author: STOUGHTON, J.

text:
    ANNETTE BARRETTA v. OTIS ELEVATOR COMPANY ET AL.
    (14659)
    Dupont, C. J., and Hermessy and Stoughton, Js.
    Argued April 3
    officially released June 25, 1996

      Bernadette M. Keyes, with whom was Thomas F. Keyes, Jr., for the appellant (substitute plaintiff).

      L. Douglas Shrader, with whom was Kelley Franco, for the appellee (named defendant).
   STOUGHTON, J.

The substitute plaintiff, Giacomo Barretta, executor of the estate of Annette Barretta (plaintiff), appeals from the judgment in favor of the named defendant, Otis Elevator Company (defendant), in an action seeking damages for injuries sustained by Annette Barretta (Barretta) when she fell on an escalator that was in the control of the defendant. The plaintiff claims on appeal that the trial court improperly refused to charge the jury on the doctrine of res ipsa loquitur.

The amended complaint stated a product liability claim under General Statutes § 52-572m et seq., alleging both strict liability and negligence. The defendant denied the material allegations of the complaint and filed a special defense alleging contributory negligence, after which the issues were joined and the case tried to a jury.

The jury could reasonably have found the following facts. On the evening of August 24, 1990, Barretta and her husband went to Milford Jai Alai, Inc., with another couple. During the evening, Barretta and the other woman went downstairs to purchase ice cream. To return to their seats on the upper level, they stepped onto the ascending escalator, with the other woman in the lead. The escalator came to a sudden stop and Barretta fell, sustaining injuries.

The plaintiff requested a charge on the doctrine of res ipsa loquitur. The trial court declined to charge on the doctrine. Interrogatories were submitted to the jury, the first two of which inquired whether the plaintiff had proven that the escalator was defective and whether the defendant was negligent as alleged. The jury was instructed to answer no further interrogatories if it concluded that the defendant had not been proven negligent. Succeeding interrogatories were addressed to proximate cause, contributory negligence and comparative responsibility. The jury answered that the escalator had not been proven defective and that the defendant had not been proven negligent, and, therefore, it returned a verdict for the defendant.

The plaintiff presented no direct evidence that would have established that the defendant was negligent as alleged. The plaintiff claims, however, that, in the circumstances of this case, he was entitled to a charge on res ipsa loquitur because the testimony that the escalator stopped suddenly for no apparent reason, if believed, was sufficient for the jury to infer negligence under that doctrine. See Malvicini v. Stratfield Motor Hotel, Inc., 206 Conn. 439, 441-42, 538 A.2d 690 (1988). The defendant asserts that in the absence of evidence sufficient to prove what caused the escalator to stop, the jury cannot infer that the defendant’s negligence is the most plausible explanation for Barretta’s injury, and that the trial court properly refused to give the requested charge. We agree with the plaintiff.

A party is entitled to a charge on the doctrine of res ipsa loquitur “when three conditions are satisfied: ‘ “(1) [t]he situation, condition, or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction, inspection or user[;] (2) [bjoth inspection and user must have been at the time of the injury in the control of the party charged with neglectf;] (3) [t]he injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.” Schurgast v. Schumann, [156 Conn. 471, 479, 242 A.2d 695 (1968)] ....’” (Citations omitted.) Giles v. New Haven, 228 Conn. 441, 446-47, 636 A.2d 1335 (1994). Whether the doctrine applies is a question of law for initial determination by the court. Malvicini v. Stralfield Motor Hotel, Inc., supra, 206 Conn. 443.

The first condition is clearly satisfied in this case. Ordinarily, an escalator does not suddenly stop while people are riding on it unless someone has been negligent. See generally Giles v. New Haven, supra, 228 Conn. 448; Malvicini v. Stratfield Motor Hotel, Inc., supra, 206 Conn. 443; Killian v. Logan, 115 Conn. 437, 441, 162 A.2d 30 (1932).

The second requirement, that both the inspection and user must have been in the control of the party charged, is satisfied if the plaintiff adduces evidence from which the court can properly determine that a jury could reasonably draw an inference that it is more probable than not that the person whose negligence caused the injury was the defendant and not some other party or agency. Giles v. New Haven, supra, 228 Conn. 451; Malvicini v. Stratfield Motor Hotel, Inc., supra, 206 Conn. 443.

Here, the parties agree that the defendant was in control of the escalator, but the defendant suggests that there are plausible explanations other than its negligence that might explain what occurred. Whether these explanations are plausible depends upon evaluation of the testimony, which is the function of the jury. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 554, 562 A.2d 1100 (1989). For the control condition to be satisfied, all that is necessary is that the plaintiff produce sufficient evidence from which a reasonable person could say that, on the whole, it is more likely than not that it was the negligence of the defendant that caused the occurrence. Giles v. New Haven, supra, 228 Conn. 451. The possibility of other causes does not have to be eliminated completely. See id.

With respect to the third requirement, that the event must have occurred “irrespective of any voluntary-action at the time by the party injured,” the defendant argues that if there is any evidence of negligence on the part of Barretta, an instruction on res ipsa loquitur cannot be given. We disagree. Our Supreme Court recently modified the third requirement in light of General Statutes § 52-572h. In Giles v. New Haven, supra, 228 Conn. 455, the court held that whenever a court can reasonably find that the event is one that ordinarily would not have occurred in the absence of someone’s negligence, and that the defendant’s inferred negligence was more probably than not a cause of the injury, the doctrine of res ipsa loquitur applies even though the plaintiffs negligence may also have contributed to the injury. In such a case, the comparative negligence statute would apply. Id. We conclude that the jury could have found that Barretta fell and was injured irrespective of any voluntary action on her part. The three conditions were satisfied in this case.

The defendant argues, however, that the plaintiff was not entitled to a charge on res ipsa loquitur in any case because the first sentence of the plaintiffs preliminary request to charge “incorrectly stated that res ipsa loqui-tur was a theory upon which the jury’s verdict could be based.” The defendant argues that “[fjollowing the court’s charge, the plaintiff did not take exception to the court’s refusal to charge as requested.” Rather, according to the defendant, the plaintiff generally took “exception for failure to charge on the doctrine of res ipsa loquitur.” The defendant argues that the request to charge was, therefore, inadequate. We disagree.

The defendant correctly asserts that the doctrine of res ipsa loquitur is simply an application of the general principle that negligence can be proved by circumstantial evidence. Schurgast v. Schumann, supra, 156 Conn. 480-81. This, however, does not render the plaintiffs preliminary request to charge inadequate. We conclude that the preliminary request to charge on the doctrine was adequate for its purpose.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Annette Barretta initially commenced this action to recover damages against Milford Jai Alai, Inc., and Otis Elevator Company. On May 8, 1993, Barretta died from causes unrelated to the injuries she suffered in the fall at issue. Thereafter, the action continued with her executor, Giacomo Barretta, as substitute plaintiff. On July 20,1994, the action was withdrawn as against Milford Jai Alai, Inc., and the case proceeded to trial on an amended complaint solely against Otis Elevator Company.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    SHARON DOBOZY v. JOHN DOBOZY
    (14436)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs March 27
    officially released June 25, 1996

      Nancy A. DeRose, James J. Ruane, Johnpatrick C. O’Brien, and James O. Gaston filed a brief for the appellant (defendant).

      James A. Trowbridge and John H. Van Lenten, legal intern, filed a brief for the appellee (plaintiff).
   LAVERY, J.

The defendant appeals from the judgment of the trial court granting the plaintiffs motion for attorney’s fees. On appeal, the defendant claims that the trial court improperly (1) granted the plaintiffs motion for attorney’s fees despite the plaintiffs failure to request attorney’s fees in her written motion for contempt, (2) granted the plaintiffs motion for attorney’s fees without finding the defendant in contempt and (3) denied the defendant’s request for an evidentiary hearing concerning the reasonableness of the attorney’s fees claimed by the plaintiff. We conclude that the trial court improperly granted the plaintiffs motion for attorney’s fees without finding the defendant in contempt. We therefore reverse the judgment of the trial court and remand the matter with direction to vacate the award of attorney’s fees.

The following facts are undisputed. On May 16,1991, the trial court, McKeever, J., rendered judgment dissolving the parties’ marriage and entered orders concerning the two minor children. Pursuant to the parties’ stipulation, on June 16,1994, the trial court, Thim, J., ordered that the plaintiff arrange for psychological treatment of the parties’ son. On October 13, 1994, the trial court ordered that the defendant bring the minor son to the Bridgeport Child Guidance Center for psychological evaluation. At that time, the trial court, Petroni, J., also modified the defendant’s child support obligation. On December 19, 1994, the plaintiff filed a motion for contempt alleging that the defendant failed to pay court ordered child support and failed to arrange for a psychological evaluation of the parties’ son. The plaintiffs motion did not seek attorney’s fees.

At the hearing on the plaintiffs motion, the plaintiff agreed to transport the son to psychological counseling. The trial court ordered that the plaintiff bring the parties’ son to the Bridgeport Child Guidance Center for counseling at the plaintiffs cost and expense. The defendant paid the plaintiff $227.50 in child support arrearage. The trial court found that the defendant complied with the orders at issue in the motion, and did not find the defendant in contempt.

At the conclusion of the proceedings, the plaintiff orally requested that the court award attorney’s fees. The trial court, Petroni, J., found that the $2537 claimed by the plaintiff for attorney’s fees was reasonable, and ordered the defendant to pay one half of the plaintiffs attorney fees for a total of $1250, payable at a rate of $50 per month commencing February 1, 1995.

The dispositive issue in this appeal is whether the trial court improperly awarded attorney’s fees without first finding the defendant in contempt. The defendant relies on General Statutes § 46b-87 for the proposition that the trial court must first find the defendant in contempt before awarding attorney’s fees. The plaintiff argues that General Statutes § 46b-62 authorizes the trial court to order attorney’s fees in a proceeding concerning the custody, care, education, visitation or support of a minor child.

Section 46b-87 authorizes an award of attorney’s fees to the petitioner only if the respondent is found in contempt. See Tatro v Tatro, 24 Conn. App. 180, 189, 587 A.2d 154 (1991); Messina v. Messina, 22 Conn. App. 136, 139, 576 A.2d 579 (1990). The section also authorizes the trial court to award attorney’s fees to the respondent if the respondent is found not to be in contempt of the trial court’s order. Section 46b-87 applies to instances when a person is found in contempt of an order of the Superior Court entered under various statutory provisions. The provisions included are General Statutes § 46b-60 relating to orders regarding children and alimony in annulment cases, General Statutes § 46b-61 regarding orders for child support where parents live separately, § 46b-62 regarding orders for the payment of attorney’s fees, General Statutes § 46b-81 regarding property assignments, General Statutes § 46b-83 regarding pendente lite alimony, child support and use of the family home, and General Statutes § 46b-86 regarding modification of alimony or support orders. By its express terms, § 46b-87 is not applicable to child support orders made in a dissolution proceeding pursuant to General Statutes § 46b-84 or orders concerning the care of a minor child pursuant to General Statutes § 46b-56 (a).

In this case, the trial court relied on both §§ 46b-62 and 46b-87 when it granted the plaintiffs motion for attorney’s fees. Section 46b-62 authorizes the trial court to award attorney’s fees at its discretion. In Mallory v. Mallory, 207 Conn. 48, 58, 539 A.2d 995 (1988), our Supreme Court similarly relied on both §§ 46b-87 and 46b-62 to conclude that the trial court had the inherent power to award attorney’s fees in a contempt proceeding for failure to comply with child support orders if the respondent is found in contempt. The Mallory court stated that “ ‘[w]hen any person is found in contempt of an order of the superior court entered under section 46b-60 to 46b-62, [which include child support orders] . . . the court may award to the petitioner the fees of the officer serving the contempt citation, to be paid by the person found in contempt.’ General Statutes § 46b-87. Under § 46b-62, a court may award reasonable attorney’s fees to a person who brings ‘any prosecution for nonsupport of a minor child or children’ under General Statutes § 51-348a. We hold by analogy to these statutory provisions that when a person is properly found in contempt for failure to comply with child support orders, a court may award the petitioner reasonable compensation for attorney’s fees incurred during that contempt proceeding.” (Emphasis added.) Id. Relying on the conclusion reached by the Supreme Court in Mallory, we hold that the trial court’s inherent power to award attorney’s fees in a contempt proceeding is limited to those cases in which the respondent is found in contempt for failure to comply with child support or child care orders. Unlike the defendant in Mallory, the defendant in this case was not found in contempt. We conclude, therefore, that the trial court improperly awarded attorney’s fees without first finding the defendant in contempt.

The award of attorney’s fees is vacated and the case is remanded with direction to deny the plaintiffs motion for attorney’s fees.

In this opinion the other judges concurred.

       Pursuant to the parties’ separation agreement, the trial court ordered that the parties shall have joint legal custody of the two minor children. The trial court also ordered that the parties shall have split physical custody of the children, with the son residing with the defendant and the daughter residing with the plaintiff. The defendant was ordered to pay child support in the amount of $35 per week.

       The trial court modified the defendant’s child support obligation to $17.50 per week.

       General Statutes § 46b-87 provides in pertinent part: “When any person is found in contempt of an order of the superior court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorney’s fee to such person. . . .”

       General Statutes § 46b-62 provides in pertinent part: “In any proceeding seeking relief under the provisions of [chapter 815j] . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. ...”

       We recognize that General Statutes § 46b-87 was amended by Public Acts 1988, No. 88-196, which inserted provisions for the award of a reasonable attorney’s fee. This change reinforces the conclusion reached by the Mallory court that attorney’s fees are authorized when a person is properly found in contempt.


author: SPEAR, J.

text:
    LINDA LABENSKI v. LOUIS GOLDBERG, COMMISSIONER OF MOTOR VEHICLES
    (14548)
    Spear, Hennessy and Shea, Js.
    Argued March 21
    officially released June 25, 1996

      Lawrence W. Berliner, for the appellant (plaintiff).

      Alan N. Ponanski, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   SPEAR, J.

The plaintiff appeals from the decision of the trial court denying her motion for an award of costs and attorney’s fees after she successfully challenged the suspension of her driver’s license by the defendant, the commissioner of motor vehicles (commissioner). The plaintiff requested fees and costs pursuant to General Statutes § 4-184a (b) after this court held that the commissioner had suspended the plaintiffs license without substantial evidence. In this appeal, she claims that the trial court improperly found that the commissioner’s decision to suspend the plaintiffs license, although made without substantial evidence, was made with substantial justification. We disagree with the plaintiffs claim and affirm the judgment of the trial court.

The facts necessary to resolve this appeal were set out in Labenski v. Goldberg, 33 Conn. App. 727, 638 A.2d 614 (1994). “The plaintiff suffers from an idiopathic seizure disorder. John Hornblow, a neurologist, warned the plaintiff on multiple occasions not to operate a motor vehicle because of the disorder. On April 24, 1991, the plaintiff was injured in a motor vehicle accident. After the accident, she was treated by Melissa Klaus, an emergency room physician employed by Manchester Memorial Hospital, for a mouth laceration and facial contusions. On May 1, 1991, Klaus sent a report to the department of motor vehicles informing them that she believed the accident was the result of the plaintiffs loss of consciousness due to a seizure. Klaus also stated in the report that she admonished the plaintiff not to drive and that part of her information concerning the plaintiff was obtained through a conversation with Homblow.

“On May 28, 1991, the department of motor vehicles informed the plaintiff that her driver’s license would be suspended on June 8, 1991, pursuant to General Statutes § 14-111 (a), because her medical condition made the ‘continued operation of a motor vehicle . . . dangerous to [her] and others.’ The plaintiff requested a hearing to challenge the suspension.

“On October 2, 1991, the department notified the plaintiff that the hearing was scheduled to occur on November 7, 1991. The notice stated that (1) the purpose of the hearing was to determine if she met ‘the minimum physical standards to operate a motor vehicle safely on the highways of Connecticut,’ (2) she would have an opportunity to respond to the claim that she failed to meet the health standards, (3) she could be represented by an attorney, and (4) if it was decided after the hearing that she failed to meet the physical requirements to drive a motor vehicle safely, her license could be suspended or made subject to periodic medical reporting to ensure future fitness to drive. The notice did not mention Klaus’ report to the department. At the November 7, 1991 hearing, Klaus’ report was received into evidence. The plaintiff testified that she had not been under the care of Homblow for seven years, she was taking medication prescribed by Homblow for the seizure disorder at the time of the accident, the warnings from Homblow about not driving occurred long ago, and she had been driving for thirty-six years. She also admitted to having a seizure disorder but doubted that a seizure caused the accident. The hearing officer suggested that she attempt to obtain a neurological report stating that she had been seizure free for at least six months and that the disorder was controlled by medication. The plaintiff did not obtain such a report.

“On February 6, 1992, the hearing officer found that Klaus attributed the cause of the accident to a seizure experienced by the plaintiff, that the plaintiffs seizure disorder was poorly controlled by medication, that the disorder was a longstanding one, and that the plaintiff had been warned by her physician not to drive. The hearing officer further found that the plaintiff proffered no medical reports refuting the opinions of Homblow and Klaus. On the basis of these findings, the hearing officer concluded that the plaintiff failed to meet the minimum physical standards for safe operation of a motor vehicle within the ambit of General Statutes § I4-86 (e), and General Statutes §§ 14-46 through 14-46g. The hearing officer ordered the plaintiffs driver’s license suspended indefinitely and reinstated only upon the receipt of an ‘acceptable’ neurological report.

“On April 1, 1992, the plaintiff, pursuant to General Statutes § 4-183 (a), appealed the decision to the trial court. The plaintiff claimed in the trial court that (1) the notice of the administrative hearing was inadequate and denied her due process of law, (2) the decision of the hearing officer was unsupported by substantial evidence, (3) the suspension ought to have been stayed until the final decision was rendered by the hearing officer, and (4) the suspension deprived the plaintiff of the equal protection of the laws guaranteed to persons with physical disabilities by the Connecticut constitution.

“On February 17, 1993, the trial court affirmed the decision of the department. The trial court stated that the notice of the hearing did not deny the plaintiff due process because it satisfied the four requirements in General Statutes § 4-177 (b), the decision was supported by substantial evidence, which consisted of Klaus’ report and the testimony of the plaintiff, the issue of whether the suspension ought to have been stayed was moot, and the suspension did not deprive the plaintiff of the equal protection of the laws because the state has a compelling interest in highway safety and the decision of the hearing officer was narrowly tailored to protect that interest.” Labenski v. Goldberg, supra, 33 Conn. App. 728-32.

The plaintiff appealed to this court from the decision of the trial court. In reversing the judgment, we concluded that there was “no reliable, probative and substantial evidence” to support the suspension. Id., 736. Our conclusion rested on our determination that Klaus’ report, the only probative evidence in the record, was hearsay that lacked sufficient trustworthiness to be considered substantial evidence. Id., 735.

The plaintiff subsequently filed a motion for costs and attorney’s fees pursuant to § 4~184a (b). The trial court found that the commissioner’s decision to suspend the plaintiffs license was not made “without any substantial justification” and, thus, denied the plaintiffs motion. This appeal followed.

The plaintiff claims that the trial court abused its discretion in denying her motion for costs and attorney’s fees. Specifically, she challenges the trial court’s finding that the commissioner’s decision to suspend her license did not lack substantial justification.

Section 4-184a (b) provides that the trial court “may, in its discretion, award to the prevailing party . . . reasonable fees and expenses in addition to other costs if the court determines that the action of the agency was undertaken without any substantial justification.” There is no dispute that the plaintiff was the- “prevailing party” in her administrative appeal to this court. Our analysis must focus, therefore, on whether the trial court’s finding that the commissioner’s action was undertaken with substantial justification is proper.

It is well settled that the decision to award attorney’s fees and other costs rests solely with the trial court. See Oakley v. Commission on Human Rights & Opportunities, 38 Conn. App. 506, 512, 662 A.2d 137 (1995), aff'd, 237 Conn. 28, 675 A.2d 851 (1996). Because § 4-184a (b) provides that the court “may, in its discretion,” make such an award, we review the denial of an award of such fees under an abuse of discretion standard. “In determining whether the trial court has abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court’s decision.” (Internal quotation marks omitted.) Id., 512-13, quoting Stanford v. Kovacs, 36 Conn. App. 270, 279, 650 A.2d 626 (1994). Moreover, “ ‘[w]hen reviewing a claim [made pursuant to § 4-184a (b)] that the trial court abused its discretion, every reasonable presumption should be given in favor of its correctness, and the ultimate issue is whether the court could have reasonably concluded as it did.’ ” Oakley v. Commission on Human Rights & Opportunities, supra, 522, quoting Misinonile v. Misinonile, 35 Conn. App. 228, 232, 645 A.2d 1024, cert. denied, 231 Conn. 929, 649 A.2d 253 (1994).

The plaintiff asserts in her brief that she is entitled to an award of costs and attorney’s fees “due to her status as a prevailing party and the fact that there was a complete absence of any substantial evidence” to support the suspension of her license. (Emphasis added.) The “substantial evidence” standard, however, is not synonymous with the “substantial justification” language used in § 4-184a (b). “Substantial evidence exists if the administrative record demonstrates a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Labenski v. Goldberg, supra, 33 Conn. App. 733; see also Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 57, 591 A.2d 1231 (1991).

The meaning of the statutory phrase “without any substantial justification” has not been construed by this court or our Supreme Court. We may properly seek guidance, however, from the United States Supreme Court’s analysis of claims made pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 (Sup. 1996). That act provides that “[a]n agency . . . shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified .... Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary and justification for which fees and other expenses are sought.” (Emphasis added.) 5 U.S.C. § 504 (a) (1).

In Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988), the Supreme Court construed the phrase “substantially justified” to mean “justified to a degree that could satisfy a reasonable person.” The court further concluded that the standard “is no different from the ‘reasonable basis both in law and fact’ formulation . . . .’’Id. This reasonableness standard has also been adopted by the Second Circuit Court of Appeals. See Federal Elections Commission v. Political Contributions Data, Inc., 995 F.2d 383, 386 (2d Cir. 1993) (“[t]he test is ‘essentially one of reasonableness’ ”); Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1085 (2d Cir. 1983).

While we recognize that the decision of the commissioner to suspend the plaintiffs license was not supported by substantial evidence because Klaus’ report alone did not satisfy that standard under the circumstances of this case, we hold that such decision was reasonable, and, therefore, was not made without any substantial justification. The record clearly reveals that the overriding concern of the hearing officer, acting on behalf of the commissioner, in suspending the plaintiffs license was to protect the safety of the plaintiff as well as the safety of the public. We base our holding on the evidence presented to the hearing officer and the findings of fact made by him.

The hearing officer, relying on Klaus’ letter, found that the patient suffered from an idiopathic seizure disorder that was the cause of the accident, that her seizure disorder was poorly controlled by medication, and that she had been warned by her physician not to drive. The hearing officer also found that the plaintiff proffered no medical reports refuting the opinions of her physicians. On the basis of these findings, the hearing officer concluded that the plaintiff failed to meet the minimum physical standards for safe operation of a motor vehicle and thus ordered the suspension of the plaintiffs driver’s license.

Despite this court’s later conclusion that Klaus’ letter was insufficiently trustworthy to constitute substantial evidence, the information contained therein provided the hearing officer with substantial justification for suspending the plaintiffs license until she could produce an “ ‘acceptable’ neurological report” indicating that her operation of a motor vehicle no longer posed a safety risk. We conclude that the decision to suspend her license was reasonable and, therefore, substantially justified pursuant to § 4-184a (b). Accordingly, the trial court did not abuse its discretion in denying the plaintiffs motion for costs and attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 4-184a (b) provides: “In any appeal by an aggrieved person of an agency decision taken in accordance with section 4-183 and in any appeal of the final judgment of the superior court under said section taken in accordance with section 51-197b, the court may, in its discretion, award to the prevailing party, other than the agency, reasonable fees and expenses in addition to other costs if the court determines that the action of the agency was undertaken without any substantial justification.” (Emphasis added.)

       See footnote 1.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. ROBERT KORHN
    (14345)
    Lavery, SchaUer and Hennessy, Js.
    Argued December 12, 1995
    officially released June 25, 1996

      Albert E. Goring, with whom, on the brief, was Susan Dixon, for the appellant (defendant).

      Michele C. Lukban, deputy assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Daniel J. Guariglia, deputy assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Robert Korhn, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (2). The defendant claims that General Statutes § 14-227a (c) (6), as amended by No. 93-371, § 2, of the 1993 Public Acts, is unconstitutional as written or applied in this case and that the court’s charge to the jury, which outlined and applied the presumption set forth in said section as to the defendant’s blood alcohol content (BAC) at the time of the alleged offense, resulted in a denial of due process in violation of the fifth and fourteenth amendments to the United States constitution.

The jury reasonably could have found the following facts. After spending several hours in a New London bar, the defendant proceeded onto Interstate 95, where an off-duty state trooper observed him traveling at a high rate of speed. The trooper stopped the defendant and administered two field sobriety tests. After concluding that the defendant was intoxicated, he radioed the Troop E barracks by radio and asked that an on-duty trooper come to the scene. After observing the appearance of the defendant, the responding trooper administered a field sobriety test, concluded that the defendant was intoxicated and arrested him.

The defendant contends that the rebuttable presumption set forth in § 14-227a (c), which provides that the level of alcohol in a person’s blood is the same at the time of his operation of a motor vehicle as it is at the time of the blood alcohol test performed one and one-half hours later, is entirely irrational. Therefore, he argues that even though the trial court may charge the presumption as a permissive inference, the statute violates his right to due process because its suggested conclusion is not one that reason and common sense justify in light of the facts before the jury. The defendant also contends that the presumption shifts the burden of proof from the state to the defendant on an essential element of the offense, namely, that the defendant’s BAC was greater than 0.10 percent at the time he was operating the vehicle. The state contends that the analysis of the constitutionality of the rebuttable presumption in the statute must be viewed in its application to the defendant. The state asserts that the proper inquiry is whether it is reasonably likely that the jury applied the instruction from the court so as unconstitutionally to shift to the defendant the burden of persuasion on an essential element of the offense and whether the jury could rationally make the connection permitted by the inference.

In State v. Geisler, 22 Conn. App. 142, 160-62, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated on other grounds, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657, on remand, 25 Conn. App. 282, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992), this court determined, under General Statutes (Rev. to 1985) § 14-227a (c) as amended by Public Acts 1985, No. 85-596, what evidence was necessary to prove a violation of § 14-227a (a) (2). In Geisler, the state was required to prove that the vehicle was operated on a public highway while the driver’s BAC was 0.10 percent or higher. State v. Geisler, supra, 159. General Statutes (Rev. to 1985) § 14-227a (c), as amended by Public Acts 1985, No. 85-596, set forth six preconditions for the admissibility of a chemical test. State v. Geisler, supra, 160. If the six preconditions were met, the chemical test could be used to show the BAC of the accused. Id., 160-61. Precondition (5) required that “ ‘an additional chemical test of the same type [be] performed at least thirty minutes after the initial test was performed’ id., 160; and precondition (6), as then written, provided that “ ‘evidence [must be] presented which demonstrates that the test results and the analysis thereof accurately reflect the blood alcohol content at the time of the alleged offense.’ ” (Emphasis in original.) Id., 160-61; see General Statutes (Rev. to 1987) § 14-227a (c) (5) and (6) (incorporating 1985 amendment). This court interpreted subdivision (6) to require that expert testimony specifically relate the BAC at the time of the tests to the BAC at the time of operation of the vehicle. State v. Geisler, supra, 161-62.

Subsequent to the Geisler decision, in Public Acts 1993, No. 93-371, the legislature amended the “analysis thereof’ language of § 14-227a (c) so that the state could prove a violation of § 14-227a (a) (2) without the need for extrapolation testimony. The legislature inserted a rebuttable presumption that provides that the BAC at the time of operation will be presumed to be the same as it was at the time of the first test without extrapolation testimony. General Statutes § 14-227a (c). If the result of the second test is higher than that of the first test and measures 0.12 percent or less, the presumption is invalid and expert testimony relating the BAC to the time of the incident is required. General Statutes § 14-227a (c).

Connecticut has joined a growing number of states that do not generally require expert testimony to relate a driver’s BAC at the time of the test to the driver’s BAC at the time of operation. The laws in these states provide that if the test is administered within a certain time after the offense, the chemical test results can be used to infer a violation. State v. Geisler, supra, 22 Conn. App. 162-63, citing Erickson v. Municipality of Anchorage, 662 P.2d 963, 964-65 (Alaska App. 1983) (presumption of violation if administered within four hours); People v. Pritchard, 162 Cal. App. 3d Sup. 13, 16, 209 Cal. Rptr. 314 (1984) (rebuttable presumption of illegal BAC if within three hours); State v. Larson, 429 N.W.2d 674, 676-77 (Minn. App. 1988) (within two hours); People v. Mertz, 68 N.Y.2d 136, 139, 497 N.E.2d 657, 506 N.Y.S.2d 290 (1986) (prima facie case established if administered within two hours); State v. Ulrich, 17 Ohio App. 3d 182, 190, 478 N.E.2d 812 (1984) (within two hours).

Although the defendant wants this court to address the constitutionality of § 14-227a (c) on its face, we decline to do so. Instead, we address the statute as it applies to the defendant in this case. “A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. Broadrick v. Oklahoma, 413 U.S. 601, 610 [93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973)].” Ulster County Court v. Allen, 442 U.S. 140, 154-55, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979).

In the present case, the defendant contends that the statutory presumption, as applied to him and as explained to the jury, denied him his right to due process. The defendant argues that the application of the presumption in the jury charge constituted a denial of due process because no rational connection exists between the facts proved and the facts presumed. He contends that the possibility that his BAC at the time of the offense was the same as it was at the time of the first test is so remote as to render the § 14-227a (c) presumption meaningless and, therefore, invalid. The state argues that the jury charge clearly defined the rebuttable presumption as a permissive inference. Furthermore, the state contends that, based on the test results, the conclusion that the defendant was operating a motor vehicle while under the influence of intoxicating liquor is grounded in reason and common sense.

The court emphasized in its charge to the jury that the “presumption” was an inference that a fact exists, that the presumption is not binding and the jury is not obligated to attach any weight to it, that it can be overcome by other evidence presented in the case and that all of the evidence in the case must still be considered in determining if the state has proven the defendant’s guilt beyond a reasonable doubt. The words “rebuttable presumption” were defined by the court as a permissive inference. Our Supreme Court has stated that “[a] permissive inference suggests to the jury a possible conclusion to be drawn if the state proves predicate facts, but does not require the juiy to draw that conclusion.” (Internal quotation marks omitted.) State v. Amarillo, 198 Conn. 285, 302, 503 A.2d 146 (1986). “An ‘entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer the elemental fact from the proof by the prosecutor of the basic one and that places no burden of any kind on the defendant . . . [does not violate due process unless] there is no rational way the trier could make the connection permitted by the inference.’ Ulster County Court v. Allen, [supra, 442 U.S. 157] . . . .” State v. Truppi, 182 Conn. 449, 456, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed 2d 329 (1981).

The permissive presumption or inference set forth in the statute as presented to the jury does not shift the burden of proof on the element of being under the influence of intoxicating liquor at the time of operation of a motor vehicle to the defendant. The jury was never instructed that the presumption or inference was mandatory. This permissive inference permits an instruction that the jury may conclude that the presumed fact exists if it finds that the basic fact exists. See 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 2.13 (a), pp. 224-25.

The inference in the statute is based on the legislative assumptions that a person driving a vehicle after consuming sufficient alcohol to register a BAC of 0.10 percent or more presents an unacceptable risk of danger to the public and that if the driver has not consumed any alcohol between the time he ceases driving and the time he takes the BAC test, the BAC results will always be equal to or less than his BAC at the time he was driving. Erickson v. Municipality of Anchorage, supra, 662 P.2d 969 (Singleton, J. concurring). While these factual assumptions may be subject to dispute, “[i]t is sufficient if a reasonable legislator could believe them to be true.” Id.

The statute also provides that the presumption can exist when the second test result is higher than the first test result. General Statutes § 14-227a (c). When the second test result is greater than the first test result, the statute allows the presumption if the second test result is greater than 0.12 percent. General Statutes § 14-227a. This presumption is based on the assumption that if the second test is greater than 0.12 percent, the driver’s BAC was greater than 0.10 percent at the time of operation. On the other hand, the statute does not allow the presumption that the driver’s BAC was greater than 0.10 percent at the time of operation if the second test result is 0.12 percent or lower and is higher than the first test result.

In the present case, the presumption applies because the result of the second test was 0.170 percent, far above the 0.12 percent threshold. The defendant’s BAC one and one-half hours after he was observed operating a motor vehicle on a public highway was 0.169 percent. Forty-one minutes after the first test, the defendant’s BAC was 0.170 percent. The defendant did not consume any alcohol from the time he was observed operating the motor vehicle until the tests were administered, and the breathalyzer equipment was operating properly. These facts are adjudicative and must be proven beyond a reasonable doubt in order to be used to support the inference set forth in the statute. The court so instructed the jury.

On the basis of the facts that were presented, the instruction to the jury that it must find those facts to be true beyond a reasonable doubt, and the instruction that the jurors could draw on their experience and common sense, it was reasonable for the jury to infer that the defendant’s BAC was 0.10 percent or higher at the time of operation. Additionally, the instructions to the jury clearly stated that the rebuttable presumption as set forth in § 14-227a (c) was a permissive inference that the jury could, but did not have to, accept to convict the defendant. A rational basis exists for the jury to make the connection permitted by the inference, and we therefore conclude that the use of the rebuttable presumption did not deprive the defendant of due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor .... A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor . . . if he operates a motor vehicle ... (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       Although the defendant refers to the statutory language under consideraüon as being part of subdivision (6) of subsection (c) of § 14-227a, it is clear that the presumption that he challenges is not part of subdivision (6) but follows it. Therefore, we refer to the presumption as part of subsection (c) generally.

       General Statutes § 14-227a(c) provides in relevant part: “[I]n any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol ... in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided ... (6) evidence is presented that the test was commenced within two hours of operation. In any prosecution under this section it shall be a rebuttable presumption that the results of such chemical analysis establish the ratio of alcohol in the blood of the defendant at the time of the alleged offense, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such defendant is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and the analysis thereof accurately indicate the blood alcohol content at the time of the alleged offense.”

         The defendant was stopped by the trooper at approximately 1:15 a.m. After he was taken to the barracks, he was administered a breathalyzer test at 2:46 a.m. with a result of 0.169 percent BAC. He was administered a second test at 3:27 a.m., with a result of 0.170 percent BAC.

       The defendant argued at trial that the breathalyzer was not functioning properly. The trial court charged the jury that it could weigh that testimony in determining the validity of the tests. The jury apparently did not credit this testimony.


author: PER CURIAM.

text:
    ALAN GREENBERG ET AL. v. MORTGAGE SERVICES ASSOCIATES, INC., ET AL. SAMUEL R. MOSIER v. JOSEPH D. RAFFONE ET AL.
    (14543)
    Foti, Lavery and Spear, Js.
    Argued April 30
    officially released June 25, 1996

      Thomas E. Crosby, for the appellants (defendants).

      Albert J. Barr, with whom was Michael W. Santagata, for the appellees (plaintiffs).

      Richard Blumenthal, attorney general, and Stephen R. Park, assistant attorney general, filed a brief for the state of Connecticut as an amicus curiae.
   PER CURIAM.

The sole issue in this appeal is whether the trial court abused its discretion in granting a prejudgment remedy in an action for fraud. In Nash v. Weed & Duryea Co., 236 Conn. 746, 749, 674 A.2d 849 (1996), our Supreme Court stated: “In the absence of a procedural flaw in prejudgment remedy proceedings; see, e.g., Hotz Corp. v. Carabetta, 226 Conn. 812, 816-17, 629 A.2d 377 (1993); appellate courts have only a limited role to play in reviewing a trial court’s broad discretion to deny or to grant a prejudgment remedy. ‘It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.’ Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991); Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 156-57, 595 A.2d 872 (1991); New England Land Co. v. DeMarkey, 213 Conn. 612, 620-21, 569 A.2d 1098 (1990); Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977).”

After reviewing the record and briefs in this case, we are convinced that the defendants have not sustained their burden on appeal.

The judgments are affirmed.


author: Per Curiam.

text:
    STATE OF CONNECTICUT v. JAMES JETER
    (14688)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued March 21
    officially released April 23, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JAY HOWARD MCCOLLUM
    (14041)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued March 21
    officially released April 23, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DONNA DENEHY ET AL. v. INLAND WETLANDS AND WATERCOURSES COMMISSION OF THE TOWN OF BURLINGTON ET AL.
    (14332)
    Dupont, C. J., and O’Connell and Lavery, Js.
    Argued March 20
    officially released April 23, 1996
   Per Curiam.

The judgment is affirmed.


text:
    PASQUALE MELITO v. CHARLES ANNICELLI, JR.
    (14354)
    O’Connell, Lavery and Heiman, Js.
    Argued March 20
    officially released April 23, 1996
   Per Curiam.

The judgment is affirmed.


text:
    PATRICIA KARI v. MICHAEL DEPALO, JR., ET AL.
    (14658)
    Landau, Schaller and Hennessy, Js.
    Argued March 22
    officially released April 23, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DUANE CUSHING v. THOMAS R. STANISH, TRUSTEE, ET AL.
    (14477)
    Foti, Lavery and Landau, Js.
    Argued March 25
    officially released April 23, 1996
   Per Curiam.

The judgment is affirmed.


text:
    GE CAPITAL ASSET MANAGEMENT CORPORATION v. FELIX BURGOS, JR., ET AL.
    (15131)
    O’Connell, Landau and Hennessy, Js.
    Argued March 26
    officially released April 23, 1996
   Per Curiam.

The judgment is affirmed.


text:
    LOIS VERTUCCI ET AL. v. DAVID LINDSAY ET AL.
    (14630)
    O’Connell, Lavery and Landau, Js.
    Submitted on briefs March 27
    officially released April 23, 1996
   Per Curiam.

This appeal is controlled by Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991), and Cook v. Turner, 219 Conn. 641, 593 A.2d 504 (1991).

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JACOB CARATTINI
    (14117)
    O’Connell, Landau and Hennessy, Js.
    Argued March 26
    officially released April 23, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. GEORGE BURSKI, JR.
    (14568)
    Landau, Heiman and Hennessy, Js.
    Argued March 26
    officially released April 23, 1996
   Per Curiam.

The judgment is affirmed.


text:
    LINDA AYRES v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (14739)
    Landau, Heiman and Schaller, Js.
    Argued March 29
    officially released April 30, 1996
   Per Curiam.

The judgment is affirmed.


text:
    JEROME DUNBAR v. ALBERT LINDBOLM ET AL.
    (14553)
    Landau, Heiman and Schaller, Js.
    Argued March 29
    officially released April 30, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DEBRA GABY v. STANLEY GABY
    (14264)
    Landau, Heiman and Schaller, Js.
    Argued March 29
    officially released April 30, 1996
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM I. HANCOCK v. ELECTRONIC INFORMATION SYSTEMS, INC.
    (14865)
    Foti, Heiman and Schaller, Js.
    Submitted on briefs March 27
    officially released April 30, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. WILFRED L. HART, SR.
    (14901)
    Foti, Heiman and Spear, Js.
    Argued March 26
    officially released April 30, 1996
   Per Curiam.

The judgment is affirmed.


text:
    MIDCONN BANK v. WALTER H. BUTLER ET AL.
    (15088)
    Foti, Heiman and Schaller, Js.
    Submitted on briefs March 27
    officially released April 30, 1996
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    STATE OF CONNECTICUT v. ALEJANDRO ORTIZ
    (13608)
    Dupont, C. J., and Hennessy and Stoughton, Js.
    Argued April 3
    officially released April 30, 1996
   Per Curiam.

The judgment is affirmed.


text:
    SHULI GRAHAM v. DENNIS J. GRAHAM
    (13578)
    O’Connell, Landau and Schaller, Js.
    Argued April 2
    officially released April 30, 1996
   Per Curiam.

The judgment is affirmed.


text:
    LESLIE SRAGER ET AL. v. ELLIOT KOENIG ET AL.
    (14500)
    O’Connell, Lavery and Heiman, Js.
    Argued April 3
    officially released April 30, 1996
   Per Curiam.

The judgment is affirmed.


text:
    COUNTRYWIDE FUNDING CORPORATION v. ISAAC L. SMITH ET AL.
    (15325)
    Dupont, C. J., and Lavery and Heiman, Js.
    Argued April 3
    officially released April 30, 1996
   Per Curiam.

The judgment is affirmed.


text:
    SHARON E. WEBSTER v. DANIEL G. WEBSTER
    (14361)
    Foti, Lavery and Schaller, Js.
    Argued April 23
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DELORES D. STEWART v. LEROY STEWART
    (13252)
    (13876)
    Heiman, Hennessy and Freedman, Js.
    Argued April 22
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed.


text:
    BRIAN W. PRUCKER v. STATEWIDE GRIEVANCE COMMITTEE
    (14949)
    Dupont, C. J., and Foti and Schaller, Js.
    Argued April 22
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed.


text:
    MIRCELA NITA v. RICHARD BLUMENTHAL
    (14045)
    Dupont, C. J., and Foti and Schaller, Js.
    Argued April 22
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed.


text:
    COMMAND SECURITY CORPORATION v. LAWRENCE D’ADDARIO, COEXECUTOR (ESTATE OF F. FRANCIS D’ADDARIO), ET AL.
    (14595)
    O’Connell, Heiman and Spear, Js.
    Argued April 23
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. SYLVESTER WALKER
    (14817)
    Heiman, Hennessy and Freedman, Js.
    Argued April 22
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed.


text:
    RICHARD SOLOMON ET AL. v. WMN ASSOCIATES, INC., ET AL.
    (14150)
    Lavery, Schaller and Spear, Js.
    Argued April 23
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RAIMUNDO ORTIZ
    (14377)
    Foti, Lavery and Schaller, Js.
    Argued April 23
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed.


text:
    NANCY A. MONK v. CHARLES M. FAZIO CHARLES M. FAZIO v. NANCY A. MONK
    (14088)
    O’Connell, Heiman and Spear, Js.
    Argued April 23
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed.


text:
    BANK OF NEW HAVEN ET AL. v. JENNITH LINER ET AL.
    (15031)
    O’Connell, Foti and Heiman, Js.
    Argued April 23
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    JAY ZALESKI v. BRONISLAW DUDEK ET AL.
    (15135)
    O’Connell, Heiman and Spear, Js.
    Argued April 24
    officially released May 14, 1996
   Per Curiam.

The judgment is affirmed.


text:
    JAMES M. SPELLMAN, JR. v. TOWN OF EAST LYME ET AL.
    (14712)
    O’Connell, Lavery and Spear, Js.
    Argued April 25
    officially released May 14, 1996
   Per Curiam.

The uncontroverted finding by the trial court that there was no position open for recall is dis-positive of this case.

The judgment is affirmed.


text:
    MERLY CONSTRUCTION COMPANY v. TYLER EQUIPMENT CORPORATION
    (14717)
    O’Connell, Foti and Heiman, Js.
    Argued April 26
    officially released May 21, 1996
   Per Curiam.

The judgment is affirmed.


text:
    TRAVIS WALLACE v. COMMISSIONER OF MOTOR VEHICLES
    (14875)
    O’Connell, Foti and Heiman, Js.
    Argued April 26
    officially released May 21, 1996
   Per Curiam.

The judgment is affirmed.


text:
    NUTMEG HOUSING DEVELOPMENT CORPORATION v. ACEQUIA CONSTRUCTION, INC.
    (14705)
    Lavery, Schaller and Hennessy, Js.
    Argued April 26
    officially released May 21, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. GUILLERMO MARTINEZ
    (14647)
    Lavery, Schaller and Hennessy, Js.
    Argued April 26
    officially released May 21, 1996
   Per Curiam.

The judgment is affirmed.


text:
    EVA GRIFFITH-PATTON v. DEPARTMENT OF AGRICULTURE
    (14707)
    Lavery, Heiman and Schaller, Js.
    Argued April 26
    officially released May 21, 1996
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM A. ALLEN v. COMMISSIONER OF CORRECTION
    (14684)
    Landau, Heiman and Hennessy, Js.
    Argued April 29
    officially released May 21, 1996
   Per Curiam.

The judgment is affirmed.


text:
    COSTA STERQUE v. RALPH SERPICO ET AL.
    (15204)
    Landau, Heiman and Hennessy, Js.
    Argued April 29
    officially released May 21, 1996
   Per Curiam.

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


text:
    JENNIE D. ROUND v. BYRON J. ROUND
    (14664)
    Heiman, Spear and Spallone, Js.
    Argued March 25
    officially released May 21, 1996
   PER CURIAM.

On appeal in this dissolution action, the defendant, Byron J. Round, claims that the trial court improperly (1) declined to articulate its decision, (2) fashioned joint custody and visitation rights without appointing an attorney for the minor child, ordering a custody report or interviewing the minor child, (3) awarded alimony, and (4) valued the marital home.

Our review of the record, transcripts and briefs clearly indicates that the trial court, in the exercise of its fact-finding function and in the application of its broad discretion in family matters, acted reasonably, rationally and in accordance with applicable law.

The evidence supports the court’s findings of the defendant’s earning capacity, its valuation of the marital home and its decision to award joint custody of the minor child to the plaintiff with reasonable, liberal and flexible visitation rights to the defendant.

The judgment is affirmed.


text:
    GEORGE ALTIERI, JR., ET AL. v. WESTINGHOUSE ELEVATOR COMPANY
    (14668)
    Landau, SchaUer and Hennessy, Js.
    Argued April 25
    officially released May 21, 1996
   Per Curiam.

The judgment is affirmed.


text:
    PATRICIA LAND v. DAVID LAND
    (15141)
    Landau, Heiman and Spear, Js.
    Submitted on briefs May 3
    officially released June 4, 1996
   Per Curiam.

The judgment is affirmed.


text:
    KENNA D. BROWN v. WILLIAM B. BROWN
    (14653)
    Landau, Heiman and Spear, Js.
    Submitted on briefs May 3
    officially released June 4, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DONALD GAYLE v. BASIL YOUNG ET AL.
    (14582)
    Landau, Schaller and Hennessy, Js.
    Argued May 2
    officially released June 4, 1996
   Per Curiam.

In this appeal arising from a judgment in a summary process action, the first five issues are dismissed as untimely pursuant to HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 668 A.2d 1309 (1995). We consider only the sixth and final issue presented to us on appeal.

The judgment is affirmed.


text:
    LEONARD A. DEFUSCO v. DWIGHT O. SCHWEITZER ET AL.
    (14362)
    (14445)
    Landau, Heiman and Spear, Js.
    Submitted on briefs May 3
    officially released June 4, 1996
   Per Curiam.

The judgment is affirmed.


text:
    JEFFREY A. WALKER v. STATE OF CONNECTICUT
    (15256)
    Dupont, C. J., and Laveiy and Schaller, Js.
    Argued May 2
    officially released June 4, 1996
   Per Curiam.

The judgment is affirmed.


text:
    CONNECTICUT CAR RENTAL, INC. v. EMBASSY LIMOUSINES, INC., ET AL.
    (14277)
    O’Connell, Lavery and Hennessy, Js.
    Submitted on briefs May 3
    officially released June 4, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DENIS F. BURRELL v. PSL ENERGY SERVICES, INC.
    (14964)
    O’Connell, Lavery and Hennessy, Js.
    Submitted on briefs May 3
    officially released June 4, 1996
   Per Curiam.

The judgment is affirmed.


text:
    KENNETH WALKER ET AL. v. TOWN OF NEW MILFORD ET AL.
    (14839)
    Dupont, C. J., and Foti and Schaller, Js.
    Submitted on briefs May 3
    officially released June 18, 1996
   Per Curiam.

The judgment is affirmed.


text:
    DECARLO AND DOLL, INC. v. SOLID WASTE DISPOSAL, INC., ET AL.
    (15051)
    Dupont, C. J., and O’Connell and Foti, Js.
    Submitted on briefs May 3
    officially released June 18, 1996
   Per Curiam.

The judgment is affirmed.


text:
    LYELL B. DAMPEER v. JANE D. DAMPEER
    (14887)
    O’Connell, Foti and Lavery, Js.
    Argued May 28
    officially released June 18, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOSE BERRIOS
    (14808)
    O’Connell, Foti and Lavery, Js.
    Argued May 28
    officially released June 18, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. NNAMDI CLARKE
    (14621)
    O’Connell, Foti and Lavery, Js.
    Argued May 28
    officially released June 18, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOSEPH WIXTED
    (14585)
    Landau, Heiman and Daly, Js.
    Argued May 28
    officially released June 18, 1996
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JAMES D. LINLEY
    (15190)
    Landau, Heiman and Daly, Js.
    Argued May 28
    officially released June 18, 1996
   Per Curiam.

The judgment is affirmed.


text:
    IN RE ALLAN D. ET AL.
    (14914)
    Foti, Heiman and Spear, Js.
    Argued May 29
    officially released June 18, 1996
   Per Curiam.

The judgment is affirmed.


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. MICHAEL MARSALA
    (14094)
    Landau, Spear and Hennessy, Js.
    Argued February 26
    officially released July 2, 1996

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, was Donald Browne, state’s attorney, for the appellant (state).

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was Richard Emanuel, assistant public defender, for the appellee (defendant).
   LANDAU, J.

This appeal is from the judgment of the trial court, Leavitt, J., granting the defendant’s motion to suppress evidence seized during a police search of the defendant’s residence pursuant to a search warrant. Thereafter, the trial court, Maiocco, J., granted the defendant’s motion to dismiss the state’s information based on his claim that there was insufficient evidence to proceed to trial once the motion to suppress was granted.

Pursuant to General Statutes § 54-96, the state filed a motion for permission to appeal and the motion was granted by the trial court. On appeal, the state claims that the trial court improperly determined that, under the “totality of the circumstances” test adopted by our Supreme Court in State v. Barton, 219 Conn. 529, 533, 594 A.2d 917 (1991) (Barton test), the search warrant affidavit lacked a sufficient basis to allow the issuing magistrate to find probable cause.

The following facts and procedural history are relevant to the resolution of this appeal. The defendant was arrested in October, 1986, by officers from the Monroe police department and charged with violating various narcotics offenses. The arrest stemmed from the seizure of contraband and drug paraphernalia from the defendant’s person and residence following the execution of a search warrant. After a jury trial, the defendant was convicted in May, 1987, for two violations of the state dependency producing drug law, General Statutes § 21a-278 (b). Following a series of appeals, the matter was remanded for a new trial in which the trial court examined the search warrant affidavit anew.

In its memorandum of decision issued upon granting the defendant’s motion to suppress, the trial court relied on State v. Duntz, 223 Conn. 207, 613 A.2d 224 (1992), as authority to apply the Barton test retroactively. Upon reviewing the search warrant affidavit under the Barton test, the trial court determined that the magistrate improperly determined that the affidavit established probable cause because “[t]he entire warrant was based on conjecture and surmise.” The court opined that “the Monroe police warrant does not pass [Barton] muster as to a finding of probable cause under ‘the totality of the circumstances’ test” because “[t]he warrant lacks even a sniff that drugs were being sold by the defendant,” and “[n]ot one piece of information in the warrant was either corroborated or substantiated.” We disagree with the result reached by that court.

I

Because the search warrant affidavit in this case was executed in 1986, and the Barton decision was rendered in 1991, as a threshold matter, we must determine whether the trial court was correct in applying the Barton test retroactively. While the state disputes the conclusion reached by the trial court after it reviewed the affidavit pursuant to Barton (see part II of this opinion), the state nevertheless asserts that the court was correct to apply the test retroactively.

The defendant argues that because the Barton test supplanted the two-pronged Aguilar-Spinelli test previously used by our courts when reviewing search warrant affidavits; see State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985); we should recognize the Barton test as a “clear break” from the old rule and not apply it retroactively. The defendant also argues that the state waived its right to assert the validity of the search warrant under the Barton test. Neither argument has merit.

As a general rule, “judicial decisions apply retroactively. Robinson v. Neil, 409 U.S. 505, 507-508, 93 S. Ct. 876, 35 L. Ed. 2d 29 (1973). Indeed, a legal system based on precedent has a built-in presumption of retro-activity. Solem v. Stumes, 465 U.S. 638, 642, 104 S. Ct. 1338, 79 L. Ed. 2d 579 (1984).” (Internal quotation marks omitted.) State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986). Since the Barton decision, our appellate courts have consistently applied the Barton test retroactively. See, e.g., State v. Duntz, supra, 223 Conn. 207 (search warrant executed in October, 1986); State v. Rodriguez, 27 Conn. App. 307, 606 A.2d 22 (1992) (search warrant executed in June, 1990); State v. DeFusco, 27 Conn. App. 248, 606 A.2d 1 (1992), aff'd, 224 Conn. 677, 620 A.2d 746 (1993) (search warrant executed in October, 1991); State v. Hunter, 27 Conn. App. 128, 604 A.2d 832 (1992) (search incident to lawful arrest conducted in January, 1990); State v. Anziano, 26 Conn. App. 667, 603 A.2d 415 (1992) (search warrant executed in January, 1990); State v. Payne, 25 Conn. App. 428, 594 A.2d 1035, cert. denied, 220 Conn. 915, 597 A.2d 337 (1991) (arrest warrant executed in June, 1989). We conclude, therefore, that the trial court correctly applied the Barton test retroactively.

II

The state next claims that the trial court improperly failed to determine that, under the Barton test, the search warrant affidavit presented a substantial basis on which the issuing magistrate could conclude that probable cause existed.

In State v. Barton, supra, 219 Conn. 544, our Supreme Court adopted the “totality of the circumstances” standard for determining probable cause used by the federal courts pursuant to the decision of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Under the totality of the circumstances standard, “[w]hen a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is rehable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. . . .

“If a warrant affidavit does not provide a substantial basis for the finding of probable cause, then evidence or contraband seized in the execution of that warrant will be suppressed, even when the officer executing the warrant has relied in good faith on its authority. State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990).” State v. Barton, supra, 219 Conn. 544-45.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched.” (Citations omitted; internal quotation marks omitted.) Id., 547-48. “ ‘The role of an appellate court reviewing the validity of a warrant is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed.’ State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991).” State v. Duntz, supra, 223 Conn. 215.

“This court’s scope of review, in evaluating the existence of probable cause, is limited to the facts that appear on the four comers of the affidavit or facts that may be properly inferred from those facts. State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). In so doing, we must use common sense; State v. Castano, 25 Conn. App. 99, 101, 592 A.2d 977 (1991); and defer to the reasonable inferences drawn by the [issuing] magistrate. State v. Barton, supra, 219 Conn. 544-45. Our role is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. State v. Johnson, supra, 219 Conn. 565.” (Internal quotation marks omitted.) State v. Anziano, supra, 26 Conn. App. 672.

We now consider the search and seizure warrant affidavit presented in this case in light of these principles. The Monroe police department submitted the warrant application for ex parte judicial approval on October 1, 1986. The affidavit contained the following information: “A named police officer from Trumbull notified the Monroe police that the defendant was a heavy seller of cocaine and other illegal drugs. The police had also received a telephone call from a resident of Swendsen Drive reporting that he had seen what he believed to be drug activity at [Marsala’s residence at] 154 Swendsen Drive, that he had seen many vehicles drive up to the house, and that a bearded man came from the house, approached each vehicle and engaged in some sort of transaction. When the vehicles left, the man returned to the house. This ‘concerned citizen’ then stated that this activity could be characterized as ‘heavy’ with vehicles coming and going at all times of the day and night. In light of these reports, Monroe police drove by the house several times every day and night for a period of time and observed numerous vehicles occupied by young males in front of the house and a man walking between the house and the vehicles. On September 15, 1986, a confidential informant came to the police department in Monroe and told of what he believed to be heavy drug trafficking at 154 Swendsen Drive, supplied a list of thirteen marker numbers of vehicles that had been seen frequently stopping at that address at all times of the day and night and that some type of transaction would take place between the occupants of the cars and Michael Marsala, who was known to the informant as the occupant of 154 Swendsen Drive. The police then continued their surveillance. The informant again came to the police department on September 29, 1986, and gave similar information about the activity concerning Michael Marsala and the address in question. The informant also stated that extremely heavy activity was seen during the weekend of September 27 and 28, 1986.

“On September 23, 1986, another police officer told one of the affiants that another informant had told him that he was aware of a man named Mike on Swendsen Drive who was selling cocaine to young people who drove up to the front of the house and that transactions took place right in the street. The following day a resident of the same neighborhood as 154 Swendsen Drive telephoned one of the affiants to express concern about what he felt was frightening activity going on in front of that address.” State v. Marsala, supra, 27 Conn. App. 294-95.

Upon reviewing the information contained within the four comers of the search warrant affidavit; see State v. Couture, supra, 194 Conn. 536; we conclude that the independent Monroe police investigation sufficiently corroborated the information provided by the confidential informants. See Illinois v. Gates, supra, 462 U.S. 213. For that reason, the informants’ opinions that the defendant was dealing drugs, although not credible standing alone, could reasonably have been believed and evaluated along with the other information contained in the affidavit. State v. Duntz, supra, 223 Conn. 217. Under the Barton standard, therefore, the issuing magistrate was free to consider not only the information derived from the police investigation, but also the opinions and observations of the anonymous sources even though their reliability had not been established.

A reviewing court should not invalidate a warrant as long as the inferences drawn by the issuing magistrate are reasonable under all of the circumstances set forth in the affidavit regardless of whether that court would have drawn the same inferences. State v. Barton, supra, 219 Conn. 529. On the basis of the informants’ opinions that the defendant was dealing drugs, the frequent and brief visits to the defendant’s home during which the occupants of the vehicles would be approached by a man with whom they would engage in a transaction, and the statements that the visits occurred during all times of the day and night, the issuing magistrate could reasonably have inferred that either narcotics sales or trafficking was occurring at the defendant’s residence. Thus, after considering the search warrant affidavit under the “totality of the circumstances test,” we conclude that the affidavit presented a substantial factual basis to support the magistrate’s conclusion that probable cause existed. See State v. Marsala, supra, 27 Conn. App. 291.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion to suppress and for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       General Statutes (Rev. to 1987) § 21a-278 (b) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcol ic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       For an entire history, see State v. Marsala, 15 Conn. App. 519, 545 A.2d 1151, cert. denied, 209 Conn. 816, 550 A.2d 1087 (1988) (Marsala I), on appeal after remand, 19 Conn. App. 478, 563 A.2d 730 (1989) (Marsala II), rev’d, 216 Conn. 150, 579 A.2d 58 (1990) (Marsala III) (in which Supreme Court held good faith exception to exclusionary rule incompatible with article first, § 7, of Connecticut constitution and reversed defendant’s conviction); State v. Marsala, 26 Conn. App. 423, 601 A.2d 542 (1991) (Marsala IV) , on reconsideration, 27 Conn. App. 291, 605 A.2d 866 (1992) (Marsala V) (in which we reconsidered validity of search warrant in light of Supreme Court’s decision in State v. Barton, supra, 219 Conn. 529), rev’d, 225 Conn. 10, 13, 620 A.2d 1293 (1993) (Marsala VI) (in which Supreme Court reversed and directed this court to remand case for new trial).

        Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).

       Although our conclusion here is consistent with this court’s conclusion in State v. Marsala, 27 Conn. App. 291, 605 A.2d 866 (1992) (Marsala V), we acknowledge that Marsala V is not controlling. See State v. Marsala, 225 Conn. 10, 13, 620 A.2d 1293 (1993).


text:
    STATE OF CONNECTICUT v. ALAN M. NOKES
    (14355)
    Dupont, C. J., and O’Connell and Spear, Js.
    Argued April 2
    officially released July 2, 1996

      Stephen F. Cashman, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Mary Rose Flaherty, deputy assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The principal issue of this appeal is whether the trial court’s instruction on the rebuttable presumption in General Statutes § 14-227a (c) impermissibly shifted the burden of proof on an essential element of the offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a).

The defendant was arrested without a warrant after a Berlin police officer witnessed the defendant driving erratically. The defendant failed field sobriety tests, was read his Miranda rights and was taken to the police station where he submitted to two breath tests. The first test was administered about twenty-eight minutes after the defendant’s arrest and measured his blood alcohol content (BAC) at 0.219 percent; the second test was administered about one hour after his arrest and measured his BAC at 0.210 percent. The defendant was found guilty by a jury of operating a motor vehicle while under the influence of intoxicating liquor.

The pertinent part of the charge that must be analyzed in order to resolve the defendant’s claim is as follows: “In any criminal prosecution for driving a vehicle while under the influence of, or affected by the use of, intoxicating liquor, the amount of alcohol in the defendant’s blood at the time alleged is shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance, shall give rise to the following presumptions: If there was at that time ten hundredths of one percent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor. If you find that the results of the chemical analysis test are above twelve hundredths of one percent, and that the test was commenced within two hours of the time of operation, then you can find that the ratio of alcohol in the defendant’s blood was in excess of the legal limit of ten hundredths of one percent at the time of operation. These presumptions are rebuttable presumptions. These presumptions can be overcome by the defendant through the introduction of other evidence. You will recall that the defense introduced the testimony of [Brian] Pape, an expert in the field of toxicology. It is for you to decide whether or not to believe all or any part of his testimony, and whether or not his testimony successfully rebutted the presumptions.” (Emphasis added.)

The defendant excepted to the instruction, claiming that it unconstitutionally shifted the burden of proof from the state to the defendant and that, because he had presented evidence to rebut the presumption, the jury should not have been instructed on the presumption at all.

A challenge to a jury instruction requires a review to determine whether it is reasonably possible that a jury was misled; State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991); and the instruction is to be read as a whole to judge its total effect rather than its individual parts. State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161 (1995).

The jury charge here allowed the jury to make a permissive inference in that it could consider the test results and attach whatever weight it chose to them. The charge did not impermissibly allow the state to use an evidentiary presumption to reheve itself of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. See Francis v. Franklin, 471 U.S. 307, 313, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985). The court told the jury that if the defendant’s BAC was 0.10 percent it shall be presumed that he was under the influence of intoxicating liquor, that the jury could find that his BAC was in excess of 0.10 percent, but that the presumption was rebuttable and could be overcome by the defendant. The court specially noted that the defendant’s expert’s testimony should be considered to determine if his testimony rebutted the presumption that otherwise could exist. The instruction made it clear that the presumption was not binding because it could be overcome by other evidence. The jury was never instructed that the presumption or inference was mandatory, and the burden of persuasion never shifted.

The instructions in this case are very similar to those upheld in State v. Korhn, 41 Conn. App. 874, 678 A.2d 492 (1996), and we conclude that Korhn controls the disposition of this case. Nothing in § 14-227a (c) implies that the production of evidence to rebut the presumption eliminates the presumption if the jury chooses to believe the facts underlying the presumption.

The defendant also claims that the trial court incorrectly characterized the rebuttable presumption as one based on public policy. We need not determine whether that is an accurate characterization because the statement was made in response to an exception to the charge made outside of the jury’s presence and could not, therefore, have misled the jury.

The judgment is affirmed.

       General Statutes § 14-227a (c) provides in relevant part: “Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided ... (6) evidence is presented that the test was commenced within two hours of operation. In any prosecution under this section it shall be a rebuttable presumption that the results of such chemical analysis establish the ratio of alcohol in the blood of the defendant at the time of the alleged offense, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such defendant is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and the analysis thereof accurately indicate the blood alcohol content at the time of the alleged offense.”

       General Statutes § 14-227a (a) provides: “Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”


text:
    DAVID KOHN v. TOWN OF WILTON ET AL
    (14351)
    O’Connell, Foti and Landau, Js.

      Argued February 23
    officially released July 2, 1996

      Howard A. Lawrence, with whom was Lawrence S. Dressier, for the appellant (plaintiff).

      Christopher M. Hodgson, with whom, on the brief, was Margaret M. Sheahan, for the appellees (defendants).
   LANDAU, J.

This is an appeal from the trial court’s judgment denying the plaintiff, David Kohn, a declaratory judgment and monetary damages. It arises from Kohn’s interim appointment, made by the town of Wilton fire commission, to the position of acting fire marshal. After serving in that capacity until another candidate was appointed to the permanent position, the plaintiff returned to his former position of deputy fire marshal.

In his complaint, the plaintiff alleged that, prior to being removed from the position of acting fire marshal, he was entitled to, and should have received, the just cause, notice and hearing protections afforded to “local fire marshals” as set forth in General Statutes §§ 29-297, 29-299 and 29-300. Following a hearing, the trial court rendered judgment for the defendants, and this appeal ensued.

The facts, which were set forth in a joint stipulation dated August 5,1994, are undisputed. Because we conclude, however, that the record discloses a fundamental flaw in the proceedings that deprived the trial court of subject matter jurisdiction, we reverse the trial court’s judgment and do not reach the merits of the appeal. See Serrani v. Board of Ethics, 225 Conn. 305, 306, 622 A.2d 1009 (1993).

There is no doubt that the complaint in this action seeks a declaratory judgment. The claim for declaratory relief was in no way ancillary to the claim for damages, and the record does not indicate that the declaratory judgment aspect of this case was not determined by the trial court. See Mannweiler v. LaFlamme, 232 Conn. 27, 31, 653 A.2d 168 (1995). Thus, our threshold consideration is whether the plaintiff complied with the notice requirement of Practice Book § 390 (d) so that the trial court had jurisdiction over this action. In Mannweiler v. LaFlamme, supra, our Supreme Court stated that, because “the plaintiffs, in their prayer for relief, invoked the declaratory judgment provision of General Statutes § 52-29, as implemented by Practice Book §§ 389 and 390, a proper order of notice to all parties having an interest in the subject matter of the complaint was mandatory. See Serrani v. Board, of Ethics, supra, 225 Conn. 308. Failure to comply with § 390 (d) deprives the trial court of subject matter jurisdiction to render a declaratory judgment. . . . Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. ...” (Citations omitted; internal quotation marks omitted.) Id., 34-35.

Disposition of this case without the notification of other officials who were appointed to acting positions could lead to unacceptable results. For example, alleged violations of statutory due process rights under the relevant statutes for appointed acting local fire marshals, as well as for other acting local officials, could be relitigated in multiple actions by persons not bound by the first declaration. Id., 34. Because adjudication of the declaratory judgment claim necessarily implicates the interests of others, each must be given notice and an opportunity to be heard. Id.

The trial court’s lack of subject matter jurisdiction does not require a dismissal on remand. Rather, to cure the jurisdictional defect, the plaintiff may take measures to comply with the notice provisions of § 390 (d). See Mannweiler v. LaFlamme, supra, 232 Conn. 36 n.ll; Patriot General Ins. Co. v. Normandie, 41 Conn. App. 66, 67, 674 A.2d 861 (1996); Clinton v. Rogers Lake West Shores Assn., Inc., 40 Conn. App. 454, 671 A.2d 855 (1996).

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The defendants in this action are the town of Wilton, Stephen Lucas, chairman of the Wilton board of fire commissioners, and William Von Zehle, chief of the Wilton fire department.

       General Statutes § 29-297 provides in pertinent part: “Each local fire marshal shall be sworn to the faithful performance of his duties by the clerk of the town, city, borough or fire district and shall continue to serve in that office until removed for cause. . . .”
      General Statutes § 29-299 provides in pertinent part: “If a local fire marshal fails to l'ailhfully perform the duties of his office, the appointing authority of the municipality in which he is serving shall, after proper inquiry, dismiss him and appoint another in his place. . .
      General Statutes § 29-300 provides in pertinent part: “No local fire marshal shall be dismissed unless he has been given notice in writing of the specific grounds for such dismissal and an opportunity to be heard in his own defense, personally or by counsel, at a public hearing before the authority having the power of dismissal. . . .”

       The plaintiff was appointed to the position of acting deputy fire marshal on November 25, 1986. On May 18, 1987, he was permanently appointed to the position of deputy fire marshal. Subsequently, due to the retirement of the fire chief, who also held the position of fire marshal, the plaintiff was appointed as the acting fire marshal on July 7, 1987.
      As a part of reorganization, the Wilton fire department created two new positions, one of which was the deputy chief/fire marshal. In March, 1988, the fire department interviewed candidates, including the plaintiff, for the new position. On April 7, 1988, Richard Gough was appointed deputy chief/ fire marshal. Shortly thereafter, the plaintiff was notified by letter of Gough’s appointment.

       In this action for declaratory relief, it does not appear from our review of the trial court record that the plaintiff provided reasonable notice pursuant to Practice Book § 390 (d). Indeed, the issue was raised at oral argument and counsel for the plaintiff conceded that no notice was provided pursuant to § 390 (d).

       Practice Book § 390 (d) provides that the trial court will not enter a declaratory judgment “unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”