text:
    CITICORP MORTGAGE, INC. v. JAMES E. CONANT ET AL.
    (AC 18442)
    Lavery, Schaller and Dupont, Js.
    Argued April 29
    officially released August 17, 1999

      Andrew B. Nevas, for the appellants (named defendant et al.).

      Robert J. Piscitelli, for the appellee (plaintiff).
   Opinion

LAVERY, J.

In this appeal from a judgment of foreclosure, the sole claim of the defendants James E. Conant and Rita Conant is that the trial court improperly denied their application for protection from foreclosure (application), pursuant to General Statutes §§ 49-31d through 49-3 lj. We affirm the judgment of the trial court.

The trial court found the following facts with respect to the defendants’ application. On September 24, 1985, the defendants signed an adjustable rate note in the original principal amount of $389,000, which note was secured by a mortgage deed on their home at 36 Indian Valley Road, Weston. On the day of the application hearing, the defendants owed the plaintiff, Citicorp Mortgage, Inc., $385,325.33, not including escrow advances for real estate taxes, insurance, legal fees and court costs. In addition, the defendants were indebted under a second mortgage in the amount of $131,000, a third mortgage in the amount of $100,000, three federal tax liens in the total amount of $28,400, two unsecured loans to lending institutions in the amount of $47,605.97 and credit card debt in the amount of $31,555.71. The stipulated value of the mortgaged premises on the date of the hearing was $475,000.

At the time of the hearing, the defendants had a combined income of $54,000. The defendant, James E. Conant, testified that he worked for Bankers Workout Alternatives, Inc., and put his employment agreement into evidence. He testified that once his employer’s revenue reached a level defined as a “conversion point, ” his income would increase to $150,000 a year. At the time of the hearing, the conversion point had not been reached. The trial court found that the defendants were underemployed homeowners, pursuant to General Statutes § 49-3Id (2) and (6). The trial court found, on the basis of the testimony, financial affidavits and other evidence introduced at the hearing, that the three mortgages exceeded the value of the defendants’ equity in their home. The trial court denied the application, concluding that the defendants’ financial situation would make it unlikely that they would be able to make timely payments on the restructured mortgage and that the plaintiff would be prejudiced by the restructuring of the mortgage. See General Statutes § 49-31f (d) (l).

Our standard of review is whether the trial court abused its discretion. A foreclosure action is an equitable proceeding. BayBank Connecticut, N.A. v. Thumlert, 222 Conn. 784, 791, 610 A.2d 658 (1992). The determination of what equity requires is a matter for the discretion of the trial court. Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). “In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. Gillis v. Gillis, 214 Conn. 336, 340, 572 A.2d 323 (1990); E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. Gillis v. Gillis, supra, 340-41; Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).” Connecticut National Bank v. Zuckerman, 29 Conn. App. 541, 545, 616 A.2d 814 (1992). When the trial court decides whether a homeowner can make the required payments of a restructured mortgage, it is a question of fact not one of law.

The trial court found that the defendants were eligible to seek a restructured mortgage as underemployed persons because their earned incomes during the twelve month period immediately preceding the commencement of the foreclosure action was less than 75 percent of their annual aggregate income during the two years preceding such twelve month period and each had an income of less than $50,000. See General Statutes § 49-31f (d) (6). It also found that the defendants’ principal residence, in which they had lived for more than two years, was being foreclosed and no foreclosure action had been brought against the defendants in the preceding seven years. See General Statutes § 49-31f (a).

“The court shall determine the eligibility of such homeowner for protection from foreclosure pursuant to the provisions of sections 49-31d to 49-3 li, inclusive.” General Statutes § 49-3 If (c). In reaching its decision, the trial court may consider any relevant facts and shall consider (1) the likelihood that the homeowner will be able to make timely payments on the restructured mortgage commencing at the end of the restructuring period and (2) the presence of any substantial prejudice to the lender or any subordinate lienor or encumbrancer which would result from a restructuring of the mortgage debt. See General Statutes § 49-31f (d). “If it determines that a homeowner who is an underemployed person is eligible for protection from foreclosure pursuant to subsections (a) and (c) of section 49-3 If, the court in its discretion may order the restructuring of the mortgage debt of such homeowner so as to eliminate any arrearage in payments on the mortgage debt and may allow a structuring period not to exceed six months.” General Statutes § 49-31g (a). The foreclosure action shall be stayed for the restructuring period. See General Statutes § 49-3 If (f).

“In determining the restructured mortgage debt, the court shall add the following to the existing principal balance of the mortgage debt: (1) All interest then due the lender and any interest that will be earned to the end of any restructuring period, including interest on any payments advanced by the lender during the restructuring period, such interest to be computed at the rate provided in the mortgage note, (2) real property taxes ... (4) court costs, legal fees and any other sums the court determines to be due under the terms of the mortgage indebtedness by the court. The court shall then apply the composite interest rate as provided in subsection (c) of this section to such total restructured debt over the remaining term of the loan.” General Statutes § 49-3li (a). The payments that the defendants would be required to make as a result of the mortgage restructure would necessarily be higher than the original payments.

We agree, in this case, that the trial court did not abuse its discretion when it denied the defendants’ application. Its findings that the defendants’ visions of their future earnings were speculative, that they had no equity in the mortgaged property, that their financial situation would make it unlikely that they would be able to make timely payments on the restructured mortgage and that the plaintiff would be prejudiced by a restructuring of the mortgage were based on the evidence before it. We conclude, therefore, that the trial court properly denied the defendants’ application for protection from foreclosure.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       The holders of encumbrances on the Conants’ property subsequent to that of the plaintiff were also named as defendants. We refer in this opinion to James E. Conant and Rita Conant as the defendants.

       General Statutes § 49-31f (a) provides: “Subject to the provisions of subsection (b), a homeowner who is underemployed or unemployed against whom a foreclosure action is brought may make application, together with a financial affidavit, to the court having jurisdiction over the foreclosure action for protection from foreclosure if: (1) The mortgage being foreclosed encumbers the residential real property, which property has served as his principal residence, for a period of not less than two years, (2) such homeowner has not had a foreclosure action commenced against him in the preceding seven-year period and (3) such homeowner has not received an emergency mortgage assistance loan and has not applied for emergency mortgage assistance for two years before the application under the provisions of sections 8-265cc to 8-265Ü, inclusive.”

       General Statutes § 49-31d provides in relevant part,: “(2) ‘Homeowner’ means a person who has an ownership interest in residential real property-secured by a mortgage which is the subject of a foreclosure action, and who has owned and occupied such property as his principal residence for a continuous period of not less than two years immediately preceding the commencement of such foreclosure action.
      “(6) ‘Underemployed person’ means aperson whose earned income during the twelve-month period immediately preceding the commencement of the foreclosure action is (A) less than fifty thousand dollars and (B) less than seventy-five per cent of his average annual earned income during the two years immediately preceding such twelve-month period.”

       General Statutes § 49-31f (d) provides: “In determining the eligibility of a homeowner for protection from foreclosure under the provisions of sections 49-31d to 49-31Í, inclusive, the court may consider any relevant facts and shall consider:
      “(1) The likelihood that the homeowner will be able to make timely payments on the restructured mortgage commencing at the end of the restructuring period.
      “(2) The presence of any substantial prejudice to the lender or any subordinate lienor or encumbrancer which would result from a restructuring of the mortgage debt.”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    POST ROAD IRON WORKS, INC. v. LEXINGTON DEVELOPMENT GROUP, INC., ET AL.
    (AC 18209)
    Foti, Landau and Hennessy, Js.
    Argued March 24
    officially released August 17, 1999

      Scott R. Lucas, for the appellants (defendants).

      Christopher Lagano, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendants, Lexington Development Group, Inc. (Lexington), and Robin Hill Farm, Inc. (Robin Hill), appeal from the judgment of the trial court accepting the report of the attorney trial referee and awarding the plaintiff damages. Although the defendants have raised numerous issues on appeal, one is dispositive; that is, whether the trial court improperly accepted the attorney trial referee’s report because it is devoid of necessary findings of fact. We reverse the judgment of the trial court.

The following facts provide a background for the dispositive issue. The plaintiff, Post Road Iron Works, Inc., engages in the fabrication of structural and ornamental metal work and general blacksmithing. Robin Hill is a closely held corporation that owns residential property at 7 John Street in Greenwich (John Street property). A material issue in dispute is whether Lexington, also a closely held corporation, is an agent or general contractor for Robin Hill. Magnus Lindholm is the principal of both defendants and resides at the John Street property. Prior to the events that are the subject of this action, the defendants had engaged the plaintiff on numerous occasions to provide materials and services at the John Street property. On or about September, 1993, the parties entered into an oral agreement that the plaintiff would fabricate and install cabinets and doors for a barbecue grill and remove and reinstall the front railings at the John Street property. A dispute arose between the parties concerning the quality of the goods and services provided by the plaintiff, and the defendants refused to pay the plaintiffs invoice. The plaintiff, therefore, commenced an action against the defendants on or about August, 1995.

The amended complaint alleges four counts respectively, sounding in breach of contract, account stated, quantum meruit and unjust enrichment. The defendants asserted three special defenses to the amended complaint, including that the work was defective, that an oral contract precludes equitable relief and that the plaintiff failed to comply with the Home Improvement Act, General Statutes § 20-418 et seq. The defendants also alleged a two count counterclaim for breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff asserted three special defenses to the defendants’ counterclaim: one, that the plaintiff was a subcontractor, and, therefore, the Home Improvement Act does not apply; two, that some or all of the work performed did not constitute ahorne improvement; and three, that the plaintiff is a properly registered home improvement contractor. The matter was claimed to the trial list and assigned to an attorney trial referee pursuant to General Statutes § 52-434 (a) and Practice Book § 19-1 et seq.

The case was tried to an attorney trial referee who issued a five page report dated March 18,1997 (report). Following an introductory paragraph setting forth the nature of the trial, the report is divided into three sections: seven findings of fact, discussion and recommendations. Subsequently, both the plaintiff and the defendants filed motions to correct the report, pursuant to Practice Book § 19-12. The plaintiff asked the attorney trial referee to make four additions to the findings and to strike or reword certain portions of the discussion section because they are ambiguous. The defendants requested twenty-eight corrections to the attorney trial referee’s findings of fact and eleven findings of law. The attorney trial referee issued a “restated referee’s report” dated April 10, 1997 (restated report), in which he denied one of the plaintiff’s requests and otherwise stated, “The Attorney Trial Referee’s Report dated March 18, 1997 stands uncorrected.”

On or about April 21, 1997, the defendants filed, pursuant to Practice Book § 19-13, an exception to the attorney trial referee’s restated report because the attorney trial referee failed to adopt the defendants’ proposed corrections and, pursuant to Practice Book § 19-14, objections to acceptance of the restated report of the attorney trial referee. The plaintiff filed a written opposition to the defendants’ objection and exception to the attorney trial referee’s restated report. In a memorandum of decision dated August 4,1997, the trial court ruled on the exception, objections to acceptance and opposition. The trial court concluded that it was “unable, at this time, to rule on the exceptions and objections filed by the defendants because of the absence of a detailed response by the referee to the defendants’ motion to correct. In order to carry out a meaningful review of the referee’s report and recommendations, a specific response to the thirty-nine requests by the defendants to correct the report is needed, and thus the case is remanded to the referee for that purpose.”

The attorney trial referee issued a ruling on the defendants’ motion to correct dated October 7, 1997. The attorney trial referee denied twenty-seven of the defendants’ twenty-eight requests for corrections of fact and declined to rule on the defendants’ requested corrections of law. The attorney trial referee commented that he reviewed the transcripts of the trial and that his recommendation would stand. The defendants renewed their exception to the restated report and objections to acceptance of the restated report, and the plaintiff renewed its opposition to the defendants’ objections and exception. The trial court heard the objections and exceptions and filed a supplemental memorandum of decision dated February 24, 1998.

The trial court cited Elgar v. Elgar, 238 Conn. 839, 848-49, 679 A.2d 937 (1996), for the standard of review to be applied to the review of an attorney trial referee’s report. The trial court determined that Lexington’s status was the key issue in the case and that the attorney trial referee found, as a fact, that Lexington served as a general contractor for Robin Hill and that the transcript supported that finding. The second issue concerned the attorney trial referee’s finding that the plaintiffs work was performed in a satisfactory manner. The trial court determined that that issue was quintessentially a factual determination that should not be disturbed by the court. The trial court noted that the parties provided contradictory testimony on this question and ultimately the trial court decided the issue on credibility, which is a factual determination. The trial court concluded that § 19-14 cannot be used to attack an attorney trial referee’s factual findings. The trial court accepted the attorney trial referee’s recommendation and rendered judgment in favor of the plaintiff. The defendants appealed.

“A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. See Practice Book § 443 [now § 19-17]; Rostenberg-Doem Co. v. Weiner, 17 Conn. App. 294, 299, 552 A.2d 827 (1989). This court has articulated that attorney trial referees and [fact finders] share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . . Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423-24, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990).

“The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. . . . [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. . . . Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990). Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993). A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Farrell v. Farrell, 36 Conn. App. 305, 309, 650 A.2d 608 (1994).” (Internal quotation marks omitted.) Elgar v. Elgar, supra, 238 Conn. 848-49.

Although it is trae that when the trial court reviews the attorney trial referee’s report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee’s entire report to determine whether the recommendations contained in it are supported by findings of fact in the report. It is also true that the trial court cannot accept an attorney trial referee’s report containing legal conclusions for which there are no subordinate facts. In the case before us, the attorney trial referee made just seven findings of fact, one of which merely describes photographic evidence. In the discussion portion of his repoit, the attorney trial referee summarizes the testimony of the witnesses without making findings of fact.

“This court has repeatedly stated that it is the function of a finding to state facts and not evidence. . . . A finding that certain testimony was given does not establish the truth of the facts testified to. . . . Thus the findings, which reveal the content of [the witness’] testimony, do not provide adequate factual basis for the court’s conclusion.” (Citations omitted.) Velsmid v. Nelson, 175 Conn. 221, 225, 397 A.2d 113 (1978). Recitations of testimony are not findings. See C.I.T. Corp. v. Cohen, 117 Conn. 159, 161, 167 A. 102 (1933). “A finding should state ultimate, not evidential, facts; the statement of what a witness testified to is not, in that form, even a statement of an evidential fact.” Coast Central Mill Co. v. Russell Lumber Co., 88 Conn. 109, 113, 89 A. 898 (1914); see also Almeida v. Liberty Mutual Ins. Co., 234 Conn. 817, 825, 663 A.2d 382 (1995); Scott v. Scott, 190 Conn. 784, 790, 462 A.2d 1054 (1983); Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 278, 429 A.2d 865 (1980); Cutler v. MacDonald, 174 Conn. 606, 610, 392 A.2d 476 (1978).

Practice Book § 19-17 sets forth the function of the trial court when it is asked to render judgment on an attorney trial referee’s report. When the trial court makes a finding that there are sufficient reasons why the attorney trial referee’s report should not be accepted, the court shall reject the report and refer the matter to the same or another attorney trial referee or revoke the reference and leave the case to be disposed of by the court. See Practice Book § 19-17. Here, the trial court drew inferences from the attorney trial referee’s report and entered them as factual findings in its memorandum of decision. This, the trial court may not do. The trial court may accept an attorney trial referee’s report only when the recommendation is supported by the attorney referee’s subordinate findings of fact. We conclude, therefore, that the trial court improperly accepted the attorney trial referee’s report.

The judgment is reversed and the case is remanded with direction to render judgment rejecting the report and for further proceedings in compliance with Practice Book § 19-17 (a).

In this opinion the other judges concurred.

       The defendants also claim that the trial court improperly (1) accepted the attorney trial referee’s determinaüons that (a) the Home Improvement Act, General Statutes § 20-418 et seq., did not apply because Robin Hill was not a contracting party and that the relationship between the plaintiff and Lexington was one of subcontractor and contractor and (b) Robin Hill did no! prove its counterclaim under General Statutes § 42-110a et seq., Connecticut Unfair Trade Practices Act (CUTPA), (2) did not remand the matter to the attorney trial referee for further proceedings to determine damages and (3) did not conduct further proceedings to determine an award of attorney’s fees to the defendants.

       General Statutes § 52-434 (a) provides in relevant part: “(4) In addition to the judge trial referees who are appointed pursuant to subdivision (1), (2) or (3) of this subsection, the Chief Justice may appoint, from qualified members of the bar of the state, who are electors and residents of this state, as many state referees as he may from time to lime deem advisable or necessary. . . .”

       Practice Book § 19-12 provides: “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the [trial referee], such party shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions that are desired. The party shall accompany the motion with a brief statement of the grounds of each correction asked, with suitable references to the testimony. The file shall then be returned to the [tria.1 referee] for consideration of the motion to correct. As soon as practicable the [trial referee] shall file with the court the motion to correct, together with the committee’s decision thereon.”

       Practice Book § 19-13 provides: “If a committee fails to correct a report or finding in compliance with a motion to correct, the moving party may, within ten days after the decision on the motion to correct, file exceptions seeking corrections by the court in the report or finding. The court will not consider an exception unless its subject matter has been submitted to the [trial referee] in a motion to correct, provided that this requirement shall not apply to exceptions taken to corrections in the report or finding made after it was filed; nor will the court coiTect a finding of fact unless a material fact has been found without evidence or the [trial referee] has failed to find an admitted or undisputed fact, or has found a fact in such doubtful language that its real meaning does not appear. A party excepting on these grounds must file with the party’s exceptions a transcript of the evidence taken before the [trial referee], except such portions as the parties may stipulate to omit.” (Emphasis added.)

       Practice Book § 19-14 provides: “(a) A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the [trial referee] erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted.
      “(b) If an objection raises an issue of fact the determination of which may require the consideration of matters not appearing in the report or stenographic notes of proceedings before the [trial referee], the adverse party shall, within two weeks after the filing of the objection, file a statement raising such issue.” (Emphasis added.)

       The attorney trial referee deleted his finding that Lexington did not file a special defense or counterclaim.

       Practice Book § 19-17 (a) provides in relevant part: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the [trial referee] has materially erred in its rulings or that by reason of material corrections in its findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another [trial referee] for a new trial or revoke the reference and leave the case to be disposed of in court.” (Emphasis added.)

       The briefs and arguments before us support out conclusion that the attorney trial referee’s report is devoid of the necessary subordinate facts. In their briefs and arguments before us, counsel for both parties essentially made factual arguments rather than addressing the legal issues concerning the trial court’s accepting the attorney trial referee’s report.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. DAVID STEED
    (AC 18503)
    Foti, Landau and Dupont, Js.
    Argued April 28
    officially released August 17, 1999

      Alexander H. Schwartz, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, was Mark S. Solak, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, David Steed, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123 (a) (1) and larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 (a) (2). The defendant claims that he was deprived of a fair trial because of the prosecutor’s comments during closing argument. He also alleges that the trial court improperly instructed the jury on reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, John Mayo, a fifty-nine year old man, lived alone in the town of Thompson. On the night of July 1, 1989, Mayo solicited the defendant, a male prostitute, in Massachusetts who then accompanied Mayo back to his home in Thompson. When the men arrived at Mayo’s home, they consumed alcoholic drinks and engaged in oral sex. Thereafter, the defendant stuck a knife five inches into the back of Mayo’s neck while holding him face down against a pillow, causing Mayo’s death.

The defendant then remained in Mayo’s home for about one hour, did not summon medical assistance and did not notify the authorities. He did, however, clean himself and wipe items he had touched to remove his fingerprints. He then ransacked the home, took Mayo’s wallet, removed the money and then removed a number of personal items from Mayo’s house. He removed the knife from Mayo’s neck and fled in Mayo’s automobile. During his return to Massachusetts, the defendant discarded the murder weapon and some other items he had taken from Mayo’s home.

The defendant arrived at the home of his girlfriend, Catherine Smith, at about 11:30 a.m. on July 2, 1989, bearing ice cream for her children. He handed her $20, telling her to “get a babysitter [because they] were going out later.” He then left to sell the items that he had stolen from Mayo’s home. On July 3, 1989, the defendant’s cousin, Kenneth Brown, asked the defendant where he had obtained the car that he was driving. The defendant replied that he had “killed this guy in Connecticut” to get it.

Mayo’s body was discovered on the night of July 4, 1989. The defendant was arrested the following day still in possession of Mayo’s car and telephone calling card and wearing Mayo’s wrist watch. The defendant admitted to police that he had killed Mayo, but stated he did not intend to do it and that he had stabbed Mayo in the neck by “accident” and was sorry. Additional facts will be set forth where relevant to the claims on appeal.

I

The defendant first asserts that comments made by the prosecutor during closing arguments deprived him of a fair trial in violation of his rights to due process guaranteed by the federal and state constitutions. The defendant concedes that this issue was not raised or preserved at trial, but seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We decline to review the defendant’s claim because it is not of constitutional magnitude and, therefore, does not meet the second prong of Golding.

During the initial closing argument, the prosecutor commented: “Subsequently next day, Sunday, [the defendant] sees his cousin. Where does he see his cousin? Out on Main Street. He wants to go shopping for a pair of shorts with the money he’s made. He also wants to go buy a tape with the money he’s made. What does he tell his cousin? Tells his cousin the truth. He brags about it. Stabbed him in the neck to get the car. That cousin was sitting right here, ladies and gentlemen, and there was an obvious stop in the testimony when I asked him that question. You all saw this and I said to him at that point—tell the truth. I think some of you would have heard me say that from here. Tell the truth. And then the cousin said what he says—says he stabbed him in the neck. [The defendant’s attorney] then questions him and, of course, he turns. I can’t pick my witness. My witnesses are who the police find and who come forward. When I am dealing with inner city people, I don’t deal with people with country people’s values or our values. I have to put on who I have. He turns. I’m not surprised that he turned in that fashion and said—No. No. It wasn’t said like that. Ask yourself why he—when he saw that newscast—talking about Ken Brown now—when he saw that newscast that night, ask yourself why he ran to his mother. Why his mother ran to the brother and why all of them ran within ten or fifteen minutes to the police department? Ask yourself if that wasn’t the truth that he heard when he was in that clothing store. No other reason for panicking and rushing in that fashion to the police department. Ask yourself all those questions in deciding what Ken Brown was telling you and if Ken Brown was telling you the truth. I submit to you from the evidence and from what he did later, he certainly was telling you the truth. His most true statement was—I panicked when I saw the news. That was his words. Not my words. You can ask for it back from the reporter. I panicked. Ken Brown talking. Panic as he knew it.

“Why didn’t the defendant tell Catherine Smith something? Catherine Smith was somebody—I mean besides the story he told, why didn’t he tell her the truth? He only knew her for six months. Not even. Versions of three, four, seven months. Ken Brown was a relative. There is the difference in the stories. Would you tell somebody you only knew for six months that you stabbed someone in the throat in that fashion to steal? No. But you would tell your cousin that. You live in the city and you live in that fashion. If you are a street person, you would tell a cousin but you certainly wouldn’t tell that girl that.” (Emphasis added.)

The defendant claims that “[u]ninvited by the defendant’s argument or evidence, the state crystallized its ‘us’ versus ‘them’ theory of the case, pandering to racial and sexual stereotypes that had no business being presented to a jury in Connecticut.” Our review of the record demonstrates that the comments complained of were isolated and were not part of a pattern of egregious conduct. “We will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. ... In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial.” (Citations omitted; internal quotation marks omitted.) State v. Hansen, 39 Conn. App. 384, 395, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995).

We conclude that this claim is not reviewable under Golding because the argument by the state’s attorney was not so egregious as to deprive the defendant of a fair trial and the claim, therefore, is not of constitutional magnitude.

II

The defendant next claims that the trial court’s instruction to the jury on reasonable doubt unconstitutionally diluted the state’s burden of proof. We disagree.

The defendant neither filed a written request to charge, nor took exception to the trial court’s instruction. He, therefore, seeks Golding review. See State v. Golding, supra, 213 Conn. 239-40. While we find that the record is adequate for review and that the defendant has alleged a violation of a fundamental constitutional right, our review of the entire charge leads us to conclude that the defendant has failed to demonstrate that the claimed constitutional violation clearly exists and clearly deprived him of a fair trial.

The instruction complained of is as follows: “The state, and I repeat, must prove guilt beyond a reasonable doubt. It is not, however, required that the government prove guilt beyond all reasonable doubt. The test I stress is reasonable doubt. Now, what is a reasonable doubt? A reasonable doubt is a doubt based on reason and common sense. The kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs. The jury will remember that a defendant is never to be convicted on mere suspicion or conjecture. The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant. For the law never imposes upon a defendant in a criminal case the burden of calling any witnesses or producing any evidence. So if the jury after careful and impartial consideration of all the evidence in the case has a reasonable doubt that the defendant is guilty of a charge, it must acquit. If the jury views the evidence in the case as reasonably permitting either of two conclusions, one of innocence, the other of guilt, the jury should, of course, adopt the conclusion of innocence.”

Our review of the trial court’s instruction in its entirety leads us to conclude that the challenged instruction did not dilute the state’s burden of proof or otherwise misled the jury in any way. Our Supreme Court has upheld identical or similar instructions on reasonable doubt, concluding that such instructions did not dilute or decrease the state’s burden of proof when viewed in the context of the charge taken as a whole. See State v. Ellis, 232 Conn. 691, 705, 657 A.2d 1099 (1995); State v. Francis, 228 Conn. 118, 134, 635 A.2d 762 (1993); State v. Gomez, 225 Conn. 347, 354, 622 A.2d 1014 (1993); State v. Stanley, 223 Conn. 674, 695, 613 A.2d 788 (1992); State v. Smith, 210 Conn. 132, 150, 554 A.2d 713 (1989); see also State v. Lindstrom, 46 Conn. App. 810, 820, 702 A.2d 410, cert. denied, 243 Conn. 847, 704 A.2d 802 (1997); State v. Lamme, 19 Conn. App. 594, 607, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990).

The test to be applied is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result; it must be viewed as to its probable effect upon the jury in guiding them to a correct verdict in the case. State v. Schiappa, 248 Conn. 132, 171, 728 A.2d 466 (1999). Because we determine that this test was met in this case, we conclude that the instruction was proper. Under the third prong of Golding, a defendant may prevail on a claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. Id. We find that it was not.

The judgment is affirmed.

In this opinion the other judges concurred.

       On August 31, 1990, the defendant was sentenced to a total effective sentence of sixty-five years. His appellate rights lapsed but were restored by a habeas court on May 9, 1997. Pursuant to Practice Book § 65-1, this matter was transferred by our Supreme Court to the Appellate Court.

       In State v. Pouncey, 241 Conn. 802, 811-12, 699 A.2d 901 (1997), our Supreme Court remarked that “even when prosecutorial misconduct is not so egregious as to implicate the defendant’s right to a fair trial, an appellate court may invoke its supervisory authority to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . Such a sanction generally is appropriate, however, only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.” (Citations omitted; internal quotation marks omitted.) The defendant requests that in the alternative, should we conclude that his due process rights were not violated by the prosecutor’s comments, we nonetheless should reverse his conviction based upon our supervisory authority over the administration of justice. This, we decline to do.

       The defendant has failed to provide an independent analysis of his alleged state constitutional claim, and, therefore, we will not review it. State v. Morales, 45 Conn. App. 116, 128 n.10, 694 A.2d 1356 (1997), appeal dismissed, 246 Conn. 249, 714 A.2d 677 (1998).

       Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       We also note that even if we were to afford review of this claim, the result would not change. We cannot conclude that the comments complained of were racially inflammatory per se and, further, do not feel that the prosecutor used them in an attempt to “pander” to racial or sexual stereotypes.


author:
SHEA, J.
      SCHALLER and DUPONT, Js.,

text:
    THADDEUS TAYLOR v. STATE BOARD OF MEDIATION AND ARBITRATION
    (AC 17436)
    SchaUer, Dupont and Shea, Js.

      Submitted on briefs December 17, 1998
    officially released August 24, 1999

      Thaddeus Taylor, pro se, the appellant (plaintiff), filed a brief.

      Richard Blumenihal, attorney general, and Robert A. Whitehead, Charles A. Overend, and Richard T. Sponzo, assistant attorneys general, filed a brief for the appellee (defendant).
   Opinion

SHEA, J.

The plaintiff, Thaddeus Taylor, appeals from the judgment of the trial court dismissing his appeal from the decision of the state board of mediation and arbitration (board). The board upheld the termination of the plaintiffs employment by the department of correction and concluded that the termination was for just cause. The trial court dismissed the appeal for lack of subject matter jurisdiction after concluding that the plaintiff had failed to file his appeal and to serve the board within forty-five days after the decision was mailed as required by General Statutes § 4-183 (c) of the Uniform Administrative Procedure Act (UAPA). On appeal, the plaintiff claims that the trial court (1) improperly dismissed the appeal for lack of subject matter jurisdiction and (2) abused its discretion by not ordering the defendant to prepare the transcript of the administrative hearing as prescribed by state law. We affirm the judgment of dismissal. As a result, we need not address the plaintiffs second claim.

The following background is relevant to the resolution of this appeal. The arbitrator who heard the case rendered his decision on March 28, 1996, and the decision was mailed on that date. On April 27, 1996, the plaintiff, who was incarcerated in a federal prison for a federal offense, mailed to the board, by regular United States mail, a letter enclosing a “Notice of Appeal” from the decision. On that date, he also sent to the Superior Court at Hartford a document titled “Plaintiffs Prose Motion for Appeal.” In that motion, the plaintiff requested the court to “enter” his appeal of the board’s decision and also informed the court that he was in the custody of the federal Bureau of Prisons but would be available for court proceedings through the office of the United States Marshall. He failed, however, to enclose the standard filing fee for the appeal and to furnish a return of service on the board.

On August 27, 1996, the plaintiff sent to the Hartford Superior Court a civil summons form (JD-CV-1), which an assistant clerk signed and returned to him to serve on the defendant board named therein. On December 27, 1996, the plaintiff returned the summons and other papers to the clerk’s office, but they had not been served on the board. The case, nevertheless, was placed on the court docket. The clerk received a letter from the plaintiff dated May 19, 1997, in which he claimed that on February 2, 1997, he had sent a copy of his appeal complaint to the defendant by certified mail and had so informed the office of the attorney general. He requested a copy of his complaint so that he could serve it again.

On May 28, 1997, the trial court sent a notice to the plaintiff of a motion to dismiss the case for failure to serve the board and of a hearing on that motion scheduled for June 30,1997. The notice instructed the plaintiff to submit to the court his proof that service of the appeal was made on the defendant and warned that, without such proof, the appeal would be dismissed for failure to serve the appeal. In response to this notice, the plaintiff, by a letter dated June 23, 1997, requested a thirty day extension of the tune for the hearing on the motion to dismiss so that he could effectuate service on the defendant. The court never ruled explicitly on the plaintiffs request for an extension but, on July 1, 1997, granted the motion to dismiss. The court held that the failure to file and serve the appeal within forty-five days after the board mailed its decision, as required by § 4-183 (c), precluded the exercise of jurisdiction over the appeal. This appeal followed.

I

The plaintiff claims that the trial court improperly dismissed the appeal for lack of subject matter jurisdiction. We agree with the trial court that § 4-183 (c) requires that an administrative appeal be both served on the opposing parties in the manner specified by the statute and filed with the clerk of the Superior Court within forty-five days after the agency has mailed its decision. Failure to serve and file an appeal within the forty-five days allowed by the UAPA deprives the court of jurisdiction over the appeal. Glastonbury Voluntary Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 853-54, 633 A.2d 305 (1993).

The evidence adequately supports the finding of the trial court that the plaintiff never served his appeal documents on the board in the manner and within the time prescribed by § 4-183 (c) for an administrative appeal. There is no evidence of proper service on the board in the manner prescribed by § 4-183 (c) at any time. The time allowed for serving and filing the appeal expired on May 13,1996. The only documents that bear an earlier date are the plaintiffs “Notice of Appeal,” which was addressed to the board, and his “Pro-se Motion for Appeal,” which was addressed to the court. Those documents, although dated April 27, 1996, were ineffective for commencing an appeal because they were never served on the board as required and were not properly filed with the court because they lacked a return of service and no filing fee was paid.

II

Although we agree with the judgment dismissing the appeal, we conclude that the appeal should have been dismissed on the more fundamental ground that the exclusive remedy for challenging a decision of an arbitrator is an application or motion to vacate the award pursuant to General Statutes § 52-418. Section 4-186 (c) exempts the board from the UAPA, which applies to other state agencies. Even if the plaintiff had satisfied all of the requirements for filing an administrative appeal, that appeal would have to be dismissed because of the exemption from the UAPA created for the board.

The board concedes in its brief, however, that the documents sent by the plaintiff may properly be construed as a motion to vacate the arbitrator’s award rather than as an administrative appeal, as the plaintiff has captioned them. In his reply brief, the plaintiff concurs with that view, and, therefore, our determination of the issues discussed in part I of this opinion are moot.

Treating the plaintiff’s documents as a motion to vacate the award, however, we confront several procedural barriers to a determination of the plaintiffs claim of wrongful discharge on its merits. “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.” General Statutes § 52-420 (b). The award was made and a copy of the decision was mailed to the plaintiff on March 28, 1996. The period of thirty days after that date expired at the end of Saturday, April 27, 1996, the date on the plaintiffs letter to the board enclosing his “Notice of Appeal” and on his “Pro-se Motion for Appeal,” which he mailed to the Superior Court at Hartford. The board claims that, because April 27, 1996, was a Saturday, those documents could not have been delivered by mail to the clerk’s office until Monday, April 30, 1996, two days beyond the time allowed by § 52-420 (b). That claim, however, overlooks Practice Book § 7-17, formerly § 405, which provides in relevant part: “If the last day for filing any matter in the clerk’s office falls on a day on which such office is not open . . . then the last day for filing shall be the next business day upon which such office is open.” That rule also provides that clerks’ offices are open only from Monday to Friday inclusive. We conclude that the board has failed to demonstrate that the plaintiff did not file his papers within thirty days from receiving notice of the award.

The board has also raised the question of the plaintiffs standing to file a motion to vacate the award on the ground that he was not a party to the arbitration, in which the department of correction and the union representing the plaintiff were the named antagonists. In McCaffrey v. United Aircraft Corp., 147 Conn. 139, 142, 157 A.2d 920, cert. denied, 363 U.S. 854, 80 S. Ct. 1636, 4 L. Ed. 2d 1736 (1960), the court held that a member of a union could not move to vacate an award because he is not ordinarily a party to the arbitration. General Statutes § 52-418 provides that only a party to the arbitration can file a motion to vacate an award. “Unless a collective bargaining agreement provides for a personal right to seek arbitration; see, e.g., Gilden v. Singer Mfg. Co., 145 Conn. 117, 139 A.2d 611 (1958); an employee subject to the agreement is not a ‘party to the arbitration’ under General Statutes § 52-417 and thus has no standing to apply to confirm an award.” Housing Authority v. Local 1161, Council 4, AFSCME, 1 Conn. App. 154, 156, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). In Gilden v. Singer Mfg. Co., supra, 118, one provision of the union contract was deemed to allow either the union or the aggrieved employee to bring a grievance dispute to arbitration.

In his reply brief, the plaintiff claims that the contract between his union and the department of correction, which he refers to as the “NP-4 Bargaining Unit Contract” (NP-4 BUC) entitled him to an immediate “new hearing.” He maintains that, in accordance with certain unspecified provisions of that agreement, he is a “party to the arbitration” and, therefore, he is eligible to file a motion to vacate the award pursuant to § 52-418.

The record, however, does not contain a copy of the NP-4 BUC or any of its provisions. There were no trial exhibits because the judgment of the trial court granting the motion to dismiss was based solely on the documents in the file. The plaintiff has not included any of the provisions of the NP-4 BUC in either his main brief or his reply brief to this court. “It is the responsibility of the appellant to provide an adequate record for review.” Practice Book § 61-10.

On the record as it exists, the plaintiff has not established that he has standing to move to vacate the arbitration award. The caption of the award indicates that the parties to the arbitration were the “State of Connecticut Department of Corrections” and “Local 391, Council #4 AFSCME, AFL-CIO (Thaddeus Taylor).” The opinion included in the award refers to the plaintiff only as the “grievant.” On the basis of the record before us, which it is the obligation of the plaintiff to provide, we conclude that the plaintiff lacked standing to challenge the award. Accordingly, his appeal must be dismissed.

The judgment of dismissal is affirmed.

SCHALLER and DUPONT, Js., concurred in the result.

SCHALLER and DUPONT, Js.,

concurring. We respectfully concur with the result and write separately only to clarify why we have dismissed the action for lack of standing, rather than remanding it to the trial court for findings of fact as to standing, as in other cases. See Sadlowski v. Manchester, 228 Conn. 79, 85, 634 A.2d 888 (1993), on appeal after remand, 235 Conn. 637, 668 A.2d 1314 (1995); U.S.T. Bank/Connecticut v. Davenport, 47 Conn. App. 459, 465, 705 A.2d 562 (1998). Those cases are distinguishable because the trial courts there had considered standing and, despite relevant evidence, had failed to make findings. Here, the issue of standing was neither raised nor considered and no evidence was offered on the issue. In addition, with reference to the discussion of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183 (c), in part II of the majority opinion, we note that the exemption from the UAPA affects the relevance, rather than the mootness, of the determination in part I of the opinion.

       General Statutes § 4-183 (c) provides: “Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of Hartford or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of Hartford. Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to malee such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.”

       The plaintiff does not dispute the defendant’s assertion that the decision was mailed on March 28, 1996.

       In the board arbitration proceeding, the plaintiff was represented by his union. In his letter of April 27, 1996, to the board, he stated that he did not want to have the union represent him in the appeal. The plaintiff, from prison, has handled all subsequent, proceedings pro se, both in the trial court and in the Appellate Court.

       Section 4-183 (c) allows service of an appeal to be made by certified or registered mail in addition to personal service by a proper officer or indifferent person. See footnote 1. There is no evidence that the plaintiff served the defendant board by either of these methods prescribed by the statute.

       The plaintiff never provided any evidence, such as a postal receipt or a return receipt signed by the addressee, to support this claim. In any event, the time for serving and filing his administrative appeal had expired on May 13, 1996.

       The documents sent to the Superior Court after May 13, 1996, including the plaintiffs application for a waiver of fees and costs, received by the court on August 30,1996, are of no avail because the court lacked jurisdiction to act on them after the expiration of the forty-five day period for an administrative appeal provided by § 4-183 (c).

       General Statutes § 52-418 provides in relevant part: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators. . . .
      “(c) Any party filing an application pursuant to subsection (a) of this section concerning an arbitration award issued by the State Board of Mediation and Arbitration shall notify said board and the Attorney General, in writing, of such filing within five days of the date of filing.”

       General Statutes § 4-186 (c) provides: “The Employment Security Division and the Board of Mediation and Arbitration of the state Labor Department, the Claims Commissioner, and the Workers’ Compensation Commissioner are exempt from the provisions of section 4-176e and sections 4-177 to 4-183, inclusive.” This provision was never called to the attention of the trial court but was first raised by the board in its brief filed in this court.

       The record does not indicate that the exemption of the state board of mediation and arbitration from the UAPA created by General Statutes § 4-186 (c) was ever called to the attention of the trial court. Since the statutory exemption involves the jurisdiction of this court as well as the trial court over the subject matter, we must resolve that issue despite the failure to raise it in the trial court. Dowling v. Slotnik, 244 Conn. 781, 787-88, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U. S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).

       The record indicates that a copy of the decision was received by the union that represented the plaintiff at the hearing before the board on April 1, 1996. The plaintiff claims that he sent his documents challenging the award to the clerk and to the board as soon as he received notice of the decision, presumably on April 27, 1996, as his documents are dated.

       The decision of the arbitrators is captioned “State of Connecticut Department of Correction” and “Local 391, Council #4 AFSCME, AFL-CIO (Thaddeus Taylor).”

       See footnote 7.


text:
    SEBASTIAN GANGEMI ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF FAIRFIELD
    (AC 17688)
    Landau, Sehaller and Daly, Js.

      Argued February 16
    officially released August 24, 1999

      John E. Curran, for the appellants (plaintiffs).

      Richard H. Saxl, town attorney, for the appellee (named defendant).

      John F. Fallon, for the appellees (intervening defendants).
   Opinion

LANDAU, J.

The plaintiffs, Sebastian Gangemi and Rebecca Gangemi, appeal from the judgment of the Superior Court dismissing their appeal from the decision of the zoning board of appeals of the town of Fairfield (board) on the ground that the court lacked subject matter jurisdiction. On appeal, the plaintiffs claim that the trial court improperly concluded that it did not have subject matter jurisdiction. Specifically, the plaintiffs argue that the trial court does have subject matter jurisdiction in that the “no rental” condition attached to the variance was personal to the plaintiffs and, therefore, void ab initio, and that the condition’s validity could be collaterally attacked at any time after the statutory appeal period had passed. In the alternative, the plaintiffs claim that even if the no rental condition was not personal, it is subject to collateral attack under Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992). We affirm the judgment of the Superior Court.

A review of the relevant facts, which are undisputed by the parties, facilitates an understanding of the issues in this appeal. As set forth in the Superior Court’s memorandum of decision, the plaintiffs are the owners of property located at 863 Fairfield Beach Road in Fair-field. On March 13, 1986, the plaintiffs filed an application with the board requesting a variance in the setback requirements from the Fairfield zoning regulations. The variance that the plaintiffs sought would have allowed them to enlarge their nonconforming home and also would have allowed them to convert the home from summer use to year-round use. The plaintiffs asserted that to complete the conversion of the home, they needed to enclose the existing porch, enlarge the bathroom and construct a furnace room. In their application, the plaintiffs indicated that they “[intended] to use the property for family use only on a year-round basis.”

The board conducted a public hearing on the plaintiffs’ application. On May 1,1986, the board granted the plaintiffs’ application subject to the following conditions: (1) the plaintiffs would provide two off-street parking spaces; and (2) the use of the home would be limited to family use and would not be used for rental purposes. The plaintiffs did not appeal or otherwise challenge the validity or imposition of either condition. Thereafter, in 1990, the plaintiffs moved out of the home and started renting the property to various tenants. On May 20,1996, Peter Marsala, Fairfield’s zoning enforcement officer, issued to the plaintiffs an order to comply that indicated that the plaintiffs were violating the board’s conditional approval by renting the home and ordered the plaintiffs to have the tenants vacate the subject property.

Thereafter, on June 3, 1996, the plaintiffs filed an application with the board requesting that the board invalidate the no rental condition and, thereby, reverse the order to comply. On August 1, 1996, the board conducted a public hearing and denied the plaintiffs’ application. The plaintiffs appealed from the board’s decision to the Superior Court on August 21, 1996, pursuant to General Statutes § 8-8 (b). The Superior Court concluded that the plaintiffs’ failure to file an appeal challenging the validity of the no rental condition within fifteen days from the date when notice of the board’s decision was published in 1986 deprived the court of subject matter jurisdiction to entertain the appeal. From that judgment, the present appeal ensued.

I

The plaintiffs initially claim that the no rental condition is personal to the plaintiffs and, therefore, it is void ab initio and subject to collateral attack pursuant to the holding in Reid v. Zoning Board of Appeals, 235 Conn. 850, 670 A.2d 1271 (1996). As such, the plaintiffs assert that the trial court had the requisite subject matter jurisdiction over this action, even though the appeal was filed more than fifteen days from the date that notice was published. We disagree.

“It is well established that an appellate court will not retry the facts. Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law.” (Internal quotation marks omitted.) Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 290-91, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998) . In this case, the Superior Court determined that the no rental condition attached to the variance was not personal, but, instead, ran with the land. We, therefore, are called upon to review the legal conclusions of the Superior Court. “When . . . the trial court draws conclusions of law, [the scope of our appellate] review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) ALCA Construction Co. v. Waterbury Housing Authority, 49 Conn. App. 78, 86, 713 A.2d 886 (1998).

“Variances cannot be personal in nature, and may be based only upon property conditions. Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972); see T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 124. Thus, the identity of a particular user of the land is ‘irrelevant to zoning.’ Dinan v. Board of Zoning Appeals, 220 Conn. 61, 66-67 n.4, 595 A.2d 864 (1991); see T. Tondro, supra, p. 88 (‘zoning power may only be used to regulate the “use, not the user” of the land’). In fact, we have stated that ‘[personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance.’ Garibaldi v. Zoning Board of Appeals, supra, 239-40. ‘[T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land’; T. Tondro, supra, p. 137; limits the ability of zoning boards ‘to act for personal rather than principled reasons,’ particularly in the context of variances.” Reid v. Zoning Board of Appeals, supra, 235 Conn. 857-58. In determining the use of property permitted by a variance, our Supreme Court “has considered not only the language of the variance certificate, but also the specific use of the property proposed by the applicant, as set forth in the variance application.” L & G Associates, Inc. v. Zoning Board of Appeals, 40 Conn. App. 784, 787, 673 A.2d 1146 (1996), citing Raymond v. Zoning Board of Appeals, 164 Conn. 85, 87-88, 318 A.2d 119 (1972).

In Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 96, our Supreme Court noted that “failure to file a zoning appeal within the statutoiy time period deprives the trial court of jurisdiction over the appeal. . . . [F]ailure ... to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court.” (Citations omitted.) Id., 102. The Upjohn Co. court recognized that there are certain actions of zoning authorities that could be attacked in an independent action after the appeal period has expired. Id., 101. The court also noted, however, that “the recipient of a zoning permit that had been granted subject to a condition may [not] accept both the benefits of the permit and the condition attached to it, by failing to challenge the condition by way of direct appeal . . . and then, years later, defend against the enforcement of the condition by attacking its validity ab initio.” Id., 101-102. Leading the court to this conclusion was the consideration that, in the zoning context, there is a “need for stability in land use planning and the need for justified reliance by all interested parties—the interested property owner, any interested neighbors and the town— on the decisions of the zoning authorities. It would be inconsistent with those needs to permit ... a challenge to a condition imposed on a zoning permit when the town seeks to enforce it more than three years later.” Id., 102.

Our Supreme Court later recognized an exception to the rule in Upjohn Co. and held that a party could collaterally attack a personal condition attached to a variance because personal conditions are void ab initio. See Reid v. Zoning Board of Appeals, supra, 235 Conn. 858. Furthermore, the Reid court determined that Public Acts 1993, No. 93-385, as it amended General Statutes (Rev. to 1993) § 8-6 (b), “applied retroactively and that any prospective challenges to variances subject to otherwise invalid, integral conditions must result in the severance of the condition and the survival of the otherwise valid variance.” Reid v. Zoning Board of Appeals, supra, 235 Conn. 864. The court noted that “the legislature . . . intended to sever invalid personal conditions from otherwise valid variances whether such condition was in existence at the time of the act’s passage or created later.” Id., 863.

Reid, however, is distinguishable from the present matter. In Reid, Florence Kastner, Reid’s predecessor in title, had applied to the board in 1975 for a variance to allow year-round occupancy of her home “ ‘for her life use of the property only.’ ” Id., 852. The board granted the variance, which permitted year round occupancy of the property, for Kastner’s “ ‘life use only.’ ” Id. Kastner did not appeal from the granting of the variance and continued to occupy the property until she sold it to Reid in 1990. Id. In 1992, the zoning enforcement officer ordered Reid to cease occupying the premises as a year-round dwelling. Id. Reid appealed to the board, which found the cease and desist order to be valid. Id. Thereafter, Reid appealed to the Superior Court, which determined that the condition that Kastner have year round occupancy for her life use only was unreasonable, and that “because the ‘condition was an integral part of the board’s decision,’ it was not sever-able and the variance was void ab initio.” Id., 854. Accordingly, the Superior Court dismissed Reid’s appeal. Id. In light of the legislature’s passage of Public Acts 1993, No. 93-385, Reid filed a motion to reargue, which the Superior Court denied. Id. The appeal from that judgment was transferred to our Supreme Court. Id. The Reid court determined that the “illegal condition of ‘life use only’ is severed from [Reid’s] variance and that his variance survives and runs with the land, such that [Reid] is entitled to year-round occupancy of the subject premises.” Id., 864.

In the present case, the plaintiffs stated in their 1986 application for a variance: “Owners intend to use the property for family use only on a year-round basis.” They argue on appeal that the “only meaning that this sentence can have is that the ‘owners’ who at the time were the plaintiffs . . . intended to use the property personally, and did not intend to lease or loan it to others.” We conclude, however, that contrary to the plaintiffs’ contention, the condition attached to the variance in the present case runs with the land and is not personal to the plaintiffs.

The plaintiffs sought the variance in the setback requirements in 1986 to enlarge their nonconforming dwelling, the stated purpose of which was to permit occupancy of the dwelling on a year-round basis, and to limit the occupancy to “family use only.” The variance was granted with that specific condition attached. The plaintiffs now invite us to construe narrowly the phrase “family use only” to mean that the condition applied only to them and, as such, was personal. We decline that invitation. “By its very definition, a variance is granted with respect to a particular piece of property; it can be enjoyed not only by the present owner but by all subsequent owners.” Garibaldi v. Zoning Board of Appeals, supra, 163 Conn. 239. Unlike the plaintiff in Reid, the plaintiffs in this case did not expressly request a condition that was personal to them. Moreover, the board did not subject the variance to a condition that the plaintiffs continue ownership of the property; see Reid v. Zoning Board of Appeals, supra, 235 Conn. 858; the property could be conveyed at any time and the successors in title will stand in the plaintiffs’ shoes and benefit from the variance. Accordingly, we agree with the trial court that the no rental condition attached to the variance was not personal to the plaintiffs, but, rather, runs with the land.

Finally, having concluded that the condition was not personal, we note that, if we were to hold otherwise and to allow an applicant to challenge the validity of a nonpersonal condition attached to a variance that was not questioned until after the applicant’s noncompliance, a variance applicant would be able to benefit from the condition and then to challenge the validity of that condition when it no longer suited the needs of the respective applicant. This an applicant cannot do. See Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 101-102. Furthermore, we cannot permit a collateral attack on the no rental condition ten years after the board granted the variance because allowing a collateral attack on a nonpersonal condition at this time would frustrate the “need for stability in land use planning . . . .” Id., 102. Under the circumstances of this case, we conclude that the condition was not personal and, therefore, because the plaintiffs did not challenge the condition by appeal within the statutory appeal period in 1986, the plaintiffs are precluded from collaterally attacking the condition by challenging the order issued by Marsala in 1996. The Superior Court, therefore, lacked subject matter jurisdiction to entertain the appeal.

II

In the alternative, the plaintiffs claim that even if the condition was not personal, the court does have subject matter jurisdiction in that the no rental condition is subject to collateral attack under Upjohn Co. v. Zoning Board Appeals, supra, 224 Conn. 96. Specifically, the plaintiffs claim that the condition is so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, and that the continuance of this previously unchallenged condition violates strong public policy. In support of this argument, the plaintiffs assert that the board imposed a condition that had no connection to how the land was used but, instead, placed an unnecessary restraint on the alienation of the periodic tenancy in the property in perpetuity. We disagree.

“Zoning legislation has been upheld with substantial uniformity as a legitimate subject for the exercise of the police power when it has a rational relation to the public health, safety, welfare and prosperity of the community and is not in plain violation of constitutional provision, or is not such an unreasonable exercise of this power as to become arbitrary, destructive or confiscatory. . . . Zoning regulations, so far as they reasonably promote the public health, safety and welfare, are constitutional even though their effect may be to limit the exercise of private property rights.” (Citations omitted; internal quotation marks omitted.) Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 283, 545 A.2d 530 (1988); see also General Statutes § 8-2.

“[A] variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations.” (Internal quotation marks omitted.) L & G Associates, Inc. v. Zoning board of Appeals, supra, 40 Conn. App. 788. Reasonable conditions attached to a variance allow the variance to be in harmony with the general purpose and intent of the zoning ordinance. Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975). In this case, the plaintiffs sought to make substantial structural alterations to their property to transform the property from summer use to year-round use. After granting the variance subject to the no rental condition, the board, in 1996, denied the plaintiffs’ application to invalidate that condition. The reasons for the denial included, inter alia, that the houses are in close proximity to one another and, as such, create a uniqueness. Because of the uniqueness, the “family use only” condition promotes the public health and general welfare of the neighborhood and conserves the value of the buildings located in the community. Essentially, the board’s reasoning parallels the objectives delineated in § 8-2.

The board reasonably could have inferred that the no rental condition related to controlling residential density and the intensification of the neighborhood. Specifically, the substantial expansion of the premises created the possibility that increased demands would be put on municipal services provided by the community. Furthermore, rental occupancy of the property, which occupancies tend to be more transient than owner occupancies, would affect the peace and quiet of the neighborhood, and would effectively create properties with absentee landlords in a single family residential neighborhood. The condition, therefore, serves to lessen the impact of the expansion of the home and the intensification of the plaintiffs’ nonconforming use on the surrounding residential neighborhood, thereby contributing to the conservation of the uniqueness of the community and of the property values therein, and ensuring more stable living in the beach district community. The town of Fairfield had a right to find such a situation desirable and to subject the variance to the no rental condition. See, e.g., Farmington v. Viacom Broadcasting, Inc., 10 Conn. App. 190, 196, 522 A.2d 318, cert. denied, 203 Conn. 808, 525 A.2d 523 (1987) (within scope of zoning regulations for commission to impose conditions related to preserving character of neighborhood). We conclude, therefore, that the rationale behind the issuance of the no rental condition was rationally related to the public health, safety and welfare of the community. See Builders Service Corp. v. Planning & Zoning Commission, supra, 208 Conn. 283. Under the circumstances of this case, we conclude that the Superior Court properly concluded that it lacked the requisite subject matter jurisdiction to entertain the plaintiffs’ appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       Barry Kramer and Judith Kramer, the owners of property abutting the residence owned by the plaintiffs, intervened as defendants in this case. See General Statutes § 8-8 (a) (1).

       General Statutes § 8-8 (b) provides in relevant part: “[A]ny person aggrieved by any decision of a board may take an appeal to the superior court .... The appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published . . . .”

       The plaintiffs also claim that the no rental condition was a taking of property without just compensation in violation of the fifth and fourteenth amendments to the United States constitution and article first, § 11, of the constitution of Connecticut. An appellate tribunal normally does not address constitutional issues unless it is necessary. Packer v. Board of Education, 246 Conn. 89, 98, 717 A.2d 117 (1998); Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 306, 545 A.2d 530 (1988). Because we conclude 1hat, the Superior Court lacked subject matter jurisdiction to entertain the appeal, it is unnecessary for us to address this claim.

         Property located within the beach district in Fairfield is subject to § 11.1.1 of the Fairfield zoning regulations, which provides in relevant part: “A single detached dwelling for one family . . . [and] no dwelling or dwelling unit in the Beach District may be occupied by more than four (4) unrelated persons.” The plaintiffs’ property is located within the beach district.

       The board, in its denial of the application, stated the following reasons: “The Board felt that the [Board] in 1986 did not attach the condition to the variance as it was offered by the applicant on the applicants’ application for a variance and the application was basically approved as submitted. It would be absurd to now allow the applicant to come forward and simply say we did not mean what we said when we originally applied for the variance or that we have now changed our mind. This Board further finds that because of the proximity of the houses in the beach section it does create a uniqueness and because of its uniqueness this condition of family use only can be defended as it does promote the public health of the neighborhood, it promotes the general welfare of the neighborhood and it does in fact conserve the value of the buildings located in the neighborhood.”

       General Statutes § 8-6 (b) provides: “Any variance granted by a zoning board of appeals shall inn with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the validity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance.”

       In Upjohn Co., the court stated, in dicta, that “there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy. It may be that in such a case a collateral attack on such a condition should be permitted.” Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 104-105.

       In support of their argument, the plaintiffs also assert, that the no rental condition is based on an unfounded prejudice against people who rent rather than own the homes in which they live. Specifically, the plaintiffs argue that the board’s lack of jurisdiction to discriminate against renters was so obvious that there could not have been any justified reliance on it. Moreover, they argue that “[e]xpressly excluding by government action economic classes of people from living in a particular location, without any consideration of how land is used, is ... a violation of . . . public policy.”
      We decline to address this argument, however, because the plaintiffs lack standing to raise it in support of their claim. It is well established that a litigant does not have standing to assert the constitutional rights of another. Bell v. Planning & Zoning Commission, 174 Conn. 493, 499, 391 A.2d 154 (1978). In support of their contention that they possess the requisite third party standing to assert this argument, the plaintiffs rely on Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976) (gender based classification); Singleton v. Wulff, 428 U.S. 106, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976) (abortion rights); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972) (contraceptive rights); Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 2d 1586 (1953) (racial controversy); and State v. Patterson, 230 Conn. 385, 393-94, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996) (racial controversy). The facts in this case, however, are more like those set forth in Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 588-89, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S. Ct. 43, 93 L. Ed. 2d 6 (1986). In Husti, the plaintiffs, the zoning enforcement officer of the city of Shelton and the planning and zoning commission of that city, sought injunctive relief to compel the defendants to comply with an order that prohibited the defendants from conducting outdoor concerts at a country club that they owned, which was located in a residential zone. The defendants argued, inter alia, that Shelton’s zoning regulations violated the Connecticut constitution, namely, their right to free speech. The Husti court concluded that “a litigant may challenge the validity of a statute or ordinance under the Connecticut constitution only as it has been applied to him. He may not claim that the provision is invalid because it impermissibly impinges upon the constitutional rights of others.” Id., 589; see also New Haven v. Freedom of Information Commission, 4 Conn. App. 216, 221, 493 A.2d 283 (1985).
      “Courts are instituted to give relief to parties whose rights have been invaded, and to give it at the instance of such parties; and a party whose rights have not been invaded cannot be heard to complain if the court refuses to act at his instance in righting the wrongs of another who seeks no redress.” (Internal quotation marks omitted.) Shaskan v. Waltham Industries Corp., 168 Conn. 43, 50, 357 A.2d 472 (1975). Here, the plaintiffs essentially assert the rights of potential renters of their property who are being discriminated against as a result of the “no-rental” condition. Accordingly, a potential renter of the property, not the plaintiffs in their owner capacity, would have standing to raise the argument that the condition discriminates against renters. Because no potential renter is a party to this action, however, the argument cannot be raised. See Weigel v. Planning & Zoning Commission, 160 Conn. 239, 247, 278 A.2d 766 (1971) (plaintiffs had no standing to raise any claim of unfair treatment to person who was not a party).

       While in the present case we do not address the validity of a zoning regulation, there is no reason why a rational basis review should not apply equally to a review of a variance condition as it does to a zoning regulation.

       General Statutes § 8-2 (a.) provides in relevant part: “Such regulations shall be designed to lessen congestion in the streets ... to promote health and the general welfare ... to prevent the overcrowding of land; [and] to avoid undue concentration of population .... Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings

       See footnote 5.

       Moreover, the plaintiffs’ argument is somewhat disingenuous in that they acknowledged during oral argument before the Superior Court that a no rental condition, under some circumstances, could be found reasonable.


author: LAVERY, J.

text:
    CYNTHIA STERLING RUSSELL ET AL. v. YALE UNIVERSITY ET AL.
    (AC 18067)
    Lavery, Sullivan and Daly, Js.
    Argued April 28
    officially released August 24, 1999

      David F. Sherwood, with whom was John II. Peck, Jr., for the appellants (plaintiffs).

      Mark R. Kravitz, with whom were David J. O’Callaghan and, on the brief, William J. Doyle and Dorothy K. Robinson, for the appellee (named defendant).
   Opinion

LAVERY, J.

The plaintiffs, an heir of the settlor of a charitable trust, alumni donors and students of the named defendant, Yale University (Yale), appeal from the judgment of dismissal rendered by the trial court in granting Yale’s motion to dismiss, which asserted that the trial court lacked subject matter jurisdiction on the ground that the plaintiffs lacked standing. On appeal, the plaintiffs claim that the trial court improperly granted Yale’s motion to dismiss because, where the attorney general elects not to participate in a proceeding involving a charitable trust, a person with a “special interest” may appear on behalf of the trust to protect the interests of the beneficiaries and that the plaintiff heir, alumni donors and students have the special interest necessary to confer standing on them. We affirm the judgment of the trial court.

The following facts are necessary for our resolution of this appeal. Yale is a nonprofit corporation organized pursuant to a 1745 charter, which was reconfirmed in article eighth, § 3, of the constitution of Connecticut in 1965. The settlor, John W. Sterling, died in 1918. At that time, he left, in trust, money for the erection of a building or buildings that would constitute a fitting memorial reflecting his gratitude and affection for his alma mater, Yale. The trustees were given broad discretion in the disposition of these funds and directed, if their discretion made it advisable, to consult with Sterling’s sisters with regard to the use of the funds. The will directed that the money not be used for the purchase of land or as part of Yale’s general fund. In 1930, the Sterling trustees voted to contribute money for the erection and maintenance of the divinity school quadrangle that bears Sterling’s name. No other restrictions existed in the will and no property rights were reserved for Sterling’s heirs by the will.

The divinity school is one of Yale’s graduate professional schools, which educates men and women for the Christian ministry and provides theological education for persons engaged in other professions. Prior to the commencement of this action, the president of Yale appointed a committee to undertake a comprehensive study of the divinity school and its future. In late 1996, the Fellows of the Yale Corporation approved certain recommendations, as made to them by the president and dean of the divinity school, calling for the reorganization of the divinity school, including the demolition of large portions of the Sterling Divinity Quadrangle.

The plaintiffs took exception to the reorganization and instituted this action seeking a temporary and permanent injunction enjoining Yale from carrying out the reorganization, a declaratory judgment that Yale’s reorganization plan constitutes an abuse of discretion as a trustee of a public charitable trust, and an accounting of all gifts and donations Yale received for the benefit of the divinity school and of charges against the divinity school’s endowment. Yale moved to dismiss the complaint on the ground that the plaintiffs lack standing to bring suit. The trial court granted the motion to dismiss, and the plaintiffs appealed. Additional facts will be addressed as necessary.

“It is a basic principle of our law . . . that the plaintiffs must have standing in order for a court to have jurisdiction to render a declaratory judgment. ... A party pursuing declaratory relief must . . . demonstrate, as in ordinary actions, a justiciable right in the controversy sought to be resolved, that is, contract, property or personal rights ... as such will be affected by the [court’s] decision. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action has invaded. . . .

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . The determination of aggrievement presents a question of fact for the trial court and a plaintiff has the burden of proving that fact. . . . The conclusions reached by the trial court cannot be disturbed on appeal unless the subordinate facts do not support them. . . . Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction.” (Citations omitted; internal quotation marks omitted.) Steeneck v. University of Bridgeport, 235 Conn. 572, 578-80, 668 A.2d 688 (1995).

“A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. Barde v. Board of Trustees, 207 Conn. 59, 63, 539 A.2d 1000 (1988). A motion to dismiss raises the question of whether a jurisdictional flaw is apparent on the record or by way of supporting affidavits. Bradley’s Appeal from Probate, 19 Conn. App. 456, 461-62, 563 A.2d 1358 (1989).” Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn. App. 790, 793, 677 A.2d 1378 (1996), rev’d on other grounds, 243 Conn. 1, 699 A.2d 995 (1997).

Although Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. 1, 699 A.2d 995 (1997), concerns the interpretation of a statute, in that case, our Supreme Court set out, at length, the common-law rule with regard to standing to bring suit against a charitable entity, which controls the issues here. “At common law, a donor who has made a completed charitable contribution, whether as an absolute gift or in trust, had no standing to bring an action to enforce the terms of his or her gift or trust unless he or she had expressly reserved the right to do so. Where property is given to a charitable corporation and it is directed by the terms of the gift to devote the property to a particular one of its purposes, it is under a duty, enforceable at the suit of the [a] Homey [gjeneral, to devote the property to that purpose. ... At common law, it was established that [e]quity will afford protection to a donor to a charitable corporation in that the [ajttomey [gjeneral may maintain a suit to compel the property to be held for the charitable purpose for which it was given to the corporation. . . . The general rule is that charitable trusts or gifts to charitable corporations for stated purposes are [enforceable] at the instance of the [ajttomey [gjeneral. ... It matters not whether the gift is absolute or in tmst or whether a technical condition is attached to the gift.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 5-7; see also 4A A. Scott, Trusts (4th Ed. Fratcher 1989) § 348.1.

“[Tjhe donor himself has no standing to enforce the terms of his gift when he has not retained a specific right to control the property, such as a right of reverter, after relinquishing physical possession of it. ... As a matter of common law, when a settlor of a trust or a donor of property to a charity fails specifically to provide for a reservation of rights in the tmst or gift instrument, neither the donor nor his heirs have any standing in court in a proceeding to compel the proper execution of the tmst, except as relators. . . . There is no such thing as a resulting tmst with respect to a charity. . . . Where the donor has effectually passed out of himself all interest in the fund devoted to a charity, neither he nor those claiming under him have any standing in a court of equity as to its disposition and control.” (Citations omitted; internal quotation marks omitted.) Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 7-8.

The trial court found the facts noted previously in this opinion and concluded that if Sterling were alive today, he would have no right to enforce conditions of his gift, and that, therefore, his heir and successor lacks standing to bring this suit, as well. We agree. See id., 5-6.

For the same reasons, the trial court also concluded that the plaintiff alumni donors also lack standing as contributors of unrestricted charitable gifts to their alma mater and nothing about the fact that they are graduates of the divinity school gives them standing. We agree with that conclusion as well. See id.

With regard to the third group of plaintiffs, the students, the trial court determined that they also lack standing. We agree with the trial court and hold that, absent special injury to a student or his or her fundamental rights, students do not have standing to challenge the manner in which the administration manages an institution of higher education. See Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 641, 4 S. Ct. 526, 4 L. Ed. 629 (1819); Miller v. Alderhold, 228 Ga. 65, 184 S.E.2d 172 (1971). The plaintiff students lack standing because they alleged no injuries to themselves or to any of their fundamental rights, collectively or individually.

We hold, therefore, that the trial court properly concluded that, although the plaintiffs are sincere in their efforts to maintain the divinity school as a leader in theological education and preparation for the Christian ministry and they acted in good faith based on motives that are beyond question, the plaintiffs, as a matter of law, lack standing to adjudicate the equitable remedies they seek.

The judgment is affirmed.

In this opinion the other judges concurred.

       Cynthia Sterling Russell is an heir and claimed successor in interest to John W. Sterling, benefactor of the named defendant, Yale University.

       The following plaintiffs are graduates of and donors of monetary gifts to the Yale divinity school: David R. Adams, Tabithe Arnold, Gilmary Bauer, Alvord Beardslee, Cecily Broderick y Güera, David E. L. Brown, Alice Chapman, J. Shannon Clarkson, Rebecca Clouse, George Cole, J. Ann Craig, Cornelia Dinnean, E. Odell Disher, Elaine Fitzpatrick, Karin Fowler, John M. Gessell, Jeanne Hein, Norvin Hein, Emily Holcomb, Jamie Holmes, Mark Hulsether, Laurence C. Judd, Ann McKee, David Maxwell, Wilma J. Reichard, Dale Rosenberger, Cynthia Russell, Beverly Thompson-Travis, Elgin W. Watkins, Eric Wefeld, Chester Wickwire and Jan Witman.

       The following plaintiffs were matriculated at the divinity school at the time the cause of action was commenced: Matthew Barlow, Heather D. Boonstra, Nancy Eggen, Matthew Fitzgerald, Jamal Johnson, Susan McCone, James Montgomery, Stephen Murray, Amy B. Perry, Margaret Reichard and Charlotte White.

       The attorney general was named as a defendant based on the allegation that he is a necessary party representing the public interest. The attorney general did not commence any action against Yale based on the subject of this action and did not participate in this appeal.

       General Statutes §§ 45a-526 through 45a-534 are commonly known as the Uniform Management of Institutional Funds Act.

       “[Sjtudents are fluctuating, and no individual among our youth has a vested interest in the institution, which can be asserted in a court of justice.” Trustees of Dartmouth College v. Woodward, supra, 17 U.S. 641.