aggrieved by the decision of the Probate Court. We hold that the plaintiff was statutorily aggrieved by the decision of the Probate Court and that the trial court improperly found otherwise.

“Aggrievement as a concept of standing is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court. . . . Aggrievement falls within two categories, classical and statutory.” (Citations omitted; internal quotation marks omitted.) Kucej v. Kucej, supra, 34 Conn. App. 581-82. “[T]he existence of [classical] aggrievement depends upon whether there is a possibility, as distinguished from a certainty, that some legally protected interest [of the appellant] . . . has been adversely affected. . . . Moreover, it must appear that the interest which is adversely affected is a direct interest in the subject matter of the decree from which the appeal is taken.” (Citations omitted; internal quotation marks omitted.) Appeal from Probate of Bencivenga, 30 Conn. App. 334, 336-37, 620 A.2d 195 (1993), aff'd, 228 Conn. 439, 636 A.2d 832 (1994); Erisoty’s Appeal from Probate, 216 Conn. 514, 520, 582 A.2d 760 (1990). “Statutory aggrievement exists by legislative fiat which grants an appellant standing by virtue of particular legislation, rather than by judicial analysis of the particular facts of the case.” (Internal quotation marks omitted.) Kucej v. Kucej, supra, 582.

General Statutes § 45a-648 provides that “any person” may apply to the Probate Court for the appointment of a conservator. “Because the right to file an application . . . was expressly given to any . . . person, it naturally follows that [a] person who filed an application but was denied [the relief requested] . . . should be afforded an opportunity to appeal from the Probate Court’s decision.” Buchholz’s Appeal from Probate, 9 Conn. App. 413, 423, 519 A.2d 615 (1987) (finding statutory aggrievement where statute provides that “any adult person” may apply for appointment of guardian). By the express terms of the statute, the plaintiff was given a right to apply for a conservator; in order for that right to be adequately protected, the plaintiff must be permitted to appeal the decision of the Probate Court. Kucej v. Kucej, supra, 34 Conn. App. 582.

Thus, the plaintiff, as a person entitled to file an application for the appointment of a conservator pursuant to § 45a-648, is statutorily aggrieved upon the denial of his application and entitled to appeal pursuant to § 45a-186.

Because we have determined that the plaintiff was statutorily aggrieved by the decision of the Probate Court, we need not address the issue of classical aggrievement.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants in this action are Milton Burton, the plaintiff’s father-in-law, and Mathew H. Greene, judge of probate for the district of New London.

       General Statutes § 45a-186 provides in pertinent part: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court for the judicial district in which such court of probate is held .... [Sjuch person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the superior court or a bond substantially in accordance with the bond provided for appeals to the supreme court. . . .”

       General Statutes § 45a-650 (c) provides: “If the court finds by clear and convincing evidence that the respondent is incapable of managing his or her affairs then the court shall appoint a conservator of his or her estate. If the court finds by clear and convincing evidence that the respondent is incapable of caring for himself or herself, then the court shall appoint a conservator of his or her person.”

       See footnote 2.

       Burton also alleged that the plaintiff was not aggrieved, but did not separately move for summary judgment. The memorandum of decision and the judgment file reflect judgment in favor of both defendants.

       The plaintiff points to the following allegations in his complaint seeking a writ of mandamus that were denied by Greene:
      Paragraph seven: “Defendant Milton Burton is incapable of caring for himself and managinghis affairs within the meaning of [General Statutes] § 45a-650 (c).”
      Paragraph twenty-six: “Defendant Milton Burton’s incapability of caring for himself and managing his affairs within the meaning of [General Statutes] § 45a-650 (c) has manifested itself and continues to manifest itself in conduct maliciously intended to harass and cause grave physical and emotional injury to the Plaintiff and his family. Defendant Milton Burton has no fear for the consequences of his conduct and therefore, unrestrained and uncontrolled, he poses a grave risk to the health, safety and welfare of the Plaintiff and his family, including his three minor children.”
      Paragraph thirty-one: “As parent of his three minor children, the Plaintiff is required by law to protect his children from harm. The Defendant Milton Burton, through his depraved indifference to the health, safety and welfare of the Plaintiffs children, and in a manner intended to cause them permanent physical and emotional harm, has maliciously and wilfully inflicted such harm. The Plaintiff is entitled by law to seek the protection afforded by [General Statutes] § 45a-644 et seq. Thus, he is legally entitled to appeal from a decision denying him such protection.”
      The plaintiff recognizes that paragraph thirty-one includes legal conclusions the denial of which would not defeat a motion for summary judgment. The plaintiff claims, however, that the denial of the factual allegations in that paragraph, as well as the other paragraphs of the complaint set out previously, constitute genuine issues of material fact sufficient to defeat the defendant’s motion for summary judgment.

       At oral argument, the plaintiff claimed that he had brought this action in his representative capacity as the father of three minor children. He, therefore, asserted that this court should address the issue of whether the children were aggrieved by the decision of the Probate Court. This claim was not raised before the trial court and the issue of whether the children were aggrieved was never addressed by the trial court in its memorandum of decision on the named defendant’s motion for summary judgment. “Practice Book § 4185 provides that this court is not bound to consider a claim that was not distinctly raised at trial.” Berry v. Loiseau, 223 Conn. 786, 828, 614 A.2d 414 (1992). We, therefore, decline to review this claim.

       Neither party raised as an issue the question of whether the plaintiffs motion to appeal was timely filed within the thirty days provided by General Statutes § 45a-187 (a). Nor were there any claims that the plaintiff failed to give security for costs as required by § 45a-186. The only issue before the trial court on the named defendant’s motion for summary judgment was whether the plaintiff was aggrieved by the decision of the Probate Court so that a writ of mandamus was proper to compel the issuance of permission.to appeal.


author: Spear, J.

text:
    Tori L. McKee v. Joanne B. Erikson
    (12730)
    Lavery, Schaller and Spear, Js.
    Argued November 8, 1994
    decision released March 7, 1995

      B. Paul Kaplan, for the appellant (defendant).

      Martin M. Rutchik, with whom was Sharon Lee Gibbs, for the appellee (plaintiff).

      Frank A. Bailey and Joram Hirsch filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Spear, J.

The defendant appeals from the judgment of the trial court that set aside the jury’s verdict for the defendant and ordered a new trial. The defendant claims that the trial court improperly set aside the verdict because (1) he did not disobey the court’s order in his closing argument with respect to the unreasonable speed of the plaintiff’s vehicle and such argument had a sufficient basis in the evidence, and (2) the defendant’s comments during closing argument were, under the circumstances, not so prejudicial as to deprive the plaintiff of a fair trial. We affirm the judgment of the trial court.

The following facts and claims of the parties are necessary for the resolution of this appeal. On April 10, 1988, vehicles operated by the plaintiff and the defendant collided at the intersection of Route 164 and a one-way two lane service road in Griswold. The defendant was traveling south on the service road and had a stop sign at the intersection. The plaintiff was traveling west on Route 164 and had no traffic control sign or signal. After stopping at the stop sign, the defendant entered the intersection to cross Route 164, and the collision occurred. A witness who was traveling behind the defendant’s vehicle testified that the plaintiff’s vehicle was moving “rather fast” and was traveling faster than the speed limit of thirty-five miles per hour. The plaintiff alleged that the collision was due to the negligence of the defendant by, inter alia, failing to stop at the stop sign and failing to yield the right-of-way. The defendant alleged that the plaintiff was traveling at an unreasonable and excessive rate of speed under all of the circumstances and that the plaintiff in fact caused the accident and injuries through her own negligence. The plaintiffs vehicle left forty-four feet of skid marks on the roadway, but there was no expert testimony that extrapolated the speed of the plaintiffs vehicle from the length of the skid marks. The plaintiff presented medical evidence in support of her claim that she was injured as a result of the collision.

During closing argument, the defendant’s attorney argued to the jury that the plaintiff was “suit happy” and was “looking for a hand out.” He asked the jury, as people who had to “earn” their “wages,” to “send a message” to “stop this type of conduct.” He urged the jury not to reward the plaintiff “so that we won’t have this type of activity.”

The jury returned a verdict for the defendant. The plaintiff filed a motion to set aside the verdict, which was granted by the trial court and this appeal ensued.

Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. Labatt v. Grunewald, 182 Conn. 236, 240, 438 A.2d 85 (1980). “Where, as in this case, the trial court disagrees with the verdict of the jury and there is an appeal . . . we review the action of the judge in setting the verdict aside rather than that of the jury in rendering it. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion.” (Citations omitted; internal quotation marks omitted.) Lee v. Lee, 171 Conn. 1, 2-3, 368 A.2d 11 (1976); see also Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988).

The court’s action in setting aside a verdict is entitled to great weight because the trial judge can sense the atmosphere of a trial and “can apprehend far better than this court, limited to a printed record, what factors, if any, could have improperly influenced the jury.” Fronczek v. Della Bitta-Bassola, Inc., 165 Conn. 102, 104, 328 A.2d 680 (1973). “Every reasonable presumption should be indulged in favor of the correctness of the trial court’s decision to set aside the verdict because a trial court is in a better position than an appellate court to determine whether a jury’s verdict was improperly influenced.” Caciopoli v. Acampora, 30 Conn. App. 327, 330, 620 A.2d 191 (1993); Brooks v. Singer, 147 Conn. 719, 720, 158 A.2d 745 (1960).

I

The defendant first claims that he did not disobey the court’s order with respect to testimony concerning the speed of the plaintiff’s vehicle and, in any event, his argument as to the vehicle’s speed had a sufficient basis in the evidence.

The trial court, in its memorandum of decision, found that the defense attorney persisted in “improper questioning and remarks concerning [the speed of the plaintiff’s vehicle] after the court had directly ordered him to terminate this type of examination.” The court found that the only evidence with respect to speed was the eyewitness’ testimony that the plaintiff’s vehicle “was moving rather fast” and that the witness “felt” that the plaintiff was going faster than thirty-five miles an hour, and the plaintiff’s testimony that her speed was no more than thirty-five miles per hour, the posted speed limit. The trial court stated: “Since there was no expert testimony regarding speed, it was improper argument for counsel to tell the jury that they could determine speed on their own from skid marks and damage to vehicles. The comments of counsel regarding speed were flagrantly prejudicial to the plaintiff.” The court stated in its memorandum of decision, with respect to the issue of the vehicle’s speed: “Furthermore, after a recess that followed defense counsel’s final argument, in the presence of the jury, he asked the court to instruct the jury that they should consider skid marks and the condition of the vehicles after the collision as evidence of speed.”

We turn first to the court’s statement that the defendant’s request for a jury instruction was made in the presence of the jury. The defendant asserts that the transcript of the proceedings has been corrected to show that in fact that request for a jury instruction allowing the jury to consider skid marks and the condition of the vehicles as evidence of speed was made outside the presence of the jury. We accept the corrected transcript because the trial court granted the motion to correct the transcript to reflect the absence of the jury. We are, nevertheless, unpersuaded that that factual misstatement by the trial court, standing alone, invalidates the court’s action in setting aside the verdict, especially in light of the trial court’s statement that “any one” of the claimed instances of misconduct would “require the court to set aside the verdict.”

The defendant mounts a two-pronged attack on the court’s findings with respect to the issue of the vehicle’s speed. First, he asserts that defense counsel did not persist in improper questioning or remarks in derogation of the court’s rulings. Second, he asserts that the court’s rulings regarding speed and expert testimony were legally incorrect. The excerpts from closing argument that the defendant printed in his brief rebuts his first claim. After the plaintiff’s attorney objected to defense counsel’s argument with respect to the speed of the plaintiffs vehicle because there was “no testimony here that the impact to these cars and the damage demonstrated the speed in excess of thirty-five,” the court stated, “That is correct.” The defense attorney then stated: “The jury has been shown repeatedly there’s forty-four feet of skid marks. I said the testimony of Mr. Michaud was over thirty-five miles an hour.” After a brief colloquy between plaintiff’s counsel and defense counsel, the court ruled: “Objection sustained. There has been no evidence by an expert accident reconstructionist as to speed based on skid marks and damage to vehicles. So objection sustained. Do not make that argument.” Almost immediately thereafter, the defense counsel continued: “Thank you, Your Honor. There is forty-four feet of skid marks. You can consider these things which are normal common sense. Forty-four feet of skid marks before the impact. That’s the evidence.” This excerpt, printed by the defendant in support of his first contention, clearly shows that he did persist in arguing the skid mark evidence to the jury in derogation of the court’s order. Because we conclude that the trial court did not abuse its discretion in setting aside the verdict because of the improper argument of defense counsel, it is not necessary to review the defendant’s claim that he did not persist in improperly questioning witnesses as to speed.

With respect to his second contention, the defendant cites no authority for the proposition that a party may disregard a court’s ruling and instructions as to evidence because he thinks that those rulings are incorrect. It is not necessary for us to determine whether in fact those rulings were incorrect because the trial court’s memorandum of decision stated that the defendant’s disregard of the court’s order was part of the basis for setting aside the verdict. It is axiomatic that parties may not disregard a trial court’s rulings because they disagree with those rulings. Rather, the parties must abide by the trial court’s rulings and preserve those issues for appellate review. To allow a party to disregard the rulings of the trial court that it believes are legally incorrect would invite chaos, undermine the authority and ability of the trial court to conduct trials in an orderly fashion, and would undermine the ability of an appellate court to review the trial court’s action. The trial court did not abuse its discretion in basing its decision, in part, on the defendant’s argument regarding the speed of the plaintiff’s vehicle.

II

The defendant also claims that counsel’s comments during closing argument were, under the circumstances, not so prejudicial as to deprive the plaintiff of a fair trial.

It is undisputed that during closing argument counsel for the defendant said that the plaintiff was “suit happy” and was looking for a “hand out,” that the jury should “send a message to the public by not granting or rewarding dollars to this plaintiff so that we won’t have this type of activity.” “We say this type of lawsuit must stop.” “We say this type of conduct must stop.” “All of you have wages. You have to earn them. Please do not award her any damages.”

These comments in closing argument must be viewed in light of the lack of any evidence that the plaintiff’s claim was fraudulent, that she was a person who had brought many lawsuits or that she was looking for a “hand out.” These comments plus the statement that the jurors had to “earn” their wages must also be viewed in light of the evidence before the jury that the plaintiff was a recipient of state assistance. It is difficult to imagine how the defense argument could be construed as anything other than an appeal to the jury to decide the case based on passion or prejudice, especially in view of the continuing public discourse over the cost of public assistance and the amount and type of litigation in our courts. It is well settled that the parties to a jury trial have a constitutional right to have the jury decide the issues between them. Young v. Data Switch Corp., 231 Conn. 95, 101, 646 A.2d 852 (1994); Donahue v. State, 27 Conn. App. 135, 140, 604 A.2d 1331 (1992). It is equally well settled that appeals to passion and prejudice have no place in our jury system. See American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 774, 607 A.2d 418 (1992); A-G Foods, Inc. v. Pepperidge Farms, Inc., 216 Conn. 200, 206-207, 579 A.2d 69 (1990); Bryar v. Wilson, 152 Conn. 162, 164-65, 204 A.2d 831 (1964); Creem v. Cicero, 12 Conn. App. 607, 610, 533 A.2d 234 (1987).

We conclude that the trial court did not abuse its discretion in setting aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Schaller, J.

text:
    James S. Peters II v. Clarence Pearl et al.
    (13547)
    Heiman, Schaller and Hennessy, Js.
    Argued December 8, 1994
    decision released March 7, 1995

      Daniel K. Lamont, for the appellants (defendants).

      Pamela S. Bacharach, with whom, on the brief, was Maria C. Moniek, legal intern, for the appellee (plaintiff).
   Schaller, J.

The defendants appeal from the judgment of the trial court ordering them to pay the plaintiff damages based on findings of trespass, conversion and unjust enrichment by the defendants. The defendants claim that the trial court improperly (1) construed the description of the property in the deed by which the plaintiff took title to the parcel in question, (2) found that proof of record title satisfied the plaintiffs burden of proof in light of the pleadings, and (3) failed to credit the testimony of the plaintiffs immediate predecessors in title. We affirm the judgment of the trial court.

The trial court found the following pertinent facts. On December 4, 1986, the plaintiff acquired a parcel of land on Hickory Lane in Mansfield. The property abuts land owned by the defendants. The plaintiff’s land is rural, wooded, and is located on an abandoned unpaved road. The assessor’s map indicates that the parcel contains approximately twenty-two acres. The plaintiff paid taxes on the land as it was shown on the assessor’s map. He walked the property several times a year.

In 1992, the plaintiff hired Towne Engineering, Inc., to prepare a survey of the land. The surveyor, James Kasierski, searched the title to the plaintiff’s property as well as the title to the defendants’ property. He determined that the plaintiff had record title to the parcel of land in question. The plaintiff’s property as shown in Kasierski’s survey is consistent with the property shown on the assessor’s map. The defendants, who operated a dairy farm with pasture land adjacent to the plaintiffs land, entered onto the plaintiffs land sporadically over the years. Members of the defendants’ family occasionally rode horses on the land and went on it to obtain princess pine for Christmas decorations. Prior to the early 1980s, the defendant, Clarence Pearl, occasionally cut trees on the property for fence posts. The plaintiff’s land was also used regularly by hikers, bird-watchers and hunters. The defendants never attempted to permit or prohibit that use. Although the defendants believed that they owned the land, the use by the defendants and their predecessors in title was not open, adverse, or exclusive and no ouster of a predecessor in title to the plaintiff ever occurred. See Ruick v. Twarkins, 171 Conn. 149, 155, 367 A.2d 1380 (1976).

During the latter part of 1991 and early 1992, the defendants entered onto the plaintiff’s land without permission for the purpose of logging trees. They did so by mistake, believing they owned the land from which the trees were removed. In the process, however, they cut and removed some 300 trees for the purpose of sale. They received approximately $15,000 to $20,000 for the wood. The value of the trees cut and removed is $19,175.42.

The plaintiff brought an action in four counts alleging trespass by the defendants onto his property, conversion of trees on the property, unjust enrichment, and treble damages. The defendants filed a special defense alleging, pursuant to General Statutes § 47-21, that a portion of the plaintiff’s property had been acquired from a grantor who had been ousted of possession. The trial court found that the plaintiff was the owner and in possession of the parcel of land described in the deed by which he took title as that parcel is shown in the Kasierski survey. The court found that the plaintiff established his causes of action for trespass, conversion and unjust enrichment and awarded damages of $19,175.42. The trial court rejected the claim for treble damages and further concluded that the defendants failed to establish the allegations of their special defense. The defendants appeal from this judgment.

We have carefully reviewed the entire record, briefs, oral argument and the trial court’s well reasoned memorandum of decision. We are satisfied that the trial court correctly rendered judgment for the plaintiff and that the judgment should be affirmed. Although much of the evidence was disputed, it is axiomatic that this court cannot retry the facts or pass on the credibility of witnesses. State v. Speers, 17 Conn. App. 587, 592, 554 A.2d 769, cert. denied, 211 Conn. 808, 559 A.2d 1142, cert. denied, 493 U.S. 851, 110 S. Ct. 150, 107 L. Ed. 2d 108, cert. denied sub nom. George v. Connecticut, 493 U.S. 893, 110 S. Ct. 241, 107 L. Ed. 2d 192 (1989). The claims raised on appeal attack the court’s factual findings. The defendants have failed to demonstrate that the trial court’s findings were clearly erroneous or that its decision was otherwise improper as a matter of law. Practice Book § 4061; see also U.S. Fidelity & Guaranty Co. v. K.J. Enterprises, Inc., 19 Conn. App. 806, 807, 563 A.2d 1386, cert. denied, 212 Conn. 818, 565 A.2d 538 (1989), cert. denied, 493 U.S. 1088, 110 S. Ct. 1155, 107 L. Ed. 2d 1058 (1990); Starr Enterprise v. Hanna, 33 Conn. App. 924, 925, 635 A.2d 889 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.