author: Hull, J.

text:
    Alphonse Grabowski v. Fruehauf Trailer Corporation et al.
    (2309)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued February 9
    decision released June 19, 1984

      Richard F. Connors, for the appellant (plaintiff).

      John F. Scully, with whom, on the brief, was Louis B. Blumenfeld, for the appellees (defendants).
   Hull, J.

The plaintiff, who recovered a jury verdict in a negligence action in which the defendants admitted liability, has assigned as error on appeal a portion of the charge to the jury concerning the inference to be drawn by the jury from the failure of the plaintiff to produce an expert witness and from the failure to produce employment records.

On June 28,1973, the plaintiff, Alphonse Grabowski, was operating his motor vehicle on a public highway-in the town of Meriden when his vehicle was struck from behind by a tractor-trailer truck operated by the defendant, Frank E. Donnelly, and owned by the defendant, Fruehauf Trailer Corporation.

At trial, the plaintiff claimed to have received injuries to his neck and shoulder and to have received a concussion which resulted in blurred vision and an impairment of his hearing. The plaintiff, in addition to his own testimony, produced, as witnesses on his own behalf, Leo V. Willet, an orthopedist who treated the plaintiff at the request of the plaintiff’s family physician, Charles Butenas, and physician Stanley Friedman, an ear, nose and throat specialist who also treated the plaintiff subsequent to the accident at the request of Butenas. Also admitted into evidence was the hospital record, which detailed the plaintiff’s hospitalization and contained the plaintiff’s medical history and diagnoses, and which was signed by Butenas.

The medical damages which amounted to $1267.40 included a hospital bill for $622.90 and a bill for $362.50 for physiotherapy. The plaintiff testified that he was disabled for six weeks and thereby suffered a monetary loss of $600 due to lost earnings. No other form of evidence was presented on the issue of lost earnings.

In the charge to the jury, the court instructed the jury that it could draw an adverse inference from the plaintiff’s failure to call Butenas on his own behalf and from his failure to produce employment records to corroborate his testimony concerning lost earnings. The plaintiff’s counsel immediately objected to that portion of the charge.

The jury returned a verdict awarding the plaintiff $5000. The plaintiff filed a motion to set aside the verdict claiming, inter alia, that the. court erred in charging the jury on the adverse inference rule. This motion was denied and the plaintiff brought this appeal.

On appeal, the plaintiff claims that the trial court erred in charging the jury concerning the adverse inference rule, popularly known as the Secondino rule, which permitted the jury to draw an adverse inference (1) from the failure of Butenas to testify on behalf of the plaintiff; and (2) from the plaintiff’s failure to produce employment records.

“ Tf a party fails to call a witness, then the Secondino rule permits the jury to draw an inference that the witness’s testimony would have been unfavorable to the party’s cause if the jury first finds that: (1) the witness was available; and (2) the witness was one the party would naturally produce. Bell v. Bihary, 168 Conn. 269, 271, 362 A.2d 963 [1975]; Raia v. Topehius, 165 Conn. 231, 237, 332 A.2d 93 [1973]; Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 [1960]. To charge the jury on the rule, the party claiming the benefit of the rule must show that he is entitled to it. State v. Brown, 169 Conn. 692, 704, 364 A.2d 186 [1975]; Raia v. Topehius, supra; Queen v. Gagliola, 162 Conn. 164, 169, 292 A.2d 890 [1972].’ Doran v. Wolk, 170 Conn. 226, 229, 365 A.2d 1190 [1976].” Nichols v. Coppola Motors, Inc., 178 Conn. 335, 340-41, 422 A.2d 260 (1979).

A mere showing of the availability of a witness is not enough without also establishing that the witness is one who would naturally be produced. “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra, 675.

The plaintiff excepted to the trial court’s charge concerning the plaintiff’s failure to call Butenas as a witness on the grounds (1) that there was insufficient evidence before the jury concerning the availability of Butenas; and (2) that he was not a witness who would naturally be produced because his medical report was part of the hospital record, which had been admitted into evidence, and, therefore, his testimony would have been redundant.

On appeal, the plaintiff addresses only the second of those grounds. Nevertheless, there was sufficient evidence for the jury to conclude that Butenas was available as a witness. “Availability may be shown or determined not only from mere physical presence or accessibility for service, but also from the relationship, usefulness or nature of the expected testimony and this means only that the witness is in such relationship with the party that it is likely that his presence could be procured.” Nichols v. Coppola Motors, Inc., supra, 342. In this case, Butenas was the plaintiff’s family physician and there was a continuous doctor-patient relationship which began prior to the accident and continued thereafter. Furthermore, it was Butenas who referred the plaintiff to Willet, the orthopedist, and Friedman, the ear, nose and throat specialist. Both physicians testified that Butenas was practicing medicine in Meriden at the time of trial. There was, therefore, sufficient evidence of the availability of Butenas as a witness.

Butenas was a physician who, according to the proof, had treated the plaintiff and was familiar with the incident and the injuries suffered by the plaintiff. If his testimony was likely to be favorable, the plaintiff presumably would make every reasonable effort to produce him. See Secondino v. New Haven Gas Co., supra, 676. Butenas’ position as an expert in the medical profession and his familiarity with the plaintiff and his injuries would have contributed to the plaintiff’s case had he testified favorably concerning the plaintiff’s claims. It is not enough, of course, to say that Butenas was available to both parties. He was, however, a witness whom the plaintiff naturally would produce.

In regard to the argument that it would be redundant to call Butenas as a witness since his medical report was part of the hospital records admitted into evidence, the fact that the physician’s report was a part of these records was not emphasized by the plaintiff at the time of their admission. Further, there was no indication that the purpose for admitting the records was to highlight the physician’s report, and the hospital record identified as the “Discharge Summary of Meriden-Wallingford Hospital” did not, in any event, include information on the plaintiff’s entire course of treatment by Butenas.

It is clear that the court could properly conclude that Butenas was a witness who would naturally be produced by the plaintiff if his testimony were favorable to the plaintiff. It was therefore proper to charge the jury on adverse inferences. If indeed the testimony would only have been repetitious, this is a factor which the jury could have considered when weighing the facts in their determination as to whether or not to draw an adverse inference from the failure to produce Butenas. This jury charge merely gives rise to a permissive inference and not to a mandatory presumption. If the party claiming the benefits of the adverse inference rule has established that he or she is entitled to it, the jury must be instructed on it. Nichols v. Coppola Motors, Inc., supra, 341. Once charged on the rule, it is for the jury to decide whether or not actually to draw such an adverse inference after weighing the factual considerations from which the inference can be drawn. The court did not err in giving the Secondino charge with regard to the failure to produce Butenas.

The plaintiff also claims that the trial court erred in giving the Secondino charge with regard to the plaintiff’s failure to produce employment records. The plaintiff’s counsel excepted to this portion of the charge immediately after it was given.

The Secondino rule applies with equal vigor to a failure to produce a material document into evidence. The failure to produce a material document may permit the jury to draw an unfavorable inference if the required conditions set forth under the Secondino rule are met. Maciejewska v. Lombard Bros., Inc., 171 Conn. 35, 43, 368 A.2d 206 (1976); Wilson v. Griswold, 79 Conn. 18, 22, 63 A.2d 659 (1906).

In this case, the plaintiff testified that he lost $600 in total earnings due to the disabling injuries suffered in the accident. The plaintiff offered no corroborative evidence as to lost earnings. The employment records which would have corroborated plaintiff’s claim of lost earnings over a six week period were available due to the fact that these records could have been produced by serving a subpoena on the corporation, Carrabetta Enterprises, which employed the plaintiff. It is also reasonable to expect that a party would produce factual evidence which supports a claim which, without such favorable evidence, is based solely upon the claimant’s own testimony. It is, after all, the plaintiff who had the burden of proof at all times. See Secondino v. New Haven Gas Co., supra.

The two pron'ged Secondino test was met concerning the employment records. The court, therefore, did not err in giving an adverse inference charge in this regard.

The charge to the jury as a whole adequately presented the case in such a manner that it is not likely that injustice was done to either party. See Maciejewska v. Lombard Bros., Inc., supra.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The Court charged the jury as follows: “You will recall that during the final arguments here, reference was made to the absence of Doctor Butenas. As indicated in the course of the argument of the case, attention was called to the failure to call a certain witness who might by his testimony have shed some light on the situation before you. Where a party fails to call a witness, you may infer that the witness’ testimony would have been unfavorable to the party’s cause, if you find firstly that the witness was available, and that the witness was one that the party would naturally produce. Whether the witness was available is a question of fact for you to determine as a condition precedent to drawing any adverse inference from the absence of the witness. Availability may be shown or determined not only from the mere physical presence or accessibility for service, but also from the relationship, usefulness, or nature of the expected testimony, and this means only that the witness is in such a relationship with the party that it is likely that his presence could be procured. A witness who would naturally be produced by a party is one who is known to that party or who by reason of his relationship to that party or to the issues or both could be reasonably expected to have peculiar or special information material to the case, which, if favorable, the party would produce.
      “As to the question of availability, it is for you to determine from the evidence presented whether the doctor’s, Doctor Butenas’ in this particular instance, testimony would be material or substantial to the case, as a condition precedent to drawing an adverse inference. The failure of a party to call as a witness a person who’s available to both parties and who does not stand in the type of relationship to one of the parties as I described above, then there would be no basis for an unfavorable inference.”
      Counsel for the plaintiff excepted to that portion of the charge as follows: “I would take exception to your Honor’s charge first with regard to your charge on the inference the jury may draw from the absence of Doctor Butenas. I think that, on two grounds. One, I do not believe there was sufficient evidence of his availability presented to the jury and secondly, because his written report, signed written report is in evidence, by virtue of being part of the hospital record. I believe that the defendant is not entitled to have that charge given. It is evidence. The report is complete as to all aspects of what he could be expected to testify to. The only reason that I can see of bringing him in for would be to be, cross-examination for the defendant and that is something he could do. I think it is inconsistent with giving, that charge is inconsistent with 52-174 (b), which states that a physician’s report is admissible as a business entry and that its admission does not preclude the, any party from calling the doctor as a witness. Granted the report was not introduced under that section, but it doesn’t say it has to be. The report is in evidence and, it is in evidence.”

       See Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).

       The Court charged the jury as follows: “Also, there is a claim here for lost time of some six weeks at one hundred dollars per week. The defense in the case filed a request that I charge the jury that it, meaning you, have heard testimony concerning Mr. Grabowski’s employment, yet these records were not offered into evidence or any records were offered into evidence and all I would say to you on that is the same basic tests apply with respect to the fact that employment records were not produced. The same tests you apply to that concept, if you are so inclined to do so, would be the same as I previously outlined to you with respect to the failure of Doctor Butenas to appear here and give testimony.”
      Counsel for the plaintiff excepted to that portion of the charge as follows: “Secondly, I would except to your Honor’s charge that the jury may draw an adverse inference from the absence of documents concerning Mr. Grabowski’s lost wages. The requested charge is based upon the fact that there was testimony as to employment records, and my recollection, which I think is extremely good, is that there was no testimony as to any employment record. I simply asked Mr. Grabowski whether he worked; how much he earned; and how much time he lost. There was, neither was there any testimony as to the availability of any employment records, and I think therefore, that whether or not they are employment records has to do with the weight to be given to the evidence and given to Mr. Grabowski’s testimony.”


source: Caselaw Access Project

author: Dupont, J.

license: Public Domain

text:
    George W. Kegel, Administrator (Estate of Richard A. Kegel) v. John H. McNeely
    (2440)
    Testo, Dupont and Borden, Js.

      Argued April 11
    decision released June 19, 1984

      John P. McKean, for the appellant (plaintiff).

      Jeffrey L. Williams, for the appellee (defendant).
   Dupont, J.

The sole issue on appeal is whether the trial court erred in directing a verdict for the defendant, a coemployee of the plaintiff’s decedent, in an action in which the plaintiff sought damages for the death of his decedent who had been electrocuted, during the course of his employment, as a result of contact between high tension wires and a crane. The determination of the issue rests (1) on whether the plaintiff complied with General Statutes § 52-228b and with Practice Book § 3000, and (2) on whether the plaintiffs action was barred by General Statutes § 31-293a.

At the time of the death of the plaintiffs decedent, he and the defendant were coemployees involved in moving and stacking floating docks for their employer. The defendant’s job was to operate a truck cab, to the rear of which was a crane on a turntable mounted on the truck bed. The crane was controlled by another employee who, at the time of the accident, was seated in the crane. The decedent was working on the ground, loading and unloading the floating docks onto and off of a sling suspended from the boom of the crane. The entire procedure was supervised by a fourth employee who served as a ground guide.

The crane and the truck each had an engine and a set of controls which operated independently of one another. The defendant controlled the locomotion of the truck from the truck cab and the action of the crane and boom was controlled from the crane cab. The accident occurred when the boom of the crane or the crane cable came in contact with overhead high-tension wires. This contact caused the instantaneous electrocution of the decedent who, at the time, was holding a part of the metal sling which was attached to the crane cable. The evidence adduced at trial established that immediately prior to the accident, the employee acting as the ground guide directed the defendant to back the truck into position to lower a floating dock. The defendant stopped the truck at the spot indicated, turned off the ignition and remained seated in the cab with his foot on the brake. The truck was stationary at the time of the accident.

At the conclusion of the evidence, the defendant moved for a directed verdict on the grounds that the plaintiff’s action was barred as a matter of law by General Statutes § 31-293a, and that the plaintiff had failed to prove the violation of an applicable standard of care by the defendant or of a legal duty owed by the defendant. The court granted the motion, directed a verdict for the defendant and thereafter, denied the plaintiff’s motion to set aside the verdict. This court concludes that the plaintiff’s action was barred as a matter of law, and it is, therefore, unnecessary to discuss the other grounds for the defendant’s motion for a directed verdict.

A directed verdict is not favored but is justified if, on the evidence, the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed. McDonald v. Connecticut Co., 151 Conn. 14, 17, 193 A.2d 490 (1963). On reviewing the action of the trial court in first directing and thereafter refusing to set the verdict aside, the evidence must be considered in the light most favorable to the plaintiff. Johnson v. Consolidated Industries, Inc., 153 Conn. 522, 524, 218 A.2d 380 (1966); Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 201, 470 A.2d 705 (1984).

The evidence in this case failed to establish that the truck portion of the assembly was in operation at the time of the accident. In fact, the only evidence relative to whether the defendant was operating a motor vehicle was that the truck was immobile at the time, with its motor off. General Statutes § 31-293a precludes suits against fellow employees if workers’ compensation coverage is available to the employee killed or injured during the course of his employment unless the action is based on the fellow employee’s negligence in the operation of a motor vehicle.

If a coemployee is not engaged at the time of the fellow employee’s injury in any activity related to driving or moving a vehicle or related to a circumstance resulting from the movement of a vehicle, the lawsuit does not fall within the exception of General Statutes § 31-293a. Dias v. Adams, 189 Conn. 354, 456 A.2d 309 (1983); Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 472-73, 429 A.2d 943 (1980). At the time of the decedent’s injury, the truck, with its ignition having been turned off, could not function to move the truck itself nor did it function or move so as to change the position of the crane or its boom. On the basis of the evidence of this case, the jury could not have found that the accident was caused by the negligence of the defendant in the operation of a motor vehicle. The trial court was correct in concluding that, as a matter of law, the plaintiff’s action was barred, and, therefore, in directing a verdict for the defendant.

The defendant also claims that the plaintiff waived his right to claim error in the trial court’s refusal to grant the plaintiff’s motion to set aside the verdict because he failed to advance any authority in support of his motion and failed to appear for the hearing on his motion. The plaintiff notified the clerk of the trial court that he would not be present for argument and that he wanted the court to deny the motion because he wished to take an appeal. He did not file a written memorandum in support of his motion but, on a printed form, did indicate his reasons for so moving as is required by Practice Book § 320.

Although General Statutes § 52-228a contemplates a hearing on a motion to set aside a verdict in order to afford the trial court an opportunity to correct any claimed error upon which the motion is grounded, the failure of the plaintiff to provide the court with authority for his motion in this case did not unduly hamper the court in arriving at its decision to deny the motion. The statute requires the moving party to cite his reasons for the motion. The plaintiff in this case, having stated his reasons, acted at his own peril in failing to attend the hearing on his motion and in failing to make available to the trial court the legal authority upon which he based his reasons for the motion.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiff brought separate actions against the manufacturer of the crane, Koehring Company, against Northeast Utilities and against his decedent’s coemployee. The three actions were consolidated for trial and tried together before the same jury. The court also directed a verdict in favor of Koehring Company. The jury returned a verdict for Northeast Utilities. The plaintiff has only appealed from the judgment in favor of his coemployee. The employer of the plaintiff intervened in the action which is the subject of this appeal but has not joined in the appeal.

       General Statutes § 52-228b provides in pertinent part: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court.”

       Practice Book § 3000 provides in pertinent part: “If a party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict ... he may appeal from the final judgment of the court or of such judge .... If any party against whom a verdict is rendered at the direction of the court shall desire to appeal therefrom, he shall, within the time specified in Sec. 320 for filing such motions, file a motion to set it aside and if such a motion is denied, he may appeal from the final judgment and claim as error the refusal to set the verdict aside in the manner provided in regard to other motions to set verdicts aside.”

       General Statutes § 31-293a provides in pertinent part: “If an employee or, in case of his death, his dependent has a right to benefits . . . under this chapter [the Workers’ Compensation Act] on account of . . . death from injury caused by the negligence . . . of a fellow employee, such right shall be the exclusive remedy of such . . . dependent and no action may be brought against such fellow employee except for negligence in the operation of a motor vehicle as defined in section 14-1 . . . .”


text:
    Johnnie M. Jackson, Jr. v. Deborah S. Jackson
    (2694)
    Dannehy, C.P.J., Dupont and Hull, Js.

      Argued February 3
    decision released June 19, 1984

      David S. Maclay, for the appellant (defendant).

      Lawrence P. Weisman, with whom, on the brief, was Ellen B. Lubell, for the appellee (plaintiff).
   Hull, J.

The defendant appeals from the trial court’s denial of a motion to open or to reform a judgment dissolving the parties’ marriage, claiming that the stipulation on which the judgment was based was the result of fraud, accident or mistake.

The judgment dissolving the marriage was rendered on December 12, 1980, based on the written stipulation of the parties. The stipulation provided in significant part as follows: (1) that the plaintiff would transfer to the defendant 2100 shares of stock in C 3, Inc., by December 31, 1980; (2) that the proceeds of the sale of the parties’ former residence should be divided evenly between the parties; (3) that the plaintiff husband would pay to the defendant wife $13,200 in periodic alimony terminating on September 30, 1982.

On March 10,1981, the defendant, through new counsel, filed a motion to open or to reform the judgment of dissolution, the denial of which motion by the court is the basis of this appeal. To put the fundamental issue simply, the defendant claims that she and her lawyer thought they were getting slightly less than half of the plaintiffs 4277 shares of stock in C 3, Inc., when, in fact, as known by the plaintiff but unknown by them at the time the stipulation was entered into, the stock had split three for one during the negotiations resulting in the plaintiff’s owning 12,831 shares. As a result, the defendant got approximately one sixth of the stock, rather than almost one half, and the plaintiff got five sixths of the stock rather than just over one half. The defendant’s 2100 shares were sold in February, 1981, for $67,200; therefore, the disparity in the division of the stock is very substantial.

The defendant briefed three major issues as follows: Where the defendant wife agreed in a marriage settlement to accept an amount of stock which she mistakenly thought was fifty percent of the plaintiff husband’s substantial holding in that stock, and where it actually was only sixteen percent of his holding because of a recent three-for-one stock split received by the plaintiff husband but not disclosed to her: (1) was the plaintiff husband required to disclose the true facts where he was at all times fully aware of her mistake; (2) was the defendant wife entitled to equitable relief; or (3) was she barred by her own failure to find out about the stock split which her husband had deliberately concealed from her?

The trial court applied the four pronged test outlined in Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980), as follows: the relief of vacating a judgment based on fraud will be granted only if (1) there has been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must have been a diligent effort made in the original action to discover and expose the fraud; (3) there must be clear proof of the fraud; and (4) there must be a substantial likelihood that the result of the new trial will be different. The court concluded that previous counsel had all the necessary information concerning the financial status of the C 3, Inc., stock available to him at the time he counselled the defendant to agree to the terms of the settlement. The court further found that counsel’s failure to secure a more advantageous agreement can be attributed only to his own inadvertence and not to any act or omission of opposing counsel or the plaintiff. It pointed out that during the trial on the motion to open the judgment of dissolution, the defendant’s trial counsel specifically stipulated that if he had read the prospectus concerning the C 3, Inc., stock going public and had noted the information concerning the stock split, “we wouldn’t be here today.” The court finally found lack of due diligence on the defendant’s part and “absolutely no evidence of any fraud, deception or mistake.” The trial court, during proceedings on the plaintiff’s motion for rectification, found that the defendant knew, or should have known, based on the information that was available to her and to her attorney, that the C 3, Inc. stock had split three for one.

“Every cause will have its own peculiar complexion and leading cast.” Stoddard v. Bird, 1 Kirby 65, 69 (1786). Under the circumstances of this case, in the context of relatively amiable negotiations leading to a stipulation and an uncontested judgment of dissolution, we conclude that the plaintiff took unconscionably fraudulent advantage of the defendant’s ignorance of the three-for-one stock split, resulting in a substantial injustice. Therefore, we reverse the judgment of the trial court.

The underlying facts are not in dispute. The parties to this action were married on June 22,1968. No children were born of the marriage. Both parties worked during the marriage, the plaintiff as an attorney and the defendant as a school teacher. At the time of the dissolution action, the plaintiff was employed as an attorney at the Olin Corporation. The defendant had attended law school briefly but withdrew in September, 1980. The plaintiff instituted an action for dissolution of marriage on May 20,1980. Both parties were represented by counsel. In the summer of 1980, counsel commenced negotiations concerning a property settlement. At the start of negotiations on June 26,1980, the plaintiffs attorney sent to the defendant’s attorney the plaintiff’s financial statement. It showed modest assets totalling $41,223 including the plaintiff’s one half interest in the Stamford real estate. It also included: “Securities: 4277 shares C-3, Inc. @ $1.50 (note: this is lettered investment stock for which there is no real market) (basis = $10 per share net after federal and state taxes) $4499.44.” C 3, Inc., was a privately held unlisted company in the computer software business.

The parties themselves worked out a division of the major items of personal property by August 1980. They agreed upon a written stipulation dated October 29, 1980, which gave the defendant 60 percent of the proceeds from the sale of the home, 60 percent of an agreed upon $6000 valuation of the 4277 shares of C 3, Inc., stock and two years of alimony totalling $13,200. The case was then set down for an uncontested hearing to be held on November 18, 1980.

On October 29, 1980, the plaintiff received a notice dated October 25,1980, addressed to C 3, Inc., shareholders announcing a meeting on November 6, 1980, to consider approval of a three-for-one stock split of the common stock preparatory to going public with the stock. The plaintiff did not inform the defendant of this notice.

On November 12,1980, C 3, Inc., notified the plaintiff by letter that the stock split had been approved at the November meeting. The letter enclosed a certificate for 8554 shares and a copy of the C 3, Inc., “red herring” prospectus filed with the Securities and Exchange Commission (SEC) on November 12, 1980.

On November 14, 1980, the defendant, then living in Washington, D.C., happened to read an article in the Washington Post concerning a public offering of C 3, Inc., stock. The article said that the stock would be offered for between $24 and $28 per share for stock then worth $2.67 per share. The article made no reference to the recently completed stock split. On that same day, the defendant’s attorney notified the plaintiff’s attorney about the news of the public offering and can-celled the October 29 stipulation.

The defendant’s attorney secured a copy of the SEC prospectus and mailed a copy to the plaintiff’s attorney. He also talked on numerous occasions with brokers at E.F. Hutton, the underwriter of the C 3, Inc., public offering. The parties continued to negotiate further and on December 8, 1980, the defendant executed a new stipulation providing her the same two years of alimony, 50 percent of the house proceeds instead of the earlier 60 percent, and 2100 shares of the C 3, Inc., stock. She also prepared and executed another stipulation identical to the one newly negotiated, except that it gave her 2138 shares of C 3, Inc., stock rather than 2100 shares. Her December 8 letter to her lawyer explained that he should try to get 2138 shares because it represents more exactly me half of the plaintiffs stock. The plaintiff, however, would agree only to transfer 2100 shares of the stock and a stipulation providing for this was executed on December 9, 1980.

On December 12, 1980, an uncontested dissolution of marriage was granted based upon the stipulation of December 9. The plaintiff’s affidavit showed total assets of $44,367 including the house proceeds, and a monthly income of $3510. The affidavit was in manuscript form and at the bottom of page two it stated: “Securities: C-3 Corporation Common stock.” On the next page, the following note is included: “The plaintiff has an interest in the Common Stock of C-3 Corporation which corporation is filing a registration with the Securities and Exchange Commission indicating a proposed sale price of $24-28 per share. This price is speculative and it is not known at this time when and if the public offering will become effective. The fair market value of the shares is $6,415.50, based upon the last known sales price of $0.50 per share. The shares have a low basis. The estimated Federal and State capital gains tax would be approximately 31 per cent, leaving a net value of $4,426.70. If the public offering becomes effective and assuming that the plaintiffs shares are free from restrictions on sale, the value could be substantially greater.”

The defendant thereafter sold her stock on February 11, 1981, for $67,200 and on February 12, 1981, the defendant’s counsel wrote to the plaintiff’s counsel demanding an additional 4200 shares of C 3, Inc., stock. On March 2,1981, the plaintiff’s counsel wrote a letter refusing to transfer the additional shares to the defendant.

One fact is crystal clear from the record in this case. Neither the defendant nor her attorney knew, when the dissolution judgment was rendered on December 12, 1980, that the C 3, Inc., stock, for which they had bargained as part of the property settlement, had split three-for-one.

Before analyzing the facts in the light of controlling law, certain general observations must be made. The adversary system of justice is under particular stress in a dissolution action. The very name “adversary” requires putting two persons, who once shared life’s tenderest intimacies, in a position of combat. Both counsel, depending upon the complexity of the parties’ affairs and the degree of conflict deemed necessary by one or both of the parties, can be expected to unlimber their big guns of discovery, cross-examination, and the like to ferret out information favorable to one side and inclined to discredit the other marriage partner.

Influential voices are heard questioning the way in which the adversary system is used. Chief Justice Warren Burger recently reached back to 1909 to quote Dean Roscoe Pound’s axiom that the law is not a sporting contest. Sullivan v. Wainwright, 464 U.S. 109, 112, 104 S. Ct. 450, 78 L. Ed. 2d 210 (1983). (Burger, C.J., concurring.) The trial court, Jacobson, J., precisely explicated the special and unique nature of the exchange of information in a domestic dispute when he stated in his memorandum of decision: “In dissolution actions particularly, both counsel and the court have special responsibilities with respect to agreements submitted by the parties. There must be reasonable inquiry into the wishes as well as the objective best interests of the client, and counsel have a special responsibility for full and fair disclosure for a searching dialogue, about all of the facts that materially affect the client’s rights and interests,” citing Monroe v. Monroe, 177 Conn. 173, 183, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979).

The trial court also has an affirmative obligation to determine whether a settlement agreement is “fair and equitable under all the circumstances.” General Statutes § 46b-66. The court reviewed the stipulation at the dissolution hearing. “Because of the emotionally-laden circumstances under which negotiations about marital dissolutions necessarily take place, reasonable inquiries should be made to ensure, as far as possible, that reasonable settlements have been knowingly agreed upon. Nonetheless, even judicial failure to conduct a searching inquiry into the acceptability of a divorce settlement does not make the subsequent judgment of divorce vulnerable to collateral attack as a miscarriage of justice.” Monroe v. Monroe, supra, 184.

The sworn financial statements of the parties under Practice Book § 463 have great significance in domestic disputes. They serve to facilitate the process and avoid the necessity of testimony in public by persons still married to each other regarding the circumstances of their formerly private existence. There was no claim in this case that counsel for the plaintiff misrepresented to the court the value of the C 3, Inc., stock. In fact, the trial court, in ruling on the motion to open the judgment of dissolution, found that both counsel “made every effort to meet [the] standards of professional responsibility on the basis of the information made available to them.”

The traditional view of the adversary system is found in the plaintiff’s brief which states: “The footnoted explanation as to the C-3 stock should have put the defendant’s attorney on his guard.” This statement ignores the purpose of a financial affidavit in a dissolution action, particularly one on which the parties’ property settlement is based. Only full and frank disclosure can facilitate such settlements. Whatever the situation may be in contested dissolution actions, there should be at least a Geneva Convention of rules of war where the parties are able to work out the matter themselves. A good example of the atmosphere too frequently encountered in a domestic dispute under the adversary system is noted in the plaintiff’s brief where he states, in reference to dissolutions: “unfortunately it is an adversarial relationship ordinarily characterized by wariness, suspicion and a total lack of good faith.”

That the time has come to spike somewhat the forensic guns involved in matrimonial disputes was made clear by the Supreme Court in Monroe v. Monroe, supra, 182: “It may well be time to reconsider the role that lawyers and judges play in the matrimonial cases that appear in ever-increasing numbers before the courts. Analogies drawn from commercial litigation fail to respond adequately to the situation of emotional trauma commonly associated with the irretrievable breakdown of a marriage.”

It is a recognized goal of our courts to foster settlement of domestic disputes. “With such judicial supervision, private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine. Guyton v. Guyton, 17 Ill. 2d 439, 444, 161 N.E.2d 832 (1959); Paxton v. Paxton, 201 Neb. 545, 547, 270 N.W.2d 900 (1978); Viles v. Viles, 14 N.Y.2d 365, 368-69, 251 N.Y.S.2d 672, 200 N.E.2d 567 (1964) (dissenting opinion); Lindey, Separation Agreements and Ante-Nuptial Contracts (2d Rev. Ed. 1978) p. 3-23.” Hayes v. Beresford, 184 Conn. 558, 568, 440 A.2d 224 (1981). “Although the law will intervene to insure that substantial justice is done where fraud has been perpetrated, the frequency and extent of this intervention must be tempered by a sometimes conflicting adjudicative proposition that mandates the ultimate conclusion of all legal controversy. Thus, the setting aside of a judgment on the basis of fraud ‘will only be granted if the [movant] is not barred by any of the following restrictions: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence ... in trying to discover and expose the fraud. (3) There must be clear proof of the penury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different. James, Civil Procedure (1965) § 11.7, pp. 540-42; [note,] 36 Ill. L. Rev. 894, 896-97 (1942).’ Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980).” Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983).

The plaintiff concedes that there was no laches or unreasonable delay by the defendant in moving to open the judgment of dissolution.

The question concerning the defendant’s diligence in trying to discover and expose the fraud is a difficult one. The court expressly found lack of diligence on the part of the defendant’s former attorney. After a careful look at the evidence, however, “in the particular circumstances of this case and given its context”; Kenworthy v. Kenworthy, 180 Conn. 129, 132, 429 A.2d 837 (1980); a different, picture emerges. The negotiations between the parties, as reflected in the correspondence between the attorneys, were conducted in an open and cooperative manner.

Concerning knowledge of the defendant and her attorney, it is only with hindsight that one can fault their performance. Neither had any reason to suspect a stock split. Nor were they even put on inquiry under the circumstances as to the possibility of such a split. The Washington Post article did not mention it. The defendant and her attorney knew that the plaintiff’s attorney was fully aware that the defendant was seeking one half of the C 3, Inc., stock because of her insistence on getting 2138 shares before she finally agreed to accept 2100 shares. The affidavit had the effect of obscuring the situation and did not candidly give evidence of the true picture concerning the plaintiff’s assets.

The original affidavit noted 4277 shares valued at $4499.44. The parties’ stipulation of October 29,1980, established an agreed value of $6000 for the C 3, Inc., shares. Finally, and most importantly, the affidavit submitted at the dissolution hearing downplays the significance of the stock by placing it in a footnote and omitting this time the number of shares. The stated value in this latter affidavit was $6415.50, only slightly more than the $6000 figure agreed upon on October 29. The omission of the number of shares is a violation of Practice Book § 463 which requires an affidavit substantially in accordance with Practice Book Form 501.1. Form 501.1 lists “E. Stocks, Bonds, Mutual Funds (list company, number of shares, value).” (Emphasis added.) The overall effect was colossally misleading, for the footnoted item included an asset of 12,381 shares known then to be worth $24 to $28 per share. Thus, an item worth $407,944, compared to the plaintiff’s entire sworn assets of $44,367, was so inadequately described in the footnote as to create a trap for the unwary.

The trial court found that since the footnote placed the value of the shares at $6415.50 on the basis of the last known sales price of fifty cents per share, one could easily ascertain the number of shares held by the plaintiff multiplying the given value by two. This is not a reasonable conclusion from the evidence unless the attorney examining the affidavit has been alerted to what he should look for.

This court has meticulously examined the SEC prospectus. It is lengthy, highly technical and baffling to the reader. It is very difficult to extract from it the fact that there had been a three-for-one stock split prior to the public offering. The table of contents makes no mention of a stock split. The prospectus summary on page three under “shares outstanding” states: “3,509,562 at September 30, 1980 after giving effect to a recapitalization effective November 6,1980.” The prospectus further states under “Dilution” that the “information set forth below gives effect to the recent recapitalization of the Company.” Finally, on page thirty, under note eleven of “Notes To Financial Statement,” the prospectus, in describing the recapitalization of November 6, 1980, states that “each common stockholder was authorized to receive two additional shares of the newly authorized Common Stocks for each share of common stock then held.” Nowhere in the thirty-one page prospectus is the term “stock split” used.

The trial court found that the defendant’s attorney had read the prospectus. The information contained therein concerning “recapitalization” is meaningless to the reader unless he or she knew the number of shares before the recapitalization. It is totally unrealistic to find a lack of diligence in not ferreting out the information about the stock split from footnote eleven to the “notes to financial statement.” The defendant was not deceived concerning the potential value of the stock since she and her attorney had learned that it would be issued to the public for $24 to $28 per share. She was, however, uninformed as to the number of shares held by the plaintiff. Under the totality of the circumstances, the court’s conclusion of lack of diligence on the part of the defendant and her attorney cannot stand.

The leading case of Jucker v. Jucker, 190 Conn. 674, 461 A.2d 1384 (1983), is readily distinguishable. The Jucker court cited numerous detailed instances wherein the plaintiff had substantial knowledge of the matters about which she later complained. Id., 678. Nor does the case of Valante v. Valante, 180 Conn. 528, 529-30, 429 A.2d 964 (1980), dictate a different conclusion. The Volante court held that the defendant’s complaint that there was insufficient information before the trial court concerning the valuation of closely held stock could not prevail because the defendant had a full opportunity to cross-examine the plaintiff and could have used discovery proceedings. The Volante case arose in the context of a contested divorce dissolution trial quite unlike the circumstances in this case.

We conclude that under the peculiar circumstances of this case neither the defendant nor her attorney lacked diligence so as to bar the defendant’s right to open the judgment of dissolution.

We conclude that the trial court could not reasonably have found that the plaintiff’s conduct was not fraudulent so as to bar the opening of the judgment of dissolution. “Fraud consists in deception practised in order to induce another to part with property or surrender some legal right, and which accomplishes the end desired.” Alexander v. Church, 53 Conn. 561, 562, 4 A. 103 (1886), quoting Cooley, Torts, p. 474.

The case of Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981), summarized the necessary elements of fraud as follows: “The essential elements for an action in fraud . . . are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury.”

The plaintiff’s conduct in this case falls squarely within the doctine of fraudulent nondisclosure as stated in the recent case of Wedig v. Brinster, 1 Conn. App. 123, 130-31, 469 A.2d 783 (1983): “Concerning fraudulent nondisclosure, the court found that the Brinsters had an affirmative duty to disclose the septic system problems. In Franchey v. Hannes, 152 Conn. 372, 379, 207 A.2d 268 (1965), the court held that once a vendor assumed to speak, ‘he must make a full and fair disclosure as to the matters about which he assumes to speak.’ He must then avoid a deliberate nondisclosure. Id. To constitute fraud by nondisclosure or suppression, ‘there must be a failure to disclose known facts and . . . a request or an occasion or a circumstance which imposes a duty to speak.’ Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977); Ceferatti v. Boisvert, 137 Conn. 280, 283, 77 A.2d 82 (1950). This duty arises when a vendor of property conceals from the vendee a material fact affecting it. A vendor of property may not do anything to conceal from the vendee a material fact affecting it, or say or do anything to divert or forestall an intended inquiry by him, or deliberately hide defects, for, in so doing, he is not merely remaining silent, but is taking active steps to mislead. Egan v. Hudson Nut Products, Inc., 142 Conn. 344, 348, 114 A.2d 213 (1955); Gayne v. Smith, 104 Conn. 650, 652, 134 A. 622 (1926). ‘[T]he nondisclosure must be by a person intending or expecting thereby to cause a mistake by another to exist or to continue, in order to induce the latter to enter into or refrain from entering into a transaction.’ Egan v. Hudson Nut Products, Inc., supra, 347-48.” Wedig v. Brinster, supra. The key element in a case of fraudulent nondisclosure is that there must be circumstances which impose a duty to speak. In this case, such a duty is imposed by Practice Book § 463 which requires affidavits in domestic cases and by Practice Book Form 501.1 to which it refers.

The plaintiff did make a false representation as a statement of fact by reason of a fraudulent nondisclosure concerning the number of C 3, Inc., shares he held at the time of the dissolution. In presenting the information concerning the C 3, Inc., shares in the form he filled out, the plaintiff knowingly made an untrue representation. The representation was made to induce the defendant to act upon it. That is the self-evident purpose of such affidavits. The defendant did act on that misrepresentation to her great injury. That the plaintiffs posture amounted to fraudulent nondisclosure intended to induce the defendant to act to her detriment is made abundantly clear by his response at a deposition held on October 20,1981, where, when asked whether the defendant and her attorney knew about the C 3, Inc., stock split at the time they agreed to take 2100 shares as part of the settlement, the plaintiff replied: “If they didn’t know it was their problem.”

There is a very substantial likelihood that the result of a new trial will be different. Considering all of the statutory criteria for distribution of assets and for alimony in a dissolution action; General Statutes §§ 46b-81, 46b-82; we conclude that it is highly likely that a new trial, with all of the cards on the table, will produce a different result.

We are well aware of the limited role of this court in reviewing factual findings of the trial court, particularly in domestic cases. “A factual finding may be rejected by this court only if it is ‘clearly erroneous.’ Practice Book § 3060D.” Kaplan v. Kaplan, 186 Conn. 387, 392, 441 A.2d 629 (1982). The trier of fact has wide latitude in its interpretation of the evidence and the conclusions to be drawn therefrom. “ ‘[Tjrial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant.’ ” Figlar v. Figlar, 174 Conn. 151, 153, 384 A.2d 1 (1978). “This court may not substitute its own opinion ... for the factual finding of the trial court.” Kaplan v. Kaplan, supra.

We are equally aware of the danger of opening the floodgates to a wave of motions to open dissolution judgments by dissatisfied litigants. Where, as in this case, however, a clear case is made under applicable law that a fraudulent and material misrepresentation by one party resulted in a substantial injustice to the other party, we must not hesitate to act. This is such a case.

The conclusion of the trial court that the defendant had failed to establish the elements of fraud was clearly erroneous. In view of our disposition of the case we do not consider the other grounds of appeal raised by the defendant.

There is error, the judgment denying the motion to open is set aside and the case is remanded with direction to grant the motion to open the judgment of dissolution dated December 12, 1980, and to proceed in accordance with the law.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The defendant’s motion provided as follows:
      “MOTION TO CLAEIPY OE EEPOEM, OE TO EEOPEN OB EEFOEM JUDGMENT
      “Pursuant to G.S. § 52-212a and the equitable powers of this Court, the defendant respectfully moves that the financial and property provisions of the Judgment of this Court entered December 12, 1980 be clarified or reformed or reopened and reformed.
      “The Judgment entered on said date was based upon a Stipulation dated December 12,1980, which called upon the plaintiff to transfer to the defendant 2,100 shares of the capital stock of C-3, Inc., a Maryland corporation.
      “Said Judgment and said Stipulation were based on the plaintiff’s representation and the defendant’s understanding that the plaintiff owned a total of 4,277 shares of said stock and that it was being divided between the parties, approximately 50% to each. The defendant relied on such representations and the plaintiff’s failure to disclose otherwise.
      “The plaintiff knew, but failed to disclose to the defendant, that while they were conducting the negotiations which resulted in said Stipulation, said C-3, Inc. stock, which was not publicly listed at that time, had been split three shares for one so that the plaintiff actually owned 12,831 shares on December 12, 1980.
      “On his final affidavit dated December 11,1980, the plaintiff showed that his total holdings of said stock had a value of $6,415.50 whereas, unknown to the defendant, its true value was in excess of $400,000.
      “The plaintiff has failed and refused to transfer to the defendant 2,100 shares of the pre-split original shares.
      “As a result of said fraud on the Court and the defendant, the plaintiff is estopped from denying that the 2,100 shares mentioned in said Stipulation and order were original pre-split shares, and the plaintiff is estopped from asserting that the reference was to 2,100 post-split shares.
      “Said circumstances constitute fraud, accident and mistake in the procurement of said Stipulation and judgment.
      “Wherefore, the defendant respectfully requests: 1. That the Judgment be clarified or .reformed to show said reference is to 2,100 shares of C-3, Inc. stock as the shares existed prior to said three for one stock split. 2. In the alternative, that this Judgment be reopened and reformed as aforesaid. 3. In the alternative, that the Judgment be reopened and for such further relief as justice may require. 4. That the defendant be awarded reasonable attorney’s fees and her expenses in connection with this motion.”

       The plaintiff also briefed a separate issue with respect to the plaintiffs claiming the attorney-client privilege at the hearing to open the judgment of dissolution to bar evidence of his conversations with his attorney concerning the stock split. In view of our disposition of this case we do not consider this issue.

       Both parties in their briefs refer to “C-3” stock. We use “C 3, Inc.,” throughout this opinion which is the correct name of the stock as shown in the transmittal letter from the company to the plaintiff enclosing the 8554 additional shares.

       The transcript of the dissolution hearing is not part of the record.

       Unless otherwise stated herein, the term “defendant” refers to the defendant and her former attorney since they speak as one. See Allen v. Nissley, 184 Conn. 539, 542-43, 440 A.2d 231 (1981).

       The record is devoid of any finding as to whether the plaintiff’s attorney knew of the stock split during the final negotiations leading to the stipulation of December 9, 1980.

       To require counsel in an amicably settled dissolution action with the apparently simple asset pattern of this case to file disclosure motions would impose on counsel a duty of practicing law defensively, a practice of widespread concern in the medical profession.


author: Borden, J.

text:
    Ladislas Reitzer v. Board of Trustees of State Colleges et al.
    (2070)
    Dannehy, C.P.J., Dupont and Borden, Js.

      Argued February 2
    decision released June 26, 1984

      Joseph D. Garrison, with whom, on the brief, was Susan J. Bryson, for the appellant (plaintiff).

      Laurie Adler, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellees (defendants).
   Borden, J.

The plaintiff appeals from a judgment of the trial court dismissing his two count complaint on the grounds of lack of subject matter jurisdiction and improper service of process.

The plaintiff, a professor at Southern Connecticut State College (SCSC) since 1961, reached the mandatory retirement age of seventy on August 29,1982. See General Statutes § 5-162. The defendants are the board of trustees of SCSC, the members of the board and the president of SCSC.

The complaint alleged as follows. On September 18, 1981, the plaintiff, by letter to an SCSC administrator, requested that his employment be continued beyond his seventieth birthday as provided by General Statutes § 5-164 (b). This request was denied by the president of SCSC on February 22, 1982. The plaintiff was given no reason for the denial and, despite extensive student and faculty support, was given no opportunity to be heard on the matter. The SCSC administration failed to forward his request to the board, which is his appointing authority, and failed or refused to request that he be continued in employment under General Statutes § 5-164 (b). In the past the board has made and been granted other such requests.

On September 27, 1982, after the plaintiffs retirement, he commenced this mandamus action to compel the defendants to provide him with the reasons for the denial of his request and to hold a hearing to consider whether he should be allowed to continue his employment on a year-to-year basis. The first count of his complaint claimed that the failure to hold a hearing and to provide him with the reasons for the denial of his request deprived him of his rights to procedural due process under article first, § 10 of the constitution of Connecticut. The second count claimed that by failing to provide him a hearing on his request for continued employment as constitutionally required, the board deprived him of his statutory right to a hearing in a “contested case” under the Uniform Administrative Procedure Act (UAPA). General Statutes §§ 4-166 through 4-189. The defendants moved to dismiss the action on the bases of lack of standing, lack of individual service on the defendants and a prior pending action.

The trial court found that because the plaintiff lacked standing to bring the action, it lacked subject matter jurisdiction. Although the issue of standing was dispositive, the court also found the claim of improper service to be valid.

I

The plaintiff argues in essence that the first count of the complaint alleges facts sufficient to constitute standing to invoke a constitutionally protected interest in continued employment which demands due process safeguards. He maintains that he has standing to bring the action because the constitution guarantees him due process protection for his reputational and property interests. Although we express no opinion on whether the complaint could withstand a motion to strike aimed at the sufficiency of its allegations to state a claim upon which relief can be granted, we agree that its allegations are sufficient to assert his standing.

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973). These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.” Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981). The question of standing does not involve an inquiry into the merits of the case. It merely requires the plaintiff to make allegations of a colorable claim of injury to an interest which is arguably protected or regulated by the statute or constitutional guarantee in question. Data Processing Service v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1969); Ducharme v. Putnam, 161 Conn. 135, 139, 285 A.2d 318 (1971).

The trial court found that although the challenged action has caused injury to the plaintiff because of loss of employment, the interest sought to be protected did not come within the “zone of interests” protected by General Statutes § 5-164 (b). The court misconstrued the claim asserted in the first count of the complaint. That claim is premised on article first, § 10 of the constitution of Connecticut, which embodies our state procedural due process provision. See Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 376, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 395, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976). In essence, the plaintiff claims that he has constitutionally protected interests in his reputation and his property, and that those interests were injured by the defendants’ failure to hold a hearing on his request for continuation of his employment and to provide him with notice of the reasons for the denial of the request. See Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 38 L. Ed. 2d 548 (1972); Lee v. Board of Education, 181 Conn. 69, 434 A.2d 333 (1980). The injury which he alleges for standing purposes, therefore, is the deprivation of his due process rights. Whether the plaintiff will be successful on a motion to strike or on the merits is immaterial to the issue of standing. The court’s inquiry on the motion to dismiss should have focused, not on whether the plaintiff was entitled to notice and a hearing, but rather on whether he had standing to raise the issue of whether he was entitled to notice and a hearing. See Data Processing Service v. Camp, supra, 152-53.

Standing goes to the court’s subject matter jurisdiction. Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251 (1984). Construing the first count of the complaint in a manner most favorable to the plaintiff, as we must; American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217, 459 A.2d 1031 (1983); we conclude that the plaintiff has alleged sufficient facts to withstand the defendants’ motion to dismiss. The cases cited by the defendants are inapposite because they were determined on the merits.

II

As to the second count, the trial court found that this action did not involve a “contested case” under the UAPA. We agree.

It is by now axiomatic that administrative appeals under the UAPA must be from contested cases, which are proceedings in which either the opportunity for a hearing is “required by statute” or in which a hearing was in fact held. General Statutes § 4-166 (2); Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 469, 378 A.2d 547 (1977). There is nothing in General Statutes § 5-164 (b) which requires that an opportunity for a hearing be provided, and it is undisputed that no hearing was in fact held.

The plaintiff claims that the constitution is a “statute” within the purview of General Statutes § 4-166 (2) and that therefore his “rights ... or privileges . . . are required by statute to be determined . . . after an opportunity for hearing . . . .” For purposes of this claim we assume without deciding that he is correct in his assertion that our state constitution entitles him to an opportunity for a hearing.

The defendant’s argument requires us to confront a question left unanswered by our Supreme Court: whether the “opportunity for hearing” which is referred to as being “required by statute” under General Statutes § 4-166 (2) includes such an opportunity required by the constitution. See Rybinski v. State Employees’ Retirement Commission, supra, 471 n.5. We conclude that it does not.

Prior to 1973, the phrase “required by statute” read as “required by law.” Public Acts 1973, No. 73-620, § 2 amended it to read as “required by statute.” Certainly the earlier phrase is broader than the later and is more susceptible of the broad reading urged by the plaintiff. “Statute” in common legal parlance refers to an act of the legislature. Ballentine’s Law Dictionary. This use of the word runs throughout General Statutes § 1-1, which is the general definitional provision for statutory language. Furthermore, a statutory amendment is ordinarily intended to effect a change in its meaning; Heffernan v. Slapin, 182 Conn. 40, 49, 438 A.2d 1 (1980); or to clarify the legislative intent as to a previously existing ambiguity. Lee v. Board of Education, 181 Conn. 69, 75, 434 A.2d 333 (1980). The legislative history of Public Acts 1973, No. 73-620, § 2 indicates that it was intended to narrow the scope of General Statutes § 4-166 (2) by clarifying a previously perceived ambiguity. Thus, we conclude that if an opportunity for a hearing is required by the constitution, it is not “required by statute” under General Statutes § 4-166 (2).

Thus, the administrative proceedings of which the plaintiff complains did not constitute a contested case. The plaintiff could not, therefore, assert standing under the UAPA. Ardmare Construction Co. v. Freedman, 191 Conn. 497, 504, 467 A.2d 674 (1983). The court was correct in dismissing the second count of the complaint for lack of subject matter jurisdiction.

The court found, as an alternative basis for dismissing the entire action, that service was improper because the defendants were not served individually. This was error. It is undisputed that the defendants were served only in their official capacities through the attorney general’s office. Pursuant to General Statutes § 52-64, in any civil action or proceeding against any board, commission or officer of the state, service may be made through the attorney general’s office. The complaint indicates that this action is against the defendants in their official capacities. The relief sought can only be granted by them in those capacities. Service on them through the attorney general’s office was proper.

There is error in part, the judgment, insofar as it dismissed the first count of the complaint, is set aside, and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).

       Effective March 1, 1983, Southern Connecticut State College was renamed Southern Connecticut State University. General Statutes § 10a-87.

       General Statutes § 5-164 (b) provides: “A member [of the state employees retirement system] who has reached the retirement age of seventy may be continued in his position in state service, if such continuation is approved by the commissioner of administrative services. The appointing authority requesting such continuation shall certify in writing to the commissioner of administrative services that the continuation is desirable for the efficient conduct of the state’s business and that the member is able and qualified to perform the work required. Approval by the commissioner of administrative services of such continuation shall be for a period of one year, which may be renewed by said commissioner upon request by the appointing authority.”

       The court rejected the claim relating to a prior pending action because the other action was withdrawn on August 30, 1982. Neither party challenged this finding and it is not in issue in this appeal.

       The constitution of Connecticut, article first, § 10 provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       Also inapposite is the defendants’ argument to the effect that the plaintiff lacks standing because he is now retired and thus cannot be “continued in his position in state service . . . .” (Emphasis added.) General Statutes § 5-164 (b). His complaint seeks a hearing and, construed in his favor, indicates some sort of preretirement request therefor. The defendants can not deprive him of standing to sue for such a hearing by simply failing to respond until it is too late for it to do any good.

       General Statutes § 4-166 (2) provides in relevant part: “ ‘Contested case’ means a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . .”

       Representative Russell L. Post, Jr., explained that the purpose of the amendment was “to correct an ambiguity created by a Court decision within the last month having to do with the definition of a contested case.” 16 H. R. Proc., Pt. 13, 1973 Sess., p. 6436.

       The result might well be different if a statute had been read or were required to be read to include the necessity of a hearing in order to save its constitutionality. Cf. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 94 L. Ed. 616 (1950). The plaintiffs complaint makes no such claim here, however, as to General Statutes § 5-164 (b).

       We note that General Statutes § 4-188a exempts the constituent units of the state system of higher education from the UAPA if certain conditions are met. There was no showing that these conditions have been met and neither party briefed the issue. We therefore decline to discuss it.


text:
    State of Connecticut v. Richard A. Giorgio
    (2082)
    Testo, Dupont and Borden, Js.
    Argued April 11
    decision released June 26, 1984

      Daniel V. Presnick, for the appellant (defendant).

      Steven M. Sellers, deputy assistant state’s attorney, with whom, on the brief, were James Radda, deputy assistant state’s attorney, and Carl Schuman, assistant state’s attorney, for the appellee (state).
   Dupont, J.

After a jury trial, the defendant was convicted of criminal impersonation in violation of General Statutes § 53a-130 (a). The defendant has appealed claiming that the trial court erred (1) in ruling that the defendant’s presence was required during the trial; (2) in denying his motion to dismiss and his motions for judgment of acquittal; and (3) in failing to charge as requested.

From the evidence presented at trial, the jury could reasonably have found the following: In the early morning hours of June 28,1982, Laura McKinley was driving on interstate 95 in New Haven when another car, driven by the defendant, moved in a position parallel to her. The defendant flashed a silver badge, which consisted of a shield in a black leather case, and pointed at her. McKinley pulled over to the side of the highway, as did the defendant. Upon stopping, the defendant walked up to her side window, again flashed the badge and told her she had been speeding. McKinley addressed him as “officer” and handed him her license. The defendant criticized her driving and stated that he would not ticket her because he was in “hot pursuit” of another vehicle. He then returned to his car and drove away. McKinley and her passenger had noted the license number of the defendant’s car and reported the incident to the state police.

The defendant is an honorary deputy sheriff of New Haven County. He received the title and badge when he joined a sheriff’s association, after having paid dues of approximately $30. The badge is not issued through the office of the chief sheriff, and does not carry with it any power or authority.

I

On the first day of trial, just prior to the presentation of the state’s case in chief, the state, prompted by the defendant’s absence from the courtroom, moved that the defendant be compelled to be present. The trial court granted the motion. It is the defendant’s claim that his forced presence at the trial constituted an impermissible show-up in violation of his constitutional rights because any identification of him would be based on his presence in the courtroom. In the absence of the defendant and the jury, the state’s two identification witnesses preliminarily testified as to the appearance of the man who stopped McKinley’s car. The trial then proceeded with the defendant in attendance.

A defendant has a constitutional right to be present at all stages of his criminal trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); State v. Olds, 171 Conn. 395, 405, 370 A.2d 969 (1976). This right may be waived by the defendant’s voluntary and deliberate absence from the trial without good cause, or by his conduct or misconduct. Illinois v. Allen, supra; State v. Parham, 174 Conn. 500, 505, 391 A.2d 148 (1978); Talton v. Warden, 171 Conn. 378, 384, 370 A.2d 965 (1976).

The defendant argues that he not only has a constitutional right to be present at his trial but a constitutional right to be absent from his trial. Prior Connecticut decisions relating to the right of an accused to be present during criminal proceedings concern claims that a trial should not have been continued in the absence of the defendant. None concerns the power of the court to compel his attendance. The Practice Book, however, substantiates the proposition that there is no right of absence of a defendant from his criminal trial. Practice Book § 967 provides that “[t]he defendant has the right to be present at the arraignment, at the time of the plea, at evidentiary hearings, at the trial, and at the sentencing hearing.” Practice Book § 968 states that a defendant “must be present at the trial” but may be excused by the court if he is represented by counsel and waives the right to be present. In addition, § 969 provides that “[i]f the defendant is not present at the trial or a part thereof . . . and his absence has not been excused, the judicial authority, by order, may direct a law enforcement officer to bring the defendant forthwith before the court for the trial or hearing.”

Federal cases provide authority for the tenet that, although a court may proceed with a criminal trial if the defendant voluntarily absents himself from it, there is no concomitant right of absence from a criminal trial of a defendant. United States v. Moore, 466 F.2d 547 (3d Cir. 1972). There is no due process violation in the requirement that a defendant must attend his own trial even where his identification as the perpetrator of the crime is an integral part of the issues before the jury. Id., 548; see also In re United States, 597 F.2d 27 (2d Cir. 1979); United States v. Fitzpatrick, 437 F.2d 19 (2d Cir. 1970). In United States v. Meinster, 481 F. Sup. 1112 (S.D. Fla. 1979), the court held that although the defendant may not have the right to be absent from his trial, a trial court has the discretion to permit such an absence. Id., 1115. The court, however, denied the defendants’ motions to be absent where one wished to attend to business affairs and the other to undergo elective surgery, since neither had shown “a truly compelling need for [their] presence elsewhere.” Id., 1117. The federal cases interpret Rule 43 of the Federal Rules of Criminal Procedure, which is analagous to Practice Book §§ 967 and 968. In the absence of Connecticut cases interpreting a particular section of the Practice Book, federal cases interpreting similar federal rules may be consulted. State v. Shaw, 185 Conn. 372, 386, 441 A.2d 561 (1981).

In the appeal before us, the defendant wished to absent himself from the courtroom solely and expressly to make it more difficult for the state to prove its case as to his identity. The court did not violate any constitutional right of the defendant in requiring that he be present for trial.

II

The defendant assigns as error the trial court’s denial of his motion to dismiss, which was based on the claim that General Statutes § 53a-130 (a) was unconstitutionally vague, and its denial of his motions for judgment of acquittal for the state’s failure to prove the necessary elements of the crime with which he was charged.

The defendant’s vagueness claim is couched in general principles of law without application to the facts of this case. It appears, however, that his central concern is the meaning of “public servant,” which is not defined in § 53a-130. In construing a statute, other statutes relating to the same subject matter may be looked to for guidance because the legislature is presumed to have created a consistent body of law. Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980); Doe v. Institute of Living, Inc., 175 Conn. 49, 58, 392 A.2d 491 (1978). Section 53a-2 states that the provisions of the penal code apply to any offense defined in that title, unless otherwise expressly provided or unless the context otherwise requires. Section 53a-146 of the code provides definitions applicable to bribery, offenses against the administration of justice and other related offenses. Subsection 3 thereof defines “public servant” as “an officer or employee of government, elected or appointed, and any person participating as adviser, consultant or otherwise, paid or unpaid, in performing a governmental function.” Under § 53a-2, this definition applies not only to bribery, offenses against the administration of justice and related offenses but to other sections of the code, including § 53a-130 (a). See State v. Perruccio, 192 Conn. 154, 160, 471 A.2d 632 (1984).

“[L]aws may be general in nature so as to include a wide range of prohibited conduct. The constitution requires no more than a reasonable degree of certainty!’ Id., 160-61, quoting State v. Chetcuti, 173 Conn. 165, 377 A.2d 263 (1977). Section 53a-130 (a) clearly meets that requirement. It is not necessary that the statute list the precise actions prohibited by it. State v. Eason, 192 Conn. 37, 47, 470 A.2d 688 (1984). There is no merit in the defendant’s argument that he lacked fair warning that directing another driver to pull off the highway, displaying a badge and delivering a reprimand was proscribed conduct. The court was correct in denying the defendant’s “motion to dismiss.”

The denial of the defendant’s motions for judgment of acquittal was also proper. It was the state’s burden to prove that the defendant pretended to be a public servant or that he had worn or displayed, without authority to do so, a badge by which such public servant is lawfully distinguished. In other words, the state had the burden of proving the negative fact that the defendant was not a public servant at the time of the offense. The state satisfied this burden. It was not required to prove a matter personal to the defendant which would remove him from the operation of the statute, i.e., that he truly was a public servant. State v. Januszewski, 182 Conn. 142, 147, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

It was also the state’s burden to prove that the defendant had the specific intent “to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense,” since such intent is an essential element of the crime. See State v. Carter, 189 Conn. 611, 625, 458 A.2d 369 (1983). Intent may be, and usually is, inferred from conduct. State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977); State v. Sober, 166 Conn. 81, 92-93, 347 A.2d 61 (1974). The defendant’s actions and statements were circumstantial proof of his intent to induce McKinley to submit to the official authority he pretended to be. The jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983). The defendant’s contention that the state was required to prove which specific public servant the defendant was impersonating is baseless.

Ill

The defendant argues that the court erred in its charge as to the term “public servant.” The court defined public servant as “government official” and declined to charge as requested by the defendant. The meaning of public servant has been previously discussed in the context of the defendant’s void for vagueness argument. The charge as given was correct and sufficient for the guidance of the jury. State v. Storlazzi, 191 Conn. 453, 464, 464 A.2d 829 (1983); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982).

The defendant also claims that the jury instructions as to inferences were erroneous. He maintains that the court should have charged that an inference may be drawn only if it is established beyond a reasonable doubt. This is incorrect. The jury may draw reasonable and logical inferences from facts proved beyond a reasonable doubt; State v. Stepney, supra; or from facts it has found as the result of other inferences. State v. Avcollie, 178 Conn. 450, 460, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980). A jury may find the defendant guilty beyond a reasonable doubt if the cumulative effect of the facts established and the inferences reasonably drawn from the facts establishes such guilt. State v. Stepney, supra. There is no basis for the defendant’s request to charge other than his confusion of the distinction between inferences and presumptions, and his misstatement of the law. The defendant was entitled to have the jury correctly instructed on the law. State v. Falcone, 191 Conn. 12, 26, 463 A.2d 558 (1983); State v. Cooper, 182 Conn. 207, 210, 438 A.2d 418 (1980).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-130 (a) provides: “A person is guilty of criminal impersonation when he: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or (2) pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or (3) pretends to be a public servant, or wears or displays without authority any uniform or badge by which such public servant is lawfully distinguished, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense.”

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 3983, No. 83-29, § 3 (c).

       The defendant also claimed that the court erred in imposing a sentence to be served consecutive to a previous, undischarged sentence. That issue is now moot since the defendant has served his sentence on the present conviction and parole has been discharged on the previous sentence. The issue is not, therefore, considered in this opinion.

       Fed. R. Crim. P. 43 provides as follows:
      “(a) PRESENCE required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
      “(b) continued presence NOT required. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived his right to be present whenever a defendant, initially present,
      “(1) voluntarily absents himself after the trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial), or
      “(2) after being warned by the court that disruptive conduct will cause him to be removed from the courtroom, persists in conduct which is such as to justify his being excluded from the courtroom.
      “(c) presence NOT required. A defendant need not be present in the following situations:
      “(1) A corporation may appear by counsel for all purposes.
      “(2) In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial, and imposition of sentence in the defendant’s absence.
      “(3) At a conference or argument upon a question of law.
      “(4) At a reduction of sentence under Rule 35.”

       The motion was properly a motion for judgment of acquittal. Practice Book § 883.

       The defendant moved for judgment of acquittal at the close of the state’s case in chief and again at the close of all the evidence. The issues raised were virtually the same in both instances.

       The state adduced evidence which established that the defendant was not, and had never been, a member of the New Haven police department or one of its constables, a state trooper, a sheriff or deputy sheriff in New Haven County, or connected with Yale University police, Macy’s security or Malley’s security.

       The court charged the jury in part as follows: “The term ‘public servant,’ as defined in Punk & Wagnalls Standard Desk Dictionary, means ‘a government official.’ ”

       The defendant requested the following instruction: “The term public servant as used in [General Statutes § 53a-130 (a) (3)] is defined as an employee of the State of Connecticut acting in the course of his employment for the benefit of the public. Said term would include a police officer but would not include any job in which an individual was not employed by, that is paid by, the State of Connecticut and while acting in the course of his employment was not a benefit to the public.”


text:
    Trivalent Realty Co., Inc., et al. v. Town of Westport
    (2803)
    Testo, Dupont and Bokden, Js.
    Argued February 10
    decision released June 26, 1984

      Bernard J. Virshup and James A. Miller, Jr., with whom, on the brief, was Geoffrey A. Hecht, for the appellants (plaintiffs).

      Keith D. Dunnigan, with whom, on the brief, was Peter J. Ottomano, for the appellee (defendant).
   Borden, J.

The plaintiffs are property owners who challenge the imposition on them of betterment assessments by the defendant, the town of Westport, following the construction of a municipal parking lot. The parking lot is located within approximately 500 feet of the respective properties of the plaintiffs. The trial court rendered judgment for the defendant. The plaintiffs appealed. We find error.

The memorandum of decision of the trial court, as supplemented by the undisputed exhibits in the case, discloses the following facts. In 1963, the planning and zoning commission of the defendant was requested to review the parking lot project and, as of September 5, 1963, was on record as supporting it. On January 14,1966, the first selectman submitted to the commission, for its final approval, a plan for a public parking lot of approximately 400 parking spaces. The letter of submission noted the prior “preliminary approval,” noted that “[t]he plan has now been finalized and the complete report on the matter was brought before a public hearing Tuesday evening, January 11, 1966,” and “requested that the Planning and Zoning Commission consider this plan for final approval. Copy of the plan with attached maps is enclosed herewith.” This submission was pursuant to General Statutes, Cum. Sup. 1963, § 8-24, which then provided, in effect, that a municipality shall not make a municipal improvement without first referring the proposal for the improvement to its planning commission for a report; that failure of the commission to report within thirty days constitutes approval; and that disapproval by the commission must be transmitted to the municipal legislative body for consideration by it. We note that although the defendant had chosen to combine its planning and zoning commissions into one body; see General Statutes § 8-4a; the commission referred to by General Statutes § 8-24 is the planning commission. Thus, in acting pursuant to General Statutes § 8-24, the commission was acting in its planning capacity. See Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 571-72, 153 A.2d 441 (1959).

On January 24, 1966, the commission stated in its minutes that three steps were necessary for finalization of the project: approval under General Statutes § 8-24 for acquisition of the land; zoning approval for use of the land as a parking lot; and zoning authorization for a change in the size of the lots along Myrtle Avenue. On August 18,1966, the commission noted in its minutes that a special permit would be required for the parking facility, which would be treated as a municipal use project in a residential zone. On April 25,1968, the commission’s planning director presented to the commission a revised design layout of the parking lot, which had been prepared by the planning staff. This revised design incorporated into the plan a parcel known as the Kraft property and eliminated from the plan a parcel known as the Hulbert tract. The Hulbert tract is .98 of an acre in size and was being used as a private parking lot for 104 cars. The commission “informally approved” this design as presented, withholding formal action on design and zoning until completion of a grading plan by the town engineer. On August 22,1968, the commission granted a special zoning permit for the construction of a parking lot for 207 cars. The commission did not, within thirty days of June 14,1966, or at any time, report to the board of selectmen in response to the request made on that date under General Statutes § 8-24. In 1975, an ad hoc committee submitted to the board of selectmen a formula for determining the amounts of the betterment assessments. The board adopted this formula, the application of which includes the properties of the plaintiffs.

The plaintiffs sued the defendant, claiming that the assessments were illegal on various grounds. The trial court rejected the challenges to the assessments and rendered judgment for the defendant.

In our view, one of the grounds of appeal of the plaintiffs is dispositive. It is, therefore, unnecessary to address the plaintiffs’ other claims. The dispositive ground is that the defendant did not comply with General Statutes § 8-24.

We agree with the trial court and the defendant that the failure of the commission to report on the proposal “within thirty days after the date of official submission to it [must] be taken as approval of the proposal.” General Statutes, Cum. Sup. 1963, § 8-24. Implicit in the trial court’s decision is a finding that the submission of January 14,1966, was the “official submission” under General Statutes § 8-24. It also specifically found that the commission did not report within thirty days thereafter. As used in General Statutes § 8-24, the word “report” means “to return or present (a matter officially referred for consideration) with conclusions or recommendations . . . .” Webster, Third New International Dictionary. The vote of the commission, standing alone, as reflected in its minutes, did not constitute a report to the board of selectmen. Thus, the proposal was approved as a matter of law. See Viking Construction Co. v. Planning Commission, 181 Conn. 243, 246-47, 435 A.2d 29 (1980); Merlo v. Planning & Zoning Commission, 1 Conn. App. 621, 474 A.2d 477 (1984).

The proposal as approved, however, was for a parking lot for approximately 400 cars, with a particular configuration and involving the acquisition of all or parts of certain parcels of property. The project which forms the basis of the betterments assessed against the plaintiffs is a parking lot for 207 cars. The trial court considered that the difference between the two resulted simply from a redrawing of the lines for parking spaces and was, therefore, de minimis. The plaintiffs take issue with this determination.

An offstreet parking lot in a congested business district is a municipal improvement for which benefited properties may be assessed. 14 McQuillin, Municipal Corporations (3d Ed. Rev.) § 38.28a. In acting pursuant to a law permitting the levying of betterment assessments, however, “municipal authorities must adhere strictly to its terms, for any material departure therefrom, especially of a jurisdictional nature, is fatal to the validity of the assessment. . . . [I]n levying special assessments . . . due observance of all mandatory and jurisdictional provisions of the applicable law is indispensable. All limitations expressed or implied therein must be strictly observed. If the applicable law prescribes the mode of exercising the power, the mode prescribed must be followed, or the assessment will be void ...” Id., § 38.07; see also Sheehan v. Altschuler, 148 Conn. 517, 523-26, 172 A.2d 897 (1961); Bennett Estate, Inc. v. New Haven, 117 Conn. 25, 34, 166 A. 680 (1933); Gregory v. Bridgeport, 52 Conn. 40, 44 (1884). Under General Statutes, Cum. Sup. 1963, § 8-24, either a report by the commission on the proposal referred to it, approval by the commission of the proposal by failing to report within thirty days, or disapproval of the proposal by the commission followed by a two-thirds vote of the appropriate municipal body was mandatory to the validity of the ultimate assessments. See Jeschor v. Guilford, 143 Conn. 152, 158, 120 A.2d 419 (1956). Here the commission, by its inaction in 1966, approved the proposal but then in 1968 revised it by adding the Kraft property and eliminating the Hulbert tract. Once having approved the proposal, the commission had no authority under General Statutes § 8-24 to revise it in this way without a new submission.

Nor was this revision a de minimis variance. A substantial, as opposed to a slight or immaterial, variance renders an assessment void. 13 McQuillin, Municipal Corporations (3d Ed. Rev.) § 37.87. Although the size and location of the Kraft property is not clear in this record, the significance of the Hulbert tract is clear. The difference, resulting from the elimination of the Hulbert tract, between the proposal approved by operation of law in 1966 and the project as ultimately constructed and on the basis of which the properties of the plaintiffs were assessed goes much beyond a redrawing of lines for parking spaces within an essentially similar parking lot. That elimination changed the basic configuration of the lot, reduced it in size by nearly one acre, and accounts for approximately one-half of the reduced number of parking spaces. These substantial differences persuade us that the defendant did not comply with General Statutes § 8-24 and that these assessments are invalid.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiffs.

In this opinion the other judges concurred.

       The parking lot and the formula used for the betterment assessments are the same as those addressed by the Supreme Court, in a different context, in Mobil Oil Corporation v. Westport, 182 Conn. 554, 438 A.2d 768 (1980). That case did not involve the challenge to the legality of the assessments which the plaintiffs make in this case.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       General Statutes, Cum. Sup. 1963, § 8-24, then in effect, provided as follows: “No municipal agency or legislative body shall locate, accept, abandon, widen, narrow or extend any street, bridge, parkway or other public way, locate, relocate, acquire land for, or abandon, sell or lease, any airport, park, playground, school, or other municipally owned property or public building, extend or locate any public housing project or redevelop, recondition or improve any specific area, or take action on any proposal involving the extent and location of public utilities and terminals, whether publicly or privately owned, for water, sewerage, light, power, transit and other purposes, until the proposal to take such action has been referred to the commission for a report. The failure of the commission to report within thirty days after the dale of official submission to it shall be taken as approval of the proposal. In the case of the disapproval of the proposal by the commission the reasons therefor shall be recorded and transmitted to the legislative body of the municipality. A proposal disapproved by the commission shall be adopted by the municipality only after (a) a two-thirds vote of the town council where one exists, or a majority vote of those present and voting in an annual or special town meeting, or (b) by a two-thirds vote of the representative town meeting or city council or the warden and burgesses, as the case may be.” (Emphasis added.) The thirty day period within which the commission must report was subsequently changed to thirty-five days. See General Statutes (Rev. to 1983) § 8-24.

       The defendant suggests in its brief that the submission to the commission in 1963 was also pursuant to General Statutes § 8-24. It is clear that the trial court considered the 1966 submission as the sole request under General Statutes § 8-24, and that the 1963 action of the commission was merely “preliminary approval.” We decide this case on the theory on which it was tried and decided in the trial court. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983). Moreover, the defendant did not raise the 1963 action of the commission as an alternate ground on which to sustain the judgment of the trial court. See Practice Book § 3012. We likewise do not consider the defendant’s argument in this court that No. 86 of the 1965 Special Acts; 32 Spec. Acts 70, No. 86; rendered approval under General Statutes § 8-24 unnecessary. The defendant conceded at oral argument that this claim was not raised in the trial court, and it was not raised in this court by the defendant under Practice Book § 3012.